                                                                                     ACCEPTED
                                                                                13-15-00348-CV
                                                                THIRTEENTH COURT OF APPEALS
                                                                       CORPUS CHRISTI, TEXAS
                                                                          10/15/2015 5:28:01 PM
                                                                               Dorian E. Ramirez
                                                                                          CLERK

                          No. 13-15-00348-CV

                                                        FILED IN
                                                 13th COURT OF APPEALS
In the Court of   Appeals for the Thirteenth Court of CHRISTI/EDINBURG,
                                              CORPUS  Appeals District TEXAS
                        Corpus Christi, Texas 10/15/2015 5:28:01 PM
                                                   DORIAN E. RAMIREZ
                                                         Clerk

                       TOTAL E&P USA, INC.
                            Appellant,

                                   v.

             MO-VAC SERVICES COMPANY, INC.
                        Appellee.


  ON APPEAL FROM THE 275TH JUDICIAL DISTRICT COURT,
              HIDALGO COUNTY, TEXAS

                  Trial Court Case Number C-023-05-E


        BRIEF OF APPELLANT TOTAL E&P USA, INC.


              ELLIS, KOENEKE & RAMIREZ, L.L.P.
                       Edmundo O. Ramirez
                      State Bar No. 16501420
                  Email: eor@ekrattorneys.com
                         Minerva I. Zamora
                      State Bar No. 24037765
                  Email: miz@ekrattorneys.com
                         1101 Chicago Ave.
                       McAllen, Texas 78501
                    Telephone: (956) 682-2440
                    Facsimile: (956) 682-0820
             Counsel for Appellant Total E&P USA, Inc.
                     Oral Argument Requested
                 IDENTITY OF PARTIES AND COUNSEL

Appellant/Defendant:                    Total E&P USA, Inc.

Counsel for Appellant/Defendant:        ELLIS, KOENEKE & RAMIREZ,
                                        L.L.P.
                                        Edmundo O. Ramirez
                                        Minerva I. Zamora
                                        1101 Chicago Ave.
                                        McAllen, Texas 78501

Appellee/Plaintiff:                     Mo-Vac Services Company, Inc.

Counsel for Appellee/Plaintiff:         GARCIA & MARTINEZ, L.L.P.
                                        Adrian R. Martinez
                                        Alberto T. Garcia, III
                                        6900 N. 10th St., Suite 2
                                        McAllen, Texas 78504




                                   ii
                                           TABLE OF CONTENTS

IDENTITY OF PARTIES AND COUNSEL ........................................................... ii

TABLE OF CONTENTS ......................................................................................... iii

INDEX OF AUTHORITIES...................................................................................... v

STATEMENT OF THE CASE .................................................................................vi

STATEMENT ON ORAL ARGUMENT ................................................................vi

ISSUES PRESENTED............................................................................................ vii

I.         The trial abused its discretion by allowing Mo-Vac’s counsel to introduce
           evidence that was irrelevant, inadmissible, and highly prejudicial through
           impeachment on direct examination of Edmundo Ramirez, who was not
           offering any expert testimony in this matter, and such admission of evidence
           was calculated to cause and probably did cause the rendition of an improper
           judgment ....................................................................................................... vii

II.        The trial court abused its discretion by entering a final judgment on the
           jury’s verdict because the jury’s verdict was not supported by sufficient
           evidence and was grossly excessive ............................................................. vii

STATEMENT OF FACTS ........................................................................................ 2

SUMMARY OF THE ARGUMENT ........................................................................ 8

ARGUMENT ............................................................................................................. 9

      I.       By Allowing Mo-Vac’s Counsel to Question Edmundo Ramirez (Who
               Repeatedly Stated that he Was Not Offering any Expert Opinion in this
               Case) Regarding the Expert Testimony he Gave on Attorneys’ Fees in a
               Wholly Unrelated Matter, the Trial Court Admitted Evidence that Was
               Completely Irrelevant, Inadmissible, Served No Other Purpose than to
               Confuse and Mislead the Jury, and Was Highly Prejudicial ...................... 9

                                                               iii
              A. Evidence Regarding Defendant’s Attorneys’ Fees Is Irrelevant in a
                 Case Where Only Plaintiffs’ Attorneys’ Fees Are at Issue ................... 9

              B. Evidence of What a Particular Attorney of Law Firm Charges in a
                 Particular Case Is Irrelevant in Determining Reasonable Attorneys’
                 Fees Under the Arthur Anderson Factors ............................................ 12

              C. Edmundo Ramirez Repeatedly Stated on the Witness Stand that he
                 Was Not Offering any Expert Opinion in this Matter, and Was
                 Therefore Not a Proper Witness on this Subject ................................. 14

              D. Despite Mr. Ramirez’s Repeated Assertions that he Was Not Serving
                 as an Expert in this Case, Mr. Garcia Improperly Questioned Mr.
                 Ramirez Regarding an Expert Opinion he Gave on Attorneys’ Fees in
                 an Entirely Separate and Wholly Unrelated Case ............................... 17

    II.       The Amount of Attorneys’ Fees Awarded by the Jury and Entered in the
              Court’s Final Judgment Was Not Supported by Sufficient Evidence and
              Was Grossly Excessive as a Matter of Law ............................................. 25

              A. The Evidence Presented at Trial Was Insufficient to Support the
                 Award of Attorneys’ Fees ................................................................... 25

              B. The Award of Attorneys’ Fees for the Sole Surviving Claim of Breach
                 of Confidentiality Agreement Was Grossly Excessive as a Matter of
                 Law ...................................................................................................... 36

PRAYER .................................................................................................................. 42

CERTIFICATE OF COMPLIANCE ....................................................................... 44

CERTIFICATE OF SERVICE ................................................................................ 44

APPENDIX .............................................................................................................. 45




                                                             iv
                                      INDEX OF AUTHORITIES

CASES

MCI Telecomms Corp. v. Crowley, 899 S.W. 2d 399 (Tex.App.—Fort Worth 1995,
orig. proceeding [leave denied]) ........................................................................10, 13

Arthur Anderson & Co. v. Perry Equip. Corp., 945 s.w.2D 812 (Tex. 1997)
............................................................................................. 12, 13, 18, 27, 35, 36, 41

Land Rover U.K., Ltd. V. Hinojosa, 2010 S.W.3d 604............................................ 13

Duinick Bros. v. Howe Precast, Inc., No. 4:06-CV-441, 2008 WL 4411641(E.D.
Tex. Sept 23, 2008) ......................................................................................13, 14, 18

City of Laredo v. Montano, 414 S.W.3d 731 (Tex. 2013) .....................26, 29, 30, 31

El Apple I, Ltd. v. Olivas, 370 S.W.3d 757 (Tex. 2012) ....................................26, 29

Smith v. Patrick W.Y. Tam Trust 296 S.W.3d 545.............................................40, 41

Wythe II Corp. v. Stone, 342 S.W.3d 96 .................................................................. 41

RULES

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




                                                            v
                           STATEMENT OF THE CASE

      This is an appeal from a jury trial on the sole issue of the amount of

reasonable and necessary attorneys’ fees incurred by counsel for Mo-Vac Services

Company, Inc. in connection with its only surviving claim of breach of

confidentiality agreement. Appellant Total E&P USA, Inc. alleges error in the trial

court’s admission of evidence that was irrelevant, inadmissible, highly prejudicial,

and had no probative value, and argues that the jury’s verdict was not supported by

sufficient evidence and was grossly excessive as a matter of law. Total E&P USA,

Inc. seeks to have the Court of Appeals reverse the trial court’s judgment and

render judgment or, in the alternative, reverse the trial court’s judgment and

remand the case for a new trial to determine the specific amount of work

performed and hours spend on the sole surviving claim of breach of confidentiality

agreement against Total.

                    STATEMENT ON ORAL ARGUMENT

      Appellant Total believes that oral argument would assist the Court in

deciding the issues involved, and therefore respectfully requests an oral argument

pursuant to Rule 39 of the Texas Rules of Appellate Procedure.




                                         vi
                            ISSUES PRESENTED

I.    The trial abused its discretion by allowing Mo-Vac’s counsel to introduce
      evidence that was irrelevant, inadmissible, and highly prejudicial through
      impeachment on direct examination of Edmundo Ramirez, who was not
      offering any expert testimony in this matter, and such admission of evidence
      was calculated to cause and did cause the rendition of an improper judgment.

II.   The trial court abused its discretion by entering a final judgment on the
      jury’s verdict because the jury’s verdict was not supported by sufficient
      evidence and was grossly excessive.




                                       vii
                               No. 13-15-00348-CV


     In the Court of Appeals for the Thirteenth Court of Appeals District
                           Corpus Christi, Texas


                            TOTAL E&P USA, INC.
                                 Appellant,

                                         v.

                     MO-VAC SERVICES COMPANY, INC.
                                Appellee.


          ON APPEAL FROM THE 275TH JUDICIAL DISTRICT COURT,
                      HIDALGO COUNTY, TEXAS

                       Trial Court Case Number C-023-05-E


                BRIEF OF APPELLANT TOTAL E&P USA, INC.


         TO THE HONRABLE JUSTICES OF THE COURT:

         COMES NOW Appellant Total E&P USA, Inc. and files this Brief of

Appellant, requesting that the Court reverse the trial court’s judgment and render

judgment or, in the alternative, reverse the trial court’s judgment and remand the

case for a new trial to determine the specific amount of work performed and hours

spent on the sole-surviving claim of breach of confidentiality agreement against

Total.
                             STATEMENT OF FACTS

        This case involves Appellee Mo-Vac Services Company, Inc. (hereinafter

“Mo-Vac”)’s claim for attorneys’ fees incurred in connection with its sole

surviving cause of action for breach of confidentiality agreement. (See Supp. C.R.

1: 73). Mo-Vac originally filed various claims in contract and tort (including

breach of confidentiality agreement) against Appellant Total E&P USA, Inc.

(hereinafter “Total”) and Pool Well Services, Co. a/k/a Nabors Well Services

(hereinafter “Pool”), as Intervenor in a suit arising from Total’s award of a Blanket

Services and Supply Agreement (a multi-year oil field services contract) to Pool

rather than Mo-Vac. (See id., at 56-59). In 2009, this case was tried to a jury and a

verdict was rendered in favor of Mo-Vac on each of its claims against Total and

Pool.    (See id., at 59).   On October 16, 2009, the trial court signed a Final

Judgment finding in favor of Mo-Vac on each of its claims, and finding that Total

and Pool were jointly and severally liable for attorneys’ fees to Mo-Vac in the

amount of $433,912.50. (C.R. 1: 64-65). Total appealed the jury’s findings. (See

Supp. C.R. 1: 59).

