### No. 13-15-00348-CV

In the Court of Appeals for the Thir teenth 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 JU DICIAL DISTRICT COURT, HIDALGO COUNTY, TEXAS Trial Court Case Number C-023-05-E

REPLY BRIEF OF APPELLAN T 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 To tal E&P USA, Inc. Oral Argument Requested ACCEPTED 13-15-00348-CV THIRTEENTH COURT OF APPEALS

CORPUS CHRISTI, TEXAS 11/13/2015 1:09:31 PM Dorian E. Ramirez

CLERKii 

### TABLE OF CONTENTS
TABLE OF CO NTENTS .......................................................................................... ii
INDEX OF AUT HORITIES ..................................................................................... iv
STATEMENT ON OR AL ARGUM ENT ................................................................. v ISSUES PRES ENTED ............................................................................................... v
I. The trial court abused its discreti on by allowing Mo-Vac’s counsel to introduce evidence that was irrelevant , inadmissible, and highly prejudicial through impeachment on direct examin ation of Edmundo Ra mirez, who was not offering any expert testimony in this matter, and such admission of evidence was calculated to cause and probably did cau se the rendition of an improper j udgment ........................................................................................... v II. The trial court abused its discreti on by entering a final judgment on the jury’s verdict because the jury’s ve rdict was not supported by sufficient evidence and was gro ssly excessi ve ................................................................ v STATEMENT OF FACTS ........................................................................................ 2 SUMMARY OF THE ARGUMENT ........................................................................ 6 ARGUMENT ............................................................................................................. 7
I. By Allowing Mo-Vac’s Counsel to Question Edmundo Ramirez (Who Repeatedly Stated that he Was Not Of fering any Expert Opinion in this Case) Regarding the Expert Testimony he Gave on Attorneys’ Fees in a Wholly Unrelated Matter, the Tria l Court Admitted Evidence that Was Completely Irrelevant, Inadmissible, Served No Other Purpose than to Confuse and Mislead the Jury, and Was Highly Pre judicial ...................... 7
A. Mo-Vac’s Line of Questioning Regar ding the Expert Opinion of Edmundo Ramirez Rendered in a Co mpletely Unrelated Case Was Irrelevant ............................................................................................... 7iii 

### B. Admission of Mr. Ramirez’s Test imony Regarding his Opinion of Reasonable Attorneys’ Fees in a W holly Separate a nd Unrelated Case Was Not Harmle ss Error ..................................................................... 12
C. Admission of Mo-Vac’s Questioning of Mr. Ramirez Regarding the Separate, Unrelated Playboy Case Was Unfairly Prejudicial ............. 13
II. The Amount of Attorneys’ Fees Award ed by the Jury and Entered in the Court’s Final Judgment Was Not Supported by Sufficient Evidence and Was Grossly Excessive as a Matter of Law ............................................. 15
A. The Evidence Presented at Trial Was Insufficient to Support the Award of Attorney s’ Fees ................................................................... 15
B. The Award of Attorneys’ Fees for th e Sole Surviving Claim of Breach of Confidentiality Agreement Was Gr ossly Excessive as a Matter of Law ...................................................................................................... 24 PRAYER .................................................................................................................. 30 CERTIFICATE OF CO MPLIANCE ....................................................................... 32 CERTIFICATE OF SERVICE ................................................................................ 32
APPENDIX .............................................................................................................. 33iv 

### INDEX OF AUTHORITIES CASES Duinick Bros. v. Howe Precast, Inc. , No. 4:06-CV-441, 2008 WL 4411641(E.D. Tex. Sept 23, 2008) ................................................................................................ 8, 9 Editorial Caballero, S.A. de C. V. v. Playboy Enerprises, Inc , 359 S.W.3d 318 ........................................................................................................................ 9, 12 , 13 Harrison v. Texas Employers Ins. Ass’n , 747 S.W.2d 494 ...................................... 10 Hogue v. Kroger Store No. 107 , 875 S.W.2d 477 ................................................... 10 JLG Trucking, LLC v. Garza , 466 S.W.3d 157 ....................................................... 10 Owens-Corning Fiberglas Corp v. Malone , 916 S.W.2d 551 ................................. 11 El Apple I, Ltd. v. Olivas , 370 S.W.3d 757 (T ex. 2012) .......................................... 15 City of Laredo v. Montano , 414 S.W.3d 731 (Tex. 2013) ........................... 17, 18, 19 Tony Gullo Motors , 212 S.W. 3d .............................................................................. 20 Smith v. Patrick W.Y. Tam Trust 296 S.W.3d 545 ................................................... 24 Wythe II Corp. v. Stone , 342 S.W.3d 96 .................................................................. 25 Arthur Anderson & Co. v. Perry Equip. Corp. , 945 S.W.2d 812 (Tex. 1997)

.............................................................................................................................. .... 26 Young v. Sanchez , No. 04-10-00845 -CV, 2011 ....................................................... 28 RULES Tex. R. App. P. 39 ...................................................................................................... v
Tex. R. Ev id. 403 ..................................................................................................... 14v 

### 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 Texa s Rules of Appellate Procedure. ISSUES PRESENTED I. The trial court abused its discre tion by allowing Mo-Vac’s counsel to introduce evidence that was irrelevant , inadmissible, and highly prejudicial through impeachment on direct examin ation of Edmundo Ra mirez, who was not offering any expert testimony in this matter, and such admission of evidence was calculated to cause and di d cause the rendition of an improper judgment. II. The trial court abused its discre tion by entering a final judgment on the jury’s verdict because the jury’s ve rdict was not supported by sufficient evidence and was grossly excessive.

### No. 13-15-00348-CV

In the Court of Appeals for the Thir teenth 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 JU DICIAL DISTRICT COURT, HIDALGO COUNTY, TEXAS Trial Court Case Number C-023-05-E

REPLY BRIEF OF APPELLAN T TOTAL E&P USA, INC.

