                                                                                             ACCEPTED
                                                                                          14-14-00807-cv
                                                                         FOURTEENTH COURT OF APPEALS
                                                                                      HOUSTON, TEXAS
                                                                                    9/24/2015 7:16:21 PM
                                                                                   CHRISTOPHER PRINE
                                                                                                  CLERK


                          No. 14-14-00807-CV
                  ___________________________________________
                                                                   FILED IN
                                                            14th COURT OF APPEALS
                          I        C
                          N THE OURT OF PPEALSA                HOUSTON, TEXAS
                              F           D
                 FOR THE OURTEENTH ISTRICT OF EXAS      T   9/24/2015 7:16:21 PM
                                                            CHRISTOPHER A. PRINE
                  ___________________________________________
                                                                     Clerk

        THE PETROLEUM WORKERS UNION OF THE REPUBLIC OF MEXICO,
                                                   APPELLANT
                                   V.
    JAMES GOMEZ, AS RECEIVER FOR ARRIBA LIMITED, AND CARLOS RYERSON,
                                                   APPELLEES
                  ___________________________________________

                 On Appeal from the 281st Judicial District Court
           Harris County, Texas, the Hon. Sylvia A. Matthews presiding
                     Trial Court Cause No. 1985-35446-AC
                  ___________________________________________

                 APPELLEE’S BRIEF OF JAMES GOMEZ,
                  AS RECEIVER FOR ARRIBA LIMITED

Brian A. Calhoun                         Michael J. Pérez
State Bar No. 24044827                   Jeffrey A. Feasby
CALHOUN, BHELLA & SECHREST,              PEREZ & WILSON, INC.
LLP                                      750 B Street, Suite 3300
325 N. St. Paul St., Suite 2300          San Diego, California 92101
Dallas, Texas 75201                      (619) 741-0282
(214) 981-9258                           (619) 460-0437 (facsimile)
(214) 981-9203 (facsimile)               perez@perezwilson.com
bcalhoun@cbsattorneys.com

Steven Ward Williams                     ATTORNEYS FOR
SMITH SOVIK KENDRICK &                   APPELLEE/CROSS-APPELLANT
SUGNET, PC                               JAMES GOMEZ, AS RECEIVER
250 S. Clinton Street, Suite 600         FOR ARRIBA LIMITED
Syracuse, New York 13202
(315) 474-2911
(315) 474-6015 (facsimile)
swilliams@smithsovik.com                 Oral Argument Requested
              ABBREVIATIONS AND RECORD REFERENCES

PARTY ABBREVIATIONS

Appellee/Cross-Appellant James Gomez, as Receiver for Arriba Limited, is referred
to herein as “Arriba.”

James Gomez, as an individual, is referred to herein as “Gomez.”

Appellant The Petroleum Workers Union of the Republic of Mexico is referred to
herein as the “Union.” In the record, the Union is sometimes referred to by its
Spanish name, the “Sindicato.”

Appellee/Cross-Appellant Carlos Ryerson is referred to herein as “Ryerson.”

RECORD REFERENCES

References to the Original Clerk’s Record, which was submitted by the Clerk of the
Harris County District Court, are in the form ([vol.#] CR [page #]).

References to the Reporter’s Record are in the form ([vol. #] RR [page #]).

Citations to trial exhibits will refer to the page of the PDF document for Reporter’s
Record Volumes in the form ([vol. #] RR [PDF page #], [Ex. #]).




                                          i
                                         TABLE OF CONTENTS
ABBREVIATIONS AND RECORD REFERENCES .............................................. i

TABLE OF CONTENTS .......................................................................................... ii

TABLE OF AUTHORITIES ................................................................................... iv

STATEMENT OF FACTS ........................................................................................1

  I.      INTRODUCTION ...........................................................................................1

  II. THE PARTIES’ AGREEMENT .....................................................................4

SUMMARY OF ARGUMENTS .............................................................................10

ARGUMENTS AND AUTHORITY.......................................................................15

 I. The Union Cannot Rely on a Foreign Declaration that Has Not Been Properly
Sworn or Translated to Invalidate the Settlement Agreement .................................15

 II. The Union’s Mexican Judgment is Not a “Money Judgment” as Required to
Be Enforceable Under the UFCMJRA ....................................................................18

  III. Arriba Presented Overwhelming Evidence of Actual and Apparent Authority
Sufficient to Overcome the Union’s Legal Sufficiency Challenge .........................23

       A. The Union Has Failed to Establish that Mexican Law Applies to Determine
       the Issue of Authority ........................................................................................24

       B. The Evidence Establishes that Ryerson and Alvarez Both Had Actual
       Authority to Bind the Union to the Settlement Agreement ..............................28

       C. The Evidence Establishes that Alvarez and Ryerson Both Had Apparent
       Authority to Bind the Union to the Settlement Agreement ..............................38

                   1.   The Union’s Lack of Ordinary Care Led Arriba to Believe that
                   Ryerson and Alvarez had Authority to Enter Into the Settlement
                   Agreement…………………………………………………………...40

                   2.     Arriba Justifiably Relied on the Union’s Lack of Ordinary Care
                   to Its Detriment………………………………………………………41

                                                           ii
                 3.    The Union Had Full Knowledge That Ryerson and Alvarez Were
                 Acting on Its Behalf…………………………………………………42

  IV. The Settlement Agreement is Supported by Adequate Consideration ..........43

 V. The Union Has Failed to Establish a Basis for the Court to Reverse and
Remand for a New Trial...........................................................................................45

     A. The Trial Court Did Not Abuse Its Discretion in Excluding the Union’s
     Evidence Regarding Mexican Law ...................................................................45

     B. Any Error in Instructing the Jury Regarding Apparent Authority, if Any,
     Was Harmless....................................................................................................46

     C. The Evidence Was Factually Sufficient to Support the Jury’s Findings on
     Actual and Apparent Authority .........................................................................49

     D. The Trial Court Did Not Error in Denying the Union’s Motion for Mistrial
        49

     E. The Court Properly Refused to Instruct the Jury Regarding the Union’s
     Counterclaims ...................................................................................................53

CONCLUSION AND PRAYER .............................................................................57

CERTIFICATE OF COMPLIANCE .......................................................................59




                                                          iii
                                  TABLE OF AUTHORITIES

Cases

Aetna Cas. & Sur. Co. v. Raposa, 560 S.W.2d 106
  (Tex. App. – Fort Worth 1977, writ dism'd) ........................................................63

Am. Med. Techs., Inc. v. Miller, 149 S.W.3d 265
 (Tex. App. – Houston [14th Dist.] 2004, no pet.) ................................................30

Birdwell v. Birdwell, 819 S.W.2d 223
  (Tex. App. – Fort Worth 1991, writ denied) ........................................................48

Blockbuster, Inc. v. C-Span Entertainment, Inc., 276 S.W.3d 482
  (Tex. App. – Dallas 2008, pet. granted) ...............................................................48

Brosseau v. Ranzau, 81 S.W.3d 381
  (Tex. App. – Beaumont 2001, pet. denied) ............................................. 22, 23, 24

Buckeye Check Cashing, Inc. v. Cardegna, 546 U.S. 440 (2006) .................... 28, 29

Chandler v. Cashway Bldg. Materials, Inc., 584 S.W.2d 950
 (Tex. Civ. App. – El Paso 1979, no writ) ...................................................... 64, 65

City of Keller v. Wilson, 168 S.W.3d 802 (Tex. 2005) .................................... passim

City of Roanoke v. Town of Westlake, 111 S.W.3d 617
  (Tex. App. – Fort Worth 2003, pet. denied) .........................................................40

Columbia Rio Grande Healthcare, L.P. v. Hawley, 284 S.W.3d 851 (Tex. 2009) .52

Courage Co. v. Chemshare Corp., 93 S.W.3d 323
 (Tex. App. – Houst. [14th Dist.] 2002, no pet.) ...................................................19

Crescendo Invs. v. Brice, 61 S.W.3d 465
 (Tex. App. – San Antonio 2001, pet. denied).......................................................53

D’Angelo v. Petroleos Mexicanos, 422 F.Supp. 1280 (D. Del. 1976) ............. 17, 18

Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238 (Tex. 1985) ........... 50, 57

Duncan v. Cessna Aircraft Co., 665 S.W.2d 414 (Tex. 1984) ......................... 30, 31

                                                    iv
Gaines v. Kelly, 235 S.W.3d 179 (Tex. 2007) ............................................ 44, 47, 53

Horizon/CMS Healthcare Corp. v. Auld, 34 S.W.3d 887 (Tex. 2000)............. 50, 51

In re City of Houston, 418 S.W.3d 388
  (Tex. App. – Houston [1st Dist.] 2013, orig. proceeding) ...................................58

In re Morgan Stanley Co., 293 S.W.3d 182 (Tex. 2009) ........................................29

La.-Pac. Corp. v. Knighten, 976 S.W.2d 674 (Tex. 1998) ......................................52

Lester v. First American Bank, 866 S.W.2d 361
  (Tex. App. – Waco 1993, writ denied) .................................................................29

Lewis v. United Parcel Serv., Inc., 175 S.W.3d 811
  (Tex. App. – Houston [1st Dist.] 2004, pet. denied) ............................................56

Miles v. Ford Motor Co., 914 S.W.2d 135 (Tex. 1995) ..........................................23

Peerless Oil & Gas Co. v. Teas, 138 S.W.2d 637
  (Tex. Civ. App. – San Antonio 1940, jdgmt. aff’d.) ............................................65

Pegasus Aviation IV, Inc. v. Aerolineas Austral Chile, S.A., 2012 WL 967301
  (S.D.N.Y. 2012) ....................................................................................................30

Reliant Energy Servs. v. Cotton Valley Compression, LLC, 336 S.W.3d 764
  (Tex. App. – Houston [1st Dist.] 2011, no pet.) ........................................... passim

Roark v. Stallworth Oil & Gas, Inc., 813 S.W.2d 492 (Tex. 1991) ........................48

Scottsdale Ins. Co. v. Nat’l Emerg. Servs., Inc. 175 S.W.3d 284
  (Tex. App. – Houston [1st Dist.] 2004, pet. denied) ............................................31

Siko Ventures v. Argyll Equities, LLC, 2005 U.S. Dist. LEXIS 21257
  (W.D. Tex. 2005) ..................................................................................... 20, 21, 22

Suarez v. Jordan, 35 S.W.3d 268
  (Tex. App.—Houston [14th Dist.] 2000, no pet.) ................................................32

Texas Commerce Bank N.A. v. Tripp, 516 S.W.2d 256
  (Tex. Civ. App. – Fort Worth 1974, writ dism’d.) ........................................ 63, 64


                                                           v
Thota v. Young, 366 S.W.3d 678 (Tex. 2012) .................................................. 52, 53

Underwriters at Lloyd’s v. Frank’s Casing Crew & Rental Tools, Inc.,
 246 S.W.3d 42 (Tex. 2008) ..................................................................................27

United States v. Pink, 315 U.S. 203 (1942) ...................................................... 17, 18

Walker Ins. Servs. v. Bottle Rock Power Corp., 108 S.W.3d 538
 (Tex. App. – Houston [14th Dist.] 2003, no pet.) ................................... 32, 43, 44

Statutes
Texas Civil Practice & Remedies Code § 36.001............................................. 11, 19

Texas Civil Practice & Remedies Code § 36.005....................................................24

Texas Civil Practice & Remedies Code § 132.001..................................................16

Rules
Texas Rules of Appellate Procedure 44.1 ................................................... 53, 61, 63

Texas Rule of Civil Procedure 193.6 .......................................................................59

Texas Rule of Evidence 401 ....................................................................................51

Texas Rule of Evidence 402 ....................................................................................51

Texas Rule of Evidence 403 ....................................................................................51

Texas Rule of Evidence 1009 ..................................................................................16




                                                       vi
                            STATEMENT OF FACTS

    I.    INTRODUCTION

      The parties came together in the early 1980s when The Petroleum Workers

Union of the Republic of Mexico (the “Union,” also referred to by its Spanish name,

the “Sindicato”) and two respected American businessmen from Texas, Bill

Flanigan and David Black, agreed pursuant to a written contract for the purchase and

sale of “residual” oil. (8 RR 14-18.) In order to consummate the contract, the

Union insisted that the Americans form a company in the Bahamas, which resulted

in the creation of Arriba, Limited (“Arriba”). (Id. at 17.) Thereafter, the Union

breached that agreement, and the initial lawsuit between the parties ensued. (Id. at

19-20.)

