ACCEPTED
13-15-00348-CV
THIRTEENTH COURT OF APPEALS
CORPUS CHRISTI, TEXAS
11/13/2015 1:09:31 PM
Dorian E. Ramirez
CLERK
No. 13-15-00348-CV
FILED IN
13th COURT OF APPEALS
In the Court of Appeals for the Thirteenth Court of CHRISTI/EDINBURG,
CORPUS Appeals District TEXAS
Corpus Christi, Texas 11/13/2015 1:09:31 PM
DORIAN E. RAMIREZ
Clerk
TOTAL E&P USA, INC.
Appellant,
v.
MO-VAC SERVICES COMPANY, INC.
Appellee.
ON APPEAL FROM THE 275TH JUDICIAL DISTRICT COURT,
HIDALGO COUNTY, TEXAS
Trial Court Case Number C-023-05-E
REPLY BRIEF OF APPELLANT TOTAL E&P USA, INC.
ELLIS, KOENEKE & RAMIREZ, L.L.P.
Edmundo O. Ramirez
State Bar No. 16501420
Email: eor@ekrattorneys.com
Minerva I. Zamora
State Bar No. 24037765
Email: miz@ekrattorneys.com
1101 Chicago Ave.
McAllen, Texas 78501
Telephone: (956) 682-2440
Facsimile: (956) 682-0820
Counsel for Appellant Total E&P USA, Inc.
Oral Argument Requested
TABLE OF CONTENTS
TABLE OF CONTENTS .......................................................................................... ii
INDEX OF AUTHORITIES.....................................................................................iv
STATEMENT ON ORAL ARGUMENT ................................................................. v
ISSUES PRESENTED............................................................................................... v
I. The trial court abused its discretion by allowing Mo-Vac’s counsel to
introduce evidence that was irrelevant, inadmissible, and highly prejudicial
through impeachment on direct examination of Edmundo Ramirez, who was
not offering any expert testimony in this matter, and such admission of
evidence was calculated to cause and probably did cause the rendition of an
improper judgment........................................................................................... v
II. The trial court abused its discretion by entering a final judgment on the
jury’s verdict because the jury’s verdict was not supported by sufficient
evidence and was grossly excessive ................................................................ v
STATEMENT OF FACTS ........................................................................................ 2
SUMMARY OF THE ARGUMENT ........................................................................ 6
ARGUMENT ............................................................................................................. 7
I. By Allowing Mo-Vac’s Counsel to Question Edmundo Ramirez (Who
Repeatedly Stated that he Was Not Offering any Expert Opinion in this
Case) Regarding the Expert Testimony he Gave on Attorneys’ Fees in a
Wholly Unrelated Matter, the Trial Court Admitted Evidence that Was
Completely Irrelevant, Inadmissible, Served No Other Purpose than to
Confuse and Mislead the Jury, and Was Highly Prejudicial ...................... 7
A. Mo-Vac’s Line of Questioning Regarding the Expert Opinion of
Edmundo Ramirez Rendered in a Completely Unrelated Case Was
Irrelevant ............................................................................................... 7
ii
B. Admission of Mr. Ramirez’s Testimony Regarding his Opinion of
Reasonable Attorneys’ Fees in a Wholly Separate and Unrelated Case
Was Not Harmless Error ..................................................................... 12
C. Admission of Mo-Vac’s Questioning of Mr. Ramirez Regarding the
Separate, Unrelated Playboy Case Was Unfairly Prejudicial ............. 13
II. The Amount of Attorneys’ Fees Awarded by the Jury and Entered in the
Court’s Final Judgment Was Not Supported by Sufficient Evidence and
Was Grossly Excessive as a Matter of Law ............................................. 15
A. The Evidence Presented at Trial Was Insufficient to Support the
Award of Attorneys’ Fees ................................................................... 15
B. The Award of Attorneys’ Fees for the Sole Surviving Claim of Breach
of Confidentiality Agreement Was Grossly Excessive as a Matter of
Law ...................................................................................................... 24
PRAYER .................................................................................................................. 30
CERTIFICATE OF COMPLIANCE ....................................................................... 32
CERTIFICATE OF SERVICE ................................................................................ 32
APPENDIX .............................................................................................................. 33
iii
INDEX OF AUTHORITIES
CASES
Duinick Bros. v. Howe Precast, Inc., No. 4:06-CV-441, 2008 WL 4411641(E.D.
Tex. Sept 23, 2008) ................................................................................................ 8, 9
Editorial Caballero, S.A. de C.V. v. Playboy Enerprises, Inc, 359 S.W.3d 318
........................................................................................................................9, 12, 13
Harrison v. Texas Employers Ins. Ass’n, 747 S.W.2d 494...................................... 10
Hogue v. Kroger Store No. 107, 875 S.W.2d 477 ................................................... 10
JLG Trucking, LLC v. Garza, 466 S.W.3d 157 ....................................................... 10
Owens-Corning Fiberglas Corp v. Malone, 916 S.W.2d 551 ................................. 11
El Apple I, Ltd. v. Olivas, 370 S.W.3d 757 (Tex. 2012) .......................................... 15
City of Laredo v. Montano, 414 S.W.3d 731 (Tex. 2013) ...........................17, 18, 19
Tony Gullo Motors, 212 S.W.3d .............................................................................. 20
Smith v. Patrick W.Y. Tam Trust 296 S.W.3d 545................................................... 24
Wythe II Corp. v. Stone, 342 S.W.3d 96 .................................................................. 25
Arthur Anderson & Co. v. Perry Equip. Corp., 945 S.W.2d 812 (Tex. 1997)
.................................................................................................................................. 26
Young v. Sanchez, No. 04-10-00845-CV, 2011 ....................................................... 28
RULES
Tex. R. App. P. 39 ...................................................................................................... v
Tex. R. Evid. 403 ..................................................................................................... 14
iv
STATEMENT ON ORAL ARGUMENT
Appellant Total believes that oral argument would assist the Court in
deciding the issues involved, and therefore respectfully requests an oral argument
pursuant to Rule 39 of the Texas Rules of Appellate Procedure.
ISSUES PRESENTED
I. The trial court abused its discretion by allowing Mo-Vac’s counsel to
introduce evidence that was irrelevant, inadmissible, and highly prejudicial
through impeachment on direct examination of Edmundo Ramirez, who was
not offering any expert testimony in this matter, and such admission of
evidence was calculated to cause and did cause the rendition of an improper
judgment.
II. The trial court abused its discretion by entering a final judgment on the
jury’s verdict because the jury’s verdict was not supported by sufficient
evidence and was grossly excessive.
v
No. 13-15-00348-CV
In the Court of Appeals for the Thirteenth Court of Appeals District
Corpus Christi, Texas
TOTAL E&P USA, INC.
Appellant,
v.
MO-VAC SERVICES COMPANY, INC.
Appellee.
ON APPEAL FROM THE 275TH JUDICIAL DISTRICT COURT,
HIDALGO COUNTY, TEXAS
Trial Court Case Number C-023-05-E
REPLY BRIEF OF APPELLANT TOTAL E&P USA, INC.
TO THE HONRABLE JUSTICES OF THE COURT:
COMES NOW Appellant Total E&P USA, Inc. and files this Reply Brief of
Appellant, requesting that the Court reverse the trial court’s judgment and render
judgment or, in the alternative, reverse the trial court’s judgment and remand the
case for a new trial to determine the specific amount of work performed and hours
spent on the sole-surviving claim of breach of confidentiality agreement against
Total.
