4874-4390-3002.4 

UNITED STATES DISTRICT COURT 

WESTERN DISTRICT OF TEXAS 

SAN ANTONIO DIVISION 

JONATHAN VILLAREAL, 

individually and derivatively on behalf of

ZROBLACK LLC, 

Plaintiff, 

v.

JOHN SAENZ; MIGUEL VILLAREAL, 

JR.; and GUNN, LEE & CAVE, P.C., 

Defendants. 

§ 

§ 

§ 

§ 

§ 

§ 

§ 

§ 

§ 

§ 

No. 5:20-CV-00571-OG

DEFENDANT JOHN SAENZ’S MOTION TO RECOVER ATTORNEYS’ FEES 

Pursuant to Federal Rule of Civil Procedure 54(d) and Local Rule CV-7(j), Defendant John 

Saenz (“Saenz”), through his undersigned counsel, hereby files this Motion to Recover Attorneys’ 

Fees, and in support thereof, would respectfully show the Court as follows: 

INTRODUCTION AND SUMMARY 

1. As the prevailing party in this action, Saenz is entitled to recover his attorneys’ fees 

incurred in connection with his successful defense of the claims asserted by Jonathan Villareal 

(“Villareal”) and ZroBlack, LLC (“ZroBlack”) (collectively, the “Plaintiffs”). This Court entered 

a Final Judgment for Saenz that, as a matter of law, supports the award of attorneys’ fees. 

Specifically, based on Saenz prevailing on all claims asserted by Plaintiffs, Saenz is entitled to 

recover his attorneys’ fees under both applicable Texas law and the written release (the “Release”) 

between Saenz and Plaintiffs. While Saenz is not required to segregate his attorneys’ fees pursuant 

to Texas law, Saenz segregated certain of his attorneys’ fees as appropriate under the 

circumstances of this case as discussed herein. Moreover, the attorneys’ fees incurred by Saenz, 

including the hours expended and the rates charged, were both reasonable and necessary. 

Case 5:20-cv-00571-OLG Document 85 Filed 04/12/22 Page 1 of 15
Page 2 

Accordingly, Saenz requests that the Court enter an Order awarding Saenz his attorneys’ fees as 

requested herein. 

BACKGROUND 

2. On May 8, 2020, Plaintiffs filed their Original Complaint (the “Original 

Complaint”) (ECF No. 1) and Application for Seizure, Temporary Restraining Order, Preliminary 

Injunction, and Permanent Injunctive Relief (the “Original Application”) (ECF No. 2) against 

Saenz and others.1 The case concerned a dispute over ZroBlack, a business entity formed between 

Saenz and Villareal. Over the course of this litigation, Saenz has reviewed and responded to 

hundreds of pages of pleadings and exhibits submitted by Plaintiffs. 

3. Plaintiffs’ Original Complaint was thirty-six (36) pages long and asserted eight 

claims against Saenz. See ECF No. 1 at 15–29. The Original Application was forty-five (45) pages 

long and included twenty-seven (27) separate exhibits. See ECF No. 2. In response to Plaintiffs’ 

initial filings, Saenz filed a Motion to Dismiss on June 23, 2020 (the “Original Motion to Dismiss”) 

(ECF No. 8). The Original Motion to Dismiss was fully briefed by both parties.2 

4. Before the Original Motion to Dismiss was decided, the case was referred to United 

States Magistrate Judge Richard B. Farrer for disposition of all pretrial matters (ECF No. 22). 

Plaintiffs then sought leave to file an amended complaint and application (ECF No. 29), which 

Saenz opposed (ECF No. 30). 

5. Ultimately, the Motion for Leave to File was granted3 and Plaintiffs filed their First 

Amended Verified Complaint (the “First Amended Verified Complaint”) (ECF No. 35) and First 

1

 The other defendants in this lawsuit were Miguel Villareal, Jr. and Gunn, Lee & Cave, P.C. 

