                                                                                         ACCEPTED
                                                                                         14-14-00807
                                                                     FOURTEENTH COURT OF APPEALS
                                                                                  HOUSTON, TEXAS
                                                                               6/11/2015 12:01:36 AM
                                                                               CHRISTOPHER PRINE
                                                                                              CLERK


                        No. l4-14-00834-CV
                                                                  FILED IN
                                                           14th COURT OF APPEALS
                        nrp Counr or Appsars
                        IN                                    HOUSTON, TEXAS
               FoR mr FoURTEENTT{ Drsrrucr oF              6/11/2015 12:01:36 AM
                                                        Tnxas
                                                           CHRISTOPHER A. PRINE
                                                                    Clerk

                        INTERVENOR cARLos RYERSOI t,
                                                  AppnrraNr

                                      v.

        TsE PrrnoLEUM   Womrns UNlow oF THE Rspunr,rc op MExrco,
                                                   Appsr.Lrs


                On Appeal from the 28lst Judicial District Court
          Harris County, Texas, the Hon. Sylvia A. Matthews presiding
                    Trial Court Cause No. 1985-35446-AC


        OPENING BRIEF OF INTERVENOR APPELLANT CARLOS
                            RYERSON

Carlos Ryerson, In Pro Per
State Bar No. 1749250A
TI{E RYERSON LAW FIRM, P.C.
6700 Belmont No. 1 I
Houston, Texas 77A05
(713) 2e1-2301
(832)       383-9320 (facsimile)
carlos. ryerson@ryersonlaw. com



                                           Oral Argument Requested
                   IDENTITY OF PARTIES AND.COUNSEL

Cross-Appellant/Plaintiff (Appeal No. 1 4- 14-00807-cv)   :

      James Gomez, as Receiver for Aniba Limited

Trial and Appellate Counsel for Cross-AppellantlPlaintiff:
      Brian A. Calhoun                   Michael   J. Perez
      State Bar  No. 24044827            Jeffrey A. Feasby
      CALHOUN, BHELLA &                  PEREZ & WILSON, INC.
      SECHREST, LLP                      750 B Street, Suite 3300
      325 N. St. Paul St., Suite nUA     San Diego, California 92101
      Dallas, Texas 752A1                (619) 741-0282
      (214) 981-9258                     (619) 460-0437 (facsimile)
      (214) 981-9203      (facsimile)    perez@perezwilson.com
      bc   alhoun@cbsattorneys. com

      Steven Ward Williams
      SMITH SOVIK KENDRICK &
      SUGNET, PC
      250 S. Clinton Street, Suite 600
      Syracuse, New York 13202
      (3ls) 474-2911
      (315) 474-6015 (facsimile)
      swil liams@smithsovik. com
AppelleelDefendant:

      The Petroleum Workers Union of the Republic of Mexico

Appellate Counsel for Appellee/Defendanf:

      Paul Simon                               Michael Choyke
      State Bar No. 24003276                   State Bar No. 00793504
      SIMON HERBERT          &,                WRIGHT & CLOSE, LLP
      MCCLELLAND, LLP                          One Riverway, Suite 2200
      34Ll Richmond Ave., Ste. 400             Houston, Texas 77A56
      Houston, Texas 77046                     (7r3) s72-4321
      (7r3) 987-7\40                           (7 L3) 572-4320 (facsimile)
      (713) 987-7nA (facsimile)                choyke@unightclo se. com
      psimon@shmsfirm.com


Trial Counsel for Appellee/Ilefendant:
      Paul Simon                         Michael Choyke
      State Bar No. 24AA3276             State Bar No. 00793504
      SIMON HERBERT &                    WRIGHT & CLOSE, LLP
      MCCLELLAND, LLP                    One Riverway, Suite 2200
      34ll Richmond Ave., Ste. 400       Houston, Texas 77056
      Houston, Texas 77046               (7r3) s72-4321
      (713) e87-7r00                     (7 13) 57 2-4320 (facsimile)
      (713) 987-7120 (facsimile)         choyke@ wri ghtclose. com
      psimon@shmsfirm.com

      Jamie Pefla                        George Mufroz
      State Bar No. 90001988             State Bar No. 14669925
      Pefla Law Group                    1300 Pennsylvania Ave., N.W.
      900 Kerria Ave                     Suite 700
      McAllen, Texas 78501-1913          Washington, D.C. 20004
      (e56) e48-222t                     (202) 204-2s30
      j   pena@penalawgroup. com         (202) 3 47 -23 rZ ( facsimile)
                                         gmrnoz@munozlaw.com
Inte rve rno r/Appella nt:

      Carlos Ryerson

Appellate Counsel for fnterernor/Appellant:

      Carlos Ryerson, In Pro Per
      state Bar No. 17492500
      The Ryerson Law Firm, P.C.
      6700 Bemont No. I I
      Houston, Texas 77005
      (713) 29r-2301
      (832) 383-e320
      (facsimile)
      carlos. ryerson@ryersonlaw. com



Trial Counsel for IntervenorlAppellant:
      Craig R. Keener
      state Bar No. 11167g75
      Craig R Keener PC
      1005 Heights Blvd.
      Houston, Texas 77008-6913
      (7t3) s2e-0048
      crkeener@aol.com




                                        iii
             ABBR4VIATI9NS AND RECORD .RETERENCES
PAS,TY ABBRE\aIAIIONS

Cross-Appellant James Gomez, as Receiver for Arriba Limited, is referred to herein as
"Arriba."

James Gomez, as an individual, is referred to as "Gomez."