TO THE HONRABLE JUSTICES OF THE COURT: COMES NOW Appellant Total E&P USA, In c. and files this Reply Brief of Appellant, requesting that th e 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 speci fic amount of work performed and hours spent on the sole-surviving claim of breach of confidentiality agreement against Total.Page 2 of 33 

### STATEMENT OF FACTS This case is on appeal from a jury verdict granting $370,375 in attorneys’
fees to counsel for Mo-Vac Se rvices Company, Inc. (her einafter “Mo-Vac”) for its representation on Mo-Vac’s sole surviv ing claim of breach of confidentiality agreement against the sole surviving Defendant, plus $5 0,000 in conditional appellate fees. This was th e second jury verdict in this matter. The first was rendered after the case was tried on the merits on each of Mo-Vac’s claims in both contract (breach of confidentiality agreemen t and breach of oral contract) and tort against Defendants Total E&P USA, Inc. (hereinafter “Total”) and Pool Well Services, Co. a/k/a Nabors Well Services (h ereinafter “Pool”). (C.R. 1: 64-65). The jury in the first trial found in favo r of Mo-Vac on each of its claims against both Defendants. ( Id. ). The trial court then entered a Final Judgment finding in favor of Mo-Vac on each of its claims, and finding that Total and Pool were jointly and severally liable for attorneys’ fees to Mo-Vac in the amount of $433,912.50. ( Id. ). The attorneys’ fees rendered agai nst Total and Pool were awarded in connection with Mo-Vac’s contract claims of breach of confidentiality agreement and breach of oral contract. ( See Supp. C.R. 1: 68-69). Total and Pool appealed the jury’s findings. ( See Supp. C.R. 1: 59).Page 3 of 33 

### On August 23, 2012, this Court of A ppeals issued its Memorandum Opinion in which it reversed the jury’s decision on each of Mo-Vac’s cl aims against Total and Pool, except for breach of confiden tiality agreement against Total, and rendered a take-nothing judgm ent against Mo-Vac on each of its claim other than breach of confidentiality agreement agains t Total. (Supp. C.R. 1: 73-74). The Court of Appeals affirmed the lower court’s award of $100,000 for Mo-Vac’s breach of confidentiality claim. (Supp. C.R. 1: 73). Rather than uphold the attorneys’ fees already awar ded to Mo-Vac, the Court of Appeals instead reversed the award of $433,912.50 in attorneys’ f ees (for which Total and Pool had been found jointly and severally liable by the lo wer court), and rema nded the case back to the trial court to determine a new award of attorneys’ fees in connection with the sole remaining claim against the sole remaining defendant. ( Id. ). Despite this clear reversal by the Court of Appeals of the original award of attorneys’ fees (which had been rendered against both Total a nd Pool in joint and several liability), Mo-Vac ignored the C ourt of Appeals directive on remand and instead attempted to enforce the or iginal award in its entirety. ( See Supp. C.R. 1: 73, and C.R. 1: 56-71). Specifically, Mo-Vac filed its Motion to Determine Attorneys’ Fees wherein it requested that th e trial court award attorneys’ fees in the same amount that was originally aw arded against both Defendants and wasPage 4 of 33 

### reversed on appeal. ( See C.R. 1: 56-58). Recognizing that a trial was necessary in order to comply with the Court of App eals’ order of remand on the issue of attorneys’ fees, on October 11, 2013, Tota l requested that the trial court set a docket control conference a nd 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 tria l in this matter. (C.R. 1: 87). Despite the fact that the only issue involved in this case was the amount of attorneys’ fees accrued by Mo-Vac in conn ection with its breach of confidentiality agreement claim, counsel for Mo-Vac called to the witness stand Mr. Edmundo Ramirez (hereinafter “Mr. Ramirez”), counsel for Total, and questioned him regarding the expert witness testimony he gave in an entirely different case as to the reasonable and necessary attorneys’ fees in that specific case. ( See R.R. 5: 44 54). Total’s counsel objected to the line of questioning on the grounds that it was irrelevant as Mr. Ramirez was not offering e xpert 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 overru led 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 (her einafter “Mr. Martinez”), Mo-Vac’s lead counsel at the prior trial, to testif y as an expert on atto rneys’ fees and toPage 5 of 33 

### explain the attorneys’ fees incurred in this case. (R.R. 5: 97-225). During his trial testimony, Mr. Martinez did not set forth the specific tasks and time incurred in connection with the sole surviving cause of action, breach of confidentiality agreement against Total. Instead, Mr. Martinez relied on a compilation (that was not created contemporaneously) from whic h he generalized that 90% of the time recorded could be attributed to th e breach of confiden tiality 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 expe rt witness and the facts of this case. ( See R.R. 6: 22, line 2—24, line 7, a nd R.R. 6: 27, line 24—29, line 6). After hearing arguments and expert te stimony from both sides, the trial court submitted this cause to the jury. The jury returned a verdict for $370,375 in attorneys’ fees, along with $50,000 in c onditional appellate fees. (C.R. 1: 105- 110; App. Ex. 1). The trial court then entered a Final Judg ment in the amounts awarded by the jury. (C.R. 1: 113-115; App. Ex. 2). Total filed a Motion for New Trial, which was ultimately denied by the trial court. (C.R. 1: 116-129; 191). The instant appeal followed. ( See C.R. 1: 192-194).Page 6 of 33 

### SUMMARY OF THE ARGUMENT The trial court erred in allowing Mo -Vac’s counsel to question Mr. Ramirez regarding the details of the expert opinion he offered in a separate case, wholly unrelated to the one at bar. The evidence Mo-Vac’s counsel sought to and did in fact illicit through improper impeachment on direct exam was inadmissible, highly prejudicial, contained no probative value, was irrelevant, and its admission caused the rendition of an improper judgment. The trial court further erred by uphol ding the jury’s verdict because the jury’s verdict was not supported by suffic ient evidence and was grossly excessive as a matter of law. Mo-Vac’s counsel failed to provide contemporaneous time records, itemized records, bills, or a ny other documentary evidence showing the specific amount of time and work perfor med in connection with Mo-Vac’s sole surviving cause of action for breach of c onfidentiality agreemen t. The evidence presented by Mo-Vac consisted of generalized summaries prepared after the fact and failed to differentiate the specific amount of time sp ent on the only claim at issue (breach of confidentiality agreemen t against the only remaining Defendant) from the other claims presented at tr ial against both Defe ndants which were subsequently dismissed. As such, ther e was insufficient evidence to support the jury’s verdict. Moreover, the amount of attorneys’ fees ultimately awarded by thePage 7 of 33 

