## No. 14-14-00807-CV

___________________________________________ 

### I N THE 

### C OURT OF 

### A PPEALS FOR THE 

### F OURTEENTH 

### D ISTRICT OF 

### T EXAS

___________________________________________ T HE P ETROLEUM W ORKERS U NION OF THE R EPUBLIC OF M EXICO , A PPELLANT V. J AMES G OMEZ , AS R ECEIVER FOR A RRIBA L IMITED , AND C ARLOS R YERSON , A PPELLEES

___________________________________________ On Appeal from the 281st Judicial District Court Harris County, Texas, the Hon. Sylvia A. Matthews presiding Trial Court Cause No. 1985-35446-AC

___________________________________________ APPELLEE’S BRIEF OF JAMES GOMEZ,

AS RECEIVER FOR ARRIBA LIMITED

Brian A. Calhoun State Bar No. 24044827 CALHOUN, BHELLA & SECHREST, LLP 325 N. St. Paul St., Suite 2300 Dallas, Texas 75201 (214) 981-9258 (214) 981-9203 (facsimile) bcalhoun@cbsattorneys.com Michael J. Pérez Jeffrey A. Feasby PEREZ & WILSON, INC. 750 B Street, Suite 3300 San Diego, California 92101 (619) 741-0282 (619) 460-0437 (facsimile) perez@perezwilson.com

Steven Ward Williams SMITH SOVIK KENDRICK & SUGNET, PC 250 S. Clinton Street, Suite 600 Syracuse, New York 13202 (315) 474-2911 (315) 474-6015 (facsimile) swilliams@smithsovik.com ATTORNEYS FOR APPELLEE/CROSS-APPELLANT JAMES GOMEZ, AS RECEIVER FOR ARRIBA LIMITED

Oral Argument Requested ACCEPTED 14-14-00807-cv FOURTEENTH COURT OF APPEALS

HOUSTON, TEXAS 9/24/2015 7:16:21 PM CHRISTOPHER PRINE

CLERKi ABBREVIATIONS AND RECORD REFERENCES PARTY ABBREVIATIONS Appellee/Cross-Appellant Jame s Gomez, as Receiver for A rriba Limited, is referred to herein as “Arriba.” James Gomez, as an individual, is referred to herein as “Gomez.” Appellant The Petroleum Workers Union of the Republic of Mexico is referred to herein as the “Union.” In the record, the Union is sometimes referred to by its Spanish name, the “Sindicato.” Appellee/Cross-Appellant Carlos Ryerson is referred to herein as “Ryerson.” RECORD REFERENCES References to the Original Clerk’s Record , which was submitted by the Clerk of the Harris County District Court, are in the form ([vol.#] CR [page #]). References to the Reporter’s Record are in the form ([vol. #] RR [page #]). Citations to trial exhibits will refer to the page of the PDF document for Reporter’s Record Volumes in the form ([vol. #] RR [PDF page #], [Ex. #]).ii TABLE OF CONTENTS ABBREVIATIONS AND RECO RD REFERENCES .............................................. i TABLE OF CO NTENTS .......................................................................................... ii TABLE OF AUT HORITIES ................................................................................... iv STATEMENT OF FACTS ........................................................................................ 1 I. INTRODUC TION ........................................................................................... 1 II. THE PARTIES’ AGREEMENT ..................................................................... 4 SUMMARY OF AR GUMENTS ............................................................................. 10 ARGUMENTS AND AU THORITY ....................................................................... 15 I. The Union Cannot Rely on a Foreign De claration that Has Not Been Properly Sworn or Translated to Invalidat e the Settlement Agreement ................................. 15 II. The Union’s Mexican Judgment is Not a “Money Judgment” as Required to Be Enforceable Unde r the UFCMJRA .................................................................... 18 III. Arriba Presented Overwhelming Evid ence of Actual and Apparent Authority Sufficient to Overcome the Union’s Legal Sufficiency Challenge ......................... 23 A. The Union Has Failed to Establish th at Mexican Law Applies to Determine the Issue of Au thority ........................................................................................ 24 B. The Evidence Establis hes that Ryerson and Alvarez Both Had Actual Authority to Bind the Union to the Settlement Ag reement .............................. 28 C. The Evidence Establishe s that Alvarez and Ryerson Both Had Apparent Authority to Bind the Union to the Settlement Agreement .............................. 38 1. The Union’s Lack of Ordinary Care Led Arriba to Believe that Ryerson and Alvarez had Authorit y to Enter Into the Settlement Agreement.....................................................................40 2. Arriba Justifiably Relied on the Union’s Lack of Ordinary Care to Its Detrimen t...............................................................41iii 3. The Union Had Full Knowledge That Ryerson and Alvarez Were Acting on Its Behalf.........................................................42 IV. The Settlement Agreement is Support ed by Adequate Consideration .......... 43 V. The Union Has Failed to Establish a Basis for the Court to Reverse and Remand for a New Trial........................................................................................... 45 A. The Trial Court Did Not Abuse It s Discretion in Excluding the Union’s Evidence Regarding Me xican La w ................................................................... 45 B. Any Error in Instructing the Jury Regarding Apparent Authority, if Any, Was Harmle ss .................................................................................................... 46 C. The Evidence Was Factua lly Sufficient to Support the Jury’s Findings on Actual and Apparent Authority ......................................................................... 49 D. The Trial Court Did Not Error in Denying the Union’s Motion for Mistrial 49 E. The Court Properly Refused to Inst ruct the Jury Regarding the Union’s Counterclaims ................................................................................................... 53 CONCLUSION AND PRAYER ............................................................................. 57 CERTIFICATE OF CO MPLIANCE ....................................................................... 59iv TABLE OF AUTHORITIES Cases Aetna Cas. & Sur. Co. v. Raposa , 560 S.W.2d 106 (Tex. App. – Fort Worth 1977, writ di sm'd) ........................................................ 63 Am. Med. Techs., Inc. v. Miller , 149 S.W.3d 265 (Tex. App. – Houston [14th Dist.] 2004, no pet.) ................................................ 30 Birdwell v. Birdwell , 819 S.W.2d 223 (Tex. App. – Fort Worth 1991, writ de nied) ........................................................ 48 Blockbuster, Inc. v. C-Span Entertainment, Inc ., 276 S.W.3d 482 (Tex. App. – Dallas 2008, pet. granted) ............................................................... 48 Brosseau v. Ranzau , 81 S.W.3d 381 (Tex. App. – Beaumont 2001, pet. denied) ............................................. 22, 23, 24 Buckeye Check Cashing, Inc. v. Cardegna , 546 U.S. 440 (2006 ) .................... 28, 29 Chandler v. Cashway Bldg. Materials, Inc ., 584 S.W.2d 950 (Tex. Civ. App. – El Pa so 1979, no writ) ...................................................... 64, 65 City of Keller v. Wilson , 168 S.W.3d 802 (Tex . 2005) .................................... passim City of Roanoke v. Town of Westlake , 111 S.W.3d 617 (Tex. App. – Fort Worth 2003, pet. denied) ......................................................... 40 Columbia Rio Grande Hea lthcare, L.P. v. Hawley , 284 S.W.3d 851 (Tex. 2009) . 52 Courage Co. v. Chemshare Corp ., 93 S.W.3d 323 (Tex. App. – Houst. [14th Dist.] 2002, no pet.) ................................................... 19 Crescendo Invs. v. Brice , 61 S.W.3d 465 (Tex. App. – San Antonio 2001, pet. de nied) ....................................................... 53 D’Angelo v. Petroleos Mexicanos , 422 F.Supp. 1280 (D. Del. 1976) ............. 17, 18 Downer v. Aquamarine Operators, Inc ., 701 S.W.2d 238 (Tex. 1985) ........... 50, 57 Duncan v. Cessna Aircraft Co ., 665 S.W.2d 414 (Tex . 1984) ......................... 30, 31v Gaines v. Kelly , 235 S.W.3d 179 (Tex. 2007) ............................................ 44, 47, 53 Horizon/CMS Healthcare Corp. v. Auld , 34 S.W.3d 887 (Tex. 2000) ............. 50, 51 In re City of Houston , 418 S.W.3d 388 (Tex. App. – Houston [1st Dist .] 2013, orig. pr oceeding) ................................... 58 In re Morgan Stanley Co ., 293 S.W.3d 182 (T ex. 2009) ........................................ 29 La.-Pac. Corp. v. Knighten , 976 S.W.2d 674 (T ex. 1998) ...................................... 52 Lester v. First American Bank , 866 S.W.2d 361 (Tex. App. – Waco 1993, writ denied) ................................................................. 29 Lewis v. United Parcel Serv., Inc ., 175 S.W.3d 811 (Tex. App. – Houston [1st Di st.] 2004, pet. denied) ............................................ 56 Miles v. Ford Motor Co ., 914 S.W.2d 135 (T ex. 1995) .......................................... 23 Peerless Oil & Gas Co. v. Teas , 138 S.W.2d 637 (Tex. Civ. App. – San Antoni o 1940, jdgmt. aff’d.) ............................................ 65 Pegasus Aviation IV, Inc. v. Aerolineas Austral Chile, S.A ., 2012 WL 967301 (S.D.N.Y. 2012 ) .................................................................................................... 30 Reliant Energy Servs. v. Cotton Valley Compression, LLC , 336 S.W.3d 764 (Tex. App. – Houston [1st Dist.] 2011, no pet.) ........................................... passim Roark v. Stallworth Oil & Gas, Inc ., 813 S.W.2d 492 (T ex. 1991) ........................ 48 Scottsdale Ins. Co. v. Nat’l Emerg. Servs., Inc . 175 S.W.3d 284 (Tex. App. – Houston [1st Di st.] 2004, pet. denied) ............................................ 31 Siko Ventures v. Argyll Equities, LLC , 2005 U.S. Dist. LEXIS 21257 (W.D. Tex. 2005) ..................................................................................... 20, 21, 22 Suarez v. Jordan , 35 S.W.3d 268 (Tex. App.—Houston [14th Di st.] 2000, no pet.) ................................................ 32 Texas Commerce Bank N.A. v. Tripp , 516 S.W.2d 256 (Tex. Civ. App. – Fort Worth 1974, writ dism’d .) ........................................ 63, 64vi Thota v. Young , 366 S.W.3d 678 (Tex . 2012) .................................................. 52, 53 Underwriters at Lloyd’s v. Frank’s Casing Crew & Rental Tools, Inc ., 246 S.W.3d 42 (Tex . 2008) .................................................................................. 27 United States v. Pink , 315 U.S. 203 (1942 ) ...................................................... 17, 18 Walker Ins. Servs. v. Bottle Rock Power Corp ., 108 S.W.3d 538 (Tex. App. – Houston [14th Di st.] 2003, no pet. ) ................................... 32, 43, 44 Statutes Texas Civil Practice & Remedie s Code § 36.001 ............................................. 11, 19 Texas Civil Practice & Remed ies Code § 36.005 .................................................... 24 Texas Civil Practice & Remed ies Code § 132.001 .................................................. 16 Rules Texas Rules of Appellate Procedure 44. 1 ................................................... 53, 61, 63 Texas Rule of Civ il Procedure 193.6 ....................................................................... 59 Texas Rule of Evidence 401 .................................................................................... 51 Texas Rule of Evidence 402 .................................................................................... 51 Texas Rule of Evidence 403 .................................................................................... 51 Texas Rule of Evidence 1009 .................................................................................. 161 STATEMENT OF FACTS I. INTRODUCTION

