Opinion issued April 7, 2016

In The

Court of Appeals 

For The 

First District of Texas 

————————————

NO. 01-14-00013-CV

———————————

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), Appellants

V.

BREWER LEASING, INC., Appellee

On Appeal from the 334th District Court

Harris County, Texas

Trial Court Case No. 2011-64488

O P I N I O N
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This is a bill of review proceeding. On June 30, 2015, we issued an opinion 

reversing and remanding the trial court’s judgment on appellants’ fraud claim. We 

affirmed the remainder of the judgment.

Appellant filed a motion for rehearing, which we deny. We withdraw our 

June 30, 2015 opinion and issue this opinion in its stead to correct a clerical error 

and address appellants’ arguments on rehearing. Our June 30, 2015 judgment 

remains unchanged. 

BACKGROUND

Diane Patterson was killed on June 15, 2006 when her stationary vehicle was 

struck by an 18-wheeler truck driven by Charles Hitchens. Traffic had been 

stopped on Interstate Highway 10 by police officers escorting an oversized load 

onto the freeway. Witnesses testified, and the physical evidence confirmed, that 

Hitchens did not slow down from his 55-mile-per-hour speed before plowing into

Diane’s stopped car and hitting several other vehicles. 

THE 2006 LITIGATION

In Cause No. 2006-76647, the Patterson family sued Hitchens, Brewer 

Leasing, Inc., Texas Stretch, Inc., Ray Bellew & Sons, Inc., and Williams Brothers 

Construction Co., Inc. for wrongful death. It alleged that Texas Stretch was the 

company that hired Hitchens and that related-company Brewer Leasing owned or 

leased the tractor-trailer combination that Hitchens was driving. Texas Stretch had
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its TxDOT number, corporate logo, US DOT number, and ICC numbers on both 

sides of the tractor. A sign on both sides of the cab of the tractor also contained 

Brewer Leasing’s TxDOT number and corporate logo, and it stated “Leased to 

Brewer Leasing, Inc.” 

The Patterson family further alleged that defendants Ray Bellew & Sons and 

Williams were negligent in their oversight and moving of the large bridge beams 

onto the freeway that caused the freeway traffic to stop at the location of the 

accident. According to the Patterson family, that location was not a safe entrance 

ramp to bring such equipment on the freeway, and there should have been 

additional motorcycle police escorts used. 

On March 6, 2009, Brewer Leasing, Texas Stretch, and Hitchens filed a pretrial Joint Motion of Defendants to Exclude Evidence that Hitchens tested positive 

for cocaine after the accident. They represented in that motion that the amount of 

cocaine in Hitchens’s system had not been quantified and that there was no other 

evidence indicating that he was impaired. Because evidence of a drug or alcohol 

consumption is generally not admissible in an automobile-accident case unless 

there is also evidence of impairment that causes the accident, defendants argued 

that the positive drug test evidence should be excluded as highly prejudicial. On 

March 27, 2009, the trial court granted the motion to exclude this evidence. 
4

Williams Brothers and Ray Bellew & Sons each reached settlements with 

the Patterson family and were released. Two days before the April 6, 2009 trial 

setting, the Patterson family also reached a settlement with Texas Stretch requiring

money be paid to the Patterson family by or on behalf of Texas Stretch, Sagamore 

Insurance Company (Texas Stretch’s insurer), and Mr. A.B. Brewer (100% owner 

of Texas Stretch and Brewer Leasing). The terms of that agreement included:

A. Texas Stretch would pay the Patterson family $470,000 as follows: 

(1) $400,000 by Sagamore Insurance, (2) $25,000 by Texas 

Stretch, and (3) $45,000 over time by Texas Stretch, personally 

guaranteed by Mr. Brewer;

B. Texas Stretch was released;

C. Brewer Leasing would hire Mr. Herzog (the Patterson family’s 

attorney) to pursue Stowers and other claims against Home State

(Brewer Leasing’s insurer); and

D. Brewer Leasing would later assign its claims against Home State to 

the Patterson family. 

Claims against Brewer Leasing were not released as part of this settlement. 

Also as part of the settlement terms, Mr. Brewer was released from personal 

liability for future payments (his personal guarantee of some of Texas Stretch’s 

obligation excepted) and, thus, Brewer Leasing received a Covenant to Not 

Execute (even though Brewer Leasing was not a party to the settlement or a 

released party). 

The initial portion of the trial was had to the jury. During the second week, 

Ray Bellew & Sons settled. Hitchens had already stipulated to 100% fault and, 
5

with the Patterson’s family agreement, the jury was dismissed and the trial court 

heard the remainder of the evidence and closing arguments. A post-answer default 

judgment was taken against Brewer Leasing. The trial court’s findings of fact and 

conclusions of law included the findings that (1) Hitchens’s negligence was the 

sole cause of the accident, (2) Hitchens was employed by Texas Stretch, and (3) 

“both Brewer Leasing and Texas Stretch were, at the time of the events in 

question, the statutory employer of Charles Hitchens under the theory of logo 

liability.” On June 2, 2009, the trial court signed a final judgment (“2009 

Judgment”) memorializing the resolution of all the parties and claims, applying

various settlement credits, and then rendering judgment of approximately 

$8,000,000 in actual damages in favor of the Patterson family and against Brewer 

Leasing and Hitchens, jointly and severally. 

After the 2009 Judgment was entered, Mr. Herzog sent a statutory demand 

notice to Home State, on behalf of Brewer Leasing, based on his understanding 

that, under the parties’ settlement agreement, he was being hired by Brewer 

Leasing to represent it in a Stowers suit. A dispute then arose over Mr. Herzog’s 

proposed fees, and Brewer Leasing ultimately refused to hire him. Later, the 

Patterson family received an oral assignment of Brewer Leasing’s claims against 

Home State, and Mr. Herzog filed suit against Home State on behalf of the 
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Patterson family as assignees of Brewer Leasing. In October 2010, the Patterson 

family received a written assignment.

THE UNDERLYING BILL-OF-REVIEW PROCEEDINGS

In 2011, the Patterson family sued Brewer Leasing, alleging fraud in the 

2006 litigation. Specifically, the Patterson family alleged that Brewer Leasing had 

concealed evidence about the large amount of cocaine in Hitchens’s system at the 

time of the accident. According to the Patterson family, this deception induced the 

trial court in the 2006 litigation to exclude the evidence that Hitchens tested 

positive for cocaine two hours after the accident, and induced the Patterson family 

to accept settlement terms that they otherwise would not have accepted. 

Their bill-of-review petition alleged:

8. Plaintiffs obtained a favorable judgment [in Cause No. 2006-

76647 against Brewer Leasing], but were prevented from making a 

meritorious claim for punitive damages and obtaining a full recovery 

of actual damages by the extrinsic fraud of Defendant. Defendant 

fraudulently concealed knowledge of the massive level of cocaine in 

Charles Hitchens’s system at the time the tragic auto collision 

occurred. Brewer Leasing referred to “an allegedly positive drug test.”

