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NO. 01-14-00013-CV

In the Court of Appeals

for the First Supreme Judicial District of Texas

at Houston, Texas

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

RESPONSE TO MOTION FOR REHEARING

George W. Long

State Bar No. 12517300

2000 East 42nd Street, Suite C-110

Odessa, Texas 79762

432-614-1500 Telephone

361-587-7705 Facsimile

george.long.mexico@gmail.com

ACCEPTED

01-14-00013-CV

FIRST COURT OF APPEALS

HOUSTON, TEXAS

7/27/2015 11:31:09 AM

CHRISTOPHER PRINE

CLERK

 FILED IN 1st COURT OF APPEALS HOUSTON, TEXAS 7/27/2015 11:31:09 AM CHRISTOPHER A. PRINE Clerk
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Response to Motion for Rehearing

Winning is the goal of every attorney; winning within the rules should 

also be every attorney’s goal. Texas Disciplinary Rules 3.01 and 3.03, 

together with the Texas Lawyer’s Creed and the Standards for Appellate 

Conduct, prescribe boundaries within which an ethical lawyer’s conduct must 

conform.

I cannot defend this appeal without a valid basis. At this point there is 

no valid basis upon which a defense can be based. No one has, or can, 

challenge the jury finding of 100% negligence by Charles Hitchens.

The evidence conclusively establishes Brewer Leasing’s ownership of 

the trailer, a fact no one has ever denied. I see no way for Brewer Leasing 

to escape liability for Hitchens’ negligent operation of the trailer.

This Court’s opinion absolves Brewer Leasing of liability for Hitchens’ 

negligent operation of the power unit. Decades of experience in trucking 

force me to admit that Brewer Leasing cannot use a claim of an oral lease to 

shift liability onto its parent company. Virtually every trial level litigation case 

I currently prosecute (all of which relate to trucking), involve the state and 

federal requirement that commercial vehicle leases be in writing, a main 

purpose of which requirement is to clearly define liability between motor 

carriers working under contract or lease. The west Texas oil patch is rife with 

motor carriers who seek to avoid payment and other liabilities due their 

lessors by failing to enter written leases in order that they ‘re-write’ their lease 

at trial.

The last thing I wish to see for the benefit of my clients and my practice 

is a Texas appellate court deciding a liability case between motor carriers 

based on and alleged oral contract. Such an appellate decision will 
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encourage and in part enable all non-paying motor carriers who lease trucks 

from other motor carriers to allege oral contracts knowing that they will be 

considered to assess liability, whether for payment between lessor and 

lessee or payment to third party claimants. It will declare ‘open season’ on 

small, unsophisticated owner-operator motor carriers by larger motor carriers 

who seek, from the beginning, to exploit them financially.

Why would the insurance carrier for Brewer Leasing tender policy limits 

in this case prior to trial if they thought that they had a valid defense by virtue 

of an oral contract absolving Brewer Leasing of any liability? Even they knew 

that such a defense was legally improper, as do I.

I wish I could agree with the opinion on that point, but my “concurrent 

duties to the legal system and the public good”, and to the overwhelming 

majority of the clients in my practice, require me to “avoid the infliction of 

harm on the appellate process, the courts, and the law”. I am required to 

fairly and accurately characterize and apply the law, including reporting legal 

authority adverse to my position. The court’s opinion on this point is wrong; 

the essence of trucking law from 1956 until today is to prohibit motor carriers 

(or non-motor carriers operating without legal authority) to evade 

responsibility based on oral claims that seek to shift responsibility for the 

vehicles they own or operate to others.

Mr. Brewer and Mr. Box’s testimony, if viewed in their favor, might 

create doubt on this issue were it a legal defense, but it is not a proper legal 

defense.

I have owned and managed registered motor carriers in Texas intraand interstate commerce and in the Republic of Mexico continuously for the 

past twenty years. I owe it to the trucking industry and to this court to see 

that the law is correctly stated. No doubt the court believes that it has 
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reached a ‘logical’ decision on this point, but as Justice Oliver Wendell 

Holmes, Jr. reminded us, ‘the life of the law has not been logic, it has been 

experience’. The current state of the law that shuns accepting oral 

agreements to place or avoid liability for motor carriers stem from the wealth 

of experience acquired prior to 1956. I fear the court is looking narrowly and 

logically at this point and is not considering the huge body of regulatory and 

statutory law which derived from trucking experience, all of which demand 

that liability remain with the vehicle owner unless shifted, in writing, to 

another. The vehicle owner was Brewer Leasing. Brewer Leasing is liable.

 Respectfully Submitted:

 ________________________ 

 George W. Long

 Attorney for Appeallent

 State Bar No. 12517300

 2000 E. 42nd Street, Suite C-110

 Odessa, Texas 79762

 432-614-1500
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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 MSWord with Arial 14-point font.

(2) This brief complies with the length requirements of Rule 

9.4(i)(2)(B) because it contains 718 words, excluding the parts of 

the brief exempted by Rule 9.4(i)(1).

_______________________ 

George W. Long 

Attorney for Appellee
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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 Appellee has been sent to all parties and/or counsel 

of record listed below by fax on July 25, 2015.

Harry Herzog

Hherzog@hcmlegal.com 

David A. Carp

Dcarp@hcmlegal.com 

Herzog & Carp

P.O. Box 218845

Houston, Texas 77218-8845

713-781-7500 Telephone

713-781-4797 Facsimile

Dorothea ADotty@ L. Vidal

Dvidal@gpd.com 

Geary, Porter & Donovan, P.C.

One Bent Tree Tower

16475 Dallas Parkway, Suite 400

Addison, Texas 75001-6837

972-349-2211 Telephone

972-931-9901 Facsimile

 ___________________________ 

George W. Long