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
How later courts described this case
- 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
Written by the judges who cited it.
The opinion
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
713&91&81:lJ
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21 03 SkJnner IQad
Houston, T~~ 77093
713-691-2779
Fvc. 713·691-6883
Attention: Date:
Off'te~ Locadon: I
Fax Number· Phone Number.
0 Urgent
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Total pages. Including cnver: 2
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00158
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Pil.GE eJ
Fax sent tly I.!Sin9 OP Informer vt 0 0510212006 A 51·04 Pl\A P 4 of 8
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
00114
92 of 252
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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<J RHult Substanc;• Tesl~ ~
Amph~mr11n Nevati,.. CocaillCI POSITIVE
f ManjuatU N409ative Opiates Nel!B"M
I. Phencyc'oelim Negative
Ga11etr R. Tucker Ill. MO. MPH Verilicalion Dete
P.esults for Charlc-; Hitcnem:. P:zr1icr;,:ant 10· 337 • • • •l-00651 P<~r:led 01"1 6/21/2006 .:t! 9 4~ 14AM
00115
93 of2S2
SYSTEM ADVISORY: REPORT ENTERED USING PERSONAL COMPUTER VER-5.00-W
*******************************************************************
* ENTRY DEVICE: MOTOROLA MW-520 736SDL0504 345 *
* ENTRY FROM DATK-062906 TIME-1345 TO DATE~062906 TIME-1444 *
* TRANSFER DEVICE: COMPAQ TOWER 220614 S77 WIN2000 VER. 5.00-W*
* TRANSFER DATE-062906 TIME-1656 LOAD DATE-070206 TIME-1019 *
* LOCATION OF OFFENSE: POLICE DISTRICT-DISTRICT 20 DIST-20 *
*******************************************************************
EVIDENCE WAS TAGGED-N LATENT PRINTS WERE LIFTED AT A SCENE-N
Supplement entered by = 89942
No-0002
Offense- DEATH DUE TO TRAFFIC ACCIDENT
Street location information
Number- 14800 Name-KATY Type-FWY Suffix-
Apt no- Name-HWY 6 Type- Suffix-N
Date of offense-06/15/06 Date of supplement-07/27/06
Compl(s) L~st-PATTERSON First-DIANE Middle-YARBROUGH
Recovered stolen vehicles information
Recovery location- District- Beat- 00
Stored- by-
Officer1-D.L. HARWELL Emp#-085506 Shift-1 Div/Station-MOBILITY
SUPPLEMENT NARRATIVE
JFFICER HARWELL DOING A FOLLOW-UP ON FATALITY ON 14800 KATY FWY ON 7/26/06.
JFFICER HARWELL CALLED TEXAS STRETCH TRUCKING COMPANY ON 7/26/06 AND TALKED TO
:.L. BREWER.HE FAXED ME THE TOXICOLOGY REPORT OF CHARLES HITCHENS FOR HIS
PRE-EMPLOYMENT AND POST ACCIDENT URINE TEST. THE PRE-TEST SHOWED NEGATIVE ON ALL
3UBSTANCES WHICH INCLUDE: AMPHETAMINES, MARIJUANA-, PHENCYCLIDINA, COCAINE·, AND
)PlATES. THE POST-ACCIDENT TEST SHOWED POSITIVE ON COCAINE. OFFICER TALKED TO
:HIEF INTAKE DA J. ORTIZ IF WE SHOULD SUBPOENA THE LAB RECORDS TO GET THE
2UANTITY OF COCAINE IN HIS SYSTEM. HE TOLD ME TO CONTACT THE LAB AND SEE IF
rHERE WERE QUANTITATIVE RESULTS. I CONTACTED LABONE INC AT 1-913-888-8397 AND
rHEY SAID THERE ARE QUANTITY RESULTS IF THE ACCOUNT IS SET UP FOR IT. I WAS TOLD
ro TALK TO DON HAHN AT 1-800-728-4064 X1632 TO PURCHASE A LITIGATION KIT FOR
~200.00. I WILL TALK TO THEDA TOMORROW AND SEE IF THEY WANT TO PURSUE THIS
:..ITIGATION KIT. TALKED TO METRO PD, OFF GOODNIGHT ABOUT THE SCALE DRAWING. HE
;TATED OFF PORTER HAS JUST COME BACK TO DUTY AND HAS NOT FINISHED THE SCALE
120 of 252
Appendix
4
03/08/2013 03:57:29 PM 713-755-1451 Page 33/57
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.