STATEMENT OF FACTS
This case is on appeal from a jury verdict granting $370,375 in attorneys’
fees to counsel for Mo-Vac Services Company, Inc. (hereinafter “Mo-Vac”) for its
representation on Mo-Vac’s sole surviving claim of breach of confidentiality
agreement against the sole surviving Defendant, plus $50,000 in conditional
appellate fees. This was the second jury verdict in this matter. The first was
rendered after the case was tried on the merits on each of Mo-Vac’s claims in both
contract (breach of confidentiality agreement and breach of oral contract) and tort
against Defendants Total E&P USA, Inc. (hereinafter “Total”) and Pool Well
Services, Co. a/k/a Nabors Well Services (hereinafter “Pool”). (C.R. 1: 64-65).
The jury in the first trial found in favor of Mo-Vac on each of its claims against
both Defendants. (Id.). The trial court then entered a Final Judgment finding in
favor of Mo-Vac on each of its claims, and finding that Total and Pool were jointly
and severally liable for attorneys’ fees to Mo-Vac in the amount of $433,912.50.
(Id.). The attorneys’ fees rendered against Total and Pool were awarded in
connection with Mo-Vac’s contract claims of breach of confidentiality agreement
and breach of oral contract. (See Supp. C.R. 1: 68-69). Total and Pool appealed
the jury’s findings. (See Supp. C.R. 1: 59).
Page 2 of 33
On August 23, 2012, this Court of Appeals issued its Memorandum Opinion
in which it reversed the jury’s decision on each of Mo-Vac’s claims against Total
and Pool, except for breach of confidentiality agreement against Total, and
rendered a take-nothing judgment against Mo-Vac on each of its claim other than
breach of confidentiality agreement against Total. (Supp. C.R. 1: 73-74). The
Court of Appeals affirmed the lower court’s award of $100,000 for Mo-Vac’s
breach of confidentiality claim. (Supp. C.R. 1: 73). Rather than uphold the
attorneys’ fees already awarded to Mo-Vac, the Court of Appeals instead reversed
the award of $433,912.50 in attorneys’ fees (for which Total and Pool had been
found jointly and severally liable by the lower court), and remanded the case back
to the trial court to determine a new award of attorneys’ fees in connection with the
sole remaining claim against the sole remaining defendant. (Id.).
Despite this clear reversal by the Court of Appeals of the original award of
attorneys’ fees (which had been rendered against both Total and Pool in joint and
several liability), Mo-Vac ignored the Court of Appeals directive on remand and
instead attempted to enforce the original award in its entirety. (See Supp. C.R. 1:
73, and C.R. 1: 56-71). Specifically, Mo-Vac filed its Motion to Determine
Attorneys’ Fees wherein it requested that the trial court award attorneys’ fees in the
same amount that was originally awarded against both Defendants and was
Page 3 of 33
reversed on appeal. (See C.R. 1: 56-58). Recognizing that a trial was necessary in
order to comply with the Court of Appeals’ order of remand on the issue of
attorneys’ fees, on October 11, 2013, Total requested that the trial court set a
docket control conference and set a trial in this cause. (C.R. 1: 75-77). On
January 27, 2015, the trial court issued an Order Re-Setting Trial Date, setting a
trial date of April 13, 2015 for the second trial in this matter. (C.R. 1: 87).
Despite the fact that the only issue involved in this case was the amount of
attorneys’ fees accrued by Mo-Vac in connection with its breach of confidentiality
agreement claim, counsel for Mo-Vac called to the witness stand Mr. Edmundo
Ramirez (hereinafter “Mr. Ramirez”), counsel for Total, and questioned him
regarding the expert witness testimony he gave in an entirely different case as to
the reasonable and necessary attorneys’ fees in that specific case. (See R.R. 5: 44
54). Total’s counsel objected to the line of questioning on the grounds that it was
irrelevant as Mr. Ramirez was not offering expert testimony in this case. (R.R. 5:
46, line 21—47, line 4; 47, line 19—48, line 21; 49, line 11—51, line 4). The trial
court sustained some objections and overruled others. (R.R. 5: 46, line 21—47,
line 4; 47, line 19—48, line 21; 49, line 11—51, line 4; 60, lines 1-16).
Mo-Vac called Adrian Martinez (hereinafter “Mr. Martinez”), Mo-Vac’s
lead counsel at the prior trial, to testify as an expert on attorneys’ fees and to
Page 4 of 33
explain the attorneys’ fees incurred in this case. (R.R. 5: 97-225). During his trial
testimony, Mr. Martinez did not set forth the specific tasks and time incurred in
connection with the sole surviving cause of action, breach of confidentiality
agreement against Total. Instead, Mr. Martinez relied on a compilation (that was
not created contemporaneously) from which he generalized that 90% of the time
recorded could be attributed to the breach of confidentiality claim. (See R.R. 5:
126, lines 13-14; 133, line 22—134, line 8; 154, line 21—160, line 10). This
testimony was not only insufficient, but, as discussed in detail below, was
controverted by the testimony of Total’s expert witness and the facts of this case.
(See R.R. 6: 22, line 2—24, line 7, and R.R. 6: 27, line 24—29, line 6).
After hearing arguments and expert testimony from both sides, the trial court
submitted this cause to the jury. The jury returned a verdict for $370,375 in
attorneys’ fees, along with $50,000 in conditional appellate fees. (C.R. 1: 105-
110; App. Ex. 1). The trial court then entered a Final Judgment in the amounts
awarded by the jury. (C.R. 1: 113-115; App. Ex. 2). Total filed a Motion for New
Trial, which was ultimately denied by the trial court. (C.R. 1: 116-129; 191). The
instant appeal followed. (See C.R. 1: 192-194).
Page 5 of 33
SUMMARY OF THE ARGUMENT
The trial court erred in allowing Mo-Vac’s counsel to question Mr. Ramirez
regarding the details of the expert opinion he offered in a separate case, wholly
unrelated to the one at bar. The evidence Mo-Vac’s counsel sought to and did in
fact illicit through improper impeachment on direct exam was inadmissible, highly
prejudicial, contained no probative value, was irrelevant, and its admission caused
the rendition of an improper judgment.
The trial court further erred by upholding the jury’s verdict because the
jury’s verdict was not supported by sufficient evidence and was grossly excessive
as a matter of law. Mo-Vac’s counsel failed to provide contemporaneous time
records, itemized records, bills, or any other documentary evidence showing the
specific amount of time and work performed in connection with Mo-Vac’s sole
surviving cause of action for breach of confidentiality agreement. The evidence
presented by Mo-Vac consisted of generalized summaries prepared after the fact
and failed to differentiate the specific amount of time spent on the only claim at
issue (breach of confidentiality agreement against the only remaining Defendant)
from the other claims presented at trial against both Defendants which were
subsequently dismissed. As such, there was insufficient evidence to support the
jury’s verdict. Moreover, the amount of attorneys’ fees ultimately awarded by the
Page 6 of 33
jury was grossly excessive compensation for the sole claim of breach of
confidentiality agreement.
ARGUMENT
I.
By Allowing Mo-Vac’s Counsel to Question Edmundo Ramirez
(Who Repeatedly Stated that he Was Not Offering any Expert Opinion in this
Case) Regarding the Expert Testimony he Gave on Attorneys’ Fees in a
Wholly Unrelated Matter, the Trial Court Admitted Evidence that Was
Completely Irrelevant, Inadmissible, Served No Other Purpose than to
Confuse and Mislead the Jury, and Was Highly Prejudicial
A. Mo-Vac’s Line of Questioning Regarding the Expert Opinion of
Edmundo Ramirez Rendered in a Completely Unrelated Case Was
Irrelevant
At trial, Mo-Vac called Edmundo Ramirez (hereinafter “Mr. Ramirez”), lead
trial counsel for Total, as its first witness. Mo-Vac had designated Mr. Ramirez as
an expert on attorneys’ fees, despite having no valid basis for doing so. As lead
counsel for Total, Mr. Ramirez could not have been expected to serve as an expert
on behalf of Mo-Vac, yet Mo-Vac designated him as an expert on the subject
matter of “the reasonableness of attorneys [sic] fees.” (C.R. 1: 143-145).