2

See Plaintiffs’ Response to Saenz’s Motion to Dismiss (ECF No. 12); see also Saenz’s Reply in 

Support of his Motion to Dismiss (ECF No. 14). 

3

 The Motion for Leave was granted by Text Order. 

Case 5:20-cv-00571-OLG Document 85 Filed 04/12/22 Page 2 of 15
Page 3 

Amended Application for Seizure, Temporary Restraining Order, Preliminary Injunction, and 

Permanent Injunctive Relief (the “First Amended Application”) (ECF No. 35-1) on January 15, 

2021. The First Amended Verified Complaint was fifty-six (56) pages long and included nine 

claims against Saenz: (1) misappropriation of trade secrets; (2) computer fraud and abuse; 

(3) violation of the Anti-Cybersquatting Consumer Protection Act; (4) breach of contract; (5) 

breach of fiduciary duties; (6) tortious interference with prospective relations; (7) conversion; 

(8) violation of the Texas Theft Liability Act; and (9) fraud. ECF No. 35 at ¶¶137–199, 232–262. 

The First Amended Application was sixty (60) pages long and included 41 separate exhibits. 

6. Saenz filed a Motion to Dismiss Plaintiffs’ First Amended Verified Complaint and 

the First Amended Application on February 4, 2021 (ECF No. 41). On May 18, 2021, Judge Farrer 

signed a Report and Recommendation (ECF No. 59) regarding Saenz’s Motion to Dismiss. The 

Court adopted the Report and Recommendation in full in the Court’s August 4, 2021 Order (ECF 

No. 67). In pertinent part, the Order granted in part and denied in part Saenz’s Motion to Dismiss. 

“Only Plaintiffs’ claims against Defendant Saenz for breach of fiduciary duty and for violations of 

the CFAA and ACPA – insofar as these claims are premised on Saenz’s alleged conduct after the 

parties executed the Release” – survived the Motion to Dismiss. 

7. On June 25, 2021, the Court granted the Motion to Withdraw by former counsel for 

Plaintiffs. See ECF No. 62. The Court also advised that ZroBlack could “only be represented by 

licensed counsel” and “needs to obtain counsel and have them enter an appearance on the docket 

within 30 days . . . in order to avoid dismissal of its claims.” Id. Plaintiffs subsequently sought 

additional time to obtain counsel (ECF No. 66), which Saenz did not oppose. On August 6, 2021, 

the Court entered a Text Order granting Plaintiffs’ Motion for Extension of Time as unopposed. 

The Text Order provided that “Plaintiff is granted an extension and shall have up to and including 

Case 5:20-cv-00571-OLG Document 85 Filed 04/12/22 Page 3 of 15
Page 4 

September 20, 2021 to obtain a new attorney” and that “ZroBlack must have counsel enter an 

appearance on the docket in order to avoid dismissal of its claims.” 

8. On August 18, 2021, Saenz filed his Original Answer to Plaintiffs’ First Amended 

Verified Complaint and Original Counterclaim Against Villareal and ZroBlack (the “Original 

Answer and Original Counterclaim”) (ECF No. 69), asserting counterclaims for breach of contract 

and fraudulent inducement. Id. at 54–57. Plaintiffs failed to file answers to the counterclaims. 

9. On September 21, 2021, Plaintiff Villareal filed a Motion for Sanctions Pursuant to 

FED. R. CIV. P. 11 (ECF No. 71). The Motion for Sanctions was sixteen (16) pages long with nine 

(9) separate exhibits. Saenz filed a Response in Opposition to Plaintiff’s Motion for Sanctions on 

September 28, 2021 (ECF No. 72). On November 5, 2021, Judge Farrer entered a Text Order 

denying the Motion for Sanctions. 

