Marcus Brent Patterson, Individually, as Independent Administrator of the Estate of Diane Patterson, and as Next Friend of Daniel Patterson and Danae Patterson, and Danae Patterson and Daniel Patterson (Now 18 Years of Age) v. Brewer Leasing, Inc.

ACCEPTED
01-14-00013-CV
FIRST COURT OF APPEALS
HOUSTON, TEXAS
7/15/2015 3:38:10 PM
CHRISTOPHER PRINE
CLERK
NO. 01-14-00013-CV
In the Court of Appeals FILED IN
1st COURT OF APPEALS
For the First Supreme Judicial District of Texas HOUSTON, TEXAS
7/15/2015 3:38:10 PM
at Houston, Texas
CHRISTOPHER A. PRINE
Clerk
Marcus B. Patterson, individually, as Independent Administrator of
the Estate of Diane Patterson,
and as next friend of Daniel Patterson and Danae Patterson,
and Danae Patterson and Daniel Patterson (now 18 years old),
Appellants
v.
Brewer Leasing, Inc., Appellee
On Appeal from the 334th Judicial District Court
of Harris County, Texas
The Honorable Judge Ken Wise presiding
APPELLANTS’ MOTION FOR REHEARING
HARRY HERZOG DOROTHEA “DOTTY” L. VIDAL
State Bar No. 09548200 State Bar No. 20578100
DAVID A. CARP GEARY, PORTER & DONOVAN
State Bar No. 03836500 16475 Dallas Parkway, Ste. 400
HERZOG & CARP Addison, Texas 75001-6837
P.O. Box 218845 972-931-9901 Telephone
Houston, Texas 77218-8845 972-931-9208 Facsimile
713-781-7500 Telephone dvidal@gpd.com
713-781-4797 Facsimile
HHerzog@hcmlegal.com Co-Counsel for Appellants
Lead Counsel for Appellants
TABLE OF CONTENTS
Page
INDEX OF AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii
I. Brewer Leasing is liable as the undisputed owner of the never
leased Heil trailer. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
II. With respect to the tractor the Court’s opinion reverses statutory
law, the burden of proof, and incorrectly construes cited case
authorities. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
A. This Court’s opinion judicially reverses the 1956
Congressional statute and parallel Texas legislation,
together with the federal and Texas regulatory schemes. . . . . 2
B. This Court’s opinion incorrectly construes cited case
authority. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
C. There was no lease from Brewer Leasing to Texas Stretch. . 15
1. There was no consideration.. . . . . . . . . . . . . . . . . . . . . 15
2. We looked for consideration. . . . . . . . . . . . . . . . . . . . . 15
3. The reason for no consideration. . . . . . . . . . . . . . . . . . 16
4. This Court also errs on the burden of proof and
jury questions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
5. The criminal wrongdoing clause in 49 USC §
30106(a)2 precludes any liability shifting away
from Brewer Leasing. . . . . . . . . . . . . . . . . . . . . . . . . . . 18
6. The big picture.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
III. A factual error. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
CERTIFICATE OF SERVICE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
CERTIFICATE OF COMPLIANCE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
APPENDIX. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
ii
INDEX OF AUTHORITIES
U.S. SUPREME COURT
American Trucking Ass’ns. v. U.S., 344 U.S. 298, 302-306;
73 S. Ct. 307 (1953). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
U.S. COURT OF APPEALS
Empire Fire & Marine Insur. Co. v. Guaranty National Insur. Co.,
868 F.2d 357, 362 (10th Cir. 1989). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Jackson v. O’Shields, 101 F.3d 1083, 1086 (5th Cir. 1996). . . . . . . . . . . . . 3
Price v. Westmoreland, 727 F.2d 494, 496 (5th Cir. 1984). . . . . . . . . . . . . 3
White v. Excalibur Ins. Co., 599 F.2d 50, 52 (5th Cir. 1979),
cert. denied, 444 U.S. 965 (1979). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
TEXAS SUPREME COURT
Berry v. Golden Light Coffee Company,
327 S.W.2d 436, 439 (Tex. 1959). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
TEXAS COURT OF APPEALS
Hogan v. J. Higgins Trucking, Inc., 197 S.W.3d 879, 884-5
(Tex. App. – Dallas 2006, no pet.). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Hooper v. Torres, 790 S.W.2d 757, 759
(Tex. App. – El Paso 1990, writ den’d). . . . . . . . . . . . . . . . . . . . . . . . . . . 17
In re Brewer Leasing, 255 S.W.3d 708
(Tex. App. – Hou 1st 2008, mandamus den’d). . . . . . . . . . . . . . . . . . . . . . 15
Morris v. JTM Materials, Inc., 78 S.W.3d 28, 38
(Tex. App. – Ft. Worth 2002, no pet).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
iii
OTHER COURTS
Hunt v. Drielick, 852 N.W.2d 562 (Mich. 2014). . . . . . . . . . . . . . . . . . . . . 13
Jones Express, Inc. v. Watson, 871 F. Supp. 719, 728-734
(quotes at 734)(M.D. Tenn. 2012).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Luizzi v. Pro Transport, 2013 WL 3968736 (E.D. NY, 2013). . . . . . . . 11, 12
Paul v. Bogle, 484 N.W.2d 728, 731, 735 (Mich. Ct. App. 1992). . . . . . . . 7
Rediehs Exp., Inc. v. Maple, 491 N.E.2d 1006, 1011
(Ct. App. – Indiana 1st, 1986, trsf den’d, cert. den’d 107 S. Ct. 1571). . . . . 4
Shimko v. Jeff Wagner Trucking, 2014 WL 7366190
(W.D. Wisc. 2014).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Wilson v. Riley Whittle, 701 P.2d 575 (Ariz. Ct. App. 1984). . . . . . 9, 10, 13
FEDERAL STATUTES
49 USC § 11107. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 10, 16
49 USC § 31135. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7, 8
49 USC § 30106. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 14, 15, 17, 18
CODE OF FEDERAL REGULATIONS
49 C.F.R. § 376. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 6, 11, 12, 15, 16
49 C.F.R. § 1057 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 10
OTHER
TRCP 279. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Texas Penal Code § 37.09(a)1, 37.09(d)1, 37.08. . . . . . . . . . . . . . . . . . . 18
iv
MOTION FOR REHEARING
The Patterson family moves for rehearing on two grounds: (1) the
Court’s opinion erroneously fails to hold Brewer Leasing liable as the
undisputed owner of the Heil trailer with no testimony of any oral lease to
Texas Stretch, and (2) the Court’s opinion reverses statutory law, the burden
of proof, and incorrectly construes cited case authorities with respect to any
oral lease of the Peterbilt tractor, thereby erroneously allowing an oral lease
to evade liability.
I.
Brewer Leasing is liable as the undisputed owner
of the never leased Heil trailer.
The reason this court gave for exonerating Brewer Leasing does not
apply to the Heil trailer. The legal principle underlying the Court’s liability
analysis on the tractor (an oral lease can shift liability away from Brewer
Leasing pursuant to 49 USC § 30106) does not apply as there was no oral
lease of the Heil trailer. The opinion correctly reflects the Patterson family’s
theory of liability on the trailer but then skips it in the analysis. Brewer
Leasing undisputably owned the Heil trailer, there is no written lease, and
there is also no testimony of any oral lease of the Heil trailer. Therefore
1
nothing the Court wrote absolving Brewer Leasing of liability for the Peterbilt
tractor applies to the Heil trailer.
II.
With respect to the tractor the Court’s opinion reverses statutory law,
the burden of proof, and incorrectly construes cited case authorities.
A. This Court’s opinion judicially reverses the 1956 Congressional
statute and parallel Texas legislation, together with the federal and
Texas regulatory schemes.
Between 1935 and 1956 trucking abuses were alarmingly frequent,
threatening both the industry and public safety. American Trucking Ass’ns.
v. U.S., 344 U.S. 298, 301-306; 73 S. Ct. 307 (1953); White v. Excalibur Ins.
Co., 599 F.2d 50, 52 (5th Cir. 1979), cert. denied, 444 U.S. 965 (1979).
Relationships before a collision were consistently concealed after a wreck.
Owners or lessees of vehicles magically produced oral leases to uninsured
companies. It takes a lot to get any Congress off dead center, but the
unending stream of perjurious testimony to evade trucking liability moved
Congress in 1956 to end the existence of oral leases to evade liability.
From 1956 until this Court’s opinion no case in America allowed any oral
lease to evade liability. Courts have detailed the history and policy decisions
that forced Congress to act. As the Ft. Worth Court of Appeals correctly
summarized, “. . . protecting the public from accidents, preventing public
2
confusion about who was financially responsible if accidents occurred, and
providing financially responsible defendants” were three goals of the 1956
Federal Motor Carrier Safety Act Amendments. Morris v. JTM Materials, Inc.,
78 S.W.3d 28, 38 (Tex. App. – Ft. Worth 2002, no pet); accord Empire Fire
& Marine Insur. Co. v. Guaranty National Insur. Co., 868 F.2d 357, 362 (10th
Cir. 1989); Price v. Westmoreland, 727 F.2d 494, 496 (5th Cir. 1984). As the
Fifth Circuit noted:
“Under the authority of 49 U.S.C. § 11107, the
Interstate Commerce Commission regulates leases of
equipment used in interstate commerce. See 49
C.F.R. § 1057.1 et seq. One of the primary purposes
of the ICC’s leasing regulations is to ensure that
carrier-lessees take control of and responsibility for
leased equipment during the term of a lease.”
Jackson v. O’Shields, 101 F.3d 1083, 1086 (5th Cir. 1996). Jackson was
another classic case of the round robin of finger pointing by carriers, lessors,
owners, drivers and insurers. Jackson, 1081. The Jackson decision correctly
notes that the failure to comply with trucking regulations “does not and should
not insulate a carrier-lessee from liability.” Jackson, 1089.
“The stringent regulations also eliminate the difficulty
faced by an injured plaintiff in determining who
controlled the vehicle; the purpose upon which the
vehicle was embarked at the time of the accident; and
the questions of agency, employee or independent
3
contractor status, frolic and detour, and borrowed
employee.”
Rediehs Exp., Inc. v. Maple, 491 N.E.2d 1006, 1011 (Ct. App. – Indiana 1st,
1986, trsf den’d, cert. den’d 107 S. Ct. 1571). Rediehs contains some of the
country’s most cited and quoted language on the history of the 1956
amendments and the end of delegating responsibility, evading responsibility,
abrogating responsibility, and eliminating fly-by-night contracting. This Court’s
reliance on an oral lease to evade liability returns trucking law to its pre-1956
wild west condition.
Texas Stretch spent three years denying any affiliation with Charles
Hitchens and evading liability since Brewer Leasing was the lessee under a
written lease. At the last minute they admitted employing Charles Hitchens
(Appendix 8, 20). Now, at the last minute, Brewer Leasing denies being the
lessee and in a classic example of statutorily precluded finger pointing claims
Texas Stretch was the oral lessee. The 1956 Act and “stringent regulations”
designed to prevent this insanity are neutered by this Court’s acceptance of
the claim of an oral lease.
Courts have consistently ruled that a company cannot evade liability by
non-compliance with the 1956 statute or regulations. For example,
4
“The purpose of the amendments was to ensure that
interstate motor carriers would be fully responsible for the
maintenance and operation of the leased equipment and
the supervision of the borrowed drivers, thereby protecting
the public from accidents, preventing public confusion about
who was financially responsible if accidents occurred, and
providing financially responsible defendants. Id. The
Interstate Commerce Commission later issued regulations
that required a certificated interstate carrier who leases
equipment to enter into a written lease with the equipment
owner providing that the carrier-lessee shall have exclusive
possession, control, and use of the equipment, and shall
assume complete responsibility for the operation of the
equipment for the duration of the lease. See 49 C.F.R. §§
376.11-12 (2005). These regulations are known as the
Federal Motor Carrier Safety Regulations.”
***
“One of the purposes of amending the Interstate Common
Carrier Act to include specific lease requirements was to
prevent the type of confusion we have here as to financial
responsibility. Simply because Higgins and MTR failed to
enter into a lease agreement, thereby creating this
confusion, Higgins should not be allowed to hide behind the
protection of the federal regulations and insulate
themselves from liability if they had practical control over
Jackson at the time of the collision.”
Hogan v. J. Higgins Trucking, Inc., 197 S.W.3d 879, 884-5 (Tex. App. –
Dallas 2006, no pet.).
Finding a trucking company “was in violation of both the letter and the
spirit” of the written lease requirements with respect to policy limits, the
deductible, and insurance disclosure, one court concluded the trucking
5
company “is estopped from enforcing the Lease indemnification provision...”
Jones Express, Inc. v. Watson, 871 F. Supp. 719, 728-734 (quotes at
734)(M.D. Tenn. 2012). The court reversed its first holding in favor of the
violative trucking company, fixing their error by concluding the unlawful and
hidden insurance obligation violated the letter and the spirit of the Truth-in-
Leasing regulations (49 CFR § 376) and “to allow Jones Express to pass
liability for this loss on to Watson defeats the very purpose of the federal
regulations.” Jones Express, 734. The same analysis applies in our case.
To allow Brewer Leasing to pass liability for this loss off to Texas Stretch
through the even more violative act of an oral lease defeats every purpose of
the federal and Texas laws and regulations.
The laws and regulations do several things to eliminate the 1935-1956
shenanigans.
1. Any lease must be written.
2. Any lease must contain about a dozen things.
3. The lessee must be adequately insured.
4. The vehicle must be properly marked.
5. The lease must be terminated in writing.
6. Possession must be terminated with a written receipt.
7. Possession must be terminated with removal of the
markings.
Not a single one of these seven was done under the phantom oral lease from
Brewer Leasing to Texas Stretch. Instead the mythological oral lease
6
contradicts the written lease, Texas Stretch had no insurance for either
vehicle, the oral lease contradicts the tractor markings in all four places, and
there is no written termination of the lease or receipt for surrendering
possession. Others have tried similar tricks, but because the policy and
purpose of the 1956 Act was to stop all the oral foolishness after the collision
the tricks don’t work. Paul v. Bogle, 484 N.W.2d 728, 731, 735 (Mich. Ct.
App. 1992)(finding written lease never terminated as a matter of law due to
lack of receipt for termination and lack of removal of placards, disregarding
contradictory oral claims).
By giving effect to a claimed oral lease and using that oral lease to
eviscerate Brewer Leasing’s statutory liability this Court’s opinion defeats
every purpose of the law from 1956 to today. The effect of this Court’s opinion
is a judicial repeal of the entire purpose and policy of the 1956 Act, parallel
Texas legislation, and the federal and state regulations.
This Court’s opinion also judicially repeals 49 USC § 31135. Congress
provided that:
“Two or more motor carriers, employers, or persons shall
not use common ownership, common management,
common control, or common familial relationship to enable
any or all such motor carriers, employers, or persons to
avoid compliance, or mask or otherwise conceal non-
compliance, or a history of non-compliance, with regulations
7
prescribed under this subchapter or an order of the
Secretary issued under this subchapter.” 49 USC § 31135.
Brewer Leasing and Texas Stretch shared the same President and
General Manager. Both companies operated out of the same location. Texas
Stretch owned 100% of the stock in Brewer Leasing (a fact perjuriously
concealed for eight years). This is a classic example of two carriers with
common ownership, management, and control. This Court’s decision to allow
an oral lease between them to avoid liability to the Patterson family
eviscerates any effect of 49 USC § 31135.
What Brewer Leasing is trying to do, and this Court’s opinion
erroneously allows, is to be the only company with legal authority to operate
the Peterbilt tractor on June 15, 2006, then improperly orally delegate those
rights to uninsured parent company Texas Stretch and thereby dodge liability.
The law precludes operation in this fashion. In addition to 49 USC § 31135,
“It further seems well settled that one holding a certificate
or permit authorizing him to operate a motor carrier over the
highways of the State may not delegate to another the
rights conferred by such certificate or permit and then
release himself from liability to those injured by the
negligence of the wrongfully delegated party.”
Berry v. Golden Light Coffee Company, 327 S.W.2d 436, 439 (Tex. 1959).
8
B. This Court’s opinion incorrectly construes cited case authority.
Trucking laws are designed to protect the public from accidents, prevent
public confusion, set responsibility when accidents occur, and provide for
financially responsible defendants. This Court’s erroneous analysis of cited
case authorities subverts all four goals and lets Brewer Leasing benefit from
violations. This Court leaves the Patterson family as unprotected as possible,
confuses everyone, evades responsibility, and eliminates financial
responsibility for the only insured company. None of the cases cited at pages
27-28 of the opinion allowed a trucking company to evade liability through an
oral lease. This Court confused the ability of a plaintiff to use an oral lease
to create liability versus the statutory and regulatory inability of a defendant
to use an oral lease to evade liability. In chronological order:
Wilson v. Riley Whittle, 701 P.2d 575 (Ariz. Ct. App. 1984) is a collision
death case with the reverse of our facts. The trucking company, Riley Whittle,
owned its own vehicles and employed its own drivers. A cranberry juice load
needed to be moved. An independent trucker, Meyer, called Riley Whittle
looking to see if he could haul a load for them. Riley Whittle agreed and
instructed Meyer “to have a trip lease signed for the load.” Meyer never
obtained a trip lease but he obtained the cranberry juice. When Meyer’s
9
tractor broke down Riley Whittle sent $600 for repairs. Meyer drove on, made
some stops, ate, drank some beer, and within spitting distance of the Riley
Whittle facility had a fatal collision with Wilson. (All facts from Wilson, 576-7).
The court realized that a trucking company cannot benefit from
violations of the law. Riley Whittle tried to claim a written lease was an
essential requirement for their liability, but the court correctly declined to allow
the purpose of the law to be flipped. Wilson, 578. After citing the policy
reasons for the law the court refused to allow Riley Whittle to immunize itself
from liability based on an oral lease that violated the law. “The cases are
uniform in holding that absence of a written trip lease is legally irrelevant.”