        On August 23, 2012, this Court of Appeals issued its Memorandum Opinion

in which it reversed the jury’s decision on each of Mo-Vac’s claims against Total

and Pool, except for breach of confidentiality agreement against Total, and

                                                                           Page 2 of 45
 
rendered a take-nothing judgment against Mo-Vac on each of its claim other than

breach of confidentiality agreement against Total. (Id., at 73-74). The Court of

Appeals reversed the award of $433,912.50 in attorneys’ fees to Mo-Vac (for

which Total and Pool had been found jointly and severally liable by the lower

court). (See id., at 73, and C.R. 1: 73). The Court of Appeals remanded the case

back to the trial court on the sole issue of the reasonable amount of attorneys’ fees

Mo-Vac accrued in connection with its only surviving claim of breach of

confidentiality agreement against Total, the only surviving Defendant. (Supp. C.R.

1: 73).

Specifically, the Court of Appeals issued the following order for remand:

      Reverse the award of attorney’s fees to Mo-Vac and remand to the trial
      court to determine the amount of fees earned with respect to its
      successful breach of confidentiality agreement claim.

(Id.) (emphasis added).

      Despite this clear directive from the Court of Appeals that a new award of

attorneys’ fees was to be determined on remand for the sole remaining cause of

action of breach of confidentiality agreement against the sole remaining Defendant

in the case, Mo-Vac attempted to enforce the previous award of attorneys’ fees

(which had been rendered against both Defendants Total and Pool in joint and

several liability). (See Supp. C.R. 1: 73, and C.R. 1: 56-71). Specifically, Mo-
                                                                            Page 3 of 45
 
Vac filed its Motion to Determine Attorneys’ Fees wherein it requested that the

trial court award a total of $433,912.50 in attorneys’ fees for its work performed

through the first trial. (See C.R. 1: 56-58). This is the same amount originally

awarded to Mo-Vac in connection with its various claims against Defendants Total

and Pool, and which was reversed on appeal. (See C.R. 1: 64-65, and Supp. C.R.

1: 73). Recognizing that a trial was necessary in order to comply with the Court

of Appeals’ order of remand on the issue of attorneys’ fees, on October 11, 2013,

Total requested that the trial court set a docket control conference and set a trial in

this cause. (C.R. 1: 75-77). On January 27, 2015, the trial court issued an Order

Re-Setting Trial Date, setting a trial date of April 13, 2015 for the second trial in

this matter. (C.R. 1: 87).

      On February 26, 2015, Mo-Vac filed a motion to compel Total to respond to

discovery requests regarding the amount of attorneys’ fees billed by Total’s

counsel in this case. (See C.R. 1: 89-96). Total filed a response to Mo-Vac’s

motion to compel, setting forth legal precedent establishing that the amount of

attorneys’ fees charged by opposing counsel is irrelevant and undiscoverable

where only one side’s attorneys’ fees are at issue. (C.R. 1: 97-102). Further,

Total set forth case law establishing that what one attorney or law firm charges for



                                                                             Page 4 of 45
 
attorneys’ fees is irrelevant in determining a customary fee for the area. (See id., at

100-101). On April 9, 2015, the trial court heard Mo-Vac’s Motion to Compel.

(R.R. 2: 1). After hearing arguments from both sides and the applicable case law

presented by Total, the trial court sustained Total’s objections to Mo-Vac’s Motion

to Compel the requested information regarding Total’s attorneys’ fees. (R.R. 2:29,

lines 16-17).

      The trial court re-affirmed its ruling on this issue shortly before trial:

      Mr. Ramirez: My fees are patently irrelevant.

      The Court: Well, I already ruled.

      Mr. Ramirez: That’s why I’m refreshing the Court. Because he thinks that
      you – because you already ruled on a Motion to Compel to produce them,
      and interrogatories, but then he can ask me on the stand. That’s what he’s
      going to try to do.

(R.R. 5: 14, lines 2-8).

      Despite the fact that the only issue involved in this case was the amount of

attorneys’ fees accrued by Mo-Vac in connection with its breach of confidentiality

agreement claim, counsel for Mo-Vac called to the witness stand Mr. Edmundo

Ramirez (hereinafter “Mr. Ramirez”), counsel for Total, and questioned him

regarding the expert witness testimony he gave in an entirely different case as to

the reasonable and necessary attorneys’ fees in that specific case. (See R.R. 5: 44


                                                                               Page 5 of 45
 
54). Total’s counsel objected to the line of questioning on the grounds that it was

irrelevant as Mr. Ramirez was not offering expert testimony in this case. (R.R. 5:

46, line 21—47, line 4; 47, line 19—48, line 21; 49, line 11—51, line 4). The trial

court sustained some objections and overruled others. (R.R. 5: 46, line 21—47,

line 4; 47, line 19—48, line 21; 49, line 11—51, line 4; 60, lines 1-16).

      Mo-Vac called Adrian Martinez (hereinafter “Mr. Martinez”), Mo-Vac’s

lead counsel at the prior trial, to testify as an expert on attorneys’ fees and to

explain the attorneys’ fees incurred in this case. (R.R. 5: 97-225). During his trial

testimony, Mr. Martinez did not set forth the specific tasks and time incurred in

connection with the sole surviving cause of action, breach of confidentiality

agreement against Total. Instead, Mr. Martinez relied on a compilation (that was

not created contemporaneously) from which he generalized that 90% of the time

recorded could be attributed to the breach of confidentiality claim. (See R.R. 5:

126, lines 13-14; 133, line 22—134, line 8; 154, line 21—160, line 10). This

testimony was not only insufficient, but, as discussed in detail below, was

controverted by the testimony of Total’s expert witness and the facts of this case.

(See R.R. 6: 22, line 2—24, line 7, and R.R. 6: 27, line 24—29, line 6).




                                                                            Page 6 of 45
 
      After a trial on the merits, the trial court submitted this cause to the jury.

The jury returned a verdict for Mo-Vac in the following amounts set forth in the

Charge of the Court:

      $370,375.00 for the successful representation of the breach of confidentiality
      claim through trial;

      $25,000.00 for future representation through appeal to the court of appeals,
      if one is taken;

      $5,000.00 for future presentation at the petition for review stage in the
      Supreme Court of Texas, if the case comes before the Supreme Court of
      Texas;

      $12,000.00 for future presentation at the merits briefing stage in the
      Supreme Court of Texas, if the case comes before the Supreme Court of
      Texas; and

      $8,000.00 for future presentation through oral argument and the completion
      of proceedings in the Supreme Court of Texas, if the case comes before the
      Supreme Court of Texas.

(C.R. 1: 105-110; App. Ex. 1).

      On April 30, 2015, the trial court entered a Final Judgment in the amounts

awarded by the jury. (C.R. 1: 113-115; App. Ex. 2). On May 28, 2015, Total

filed its Motion for New Trial arguing that there was insufficient evidence to

support the amount of attorneys’ fees awarded by the jury; that the trial court

abused its discretion by allowing Mo-Vac’s counsel to question Mr. Ramirez

regarding the details of a specific expert opinion he gave in an unrelated case
                                                                          Page 7 of 45
 
because such evidence was irrelevant, inadmissible, and highly prejudicial; and

that the jury’s award of attorneys’ fees was grossly excessive as a matter of law.

(C.R. 1: 116-129). Mo-Vac filed a response to Total’s Motion for New Trial,

Total filed a reply, Mo-Vac filed a supplemental response, and then Total filed a

supplemental reply. (See C.R. 1: 130-145, 146-190; Supp. C.R. 1: 75-77, 78-80).

A hearing was held on Total’s Motion for New Trial on June 16, 2015. (R.R. 9: 1-

12). On July 2, 2015, the trial court issued an Order denying Total’s Motion for

New Trial. (C.R. 1: 191). Total timely filed the instant Appeal. (See C.R. 1:

192-194).

                      SUMMARY OF THE ARGUMENT

      The trial court erred in allowing Mo-Vac’s counsel to question Mr. Ramirez

regarding the details of the expert opinion he offered in a separate case, wholly

unrelated to the one at bar. The evidence Mo-Vac’s counsel sought to and did in

fact illicit through improper impeachment on direct exam was inadmissible, highly

prejudicial, contained no probative value, was irrelevant, and its admission caused

the rendition of an improper judgment.

      The trial court further erred by upholding the jury’s verdict because the

jury’s verdict was not supported by sufficient evidence and was grossly excessive

as a matter of law. Mo-Vac’s counsel failed to provide contemporaneous time
                                                                          Page 8 of 45
 
records, itemized records, bills, or any other documentary evidence showing the

specific amount of time and work performed in connection with Mo-Vac’s sole

surviving cause of action for breach of confidentiality agreement. The evidence

presented by Mo-Vac consisted of generalized summaries prepared after the fact

and failed to differentiate the specific amount of time spent on the only claim at

issue (breach of confidentiality agreement against the only remaining Defendant)

from the other claims presented at trial against both Defendants which were

subsequently dismissed. As such, there was insufficient evidence to support the

jury’s verdict. Moreover, the amount of attorneys’ fees ultimately awarded by the

jury was grossly excessive compensation for the sole claim of breach of

confidentiality agreement.

                                 ARGUMENT

                                   I.
      By Allowing Mo-Vac’s Counsel to Question Edmundo Ramirez
(Who Repeatedly Stated that he Was Not Offering any Expert Opinion in this
  Case) Regarding the Expert Testimony he Gave on Attorneys’ Fees in a
  Wholly Unrelated Matter, the Trial Court Admitted Evidence that Was
  Completely Irrelevant, Inadmissible, Served No Other Purpose than to
          Confuse and Mislead the Jury, and Was Highly Prejudicial

A.    Evidence Regarding Defendant’s Attorneys’ Fees Is Irrelevant in a Case
      Where Only Plaintiff’s Attorneys’ Fees Are at Issue




                                                                         Page 9 of 45
 
      The sole issue before the trial court on remand was the amount of reasonable

and necessary attorneys’ fees incurred by Mo-Vac’s counsel in connection with

Mo-Vac’s only surviving cause of action for breach of confidentiality agreement.