Nowhere in Mo-Vac’s designation did it specify that it was cross-designating Mr.
Ramirez. Instead, Mo-Vac’s designation indicates that it is designating Mr.
Ramirez as its own expert, wholly separate from any designation on behalf of
Total, without any basis for doing so. Clearly, this shows Mo-Vac’s intent to
Page 7 of 33
ensure that Mr. Ramirez was put on the stand no matter what. Mo-Vac was not
interested in any actual expert opinion by Mr. Ramirez in this case, but instead
wanted to question him regarding his testimony in a previous, wholly unrelated
case.
In its Appellee’s Brief to this Court, Mo-Vac misconstrues Total’s argument
regarding Duininck Bros. v. Howe Precast, Inc., No. 4:06-CV-441, 2008 WL
4411641 (E.D. Tex. Sept. 23, 2008). Total cites to Duininck for the proposition
that fees charged by another attorney or firm in another specific case are irrelevant
for the purposes of determining the fee customarily charged in the locality for
similar legal services, one of the eight Arthur Andersen factors applicable in this
case.1 Specifically, the court in Duininck stated the following:
1
The parties agreed that the factor test set forth in Arthur Andersen & Co. v. Perry Equip. Corp.
for determining reasonable attorneys’ fees was the applicable standard for the jury to use in this
case. (R.R. 5: 17, lines 7-12). Specifically, Arthur Andersen sets forth the following eight
factors that a factfinder should consider when determining the reasonableness of a fee:
1. the time and labor required, the novelty and difficulty of the questions involved,
and the skill required to perform the legal service properly;
2. the likelihood ... that the acceptance of the particular employment will preclude
other employment by the lawyer;
3. the fee customarily charged in the locality for similar legal services;
4. the amount involved and the results obtained;
5. the time limitations imposed by the client or by the circumstances;
6. the nature and length of the professional relationship with the client;
7. the experience, reputation, and ability of the lawyer or lawyers performing the
services; and
8. whether the fee is fixed or contingent on results obtained or uncertainty of
collection before the legal services have been rendered.
Page 8 of 33
Moreover, what a single law firm charges for a particular set of services and
its choice of tactics in representing a given client are issues decidedly
distinct from deciding what constitutes a customary fee. The third Land
Rover factor is plainly aimed at a composite of legal fees charged for a given
service. 2 Thus, focusing on one law firm's billing practices is unhelpful in
determining what is “customary.” The thrust of this lawsuit is whether
Duininck Brothers' fees, not those generated by Howe Precast, fall within
the range of reason.
Duininck Bros., No. 4:06-CV-441, 2008 WL 4411641, at *3.
The same logic used in Duininck Bros. regarding opposing counsel’s
attorneys’ fees may be applied to the amount of attorneys’ fees determined to be
reasonable and necessary in a specific, wholly unrelated case. Such an isolated
instance cannot be used to somehow speak to reasonable and necessary attorneys’
fees awarded for breach of contract claims generally. However, this is exactly
what Mo-Vac sought to accomplish by questioning Mr. Ramirez about the opinion
he rendered in the specific case of Editorial Caballero, S.A. de C.V. v. Playboy
Enterprises, Inc. (hereinafter “the Playboy case”). By continuously referring to the
attorneys’ fee opinion in the Playboy case and discussing the alleged factual
similarities between Playboy and the case at bar, Mo-Vac’s counsel essentially
planted within the jury the idea of “if an attorneys’ fee award substantially greater
945 S.W.2d 812, 818 (Tex. 1997).
2
The court in Duininck Bros. cites to the factors for determining attorneys’ fees set forth by the
Texas Supreme Court in Land Rover U.K., Ltd. v. Hinojosa, 210 S.W.3d 604, 607 (Tex. 2006).
However, these factors are identical to the factors for determining attorneys’ fees set forth by the
Texas Supreme Court in its earlier opinion of Arthur Andersen & Co. v. Perry Equip. Corp., 945
S.W.2d 812, 818 (Tex. 1997), relied on by the parties in the instant case.
Page 9 of 33
than the amount of damages was reasonable there, why should it not be reasonable
here.”
As set forth above, Mo-Vac had no valid basis for calling Mr. Ramirez as an
expert on attorneys’ fees other than to introduce this irrelevant testimony having no
bearing on the issue of reasonable and necessary attorneys’ fees in the case at bar.
Mo-Vac claims that such testimony was in fact relevant as impeachment on cross-
examination. However, Mo-Vac’s argument regarding cross-examination fails
because Mr. Ramirez had not provided any opinion or testimony in this case on
which he could be cross-examined. The general case law addressing cross-
examination, as well as the cases cited by Mo-Vac in its Brief all contemplate
situations addressing cross-examination of a witness who has provided trial or
deposition testimony. See generally Harrison v. Texas Employers Ins. Ass’n, 747
S.W.2d 494, 497-498 (Tex.App.—Beaumont 1988, writ denied); Hogue v. Kroger
Store No. 107, 875 S.W.2d 477, 479-480 (Tex.App.—Houston [1st Dist.] 1994,
writ denied); JLG Trucking, LLC v. Garza, 466 S.W.3d 157, 160-162 (Tex. 2015).
Mo-Vac fails to cite to any case law addressing the specific situation presented
here where the expert witness is cross examined without having provided any trial
or deposition testimony as an expert in the case.
Page 10 of 33
Mo-Vac cites to Owens-Corning Fiberglas Corp. v. Malone for the
proposition that a party may call his opponent’s expert witness prior to his direct
testimony for the purpose of impeaching credibility. See 916 S.W.2d 551, 567
(Tex.App.—Houston [1st Dist.] 1996, aff’d on other grounds, 972 S.W.2d 35 (Tex.
1998). However, the facts presented in Owens-Corning are wholly distinguishable
from the case at bar. Specifically, in Owens-Corning, the defendant had
designated Dr. Kerby (who regularly served as an expert for the defendant in cases
throughout the country) as its expert witness and announced its intention to call Dr.
Kerby as an expert during its case in chief at trial. See id., at 566-567. The
plaintiffs in Owens-Corning designated Dr. Kerby as a fact witness and presented
his deposition testimony at trial during their case in chief. See id., at 566. After
the plaintiffs presented Dr. Kerby’s deposition testimony, the defendant abandoned
its plan to call him to the stand, and argued on appeal that the plaintiffs should not
have been able to call Dr. Kerby during their case in chief for the sole purpose of
attacking his credibility. See id., at 567. The appellate court overruled the
defendant’s point of error in this regard. Id.
Accordingly, in Owens-Corning, Dr. Kerby had provided deposition
testimony from which the plaintiffs were able to impeach his credibility. These
facts are wholly distinguishable from the case at bar where Mr. Ramirez had not
Page 11 of 33
provided any deposition or trial testimony as an expert providing an expert opinion
in this case. In this case, there was no prior expert opinion upon which Mo-Vac
could cross-examine Mr. Ramirez.