Wilson, 578-9. Thus the plaintiff could use an oral lease to create additional
liability. The court correctly reflected:
“The public policy expressed by 49 U.S.C. § 11107and 49
C.F.R. § 1057 would be wrongfully frustrated if we were to
allow Riley Whittle to evade the liability imposed upon it by
the federal statute and regulations by asserting that a
written trip lease was a condition precedent to any contract
between the parties and to responsibility on its part.
Instead, that policy demands a holding that Riley Whittle is
liable as a matter of law.” Wilson, 579.
The case holds an oral lease can create liability, but this Court’s opinion uses
an alleged oral lease to evade liability. Saying “I orally leased the truck” to
evade liability is exactly what the 1956 Act ended.
10
Luizzi v. Pro Transport, 2013 WL 3968736 (E.D. NY, 2013) is an
insurance coverage case. There was no oral lease, there was a written lease.
Luizzi sued Sanchez over a collision, Sanchez sued State National, and then
State National sued Green Mountain who placed the coverage. The court
held the vehicle involved was a covered auto. Luizzi settled for $1,100,000
and State National tried to force Green Mountain to reimburse due to
negligently failing to properly terminate the policy.
“The question currently before the Court is whether the
Policy, which was in effect on the day of the Luizzi-Sanchez
accident, provided coverage to Pro Transport and/or
Sanchez for the Luizzi-Sanchez accident . . . the Court finds
that State National has proven by a preponderance of the
evidence that the Sanchez vehicle was a “covered auto”
and that the Policy provided coverage to both Pro Transport
and Sanchez for the underlying accident.”
In analyzing the facts and legal issues the trial court reviewed a one-
year written lease, exhibit 44. The parties debated whether the written lease
fully complied with all legal requirements. The court found it “was a valid
contract under New Jersey law,” but was missing many provisions required
by 49 CFR § 376.12.
The case contains an excellent summary of the principles of federal
trucking policies and then applies them. “Given that the public policies
governing motor carriers are a driving force behind the analysis in the instant
11
case . . .” The opinion contains a discussion of courts’ unwillingness to allow
carriers to hide behind defective or ineffective leases to deny compensation
to innocent members of the public injured in collisions. Policy considerations
caution against a carrier benefitting from its own failure to comply with the
regulatory scheme. A motor carrier that fails to enter into a proper written
lease cannot hide from liability for that reason. Oral leases, or defective
written leases, can’t be used to evade responsibility to injured members of the
public. Concluding that any contrary rule would create perverse incentives to
create defective leases, the court held the lease “valid and enforceable in this
case.”
This Court’s opinion flips the reasoning and result of Luizzi. This Court’s
opinion creates the perverse incentive to claim to create an oral lease in an
effort to shift liability off to an uninsured carrier so that an injured citizen is
denied a recovery. Contrary to Luizzi, this Court’s opinion uses a defective
oral lease to deny compensation.
Luizzi held that noncompliance with 49 FCR § 376.12 did not render the
lease unenforceable, but did so for the express purpose of applying public
policy and the goals of the regulatory scheme to create liability and deprive
a company of the ability to evade liability by noncompliance. This Court’s
12
opinion does the reverse: uses an alleged oral lease to defeat the statutory
goals and policies by evading liability through noncompliance.
Hunt v. Drielick, 852 N.W.2d 562 (Mich. 2014) is an irrelevant wrongful
death collision case involving “the interpretation and application of an
insurance policy.” Hunt, 565. Procedurally, the case involved writs of
garnishment. Hunt, 564. Several leases and events are involved. Empire
Fire and Marine Insurance Co. only insured Drielick Trucking for bobtail use
(a tractor with no trailer). Corey Drielick was driving a tractor without a trailer,
but Empire denied coverage and refused to defend.
The plaintiffs settled with Sargent Trucking and GLC, then entered into
consent judgments with Corey Drielick and Drielick Trucking. All the court did
was hold the bobtail portion of the policy was fulfilled and remand for
evaluation of the existence of a leasing agreement between Drielick Trucking
and GLC “as contemplated by the business-use exclusion’s leasing clause.”
Hunt, 569.
Nothing in Hunt directly applies to our case. This Court’s opinion quotes
footnote 9 (which provided guidance to the trial court on remand), but footnote
9 is just a reference to the Wilson case. Our facts are very different. No
policy exclusion or policy lease language is in issue. The quote from Wilson
13
is erroneously applied to our case. “The absence of a written trip lease is
legally irrelevant” is true when applied to eliminate the ability of a trucker to
distort public policy and evade liability, but it is not true when an oral lease is
used to try to evade liability and defeat the purpose of the legislation and
regulatory scheme.
The cited case this Court relied on most heavily is Shimko v. Jeff
Wagner Trucking, 2014 WL 7366190 (W.D. Wisc. 2014), but the case does
not involve any collision (and several cases cited by this Court in the key
erroneous paragraph emphasize the importance of that distinction). The pro
se litigants lost a motion for summary judgment in a dispute between a trucker
and a trucking company. The trial court found fact questions on dual
ownership and the existence of an oral lease.
Although this Court’s opinion quotes extensively from Shimko, nothing
in Shimko supports the conclusion that an oral lease can be used to shift
liability under 49 USC § 30106, thereby allowing Brewer Leasing to benefit
from violating federal and Texas laws and regulations.
There is a huge difference between creating liability and evading
liability. The purpose of the 1956 law was to eliminate post-collision evasion
techniques. While it is true that the absence of a written lease is legally
14
irrelevant in extending liability because an oral lease can create liability, it is
also true that one of the key pillars of the 1956 Act was the elimination of oral
leases to evade liability.
C. There was no lease from Brewer Leasing to Texas Stretch.
1. There was no consideration.
49 USC § 30106 uses the defined term “leases.” 49 CFR §
376.2(e) defines a lease to include the requirement of consideration. It is over
nine years since Diane Patterson died and no one has ever testified in answer
to interrogatories, deposition, or two jury trials to any consideration for a lease
from Brewer Leasing to Texas Stretch. No document has ever been marked
as an exhibit in either jury trial reflecting any consideration. The lack of
consideration defeats the existence of a lease by definition.
2. We looked for consideration.
In 2007 the Patterson family requested the relevant banking
records of Brewer Leasing and Texas Stretch. Brewer Leasing objected to
the discovery. The trial court ordered production, denied a Motion for
Rehearing, this Court denied a mandamus effort to conceal the bank records,
and the Supreme Court also denied the mandamus effort. In re Brewer
Leasing, 255 S.W.3d 708 (Tex. App. – Hou 1st 2008, mandamus den’d).
15
There is no proof of payment from Texas Stretch to Brewer Leasing for an
oral lease of the Peterbilt tractor on June 15, 2006.
3. The reason for no consideration.
There is no consideration because there is no oral lease from
Brewer Leasing to Texas Stretch. That’s why Texas Stretch never insured the
tractor. Mr. A. B. Brewer, the President of Brewer Leasing and Texas Stretch,
is an elderly gentleman with a lifetime of trucking experience. (6 RR, 79-80).
Mr. Lonnie Box, the General Manager of Brewer Leasing and Texas Stretch
with 25 years of experience, had a side company that did trucking company
compliance. (4RR, 138-140). They knew all the legal requirements, and they
met all the legal requirements by virtue of a written lease from Texas Stretch
to Brewer Leasing. (4RR, 148-151; 6RR, 80-91; Appendix 9).
To conclude there was an oral lease from Brewer Leasing to
Texas Stretch this Court has to do all of the following:
1. Find consideration,
2. Decide when Brewer Leasing did not own the tractor it was
the lessor,
3. Decide when Texas Stretch owned the tractor it was the
lessee,
4. Decide both companies can violate 49 USC §§ 11107,
13906, 14102; 49 CFR § 376; and 37 Tx Admin Code 4.11,
5. Ignore four signs painted on the tractor contradicting the
oral lease, and
16
6. Find termination of the written lease from Texas Stretch to
Brewer Leasing.
4. This Court also errs on the burden of proof and jury questions.
To evade liability Brewer Leasing must prove the unplead
affirmative defense of shifting liability by virtue of a lease, thus they must
obtain a jury finding in their favor. This Court’s opinion incorrectly moves that
burden to the Patterson family. As the court correctly notes, “It was
incumbent upon the party with the burden on the issue to request a correct
issue which was raised by the evidence and obtain a favorable answer in
order to prevail upon that part of the case...” Hooper v. Torres, 790 S.W.2d
757, 759 (Tex. App. – El Paso 1990, writ den’d).
Brewer Leasing was the party with the burden on this issue. “We
are not liable because we just owned the tractor” was Brewer Leasing’s
argument. As the owner Brewer Leasing was liable unless they proved
compliance with 49 USC § 30106. Compliance was not conclusively
established so it was waived by Brewer Leasing’s failure to request and obtain
a jury finding of a lease to Texas Stretch.
As the party arguing (1) ownership of (2) a leased tractor with (3)
no criminal wrongdoing, Brewer Leasing had the burden to obtain those jury
findings. With no jury finding on any element, Brewer Leasing’s independent
17
ground of defense is waived pursuant to Texas Rule of Civil Procedure 279.
Brewer Leasing never even argued this defense or cited the relevant statute.
The Patterson family briefed it out of completeness, and at pages 29-30 this
Court confuses our briefing with Brewer Leasing’s burden of proof and burden
of jury submission and findings.
Brewer Leasing never argued they complied with 49 USC §
30106, probably because they knew they did not. Brewer Leasing also never
requested or obtained any jury finding pursuant to 49 USC § 30106.
5. The criminal wrongdoing clause in 49 USC § 30106(a)2 precludes
any liability shifting away from Brewer Leasing.
Any analysis of obstruction of justice compared to Brewer
Leasing’s concealment of the reports of 43,444 nanograms of cocaine
metabolite they received but hid from the police, assistant district attorney,
lawyers and litigants, and trial judge compels the conclusion there was
criminal wrongdoing on the part of Brewer Leasing. Texas Penal Code §§
37.09(a)1, 37.09(d)1, 37.08; Appendix 3, 4, 5, 6, 13; 11 RR, PX 503, 517,
520, 521, 522.
6. The big picture.
Texas Stretch and Brewer Leasing lied for 1,000 days about who
employed Charles Hitchens. (Appendix 8, 12, 20). We pierced that lie.
18
They simultaneously concealed and lied about Charles Hitchens’
cocaine level. We pierced that lie and fraud. (Appendix 3, 4, 5, 6, 13).
They lied about who owned Brewer Leasing: “Mr. Brewer owns
100% of Brewer Leasing” turned into Texas Stretch owned 100% of Brewer
Leasing. (4 RR, 141; 6 RR, 69-70; Appellee’s Brief). That successful lie
precluded us from proving Brewer Leasing’s liability as a single business
enterprise with Texas Stretch.
The fourth big lie is the classic after the wreck fabrication of an
oral lease. In this case, an oral lease that would:
• be impossible, as Texas Stretch owned the tractor on the
date of the alleged lease to Texas Stretch
• be impossible, as Brewer Leasing did not own the tractor on
the date of the alleged lease by Brewer Leasing
• be violative of federal statutes
• be violative of federal regulations
• be violative of Texas statutes
• be violative of Texas regulations
• create a lessee with no liability insurance
• contradict and reverse a written lease
• contradict and reverse four painted placards on the tractor
19
• contradict the entire theory and purpose of the 1956 Act
and companion Texas law.
Brewer Leasing testimonially admitted liability for a reason. (4 RR
138-40, 151; 6 RR 70). No lawyer for Brewer Leasing ever filed any
document with any court claiming an oral lease evades statutory liability for
a reason. But this Court’s opinion revives the legal theory that an oral lease
can be used to shift liability, driving a stake through the 1956 federal law’s
heart and the parallel Texas legislation.
III.
A factual error.
The opinion contains one factual error. It is minor, but if it created an
unfavorable impression it needs to be corrected. At page four the Court
writes “the jury was then dismissed,” but that is erroneous.
On Monday, April 6, the April 4 settlement with Texas Stretch was
implemented. The venire panel then answered the jury questionnaire, oral
voir dire was conducted, the jury was seated, and a jury trial progressed for
more than a week. During the second week, shortly before the Patterson
family called their last damage witnesses, Ray Bellew & Sons settled.
Charles Hitchens had already stipulated to 100% fault and invoked his
privilege against self-incrimination. At that point Charles Hitchens waived the
20
jury with the Patterson family’s agreement. Evidence was concluded and
closing arguments were then given to the court without a jury.
CONCLUSION
This Court should withdraw its opinion of June 30, 2015, delete the
erroneous paragraph at pages 27-28, and reverse and render judgment
against Brewer Leasing for the negligent driving of Charles Hitchens while
operating a Heil trailer owned by Brewer Leasing with no lease, or while
operating a Peterbilt tractor that Brewer Leasing is estopped to deny owning
with no written lease to any other company combined with Brewer Leasing’s
criminal wrongdoing.
Respectfully Submitted,
HERZOG & CARP, P.C.
By: /S/Harry Herzog
Harry Herzog
State Bar No. 09548200
P.O. Box 218845
Houston, Texas 77218-8845
(713) 781-7500 Telephone
(713) 781-4797 Facsimile
HHerzog@hcmlegal.com
COUNSEL FOR APPELLANTS
21
By: /S/Dorothea Vidal
Dorothea “Dotty” L. Vidal
State Bar No. 20578100
dvidal@gpd.com
Geary, Porter & Donovan, P.C.
One Bent Tree Tower
16475 Dallas Parkway, Suite 400
Addison, Texas 75001-6837
P.O. Box 700248
Dallas, Texas 75370-0248
972-349-2211 Telephone
972-931-9901 Facsimile
CO-COUNSEL FOR APPELLANTS
CERTIFICATE OF SERVICE
This is to certify that in accordance with the Texas Rules of Appellate
Procedure a true and correct copy of the above and foregoing Brief of
Appellants has been sent to all parties and/or counsel of record listed below
via electronic filing and email on July 15, 2015.
George W. Long
Attorney at Law
2000 East42nd Street, Suite G110
Odessa, Texas 79762
george.long.mexico@gmail.com
/S/ Harry Herzog
Harry Herzog
22
CERTIFICATE OF COMPLIANCE
This brief complies with the typeface and length requirements of Texas
Rule of Appellate Procedure 9.4 because:
(1) This brief complies with typeface and the type style requirements
of Rule 9.4(e) because the brief has been prepared in a
conventional typeface using WordPerfect with Arial 14-point font.
(2) This brief complies with the length requirements of Rule
9.4(i)(2)(D) because it contains 4,445, excluding the parts of the
brief exempted by Rule 9.4(i)(1).
/S/Harry Herzog
Harry Herzog
Attorney for Appellants
23
APPENDIX
Appendices 3-6, 8, 9, 12 and 13 were in the original Appellants’ Brief.
Appendix 20 contains PX 335, referred to in Appendix 8.
3 Brewer Leasing test results to HPD (PX 263)
4 DA report declining prosecution (CR 75)
5 Mr. Patterson’s affidavit on fraud (Supp CR 82)
6 Mr. Herzog’s affidavit on fraud (Supp CR 75)
8 W ho employed Charles Hitchens (Summary of exhibits)
9 Brewer Leasing lease to Texas Stretch (PX 302)
12 Mr. Herzog’s two affidavits on pleadings
13 Plaintiffs’ Fourth Amended Petition (CR 29)
20 Supplemental Response of Texas Stretch to
Plaintiffs’ Motion for Partial Summary Judgment (PX 335)
24
Appendix
3
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21 03 SkJnner IQad
Houston, T`` 77093
713-691-2779
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Attention: Date:
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Fax Number· Phone Number.
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Fl•etSc:reen. Ltd.
15000 Westem Place
Sul!e 480
For1 Worth. Texaa 76107
ATTENTION:
Bulch Brewer
Te>ras Stretch. Inc. Participant: Charles A Hitchens
2103 Skinner Road
Houston. TX 7709J
--166!:1
PartJc:rpant 10: 337
Results of DOT Controlled Subs.unce Test
Record Starvs: Neg alive Let>oralory LebOne. Inc.
Te>st T1-pe Pr~·Emproyment 10101 Renner Boul..-:~111
Colleetion DateTTim(Ji§¥20.le~ Leneu, KS 66219-9752
BolCh 10: 20060502 CollectJon Sile Tnaa StreiCh, me.
Soeclmen 10: 45213879 2103 Skinner Road
Dare COC RecelveG: 05102/2006 Hou&ton. TX 77003
Sample Type: Urrne Specimen Collector. Douglns A Schopp~
Submns;e Testl!d Result Sub~nceJ~ ~
Amphflamin~s Negat``~e Cocaine Negalive
1\Aariju:ma Negative 0Ptales Nogarive
Pheneyt;lidine Negative
----------``--~-----~------------------------------------------------~
In aceordonc;e wilh epplrcable I=P.det:~l requirement&. my determrnationr'vllrrlic:~llon is as Gbave
5/212006
Garrett R Tucker Ill. MO. MPH Venfic;ation Date
Results ror Cherie!$ A 1-lorchens. l'el'tielpent 10: 337 • • • • • -'865) Primed an 51212006 ar 4·42:36PM
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~.;n ~.enl by :.``ng OP ln:o=e~ vi 0 06/21~006 10 J6 1A AM 9 2 or 2
Fl~tScreen, Ud.
6000 Western Place
Su•te 480
Fort Worth. Texas 76107
ATTENTION:
3uteh 8ro:wer
P;~rti,ipant: Charle$ Hitcl'lem
Texas Sir~. '"'·
2103 Sklnl'er Road PartrcipaniiO. 337
HouliiDn, l'X n093 SSN:-888S
Results of OOT Contr~lled Substance Test
RKord S:"all.ls. Posltwe Laboratory: LabOnc!,lnc.
Test Type Post-3cc:rfent T~>St 10101 Renner Boul~ard
Colleet1on OaleiTrm```` Lenexa. KS 66219-9752
Batch 10. 20060621 Collection Srte. Teqs Slrutch. Inc.