Appellee The Petroleum Workers Union of the Republic of Mexico is referred to
herein as the "LJnion." In the record, the Union is sometimes referred to by its
Spanish name, the "Sindicato."

Intervenor/Appellant Carlos Ryerson is referred to herein as "Ryerson."

RECORD REFERENCES

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

References to the lst Supplemental Clerk's Record, which was submitted by the
Clerk of the Harris County District Court, are in the form (Supp CR [page #]).

References to the Amended Motion for Judgment on the Verdict, submitted as
Exhibit I to the parties' Agreed Motion to Supplement Clerk's Record filed on June
9,2A15, are in the form (Stip CR [page #]).

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




                                         tv
                                     TABLE OF CONTENTS

IDENTITY OF PARTIES AND COUNSEL................r..............r.r..................'... i
ABBREVIATIONS AND RECORD R8F8R8NC8S.....,........,....,..........,......... iy

TABLE OF CONTENTS...........r....r........r...o...o....r......................t.....r.....o.o............V
TABLD OF AUTHORITIES..............................r................r.............r.................. Vi

STATEMENT OF THE CASE ..r.r..r.....o.......r...............o..'........o.r..............'........ Vii
ISSUES PRESENTED ....................r.............r......o...r.......................................... Viii
         1.  Did the trial court error in failing to award Ryerson damages and
attorney's fees for breach of the November 27,2A04 Ryerson Fee Agreement?

STATEMENT OF FACTS..............r.....................r....r..r......,...............r.r...............1
  r. TNTRODUCTION                                                                          ....................1

  II. THE PARTIES' AGREEMENT                                                                          ..,......2
  III. PROCEDURAL HISTORY                                                                         ........,....4

SUMMARY OF ARGUMENTS......r.o......o.....,.....,....r.....................!...............,.,.11

ARGUMENTS AND AUTHORrTY........,o....,.................r..o.................,......,.......13
   I.    Standard of    Review                                                              .... .. . ........13
   II.   The Trial Court Ened in Refusing to Award Ryerson Monetary Damages...13
   III. The Arguments  Asserted By the Union Below Do Not Support a Finding that
   Ryerson is Not Entitled to Damages             .............     ....... ........ 19

   IV. The Amount of Ryerson's Damages is Readily Ascertainable ....-............'...21
CONCLUSION AND PRAYER........'.t...o..........o..r.............ro......................'........23
                          TABTE OF AUTHORITIES

Cases

Bowenv. Robinson,227 S.W.3d 86
  (Tex. App. - Houston [lst Dist.] 2006,pet.   denied).......-...              19,20

Chrysler Ins. Co. v. Greenspoint Dodge of Houston, Inc.,
 297 S.w.3d248 (Tex. 2009)......                                                    13


Colrer v. Coker,650 S.W.2d39I (Tex.    19S3)......                             .....15

Columbia Gas Transmission Corp. v. New Um Gas, Ltd.,
 940 S.W.zd 587 (Tex.    1996).,.                                   '... .. .-..... ' 13

Dynegy Midstream Servs., Ltd. P'ship v. Apache Corp.,
  294 S.W.3d 164 (Tex.   2009).....                                          "......13

Jones v. Wal-Mart Stores, Inc., 893 S.W.2d 144
   (Tex. App. - Houston [1st Dist.] 1995, no unit                                   2t

Lightv. Wilson,663 S.W.2d 813 (Tex. 1933)....                               ........21

Lubbock Mfg Co. v. Perez,591 S.W.zd907
  (Tex. Cv. App. - Waco 1979, writ dism'd by    ag.)                         '-'..-.'20

MCI Telecomms. Corp.v. Tex. Utils. Elec. Co.,995 S.W.2d 647 (Tex. 1999)......13
Precision Motors v. Cornish,4I3 S.W.2d 752
  (Tex. Civ. App. - Daltas 1967, writ ref d   n.r.e.)               ....'.............20

Seagull Energ,t E&P, Inc. v. Eland Energt, Inc.,
  207 S.W.3d342 (Tex.    2006)..                                               15,17

Statutes

Texas Financial Code $ 304.003(cX2)                                            ......23

Texas Financial Code $$ 304.003(c)(2), 304.006                                   -'.'23




                                         vl
                         STATEMENT OF THE CASE

        This is a breach of contract case arising out of a November 27, 2004

fee agreement between Ryerson and the Union (CR 229-243), emanating from the

terms of a settlement agreement between Arriba and the Union, which the Union also

breached. (CR 3816-3821.) The Union asserted counterclaims against Arriba and

Ryerson. (CR 3822-3895.)

        On February 3, 2014, the Court called this case for       trial. A jury was
impaneled and sworn, and the case proceeded to    trial.   The case was submitted to

the   jury on February 17,2014, and a verdict in favor of Ryerson and Arriba    was

received on February 18,2014. (CR7626-7637.) On July 15,2014, the 281st District

Court, Judge Sylvia Matthews presiding, entered a final judgment in favor of

Ryerson and Arriba. (CR 8019-8020.)

        On August 14, 2A14, the Union filed a Motion to Modiff, Reform, or Correct

Judgment and a Motion for New Trial. (CR 8028-8133; 8134-8193.) Pursuant to

Rule 329b(c) of the Texas Rules of Civil Procedure, the Union's motions were

ovemrled by operation of law. The Union filed its Notice of Appeal on October 8,

2014.(CR8273-8277.) Arriba and Ryerson filed separate Notices ofCross-

Appeal on October 21,2014. (CR 8280-8283; 8284-8286.)




                                        vll
                            ISSUES PRESENTEI)

      L      Did the trial court error in failing to award Ryerson damages   and

attorney's fees under its claim for breach of the November 27,2004 Ryerson Fee

Agreement?