Accordingly, only Mo-Vac’s attorneys’ fees were relevant in this case. See MCI

Telecomms Corp. v. Crowley, 899 S.W. 2d 399, 403 (Tex.App.—Fort Worth 1995,

orig. proceeding [leave denied]) (stating that there is no Texas authority that

permits a plaintiff to discover the defendant’s attorneys’ fees where only the

plaintiff’s attorneys’ fees are at issue in the case). In fact, the Fort Worth Court of

Appeals stated “[b]ased on this absence of authority, along with clearcut Texas law

on what evidence is needed to prove attorneys’ fees and the relevant factors to

consider, [the defendant’s] attorney fees in its defense of this case are ‘patently

irrelevant’ and are not reasonably calculated to lead to the discovery of admissible

evidence.” Id.

      Based on this legal standard, the trial court prevented Mo-Vac from

conducting discovery as to Total’s attorneys’ fees in this case. (See R.R. 2: 14-

29). Moreover, the trial court affirmed its ruling before trial and stated that it

would sustain objections to questioning regarding Total’s attorneys’ fees.

Specifically, the following exchange occurred prior to the beginning of trial:



                                                                            Page 10 of 45
 
      The Court: Mr. Garcia, I’m going to make a ruling that you cannot get into
      those attorneys’ fees and that Mr. Ramirez’ charges to whoever, whatever
      clients. I’ll let you get into it if Mr. Ramirez takes the stand and testifies to
      his fees as an expert or attorney for impeachment purposes. But if he
      doesn’t want to take the stand [sic]. But you can call him.

      Mr. Garcia: I am going to call him. I don’t want to interrupt the jury and
      just to seek clarification. Because I know how frustrating –

      The Court: If he refuses to testify about those attorneys’ fees, Counsel, I
      will – and if his Co-Counsel –

      Mr. Ramirez: She will object.

      The Court: I will sustain the objections. But if you want to appeal that
      ruling –

(R.R. 5: 19, lines 10-25).

Here, the Court acknowledged that it would be improper to question Mr. Ramirez

on attorneys’ fees in another, wholly unrelated case if he were not testifying as an

expert. However, the court then went on to contradict its prior statement and

essentially advised Mr. Garcia that he could do anything and ask whatever

questions he wanted.

      The Court: I’ve already made my ruling, Counsel. I don’t know what
      questions you will ask, but if they object, don’t be surprised if I sustain the
      objection.

      Mr. Garcia: So I cannot –




                                                                            Page 11 of 45
 
      The Court: I’m not saying that you cannot do anything. You can ask
      whatever questions you want. But I’m just saying that if they object, I will
      most likely sustain them.

(R.R. 5: 23, lines 1-8).

B.    Evidence of What a Particular Attorney or Law Firm Charges in a
      Particular Case Is Irrelevant in Determining Reasonable Attorneys’
      Fees Under the Arthur Anderson Factors

      The parties agreed that the factor test set forth in Arthur Andersen & Co. v.

Perry Equip. Corp. for determining reasonable attorneys’ fees was the applicable

standard for the jury to use in this case. (R.R. 5: 17, lines 7-12). Specifically,

Arthur Andersen sets forth the following eight factors that a factfinder should

consider when determining the reasonableness of a fee:

      1.     the time and labor required, the novelty and difficulty of the questions
             involved, and the skill required to perform the legal service properly;

      2.     the likelihood ... that the acceptance of the particular employment will
             preclude other employment by the lawyer;

      3.     the fee customarily charged in the locality for similar legal services;

      4.     the amount involved and the results obtained;

      5.     the time limitations imposed by the client or by the circumstances;

      6.     the nature and length of the professional relationship with the client;

      7.     the experience, reputation, and ability of the lawyer or lawyers
             performing the services; and


                                                                            Page 12 of 45
 
              8.             whether the fee is fixed or contingent on results obtained or
                             uncertainty of collection before the legal services have been rendered.

945 S.W.2d 812, 818 (Tex. 1997).

              Conspicuously absent from this list of factors is the billing rates and

practices of opposing counsel, as well as the amount of attorneys’ fees charged by

a specific attorney or law firm in a particular case. The only one of these eight

factors that comes close to addressing fees charged by other attorneys is the third

factor - the fee customarily charged in the locality for similar legal services.

However, courts have held that this factor may not be used to introduce evidence

of what another particular law firm charges. See Duininck Bros. v. Howe Precast,

Inc., No. 4:06-CV-441, 2008 WL 4411641, at *3 (E.D. Tex. Sept. 23, 2008) (citing

MCI Telecomms. Corp., 899 S.W.2d at 403). Specifically, “what a single law firm

charges for a particular set of services and its choice of tactics in representing a

given client are issues decidedly distinct from deciding what constitutes a

customary fee.” Id. (applying Texas law). The court in Duininck Bros. went on to

reason that the third factor used to determine attorneys’ fees1 “is plainly aimed at a



                                                            
1
 The court in Duininck Bros. cites to the factors for determining attorneys’ fees set forth by the
Texas Supreme Court in Land Rover U.K., Ltd. v. Hinojosa, 210 S.W.3d 604, 607 (Tex. 2006).
However, these factors are identical to the factors for determining attorneys’ fees set forth by the
Texas Supreme Court in its earlier opinion of Arthur Andersen & Co. v. Perry Equip. Corp., 945
S.W.2d 812, 818 (Tex. 1997), relied on by the parties in the instant case.
                                                                                          Page 13 of 45
 
composite of legal fees charged for a given service,” and that “focusing on one law

firm's billing practices is unhelpful in determining what is ‘customary.’” Id.

C.    Edmundo Ramirez Repeatedly Stated on the Witness Stand that he Was
      Not Offering any Expert Opinion in this Matter, and Was Therefore
      Not a Proper Witness on this Subject

      Despite the clear case law establishing that the amount charged by an

individual law firm for a specific set of services is decidedly distinct from deciding

what constitutes a customary fee, Albert Garcia (hereinafter “Mr. Garcia”), Mo-

Vac’s lead counsel at trial, proceeded to circumvent this rule during trial. (See

R.R. 5: 44-54). Specifically, Mr. Garcia called Mr. Ramirez, lead counsel for

Total, to the stand as an expert witness on attorneys’ fees. (See R.R. 5: 42-63).

However, as set forth in the chart below, Mr. Ramirez repeatedly stated that he was

not offering any expert opinion in this case, that Total had designated another

attorney to testify as an expert on attorneys’ fees to testify at trial, and that Mr.

Ramirez’s only role at trial was as an advocate on behalf of Total:




                                                                           Page 14 of 45
 
    Question by Mo-Vac’s Counsel               Response by Mr. Ramirez
    Q. You designated yourself as an expert    A. I had – I’m not going to testify as
    in this case on attorneys’ fees; is that   an expert. Mr. Thomas, who’s sitting
    right?                                     behind the screen, he will be the
    (R.R. 5: 42, lines 19-20)                  designated expert. I had designated
                                               myself in case something ever
                                               happened to Mr. Thomas.
                                               (R.R. 5: 42, lines 21-24)
                                               (emphasis added)
    Q. Okay. But, nonetheless, you did         A. I have in the past. But I have no
    designate yourself as an expert?           intention of testifying as an expert in
    (R.R. 5: 42, line 25—pg. 43, line 1)       this case.
                                               (R.R. 5: 43, lines 2-3)
                                               (emphasis added)
    Q. And do you consider yourself an         A. Not in this case. But I have testified
    expert, yourself on attorneys’ fees?       in the past in other cases as an expert
    (R.R. 5: 43, lines 4-5)                    on attorneys’ fees.
    (emphasis added)                           (R.R. 5: 43, lines 6-7)
                                               (emphasis added)
    Q. Just like you’re testifying as an       A. I’m not testifying as an expert in
    expert in the second trial in this case?   this case. You can say that all you
    (R.R. 5: 49, lines 4-5)                    want to, but that’s –
                                               (R.R. 5: 49, lines 6-7)
                                               (emphasis added)
    Q. Well, I’ve designated you as an         A. Thank you for that. But that’s not
    expert.                                    my role in this trial.
    (R.R. 5: 49, line 8)                       (R.R. 5: 49, lines 9-10)
    (emphasis added)                           (emphasis added)
    Q. To be fair, do you or do you not have   A. The purpose for this trial, sir. I’m
    an opinion as what is a reasonable         not the expert. There’s an expert
    hourly rate for Mr. Martinez’ work?        sitting in the courtroom that’s going to
    (R.R. 5: 62, lines 2-3)                    testify.
                                               (R.R. 5: 62, lines 4-6)
                                               (emphasis added)
    Q. We will talk to him in a little bit?    A. Get to him. Because I’m not here
    (R.R. 5: 62, line 7)                       to give opinions. I’m here to
                                               advocate for my client. Again, I listed
                                                                              Page 15 of 45
 
    Question by Mo-Vac’s Counsel              Response by Mr. Ramirez
                                              myself in case – thank God nothing
                                              happened to Mr. Thomas – in a clutch I
                                              needed to testify.
                                              (R.R. 5: 62, lines 8-12)
                                              (emphasis added)
    Q. That’s right. Okay. So to be fair to   A. For the purposes of this trial,
    you, do you or do you not have an         that’s not my role here. I am not
    opinion as to what is a reasonable        testifying as an expert.
    hourly rate for Mr. Martinez?             (R.R. 5: 62, lines 22-23)
    (R.R. 5: 62, lines 19-21)                 (emphasis added)
    Q. We understand that. But no opinion?    A. No opinion.
    (R.R. 5: 63, line 2)                      (R.R. 5: 63, line 3)
    (emphasis added)                          (emphasis added)

         As set forth in detail above, Mr. Ramirez repeatedly stated that he was not

offering any expert opinion in this case. Total presented Ray Thomas as its

testifying expert witness on attorneys’ fees. Accordingly, any expert testimony on

attorneys’ fees by Mr. Ramirez on behalf of Total was rendered unnecessary and

cumulative in light of Mr. Thomas’s presence at trial. While Mr. Ramirez is

properly qualified as an expert on attorneys’ fees, he was not serving as one for

purposes of trial. (See R.R. 5: 43, lines 4-7). As Mr. Ramirez clearly stated, his

sole role at trial was as an advocate on behalf of Total and he was not offering any

expert opinion in this matter. (R.R. 5: 62, lines 19-23).