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
02/28/2012 04:32:32 PM 713-755-1451 Page 72/75
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
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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 sh<lll be :in full force and effect until terminated
by either party hereto, but not less than 30 days. by vritten notice delivered by
either party signatory heYeto in person if an individual, or to any officer
t:hereofsaid party is a corporat1on. Said agreement also may be cancelled or term-
~nated by depos~ting in the U.S. Mail a notice of such cancellation. properly add-
ressed. pn~ted. and that said party or officer hereof is evidenced by the return
registered receipt or upon the said refusal of said addressee to accept deL~very
thereo£. and upon termination of this agreement, Lessor agrees co return to Lessee
all equipment, suppl~es, permits, and other property of ~ssee to the nearest
teTminal within S days. or be charged thirty (30) cents per mile for retrieving
of such propert)' by Lessee.
13. That :l.f Lesaoy or his ageut is unable to deliver ca.rg,o hauled under this
agteement to the destination upon an agreed time. Lessor ~ill immediately notify
Lessee, or the consignee of such cargo of the probable delay, and chat failure to
give such notifications will be construed a$ negligence on the part of the Lessor.
14. That Lessee shall be impovered to charge Lessor all claims foY shortages,
losses, or damage to cargo 'Which are uot the result of accident: i.nvo~v1.ng the
equipment covered by this agreement.
15. That Lessee will charge the first $~00.00 Q£ any cla~m for public liability
or property damage due to negligence of Lessor, his driver, or agent, and furtheY
the lessee will charge Lessor for all damages to cargo caused by negligence of
~ssor. h~s dr~ver. or agent.
16. The Lessor ~ill be responsible to Lessee for damag~ to Lessee's equipment
or property damages as a result of Lessor's Gtr:iking any viadnc:t:., lev overhead, or
other s~at~onaTy object through carelessness or neglect of Lessor, his dr~ver, or
agent.
17. That: ·Lessor shall not be paid for any load vrecked or dam.aged in transit:
and returned to origin point.
18. The Lessee shall charge Ikssor in full for any aml all water damage to
cargo caused by neglect of LeBaor, his driver, or agent.
19. The Lessee will hold from the Lessor's earnings a total of $200.00. The
said $200.00 less any clai~s. to be refunded to Lessur or Lessee v~thin a per~od
of not less than thirty day~ and not to exceed ninety days of the termination of
the lease by either party.
20. The Lessor shall reimburse the ~essee for any fines or penalties pa~d by
tbe Lessee ae a result of illegal or criminal acts committed by the Lessor. his
driver, or agent.
21. All iusurange, payroll taxes, state employment taxes shall be paid by
Lessee and charged back to Lessor. Any ~ncrease in above will be charged or any
decrease vill be adjusted in cost •
.·
Appendix
12
CAUSE NO. 2011-64488
MARCUS BRENT PATIERSON, et al § IN THE DISTRICT COURT
§
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 personally wrote this affidavit and the Motion
to which the affidavit is attached. I have always been the lead counsel of
record for the Patterson family members in all five district court lawsuits
involving this wreck (two of them are suits against them), was the lead
counsel in the recent trial of this case, and personally prepared every
pleading on behalf of the family. I therefore have personal knowledge of
everything in this affidavit. All statements in this affidavit are true and correct.
I have been a licensed attorney for almost 32 years. I have been Board
Certified in Civil Trial Law for almost 24 years and Civil Appellate Law for
almost 20 years.
I have reviewed our pleadings files. We filed all of the following pleadings in
the first case:
Plaintiffs' Original Petition on December 1, 2006;
Plaintiffs' 1st, 2nd, 3rd, 4111, and 5111 Amended Petitions.
In this case we filed:
Plaintiffs' Original Petition on October 24, 2011;
Plaintiffs' 18 1, 2nc:t, 3rd, and 4th Amended Petitions.
In response to those eleven pleadings I recall no Special Exceptions by
Brewer Leasing, I show none in my files, and I have no reason to believe any
were ever filed."
1016
Further Affiant sayeth not.
Harry Herzog
SUBSCRIBED AND SWORN TO BEFORE ME to which witness my official hand
and seal of office on the 18th day of October, 2013.
Page 2 of 2
1017
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. § 3341h JUDICIAL DISTRICT
§
BREWER LEASING, INC. §
§
Defendant. § HARRIS COUNTY, TEXAS
AFFIDAVIT
STATE OF TEXAS §
§
COUNTY OF HARR.IS §
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 21 and personally wrote this affidavit
and the Reply to which the affidavit is attached. I have always been the lead
counsel of record for the Patterson family members in all five district court
lawsuits involving this wreck (two of them are suits against them), was the
lead counsel in the recent trial of this case, and personally prepared every
pleading on behalf of the family. I therefore have personal knowledge of
everything in this affidavit. All statements in this affidavit are true and correct.