Specimen 10· 36839345 2 I 03 SIU,.er Road
Oate COC Received: 001201'20C6 ~u~f!Oft. TX 77093
S•tnple Type· U11ne SPecimen Collector DOUGLAS 4 SCHOPPE
Sub5Qnct T~stv ~ Date of Reject: 611:1/'ZJXJT
Offllnsa: Intoxication Manslaughles:
Officer First: DL Officer Last: Harwell
Agency: HOUSTON POUCE DEPARTMENT
Witness Rrst: Diane Witness Last: Patterson
ADA First: Warren ADA Last: Dlepraam
OR#: 92975406
Reason:
VATS REVIEWED CASE
The defendant was driving a tractor trailer eastboUnd in the 148:10 block of the Katy Freeway
just west of HigtMray 6. Sever.ll Precinct Feu de~ies had stopped freeway traffiC because
they were escorting an Clllef$ize load. The defendant was not able to see the stq:Jped traffic
ahead of him foe some unknown reason. He drove into sever.~l cars that had stopped. The
complainant's vehicle caught fire and she was kiHed.
The sole act of negligence so far in the case is failing to maintain a proper lookout.
HONeYer, the defendant has not given a complete statement abaJt why he was looking
doNn. hoN long he was looking doW'n, etc.
In a case d this nature, speed is aitical. The HPD has been unable to determine as~ of
the defendanrs tractoc trailer prior to impact. 1tis l.l'lki"'INTT if this vehicle had satellite -
trackill;J capablity that wuold be r:1 assistance. Of the fifteen witnesses that HPD spoke to
(II'ICI!dng the C4 deputies), only a couple cJ them mention speed. Their opinions on speed
should be more extensively investigated.
The defent:IMt, due to federal ~tory reqlirements, sltmitted to a uir&ysis -wnich
tested positive fer cocaine. It Is a.r«nown whether or not the private lab tested for actual
cocaine, cocaine metabolites, cr quantifted the amourt. Asrl today, tlis lnfamation has not
been obtaned. Therafore, it is UOOlc:w1 whether the ill'l'lOI.ri rl cocaine is a large dose
three days ago. s small dose two days cg:~, etc. Additionally, officers at the scene ncted no
sigr6 rl impairment on the defendant. This means that either they missed the signs d
cocaine use or that the cocaine CJJ31'1Uty was insufficient to cause impairment. That
Questioo, hoNever, can't be answered until the adual amounts are obtained by HPD.
lastly, altho.Jgh this office is a pmsecutorial- off.ce a'ld not an investigatiVe office, the report
and photos were submitted to a ~vale reconstructionis t for review. Fran the information
provided to him, he was unable to answel' the above questions.
I
EXHIBIT
E.
75
Appendix
5
02/28/2012 04:32:32 PM 713-755-1451 Page 71 /75
CAUSE NO. 2011-64488
MARCUS BRENT PATTERSON, § IN THE DISTRICT COURT
INDIVIDUALLY, AS INDEPENDENT §
ADMINISTRATOR OF THE ESTATE OF §
DIANE PATTERSON, AS NEXT §
FRIEND OF DANIEL PATTERSON, §
DANAEPATTERSON,oodDANffiL §
PATTERSON (now 18 years of age), §
§
Plaintiffs, §
§
v. § 3341h JUDICIAL DISTRICT
§
BREWER LEASING, INC. §
§
Defendant. § HARRIS COUNTY, TEXAS
AFFIDAVIT
STATE OF TEXAS §
§
COUNTY OF HARRIS §
BEFORE ME, the undersigned authority, on this day personally appeared Marcus Brent
Patterson. After being duly sworn Mr. Patterson stated under oath as follows:
1. Backa:round.
"My name is Marcus Patterson. I am over the age of 18 and have never been
convicted of a crime. Every statement contained in this affidavit is true ood correct.
I was married to Diane Patterson for 21 years before her death. We adopted two
children at birth, Daniel Patterson and Danae Patterson.
On June 15, 2006 my wife was killed in a multi-vehicle collision on Interstate I 0,
just west of Highway 6. I first learned of the collision when I was called by the
medical examiner to assist them in gaining dental records to verify the identity of my
wife.
After the wreck I heard a rumor, not verified at the time, that the driver of one of the
vehicles involved in the collision was using cocaine or tested positive for cocaine.
Page 1 of 4
EXHIBIT 10
82
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In January or February of2007 the Houston Police Department finally released their
report with regard to the collision. The Houston Police Department report reflects
that Mr. Charles Hitchens, driving a Brewer Leasing vehicle, used an illegal
substance, and the use of that illegal substance was a factor in the collision. Before
I received the Houston Police Department report of the collision I had no other
written documentation with regard to who had used an illegal substance in the
collision.
2. My personal knowlede-e.
I have personal knowledge of the following:
From the time I first read the Houston Police Department report through the time of
trial, which began April6, 2009 and ended the following week, I never learned the
quantity or amount of cocaine that was used, and I never learned of any scientific
evidence in respect to the cocaine level in Mr. Hitchens at the time of the collision.
We attempted to ascertain this information, and we discussed this in one or more
phone calls with law enforcement personnel, but we were never able to learn the
amount of cocaine that was in Mr. Hitchens' system at the time of the collision. In
discussions that Mr. Herzog and I had with law enforcement personnel Mr. Herzog
told the law enforcement personnel that he also still did not know the amount of
cocaine in Mr. Hitchens' system at the time ofthe collision.
At some point in 2008 (I do not recall the date) we finally got the sworn testimony
of Mr. Hitchens, but Mr. Hitchens decided to decline to answer questions and
invoked his right against self-incrimination. Therefore, we were unable to learn from
Mr. Hitchens when he had ingested cocaine, how much he ingested, and what his
level of cocaine was at the time of the collision.
At some point before the trial Mr. Herzog showed me a Motion that Brewer Leasing
had filed with the Court (I believe in conjunction with other defendants, including
Mr. Hitchens) to exclude the evidence from the Houston Police Department
investigation that Mr. Hitchens had cocaine in his system at the time of the collision.
We had no evidence that indicated the amount of cocaine in Mr. Hitchens' system.
Brewer Leasing was contending in writing in the document filed with the Court that
there was no evidence or quantification as to how much cocaine was in his system,
and that without that evidence we could not show that the cocaine had any relevance
to his driving behavior. We were unable to dispute the Motion.
Starting Friday afternoon April3 and continuing most ofthe day Saturday, April4,
2009, a variety of settlement discussions were initiated by individuals other than me.
During this time I had no information that indicated the quantity or specific level of
cocaine in Mr. Hitchens' system at the time of the collision.
Page 2 of 4
83
02/28/2012 04:32:32 PM 713-755-1451 Page 73/75
In April2009, before trial, during settlement discussions, and during the trial I never
knew when Mr. Hichens ingested cocaine, how much cocaine he ingested, or what
the level of cocaine was in his system at the time of the collision.
In privileged discussions relating to filing this suit I learned for the first time that Mr.
Hitchens had a level of 43,444 nanograms. I also learned for the first time that
Brewer Leasing and its lawyers knew this information as early as February of2007,
discussed the information between themselves and the insurance carrier in February
and March of2007, concealed it for two years, and lied to the Court in writing when
they filed the Motion just before trial to exclude the evidence of cocaine. I was
furious at the abuse of the judicial system. I still am shocked and angry at their
conduct.
If I had known that Brewer Leasing was concealing the truth for two years and had
lied to the judge, to me, my children, my lawyer, and other parties and lawyers in the
written document that they filed with the Court, I would not have entered into an
agreement with them to not execute on their assets or take an assignment in the future
of their rights.
Brewer Leasing's failure to tell me the truth, and their specific false written
statements with regard to Mr. Hitchens cocaine level, were essential ingredients in
obtaining my consent to not execute against the assets of Brewer Leasing and were
essential ingredients to my agreement to later step into the shoes of Brewer Leasing
in its dispute with its insurance carrier, Home State County Mutual Insurance
Company. I would never have agreed, signed, or allowed my lawyer to negotiate the
Covenant to Not Execute and Agreement to Assign Claims in the future that were
negotiated and agreed to that weekend if I had known then what I know now with
respect to the truth concerning Mr. Hitchens' cocaine level and the truth with respect
to Brewer Leasing's concealment of that cocaine level for over two years.
Now I am in a position of having to continue the lawsuit process, regardless of its
turmoil and cost, to get at the truth of what happened. Brewer Leasing cheated me,
my children, our lawyer, the other injured people, their lawyers, Williams Brothers
and Bellew & Sons, and their lawyers."
Further Affiant sayeth not.
Page 3 of 4
84
02/28/2012 04:32:32 PM 713-755-1451 Page 74/75
SUBSCRIBED AND SWORN TO BEFORE ME to which witness my official hand and seal
of office on the a1tf.-day of r~ f u({
Page 4 of 4
85
Appendix
6
02/28/2012 04:32:32 PM 713-755-1451 Page 64/75
CAUSE NO. 2011-64488
MARCUS BRENT PATTERSON, § IN THE DISTRICT COURT
INDIVIDUALLY, AS INDEPENDENT §
ADMINISTRATOR OF THE ESTATE OF §
DIANE PATTERSON, AS NEXT §
FRIEND OF DANIEL PATTERSON, §
DANAE PATTERSON, and DANIEL §
PATTERSON (now 18 years of age), §
§
Plaintiffs, §
§
v. § 334th JUDICIAL DISTRICT
§
BREWER LEASING, INC. §
§
Defendant. § HARRIS COUNTY, TEXAS
AFFIDAVIT
STATE OF TEXAS §
§
COUNTY OF HARRIS §
BEFORE ME, the undersigned authority, on this day personally appeared Harry Herzog.
After being duly sworn Mr. Herzog stated under oath as follows:
"My name is Harry Herzog. I am over the age of 18, of sound mind, and have never
been arrested, charged, or convicted of any crime. I have personal knowledge of
every statement contained in this affidavit. Every statement in this affidavit is true
and correct.
I. Backeround.
I was hired by Marcus Patterson to represent his family with regard to the death of
his wife, Diane Patterson. Despite many efforts on our part we were unable to
ascertain precisely who was responsible for the collision, or begin a comprehensive
and detailed investigation of who was responsible for the collision, until the Houston
Police Department accident report was released. In January or February of 2007 the
police report was finally released relating to the collision that killed Diane six or
seven months earlier.
Page 1 of 7
EXHIBIT Cj
75
02/28/2012 04:32:32 PM 713-755-1451 Page 65/75
The HPD accident report indicates Mr. Hitchens was responsible for the collision and
an illegal substance contributed to the collision. (See Exhibit 3, second page, factors
22 and 68). In the course of the next two years I engaged in a variety of conduct in
an effort to ascertain exactly what illegal substance Mr. Hitchens consumed, what the
level of the substance was, and to obtain proof that the substance impaired his driving
behavior.
I was able to learn that Mr. Hitchens tested positive for cocaine. (Exhibit 4).
However, we were never able to learn before the April 6, 2009 trial what the level or
quantification of cocaine was. Mr. Elwood, a skillful and capable attorney working
with Mr. Ramey on behalf of defendant Ray Bellew & Sons, attempted to obtain lab
testing results by a Deposition on Written Questions. He failed. Since then I have
spoken with the responsible individual at the deposition company who advised me
that the lab refused to comply with the Deposition on Written Questions and refused
to provide any information. Mr. Elwood has confirmed for me on several occasions
that he was unable to obtain any satisfactory response to his Deposition on Written
Questions.
While I was working with Mr. Elwood in an attempt to ascertain the level of cocaine
I was also working with a variety of skillful and experienced plaintiffs counsel
representing various injured individuals. None of us were able to obtain the
infonnation that quantified the level of cocaine.
In addition to working with other plaintiffs counsel and with Mr. Elwood on behalf
of a defendant, I also attempted to ascertain the cocaine level by communicating with
the Harris County Assistant District Attorney, Warren Diepraam, who was the point
person with respect to the criminal investigation of Mr. Hitchens. Mr. Diepraam
assured me that he had been unable to ascertain the level or quantification of cocaine
in Mr. Hitchens' system, and without that infonnation he was unable to charge Mr.
Hitchens with homicide.
Brewer Leasing filed a document with the Court in which Brewer Leasing contended
that there was "no evidence that Mr. Hitchens was impaired," that there was "no
quantification as to the amount of cocaine" in Mr. Hitchens' system, that there was
"no information" as to whether the substance tested was cocaine or a cocaine
metabolite, and that since there was no quantification on the amount of cocaine, no
information as to whether it was cocaine or cocaine metabolite, and there was no
evidence that Mr. Hitchens was impaired, the positive drug test on Mr. Hitchens for
the presence of cocaine should not be admitted into evidence at the trial of the case.
With great reluctance Mr. Elwood and I agreed to the proposed Order since we had
no information that contradicted these claims by Brewer Leasing.
Page 2 of 7
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II. No neelieence.
The claims by Home State that I was negligent with regard to failing to discover the
cocaine level of Mr. Hitchens, and that I learned of the cocaine level of Mr. Hitchens
in August of2010, are completely false and unsupported by any facts.
I spent a significant amount oftime and a great deal of effort trying to investigate and
prove the cocaine level of Mr. Hitchens. My efforts, and the efforts of the other
lawyers, exceeded ordinary care. In light of the efforts by Brewer Leasing and its
counsel to conceal the truth I do not know how any lawyer representing any plaintiff
or any defendant could have obtained the truth. I am not an expert on criminal
procedure so I do not know what the limits are with regard to the subpoena power of
an Assistant District Attorney or a grand jury, but it appears that the only way anyone
could have overcome the efforts to conceal the cocaine level would have been for the
District Attorney's office or a grand jury to subpoena the records from the testing
service.
The claim that I first learned of the cocaine level in August 2010 is a false fantasy.
In August 201 0 for the first time Mike Hays and his finn made available to me "the
file" of George Jackson with regard to the underlying case. But the reality was that
the documents I was shown were limited. I did not see the February 2007letter from
Mr. Hays, the investigator's report, or the initial report of defense counsel. In
addition, numerous other boxes containing numerous other documents were not
revealed to me. None of Mr. Jackson's emails were provided (many are still not
produced), his letter to the mediator was not provided (and still has not been
provided), his notes from his first meeting with me were not provided (and still have
not been provided), and various other documents were not revealed to me.
I first saw Mike Hays'letter ofFebruary 2007 and George Jackson's initial defense
attorney status report either the last week of October or the first week of November
2010. I saw them from one of two sources. First, Home State finally produced
documents responsive to a Request for Production many, many weeks after the
responses were due. Their lawyer gave me a disc with thousands of pages of
documents on it at the conclusion of a court hearing that took place on Friday,
October 22, 2010. In addition, Home State sent Requests for Production which
compelled the production of various documents from Mr. Hays' firm, including Mr.
Jackson's file. I immediately complied with the Request for Production and tried to
produce documents within a week, rather than waiting thirty days. When I went to
Mr. Hays' office to coordinate the production and to meet with Mr. Nick Morrow (an
attorney for Home State who decided not to attend), I learned for the first time that
Mr. Hays had additional boxes of documents that he was "now producing." I
watched in amazement as box after box were gradually brought to me, all of which
had been concealed from me in August. I, of course, rapidly scanned through the
Page 3 of 7
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boxes and had the material in the boxes copied.
The materials that revealed the cocaine level were produced in late October 2010
from Home State and from Mr. Hays. I have vivid memories of my shock, anger, and
disgust when I first saw the information.
Another false claim (made with no evidentiary support) was that I designated Mr.
Garrett Tucker as an expert because I knew the results of Mr. Hitchens' cocaine test.
The reality is Mr. Tucker never spoke with me. He refused to speak with me or
anyone in my office (other than to say he would not speak with us). I designated Mr.
Tucker as an expert solely to open the possibility that if I learned what the cocaine
level in Mr. Hitchens system was I would have a witness who could testify to the jury
at the time of trial.
With regard to the filing of the Bill of Review, we tried to place the case in the 334' 11 •
We sent a cover sheet noting for the clerk that the case had to be in the 3341h due to
its nature as a Bill of Review, with the underlying judgment having been issued from
the 3341h. (See Exhibit 11).
Between early November 2010 and the filing of the Bill ofReview lawsuit in October
2011 a variety of activity occurred. It would be accurate to characterize the activity
as follows: first, shock, anger, and dismay at the concealment of the cocaine level
of Mr. Hitchens. Second, an investigation, as best as we could conduct, with regard
to how the matter was concealed and how the truth could be proven. This involved,
in part, the deposition of Mr. Jackson. The deposition of Mr. Jackson was delayed
and moved, at his request or at his counsel's request, to June of2011. Third~ without
waiving the attorney client privilege or the work product exemption, it is accurate to
say that after the investigation was completed the matter had to be discussed among
the various individuals involved on our team and with Mr. Patterson. The decision
had to be made whether to file the Bill of Review, and that decision was certainly not
made lightly.
III. Inducement.
In 1anuary 2009 this case seemed incapable of settlements.
On January 28, 2009 I was diagnosed with cancer. I delayed treatment to get the
Patterson case resolved. With the courteous assistance of opposing counsel and
Judge McCally, the trial setting was adjusted from a two week docket of March 30---
April 10 to a preferential setting to start April 6, 2009: this allowed me to schedule
surgery with a level of comfort that I would not be in trial after April 24.
On the afternoon of Friday, April 3, 2009, I received an unexpected call from
Page 4 of 7
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Amanda Hilty. She was lead counsel for Sagamore Insurance in their suit against
Texas Stretch (Hitchens' employer) seeking to deny any coverage or duty to defend.
For the first and only time Sagamore made a realistic, legitimate settlement offer.
Thus began 24 hours of unanticipated, complex, multi-party settlement discussions.
At no time during these discussions did I know that the Joint Motion to exclude Mr.
Hitchens' positive drug test result (Exhibit 8) was full of lies, false
misrepresentations, and concealment of the truth.