                                                                          Page 16 of 45
 
D.            Despite Mr. Ramirez’s Repeated Assertions that he Was Not Serving as
              an Expert in this Case, Mr. Garcia Improperly Questioned Mr. Ramirez
              Regarding an Expert Opinion he Gave on Attorneys’ Fees in an
              Entirely Separate and Wholly Unrelated Case

              In total disregard of the fact that Mr. Ramirez was not serving as an expert in

this case, Mr. Garcia proceeded to call Mr. Ramirez to the witness stand as an

expert on attorneys’ fees. (R.R. 5: 41, lines 21-23). In addition to Mr. Ramirez’s

express denials under oath that he was offering an opinion in this matter, Mr.

Ramirez had not submitted any form of expert report in this matter and had not

been deposed as an expert in this case.2

              As made abundantly clear by Mr. Garcia’s direct examination, Mr. Garcia’s

sole purpose in calling Mr. Ramirez as an expert at trial was to introduce evidence

through impeachment that would otherwise be inadmissible. (See R.R. 5: 49, line

11—51, line 4). Specifically, Mr. Garcia questioned Mr. Ramirez regarding expert

testimony he gave on attorneys’ fees in a separate and wholly unrelated matter.

(R.R. 5: 44, line 25—54, line 21). Such evidence was irrelevant, inadmissible,

highly prejudicial, had no probative value, and was an attack on Mr. Ramirez’s

                                                            
2
 Total did initially designate Mr. Ramirez as an expert in this matter. However, the designation
merely stated that Mr. Ramirez would serve as an expert on attorneys’ fees and attached Mr.
Ramirez’s resume. There was no specific explanation of the testimony he would give in this
particular case or any statement pertaining to this particular case in the designation. More
importantly, as Mr. Ramirez explained during trial, his designation was rendered unnecessary by
Mr. Thomas’s appearance at trial as the testifying expert on attorneys’ fees on behalf of Shell.
(See R.R. 5: 42, lines 19-24; 62, lines 2-12).
                                                                                    Page 17 of 45
 
credibility. In fact, as set forth above, such evidence regarding attorneys’ fees

recovered by a particular firm in a specific matter is irrelevant and should not be

considered in determining the reasonableness of attorneys’ fees under the Arthur

Anderson factors. See Duininck Bros., No. 4:06-CV-441, 2008 WL 4411641, at *3

(“what a single law firm charges for a particular set of services and its choice of

tactics in representing a given client are issues decidedly distinct from deciding

what constitutes a customary fee;” “focusing on one law firm's billing practices is

unhelpful in determining what is ‘customary’”).

      Total’s counsel objected to Mr. Garcia’s improper questioning on relevance

grounds, and the court properly sustained the majority of these objections:

      Q. Playboy USA. And did you charge them so that you could testify as an
      expert?

      A. Yes.

      Q. And did you charge them a flat rate? An hourly rate? How did you
      charge them?

      A. I have no recollection on that.

      Q. You don’t recall charging them?

      A. I charged them. I know that. I did charge them.

      Q. Do you recall – you don’t recall how much.

            Ms. Zamora: Objection, Your Honor. Relevance.
                                                                          Page 18 of 45
 
            The Court: I’m sorry?

            Ms. Zamora: Objection, relevance.

            Mr. Garcia: Your Honor, I’m asking what he charged as an expert to
            testify in another case. Not what he’s charging as an attorney in this
            case.

            The Court: Your objection will be sustained.

(R.R. 5: 46, line 13—47, line 4).

      Q. Okay. And did you give testimony about what is a reasonable fee for
      those 15 or 20 lawyers?

            Ms. Zamora: Your Honor, I will object to relevance. Mr. Ramirez is
            not being – we’re not putting him on the stand as an expert as to
            attorneys’ fees in this case. So I think it is irrelevant.

            Mr. Garcia: I designated Mr. Ramirez as an expert. He designated
            himself as an expert. He is an expert based on his qualifications.
            Whether he chooses to say, I’m testifying as an expert or not is
            irrelevant. He is an expert because he has specialized knowledge that
            will assist the jury. And if he’s testified as an expert in other cases,
            I’d like to know what his opinions are there to judge them against the
            credibility of whatever opinions he might give here. So it’s relevant
            to the credibility and experience.

            Ms. Zamora: We’re not putting him on as an expert on attorneys’
            fees. Mr. Ramirez explained earlier, it was only in case Mr. Thomas
            was not available. Mr. Thomas is here. We are not offering him. If
            we did offer him, then he could be cross examined on that. But he’s
            putting him on, so we are not –

            Mr. Garcia: Your Honor, I designated Mr. Ramirez as an expert
            because he is an expert on attorneys’ fees. So I designated him as an
            expert. And I haven’t withdrawn that designation.
                                                                         Page 19 of 45
 
            The Court: The objection is at this time sustained, Counsel.

(R.R. 5: 47, line 19—48, line 21).

      Even though the trial court sustained Total’s objections as set forth above,

this prejudicial line of questioning was still heard before the jury and Mo-Vac was

therefore able to confuse and mislead the jury through this improper impeachment.

More importantly, the trial court overruled one of Total’s objections and allowed

Mr. Garcia to engage in this improper questioning as to Mr. Ramirez’s expert

testimony on attorneys’ fees in another, wholly unrelated case.

      Q. Right. In the second trial you testified as an expert in the Playboy case?

      A. Correct.

      Q. Just like you’re testifying as an expert in the second trial in this case?

      A. I’m not testifying as an expert in this case. You can say that all you want
      to, but that’s –

      Q. Well, I’ve designated you as an expert.

      A. Thank you for that. But that’s not my role in this trial.

      Q. Okay. Now, Mr. Ramirez, isn’t it true that in the Playboy case, Playboy
      US recovered $410,000 for their breach of contract case?

            Ms. Zamora: Objection, Your Honor, to relevance. Once again, Mr.
            Ramirez is not giving an opinion, an expert opinion. And Mr. Garcia
            is forcing him to essentially.



                                                                            Page 20 of 45
 
    Mr. Garcia: Just asking if it’s true that that’s what the jury recovered
    in the Playboy case.

    Ms. Zamora: It is not relevant because he is not an expert on
    attorneys’ fees.

    Mr. Garcia: Your Honor, again, with all due respect, as Your Honor
    knows, and Counsel knows as well, what determines whether
    somebody is an expert is not their self-designation, but if they have
    experience, training and education.

    The Court: What was your question, Mr. Garcia?

    Mr. Garcia: Isn’t it true that in the Playboy case, Playboy US
    recovered $410,000 for their breach of contract case?

    Ms. Zamora: I don’t know how those facts are relevant here.

    Mr. Garcia: Your Honor, we have an agreed Jury Charge that has
    been filed. The parties agree that the eight factors from the Arthur
    Anderson case and Texas Supreme Court case says the amount of
    recovery is relevant to the amount of attorneys’ fees. I’m going to ask
    him, my next question is: Didn’t you testify that the lawyers should
    recover more than $2 million in attorneys’ fees, when all they
    recovered was $400,000?

    Ms. Zamora: Your Honor, he’s trying to cross – apologize.

    Mr. Garcia: So – I’m sorry.

    Ms. Zamora: Go ahead.

    Mr. Garcia: So I will ask him: Why is it okay in the Playboy case
    when you testified, but it is not okay here? It goes to the expert
    witness’ credibility.



                                                                 Page 21 of 45
 
                             Ms. Zamora: But he’s cross-examining him when he hasn’t given an
                             opinion as to this case. So it is improper and irrelevant.

                             The Court: Well, I will overrule the objection.

              Q. Mr. Ramirez, my question was: Isn’t it true that the jury in the Playboy
              case just on the second floor here awarded Playboy US $410,000?

              A. I don’t recall what the award was, but that was – they were not seeking
              the contract. They were getting sued for breach of contract, which is very
              different. Playboy there was defending that case. They were not seeking to
              enforce the contract. So the facts I cannot comment on because the facts are
              totally different.

(R.R. 5: 49, line 1—51, line 14) (emphasis added).

By overruling this objection, the trial court allowed this improper questioning to

continue.3


                                                            
3
  Q. Actually, Mr. Ramirez, if you’ll recall when it came back on the second trial Playboy US
counter sued and that’s why they were entitled to recover attorneys’ fees. As you know, as an
expert witness, a party that’s merely defending a case can’t get attorneys’ fees. And since you
are testifying for attorneys’ fees, it’s –
A. I don’t agree with that statement. I’m not going to argue the law with you, Mr. Garcia. But I
definitely do not agree with that statement that you just made.
Q. Mr. Ramirez, you can interrupt me. It doesn’t hurt my feeling. But Ms. Robledo does have a
job to do, and she can’t do it if we’re both talking.
A. Go ahead.
Q. In that case Playboy USA counter sued Playboy Mexico and recovered $410,000. And you
gave the opinion that Playboy USA’s lawyers can recover $2,180,000 in attorneys’ fees, five
times the amount that Playboy USA recovered. Isn’t that true?
A. No.
Q. You deny that?
A. No, I’m not denying that. Those – it’s a different case. They’re counter claims. They’re
numerous contracts. There are several counter claims, and Playboy was defending. It makes a
big difference.
Q. Okay.
                                                                                    Page 22 of 45
 
              The trial court erred in allowing this irrelevant and prejudicial line of

questioning, which was asked solely for the purpose of introducing otherwise

improper evidence through impeachment. Further, by his argument, Mr. Garcia

introduced to the jury the idea that Mr. Ramirez had advocated something

completely different, and that “if it was okay there, why should it not be okay

here.” This improper line of questioning absolutely influenced the jury, caused the

jury to question Mr. Ramirez’s credibility, and prejudiced the jury against Total.

              Mr. Garcia’s intent of improperly influencing the jury through this irrelevant

and prejudicial line of questioning regarding a completely unrelated case was

further evidenced by Mr. Garcia’s attempt to introduce this evidence during the

direct examination of Mo-Vac’s expert witness, Mr. Martinez. Specifically, Mr.

