No. 13-15-00348-CV 

In the Court of Appeals for the Thirteenth Court of Appeals District 

Corpus Christi, Texas 

TOTAL E&P USA, INC. 

Appellant, 

v. 

MO-VAC SERVICES COMPANY, INC. 

Appellee. 

ON APPEAL FROM THE 275TH JUDICIAL DISTRICT COURT, 

HIDALGO COUNTY, TEXAS 

Trial Court Case Number C-023-05-E 

REPLY BRIEF OF APPELLANT TOTAL E&P USA, INC. 

ELLIS, KOENEKE & RAMIREZ, L.L.P. 

Edmundo O. Ramirez 

State Bar No. 16501420 

Email: eor@ekrattorneys.com 

Minerva I. Zamora 

State Bar No. 24037765 

Email: miz@ekrattorneys.com 

1101 Chicago Ave. 

McAllen, Texas 78501 

Telephone: (956) 682-2440 

Facsimile: (956) 682-0820 

Counsel for Appellant Total E&P USA, Inc. 

Oral Argument Requested 

ACCEPTED

13-15-00348-CV

THIRTEENTH COURT OF APPEALS

CORPUS CHRISTI, TEXAS

11/13/2015 1:09:31 PM

Dorian E. Ramirez

CLERK

 FILED IN 13th COURT OF APPEALS CORPUS CHRISTI/EDINBURG, TEXAS 11/13/2015 1:09:31 PM DORIAN E. RAMIREZ Clerk
ii 

TABLE OF CONTENTS

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

INDEX OF AUTHORITIES ..................................................................................... iv 

STATEMENT ON ORAL ARGUMENT ................................................................. v 

ISSUES PRESENTED ............................................................................................... v 

I. The trial court abused its discretion by allowing Mo-Vac’s counsel to 

introduce evidence that was irrelevant, inadmissible, and highly prejudicial 

through impeachment on direct examination of Edmundo Ramirez, who was 

not offering any expert testimony in this matter, and such admission of 

evidence was calculated to cause and probably did cause the rendition of an 

improper judgment ........................................................................................... v 

II. The trial court abused its discretion by entering a final judgment on the 

jury’s verdict because the jury’s verdict was not supported by sufficient 

evidence and was grossly excessive ................................................................ 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 Offering any Expert Opinion in this 

Case) Regarding the Expert Testimony he Gave on Attorneys’ Fees in a 

Wholly Unrelated Matter, the Trial Court Admitted Evidence that Was 

Completely Irrelevant, Inadmissible, Served No Other Purpose than to 

Confuse and Mislead the Jury, and Was Highly Prejudicial ...................... 7 

A. Mo-Vac’s Line of Questioning Regarding the Expert Opinion of 

Edmundo Ramirez Rendered in a Completely Unrelated Case Was 

Irrelevant ............................................................................................... 7 
iii 

B. Admission of Mr. Ramirez’s Testimony Regarding his Opinion of 

Reasonable Attorneys’ Fees in a Wholly Separate and Unrelated Case 

Was Not Harmless Error ..................................................................... 12 

C. Admission of Mo-Vac’s Questioning of Mr. Ramirez Regarding the 

Separate, Unrelated Playboy Case Was Unfairly Prejudicial ............. 13 

II. The Amount of Attorneys’ Fees Awarded by the Jury and Entered in the 

Court’s Final Judgment Was Not Supported by Sufficient Evidence and 

Was Grossly Excessive as a Matter of Law ............................................. 15 

A. The Evidence Presented at Trial Was Insufficient to Support the 

Award of Attorneys’ Fees ................................................................... 15 

B. The Award of Attorneys’ Fees for the Sole Surviving Claim of Breach 

of Confidentiality Agreement Was Grossly Excessive as a Matter of 

Law ...................................................................................................... 24 

PRAYER .................................................................................................................. 30 

CERTIFICATE OF COMPLIANCE ....................................................................... 32 

CERTIFICATE OF SERVICE ................................................................................ 32 

APPENDIX .............................................................................................................. 33
iv 

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 (Tex. 2012) .......................................... 15 

City of Laredo v. Montano, 414 S.W.3d 731 (Tex. 2013) ........................... 17, 18, 19 

Tony Gullo Motors, 212 S.W.3d .............................................................................. 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. Evid. 403 ..................................................................................................... 14
v 

STATEMENT ON ORAL ARGUMENT 

Appellant Total believes that oral argument would assist the Court in 

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

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

ISSUES PRESENTED

I. The trial court abused its discretion by allowing Mo-Vac’s counsel to 

introduce evidence that was irrelevant, inadmissible, and highly prejudicial 

through impeachment on direct examination of Edmundo Ramirez, who was 

not offering any expert testimony in this matter, and such admission of 

evidence was calculated to cause and did cause the rendition of an improper 

judgment. 

II. The trial court abused its discretion by entering a final judgment on the 

jury’s verdict because the jury’s verdict was not supported by sufficient 

evidence and was grossly excessive. 
No. 13-15-00348-CV 

In the Court of Appeals for the Thirteenth Court of Appeals District 

Corpus Christi, Texas 

TOTAL E&P USA, INC. 

Appellant, 

v. 

MO-VAC SERVICES COMPANY, INC. 

Appellee. 

ON APPEAL FROM THE 275TH JUDICIAL DISTRICT COURT, 

HIDALGO COUNTY, TEXAS 

Trial Court Case Number C-023-05-E 

REPLY BRIEF OF APPELLANT TOTAL E&P USA, INC. 