Brewer Leasing hid the massive level (43,444 nanograms) from all 

plaintiffs and from some former defendants, then falsely claimed in 

writing to this Court just before the trial that there was “no evidence 

that Hitchens was impaired.” Knowing the urine test administered two 

hours after the wreck revealed a precise and massive level of 43,444 

nanograms, Brewer Leasing falsely wrote that the positive drug test 

“contained no quantification as to amount of cocaine found, if any.”

Brewer Leasing falsely concluded, “since there is no evidence that

Hitchens was impaired . . .” Brewer Leasing’s fraudulent 

misrepresentations constituted extrinsic fraud and a wrongful act.
7

9. The extent of the concealment is further revealed by Exhibit E 

to Brewer Leasing’s Motion to Exclude the positive drug test. In 

Exhibit E Assistant District Attorney Warren Diepram recounts how 

neither the Houston Police Department nor the Harris County District 

Attorney had been able to obtain the truth a year later, on June 21, 

2007. “It is unknown whether the private lab . . . quantified the 

amount. As of today, this information has not been obtained . . .” (See 

Exhibits 1, 2, 3, 4, and 5).

10. Brewer Leasing knew that 43,444 nanograms was a huge level 

of cocaine. Case law researched by Brewer Leasing’s counsel 

revealed toxicologist testimony that the following levels proved 

impairment: 756, 1194, 1363, over 2000, and 6206 nanograms. 

Nanograms of 12,500 were a “considerably high value,” and 26,720 

nanograms were “an immense concentration.” At 43,444 nanograms 

Charles Hitchens was massively impaired, Brewer Leasing knew it, 

and Brewer Leasing chose to conceal this truth and misrepresent the 

truth.

11. Plaintiffs were not at fault and were not negligent in failing to 

discover the truth. Plaintiffs, along with other plaintiffs and a 

defendant in the original proceeding, sent several discovery requests

to obtain information about the level of cocaine in Charles Hitchens’s 

system. Brewer Leasing made positive assertions to Plaintiffs and this 

Court that there was no evidence of the level of cocaine in Charles 

Hitchens’s system or impairment at the time of the collision. Brewer 

Leasing fooled the Houston Police Department, the Harris County 

District Attorney, all plaintiffs, two defendants, and Judge McCally.

. . . .

13. Plaintiffs have exercised due diligence. Due to Defendant’s 

fraudulent concealment and fraudulent misrepresentations, Plaintiffs 

were not aware that Defendant had knowledge of Charles Hitchens’s 

extraordinary cocaine level until concealed documents were 

reluctantly produced in Cause Number 2010-35479, a subsequent 

Stowers case based on the original proceeding. In the Stowers action, 

Plaintiffs gained access in late October and early November 2010 to 

information on the cocaine level that was previously concealed and 

that conclusively proved fraudulent misrepresentation. This 

information was not discovered until well after the deadlines for a 
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motion for new trial and an appeal had passed in 2006-76647. Now 

that Plaintiffs have discovered the fraud against them and this Court, 

Plaintiffs are seeking this Bill of Review to correct the injustice 

inflicted by the conscious acts of Defendant.

A. Patterson Family’s Theory of Liability against Brewer Leasing 

The Patterson family’s petition for bill of review set forth the following in a 

section entitled “Liability of Brewer Leasing” explaining their theory of liability:

20. On July 26, 2005 Texas Stretch, Inc. was the Lessor of a 2002 

Peterbilt Class 8 motor vehicle, YIN 1 XPSDB9X220528915, 

commonly called “a tractor” or “a power unit.” (Exhibit 302). Brewer 

Leasing, Inc. was the Lessee. Federal law, Texas law, and paragraph 8 

of the Lease make Brewer Leasing liable for any injury caused from

operation of the vehicle. Paragraph 2 required Brewer Leasing, as 

Lessee, to place signs on the vehicle showing it as leased to Brewer 

Leasing, Inc.: Brewer Leasing complied. Paragraph 5 specified that 

all drivers would be employees of Texas Stretch, Inc.: Brewer Leasing 

complied.

21. In April 2006 Texas Stretch hired Charles Hitchens as a driver. 

On Thursday, June 15, 2006, as an employee of Texas Stretch, driving 

with the permission of Texas Stretch and only Texas Stretch, under 

the dispatch of Texas Stretch, hauling a load for Texas Stretch, 

Charles Hitchens operated the 79,940 pound fully loaded leased 

vehicle while impaired by and under the influence of a massive 

amount of cocaine (43,444 nanograms or more of cocaine metabolite 

were in his system).

22. On June 15, 2006 Officer Stan Jolly stopped traffic on 1-10 just 

west of Highway 6. Visibility was perfect and the road was dry. 

Officer Jolly was in uniform and operating his motorcycle with his 

hazard flashers/emergency lights on. Eight vehicles stopped, blocking 

all three lanes of traffic. A ninth vehicle, operated by Jimmy 

Bimmage, began to enter I-10. Mr. Bimmage was operating with an 

oversize load permit. His oversized vehicle had approximately 50 

wheels, measured about 160 feet long, and weighed about 198,000 

pounds. Officer Robert Norris, also in uniform with his motorcycle 
9

hazard flashers/emergency lights on, was in the back of the eight 

stopped vehicles.

23. Sitting high up in the driver’s seat of his Class 8 motor vehicle, 

impaired by massive quantities of cocaine, Mr. Hitchens failed to see 

a 160 foot long 50 wheeled vehicle approaching from his right, eight 

stopped vehicles in front of him, or Officer Norris’ flashers-lights and 

hand signal. Driving at highway speed, without braking, in full view 

of numerous eyewitnesses who watched in horror, Mr. Hitchens 

slammed into the rear of Diane Patterson’s stationary Ford Expedition 

and then careened down the highway.

24. Over the course of the next few minutes Diane Patterson died, 

nine individuals were hurt, at least five vehicles were destroyed, and 

three more vehicles sustained damage.

25. Mr. Hitchens was negligent, and grossly negligent, in his 

operation of the vehicle leased by Brewer Leasing that displayed the 

Brewer Leasing logo. That negligence was a proximate cause of the 

collision and the death of Diane Patterson. Brewer Leasing is liable 

for all actual damages plus punitive damages of at most 400% of all 

actual damages. These actual damages include Diane Patterson’s pain 

and mental anguish before her death, funeral and burial expenses, and 

then for Marcus Patterson, Daniel Patterson and Danae Patterson all 

of the following in the past and in the future:

A. Pecuniary loss,

B. Loss of companionship and society, and

C. Mental anguish.

Marcus Patterson is also entitled to recover the fair market value of 

the Expedition destroyed in the collision.

26. Brewer Leasing is liable for Mr. Hitchens’ negligent driving 

behavior for these reasons:

A. The lease’s existence;

B. The specific provisions of the lease;
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C. The Brewer Leasing logo on both the driver and 

passenger’s side fuel tanks; and

D. Mr. Hitchens’ provision of a Brewer Leasing cab card to 

the police who investigated the collision.