Garcia asked Mr. Martinez on the stand whether he reviewed the Playboy case to

prepare for his expert testimony, and he then attempted to go into the details of the

case and the attorneys’ fees awarded. (R.R. 5: 169, line 18—170, line 8). Total’s

counsel objected to this line of questioning as wholly irrelevant to the sole issue of

reasonable and necessary attorneys’ fees incurred by Mo-Vac in this case. (Id., at

170, line 9—174, line 23). While the trial court ultimately sustained Total’s
                                                                                                                                                                                                
A. And again, I think the issue here is what are your fees, period. That’s what the jury needs to
decide.
(R.R. 5: 51, line 15—52, line 16).
                                                                                                                                                                        Page 23 of 45
 
objection, Mr. Garcia used the opportunity in responding to Total’s objection to

present to the jury improper evidence regarding the expert testimony given by Mr.

Ramirez in a wholly unrelated case and the attorneys’ fees awarded in that case:

      The Court: Let me inquire of you, Mr. Garcia, was that Playboy case
      involving a breach of the Confidentiality Agreement?

      Mr. Garcia: It was. It was a written license agreement. Because –

      Mr. Ramirez: Sorry. It was not a breach of Confidentiality Agreement.

      Mr. Garcia: No. It was a breach of a license agreement, that is what I said.
      It was a breach of contract. In this case, it was called a license agreement.
      The license was what Playboy USA was giving Mexico the right to
      distribute their magazine. When Playboy Mexico sued Playboy USA,
      Playboy USA counter sued. So they sued for breach of that license
      agreement. And the opinion from the Court of Appeals that Mr. Martinez is
      relying on says just that. To clarify what Mr. Ramirez was representing.
      The fact of the matter is, and it’s in the opinion he relies on, Playboy USA
      counter sued. They prevailed in that counter suit, and the jury awarded
      $410,000. The testimony from Mr. Ramirez was that those lawyers
      deserved $2.1 million. So the jury awarded $400,000 in actual damages.
      And five times that, $2.1 million, in attorneys’ fees. That’s why. So there
      was a claim for breach of the contract. It was in the form of a Counter
      Claim. And that’s why it is –

      The Court: I don’t remember the testimony that was elicited from Mr.
      Ramirez. But did you already testify about that attorneys’ fees?

      Mr. Ramirez: Your Honor, I didn’t testify about attorneys’ fees. He put me
      on the stand. What he put me on the stand was to get what he just got in
      right now in front of the jury, unsworn testimony that he was trying to get
      out there. And this is getting way far field. And we’re going to have to try
      this thing again and again. Here there is only one issue: Is [sic] Mr.
      Martinez’ and Mr. Garcia’s fees reasonable and necessary? They’re not
                                                                          Page 24 of 45
 
      going to decide anything else. We promised one day, one and a half day
      trial here. We will be here for months. So I object to any testimony, other
      than whether or not the fees that they’re trying to seek from these folks are
      customary, reasonable and necessary. Everything else is irrelevant. And I
      also object to the side-bar, that misleading non sworn testimony.

(R.R. 5: 171, line 21—173, line 15).

      Clearly, Mr. Garcia’s goal was to introduce to the jury the testimony given

by Mr. Ramirez as a testifying expert in a completely different case, for the

purpose of calling Mr. Ramirez’s credibility into question and leading the jury to

believe that the reasoning applicable in the other case might apply here. Such

improper introduction of evidence prejudiced the jury.

                                   II.
          The Amount of Attorneys’ Fees Awarded by the Jury and
                 Entered in the Court’s Final Judgment
              Was Not Supported by Sufficient Evidence and
                Was Grossly Excessive as a Matter of Law

A.    The Evidence Presented at Trial Was Insufficient to Support the Award
      of Attorneys’ Fees

      There was insufficient evidence offered at trial to support the award of

attorneys’ fees. As set forth in detail above, this case was remanded back to the

trial court by the Thirteenth Court of Appeals on the sole issue of attorneys’ fees

incurred in connection with Mo-Vac’s only surviving claim of breach of

confidentiality agreement against Total. (Supp. C.R. 1: 18). While the original


                                                                         Page 25 of 45
 
trial of this case involved six claims asserted by Mo-Vac against two separate

defendants, only Mo-Vac’s claim of breach of confidentiality agreement against

Total survived appeal. As such, none of the work performed or attorneys’ fees

incurred in connection with any claim other than this sole surviving claim should

have been presented to and considered by the jury in the second trial. It was clear

from the Court of Appeals’ directive that only those attorneys’ fees incurred in

connection with the breach of confidentiality agreement claim were before the trial

court on remand. (See Supp. C.R. 1: 68-69, 73).

      Accordingly, the documentation of time spent by Mo-Vac’s counsel in

connection with Mo-Vac’s breach of confidentiality agreement claim became

extremely important in the second trial of this case. The Texas Supreme Court has

articulated that record keeping is of great significance in analyzing attorneys’ fees.

See City of Laredo v. Montano, 414 S.W.3d 731, 736 (Tex. 2013) (citing El Apple

I, Ltd. v. Olivas, 370 S.W.3d 757, 763 (Tex. 2012). Here, however, rather than

present contemporaneous time records or billing statements from which work

performed in connection with the breach of confidentiality agreement claim could

easily be segregated out, Mo-Vac’s counsel instead proffered a summary of time

spent on the case that was created after the fact. Mo-Vac’s counsel and testifying



                                                                           Page 26 of 45
 
expert on attorneys’ fees, Adrian Martinez (hereinafter “Mr. Martinez”), explained

this summary of work performed as follows:

      Q. Okay. And this document is how many pages long?

      A. 20 something pages. I forget the exact number, but – it is 22 pages.

      Q. Okay. And the purpose of the document is to reflect what? Can you
      explain to the jury?

      A. Sure. This information comes from our – it’s a compilation of all of the
      work that I did in all of my records, from what’s on in [sic] the computer,
      from everything that is in the file. And what it represents is, from the
      moment you get into the case, what you do. It’s a compilation of everything
      we’re doing. And that’s what that is.

(R.R. 5: 133, line 22—134, line 8).

      Contrary to Mr. Martinez’s testimony and his assertion that the

“compilation” provided sufficient evidence of the work performed, Total’s expert

witness on attorneys’ fees, Ray Thomas (hereinafter “Mr. Thomas”), provided the

following opinion during his trial testimony:

      Q. And by the case law that you just read, interpreting the Anderson factor
      also, isn’t it true that the time keeping function is a critical factor?

      A. It is important. And, I mean, I want – out of fairness to them, it says:
      Contemporaneous time records should be kept, or other documentation that
      is reasonably made at the same time. And I note, Mr. Martinez says in his
      deposition that what he had is [sic] these e-mails that he would either write
      to his legal assistant, or otherwise, where he would sort of document what he
      did that day. But he doesn’t have those e-mails anymore, according to


                                                                         Page 27 of 45
 
      his testimony.    So there’s no documentation                     that   is   made
      contemporaneous that we can look at.

(R.R. 6: 71, line 16—72, line 4) (emphasis added).

      Significantly, when questioned regarding his prior deposition testimony, Mr.

Martinez admitted that this “compilation” of his work was not made

contemporaneously:

      Q. Okay. Was this done contemporaneously at the time –

             Your answer: No.

             -- of the entry?

             No.

      A.   That’s right.    The entries into this document were not kept
      contemporaneously. I agree with that. I’m not changing my testimony.

(R.R. 5: 192, lines 1-8).

Moreover, Mr. Martinez conceded that he did not keep contemporaneous time logs

or time slips in this matter, and that he never sent a bill to the client:

      Q. Excuse me. That was not – those were not time slips, were they?

      A. That is not a time slip? Of course not.

      Q. And you kept no time slips?

      A. No, I did not keep time slips. That’s not the only mode of keeping time.

(R.R. 5: 189, lines 10-15).
                                                                               Page 28 of 45
 
       Q. In fact, you’ve never sent Mr. Andrews a bill?

       A. Never sent him a bill.

(R.R. 5: 182, lines 12-13).

       The Texas Supreme Court has stated, in cases analyzing the lodestar method

for determining attorneys’ fees, that hours not properly billed to one’s client are

also not properly billed to one’s adversary. See City of Laredo, 414 S.W.3d at 736;

El Apple I, Ltd., 370 S.W.3d at 762. Total’s expert witness, Mr. Thomas, provided

the following explanation regarding record keeping in the context of the case at

bar:

       Q. Now, we’ve covered the fact that in your opinion the records that they
       have are unreliable, correct?

       A. It is some evidence. But, you know, I would – I can’t – I would discount
       – they’re not detailed enough for me to make a meaningful review. And
       there’s some significant errors that have already been noted.

       Q. And is record keeping a very important factor in this matter in
       determining attorneys’ fees?

       A. When you’re going to come into court, well, if you want your client to
       pay you for your legal fees, the clients insist upon – most clients will insist
       upon a reasonably detailed narrative so that when they get a bill for $20,000
       at the end of the month, they can review the bill and see whether or not they
       are getting the value of that $20,000. And if you don’t put enough detail in
       there, they don’t like to pay, they won’t pay. They pick up the phone and
       say: What is this? So if you will come into a court of law and ask a jury to
       award attorneys’ fees, the same standard should apply. And you ought to be
       able to take a look at the bill and have confidence that these were records,
                                                                           Page 29 of 45
 
      that this is sufficient documentation of what it is the lawyer did. Just so you
      can determine whether that’s reasonable or necessary to do.

(R.R. 6: 35, line 12—36, line 10).

      While time records or billing statements are not the only method of

establishing attorneys’ fees, in all but the simplest of cases, attorneys still have to

refer to some type of record or documentation in order to provide testimony

regarding the details of their work. See City of Laredo, 414 S.W.3d at 736. For

example, in City of Laredo, the court found that the testimony of one of the

attorneys regarding her unbilled trial work was some evidence on which to base an

award of attorneys’ fees because it concerned contemporaneous or immediately

completed work for which she had not had time to bill, and the billing inquiry

involved contemporaneous events and discrete tasks. See id., at 737. In contrast,

the court in City of Laredo found that the testimony provided by the other attorney

in the case, who did not make any contemporaneous record of his time or prepare

any bills or invoices, was not evidence of a reasonable attorney fee where he

testified that he spent a lot of time getting ready for the lawsuit, conducted a lot of

legal research, visited the premises many, many times, and spent countless hours

on motions and depositions. See id.