      Filed in 1985, the underlying action resulted in a judgment in 1986 in favor of

Arriba and against the Union and various individuals (the “1986 Judgment”). (18A

RR 8-12 [PX 1].) That judgment awarded Arriba $33 million in actual damages

resulting from the Union’s breach of contract, $266,000 in consequential damages

resulting from the Union’s breach of contract, $4 million in attorneys’ fees,

$5 million in actual damages resulting from the defendants’ conspiracy to deprive

Arriba “of the benefits of its contract and the perpetration of unlawful and tortious

acts” upon Arriba, and $50 million in punitive damages. (Id.)



                                         1
       The present iteration of this case deals with the enforceability of a settlement

agreement entered into by and between Arriba and the Union.1 In 2003, Arriba

garnished $43 million of Union funds that had been deposited in New York. Tied

to a larger election fraud scandal in Mexico known as “Pemexgate,” the Union’s

leadership was indicted for embezzling the $43 million. The $43 million had also

been restrained by the United States District Court in New York at the request of the

United States government, which was acting at the request of the Republic of

Mexico. The settlement between Arriba and the Union was the direct result of that

garnishment of Union funds, and the settlement agreement was reached while the

$43 million remained in dispute and beyond the reach of the Union.

       Embarrassed by the scandal, the President of Mexico enlisted the Union’s

founder to seek to resolve the garnishment and return some of the money to Mexico.

Union representatives reached out to the Union’s long-time attorney for the Arriba

matters, Carlos Ryerson (“Ryerson”), who was able to negotiate a settlement with

Arriba.



1
  The underlying 1986 Judgment has spawned numerous garnishment actions on the underlying
judgment, as well as related state court actions, appeals to this Court as well as the First and Tenth
Courts of Appeals, federal actions in Texas and New York, a state court action in California, and
proceedings in the Bahamas. In the event the Court affirms the trial court’s judgment, all of the
other cases would then also be resolved in their entirety.



                                                  2
      The trial below resulted from the Union’s contention that Ryerson and the

Union representative who signed the settlement agreement did not have actual or

apparent authority to enter into the settlement agreement on behalf of the Union. A

related question was whether this Union official had actual or apparent authority to

sign a separate fee agreement with Ryerson. The jury found for Arriba and Ryerson

and against the Union on all issues submitted to it.

      The parties are before this Court on their respective appeals from the Final

Judgment that was entered by the trial court based upon the jury’s verdict in favor of

Arriba and Ryerson. (See 14 CR 7626-7637; 8019-8020.) The Union’s opening

brief raises a myriad of arguments as to why it thinks the Final Judgment should be

reversed. None of these arguments have merit. Substantial evidence supported

the jury’s determination of actual and apparent authority. In addition, there were no

errors of law that caused the rendition of an improper judgment. For these reasons,

and for the reasons set forth more fully below, the trial court’s judgment should be

affirmed on all points raised in the Union’s appeal.




                                          3
    II.   THE PARTIES’ AGREEMENT
       On May 21, 2004, Arriba and the Union entered into an Agreement Regarding

Disposition of Garnished Funds (the “Settlement Agreement”).2 (See 18B RR 59

[DX 50].) In entering into the Settlement Agreement, the parties sought to resolve

the distribution of the funds located in New York that were the subject of the

underlying garnishment action, the enforceability of the 1986 Judgment, and the

outstanding issues in the 1989 Litigation. (Id. at 60.) The Settlement Agreement

was signed by James Gomez as Receiver for Arriba and by Noe Manuel Moreno

Alvarez (“Alvarez”) as General Attorney in Fact for the Union, and by Ryerson as

Attorney of Record for the Union. (See id. at 68-69.)

       Dating back to 1990, Ryerson was constantly the Union’s attorney and was

tasked with resolving all of the pending litigation with Arriba. (8 RR 55-57, 70; 11

RR 153-156.) The Union’s own witnesses testified to this fact. (10 RR 252-253;

12 RR 19.) Indeed, Arriba dealt with Ryerson over the course of the 14 years

preceding the negotiation and execution of the Settlement Agreement. (8 RR 71-72,

184-185.)    Ryerson was hired by Ruben Choreño (“Choreño”), who was the

Union’s long-time attorney under a broad general power of attorney that Ryerson


2
  The Union also entered into an agreement with Ryerson which provided for payment of his
attorney’s fees from the Union’s 48% share of the garnished funds held in New York. (See 18A
RR 44 [PX 15].)


                                             4
had seen firsthand. (12 RR 114-115.) Ryerson had a written contract with the

Union reflecting his authority to act as the Union’s attorney with regard to the Arriba

matters.   (10 RR 257-258.)      Consequently, Ryerson openly and continuously

represented the Union from 1990 until December 2004 (i.e., six months after the

Settlement Agreement had been entered). Indeed, Ryerson represented and was

present for the Union at another trial against Arriba in 1997. (8 RR 57; 13 RR 119,

138.)    By agreement with the Union and Enron, Ryerson even continued to

represent the Union after he went to work for Enron. (8 RR 61; 13 RR 138.)

        Ryerson’s representation was not terminated until December 2004 – shortly

after the Union had affirmed in writing his authority as counsel for the Union. (See

11 RR 8-9, 52-53, 57, 67-68, 257; 12 RR 61.) However, from 1990 through

December 2004, Ryerson was a constant as the Union’s primary attorney in the

Arriba matters. (8 RR 71-72, 184-185.) For his work as the Union’s attorney,

Ryerson was paid millions of dollars. (11 RR 251-252.)

        By 2002, Carlos Romero Deschamps (“Deschamps”) and the number two

person at the Union, Ricardo Aldana Prieto (“Prieto”), had been indicted in Mexico

for embezzling $43 million in Union funds that were seized in a New York bank

account at the Pershing Division of Donaldson, Lufkin & Jenrette Securities, for

electoral fraud, and for violation of public trust. (10 RR 249-250; 11 RR 169-171.)


                                          5
Ryerson had previously witnessed Deschamps’ corruption firsthand. In particular,

Ryerson testified that under one of the modifications to his contract with the Union

he was supposed to be paid $3.5 million. However, shortly after he signed the

contract, he was told by one of the Union’s attorneys, and a witness at the trial

below, Eduardo Gonzalez, that he would only be receiving $1 million of the $3.5

million. (12 RR 98.) Thereafter, Ryerson was instructed to go to a Banamex Bank

in Mexico City to collect his payment. Since Ryerson was concerned that the U.S.

Internal Revenue Service might tax him for $3.5 million in income, Ryerson brought

along a witness to confirm that he only received actual payment of $1 million. (12

RR 100-101.) While Ryerson was in a private room at the bank he saw Deschamps

and the Union’s treasurer, Alejandra Michel, in another room catty-corner to his.

(Id. at 28-29; 99-100.) A bank official brought Ryerson a check in the amount of

the Mexican peso equivalent of $3.5 million for him to endorse. A large sum of

cash was then brought into Ryerson’s room. At the same time, Ryerson observed

Deschamps and Michel in their room counting cash. (Id. at 101-102.) In the end,

Ryerson was only given $1 million of the $3.5 million he was owed. Deschamps

took the remaining $2.5 million in cash. (12 RR 133-134.)

      In light of the charges brought as a result of Pemexgate, Deschamps and

Prieto lost their authority to act on behalf of the Union. (10 RR 221-222; 11 RR


                                         6
209.) The Union’s leadership was in turmoil. (11 RR 171-172.) Compounding

this chaos, Arriba was able to garnish the $43 million based on the 1986 Judgment.

(1 CR 27, 37-38.) The Union was desperate to get at least a portion of that money

back.

        As a result, Ryerson was approached by Choreño, who was retained and

continued to work for the Union by grant of a valid general power of attorney. (11

RR 172-173.) Choreño was acting at the request of Joaquin Hernandez Galicia,

known as “La Quiña,” who was the founder of the Union. (11 RR 174-175.) The

then President of Mexico, Vincente Fox, had tasked La Quiña and Choreño with

handling the issues with the Union and Pemex to ensure that at least some of the

money in New York would go back to the Union. (11 RR 177-178; 12 RR 112,

138-139.)

        Ryerson was directed to deal specifically with Alvarez as the Union’s

representative. (11 RR 206-207.) Ryerson was given specific written instructions

by Alvarez, on behalf of the Union, to “take all necessary measures to bring to a

good conclusion the negotiations as may be pertinent … with the representative(s) of

the company ‘Arriba limited.’ ” (18A RR 45 [PX 16].) To this end, Ryerson was

presented with a written power of attorney issued by the Union in favor of Alvarez.




                                         7
(11 RR 182-183.) Ryerson did as directed, and negotiated and entered into the

Settlement Agreement on behalf of the Union. (11 RR 180-182; 12 RR 119-120.)

       Pursuant to Article III of the Settlement Agreement, the garnished funds in

New York “shall be distributed as follows:

       “A. Fifty-Two percent (52%) of said funds shall be paid to Gomez, as
       Receiver for the Companies; and

       “B. Forty-Eight percent (48%) of said funds shall be paid to the Union or its
       designee (as directed by the Union’s attorney of record herein); and

       “C. From the Union’s 48% of said funds, an additional amount of One
       Million and No/100 Dollars ($1,000,000.00) shall be paid to Gomez, as
       Receiver for the Companies.”3

(18B RR 61-62 [DX 50].) This contractual agreement was beneficial to the Union

since it guaranteed at least a portion of the $43 million would be returned to the

Union which would have otherwise gone in its entirety to Arriba in light of the

garnishment.

       Article IV affirms the validity of the 1986 Judgment, and provides that “the

Union and the Commission4 hereby knowingly waive, and forever relinquish, any

and all claims and allegations challenging the finality of the 1986 Judgment as it


3
 This additional $1 million was to pay the expenses he had incurred as Receiver for Arriba. (8
RR 264-265; 9 RR 89.)
4
  The “Commission” is The Commission of Contracts of the Executive Committee of the
Petroleum Workers Union of the Republic of Mexico, which is also a judgment debtor on the 1986
Judgment.