27. Brewer Leasing is liable for Charles Hitchens’ gross negligence 

because Brewer Leasing ratified Charles Hitchens’ conduct. Brewer 

Leasing did or knew all of the following:

A. Knew a woman was killed in the collision;

B. Knew Charles Hitchens admitted fault at the scene;

C. Knew Charles Hitchens was drug tested about two hours 

after the collision;

D. Knew Charles Hitchens admitted to a private investigator 

the day after the collision to recent cocaine use;

E. Knew the vehicles driven by Charles Hitchens on June 

15, 2006 were not scheduled vehicles (tractor or trailer) 

on the Texas Stretch insurance policy with Sagamore

Insurance Company;

F. Knew the vehicles driven by Charles Hitchens on June 

15, 2006 were scheduled vehicles on the Brewer Leasing 

policy with Home State County Mutual Insurance

Company; and

G. Knew Charles Hitchens was an employee of Texas 

Stretch and never of Brewer Leasing.

Armed with these facts and the resulting fear of no insurance 

coverage, or inadequate coverage, Brewer Leasing took the following 

actions ratifying Mr. Hitchens’ conduct:

H. Falsely claimed in a recorded call with a Sagamore 

adjuster that Charles Hitchens was a Brewer Leasing 

employee;

I. Produced Charles Hitchens’ employee file, thereby subtly 

implying Charles Hitchens was their employee;
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J. Implemented a plan to fraudulently misrepresent and 

conceal the level of cocaine revealed by Charles 

Hitchens’ drug test;

K. Implemented a plan to lie and distort the truth to defraud 

the injured parties, this Court, and the Harris County 

District Attorney’s office, so that their ratification of

Charles Hitchens’s conduct would have no financial 

impact or a lesser financial impact on Brewer Leasing 

and their insurance company; and

L. Conceal their fraud and their cover-up by destroying 

some of the files relating to Charles Hitchens in 

conjunction with others and concealing the rest of the 

damaging evidence.

28. Brewer Leasing’s actual, constructive, and extrinsic fraud, and 

wrongful acts (including all acts listed in paragraph 27) also 

proximately caused damages to the Patterson family, including but not 

limited to expenses incurred that would not have been incurred had 

the fraud not occurred. In addition to obtaining relief in their Bill of 

Review, in accordance with Texas case law the Patterson family seeks 

a recovery of these actual damages.

B. Relief Sought against Brewer Leasing

As relief, the Patterson family sought an order (1) voiding the Covenant not 

to Execute previously executed in favor of Brewer Leasing as part of the 2009 

settlement, (2) voiding the assignment of claims against Home State from Brewer 

Leasing to the Patterson family, and (3) voiding the June 2, 2009 Judgment as it 

relates to Brewer Leasing. The Patterson family also sought a new judgment 

against Brewer Leasing for negligence, gross negligence, and fraud. 
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C. The Agreed Partial Judgment

On July 2, 2012, the trial court signed an Agreed Partial Judgment granting 

the Patterson family some of their requested relief and setting a trial date to try 

their claims against Brewer Leasing:

Defendant BREWER LEASING, INC., without admitting or 

denying Plaintiffs’ allegations in Plaintiffs’ Original Petition . . . ha[s] 

agreed that judgment should be entered herein in favor of Plaintiffs . . 

. and against BREWER LEASING, INC. (hereinafter “Defendant”), 

with respect to three issues. It is accordingly

ORDERED, ADJUDGED AND DECREED by the Court that 

the Judgment signed June 2, 2009 in Cause No. 2006-76647 styled 

Marcus Brent Patterson, Individually, as Independent Executor of the 

Estate of Diane Patterson and as Next Friend of Daniel Patterson and 

Danae Patterson is hereby set aside, null and void ab initio, and of no 

legal effect for any purpose. It is further

ORDERED, ADJUDGED, and DECREED that the Covenant to 

Not Execute and all prior oral and written assignments of causes of 

action by Brewer Leasing, Inc. to the Pattersons are hereby set aside, 

null and void ab initio, and of no legal effect for any purpose

Plaintiff shall be GRANTED the right to fully retry their claims 

against BREWER LEASING, INC. and the case is set for trial on the 

two week docket beginning the 15th day of October, 2012.

D. The Trial

A week-long trial was held. Hitchens pleaded the Fifth Amendment, but his 

stipulation admitting that his negligence caused the accident was admitted at trial. 

The Patterson family’s theory of the case was that Brewer Leasing was primarily 

responsible for Hitchens’s negligence as lessee of the truck he was driving and, 

additionally, that Brewer Leasing ratified Hitchens’s actions. Brewer Leasing’s 
13

position was that it was not responsible, as it was only the owner, not the lessee, of 

the truck1; it instead argued that Texas Stretch (as Hitchens’s employer and the 

truck operator), Hitchens (as the driver), and Ray Bellow & Sons (as the company 

that caused the slow-down on the freeway) were responsible. Accordingly, the 

bulk of the trial testimony and evidence centered on (1) who owned or leased the 

truck on June 15, 2006—the day of the accident, and (2) damages suffered by the 

Patterson family. Relevant to the ownership/leasing question:

Lonnie Box – Box testified that he is General Manager of both Texas 

Stretch, Inc. and Brewer Leasing, Inc. He started work at both companies in July 

2006, shortly after the accident. He is considered the “number two guy” in charge 

at both companies, with the owner, Mr. Brewer, being President and the number 

one in charge of both. Box testified that, to his knowledge, Mr. Brewer owned 

100% of both Texas Stretch and Brewer Leasing. 

Box testified that Brewer Leasing had its logo and TxDOT number painted 

on the side of the truck Hitchens was driving the day of the accident. Box 

acknowledged a written July 26, 2005 lease agreement under which Texas Stretch 

leased the tractor to Brewer Leasing. Box explained that leases of tractors have to 

be in writing under federal law. The lease contains no expiration date, and states 

that it “shall be in full force and effect until terminated by either party hereto, but 

 

1 This was apparently a change in position, as Brewer Leasing had previously 

contended that it was the lessee of the truck. 
14

not less than 30 days by written notice delivered by either party . . . ” Box testified 

that he had never seen a written notice terminating the lease, and that neither Texas 

Stretch nor Brewer Leasing had produced one in this litigation. 

Box also explained that the Federal Motor Carriers Safety Act requires 

owners, lessors, and lessees to put their name and logo on the side of rigs to 

“identify equipment and who the operating company is.” He further testified that, 

based on the signage on the truck Hitchens was driving, both Texas Stretch and 

Brewer Leasing would be responsible for Hitchens’s actions:

Q. And they also paint their specific unique identifying 

number with the agencies, correct?

A. That’s correct.

Q. The tractor involved in this collision had Texas DOT 

numbers and U.S. DOT numbers on both the driver and passenger 

side of the vehicle, true?