                                                                            Page 30 of 45
 
      The testimony provided by Mr. Martinez in this case is similar to that of the

attorney in City of Laredo whose testimony was found insufficient. Here, rather

than describe discrete tasks performed specifically in furtherance of the breach of

confidentiality agreement claim, Mr. Martinez instead testified that he had to sift

through thousands of pages within boxes of documents in order to piece together

the evidence to support the breach of confidentiality agreement. (See R.R. 5: 150,

line 23—154, line 3). The testimony provided by Mr. Martinez did not meet the

level of specificity found to be sufficient evidence in City of Laredo.

      As set forth above, here, Mr. Martinez failed to provide any

contemporaneous evidence of the work he performed in this case. While Mr.

Martinez claims to have used emails in preparing his summary of work performed,

those emails do not still exist. The flaws in Mr. Martinez’s summary are clearly

shown by the fact that Mr. Martinez documented time for three different attorneys

for their attendance at trial on days when trial was not actually in session.

      Q. And what does the entry say?

      A. Well, which one do you want me to tell you about? For me? The ones
      for Mr. Valdez? Or Mr. Garcia? Which ones do you want?

      Q. A, B and C.

      A. A, B, C. We start with 4/22.


                                                                                Page 31 of 45
 
    Q. Let’s stick to the date we’re talking about, 4/24.

    A. Sorry. Hold on. There’s one for me of ten hours.

    Q. Okay. What does it say?

    A. Trial, A.R.M., which is me.

    Q. And that means you attended trial that day?

    A. Yes, sir.

    Q. And then next entry says trial for Mr. Garcia?

    A. Yes, Mr. Garcia. And then there’s one for Reymundo Valdez.

    Q. And they’re all different hours, correct?

    A. Yes, sir.

    Q. And then the one prior to that, the 4/23, what is the entry for you? You
    attended trial?

    A. Yeah, yes sir.

    Q. And Mr. Garcia?

    A. Yes, sir.

    Q. Are you sure that’s correct?

    A. Well, are you –

    Q. I’m asking the questions, Mr. Martinez. Are you sure that that record is
    reliable, and that you attended trial, and all three of the attorneys that you
    have on there attended trial that date?


                                                                        Page 32 of 45
 
      A. You know, if you have another document that says that we weren’t in
      trial that date, then obviously this is incorrect, sir.

      Q. I have another document.

      A. Well then show it to me because it could be incorrect. I’m not going to
      mince words and dates with you. But is that the only dates that you’re –

      Q. I have the record. And the record does not reflect that we had trial that
      day. The Court took off those two days.

      A. I do remember that we were off some days. Okay. What other days do
      you have that show that besides those two?

(R.R. 5: 208, line 4—209, line 20).

      Such mistakes as illustrated above are clearly the result of failing to

document time contemporaneously and keep billing records. Total’s expert, Mr.

Thomas, provided the following explanation:

      Q. Do you have an opinion – I will go briefly back to that – the time –
      remember yesterday we went through Mr. Martinez’ time slips. I think he
      called them a compilation. Have you had an opportunity to review those
      before this trial?

      A. I did.

      Q. Do you have an opinion as to the trustworthiness of those?

      A. Yeah. What you’re talking about is the compilation, that summary that
      was prepared by Mr. Martinez or his staff that documents the days that they
      worked, some of the tasks that they performed, and the amount [sic] hours
      that they were charging, or billing for a particular day of work. I reviewed
      them. I reviewed them carefully. And I – my concerns about them are the
      same ones that I articulated yesterday. Time is supposed to be kept on a
                                                                        Page 33 of 45
 
      daily basis, or contemporaneous. And the reason is so they can be
      accurate. And what we saw yesterday, and Mr. Martinez has already
      admitted or testified that he didn’t keep his time on a contemporaneous
      basis. He did it after the fact. Looked back, looked at his file, looked at
      his computer, looked at different folders, looked at the paperwork, and
      sort of went back and tried to recreate it. When that happens, you’re
      going to have mistakes, including significant mistake [sic]. We saw some
      of that yesterday when we saw that they billed, for example, one lawyer 16
      hours one day, another lawyer 12 hours one day, another lawyer 10 hour
      [sic] for one day for being in trial when they weren’t in trial. I’m certainly
      not saying that Mr. Martinez would have done that out to cheat, or
      dishonesty, or anything like that. I’m not saying that that’s not the kind of
      gentleman I know these men to be. But what I am saying is when you don’t
      do it contemporaneously, those are the kind of errors that come up. You’re
      making mistakes like that saying, well, I’m in trial on that day. When they
      weren’t in trial that day. We know that. Also when you look at their – at the
      summary that they prepared, there’s [sic] supposed to be done with
      sufficient detail so that one can review those and make a meaningful review
      of a determination as to whether those tasks were necessary. Many of the
      time slips – they’re not time slips. Many of the entries that were created in
      the summary, that was created after the fact. Don’t say who the lawyer was,
      or individual who was performing the task. And then many of them that do
      have initials, have an insufficient description to be able to tell what they
      were doing. So we can’t tell whether that work was necessary. For
      example, preparing for trial. Preparing for trial. Maybe if you’re in
      trial you can put trial 12 hours. We know what trial is. But if you’re
      preparing for trial, what are you doing to prepare for trial? There’s a
      myriad of things that you could be doing. And it is important to know
      what those are, and to detail those. You have to be able to tell whether
      those are necessary tasks. That’s not there. So you can’t conduct a
      meaningful review.

(R.R. 6: 22, line 2—24, line 7) (emphasis added).

      Applying the Texas case law discussed during his trial testimony to the case

at bar, Total’s expert witness on attorneys’ fees, Mr. Thomas, provided the
                                                                          Page 34 of 45
 
following opinion as to the sufficiency of the summary provided by Mo-Vac’s

counsel as evidence of the reasonable attorneys’ fees incurred in this case:

              Q. Do you have an opinion, sir, now that we’ve discussed all eight Arthur
              Anderson factors, as to whether the amount requested by Mr. Martinez of
              $900,000 is reasonable and necessary for a recovery of $100,000?

              A. I do have an opinion.

              Q. And what is that opinion, sir?

              A. That it would be patently unreasonable in this case.

(R.R. 6: 36, lines 11-18).

              Incredibly, as noted in Mr. Thomas’s testimony set forth above, Mo-Vac

requested approximately $900,000 in attorneys’ fees in this second trial.4 Mo-Vac

made this request despite the fact that the original award in the first trial for

attorneys’ fees incurred in connection with six claims against two defendants was

$433,912.50, which was to be split between the two defendants. Although Mo-

Vac’s counsel previously testified under oath that it should be awarded attorneys’

fees at the rate of $250 an hour in this case, Mo-Vac’s counsel asserted during the

second trial that it had incurred attorneys’ fees at the rate of $500 an hour. (See

R.R. 5: 193, lines 20-25; and 195, lines 12-20)

                                                            
4
 Taking Mo-Vac’s counsel’s assertion of the number of hours it spent on the breach of
confidentiality claim, the total amount of attorneys’ fees claimed by Mo-Vac comes out to
approximately $900,000. (See R.R. 5: 199, line 10—200, line 14).
                                                                                    Page 35 of 45
 
      For the reasons set forth herein above, the evidence presented by Mo-Vac’s

counsel was insufficient to support the award of $370,375.00 in attorneys’ fees for

the sole surviving cause of action of breach of confidentiality agreement, for which

Mo-Vac only recovered $100,000.      

B.    The Award of Attorneys’ Fees for the Sole Surviving Claim of Breach of
      Confidentiality Agreement Was Grossly Excessive as a Matter of Law

      As set forth above, one of the Arthur Andersen factors (the applicable factor

test in the case at bar) used to determine the reasonableness of attorneys’ fees is

the amount involved and the results obtained. See Arthur Andersen & Co., 945

S.W.2d at 818. Here, Mo-Vac originally sought to recover approximately $10

million for various claims asserted against several defendants. (R.R. 5: 196, lines

18-20). At the first trial in this case, Mo-Vac was awarded $750,000 on all of its

claims against Total, and $433,912.50 in attorneys’ fees. (C.R. 1: 64-65). After

an appeal of the first trial to this Court of Appeals, Mo-Vac ultimately recovered

only $100,000 for its sole surviving claim of breach of confidentiality agreement

against Total, indicating that the breach of confidentiality agreement claim was

only a small part of Mo-Vac’s overall case. (Supp. C.R. 1: 59, 73-74).

      Upon remand, a second trial was held on the sole issue of the amount of

reasonable and necessary attorneys’ fees incurred by Mo-Vac in connection with


                                                                          Page 36 of 45
 
its breach of confidentiality agreement claim only. At this second trial, Mo-Vac

sought approximately $900,000 in attorneys’ fees, and the jury awarded Mo-Vac

$370,375.00 for representation of the breach of confidentiality claim through trial,

plus an additional $50,000.00 for future representation at the various stages of

appeal to both the Court of Appeals and the Texas Supreme Court. (See R.R. 5:

199, line 10—200, line 14; C.R. 1: 105-110; App. Ex. 1).

      This amount was grossly disproportionate to the amount recovered and the

amount of work performed in connection with this sole surviving claim. As stated

above, Mo-Vac’s sole surviving claim of breach of confidentiality agreement was

only a small part of the much larger overall case. Not only is Mo-Vac’s asserted

amount of $900,000 in attorneys’ fees nine times the amount of the verdict

awarded to Mo-Vac on its sole surviving claim against Total, it is also

approximately two times the amount of attorneys’ fees originally awarded to Mo-

Vac in connection with six causes of action against two Defendants. Moreover,

Mo-Vac failed to keep contemporaneous records or billing statements, and there

was no segregation of the time spent in connection with the breach of

confidentiality agreement. Despite the lack of segregation and contemporaneous

billing records, Mo-Vac’s attorney claimed that 90% of counsel’s time in trying



                                                                          Page 37 of 45
 
this case was dedicated to the breach of confidentiality agreement claim. (R.R. 5:

159, line 21—160, line 4).

      With respect to Mo-Vac’s counsel’s claim that the breach of confidentiality

agreement claim took up 90% of his time, Total’s expert on attorneys’ fees, Mr.