The parties came together in the ear ly 1980s when The Petroleum Workers Union of the Republic of Mexi co (the “Union,” also refe rred to by its Spanish name, the “Sindicato”) and two respected Am erican businessmen from Texas, Bill Flanigan and David Black, agreed pursuant to a written contract for the purchase and sale of “residual” oil. (8 RR 14-18.) In order to consummate the contract, the Union insisted that the Americans form a company in the Bahamas, which resulted in the creation of Arriba, Limited (“Arriba”). ( Id . at 17.) Thereafter, the Union breached that agreement, and the initial lawsuit between the parties ensued. ( Id . at 19-20.) Filed in 1985, the underlying action resu lted in a judgment in 1986 in favor of Arriba and against the Union and various individuals (the “1986 Judgment”). (18A RR 8-12 [PX 1].) That judgment awarde d Arriba $33 million in actual damages resulting from the Union’s breach of c ontract, $266,000 in consequential damages resulting from the Union’s breach of c ontract, $4 million in attorneys’ fees, $5 million in actual damages re sulting from the defendants’ conspiracy to deprive Arriba “of the benefits of its contract a nd the perpetration of unlawful and tortious acts” upon Arriba, and $50 million in punitive damages. ( Id .)2 The present iteration of this case deals with the enforceability of a settlement agreement entered into by and between Arriba and the Union. 1 In 2003, Arriba garnished $43 million of Union funds that had been deposited in New York. Tied to a larger election fraud scandal in Me xico known as “Pemexgate,” the Union’s leadership was indicted for embezzling the $43 million. The $43 million had also been restrained by the United States District Court in New York at the request of the United States government, which was acti ng at the request of the Republic of Mexico. The settlement between Arriba and the Union was the direct result of that garnishment of Union funds, and the se ttlement agreement wa s reached while the $43 million remained in dispute and beyond the reach of the Union. Embarrassed by the scandal, the Preside nt of Mexico enlisted the Union’s founder to seek to resolve the garnishment and return some of the money to Mexico. Union representatives reached out to the Union’s long-tim e attorney for the Arriba matters, Carlos Ryerson (“Ryerson”), who was able to negotiate a settlement with Arriba.

1 The underlying 1986 Judgment has spawned numer ous garnishment actions on the underlying judgment, as well as related state court actions, app eals to this Court as well as the First and Tenth Courts of Appeals, federal acti ons in Texas and New York, a stat e court action in California, and proceedings in the Bahamas. In the event the Cour t affirms the trial court’s judgment, all of the other cases would then also be resolved in their entirety.3 The trial below resulted from the Uni on’s contention that Ryerson and the Union representative who signed the settle ment agreement did not have actual or apparent authority to enter into the settlement agreement on behalf of the Union. A related question was whether this Union offi cial had actual or apparent authority to sign a separate fee agreement with Ryerson. The jury found for Arriba and Ryerson and against the Union on all issues submitted to it. The parties are before this Court on their respective appeals from the Final Judgment that was entered by the trial court based upon the jury’s verdict in favor of Arriba and Ryerson. ( See 14 CR 7626-7637; 8019-8020.) The Union’s opening brief raises a myriad of arguments as to why it thinks the Final Judgment should be reversed. None of these arguments have merit. Substantial evidence supported the jury’s determination of actual and appare nt authority. In addition, there were no errors of law that caused the rendition of an improper judgment. For these reasons, and for the reasons set forth more fully below, the trial court’s judgment should be affirmed on all points raised in the Union’s appeal.4 II. THE PARTIES’ AGREEMENT On May 21, 2004, Arriba and the Union entered into an Agreement Regarding Disposition of Garnished Funds (the “Settlement Agreement”). 2 ( See 18B RR 59 [DX 50].) In entering into the Settlement Agreement, th e parties sought to resolve the distribution of the funds located in New York that were the subject of the underlying garnishment action, the enforc eability of the 1986 Judgment, and the outstanding issues in the 1989 Litigation. ( Id . at 60.) The Settlement Agreement was signed by James Gomez as Receiver fo r Arriba and by No e Manuel Moreno Alvarez (“Alvarez”) as General Attorney in Fact for the Union, and by Ryerson as Attorney of Record for the Union. ( See id . at 68-69.) Dating back to 1990, Ryerson was consta ntly the Union’s attorney and was tasked with resolving all of the pending li tigation with Arriba. (8 RR 55-57, 70; 11 RR 153-156.) The Union’s own witnesses te stified to this fact. (10 RR 252-253; 12 RR 19.) Indeed, Arriba dealt with Ryerson over the course of the 14 years preceding the negotiation and execution of th e Settlement Agreement. (8 RR 71-72, 184-185.) Ryerson was hired by Ruben Choreño (“Choreño” ), who was the Union’s long-time attorney under a broad ge neral power of attorney that Ryerson