A. To my knowledge, yes.

Q. And what effect do you understand that has by putting 

your name, your logo and your identifying federal and state 

registration numbers on the side of the vehicle? What effect does that 

have if the vehicle is in a wreck?

A. That is the operating company that is responsible for the 

movements of that vehicle.

Q. And, therefore, responsible for any injuries caused by the 

negligent operation of the vehicle, correct?

A. Correct.

Q. Can we agree that if Mr. Hitchens did anything wrong on 

June 15, 2006 in his operation of the motor vehicle, Texas Stretch and 

Brewer Leasing are both responsible for his actions?

A. Yes.
15

Brewer Leasing also played clips from Box’s deposition, during which Box 

testified that Texas Stretch was Hitchens’s employer at the time of the accident. 

He also testified that Texas Stretch sold the truck to Brewer Leasing in 2005 and 

then Texas Stretch leased the truck from Brewer Leasing. 

A.B. Brewer – Mr. Brewer testified that he has always been the 100% owner 

and President of both Texas Stretch and Brewer Leasing. He testified that Brewer 

Leasing owned the truck that Hitchens was driving and that—despite the lease 

reflecting otherwise—it was leased from Brewer Leasing to Texas Stretch, not the

other way around:

Q. You heard Mr. Box testify that based on his 

understanding of the facts as your general manager, if Mr. Hitchens 

driving behavior was inappropriate, both Texas Stretch and Brewer 

Leasing are responsible for Mr. Hitchens. Do you agree with Mr. Box 

on that point?

A. Yes.

Q. Okay. So will you now accept responsibility on behalf of 

the Brewer Leasing for the death of Diane Patterson?

A. Well, the only thing about it, Brewer Leasing was not 

operating the truck. Texas Stretch was.

Q. Yes, sir.

A. And Brewer Leasing just leased the truck to Texas 

Stretch.

Q. And do you have a written lease from Brewer Leasing to 

Texas Stretch?

A. That I’m pretty sure we do. But I didn’t do none of that 

work. Doug Shelby and my brother supposed to took care of all that.
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Q. Okay. In the seven years this case has been pending since 

Diane died, have you ever produced a written lease from Brewer 

Leasing to Texas Stretch?

A. I don’t know.

. . . .

Mr. Brewer also testified that, in 2006, Texas Stretch and Brewer Leasing 

operated out of the same office with the same officers serving each company, 

although he denied that Texas Stretch ever did business as Brewer Leasing. When 

asked about defense exhibits indicating that Texas Stretch, not Brewer Leasing, 

owned the truck in on February 16, 2005, Brewer stated “It says here it did, but I 

don’t know how they did it.” When asked about the logos on the side of the truck 

indicating that the truck was leased to Brewer Leasing on the day of the accident 

(almost nine months after Mr. Brewer claimed Brewer Leasing became the owner), 

Mr. Brewer responded: “I can’t tell you.” 

Exhibits – Relevant to the issue of who owned or leased the truck, the 

following exhibits were admitted:

February 16, 2005 Texas Department of Transportation “License Cab Card” 

identifying Texas Stretch as both “registrant” and 

“owner” of truck;

July 26, 2005 lease agreement between Texas Stretch as “owner” and 

Brewer Leasing as “lessee” of truck;

Sept. 28, 2005 State of Texas Certificate of Title identifying Texas 

Stretch as “previous owner,” and Brewer Leasing, as 

“owner” of truck;
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January 20, 2006 State of Oklahoma Certificate of Title for Heil trailer 

identifying Brewer Leasing as “owner”;

June 15, 2006 photo of truck from accident scene showing “Texas 

Stretch” logo on side of the truck, along with a sign 

reading “leased to Brewer Leasing”;

June 15, 2006 “Texas Peace Officers Crash Report” identifying “Texas 

Stretch” as owner of truck; and

June 15, 2006 “Houston Police Department Truck Enforcement Unit” 

citation and “Out of Service Notice” identifying Brewer 

Leasing as “owner” of truck and Texas Stretch Inc. as 

“lessee/mc.”

E. The Verdict

The jury found that Diane’s death was caused 100% by Hitchens’s gross 

negligence, and awarded to the Patterson family actual and punitive damages. The 

jury answered the only two questions about Brewer Leasing in Brewer Leasing’s 

favor:

Question No. 1

Was the tractor driven by Charles Hitchens on June 15, 2006 

leased to Brewer Leasing, Inc.?

Answer: No

Question No. 8

Do you find my clear and convincing evidence that Brewer 

Leasing, Inc. ratified or approved the gross negligence of Charles 

Hitchens?

Answer: No
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F. The Judgment 

Post-trial, the Patterson family took the position that because the jury found 

Brewer Leasing was not the lessee of the truck on June 15, 2006, Brewer Leasing 

should be held responsible as the owner of the truck. Specifically, it filed a Motion 

for Entry of Judgment, arguing that Brewer Leasing is vicariously liable for 

Charles Hitchens’s negligence because (1) the evidence conclusively proved that 

Brewer Leasing owned the Heil trailer Hitchens was pulling and that trailer 

qualified as a commercial motor vehicle, and (2) Brewer Leasing is judicially 

estopped to deny ownership of the tractor negligently operated at the time of the 

collision. 

Brewer Leasing also filed a motion requesting that the trial court enter a 

take-nothing judgment on the jury’s verdict in favor of the defendants.

The Patterson family then filed a motion to amend their pleadings, to add 

two theories against Brewer Leasing, i.e. (1) “Brewer Leasing owned the Heil 

trailer, a commercial motor vehicle operated negligently at the time of the collision 

while not leased by or insured by Texas Stretch;” and (2) “Brewer Leasing is 

judicially estopped to deny ownership of the Peterbilt tractor negligently operated 

at the time of the collision while not leased by or insured by Texas Stretch.” That 

motion argued that the Patterson family’s pleading gave fair notice that they sought 

to hold Brewer Leasing vicariously liable for Hitchens’s actions. 
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On September 19, 2013, the trial court denied the Patterson family’s motion 

to amend their pleadings, and entered a take-nothing Final Judgment.

The Patterson family filed a Motion to Correct Judgment, Modify Judgment, 

Judgment JOV, or New Trial.2 That motion argued that there “are five legal issues 

that this Court needs to resolve”:

A. Brewer Leasing’s liability as owner of the Peterbilt tractor,

B. Brewer Leasing’s liability as owner of the Heil trailer,

C. Brewer Leasing’s liability if they were the lessee of the Peterbilt 

tractor (and not the owner),

D. The Court’s failure to try the fraud claim, and

E. The reversal of the issues correctly resolved in the agreed 

interlocutory order.

The Patterson family argued that the trial court should grant JNOV on the 

jury’s finding that Brewer Leasing was not the lessee of the tractor on the day of 

the accident. Alternatively, it contended that it had adequately pleaded that Brewer 

Leasing was liable as the owner of the tractor and that, in any event, the trial court 

had abused its discretion by denying their motion to amend their pleadings to 

allege such liability. 