10. On November 18, 2021, following ZroBlack’s failure to obtain new counsel, Judge 

Farrer signed another Report and Recommendation (ECF No. 74) recommending that “all claims 

asserted by ZroBlack against the remaining Defendant John Saenz be DISMISSED” for failure to 

comply with the Court’s order and reminders. Judge Farrer also ordered that Saenz address, within 

21 days, “whether and to what extent Plaintiff Jonathan Villareal has any remaining individual 

claims in this action.” ECF No. 74 at 1. On December 9, 2021, this Court adopted the Report and 

Recommendation in full (ECF No. 77) and ordered that all of ZroBlack’s claims against Saenz be 

dismissed with prejudice. 

11. On December 9, 2021, Saenz filed a Motion for Judgment on the Pleadings or, in 

the Alternative, Motion to Dismiss the Claims Asserted by Jonathan Villareal, Individually, 

requesting that the Court clarify the pending claims and either: (1) enter a judgment on the 

pleadings against Villareal based on the fact that Villareal has no remaining claims in his individual 

Case 5:20-cv-00571-OLG Document 85 Filed 04/12/22 Page 4 of 15
Page 5 

capacity, or (2) dismiss, with prejudice, any claims asserted by Villareal in his individual capacity. 

ECF No. 76 at 3. 

12. On March 4, 2022, Judge Farrer signed a Report and Recommendation (ECF No. 

78) recommending that the Court grant the Motion for Judgment on the Pleadings and “DISMISS 

all individually held claims asserted by Plaintiff Jonathan Villareal against Defendant John Saenz, 

to the extent any such claims remain at issue.” ECF No. 78 at 1. Judge Farrer also ordered that 

Saenz address, within 21 days, “whether and to what extent he desires to pursue his counterclaims 

against Villareal and ZroBlack, LLC.” Id. 

13. The Court adopted the Report in full in the Court’s March 25, 2022 Order (the 

“Order”) (ECF No. 80). The Order dismissed all claims asserted by Villareal against Saenz, to the 

extent any remaining claims exist. ECF No. 80 at 2. That same day, Saenz filed a Motion to 

Dismiss Counterclaims Without Prejudice and to Enter Judgment (the “Motion to Dismiss”) (ECF 

No. 81) seeking: (1) dismissal, without prejudice, of his counterclaims asserted against Plaintiffs; 

and (2) entry of a judgment by the Court confirming: (a) dismissal of all of Plaintiffs’ claims 

against Saenz with prejudice, and (b) dismissal of Saenz’s counterclaims without prejudice. 

14. On March 30, 2022, the Court entered a Final Judgment granting Saenz’s Motion 

to Dismiss and ordering, in pertinent part, that: (a) all claims and causes of action against Saenz 

by Plaintiffs are dismissed with prejudice; and (b) Saenz’s counterclaims asserted against Plaintiffs 

are dismissed without prejudice. (ECF No. 83). 

SAENZ IS ENTITLED TO RECOVER HIS ATTORNEYS’ FEES 

PURSUANT TO TEXAS LAW AND THE RELEASE 

A. As the Prevailing Party, Saenz is Statutorily Entitled to Attorney’s Fees Under TEX.

CIV. PRAC. & REM. CODE § 134.005(b). 

15. Saenz is entitled to an award of attorneys’ fees from and against Plaintiffs because 

Saenz prevailed on Plaintiffs’ claim for violation of the Texas Theft Liability Act (the “TTLA”). 

Case 5:20-cv-00571-OLG Document 85 Filed 04/12/22 Page 5 of 15
Page 6 

In the Court’s August 4, 2021 Order, Chief United States District Court Judge Orlando L. Garcia 

adopted Judge Farrer’s recommendation that many of Plaintiffs’ claims against Saenz, including 

the claim for violations of the TTLA, should be dismissed with prejudice. ECF No. 67 at 6. Based 

on the dismissal with prejudice, the Court invited Saenz to submit a motion for attorneys’ fees and 

costs at the conclusion of the case with the appropriate “legal support for such an award (pursuant 

to the Release or Tex. Civ. Prac. & Rem. Code § 134.005(b) or otherwise).” ECF No. 67 at 5 – 6. 