                                    vtlt
                                 STATEMENT OF FACTS

r.       INTRODUCTION

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

Aniba and against the Union and various individuals (the "1986 Judgment").

(RR Vol. 18A, Ptf.'s Ex. 1.) That judgment awarded Arriba $33 million in actual

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

damages resulting from the Union's breach             of conffact, $4 million in attorneys' fees,

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

Aniba "of the benefits of its contract and the perpetration of unlawful and tortious

aets" upon Arriba, and $50 million in punitive damages. (Id. at pp. 1-3.) A11 of

these amounts bear post-judgment interest at the rate            of   lAYo per annum. (/d.)


         That case has since taken the parties and the Texas courts on a long and

 winding journey. Although the judgment from which the parties appeal involves

 the interpretation and enforcement of a fee agreemerfi between the Union and Ryerson,

 as   well as a settlement agreement between Aniba and the Union, the underlying action

 has spawned numerous garnishment actions on the underlying judgment, as well as

 related state court actions, appeals to this Court as well as the First and Tenth

 Courts of Appeal,l federal actions in Texas and New York, a state court action in

 Califomia, and proceedinS in the Bahamas.2

I The appeal to the Tenth Court of Appeals was related to a judgrnent in a related case. The
  appeliate court reversed and remanded the case for retial based on the trial court's exclusion of the
          The parties are before this Court on their respective appeals from the Final

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

Arriba and Ryerson. (See CR 7626-7637; 8019-8020.)

II.       THEPARTIES' AGREEMENT

           On May     2l,2}04,Aniba      and the Union entered into an Agreement Regarding

Disposition of Garnished Funds (the "2004 Agreement"). (,See RR Vol. l8B,

Def.'s Ex. 50.) The Union also entered into an agreement with Ryerson which

provided for payment of his attomeys' fees from the Union's 48o/o share of the

garnished funds held in New York (the "Ryerson Fee Agreement"). (See RR Vol.

    l8A, Ptf.'s Ex.   15.)

          In entering into the 2004 Agreement, the parties sought to resolve                      this

gamishment action, the distribution of the ftlrds located in New York that were the

subject      of this related garnishment action, the enforceability of the                      1986




    2004 Agreement was signed by Gomez as Receiver for Arriba, and by Noe Manuel




testimony of one of the Union's attorneys, which the Court of Appeal concluded "likely ... cause
the rendition of an improper judgment." See Aniba Limited v. The Petroleum Worlrers Union of
the Republic of Mexico,No. l0-98-165-CV (10e Court of Appeals, October 27,1999). That case
is still pending in the Disfrict Court of Harris County, Texas, 281st Judicial District as Case
No.89-007592(the*l989Litigation"),andisawaitingrehial. Intheeventthejudgmentinthe
present case is affirmed, it will effectively resolve this case as well as the 1989 Litigation, which
was to be dismissed under the parties' sefflement agreement. (See RR Vol. 188, Def 's Ex. 50,
ArL V.)
2
    This case and the 1989 Litigation remain active pending resolution of this case.
    Moreno Alvarez as General Attorney in Fact for the Union, and by Ryerson as

    Attorney of Record for the Union. (See id. at pp. l0-11.)

         Pursuant to Article      III of the 20A4 Agreement, the garnished funds in
NewYork "shall be distributed asfollows:


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

         "8.  Forry-Eight percent (48%) of said funds shall be paid to the Union or its
         designee (as directed by the Union's attomey of record herein); and

         "C.   From the Union's 487o of said funds, an additional amount of One
         Million and No/100 Dollars ($1,000,000.00) shall be paid to Gomez, as
         Receiver for the Companies."4

(Id. at pp. 3-4.) Article III goes on to state that, "The parties also agree to use their

best efforts to resolve any outstanding claims affecting the Garnished Funds that

have been made, or which may be made, in the action pending in the United States

District Court, Eastern District of New York under Cause No. M # 02-906." (Id.)

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

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

and    all claims and allegations challengingthe finalrty of the 1986 Judgment as it

affects them." (Id. at p. 4.)


a
 Gomez testified that this additional $1 million was to pay the expenses he had incurred as Receiver for
Aniba. (RR Vol. 8,264:23-265:20; RR Vol. 9, 89:18-24.)
5
  The "Commission" is The Commission of Contracts ofthe Executive Committee ofthe
Petroleum Workers Union of the Republic of Mexico, which is also a judgment debtor on the 1986
Judgment.
      Article IV further provides                that    if "the distribution of
the Garnished Funds is not accomplished according to the terms set out in this

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

any legal manner, anywhere in the world, except in the country of Mexico." (1d)     Iil.
The Ryerson Fee Agreement, in turn, stipulates as follows:

        .(1.   With respect to the recovery of the money funds of the Union [ | that

      are currently sequestered in New York deposited in the Pershing Division

      of   Donaldsonn     Lufhin   &   Jeanrette Securities Corp., by the company

      Arriba LTD. and by the Mexican government, we have agreed                    the

      following:

      (a) that Carlos A. Ryerson, Erq., shall receiven of the 48"h that are

      apportioned or belong to the STPRM, of this account the amount of US

      $7,0001000.00 as legal fees;...." (see   RRVol. l8A, Ptf.'s Ex. 15, paragraph l.)