The Patterson family also argued that the trial court erred in granting a final 

judgment without resolving their pleaded fraud claim against Brewer Leasing. 

They point to discussion at the pre-trial conference during which the trial court 

 

2 This motion was heard by a different judge than had tried the case. 
20

refused to admit several exhibits in support of their fraud claim because the trial 

would be limited to the wrongful death claims.

The Patterson family further contended that the final judgment erroneously 

reversed the terms of the parties’ Agreed Interlocutory Order, and that the 

judgment conflicts with portions of the 2009 judgment. Their motion summarized 

their position and relief sought as follows:

This is a Bill of Review case. Portions of the underlying 2009 

judgment have never been attacked. The final judgment in this case 

needs clarity on which portions of the underlying judgment survive 

and which portions are reversed. Today there are two judgments: one 

says Brewer Leasing owes $8.8 million, one says Brewer Leasing 

owes nothing but leaves the first judgment intact, and both are wrong. 

Brewer Leasing was the lessee of the tractor on June 15, 2006 as a 

matter of law, therefore a judgment non obstante veredicto is a proper 

procedural remedy. In the alternative, if Brewer Leasing wants to be 

the owner, then with no written lease to anyone Brewer Leasing is 

liable as the owner and the judgment can be corrected.

Brewer Leasing is liable as the owner of the trailer with no 

written lease to anyone and thus the judgment can be corrected.

Although no trial amendment is necessary, the Patterson family 

is entitled to one and their motion can still be granted.

The relief granted in the Agreed Interlocutory Order needs to be 

carried forward into a final judgment.

This Court has the plenary power to remedy all of these errors.

If the judgment is reversed and judgment is entered for the 

Patterson family, the Patterson family will formally non-suit the fraud 

cause of action (with the consent of Brewer Leasing and this Court). If 

not, the Patterson family retains their right to try their fraud claim 

separately and the judgment should be revised to reflect its 

interlocutory nature.

As a last resort, if the Court desires, a new trial may be given 

on either the limited issue of Brewer Leasing’s liability for 100% 
21

driver negligence, ratification of gross negligence and fraud, or a new 

trial may be ordered on all issues.

WHEREFORE, the Patterson family prays that this Court do 

one of the following:

1. A. Reverse the current judgment,

B. Grant leave for a trial amendment, and

C. Enter a judgment that:

1. Holds Brewer Leasing liable,

2. Clarifies which portions of the 2009 judgment are 

set aside and which portions are undisturbed, and

3. Finalizes the relief granted in the Agreed 

Interlocutory Order; or

2. A. Reverse the current judgment,

B. Enter a judgment that:

1. Holds Brewer Leasing liable,

2. Clarifies which portions of the 2009 judgment are 

set aside and which portions are undisturbed, and

3. Finalizes the relief granted in the Agreed 

Interlocutory Order; or

3. Grant a new trial on the limited issues of Brewer Leasing’s 

liability for 100% driver negligence, ratification of gross 

negligence, and fraud; or

4. Grant a new trial on all issues.

The Patterson family’s motion was overruled by operation of law, and they 

timely appealed. 

THIS APPEAL

The Patterson family raises two issues here:

1. “Is the owner of an unleased tractor and trailer liable when the 

driver is found negligent and 100% at fault?”
22

2. “May a trial court summarily enter judgment denying all relief 

for a properly plead fraud claim without a motion for summary 

judgment, evidence, or a trial on the issues?”

Brewer Leasing’s appellee’s brief states, in its entirely, 

Pursuant to Texas Disciplinary Rule 2.02, Brewer Leasing and its new 

counsel of record notify this court that previous testimony of Mr. 

Brewer, Mr. Box and Mr. Yovanovic regarding stock ownership in 

Brewer Leasing was false. The true facts are herein disclosed. 

In chronological order, the false testimony was as follows:

1. March 2009 deposition by Mr. Box, in which he testified 

that Mr. Brewer owned 100% of the stock in Brewer Leasing (Page 

13, lines 11-14). Mr. Box was the general manager of Brewer 

Leasing.

2. March 2009 deposition by Mr. Yovanovic, the CPA for 

Brewer Leasing, in which he testified that Mr. Brewer owned 100% of 

Brewer Leasing (Page 14, lines 19-21).

3. March 2009 deposition by Mr. A. B. Brewer in which he 

testified that he owned 100% of Brewer Leasing (Page 16, lines 17-

19).

4. Trial testimony by Lonnie Box in which excerpts from 

his deposition were played in August, 2013 (Vol. 4 RR 141).

5. Trial testimony by Mr. A.B. Brewer in which he testified 

live that he owned 100% of Brewer Leasing in August, 2013 (Vol, 6 

RR70).

Within the last 30 days the stock certificates of Brewer Leasing have 

been produced to the new counsel; they reflect that prior to January 1, 

2008 Mr. Brewer owned 100% of the stock in Brewer Leasing, but 

that on that date he conveyed all of his stock in Brewer Leasing to 

Texas Stretch, Inc. Relying on the record of the stock certificates of 

Brewer Leasing, the aforesaid testimony of Messers. Box, Brewer and 

Yovanovic was false.
23

In light of the previous fraudulent concealment of the cocaine level of 

the driver, Mr. Charles Hitchens, at the time of the accident and now 

this false testimony about stock ownership of Brewer Leasing, Brewer 

Leasing stands on its previous briefing in this case as written by prior 

counsel as contained in the record.

LIABILITY OF BREWER LEASING 

In its first issue, the Patterson family asks us to find that Brewer Leasing is 

vicariously liable for Hitchens’s negligence, despite the jury failing to find that 

Brewer Leasing was lessee of the truck Hitchens was driving and failing to find 

that Brewer Leasing had ratified Hitchens’s gross negligence. 

The Patterson family reasons that, based upon Brewer Leasing’s 

representations and evidence at trial, Brewer Leasing owned the tractor and 

trailer—both regulated vehicles—and that ownership creates liability. While it

acknowledges that liability created by ownership can be shifted to a lessee through 

a lease, the Patterson family points out that there was no lease produced in 

discovery or introduced into evidence shifting liability to any other entity. Thus, it

contends, Brewer Leasing as “the tractor or trailer owner is vicariously liable as a 

matter of law to the general public.” 

The Patterson family also emphasizes that Texas Stretch and Brewer 

Leasing were owned by the same person, shared officers and employees, operated 

out of the same office, and—for at least some purposes—operated as one 

company. Specifically, it cites a Commercial Lines Insurance Policy Declarations 
24

Page entered into evidence identifying, as the insured, “Texas Stretch, Inc. d/b/a 

Brewer Leasing, Inc.” According to the Patterson family, allowing Brewer 

Leasing to escape liability in this circumstance would thwart the policy goals 

behind trucking legislation designed to protect the public from accidents, prevent 

public confusion, set responsibility when accidents occur, and provide for 

financially responsible defendants. See 37 TEX. ADMIN. CODE § 4.11 (Tex. Dep’t 

of Public Safety, Transportation Policy). 