 TO THE HONRABLE JUSTICES OF THE COURT: 

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

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

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

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

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

Total. 
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 Services Company, Inc. (hereinafter “Mo-Vac”) for its 

representation on Mo-Vac’s sole surviving claim of breach of confidentiality 

agreement against the sole surviving Defendant, plus $50,000 in conditional 

appellate fees. This was the second jury verdict in this matter. The first was 

rendered after the case was tried on the merits on each of Mo-Vac’s claims in both 

contract (breach of confidentiality agreement and breach of oral contract) and tort 

against Defendants Total E&P USA, Inc. (hereinafter “Total”) and Pool Well 

Services, Co. a/k/a Nabors Well Services (hereinafter “Pool”). (C.R. 1: 64-65). 

The jury in the first trial found in favor of Mo-Vac on each of its claims against 

both Defendants. (Id.). The trial court then entered a Final Judgment finding in 

favor of Mo-Vac on each of its claims, and finding that Total and Pool were jointly 

and severally liable for attorneys’ fees to Mo-Vac in the amount of $433,912.50. 

(Id.). The attorneys’ fees rendered against Total and Pool were awarded in 

connection with Mo-Vac’s contract claims of breach of confidentiality agreement 

and breach of oral contract. (See Supp. C.R. 1: 68-69). Total and Pool appealed 

the jury’s findings. (See Supp. C.R. 1: 59). 
Page 3 of 33

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

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

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

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

breach of confidentiality agreement against Total. (Supp. C.R. 1: 73-74). The 

Court of Appeals affirmed the lower court’s award of $100,000 for Mo-Vac’s 

breach of confidentiality claim. (Supp. C.R. 1: 73). Rather than uphold the 

attorneys’ fees already awarded to Mo-Vac, the Court of Appeals instead reversed 

the award of $433,912.50 in attorneys’ fees (for which Total and Pool had been 

found jointly and severally liable by the lower court), and remanded the case back 

to the trial court to determine a new award of attorneys’ fees in connection with the 

sole remaining claim against the sole remaining defendant. (Id.). 

 Despite this clear reversal by the Court of Appeals of the original award of 

attorneys’ fees (which had been rendered against both Total and Pool in joint and 

several liability), Mo-Vac ignored the Court of Appeals directive on remand and 

instead attempted to enforce the original award in its entirety. (See Supp. C.R. 1: 

73, and C.R. 1: 56-71). Specifically, Mo-Vac filed its Motion to Determine 

Attorneys’ Fees wherein it requested that the trial court award attorneys’ fees in the 

same amount that was originally awarded against both Defendants and was 
Page 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 Appeals’ order of remand on the issue of 

attorneys’ fees, on October 11, 2013, Total requested that the trial court set a 

docket control conference and set a trial in this cause. (C.R. 1: 75-77). On 

January 27, 2015, the trial court issued an Order Re-Setting Trial Date, setting a 

trial date of April 13, 2015 for the second trial in this matter. (C.R. 1: 87). 

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

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

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

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

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

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

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

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

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

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

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

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

lead counsel at the prior trial, to testify as an expert on attorneys’ fees and to 
Page 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 which he generalized that 90% of the time 

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

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

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

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

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

 After hearing arguments and expert testimony from both sides, the trial court 

submitted this cause to the jury. The jury returned a verdict for $370,375 in 

attorneys’ fees, along with $50,000 in conditional appellate fees. (C.R. 1: 105-

110; App. Ex. 1). The trial court then entered a Final Judgment in the amounts 

awarded by the jury. (C.R. 1: 113-115; App. Ex. 2). Total filed a Motion for New 

Trial, which was ultimately denied by the trial court. (C.R. 1: 116-129; 191). The 

instant appeal followed. (See C.R. 1: 192-194). 
Page 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 upholding the jury’s verdict because the 

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

as a matter of law. Mo-Vac’s counsel failed to provide contemporaneous time 

records, itemized records, bills, or any other documentary evidence showing the 

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

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

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

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

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

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

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

jury’s verdict. Moreover, the amount of attorneys’ fees ultimately awarded by the 
Page 7 of 33

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

confidentiality agreement. 

ARGUMENT 

I. 

By Allowing Mo-Vac’s Counsel to Question Edmundo Ramirez 

(Who Repeatedly Stated that he Was Not Offering any Expert Opinion in this 

Case) Regarding the Expert Testimony he Gave on Attorneys’ Fees in a 

Wholly Unrelated Matter, the Trial Court Admitted Evidence that Was 

Completely Irrelevant, Inadmissible, Served No Other Purpose than to 

Confuse and Mislead the Jury, and Was Highly Prejudicial 

A. Mo-Vac’s Line of Questioning Regarding the Expert Opinion of 

Edmundo Ramirez Rendered in a Completely Unrelated Case Was 

Irrelevant 

 

At trial, Mo-Vac called Edmundo Ramirez (hereinafter “Mr. Ramirez”), lead 

trial counsel for Total, as its first witness. Mo-Vac had designated Mr. Ramirez as 

an expert on attorneys’ fees, despite having no valid basis for doing so. As lead 

counsel for Total, Mr. Ramirez could not have been expected to serve as an expert 

on behalf of Mo-Vac, yet Mo-Vac designated him as an expert on the subject 

matter of “the reasonableness of attorneys [sic] fees.” (C.R. 1: 143-145). 

Nowhere in Mo-Vac’s designation did it specify that it was cross-designating Mr. 

Ramirez. Instead, Mo-Vac’s designation indicates that it is designating Mr. 

Ramirez as its own expert, wholly separate from any designation on behalf of 

Total, without any basis for doing so. Clearly, this shows Mo-Vac’s intent to 
Page 8 of 33

ensure that Mr. Ramirez was put on the stand no matter what. Mo-Vac was not 

interested in any actual expert opinion by Mr. Ramirez in this case, but instead 

wanted to question him regarding his testimony in a previous, wholly unrelated 

case. 