Thomas, testified as follows:

      Q. And also, going back to the segregation, do you think, after you’ve
      reviewed the record in this matter, all those thousands of pages of it, do you
      have an opinion as to whether or not 90 percent of Mr. Martinez – 90
      percent is anywhere close to what should be allotted in the claim in
      question?

      A. Well, I mean, I don’t have good time records, contemporaneous time
      records from work that they did. I just have the summary that they gave us.
      I have the transcript of the trial record. I have some briefing that the parties
      have done, and the opinion. And so I looked at all of that to try and see if I
      could figure out a way to segregate, and to see whether or not, you know, 90
      percent of all of the work that was done in this case is related to breach of
      the Confidentiality Agreement. And I don’t see it. For example, if you look
      at the trial transcript, that is, the 21 volumes, very little of it is discussing the
      breach of the Confidentiality Agreement. Of the 20 witnesses, three of them
      discuss the breach of the confidentiality. And they were towards the very
      end of the case. If you look at the brief that was filed by your client Total,
      you had a 49 page brief covering all of the issues that you wanted to
      complain about. And page 27 through 35 discuss the breach of the
      confidentiality. So that’s about 18 percent of your brief. The Court of
      Appeals, looks like about 22 percent of theirs. And Mo-Vac has a brief that
      they filed in response to yours. And they discuss the breach of the
      confidentiality in one page out of 23, which is less than one percent.

(R.R. 6: 27, line 24—29, line 6).



                                                                                Page 38 of 45
 
      As set forth in the testimony above, Mo-Vac’s claim is undermined by the

reality of the case. First, the breach of confidentiality agreement claim did not

even come into issue in the first trial until three weeks into the trial:

      Q. So you’re saying that 90 percent of this trial that lasted six weeks was
      over the breach of confidentiality contract?

      A. Sounds a little bit difficult to understand. But if you like, I can explain it.

      Q. Just asking.

      A. Yes. The answer to your question, yes.

      Q. Okay. Do you recall how many weeks we were in trial before you asked
      a single question about the Confidentiality Agreement?

      A. I haven’t the slightest idea. But maybe you do know, which is fine.

      Q. Would it surprise you it was three weeks into the trial before you asked a
      question about confidentiality?

      A. Perhaps. I don’t doubt you. If the record says that.

(R.R. 5: 215, lines 14-22).

Mo-Vac’s counsel attempted to explain this away by arguing that he needed to be

prepared for the breach of confidentiality agreement claim at any time:

      Q. Well, my question is how is it that you’re attributing that time to
      recovery of the breach of the Confidentiality Agreement by three lawyers?
      That’s my question.

      A. I had to be here, Mr. Ramirez. And at any moment that the
      Confidentiality Agreement could have been addressed, or could have been
                                                                             Page 39 of 45
 
      discussed. As you know, depositions and discovery before trial is one thing.
      In trial, you never know what’s going to happen. You never know what
      information will be put on the table. We had to be here. We had to be ready
      for it. And we had to address it.

(R.R. 5: 217, lines 13-24).

      However, the fact remains that the time spent by Mo-Vac in this case and

documented in the compilation was devoted to Mo-Vac’s other causes of action

against both Defendants in this matter, and testimony regarding the breach of

confidentiality agreement claim did not even start until three weeks into the trial.

      Second, the fact that the sole claim of breach of confidentiality agreement

did not take up 90% of counsel’s time in preparation for and during trial in this

case is further undermined by the results actually obtained for this claim at trial. In

Smith v. Patrick W.Y. Tam Trust, the Texas Supreme Court noted the importance of

considering the amount involved and the results obtained in determinations of the

amount of an award of attorneys’ fees. 296 S.W.3d 545, 548 (Tex. 2009). The

Texas Supreme Court found that even though the amount of attorneys’ fees was

uncontested, the lower court erred in awarding the plaintiff attorneys’ fees that

greatly exceeded the amount actually recovered by the plaintiff.          See id.      In

reversing the lower court’s decision as to attorneys’ fees, the Texas Supreme Court

stated “[b]ut the fee, though supported by uncontradicted testimony, was


                                                                            Page 40 of 45
 
unreasonable in light of the amount involved and the results obtained, and in the

absence of evidence that such fees were warranted due circumstances unique to

this case.” Id. As in Smith v. Patrick W.Y. Tam Trust, the amount of attorneys’

fees awarded here is grossly disproportionate to the amount recovered for Mo-

Vac’s claim of breach of confidentiality agreement, the sole surviving claim after

appeal. As such, the award of attorneys’ fees was unreasonable.

      Similarly, the Beaumont Court of Appeals, in the case of Wythe II Corp. v.

Stone, found that the award of attorneys’ fees was excessive and remanded the case

back to the trial court for a determination of a reasonable fee. 342 S.W.3d 96, 108

(Tex.App.—Beaumont 2011). As with the case at bar, Wythe involved excessive

attorneys’ fees awarded by a jury. Id. Specifically, the court in Wythe found that

the evidence offered by the appellee to support the Arthur Andersen factors did not

provide sufficient justification for shifting the entire fee amount to the appellant

where much of the time expended concerned a mandamus proceeding in which the

appellee was unsuccessful. See id. Similarly to the facts in Wythe, here the

evidence is insufficient to support the jury’s award of attorneys’ fees because the

award is grossly disproportionate to the results obtained for the sole surviving

claim of breach of confidentiality agreement. This single claim was only a small

part of a much larger trial involving multiple claims against multiple defendants.
                                                                          Page 41 of 45
 
PRAYER

Total respectfully prays that this Court:

      1)     Reverse the trial court’s Final Judgment signed on April 30, 2015
             (C.R. 1: 113-115; App. Ex. 2) ordering that Mo-Vac recover from
             Total:

                    a.    $370,375.00 for the successful representation of the
                          breach of confidentiality claim through trial;

                    b.    $25,000.00 for future representation through appeal to
                          the court of appeals, if one is taken;

                    c.    $5,000.00 for future presentation at the petition for
                          review stage in the Supreme Court of Texas, if the case
                          comes before the Supreme Court of Texas;

                    d.    $12,000.00 for future presentation at the merits briefing
                          stage in the Supreme Court of Texas, if the case comes
                          before the Supreme Court of Texas; and

                    e.    $8,000.00 for future presentation through oral argument
                          and the completion of proceedings in the Supreme Court
                          of Texas, if the case comes before the Supreme Court of
                          Texas.

      2)     Reverse the trial court’s denial of Total E&P USA, Inc.’s Motion for
             New Trial (C.R. 1: 191);

      4.)    Render a decision that Appellee, Mo-Vac Services Company, Inc. be
             awarded $40,000 as reasonable and necessary attorneys’ fees in this
             matter, in accordance with the expert testimony of Total’s expert
             witness on attorneys’ fees, Ray Thomas;

      6.)    Alternatively, remand this case to the trial court for a new trial to
             determine the specific amount of work performed and hours spent on
                                                                         Page 42 of 45
 
          the sole surviving claim of breach of confidentiality agreement against
          Total; and

    7.)   All such other and further relief to which Appellant, Total E&P USA,
          Inc. is justly entitled.

                                   Respectfully submitted,

                                   ELLIS, KOENEKE & RAMIREZ, L.L.P.
                                   1101 Chicago
                                   McAllen, Texas 78501-4822
                                   Tel: (956) 682-2440
                                   Fax: (956) 682-0820

                                   By: /s/ Edmundo O. Ramirez
                                         EDMUNDO O. RAMIREZ
                                         State Bar No. 16501420
                                         MINERVA I. ZAMORA
                                         State Bar No. 24037765

                                   ATTORNEY FOR APPELLANT
                                   TOTAL E&P USA, INC.




                                                                       Page 43 of 45
 
                      CERTIFICATE OF COMPLIANCE

      There are 10,639 words included in the Appellant’s Brief.



                         CERTIFICATE OF SERVICE

      This is to certify that a true and correct copy of the foregoing has on October
15, 2015, been delivered, in the manner indicated below, to the following:

                              Adrian R. Martinez
                             Alberto T. Garcia, III
                         GARCIA & MARTINEZ, L.L.P.
                            6900 N. 10th St., Suite 2
                            McAllen, Texas 78504
                     Via CMRRR 7001 0320 0000 9475 0651


                                             /s/ Edmundo O. Ramirez
                                             Edmundo O. Ramirez




                                                                           Page 44 of 45
 
                            APPENDIX

    Exhibit      Date         Document
      1       04/16/2015   Jury Charge
      2       04/30/2015   Final Judgment




                                            Page 45 of 45
 
..
                                                                               1'"1
                                                                                 '.
                                                                                         AI" 16 2015
                                         CAUSE NO. C-023-05-E

     MO-VAC SERVICES COMPANY, INC.                         §       IN THE


                                                           §       275 1 H JUDICIAL DISTRICT
                                                           §
                                                           §
     TOTAL E&P USA, INC.                                   §       HIDALGO COUNTY, TEXAS

                                             JURY CHARGE

     MEMBERS OF THE JURY:

            Aftct the dosing ruguments, you will go to the jmy IOOlll to decide the case, answct the
     questions that are attached, and reach a verdict. You may discuss the case with other jurors only
     when you are all together in the jury room.

            Remember my previous instructions. Do not discuss the case with anyone else, either in
     person or by any other means Do not do any independent investigation about the case or conduc1
     any research. Dg ngt Jggk up any wmds in the dictignaries gr gn the Internet. Dg ngt pgst any
     information about the case on the Internet Do not share any special knowledge or experiences
     with the other jurors. Do not use your phone or any other electronic device during your
     deliberations for any reason.

             Any notes you have taken are for your own personal use. You may take your notes back
     into the jury room and consult them during deliberations, but do not show or read your notes to
     your fellow jurors during your deliberations. Your notes are not evidence. Each of you should
     rely on your independent recollection of the evidence and not be influenced by the fact that
     another juror has or has not taken notes.

             You must leave your notes wJ!h the ba•ltff when you are not deltberatmg. I he bmltff will
     give your notes to me promptly after collecting them from you. I will make sure your notes are
     kept in a safe, secure location and not disclosed to anyone. After you complete your
     deliberations, the bailiff will collect your notes. When you are released from jury duty, the bailiff
     will promptly destroy ygur ngtes sg th~t oobgdy can read what ym1 wrote

            Here are the instructions for answering the questions:

     1.     Do not let bias, prejudice or sympathy play any part in your decision.

     2.     Base your answers only on the evidence submitted in court and on the law that is in these
            instructions and questions. Do not consider or discuss any evidence that was not admitted
            in the courtroom.