The Patterson family further contends that its pleadings were adequate to 

give Brewer Leasing fair notice that they sought to hold Brewer Leasing 

vicariously responsible for Hitchens’s actions. And it asserts that Brewer 

Leasing’s liability as owner was tried by express or implied consent. 

Alternatively, it argues that, if the pleadings were inadequate, it was reversible 

error for the trial court to refuse to grant a trial amendment post-verdict, but before 

judgment was entered. 

The trial “court shall submit the questions, instructions and definitions in 

[broad form] that are raised by the written pleadings and the evidence.” TEX. R.

CIV. P. 278. The party seeking to hold a third-party responsible under a respondeat 

superior theory has the burden of securing a jury finding on that theory if not 

conclusively established by the evidence. J&C Drilling Co. v. Salaiz, 866 S.W.2d 

632 (Tex. App.—San Antonio 1993, no pet.) (“Because appellees did not submit 
25

any questions necessarily referable to recovery under respondeat superior, and 

because they did not conclusively establish or even raise a fact issue that Gonzales 

was acting in the course and scope of his employment, the judgment against J & C 

cannot rest on the theory of respondeat superior.”); Hooper v. Torres, 790 S.W.2d 

757, 759 (Tex. App.—El Paso 1990, writ denied) (“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 . . . .”).

“Upon appeal all independent grounds of recovery or of defense not 

conclusively established under the evidence and no element of which is submitted 

or requested are waived.” TEX. R. CIV. P. 279; Robertson v. Odom, 296 S.W.3d 

151, 159 (Tex. App.—Houston [14th Dist.] 2009, no pet.) (“Robertson did not 

submit a properly-worded question, and did not request a jury submission on 

agency or respondeat superior, in support of his claim that Odom was vicariously 

liable for Barnes’s misrepresentation[;] . . . . Therefore, he has waived any 

complaint about the failure to submit Odom’s vicarious liability to the jury.”).

The Patterson family’s brief argues:

3. As owner, Brewer Leasing never leased either vehicle.

There is no written lease from Brewer Leasing of the Heil 

trailer or Peterbilt tractor, either in discovery or in evidence. If either 

vehicle was leased, a written lease with precise and detailed 

provisions is required by both federal and state law. 49 USC 10927, 
26

11107, and 14102; 49 CFR 376.11, 1057; 37 Tx. Administrative Code 

4.11. If an owner rents the vehicle then the owner is not liable, but 

Brewer Leasing never availed itself of this relief. 49 USC 30106.

4. Ownership without a lease equals liability.

The only entity with any legal connection to the Peterbilt tractor 

or Heil trailer on the date of the collision is Brewer Leasing. 

Therefore Brewer Leasing is liable for the collision.

This argument rests upon three premises, i.e., (1) the evidence conclusively 

established that Brewer Leasing owned the tractor and trailer Hitchens was driving 

(or, alternatively, that Brewer Leasing is estopped from arguing that it did not own 

the tractor and trailer), (2) there was no written lease shifting liability for 

Hitchens’s action to a third party, and (3) without a written lease transferring 

control and liability to a third party, Brewer Leasing is vicariously liable for 

Hitchens’s actions as a matter of law. Thus, according to the Patterson family, its 

failure to secure a jury finding that Brewer Leasing was the lessee is of no matter 

because judgment should have entered against Brewer Leasing as the owner of the 

unleased tractor and trailer. 

This argument erroneously assumes that, absent a valid written lease to 

Texas Stretch in evidence, no lease agreement exists for purposes of shifting 

liability away from Brewer Leasing as owner of the tractor and trailer. 

As the Patterson family acknowledges, under federal law, the owner of a 

vehicle may shift liability to a lessee that operates the vehicle: 

§ 30106. Rented or leased motor vehicle safety and responsibility
27

(a) In general.—An owner of a motor vehicle that rents or 

leases the vehicle to a person (or an affiliate of the owner) shall not be 

liable under the law of any State or political subdivision thereof, by 

reason of being the owner of the vehicle (or an affiliate of the owner), 

for harm to persons or property that results or arises out of the use, 

operation, or possession of the vehicle during the period of the rental 

or lease, if–

(1) the owner (or an affiliate of the owner) is engaged in the 

trade or business of renting or leasing motor vehicles; and

(2) there is no negligence or criminal wrongdoing on the part of 

the owner (or an affiliate of the owner).

49 U.S.C. § 30106. 

But the Patterson family emphasizes that, by statute, a lease that shifts

liability from the owner of equipment to a carrier must be in writing and contain 

certain information about parties’ responsibilities. 49 C.F.R. § 376.11 (“There 

shall be a written lease . . . . ); Id. § 376.12 (setting forth requirements for lease); 

37 TEX. ADMIN. CODE §4.11(a) (incorporating, by reference, Title 49, Code of 

Federal Regulations). Thus, it insists, because there was no written lease in 

evidence shifting liability away from Brewer Leasing, there was no lease as a 

matter of law and liability stays with Brewer Leasing. 

However, several courts have considered and rejected the argument that 

noncompliance with the regulation requiring that every lease be in writing renders 

such lease ineffectual. For example, in Shimko v. Jeff Wagner Trucking, LLC, the 

federal district court recognized that testimony about an oral lease agreement 

created a fact issue about the existence of that lease, despite its violating the “in 
28

writing” requirement of 49 C.F.R. § 376.11 (the same section relied upon by the 

Patterson family): 

A more difficult, factual question is whether Shimko “leased” the 

equipment back to defendants under the regulations. Certainly, no 

formal, written lease existed in which Shimko granted use of the truck 

and trailer to defendants. However, “lease” is a term of art under the 

Truth–in–Leasing regulations and is defined as “[a] contract or

arrangement in which the owner grants the use of equipment, with or 

without driver, for a specified period to an authorized carrier for use 

in the regulated transportation of property, in exchange for 

compensation.” 49 C.F.R. § 376.2(e) (emphasis added). The 

Bonkowski court held that an informal oral arrangement can, 

therefore, constitute a “lease” subject to the regulations. 2004 WL 

524723, at *3 (“The arrangement, as described and documented at 

trial, met [the definition of ‘lease.’] . . . Because the agreement was 

entirely oral, it violated the regulations.”). In its previous opinion 

granting Shimko leave to amend his complaint, this court agreed. (See 

Mar. 10, 2014 Opinion & Order (dkt.# 29) 5–6.)

Defendants contend that there was no informal leaseback 

arrangement. . . . Of course, Shimko has offered his own sworn 

testimony that directly contradicts defendants’ on key facts, and the 

court must credit Shimko’s version at summary judgment, as well as 

draw all reasonable inferences in his favor. . . . Crediting Shimko’s 

testimony, a reasonable trier of fact could certainly find that the 

parties had “arranged” a de facto “leaseback” of the truck and trailer 

by Shimko to defendants for use in their motor carrier business.