 In its Appellee’s Brief to this Court, Mo-Vac misconstrues Total’s argument 

regarding Duininck Bros. v. Howe Precast, Inc., No. 4:06-CV-441, 2008 WL 

4411641 (E.D. Tex. Sept. 23, 2008). Total cites to Duininck for the proposition 

that fees charged by another attorney or firm in another specific case are irrelevant 

for the purposes of determining the fee customarily charged in the locality for 

similar legal services, one of the eight Arthur Andersen factors applicable in this 

case.

1

 Specifically, the court in Duininck stated the following: 

                                                            

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

for determining reasonable attorneys’ fees was the applicable standard for the jury to use in this 

case. (R.R. 5: 17, lines 7-12). Specifically, Arthur Andersen sets forth the following eight 

factors that a factfinder should consider when determining the reasonableness of a fee: 

1. the time and labor required, the novelty and difficulty of the questions involved, 

and the skill required to perform the legal service properly; 

2. the likelihood ... that the acceptance of the particular employment will preclude 

other employment by the lawyer; 

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

4. the amount involved and the results obtained; 

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

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

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

services; and 

8. whether the fee is fixed or contingent on results obtained or uncertainty of 

collection before the legal services have been rendered. 
Page 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 composite of legal fees charged for a given 

service. 2 Thus, focusing on one law firm's billing practices is unhelpful in 

determining what is “customary.” The thrust of this lawsuit is whether 

Duininck Brothers' fees, not those generated by Howe Precast, fall within 

the range of reason. 

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

The same logic used in Duininck Bros. regarding opposing counsel’s 

attorneys’ fees may be applied to the amount of attorneys’ fees determined to be 

reasonable and necessary in a specific, wholly unrelated case. Such an isolated 

instance cannot be used to somehow speak to reasonable and necessary attorneys’ 

fees awarded for breach of contract claims generally. However, this is exactly 

what Mo-Vac sought to accomplish by questioning Mr. Ramirez about the opinion 

he rendered in the specific case of Editorial Caballero, S.A. de C.V. v. Playboy 

Enterprises, Inc. (hereinafter “the Playboy case”). By continuously referring to the 

attorneys’ fee opinion in the Playboy case and discussing the alleged factual 

similarities between Playboy and the case at bar, Mo-Vac’s counsel essentially 

planted within the jury the idea of “if an attorneys’ fee award substantially greater 

                                                                                                                                                                                               

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

2 The court in Duininck Bros. cites to the factors for determining attorneys’ fees set forth by the 

Texas Supreme Court in Land Rover U.K., Ltd. v. Hinojosa, 210 S.W.3d 604, 607 (Tex. 2006). 

However, these factors are identical to the factors for determining attorneys’ fees set forth by the 

Texas Supreme Court in its earlier opinion of Arthur Andersen & Co. v. Perry Equip. Corp., 945 

S.W.2d 812, 818 (Tex. 1997), relied on by the parties in the instant case. 
Page 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 introduce this irrelevant testimony having no 

bearing on the issue of reasonable and necessary attorneys’ fees in the case at bar. 

Mo-Vac claims that such testimony was in fact relevant as impeachment on crossexamination. However, Mo-Vac’s argument regarding cross-examination fails 

because Mr. Ramirez had not provided any opinion or testimony in this case on 

which he could be cross-examined. The general case law addressing crossexamination, as well as the cases cited by Mo-Vac in its Brief all contemplate 

situations addressing cross-examination of a witness who has provided trial or 

deposition testimony. See generally Harrison v. Texas Employers Ins. Ass’n, 747 

S.W.2d 494, 497-498 (Tex.App.—Beaumont 1988, writ denied); Hogue v. Kroger 

Store No. 107, 875 S.W.2d 477, 479-480 (Tex.App.—Houston [1st Dist.] 1994, 

writ denied); JLG Trucking, LLC v. Garza, 466 S.W.3d 157, 160-162 (Tex. 2015). 

Mo-Vac fails to cite to any case law addressing the specific situation presented 

here where the expert witness is cross examined without having provided any trial 

or deposition testimony as an expert in the case. 
Page 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’d on other grounds, 972 S.W.2d 35 (Tex. 

1998). However, the facts presented in Owens-Corning are wholly distinguishable 

from the case at bar. Specifically, in Owens-Corning, the defendant had 

designated Dr. Kerby (who regularly served as an expert for the defendant in cases 

throughout the country) as its expert witness and announced its intention to call Dr. 

Kerby as an expert during its case in chief at trial. See id., at 566-567. The 

plaintiffs in Owens-Corning designated Dr. Kerby as a fact witness and presented 

his deposition testimony at trial during their case in chief. See id., at 566. After 

the plaintiffs presented Dr. Kerby’s deposition testimony, the defendant abandoned 

its plan to call him to the stand, and argued on appeal that the plaintiffs should not 

have been able to call Dr. Kerby during their case in chief for the sole purpose of 

attacking his credibility. See id., at 567. The appellate court overruled the 

defendant’s point of error in this regard. Id. 

Accordingly, in Owens-Corning, Dr. Kerby had provided deposition 

testimony from which the plaintiffs were able to impeach his credibility. These 

facts are wholly distinguishable from the case at bar where Mr. Ramirez had not 
Page 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-examine Mr. Ramirez. 