### jury was grossly excessive compensati on for the sole claim of breach of confidentiality agreement. ARGUMENT
I. By Allowing Mo-Vac’s Counsel to Question Ed mundo 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 Tria l Court Admitted Evidence that Was Completely Irrelevant, Inadmissible, Served No Other Purpose than to Confuse and Mislead the Jury, and Was Highly Prejudicial A. Mo-Vac’s Line of Questioning Regarding the Expert Opinion of Edmundo Ramirez Rendered in a Co mpletely Unrelated Case Was Irrelevant At trial, Mo-Vac called Edmundo Ramirez (hereinafter “Mr. Ramirez”), lead trial counsel for Total, as its first witne ss. Mo-Vac had design ated Mr. Ramirez as an expert on attorneys’ fees, despite havi ng no valid basis for doing so. As lead counsel for Total, Mr. Ramir ez could not have been expect ed to serve as an expert on behalf of Mo-Vac, yet Mo-Vac designated him as an expert on the subject matter of “the reasonableness of attorney s [sic] fees.” (C.R. 1: 143-145). Nowhere in Mo-Vac’s designation did it sp ecify that it was cross-designating Mr. Ramirez. Instead, Mo-Vac’s designation indicates that it is designating Mr. Ramirez as its own expert, wholly separate from any designation on behalf of Total, without any basis for doing so. Clearly, this shows Mo-Vac’s intent toPage 8 of 33 

### ensure that Mr. Ramirez was put on th e stand no matter what. Mo-Vac was not interested in any actual expert opinion by Mr. Ramirez in this case, but instead wanted to question him regarding his te stimony in a previous, wholly unrelated

case. In its Appellee’s Brief to this Court, Mo-Vac misconstrues Total’s argument regarding Duininck Bros. v. Ho we Precast, Inc. , No. 4:06-CV-441, 2008 WL 4411641 (E.D. Tex. Sept. 23, 2008). Total cites to Duininck for the proposition that fees charged by another attorney or fi rm in another specifi c case are irrelevant for the purposes of determining the fee customarily charged in the locality for similar legal services, one of the eight Arthur Andersen factors applicable in this

case. 1 

### Specifically, the court in Duininck stated the following:

1 The parties agreed that the factor test set forth in Arthur Andersen & Co. v. Perry Equip. Corp. for determining reasonable attorneys’ fees was the applicable standard for the jury to use in this case. (R.R. 5: 17, lines 7-12). Specifically, Arthur Andersen sets forth the following eight factors that a factfinder shoul d consider when determining the reasonablene ss of a fee: 1. the time and labor required, the novelty and difficulty of the questions involved, and the skill required to perfor m the legal service properly; 2. the likelihood ... that the acceptance of th e 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 profe ssional relationship with the client; 7. the experience, reputatio n, and ability of the lawyer or lawyers performing the services; and 8. whether the fee is fixed or contingent on results ob tained or uncertainty of collection before the legal services have been rendered.Page 9 of 33 

### Moreover, what a single law firm charges for a particular set of services and its choice of tactics in representing a given client are issues decidedly distinct from deciding what constitutes a customary fee. The third Land Rover factor is plainly aimed at a compos ite of legal fees charged for a given service. 2 

### Thus, focusing on one law firm's billing practices is unhelpful in determining what is “customary.” The thrust of this lawsuit is whether Duininck Brothers' fees, not those ge nerated by Howe Precast, fall within the range of reason. Duininck Bros. , No. 4:06-CV-441, 2008 WL 4411641, at *3. The same logic used in Duininck Bros. regarding opposing counsel’s attorneys’ fees may be applied to the amount of attorneys’ fees determined to be reasonable and necessary in a specific, who lly unrelated case. Such an isolated instance cannot be used to somehow speak to reasonable and necessary attorneys’ fees awarded for breach of contract clai ms generally. However, this is exactly what Mo-Vac sought to accomplish by qu estioning Mr. Ramirez about the opinion he rendered in the specific case of Editorial Caballero, S.A. de C.V. v. Playboy Enterprises, Inc. (hereinafter “the Playboy case”). By continuously referring to the attorneys’ fee opinion in the Playboy case and discussing the alleged factual similarities between Playboy and the case at bar, Mo-V ac’s counsel essentially planted within the jury the idea of “if an attorneys’ f ee award substantially greater 945 S.W.2d 812, 818 (Tex. 1997). 2 The court in Duininck Bros. cites to the factors for determining attorneys’ fees set forth by the Texas Supreme Court in Land Rover U.K., Ltd. v. Hinojosa , 210 S.W.3d 604, 607 (Tex. 2006). However, these factors are identical to the factors for determining attorneys’ fees set forth by the Texas Supreme Court in its earlier opinion of Arthur Andersen & Co. v. Perry Equip. Corp. , 945 S.W.2d 812, 818 (Tex. 1997), relied on by the parties in the instant case.Page 10 of 33 