     3.     You are to make up your own minds about the facts. You are the sole judges of the


                                           Appendix Exhibit
                                                  1                                                  105
        .

.   '




                   credibility of the witnesses and the weight to give their testimony. But on matters of law,
                   you must follow all of my instructions.

            4.     If m~ instructions use a worcl in a w~~ that is di±Ierent ftom its ordinaq-: meaning, use the
                   meaning I give yon, which will he a pmper legal definition.

            5.     All the questions and answers are important. No one should say that any question or
                   answer is not important.

            0.     A !act may be established by direct evidence or by circumstantial evidence or both. A
                   fact is established by direct evidence when proved by documentary evidence or by
                   witnesses who saw the act done or heard the words spoken. A fact is established by
                   circumstantial evidence when it may be fairly and reasonably inferred from other facts
                   proved.

            7.     Answer yes" or 'no" to all questions unless otherwise mstructed. A "yes" answer must
                   be based on a preponderance of the evidence unless you are told otherwise. Whenever a
                   question requires an answer other than "yes" or "no," your answer must be based on a
                   preponderance of the evidence unless you are told otherwise.

                   l'he tenn "prepm:KiemnGe ot' the e\'idenGe" means the greater weight of erediele evidenee
            presented in this case. If you do not find that a preponderance of the evidence supports a "yes"
            answer, then answer "no." A preponderance of the evidence is not measured by the number of
            witnesses or by the number of documents admitted in evidence. For a fact to be proved by a
            preponderance of the evidence, you must find that the fact is more likely true than not true.

            8.     Do not decide who you think should win before you answer the questions and then just
                   answer the questions to match your decision. Answer each question carefully without
                   considering who will win. Do no discuss or consider the effect your answers will have.

            'J.    Bo not answm qllestions by drawing straws or by any other method of chance.

            10.    Some questions might ask you for a dollar amount. Do not agree in advance to decide on
                   a dollar amount by adding up each juror's amount and then figuring the average.

            11     Do not trade ~'Olll' ~n~u,er~. !'or example, do not Sll3', "I will answer this (jl!estion ;,•o11r
                   way if you answer another question my way."

            12.    Unless otherwise instructed, the answers to the questions must be based on the decision
                   of at least ten of the twelve jurors. The same ten jurors must agree on every answer. Do
                   not agree to be bound by a vote of anything less than ten jurors, even if it would be a
                   maioritv.


                  As I have said before, if you do not follow these instructions, you will be guilty of juror
            misconduct, and I might have to order a new trial and start this process over again. This would



                                                                                                              106
waste your time and the parties' money, and would require the taxpayers of this county to pay for
another trial. If a juror breaks any of these rules, tell that person to stop and report it to me
immediately.



I.     When you go into the jury room to answer the questions, the first thing you will need to
       do is choose a presiding juror.

2.     The presiding juror has these duties:

       a.      have the complete charge read aloud if it will be helpful to your deliberations;

       b.      preside over your deliberations, meaning manage the discussions, and sec that you


       c.      give written questions or comments to the bailiff who will give them to the judge;

       d.      write down the answers you agree on;

       e.      get the signatures fur the verdict certificate; and

       f       notify the bailitT that you have reached a verdict.

Do you understand the duties of the presiding juror? If you do not, please tell me now.

                       Instructions for Signing the Verdict Certificate:

I.     Unless otherwise instructed, you may answer the questions on a vote of ten jurors. The
       same ten jurors must agree on every answer in the charge. This means you may not have
       one group often jurors agree on one answer and a different group of ten jurors agree on
       anot er answer.

2.     If ten jurors agree on every answer, those l 0 jurors sign the verdict. If eleven     jurors~
       agree on every answer, those eleven jurors sign the verdict. If all twelve of you agree on   Lr
                                                                                                         k
       every ans'Ner, you are unanimous and only the presiding juror signs the verdict.

3.     All jurors should deliberate on every question. You may end up with all twelve of you
       agreeing on some answers, while only ten or eleven of you agree on other answers. But
       when you sign the verdict, only those 1o who agree on every answer will sign the
       verdict.

Do you understand these instructions?




                                                                                              107
     .
         .
.'


             QUESTION NO. 1:

                    What is a reasonable fee for the necessary services of the attorneys for Movac Services
             Compan}', Inc in connection witb Mo:~~ac Ser'lices Compan¥, Inc 's claim fu~ B~each <"i£
             Confidentiality A~,'reement against Total E&P, stated in dollars and eents?

                    In determining the reasonableness of an attorney's fee award, you must consider the
             following factors:

                    I.         the time and labor involved, the novelty and difticultx of the guestions involved,
                               and the skill required to perform the legal services properly;

                    2.         the likelihood that the acceptance of the particular employment will preclude
                               other employment by the lawyer;

                    3.         the fee customarily charged m the locahty for Similar legal serv1ces;

                    4.         the amount involved and the results obtained;

                    5          tbe time limitations imposed by the client orb~' the circumstances;

                    6.         the nature and len1,>th of the professional relationship with the client;

                    7.         the experience, reputation, and ability ofthe lawyer or lawyers performing the
                               services; and

                    8.         whether the fee is fixed or contingent on results obtained or uncertainty of
                               collection before the legal services have been rendered.

                    Answer with an amount for each of the following:

                    a. For the successful representatiOn of the breach of conhdentliihty claim through tnal.

                                           Answer:ft,3'JO
                                                               1
                                                                315
                    b    Eo~   filtme representation thmugh appeal tG tile   CGlll"t   of" appeals, it" one is tal>en.

                                          Answer:
                                                   ~~ 51[)[){)
                                                       -
                   c. For future presentation at the petition for review stage in the Supreme Court of Texas,
                      if the case comes before the SuJxeme Court of Texas.
                                                      ~
                                          Answer:          5\fff)
                   d. For future presentation at the merits briefing stage in the Supreme Court of Texas, if
                      the case comes before the Supreme Court of Texas.



                                                                                                                         108
.   '
        .


                               Answer:
                                          ~    l8,om
            e   Ear filture presentation thmngh oml a~gllll'lent ami the GempletieR ef pmEeeaiags in
                the Supreme Court of Texas, if the case comes before the Supreme Court of Texas.

                               Answer:    1t ~ l CCD




                                                                                                 109
                                     Verdict Certificate

Check one:

        Our verdict is unanimous All n:velve of us have agreed to each and    €V€f)'   ansv;er. The
presiding juror has signed the certificate for all twelve of us.



Signature of Pres1dmg Juror                 Printed Name of Presiding Juror



--~     Our verdict is not unanimous. Eleven of us have agreed to each and every answer and
have signed the eertifieate belo w.


    j   Our verdict is not unanimous. Ten of us have agreed to each and every answer and have
signed the certificate below.




0       ///.4/ /                        '       (      ............ ,,




11. - - - - - - - - -




                                                                                              110
                                                                          Electronically Filed
                                                                          4/29/2015 3:15:08 PM
                                                                          Hidalgo County District Clerks
                                                                          Reviewed By: Joseph Gonzalez


                              CAUSE NO. C-023-05-E

MO-VAC SERVICES COMPANY, INC.                   §      IN THE DISTRICT COURT
                                                §
vs.                                             §     275TH JUDICIAL DISTRICT
                                                §
TOTAL E&P USA, INC.                             §     HIDALGO COUNIY, TEXAS

                                 FINAL JUDGMENT

      On April 14, 2015 this case was called for trial. Plaintiff Mo-Vac Services

Company, Inc. appeared through its representative and through its attorneys and

announced ready for trial. Defendant Total E&P USA, Inc. also appeared through its

representative and its attorneys and announced ready for trial.

      After a jury was impaneled and sworn, it heard the evidence and arguments of

counsel. In response to the jury charge, the jury made findings that the court received,

filed, and entered of record. The Court takes judicial notice of those jury findings and

they are incorporated herein by reference.

      The Court hereby RENDERS judgment for Plaintiff Mo-Vac Services Company,

Inc. and that it is entitled to recover reasonable and necessary attorneys' fees from

Defendant Total E&P USA, Inc. as follows:

      1.     $370,375.00 for the successful representation of the breach of

             confidentiality claim through trial;

       2.    $25,000.00 for future representation through appeal to the Court of

             Appeals, if one is taken and Plaintiff Mo-Vac Services Company, Inc. is

             successful in such appeal;

       3.     $s,ooo.oo for future representation at the petition for review stage in the
             Supreme Court of Texas, if the case comes before the Supreme Court of
                                   Appendix Exhibit
                                          2


                                                                                        113
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                                                                      Hidalgo County District Clerks
                                                                      Reviewed By: Joseph Gonzalez


      Texas and Plaintiff Mo-Vac Services Company, Inc. is successful before the

      Texas Supreme Court;

4.    $12,000.00    for future representation at the merits briefing stage in the

      Supreme Court of Texas, if the case comes before the Supreme Court of

      Texas and PlaintiffMo-Vac Services Company, Inc. is successful before the

      Texas Supreme Court;

s.     $8,ooo.oo for future representation through oral argument and the

       completion of proceedings in the Supreme Court of Texas, if the case

       comes before the Supreme Court of Texas and Plaintiff Mo-Vac Services

       Company, Inc. is successful before the Texas Supreme Court; and

6.     post-judgment interest that begins to accrue on the dates described below

       at an annual rate of s%, and continues accruing until the date this

      judgment is satisfied:

       a.     on the amount in Paragraph 1, interest begins to accrue on the day

              this judgment is signed;

       b.     on the amount in Paragraph 2, interest begins to accrue on the date

              the Court of Appeals issues its final judgment;

       c.     on the amounts in Paragraph 3-5, interest begins to accrue on the

              date the Supreme Court of Texas issues its final judgment.

This judgment is final, disposes of all claims and all parties, and is appealable.

The Court orders execution to issue for this judgment.




                                       2
                                                                                     114
       Electronically Filed
       4/29/2015 3:15:08 PM
       Hidalgo County District Clerks
       Reviewed By: Joseph Gonzalez



30th




                     115