B. Admission of Mr. Ramirez’s Testimony Regarding his Opinion of 

Reasonable Attorneys’ Fees in a Wholly Separate and Unrelated Case 

Was Not Harmless Error 

 As discussed in detail above, the trial court erred in allowing Mo-Vac’s 

improper impeachment of Mr. Ramirez on an opinion he offered in another, wholly 

separate case where Mr. Ramirez had not provided any prior expert opinion 

testimony in this case upon which he could be cross-examined. Contrary to MoVac’s argument, this admission of testimony 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 objection. However, Mo-Vac’s 

questioning of Mr. Thomas regarding the Playboy case is an entirely separate 

matter than similar questioning of Mr. Ramirez. 

With regard to Mr. Thomas, he was merely questioned regarding his opinion 

of the amount of attorneys’ fees awarded in the Playboy case, and how that case 

differs from the case at bar. Respecting Mr. Ramirez, his questioning was very 

different because he was directly involved in the Playboy case and provided the 

expert opinion. In the case at bar, Mr. Ramirez was not serving as an expert, but 
Page 13 of 33

instead was serving as lead trial counsel for Total. However, Mo-Vac’s counsel 

was able to undermine Mr. Ramirez’s credibility in the instant case and confuse 

and mislead the jury by insinuating that the same opinion personally given by Mr. 

Ramirez in another case should apply in the instant case. The fact that Mo-Vac 

intended to question Mr. Ramirez on the stand no matter what, is emphasized by 

Mo-Vac’s own designation of Mr. Ramirez as an expert, separate from any 

designation of by Total. 

C. Admission of Mo-Vac’s Questioning of Mr. Ramirez Regarding the 

Separate, Unrelated Playboy Case Was Unfairly Prejudicial 

As discussed in detail above, questioning regarding Mr. Ramirez’s expert 

opinion rendered in the Playboy case, a case entirely unrelated to the one at bar and 

involving its own set of facts, was completely irrelevant. However, assuming 

arguendo that such testimony was relevant, it still should have been excluded 

because the prejudicial nature of such testimony outweighed any probative value it 

may have had. 

Mo-Vac’s questioning of Mr. Ramirez, Total’s lead trial counsel, regarding 

the unrelated and separate Playboy case was clearly designed to prejudice the jury 

against Mr. Ramirez and make the jury question Mr. Ramirez’s credibility as 

Total’s lead counsel. Under Texas Rule of Evidence 403, “[t]he court may exclude 
Page 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 jury heard from Mr. Ramirez that he 

had offered an expert opinion in the Playboy case (completely unrelated to the case 

at bar) that the attorneys’ fees award should be greater than the amount of 

damages awarded, under the specific facts of that case. This was clearly designed 

to prejudice the jury against Mr. Ramirez, as lead counsel for Total, and call into 

question his credibility as an advocate for Total. Mo-Vac was able to introduce to 

the jury that “if an amount of attorneys’ fees greater than the amount of damages 

was okay in that case (as Mr. Ramirez himself opined), then it should be okay here 

in this case.” 

Mo-Vac argues that even if such testimony was prejudicial, its admission 

was harmless because it was cumulative of other testimony regarding the Playboy 

case by Mr. Thomas. However, as discussed above, Mr. Thomas’s testimony was 

completely different from Mr. Ramirez’s testimony on the Playboy case. Mr. 

Thomas was simply asked his opinions on the unrelated case as an expert on 

attorneys’ fees. In contrast, Mr. Ramirez was asked directly about the opinion he 

had rendered in the unrelated case solely for the purpose of confusing the jury and 

calling into doubt Mr. credibility as an advocate in this case. 
Page 15 of 33

II. 

The Amount of Attorneys’ Fees Awarded by the Jury and 

Entered in the Court’s Final Judgment 

Was Not Supported by Sufficient Evidence and 

Was Grossly Excessive as a Matter of Law 

A. The Evidence Presented at Trial Was Insufficient to Support the Award 

of Attorneys’ Fees 

 As set forth at length in Total’s Appellant’s Brief, Mo-Vac’s compilation of 

work performed submitted at trial and the expert testimony of Mr. Martinez, 

counsel for Mo-Vac, were insufficient to support the jury’s award of attorneys’ 

fees in this case. As the Texas Supreme Court reasoned in El Apple I, Ltd. v. 

Olivas in connection with the lodestar method for determining attorneys’ fees, 

“attorneys should document their time much as they would for their own clients, 

that is, contemporaneous billing records or other documentation recorded 

reasonably close to the time when the work is performed.” 370 S.W.3d 757, 763 

(Tex. 2012) (finding that the evidence was insufficient to support the award of 

attorneys’ fees where the attorneys based their time estimates on generalities such 

as the amount of discovery in the case, the number of pleadings filed, the number 

of witnesses questioned, and the length of the trial, and the court could not discern 

from the evidence how many hours each of the tasks required and whether that 

time was reasonable). 
Page 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, the compilation contains a laundry list of general tasks 

such as “researched legal issues,” “e-mail with client,” “drafted letter,” etc. that fail 

to provide any indication as to which of the causes of action the specific task 

pertains. (R.R. 10: Ex. 9). Moreover, the documents supporting the tasks set 

forth in this compilation no longer exist. (See R.R. 6: 71, line 16—72, line 4). 

The compilation of work performed relied on by Mr. Martinez in his expert 

testimony is obviously flawed and unreliable. Specifically, as an example, there 

are days set forth in the compilation that list hours spent and hourly amounts 

incurred for three separate attorneys for attending trial on days when, in fact, the 

court was not in session.3

 Despite the clear flaws in the compilation, Mr. Martinez 

                                                            

3

 Q. And what does the entry say? 

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

or Mr. Garcia? Which ones do you want? 

 Q. A, B and C. 

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

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

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

 Q. Okay. What does it say? 
Page 17 of 33

used this summary in support of his trial testimony regarding the amount of work 

performed in connection with the breach of confidentiality claim. 