B. Admission of Mr. Ramirez’s Testimony Regarding his Opinion of
Reasonable Attorneys’ Fees in a Wholly Separate and Unrelated Case
Was Not Harmless Error
As discussed in detail above, the trial court erred in allowing Mo-Vac’s
improper impeachment of Mr. Ramirez on an opinion he offered in another, wholly
separate case where Mr. Ramirez had not provided any prior expert opinion
testimony in this case upon which he could be cross-examined. Contrary to Mo-
Vac’s argument, this admission of testimony was in no way harmless error. Mo-
Vac points to the fact that testimony regarding this same Playboy case by Total’s
expert, Ray Thomas, was admitted without objection. However, Mo-Vac’s
questioning of Mr. Thomas regarding the Playboy case is an entirely separate
matter than similar questioning of Mr. Ramirez.
With regard to Mr. Thomas, he was merely questioned regarding his opinion
of the amount of attorneys’ fees awarded in the Playboy case, and how that case
differs from the case at bar. Respecting Mr. Ramirez, his questioning was very
different because he was directly involved in the Playboy case and provided the
expert opinion. In the case at bar, Mr. Ramirez was not serving as an expert, but
Page 12 of 33
instead was serving as lead trial counsel for Total. However, Mo-Vac’s counsel
was able to undermine Mr. Ramirez’s credibility in the instant case and confuse
and mislead the jury by insinuating that the same opinion personally given by Mr.
Ramirez in another case should apply in the instant case. The fact that Mo-Vac
intended to question Mr. Ramirez on the stand no matter what, is emphasized by
Mo-Vac’s own designation of Mr. Ramirez as an expert, separate from any
designation of by Total.
C. Admission of Mo-Vac’s Questioning of Mr. Ramirez Regarding the
Separate, Unrelated Playboy Case Was Unfairly Prejudicial
As discussed in detail above, questioning regarding Mr. Ramirez’s expert
opinion rendered in the Playboy case, a case entirely unrelated to the one at bar and
involving its own set of facts, was completely irrelevant. However, assuming
arguendo that such testimony was relevant, it still should have been excluded
because the prejudicial nature of such testimony outweighed any probative value it
may have had.
Mo-Vac’s questioning of Mr. Ramirez, Total’s lead trial counsel, regarding
the unrelated and separate Playboy case was clearly designed to prejudice the jury
against Mr. Ramirez and make the jury question Mr. Ramirez’s credibility as
Total’s lead counsel. Under Texas Rule of Evidence 403, “[t]he court may exclude
Page 13 of 33
relevant evidence if its probative value is substantially outweighed by a danger of
… unfair prejudice.” Tex. R. Evid. 403.
Through Mo-Vac’s questioning, the jury heard from Mr. Ramirez that he
had offered an expert opinion in the Playboy case (completely unrelated to the case
at bar) that the attorneys’ fees award should be greater than the amount of
damages awarded, under the specific facts of that case. This was clearly designed
to prejudice the jury against Mr. Ramirez, as lead counsel for Total, and call into
question his credibility as an advocate for Total. Mo-Vac was able to introduce to
the jury that “if an amount of attorneys’ fees greater than the amount of damages
was okay in that case (as Mr. Ramirez himself opined), then it should be okay here
in this case.”
Mo-Vac argues that even if such testimony was prejudicial, its admission
was harmless because it was cumulative of other testimony regarding the Playboy
case by Mr. Thomas. However, as discussed above, Mr. Thomas’s testimony was
completely different from Mr. Ramirez’s testimony on the Playboy case. Mr.
Thomas was simply asked his opinions on the unrelated case as an expert on
attorneys’ fees. In contrast, Mr. Ramirez was asked directly about the opinion he
had rendered in the unrelated case solely for the purpose of confusing the jury and
calling into doubt Mr. credibility as an advocate in this case.
Page 14 of 33
II.
The Amount of Attorneys’ Fees Awarded by the Jury and
Entered in the Court’s Final Judgment
Was Not Supported by Sufficient Evidence and
Was Grossly Excessive as a Matter of Law
A. The Evidence Presented at Trial Was Insufficient to Support the Award
of Attorneys’ Fees
As set forth at length in Total’s Appellant’s Brief, Mo-Vac’s compilation of
work performed submitted at trial and the expert testimony of Mr. Martinez,
counsel for Mo-Vac, were insufficient to support the jury’s award of attorneys’
fees in this case. As the Texas Supreme Court reasoned in El Apple I, Ltd. v.
Olivas in connection with the lodestar method for determining attorneys’ fees,
“attorneys should document their time much as they would for their own clients,
that is, contemporaneous billing records or other documentation recorded
reasonably close to the time when the work is performed.” 370 S.W.3d 757, 763
(Tex. 2012) (finding that the evidence was insufficient to support the award of
attorneys’ fees where the attorneys based their time estimates on generalities such
as the amount of discovery in the case, the number of pleadings filed, the number
of witnesses questioned, and the length of the trial, and the court could not discern
from the evidence how many hours each of the tasks required and whether that
time was reasonable).
Page 15 of 33
Here, it is undisputed that Mo-Vac’s counsel did not rely on
contemporaneous time records kept for billing purposes. (See R.R. 5: 192, lines 1-
8). Instead, Mr. Martinez relied on a “compilation” of work performed that was
created after the fact and failed to specify which of Mo-Vac’s six original causes of
action was being addressed for each of the particular tasks listed in the
compilation. Specifically, the compilation contains a laundry list of general tasks
such as “researched legal issues,” “e-mail with client,” “drafted letter,” etc. that fail
to provide any indication as to which of the causes of action the specific task
pertains. (R.R. 10: Ex. 9). Moreover, the documents supporting the tasks set
forth in this compilation no longer exist. (See R.R. 6: 71, line 16—72, line 4).
The compilation of work performed relied on by Mr. Martinez in his expert
testimony is obviously flawed and unreliable. Specifically, as an example, there
are days set forth in the compilation that list hours spent and hourly amounts
incurred for three separate attorneys for attending trial on days when, in fact, the
court was not in session.3 Despite the clear flaws in the compilation, Mr. Martinez
3
Q. And what does the entry say?
A. Well, which one do you want me to tell you about? For me? The ones for Mr. Valdez?
or Mr. Garcia? Which ones do you want?
Q. A, B and C.
A. A, B, C. We start with 4/22.
Q. Let’s stick to the date we’re talking about, 4/24.
A. Sorry. Hold on. There’s one for me of ten hours.
Q. Okay. What does it say?
Page 16 of 33
used this summary in support of his trial testimony regarding the amount of work
performed in connection with the breach of confidentiality claim.
Under Texas case law, an attorney may testify as to the details of his work.
City of Laredo v. Montano, 414 S.W.3d 731, 736 (Tex. 2013) (“in all but the
simplest cases, the attorney would probably have to refer to some type of record or
documentation to provide this information”). Here, Mo-Vac contends that the
compilation relied on at trial, coupled with the testimony provided by Mr.
A.
Trial, A.R.M., which is me.
Q.
And that means you attended trial that day?
A.
Yes, sir.
Q.
And then next entry says trial for Mr. Garcia?
A.
Yes, Mr. Garcia. And then there’s one for Reymundo Valdez.
Q.
And they’re all different hours, correct?
A.
Yes, sir.
Q.
And then the one prior to that, the 4/23, what is the entry for you? You attended
trial?
A. Yeah, yes sir.
Q. And Mr. Garcia?
A. Yes, sir.
Q. Are you sure that’s correct?
A. Well, are you –
Q. I’m asking the questions, Mr. Martinez. Are you sure that that record is reliable,
and that you attended trial, and all three of the attorneys that you have on there
attended trial that date?
A. You know, if you have another document that says that we weren’t in trial that
date, then obviously this is incorrect, sir.
Q. I have another document.
A. Well then show it to me because it could be incorrect. I’m not going to mince
words and dates with you. But is that the only dates that you’re –
Q. I have the record. And the record does not reflect that we had trial that day. The
Court took off those two days.