16. A federal court applies state law in determining whether and in what amount to 

award attorney fees in a case governed by state law. See Mathis v. Exxon Corp., 302 F.3d 448, 

461 (5th Cir. 2002). The TTLA states that “[e]ach person who prevails in a suit under this chapter 

shall be awarded court costs and reasonable and necessary attorney’s fees.” TEX. CIV. PRAC. &

REM. CODE § 134.005(b) (emphasis added). As the Court recognized in its August 4, 2021 Order, 

“the award of fees is mandatory to a prevailing party under the TTLA.” ECF No. 67 at 5–6. Courts 

have held that the phrase “prevailing party” means “both a plaintiff successfully prosecuting a theft 

action and a defendant successfully defending against one.” Pemex Exploracion Y Productión v. 

Basf Corp., Civil Action No. H-10-1997; Civil Action No. H-11-2019, 2015 U.S. Dist. LEXIS 

199063, at *13 (S.D. Tex. Dec. 31, 2015) (emphasis added) (internal citations omitted). 

17. Pursuant to the Court’s August 4, 2021 Order and Final Judgment, Plaintiffs’ claim 

under the TTLA was dismissed with prejudice. Thus, Saenz is the prevailing party under the 

TTLA. Under the plain language of the statute and Texas case law, therefore, Saenz is entitled to 

his attorneys’ fees in connection with this claim. 

Case 5:20-cv-00571-OLG Document 85 Filed 04/12/22 Page 6 of 15
Page 7 

B. As the Prevailing Party, Saenz is Contractually Entitled to Attorneys’ Fees Under the 

Release. 

18. Pursuant to the Release, Saenz is also entitled to attorneys’ fees incurred in 

connection with defending against all of Plaintiffs’ claims. The Release provides a contractual 

basis for the recovery of attorneys’ fees. It contains the following unambiguous provision: 

In any action or proceeding to enforce rights under this Agreement, 

the prevailing party will be entitled to recover costs and attorneys’ 

fees. 

Release at § 11. The Court found that the Release is a valid and enforceable agreement. See ECF 

No. 59 at 7–11; see also ECF No. 67 at 4. And an award of attorneys’ fees may be authorized by 

a contract providing for attorneys’ fees. See Travelers Cas. & Sur. Co. v. Pacific Gas and Elec. 

Co., 549 U.S. 443, 448 (2007). 

19. Here, there is no doubt that Saenz is the prevailing party in this matter. Pursuant to 

this Court’s Final Judgment, all of Plaintiffs’ claims against Saenz were dismissed with prejudice. 

See ECF No. 83; see also ECF No. 67 at 6; ECF No. 77 at 2; ECF No. 80. The dismissal with 

prejudice altered the legal relationship between the parties such that Saenz is the “prevailing party” 

under § 11 of the Release. See Sunchase IV Homeowner’s Ass’n v. Atkinson, No. 20-0682, 2022 

Tex. LEXIS 330, at *8 (Tex. 2022) (quoting Rohrmoos Venture v. UTSW DVA Healthcare, LLP, 

578 S.W.3d 469, 486 (Tex. 2019) (“[A] defendant can obtain actual and meaningful relief, 

materially altering the parties’ legal relationship, by successfully defending against a claim and 

securing a take-nothing judgment on the main issue.”)). Accordingly, pursuant to the clear terms 

of the Release, Saenz is entitled to an award of attorneys’ fees. 

SAENZ’S ATTORNEYS’ FEES ARE REASONABLE AND NECESSARY 

20. To recover attorneys’ fees, Saenz must show that the fees incurred are reasonable 

and necessary. See Stewart Title Guar. Co. v. Sterling, 822 S.W.2d 1, 10 (Tex. 1991). To calculate 

Case 5:20-cv-00571-OLG Document 85 Filed 04/12/22 Page 7 of 15
Page 8 

reasonable attorney fees, courts in most cases should use the “lodestar” method outlined in 

Pennsylvania v. Delaware Valley Citizens’ Council for Clean Air, 478 U.S. 546, 563-66 (1986). 