2 The Union also entered into an agreement w ith Ryerson which provided for payment of his attorney’s fees from the Uni on’s 48% share of the garnished funds held in New York. ( See 18A RR 44 [PX 15].)5 had seen firsthand. (12 RR 114-115.) Ry erson had a written contract with the Union reflecting his authority to act as the Un ion’s attorney with regard to the Arriba matters. (10 RR 257-258.) Consequently, Ryerson openly and continuously represented the Union from 1990 until Dece mber 2004 (i.e., six months after the Settlement Agreement had been entered). Indeed, Ryerson represented and was present for the Union at another trial agains t Arriba in 1997. (8 RR 57; 13 RR 119, 138.) By agreement with the Union and Enron, Ryerson even continued to represent the Union after he went to work for Enron. (8 RR 61; 13 RR 138.) Ryerson’s representation was not term inated until December 2004 – shortly after the Union had affirmed in writing his authority as counsel for the Union. ( See 11 RR 8-9, 52-53, 57, 67-68, 257; 12 RR 61.) However, from 1990 through December 2004, Ryerson was a constant as the Union’s primary attorney in the Arriba matters. (8 RR 71- 72, 184-185.) For his work as the Union’s attorney, Ryerson was paid millions of dollars. (11 RR 251-252.) By 2002, Carlos Romero Deschamps (“ Deschamps”) and the number two person at the Union, Ricardo Aldana Prieto (“Prieto”), had been indicted in Mexico for embezzling $43 million in Union funds that were seized in a New York bank account at the Pershing Division of Donald son, Lufkin & Jenrette Securities, for electoral fraud, and for vi olation of public trust. (10 RR 249-250; 11 RR 169-171.)6 Ryerson had previously witnessed Deschamps’ corruption firsthand. In particular, Ryerson testified that under one of the modi fications to his contract with the Union he was supposed to be paid $3.5 million. However, shortly after he signed the contract, he was told by one of the Union’ s attorneys, and a w itness at the trial below, Eduardo Gonzalez, that he would only be receiving $1 million of the $3.5 million. (12 RR 98.) Thereafter, Ryerson wa s instructed to go to a Banamex Bank in Mexico City to collect his payment. Since Ryerson was co ncerned that the U.S. Internal Revenue Service mi ght tax him for $3.5 million in income, Ryerson brought along a witness to confirm th at he only received actual payment of $1 million. (12 RR 100-101.) While Ryerson was in a priv ate room at the bank he saw Deschamps and the Union’s treasurer, Alejandra Michel , in another room ca tty-corner to his. ( Id . at 28-29; 99-100.) A bank official brought Ryerson a check in the amount of the Mexican peso equivalent of $3.5 milli on for him to endorse. A large sum of cash was then brought into Ryerson’s room . At the same time, Ryerson observed Deschamps and Michel in their room counting cash. ( Id . at 101-102.) In the end, Ryerson was only given $1 million of th e $3.5 million he was owed. Deschamps took the remaining $2.5 million in cash. (12 RR 133-134.) In light of the charges brought as a result of Pemexga te, Deschamps and Prieto lost their authority to act on beha lf of the Union. (10 RR 221-222; 11 RR7 209.) The Union’s leadership was in turmoil. (11 RR 171-172.) Compounding this chaos, Arriba was able to garnis h the $43 million based on the 1986 Judgment. (1 CR 27, 37-38.) The Union was desperat e to get at least a portion of that money back. As a result, Ryerson was approached by Choreño, who was retained and continued to work for the Union by grant of a valid general power of attorney. (11 RR 172-173.) Choreño was acting at the re quest of Joaquin Hernandez Galicia, known as “La Quiña,” who was the founder of the Union. (11 RR 174-175.) The then President of Mexico, Vincente Fox, had tasked La Quiña and Choreño with handling the issues with the Union and Peme x to ensure that at least some of the money in New York would go back to the Union. (11 RR 177-178; 12 RR 112, 138-139.) Ryerson was directed to deal specifi cally with Alvarez as the Union’s representative. (11 RR 206-207.) Ryers on was given specific written instructions by Alvarez, on behalf of the Union, to “t ake all necessary measures to bring to a good conclusion the negotiations as may be pertinent ... with the representative(s) of the company ‘Arriba limited.’ ” (18A RR 45 [PX 16].) To this end, Ryerson was presented with a written power of attorney issued by the Un ion in favor of Alvarez.8 (11 RR 182-183.) Ryerson did as direct ed, and negotiated a nd entered into the Settlement Agreement on behalf of the Union. (11 RR 180-182; 12 RR 119-120.) Pursuant to Article III of the Settlement Agreement, the garnished funds in New York “ shall be distributed as follows : “A. Fifty-Two percent (52%) of said funds shall be paid to Gomez, as Receiver for the Companies; and “B. Forty-Eight percent (48%) of said f unds shall be paid to the Union or its designee (as directed by the Union’s attorney of record herein); and “C. From the Union’s 48% of said funds, an additional amount of One Million and No/100 Dollars ($1,000,000. 00) shall be paid to Gomez, as Receiver for the Companies.” 3 (18B RR 61-62 [DX 50].) This contractua l agreement was beneficial to the Union since it guaranteed at least a portion of the $43 million would be returned to the Union which would have otherwise gone in its entirety to Arriba in light of the garnishment. Article IV affirms the validity of the 1986 Judgment, and provides that “the Union and the Commission 4 hereby knowingly waive, a nd forever relinquish, any and all claims and allegati ons challenging the finality of the 1986 Judgment as it

3 This additional $1 million was to pay the expenses he had incurred as Receiver for Arriba. (8 RR 264-265; 9 RR 89.)

4 The “Commission” is The Commission of C ontracts of the Executive Committee of the Petroleum Workers Union of the Re public of Mexico, which is also a judgment debtor on the 1986 Judgment.9 affects them.” ( Id . at 62.) Article IV further provid es that if “the distribution of the Garnished Funds is not accomplished ac cording to the terms set out in this Agreement [ ], Gome z and [Arriba] shall be entitled to enforce the 1986 Judgment in any legal manner, anyw here in the world, except in the country of Mexico.” ( Id .) This provision was also beneficial to th e Union because it a llowed the Union to place its Mexican assets beyond the reach of Arriba. Article V provides for the dismissal of a related case brought by Arriba against the Union that is currently pending with the trial court. ( Id . at 63.) This also benefited the Union. As noted above, if the trial court’s judgment is affirmed and the Settlement Agreement is enforced, th is related case would be dismissed. Finally, the Settlement Agreement contains a Texas choice-of-law provision that expressly states: “This Agreement shall be governed by and construed in accordance with the laws of the State of Texas.” ( Id . at 67.) The Settlement Agreement also requires that any dispute arising out of the agreement be resolved exclusively in the District Court in Houston, Harris County, Texas. ( Id .) 5