UI.   PROCEDURAL HISTORY

      Although an entire procedural history of these matters would constitute a

tome, the procedural history relevant to Ryerson's appeal is rather simple. The

current action is a petition    in intervention and garnishment     action to recover

Ryerson's legal fees due pursuant to the Ryerson Fee Agreement. That action sought




                                           4
to seize Union assets held at Credit Suisse First Boston and Pershing Trading

Company, L.P. (CFt229-244.) Garnishee Pershing Division of Donaldson, Lufkin

E        Jenrette Securities Corporation ("Pershing") answered that         it   was in the

possession of Union funds totalling 943,282,633.78. (CR 37-42.)

           Those funds had also been restrained by Arriba and the United States District

Court for the Eastern District of New           York. That court entered      an Ex Parte

Restraining Order at the request of the United States of America, wtrich was acting at

the request of the Government of Mexico. (CR 50-51, 84-92.) According to the

Government of Mexico, the funds had been embezzled by Union officials, including

the Union's President, Carlos Romero Deschamps. (,See RR           Vol. 18A, Ptf.'s F;x.46,

pp. SNel 100441-10A444; RR Vol. 11, 10:13-11 :2; 13,.24-17.2.)


           One of the Union's attorneys, George Muffoz, testified that at or about the

time it entered into the 2AA4 Agreement, he was representing the Union in the

District Court in New York and was attempting to work with representatives of the

United States and Mexico to have the garnished funds returned to Mexico.

(RR Vol. l      l,   10:10-12:6; 18:5-7.) To be clear, the Ryerson Fee Agreement and the

2004 Agreement were negotiated and entered into while the $43,282,633.78 was inthe

midst ofthe United States'and Government          of Mexico's seizure    actions. (RR Vol.

I   l,   10:10-17- 17:3-6.) Ultimately, the Union's attorney was successful, and the funds

were released after      the District Court's restraining order was lifted on August

30,2005.,See RR         Vol. 18A, Ptf.'s Ex. 35, p. 7; RR Vol. 11, l9:4-10:21,17:3-6.)
      On February 8, 2005, Ryerson filed a Petition in Intervention, Application for

Writ of Garnishment, and Request for Injunctive Relief in which he sought to

intervene as a plaintiff based on his allegations that he was entitled to $7 million

from the gamished funds under his agreement with the Union. (CR 229-244.) On

March 17,2005,Aniba filed a Motion to Enforce Settlement Agreement in which it

sought an order from the   fial   court compelling the Union to perform under the 2004

Agreement. (CR 438-523.)

       On December 8, 2005, the Union petitioned pursuant to Rule 664 of the Texas

Rules of Civil Procedure to post a bond in lieu of the funds that had been garnished in

NewYork. (CR 18rc-1927.)ThatpetitionwasjoinedbyPershing.          (CR 1928-1932.)On

December 16, 2006, the trial court denied the Union's motion pending resolution     of

various Rule 12 motions. (CR 2064.) The Rule 12 motions were denied on January

23,2006. (CR 2588.)

      On April 7, 2006, the Union filed a Replevy Motion of Substitution of

Property Pursuant to TRCP 664. (CR 2614-2672.) Pershing also joined this

motion. (CR 3103-310S.) On         April 17,2006, the trial court granted the Union's

motion and directed the Clerk of the Court to accept the Irrevocable Standby Letter

of Credit in the amount of        $46,894,000.00. (CR 3109-3111.) The       trial court

further ordered that within three (3) business days of the filing of the Letter of




                                            6
Credit, Pershing was authoruedto release the garnished funds in accordance with

the instructions from the Union's attorney, George Mufloz. (CR 31 I l.)


      The Union filed a First Amended Motion to Dissolve Gomez's Writ of

Garnishment on August 11,2006. (CR 3139-3254.) The trial court granted the

Union's motion on August      21   , 2006, and ordered the unit dissolved effective
October 9, 2AA6. (CR 3379-3380.) The court also released the Letter of Credit,

effective October 9, 2A06.    (Id.)   The cases then continued to move forward.

Numerous motions and hearings were held in the various underlying actions.


      On December 22, 2A11, Arriba filed its Complaint in which it asserted a

single cause of action for breach of contract based on the 2AA4 Agreement. (CR

3816-3821.) On May 2t, 2012, Arriba filed its Amended Complaint. (CR

4Arc-4022.) Aniba alleged that it was entitled to fiffy-two percent ofthe garnished

funds under the 2004 Agreement. (Id.    at\21.) Arriba further alleged that the Union
breached the parties' agreement.      (Id. at   \ 26.) Aniba sought both specific
performance and damages as a result of the union's breach of the agreement.

(Id. atfln24,28,29.) Arriba also prayed for "such other and further relief     as the

Court deems just and proper." (Id. at Prayer.)




                                          7
        On February 28, 2012, the Union filed a Second Amended Answer, Special

Exceptions and Counterclaims. (CR 3822-3895.) The Union asserted various

affirmative defenses, including lack of apparent or actual authority for those who

signed the agreement on behalf      of the Union. (CR 3847-3545.) It also asserted

counterclaims, including fraud and conspiracy against Arriba and Ryerson.

(cR 3850-38s1.)

        On February 3,2014,the Court called the case to    trial.   (CR 8019.) The
primary issue for the jury to resolve was whether the individuals who entered into

the 2004 Settlement Agreement had actual or apparent authority to act on behalf      of
the Union. (See RR Vol.   6,l9   10-15 [Court: "this main issue that would go before the

jury is all about authority and the settlement agreement itself between Ryerson

and the Union and the other party and who had authority to do what they did and did

they have authority to do what they did?"1.) A jury was impaneled and sworn, and

the case proceeded to trial with opening statements and presentation of evidence.

(RR Vol.   7,p. 16l; CR 8019.) After the close of evidence     and closing arguments,

the case was submitted to the jury. (CR 8019.) The jury returned its verdict in

favor of Ryerson and Arriba on February 18,2A14. (CR7626-7637; RR Vol. 15, p.