I have been a licensed attorney for almost 32 years. I have been Board
Certified in Civil Trial Law for almost 24 years and Civil Appellate Law for
almost 20 years.
After I was hired we attempted to get the police report from the Houston
Police Department. It had not been released so I could not obtain a copy.
In August 2006 I wrote a letter to a company I believed to be acting in
conjunction with Brewer Leasing's insurer. (PX 490). I later turned out to be
correct. The letter addressed Brewer Leasing's responsibility for the driver
in this collision. No one ever replied to my letter.
On December 1, 2006 I filed suit for the family members who hired me
against Brewer Leasing (and others), claiming Brewer was liable for the
driver's negligence in the collision. (Exhibit 1 to this Reply). I attached
discovery with that suit.
In February 2007 several things occurred that are relevant to the matters in
issue at this time. HPD released the collision report. Two defendants
surfaced and answered. I renewed my efforts to hold each company
responsible for the driver's negligence, and I tried to settle quickly with each
defendant.
Who employed Charles Hitchens?
On March 1, 2007 I received the first discovery responses. (PX 527). Brewer
Leasing produced the driver file/ personnel file for Charles Hitchens. There
was no explanation then, later, or through today, as to why Brewer Leasing
was producing his driver file in light of the fact that every document in it
relevant to the issue showed he applied for a job from Texas Stretch ("TS"),
was hired by TS, signed an employment agreement with TS, gave his time
records toTS, received every paycheck from TS, and there was no paper in
the file that mentioned Brewer Leasing.
Sagamore ln~urance, which sold a policy toTS, sued TS claiming there was
no insurance coverage for this wreck. (PX 506). They later amended and
also sued the Pattersons. During the course of the case Sagamore claimed
that Brewer Leasing, not TS, hired and employed Charles Hitchens.
TS repeatedly denied employing Charles Hitchens.
In later discovery we obtained transcripts of recorded statements, given by
Butch Brewer (AB's brother)(PX 519) and Doug Schoppe (the GM of both TS
. and Brewer Leasing)(PX 509) in which it was claimed that Brewer Leasing
employed Hitchens.
In light of this cacophony of misdirection and confusing positions on who
employed Hitchens I made sure that every pleading we filed alleged both TS
and Brewer Leasing were responsible for Hitchens' negligent actions.
(Exhibits 2, 3, 4, 5, and 6 to this Reply). There has never been a pleading
filed by us that does not seek to hold Brewer Leasing liable for everything
Charles Hitchens did negligently on June 15, 2006.
In March of 2009 I was finally able to depose Mr. Lonny Box (the GM of both
companies) and Mr. A. B. Brewer (the 100% owner and President of both
companies). Mr. Box testified with firmness and clarity that TS employed
Hitchens, only TS employed Hitchens, and that any lawyer that said
otherwise was wrong. TS filed a document with this court a few days before
trial in which they finally admitted Hitchens was their employee. (PX 335).
Page 2 of 7
That admission was filed within seven days of trial so I did not amend our
pleading out of concern that our preferential trial date and trial assignment
could be lost (and also my delayed cancer surgery possibly re-scheduled).
Cocaine.
On March 1, 2007 Brewer Leasing also produced a one page lab report
showing Hitchens "positive: cocaine" on the post collision drug test of June
15, 2006. (PX 501, 527). Brewer Leasing never explained how they could
have his drug test result if they were not his employer. Brewer Leasing has
also never explained, to this day, how they could fail to produce his other
drug test results that show the exact, precise, scientifically verified level of
43,444 Ng of cocaine metabolite. Nor has Brewer Leasing ever explained,
to this day, how they could fail to produce those 43,444 Ng results in light of
these requests (either from us or a co-defendant, Ray Bellew and Sons):
"2. All documents received from LabOne, with respect to
the post-accident DOT Controlled Substance Test of
Charles Hitchens.
3. All documents that reflect the level of cocaine detected
in Mr. Hitchens in the June 15, 2006 Post-Accident
DOT Controlled Substance Test of Charles Hitchens.
4. All documents that reflect the amount of cocaine
ingested by Charles Hitchens on or before June 15,
2006 that was detected in his system in the June 15,
2006 post-accident DOT Controlled Substance Test."
