                                                                                      ACCEPTED
                                                                                 13-15-00348-CV
                                                                 THIRTEENTH COURT OF APPEALS
                                                                        CORPUS CHRISTI, TEXAS
                                                                           11/13/2015 5:44:39 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 5:44:39 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


AMENDED 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 ................................................................vi

ISSUES PRESENTED..............................................................................................vi

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..........................................................................................vi

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 ...............................................................vi

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
(Tex. App. —Corpus Christi 2012, pet. denied)
........................................................................................................................9, 12, 13

Harrison v. Texas Employers Ins. Ass’n, 747 S.W.2d 494 (Tex. App. —Beaumont
1988, writ denied) .................................................................................................... 10

Hogue v. Kroger Store No. 107, 875 S.W.2d 477 (Tex. App. —Houston [1st Dist.]
1994, writ denied) .................................................................................................... 10

JLG Trucking, LLC v. Garza, 466 S.W.3d 157 (Tex. 2015) ................................... 10

Owens-Corning Fiberglas Corp v. Malone, 916 S.W.2d 551(Tex.App.—Houston
[1st Dist.] 1996, aff’d on other grounds, 972 S.W.2d 35 (Tex. 1998)) ................... 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 (Tex. 2006) .......................................................... 20

Smith v. Patrick W.Y. Tam Trust 296 S.W.3d 545 (Tex. 2009)............................... 24

Wythe II Corp. v. Stone, 342 S.W.3d 96 (Tex. App. —Beaumont 2011, pet.
denied)… .................................................................................................................. 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 (Tex. App—San Antonio Oct. 12,
2011, no pet.) ........................................................................................................... 28
                                                                 iv
RULES

Tex. R. App. P. 39 .....................................................................................................vi

Tex. R. Evid. 403 ..................................................................................................... 14




                                                            v
                   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.




                                        vi
                               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


   AMENDED 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 Amended

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 7,271 words included in the Amended 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 Electronic Mail & Electronic Filing


                                         /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
                                                                          4/29/2015 3:15:08 PM
                                                                          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
                                          2


                                                                                        113
                                                                      Electronically Filed
                                                                      4/29/2015 3:15:08 PM
                                                                      Hidalgo County District Clerks
                                                                      Reviewed By: Joseph Gonzalez


      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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