### than the amount of damages was reasonable there, why should it not be reasonable here.” As set forth above, Mo-Vac had no valid basis for calling Mr. Ramirez as an expert on attorneys’ fees other than to in troduce this irrelevant testimony having no bearing on the issue of reasonable and necessary attorneys’ fees in the case at bar. Mo-Vac claims that such testimony was in fact relevant as impeachment on crossexamination. However, Mo-Vac’s argum ent regarding cross-examination fails because Mr. Ramirez had not provided any opinion or testimony in this case on which he could be cross-examined. The general case law addressing crossexamination, as well as the cases cite d by Mo-Vac in its Brief all contemplate situations addressing cro ss-examination of a witness who has provided trial or deposition testimony. See generally Harrison v. Texas Employers Ins. Ass’n , 747 S.W.2d 494, 497-498 (Tex.App.—B eaumont 1988, writ denied); Hogue v. Kroger Store No. 107 , 875 S.W.2d 477, 479-480 (Tex.A pp.—Houston [1st Dist.] 1994, writ denied); JLG Trucking, LLC v. Garza , 466 S.W.3d 157, 160-162 (Tex. 2015). Mo-Vac fails to cite to any case law addr essing the specific situation presented here where the expert witness is cross examined without having provided any trial or deposition testimony as an expert in the case.Page 11 of 33 

### Mo-Vac cites to Owens-Corning Fiberglas Corp. v. Malone for the proposition that a party may call his opponent ’s expert witness prior to his direct testimony for the purpose of impeaching credibility. See 916 S.W.2d 551, 567 (Tex.App.—Houston [1st Dist.] 1996, aff’don other grounds, 972 S.W.2d 35 (Tex. 1998). However, the facts presented in Owens-Corning are wholly distinguishable from the case at bar. Specifically, in Owens-Corning , the defendant had designated Dr. Kerby (who regular ly served as an expert for the defendant in cases throughout the country) as its expert witn ess and announced its intention to call Dr. Kerby as an expert during its case in chief at trial. See id. , at 566-567. The plaintiffs in Owens-Corning designated Dr. Kerby as a fact witness and presented his deposition testimony at trial during their case in chief. See id. , at 566. After the plaintiffs presented Dr. Kerby’s de position testimony, the defendant abandoned its plan to call him to the stand, and argue d on appeal that the plaintiffs should not have been able to call Dr. Kerby during th eir case in chief for the sole purpose of attacking his credibility. See id. , at 567. The appellate court overruled the defendant’s point of error in this regard. Id. Accordingly, in Owens-Corning , Dr. Kerby had provided deposition testimony from which the plaintiffs were ab le to impeach his credibility. These facts are wholly distinguishable from th e case at bar where Mr. Ramirez had notPage 12 of 33 

### provided any deposition or trial testimony as an expert providing an expert opinion in this case. In this case, there was no prior expert opinion upon which Mo-Vac could cross-examin e Mr. Ramirez. B. Admission of Mr. Ramirez’s Tes timony Regarding his Opinion of Reasonable Attorneys’ Fees in a Wh olly Separate and Unrelated Case Was Not Harmless Error As discussed in detail above, the tr ial court erred in allowing Mo-Vac’s improper impeachment of Mr. Ramirez on an opinion he offered inanother, wholly separate case where Mr. Ramirez had not provided any prior expert opiniontestimony in this case upon which he could be cross-examined. Contrary to MoVac’s argument, this admission of testim ony was in no way harmless error. MoVac points to the fact that testimony regarding this same Playboy case by Total’s expert, Ray Thomas, was admitted without objecti on. However, Mo-Vac’s questioning of Mr. Thomas regarding th e Playboy case is an entirely separate matter than similar questioning of Mr. Ramirez. With regard to Mr. Thomas, he was merely questioned regarding his opinion of the amount of attorneys’ fees awarde d in the Playboy case, and how that case differs from the case at bar. Respec ting Mr. Ramirez, his questioning was very different because he was directly invol ved in the Playboy case and provided the expert opinion. In the case at bar, Mr. Ramirez was not serving as an expert, butPage 13 of 33 

### instead was serving as lead trial counsel for Total. However, Mo-Vac’s counsel was able to undermine Mr. Ramirez’s cred ibility in the instan t case and confuse and mislead the jury by insinuating that the same opinion personally given by Mr. Ramirez in another case should apply in th e instant case. The fact that Mo-Vac intended to question Mr. Ramirez on the stand no matter what, is emphasized by Mo-Vac’s own designation of Mr. Ramir ez as an expert, separate from any designation of by Total. C. Admission of Mo-Vac’s Question ing of Mr. Ramirez Regarding the Separate, Unrelated Playboy Case Was Unfairly Prejudicial As discussed in detail above, questi oning regarding Mr. Ramirez’s expert opinion rendered in the Playboy case, a case entirely unrelat ed to the one at bar and involving its own set of facts, was comp letely irrelevant. However, assuming arguendo that such testimony was relevant , it still should have been excluded because the prejudicial nature of such testimony outweighed any probative value it may have had. Mo-Vac’s questioning of Mr. Ramirez, Total’s lead trial counsel, regarding the unrelated and separate Playboy case was clearly designe d to prejudice the jury against Mr. Ramirez and make the jury question Mr. Ramirez’s credibility as Total’s lead counsel. Under Texas Rule of Evidence 403, “[t]he court may excludePage 14 of 33 

### relevant evidence if its probative value is substantially outweighed by a danger of ... unfair prejudice.” Tex. R. Evid. 403. Through Mo-Vac’s questioning, the ju ry heard from Mr. Ramirez that he had offered an expert opinion in the Pla yboy case (completely unrelated to the case at bar) that the attorneys’ fees awar d should be greater than the amount of damages awarded, under the specific facts of that case. This was clearly designed to prejudice the jury against Mr. Ramirez, as lead counsel for Total, and call into question his credibility as an advocate for Total. Mo-Vac was able to introduce to the jury that “if an amount of attorneys’ fees greater than the amount of damages was okay in that case (as Mr. Ramirez hims elf opined), then it should be okay here in this case.” Mo-Vac argues that even if such te stimony was prejudicial, its admission was harmless because it was cumulative of other testimony regarding the Playboy case by Mr. Thomas. However, as disc ussed above, Mr. Thom as’s testimony was completely different from Mr. Ramir ez’s testimony on the Playboy case. Mr. Thomas was simply asked his opinions on the unrelated case as an expert on attorneys’ fees. In contrast, Mr. Ramirez was asked directly about the opinion he had rendered in the unrelated case solely for the purpose of confusing the jury and calling into doubt Mr. credibility as an advocate in this case.Page 15 of 33 