I, my wife, and my son had been friends with Marcus, Diane, Daniel, and Danae
Patterson for many years when Diane was killed. Marcus trusted me and relied on
my legal advice as we navigated the maze that became the legal landscape of the
dispute. The wreck generated three lawsuits involving the Patterson family, with over
a dozen parties and dozens of witnesses, at that time. I never would have advised
Marcus to accept an assignment of claims in the future or foreclose his ability to
recover uninsured punitive damages from the assets of Brewer Leasing if I had
known the truth about Mr. Hitchens' cocaine level. I was deceived by Brewer
Leasing in this regard.
IV. Gross neflliJ:ence.
Without proof of a cocaine level Icouldnotprove Mr. Hitchens operated the 79,940
pound vehicle while impaired by cocaine, and without proof of impairment I did not
think gross negligence could be proven by clear and convincing evidence to all
twelve jurors selected.
I had been a licensed attorney for over 26 years at the time of the trial. I had been
board certified in civil trial law for 20 years and civil appellate law for 16 years. I
had recovered punitive damage awards ten times for plaintiffs, and my clients had
been hit for punitive damages four times, so I had significant trial and appellate
experience on all sides of the punitive damages debate. One of the driving reasons
for accepting the two agreements with Brewer Leasing and then dropping the claim
for punitives (which was not part of any agreement) was the inability to prove
cocaine impairment.
While it is impossible to perfectly predict the behavior of an opposing lawyer or a
jury, I believe any human being with knowledge of the whole truth has to agree that
Mr. Hitchens' driving that almost killed Sheryl Skinner and then did kill Diane
Patterson was grossly negligent behavior. No one can seriously claim that driving
79,940 pounds at highway speed while impaired by 43, 444 nanograms of cocaine so
that on a flat highway for a mile, on a clear morning, they don't see eight stopped
vehicles blocking all lanes of traffic, one or two motorcycle escort vehicles with
emergency flashing lights in operation, and an 198,000 pound, 160 feet long, 50
wheeled vehicle approaching is not grossly negligent.
Page 5 of 7
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V. Exhibits.
Attached to the Motion for Partial Summary Judgment are true and correct copies of
the following documents:
1. LabOne form reflecting Charles Hitchens' specimen collected June 15, 2006
at 1:29pm (produced by defendants in collision case)~
2. Tx.DOT form reflecting Charles Hitchens' speimen collected June 15,2006
at 1:24pm (produced by defendants in collision case);
3. HPD collision report (verified by HPD in deposition of investigating officer
Dane Harwell);
4. FleeScreen results ofTxDOT test (produced by defendants in collision case);
5. Mike Hays' letter to Geroge Jackson dated February 12, 2007 (produced by
Mike Hays);
6. George Jackson's February 26, 2007 Initial Status Report to Home State
(produced by Home State);
7. Harris County Case Decline report (produced by Brewer Leasing);
8. Joint Motion to Exclude drug test (filed by Brewer Leasing);
9. This affidavit (the original);
10. The affidavit of Marcus Patterson (the original);
11. Civil Case Information Sheet which I signed;
12. Aerial photo of scene on June 15, 2006 (produced by HPD);
13. Photo of Brewer Leasing vehicle at scene (produced by Williams Brothers);
and
14. Photo of Diane Patterson's Ford Expedition at scene (produced byTxDOT)."
Further Affiant sayeth not.
Harry Herzog
Page 6 of 7
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DQtN. .ENI£ DIC1(SON
MY COMMISSION exPIRES
Qlillllel' 17, 2015
Page 7 of 7
81
Appendix
8
Who employed Charles Hitchens?
In the first case Texas Stretch spent 1,000 days denying employing
Charles Hitchens while Brewer Leasing implied they were the employer. The
documentary evidence conclusively proved the opposite. Charles Hitchens
applied for a job with Texas Stretch (PX 307), signed an employment
agreement with Texas Stretch (PX 308), received Texas Stretch trucker
policies (PX 309), gave his time to Texas Stretch (PX 310), was paid by
Texas Stretch (PX 311), and was dispatched on June 15, 2006 by Texas
Stretch (PX 324; AB p. 109) while hauling a load for Texas Stretch (PX 325).
After the General Manager of both companies testified that the lawyerly
position was ludicrous and that Texas Stretch employed Charles Hitchens,
then and only then – the week before the first trial – Texas Stretch finally
admitted it employed Charles Hitchens. (PX 335).
Appendix
9
LEASEAGR.EEHENT
TRACTOR OWNE:R.'-LT-ri"-::x_A_s_S_0_~_t_.:._j(_c....:_)l__..,:.~_n~_c_s. s. No._ _ _ _ _ __
_ _ _PHONE No. 713 6 11 J.. I '7 7
ADnREss_----'1-!)r-/...::::...o-=s--:..S-!-/c-=-J-=-N-!.../L~'c.::.:...:::f(_
f/aU.>/onJ 11~ 'l7o9J
::::~_S_NAH:E__====/:z:\-r1-z:~:z=:7=``::_-_-_-_-_-_-_-_-:__ :_ _;:~0~ ::~=================
. B IJ..£"wl;-12. LH-}S;..Jfr '£1VC • 1 ocated at: :J../ 0 J S /C:.J/V/VEIC J-ioo..('/0 IV ;I,X 7.7093
herein after referred to as lessee and TE){/)5 STR.ETCJ.i :f:/'!IC. •
~a~/70~3~5_/C_I_N``~E``~f{~a~U~-~CT!~O~A-/~J``/~/~Zud``9~3__-_ __________
. ______``--,
herein after-referred to as Lessor. do hereby enter into this agreement for the
1ease of the fo1lowing equipment under the e~ress terms and condit~ons set forth
be:lmt:
In ~onslderation of the provisions and covenants herein contained, it is mutually
agreed as foll~s:
1. The Lessor's rate of pay shall be 2Q_
percent: for power nnit and .36
percent for tractor trailer combinations of the Revenue on freigbt moved all Tar±ff.
2. Th.at Lessee t.rill place signs on said equiplllent shawing that: this equipment
is leased to and operated by lessee and that. upon termination of this contract by
either party such signs vil1 be removed by Lessor, And Lessor agrees the fai1ure to
remove such signs will result: in damages to Lessor.
3. 'That Lessor will equip said equipment vit:h lights and reflectors as re-
,quired by the Interstate Co~rce Commission and provide all accessorial equipment
as required by rules and regulations on said equipment at All t.ime.s when in use of
Lessee, and keep the equipment up to the ~nimum ~echanical requiremencs as se~ forth
~n the rules and regulations. lessee reserves the right to inspect said equipment at
any time or place while in its use to assure compliance with such pro~ions.
4. That tessoT will obtain and pay for all necessary state license tags and
registrations and affix same to said equipment and pay for and supply all gasoline.
oil, tires, repairs, and supplies necessary t.o JJaintain operating efficiency.
Further, Lessor shall p.ay all mileage, fuel, and hi.gbway taxes and post all bonds
necessary and required by various states.
5. 1bat ~t is exp~essly understood by the parties hereto tba~ all drivers.
helpers and/or agents of Lessor used to fulfill thi.s contract are employees of
Lessor and Lessor assumes responsibili f g ~bese dc!Qets, helpers.
• • . per a n n~ to hou-rs of
service -and ma~ntenance of e~u~p~nc and shall as~ure that all drivers maintain a
da~ly log as required aud forward to Lessee said log sheets daily .
.·
!. PLAINTIFF'S
§ EXHIBIT
w
\;( ~02...
~
6. Lessee does not agree to furnish physical damage insurance for Loss.
7. That Lessor will furnish Lessee with a doctor's physi~al examinat~on
certificate on any and all driveYs of said equipment in accordance vith the Rules
aud 'Regulations of I.C.C.
8. That Lessee assumes and will be responsible for and agrees to furnish
adequate protection to the public and the shipper.R for sutomobLle bodily injury,
praperty damage, and cargo liability.
9. That during the tenns of this agreement, Lessor will fun:dsn adequate
protection as to render L9ssee ha~less from claims arising from dama~e or injury
to any third party resulting from bobtailing of Lessor's equipment.
10. That during the terms of this agreement, said equipment will be made
available to and controlled by Lessee at all times. and all drivers and other
employees of Lessor used in connect~on witn this contract will also be under full
control, direction and supervision of Lessee, or its agent.
l.L That Les.sot" agrees that equipment herein described i.s to be used ex-
clusively by Lessee and in t:he event said Lesso-r, his driver. eD~ployee. or agent
shall (ieviat:e from the t:e:nns of this contract. by t:b.e transport:at:ion of freight
for another, either gratuitously, or foy hire, or by deviation fro~ other terms.
then rhis contract is automatically suspended until the equip~nt is returned to
service of Lessee, and that Lessee shall be harmless fr~ such deviation.
11. That this agreement shmen/s.
:!or's Name fPAIN~•rst. ~.EJ..,~,- __ --, .-
X.- -.
/
ClVl~E f:: lr::li
·~L:....._-'-·-__J~IV
II "l !i i~l95L2}_1.["ti /- :Qil~_J ~·-~ ~·j...:___j...::::...__'
I
,. S.gn•IYJr·Of Conec1ot
Is~_Eci``N -~oTTLE_``) ,``~-``s~D ;~=_:
__:.....___,_••-' -· - L_..j
Jl Collecti011 T1me o1 Collection
~ .---,~-~
6J-LL!L£-!C
``
!~ ,:'Jl
L.J~
["Tii?.!
._:::::.1 :__f__j - 'AM
rp,(
_____;M
) DAY YR HR MIN L___ Name ot 0-eh .... ery Serv1ce Trans:emng: Spec•men to Lab
:EIVED AT LAB Primary Specimen SPECIMEN BOITLE(S) RELEASED TO:
S'Qnalure of Ar;e~!i!iiDni!!'J
... 0 Yes Bottle Seal Intact
ti51"iiNTI Accessooner s Name fFor•t MI. la5tl O;o.te lMo.!OayiYr) ~ 0 No. Enter Remark Below
;p 5: COMPLETED BY DONOR
certify that !provided my urine specimen to the collector; mar
J nave not adulterated it in any manner: each specimen bottle used was sealed with a tamper-
viQ.~i seal
in my presence: and tfl~t me information provided an this form and an tfle !Hbel affixed to eadl specimen bo!tle is correct.
- r r·/ /~· `` {/; ,.J·-' ;:/ _._..-;'Jio.-,c~/·~· _,. / .- ,-
( ---- · ·· ·-~- ·-· / · ·/'---··---·-- ~-l: / r-.1 - • 1 ' ' - 1~ • • • '.: / ' /;:_" -,
Sqlalutlt of Doner (PAINT I [)ongr's Name 1F11st loll Las!l O.ote (t.loJOay'Yr I
>aytime Phone No Evening Phone No_ t"7/ j ( :.· I I ;y\~.,. Date of Birth 7Mo. I 1
Day
- {i •
Yr.
:hould the results ot lhe laboratol)' tests lor the specrmen identified by th1s form be ccnlirmed positive. the Medical Review Officer will contact you to ask
bout prescriptions and over-the-counter medications you may have taken. Therefore, you may want to make a list o' those medical ions tor your own records
'HIS LIST IS NOT NECESSARY. II you chose lo make a list. do so either on a separate piece of paper or on the back of your copy (Copy 5). - DO NOT
'ROVIOE TH!S INFORMATION ON THE BACK OF ANY OTHER COPY OF THE FOAM TAKE COPY 5 WITH YOU
:p 6: COMPLETED BY MEDICAL REVIEW OFFICER· PRIMARY SPECIMEN
lccordance with applicable Federal requirements, my determination/verification is:
0 NEGATIVE 0 POSITIVE 0 TEST CANCELED 0 REFUSAL TO TEST BECAUSE:
0 DILUTE 0 ADULTERATED 0 SUBSTITUTED
MARKS __________________________________________________________________________________________________
!PAINT 1 M~d1cal ~ev•ew Olloeerintl CFi:'J.- ;_..
;;' I I6
:;
B: SSN or Employee ID No. ~_:;. ~..:> :::::
-
``.
~f.L;x.t> .)TRI!Tc.H J:;...L-
.....
C: Employer Name !:::
•:
Street
··.
;~
~-
City, Sf ZIP ' '"
DERNamtand __..- ...... -~ _,....
~":
Telephone No. 00~ r:::tUTO 0 1 · 2:4 ,:;-
;_~dY~----------
DER Na!M DER (A.rra Code & Phone Number)
...~
D: Rea50n for Test: OJUndom 0Rononabl• SUip. ~l·Acddml 0Rrtum to Out~ 0Foll-o,.·up Drrr·cmploym~nl ~
-~a
STEP 2: TO BE COMPLETED BY EMPLOYEE
Date Month Da~ I Yur ..-
STEP 3: TO BE COMPLETED BY ALCOHOL TECHNICIAN
(lr the lechnkian conductio~ the screening lesl is not the same technician "'ho will be conducling the
confirmation lest. each technician must complete their own form.) I certif~· !hat I ha•·e conducted alcohol testing
ltn the abo,·e named indi•idual in accordance with the procedures established in the U.S. Oeputment of
Tral'lsporlation regula1ion. 49' CFR Pari 411. lhat I am qualified to opcra)e 1he luting d~•icr!sl id~nlilied, and
I hat lh~ resull~ are as recorded.
TECH~ICIAN:Ccl1hT OSTI DE\'ICE: OSALJ\'A [)J1(REATH• 15-MinuteWait: DYes 0Nol
SCREENmG TEST: (For BREATH DEl'ICE' ~>rtre 1111he space /:>elo .. · Q!1b. rf liu: tesmrg de1•ice '-' wu designed Ill a.ti!JJ..I
Test fl Rosull
CONFIRMATION TEST: Resulrs MJ1SI be affixed ro e"cl' copy of thiS jomr or pr!nted d1r~ctly onto the form.
REMARKS=-----------------------------------------------------------
Pllone l'oumber tA.re-4 Codr & Nurnber)
Datr
'
!\1unlh
Is~ oL
o.. ~ I \' ~ar
STEP 4: TO BE COMPLETED B'f EMPLOYEE lF TEST RESllL TIS O.fJZ OR HIGHER
)1'1!nif) tllat I ha~e submitled to the alcohol test. the rrsults nr which are accurately recorded on this form. l
understand lhal I musl not drh·c. perform safrt:r-so:nsith·e dulit!S. or operate he:wy equipment because the
results art' ().0~ or greater.
44
Date ,\lonlh
U,j/UO/LUl~ u;:s:o/:29 PM 713-755-1451
..... -.
Page 3/57
4
j..r,;;r•• ...,I ,~ 11U\,.1'114C:I -. 1 ......
.....-.
...,.-.,p, 1'"-VVU 1\..1
1--, r->.'"' • - -·-
FleetScreen, Ltd.
6000 Western Place
Suite 480
Fort Worth, Texas 76107
ATTENTION;
Butch Brewer
Te:ns Stretch, Inc. Participant Charles Hitchens
2103 Skinner Road Participant ID: 337
Houston, TX 77o93 SSN: 463-45·8865
Results of DOT Controlled Substance Test
Record Status: Positive Laboratory: labOne, Inc.
Test Type: Post-accident Test 10101 Renner Boulev.ud
Colle<;tion Date/Time: 0611512006 1:29PM Lenexa, KS 66219-9752
Batch 10: 20060621 Collection Site: Texas Sbetch, Inc.
SpecimeoiD: 36639345 2103 Skinner Road
Date COC Received: 0612012006 Houston. TX 7709'3
Sample Type: Urine Specimen Collector: OOUGLAS A SCHOPPE
Substance Tested B.!ru!.!l Substance Tested ~
Amphetamines Negative Cocaine POSITIVE
Marijuana Negative Opiates Negative
Phei"IC)'Ciidine Negative
In accordance with applicable Federal requirements, my determination/Verification is as above.
:~ : . .Jtlll"
..............-
Garrett R. Tucker Ill, MD, MPH
612112006
Verification Date
ExHIBIT (b)
Results for Cnari.:'S Hitchens. Participant ID. 337 lSSN 4oJ-45-3&ci5)
45
03/08/2013 03:57:29 PM 713-755-1451
~ . :
HAYS IMcCONN
Arrorneys or low
~lli[eHIOnal Corporation
400 Two Allen Cenler I 1200 5milh 51reel I Hou$ron, Texo$ 77002
T&lo>nhn"• 711 .... ~4 11' I I Fnnimil .. 711 ... ~n nrn7: hnven
.::::t the scene, from a helicoptor, that was on their website. Although I captured it
on my computer, I can't put it on a CO. It does show the scene and the layout of
the wrecked vehicles following the accident pretty well. Much of the video deals
with the burning Ford Expedition. The Expedition is damaged so badly that you
can't make out what kind of car it is. \f.Jhen I saw the car later, I could not tell
what color it was from a distance because all the paint was burned off.
I have prepared a diagram which is attached, which shows the vehicles involved
in the accident. It shows where they ended up. It is certainly not to scale but I
believe fairly accurate. The confusing part is "How did the Expedition end up in
front of Pankey's and Valdez' vehicle?" Could it be that Pankey and Valdez piled
up in a separate accident, behind our accident, or were they ·part of our accident?
On June 20, Butch Brewer and I went over to the storage lot called KTC, located
at 1700 Brittmore, Houston, Tx phone 713 468 4242, where tr"le Texas Stretch
truck is located. On arrival, we were allowed to look at our truck but told not to
look at any other vehicles involved in the accident We saw from a distance,
severa.l cf the vehicles. It appears that maybe ail the vehicles are there, except
the long bad which was drivable from the scene. Vve did not see the iong toad
tru~k or the motorcycle (but !t lil\e!y wes there also). VVe did see from a distance
the Cyc!ons CyHnder truck, the silve-r car (Pan!~ey), the 'IIVhtte van \-fatdez:), z.nd
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03/08/2013 03:57:29 PM 713-755-1451 Page 9/57
f1Jir. John Johnson
June 22, 2006
Page4
the burned Expedition (Patterson). I shot some picturas of the Te``as Stretch 02
Peterbuilt and the van and car (from a distance}. My photos are attached on a
CD marked Pollard pictures and the developed pictures from the CD It should
be noted that I saw blue paint on the left front of the Peterbuilt and on the right
fmnt but at a glance it did not appear the same color blue as the Durango. Butch
and I believe the Expedition was also blue but can't be sure. Butch tool~ some
additional photos inside the Peterbuilt at that time.