                                              8
affects them.” (Id. at 62.) Article IV further provides that if “the distribution of

the Garnished Funds is not accomplished according to the terms set out in this

Agreement [ ], Gomez and [Arriba] shall be entitled to enforce the 1986 Judgment in

any legal manner, anywhere in the world, except in the country of Mexico.” (Id.)

This provision was also beneficial to the Union because it allowed the Union to

place its Mexican assets beyond the reach of Arriba.

       Article V provides for the dismissal of a related case brought by Arriba

against the Union that is currently pending with the trial court. (Id. at 63.) This

also benefited the Union. As noted above, if the trial court’s judgment is affirmed

and the Settlement Agreement is enforced, this related case would be dismissed.

Finally, the Settlement Agreement contains a Texas choice-of-law provision that

expressly states: “This Agreement shall be governed by and construed in accordance

with the laws of the State of Texas.” (Id. at 67.) The Settlement Agreement also

requires that any dispute arising out of the agreement be resolved exclusively in the

District Court in Houston, Harris County, Texas. (Id.)5




5
  Arriba’s Opening Brief as Appellant contains a detailed recitation of the procedural history of
these cases. Rather than restate that history here, Arriba incorporates that section by this
reference as if set forth fully herein.


                                                9
                         SUMMARY OF ARGUMENTS
      The Union has been playing a shell game. It enters into contracts, takes

advantage of those agreements, and then breaches the agreements when it

unilaterally deems that it no longer wishes to comply with the terms of its contracts.

Like any good shell game, the “confidence” trick is to vest individuals with a power

of attorney to act on behalf of the Union, clothe those individuals in every way as

actual agents with full authority, then disavow any knowledge of those agents’

actions when it suits the Union. In this case, the Union is attempting to disavow

written powers of attorney by ignoring the plain language of its contract with Arriba

requiring Texas law to govern, and insisting that Mexican law and Mexican courts

have the authority to invalidate the agreement between the parties. Arriba is the

victim of the Union’s shell game. However, our American courts can and must put

an end to the Union’s sleight of hand. A contract is a contract. In Texas, contracts

are enforced.

       Counter to the belief that bargained for agreements between two parties must

be enforced, the Union argues that both the 1984 contract with Arriba and the

May 21, 2004 Settlement Agreement are illegal under Mexican law. However,

Mexican law does not apply to the determination regarding the legality of the 1984

agreement or the Settlement Agreement because both agreements contain Texas



                                         10
choice-of-law provisions. The Uniform Foreign-Country Money Judgments

Recognition Act (“UFCMJRA”) does not apply to the Union’s Mexican Judgment

because it is not a money judgment. By its terms, the UFCMJRA only applies to

foreign country judgments “granting or denying a sum of money.” Tex. Civ. Prac.

& Rem. Code § 36.001.

      Next, the Union makes the same argument several different ways by attacking

its own agents’ authority to act on behalf of the Union. However the evidence in

this case is overwhelming that both Ryerson and Alvarez had both actual and

apparent authority to act on behalf of the Union. Pursuant to the parties’ mutual and

binding agreement that Texas law will govern all disputes, Mexican law does not

apply to the determination of authority. Under Texas law, there can be no question

that Ryerson and Alvarez had actual authority to enter into the Settlement

Agreement. Virtually every witness testified to this fact. Indeed, Ryerson was

directed by Union officials and given specific authority to settle the Arriba matters.

Ryerson did as directed, and negotiated and entered into the Settlement Agreement

on behalf of the Union – an agreement which inured to the benefit of the Union.

Moreover, Alvarez had actual authority to bind the Union to the Settlement

Agreement. Alvarez had a written power of attorney issued by the Union to act on

behalf of the Union.


                                         11
      Additionally, Ryerson and Alvarez both had apparent authority to act on

behalf of the Union. As stated, Ryerson had been the Union’s attorney beginning in

1990. The Union never asserted that Ryerson was not its agent until long after it

had taken full advantage of the Settlement Agreement. No notices were filed with

the Court, nor were any communications of “termination of representation” given to

Arriba to indicate the end of Ryerson’s authority. In fact, Ryerson himself believed

and testified that he continued to represent the Union until December, 2004.

Therefore, the Union lacked ordinary care in failing to advise Arriba that Ryerson no

longer had authority to represent it with regard to the Arriba matters. Arriba was

justified in believing that Ryerson had authority to negotiate and enter into the

Settlement Agreement on behalf of the Union. Further, the Union lacked ordinary

care in failing to revoke the powers of attorney granted to its agents, Choreño and

Alvarez. It was these powers of attorney upon which Arriba and Ryerson relied in

negotiating and entering into the Settlement Agreement. Accordingly, there was

legally sufficient evidence establishing that the Union’s lack of ordinary care led

Arriba to believe that Ryerson and Alvarez had authority to enter into the Settlement

Agreement. The evidence at trial proved that the Union had full knowledge that

Ryerson and Alvarez were acting on its behalf, and the Union permitted Ryerson and

Alvarez to do so.


                                         12
      The trial court did not commit error by failing to submit the Union’s proposed

instructions on apparent authority. As set forth above, the evidence established that

Ryerson and Alvarez had actual authority to enter into the Settlement Agreement on

behalf of the Union. Therefore, the trial court’s failure to submit the Union’s

proposed jury charge on apparent authority could not cause the rendition of an

improper verdict. Moreover, the Texas Pattern Jury Charge used by the trial court

accurately stated the law.

      Furthermore, the Settlement Agreement does not lack consideration. For

one, the Settlement Agreement puts an end to decades of litigation between the

parties and provided the Union the opportunity to receive 48% of the $43 million

that had been garnished by Arriba in New York. The Union also negotiated terms

into the agreement that prohibits Arriba from enforcing the 1986 Judgment in

Mexico and provided for the dismissal of the other case pending between the parties.

These bargained for terms are ample consideration.

      And finally, the trial court did not commit error by failing to instruct the jury

on the Union’s counterclaim for wrongful garnishment against Arriba. The Union

has no evidence to support its wrongful garnishment claim. The Union’s only

evidence to support its wrongful garnishment claim is that the trial court had

previously dissolved the writs of garnishment. The Union extrapolates the lower


                                         13
court’s decision to dissolve the writs to mean that the trial court had determined that

the writs failed to meet the requirements for issuance. Not only is this statement not

supported by the record, it does not establish the Union’s claim of wrongful

garnishment even if it were true. Consequently, the Union failed to establish the

elements of a claim for wrongful garnishment. The trial court made the correct

decision not to submit the Union’s claim for wrongful garnishment to the jury.

      The Union’s approach to this appeal – like it has done throughout the history

of this case in front of the trial court – has been to throw as much mud as possible

against the wall in hopes something would stick. Nothing sticks. The trial court

did not err to the Union’s detriment. This Court should not disturb the jury verdict,

which was supported by an abundance of evidence. The Union has failed to meet

its burden of establishing that the trial court erred in any manner that would warrant

another jury trial. As a result, this Court should affirm the jury verdict and put an

end to this litigation once and for all.




                                           14
                         ARGUMENTS AND AUTHORITY

    I.   The Union Cannot Rely on a Foreign Declaration that Has Not Been
         Properly Sworn or Translated to Invalidate the Settlement Agreement
         The Union first argues that the Settlement Agreement is illegal under

Mexican law because the 1986 Judgment was based on a 1984 contract that the

Union contends was illegal. In support of this argument, the Union relies on the

declaration of a former attorney general of Mexico, Enrique Alvarez del Castillo

(“del Castillo”).6 The Union’s argument is unavailing for at least five reasons.

         First, the Union’s argument regarding illegality is merely sleight of hand. It

was not the 1984 contract that was made binding as a result of the Settlement

Agreement. Rather, under the Settlement Agreement, the Union simply agreed that

the 1986 Judgment was valid and enforceable. The fact that the Union now

contends that the contract underlying the judgment is illegal is irrelevant.

Therefore, even if Mexican law applied to the Settlement Agreement, which as set

forth below it does not, del Castillo’s declaration does not establish that the

Settlement Agreement is illegal. Moreover, pursuant to the Settlement Agreement,

the Union waived any right it had to challenge the legality of the 1986 Judgment, and



6
  It should be noted that Enrique Alvarez del Castillo was removed from office in May of 1991
amid charges of corruption. See Los Angeles Times (May 22, 1991);
http://articles.latimes.com/1991-05-22/news/mn-2225_1_human-rights.


                                              15
that waiver is enforceable.     (18B RR 62 [DX50].)          There is nothing in the

declaration of del Castillo that would render that waiver unenforceable.

      In addition, both the 1984 agreement that provides the basis for the 1986

Judgment and the Settlement Agreement provide that they are governed by Texas

law. (18B RR 67 [DX50]; 18B RR 273 [DX120].) Therefore, Mexican law has no

application to the determination regarding the legality of the 1984 agreement or the

Settlement Agreement.

      Third, the declaration is not properly translated. Pursuant to Texas Rule of

Evidence 1009, a translation is only admissible if it is accompanied by “a qualified

translator's affidavit or unsworn declaration that sets forth the translator's

qualifications and certifies that the translation is accurate.” Here, the purported

translation of del Castillo’s declaration is not accompanied by the required

translator’s affidavit/declaration.   (See 3 CR 2101-2117.)          Accordingly, the

document is not admissible and should be disregarded by the Court of Appeals.

      Similarly, the declaration is not properly sworn. Pursuant to Texas Civil

Practice & Remedies Code § 132.001(c), an unsworn declaration must be

“subscribed by the person making the declaration as true under penalty of perjury.”

Here, the declaration of del Castillo is not made “under penalty of perjury.”

Therefore, it is not valid under § 132.001(c) and should be disregarded in its entirety.


                                          16
      Finally, the cases upon which the Union relies are clearly distinguishable.

Specifically, the Union relies on United States v. Pink, 315 U.S. 203 (1942) and

D’Angelo v. Petroleos Mexicanos, 422 F.Supp. 1280 (D. Del. 1976) to argue that del

Castillo’s declaration is entitled to conclusive weight regarding the enforceability of

the 1984 contract. Both of those cases dealt with the interpretation of decrees by

foreign governments.     In both cases, the courts gave deference to a foreign

officials’ interpretation of the scope and effect of foreign laws expropriating private

property.

      For instance, Pink dealt with complex issues of diplomacy and the scope of

the decree nationalizing the property of private enterprises and corporations by the

Soviet Government. In this context, the United States Supreme Court was willing

to accept the declaration of the Commissariat of Justice, who had the power to

interpret existing Russian law, that nationalization extended to the funds and

property of former insurance companies. Pink, 315 U.S. at 219-220. Similarly,

D’Angelo dealt with the scope of a decree by the President of Mexico that

expropriated oil in Mexico owned by foreign nationals. Relying on Pink, the court

in D’Angelo accepted the declaration of the Mexican attorney general regarding the

scope of that decree as dispositive on that issue. D’Angelo, 422 F.Supp. at 1285.




                                          17
      This case, on the other hand, deals with the enforceability of a contract

entered into by private parties with a choice-of-law provision freely and voluntarily

agreed upon. Pursuant to the terms of both the 1984 agreement and the Settlement

Agreement, that is a matter of Texas law to be determined by the Texas courts; not

by a Mexican official at the request of the Mexican Union that a Texas jury and

judge found to be in breach of the Settlement Agreement.

      For all of these reasons, the statement of a former attorney general of Mexico,

upon which the Union relies, has no application to the interpretation and/or

enforcement of the Settlement Agreement.