### II. The Amount of Attorn eys’ 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 Presente d at Trial Was Insufficient to Support the Award of Attorneys’ Fees As set forth at length in Total’s A ppellant’s Brief, Mo-Vac’s compilation of work performed submitted at trial and th e expert testimony of Mr. Martinez, counsel for Mo-Vac, were insufficient to support the jury’s aw ard of attorneys’ fees in this case. As the Texas Supreme Court reasoned in El Apple I, Ltd. v. Olivas in connection with the lodestar method for determining attorneys’ fees, “attorneys should document th eir time much as they would for their own clients, that is, contemporaneous billing records or other documentation recorded reasonably close to the time when the workis performed.” 370 S.W.3d 757, 763 (Tex. 2012) (finding that the evidence was insufficien t to support the award of attorneys’ fees where the attorneys based their time es timates on generalities such as the amount of discovery in the case, the number of pleadings filed, the number of witnesses questioned, and the length of the trial, and the court could not discern from the evidence how many hours each of the tasks required and whether that time was reasonable).Page 16 of 33 

### Here, it is undisputed that Mo-Vac’s counsel did not rely on contemporaneous time records kept for billing purposes. ( See R.R. 5: 192, lines 1- 8). Instead, Mr. Martinez relied on a “compilation” of work performed that was created after the fact and failed to specify which of Mo-Vac’s six original causes of action was being addressed for each of the particular tasks listed in the compilation. Specifically, th e compilation contains a laundry list of general tasks such as “researched legal issues,” “e-mail w ith client,” “drafted letter,” etc. that fail to provide any indication as to which of the causes of action the specific task pertains. (R.R. 10: Ex. 9). Moreove r, the documents supporting the tasks set forth in this compilation no longer exist. ( See R.R. 6: 71, line 16—72, line 4). The compilation of work performed re lied on by Mr. Martinez in his expert testimony is obviously flawed and unreliable. Specifically, as an example, there are days set forth in the compilation that list hours spent and hourly amounts incurred for three separate attorneys for attending trial on days when, in fact, the court was not in session. 3 

### Despite the clear flaws in the compilation, Mr. Martinez

3 Q. And what does the entry say? A. Well, which one do you want me to tell you about? For me? The ones for Mr. Valdez? or Mr. Garcia? Which ones do you want? Q. A, B and C. A. A, B, C. We start with 4/22. Q. Let’s stick to the da te we’re talking about, 4/24. A. Sorry. Hold on. There’s one for me of ten hours. Q. Okay. What does it say?Page 17 of 33 

### used this summary in support of his tria l testimony regarding the amount of work performed in connection with the br each of confidentiality claim. Under Texas case law, an attorney may tes tify as to the details of his work. City of Laredo v. Montano , 414 S.W.3d 731, 736 (Tex. 2013) (“in all but the simplest cases, the attorney would probably have to refer to some type of record or documentation to provide this informati on”). Here, Mo-Vac contends that the compilation relied on at trial, coupledwith the testimony provided by Mr.

A. Trial, A.R.M., which is me. Q. And that means you attended trial that day? A. Yes, sir. Q. And then next entry says trial for Mr. Garcia? A. Yes, Mr. Garcia. And then there’s one for Reymundo Valdez. Q. And they’re all di fferent 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. Ar e you sure that that record is reliable, and that you attended trial, a nd all three of the attorneys that you have on there attended trial that date? A. You know, if you have another document th at says that we weren’t in trial that date, then obviously th is 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 th e record does not reflect that we had trial that day. The Court took off those two days. A. I do remember that we were off some days. Okay. What other days do you have that show that besides those two? (R.R. 5: 208, line 4—209, line 20).Page 18 of 33 

### Martinez, constitute sufficient evidence as to the amount of attorneys’ fees incurred. However, rather than describing discrete tasks performed specifically in furtherance of the breach of confidentiali ty agreement claim, Mr. Martinez instead broadly testified that he attributes 90% of the work performed in this matter to the sole remaining claim for breach of confidentiality agreement. Mr. Martinez’s testimony did not meet the level of evidence deemed sufficient in City of Laredo v. Montano , 414 S.W.3d 731 (Tex . 2013). The issue before the Texas Supreme Court in City of Laredo was the reasonableness of the attorneys’ fees awarded to the home owne r under a fee shifting statute allowing for attorneys’ fees after an unsuccessful eminent domain suit brought by the City. Id. , at 732-733. In City of Laredo , the court analyzed the atto rneys’ fees claims by two attorneys, Richard Gonzalez a nd Adriana Benavides-Maddox. Id. , at 733. The court found that the testimony of A ttorney Benavides- Maddox regarding her unbilled trial work was some evidence on wh ich 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 provi ded by Attorney Gonzalez, who did not make any contemporan eous record of his time or prepare any bills orPage 19 of 33 

### invoices, was not evidence of a reasonable a ttorney fee where he testified that he spent a lot of time getting ready for the la wsuit, conducted a lot of legal research, visited the premises many, many times, and spent countless hours on motions and depositions. See id. In its Appellee’s Brief, Mo-Vac contends that it presented more evidence at trial to support its attorneys’ fees than what the court deemed sufficient in City of Laredo as to Attorney Benav idez-Maddox. (Mo-Vac’s Appellees’ Brief, at pg. 16). However, Mo-Vac ignores the fact th at, contrary to the case at bar, City of Laredo involved only one claim (eminent domain), and all the attorneys’ work performed was necessarily in connection with this cl aim for which attorneys’ fees could be awarded. As such, Attorney Benavidez- Maddox did not need to get into the specificity required here and segregat e the all the work she performed by individual claim. Contrary to Mo-Vac’s argument, the testimony provided by Mr. Martinez in this case is in fact similar to that of Attorney Gonzalez in City of Laredo , whose testimony was found insufficient. Specifi cally, Attorney Gon zalez admitted that he had no bill or time reco rds, “but pointed to the ‘thousands and thousands and thousands of pages that we re accumulated in this cas e’ as evidence of his time investment.” Id. , 414 S.W.3d 731, 735 (T ex. 2013). Similarly, here, when askedPage 20 of 33 

