                                                                                ACCEPTED
                                                                            01-14-00013-CV
                                                                 FIRST COURT OF APPEALS
                                                                         HOUSTON, TEXAS
                                                                      7/27/2015 11:31:09 AM
                                                                      CHRISTOPHER PRINE
                                                                                     CLERK

                       NO. 01-14-00013-CV

                                                           FILED IN
                                                    1st COURT OF APPEALS
                      In the Court of Appeals           HOUSTON, TEXAS
         for the First Supreme Judicial District    7/27/2015
                                                   of  Texas11:31:09 AM
                                                    CHRISTOPHER A. PRINE
                         at Houston, Texas                   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


           RESPONSE TO MOTION FOR REHEARING


George W. Long
State Bar No. 12517300
2000 East 42nd Street, Suite C-110
Odessa, Texas 79762
432-614-1500 Telephone
361-587-7705 Facsimile
george.long.mexico@gmail.com



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                          Response to Motion for Rehearing


       Winning is the goal of every attorney; winning within the rules should
also be every attorney’s goal. Texas Disciplinary Rules 3.01 and 3.03,
together with the Texas Lawyer’s Creed and the Standards for Appellate
Conduct, prescribe boundaries within which an ethical lawyer’s conduct must
conform.
       I cannot defend this appeal without a valid basis. At this point there is
no valid basis upon which a defense can be based. No one has, or can,
challenge the jury finding of 100% negligence by Charles Hitchens.
       The evidence conclusively establishes Brewer Leasing’s ownership of
the trailer, a fact no one has ever denied. I see no way for Brewer Leasing
to escape liability for Hitchens’ negligent operation of the trailer.
       This Court’s opinion absolves Brewer Leasing of liability for Hitchens’
negligent operation of the power unit. Decades of experience in trucking
force me to admit that Brewer Leasing cannot use a claim of an oral lease to
shift liability onto its parent company. Virtually every trial level litigation case
I currently prosecute (all of which relate to trucking), involve the state and
federal requirement that commercial vehicle leases be in writing, a main
purpose of which requirement is to clearly define liability between motor
carriers working under contract or lease. The west Texas oil patch is rife with
motor carriers who seek to avoid payment and other liabilities due their
lessors by failing to enter written leases in order that they ‘re-write’ their lease
at trial.
       The last thing I wish to see for the benefit of my clients and my practice
is a Texas appellate court deciding a liability case between motor carriers
based on and alleged oral contract. Such an appellate decision will
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encourage and in part enable all non-paying motor carriers who lease trucks
from other motor carriers to allege oral contracts knowing that they will be
considered to assess liability, whether for payment between lessor and
lessee or payment to third party claimants. It will declare ‘open season’ on
small, unsophisticated owner-operator motor carriers by larger motor carriers
who seek, from the beginning, to exploit them financially.
      Why would the insurance carrier for Brewer Leasing tender policy limits
in this case prior to trial if they thought that they had a valid defense by virtue
of an oral contract absolving Brewer Leasing of any liability? Even they knew
that such a defense was legally improper, as do I.
      I wish I could agree with the opinion on that point, but my “concurrent
duties to the legal system and the public good”, and to the overwhelming
majority of the clients in my practice, require me to “avoid the infliction of
harm on the appellate process, the courts, and the law”. I am required to
fairly and accurately characterize and apply the law, including reporting legal
authority adverse to my position. The court’s opinion on this point is wrong;
the essence of trucking law from 1956 until today is to prohibit motor carriers
(or non-motor carriers operating without legal authority) to evade
responsibility based on oral claims that seek to shift responsibility for the
vehicles they own or operate to others.
      Mr. Brewer and Mr. Box’s testimony, if viewed in their favor, might
create doubt on this issue were it a legal defense, but it is not a proper legal
defense.
      I have owned and managed registered motor carriers in Texas intra-
and interstate commerce and in the Republic of Mexico continuously for the
past twenty years. I owe it to the trucking industry and to this court to see
that the law is correctly stated. No doubt the court believes that it has
                                                                                  4
reached a ‘logical’ decision on this point, but as Justice Oliver Wendell
Holmes, Jr. reminded us, ‘the life of the law has not been logic, it has been
experience’. The current state of the law that shuns accepting oral
agreements to place or avoid liability for motor carriers stem from the wealth
of experience acquired prior to 1956. I fear the court is looking narrowly and
logically at this point and is not considering the huge body of regulatory and
statutory law which derived from trucking experience, all of which demand
that liability remain with the vehicle owner unless shifted, in writing, to
another. The vehicle owner was Brewer Leasing. Brewer Leasing is liable.




                                         Respectfully Submitted:


                                         ________________________
                                         George W. Long
                                         Attorney for Appeallent
                                         State Bar No. 12517300
                                         2000 E. 42nd Street, Suite C-110
                                         Odessa, Texas 79762
                                         432-614-1500




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                  CERTIFICATE OF COMPLIANCE

      This brief complies with the typeface and length requirements of

Texas Rule of Appellate Procedure 9.4 because:

(1)   This brief complies with typeface and the type style requirements

      of Rule 9.4(e) because the brief has been prepared in a

      conventional typeface using MSWord with Arial 14-point font.

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

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

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



                                   _______________________
                                   George W. Long
                                   Attorney for Appellee




                                                                       6
                  CERTIFICATE OF SERVICE

     This is to certify that in accordance with the Texas Rules of

Appellate Procedure a true and correct copy of the above and

foregoing Brief of Appellee has been sent to all parties and/or counsel

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


     Harry Herzog
     Hherzog@hcmlegal.com
     David A. Carp
     Dcarp@hcmlegal.com
     Herzog & Carp
     P.O. Box 218845
     Houston, Texas 77218-8845
     713-781-7500 Telephone
     713-781-4797 Facsimile

     Dorothea ADotty@ L. Vidal
     Dvidal@gpd.com
     Geary, Porter & Donovan, P.C.
     One Bent Tree Tower
     16475 Dallas Parkway, Suite 400
     Addison, Texas 75001-6837
     972-349-2211 Telephone
     972-931-9901 Facsimile



                                   ___________________________
                                   George W. Long
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