(PX 530, pp. 3 and 4 ).
"22. Please produce Charles Hitchens' employment file.
24. Please produce the test results from any drug and/or
alcohol tests given to Charles Hitchens following the
accident in question.
25. Please produce all test results for all drug and/or
alcohol tests given to Charles Hitchens."
(PX 532, pp. 10 and 11 ).
Page 3 of 7
Trucking law.
Beginning in 2007, and continuing through last week, I have on numerous
days performed legal research on federal and state legislative and
administrative trucking laws, regulations, and case law. I have become very
conversant in liability theories under those laws. I have attended trucking
liability seminars and read many scholarly articles on the subject. Lawyers
who work with me on this case have also done significant legal research in
this area and then shared their results with me. I have consulted with many
lawyers outside my firm and outside our formal Patterson team in an effort
to leave no stone unturned and be certain I have found everything there is
to find on the subject. For about a decade before she died Diane was my
friend, Marcus was my friend and for a year or two my Sunday school
teacher, our children were friends and playmates, and I have tried extremely
hard to leave nothing undone in my efforts to resolve this case. Thus at all
times, in all ways, I have tried to make sure that Brewer Leasing was liable
for the driving negligence of Charles Hitchens.
Pleadings.
With respect to our pleadings, I always tried in the first case to have all the
wiggle room r needed as they played their "who employed Hitchens" shell
game. I did not think there was any real doubt in light of his personnel file,
but I wanted to take no chances. Brewer Leasing never Specially Excepted
to any of our six pleadings filed between December 2006 and March 2009.
In this Bill of Review case, in my pleadings I relied in large part on the clear,
convincing, uncontradicted testimony of Lonny Box and A. B. Brewer with
regard to the lease, the fact that all relevant documents showed TS owned
the tractor at the time of the lease to Brewer Leasing, the fact that both fuel
tanks on both sides of the vehicle said "Leased to Brewer Leasing" with the
company logo and TxDOT number 00580014 7C, the cab card (carried in the
vehicle and given to HPD), and the fact that Brewer Leasing admitted the
existence and applicability of the lease on June 15, 2006.
Brewer Leasing's ambush of us.
I began to suspect a surprise was coming in September 2012. I amended
our pleadings. Among other things, I made sure that I made reference to the
trailer repeatedly. When Brewer Leasing failed to participate in the
preparation of, or file anything with, the Pre-Trial Order in compliance with
the court ordered deadline of Oct 1, 2012, I was certain a surprise was
coming. I did not know what it was or could be, but I knew danger was
lurking. No one, nevertheless extremely capable lawyers like Mr. Hays and
Mrs. Banks/Thompson, openly flouts a court ordered deadline for a PTO and
Page 4 of 7
ignores it for months unless they think they have a surprise worth the
potential judicial wrath of non-compliance. They waited for over five months
to file their first portions of the PTO, and those materials contained no
surprises. I remained convinced a surprise was coming, but felt we were
ready for it.
When we went to the pre-trial conference on July 11, 2013, I was once again
braced for a surprise. It did not come.
On Friday afternoon, Aug 2, on the last business day before trial, we
received the surprise. Without supplementing any discovery, on the literal
eve of trial, Brewer Leasing was going to argue there was no lease.
I looked at our pleadings. All of them, in both suits against Brewer Leasing.
We had one cause of action: negligence. In this case they alleged liability
for the Heil trailer from Sept 2012 to the present, and I knew the Heil trailer
was a separate commercial motor vehicle under both federal and Texas law
and was a separately scheduled, premiumed, insured vehicle under the
insurance policy. There were never any Special Exceptions. I knew the law
is clear: if there are no Special Exceptions the pleading is liberally construed
in favor of the pleader and any defect is waived. I also knew that in addition
to ignoring their liability as a matter of law for the Heil trailer, Brewer Leasing
was making the mistake of ignoring their liability for owning the Peterbilt
tractor if they succeeded in their newest shell game of "who leased the
tractor?" The existence of the lease was not my sole theory. It was the
theory plead in the most detail.
So on Monday, August 5, 2013, when Mike Hays told the panel in voir dire
that Brewer (I am doing my best to quote him word for word here based on
my memory and notes) "just owned the tractor'' I thought Mike Hays was
making a huge mistake. I thought he was arguing something that was no
defense. I thought he might as well argue Hitchens was wearing a hat or
black slacks: neither was relevant or a defense. If he succeeded in
convincing the jury that everything about the lease was wrong, the fuel tanks
were wrong, all the testimony and documents were wrong, and whatever else
he wanted to claim, it was a road to defeat for him- not a road to victory. He
wanted to focus on it. I let him distract himself.