A “reasonable” fee is one that is sufficient to induce a capable attorney to take on a case, and there 

is a strong presumption that the lodestar method results in a reasonable fee. Perdue v. Kenny A., 

559 U.S. 542, 552 (2010). 

21. The base, or lodestar, amount is determined by multiplying the number of hours the 

attorney reasonably spent in the case by a reasonable hourly rate. Delaware Valley, 478 U.S. at 

565; Green v. Administrators of the Tulane Educ. Fund, 284 F.3d 642, 661 (5th Cir. 2002). The 

reasonable hourly rate is the prevailing hourly rate in the community for similar work. See

Louisiana Power & Light Co. v. Kellstrom, 50 F.3d 319, 328 (5th Cir. 1995).

22. Although a court can enhance or reduce the lodestar amount, there is a strong 

presumption that the lodestar amount is a reasonable fee award; thus, adjustments are made only 

in rare and exceptional cases. See Perdue, 559 U.S. at 552; Delaware Valley, 478 U.S. at 565. 

The factors considered to enhance or reduce the lodestar amount are generally referred to as the 

Johnson factors and account for the specific facts of the case. See Blanchard v. Bergeron, 489 U.S. 

87, 94 (1989). 

23. When considering whether to enhance or reduce the lodestar amount, the Johnson 

factors generally considered are the following: (1) the time and labor required; (2) the novelty and 

difficulty of the issues; (3) the skill required to perform the legal service properly; (4) the loss of 

other employment in taking the case; (5) the customary fee; (6) whether the fee is fixed or 

contingent; (7) the time limits imposed by the circumstances; (8) the amount of money involved 

in the litigation and the result obtained; (9) the attorney’s experience, reputation, and ability; 

(10) the undesirability of the case; (11) the nature and length of the attorney’s professional 

Case 5:20-cv-00571-OLG Document 85 Filed 04/12/22 Page 8 of 15
Page 9 

relationship with the client; and (12) fee awards in similar cases. See Johnson v. Georgia Hwy. 

Express, Inc., 488 F.2d 714, 717 (5th Cir. 1974).

24. Similarly, under the Texas Disciplinary Rules of Conduct, a court may consider the 

following factors in determining the reasonableness of a fee: (1) the time and labor required, the 

novelty and difficulty of the questions involved, and the skill requisite to perform the legal service 

properly; (2) the likelihood, if apparent to the client, 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. TEX. DISC. R.

PROF. CONDUCT § 1.04(b); Arthur Andersen & Co. v. Perry Equip. Corp., 945 S.W.2d 812, 818-

19 (Tex. 1997).

25. Well-settled law recognizes that the sworn statement of the attorney representing a 

claimant constitutes expert testimony that will support an award of attorneys’ fees. Haden v. David 

J. Sacks, P.C., 332 S.w.3d 503, 513 (Tex. App. – Houston [1st Dist.] 2009, pet. denied) (finding 

that the affidavit of an attorney, submitted in support of the law firm’s motion for attorneys’ fees 

incurred in pursuing its breach of contract action, constituted legally competent evidence that the 

amount sought was both reasonable and necessary).

26. Here, Saenz seeks to recover a total of $161,606.00 from Plaintiffs, which amount 

accurately reflects the fees incurred for work performed in connection with defending against 

Plaintiffs’ claims from June 12, 2020 through April 12, 2022, less a 50% reduction for time spent 

Case 5:20-cv-00571-OLG Document 85 Filed 04/12/22 Page 9 of 15
Page 10 

working on Saenz’s Original Answer and Original Counterclaim. Exhibit “1,” Vanderhider Aff. 