A. I do remember that we were off some days. Okay. What other days do you have
that show that besides those two?
(R.R. 5: 208, line 4—209, line 20).
Page 17 of 33
Martinez, constitute sufficient evidence as to the amount of attorneys’ fees
incurred. However, rather than describing discrete tasks performed specifically in
furtherance of the breach of confidentiality agreement claim, Mr. Martinez instead
broadly testified that he attributes 90% of the work performed in this matter to the
sole remaining claim for breach of confidentiality agreement.
Mr. Martinez’s testimony did not meet the level of evidence deemed
sufficient in City of Laredo v. Montano, 414 S.W.3d 731 (Tex. 2013). The issue
before the Texas Supreme Court in City of Laredo was the reasonableness of the
attorneys’ fees awarded to the home owner under a fee shifting statute allowing for
attorneys’ fees after an unsuccessful eminent domain suit brought by the City. Id.,
at 732-733. In City of Laredo, the court analyzed the attorneys’ fees claims by two
attorneys, Richard Gonzalez and Adriana Benavides-Maddox. Id., at 733. The
court found that the testimony of Attorney Benavides-Maddox regarding her
unbilled trial work was some evidence on which to base an award of attorneys’
fees because it concerned contemporaneous or immediately completed work for
which she had not had time to bill, and the billing inquiry involved
contemporaneous events and discrete tasks. See id., at 737. In contrast, the court
in City of Laredo found that the testimony provided by Attorney Gonzalez, who
did not make any contemporaneous record of his time or prepare any bills or
Page 18 of 33
invoices, was not evidence of a reasonable attorney fee where he testified that he
spent a lot of time getting ready for the lawsuit, conducted a lot of legal research,
visited the premises many, many times, and spent countless hours on motions and
depositions. See id.
In its Appellee’s Brief, Mo-Vac contends that it presented more evidence at
trial to support its attorneys’ fees than what the court deemed sufficient in City of
Laredo as to Attorney Benavidez-Maddox. (Mo-Vac’s Appellees’ Brief, at pg. 16).
However, Mo-Vac ignores the fact that, contrary to the case at bar, City of Laredo
involved only one claim (eminent domain), and all the attorneys’ work performed
was necessarily in connection with this claim for which attorneys’ fees could be
awarded. As such, Attorney Benavidez-Maddox did not need to get into the
specificity required here and segregate the all the work she performed by
individual claim.
Contrary to Mo-Vac’s argument, the testimony provided by Mr. Martinez in
this case is in fact similar to that of Attorney Gonzalez in City of Laredo, whose
testimony was found insufficient. Specifically, Attorney Gonzalez admitted that
he had no bill or time records, “but pointed to the ‘thousands and thousands and
thousands of pages that were accumulated in this case’ as evidence of his time
investment.” Id., 414 S.W.3d 731, 735 (Tex. 2013). Similarly, here, when asked
Page 19 of 33
during his trial testimony what work he performed in connection with the breach of
confidentiality claim, Mo-Vac’s counsel basically testified that he had to sift
through thousands of pages within boxes of documents in order to piece together
the evidence to support the breach of confidentiality agreement. (See R.R. 5: 150,
line 23—154, line 3).
While Mr. Martinez does have a compilation of work performed, it does not
specify which tasks were performed in connection with which causes of action.
Mo-Vac asserts that an attorney’s opinion that he spent a particular percentage of
time on the claim for which attorneys’ fees are recoverable is generally sufficient
to prove segregation. (Mo-Vac’s Appellee’s Brief, at pg. 18, n.2 (citing Tony
Gullo Motors, 212 S.W.3d at 314, n.83)). However, here, Mr. Martinez takes his
compilation (created after the fact) and attributes virtually all of his time to the
single breach of confidentiality agreement claim. Breach of confidentiality
agreement was one of six claims alleged at the first trial against two separate
defendants, and one of two breach of contract claims alleged against Total. Mo-
Vac would have been able to recover attorneys’ fees for both the breach of oral
contract as well as breach of confidentiality agreement, had the Court of Appeals
not dismissed the claim for breach of oral contract.
Page 20 of 33
Further, Mo-Vac misrepresents the trial testimony of Ray Thomas, Total’s
expert on attorneys’ fees. Specifically, Mo-Vac claims that Mr. Thomas did not
offer any contrary opinions about the number of hours that were necessary to
prosecute Mo-Vac’s claim for breach of the confidentiality agreement, and sets
forth the following testimony:
Q. Okay. Let’s talk about the second part of the calculation. And that is
the hours that were necessary. Do you have an opinion as to how
many hours were necessary? Now, let’s just – in general. Instead of
breaking it down, how many hours for Adrian; how much for me?
But how many hours work was necessary to prosecute the breach of
confidentiality claim? Do you have an opinion in that regard?
A. No.
Q. No opinion?
A. No.
(See Mo-Vac’s Appellee’s Brief, at pg. 19 (citing R.R. 5: 80, lines 7-18)).
Notably, Mo-Vac neglects to include Mr. Thomas’ testimony continued on the next
page of the trial transcript, wherein he does in fact express an opinion as to the
second part of the analysis, the amount of hours necessary to prosecute the claim.
Specifically, Mr. Thomas testified as follows:
Q. The first step is you take a reasonable hourly rate, times the number of
hours that were necessary to advance, prosecute the particular claim,
gives you a dollar amount. That’s step one. Is that fair?
Page 21 of 33
A. Yes.
Q. And then step two is making an adjustment either up or down, based
on certain particulars of the case?
A. Yes
Q. Okay. All right. And you’ve given us – only opinions you’re
offering here today is the first part, the hourly rate, correct?
A. No.
Q. Did you have some opinions after all on how many hours were
necessary to prosecute the breach of the confidentiality claim?
A. I have opinions about that part of the analysis, but not the way
you asked me the question.
Q. Well, I will tell you what. Tell us what those opinions are?
A. All right. In order to determine what the necessary hours are, it is
important that contemporaneous time records be kept because.
Otherwise, after a long period of time in which it takes to prepare the
case for trial, and then in this particular case, the amount of time that
it takes to actually try the case, you know, how are we going to
conduct a meaningful review of the work that was done to see whether
it was necessary, or not. And so the law says that we’ve got to keep
or certain way that we should keep it is important to keep
contemporaneous time records. That means we make a little billing
slip saying on this day, that Laura Thomas performed these tasks, you
know, we reviewed the deposition, we prepared for hearing, we
attended a hearing, we did this or that, and this is how much time for
that day. If I have a paralegal working, my paralegal Lisa Shawn’s
been with me 19 years. She prepared a time slip for the work she did
that day. And then all of that is prepared and kept. So that in order
for someone to be able to review that and determine whether it was
necessary or not, we’ve got a record to look at. We have
Page 22 of 33
documentation. And in this case, we don’t have contemporaneous
time records. We don’t have any time slips. We don’t have what Mr.
Martinez said that he did. What he did was he created this summary
after the fact. And I think he said that he based it off e-mails that he
had, but he doesn’t have them anymore. And so there’s no way for
me to conduct a meaningful review to see whether these hours were
necessary, or not. I do have the summary that he prepared, admittedly
after the fact. But that summary is not detailed. And in many of the
time entries it doesn’t even say who the attorney was that was
performing the task. And so the documentation to make that review is
not available to me. And that’s why I cannot give you an opinion on
which hours were necessary, how many hours were necessary, or not.
I can tell you that this was a huge case as you said. Many witnesses.