II.   The Union’s Mexican Judgment is Not a “Money Judgment” as
      Required to Be Enforceable Under the UFCMJRA
      The Union next argues that Arriba is precluded from enforcing the Settlement

Agreement based on the Uniform Foreign-Country Money Judgments Recognition

Act. Although the enforceability of the Settlement Agreement had been directly at

issue in front of the trial court since March, 2005, via Arriba’s Motion to Enforce

Settlement Agreement (1 CR 438-523), the Union sought a more favorable venue

and filed its own action in Mexico in January, 2006 seeking a determination that the

Settlement Agreement was not enforceable. (6 CR 4109.) Arriba was never

served with process in that matter and did not appear in the action. (6 CR 4760, ¶4.)

Not surprising, the Mexican court entered a declaratory judgment finding that the

                                         18
Settlement Agreement was not enforceable under Mexican law (the “Union’s

Mexican Judgment”).    The Union now contends that Arriba is bound by res

judicata to the terms of the Union’s Mexican Judgment under the UFCMJRA. The

Union is wrong.

      Simply put, the UFCMJRA does not apply to the Union’s Mexican Judgment.

By its terms, the UFCMJRA only applies to foreign country judgments “granting or

denying a sum of money.” Tex. Civ. Prac. & Rem. Code § 36.001. This has been

noted by numerous Texas courts over the years.       See, e.g., Courage Co. v.

Chemshare Corp., 93 S.W.3d 323, 330 (Tex. App. – Houst. [14th Dist.] 2002, no

pet.) (“The UFCMJRA governs the recognition of foreign country money

judgments.” [Emphasis added.]). Here, the Union’s Mexican Judgment is not a

money judgment. Rather, it is a judgment for declaratory relief. Therefore, the

UJCMJRA does not apply to the Union’s Mexican Judgment.

      The requirement of a money judgment was expressly noted by the court in

Siko Ventures v. Argyll Equities, LLC, 2005 U.S. Dist. LEXIS 21257 (W.D. Tex.

2005) when it determined that the UFCMJRA did not apply in that case. In Siko,

the plaintiff brought an action to enforce a judgment of a Hong Kong court. In

ruling on the defendant’s motion to dismiss, the court noted that the Hong Kong




                                      19
judgment did not fall under Texas’ UFCMJRA because the Hong Kong action

sought an injunction and did not seek a money judgment. Id. at *4.

      Further, although the Siko court went on to find that the Hong Kong judgment

could be enforced under traditional comity principles, those principles do not apply

here. First, the court in Siko disposed of the defendant’s argument that it was not

subject to personal jurisdiction in Hong Kong because the defendant did not set forth

any argument why there was a lack of personal jurisdiction, and because the

defendant had appeared in the Hong Kong action to contest jurisdiction and lost.

Id. at *8-9. Here, on the other hand, recognition of the Union’s Mexican Judgment

would violate Arriba’s due process right as it was never served in the Mexican action

and it did not appear in that action. (6 CR 4760, ¶ 4.)

      In addition, the forum selection clause in Siko was permissive because it

provided that the plaintiff submitted to “non-exclusive jurisdiction of all Federal and

State Courts sitting in Kendall County.” Siko at *14 (emphasis in original). As a

result, the court found that the plaintiff was allowed to proceed in Hong Kong. Id.

at *13-14. However, the forum selection clause in the Settlement Agreement is

mandatory – “In the event any dispute arises between the parties, all parties

expressly agree that any such dispute will be resolved exclusively by submission of

same to a district court in Houston, Harris County, Texas.” (18B RR 67 [DX50]


                                          20
[emphasis added].) This mandatory forum selection clause required the Union to

seek relief in the District Court in Harris County, Texas, and required that Texas law

would govern. Therefore, the Union’s Mexican Judgment is not enforceable under

principles of comity as was the judgment in Siko.

       A case that is on point is Brosseau v. Ranzau, 81 S.W.3d 381 (Tex. App. –

Beaumont 2001, pet. denied), wherein the Court of Appeals refused to enforce a

Mexican judgment.         In that case, the appellant sought to enforce a Mexican

judgment that provided a declaration regarding the true stockholders of a

corporation owning Mexican real estate. Id. at 387. Initially, the Court of Appeals

correctly found that the case did not fall within the parameters of the UFCMJRA

because the appellant was not asking the court to enforce the portion of the Mexican

judgment requiring the appellee to pay damages. Nevertheless, the court looked to

the UFCMJRA “as persuasive if not binding authority” regarding the court’s

application of the common law principles of comity and collateral estoppel. 7 Id. at

388.



7
  The Court in the present case need not look to the UFCMJRA for guidance here. The Union
argues that the Union’s Mexican Judgment is res judicata under the UFCMJRA. However,
Brosseau did not involve choice-of-law and forum selection clauses like those that exist in this
case. Moreover, UFCMJRA does not apply since that judgment is not a money judgment. The
statute is clear and unambiguous on this point. Therefore, the Court of Appeals’ in Brosseau was
wrong in looking to the UFCMJRA for guidance. The Court’s analysis can end there.


                                              21
      In analyzing the common law principles of comity and collateral estoppel, the

court noted that “[o]ne underlying principle of comity and, by inference, the

UFCMJRA, is the ‘convenience, and the need for an orderly procedure in resolving

jurisdictional disputes.’ ” Id. at 388 quoting Miles v. Ford Motor Co., 914 S.W.2d

135, 138 (Tex. 1995). That includes the Texas common law principle that “ ‘the

court in which the suit is first filed acquires dominant jurisdiction to the exclusion of

other coordinate courts.’ ” Id. Accordingly, the Court of Appeals found that it

was proper “to conclude that giving estoppel effect to a judgment obtained in a

proceeding filed some six years after the court below exercised jurisdiction …

would be unwarranted.”       Id.   Similarly, in this case, the Union obtained the

Union’s Mexican Judgment almost a year after the parties began litigating the issue

of the enforceability of the Settlement Agreement before the trial court. Therefore,

it is also proper here not to give effect to the Union’s Mexican Judgment.

      Finally, the Court of Appeals in Brosseau also noted a provision in the

UFCMJRA that is equally applicable here: Texas Civil Practice & Remedies Code §

36.005(b)(5) – a foreign judgment is not enforceable in Texas if “the proceeding in

the foreign country court was contrary to an agreement between the parties under

which the dispute in question was to be settled otherwise than by proceedings in that

court.”   See Brosseau, 81 S.W.3d at 388-390.          Here, as set forth above, the


                                           22
Settlement Agreement contains a mandatory forum selection clause requiring the

parties to file any action arising out of the agreement with the District Court in

Harris County, Texas, and for that action to be governed by Texas law. As a result,

the Union’s Mexican Judgment is also unenforceable.

  III.   Arriba Presented Overwhelming Evidence of Actual and Apparent
         Authority Sufficient to Overcome the Union’s Legal Sufficiency
         Challenge
      In reviewing the legal sufficiency of the evidence, the Court must consider the

evidence in the light most favorable to the jury’s decision and indulge every

reasonable inference that would support it. City of Keller v. Wilson, 168 S.W.3d

802, 822 (Tex. 2005). “If the evidence at trial would enable reasonable and

fair-minded people to differ in their conclusions, then jurors must be allowed to do

so. A reviewing court cannot substitute its judgment for that of the trier-of-fact, so

long as the evidence falls within this zone of reasonable disagreement.” Id. “As

trials normally focus on issues that jurors could decide either way, reviewing courts

must disregard evidence contrary to the verdict far more often than they must

consider it.” Id. at 818-819.

      The jury is the sole judge of witnesses’ credibility, and it may choose to

believe one witness over another. A reviewing court may not impose its own

opinion to the contrary. Id. at 819. “It is the province of the jury to resolve



                                         23
conflicts in the evidence. Accordingly, courts reviewing all the evidence in a light

favorable to the verdict must assume that jurors resolved all conflicts in accordance

with that verdict.” Id. at 820.

      As the party that did not have the burden of proof on the issue of authority, the

Union must demonstrate that there is no evidence to support the jury’s finding that

Ryerson and Alvarez had actual and apparent authority to enter into the Settlement

Agreement on behalf of the Union.          Reliant Energy Servs. v. Cotton Valley

Compression, LLC, 336 S.W.3d 764, 781 (Tex. App. – Houston [1st Dist.] 2011, no

pet.). The Union can only meet its burden by showing that “(a) there is a complete

absence of evidence of a vital fact, (b) the court is barred by rules of law or of

evidence from giving weight to the only evidence offered to prove a vital fact, (c) the

evidence offered to prove a vital fact is no more than a mere scintilla, or (d) the

evidence conclusively establishes the opposite of the vital fact.” Id. [internal

quotations and citations omitted]. Here, the evidence overwhelmingly established

that Alvarez and Ryerson had both actual and apparent authority.

      A. The Union Has Failed to Establish that Mexican Law Applies to
         Determine the Issue of Authority
      The Settlement Agreement contains a clear and unambiguous choice-of-law

provision that requires the application of Texas law to the parties’ dispute. (18B

RR 67 [DX50].) This is in addition to the Texas forum selection clause referenced

                                          24
above. (Id.) Nevertheless, the Union argues that Mexican law applies to the

determination regarding whether Ryerson and/or Alvarez had authority to enter into

the Settlement Agreement.8 If the Union’s argument were correct, a foreign entity

– whether of a foreign state or a foreign country – could come to Texas, negotiate a

contract with Texas residents in Texas,9 contractually agree that the parties contract

be governed and construed in accordance with Texas law, and then breach the

contract and force the parties and the courts to apply foreign law in order to

determine whether the signatory had authority to enter into the contract on behalf of

the foreign entity. Fortunately, the Union is wrong regarding the application of

Mexican law. The cases upon which the Union relies do not support its argument.

Under Texas law, the Settlement Agreement’s Texas choice-of-law provision is

dispositive.

       First, the Union cites to footnote one of the United States Supreme Court’s

opinion in Buckeye Check Cashing, Inc. v. Cardegna, 546 U.S. 440 (2006) as
8
  In making a determination regarding choice-of-law, there is a presumption that the foreign law is
the same as Texas. As the party advocating the application of Mexican law, the Union bore the
burden of establishing that it differed from Texas law to overcome that presumption. Excess
Underwriters at Lloyd’s v. Frank’s Casing Crew & Rental Tools, Inc., 246 S.W.3d 42, 53 (Tex.
2008). The Union has failed to meet its burden in this regard.
9
  Incidentally, the only reason that Arriba is not a Texas corporation is that the Union required
Arriba’s initial shareholders, Bill Flanigan and David Black, who were both born and bred Texas
residents, to form a Bahamian corporation in order to enter into the initial 1984 contract with the
Union. (8 RR 81-83.)



                                                25
support for its contention that issues such as capacity to enter into a contract are not

controlled by the contract’s choice-of-law provision. However, that case only

addressed whether the enforceability of an arbitration clause was a matter for the

court or the arbitrator to decide. It did not address which law applied to a

determination of authority to contract.           Moreover, in that footnote the

Supreme Court made it clear that it was not deciding the issue of whether it was for

the court or the arbitrator to decide the issue of lack of authority. Id. at 444 n. 1

(Supreme Court noted that “[o]ur opinion today … does not speak to the issue …

[of] whether the signor lacked authority to commit the alleged principal” was for the

courts to decide). Thus, this case in no way supports the Union’s argument.