¶¶27–28. Beginning in June 2020, Saenz’s counsel expended a total of 410.50 hours of attorney 

and professional time through December 13, 2021, resulting in a total charge of $142,744.50. 

Vanderhider Aff. ¶18. This amount represents those fees billed to the client through December 

13, 2021, less any costs incurred. Id. Saenz has also incurred $23,056.50 in fees for work in 

progress, or “WIP,” for March 4 through April 12, 2022, for which Saenz is also responsible. Id. 

Saenz is not seeking recovery of any costs incurred throughout the pendency of this litigation.

27. In summary, Saenz has incurred a total of $165,801.00 in attorneys’ fees from June 

12, 2020 through April 12, 2022, in connection with successfully defending against Plaintiffs’ 

claims in this case. Vanderhider Aff. ¶¶18, 25. True and correct copies of redacted attorneys’ fee 

bills for the tasks and amounts listed above, with attorney-client privileged information redacted, 

are attached to the Affidavit of David Vanderhider as Exhibit A. Id. 

28. As outlined in detail below, Saenz does not seek recovery of the entire amount of 

fees incurred in this matter. Vanderhider Aff. ¶25. Although the circumstances of this case do not 

require Saenz to segregate his attorneys’ fees, as discussed further below, Saenz has included a 

50% reduction for time spent working on Saenz’s Original Answer and Original Counterclaim. 

As demonstrated in Exhibit 1, counsel for Saenz also discounted attorney time actually spent on 

this matter prior to sending invoices to Saenz. Finally, Saenz has also excluded all costs incurred 

during this litigation.

29. After subtracting 50% of the fees incurred in connection with preparing the Original 

Answer and Original Counterclaim, the total amount of fees is $161,606.00 ($165,801.00 - 

$4,195.00 = $161,606.00). Vanderhider Aff. ¶27.

Case 5:20-cv-00571-OLG Document 85 Filed 04/12/22 Page 10 of 15
Page 11 

30. The attorneys’ fees were billed below their customary rates and are therefore 

reasonable and necessary. Vanderhider Aff. ¶20; see also Haden, 332 S.W.3d at 513. In particular, 

rates for attorneys varied slightly over the course of this litigation which spanned nearly two years. 

Vanderhider Aff. ¶¶20–21. The rate charged by Saenz’s lead attorney was $375.00 per hour. 

Vanderhider Aff. ¶21. Fees for other attorneys who worked on the case vary between $325.00 and 

$375.00 per hour depending on experience level and the agreed rate with the client at the applicable 

time. Id. Fees for paralegals vary between $160.00 and $265.00 per hour depending on experience 

level and the agreed rate with the client at the applicable time. Id. The fees charged for Saenz 

reflect work and services actually performed in this case. Id. These rates are reasonable and 

necessary in light of the experience of the individuals involved and the average attorney and 

paralegal billing rates generally prevailing in San Antonio, Texas. Id.

31. These rates are further reasonable in light of the time and labor Saenz’s counsel 

was required to expend in this matter, the novelty and difficulty of the questions involved, the 

complex, high-stakes commercial nature of this litigation, and in light of Saenz’s persistent success 

in defending against Plaintiffs’ claims and obtaining a Final Judgment in his favor, among other 

factors. Vanderhider Aff. ¶¶22–30. Again, the Court ultimately entered a Final Judgment 

dismissing all of Plaintiffs’ claims against Saenz with prejudice. Likewise, these fees are 

reasonable in light of the nature and complexity of this case, including but not limited to fees 

associated with reviewing and responding to the voluminous pleadings submitted by Plaintiffs 

throughout the course of this litigation. Id. Simply put, this was a hard-fought case involving 

complex legal issues as well as numerous documents and disputes that spanned over an almost 

two-year time period.