235.)




                                           8
      In its verdict, the jury found that Ryerson and Alvarez both had actual and

apparent authority to enter into the 2004 Agreement on behalf of the Union. (CR

7693-7694.) The jury also found that Alvarezhad actual and apparent authority

to enter into the November 27,20A4 agreement with Ryerson on behalf of the Union.

(CR 7695.) The jury found no fraud on the part of Arriba or Ryerson. (CR 1769-

7697.) The jury also awarded Ryerson afforney's fees for his trial counsel.. (CR

7699.) Aniba did not seek its attorneys' fees.

      Arriba filed its Motion for Judgment on the Verdict on March 10, 2014.

(CR 7683-7704.) In its motion, Arriba argued that it was entitled to an award of

damages based on the Union's breach of Article   III of the 2A04 Agreement in failing
to pay Arriba 52% of the garnished funds. (CR 7685-7686;77A2-7703.) Arriba

also sought a declaration from the court regarding the validity of the 1986 Judgment

and a determination by the court of the amount outstanding on that judgnent taking

into account accrued interest. (CR 7686-7688; 7703.)

      On April 9,2014, Ryerson filed a Proposed Judgment (CR 7718-7721) and

the Union filed a Motion for JNOV. (CR 7706-7717.) Arriba filed its Amended

Notice of Judgment on the Verdict on April t4,2014. (Stip CR 1.)




                                         9
      On July 15,2014, the trial court entered its Opinion Order on Arriba's

Amended Motion       for    Judgment and the Union's Motion            for   Judgment

Notwithstanding the Verdict. (CR S02l-5A27.) The trial court held that Arriba

was entitled to recover on its claim for specific performance under Afiicle   IV of the

2A04 Agreement. (CR 3026-5027.) However, the court denied Ryerson's and

Arriba's requests for damages for the Union's breach of the Ryerson Fee Agreement

and the 2A04 Agreement. (CR 8026.)

      The trial court subsequently entered its Final Judgment in favor of Ryerson

and Aniba. (CR 8019-8020.) As set forth in the judgment, "Ryerson shall recover

nothing on his breach of contract claim.....on his claim for attorney's fees." (CR

3020.) Similarly the judgment stipulated, "Arriba shall recover nothing on its

claim for breach of Article III fo the 12004 Agreementl." (CR 8020.) In addition,

'oGomez, as receiver for   Aniba, is entitled to enforce the 1986 [ ] Judgment in any

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

On August 14, 2014, the Union filed a Motion to Modiff, Reform, or Correct

Judgment and a Motion for New Trial. (CR 8028-8133; 8134-8193.) Pursuant to

Rule 329b(c) of the Texas Rules of Civil Procedure, the Union's motions were

ovemrled by operation of    law   The Union filed its Notice of Appeal on October 8,

2014.(CRS273-8277.) Aniba and Ryerson                  filed   separate Notices of

Cross-Appeal on October 21, 2A14. (CR 8280-8283: 8284-8286.)




                                           10
                        SUMMARY OF ARGUMENTS

      The Union breached the Ryerson Fee Agreement and the 2004 Agreement.

The clearly stated purpose ofthe 2004 Agreement was to resolve all disputes between

Arriba and the Union regarding this garnishment action, the distribution of the

garnished funds   in New York, the enforceability of the 1986 Judgrnent, and the

outstanding issues in the 1989 Litigation. (RR      Vol. l88, Def.'s Ex. 50, p. 2.) The

clearly stated purpose of the Ryerson Fee Agreement was to pay Ryerson for his

exhaustive efforts over many years to try to resolve litigation spanning more than

two decades, and to do so from the funds allocated to the Union in the 2004

Agreement. After two decades       of litigation,   and with the seizure of more than

$43,000,000 (Forty-Three Million U.S. Dollars) of Union funds secwely held in a

New York bank account, Arriba and the Union negotiated for the payment of money

to Arriba and legal fees to Ryerson. The parties accomplished this intended purpose

by memorializing and executing agreements which provided, inter alia, for:      (l)   the

division of funds (i.e., $43,282,633.78) held in New York City          - 52% plus $1
million to Arriba and Gomez,4STo less $l million to the Union (id. atArt. III); (2)

the payment of $7,000,000 in fees to Ryerson.

      The trial court erred in determining that Ryerson was not entitled to an award   of
damages due to the Union's breach of the Ryerson Fee Agreement.



                                         11
      The trial court should have given the parties' agreements and the terms of

their contracts their plain and ordinary meaning. Article III of the 2044 Agreement

is clear that the Union funds held in New York   "shall be disffibutet'   52o/o   to Arriba,

48% to the Union, and $1 million     of the Union's 48% to Aniba. (Id. at Art. III

[emphasis added].) The Ryerson Fee Agreement is clear that out               of the 48%

"apportioned" to the Union, Ryerson "shall receive" US $7,000,000. The Union

breached both agreements by negotiating the release of the funds restrained by the

U.S. District Court in New York, and then securing the trial court's release of those

funds upon the substitution    of a Letter of Credit. The Union breached both
agreements by not paying    or distributing one thin dime to Ryerson or Arriba            as


required by the Ryerson Fee Agreement and the          2004 Agreement.            Therefore,

Ryerson has been harmed and the           trial   court's interpretation of the parties'

agreement failed to put Ryerson in as good of a position as if the Union had performed

under the Ryerson Fee Agreement.