Under Texas case law, an attorney may testify as to the details of his work. 

City of Laredo v. Montano, 414 S.W.3d 731, 736 (Tex. 2013) (“in all but the 

simplest cases, the attorney would probably have to refer to some type of record or 

documentation to provide this information”). Here, Mo-Vac contends that the 

compilation relied on at trial, coupled with the testimony provided by Mr. 

                                                                                                                                                                                               

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

 Q. And that means you attended trial that day? 

 A. Yes, sir. 

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

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

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

 A. Yes, sir. 

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

trial? 

 A. Yeah, yes sir. 

 Q. And Mr. Garcia? 

 A. Yes, sir. 

 Q. Are you sure that’s correct? 

 A. Well, are you – 

Q. I’m asking the questions, Mr. Martinez. Are you sure that that record is reliable, 

and that you attended trial, and all three of the attorneys that you have on there 

attended trial that date? 

A. You know, if you have another document that says that we weren’t in trial that 

date, then obviously this is incorrect, sir. 

 Q. I have another document. 

A. Well then show it to me because it could be incorrect. I’m not going to mince 

words and dates with you. But is that the only dates that you’re – 

Q. I have the record. And the record does not reflect that we had trial that day. The 

Court took off those two days. 

A. I do remember that we were off some days. Okay. What other days do you have 

that show that besides those two? 

(R.R. 5: 208, line 4—209, line 20). 
Page 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 confidentiality agreement claim, Mr. Martinez instead 

broadly testified that he attributes 90% of the work performed in this matter to the 

sole remaining claim for breach of confidentiality agreement. 

Mr. Martinez’s testimony did not meet the level of evidence deemed 

sufficient in City of Laredo v. Montano, 414 S.W.3d 731 (Tex. 2013). The issue 

before the Texas Supreme Court in City of Laredo was the reasonableness of the 

attorneys’ fees awarded to the home owner under a fee shifting statute allowing for 

attorneys’ fees after an unsuccessful eminent domain suit brought by the City. Id., 

at 732-733. In City of Laredo, the court analyzed the attorneys’ fees claims by two 

attorneys, Richard Gonzalez and Adriana Benavides-Maddox. Id., at 733. The 

court found that the testimony of Attorney Benavides-Maddox regarding her 

unbilled trial work was some evidence on which to base an award of attorneys’ 

fees because it concerned contemporaneous or immediately completed work for 

which she had not had time to bill, and the billing inquiry involved 

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

in City of Laredo found that the testimony provided by Attorney Gonzalez, who 

did not make any contemporaneous record of his time or prepare any bills or 
Page 19 of 33

invoices, was not evidence of a reasonable attorney fee where he testified that he 

spent a lot of time getting ready for the lawsuit, conducted a lot of legal research, 

visited the premises many, many times, and spent countless hours on motions and 

depositions. See id. 

In its Appellee’s Brief, Mo-Vac contends that it presented more evidence at 

trial to support its attorneys’ fees than what the court deemed sufficient in City of 

Laredo as to Attorney Benavidez-Maddox. (Mo-Vac’s Appellees’ Brief, at pg. 16). 

However, Mo-Vac ignores the fact that, contrary to the case at bar, City of Laredo

involved only one claim (eminent domain), and all the attorneys’ work performed 

was necessarily in connection with this claim for which attorneys’ fees could be 

awarded. As such, Attorney Benavidez-Maddox did not need to get into the 

specificity required here and segregate the all the work she performed by 

individual claim. 

Contrary to Mo-Vac’s argument, the testimony provided by Mr. Martinez in 

this case is in fact similar to that of Attorney Gonzalez in City of Laredo, whose 

testimony was found insufficient. Specifically, Attorney Gonzalez admitted that 

he had no bill or time records, “but pointed to the ‘thousands and thousands and 

thousands of pages that were accumulated in this case’ as evidence of his time 

investment.” Id., 414 S.W.3d 731, 735 (Tex. 2013). Similarly, here, when asked 
Page 20 of 33

during his trial testimony what work he performed in connection with the breach of 

confidentiality claim, Mo-Vac’s counsel basically testified that he had to sift 

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

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

line 23—154, line 3). 

While Mr. Martinez does have a compilation of work performed, it does not 

specify which tasks were performed in connection with which causes of action. 

Mo-Vac asserts that an attorney’s opinion that he spent a particular percentage of 

time on the claim for which attorneys’ fees are recoverable is generally sufficient 

to prove segregation. (Mo-Vac’s Appellee’s Brief, at pg. 18, n.2 (citing Tony 

Gullo Motors, 212 S.W.3d at 314, n.83)). However, here, Mr. Martinez takes his 

compilation (created after the fact) and attributes virtually all of his time to the 

single breach of confidentiality agreement claim. Breach of confidentiality 

agreement was one of six claims alleged at the first trial against two separate 

defendants, and one of two breach of contract claims alleged against Total. MoVac would have been able to recover attorneys’ fees for both the breach of oral 

contract as well as breach of confidentiality agreement, had the Court of Appeals 

not dismissed the claim for breach of oral contract. 
Page 21 of 33

Further, Mo-Vac misrepresents the trial testimony of Ray Thomas, Total’s 

expert on attorneys’ fees. Specifically, Mo-Vac claims that Mr. Thomas did not 

offer any contrary opinions about the number of hours that were necessary to 

prosecute Mo-Vac’s claim for breach of the confidentiality agreement, and sets 

forth the following testimony: 

Q. Okay. Let’s talk about the second part of the calculation. And that is 

the hours that were necessary. Do you have an opinion as to how 

many hours were necessary? Now, let’s just – in general. Instead of 

breaking it down, how many hours for Adrian; how much for me? 