Case 5:20-cv-00571-OLG Document 85 Filed 04/12/22 Page 11 of 15
Page 12 

SAENZ IS NOT REQUIRED TO SEGREGATE HIS ATTORNEYS FEES

32. Saenz is not required to segregate his attorneys’ fees in this case. First, the Release 

provides a contractual basis for the recovery of costs and attorneys’ fees by the “prevailing party.” 

See Release at § 11. Pursuant to this Court’s Final Judgment, all of Plaintiffs’ claims against Saenz 

were dismissed with prejudice. See ECF No. 83; see also ECF No. 67 at 6; ECF No. 77 at 2; ECF 

No. 80. Thus, Saenz was the prevailing party in this matter. See Fitzgerald v. Schroeder Ventures 

II, LLC, 345 S.W.3d 624, 630 (Tex. App. – San Antonio 2011, no pet.) (referring to Black’s Law 

Dictionary in defining a prevailing party as the party in whose favor a judgment is rendered). A 

party recovering attorneys’ fees pursuant to a contractual agreement is only required to segregate 

its claims to the extent required by the contract itself. Calhoun/Holiday Place, Inc. v. Wells Fargo 

Bank, N.A., No. 01-14-00872-CV, 2016 Tex. App. LEXIS 13644, at *17 (Tex. App. – Houston 

[1st Dist.] Dec. 22, 2016) (citing Fitzgerald, 345 S.W.3d at 630-31 (holding prevailing party 

entitled to recover attorneys’ fees for tort claims because contractual provision authorizing fee 

recovery was broad enough to encompass tort claims)). Here, the Release allows for the recovery 

of attorneys’ fees by the prevailing party, but does not require that the prevailing party segregate 

the attorneys’ fees or otherwise restrict fees to any particular claims or causes of action. As such, 

Saenz is not required to segregate any attorneys’ fees under the Release. Saenz is, therefore, 

entitled to recover all of his attorneys’ fees incurred in connection with Plaintiffs’ claims. 

33. Second, under Texas law, legal services that were performed in connection with 

both a recoverable and non-recoverable claim are not required to be segregated. See Tony Gullo I, 

L.P. v. Chapa, 212 S.W.3d 299, 313 (Tex. 2006) (“Intertwined facts do not make unrecoverable 

fees recoverable; it is only when discrete legal services advance both a recoverable and 

unrecoverable claim that they are so intertwined that they need not be segregated.”). In this case, 

Case 5:20-cv-00571-OLG Document 85 Filed 04/12/22 Page 12 of 15
Page 13 

Plaintiffs sued Saenz for nine causes of action: (1) misappropriation of trade secrets; (2) computer 

fraud and abuse; (3) violation of the Anti-Cybersquatting Consumer Protection Act; (4) breach of 

contract; (5) breach of fiduciary duties; (6) tortious interference with prospective relations; (7) 

conversion; (8) violation of the Texas Theft Liability Act; and (9) fraud. ECF No. 35 at ¶¶137-

199, 232-262. Plaintiffs, however, alleged four actions by Saenz that formed the factual basis for 

each of the claims asserted in the First Amended Complaint and the entirety of the First Amended 

Application: (1) Saenz maintains possession of a laptop that is allegedly the property of ZroBlack; 

(2) Saenz allegedly maintains access to and/or control of the zroblack.com webpage and email 

“server”; (3) Saenz received $740,000 from a shared ZroBlack account; and (4) prior to forming 

ZroBlack, Saenz allegedly misrepresented to Plaintiff his skills, experience, and connections. ECF 

No. 41 at 4 (internal citations omitted). Saenz obtained a dismissal of all claims, at least in part, 

based on the contention that all claims were barred by the Release. See ECF No. 41 at 3; ECF No. 

59 at 8; ECF No. 67 at 5–6. Thus, each of the discrete legal services in this case advanced Saenz’s 

defenses under both the recoverable TTLA claim and the other claims because they were all 

premised on the same factual basis and were all subject to the same defense under the Release. 