                                         t2
                      ARGUMPNTS ANI} AUTHORITY

I.    Stnndard of Review

      The interpretation of an unambiguous contract is a question of law, wtrich is

reviewed de novo. MCI Telecomms. Corp. v. Tex. Utils. Elec. Co.,995 S.W.2d 647,

650-51 (Tex. 1999). Whether a contract is ambiguous is also a question of law.

Columbia Gas Transmission Corp. v. New Ulm Gas, Ltd.,940 S.W.2d 587, 589

(Tex. 1996). Here, the trial court held that the Ryerson Fee Agreement and 2004

Agreement were not ambiguous and interpreted it as a matter of law. (See CR 8026

citing MCI Telecomm. Corp., supra,995 S.W.2d at 650-51.)

IL   The Trial Court Erred in Refusing to Award Ryerson Monetary Damages
and Jury Awarded Attorneys Fees

      If a contract is worded in such a way that it can be given a definite or certain

legal meaning, then the contract is not ambiguous. Chrysler Ins. Co. v. Greenspoint

Dodge of Houston, [nc.,297 S.\M.3d 248,252 (Tex. 2009). Whether a contract is

ambiguous is a legal question for the court. Dynegy Midstream Servs., Ltd. P'ship

v. Apache Corp.,294 S.W.3d, 164, 168 (Tex. 2009).       A contract is not ambiguous

when its meaning is certain or definite and not susceptible to more than one

reasonable interpretation. See   id. A contract is not ambiguous just because the
parties disagree over its meaning.   Id.   Courts give contract terms their plain and

ordinary meaning unless the contract indicates that the parties intended a different

meanins. Id.

                                           r3
         After two decades of litigation, and with the seizwe of more than $43,000,000

(Forty-Three Million U.S. Dollars) of Union funds securely held in a New York

bank account, Aniba and the Union negotiated for the payment of money to Aniba -

a payment of a portion of what had been due and owing by the Union since 1986,

and the Union agreed to pay Ryerson $7,000,000.00 from the Union's portion                ofthe

garnished funds. Ryerson's claim           for    damages   is   based   on the Ryerson     Fee

Agreement which was not paid by its terms, and was not paid by            a   direct consequence

of the Union's breach of both the 2004 Agreement and the Ryerson Fee Agreement.

Article III ofthe 2004 Agreement is clear and unambiguous thatthe Union's gamished

funds on deposit with Pershing in New York - defined in the 2004 Agreement as the

"Garnished Funds" -"shall be distributet'pursuant to the terms of that Article. (RR

Vol. 188, Def.'s Ex. 50, p. 3 [emphasis added].)        Pursuant to paragraph 1.(a) of the

Ryerson Fee Agreement, Ryerson "shall receive" US $7,000,000.00 as legal fees from

      *48a/o
the            that are apportioned or belong to the [Union]...". (RR Vol. l8A, Ptf.'s Ex.

ls.)

        The trial court's decision not to award Ryerson damages was based on its

erroneous interpretation that the 2004 Agreement only required the "dividing of the

garnished funds ifthey were released pursuant to the writs of garnishment."

(CR 8026 [emphasis added].)




                                             t4
      By interpreting the agreement in this manner, the trial court failed to give

meaning to the mandatory language - "shall" - requiring the distribution of the stated

amounts to   Arriba. This was error.   See Seagull Energy   E&P, Ine. v. Eland Energt,

Inc., 207 S.W.3d 342, 345 (Tex. 2006) quoting Coker                                    v.


Colrer, 650 S.W.2d 391, 393 (Tex. 1983) (emphasis in original) (in interpreting

contracts, courts "examine and consi der the entire   writingin   an effort to harmonize

and give effect to all the provisions of the contract so that none     will   be rendered

meaningless.").


      As a result of the trial court's erroneous interpretation, the court went on to

conclude that there was no breach of contract because "[t]he writs were dissolved by

[the] court and the funds were not subject to the distribution provisions of the [2004]

Agreement." (CR 8026.)      In other words, the trial court's contract interpretation

would equate to a release of the funds without any consideration to Arriba or

Ryerson whatsoever.       In so doing, the trial court permitted the Union to
completely breach the clear and unambiguous terms of the 2004 Agreement and

the Ryerson Fee Agreement, take all the money allocated, inter alia, to Arriba

and Ryerson per the terms of those agreements, and allowed the Union, ass the

breaching party, to benefit from its breach. Simply put, there is nothing inthe 2A04

Agreement that conditioned Aniba's receipt of its portion ofthe garnished funds upon

the release of those funds "pursuant to the writs of garnishment."

                                    15
 Rather, the agreement is clear, and without qualification,   that the funds "shall   be

 distributet' in accordance with the Article III(A)-(C) (RRVol. l8B, Def.'s Ex.

 50, p. 3.)


        Similarly, there is nothing in the Ryerson Fee Agreement which conditioned

Ryerson's fee        to a release of the garnished funds "pursuant to the writs of
garnishment." Rather, the stipulation is Ryerson "shall receive" $7,000,000,00

from the 48% that are "apportioned or belong" to the Union. (RR Vol. l8A, ptf.'s

Ex. 15.) Certainly, the fact the Union recovered 100% of the garnished funds

should    in no way diminish its obligation to pay Ryerson per the clear and
unambiguous terms         of the Ryerson Fee Agreement. Moreover, the fact that
Articles      IV   and V of the 2004 Agreement provided for alternatives in the

event the funds were not distributed by the Union as required by Article      III, does
not relieve the Union of its obligation to make the agreed to, and             eamed,

$7,000,000.00 fee payment to Ryerson. The fact, as argued on pages 16-17              of
Arriba's Cross-Appellant's Brief, the 2004 Agreement included provisions for

contingencies, yet did not include simitar contingencies in Article   III, only further
demonstrates their desire that the Union's obligation   to distribute the funds    was

absolute and without regard to whether or not the funds were released pursuant to

the writs of garnishment.