In my opinion, we tried the claim of liability for the Heil trailer by express
and/or implied consent. Contrary to Brewer Leasing's claim yesterday, we
introduced everything we needed to prove without objection. Every single
document and all oral testimony necessary to prevail on ownership and
weight was admitted without objection. Some of the evidence was in the form
of defense exhibits. All of the evidence is detailed in the various documents
we have filed in the last 45 days. The title to the Heil trailer relates only to
Page 5 of 7
this liability and nothing else. The weight of the trailer, both empty and
loaded, relates only to this liability and nothing else. Starting yesterday
afternoon, Brewer Leasing is essentially arguing they are surprised by what
their own exhibits prove and the liability their own exhibits create.
In my opinion we tried the claim of liability for the Peterbilt tractor by express
consent. It was Brewer Leasing, and only Brewer Leasing, that argued they
owned the tractor. Brewer Leasing argued everything needed to establish
their own liability. In my opinion they are now estopped to deny that
ownership. If that ownership makes them liable as a matter of law - which
it does- then so be it. They cannot legitimately slap their surprise on us Aug
2, run it Aug 5-9, and then complain that there are no pleadings rebutting
their surprise! If at any time in the seven years earlier they had made the
claim, then there would have been pleadings addressing it. There had been
pleadings for years alleging their liability as the owner or lessee of the tractor:
there is no chance we surprised them, and they cannot legitimately claim
they are surprised by the legal effect of their ambush.
In the discovery done from Dec. 1, 2006 to the present I have never seen
any document that says it is a lease from Brewer Leasing to anyone (for
either the tractor or the trailer). In two trials of this matter no defendant has
ever offered imy document which reads it is a lease of the trailer or tractor
from Brewer Leasing to anyone. No witness has ever testified that on the day
of this collision there was a lease of the tractor or of the trailer saying it was
from Brewer Leasing to anyone. Lonny Box testified - correctly under any
reading of federal and Texas law- that any such lease has to be in writing.
So by claiming ownership of the tractor, and by having undenied ownership
of the trailer, with no written lease of either commercial motor vehicle to
anyone, and with no other entity insuring either vehicle, the legal conclusion
I reach is that Brewer Leasing is absolutely, unquestionably, 100%
vicariously liable for Charles Hitchens' negligent operation of each vehicle.
One of the fundamental purposes of trucking law, expressed in Texas
statutory law and case law at all levels, is to provide a solvent defendant in
trucking collisions.
Discovery revealed Charles Hitchens had no automobile insurance: he drove
~iscar to work each day uninsured. He was also a paranoid schizophrenic
and an admitted crack head.
All parties, and all lawyers involved, agreed that TS had no insurance
coverage with Sagamore for this collision as neither the Peterbilt tractor nor
the Heil trailer were scheduled vehicles. (Non-insurance, but a type of
coverage under Form F or the MCS 90, were heatedly debated).
Page 6 of 7
Mr. Brewer admitted in his deposition that TS was essentially gone, out of
business in March 2009. Brewer Leasing's game of pin the tail on the
insolvent donkeys (Hitchens and TS} flies in the face of 78 years of federal
law and a long history of Texas law. It is an old legal trick, for which I refuse
to fall.
The only way the vehicles rolled down several Texas highways on June 15,
2006 in compliance with the law was under the permit and insurance of
Brewer Leasing. There is no way that having operated the vehicles that way
on June 15, 2006 that Brewer Leasing is now suddenly surprised that they
are being held liable. Even their GM, Lonny Box, candidly admitted in 2009
that Brewer Leasing was responsible for Charles Hitchens' driving on June
15, 2006.
Attached to this reply are 10 documents. Each of them is Hyperlinked. Every
one is a true and correct copy of pages from the original. Some are just
excerpts of relevant pages for the court's ease and some have been marked
in places to quickly move the eye to the relevant portion to aid the Court and
counsel."
Further Affiant sayeth not.
Harry Herzog
SUBSCRIBED AND SWORN TO BEFORE ME to which witness my official hand
and seal of office on the 171h day of September, 2013.