But how many hours work was necessary to prosecute the breach of 

confidentiality claim? Do you have an opinion in that regard? 

A. No. 

Q. No opinion? 

A. No. 

(See Mo-Vac’s Appellee’s Brief, at pg. 19 (citing R.R. 5: 80, lines 7-18)). 

Notably, Mo-Vac neglects to include Mr. Thomas’ testimony continued on the next 

page of the trial transcript, wherein he does in fact express an opinion as to the 

second part of the analysis, the amount of hours necessary to prosecute the claim. 

Specifically, Mr. Thomas testified as follows: 

Q. The first step is you take a reasonable hourly rate, times the number of 

hours that were necessary to advance, prosecute the particular claim, 

gives you a dollar amount. That’s step one. Is that fair? 
Page 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 part of the analysis, but not the way 

you asked me the question. 

Q. Well, I will tell you what. Tell us what those opinions are? 

A. All right. In order to determine what the necessary hours are, it is 

important that contemporaneous time records be kept because. 

Otherwise, after a long period of time in which it takes to prepare the 

case for trial, and then in this particular case, the amount of time that 

it takes to actually try the case, you know, how are we going to 

conduct a meaningful review of the work that was done to see whether 

it was necessary, or not. And so the law says that we’ve got to keep 

or certain way that we should keep it is important to keep 

contemporaneous time records. That means we make a little billing 

slip saying on this day, that Laura Thomas performed these tasks, you 

know, we reviewed the deposition, we prepared for hearing, we 

attended a hearing, we did this or that, and this is how much time for 

that day. If I have a paralegal working, my paralegal Lisa Shawn’s 

been with me 19 years. She prepared a time slip for the work she did 

that day. And then all of that is prepared and kept. So that in order 

for someone to be able to review that and determine whether it was 

necessary or not, we’ve got a record to look at. We have 
Page 23 of 33

documentation. And in this case, we don’t have contemporaneous 

time records. We don’t have any time slips. We don’t have what Mr. 

Martinez said that he did. What he did was he created this summary 

after the fact. And I think he said that he based it off e-mails that he 

had, but he doesn’t have them anymore. And so there’s no way for 

me to conduct a meaningful review to see whether these hours were 

necessary, or not. I do have the summary that he prepared, admittedly 

after the fact. But that summary is not detailed. And in many of the 

time entries it doesn’t even say who the attorney was that was 

performing the task. And so the documentation to make that review is 

not available to me. And that’s why I cannot give you an opinion on 

which hours were necessary, how many hours were necessary, or not. 

I can tell you that this was a huge case as you said. Many witnesses. 

600 Exhibits. Four thousand pages of a very long trial, you know, six 

weeks of trial including pretrial. But for my review of the trial 

record, a small part of that related to the breach of 

confidentiality. I know that as Mr. Ramirez said, you asked for $10 

million on the breach of the oral agreement and fraud. And according 

to the jury $100,000 is related to the Confidentiality Agreement, 

which is obviously a small part of the over all case. 

(R.R. 5: 81, line 10—pg. 84, line 1) (emphasis added). 

For the reasons set forth above, neither the compilation of time spent (which 

sets forth general tasks without specifying which cause of action they apply to), 

nor the testimony of Mo-Vac’s counsel (attributing essentially all of the work 

performed to the breach of confidentiality claim) are sufficient evidence to support 

the award of attorneys’ fees. 
Page 24 of 33

B. The Award of Attorneys’ Fees for the Sole Surviving Claim of Breach of 

Confidentiality Agreement Was Grossly Excessive as a Matter of Law 

The $370,375 in attorneys’ fees awarded to Mo-Vac is grossly 

disproportionate to the $100,000 in damages recovered by Mo-Vac in connection 

with its sole surviving claim of breach of confidentiality agreement against the sole 

surviving Defendant in this matter. 

 Mo-Vac misrepresents Total’s use of Smith v. Patrick W.Y. Tam Trust, 296 

S.W.3d 545 (Tex. 2009). (See Mo-Vac’s Appellee’s Brief, at pg. 22). 

Contrary to Mo-Vac’s contention, Total is not claiming that Tam Trust stands for 

the global proposition that attorneys’ fees can never exceed the amount of damages 

awarded. Rather, Total argues that the amount of attorneys’ fees awarded here was 

unreasonable and grossly disproportionate, under the particular facts of this case. 

Total cites to Tam Trust to illustrate the importance of considering the 

amount involved and the results obtained in determinations of an award of 

attorneys’ fees. 296 S.W.3d 545, 548 (Tex. 2009). In Tam Trust, the Texas 

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

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

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

reversing the lower court’s decision as to attorneys’ fees, the Texas Supreme Court 
Page 25 of 33

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

unreasonable in light of the amount involved and the results obtained, and in the 

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

this case.” Id. Total does not deny that Tam Trust involved a different situation in 

that the court in Tam Trust made the attorneys’ fees determination, not the jury. 

However, Total contends that the same language regarding the importance of 

considering the amount involved and results obtained as a factor in attorneys’ fees 

determinations still applies to the case at bar. 

 Mo-Vac again misrepresents Total’s use of case law in its discussion of 

Wythe II Corp. v. Stone, 342 S.W.3d 96 (Tex.App.—Beaumont 2011, pet. denied) 

(See Mo-Vac’s Appellee’s Brief, at pg. 22). Contrary to Mo-Vac’s assertion, Total 

does not cite to Wythe for the proposition that an attorneys’ fee that exceeds the 

amount recovered is, in and of itself, sufficient to overturn an award of attorneys’ 

fees. 