600 Exhibits. Four thousand pages of a very long trial, you know, six
weeks of trial including pretrial. But for my review of the trial
record, a small part of that related to the breach of
confidentiality. I know that as Mr. Ramirez said, you asked for $10
million on the breach of the oral agreement and fraud. And according
to the jury $100,000 is related to the Confidentiality Agreement,
which is obviously a small part of the over all case.
(R.R. 5: 81, line 10—pg. 84, line 1) (emphasis added).
For the reasons set forth above, neither the compilation of time spent (which
sets forth general tasks without specifying which cause of action they apply to),
nor the testimony of Mo-Vac’s counsel (attributing essentially all of the work
performed to the breach of confidentiality claim) are sufficient evidence to support
the award of attorneys’ fees.
Page 23 of 33
B. The Award of Attorneys’ Fees for the Sole Surviving Claim of Breach of
Confidentiality Agreement Was Grossly Excessive as a Matter of Law
The $370,375 in attorneys’ fees awarded to Mo-Vac is grossly
disproportionate to the $100,000 in damages recovered by Mo-Vac in connection
with its sole surviving claim of breach of confidentiality agreement against the sole
surviving Defendant in this matter.
Mo-Vac misrepresents Total’s use of Smith v. Patrick W.Y. Tam Trust, 296
S.W.3d 545 (Tex. 2009). (See Mo-Vac’s Appellee’s Brief, at pg. 22).
Contrary to Mo-Vac’s contention, Total is not claiming that Tam Trust stands for
the global proposition that attorneys’ fees can never exceed the amount of damages
awarded. Rather, Total argues that the amount of attorneys’ fees awarded here was
unreasonable and grossly disproportionate, under the particular facts of this case.
Total cites to Tam Trust to illustrate the importance of considering the
amount involved and the results obtained in determinations of an award of
attorneys’ fees. 296 S.W.3d 545, 548 (Tex. 2009). In Tam Trust, the Texas
Supreme Court found that even though the amount of attorneys’ fees was
uncontested, the lower court erred in awarding the plaintiff attorneys’ fees that
greatly exceeded the amount actually recovered by the plaintiff. See id. In
reversing the lower court’s decision as to attorneys’ fees, the Texas Supreme Court
Page 24 of 33
stated “[b]ut the fee, though supported by uncontradicted testimony, was
unreasonable in light of the amount involved and the results obtained, and in the
absence of evidence that such fees were warranted due circumstances unique to
this case.” Id. Total does not deny that Tam Trust involved a different situation in
that the court in Tam Trust made the attorneys’ fees determination, not the jury.
However, Total contends that the same language regarding the importance of
considering the amount involved and results obtained as a factor in attorneys’ fees
determinations still applies to the case at bar.
Mo-Vac again misrepresents Total’s use of case law in its discussion of
Wythe II Corp. v. Stone, 342 S.W.3d 96 (Tex.App.—Beaumont 2011, pet. denied)
(See Mo-Vac’s Appellee’s Brief, at pg. 22). Contrary to Mo-Vac’s assertion, Total
does not cite to Wythe for the proposition that an attorneys’ fee that exceeds the
amount recovered is, in and of itself, sufficient to overturn an award of attorneys’
fees.
Instead, Total analogizes Wythe to the case at bar in that the jury in Wythe
awarded attorneys’ fees that were grossly disproportionate and unreasonable based
on the evidence presented and a misinterpretation of the Arthur Andersen factors.
See id., at 108. The court in Wythe found, after considering all of the Arthur
Andersen factors, that the evidence in the case did not provide sufficient
Page 25 of 33
justification for shifting the entire amount of the contingency fee to the appellant
because much of the time expended concerned a mandamus proceeding in which
the appellee was unsuccessful. Id. The case at bar is similar to Wythe in that the
jury here was presented with confusing and misleading evidence through Mo-
Vac’s questioning of Mr. Ramirez, and with irrelevant information pertaining to all
the work performed by Mo-Vac for each of its original claims against both
Defendants through the compilation relied on by Mo-Vac’s counsel.
One of the Arthur Andersen factors (the applicable factor test in the case at
bar) used to determine the reasonableness of attorneys’ fees is the amount
involved and the results obtained. See Arthur Andersen & Co., 945 S.W.2d at
818. Here, Mo-Vac originally sought to recover approximately $10 million for
various claims asserted against several defendants. (R.R. 5: 196, lines 18-20). At
the first trial in this case, Mo-Vac was awarded $750,000 on all of its claims
against Total, and $433,912.50 in attorneys’ fees (in joint and several liability with
Pool). (C.R. 1: 64-65). After an appeal of the first trial, this Court of Appeals
upheld only the $100,000 award for Mo-Vac’s breach of confidentiality claim,
dismissed all of Mo-Vac’s other claims against Total, and dismissed all of Mo-
Vac’s claims against Pool. (Supp. C.R. 1: 73-74). This ruling left Total as the
Page 26 of 33
only remaining Defendant, and breach of confidentiality agreement as the only
surviving claim.
The Court of Appeals remanded this case to the trial court on the sole issue
of reasonable and necessary attorneys’ fees incurred in connection with the only
remaining claim of breach of confidentiality agreement. Significantly, the trial
court had previously awarded $433,912.50 in attorneys’ fees to Mo-Vac. The
Court of Appeals could have chosen to affirm this award in upholding the lower
court’s award of $100,000 for breach of confidentiality agreement. In fact, Mo-
Vac’s own calculations based on Mr. Martinez’s testimony support this amount of
attorneys’ fees.4 (See Mo-Vac’s Appellee’s Brief, at pg. 27). However, by
remanding this case for a determination of a new attorneys’ fees amount, the Court
of Appeals clearly did not think the original amount was reasonable for the sole
surviving claim against the sole surviving Defendant. While the amount ultimately
awarded by the jury in the second trial of this case is less than the amount of
attorneys’ fees awarded by the trial court, it is still grossly disproportionate to the
amount recovered.
4
“Thus, the jury could have awarded as much [sic] $869,375 (1,738.75 hours at $500/hour) or
$436,687.50 (1,738.75 hours at $250/hour) and as low as $30,000 (based on Mr. Thomas’
testimony). (Mo-Vac’s Appellee’s Brief, at pg. 27).
Page 27 of 33
Mo-Vac places great emphasis on case law standing for the proposition that
a disproportionately large amount of attorneys’ fees in comparison to the amount
of damages awarded does not in and of itself render the attorneys’ fees excessive.
While Total does not disagree with this general proposition, in this case the
attorneys’ fee award was grossly excessive based on the facts involved, and no
extenuating circumstances existed to justify such a disproportionate fee.
In its Appellee’s Brief, Mo-Vac cites to a string of cases without providing
any information as to the specific facts involved that rendered a disproportionate
award of attorneys’ fees appropriate in those particular cases. (Mo-Vac’s
Appellee’s Brief, at pg. 26). For example, in Young v. Sanchez, one of the cases
cited by Mo-Vac, extenuating circumstances existed that supported an award of
attorneys’ fees disproportionate to the amount of damages. No. 04-10-00845-CV,
2011 WL 4828021 (Tex. App. Oct. 12, 2011).
Specifically, Young involved a violation of a settlement agreement between
Young and Sanchez by Young. Young, 2011 WL 4828021, at *1. After two years
had passed with no resolution of the dispute, the Sanchezes filed an amended
pleading in which they asserted a new counterclaim for breach of the settlement
agreement. See id., at *2. The Youngs did not file any pleading in response to the
counterclaim. See id. Subsequently, the Sanchezes moved for a no-evidence
Page 28 of 33
summary judgment on the Youngs' suit and for a traditional summary judgment on
their counterclaim for the Youngs' breach of the settlement agreement and their
request for attorney's fees. See id. Again, the Youngs did not respond. See id.