5 Arriba’s Opening Brief as Appella nt contains a detailed recitati on of the procedural history of these cases. Rather than restate that history here, Arriba incorporates that section by this reference as if set forth fully herein.10 SUMMARY OF ARGUMENTS The Union has been playing a shell game . It enters into contracts, takes advantage of those agreements, and th en breaches the agreements when it unilaterally deems that it no longer wishes to comply with the terms of its contracts. Like any good shell game, the “confidence” tric k is to vest individuals with a power of attorney to act on behalf of the Union, clothe those individuals in every way as actual agents with full authority, then disavow any knowledge of those agents’ actions when it suits the Union. In this case, the Union is attempting to disavow written powers of attorney by ignoring the plai n language of its c ontract with Arriba requiring Texas law to govern, and insisti ng that Mexican law and Mexican courts have the authority to invalidate the agreem ent between the parties. Arriba is the victim of the Union’s shell game. Howeve r, our American courts can and must put an end to the Union’s sleight of hand. A c ontract is a contract. In Texas, contracts are enforced. Counter to the belief that bargained fo r agreements between two parties must be enforced, the Union argues that both the 1984 contract with Arriba and the May 21, 2004 Settlement Ag reement are illegal under Me xican law. However, Mexican law does not apply to the determin ation regarding the legality of the 1984 agreement or the Settlement Agreement because both agreements contain Texas11 choice-of-law provisions. The Unifor m Foreign-Country Money Judgments Recognition Act (“UFCMJRA”) does not a pply to the Union’s Mexican Judgment because it is not a money judgment. By its terms, the UFCMJRA only applies to foreign country judgments “granting or denyi ng a sum of money.” Tex. Civ. Prac. & Rem. Code § 36.001. Next, the Union makes the same argument several different ways by attacking its own agents’ authority to act on behalf of the Union. However the evidence in this case is overwhelming that both Ryerson and Alvarez had both actual and apparent authority to act on be half of the Union. Pursuant to the parties’ mutual and binding agreement that Texa s law will govern all disput es, Mexican law does not apply to the determination of authority. Under Texas law, there can be no question that Ryerson and Alvarez had actual au thority to enter into the Settlement Agreement. Virtually every witness testif ied to this fact. Indeed, Ryerson was directed by Union officials and given specific authority to settle the Arriba matters. Ryerson did as directed, and negotiated a nd entered into the Settlement Agreement on behalf of the Union – an agreement whic h inured to the benefit of the Union. Moreover, Alvarez had actual authority to bind the Union to the Settlement Agreement. Alvarez had a written power of attorney issued by the Union to act on behalf of the Union.12 Additionally, Ryerson and Alvarez both had apparent authority to act on behalf of the Union. As stated, Ryerson had been the Union’s attorney beginning in 1990. The Union never asserted that Ryerson was not its agent until long after it had taken full advantage of the Settlement Agreement . No notices were filed with the Court, nor were any communications of “termination of representation” given to Arriba to indicate the end of Ryerson’s aut hority. In fact, Ryerson himself believed and testified that he c ontinued to represent the Union until December, 2004. Therefore, the Union lacked ordinary care in failing to advise Arriba that Ryerson no longer had authority to represent it with re gard to the Arriba matters. Arriba was justified in believing that Ryerson had au thority to negotiate and enter into the Settlement Agreement on behalf of the Union. Further, the Union lacked ordinary care in failing to revoke the powers of atto rney granted to its agents, Choreño and Alvarez. It was these powers of attorn ey upon which Arriba and Ryerson relied in negotiating and entering into the Settlement Agreement. Accordingly, there was legally sufficient evidence establishing that the Union’s lack of ordinary care led Arriba to believe that Ryerson and Alvarez had authority to enter into the Settlement Agreement. The evidence at trial proved that the Union had full knowledge that Ryerson and Alvarez were acting on its be half, and the Union permitted Ryerson and Alvarez to do so.13 The trial court did not commit error by failing to submit the Union’s proposed instructions on apparent authority. As se t forth above, the evidence established that Ryerson and Alvarez had actual authority to enter into the Settlement Agreement on behalf of the Union. Therefore, the tr ial court’s failure to submit the Union’s proposed jury charge on apparent author ity could not cause the rendition of an improper verdict. Moreover, the Texas Pattern Jury Char ge used by the trial court accurately stated the law. Furthermore, the Settlement Agreemen t does not lack consideration. For one, the Settlement Agreement puts an end to decades of litigation between the parties and provided the Union the opport unity to receive 48% of the $43 million that had been garnished by Arriba in Ne w York. The Union al so negotiated terms into the agreement that prohibits A rriba from enforcing the 1986 Judgment in Mexico and provided for the dismissal of th e other case pending be tween the parties. These bargained for terms are ample consideration. And finally, the trial court did not comm it error by failing to instruct the jury on the Union’s counterclaim for wrongful garnishment against Arriba. The Union has no evidence to support its wrongful garnishment claim. The Union’s only evidence to support its wrongful garnishm ent claim is that the trial court had previously dissolved the writs of garnishm ent. The Union extrapolates the lower14 court’s decision to dissolve the writs to mean that the trial court had determined that the writs failed to meet the requirements for issuance. Not only is this statement not supported by the record, it does not esta blish the Union’s claim of wrongful garnishment even if it were true. Conse quently, the Union failed to establish the elements of a claim for wrongful garnishm ent. The trial court made the correct decision not to submit the Union’s claim for wrongful garnishment to the jury. The Union’s approach to this appeal – like it has done throughout the history of this case in front of the trial court – has been to throw as much mud as possible against the wall in hopes something would s tick. Nothing sticks. The trial court did not err to the Union’s detriment. This Court should not disturb the jury verdict, which was supported by an abundance of ev idence. The Union has failed to meet its burden of establishing that the trial cour t erred in any manner that would warrant another jury trial. As a result, this Cour t should affirm the jury verdict and put an end to this litigati on once and for all.15 ARGUMENTS AND AUTHORITY I. The Union Cannot Rely on a Forei gn Declaration that Has Not Been Properly Sworn or Translated to Invalidate the Settlement Agreement The Union first argues that the Se ttlement Agreement is illegal under Mexican law because the 1986 Judgment wa s based on a 1984 contract that the Union contends was illegal. In support of this argument, the Union relies on the declaration of a former attorney genera l of Mexico, Enrique Alvarez del Castillo (“del Castillo”). 6 The Union’s argument is unavailing for at least five reasons. First, the Union’s argument regarding ille gality is merely sleight of hand. It was not the 1984 contract that was made binding as a result of the Settlement Agreement. Rather, under the Settlement Ag reement, the Union si mply agreed that the 1986 Judgment was valid and enforceab le. The fact that the Union now contends that the contract underlying th e judgment is illegal is irrelevant. Therefore, even if Mexican law applied to the Settlement Agreement, which as set forth below it does not, del Castillo’s decl aration does not establish that the Settlement Agreement is illegal. Moreover, pursuant to the Settlement Agreement, the Union waived any right it had to cha llenge the legality of the 1986 Judgment, and

6 It should be noted that Enri que Alvarez del Castillo was re moved from office in May of 1991 amid charges of corruption. See Los Angeles Times (May 22, 1991); http://articles.latimes.com/1991-05-22/news/mn-2225_1_human-rights

.16 that waiver is enforceable. (18B RR 62 [DX50].) There is nothing in the declaration of del Castillo that w ould render that waiver unenforceable. In addition, both the 1984 agreement that provides the basis for the 1986 Judgment and the Settlement Agreement pr ovide that they are governed by Texas law. (18B RR 67 [DX50]; 18B RR 273 [DX120].) Ther efore, Mexican law has no application to the determina tion regarding the legality of the 1984 agreement or the Settlement Agreement. Third, the declaration is not properly tr anslated. Pursuant to Texas Rule of Evidence 1009, a translation is only admissi ble if it is accompanied by “a qualified translator's affidavit or unsworn declaration that sets forth the translator's qualifications and certifies that the transl ation is accurate.” Here, the purported translation of del Castillo’s declarati on is not accompanied by the required translator’s affidavit/declaration. ( See 3 CR 2101-2117.) Accordingly, the document is not admissible and should be disregarded by the Court of Appeals. Similarly, the declaration is not proper ly sworn. Pursuant to Texas Civil Practice & Remedies Code § 132.001(c), an unsworn declaration must be “subscribed by the person making the declarati on as true under penalty of perjury.” Here, the declaration of del Castillo is not made “under penalty of perjury.” Therefore, it is not valid under § 132.001(c) and should be disregarded in its entirety.17 Finally, the cases upon which the Union relies are clearly distinguishable. Specifically, the Union relies on United States v. Pink , 315 U.S. 203 (1942) and D’Angelo v. Petroleos Mexicanos , 422 F.Supp. 1280 (D. Del. 1976) to argue that del Castillo’s declaration is entitled to conclusive weight regarding the enforceability of the 1984 contract. Both of those cases d ealt with the interpretation of decrees by foreign governments. In both cases, th e courts gave deference to a foreign officials’ interpretation of the scope and e ffect of foreign laws expropriating private property. For instance, Pink dealt with complex issues of diplomacy and the scope of the decree nationalizing the property of priv ate enterprises and corporations by the Soviet Government. In this context, the United States Supreme Court was willing to accept the declaration of the Commissa riat of Justice, who had the power to interpret existing Russian law, that na tionalization extended to the funds and property of former insurance companies. Pink , 315 U.S. at 219-220. Similarly, D’Angelo dealt with the scope of a decree by the President of Mexico that expropriated oil in Mexico owned by foreign nationals. Relying on Pink , the court

in D’Angelo accepted the declaration of the Mexi can attorney gene ral regarding the scope of that decree as dispositive on that issue. D’Angelo , 422 F.Supp. at 1285.18 This case, on the other hand, deals with the enforceability of a contract entered into by private parties with a choice-of-law provision freely and voluntarily agreed upon. Pursuant to the terms of both the 1984 agreement and the Settlement Agreement, that is a matter of Texas law to be determined by the Texas courts; not by a Mexican official at the request of the Mexican Union that a Texas jury and judge found to be in breach of the Settlement Agreement. For all of these reasons, the statement of a former attorney general of Mexico, upon which the Union relies, has no appli cation to the interpretation and/or enforcement of the Settlement Agreement.

II. The Union’s Mexican Judgment is Not a “Money Judgment” as Required to Be Enforceable Under the UFCMJRA The Union next argues that Arriba is precluded from enforcing the Settlement Agreement based on the Uniform Forei gn-Country Money J udgments Recognition Act. Although the enforceability of the Settle ment Agreement had been directly at issue in front of the trial court since Ma rch, 2005, via Arriba’s Motion to Enforce Settlement Agreement (1 CR 438-523), the Union sought a more favorable venue and filed its own action in Mexico in Janu ary, 2006 seeking a determination that the Settlement Agreement was not enforceabl e. (6 CR 4109.) Arriba was never served with process in that matter and did not appear in the action. (6 CR 4760, ¶4.) Not surprising, the Mexican court entere d a declaratory judgment finding that the19 Settlement Agreement was not enforcea ble under Mexican law (the “Union’s Mexican Judgment”). The Union now contends that Arriba is bound by res judicata to the terms of the Union’s Mexican Judgment under the UFCMJRA. The Union is wrong. Simply put, the UFCMJRA does not apply to the Union’s Mexican Judgment. By its terms, the UFCMJRA only applies to foreign country judgments “granting or denying a sum of money.” Tex. Civ. Prac. & Rem. Code § 36.001. This has been noted by numerous Texas courts over the years. See, e.g., Courage Co. v. Chemshare Corp ., 93 S.W.3d 323, 330 (Tex. App. – Houst. [14th Dist.] 2002, no pet.) (“The UFCMJRA governs the recognition of foreign country money judgments .” [Emphasis added.]). Here, th e Union’s Mexican Judgment is not a money judgment. Rather, it is a judgment for declaratory relief. Therefore, the UJCMJRA does not apply to the Union’s Mexican Judgment. The requirement of a money judgment was expressly noted by the court in Siko Ventures v. Argyll Equities, LLC , 2005 U.S. Dist. LEXIS 21257 (W.D. Tex. 2005) when it determined that the UFCMJR A did not apply in that case. In Siko , the plaintiff brought an action to enforc e a judgment of a Hong Kong court. In ruling on the defendant’s motion to dismi ss, the court noted that the Hong Kong20 judgment did not fall under Texas’ UF CMJRA because the Hong Kong action sought an injunction and did not seek a money judgment. Id . at *4. Further, although the Siko court went on to find that the Hong Kong judgment could be enforced under traditional comity principles, those principles do not apply here. First, the court in Siko disposed of the defendant’s argument that it was not subject to personal jurisdiction in Hong Ko ng because the defendant did not set forth any argument why there was a lack of personal jurisdiction, and because the defendant had appeared in the Hong Kong action to contes t jurisdiction and lost. Id . at *8-9. Here, on the other hand, r ecognition of the Union’s Mexican Judgment would violate Arriba’s due process right as it was never served in the Mexican action and it did not appear in that action. (6 CR 4760, ¶ 4.) In addition, the forum selection clause in Siko was permissive because it provided that the plaintiff submitted to “ non-exclusive jurisdiction of all Federal and State Courts sitting in Kendall County.” Siko at *14 (emphasis in original). As a result, the court found that the plainti ff was allowed to proc eed in Hong Kong. Id