      The Union next relies on dicta in In re Morgan Stanley Co., 293 S.W.3d 182

(Tex. 2009), which also involved the issue of whether the court or the arbitrator

determined the enforceability of an arbitration agreement. Specifically, the Union

relies on the court’s discussion of a Fifth Circuit opinion that stated “that where a

party attacks the very existence of an agreement ... the courts must first resolve that

dispute.” Id. at 189. However, such dicta has no precedential value. Lester v.

First American Bank, 866 S.W.2d 361, 363 (Tex. App. – Waco 1993, writ denied).

Moreover, the analysis of whether a court or arbitrator should determine the

enforceability of an arbitration agreement has nothing to do with which law governs


                                          26
the issue of whether an agent had authority to enter into a contract on behalf of his

principal. For this reason, the Union’s reliance on Am. Med. Techs., Inc. v. Miller,

149 S.W.3d 265 (Tex. App. – Houston [14th Dist.] 2004, no pet.) is also misplaced.

      The Union next quotes the New York District Court in Pegasus Aviation IV,

Inc. v. Aerolineas Austral Chile, S.A., 2012 WL 967301, at *5 (S.D.N.Y. 2012) – “It

would make little sense to resort to law simply because it was designated by a

contract provision in order to determine whether that very contract is even

operative.” However, that case applied New York law, which uses the “center of

gravity” or “grouping of contacts” analysis rather than deferring to the parties’

choice-of-law provision. Id. Texas law is critically different on this point.

      As determined by the Texas Supreme Court in another case upon which the

Union relies, Duncan v. Cessna Aircraft Co., 665 S.W.2d 414, 421 (Tex. 1984), a

contract’s choice-of-law provision is determinative.           Only if there is no

choice-of-law provision will Texas courts engage in a significant relationship

analysis, which resembles the analysis applied in Pegasus Aviation. Id. (“in all

choice of law cases, except those contract cases in which the parties have agreed to

a valid choice of law clause, the law of the state with the most significant

relationship to the particular substantive issue will be applied to resolve that issue.”

[Emphasis added].). See also Scottsdale Ins. Co. v. Nat’l Emerg. Servs., Inc. 175


                                          27
S.W.3d 284, 291 (Tex. App. – Houston [1st Dist.] 2004, pet. denied) (“Except when

a contract with a valid choice of law clause applies, Texas courts apply the

substantive law of the state with the most significant relationship to the particular

dispute at issue.” [Emphasis added].).

      Therefore, the parties’ inclusion of the Texas choice-of-law provision in the

Settlement Agreement requires the application of Texas law on all issues related to

the governance or interpretation of that agreement. This includes the issue of

Ryerson and Alvarez’ authority to enter into the agreement on behalf of the Union.

      B. The Evidence Establishes that Ryerson and Alvarez Both Had Actual
         Authority to Bind the Union to the Settlement Agreement
      “Actual authority denotes that authority which the principal intentionally

confers upon the agent, or intentionally allows the agent to believe he has, or by

want of ordinary care allows the agent to believe himself to possess.” Suarez v.

Jordan, 35 S.W.3d 268, 273 (Tex. App.—Houston [14th Dist.] 2000, no pet.).

However, the existence of actual authority may be implied from the conduct of the

parties or from the facts and circumstances surrounding the transaction in question.

Walker Ins. Servs. v. Bottle Rock Power Corp., 108 S.W.3d 538, 550 (Tex. App. –

Houston [14th Dist.] 2003, no pet.). In determining whether Ryerson or Alvarez

had actual authority to act for the Union, the Court must examine the words and

conduct by the Union to Ryerson and Alvarez regarding their authority to act for the

                                         28
Union. Reliant Energy Servs., 336 S.W.3d at 783. Here, there is ample evidence

that the Union granted Ryerson and Alvarez authority to act on its behalf in

resolving its disputes with Arriba.

      There can be no dispute that Ryerson had actual authority to represent the

Union with regard to its disputes with Arriba. Virtually every witness testified to

this fact. The Union has a history of hiring attorneys to conduct broad aspects of its

business.   (See 10 RR 253-256.)       Those attorneys are given the authority to

conduct business on the Union’s behalf, including retaining additional attorneys as

they deem necessary. (Id.) Ryerson was given this broad authority.

      Starting with the Union’s own witnesses, one of its attorneys, George Muñoz,

testified that Ryerson had been the Union’s attorney with regard to the Arriba cases

since 1990. (10 RR 252-253.) Ryerson had a written contract with the Union

reflecting his authority to act as the Union’s attorney with regard to the Arriba

matters. (10 RR 257-258.) That contract was modified on a number of occasions.

(10 RR 258-259.)       Muñoz testified that Ryerson’s representation was not

terminated until late-2004 – after the Union affirmed his authority as counsel for the

Union. (See 11 RR 8-9, 52-53, 57, 67-68; 18A RR 167 [IX 14] [“We believe that

you, because of your knowledge of the problems with ARRIBA, LTD., can be an

important member in the staff that Mr. Muñoz directs in the United States.”]; 18A


                                         29
RR 169 [IX 16] [“The purpose of this letter is to instruct you to cease any and all

activities that may be interpreted or presumed as being authorized or otherwise

directed by (the Union).”].)     This was after the Settlement Agreement was

executed, which was May 21, 2004. (18B RR 59 [DX 50].)

      Another Union attorney, Eduardo Gonzalez, also testified that Ryerson was

retained by the Union to represent it with regard to the Arriba matters and to see

those matters through to conclusion. (11 RR 237-238, 241, 248.) As a part of that

retention, Ryerson was authorized to bring on other attorneys to assist with the

litigation. (11 RR 247-248.) One of those attorneys was Bill Burke, who was

retained as trial counsel. (11 RR 252-253.) However, Ryerson continued to

represent the Union, openly and notoriously. (11 RR 253-254.) Like Muñoz,

Gonzalez testified regarding the numerous contracts and modifications between

Ryerson and the Union regarding his representation. (11 RR 249-252.) For his

work as the Union’s attorney, Ryerson was paid millions of dollars. (11 RR

251-252.) Also like Muñoz, Gonzalez testified that the Union re-affirmed that

Ryerson was still its attorney at least as late as November, 2004, and that he was not

terminated until the fall of 2004. (11 RR 257, 263; 12 RR 61.)

      Bill Burke, who at one point was trial counsel for the Union in the Arriba

cases, testified that he was hired by Ryerson. (13 RR 87.) Burke confirmed that


                                         30
Ryerson was present for the Union at the trial in a related Arriba case in 1997. (13

RR 119, 138.) Burke further testified that Ryerson continued to represent the

Union even after he went to work for Enron. (13 RR 138.) Finally, Burke testified

that he and Ryerson likely discussed the fact that $43 million had been seized in a

Union bank account in New York in 2003. (13 RR129-130.) When Ryerson took

the stand, he confirmed that this discussion did occur and was undertaken as a part of

his representation of the Union. (11 RR 168-169.) Moreover, when Burke was

relieved as counsel for the Union, the Union filed a document with the trial court

removing Burke as a counsel of record for the Union. The Union never filed

anything similar with regard to Ryerson at any time before the subject Settlement

Agreement was signed. (8 RR 60-61.) This is because Ryerson remained the

Union’s attorney throughout this time. There can, therefore, be no question that

Ryerson had full authority to act on behalf of the Union when he signed the

Settlement Agreement.

      In terms of Arriba’s representatives, David Black, who is an Arriba

shareholder and was Arriba’s attorney who secured the 1986 Judgment, testified that

Ryerson was constantly the Union’s attorney going back to 1990. (8 RR 55-57,

70.) From 1990 through 2004, Ryerson was a constant as the Union’s primary

attorney in these matters. (8 RR 71-72, 184-185.) This included during an 18


                                         31
month period while Ryerson worked for Enron, during which time Black met with

him as the Union’s attorney. (8 RR 61.) Although Ryerson hired Burke as trial

counsel for the Union (8 RR 222), Ryerson still appeared at the 1997 trial on behalf

of the Union. (8 RR 57.) This arrangement was not unusual for the Union, as

Muñoz was the Union’s lead counsel at the trial below and was present at the trial,

but he did not participate in actually trying the case, nor did he sit at counsel table.

(10 RR 233.) Black further testified that while the Union provided notice that

Burke was no longer its attorney, it never provided notice that Ryerson was no

longer its attorney. (8 RR 60-61.)

      One of Arriba’s subsequent attorneys, Stan Nelson, also dealt with Ryerson

throughout his representation of Arriba. In fact, Nelson testified that when he

became involved in the cases in 1999 through 2004, Ryerson was the Union’s top

lawyer. (9 RR 184.) Nelson was given this impression by reading the files,

speaking with his clients, and by speaking with Burke. (10 RR 44-46.) Ryerson

was the Union’s lead lawyer with regard to the Arriba matters. (9 RR 157, 161.)

Further, Nelson was aware that Ryerson had hired Burke to represent the Union. (9

RR 157; 10 RR 184-185.)

      Nelson continued to communicate with Ryerson regarding the cases after

Burke was retained to represent the Union in the litigation with Arriba. (10 RR 25.)


                                          32
He continued to communicate with Ryerson after Ryerson went to work at Enron,

and even after Muñoz replaced Burke as the Union’s litigation attorney in 2003. (9

RR 185-186.) In fact, Gomez, as Receiver for Arriba, testified that Ryerson was the

only attorney for the Union that he had ever met. (9 RR 97-98.)

       After Nelson garnished the Union’s funds in New York, Ryerson reached out

to him on behalf of the Union to discuss the possible resolution of the parties’

disputes. (9 RR 159-161.) Because Ryerson was the Union’s attorney, there was

nothing unusual about Nelson negotiating the Settlement Agreement with him. (9

RR 189-190.)

       Finally, Ryerson testified that he was retained in 1990 by both the Union and

its Commission of Contracts in order to resolve all of the pending litigation with

Arriba. (11 RR 153-156.) Ryerson was hired by Ruben Choreño, who was the

Union’s long-time attorney under a very broad general power of attorney from the

“Sindicato” that Ryerson had seen. 10 (12 RR 114-115; 18A RR 53 [PX 22].)

Choreño also verified pleadings for the Union in the various Arriba cases. (See,

e.g., 11 RR 159-160, 173; 18A RR 57-58 [PX29].)




10
  It should be noted that Ryerson speaks fluent Spanish and could read the Sindicato’s written
grant of a power of attorney. (11 RR 150.)



                                               33
       After he hired Burke, Ryerson helped Burke in defending the Union in the

Arriba actions. (12 RR 130-131.) Ryerson represented the Union at the trial in

1997, and through the appeal in that matter. (11 RR 166-167; 12 RR 109-110.)

Ryerson testified that he continued to represent the Union after he went to work at

Enron. (11 RR 167.) In fact, his continued representation of the Union was part of

his agreement with Enron. (11 RR 167-168.)

       By 2002, Deschamps and the number two person at the Union, Ricardo

Aldana Prieto, had been indicted in Mexico for embezzling the $43 million that was

located in New York, for electoral fraud, and for violation of public trust.11 (10 RR

249-250; 11 RR 169-171.) Those charges were not dropped until 2006. (11 RR

18.) A Union representative testified that such an indictment could result in a

Union official losing his office. (10 RR 221-222.) Ryerson testified that this is

exactly what happened when Deschamps and Prieto were indicted. (11 RR 209.)