Accordingly, the trial court granted summary judgment in favor of the Sanchezes,
ordering that the Youngs take nothing by their suit and awarding the Sanchezes
$907 in breach of contract damages and $9,201.57 in attorney's fees, plus court
costs. See id.
In upholding the award of attorneys’ fees on appeal, the court of appeals
reasoned “[t]he fee award here is not excessive in view of the summary judgment
record and the five-year period during which the dispute continued after execution
of the Settlement Agreement.” Id., at *6. The court noted the special
circumstances involved that supported the disproportionate award of attorneys’
fees:
Here, the summary judgment record shows the case was prolonged for five
years after the Settlement Agreement, due in large part to the Youngs'
objections and conduct that delayed and prevented the Sanchezes' ability to
fully comply with the Settlement Agreement. We hold the attorney's fees are
not excessive in light of the prolonged nature of the litigation, and are
supported by the record.
Id.
Page 29 of 33
No such circumstances exist in the case at bar to warrant the excessive amount of
attorneys’ fees awarded by the jury.
As discussed in detail above, Mr. Martinez relied on a compilation created
after the fact that summarized the work performed in connection with all claims
involved in this case, and did not specify which tasks were performed in
connection with which claims. Mr. Martinez essentially took all of the hours spent
on the case and attributed 90% to breach of confidentiality agreement, the sole
surviving claim after appeal. This testimony was directly contradicted by the
expert testimony by Ray Thomas. As set forth above, this single claim was only a
small part of a much larger trial involving multiple claims against multiple
defendants, and the amount awarded was grossly awarded and should be
overturned.
PRAYER
Total respectfully prays that this Court:
1) Reverse the trial court’s Final Judgment signed on April 30, 2015
(C.R. 1: 113-115; App. Ex. 2) ordering that Mo-Vac recover from
Total:
a. $370,375.00 for the successful representation of the
breach of confidentiality claim through trial;
b. $25,000.00 for future representation through appeal to
the court of appeals, if one is taken;
Page 30 of 33
c. $5,000.00 for future presentation at the petition for
review stage in the Supreme Court of Texas, if the case
comes before the Supreme Court of Texas;
d. $12,000.00 for future presentation at the merits briefing
stage in the Supreme Court of Texas, if the case comes
before the Supreme Court of Texas; and
e. $8,000.00 for future presentation through oral argument
and the completion of proceedings in the Supreme Court
of Texas, if the case comes before the Supreme Court of
Texas.
2) Reverse the trial court’s denial of Total E&P USA, Inc.’s Motion for
New Trial (C.R. 1: 191);
4.) Render a decision that Appellee, Mo-Vac Services Company, Inc. be
awarded $40,000 as reasonable and necessary attorneys’ fees in this
matter, in accordance with the expert testimony of Total’s expert
witness on attorneys’ fees, Ray Thomas;
6.) Alternatively, remand this case to the trial court for a new trial to
determine the specific amount of work performed and hours spent on
the sole surviving claim of breach of confidentiality agreement against
Total; and
7.) All such other and further relief to which Appellant, Total E&P USA,
Inc. is justly entitled.
Respectfully submitted,
ELLIS, KOENEKE & RAMIREZ, L.L.P.
1101 Chicago
McAllen, Texas 78501-4822
Tel: (956) 682-2440
Fax: (956) 682-0820
Page 31 of 33
By: /s/ Edmundo O. Ramirez
EDMUNDO O. RAMIREZ
State Bar No. 16501420
MINERVA I. ZAMORA
State Bar No. 24037765
ATTORNEY FOR APPELLANT
TOTAL E&P USA, INC.
CERTIFICATE OF COMPLIANCE
There are 7,263 words included in the Appellant’s Reply Brief.
CERTIFICATE OF SERVICE
This is to certify that a true and correct copy of the foregoing has on
November 13, 2015, been delivered, in the manner indicated below, to the
following:
Adrian R. Martinez
Alberto T. Garcia, III
GARCIA & MARTINEZ, L.L.P.
6900 N. 10th St., Suite 2
McAllen, Texas 78504
Via CMRRR 7001 0320 0000 9475 0705
/s/ Edmundo O. Ramirez
Edmundo O. Ramirez
Page 32 of 33
APPENDIX
Exhibit Date Document
1 04/16/2015 Jury Charge
2 04/30/2015 Final Judgment
Page 33 of 33
..
1'"1
'.
AI" 16 2015
CAUSE NO. C-023-05-E
MO-VAC SERVICES COMPANY, INC. § IN THE
§ 275 1 H JUDICIAL DISTRICT
§
§
TOTAL E&P USA, INC. § HIDALGO COUNTY, TEXAS
JURY CHARGE
MEMBERS OF THE JURY:
Aftct the dosing ruguments, you will go to the jmy IOOlll to decide the case, answct the
questions that are attached, and reach a verdict. You may discuss the case with other jurors only
when you are all together in the jury room.
Remember my previous instructions. Do not discuss the case with anyone else, either in
person or by any other means Do not do any independent investigation about the case or conduc1
any research. Dg ngt Jggk up any wmds in the dictignaries gr gn the Internet. Dg ngt pgst any
information about the case on the Internet Do not share any special knowledge or experiences
with the other jurors. Do not use your phone or any other electronic device during your
deliberations for any reason.
Any notes you have taken are for your own personal use. You may take your notes back
into the jury room and consult them during deliberations, but do not show or read your notes to
your fellow jurors during your deliberations. Your notes are not evidence. Each of you should
rely on your independent recollection of the evidence and not be influenced by the fact that
another juror has or has not taken notes.
You must leave your notes wJ!h the ba•ltff when you are not deltberatmg. I he bmltff will
give your notes to me promptly after collecting them from you. I will make sure your notes are
kept in a safe, secure location and not disclosed to anyone. After you complete your
deliberations, the bailiff will collect your notes. When you are released from jury duty, the bailiff
will promptly destroy ygur ngtes sg th~t oobgdy can read what ym1 wrote
Here are the instructions for answering the questions:
1. Do not let bias, prejudice or sympathy play any part in your decision.
2. Base your answers only on the evidence submitted in court and on the law that is in these
instructions and questions. Do not consider or discuss any evidence that was not admitted
in the courtroom.
3. You are to make up your own minds about the facts. You are the sole judges of the
Appendix Exhibit
1 105
.
. '
credibility of the witnesses and the weight to give their testimony. But on matters of law,
you must follow all of my instructions.
4. If m~ instructions use a worcl in a w~~ that is di±Ierent ftom its ordinaq-: meaning, use the
meaning I give yon, which will he a pmper legal definition.
5. All the questions and answers are important. No one should say that any question or
answer is not important.
0. A !act may be established by direct evidence or by circumstantial evidence or both. A
fact is established by direct evidence when proved by documentary evidence or by
witnesses who saw the act done or heard the words spoken. A fact is established by
circumstantial evidence when it may be fairly and reasonably inferred from other facts
proved.
7. Answer yes" or 'no" to all questions unless otherwise mstructed. A "yes" answer must
be based on a preponderance of the evidence unless you are told otherwise. Whenever a
question requires an answer other than "yes" or "no," your answer must be based on a
preponderance of the evidence unless you are told otherwise.
l'he tenn "prepm:KiemnGe ot' the e\'idenGe" means the greater weight of erediele evidenee
presented in this case. If you do not find that a preponderance of the evidence supports a "yes"
answer, then answer "no." A preponderance of the evidence is not measured by the number of
witnesses or by the number of documents admitted in evidence. For a fact to be proved by a
preponderance of the evidence, you must find that the fact is more likely true than not true.