                                         l6
See Seagull Energy    E&P, Inc., supra,207 S.W.3d at 345 ('T.{o single provision

taken alone   will be given controlling effect; rather, all the provisions      must be

considered with reference to the whole instrument.").

      The trial court also relies on the additional language in Article   III that "[t]he

parties also agree to use their best efforts to resolve any outstanding claims affecting

the Garnished Funds that have been made, or which may be made, in the action

pending in the United States District Court, Eastern District of New York under

Cause No.   M # 02-906." (RR Vol. l8B, Def.'s Ex. 50, p. 4.) While the provision

acknowledges that there may be additional claims on the funds in the New York

proceeding, this provision does not excuse the Union from its obligation to pay

Ryerson its fees from the Union's portion of the "Garnished Funds" that are released

to it, even if the total amount has been reduced due to these "outstanding claims."

(RR Vol. l8B, Def.'s Ex. 50, p. 4 ) Rather than pay Ryerson his fees from the

Union's portion of the funds, the Union secured the release of 100% of those funds -

both by the U.S. District Court in New York and the trial court below - to Mexico in

accordance with the instructions of the Union's attorney, George Mufioz. (RR Vol.

l8A, Ftf.'s Ex. 35, p.7; RR Vol.      11, 19:4-10:21,17:3-6; CR3109-3111.)

      Finally, even if the trial court was correct that the 2004 Agreement imposed a




                                          t7
requirement that the garnished funds had to be "released pursuant t0 the writs                of
garnishment" before they had to be furned over to furiba or pay Ryerson, the

Union breached the Ryerson Fee Agreement and the 2004 Agreement by

circumventing the process through which this would have occurred.


        Specifically, the 2004 Agreement provided for the use of an agreed-upon

order, Exhibit C to the agreement, to submit to the trial court for the distribution of

the garnished funds.6 (RR Vol. l8B, Def.'s Ex. 50, p.             4.)   The parties were to take

whatever steps were necessary in order to assure the prompt presentation of this

order to the trial court       (Id.)   The Union did not comply. Instead, the Union

proceeded         in the New York action and secured                                                 an

agreement with the United States and Mexico for the return of those funds to

Mexico.(RR      Vol. 11,19:4-10'.21,17:3-6.) Shortly thereafter, the                         Union

manipulated the trial court by securing an order allowing it to substitute a Letter                  of
Credit for the garnished funds held at Pershing. (CR 3109-3111.) Those funds

were to be released by Pershing pursuant to instructions from the Union's attorney.

(cR 30r 1.)




6
  Although the 2004 Agreement defined the funds held at Pershing as the "Garnished Funds,"
there is nothing in the agreement or Exhibit C that required those funds to be "released" pursuant
to the writ of garnishment. Rather, the agreement and Exhibit C refer to the funds being
"distributed" or "paid." (See RR Vol. 18B, Def 's Ex. 50, p. 4, Ex. C.)

                                                18
The Union then secured the release of the uryit              of   garnishment, thereby

releasing the Letter of Credit. (CR 3379-3380.) Thus, the Union breached the

20A4 Agreement by failing to secure the distribution of       Aniba's and Ryerson's

share of the garnished funds, and by actively working to prevent that from occurring.

       Accordingly, the trial court erred in concluding that there was no breach of

contract based on the garnished funds. By failing to pay Arriba and Ryerson its

portion of the garnished funds as required by the 2004 Agreement and the

Ryerson Fee Agreement, the Union breached both agreements. As a result,

Ryerson is entitled to recover the amount necessary to put   it in as good a position   as

if the Union had performed under the Ryerson Fee Agreement. Bowen v. Robinson,

227 S.W.3d 86,96 (Tex. App.-Houston       IstDist.] 2}06,pet. denied).     Thatamount

is set forth in section   IV below.

nL    The Arguments Asserted By the Union Below Do Not Support a Finding
      that Ryerson is Not Entitled to Damages.

       The Union argued that Ryerson was not entitled to a judgment in the

amount that the Union was supposed to pay under the Ryerson Fee Agreement

because Ryerson      did not allege that he was entitled to damages regarding the

garnished funds.




                                        t9
       However, "[u]nder Texas law, a party is not required to plead his measure

of damages. Rule 47 ofthe Texas Rules of Civil Procedure requires only a short and

concise statement of a cause of action (i.e., breach of a specific contract) and damage

Aom such breach." Bowen, supra) 227 S.W .3d at 94 [internal citations omitted].

       Ryerson's Petition in Intervention, Application for Writ of Garnishment, and

Request   for Injunctive Relief filed on      February   8, 2005 meet the pleading
requirements under Rule 47. (CR 229-244.)

       The Union also argued that its failure to pay Arriba its share of the gamished

funds was not a breach of the 2004 Agreement because the agreement recognized

that Mexico's claim to the funds might be superior to the Union's. As set forth

above, however, the fact that others may have asserted claims to the funds in the New

York action did not relieve the Union of its obligation to pay Arriba or Ryerson their

portion of whatever funds were ultimately recovered. The Union cites to no evidence

to support this argument. Indeed, no evidence exists.

       Accordingly, the Union's arguments asserted below do not preclude an award

of   damages   to   Ryerson resulting from the Union's breach    of the Ryerson Fee
Agreement and the 2004 Agreement.