. at *13-14. However, the forum selection clause in the Settlement Agreement is mandatory – “In the event any dispute ar ises between the parties, all parties expressly agree that any such dispute will be resolved exclusively by submission of same to a district court in Houston, Ha rris County, Texas.” (18B RR 67 [DX50]21 [emphasis added].) This mandatory foru m selection clause required the Union to seek relief in the District Court in Harris County, Texas, and requ ired that Texas law would govern. Therefore, the Union’s Mexican Judgment is not enforceable under principles of comity as was the judgment in Siko

. A case that is on point is Brosseau v. Ranzau , 81 S.W.3d 381 (Tex. App. – Beaumont 2001, pet. denied), wherein the Court of Appe als refused to enforce a Mexican judgment. In that case, the appellant sought to enforce a Mexican judgment that provided a declaration re garding the true stockholders of a corporation owning Mexican real estate. Id . at 387. Initially, the Court of Appeals correctly found that the case did not fall within the parameters of the UFCMJRA because the appellant was not asking the c ourt to enforce the portion of the Mexican judgment requiring the appellee to pay damages. Neverthe less, the court looked to the UFCMJRA “as persuasive if not bi nding authority” regarding the court’s application of the common law principl es of comity and collateral estoppel. 7 Id . at 388.

7 The Court in the present case need not look to the UFCMJRA for guidance here. The Union argues that the Union’s Mexican Judgment is res judicata under the UFCMJRA. However, Brosseau did not involve choice-of-law and forum sel ection clauses like those that exist in this case. Moreover, UFCMJRA does not apply since that judgment is not a money judgment. The statute is clear and unambiguous on this point. Therefore, the Court of Appeals’ in Brosseau was wrong in looking to the UFCMJRA for guidance. The Court’s analysis can end there.22 In analyzing the common law principles of comity and collateral estoppel, the court noted that “[o]ne underlying principl e of comity and, by inference, the UFCMJRA, is the ‘convenience, and the need for an orderly procedure in resolving jurisdictional disputes.’ ” Id . at 388 quoting Miles v. Ford Motor Co ., 914 S.W.2d 135, 138 (Tex. 1995). That includes the Te xas common law principle that “ ‘the court in which the suit is first filed acquire s dominant jurisdiction to the exclusion of other coordinate courts.’ ” Id . Accordingly, the Court of Appeals found that it was proper “to conclude that giving est oppel effect to a judgment obtained in a proceeding filed some six years after th e court below exercised jurisdiction ... would be unwarranted.” Id . Similarly, in this case, the Union obtained the Union’s Mexican Judgment almost a year af ter the parties began litigating the issue of the enforceability of the Settlement Agreem ent before the trial court. Therefore, it is also proper here not to give e ffect to the Union’s Mexican Judgment. Finally, the Court of Appeals in Brosseau also noted a provision in the UFCMJRA that is equally applicable here : Texas Civil Practic e & Remedies Code § 36.005(b)(5) – a foreign judgment is not enfo rceable in Texas if “the proceeding in the foreign country court wa s contrary to an agreemen t between the parties under which the dispute in question was to be se ttled otherwise than by proceedings in that

court.” See Brosseau , 81 S.W.3d at 388-390. Here, as set forth above, the23 Settlement Agreement contains a mandatory forum selection clause requiring the parties to file any action arising out of the agreement with the District Court in Harris County, Texas, and for that action to be governed by Texas law. As a result, the Union’s Mexican Judgment is also unenforceable.

III. Arriba Presented Overwhelming Evidence of Actual and Apparent Authority Sufficient to Overcome the Union’s Legal Sufficiency Challenge In reviewing the legal sufficiency of th e evidence, the Court must consider the evidence in the light most favorable to the jury’s decision and indulge every reasonable inference that would support it. City of Keller v. Wilson , 168 S.W.3d 802, 822 (Tex. 2005). “If the evidence at trial would enable reasonable and fair-minded people to differ in their conclusi ons, then jurors must be allowed to do so. A reviewing court cannot substitute its judgment for that of the trier-of-fact, so long as the evidence falls within this zone of reasonable disagreement.” Id . “As trials normally focus on issues that jurors could decide either wa y, reviewing courts must disregard evidence cont rary to the verdict far mo re often than they must consider it.” Id . at 818-819. The jury is the sole judge of witne sses’ credibility, a nd it may choose to believe one witness over a nother. A reviewing court may not impose its own opinion to the contrary. Id . at 819. “It is the province of the jury to resolve24 conflicts in the evidence. Ac cordingly, courts reviewing all the evidence in a light favorable to the verdict must assume that jurors resolved all conflicts in accordance with that verdict.” Id . at 820. As the party that did not have the burden of proof on the issue of authority, the Union must demonstrate that there is no ev idence to support the jury’s finding that Ryerson and Alvarez had actual and apparent authority to enter into the Settlement Agreement on behalf of the Union. Reliant Energy Servs. v. Cotton Valley Compression, LLC , 336 S.W.3d 764, 781 (Tex. App. – Houston [1st Dist.] 2011, no pet.). The Union can only meet its burden by showing that “(a) there is a complete absence of evidence of a vital fact, (b) the court is barred by rules of law or of evidence from giving weight to the only evid ence offered to prove a vital fact, (c) the evidence offered to prove a vital fact is no more than a mere scintilla, or (d) the evidence conclusively establishes the opposite of the vital fact.” Id . [internal quotations and citations omitte d]. Here, the evidence overwhelmingly established that Alvarez and Ryerson had bot h actual and apparent authority. A. The Union Has Failed to Establis h that Mexican Law Applies to Determine the Issue of Authority The Settlement Agreement contains a clear and unambiguous choice-of-law provision that requires the application of Te xas law to the parties’ dispute. (18B RR 67 [DX50].) This is in addition to th e Texas forum selecti on clause referenced25 above. ( Id .) Nevertheless, the Union argues that Mexican law applies to the determination regarding whether Ryerson and/ or Alvarez had author ity to enter into the Settlement Agreement. 8 If the Union’s argument were correct, a foreign entity – whether of a foreign state or a foreign c ountry – could come to Texas, negotiate a contract with Texas residents in Texas, 9 contractually agree that the parties contract be governed and construed in accordance with Texas law, and then breach the contract and force the parties and the c ourts to apply foreign law in order to determine whether the signatory had authority to enter into the contract on behalf of the foreign entity. Fortunately, the Uni on is wrong regarding the application of Mexican law. The cases upon which the Uni on relies do not support its argument. Under Texas law, the Settle ment Agreement’s Texas ch oice-of-law provision is dispositive. First, the Union cites to footnote one of the United States Supreme Court’s opinion in Buckeye Check Cashing, Inc. v. Cardegna , 546 U.S. 440 (2006) as

8 In making a determination regarding choice-of-law, there is a presumption that the foreign law is the same as Texas. As the party advocating th e application of Mexican law, the Union bore the burden of establishing that it differed from Texas law to overcome that presumption. Excess Underwriters at Lloyd’s v. Frank’s Casing Crew & Rental Tools, Inc ., 246 S.W.3d 42, 53 (Tex. 2008). The Union has failed to meet its burden in this regard.