I have also spent some time tr{ing to contact people connected to the case, in
hopes of finding out what happened. I found John Pankey's home at 23730
Hopewell Dr, Katy, Tx 77493 and left a business card with his wife. Pankey
responded by phone and gave me phone 281 727 6886. Pankey says he was
traveling I 10 in the left hand lane of traffic and encountered the motorcycle cop
stopping traffic on eastbound I 10 for the long load that the cop was escorting.
Pankey stopped in the left lane as he thought he was supposed to, and was the
first car in the left lane of traffic. He said the white van driven by Valdez was
stopped behind Pankey. Pankey said our truck rear ended the Expedition, the
Expedition was knocked into Valdez, and Valdez was knocked into Pankey.
Pankey then claims that our truck then pushed the Expedition on down the road
vJhere it began to burn. Pankey said he was alone :n his Chrysler car and has
scme injuries.
I also talked by phone to Sgt. Stan Jolly, Harris County Constable Pet. 4 deputy,
phone 281 376 3472, 6831 Cypresswood, on June 19. He was back at work that
date and said he had some injuries but was back to work. He did go to a hospital
from the accident scene. Jolly said he was driving his own motorcycle and he
and another officer were escorting two long loads on I 1 0, on feeder road
eastbound. He said he had his red lights and emergency siren going and that he
was leading the convoy. He got up on 110 and stopped traffic in the right two
lanes of traffic. He did not intend for the far left lane to stop but they did also. He
said all three eastbound lanes of traffic were stopped without any problems. The
first tong load truck entered the freeway at the entrance ramp and went on
through with no problems. The second long load was just feeding up onto the
freeway wher. Jolly heard the crash. Jolly was near the Cyclone Cylinder truck
and saw the Cyclone truck being pushed towards Jolly. Jolly then felt an impact
which he thought was a vel1icle but it turned out to be the smoke stack from the
Texas Stretch truck. Jolly estimates he had the traffic stopped for about 15
seconds when the accident happened. just after Jolly was hit he looked over
and saw the Exped\tion on flra. He said our truck after hitting Jolly, went ahead
and struck the long load truckltrai!er in the rear. He said all three lanes of traffic
were stopped and t11at our truck just came along and stacked them afl up,
causing the whole 8-ccident.
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03/08/2013 03:57:29 PM 713-755-1451 Page 10 /57
f1.fJr. Johrt Johnson
June 22, 2006
Page 5
I checked Hitchens' criminal record on vi/hat I call the Texas Statewide search,
and it was negative, see attached document I then did a 25 year search in
Harris County on Hitchens and found the possession of marijuana back on Jan
22, 1985, which was a conviction. got 3 days in jail and a fine. Also on 9-18-83
Hitchens was charged with unlawfully carrying a weapon but it was dismisssd.
VVhile there at Harris County, I also checked Pankey and Diane Patterson and
found nothing.
I also spent some time on the phone trying to contact the insurance carrier for
Texas Stretch. The company adjuster at 888 389 0598 X 739, Kenton Kaplan,
gave me claim# 000470329131 for the case, and said he had assigned it to
independent adjuster Mike Alton. Crocker Claims, phone 832 593 0766 in
Houston. I called Alton and gave him some details on the case s!nce he was
getting a late start.
r also made a trip down to the Houston P·:>lice Department, the Accident Division,
81 Reisner, Houston. I learned that HPO officer Dane or Dale Harwell is the
main investigating officer. Another offic-er named Rene Paloma {a male) to!d me
the case was still under investigation and it would take a 1Nhile before the report
was ready. He mer1tioned that the District Attorney was involved in the case.
From my experience, it is going to be several weeks, possibly a month, before
the report is ready_
My file is open pending further instructions. twill follow up with HPD for the
report when it is ready.
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CAUSE NO. 2006-76647
MARCUS BRENT PATTERSON § IN THE DISTRICT COURT OF
INDIVIDUALLY AND AS NEXT §
FRIEND OF DANIEL PATTERSON §
AND DANAE PATTERSON §
§ HARRJS COUNTY, T EX A S
V. §
§
BREWER LEASING, INC., TEXAS §
STRETCH, INC. AND CHARLES §
HITCHENS, INDIVIDUALLY § 334th mDICIAL DISTRICT
Joint Motion of Defendants Brewer Leasing, Inc., Texas Stretch, Inc. and Charles Hitchens
to Exclude Evidence: Positive Drug Test and Old Weapon Charge Not Admissible
COME NOW, Defendants BREWER LEASING, INC. ("Brewer Leasing") and TEXAS
STRETCH, INC., ("Texas Stretch") and CHARLES HITCHENS ("Hitchens"),
INDIVIDUALLY in the above-entitled and numbered cause, and file this Motion to Exclude a!]
evidence and testimony regarding a positive drug test and an old weapon charge of Charles
Anthony Hitchens ("Hitchens") and would shows the Court as fol1ows:
I.
Background
This matter involves a multiple car collision which took place on Interstate Highway 10
in Texas. Hitchens drove an 18 wheeler that was involved in an accident. After the accident,
Hitchens cooperated with the police, was alert and was not impaired. Later, Hitchens tested
positive on a urine test for the presence of cocaine. In addition, the police accident report
includes information concerning prior weapon charges that have no bearing on any matter in
dispute here.
EXHIBIT _ill_
53
03/08/2013 03:57:29 PM 713-755-1451 Page 12 /57
II.
Any Testimony Concerning Drug Testing
or Alleged Drug Use Should Be Excluded
A. Evidence of Drug Consumption is Inadmissible.
Evidence of alcohol or drug consumption is inadmissible in a case involving an
automobile accident unless there is further evidence of impairment that caused the accident. See,
Trans-State Pavers, Inc. v. Haynes, 808 S.W.2d 727 (Tex. App.--Beaumont 1991, writ denied);
Bedford v. Moore, 166 S.W.3d 454 (Tex. App. Fort Worth 2005, no pet.); Dorman v.
Langlinais, 592 S.W.2d 650 (Tex.Civ.App.-Beaumont 1979, no writ); Rampel v. JVascher, 845
S.W.2d 918 (Tex. App. San Antonio 1992 writ denied).
For example, in Bedford v. Moore, Edwin Bedford was involved in a motor vehicle
accident with Rita Elaine Moore. Mr. Bedford died as a result of the accident. Following the
accident, Moore tested positive in a drug screen for methamphetamines. See Bedford v. Moore,
166 S.W.3d 454 (Tex. App. Fort Worth 2005, no pet.). The Plaintiff in the Bedford case
attempted to offer the testimony of Dr. Daniel Drew, a physician retained by the Department of
Transportation who had analyzed the drug screen conducted on Moore. Upon objection, Dr.
Drew was not allowed to testify about the correctness of the examination and the effects
methamphetamine can have on an individual. Mr. Bedford also attempted to offer the lay
testimony of witness Ronald G. Curry that Moore appeared to be under the influence of drugs at
the time of the accident and that she appeared to be "hyper." The trial court excluded all
evidence concerning the drug screen and its results. /d.
The Court of Appeals affirmed the trial court's ruling, holding:
[E]vidence of drug usage must provide some explanation for the
negligence and improper conduct. However, this was not present
under our facts because Dr. Drew could not tie the presence of
methamphetamines in Moore's body to impairment at the time of
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the accident, and therefore could not connect the presence of the
drug to causation. ·ld at 465 (emphasis added).
The Court of Appeals liltimately held that because Mr. Bedford presented no evidence
that the drugs actually impaired Moore at the time of the accident: "there was no evidence that
the presence of the drug was a causative factor in the accident. We hold that the trial court did
not abuse its discretion by excluding the testimony of Dr. Drew or Mr. Curry." ld at 465.
B. There is No Evidence that Hitchens Was Impaired.
In this case, none of the many pol ice officers at the scene noted any impairment on the
part of Hitchens during the investigation. In fact, the investigating officer, Officer Harwell
stated that no officer at the scene stated that Hitchens was impaired. (See, deposition excerpts of
Officer Harwell, attached as Exhibit "A"). Moreover~ in the field note section of the police
accident report, Officer Harwell noted that,
[Hitchens] did not appear to be intoxicated or under the influence of drugs at
the scene. The suspect stayed to himself at the accident scene and was on his
cell phone most of the time.
(See excerpt from the complete HPD accident file, Exhibit #3 to the deposition of Dean Harwell,
attached as Exhibit "B").
The scene supervisor, Sergeant LA Washington, confirmed that he did not observe
Hitchens to be impaired, and none ofthe officers investigating the scene reported to Washington
that Hitchens was impaired or that they suspected Hitchens was impaired. (See, deposition
transcripts of Sergeant Washington, attached as Exhibit ··c").
In addition, one of the constables involved in the escort duty who was at the scene,
Officer Norris, had special training in being able to spot drug or alcohol impairment, and he did
not observe any impairment on the part ofHitchens. (See, deposition excerpts from Officer
Norris, attached as Exhibit "D").
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Finally, the District Attorney's office declined to prosecute Hitchens for two reasons.
First, the positive drug test obtained on the date of the accident, which was apparently only a
screen for any detectible level, provided no information as to whether the substance obtained
was actual cocaine or a cocaine metabolite, and contained no quantification as to amount of
cocaine found, if any. Second,
... officers at the scene noted no signs of impairment on the defendant. This
means either they missed the signs of cocaine use or that the cocaine quantity
was insufficient to cause impairment.
(See "Case Decline Report" paragraph 4, excerpted from Exhibit #3 to the Deposition of Officer
Harwell, attached as Exhibit "E").
Since there is no evidence that Hitchens was impaired, or that his alleged impairment
caused or contributed to the accident, this Court must exclude any evidence or testimony
regarding the positive drug test from the trial ofthis case.
C. Evidence of Drug Consumption is Highly Preiudicial.
In deciding whether evidence should be excluded, the court must weigh the probative
value of the evidence against its potential for unfair prejudice or confusion, and must examine
the necessity and probative effect of the evidence. See Tex.R. Evid. 403. Evidence is unfairly
prejudicial if it would tend to persuade a jury to determine an issue on an improper basis such as
emotion or bias. Olivarez v. Doe, 164 S.W.3d 427, (Tex. App. Tyler 2004, no pet.)
\¥hen a party objects to admission of evidence as unfairly prejudicial; the trial court must
conduct balancing test, weighing the danger of prejudice against the probative value of evidence.
See Tex.R. Evid. 403; Campbell v. State, 118 S.W.3d 788 (Tex. App.··Houston (14th Dist.]
2003, no pet.).
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In this case, the highly prejudicial effect ?f the positive test substantially outweighs the
probative value of the positive test. Because no causal link between any alleged consumption of
the cocaine and any impairment of Hitchens has been established, this Court must exclude all
evidence of a positive test or of alleged cocaine use by Mr. Hitchens. This would include any
testimony or evidence not supported by scientific evidence. Guesses or suppositions that do not
establish the necessary causal link between the alleged presence of cocaine in Hitchen's system
and the level of impairment necessary and required by the case law.
III.
Any Testimony Concerning Old
Weapon Charge Should Be Excluded
A. Police Accident Report Refers to a 1983 Weapon Charge.
The complete HPD accident file, Exhibit #3 to the deposition of Dean Hanvell, contains a
Criminal History Report on Charles Anthony Hitchens that states: "Caution 7 Suspect known
to carry a weapon," and goes on to describe a 1983 weapon charge, as well as a prior traffic
violation (See "Criminal History Report," excerpted from Exhibit #3 to the Deposition of Officer
Harwell, attached as Exhibit "F").
There is no evidence of a conviction on either matter, and neither matter mentioned in the
criminal history report has any bearing on the causation or liability in this current litigation.
B. Evidence of Old Weapon Charge is Highly Prejudicial
As noted above, in deciding whether evidence should be excluded, the court must weigh
the probative value of the evidence against its potential for unfair prejudice or confusion, and
must examine the necessity and probative effect of the evidence. See Tex. R. Evid. 403.
Evidence is unfairly prejudicial if it would tend to persuade a jury to determine an issue on an
improper basis such as emotion or bias. Olivarez v. Doe, 164 S.W.3d 427, (Tex. App. Tyler
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2004, no pet.)
When a party objects to admission of evidence as unfairly prejudicial, the trial court must
conduct balancing test, weighing the danger of prejudice against the probative value of evidence.
See Tex.R. Evid. 403; Campbell v. State, 118 S.\V.3d 788 (Tex. App.--Houston [14th Dist.]
2003, no pet.).
In this case, the highly prejudicial of old weapon charge and a prior traffic ticket have
absolutely no probative value in this present litigation and should be excluded. See Tex. R.
Evidence 402 and 403. In addition, the alleged weapon charge occurred more than 25 years
before trial and should be excluded under Tex. R. Evid. 609 because (a) Plaintiffs have not given
Defendants sufficient advance written notice of intent to use such evidence, (b) there is no
evidence of a conviction and (c) the alleged offense occurred more than ten years ago.
Prayer
For the reasons stated, Brewer Leasing, Inc., Texas Stretch, Inc., and Charles Anthony
Hitchens, Individually, pray this Court grant the Motion to Exclude and for all other relief,
general or special, at law or in equity, to which they may show themselves justly entitled.
Respectfully submitted,
BURCK, LAPIDUS & LANZA, P .C.
LAW OFFICE OF MARVIN PETERSON
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B
Ma in B. Peterson
TBN: 15846000
Mary Ann Starks
TBN: 19071300
4611 Montrose Blvd., Suite A210
Houston, Texas 77006
Tel:713-222-0004
Fax:713-222-0166
Attorneys for Defendant
Texas Stretch, Inc.
::srr~z.LS. =~
WilliamS. Bush, Jr.
TBN: 03497500
24 Greenway Plaza, Suite 1700
Houston, Texas 77046
Tel: 713-626-1555
Fax: 713-622-8077
Attorney for Defendant
Charles Anthony Hitchens, lndi vidually
Certificate of Service
I hereby certify that a true and correct copy of the foregoing has been forwarded to all
known counsel of record as indicated below on this the ~day of March, 2009:
Harry Herzog ViaFax: 713-781-4797
Herzog & Carp, P.C. And Ordinary Mail.
P.O. Box 218845
Houston, Texas 77218-8845
George Jackson Via Fax: 713-622-8054
Burck, Lapidus & Lanza, P.C. And Ordinary Mail
5177 Richmond Avenue, Suite 850
Houston, Texas 77056
William S. Bush Via Fax: 713-622-8077
Bush & Ramirez, LLC And Ordinary Mail
24 Greenway Plaza, Suite 1700
Houston, Texas 77046
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Lorin R. George Via Fax: 713-781-2514
Jim Adler & Associates And Ordinary Mail
3D/International Tower
1900 West Loop South, 20th Floor
Houston, Texas 77027-3214
Robert L Ramey Via Fax: 713-266-1064
John Elwood And Ordinary Mail
Ramey, Chandler, McKinley & Zito
One Bering Park, 750 Bering, Suite 600
Houston, Texas 77057
Charles W. Lyman Via Fax; 713-652-2419
Lyman, Twining, Weinberg & Ferrell, P.C. And Ordinary Mail
3600 One Houston Center
1221 McKinney Street
Houston, Texas 77010-2009
Michael S. Hays Via Fax: 713-650-0027
Hays, McConn, Rice & Pickering And Ordinary Mail
1233 West Loop South, Suite 1000
·``.A-,_._~·
Houston, Texas 77027
MARY ANN-81'ARKS
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Attachments
Exhibit A Deposition Testimony, Officer Dane Harwell
Exhibit B Excerpt from HPD Accident File (Harwell Exhibit #3)
Exhibit C Deposition Testimony, Officer L.A. Washington
Exhibit D Deposition Testimony, Sgt. Robert Norris
Exhibit E District Attorney's Office "Case Decline Report from HPD
Accident File (Harwell Exhibit #3)
Exhibit E Criminal Background History from HPD Accident File
(Harwell Exhibit #3)
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1 I
DANE
'
t ..' HARWELL 12/2212008 PAITERSON v. BREWER LEASING, INC.
Page 1
CAUSE NO. 2006-76647
MARCUS BRENT PATTERSON, ) IN THE DISTRICT COURT
INDIVIDUALLY AND AS NEXT
FRIEND OF DANIEL PATTERSON)
AND DANAE PATTERSON )
Plaintiff }
)
VS. ) HARRIS COUNTY, TEXAS
)
BREWER LEASING, INC. ,
TEXAS STRETCH, INC. AND
. CHARLES HITCHINS,
INDIVIDUALLY )
Defendants ) 334TH JUDICIAL DISTRICT
ORAL VIDEOTAPED DEPOSITION OF
DANE L. HARWELL
December 22, 2008
ORAL VIDEOTAPED DEPOSITION OF DANE L. HARWELL,
produced as a witness· at the instance of Defendant
and duly sworn, was taken in the above-styled and
numbered cause on December 22, 2008, from 10:22 a.m.
to 1:47 p.m., ·before Laurie Carlisle, Certified
Shorthand Reporter "in and for the State of Texas,
reported. by computerized· machine shorthand, at the
offices of Hays, McConn, Rice & Pickering, 1233 West
Loop South, Suite 1000, · Houston, Texas, pursuant to
the Texas Rules of Civil Procedure and the provisions
stated on the record or attached hereto.
EXHIBIT
CARLISLE REPORTING 713.864.4443
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DANE L. HARWELL 12-22-2008 PATTERSO~ v. BREWER LEASING INC.
1
Page 21
1
2
.3
4
5
6
7
B
9
10
11
12
Q. And up a third it says supervisor on scene,
13 Sergeant L.A. Washington. Then _it says suspect
14 Hitchens, Charles Anthony. Says, .. The suspect did
15 not appear to be intoxicated or under the influence
16 of drugs at the scene. The suspect stayed to himself
17 at the accident scene and was on his cell phone most
18 of the time. ••
19 Do you know who wrote that portion of
20 this report?