The Union’s leadership was in turmoil. (11 RR 171-172.)

       As a result, Ryerson was approached by Choreño, who was still operating

under the general power of attorney granted by the “Sindicato.” (11 RR 172-173;

18A RR 53 [PX 22].) That general power of attorney “for suits and collection”


11
  As noted above, Ryerson witnessed similar corruption by Deschamps first hand. (See 12 RR
97-103; 133-134.)



                                            34
granted Choreño the authority to “compromise” on behalf of the Union, among other

things.12 (18A RR 50 [PX 22].) Choreño was acting at the request of La Quiña,

who was the founder and long-time president of the Union. (11 RR 174-175.)

Ryerson had a discussion with the administration of the then President of Mexico,

Vincente Fox, who told him that he should deal with La Quiña and Choreño with

respect to the Arriba litigation because they had been asked to handle the issues with

the Union and Pemex, and to try to make sure the money in New York would go

back to the Union. (11 RR 177-178; 12 RR 112, 138-139.) At that time, Ryerson

was told by officials of the administration and others with authority in the Union that

Deschamps was going to jail and that he was not to speak with Deschamps or any of

his associates. (11 RR 177-178; 12 RR 173-174, 179-180.) This made sense

because they were under indictment for, in part, the $43 million which had been

embezzled to New York and garnished, and they no longer had authority to act for

the Union. (11 RR 178; 210-211.)

       Ultimately, Ryerson was directed by these Union officials and given specific

authority to settle the Arriba matters. (11 RR 178-179, 210-213; 12 RR 117-118,


12
   The Union argues that this power of attorney is not valid under Texas law because there was no
evidence that it was signed by the Union. Not only does that document speak for itself – it is
signed (18A RR 52, 55 [PX 22]) – but the Union’s own attorney testified that it was a power of
attorney granted by the Union. (13 RR 46-48.)



                                               35
137-138; 18A RR 45 [PX 16].)         In fact, Ryerson was given specific written

instructions by Alvarez, on behalf of the Union, to “take all necessary measures to

bring to a good conclusion the negotiations as may be pertinent … with the

representative(s) of the company ‘Arriba limited.’ ”      (18A RR 45 [PX 16].)

Ryerson did as directed, and negotiated and entered into the Settlement Agreement

on behalf of the Union. (11 RR 180-182; 12 RR 119-120.)

      Thus, there was clear and overwhelming evidence that Ryerson was the

Union’s attorney with regard to the Arriba cases from 1990 through December,

2004. The evidence also establishes that Ryerson had specific authority to enter

into the Settlement Agreement. Moreover, as the Union’s attorney, Ryerson is

presumed to have had actual authority to enter into the Settlement Agreement on

behalf of the Union. City of Roanoke v. Town of Westlake, 111 S.W.3d 617, 629

(Tex. App. – Fort Worth 2003, pet. denied). Although this presumption may be

rebutted (id.), the conflicting testimony on this issue must be resolved in favor of

affirming the jury’s finding of actual authority. See City of Keller, 168 S.W.3d at

819 (“Courts reviewing all the evidence in a light favorable to the verdict thus

assume that jurors credited testimony favorable to the verdict and disbelieved

testimony contrary to it.”). Therefore, the Court should find that the evidence was




                                        36
legally sufficient to support the jury’s finding that Ryerson had actual authority to

enter into the Settlement Agreement on behalf of the Union.

      The evidence was also legally sufficient so support the jury’s finding that

Alvarez had actual authority to bind the Union to the Settlement Agreement. As

noted above, Ryerson was instructed by La Quiña and Choreño, on behalf of the

Union, to settle the Arriba matters. (11 RR 177-179, 210-213; 12 RR 117-119,

137-138; 18A RR 45 [PX 16].) Ryerson was told to deal specifically with Alvarez

as the Union’s representative.      (11 RR 206-207.)       To this end, Ryerson was

presented with a written power of attorney issued by the Union in favor of Alvarez.

(11 RR 182-183.) The existence of Alvarez’ power of attorney was recognized in

Exhibit B to the Settlement Agreement. (18B RR 89-92 [Alvarez “concurs in this

act as general attorney in fact of the Oil Workers of the Mexican Republic’s Union”;

“who appears in his condition of attorney in fact”; “in his condition of attorney in

fact”; “it is issued for [Alvarez], in his capacity of attorney in fact of the Oil Workers

of the Republic of Mexico’s Union”].) That power of attorney granted Alvarez the

authority “to litigate and collect,” including the power “to celebrate all kinds of

contracts,” among other things. (18B RR 91 [DX 50].)

      The Union has ignored all of this evidence and has instead focused on other

testimony it claims shows that the Union never granted Ryerson or Alvarez the


                                           37
authority to enter into the Settlement Agreement. In particular, the Union relies on

the testimony from its witnesses that Deschamps remained in power even after he

was indicted.    This is the shell game that the Union plays.           It enters into

agreements using one or more of its authorized agents. It clothes the agents in

every way as having full written power of attorney. It knowingly permits these

agents to represent themselves as agents of the Union, including statements made in

court. Then, if and when the Union subsequently breaches its agreements, it simply

contends that its agents were not authorized to enter into that particular transaction.

Nevertheless, the Court must assume that jurors resolved all conflicts in accordance

with their verdict that Ryerson and Alvarez had actual authority if reasonable human

beings could do so. City of Keller, 168 S.W.3d at 819.

      The jury was presented with legally sufficient evidence to support its verdict

that Ryerson and Alvarez had actual authority from the Union to enter into the

Settlement Agreement. Therefore, the jury’s verdict must be upheld.

      C. The Evidence Establishes that Alvarez and Ryerson Both Had
         Apparent Authority to Bind the Union to the Settlement Agreement
      In the event the Court does not find that there was legally sufficient evidence

of Ryerson and Alvarez’ actual authority to enter into the Settlement Agreement,

which it should not, there was legally sufficient evidence to support the jury’s

verdict that these individuals had apparent authority to bind the Union. “While

                                          38
actual authority is created by written or spoken words or conduct by the principal to

the agent, apparent authority is created by written or spoken words or conduct by the

principal to a third party.” Walker Ins. Servs., 108 S.W.3d at 550.

      Apparent authority arises either from (1) a principal knowingly
      permitting an agent to hold himself out as having authority, or (2) a
      principal's actions which lack such ordinary care as to clothe an agent
      with the indicia of authority, thus leading a reasonably prudent person
      to believe that the agent has the authority he purports to exercise.

Reliant Energy Servs., 336 S.W.3d at 784. “In determining whether an agent had

apparent authority, a court considers only the conduct of the principal that would

lead a third party to believe the agent had apparent authority.” Walker Ins. Servs.,

108 S.W.3d at 551.

      Apparent authority is based on estoppel. Gaines v. Kelly, 235 S.W.3d 179,

182 (Tex. 2007). Therefore, the party asserting apparent authority as a basis for

recovery must show justifiable reliance on the principal’s words or conduct resulting

in harm to the party. Reliant Energy Servs., 336 S.W.3d at 784. Moreover, the

principal must have full knowledge of all material facts in order to establish a claim

of apparent authority. Gaines, 235 S.W.3d at 182. In this case, each of these

elements is supported by legally sufficient evidence.




                                         39
              1. The Union’s Lack of Ordinary Care Led Arriba to Believe that
                  Ryerson and Alvarez had Authority to Enter Into the Settlement
                  Agreement

       As set forth above, Ryerson began as the Union’s attorney in 1990. Muñoz,

Gonzalez, and Burke all testified unequivocally that Ryerson was the Union’s

attorney and was responsible for the Arriba cases. Black and Nelson testified that

they continued to interact with Ryerson regarding these cases through the date of the

Settlement Agreement – after Ryerson hired Burke and even after Ryerson went to

work for Enron. When Burke’s representation of the Union ended, the Union filed

notices with the trial court to that effect. (18A RR 37-42 [PX 8, 9]; 13 RR 148.)

However, at no time prior to December, 2004 did anyone tell Arriba or its attorneys

that Ryerson was not authorized to act on behalf of the Union.13 (9 RR 170-175.)

No notices were filed with the Court, nor were any communications of “termination

of representation” given to Arriba. In fact, Ryerson himself believed and testified

that he continued to represent the Union until December, 2004. (12 RR 123-124.)

Instead, the Union was silent. The Union lacked ordinary care in failing to advise

Arriba that Ryerson no longer had authority to represent it with regard to the Arriba




13
  The Union never informed Arriba that Ryerson no longer had authority because, as established
above, he continued to maintain that authority at least until December-2004. (12 RR 122-124.)



                                             40
matters. This led Arriba to believe that Ryerson had authority, as he always had, to

negotiate and enter into the Settlement Agreement. (9 RR 189-190.)

       In addition, the Union lacked ordinary care in failing to revoke the powers of

attorney granted to Choreño and Alvarez.14 It was these powers of attorney upon

which Arriba and Ryerson relied in negotiating and entering into the Settlement

Agreement. (10 RR 60-61, 138-139; 11 RR 172-173, 182-183; 12 RR 147-149.)

       Accordingly, there was legally sufficient evidence establishing that the

Union’s lack of ordinary care led Arriba to believe that Ryerson and Alvarez had

authority to enter into the Settlement Agreement.

              2. Arriba Justifiably Relied on the Union’s Lack of Ordinary Care to
                  Its Detriment

       In light of Ryerson’s nearly 15 years as the Union’s attorney, coupled with the

powers of attorney issued to Choreño and Alvarez, Arriba was justified in relying on

Ryerson as an agent for the Union to Arriba’s detriment. The Union’s lack of

ordinary care resulted in Arriba justifiably relying on Ryerson and Alvarez, thereby

entering into the Settlement Agreement. This reliance was to Arriba’s detriment as

it has not been able to enjoy the benefit of its bargain with the Union as set forth in

the Settlement Agreement. Instead, Arriba remains mired in litigation with the
14
  As also established above, the Union did not revoke these powers of attorney because Choreño
and Alvarez maintained actual authority to act on the Union’s behalf.



                                             41
Union, as it has been for 30 years now. Therefore, there was legally sufficient

evidence establishing the requirement for a finding of apparent authority.

                3. The Union Had Full Knowledge That Ryerson and Alvarez Were
                    Acting on Its Behalf

        The final requirement for a finding of apparent authority is that the Union had

full knowledge of all material facts. Gaines, 235 S.W.3d at 182. As set forth

above, the Union, through La Quiña and Choreño, instructed Ryerson to settle the

Arriba matters. (11 RR 178-179, 210-213; 12 RR 117-119, 137-138; 18A RR 45

[PX 16].)       They also directed Ryerson to deal with Alvarez as the Union’s

representative.      (11 RR 206-207.)            Therefore, the Union knew Ryerson and

Alvarez were working to resolve its disputes with Arriba.

        While the Union may disagree with this evidence, and would rather rely on

the testimony of its attorneys,15 the Court must assume that the jury resolved these

conflicts in evidence in favor of apparent authority. City of Keller, 168 S.W.3d at

819. As a result, there was legally sufficient evidence to support the jury’s finding

that Ryerson and Alvarez both had apparent authority to enter into the Settlement

Agreement on behalf of the Union.




15
   The Union did not call real witnesses like Deschamps. Instead, the Union relied on the testimony of
three of its lawyers, which the jury obviously concluded were not credible.