No. 11-cv-831-wmc., 2014 WL 7366190, at *4 (W.D. Wisc. Dec. 24, 2014); see 

also Luizzi v. Pro Transport, Inc., No. 02-CV-5388(CLP), 2013 WL 3968736, at 

*20 (E.D.N.Y., July 31, 2013) (rejecting argument that noncompliance with § 

376.12(b) renders lease unenforceable); Hunt v. Drielick, 852 N.W.2d 562, 569 n.8 

(Mich. 2014) (“Specifically, 49 C.F.R. § 376.11 and 49 C.F.R. § 376.12 require 
29

that if a semi-tractor owner leases its equipment to a carrier, a written lease 

agreement must be executed[;] . . . . However, the fact that no written lease was 

entered into in this case does not preclude the trial court on remand from 

concluding that a lease was in fact entered into. See Wilson v. Riley Whittle, Inc., 

701 P.2d 575 (Ariz. Ct. App. 1984) (explaining that “the absence of a written trip 

lease is legally irrelevant”)”). 

At trial, Mr. Brewer testified that Texas Stretch was operating the truck on 

the day of the accident, under a lease from Brewer Leasing:

“Brewer Leasing was not operating the truck. Texas Stretch 

was. And Brewer Leasing just leased the truck to Texas Stretch.”

“Brewer Leasing was a leasing company, leased the equipment 

to Texas Stretch.”

. . . .

Q. Right. Your goal, as I understand it, was to put all assets 

into Brewer Leasing and have all equipment titled to Brewer Leasing, 

correct?

A. Yes, sir.

Q. On the date this accident occurred, who was the operator of 

the vehicle?

A. Texas Stretch.

Q. Who employed the driver?

A. Texas Stretch.

Q. Who did all the hiring for drivers?

A. Texas Stretch.
30

Q. Who dispatched?

A. Texas Stretch.

Q. So Mr. Hitchens would receive a dispatch from Texas 

Stretch to go pick up a load, correct?

A. Yeah, he was dispatched, he was paid through Texas Stretch.

Mr. Brewer testified at trial that he was “pretty sure” there was a written 

lease under which Brewer Leasing leased the equipment to Texas Stretch. 

Who owned and operated the truck and trailer was a hotly disputed at trial, 

and this testimony is some evidence that the equipment was leased from Brewer 

Leasing to Texas Stretch. Because the lack of a written lease in evidence does not 

conclusively negate the existence of a lease, the Patterson family did not 

conclusively establish Brewer Leasing’s liability as the owner of unleased

equipment. Accordingly, the theory that Brewer Leasing is vicariously liable for 

Hitchens’s actions as an owner was waived by the Patterson family’s failure to 

secure a jury submission about the existence or nonexistence of a lease. See, e.g., 

Jerry L. Starkey, TBDL, L.P. v. Graves, 448 S.W.3d 88, 102 (Tex. App.—Houston 

[14th Dist.] 2014, no pet.) (theory not conclusively established was waived by 

failure to request submission to the jury).

We overrule the Patterson family’s first issue. 
31

FRAUD 

In its second issue, the Patterson family argues that the trial court erred by 

entering judgment on its fraud claim. It notes that it “plead a claim for monetary 

relief for fraud in addition to bill of review relief,” but was deprived of the 

opportunity to try the fraud claim. We agree.

The Patterson family’s petition sets forth the following fraud claim:

Brewer Leasing’s actual, constructive, and extrinsic fraud, and 

wrongful acts (including all acts listed in paragraph 27) also 

proximately caused damages to the Patterson family, including but not 

limited to expenses incurred that would not have been incurred had 

the fraud not occurred. In addition to obtaining relief in their Bill of 

Review, in accordance with Texas case law the Patterson family seeks 

a recovery of these actual damages.

At the pre-trial hearing, there was an extensive discussion about this claim. 

The Patterson family argued that it needed to introduce exhibits to support its

claim, while Brewer Leasing argued that the evidence did not support a fraud 

claim. The trial court expressed doubt that the Patterson family’s theory was valid 

as a fraud claim and opined that the theory was more suited to a request for 

sanctions. 

Ultimately, the trial court ruled that the fraud case would be disposed of 

separately:

THE COURT: Well, it’s something else, but it is not a fraud 

claim. And, if you can convince me otherwise, then we’ll sever it, but 

we’re going to try the wreck in your 15 hours, I think.
32

The trial court excluded any evidence that was related to just the fraud 

claim. Later, Brewer Leasing’s attorney verified that the fraud case was not being

tried: 

[Brewer Leasing’s counsel]: Well, just for clarification, Judge, 

fraud is not going to be tried as a part of this automobile wreck and 

wrongful death case?

THE COURT: Uh-huh. I think that’s right.

At trial, Brewer Leasing continued to object to exhibits related only to the 

Patterson family’s fraud claim, because they were “outside the scope of what this 

trial is about.”

The Final Judgment expressly disposes of all claims against Brewer Leasing, 

ORDERED, ADJUDGED AND DECREED that Plaintiffs shall 

Take Nothing from Defendant and Judgment shall be entered against 

the Plaintiffs as to all of their claims against Brewer Leasing, Inc. and 

Defendant, Brewer Leasing, Inc. is hereby dismissed, acquitted and 

fully discharged from all liability to the Plaintiffs.

Generally, any independent claim not submitted to the jury is waived. Gulf 

States Util. Co. v. Low, 79 S.W.3d 561, 571 (Tex. 2002); see also Ramos v. FritoLay, Inc., 784 S.W.2d 667, 668 (Tex. 1990) (“If an entire theory were omitted from 

the charge it would be waived; and Frito–Lay would indeed have no duty to 

object.”). 

The trial court has broad discretion to sever, see TEX. R. CIV. P. 41, or order 

separate trials on certain claims. TEX. R. CIV. P. 174(b); Allstate Ins. Co. v. Hunter, 

865 S.W.2d 189, 191 (Tex. App.—Corpus Christi 1993, no pet.). The trial court 
33

expressed its intention to do so here, telling the parties pretrial (as well as in ruling 

on objection during trial) that it would not try the Patterson family’s fraud claim 

with its wrongful death claim. And, while the court expressed skepticism about 

whether the Patterson family had a cognizable fraud claim, the court did not 

purport to dispose of this claim as a matter of law after affording the Patterson 

family an opportunity to present evidence either in a summary-judgment 

proceeding or trial.

After the trial court entered a final, take-nothing judgment, the Patterson 

family filed a motion for JNOV and new trial, complaining that the trial court 

should not have entered judgment on its fraud claim. Because the trial court’s final 

judgment disposed of an unresolved claim, we sustain the Patterson family’s 

second issue, reverse the trial court’s judgment and remand for consideration of its

fraud claim. 

CONCLUSION

We reverse the trial court’s judgment on the Patterson family’s fraud claim 

and remand that claim for further proceedings. We affirm the remainder of the 

trial court’s judgment. 