PAULA JAHNKE
Notary Public, State of Texas RY PUBLIC
My Commission Expires
October 02, 201 S STATE OF TEXAS
Page 7 of 7
Appendix
13
03/08/2013 03:57:17 PM 713-755-1451 Page 2/13
Filed 13 March 08 P3:57
Chris Daniel - District Clerk
Harris County
FAX15426354
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. § 3341h JUDICIAL DISTRICT
§
BREWER LEASING, INC. §
§
Defendant. § HARRIS COUNTY, TEXAS
PLAINTIFFS' FOURTH AMENDED PETITION FOR BILL OF REVIEW
Plaintiffs, Marcus Patterson, in his individual capacity, as independent administrator of the
estate of Diane Patterson, and as next friend of Daniel Patterson and Danae Patterson, and Daniel
Patterson (now 18 years of age), complain of Defendant Brewer Leasing, Inc., in this equitable bill
of review to remedy the fraudulent representations to conceal Charles Hitchens' massive cocaine
level, and show the following:
1. This Petition is being filed under Level 2 of Rule 190.1.
2. Plaintiffs are residents of Harris County, Texas.
3. Defendant, Brewer Leasing, lnc. has been served with citation, and has answered.
4. Defendants Charles Hitchens and Texas Stretch, Inc. are both new parties. Both of these new
parties have previously been released by all members of the Patterson family. Neither of these
parties were previously affected by this action, by Texas law they do not need to be added to this suit,
they are not indispensable parties, by adding them to this suit the Patterson family does not rescind,
Page 1 of 12
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negate, or disavow their releases, and no service of citation is requested at this time. Part of the
Patterson family's settlement with Ray Bellew & Sons involved periodic payments from 2011
through 2022, as set forth in Exhibit A to the Final Judgment in case 2006-7664 7, and nothing in this
case is designed to affect, revoke, alter, modify, or change that settlement or those structured periodic
payments in any way. These two new parties are being added solely and exclusively to eliminate an
invalid argument being raised by Home State on appeal in a simultaneous legal proceeding.
5. Venue is proper in Harris County, Texas, pursuant to Section 15.002 of the Texas Civil
Practice and Remedies Code, because the incident which forms the basis of this suit occurred in
Harris County, Texas, and Plaintiffs and Defendant reside in Harris County, Texas.
6. The Court has jurisdiction over this controversy because Plaintiffs seek damages within the
jurisdictional limits of this Court and this Court entered the judgment under attack.
7. On December 1, 2006, in Cause No. 2006-76647, the Patterson family sued Brewer Leasing,
Inc. On June 2, 2009 they recovered a judgment against Brewer Leasing.
8. Plaintiffs obtained a favorable judgment, 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 (43,444nanograms) 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
Page 2 of 12
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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.
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 or the Harris County District Attorney had been able
to obtain the truth a year later, on June 21, 2007. "It is tmknown 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 infom1ation 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 Attomey, all plaintiffs, two defendants, and
Judge McCally.
Page 3 of 12
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12. Though the Plaintiffs obtained a judgment against Brewer Leasing, they were unable to put
on evidence of Charles Hitchens's level of cocaine at the time of the collision in order to prove the
utter disregard for human life and gross negligence when Mr. Hitchens transported 79,940 pounds
on the highway while impaired under the influence of cocaine. (Exhibit 6).
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 infonnation was not discovered until well after the deadlines for a motion
for new trial and an appeal had passed in 2006-7664 7. Now that Plaintiffs have discovered the fraud
against them and this Court, Plaintiffs are seeking this Bill ofReview to correct the injustice inflicted
by the conscious acts of Defendant.
14. On Saturday, April4, 2009, just two calendar days before trial was set to begin on April6,
Brewer Leasing attempted to make a deal with the Patterson family. Those negotiations took place,
and agreements were reached, by virtue of Brewer Leasing's active ongoing concealment and
fraudulent misrepresentation of the devastating results of Mr. Hitchens' urine test for cocaine.
15. On April 4, 2009 Mr. A.B. Brewer, Texas Stretch, Inc., Brewer Leasing, Inc., and Texas
Stretch's insurer, Sagamore Insurance Company, reached various agreements with the Patterson
family. The agreements were:
A. Texas Stretch would be released;
Page 4 of 12
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B. Sagamore Insurance Company would dismiss its coverage suit against Texas Stretch
and the Patterson family;
C. Texas Stretch would pay $470,000 as follows:
1. $400,000 by Sagamore Insurance,
2. $25,000 in cash by Texas Stretch, and
3. $45,000 over time by Texas Stretch, personally guaranteed by Mr. Brewer;
D. Brewer Leasing would not be released, as Brewer Leasing was paying nothing and
was not settling;
E. Having personally guaranteed $45,000 to be paid by Texas Stretch, Mr. Brewer
would not be personally exposed to any further payments and therefore Brewer
Leasing would receive a Covenant to Not Execute;
F. Brewer Leasing would hire Mr. Herzog to pursue the Stowers claims created by
Home State's three wrongful denials of settlement demands, and any other claims of
Brewer Leasing against Home State (breach of duty to defend, Insurance Code, etc.);
and
G. Brewer Leasing would agree to assign those claims to the Patterson family later, in
the future, upon request.