21 A. Looks like what I wrote.
22 Q. And how can you tell that it would be
23 something that you wrote?·
24 A. Because this looks like the original
25 report.
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D/>.NE L. HARWELL 12-22-2008 PATTERSON v. BREWER LEASING, INC.
Page 141
1
2
3
4
5
6
7
a
9
10
11
12
1]
14
15
16 Q. Is it fair to say that even if Mr. Hitchens
17
'
tested positive, that that·doesn't necessarily mean
18 that he was impaired because of a positive test, does
19 it?
20 A. No. It just means he has cocaine in his
21 blood.
22 Q. And just be~ause he tests -- or the test
23 came back positive, it does not necessarily mean that
24 that positive test actually caused or contributed to
25 this incident, does it?
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DANE L. HARWELL ~2-22-2008 PATTERSON v. BREWER LEASING, INC.
Page 142
1
A. No:
Q. So this listing of a 68 under factor that
3
may have caused or contributed, that has no basis,
4
either from your opservatibns of Mr. Hitchens' or
5
anybody' s observa t.ions of Mr. Hitchens at the scene.
6 True?
7 A. Well, it goes from the toxicology report
8 that drugs were in his system. That•s where it's in
9 the form.
10 Q. I understand that the toxicology report
11 came back with a positive result.
12 A. Yes.
13 Q. What I'm saying is there's nothing that·' s
14 inherent about simply having a positive result that
15 necessarily caused or contributed to the accident.
16 True?
17 A. Could be true, yes.
18
19
20
21
22
23"
24
25
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: •• T - • 1:1 Jl t '! '!i ., ' !I U a.,. -, ' ' U ' 11) ' U 1J ,. U a, J , U 1) IJ ' , If., U' ' } ' ' .,. ,. "! a' fL II'· U 'f 1L II II' , II it ' ': It H U ' !I~ tl t U' ) 'S ': u' nII I
~cideiit' no~ 0':3:2975405 A CURRENT INFORNATION REPORT . . PAGE 2. 010
!! It II ' ~ ' ,._ ' ; U .ll _, ' ,. J L1 ' l.J J ' 1i J ., n U ' , ' n ' j ' ' U .J •u l ' j ' 7 t ~ ; 1l J H U ; U ' U. U U , ' n_ n ' . U U II 11 !I II ~ ~i i~ , .. ~- ~ ' u ' H II 1 '
. ; ~
Hf:'!LT AND ·1 t~ENT AROUND. HIM TO THE LEFT AND HE STARTED PUSHING PIE INTO THE WALL.
I DIDN'T SEE-THE ACCIDENT I HEARD ABOUT IT LATER.
DOA ··AT SCENE: DECEASED PATTERSON, DIANE YARBROUGH
uRI VER VEHICLE #2 - .
MEDICAL EXAMINER. ROXANNE MENA #9011 BODY CAR 9033
fiE CASE:# ML06 1823
ME TOok ANY· ~Ru~cRiY OR .WAS BURNED IN VEHICLE. OFFICER HARWELL TOOK TDL#200401~
IN
AID
FILE.
SUPERVISOR ON SCENE: SGT L.A. WASHINGTON 051675 1Z008D.·
SUSPECT: HITCHENS, CHARLES ANTHONY TDL #eJ6832242 DOB 07/13/63
THE SUSPECT DID NOT APPEAR TO BE INTOXICATED OR UNDER THE INFLUENCE OF DRUGS A"
THE SCENE. THE SUSPECT STAYED TO HIMSELF AT THE ACCIDENT SCENE AND WAS ON HIS
CELL PHONE MOST OF THE TIME.
TDL RECORD: 03/11/84 NO LIABILITY INSURANCE MUN p HOUSTON
01/29/88 NO LtABILITY INSURANCE MUN B HOUSTON
IZIB/27 /01 OtJER 34, 000 LBS TANDEM AXLE Ct•lV NAVARRO CO
10/05/~f ACCIDENT CMV YES CITATION YES INJURY
12/23/02 ACCIDENT CMV YES CITATION YES NO INJURY
07/16/03 ACCIDENT CMV NO CITATION NO NO INJURY
05/14/05 DENY RENEWAL LTR~1-FTA
07i11/05 DENY RENEWAL LTR*2-FTA
09/07/05 DENIED RENEWAL - FTA
09/08/05 DENIAL LIFTED - FTA
11/02/05 DUTY STATUS NOT CURRENT CMV CMV HAZ NO CASS CO
JUT OF .STATE:
07/09/97 SPEEDING 01-10 MPH OVER SPEED LIMIT CMU SOUTH CAROLINA
10/20/98 SHOW/USE IMPROP-OPERRTOR'S LOG CMV WASHINGTON
08/1211/02 SPEEDING Ct"'V CALIFORNIA
09/02/02 SPEEDING CMV CALIFORNIA
:R.J;MINAL HISTORY:
09/18/03 ARRESTED CARRY PROHIBIT WEAPON CCCL#12/TERRACINA $800 BONl
09/18/03 TRAFFIC VIOLATIONS MUN CT $81 BOND
********* LAt-.JGUAGE TRANSLATOR *********
:Ot-JAYNE BNJ.!:154 - NO
ITN-#06 ALLEN, WILLIE JOHN WM035 - NO
-N-ift217 GOFFNEY~ LARRY CHARLES BM031 - NO
``-EX--=B-..IBIT-
-fN~#08 NORRIS, ROBERT WM000 -NO
I
ITN-#€19. HARTLEY, . CHAD AAHON .WM034 - NO
ITN-#10 LYNCH, GR~HAM RANDALL WM032 - NO
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- - ...
L.A. WASHINGTON 1 JR. 2-27-2009 PATTERSON v. BREWE-R
CAUSE NO. 2006-76647
MARCUS BRENT PATTERSON . ) IN THE DISTRICT COURT OF
INDIVIDUALLY AND AS NEXT )
FRIEND OF DANIEL PATTERSON)
AND DANAE PATTERSON- }
- )
Vi! • ) HARRIS COUNTY I TEXAS
)
BREWER LEASING, INC., )
TEXAS STRETCR, I~C., AND )
CHARLES HITCHENS, )
INDIVIDUALLY ) 334TH JUDICIAL DISTRICT
ORAL VIDEOTAPED DEPOSITION
L.A. WASHINGTON, JR.
February 27, 2009
ORAL VIDEOTAPED DEPOSITION OF L.A. WASHINGTON,
JR., produced as a witness at the.instance of the
Defendant and duly sworn, was taken in the
above-styled and numbered cause on February 27, 2009,
from 11:53 a.m. to 12:59 p.m., before Terrilyn Paul,
Certified Shorthand Reporter in and for the State of
Texas, reported by computerized machine shorthand, at
the offices of Burck, Lapidus & Lanza, P.C., 5177
Richmond, Suite 850, Houston, Texas, pursuant to the
Texa~ Rules of Civil Procedure and the provisions
stated on the record·or attached hereto.
EXHIBIT
G
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'b .A: WASHINGTON I JR. 2-27-2009 PATTERSON v. BREWER
Page 23
1
2
3
4
5
6
7
8
5
10
11
12
13
Q. You understand that there's a DOT
14
requirement for a post-accident drug screen to take
15 place, correct?
lG A. Yes.
17
Q. You·also understand that simply because
18 someone tests positive for the presence of some type
19
of drug, whether it's cocaine or whatever it might
20 be, the mere fact that they test positive does not
:n necessarily mean that they 1 re impaired, correct?
22 A. That's correct.
23 Q. And that's one of the reasons that trained
24 officers will try to make a determination in the
25 field as to whether or not somebody is impaired.
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·``A; WASHINGTON, JR. 2-27-2009 PATTERSON v. BREWER
Page. 24
1 True?
2
A. That's true.
3 Q. And in this case none of the officers that
4
were out in the field that spoke to Mr. Hitchens ever
5 told you while this investigation was going on that
6 Mr. Hitchens appeared impaired to them, did they?
7
A. Not as I can recollect.
a Q. In fact, if an officer felt as though or
9 suspected that Mr. Hitchens was impaired at the scene
10 of the accident, they would have had an obligation to
11
report that to you. Is that fair to say?
12 A. They would have.
13 Q. They would have had a duty to report that
14 to you, correct?
15 A. Yes.
16
17
18
19
20
21
22
23
24
25
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L.A. WASHINGTON, JR. 2-27-2009 PATTERSON v. BREWER
Page 25
1
2
J
4
5
Ei
7
8
9
10
11
12
Q. But I guess my question is:
\
There was
13
nothing to indicate at the scene of the accident that
14
you were aware o~ or that you were made aware of that
15 Mr. Hitchens was under the influence of any kind of
16 ·drugs to the point where he was impaired, correct?
17 A. ·That's correct.
18
19
20
21
22
23
24
25
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DEPOSITION OF ROBERT NORRIS
0001
1 CAUSE NO. 2006-76647
2 MARCUS BRENT PATTERSON,) THE CIVIL DISTRICT COURT
INDIVIDUALLY and AS NEXT)
3 FRIEND OF. DA~EL )
PATTERSON and·DANAE )
4 PATTERSON )
)
5 )
VS. ) 334TH JUDICIAL DIS'rRICT
6 )
)
7 BR:E~WER
LEASING, INC., )
TEXAS STRETCH, INC., and) .
8 CHARLES HITCHENS ) HARRIS COUNTY, TEXAS
·9
10
*******************************************************
11 VIDEOTAPED AND ORAL DEPOSITION OF
l2 SGT. ROBERT NORRIS
i3 DECEMBER 16; 2008
14 *******************************************************
15
16 VIDEOTAPED AND ORAL DEPOSITION OF SGT.
17 ROBERT NORRIS, produced as a witness at the instance of
18 the Defendant and duly S9.!orn, was taken in the
19 above-styled and numbered cause on the 16th of ·
20 December, 2008, from 10:07 a.m. to 1:44 p.m., before
21 RHONDA RUSSO, CSR, in and for the State of Texas,
22 reported by Machine Shorthand, at the Law Offices of
23 Hays, McConn, Rice & Pickerln1, 1233 West Loop South,
24 Suite 1000, Houston, Texas, pursuant to the Texas Rules
25· of Civil Procedure.
0002
1 A P P. E A R A N C E S :
2
Counsel for Robert Norris and Stanley Jolly:
3
4 LAW OFFICES OF R. BURTON SPRINGER
3605 Katy Freeway
5 Suite 210
. Houston, Texas 77007
6 Office: 713.227.2677 Fax: 713.802.0517
7 BY: R. BURTON "BURT11 SPRINGER, Esq.
EXHIBIT
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DEPOSITION OF ROBERT NORRIS
2 · · Q~ That ~ .. I understand that. Let's back up for
3 a second. You have a llf:etime career in law
4 enforceDlent, correct?
5 A. Yes, sir.
·6 Q. And I think during one of the breaks I
7 overheard you telling us you have a lengthy history In
8 narcotics enforcement. Is that correct?
9 · A. No, sir.
10 Q. Did you not have a dog or som~thlng that you
11 were involved with?
12 · A. No, sir.
13 Q. Tell us your background, then, in dealing with
14 people who appear to be Impaired,
15 A. Okay. I am a DWI specialist,· sir, and I deal
16 with alcohol and drug related incidents where people
17 are driving while impaired. And as such I am a drug
18 recognition expert which is not -to recognize drugs
19 · themselves but it'~ to recognize drug cat~gories where
20 Individuals who have taken some type or aubstance and
21 e:qtered Into the body causing them to be impa~d.
22 · Q. Okay. You are an expert in assessing an
23 individual and evaluating whether they are In any way
24 impaired at the time that you were talking and
25 Interacting with them, correct?
opgo.
1 A. Mast of the time~' yes~' sir.
2 Q. I know .that your time period or speaking to
3 Mr. Hitchens was brief as you testified today. Is that
4 correct?
5 A. Yes, sir.
6 Q. But at the time you talked with him, you had
7 taken notice or him because in your opinion he was the
8 vehicle that had gone passed you and had struck the
9 SUV, correct?
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DEPOSITION OF ROBERT NORRIS
10 A. Yes, sir.
11 Q. In other words, In simple terms your radar was
12 up and you were looking at h.im real close?
. 13 A. I was looking a:t hi.m real close as bein& the
14 at fault vehicle in a traffic accident, sir.
15 Q. At the time that you interacted with
16 Mr. Hitchens, you haci. formed the opinion as a law
17 enrorcement officlal that he was the vehicle at :fault
18 for what was obviously a very maJor traffic accident,
19 correct?
20 A. Yes, sb:.
21 Q. And as such you were observing him very, very
22 closely?
23 A~ Not as an individual, sir. .
24 Q. How would you -- how would you observe him
25 other than as an indiviclual?
0091
1 A. Sir, what ·I was doing I had entered the
2 situation at the· time. I had -- as you said it was a
3 major accident, several entities involved. My main
4 concern on any traffic accident., my first concern is
5 ror the imjured and also to make sure I don.•t lose
6 potential witnesses~ suspects. And what I do, I check
7 everybody and try to obtain some type of identification
8 if possible. In this case I think I may have obtained
9 an identification. I can't recall If I did or not fram
10 him. I may have and may not. I don,'t recall. But I
11 know my main concern at that time was --.is to identify
.·12 who I have out there to a point to find out do I have
13 inJuries, what resources 1•m going to need to respond,
14 ambulances, fir49, police and so forth and I was on to
15 the 911 system aud advising them exactly what equlpmeDt
16 I was going ·to need when it occurred.
17 Q. I understand that your first, duty and
18 responsibility out there Ia to make sure that no one
. · 19 else gets hurt. Seeonc:lly that the people who may be
20 injured, to try and provide them with care, comfort,
21 and assistance and those are what you're trying to do
22 Immediately after an accident, correct?
23 A. Yes, sir.
24 Q. And in the process of that, though, you had at
25 least some interaction with Mr. Hitchens. You spoke
0092
1 with him, you got close to him, and may or may not have
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~ I •I "
DEPOSITION OF ROBERT NORRIS
2 obtained identification from him, correct?
3 A. Correct.
4 Q. Considering the severity of the accident, if
. 5 you had had even the slightest indication in any way
6 that he was impaired, you would. have brought that to
7 the attention of the other investigating officers,
8 wouldn't you?
9 A. Yes, sir.
. 10 Q. So, we can assume and know that because you
11 did not bring that to anyone's attention because you
12 didn't speak to anyone,. you didn't identify
13 Mr! Hitchens as being possibly impaired, that there was
14 nothing about his demeanor in the short perioct of time
15 that you talked to him that In any way lndicat~d to you .
16 that he was Impaired in any way? ·
17 A. Nothing that ahi.rmed me at that particular
18 time, sir.
Page 56
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Case Decline Report
FURTHER INVESTIGATION NEEDED
Defendant First: -Charles Defendant Last: Hitcnens
Date of Off!nse:
0
6115'2GO'f'-'C.-t::> ~ Date of Reject: 611:1/'ZJXJT
Offllnsa: Intoxication Manslaughles:
Officer First: DL Officer Last: Harwell
Agency: HOUSTON POUCE DEPARTMENT
Witness Rrst: Diane Witness Last: Patterson
ADA First: Warren ADA Last: Dlepraam
OR#: 92975406
Reason:
VATS REVIEWED CASE
The defendant was driving a tractor trailer eastboUnd in the 148:10 block of the Katy Freeway
just west of HigtMray 6. Sever.ll Precinct Feu de~ies had stopped freeway traffiC because
they were escorting an Clllef$ize load. The defendant was not able to see the stq:Jped traffic
ahead of him foe some unknown reason. He drove into sever.~l cars that had stopped. The
complainant's vehicle caught fire and she was kiHed.
The sole act of negligence so far in the case is failing to maintain a proper lookout.
HONeYer, the defendant has not given a complete statement abaJt why he was looking
doNn. hoN long he was looking doW'n, etc.
In a case d this nature, speed is aitical. The HPD has been unable to determine as~ of
the defendanrs tractoc trailer prior to impact. 1tis l.l'lki"'INTT if this vehicle had satellite -
trackill;J capablity that wuold be r:1 assistance. Of the fifteen witnesses that HPD spoke to
(II'ICI!dng the C4 deputies), only a couple cJ them mention speed. Their opinions on speed
should be more extensively investigated.
The defent:IMt, due to federal ~tory reqlirements, sltmitted to a uir&ysis -wnich
tested positive fer cocaine. It Is a.r«nown whether or not the private lab tested for actual
cocaine, cocaine metabolites, cr quantifted the amourt. Asrl today, tlis lnfamation has not
been obtaned. Therafore, it is UOOlc:w1 whether the ill'l'lOI.ri rl cocaine is a large dose
three days ago. s small dose two days cg:~, etc. Additionally, officers at the scene ncted no
sigr6 rl impairment on the defendant. This means that either they missed the signs d
cocaine use or that the cocaine CJJ31'1Uty was insufficient to cause impairment. That
Questioo, hoNever, can't be answered until the adual amounts are obtained by HPD.
lastly, altho.Jgh this office is a pmsecutorial- off.ce a'ld not an investigatiVe office, the report
and photos were submitted to a ~vale reconstructionis t for review. Fran the information
provided to him, he was unable to answel' the above questions.
I
EXHIBIT
E.
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...
· HOUSTON POL! CE DEP,QRTMENT PAGE: 0Qt1
CRIMINAL HISTORY REPORT
H Jl l ' ' ' ., '1 II ' " II ' Ji ., , ' ' ' Ui ' U H ' , U ' ' ' ' ' ., ! l ' ' , ' 5 7 7 ' !: U ' U H ' U 1 n U U ~ ~ II U J tt II U U ' U ' U. !II II ' ; ' l U ~ ll U ·n U .