See ECF No. 41. Accordingly, the fees are not required to be segregated.

34. Notwithstanding the foregoing, Saenz voluntarily dismissed his Original 

Counterclaim without prejudice on March 25, 2022 (ECF No. 81).4 Saenz recognizes that he was 

not the prevailing party on the Original Counterclaim because there is no prevailing party at this 

time. As such, Saenz is not seeking to recover the fees incurred for drafting the Original 

Counterclaim. 

4

 However, Saenz expressly reserved all of his rights to later assert any claims, including the 

counterclaims, against Villareal or ZroBlack in a Texas state district court or other court of 

competent jurisdiction. ECF No. 81 at 7.

Case 5:20-cv-00571-OLG Document 85 Filed 04/12/22 Page 13 of 15
Page 14 

35. Accordingly, the fees incurred in drafting the Original Answer and the Original 

Counterclaim are not required to be segregated. In particular, Saenz has segregated the fees 

incurred in connection with drafting Saenz’s Original Answer and Original Counterclaim by 

applying a 50% reduction to the total amount of fees incurred in connection with preparing the 

pleading as a whole. In total, Saenz incurred $8,390.00 in connection with drafting the Original 

Answer to First Amended Verified Complaint and Original Counterclaim. Accordingly, Saenz is 

only seeking $4,195.00 of the total amount of fees incurred in connection with the Original Answer 

and Original Counterclaim. 

36. Because the attorneys’ fees requested by Saenz reflect only those that are 

recoverable under Texas laws and a discount was applied to factor the fees incurred in drafting the 

Original Counterclaim, Saenz’s requested amount of attorneys’ fees should be awarded in its 

entirety. 

CONCLUSION 

WHEREFORE, Defendant John Saenz respectfully prays that this Court grant Saenz’s 

Motion to Recover Attorneys’ Fees and enter an order awarding Saenz his reasonable and 

necessary attorneys’ fees in the amount of $161,606.00 against Plaintiffs Jonathan Villarreal and 

ZroBlack, LLC, and for such other and further relief as it may be justly entitled at law or in equity. 

Case 5:20-cv-00571-OLG Document 85 Filed 04/12/22 Page 14 of 15
Page 15 

Respectfully submitted, 

By: /s/ David A. Vanderhider 

David A. Vanderhider 

State Bar No. 24070787 

DVanderhider@dykema.com 

Elizabeth Hartsell 

State Bar No. 24106061 

EHartsell@dykema.com 

DYKEMA GOSSETT PLLC 

112 East Pecan St., Suite 1800 

San Antonio, Texas 78205 

(210) 554-5500 – Telephone 

(210) 226-8395 – Facsimile 

ATTORNEYS FOR JOHN SAENZ 

CERTIFICATE OF CONFERENCE 

I hereby certify that, in a good faith effort to resolve all disputed issues relating to attorney’s 

fees and costs prior to filing this Motion, I attempted to confer with Plaintiffs Jonathan Villarreal 

and ZroBlack, LLC prior to filing this motion. Those efforts were unsuccessful because Plaintiffs 

have not confirmed whether they oppose the relief requested herein, and therefore this matter is 

presented to the Court for decision. 

By: /s/ David A. Vanderhider 

David A. Vanderhider

CERTIFICATE OF SERVICE 

I hereby certify that a copy of the foregoing was electronically filed with the Court on the 

12th day of April, 2022, and electronically served on the date reflected in the ECF system upon all 

parties registered to receive notice pursuant to the Court’s CM/ECF system. I further certify that 

a copy of the foregoing was served on Jonathan Villareal on the 12th day of April 2022, via 

certified mail, return receipt requested, at the last known address of Jonathan Villareal on file with 

the Court. 

By: /s/ David A. Vanderhider 

 David A. Vanderhider 

Case 5:20-cv-00571-OLG Document 85 Filed 04/12/22 Page 15 of 15