OPINION ON REHEARING

The Patterson family filed a motion for rehearing of the Court’s opinion on

two grounds: “(1) the Court’s opinion erroneously fails to hold Brewer Leasing 
34

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.”3

As noted in the Court’s original opinion, the Patterson family requested only 

two jury questions related to Brewer Leasing’s liability be submitted to the jury. 

These questions went to the Patterson family’s theory of liability against Brewer 

Leasing that it was responsible, as the leasee and operator of the tractor, for the 

driver Hitchins’s conduct. In contrast, Brewer Leasing argued that it owned the 

tractor, but that it had leased it to Texas Stretch, making Texas Stretch instead 

liable as the operator. The jury accepted Brewer Leasing’s theory, and found 

against the Patterson family on both counts, answering (1) “no” to the question of 

whether “the tractor driven by Charles Hitchens on June 15, 2006 was leased to 

Brewer Leasing,” and (2) “no” to whether “Brewer Leasing, Inc. ratified or 

approved the gross negligence of Charles Hitchens.” 

Given these two negative findings, the Patterson family then argued to the 

trial court—and on appeal—that, if the tractor was not leased to Brewer Leasing as 

Brewer Leasing contended, Brewer Leasing was nonetheless liable for Hitchens’s

 

3 Brewer Leasing filed a response that does not cite any authority, but generally 

agrees with the Patterson family. 
35

actions as a matter of law because (1) Brewer Leasing owned the tractor and trailer 

(rather than being the leasee/operator), and (2) there was no written lease shifting 

liability from it as owner to a different operator. They asserted in their appellants’ 

brief that this result was mandated by both federal and state law:

There is no written lease from Brewer Leasing of the Heil trailer or

Peterbilt tractor, either in discovery or in evidence. If either vehicle 

was leased, a written lease with precise and detailed provisions is 

required by both federal and state law. 49 USC 10927, 11107, and 

14102; 49 CFR 376.11, 1057; 37 Tx. Administrative Code 4.11. If an 

owner rents the vehicle then the owner is not liable, but Brewer 

Leasing never availed itself of this relief. 49 USC 30106. . . . 

Ownership without a lease equals liability.

This same argument forms the basis for their motion for rehearing. They 

argue that (1) the trial evidence that Brewer Leasing had leased its tractor to 

another entity to operate is legally irrelevant to the analysis absent a written lease 

complying with federal regulations, and (2) there is no evidence that Brewer 

Leasing had leased the trailer to another entity, leaving liability with its owner, 

Brewer Leasing. 

We reject these arguments because the first is legally incorrect and the 

second is factually incorrect. 

1. Written Lease requirement

The Patterson Family does not dispute that there was some evidence that 

Brewer Leasing had leased the tractor to Texas Stretch. But it relies on 49 C.F.R. 

§§376.11–12 and 37 TEX. ADMIN. CODE § 4.11 to argue that evidence is legally 
36

irrelevant because federal and state law impose strict written lease requirements. 

See 49 C.F.R. §376.11 (“the authorized carrier may perform authorized 

transportation in equipment it does not own only under the following conditions:

(a) Lease. There shall be a written lease granting the use of the equipment and 

meeting the requirements contained in § 376.12”); id § 376.12 (setting forth 

numerous requirements for a written lease, including that it be in writing, signed by 

the parties, specify a duration, transfer to the lessee exclusive possession and 

responsibilities, and specify compensation); 37 TEX. ADMIN. CODE ANN. § 4.11 

(incorporating certain provisions of the Federal Motor Carrier Safety Regulations, 

Title 49, Code of Federal Regulations). The Patterson family’s rehearing motion 

also seeks to distinguish the numerous cases the Court’s opinion cited for the 

proposition that “several courts have considered and rejected the argument that 

noncompliance with the regulation requiring that every lease be in writing renders 

such lease ineffectual.” According to the Patterson family, these cases are 

inapposite because the non-written leases in those cases were permitted to shift 

responsibility to create liability under the lease, rather than shift responsibility to 

avoid it, as in this case. 

In May of 2015, however, the Texas Supreme Court recognized that 49 

C.F.R. §§ 376.11–12, which impose the written lease requirements under federal 

law that the Patterson family relies upon, are not within the federal regulations 
37

adopted by Texas under section 4.11 of the Texas Administrative Code. Gonzalez 

v. Ramirez, 463 S.W.3d 499, 503 (Tex. 2015). Accordingly, the supreme court 

expressly “disapprove[d] of prior Texas cases to the extent they have found motorcarrier liability under the Texas Regulations based on duties created by Part 376 of 

the Federal Regulations.”4 Id. We thus reject the Patterson’s family’s argument 

that the lack of a written lease complying with federal regulations renders Brewer 

Leasing liable as a matter of law as the owner of the tractor. 

2. The Trailer

The Patterson family also argues “Brewer Leasing is liable as the undisputed 

owner of the never leased Heil trailer.” They contend that even if the evidence that 

Texas Stretch leased the tractor from Brewer Leasing is sufficient to shift liability, 

Brewer Leasing is liable because there is no evidence that it leased the trailer 

attached to the tractor to Texas Stretch. Preliminarily, we note that the Patterson 

family cites no authority, and we have located none, holding the owner of a trailer 

being pulled by another company’s leased tractor vicariously liable for the 

 

4 The supreme court also rejected the argument that the federal regulations applied 

in Gonzalez despite not being adopted in Texas, reasoning that the federal 

regulations themselves expressly limit their applicability to “interstate commerce.” 

463 S.W.3d at 502 (“No evidence suggests that Gonzalez hired Garcia to transport 

property across state lines at any point. Therefore, the Federal Regulations do not 

apply.). The same is true here, as Hitchens was transporting cargo from the 

Fayette Power Plant located in La Grange, Texas to a facility in Cleveland, Texas. 
38

negligence of the driver (who is employed by the tractor lessee) solely by virtue of 

owning the trailer. 

In any event, this is not an issue that was submitted to the jury, and we 

disagree that the evidence conclusively establishes that the trailer was not leased to 

Texas Stretch, Hichens’s employer. A.B. Brewer, the owner of Texas Stretch and 

Brewer Leasing, testified that “Brewer Leasing was a leasing company, leased the 

equipment to Texas Stretch.” Lonnie Box, the General Manager of Brewer 

Leasing and Texas Stretch, similarly testified:

A. Brewer Leasing was a company that was formed as an asset 

company.

Q. As a what?

A. As a leasing, asset leasing company.

Q. Asset company, okay.

A. It was to lease the equipment, whether it be tractors or 

trailers, to other trucking companies or just various companies that 

needed equipment. Texas Stretch was to lease all its equipment from 

Brewer Leasing. 

This testimony raised a fact issue at trial as to whether Brewer Leasing 

leased the trailer to Texas Stretch. Accordingly, we also reject the Patterson 

family’s second argument on rehearing. We deny appellants’ motion for rehearing. 

 
39

 

Sherry Radack

Chief Justice

Panel consists of Chief Justice Radack and Justices Brown and Lloyd.