9 Incidentally, the only reason that Arriba is not a Texas corporat ion is that the Union required Arriba’s initial shareholders, Bill Flanigan a nd David Black, who were both born and bred Texas residents, to form a Bahamian co rporation in order to enter into the initial 1984 cont ract with the Union. (8 RR 81-83.)26 support for its contention that issues such as capacity to enter into a contract are not controlled by the contract’s choice-of-law provision. However, that case only addressed whether the enforceability of an arbitration clause was a matter for the court or the arbitrator to decide. It did not address which law applied to a determination of authority to contra ct. Moreover, in that footnote the Supreme Court made it clear that it was not deciding the issue of whether it was for the court or the arbitrator to decide the issue of lack of authority. Id . at 444 n. 1 (Supreme Court noted that “[o]ur opini on today ... does not speak to the issue ... [of] whether the signor lacked authority to commit the alleged pr incipal” was for the courts to decide). Thus, this case in no way supports the Union’s argument. The Union next relies on dicta in In re Morgan Stanley Co ., 293 S.W.3d 182 (Tex. 2009), which also involved the issue of whether the court or the arbitrator determined the enforceability of an arbitration agreement. Specifically, the Union relies on the court’s discussion of a Fifth Ci rcuit opinion that stated “that where a party attacks the very existenc e of an agreement ... the cour ts must first resolve that dispute.” Id . at 189. However, such dicta has no precedential value. Lester v. First American Bank , 866 S.W.2d 361, 363 (Tex. App. – Waco 1993, writ denied). Moreover, the analysis of whether a c ourt or arbitrator should determine the enforceability of an arbitra tion agreement has nothing to do with which law governs27 the issue of whether an agent had authority to enter into a contract on behalf of his principal. For this reason, the Union’s reliance on Am. Med. Techs., Inc. v. Miller , 149 S.W.3d 265 (Tex. App. – Houston [14th Di st.] 2004, no pet.) is also misplaced. The Union next quotes the New York District Court in Pegasus Aviation IV, Inc. v. Aerolineas Austral Chile, S.A ., 2012 WL 967301, at *5 (S.D.N.Y. 2012) – “It would make little sense to resort to la w simply because it was designated by a contract provision in order to determine whether that very contract is even operative.” However, that case applied New York law, which us es the “center of gravity” or “grouping of contacts” analysis rather than deferring to the parties’ choice-of-law provision. Id . Texas law is critically different on this point. As determined by the Texas Supreme Court in another case upon which the Union relies, Duncan v. Cessna Aircraft Co ., 665 S.W.2d 414, 421 (Tex. 1984), a contract’s choice-of-law provision is determinative. Only if there is no choice-of-law provision will Texas courts engage in a significant relationship analysis, which resembles the analysis applied in Pegasus Aviation

. Id . (“in all choice of law cases, except those contract cases in which the parties have agreed to a valid choice of law clause , the law of the state w ith the most significant relationship to the particular substantive issu e will be applied to resolve that issue.” [Emphasis added].). See also Scottsdale Ins. Co. v. Nat’l Emerg. Servs., Inc . 17528 S.W.3d 284, 291 (Tex. App. – Houston [1 st Dist.] 2004, pet. denied) (“ Except when a contract with a valid choice of law clause applies , Texas courts apply the substantive law of the state with the most significant relationship to the particular dispute at issue.” [Emphasis added].). Therefore, the parties’ inclusion of the Texas choice-of-law provision in the Settlement Agreement requires the applicati on of Texas law on all issues related to the governance or interpretation of that ag reement. This includes the issue of Ryerson and Alvarez’ authority to enter in to the agreement on behalf of the Union.

B. The Evidence Establishes that Ryer son and Alvarez Both Had Actual Authority to Bind the Union to the Settlement Agreement “Actual authority denotes that author ity which the principal intentionally confers upon the agent, or intentionally a llows the agent to believe he has, or by want of ordinary care allows the ag ent to believe himself to possess.” Suarez v. Jordan , 35 S.W.3d 268, 273 (Tex. App.—Houst on [14th Dist.] 2000, no pet.). However, the existence of actual authority may be implied from the conduct of the parties or from the facts and circumstances surrounding the transaction in question. Walker Ins. Servs. v. Bottle Rock Power Corp ., 108 S.W.3d 538, 550 (Tex. App. – Houston [14th Dist.] 2003, no pet.). In determining wh ether Ryerson or Alvarez had actual authority to act for the Uni on, the Court must examine the words and conduct by the Union to Ryerson and Alvarez regarding their authority to act for the29 Union. Reliant Energy Servs ., 336 S.W.3d at 783. Here, there is ample evidence that the Union granted Ryerson and Alva rez authority to act on its behalf in resolving its disputes with Arriba. There can be no dispute that Ryerson had actual authority to represent the Union with regard to its disputes with A rriba. Virtually every witness testified to this fact. The Union has a history of hiring attorneys to conduct broad aspects of its business. ( See 10 RR 253-256.) Those attorneys are given the authority to conduct business on the Union’s behalf, in cluding retaining additional attorneys as they deem necessary. ( Id .) Ryerson was given this broad authority. Starting with the Union’s own witnesses, one of its attorneys, George Muñoz, testified that Ryerson had been the Union’s attorney with regard to the Arriba cases since 1990. (10 RR 252-253.) Ryerson had a written contract with the Union reflecting his authority to act as the Uni on’s attorney with regard to the Arriba matters. (10 RR 257-258.) That contract was modified on a number of occasions. (10 RR 258-259.) Muñoz testified that Ryerson’s representation was not terminated until late-2004 – after the Union a ffirmed his authority as counsel for the Union. ( See 11 RR 8-9, 52-53, 57, 67-68; 18A RR 167 [IX 14] [“We believe that you, because of your knowledge of the pr oblems with ARRIBA, LTD., can be an important member in the staff that Mr. M uñoz directs in the United States.”]; 18A30 RR 169 [IX 16] [“The purpose of this letter is to instruct you to cease any and all activities that may be interpreted or pres umed as being authorized or otherwise directed by (the Union).”].) This was after the Settlement Agreement was executed, which was May 21, 2 004. (18B RR 59 [DX 50].) Another Union attorney, Eduardo Gonzal ez, also testified that Ryerson was retained by the Union to represent it with regard to the Arriba matters and to see those matters through to conclusion. (11 RR 237-238, 241, 248.) As a part of that retention, Ryerson was authorized to bri ng on other attorneys to assist with the litigation. (11 RR 247-248.) One of those attorneys was Bill Burke, who was retained as trial counsel. (11 RR 252- 253.) However, Ryerson continued to represent the Union, openly and notorio usly. (11 RR 253-254.) Like Muñoz, Gonzalez testified regarding the numer ous contracts and modifications between Ryerson and the Union regarding his repr esentation. (11 RR 249-252.) For his work as the Union’s attorney, Ryerson was paid millions of dollars. (11 RR 251-252.) Also like Muñoz, G onzalez testified that the Union re-affirmed that Ryerson was still its attorney at least as la te as November, 2004, and that he was not terminated until the fall of 2004 . (11 RR 257, 263; 12 RR 61.) Bill Burke, who at one point was trial counsel for the Union in the Arriba cases, testified that he was hired by Ryerson. (13 RR 87.) Burke confirmed that31 Ryerson was present for the Union at the tr ial in a related Arri ba case in 1997. (13 RR 119, 138.) Burke further testified th at Ryerson continued to represent the Union even after he went to work for Enro n. (13 RR 138.) Finally, Burke testified that he and Ryerson likely discussed the f act that $43 million had been seized in a