16. On April6, 2009, the Texas Stretch settlement and the Brewer Leasing agreement without
settlement were signed. On behalf of Brewer Leasing, Mr. Michael Hays, their personal counsel,
orally discussed an assignment ofthe Stowers claims after a jury verdict was returned in the Stowers
case in the future.
Page 5 of 12
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17. Misunderstandings later arose. Brewer Leasing disagreed with part of Mr. Herzog's fee
agreement and, without communicating their disagreement, declined to sign. Mr. Herzog sent a
statutory demand notice to Home State, on behalf of Brewer Leasing, based on the oral
understanding that he was hired. Once it became clear that Brewer Leasing would not sign a fee
agreement, the decision was made that suit could not be filed as originally planned on behalf of
Brewer Leasing so an oral request for an assignment was made and suit was filed with the Patterson
family as assignees of Brewer Leasing. Brewer Leasing later signed a written confirmation in
October 2010 of an assignment of claims.
18. The Covenant, the agreement to assign claims in the future upon request, and the written
assignment in October 2010 were all fraudulently induced by the wrongful behavior of Brewer
Leasing, the consideration for them has failed, and they should be nullified as void ab initio.
19. After the filing of the Plaintiffs' Original Petition for Bill of Review, with incontrovertible
and conclusive evidence of Brewer Leasing's wrongful act and Brewer Leasing's extrinsic fraud
attached as exhibits, Brewer Leasing eventually stipulated and agreed to set aside the Covenant to
Not Execute, the June 2, 2009 Final Judgment, and all assignment efforts as void ab initio. This
Court has entered an Order setting all of those aside as void ab initio.
Liability of Brewer Leasine
20. On July 26, 2005 Texas Stretch, Inc. was the Lessor of a 2002 Peterbilt Class 8 motor
vehicle, YIN 1XPSDB9X220528915, 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.:
Page 6 of 12
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Brewer Leasing complied. Paragraph 5 specified that all drivers would be employees of Texas
Stretch, Inc.: Brewer Leasing complied.
21. In April2006 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 ofHighway 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 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 burt,
at least five veh1cles were destroyed, and three more vehicles sustained damage.
Page 7 of 12
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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 fo11owing in the past and in the
future:
A. Pecunimy 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;
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;
Page 8 of 12
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C. Knew Charles Hitchens V\'as 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;
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
Page 9 of 12
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03/08/2013 03:57:17 PM 713-755-1451 Page 11 /13
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.
29. For the assistance of this Court and opposing counsel, the current version of the Patterson
family's proposed Jury Charge is attached reflecting all causes of action and proposed elements of
damage.
Jury Trial
30. Plaintiffs and Defendant request an expedited jury trial, and have paid the jury fee.
Prayer
Plaintiffs request that the Court set aside and nullify ab initio for all legal purposes its prior
judgment dated June 2, 2009 as to Brewer Leasing, Inc., nullify ab initio the April 6, 2009 Covenant,
nullify ab initio the April 6, 2009 agreement to assign claims in the future, nullify ab initio the oral
assignment in the summer of 2010, nullify ab initio the October 2010 executed Assignment, and
enter a new judgment in favor of Plaintiffs for negligence, gross negligence, and fraud with just and
Page lOof 12
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fair compensation for all actual damages, punitive damages, and recovery for prejudgment interest,
post judgment interest, and court costs within the jurisdictional limits of this Court.
Respectfully submitted,
HERZOG & CARP
By:
Harry Herzog
State Bar No. 09548200
P.O. Box 218845
Houston, Texas 77218-8845
(713) 781-7500
(713) 781-4797, fax
GEARY, PORTER & DONOVAN, P.C.
By: /14 1/;jJ t.i ~ )J..)
Dorothea "Dotty" L. Vidal
State Bar No. 20578100
One Bent Tree Tower
16475 Dallas Parkway, Suite 400
Addison, Texas 75001-6837
P. 0. Box 700248
Dallas, Texas 75370-0248
(972) 349-2211, direct
(972) 931-9901, fax
ATTORI\EYS FOR PLAINTIFFS
Page 11 of 12
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CERTIFICATE OF SERVICE
This is to certify that a true and correct copy of the above and foregoing has been sent to all
parries of record listed below via certified mail, return receipt requested, on this the 8111 day of March,
2013.