8. Do not decide who you think should win before you answer the questions and then just
answer the questions to match your decision. Answer each question carefully without
considering who will win. Do no discuss or consider the effect your answers will have.
'J. Bo not answm qllestions by drawing straws or by any other method of chance.
10. Some questions might ask you for a dollar amount. Do not agree in advance to decide on
a dollar amount by adding up each juror's amount and then figuring the average.
11 Do not trade ~'Olll' ~n~u,er~. !'or example, do not Sll3', "I will answer this (jl!estion ;,•o11r
way if you answer another question my way."
12. Unless otherwise instructed, the answers to the questions must be based on the decision
of at least ten of the twelve jurors. The same ten jurors must agree on every answer. Do
not agree to be bound by a vote of anything less than ten jurors, even if it would be a
maioritv.
As I have said before, if you do not follow these instructions, you will be guilty of juror
misconduct, and I might have to order a new trial and start this process over again. This would
106
waste your time and the parties' money, and would require the taxpayers of this county to pay for
another trial. If a juror breaks any of these rules, tell that person to stop and report it to me
immediately.
I. When you go into the jury room to answer the questions, the first thing you will need to
do is choose a presiding juror.
2. The presiding juror has these duties:
a. have the complete charge read aloud if it will be helpful to your deliberations;
b. preside over your deliberations, meaning manage the discussions, and sec that you
c. give written questions or comments to the bailiff who will give them to the judge;
d. write down the answers you agree on;
e. get the signatures fur the verdict certificate; and
f notify the bailitT that you have reached a verdict.
Do you understand the duties of the presiding juror? If you do not, please tell me now.
Instructions for Signing the Verdict Certificate:
I. Unless otherwise instructed, you may answer the questions on a vote of ten jurors. The
same ten jurors must agree on every answer in the charge. This means you may not have
one group often jurors agree on one answer and a different group of ten jurors agree on
anot er answer.
2. If ten jurors agree on every answer, those l 0 jurors sign the verdict. If eleven jurors~
agree on every answer, those eleven jurors sign the verdict. If all twelve of you agree on Lr
k
every ans'Ner, you are unanimous and only the presiding juror signs the verdict.
3. All jurors should deliberate on every question. You may end up with all twelve of you
agreeing on some answers, while only ten or eleven of you agree on other answers. But
when you sign the verdict, only those 1o who agree on every answer will sign the
verdict.
Do you understand these instructions?
107
.
.
.'
QUESTION NO. 1:
What is a reasonable fee for the necessary services of the attorneys for Movac Services
Compan}', Inc in connection witb Mo:~~ac Ser'lices Compan¥, Inc 's claim fu~ B~each <"i£
Confidentiality A~,'reement against Total E&P, stated in dollars and eents?
In determining the reasonableness of an attorney's fee award, you must consider the
following factors:
I. the time and labor involved, the novelty and difticultx of the guestions involved,
and the skill required to perform the legal services properly;
2. the likelihood that the acceptance of the particular employment will preclude
other employment by the lawyer;
3. the fee customarily charged m the locahty for Similar legal serv1ces;
4. the amount involved and the results obtained;
5 tbe time limitations imposed by the client orb~' the circumstances;
6. the nature and len1,>th of the professional relationship with the client;
7. the experience, reputation, and ability ofthe lawyer or lawyers performing the
services; and
8. whether the fee is fixed or contingent on results obtained or uncertainty of
collection before the legal services have been rendered.
Answer with an amount for each of the following:
a. For the successful representatiOn of the breach of conhdentliihty claim through tnal.
Answer:ft,3'JO
1
315
b Eo~ filtme representation thmugh appeal tG tile CGlll"t of" appeals, it" one is tal>en.
Answer:
~~ 51[)[){)
-
c. For future presentation at the petition for review stage in the Supreme Court of Texas,
if the case comes before the SuJxeme Court of Texas.
~
Answer: 5\fff)
d. For future presentation at the merits briefing stage in the Supreme Court of Texas, if
the case comes before the Supreme Court of Texas.
108
. '
.
Answer:
~ l8,om
e Ear filture presentation thmngh oml a~gllll'lent ami the GempletieR ef pmEeeaiags in
the Supreme Court of Texas, if the case comes before the Supreme Court of Texas.
Answer: 1t ~ l CCD
109
Verdict Certificate
Check one:
Our verdict is unanimous All n:velve of us have agreed to each and €V€f)' ansv;er. The
presiding juror has signed the certificate for all twelve of us.
Signature of Pres1dmg Juror Printed Name of Presiding Juror
--~ Our verdict is not unanimous. Eleven of us have agreed to each and every answer and
have signed the eertifieate belo w.
j Our verdict is not unanimous. Ten of us have agreed to each and every answer and have
signed the certificate below.
0 ///.4/ / ' ( ............ ,,
11. - - - - - - - - -
110
Electronically Filed
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Hidalgo County District Clerks
Reviewed By: Joseph Gonzalez
CAUSE NO. C-023-05-E
MO-VAC SERVICES COMPANY, INC. § IN THE DISTRICT COURT
§
vs. § 275TH JUDICIAL DISTRICT
§
TOTAL E&P USA, INC. § HIDALGO COUNIY, TEXAS
FINAL JUDGMENT
On April 14, 2015 this case was called for trial. Plaintiff Mo-Vac Services
Company, Inc. appeared through its representative and through its attorneys and
announced ready for trial. Defendant Total E&P USA, Inc. also appeared through its
representative and its attorneys and announced ready for trial.
After a jury was impaneled and sworn, it heard the evidence and arguments of
counsel. In response to the jury charge, the jury made findings that the court received,
filed, and entered of record. The Court takes judicial notice of those jury findings and
they are incorporated herein by reference.
The Court hereby RENDERS judgment for Plaintiff Mo-Vac Services Company,
Inc. and that it is entitled to recover reasonable and necessary attorneys' fees from
Defendant Total E&P USA, Inc. as follows:
1. $370,375.00 for the successful representation of the breach of
confidentiality claim through trial;
2. $25,000.00 for future representation through appeal to the Court of
Appeals, if one is taken and Plaintiff Mo-Vac Services Company, Inc. is
successful in such appeal;
3. $s,ooo.oo for future representation at the petition for review stage in the
Supreme Court of Texas, if the case comes before the Supreme Court of
Appendix Exhibit
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Texas and Plaintiff Mo-Vac Services Company, Inc. is successful before the
Texas Supreme Court;
4. $12,000.00 for future representation at the merits briefing stage in the
Supreme Court of Texas, if the case comes before the Supreme Court of
Texas and PlaintiffMo-Vac Services Company, Inc. is successful before the
Texas Supreme Court;
s. $8,ooo.oo for future representation through oral argument and the
completion of proceedings in the Supreme Court of Texas, if the case
comes before the Supreme Court of Texas and Plaintiff Mo-Vac Services
Company, Inc. is successful before the Texas Supreme Court; and
6. post-judgment interest that begins to accrue on the dates described below
at an annual rate of s%, and continues accruing until the date this
judgment is satisfied:
a. on the amount in Paragraph 1, interest begins to accrue on the day
this judgment is signed;
b. on the amount in Paragraph 2, interest begins to accrue on the date
the Court of Appeals issues its final judgment;
c. on the amounts in Paragraph 3-5, interest begins to accrue on the
date the Supreme Court of Texas issues its final judgment.
This judgment is final, disposes of all claims and all parties, and is appealable.
The Court orders execution to issue for this judgment.
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Reviewed By: Joseph Gonzalez
30th
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Total E&P USA, Inc. v. Mo-Vac Services Company, Inc.
Combined Opinion