Union bank account in New York in 2003. (13 RR129-130.) When Ryerson took the stand, he confirmed that this discussion did occur and was undertaken as a part of his representation of the Union. (11 RR 168-169.) Moreover, when Burke was relieved as counsel for the Union, the Un ion filed a document with the trial court removing Burke as a counsel of record for the Union. The Union never filed anything similar with regard to Ryerson at any time before th e subject Settlement Agreement was signed. (8 RR 60-61.) This is because Ry erson remained the Union’s attorney throughout this time. There can, therefore, be no question that Ryerson had full authority to act on behalf of the Union when he signed the Settlement Agreement. In terms of Arriba’s representativ es, David Black, who is an Arriba shareholder and was Arriba’s attorney who secured the 1986 Judgment, testified that Ryerson was constantly the Union’s atto rney going back to 1990. (8 RR 55-57, 70.) From 1990 through 2004, Ryerson was a constant as the Union’s primary attorney in these matters. (8 RR 71-72 , 184-185.) This included during an 1832 month period while Ryerson worked for En ron, during which time Black met with him as the Union’s attorney. (8 RR 61. ) Although Ryerson hired Burke as trial counsel for the Union (8 RR 222), Ryerson still appeared at the 1997 trial on behalf of the Union. (8 RR 57.) This arrang ement was not unusual for the Union, as Muñoz was the Union’s lead counsel at the trial below and was present at the trial, but he did not participate in actually trying the case, nor did he s it at counsel table. (10 RR 233.) Black further testified that while the Union provided notice that Burke was no longer its attorney, it never provided notice that Ryerson was no longer its attorney. (8 RR 60-61.) One of Arriba’s subsequent attorneys, Stan Nelson, also dealt with Ryerson throughout his representation of Arriba. In fact, Nelson testified that when he became involved in the cases in 1999 th rough 2004, Ryerson was the Union’s top lawyer. (9 RR 184.) Nelson was given this impression by reading the files, speaking with his clients, and by speakin g with Burke. (10 RR 44-46.) Ryerson was the Union’s lead lawyer w ith regard to the Arriba ma tters. (9 RR 157, 161.) Further, Nelson was aware that Ryerson had hired Burke to represent the Union. (9 RR 157; 10 RR 184-185.) Nelson continued to comm unicate with Ryerson regarding the cases after Burke was retained to represent the Union in the litigation with Arriba. (10 RR 25.)33 He continued to communicate with Ryerson after Ryerson went to work at Enron, and even after Muñoz replaced Burke as th e Union’s litigation attorney in 2003. (9 RR 185-186.) In fact, Gomez, as Receiver for Arriba, testified that Ryerson was the only attorney for the Union that he had ever met. (9 RR 97-98.) After Nelson garnished the Union’s funds in New York, Ryerson reached out to him on behalf of the Union to discu ss the possible resolution of the parties’ disputes. (9 RR 159-161.) Because Ryers on was the Union’s attorney, there was nothing unusual about Nelson negotiating the Settlement Ag reement with him. (9 RR 189-190.) Finally, Ryerson testified that he was retained in 1990 by both the Union and its Commission of Contracts in order to resolve all of the pending litigation with Arriba. (11 RR 153-156.) Ryerson wa s hired by Ruben Chor eño, who was the Union’s long-time attorney under a very br oad general power of attorney from the “Sindicato” that Ryerson had seen. 10 (12 RR 114-115; 18A RR 53 [PX 22].) Choreño also verified pleadings for the Union in the various Arriba cases. ( See,

e.g., 11 RR 159-160, 173; 18A RR 57-58 [PX29].)

10 It should be noted that Ryerson speaks fluent Spanish and coul d read the Sindicato’s written grant of a power of attorney. (11 RR 150.)34 After he hired Burke, Ryerson helped Burke in defending the Union in the Arriba actions. (12 RR 130-131.) Ryerson represented the Union at the trial in 1997, and through the appeal in that matter. (11 RR 166-167; 12 RR 109-110.) Ryerson testified that he continued to repr esent the Union after he went to work at Enron. (11 RR 167.) In fact, his continue d representation of the Union was part of his agreement with Enron. (11 RR 167-168.) By 2002, Deschamps and the number tw o person at the Union, Ricardo Aldana Prieto, had been indicted in Me xico for embezzling the $43 million that was located in New York, for electoral fraud, and for violation of public trust. 11 (10 RR 249-250; 11 RR 169-171.) Those charges we re not dropped until 2006. (11 RR 18.) A Union representative testified that such an indictment could result in a Union official losing his office. (10 RR 221-222.) Ryerson testified that this is exactly what happened when Deschamps a nd Prieto were indicted. (11 RR 209.) The Union’s leadership was in turmoil. (11 RR 171-172.) As a result, Ryerson was approached by Choreño, w ho was still operating under the general power of attorney gran ted by the “Sindicato.” (11 RR 172-173; 18A RR 53 [PX 22].) That general power of attorney “for suits and collection”

11 As noted above, Ryerson witnessed simila r corruption by Deschamps first hand. ( See 12 RR 97-103; 133-134.)35 granted Choreño the authority to “comprom ise” on behalf of the Union, among other things. 12 (18A RR 50 [PX 22].) Choreño was acting at the request of La Quiña, who was the founder and long-time presid ent of the Union. (11 RR 174-175.) Ryerson had a discussion with the administ ration of the then President of Mexico, Vincente Fox, who told him that he shoul d deal with La Quiña and Choreño with respect to the Arriba litigation because they had been asked to handle the issues with the Union and Pemex, and to try to make sure the money in New York would go back to the Union. (11 RR 177-178; 12 RR 112, 138-139.) At that time, Ryerson was told by officials of the administration a nd others with authority in the Union that Deschamps was going to jail and that he was not to speak with Deschamps or any of his associates. (11 RR 177-178; 12 RR 173- 174, 179-180.) Th is made sense because they were under indictment for, in part, the $43 million which had been embezzled to New York and garnished, and they no longer had authority to act for the Union. (11 RR 178; 210-211.) Ultimately, Ryerson was directed by these Union officials and given specific authority to settle the Arri ba matters. (11 RR 178-17 9, 210-213; 12 RR 117-118,

12 The Union argues that this power of attorney is not valid under Texas law because there was no evidence that it was signed by the Union. Not only does that document speak for itself – it is signed (18A RR 52, 55 [PX 22]) – but the Union’s ow n attorney testified th at it was a power of attorney granted by the Union. (13 RR 46-48.)36 137-138; 18A RR 45 [PX 16].) In fact , Ryerson was given specific written instructions by Alvarez, on behalf of the Un ion, to “take all necessary measures to bring to a good conclusion the negotiations as may be pertinent ... with the representative(s) of the company ‘Arriba limited.’ ” (18A RR 45 [PX 16].) Ryerson did as directed, and negotiated a nd entered into the Settlement Agreement on behalf of the Union. (11 RR 180-182; 12 RR 119-120.) Thus, there was clear a nd overwhelming evidence that Ryerson was the Union’s attorney with regard to the Arriba cases from 1990 through December, 2004. The evidence also establishes that Ryerson had specific authority to enter into the Settlement Agreement. Moreover , as the Union’s attorney, Ryerson is presumed to have had actual authority to enter into the Settlement Agreement on behalf of the Union. City of Roanoke v. Town of Westlake , 111 S.W.3d 617, 629 (Tex. App. – Fort Worth 20 03, pet. denied). Althoug h this presumption may be rebutted ( id .), the conflicting testimony on this issu e must be resolved in favor of affirming the jury’s finding of actual authority. See City of Keller , 168 S.W.3d at 819 (“Courts reviewing all the evidence in a light favorable to the verdict thus assume that jurors credited testimony fa vorable to the verdict and disbelieved testimony contrary to it.”). Therefore, the Court should find that the evidence was37 legally sufficient to support the jury’s fi nding that Ryerson had actual authority to enter into the Settlement Agreement on behalf of the Union. The evidence was also legally sufficien t so support the jury’s finding that Alvarez had actual authority to bind the Union to the Settlement Agreement. As noted above, Ryerson was instructed by La Quiña and Choreño, on behalf of the Union, to settle the Arriba matte rs. (11 RR 177-179, 210-213; 12 RR 117-119, 137-138; 18A RR 45 [PX 16].) Ryerson was to ld to deal specifically with Alvarez as the Union’s representative. (11 RR 206-207.) To this end, Ryerson was presented with a written power of attorney issued by the Un ion in favor of Alvarez. (11 RR 182-183.) The existence of Alvarez’ power of attorney was recognized in Exhibit B to the Settlement Agreement. (18B RR 89-92 [Alvar ez “concurs in this act as general attorney in fact of the O il Workers of the Mexican Republic’s Union”; “who appears in his condition of attorney in fact”; “in his condition of attorney in fact”; “it is issued for [Alvar ez], in his capacity of attorney in fact of the Oil Workers of the Republic of Mexico’s Union”].) Th at power of attorney granted Alvarez the authority “to litigate and collect,” includ ing the power “to celebrate all kinds of contracts,” among other things. (18B RR 91 [DX 50].) The Union has ignored all of this evid ence and has instead focused on other testimony it claims shows that the Union never granted Ryerson or Alvarez the38 authority to enter into the Settlement Agre ement. In particular, the Union relies on the testimony from its witnesses that Desc hamps remained in power even after he was indicted. This is the shell game th at the Union plays. It enters into agreements using one or more of its author ized agents. It clothes the agents in every way as having full written power of attorney. It knowingly permits these agents to represent themselves as agents of the Union, including statements made in court. Then, if and when the Union subs equently breaches its agreements, it simply contends that its agents were not authorized to enter into that particular transaction. Nevertheless, the Court must assume that jurors resolved all conflicts in accordance with their verdict that Ryerson and Alvare z had actual authority if reasonable human beings could do so. City of Keller , 168 S.W.3d at 819. The jury was presented with legally su fficient evidence to support its verdict that Ryerson and Alvarez had actual aut hority from the Union to enter into the Settlement Agreement. Therefore, the jury’s verdict must be upheld. C. The Evidence Establishes that Alvarez and Ryerson Both Had Apparent Authority to Bind the Un ion to the Settlement Agreement In the event the Court does not find that there was legally sufficient evidence of Ryerson and Alvarez’ actual authority to enter into the Settlement Agreement, which it should not, there was legally suffi cient evidence to support the jury’s verdict that these individual s had apparent authority to bind the Union. “While39 actual authority is created by written or sp oken words or conduct by the principal to the agent, apparent authority is created by written or spoken words or conduct by the principal to a third party.” Walker Ins. Servs. , 108 S.W.3d at 550. Apparent authority arises either from (1) a principal knowingly permitting an agent to hold himself out as having authority, or (2) a principal's actions which lack such or dinary care as to clothe an agent with the indicia of authority, thus leading a reasonably prudent person to believe that the agent has the authority he purports to exercise. Reliant Energy Servs ., 336 S.W.3d at 784. “In determining whether an agent had apparent authority, a court considers only the conduct of the principal that would lead a third party to believe the agent had apparent authority.” Walker Ins. Servs. , 108 S.W.3d at 551. Apparent authority is based on estoppel. Gaines v. Kelly , 235 S.W.3d 179, 182 (Tex. 2007). Therefore, the party asse rting apparent authority as a basis for recovery must show justifiable reliance on the principal’s words or conduct resulting in harm to the party. Reliant Energy Servs ., 336 S.W.3d at 784. Moreover, the principal must have full knowle dge of all material facts in order to establish a claim of apparent authority. Gaines , 235 S.W.3d at 182. In this case, each of these elements is supported by legally sufficient evidence.40 1. The Union’s Lack of Ordinary Care Led Arriba to Believe that Ryerson and Alvarez had Authorit y to Enter Into the Settlement Agreement As set forth above, Ryerson began as the Union’s attorney in 1990. Muñoz, Gonzalez, and Burke all testified unequi vocally that Ryerson was the Union’s attorney and was responsible for the Arriba cases. Black and Ne lson testified that they continued to interact with Ryerson re garding these cases through the date of the Settlement Agreement – after Ryerson hired Burke and even after Ryerson went to work for Enron. When Burke’s representa tion of the Union ended, the Union filed notices with the trial court to that eff ect. (18A RR 37-42 [PX 8, 9]; 13 RR 148.) However, at no time prior to December, 2 004 did anyone tell Arriba or its attorneys that Ryerson was not authorized to act on behalf of the Union. 13 (9 RR 170-175.) No notices were filed with the Court, nor were any communications of “termination of representation” given to Arriba. In fact, Ryerson himself believed and testified that he continued to represent the Uni on until December, 2004. (12 RR 123-124.) Instead, the Union was silent. The Union l acked ordinary care in failing to advise Arriba that Ryerson no longer had authority to represent it with regard to the Arriba