### during his trial testimony what work he pe rformed in connection with the breach of confidentiality claim, Mo-Vac’s counsel ba sically testified that he had to sift through thousands of pages within boxes of documents in order to piece together the evidence to support the breach of confidentiality agreement. ( See R.R. 5: 150, line 23—154, line 3). While Mr. Martinez does have a compila tion of work performed, it does not specify which tasks were performed in c onnection with which causes of action. Mo-Vac asserts that an attorn ey’s opinion that he spent a particular percentage of time on the claim for which attorneys’ fees are recoverable is generally sufficient to prove segregation. (Mo-Vac’s A ppellee’s Brief, at pg. 18, n.2 (citing Tony Gullo Motors , 212 S.W.3d at 314, n.83)). Howeve r, here, Mr. Martinez takes his compilation (created after the fact) and attributes virtually all of his time to the single breach of confidentiality agreemen t claim. Breach of confidentiality agreement was one of six claims alleged at the first trial against two separate defendants, and one of two breach of contract claims alleged against Total. MoVac would have been able to recover attorn eys’ fees for both the breach of oral contract as well as breach of confidentiality agreement, had the Court of Appeals not dismissed the claim for breach of oral contract.Page 21 of 33 

### Further, Mo-Vac misrepresents the tria l testimony of Ray Thomas, Total’s expert on attorneys’ fees. Specifically, Mo-Vac claims that Mr. Thomas did not offer any contrary opinions about the nu mber of hours that were necessary to prosecute Mo-Vac’s claim for breach of th e confidentiality agreement, and sets forth the following testimony: Q. Okay. Let’s talk about the second part of the calculation. And that is the hours that were necessary. Do you have an opinion as to how many hours were necessary? Now, let’s just – in general. Instead of breaking it down, how many hours fo r Adrian; how much for me? But how many hours work was necessary to prosecute the breach of confidentiality claim? Do you ha ve an opinion in that regard?
A. No. Q. No opinion?
A. No. ( See Mo-Vac’s Appellee’s Brief, at pg. 19 (citing R.R. 5: 80, lines 7-18)). Notably, Mo-Vac neglects to include Mr. Thomas’ testimony continued on the next page of the trial transcript, wherein he do es in fact express an opinion as to the second part of the analysis, the amount of hours necessary to prosecute the claim. Specifically, Mr. Thomas testified as follows: Q. The first step is you take a reas onable hourly rate, times the number of hours that were necessary to advance, prosecute the particular claim, gives you a dollar amount. That’s step one. Is that fair?Page 22 of 33 

### A. Yes. Q. And then step two is making an adjustment either up or down, based on certain particulars of the case?
A. Yes Q. Okay. All right. And you’ve given us – only opinions you’re offering here today is the first part, the hourly rate, correct? A. No. Q. Did you have some opinions after all on how many hours were necessary to prosecute the breach of the confidentiality claim? A. I have opinions about that pa rt of the analysis, but not the way you asked me the question. Q. Well, I will tell you what. Tell us what those opinions are? A. All right. In order to determine what the necessary hours are, it is important that contemporaneous time records be kept because. Otherwise, after a long period of tim e in which it takes to prepare the case for trial, and then in this particular case, the amount of time that it takes to actually try the case, you know, how are we going to conduct a meaningful review of the work that was done to see whether it was necessary, or not. And so the law says that we’ve got to keep or certain way that we should keep it is important to keep contemporaneous time records. Th at means we make a little billing slip saying on this day, that Laur a Thomas performed these tasks, you know, we reviewed the deposition, we prepared for hearing, we attended a hearing, we did this or that, and this is how much time for that day. If I have a paralegal wo rking, my paralegal Lisa Shawn’s been with me 19 years. She prepar ed a time slip for the work she did that day. And then all of that is prepared and kept. So that in order for someone to be able to review that and determine whether it was necessary or not, we’ve got a r ecord to look at. We havePage 23 of 33 

### documentation. And in this case, we don’t have contemporaneous time records. We don’t have any tim e slips. We don’t have what Mr. Martinez said that he did. What he did was he created this summary after the fact. And I think he said that he based it off e-mails that he had, but he doesn’t have them a nymore. And so there’s no way for me to conduct a meaningful review to see whether these hours were necessary, or not. I do have the su mmary that he prepared, admittedly after the fact. But that summary is not detailed. A nd in many of the time entries it doesn’t even say who the attorney was that was performing the task. And so the docum entation to make that review is not available to me. And that’s why I cannot give you an opinion on which hours were necessary, how ma ny hours were necessary, or not. I can tell you that this was a huge cas e as you said. Many witnesses. 600 Exhibits. Four thousand pages of a very long trial, you know, six weeks of trial including pretrial. But for my review of the trial record, a small part of that related to the breach of confidentiality. I know that as Mr. Ramirez said, you asked for $10 million on the breach of the oral ag reement and fraud. And according to the jury $100,000 is related to the Confidentiality Agreement, which is obviously a small part of the over all case. (R.R. 5: 81, line 10—pg. 84, line 1) (emphasis added). For the reasons set forth above, neither the compilation of time spent (which sets forth general tasks without specifyi ng which cause of action they apply to), nor the testimony of Mo-Vac’s counsel (attr ibuting essentially all of the work performed to the breach of confidentiality claim) are sufficient evidence to support the award of atto rneys’ fees.Page 24 of 33 