ME: HITCHENS _, CHRRL~S ANtHONY MID#:0000232210
" II ' J J ..' J ' U ' J II ' II , , t ,. ' II , II II t , II t t , ' ' J t , t t , ' ,. 7 ,_ J t U ' II U ' II ' U If IT ' ' II n ' II 11 i1 II t U 7 II ' 10 S j t , u ' 11 If U H
UTION --------> SUSPECT 1-~NOWN TO CRRRY A ~..JEAPON
*********************** IDENTIFYING INFORMATION . *************************
:E-B SEX-M HGT-505 l.JGT-130 HAIR-BLK EYES~BRO Cot•1P-MED
fE OF BIRTH - 07/13/63 PLACE OF BIRTH - TX
f********************** SCARS, MARKS, TATOOS *************************
<********************** IDENTIFYING NUMBERS *************************
LICif-6832242 STATE-TX SOCIAL-SECURITY#- 4E.3-45-8055
SI D44-IZL3254239 FBI#-315554CA4
14/t>19R00015 LAST-PHOT0-09/lB/83 NCIC-CLASS-15 61 C0 P0 15
S9UD0013 PALMS-Tt='IKEN- 1!Zt 15 13 17 12
********************** RELATIVE INFORMATION *************************
ATIVE NAME ADDRESS PHONE
HER ANNETTE PEALS 7038 RICHWOOD 7136456245
********************** ALIAS INFORMATION *************************
AS NAME R/S DOB ·DRIVER-LICENSE# SOC-SECt~
:HENS ! CHARLIE I 071363
~********************* ARREST INFORMATION. *************************
TORY#: 001 ARREST DATE: 09/18/83 JAIL BOOKING#: CB24142
=:: ADDR: 7038 RICHI·JOOD
:UPATION: CLERK - OFFICE
~ST LOCRTI0~:3600 UNKNOWN
=-sTING OFFICERS: NO#' 071538
DISPOSITION: RELEASED ON BOND/MADE BOND JAIL DISPOSITION DATE:09/18/~3
:.'NSE-1: CARRY PROHIBIT t--JEf:u:ioN . INCIDENT#: 56438883
~GE •..•• :CARRY WEAPON(729709)IN CCCL#12/TERRRCINA, $800 BOND
)OSITION:
~NSE-2:. TRAFFIC VIOLATIONS o:l. fa/! SElUAL uolke!JD8.9X:l.:J..pS2.89/.5-
•
LICENSE N0.!2JJ!t 3 7'-/
In ~orusideration of the pt'ovi.sic:ms and covenants herein cant ained, 1 t is urut:\13.~ly
ag~eed as foll~s:
1. The lessor's rate of pay shall be '/A
percent for power tmit and 3()
perceut for tractor trailer combinations of~Revenue on treignt ~ed all Tar±ff.
2. That I.enee uill pl.ace &igns on said equip'Dient shoving tbat this equipment
is leased to and operated by Lessee and that upon tena.ina.tion of this contract by
ei.tber pau.y auch IJir;ns v1~l. be removed by Lessor • .and Lessor agrees t.be failure ~o
remove such a1gn3 will xesul~ in damagem to Lessor.
3. 'That Le:``•or vill equi.p said equipment Vich ligbts and reflectors as re-
.quired by th@ Interstate Comaaerce Coma:islilion aud prortde all accessorial equipment
as requir~ by rules and re.p1.at:10DJJ oa said equip111ea.t at all times vbe.n ia. use of
Lessee. and k.eep the equ:lp111eut up to the llini``Nm .nechanical n~quire.ment:.11 as. set forth
in the :rules ltllld regulatious. Lessee re~terves the xight: to :tnspect sai.d equipment at
any c:bne or place while 1n ita use ca assure compliance with auch proviai.ons •
. · 4. 'fbat l.essoT vill obtain and paJ foT all necusary state license tags and
registrations and affix same to said cquipmeot and pay for and supply all gasolinet
oil. tiTes, repairs, and suppl1u necessary co aai:nt:ain operating effic~eacy.
Purthcn:·. 't..ot!uor shall pay aU -.i1eage • f11el.. and bighway t:axes and post a 11 bcmds
necessaTy and required by various sta~es.
S. 'l'hat 1t is expre:ss1y u.nderctood by the part:ies hereto that: all drivers.
helpers BDd}or agent:• of Le~sor used to fulfill this coa~ract are employees of
Lessor and lessor assumes respoueibili g f;a••~ cfc hecs, helpers r
. • . per a n ~ to hours of
servt`` ·and ma~neeoance of equ~p~n~ aud eh~ll as&ure that all drive~s Maintaia a
daily log as required aud forward co Les5ee &aid log sheets daily.
~ PLAINTIFFS
~ EXHIBIT
li~ )) OL
~
81
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6. Lessee does not agree to furnish physical damage insurance for Loss.
7. That Lessor will furnish Lessee with a doctor's physical examin4C~on
cer:t ificate oo any and tll~ drivers of sa.1.d equipment in accordance with t:he Rules
aud lte.gulat:l.ons of I .C. C.
8. 'that Lessee aa:sumes and will be respon&i.ble. far snd agrees co furnish
adaquate protection to the p~bl~c and the shipper~ for automob~le bodily 1nj~ry.
P~Dperty d~ge, and cargo liab1l~ty.
9. That dur1ng the terms o! this agreement, 'U!&sor vill furuis"h adequate
protect~ou as to Ieoder Leas~e harale5s fram clai~s ar1s~nz from daua~e or ~njury
to any thi~d party resulting from bobtail1ng of Lessot's equipbent.
10. ~ac during the te~ of this agrecmeot, eaid equipment w~11 be made
avail.able to and cont'rolled 'by Lessee at all times, and all drivers and other
employees of Lessor US:I!!d in connection \litli this contract will also be under full
control. direction and supervision pf Lessee, or ``s agent.
11. l'bat l.e.tlsor ag1:ces t:h.at equipment herein described :1s t:o be u.sed e:x-
elusively by Lessee and in a;he event said Lessor • his driver, employee, or agent
£hal1 ileviate from tbe t:.et'1116 of this contract • by the transportat:ion of freight:
for ano~her, e~ther gratuitously, or for hi``, or by deviation fro~ oa;her terms,
then ch~s contract is auto~tically suspended until the equip~nt is returned to
service of Lessee~ end that Le.Gsee sball be hannless fioe`` suc.h deviation.
U_ That t:his Agreement shall be in full force and effect until terminated
by either party hereto, but not leGs than 30 days~ by vritten nctice delivered by
eithe~ party signatory hereto in person if an individual, or to any offLcer
~hereofsaid party is a ~orporation. Said agreemenc also may be cancelled or term-
1nat:e.d by depos1.ticg in t:hc U.S. Mail a not1.ce of such caneellat:icrn. properly add-
re~sed. po~ted. and that said party or offiter bereof is evidenced by che return
registered receipt or upon cbe said Tefusal of sa~d addTeasee to aecept delivery
thereof. and upon te.radnati.on of th::ls agreemenr. Lessor ag-r:ec:o 'to -ret:urn to Le.ssee
all equ~p0ent, supplie.s. pe~1.ta, •nd o~h~r pTaperty of Lessee to che nearest
te~inal wt~h~n S days. or be charged thirty (30) ceots per mile for retrieving
of such property by Lessee.
13. 'l'ba.t :if Le:saor or 1ds ageut. i.s nnA.ble to deliver car)to hauled uu.der t:his
~gTeement to the destination upon an agreed time, Lessor vill ~diately notLfy
Lessee. o~ the ~onsignee of such cargo of the probable delay. and ~hat faiLure to
give such not1f1cacions will be construed a~ negligence on the part of the Lessor.
14. That. Lessee t~h.all be illlpovered to cha.tge Lessor all _claims for shortages.
losse.s. or damage to cArgo which are not the result: of a.cc.i.de.u1:. 1.nvo~v1.nJC; tllc
equ'1.p``~enr coveted by t.bi.s agree.eeut.
15. !hat Le3see will charge the fLr&t $100.00 of any ela~m for public liab~liey
oT property damege due to negligence of Le$SO~. his dr~ver. or agent, and fu~the~
the lessee vil1 cbaTge Lesso~ for all dalll&ges to cargo cause.d by neRli~ence of
Lassor. his dr``er. or &Je~t •
.·
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16 • The Le&oor vill be responsi.ble to Le,.;s-ee for ds.rnag~ to Le.:s :!lee' a equipment
or propert-y d8..11lages as a result of Lessor 1 9 6tri.king any vi.aduc:t, lav overhead, or
other 3~a~1onary objec~ thrnugh caTelessness or neglect of Lessor, his driveT. or
~tent. ,
17. Th•u:·LessoT shall not: br: paid for acy load vrecked e>r damaged ia t:ransit
and returned to origin point.
18. The Lessee shall charge Lessor in full fot' any ~ml all water dat``S.Rc t.o
cargo ceused by neglect of Lessor, his driver, or agent.
19. The Lessee ~111 hold from the Lessor's earnings a total of $ZOO.OO. The
said $200.00 less any clai~s. ro be refunded to Lessur or Le&see v``htn a p``~od
of not less than thirty days and not to excead nLaety days of the termination of
the lease by et~her party.
20. The Lessor shall ye~urse the ~essee for any fin~s or penalties Faid by
the lessee aa a re3ult of i~lega1 or criminal acts co~tted by the Lessor. his
driver~ or agent.
21- All 1n5urange. Fay~o11 ~axes, state employment taxes 6hal1 be paid by
~ssee and charged back to Lesso~. Any iucrease in above will be charged or any
decrea~e 9111 be adjusted in cost.
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CAUSE NO. 2011-64488
MARCUS BRENT PATTERSON, § IN THE DISTRICT COURT
INDIVIDUALLY, AS INDEPENDENT §
ADMINISTRATOR OF THE ESTATE OF §
DIANE PATTERSON, and AS NEXT §
FRIEND OF DANIEL PATTERSON and §
DANAE PATTERSON, and DANIEL §
PATTERSON (now 18 yearsofage) §
§
Plaintiffs, §
§
v. § 334th JUDICIAL DISTRICT
§
BREWER LEASING, INC. §
§
Defendant. § HARRIS COUNTY, TEXAS
JURY CHARGE
MEMBERS OF THE JURY:
This case is submitted to you by asking questions about the facts, which you must decide
from the evidence you have heard in this trial. You are the sole judges of the credibility of the
witnesses and the weight to be given their testimony, but in matters oflaw you must be governed
by the instructions in this charge. In discharging your responsibility on this jury you will
observe all the instructions which have previously been given you. I shall now give you
additional instructions which you should carefully and strictly follow during your deliberations.
Do not let bias, prejudice or sympathy play any part in your deliberation.
In arriving at your answers, consider only the evidence introduced here under oath and
such exhibits, if any, as have been introduced for your consideration under the rulings of the
Court, that is, what you have seen and heard in this courtroom, together with the law as given
you by the court. In your deliberations, you will not consider or discuss anything that is not
represented by the evidence in this case.
Since every answer that is required by the charge is important, no juror should state or
consider that any required answer is not important.
You must not decide who you think should win, and then try to answer the questions
accordingly. Simply answer the questions, and do not discuss nor concern yourselves with the
effect of your answers.
ExHIBIT '7
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You will not decide the answer to a question by lot or by drawing straws, or by any other
method of chance. Do not return a quotient verdict. A quotient verdict means that the jurors
agree to abide by the result to be reached by adding together each juror's figures and dividing by
the number of jurors to get an average. Do not do any trading on your answers~ that is, one juror
should not agree to answer a certain question one way if others will agree to answer another
question another way.
You may render your verdict upon the vote of ten or more members of the jury to
Questions 1, 2, 3 or 6. The same ten or more of you must agree upon all of the answers made
and to the entire verdict. You will not, therefore, enter into an agreement to be bound by a
majority or any other vote of less than ten jurors. Questions 4 and 5 may only be answered
'"Yes" or with a dollar amount if the jury is unanimous. If the verdict and all of the answers
therein are reached by unanimous agreement, the presiding juror shall sign the verdict for the
entire jury. If any juror disagrees as to any answer made by the verdict, those jurors who agree
to all findings shall each sign the verdict.
These instructions are given you because your conduct is subject to review the same as
that of the witnesses, parties, attorneys, and the judge. If it should be found that you have
disregarded any of these instructions, it will be jury misconduct and it may require another trial
by another jury; then all of our time will have been wasted.
The presiding juror or any other who observes a violation of the court's instructions shall
immediately warn the one who is violating the same and caution the juror not to do so again.
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When words are used in this charge in a sense which varies from the meaning commonly
understood, you will be a given a proper legal definition which you are bound to accept in place
of any other meaning.
A fact may be established by direct evidence, by circumstantial evidence, or by both. A
fact is established by direct evidence when proved by docwnentary evidence or by witnesses
who saw the act done or heard the words spoken. A fact is established by circumstantial
evidence when it may be fairly and reasonably inferred from other facts proved.
In this case any witness or lawyer may comment on Mr. Hitchens' claim of privilege, and
you may draw any inference from his refusal to testify that you believe is a reasonable inference.
Answer questions "'Yes" or '"No" unless otherwise instructed to answer them with
percentages or dollars. A "Yes" answer must be based on a preponderance of the evidence
unless otherwise instructed. If you do not find a preponderance of the evidence supports a "Yes"
answer, then answer "No".
"Preponderance of the evidence" means the greater weight and degree of credible
testimony or evidence introduced before you and admitted in this case. Whenever a
question requires an answer other than '"Yes" or "No", your answer must also be based
on a preponderance of the evidence.
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QUESTION NO. 1
Did the negligence, if any, of any of the people or entities listed below proximately cause
the occurrence in question?
"'Negligence" means failure to use ordinary care: that is, failing to do that which a person
of ordinary prudence would have done under the same or similar circumstances or doing
that which a person of ordinary prudence would not have done under the same or similar
circumstances.
"Ordinary care" means that degree of care that would be used by a person of ordinary
prudence under the same or similar circumstances.
"Proximate cause" means that cause which, in a natural and continuous sequence,
produces an event, and without which cause such event would not have occurred. In
order to be a proximate cause, the act or omission complained of must be such that a
person using ordinary care would have foreseen that the event, or some similar event,
might reasonably result therefrom. There may be more than one proximate cause of an
event.
Please answer "Yes" or "No" for each of the following:
Answer: Charles Hitchens
Williams Brothers Construction
Ray Bellew and Sons
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If you answered "Yes" to Question 1 for more than one of those named below, then answer the
following question. Otherwise, do not answer the following question.
Assign percentages of responsibility only to those you found caused or contributed to cause the
occurrence. The percentages you find must total 100 percent. The percentages must be
expressed in whole numbers. The percentage of responsibility attributable to any one is not
necessarily measured by the number of acts or omissions found. The percentage attributable to
any one need not be the same percentage attributed to that one in answering another question.
QUESTION NO.2
For each person you found caused or contributed to cause the occurrence, find the
percentage of negligence attributable to each:
Answer: Charles Hitchens ---------------------%
Williams Brothers Construction %
--------------------
Ray Bellew and Sons
--------------------%
Total: 100
--------``--------
%
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If you answered ''Yes" to Question 1, then answer Question 3. Otherwise, do not answer
Question 3.
QUESTION NO. 3
What sum of money would have fairly and reasonably compensated Diane Patterson for-
a. Pain and mental anguish.
"Pain and mental anguish" means the conscious physical pain and emotional pain,
torment, and suffering experienced by Diane Patterson before her death as a result of the
occurrence in question.
Please answer in dollars and cents for damages, if any.
Answer: $
--------------------
b. Funeral and burial expenses.
"Funeral and burial expenses" means the reasonable amount of expenses for the funeral
and burial of Diane Patterson reasonably suitable to her station in life.
Please answer in dollars and cents for damages, if any.
Answer: $
--------------------
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If you answered "Yes" to Question 1, then answer Question 4. Otherwise, do not answer
Question 4.
QUESTION NO. 4
What sum of money, if paid now in cash, would fairly and reasonably compensate
Marcus, Daniel, and Danae Patterson for their damages, if any, resulting from the death of Diane
Patterson?
Consider the elements of damages listed below and none other. Consider each element
separately. Do not award any sum of money on any element if you have otherwise, under
some other element, awarded a sum of money for the same loss. That is, do not
compensate twice for the same loss. Do not include interest on any amount of damages
you find.
Please answer separately in dollars and cents for damages, if any.
a. Pecuniary loss sustained in the past.
'"Pecuniary loss" means the loss of care, maintenance, support, services, advice, counsel,
and reasonable contributions of a pecuniary value, that Marcus Patterson, Daniel
Patterson and Danae Patterson in reasonable probability would have received from Diane
Patterson had she lived.
Answer: Marcus Patterson $ ________________
Daniel Patterson $ -----------
Danae Patterson $ ----------------
b. Pecuniary loss that, in reasonable probability. will be sustained in the future.
Answer: Marcus Patterson $--------------~--
Daniel Patterson $
---------------------
Danae Patterson $
---------------------
In determining damages for elements c, d, e, and f, you may consider the relationship
between Marcus, Daniel, and Danae Patterson with Diane Patterson, their living
arrangements, any extended absences from one another, the harmony of their family
relations, and their common interests and activities.
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c. Loss of companionship and society sustained in the past.
"Loss of companionship and society" means the loss of the positive benefits flowing
from the love, comfort, companionship, and society that Marcus Patterson, Daniel
Patterson, and Danae Patterson in reasonable probability would have received from
Diane Patterson had she lived.
Answer: Marcus Patterson $~---------------
Daniel Patterson $ _ _ _ _ _ _ _ _ __
Danae Patterson $ _ _ _ _ _ _ _ _ __
d. Loss of companionship and society that. m reasonable probability. will be
sustained in the future.
Answer: Marcus Patterson $ _________________
Daniel Patterson $----------
Danae Patterson $
-------------
e. Mental anguish sustained in the past.
"Mental anguish" means the emotional pain, torment, and suffering experienced by
Marcus Patterson, Daniel Patterson, and Danae Patterson because of the death of Diane
Patterson.
Answer: Marcus Patterson $ _________________
Daniel Patterson $
-------------
Dana.e Patterson $ -----------
f. Mental anguish that. in reasonable probability, will be sustained in the future.
Answer: Marcus Patterson $ _________________
Daniel Patterson $
-----------
Danae Patterson $ ------------
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g. The fair market value ofthe Patterson's Ford Expedition on June 15. 2006 before
physical contact occurred with the Brewer Leasing tractor-trailer.