                                         20
fV.   The Amount of Ryerson's Damages is Rcadily Ascertainable

      As set forth in the Union's Petition for TRCP 664 Judicial Review of

Defendant's Replevy Bond (CR 1810-1927), as of close of business on December 5,

2005, the amount       of the garnished funds, including accrued interest,                was

$43,943,997.88. (See id., p. 3,   11   2.)   The garnished funds were accruing interest at

the rate of approximately $1,895.00 per         day. The garnishments on the funds were

dissolved by this Court effective October 9,2006. (CR 3379-3380.) Accordingly,

at the latest time the Union was required to make payment under the Agreement,T

the amount of the garnished funds was $44,529,552.88 as follows:

       .      $1,895.00 x 309 days between December 5, 2005 and October 9,2006
              = $585,555.00
       .      $585,555.00 in interest+ $43,943,997.88 principal       : $44,529,552.88
       Arriba was entitled to 52% of that amount, which is $23,155,367.50, plus

$1,000,000.00 of the Union's 48yo, for a total of $24,155,367.5A owed to Arriba at

the time of the Union's breach. Ryerson is entitled to $7,000,000.00 out of the

Union's share.

       Ryerson is also entitled to prejudgment interest on this amount based on the

holding of the Supreme Court of Texas in Johnson & Higgins of Texas, Inc.            v.


Kenneco Energy,      Inc.,   962 S.W.2d 507 (Tex.           1998).


?Aniba could arguably be entitled to pre-judgment interest from March 17,2005, the date on
which it filed its Motion to Enforce Settlement Agreement. (CR 438-523.)



                                               2t
In that case, the Supreme Court held that prejudgment           interest is permitted under

Texas common law at the rate          of post-judgment interest as simple interest. Id.

at 528,532. The Supreme Court firther held that "prejudgment interest begins to

accrue on the earlier of   (l)   180 days after the date adefendant receives uniffen notice

of a claim or (2) the date suit is filed." Id. at 531. The rate for prejudgment interest

is the same as the statutory rate for post-judgment interest and is simple interest.

Id. at 532.


      Ryerson is entitled to prejudgment interest at the rate of 5Yo per annum.

Tex. Fin. Code $ 304.003(cX2) Accumulation of this prejudgnent interest should

begin to run from October 9,2006,the date on which Ryerson's writ of garnishment

was dissolved by the trial court at the Union's request. Daily interest on the

$7,000,000.00 owed to Ryerson based on the Union's breach of the Ryerson Fee

Agreement is $958.90. Accordingly, the judgment should award Aniba damages

and prejudgment interest inthe amount of $583,013.70 plus $958.90 in daily

interest from October 9,20A6, until the date of the modified judgment entered by

this Court.

      Ryerson is also entitled to post-judgment interest on that total amount             of
damages at the rate of 5% compounded annually. Tex. Fin. Code $$ 304.003(c)(2),

304.006. In addition, because the Union breached the Ryerson Fee Agreement,




                                               22
Ryerson is fully entitled to a recovery of the jury awarded attorney's fees, per Chapter

38 of the Civil Practice and Remedies Code. The attorney's fees determined by the

jury amount to $73,125. (CR 7699.) Ryerson is also entitled to post-judgment interest

on these attorney's fees.


                            CONCLUSION AND PRAYER

      Ryerson was entitled to an award of damages resulting from the Union's breach

of the parties' agreement. The trial court erred in refusing to award those damages.

      WHEREFORE, PREMISES CONSIDERED, Appellant Carlos Ryerson,

respectfully prays that this Court grarrt its appeal and affirm the jury's verdict,

reverse the trial court's judgment regarding Appellant Carlos Ryerson's claim for

damages   for breach of contract, and modi$ that judgment to include an award of

damages   in favor of Appellant in the amount of $7,000,000.00, plus pre-judgment

interest and post-judgment interest, together with the jury determined attorney's fees

in the amount of 573,125 plus post-judgment interest.

      Appellant further prays for such other relief that it may be justly entitled.

                                 Respectfully Submitted,

                                 By:   /s/ Carlos Ryerson
                                 Carlos Ryerson
                                 State Bar No. 17492500
                                 67AA Belmont No. 1 1
                                 Houston, Texas 77405
                                 Telephone: (71 3) 291-2301
                                 Facsimile: (832) 383-9320
                                 Email: carlos.ryerson@ryersonlaw.com


                                          23
                         CERTIFICATE qF SERYICE
      I certify that a true and correct copy of this brief was served on all counsel of
record elecfronically on June 10, 2015.

Michael Choyke, Esq.               Paul Simon, Esq.
State Bar No.00793504              State Bar No. 240A3276
WRIGHT & CLOSE,    LLP             SIMON HERBERT & MCCLELLAND, LLP
One Riverway, Suite2200            34II Richmond Ave., Ste. 400
Houston, Texas 77056               Houston, Texas 77A46
(713) s72-4321                     (7r3) 987-7100
(7r3) s72-4320 (ra:<)              (713)987-7120 (Fax)
cho]'ke@wrightclose.com            psimon@shmsfirm.com

Michael J. Perez,  Esq.            Steven Ward Williams, Esq.
P6rez & Wilson,   Inc.             Smith Sovick Kendrick & Sugnet, PC
750 B. Street, Suite3300           250 South Clinton Street, Suite 600
San Diego, California92101         Syracuse, New York 13202-1252
(61e)  74t-A282                    (31s) 474-2ett
            (Fax)
(6l e) 460-a$7                     (31s) 474-6aLs (Fax)
 perez@perezwilson.com             swilliams@smithsovik.com




                                               /s/ Carlos Ryerson
                                               Carlos Ryerson




                                          24