Instead, Total analogizes Wythe to the case at bar in that the jury in Wythe

awarded attorneys’ fees that were grossly disproportionate and unreasonable based 

on the evidence presented and a misinterpretation of the Arthur Andersen factors. 

See id., at 108. The court in Wythe found, after considering all of the Arthur 

Andersen factors, that the evidence in the case did not provide sufficient 
Page 26 of 33

justification for shifting the entire amount of the contingency fee to the appellant 

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

the appellee was unsuccessful. Id. The case at bar is similar to Wythe in that the 

jury here was presented with confusing and misleading evidence through 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 compilation relied on by Mo-Vac’s counsel. 

 One of the Arthur Andersen factors (the applicable factor test in the case at 

bar) used to determine the reasonableness of attorneys’ fees is the amount 

involved and the results obtained. See Arthur Andersen & Co., 945 S.W.2d at 

818. Here, Mo-Vac originally sought to recover approximately $10 million for 

various claims asserted against several defendants. (R.R. 5: 196, lines 18-20). At 

the first trial in this case, Mo-Vac was awarded $750,000 on all of its claims 

against Total, and $433,912.50 in attorneys’ fees (in joint and several liability with 

Pool). (C.R. 1: 64-65). After an appeal of the first trial, this Court of Appeals 

upheld only the $100,000 award for Mo-Vac’s breach of confidentiality claim, 

dismissed all of Mo-Vac’s other claims against Total, and dismissed all of MoVac’s claims against Pool. (Supp. C.R. 1: 73-74). This ruling left Total as the 
Page 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’ fees incurred in connection with the only 

remaining claim of breach of confidentiality agreement. Significantly, the trial 

court had previously awarded $433,912.50 in attorneys’ fees to Mo-Vac. The 

Court of Appeals could have chosen to affirm this award in upholding the lower 

court’s award of $100,000 for breach of confidentiality agreement. In fact, 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 original amount was reasonable for the sole 

surviving claim against the sole surviving Defendant. While the amount ultimately 

awarded by the jury in the second trial of this case is less than the amount of 

attorneys’ fees awarded by the trial court, it is still grossly disproportionate to the 

amount recovered. 

                                                            

4 “Thus, the jury could have awarded as much [sic] $869,375 (1,738.75 hours at $500/hour) or 

$436,687.50 (1,738.75 hours at $250/hour) and as low as $30,000 (based on Mr. Thomas’ 

testimony). (Mo-Vac’s Appellee’s Brief, at pg. 27). 
Page 28 of 33

 Mo-Vac places great emphasis on case law standing for the proposition that 

a disproportionately large amount of attorneys’ fees in comparison to the amount 

of damages awarded does not in and of itself render the attorneys’ fees excessive. 

While Total does not disagree with this general proposition, in this case the 

attorneys’ fee award was grossly excessive based on the facts involved, and no 

extenuating circumstances existed to justify such a disproportionate fee. 

 In its Appellee’s Brief, Mo-Vac cites to a string of cases without providing 

any information as to the specific facts involved that rendered a disproportionate 

award of attorneys’ fees appropriate in those particular cases. (Mo-Vac’s 

Appellee’s Brief, at pg. 26). For example, in Young v. Sanchez, one of the cases 

cited by Mo-Vac, extenuating circumstances existed that supported an award of 

attorneys’ fees disproportionate to the amount of damages. No. 04-10-00845-CV, 

2011 WL 4828021 (Tex. App. Oct. 12, 2011). 

Specifically, Young involved a violation of a settlement agreement between 

Young and Sanchez by Young. Young, 2011 WL 4828021, at *1. After two years 

had passed with no resolution of the dispute, the Sanchezes filed an amended 

pleading in which they asserted a new counterclaim for breach of the settlement 

agreement. See id., at *2. The Youngs did not file any pleading in response to the 

counterclaim. See id. Subsequently, the Sanchezes moved for a no-evidence 
Page 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 excessive in view of the summary judgment 

record and the five-year period during which the dispute continued after execution 

of the Settlement Agreement.” Id., at *6. The court noted the special 

circumstances involved that supported the disproportionate award of attorneys’ 

fees: 

Here, the summary judgment record shows the case was prolonged for five 

years after the Settlement Agreement, due in large part to the Youngs' 

objections and conduct that delayed and prevented the Sanchezes' ability to 

fully comply with the Settlement Agreement. We hold the attorney's fees are 

not excessive in light of the prolonged nature of the litigation, and are 

supported by the record. 

Id. 
Page 30 of 33

No such circumstances exist in the case at bar to warrant the excessive amount of 

attorneys’ fees awarded by the jury. 

 As discussed in detail above, Mr. Martinez relied on a compilation created 

after the fact that summarized the work performed in connection with all claims 

involved in this case, and did not specify which tasks were performed in 

connection with which claims. Mr. Martinez essentially took all of the hours spent 

on the case and attributed 90% to breach of confidentiality agreement, the sole 

surviving claim after appeal. This testimony was directly contradicted by the 

expert testimony by Ray Thomas. As set forth above, this single claim was only a 

small part of a much larger trial involving multiple claims against multiple 

defendants, and the amount awarded was grossly awarded and should be 

overturned. 

PRAYER

Total respectfully prays that this Court: 

 1) Reverse the trial court’s Final Judgment signed on April 30, 2015 

(C.R. 1: 113-115; App. Ex. 2) ordering that Mo-Vac recover from 

Total: 

 

 a. $370,375.00 for the successful representation of the 

breach of confidentiality claim through trial; 

 b. $25,000.00 for future representation through appeal to 

the court of appeals, if one is taken; 
Page 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 presentation through oral argument 

and the completion of proceedings in the Supreme Court 

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

 Texas. 