"Fair market value" means the amount that would be paid in cash by a willing buyer who
desires to buy, but is not required to buy, to a willing seHer who desires to sell, but is
under no necessity of selling.
Answer: $ --``~------------
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Answer Question 5 only if you unanimously answered "Yes" to Question 1. Otherwise, do not
answer Question 5.
To answer "Yes" to Question 5, your answer must be unanimous. You may answer "No" to
Question 5 only upon a vote of ten or more jurors. If you cannot unanimously answer "Yes" and
if you cannot answer "No" upon a vote often or more jurors, please indicate "No Consensus".
QUESTION NO.5
Do you find by clear and convincing evidence that the death of Diane Patterson resulted
from gross negligence attributable to Brewer Leasing, Inc.?
"Clear and convincing evidence" means the measure or degree of proof that produces a
firm belief or conviction of the truth of the al1egations sought to be established.
"Gross negligence" means an act or omission by a driver,
(a) which when viewed objectively from the standpoint of the driver at the
time of its occurrence involves an extreme degree of risk, considering the
probability and magnitude of the potential harm to others; and
(b) of which the driver had actual, subjective awareness of the risk involved,
but nevertheless proceeded with conscious indifference to the rights,
safety, or welfare of others.
You are further instructed that Brewer Leasing, Inc. may be grossly negligent because of
an act by Charles Hitchens if, but only if, Brewer Leasing, Inc. ratified or approved the
act.
Please answer "Yes" or "No" or "No Consensus":
Answer:
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Answer Question 6 only if you unanimously answered "Yes" to Question 5. Otherwise, do not
answer Question 6.
QUESTION NO. 6
What sum of money, if any, should be assessed against Brewer Leasing, Inc. and
awarded to Diane Patterson's estate, Marcus Patterson, Daniel Patterson, and/or Danae Patterson
as exemplary damages for the conduct found in response to Question 5?
"Exemplary damages" means any damages awarded as a penalty or by way of
punishment but not for compensatory purposes. Exemplary damages includes punitive
damages.
You are instructed that you must unanimously agree on the amount of any award of
exemplary damages.
Factors to consider in awarding exemplary damages, if any, are-
(a) The nature of the wrong.
(b) The character of the conduct involved.
(c) The degree of culpability of the wrongdoer.
(d) The situation and sensibilities of the parties concerned.
(e) The extent to which such conduct offends a public sense of justice and
propriety.
(t) The net worth of Brewer Leasing, Inc.
Please answer in dollars and cents, if any.
Answer: $
--------------------
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If in your answer to Question 6 you entered any amount of exemplary damages, then answer
Question 7. Otherwise, do not answer Question 7.
QUESTION NO. 7
How do you apportion the amount of exemplary damages awarded between Diane
Patterson's estate, Marcus Patterson, Daniel Patterson, and/or Danae Patterson?
Answer by stating a percentage for each person named below. The percentages you find
must total 100 percent.
Answer: Diane Patterson's estate
--------------------%
Marcus Patterson
--------------------%
Daniel Patterson --------------------%
Danae Patterson
---------------------%
Total 100 %
--------``---------
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QUESTION NO. 8
Did Brewer Leasing, Inc. commit fraud against Diane Patterson's estate, Marcus
Patterson, Daniel Patterson, and/or Danae Patterson?
Fraud occurs when-
a. a party makes a material misrepresentation, and
b. the misrepresentation is made with knowledge of its falsity or made
recklessly without any knowledge of the truth and as a positive assertion,
and
c. the misrepresentation is made with the intention that it should be acted on
by the other party, and
d. the other party relies on the misrepresentation and thereby suffers injury.
"Misrepresentation" means a false statement of fact.
Answer "'Yes" or "No".
Answer:
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If you answered "Yes" to Question 8, then answer Question 9. Otherwise, do not answer
Question 9.
QUESTION NO. 9
What sum of money, if any, if paid now in cash, would fairly and reasonably compensate
Diane Patterson's estate, Marcus Patterson, Daniel Patterson, and/or Danae Patterson for their
damages, if any, that were proximately caused by such fraud?
Consider as damages only expenses incurred that would not have been incurred if no
fraud took place. Do not include interest on any amount of damages you find.
Please answer in dollars and cents, if any.
Answer: $
--------------------
97
03/08/2013 03:57:29 PM 713-755-1451 Page 56/57
After you retire to the jury room, you will select your own presiding juror. The first
thing the presiding juror will do is to have this complete charge read aloud and then you will
deliberate upon your answers to the questions asked.
It is the duty ofthe presiding juror-
to preside during your deliberations,
to see that your deliberations are conducted in an orderly mmer and in accordance with
the instructions in this charge,
to write out and hand to the bailiff any communications concerning the case that you
desire to have delivered to the judge,
to conduct all voting on the questions,
to write your answers to the questions in the spaces provided, and
to certifY your verdict in the space provided for the presiding juror's signature or to
obtain the signatures of all the jurors who agree with the verdict if your verdict is less
than unanimous.
You should not discuss the case with anyone, not even with other members of the jury,
unless all of you are present and assembled in the jury room. Should anyone attempt to talk to
you about the case before the verdict is returned, whether at the courthouse, at your home, or
elsewhere, please inform the judge of this fact.
When you have answered all the questions you are required to answer under the
instructions of the judge and your presiding juror has placed your answers in the spaces provided
and signed the verdict as presiding juror or obtained the signatures, you will inform the bailiff at
the door of the jury room that you have reached a verdict, and then you will return into court
with your verdict.
98
03/08/2013 03:57:29 PM 713-755-1451 Page 57/57
CERTIFICATE
We, the jury, have answered the above and foregoing questions 1, 2, 3, 4, 5, 6, 7, 8 and 9
as herein indicated, and herewith return same into court as our verdict.
(To be signed by the presiding juror if unanimous.)
Presiding Juror
(To be signed by those rendering the verdict if not unanimous on either question 1, 2, 3, 4, 8 or
9)
99
Appendix
20
e4te112aa9 12:53 71322213166 LAW MARVIN PETERSON PAGE 64/M
CAUSE NO. 2006-76647
MARCUS BRENT PAITERSON § IN THE DISTRICT COURT OF
lNDIVIDUALLY and AS NEXT §
vruENDOFDANrnLPA~ON §
And DANAE PATTERSON §
Plaintiffs, §
§
vs. §
§
BREWER LEASING, Il\C.. §
TEXAS STRETCH, INC. and §
CHARLES HITCHENS §
Defendants. §
§ HAR.RlS COUNTY, TEXAS
JAVIER VALDEZ and LARRY C. §
GOFFNEY §
Intervenors § 334 1 !1 JtJDIC!AL DISTRICT
SupplcmentaJ Response of Texas Stretch, Inc.
to Plaintiffs' Motion for Partial Summarv Judgment
COMES NOW Texas Stretch, Tnc., Defendant in the above-entitled and numbered
cause, and files its Supplemental Response to Plaintiffs" Motion for Partial Summary
Judgment as follows:
I.
Introduction
This is a supplemental response on the issue of whether or not Defendant driver
Charles Hitchens, Individually, was an employee of Texas Stretch.lnc., at the time of the
June 15, 2006 multi-vehicle collision made the basis oftlJis suit.
n.
The Coll'or ate Representative bas testified that Hitchens was
the emplovee of Texas Stretch. l nc.. but not of Brewer Leasing. Inc.
In his deposition on March 13, 2009, the tr.lnseript of which was received after
the deadline for filing written responses to Plaintiffs' Motion for Partial Summary
Judgment, General Manager Lonny Box testified by deposition as the corporate
PLAINTIFF'S
EXHIBIT
I hs-
64/01/2809 12:53 71 32226166 LAW MARVIN PETERSON PAGE 05/0':1
-
representative of Defendant Texas Stretch, Inc. At page 36lines 3 through 12 and at page
37 lines 19 through 22 of his depositiou Mr. Box testified that Charles A. Hitchens was
the employee ofTexas Stretch. Inc., and that "any lawyer that says Hitchens is the
employee of Brewer Leasing, Inc. is wrong." See Exhibit A, excerpts from the
deposition of Lonny Box.
Condusion
Based upon the deposition testimony of its General Manager. Texas Stretch, Inc.,
withdraws its objection to a finding that Defendant Charles A. Hitchens was an employee
of Texas Stretch, Inc., on June 15, 2006.
WHEREFORE, PREMISES CONSIDERED, Defendants Texa$ Stretch. Inc.
respectfully concedes that Defendant Charles A. Hitchens was an employee of Texas
Stretch, Inc., on June 15, 2006.
Respectfully submitted,
LAW OFFICE OF MARVIN PETERSON
BY:
;:;;~!:;;;-~
TBN: 15846000
MARY ANN STARKS
TBN: 19071300
4611 Montrose Blvd., Suite A2JO
Houston, Texas 77006
Tel: 713-222-0004
Fax: 713-222-0166
ATTORNEYS FOR DEFENDANT TEXAS
STRETCH, INC.
2
04/ 01/2009 12:53 7132220166 LAWMARVIN PETERSON
Certificate of Service
I hereby certify that a true and correct copy of the foregoing has been fozwarded
to all known counsel of record as indicated below on this the l;t" day of April, 2009:
Harry Henog Via Fax Only: 713-781-4797
Herzog & Carp, P.C.
P.O. Box 218845
Houston, Texas 77218-8&45
George Jackson Via Fax Only: 713-622-8054
Burck, Lapidus & Lanza, P.C.
5177 Richmond Avenue, Suite 850
Houston, Texas 77056
WilliamS. Bush Via Fax Only: 713-622-8077
Bush & Ramirez, LLC
24 Greenway Plaza, Suite 1700
Houston, Texas 77046
Richard Stucky Via Fax Only: 713-781-2514
Jim Adler & Associates
3D/International Tower
1900 West Loop South, 20th Floor
Houston, Texas 77027-3214
Robert L. Ramey Via Fax Only: 713-266-I 064
John Elwood
Ramey, Chandler, McKinley & Zito
One Bering Park, 750 Bering, Suite 600
Houston, Texas 77057
Mike Hays Via Fax Only: 713-650-0027
Hays, McConn, Rice & Picketin.g
1233 West Loop South, Suite 1000
Houston, Texas 77027
3
LAW MARVI N PETERSON P~Wt 07/ tl':l
04/81/2809 12:53 7132220156
{) \J'-1 \0- I l '1 J I"
UAR 1 9 2009
Transcript of the Testimony of
Lonny Box
Date: March 13, 2009
Case: Patterson, et al v . Brewer Leasing, et al ·
' . ·-
HOUSTON REPORTING ~ERVICE
''':~
1010 LAMAR ST., SUITE 1400
HOUSTON, TEXAS 77002
713-739-1400
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Email: houstondepos@earthlink.net
cc: .honstonproduction@eartblink.net EXHIBIT
Internet: wwW.houstoncourtreporting.com ~ ft
. "
04 / 61 /2069 12 :53 7132226166 LAW I•IARVI N PETERSON PAGE 0B/ 09
p,.gc 37 Page 39
1 Mr. HitfBrewer Leesing is wrong. l Q. How much do you gel paid now.M g,, is jQst 'l¥l'Cng. Com:ct'l 9 Do you get paid by Texas S!l'elch today'/
10
ll
A. I oan'tan•wcrthat.
Q. Why not? ........
lO
Q.
THE WriNESS: y.._I®.
(BY MIL HEP..ZOCl) r11 ask that question. Do you
12 A. Disruss.ions with my attomcy. 12 get paid by Tt~tes Strct13 A. It'> a yoarly .saluy.
7'
-• he can't get a full aoswcr because I don~ wanl him 16 Q. Ol:.ay. And whal is U..t sal3ry?
lJ fil ing some motion wit!> tb.c Court. So - l7 A. llS,OOO.
l.S • . W111 ~" ··•· ' ? lS Q. Why did Brewa Leasing relinquish m:nc of its
19 Q. (BY MR. HERZOG) Sure. Any lawyer that seys 19 operating amhoritr with the United States Department of
20 Charles Hitchens was an t131ployec of B!OWer·teax\ng is 20 Transpon.tjrm7
Zl just wrong? Zl MS. HILlY: Objo:<:tion, form.
n A. C<>nect. 22 A. Ask that, again. pl..ase.
~3 Q. He was, from lbe day it<> applied for employment 23 Q. (BY MR. HERZOG) Has Brewer Le>sing lost some If
z~ and ........ hi~ to the day of me wn>ek, an omploycc oi 2~ its or rcljnquishc4 scm.c of its opc:nrting authority from
25 Texas Stretch? 25 lile United States Department ofTranapoT'o4tion7
Page 38 Page 40
l MS. HILlY: Objection, form. ~ A,. Brewer Lc:asing didn't have authority with Ute
2 J\. Con'ect. z Ullitcd StateS Department ofTnm5ponation.
3 Q. (BY MR. HERZOG) Now y<>u indicsted earlier tha 3 Q. Did it bave it with 1X DOT?
4 you had goQe back to Texas Snctch en Tuly 26th, 2006. 4 A. Yes.
5 That was the da!!o from. your memory? 5 Q. Okay. Has Bnower Leasing :elinquislted some of
6 A. That's corn:.ct. & i'-' operating lllllhority witb !X DOT?
1 Q. But the 1-9 from for Mr. Hibobcns has you 7 A. Yes, it has.
B sieJ!ing it on behalf of the company and dating it Juoe 8 Q. Why?
9 I Oth. Do you sec that? (Hands document) 9 A. Brewer Loosing is a teasin~; company. It was
10 MR. PETF•.P..SON: Objection., frmn. 10 formed as a teasing company, and it was my job to go bee
11 A. Ycs,ldu. 11 to lhc business plm who! i t wa. CJeaied. It dOCllll't
'12 Q. (BY MR. HERZOG) Okay. Can you C>lUlY·
13 mc7 13 Q. Does Texas Stretch still maintl:in an ICC number?
H 4.. WeH, 1 was employed at Ametican Water Serviee.s:. 14 A. At this time,. yes.
15 I was st:J.r'ting my own compliance n:view company nr.d h 15 Q. Docs Texas Sln:tcn sri!! maintain • Tcltas
16 di.sc~$se.d wilh Mr. J:lrnwer ab()Ut doing his eompliancc 16 Department of'l'nuupottation nlltnber?
l7 J'Cview_ AJ)(I we had entered into an agreement, and l just 17 A. At th~s time, yes.
lS began lhat type of work for him. 15 Q . /!o.nd do.,. 'tcxos Stretch still m~intain • United
19 Q. So yoo were lin employee of Amcrico.n Wal"--r 19 Slates Depfl(tn'lcn.t ofTrunsportation nUT1').bq7
20 Senriccs in Jane of2006, but you had a s ide job as a 20 A. At this time. yes.
21 eompfia.nee administrator-or comptianoe officer-, and you 21 Q. But Brewer Loosing ha.< given up it3 TX DOT
22 were freelancing ro, various companies around town? 22 numbu?
23 A. Com::ct. 23 A. That"; correct.
2-1 Q. Did you make g01ld money a! it? 24 Q. Did Br25 A. I didn't -· lt didn't last ve.7 long. 23 Te.>ll.d Te.ta9 Stretch, lnc., prepared trunaaction
14 A. No, notto my knowledgo. l4 reports showing his pl!.}""..hecka. c~
lS Q. Woul.ditbe=ttouythatMr. Rilchcns 15 A. Om-eel.
16 applied for employrn=l D.ll what dtte? 15 Q. On lh~ day of the collision, June IS, 20~,
17 A. 4-10-~. 17 Mr. Hitebens was driving a load of fly ash from lhe
18 Q. Okay. Aprill0thof2006,Mr. Hitch= applied 18 Fayette Power Plant to the Campbdl Concrete in
19 foremploynu:ntwit~'> TexuS!retth,!nc. Correct? !9 Cleveload, Teus. Cornet? (lndicating.)
20 A. Cor=t. 20 A. Com:ct. .
21 Q. Te:25 A. I dod! aee that. 25 the dot:liDleiJ~ tb.at we jus< discussed with rc&afd to
Pa<;!C 34
1 Q. It c:uto£flbe 4, but uy looking right over 1 Mr. Hitcheru' employmc:al?
~ !here. flndicatina.) _!2_.........;A
~-~N~o:_!.l~i:s:!:ve~not.!!!!:__~-"7"-:-:::----:-:,--·l
3 A. Ycs. ~ Q. Wo-Jb! >"" agr= wilb m.c that 100 perunt of the
q Q. And - ond !hat te.•tsay> dull the eollection ' "''an
wrillm documen"'l\on incf.cAtcs !hot Mr. Hilot. n MS. Iill.TV: Ol:jeaioo, form.
12
u
Q. A.od it tays the ClU!O!l)et is Texas St7<:t<:b7
A. Co~Ttct. 13
..
LlD2i--~A.nY``-7.1iuiE!I~;c)c;;;;;;;;;;;;;;:-;~-;;;;~-
Q. (BY MR. ) Con you e"' of Browe:
l7 Q. ADd it S>ys at the top, the very fiutline. :7 Lea1ins?
lS Texu St.-eteh, lne. Correct? 18 ~HAYS: Again, to lbo extent that it
29 A. Cc.m....:t 19 callt for An)'1t\in.g h•ving communJca1lon;, with the lawyer,
20 Q. And witbjn the body of the d:x:umcnt, twice it 20 J jll$lwtntto mmndyro.ycu can~ testify to ic
?.l refen to Tau Stretch, Inc.? 21 Otherwise, wt.at yw havelook.d 01 u.d what you lt.ve
22 A. Correct. 22 rCviewod, youcen on.swc:r.
23 Q. Mr. "I:HtchC))S filled out on I-9 Depruttnent of 23 M!l PETERSON: And objoclion, form.
24 l U$1ice foan. (Indicating.) Cornet? 24 A. Can't :mswcr.
25 A. Correct. 25 Q. (BY MR. H.ERZOG) Any lawyer that $>J1>
9 (Pages 33 to 36 )
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