                                                  42
   IV.      The Settlement Agreement is Supported by Adequate Consideration
         Ignoring the express terms of the Settlement Agreement, the Union continues

to argue the agreement lacks adequate consideration. This simply is not the case.

         Consideration is a bargained for exchange of promises. Roark v. Stallworth

Oil & Gas, Inc., 813 S.W.2d 492, 496 (Tex. 1991). Consideration consists of

benefits and detriments to the contracting parties. Id. “A single consideration is

sufficient to support multiple promises bargained for in an agreement.” Birdwell v.

Birdwell, 819 S.W.2d 223, 228 (Tex. App. – Fort Worth 1991, writ denied).

Moreover, where there is a written contract, consideration for its execution is

presumed. Blockbuster, Inc. v. C-Span Entertainment, Inc., 276 S.W.3d 482, 488

(Tex. App. – Dallas 2008, pet. granted). As the party alleging lack of consideration,

the Union had the burden to rebut that presumption. Id. The Union has failed to

meet its burden.

         The Settlement Agreement is a written contract that is ripe with consideration.

At the most basic level, the Settlement Agreement put an end to decades of litigation

between the parties. However, the Settlement Agreement also provided the Union

with the opportunity to receive 48% of the $43 million that had been garnished by

Arriba in New York as “further consideration for this Agreement.” (18B RR 61-62

[DX 50].) The Settlement Agreement was entered into at a time when there was no



                                           43
guarantee that the Union would get any of this money back. The fact that the

garnishments were subsequently dissolved is irrelevant – hindsight is 20-20.

      The Union was also able to negotiate terms into the agreement that prohibits

Arriba from enforcing the 1986 Judgment in Mexico. Specifically, pursuant to

Article IV(B), since the Union failed to distribute the garnished funds as required by

the agreement, Arriba can enforce the 1986 Judgment against the Union “anywhere

in the world, except in the country of Mexico.” (18B RR 62 [DX 50].) The benefit

received by the Union is all the more apparent in light of the jury’s verdict – a

judgment that Arriba cannot enforce in Mexico. With the return of the garnished

funds to Mexico, Arriba must search outside of Mexico for assets with which to

enforce its judgment.

      Under Article V, the Union’s failure to distribute the garnished funds under

the agreement resulted in the mutual dismissal of the 1989 litigation. However, if

the Union distributed the garnished funds to Arriba as was required, the dismissal of

the 1989 litigation was at the Union’s option. (18B RR 63 [DX 50].) These

bargained-for exchanges are exactly what the Union wanted since it never intended

to perform under the Settlement Agreement.




                                         44
         Thus, even a cursory review of the terms of the Settlement Agreement reveals

that it is supported by adequate consideration. Accordingly, the Union’s appeal on

this ground should be rejected.

    V.      The Union Has Failed to Establish a Basis for the Court to Reverse
            and Remand for a New Trial

         A. The Trial Court Did Not Abuse Its Discretion in Excluding the
            Union’s Evidence Regarding Mexican Law
         A trial court’s evidentiary rulings are reviewed for abuse of discretion. See

Horizon/CMS Healthcare Corp. v. Auld, 34 S.W.3d 887, 906 (Tex. 2000). Abuse

of discretion occurs when the trial court acts without regard for any guiding rules or

principles. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex.

1985). Even if an evidentiary ruling is erroneous, the Court should not reverse

unless the erroneous ruling probably caused the rendition of an improper judgment.

See Auld, 34 S.W.3d at 906. “Reversible error in connection with rulings on

questions of evidence usually does not occur unless the complaining party can

demonstrate that the whole case turned on the evidence that was admitted.” Reliant

Energy, 336 S.W.3d at 793.

         As established above, Mexican law does not apply in this case in light of the

Settlement Agreement’s Texas choice-of-law provision. Since Mexican law has no

application in this case, evidence regarding Mexican law is irrelevant. Tex. R.

Evid. 401, 402. Moreover, any minimal probative value Mexican law may have

                                           45
had would have been “substantially outweighed” by the danger of unfair prejudice,

confusion of the issues, misleading the jury, and by considerations of delay. Tex.

R. Evid. 403. Therefore, the trial court did not abuse its discretion in refusing to

admit the Union’s evidence regarding Mexican law. As a result, the Court should

also reject the Union’s appeal on this issue.

      B. Any Error in Instructing the Jury Regarding Apparent Authority, if
         Any, Was Harmless

      A trial court's decision to submit or refuse a particular instruction is reviewed

under an abuse of discretion standard. Thota v. Young, 366 S.W.3d 678, 687 (Tex.

2012).   “The trial court has considerable discretion to determine proper jury

instructions, and ‘[i]f an instruction might aid the jury in answering the issues

presented to them, or if there is any support in the evidence for an instruction, the

instruction is proper.’ ” Id. quoting La.-Pac. Corp. v. Knighten, 976 S.W.2d 674,

676 (Tex. 1998). “An instruction is proper if it (1) assists the jury, (2) accurately

states the law, and (3) finds support in the pleadings and evidence.” Columbia Rio

Grande Healthcare, L.P. v. Hawley, 284 S.W.3d 851, 855-56 (Tex. 2009). In this

case, the Court should not reverse the judgment for a charge error unless that error

was harmful because this Court determines that it “probably caused the rendition of

an improper judgment.      Thota, 366 S.W.3d at 687 quoting Tex. R. App. P.

44.1(a)(1). The Union bears the burden of establishing the error was harmful. See

                                          46
Crescendo Invs. v. Brice, 61 S.W.3d 465, 477 (Tex. App. – San Antonio 2001, pet.

denied) (“[appellant] has the burden to show the error probably caused the rendition

of an improper judgment.”).

      Here, the trial court instructed the jury on apparent authority using Texas

Pattern Jury Charge 101.4. (14 CR 7630-7631.) This is an accurate statement of

the law in Texas. See Gaines, 235 S.W.3d at 182-183. Although the Union

contends that the instruction was not complete in light of Gaines, the Union has

failed to present any evidence of argument establishing how the trial court’s refusal

to submit its proposed instructions “probably caused the rendition of an improper

judgment.” In fact, as set forth above, the evidence established that Ryerson and

Alvarez had actual authority to enter into the Settlement Agreement on behalf of the

Union. Therefore, the trial court’s failure to submit the Union’s proposed jury

charge on apparent authority could not cause the rendition of an improper verdict.

      Moreover, as also set forth above, the evidence submitted to the jury

established that: (1) the Union’s lack of ordinary care led Arriba to believe that

Ryerson and Alvarez had authority to enter into the Settlement Agreement; (2)

Arriba justifiably relied on the Union’s lack of ordinary care to its detriment; and (3)




                                          47
the Union had full knowledge of all material facts. 16 Therefore, there was no

harmful error due to the trial court’s refusal to use the Union’s proposed charge to

instruct the jury regarding apparent authority.

       Applying the principles in Columbia Rio Grande Healthcare, supra, the trial

court’s charge to the jury regarding apparent authority was proper because it assisted

the jury in determining the applicable law to apply to this case, it accurately stated

the law in Texas regarding apparent authority as set forth in Texas Pattern Jury

Charge 101.4, and the instruction was supported by the pleadings and evidence.

       Finally, the Union has failed to offer any evidence or argument demonstrating

that the jury may have had an inaccurate impression that Ryerson’s status as the

Union’s attorney improperly clothed him with authority to enter into the Settlement

Agreement.

       For all of these reasons, the Union has failed to meet its burden of proving

harmful error. Therefore, there is no basis for the Court to find that the trial court’s

charge to the jury probably caused the rendition of an improper judgment.




16
   Despite the Union’s claim to the contrary, the trial court did instruct the jury regarding the
reasonably prudent person standard. (14 CR 7630.)



                                                 48
      C. The Evidence Was Factually Sufficient to Support the Jury’s
         Findings on Actual and Apparent Authority
      In reviewing a jury’s verdict for factual sufficiency, an appellate court must

examine both the evidence supporting and contrary to the judgment.              Reliant

Energy, 336 S.W.3d at 781. However, the jury remains the sole judge of witnesses'

credibility, and it may choose to believe one witness over another. A reviewing

court may not impose its own opinion to the contrary.            Id. at 781-782.    “In

reviewing a factual-sufficiency challenge to a jury finding on an issue on which the

party did not have the burden of proof, we consider and weigh all of the evidence

and set aside the verdict only if the evidence that supports the jury finding is so weak

as to make the verdict clearly wrong and manifestly unjust.” Id. at 782.

      Here, the evidence was not only legally sufficient, as established above, it was

also factually sufficient.    The jury clearly believed the testimony presented

regarding Ryerson and Alvarez’ actual and apparent authority. That evidence was

strong and persuasive, and certainly not so weak as to make the verdict clearly

wrong and manifestly unjust. Therefore, the Union’s factual sufficiency challenge

should be denied.

      D. The Trial Court Did Not Error in Denying the Union’s Motion for
         Mistrial
      The Union next challenges the trial court’s denial of its motion for mistrial

based on its contention that Arriba and Ryerson did not timely disclose certain

                                          49
evidence. A trial court’s denial of a mistrial is reviewed for abuse of discretion.

Lewis v. United Parcel Serv., Inc., 175 S.W.3d 811, 815 (Tex. App. – Houston [1st

Dist.] 2004, pet. denied). A trial court abuses its discretion if it acts without

reference to any guiding rules or principles. Downer v. Aquamarine Operators,

Inc., 701 S.W.2d 238, 241-42 (Tex. 1985).

      Here, the Union argues that Arriba failed to identify the attorney for Arriba’s

Receiver in the Bahamas, Ruth Bowe-Darville, as a potential witness and failed to

produce requested documents regarding Arriba’s claims that Ryerson and Alvarez

had authority. The Union contends that this information was then wrongfully

disclosed to the jury during Gomez and Nelson’s testimony. Contrary to the

Union’s claims, Gomez and Nelson only testified regarding Bowe-Darville’s

assistance in confirming Ryerson and Alvarez’ identity when they arrived in the

Bahamas to sign the Settlement Agreement. This testimony was entirely consistent

with Arriba’s discovery responses.

      Specifically, the Union’s motion is based on its Interrogatory Nos. 8 and 9 and

Requests for Production Nos. 35 and 37. (See 13 CR 7418-7419.) All of this

discovery went to Arriba’s contention that Ryerson and Alvarez had authority to

enter into the Settlement Agreement on behalf of the Union.           (Id.)   Arriba

responded that Nelson verified their authority and that both Gomez and Black were


                                        50
fully aware that Ryerson had been the Union’s long-standing attorney. (13 CR

7418.) Arriba also produced responsive documents.

      The Union claims that Gomez and Nelson improperly testified that

Bowe-Darville had a “dossier” with Alvarez’ passport and verified his authority to

bind the Union. This simply is not true. Importantly, all of this testimony was

elicited by the Union’s attorney and he was the one who used the term “dossier.”

(9 RR 42-43, 213.) Arriba did not seek to introduce the testimony in the first

instance. C.f. In re City of Houston, 418 S.W.3d 388, 396 (Tex. App. – Houston

[1st Dist.] 2013, orig. proceeding) (trial court abused its discretion in granting new

trial where party that did not disclose evidence did not seek to use the undisclosed

evidence).