### B. The Award of Attorneys’ Fees for the Sole Surviving Claim of Breach of Confidentiality Agreement Was Grossl y Excessive as a Matter of Law The $370,375 in attorneys’ fees awarded to Mo-Vac is grossly disproportionate to the $100,000 in damages recovered by Mo-Vac in connection with its sole surviving claim of breach of confidentiality agreement against the sole surviving Defendant in this matter. Mo-Vac misrepresents Total’s use of Smith v. Patrick W.Y. Tam Trust , 296 S.W.3d 545 (Tex. 2009). ( See Mo-Vac’s Appellee’s Brief, at pg. 22). Contrary to Mo-Vac’s contention, Total is not claiming that Tam Trust stands for the global proposition that attorneys’ fees can never exceed the amount of damages awarded. Rather, Total argues that the am ount of attorneys’ fees awarded here was unreasonable and grossly disproportionate, under the particular facts of this case. Total cites to Tam Trust to illustrate the importance of considering the amount involved and the results obtained in determinations of an award of attorneys’ fees. 296 S.W.3d545, 548 (Tex. 2009). In Tam Trust , the Texas Supreme Court found that even though the amount of attorneys’ fees was uncontested, the lower court erred in awar ding 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 CourtPage 25 of 33 

### stated “[b]ut the fee, though supp orted by uncontradicted testimony, was unreasonable in light of the amount involve d and the results obt ained, and in the absence of evidence that such fees we re warranted due circumstances unique to this case.” Id. Total does not deny that Tam Trus t involved a different situation in that the court in Tam Trust made the attorneys’ fees de termination, not the jury. However, Total contends that the same language regarding the importance of considering the amount involved and results ob tained as a factor in attorneys’ fees determinations still applie s to the case at bar. Mo-Vac again misrepresents Total’s us e of case law in its discussion of Wythe II Corp. v. Stone , 342 S.W.3d 96 (Tex.App.—Beau mont 2011, pet. denied) ( See Mo-Vac’s Appellee’s Brief, at pg. 22). Contrary to Mo-Vac’s assertion, Total does not cite to Wythe for the proposition that an a ttorneys’ fee that exceeds the amount recovered is, in and of itself, sufficient to overturn an award of attorneys’ fees. Instead, Total analogizes Wythe to the case at bar in that the jury in Wythe awarded attorneys’ fees that were gro ssly disproportionate and unreasonable based on the evidence presented and a misinterpretation of the Arthur Andersen factors. See id. , at 108. The court in Wythe found, after considering all of the Arthur Andersen factors, that the evidence in the case did not provide sufficientPage 26 of 33 

### justification for shifting the entire amount of the contingency f ee to the appellant because much of the time expended con cerned a mandamus proceeding in which the appellee was unsuccessful. Id. The case at bar is similar to Wythe in that the jury here was presented with confus ing and misleading evidence through MoVac’s questioning of Mr. Ramirez, and with irrelevant information pertaining to all the work performed by Mo-Vac for each of its original claims against both Defendants through the compilati on relied on by Mo-Vac’s counsel. One of the Arthur Andersen factors (the applicable factor test in the case at bar) used to determine the reasonableness of attorneys’ fees is the amount involved and the results obtained

. See Arthur Andersen & Co. , 945 S.W.2d at 818. Here, Mo-Vac originally sought to recover approximately $10 million for various claims asserted against several defe ndants. (R.R. 5: 196, lines 18-20). At the first trial in this cas e, Mo-Vac was awarded $750, 000 on all of its claims against Total, and $433,912.50 in attorneys’ fees (in joint and several liability with Pool). (C.R. 1: 64-65). After an appeal of the first trial, this Court of Appeals upheld only the $100,000 award for Mo-Vac’ s breach of confidentiality claim, dismissed all of Mo-Vac’s other claims against Total, and dismissed all of MoVac’s claims against Pool. (Supp. C.R. 1: 73-74). Th is ruling left Total as thePage 27 of 33 

### only remaining Defendant, and breach of confidentiality agreement as the only surviving claim. The Court of Appeals remanded this case to the trial court on the sole issue of reasonable and necessary attorneys’ fe es incurred in connection with the only remaining claim of breach of confidentiality agreement. Significantly, the trial court had previously awarded $433,912.50 in attorneys’ fees to Mo-Vac. The Court of Appeals could have chosen to affirm this award in upholding the lower court’s award of $100,000 for breach of c onfidentiality agreement. In fact, MoVac’s own calculations based on Mr. Martinez’s testimony support this amount of attorneys’ fees. 4 

### ( See Mo-Vac’s Appellee’s Brief, at pg. 27). However, by remanding this case for a determination of a new attorneys’ fees amount, the Court of Appeals clearly did not think the orig inal amount was reasonable for the sole surviving claim against the sole survivin g Defendant. While the amount ultimately awarded by the jury in the second trial of this case is less than the amount of attorneys’ fees awarded by the trial court, it is still grossly disproportionate to the amount recovered.

4 “Thus, the jury could have awarded as much [sic] $869,375 (1,738.75 hours at $500/hour) or $436,687.50 (1,738.75 hours at $250/hour) and as lo w as $30,000 (based on Mr. Thomas’ testimony). (Mo-Vac’s Appellee’s Brief, at pg. 27).Page 28 of 33 

### Mo-Vac places great emphasis on case law standing for the proposition that a disproportionately large amount of atto rneys’ fees in comparison to the amount of damages awarded does not in and of itse lf render the attorneys’ fees excessive. While Total does not disagree with this general proposition, in this case the attorneys’ fee award was grossly excessi ve based on the fact s involved, and no extenuating circumstances existed to jus tify such a disproportionate fee. In its Appellee’s Brief, Mo-Vac cites to a string of cases without providing any information as to the specific facts involved that rendered a disproportionate award of attorneys’ fees appropriate in those particular cases. (Mo-Vac’s Appellee’s Brief, at pg. 26). For example, in Young v. Sanchez , one of the cases cited by Mo-Vac, extenuating circumstances existed that supported an award of attorneys’ fees disproportionate to the amount of damages. No. 04-10-00845-CV, 2011 WL 4828021 (Tex. App. Oct. 12, 2011). Specifically, Young involved a violation of a settlement agreement between Young and Sanchez by Young. Young , 2011 WL 4828021, at *1. After two years had passed with no resolution of the disp ute, the Sanchezes filed an amended pleading in which they asserted a new counterclaim for breach of the settlement agreement. See id. , at *2. The Youngs did not file any pleading in response to the counterclaim. See id. Subsequently, the Sanchezes moved for a no-evidencePage 29 of 33 