 2) Reverse the trial court’s denial of Total E&P USA, Inc.’s Motion for 

New Trial (C.R. 1: 191); 

 4.) Render a decision that Appellee, Mo-Vac Services Company, Inc. be 

awarded $40,000 as reasonable and necessary attorneys’ fees in this 

matter, in accordance with the expert testimony of Total’s expert 

witness on attorneys’ fees, Ray Thomas; 

 6.) Alternatively, remand this case to the trial court for a new trial to 

determine the specific amount of work performed and hours spent on 

the sole surviving claim of breach of confidentiality agreement against 

Total; and 

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

Inc. is justly entitled. 

 Respectfully submitted, 

 ELLIS, KOENEKE & RAMIREZ, L.L.P. 

 1101 Chicago 

 McAllen, Texas 78501-4822 

 Tel: (956) 682-2440 

 Fax: (956) 682-0820 
Page 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. 10th St., Suite 2 

McAllen, Texas 78504 

Via CMRRR 7001 0320 0000 9475 0705 

 /s/ Edmundo O. Ramirez 

Edmundo O. Ramirez

 
Page 33 of 33

APPENDIX 

Exhibit Date Document 

1 04/16/2015 Jury Charge 

2 04/30/2015 Final Judgment 

 
105

.. 1'"1 '. 

CAUSE NO. C-023-05-E AI" 1 6 2015 

MO-VAC SERVICES COMPANY, INC. § IN THE 

§ 

§ 

§ 

§ 

2751

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 
106

. 

. ' 

credibility of the witnesses and the weight to give their testimony. But on matters of law, 

you must follow all of my instructions. 

4. If m~ instructions use a worcl in a w~~ that is di±Ierent ftom its ordinaq-: meaning, use the 

meaning I give yon, which will he a pmper legal definition. 

5. All the questions and answers are important. No one should say that any question or 

answer is not important. 

0. A !act may be established by direct evidence or by circumstantial evidence or both. A 

fact is established by direct evidence when proved by documentary evidence or by 

witnesses who saw the act done or heard the words spoken. A fact is established by 

circumstantial evidence when it may be fairly and reasonably inferred from other facts 

proved. 

7. Answer yes" or 'no" to all questions unless otherwise mstructed. A "yes" answer must 

be based on a preponderance of the evidence unless you are told otherwise. Whenever a 

question requires an answer other than "yes" or "no," your answer must be based on a 

preponderance of the evidence unless you are told otherwise. 

l'he tenn "prepm:KiemnGe ot' the e\'idenGe" means the greater weight of erediele evidenee 

presented in this case. If you do not find that a preponderance of the evidence supports a "yes" 

answer, then answer "no." A preponderance of the evidence is not measured by the number of 

witnesses or by the number of documents admitted in evidence. For a fact to be proved by a 

preponderance of the evidence, you must find that the fact is more likely true than not true. 

8. Do not decide who you think should win before you answer the questions and then just 

answer the questions to match your decision. Answer each question carefully without 

considering who will win. Do no discuss or consider the effect your answers will have. 

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

10. Some questions might ask you for a dollar amount. Do not agree in advance to decide on 

a dollar amount by adding up each juror's amount and then figuring the average. 

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

way if you answer another question my way." 

12. Unless otherwise instructed, the answers to the questions must be based on the decision 

of at least ten of the twelve jurors. The same ten jurors must agree on every answer. Do 

not agree to be bound by a vote of anything less than ten jurors, even if it would be a 

maioritv. 

As I have said before, if you do not follow these instructions, you will be guilty of juror 

misconduct, and I might have to order a new trial and start this process over again. This would 
107

waste your time and the parties' money, and would require the taxpayers of this county to pay for 

another trial. If a juror breaks any of these rules, tell that person to stop and report it to me 

immediately. 

I. When you go into the jury room to answer the questions, the first thing you will need to 

do is choose a presiding juror. 

2. The presiding juror has these duties: 

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

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

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

d. write down the answers you agree on; 

e. get the signatures fur the verdict certificate; and 

f notify the bailitT that you have reached a verdict. 

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

Instructions for Signing the Verdict Certificate: 

I. Unless otherwise instructed, you may answer the questions on a vote of ten jurors. The 

same ten jurors must agree on every answer in the charge. This means you may not have 

one group often jurors agree on one answer and a different group of ten jurors agree on 

anot er answer. 

2. If ten jurors agree on every answer, those l 0 jurors sign the verdict. If eleven jurors~ 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? 
108

. . . ' 

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 1315 

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. 
109

. . ' 

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 l 
110

Verdict Certificate 

Check one: 

Our verdict is unanimous All n:velve of us have agreed to each and €V€f)' ansv;er. The 

presiding juror has signed the certificate for all twelve of us. 

Signature of Pres1dmg Juror Printed Name of Presiding Juror 

--~ Our verdict is not unanimous. Eleven of us have agreed to each and every answer and 

have signed the eertifieate belo w. 

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

signed the certificate below. 

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

11. ---------
Electronically Filed

4/29/2015 3:15:08 PM

Hidalgo County District Clerks

Reviewed By: Joseph Gonzalez

113

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

Texas Supreme Court; 

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

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

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

Texas Supreme Court; 

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

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

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

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

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

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

judgment is satisfied: 

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

this judgment is signed; 

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

the Court of Appeals issues its final judgment; 

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

date the Supreme Court of Texas issues its final judgment. 

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

The Court orders execution to issue for this judgment. 

2 
Electronically Filed

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Hidalgo County District Clerks

Reviewed By: Joseph Gonzalez

30th

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