      In addition, the term “dossier” is one the Union came up with in order to try to

create an appellate issue. (See 14 RR 9.) Gomez merely testified that, in most

cases, his Bahamian attorney would assemble documentation regarding individuals

with whom he was doing business. (9 RR 43-44.) However, despite the Union’s

attorney’s attempts to get Gomez to confirm that such a “dossier” was created in this

instance reflecting Alvarez’ background, Gomez only testified that he would have

reviewed such documents if they existed. (Id.) In fact, there was no dossier in this

instance.    (14 RR 9.)   Moreover, the Union was aware of Alvarez’ passport


                                         51
number throughout this litigation as it appears on the power of attorney, which is

attached as Exhibit B to the Settlement Agreement. (18B RR 89-90 [DX 50].)

      Under examination by the Union’s attorney, Nelson testified that

Bowe-Darville did not do anything beforehand in terms of due diligence, but that she

“may have made sure they were who they said they were when they arrived.”

(9 RR 213.) Thus, Arriba responded truthfully and completely to the Union’s

discovery. However, even if Arriba’s discovery responses were somehow lacking,

which they were not, Gomez and Nelson’s testimony was nonetheless admissible

under Texas Rules of Civil Procedure 193.6(a) since the Union knew of Alvarez’

passport number from Exhibit B to the Settlement Agreement and also knew about

the existence of Bowe-Darville as Arriba’s Bahamian attorney, who Gomez

identified and discussed numerous times during his deposition. (14 RR 9-10.)

      The Union next argues that the trial court should have granted a mistrial based

on Ryerson’s failure to produce an affidavit regarding a cash payment Ryerson

received from the Union in 1992. Initially, as the Union concedes, the trial court

did not admit the affidavit into evidence. Therefore, the trial court did not abuse its

discretion in denying the Union’s motion for mistrial.

      In addition, as argued by Ryerson’s attorney to the trial court, the affidavit

was not responsive to any of the Union’s requests.          (See 13 CR 7517-7522;


                                          52
Appellant’s Brief p. 69; 14 RR 18-22.) Ryerson brought the affiant with him to

Mexico because he wanted a witness to the fact that he was getting less than the $3.5

million he was supposed to be paid by the Union for U.S. IRS tax purposes. (12 RR

100-101; 14 RR 18.) Thus, the affidavit was not made with regard to a dispute with

the Union and it was not a part of Ryerson’s Union file. (13 CR 7521-7522.)

Further, Ryerson did not intend to call the affiant because he had passed away. (14

RR 20-21.) Finally, Ryerson did not intend to use the affidavit at trial, and he

objected to the Union’s broad request for “[a]ll exhibits you intend to use at trial” on

work product grounds. (13 CR 7518; 14 RR 18.)

       For all of these reasons, the trial court did not abuse its discretion in denying

the Union’s request for a mistrial.

       E. The Court Properly Refused to Instruct the Jury Regarding the
          Union’s Counterclaims
       The Union’s final charge of error is that the trial court improperly refused to

instruct the jury on its counterclaims for wrongful garnishment against Arriba and

breach of fiduciary duty against Ryerson. Ryerson is in a better position to address

the Union’s claim regarding breach of fiduciary duty.17 With regard to the Union’s



17
   In the event the Court finds that the trial court should have instructed the jury on the Union’s
breach of fiduciary duty claim, the Court should only reverse that portion of the judgment and
leave the rest intact. Tex. Rul. App. Proc. 44.1(b).


                                                 53
claim for wrongful garnishment, the trial court was correct in not submitting that

issue to the jury.

       Arriba moved for directed verdict on the Union’s claim for wrongful

garnishment. (14 RR 50.) The trial court’s decision not to submit the issue to the

jury was the result of the trial court granting Arriba’s motion. Unfortunately, the

record does not reflect this fact because the trial court took the proceeding off

record. (Id.) Accordingly, the Court should review this issue under the standard

for reviewing a directed verdict.

       In reviewing a directed verdict, the standards are the same as a legal

sufficiency challenge. City of Keller, 168 S.W.3d at 823. To reiterate, “[i]f the

evidence at trial would enable reasonable and fair-minded people to differ in their

conclusions, then jurors must be allowed to do so. A reviewing court cannot

substitute its judgment for that of the trier-of-fact, so long as the evidence falls

within this zone of reasonable disagreement.” Id. at 822. “It is the province of the

jury to resolve conflicts in the evidence. Accordingly, courts reviewing all the

evidence in a light favorable to the verdict must assume that jurors resolved all

conflicts in accordance with that verdict.” Id. at 820.

       The only evidence the Union cites in support of this challenge is the fact that

the trial court granted the Union’s motion and released Arriba and Ryerson’s writs


                                         54
of garnishment. The Union then contends that the trial court determined that the

writs failed to meet the requirements for issuance. Not only is this statement not

supported by the record, it does not establish the Union’s claim even if it were true.

      First, the court’s order simply states that it is of the opinion that the Union’s

motion is well taken and sustains the motion to dissolve the writs of garnishment.

(4 CR 3379-3380.) The Union’s motion to dissolve Arriba’s writ was based on four

arguments, the Union arguing that any one of which would provide a basis to

dissolve the writ: (1) Arriba’s application for the writ was defective; (2) the

affidavit/verification supporting the writ was inadequate; (3) the garnished funds

were in custodia legis and were not subject to garnishment; and (4) Arriba’s

application contained false information. (4 CR 3139.) However, there is nothing

in the record to indicate which one of these arguments provided the basis for the trial

court’s order releasing the writs of garnishment. (4 CR 3379-3380.) Therefore,

the fact that the trial court released the writs of garnishment does not establish the

Union’s claim.

      In addition, a garnishment is only wrongful if the facts set forth in the affidavit

are false or if the debt or judgment alleged to be the basis for the garnishment is

non-existent or not sufficient to support the writ. Aetna Cas. & Sur. Co. v. Raposa,

560 S.W.2d 106, 109 (Tex. App. – Fort Worth 1977, writ dism'd). Even if the trial


                                          55
court released the writs because the requirements for issuance were not met, there is

no indication which requirements the trial court believed were lacking. Thus, the

trial court’s order dissolving the garnishment does not establish the elements

required for a claim for wrongful garnishment. As such, the Union’s claim of error

could not have caused the rendition of an improper judgment as required by

Rule 44.1(a)(1) of the Texas Rules of Appellate Procedure.

       The Union will likely rely on Texas Commerce Bank N.A. v. Tripp, 516

S.W.2d 256 (Tex. Civ. App. – Fort Worth 1974, writ dism’d.) to argue that Arriba’s

writ of garnishment was wrongful because the 1986 Judgment had been released as a

part of Arriba’s agreement with Comater.         Initially, Texas Commerce Bank

involved a prejudgment writ of garnishment.         Id. at 257.    Arriba’s writ of

garnishment was based on the 1986 Judgment, which is a final judgment. More

importantly, however, Black testified that the Comater agreement was rescinded and

the 1986 Judgment was reinstated. (8 RR 196-197.) Black’s testimony was

further supported by documentary evidence of the April, 2002 agreement between

Arriba and Comater reinstating the 1986 Judgment. (18A RR 31-33 [DX 7].)

Arriba did not apply for its writ of garnishment until May, 2002. (1 CR 24.)

Therefore, at the time Arriba made its application, the 1986 Judgment was valid and

in effect.


                                         56
      Finally, the other cases relied upon by the Union do not support reversing the

trial court in this case. In Chandler v. Cashway Bldg. Materials, Inc., 584 S.W.2d

950 (Tex. Civ. App. – El Paso 1979, no writ), the court found that the garnishment

was wrongful because some of the facts in the affidavit supporting the garnishment

were untrue. Id. at 952-953. Similarly, in Peerless Oil & Gas Co. v. Teas, 138

S.W.2d 637 (Tex. Civ. App. – San Antonio 1940, jdgmt. aff’d.), the jury found that

the garnishment was wrongful and that the defendant acted with malice. Here, on

the other hand, the Union’s only evidence to support its claim was the fact that the

trial court had previously dissolved the writ of garnishment. As set forth above,

however, this does not establish the elements of a claim for wrongful garnishment.

      For all of these reasons, the Court should not reverse based on the trial court’s

decision not to submit the Union’s claim for wrongful garnishment to the jury.

                         CONCLUSION AND PRAYER

      The Union has failed to meet its burden of establishing that the trial court

erred in any manner that would warrant reversing the judgment entered in this case.

      WHEREFORE, PREMISES CONSIDERED, Appellee/Cross-Appellant

James Gomez, as Receiver for Arriba Limited, respectfully prays that this Court

deny the appeal by Appellant and Cross-Appellee The Petroleum Workers Union of

the Republic of Mexico in its entirety.



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      Appellee/Cross-Appellant further prays for such other and further relief that it

may be justly entitled.

                                Respectfully submitted,

                                CALHOUN, BHELLA & SECHREST, LLP

                                By: /s/ Brian Calhoun
                                   Brian Calhoun, Esq.
                                State Bar No. 24044827
                                325 N. Saint Paul Street, Suite 2300
                                Dallas, Texas 75201
                                Telephone: 214.981.9200
                                Facsimile: 214.981.9203
                                Email: bcalhoun@cbsattorneys.com

                                   Michael J. Pérez, Esq.
                                Pérez & Wilson, Inc.
                                750 B Street, Suite 3300
                                San Diego, California 92101
                                Telephone: 619.741.0282
                                Facsimile: 619.460.0437
                                Email: perez@perezwilson.com

                                   Steven Ward Williams, Esq.
                                Smith Sovik Kendrick & Sugnet, PC
                                250 South Clinton Street, Suite 600
                                Syracuse, New Work 13202-1252
                                Telephone: 315.474.2911
                                Facsimile: 315.474.6015
                                Email: swilliams@smithsovik.com

                                ATTORNEYS FOR PLAINTIFF JAMES
                                GOMEZ, AS RECEIVER FOR ARRIBA
                                LIMITED



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                      CERTIFICATE OF COMPLIANCE
      I certify that the foregoing brief is in compliance with Texas Rule of

Appellate Procedure 9.4 because it contains 14,138 words and has been prepared in a

proportionally spaced typeface using Microsoft Word 2010 in 14-point Times New

Roman font for text and 12-point Times New Roman font for footnotes, which meets

the typeface requirements.

                                             /s/ Brian Calhoun
                                             Brian Calhoun




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                          CERTIFICATE OF SERVICE

      I certify that a true and correct copy of this brief was served on all counsel of
record electronically on September 24, 2015.

 Michael Choyke                      Paul Simon
 State Bar No. 00793504              State Bar No. 24003276
 WRIGHT & CLOSE, LLP                 SIMON HERBERT & MCCLELLAND, LLP
 One Riverway, Suite 2200            3411 Richmond Ave., Ste. 400
 Houston, Texas 77056                Houston, Texas 77046
 (713) 572-4321                      (713) 987-7100
 (713) 572-4320 (fax)                (713) 987-7120 (fax)
 choyke@wrightclose.com              psimon@shmsfirm.com

 Carlos Ryerson
 RYERSON & ASSOCIATES, P.C.
 The Kirby Mansion
 2000 Smith Street
 Houston, Texas 77002-8652
 (713) 307-9900
 (832) 383-9320 (fax)
 carlos.ryerson@ryersonlaw.com

                                               /s/ Jeffrey A. Feasby
                                               Jeffrey A. Feasby




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