### summary judgment on the Youngs' suit and for a traditional summary judgment on their counterclaim for the Youngs' breach of the settlement agreement and their request for attorney's fees. See id. Again, the Youngs did not respond. See id. Accordingly, the trial court granted summary judgment in favor of the Sanchezes, ordering that the Youngs take nothing by their suit and awarding the Sanchezes $907 in breach of contract damages and $9, 201.57 in attorney's fees, plus court

costs. See id. In upholding the award of attorneys’ fees on appeal, the court of appeals reasoned “[t]he fee award here is not ex cessive in view of the summary judgment record and the five-year period during wh ich the dispute continued after execution of the Settlement Agreement.” Id. , at *6. The court noted the special circumstances involved that supported th e disproportionate award of attorneys’ fees: Here, the summary judgment record sh ows the case was prolonged for five years after the Settlement Agreement, due in large part to the Youngs' objections and conduct that delayed and prevented th e Sanchezes' ability to fully comply with the Settlement Agreem ent. We hold the attorney's fees are not excessive in light of the prolo nged nature of the litigation, and are supported by the record. Id.Page 30 of 33 

### No such circumstances exist in the case at bar to warra nt the excessive amount of attorneys’ fees awar ded by the jury. As discussed in detail above, Mr. Martinez relied on a compilation created after the fact that summari zed the work performed in connection with all claims involved in this case, and did not sp ecify which tasks were performed in connection with which claims. Mr. Martinez essentially took all of the hours spent on the case and attributed 90% to breach of confidentiality agreement, the sole surviving claim after appeal . This testimony was directly contradicted by the expert testimony by Ray Thomas. As set fo rth above, this single claim was only a small part of a much larger trial in volving multiple claims against multiple defendants, and the amount awarded was grossly awarded and should be overturned. PRAYER Total respectfully prays that this Court: 1) Reverse the trial court’s Final Judgment signed on April 30, 2015 (C.R. 1: 113-115; App. Ex. 2) or dering 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 re presentation through appeal to the court of appeals, if one is taken;Page 31 of 33 

### c. $5,000.00 for future presentation at the petition for review stage in the Supreme Court of Texas, if the case comes before the Supreme Court of Texas; d. $12,000.00 for future presentation at the merits briefing stage in the Supreme Court of Texas, if the case comes before the Supreme Court of Texas; and e. $8,000.00 for future pres entation through oral argument and the completion of proceed ings 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 n ecessary attorneys’ fees in this matter, in accordance w ith the expert testimony of Total’s expert witness on attorneys’ fees, Ray Thomas; 6.) Alternatively, remand this case to the trial court for a new trial to determine the specific amount of work performed and hours spent on the sole surviving claim of breach of confidentiality agreement against Total; and 7.) All such other and further reli ef 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) 682-0820Page 32 of 33 

### By: /s/ Edmundo O. Ramirez EDMUNDO O. RAMIREZ State Bar No. 16501420 MINERVA I. ZAMORA State Bar No. 24037765 ATTORNEY FOR APPELLANT TOTAL E&P USA, INC.

CERTIFICATE OF COMPLIANCE There are 7,263 words included in the Appellant’s Reply Brief.

CERTIFICATE OF SERVICE This is to certify that a true and correct copy of the foregoing has on November 13, 2015, been delivered, in the manner indicated below, to the following: Adrian R. Martinez Alberto T. Garcia, III GARCIA & MARTINEZ, L.L.P. 6900 N. 10 th

### St., Suite 2 McAllen, Texas 78504 Via CMRRR 7001 0320 0000 9475 0705

/s/ Edmundo O. Ramirez Edmundo O. RamirezPage 33 of 33 

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

# .. 1 '"1 

## '.

CAUSE NO. C-023-05-E 

### AI" 

### 16 2015

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.



# . '

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 ofjuror misconduct, and I might have to order a new trial and start this process over again. This wouldwaste 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~ 

# k

agree on every answer, those eleven jurors sign the verdict. If all twelve of you agree on 

### Lr 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 1 

## o who agree on every answer will sign the verdict.
Do you understand these instructions?

# .

.

. '

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.

# .



# . '

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**~** CCD lVerdict 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.

---------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. 

## vs. TOTAL E&P USA, INC. § § § § § IN THE DISTRICT COURT
275TH JUDICIAL DISTRICT 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 ofElectronically Filed 4/29/2015 3:15:08 PM Hidalgo County District Clerks Reviewed By: Joseph Gonzalez
Texas and Plaintiff Mo- Vac Services Company, Inc. is successful before the Texas Supreme Court; 4. $12,000.00 for future representation at the merits briefing stage in the Supreme Court of Texas, if the case comes before the Supreme Court of Texas and PlaintiffMo-Vac Services Company, Inc. is successful before the Texas Supreme Court;


## s. $8,ooo.oo for future representation through oral argument and the completion of proceedings in the Supreme Court of Texas, if the case

comes before the Supreme Court of Texas and Plaintiff Mo-Vac Services Company, Inc. is successful before the Texas Supreme Court; and 6

. post-judgment interest that begins to accrue on the dates described below
at an annual rate of 

### s%, and continues accruing until the date this judgment is satisfied:

a. on the amount in Paragraph 1, interest begins to accrue on the day this judgment is signed; b. on the amount in Paragraph 2, interest begins to accrue on the date the Court of Appeals issues its final judgment;

c. on the amounts in Paragraph 3-5, interest begins to accrue on the date the Supreme Court of Texas issues its final judgment. This judgment is final, disposes of all claims and all parties, and is appealable. The Court orders execution to issue for this judgment.

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

30th