(Courtesy copy without exhibits viafacsimile and electronic delivery)
MichaelS. Hays A J_
-Ryan M. Gnnt - ~no- IJ#o- S
Hays, McConn, Rice & Pickering
400 Two Allen Center
1200 Smith Street
Houston, Texas 77002
(713) 654-1111
(713) 650-0027, fax
Attorneys for Brewer Leasing, Inc.
Harry Herzog
Pagel2of 12
40
03/08/2013 03:56:40 PM 713-7 55-1451 Page 1/2
Filed 13 March 08 P3:57
Chris Daniel - District Clerk
Harris County
FAX15426354
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. § 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:
My name is Marcus Patterson. I am a Plaintiff in this case. I am over the age of 18,
have never been convicted of a crime, and have personal knowledge of every
statement made in this affidavit. Every statement in this affidavit is true and correct.
I was stunned when I learned that Mr. Hitchens had ingested a massive amount of
cocaine and the level of cocaine that he ingested was improperly concealed from us
in the prior lawsuit. I was more than stunned, extremely disheartened bordering on
furious, when I learned that false statements were made in writing to my lawyer, to
other lawyers, and to the previous judge of this Court to conceal Mr. Hitchens'
cocaine impairment.
I have reviewed the Petition ofthe Bill of Review. Paragraphs 7, 8, 10, 11, 12, 13,
14, 15, 16 and 18 are, to the best of my understanding of these legal proceedings, true
and correct. Paragraphs 19- 23 are consistent with all of the information I have
Pagel of 2
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03/08/2013 03:56:40 PM 713-7 55-1451 Page 2/2
reviewed and all of the information I saw and heard during the previous trial of this
case.
Further Affiant sayeth not.
SUBSCRIBED AND SWORN TO BEFORE ME to which witness my official hand and seal
of office on the~ dayofMarch, 2013.
~~
~.~~- PAULA JAHNKE
~\ Notary Public, State of Texas
•.• ·~~~ My Commission Expires
l!j/.,~V October 02, 2016
Page 2 of 2
42
03/08/2013 03:57:29 PM 713-755-1451 Page 1 /57
FEDER!-'~ IG TESTING CUSTODY AND CONTROL FORM
-- ;-
•
:,,_- DDODDDDDDDDDD 1111 ~ rm f1111/1 lll/
36
~39345 10101 Renner Blva
U Lenexa. KS 66219
1: COMPLETED BY COLLECTOR OR EMPLOYER REPRESENTATIVE SPECIMEN 10 NO. (800) 728-4064
1p1over Name. Address, LD. No .
. '..... :~; ' .
. - '·- ·-
,.
Jnor SSN_ or Employee LD. No. ~~-~~/., IU [YJ J _:-j I ?II ?fJ ( j b-j
~ason lor Test: 0 Pre-employment 0 Random D Reasonable Suspic•on.'Cause (Q"Post-Accident
0 Return)O Duly D Follow-up D Other (specify) _ _ _ _ _ _ _ _ _ _ _ __
ug Tests to be Perlormed: 0 THC. COC. PCP. OPt. AMP 0 THC & CDC Only 0 Other (speci,y)
•llection Site Address:___.. ------------
,, .....
-- i - .~ I .' i
/
ColleciOr Phone No U [ZJ EJ -IZJ [L] [2J- bJ [2] CJ [LJ
Conector Fax No [2] [2] W- [ZJ G 0- [ZJ lZJ 0 []
, 2: COMPLETED BY COLLECTOR
l specimen temperature within 4 minutes. Is temperature Specimen Collection
een 90" and 100' F? Uves 0 No. Enter Remark [9-'split 0 Single 0 None Provided (Enter Remark) 0 Observed lEnter Remark)
• 3: conector aftixes bonle seal[s) lo bottlejs). Collector dates seal(s). Donor initials seal(s). Donor completes STEP 5 on Copy 2 (MRO Copy)
' 4: CHAIN OF CUSTODY· INITIATED BY COLLECTOR AND COMPLETED BY LABORATORY
1ARKS
y that the spec.men grven lome by lite donot Identified in the eer'tifir:alion ~er:lion on Copy 2 of ltus lorm was eo/leerei:l, labeled. ~ealed and released to the Delivery SeNice notea in
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_____;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
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