13 The Union never informed Arriba that Ryers on no longer had authority because, as established above, he continued to maintain that aut hority at least until December-2004. (12 RR 122-124.)41 matters. This led Arriba to believe that Ry erson had authority, as he always had, to negotiate and enter into the Settle ment Agreement. (9 RR 189-190.) In addition, the Union lacked ordinary care in failing to revoke the powers of attorney granted to Choreño and Alvarez. 14 It was these powers of attorney upon which Arriba and Ryerson relied in negotiating and en tering into the Settlement Agreement. (10 RR 60-61, 138-139; 11 RR 172-173, 182-183; 12 RR 147-149.) Accordingly, there was legally suffici ent evidence establishing that the Union’s lack of ordinary care led Arriba to believe that Ryer son and Alvarez had authority to enter into the Settlement Agreement.

2. Arriba Justifiably Relied on the Union’s Lack of Ordinary Care to Its Detriment In light of Ryerson’s near ly 15 years as the Union’s attorney, coupled with the powers of attorney issued to Choreño and Al varez, Arriba was ju stified in relying on Ryerson as an agent for the Union to Arri ba’s detriment. The Union’s lack of ordinary care resulted in Arriba justifiabl y relying on Ryerson and Alvarez, thereby entering into the Settlement Agreement. Th is reliance was to A rriba’s detriment as it has not been able to enjoy the benefit of its bargain with the Union as set forth in the Settlement Agreement. Instead, Arri ba remains mired in litigation with the

14 As also established above, the Union did not re voke these powers of attorney because Choreño and Alvarez maintained actual authority to act on the Union’s behalf.42 Union, as it has been for 30 years now. Therefore, there was legally sufficient evidence establishing the requirement for a finding of apparent authority.

3. The Union Had Full Knowledge Th at Ryerson and Alvarez Were Acting on Its Behalf The final requirement for a finding of appa rent authority is that the Union had full knowledge of all material facts. Gaines , 235 S.W.3d at 182. As set forth above, the Union, through La Quiña and C horeño, instructed Ryerson to settle the Arriba matters. (11 RR 178-179, 210-2 13; 12 RR 117-119, 137-138; 18A RR 45 [PX 16].) They also directed Ryerson to deal with Alvarez as the Union’s representative. (11 RR 206-207.) Therefore, the Union knew Ryerson and Alvarez were working to resolv e its disputes with Arriba. While the Union may disagree with this evidence, and would rather rely on the testimony of its attorneys, 15 the Court must assume that the jury resolved these conflicts in evidence in favor of apparent authority. City of Keller , 168 S.W.3d at 819. As a result, there was legally sufficient evidence to support the jury’s finding that Ryerson and Alvarez bot h had apparent authority to enter into the Settlement Agreement on behalf of the Union.

15 The Union did not call real witnesses like Deschamps. Instead, the Union relied on the testimony of three of its lawyers, which the jury obviously concluded were not credible.43 IV. The Settlement Agreement is Support ed by Adequate Consideration Ignoring the express terms of the Settle ment Agreement, the Union continues to argue the agreement lacks adequate consid eration. This simply is not the case. Consideration is a bargained for exchange of promises. Roark v. Stallworth Oil & Gas, Inc ., 813 S.W.2d 492, 496 (Tex. 1991). Consideration consists of benefits and detriments to the contracting parties. Id . “A single consideration is sufficient to support multiple promises bargained for in an agreement.” Birdwell v. Birdwell , 819 S.W.2d 223, 228 (Tex . App. – Fort Worth 1991, writ denied). Moreover, where there is a written contr act, consideration for its execution is presumed. Blockbuster, Inc. v. C-Span Entertainment, Inc ., 276 S.W.3d 482, 488 (Tex. App. – Dallas 2008, pet. granted). As the party alleging lack of consideration, the Union had the burden to rebut that presumption. Id . The Union has failed to meet its burden. The Settlement Agreement is a written contract that is ripe with consideration. At the most basic level, the Settlement Ag reement put an end to decades of litigation between the parties. However, the Settle ment Agreement also provided the Union with the opportunity to receive 48% of th e $43 million that had been garnished by

Arriba in New York as “further considera tion for this Agreement.” (18B RR 61-62 [DX 50].) The Settlement Agreement was ente red into at a time when there was no44 guarantee that the Union would get any of this money back. The fact that the garnishments were subsequently dissolved is irrelevant – hindsight is 20-20. The Union was also able to negotiate te rms into the agreement that prohibits Arriba from enforcing the 1986 Judgment in Mexico. Specifically, pursuant to Article IV(B), since the Union failed to di stribute the garnished funds as required by the agreement, Arriba can enforce the 1986 Judgment against the Union “anywhere in the world, except in the country of Me xico.” (18B RR 62 [DX 50].) The benefit received by the Union is all the more appare nt in light of the jury’s verdict – a judgment that Arriba cannot enforce in Mexi co. With the return of the garnished funds to Mexico, Arriba must search outsi de of Mexico for assets with which to enforce its judgment. Under Article V, the Union’ s failure to distribute the garnished funds under the agreement resulted in the mutual dism issal of the 1989 litigation. However, if the Union distributed the garnished funds to Arriba as was required, the dismissal of the 1989 litigation was at the Union’s optio n. (18B RR 63 [DX 50].) These bargained-for exchanges are exactly what the Union wanted since it never intended to perform under the Settlement Agreement.45 Thus, even a cursory review of the te rms of the Settlement Agreement reveals that it is supported by adequa te consideration. Accordin gly, the Union’s appeal on this ground should be rejected.
V. The Union Has Failed to Establish a Basis for the Court to Reverse and Remand for a New Trial A. The Trial Court Did Not Abuse It s Discretion in Excluding the Union’s Evidence Regarding Mexican Law A trial court’s evidentiary rulings are reviewed for abuse of discretion. See Horizon/CMS Healthcare Corp. v. Auld , 34 S.W.3d 887, 906 (T ex. 2000). Abuse of discretion occurs when the trial court ac ts without regard for any guiding rules or principles. Downer v. Aquamarin e Operators, Inc ., 701 S.W.2d 238, 241-42 (Tex. 1985). Even if an evidentiary ruling is erroneous, the Court should not reverse unless the erroneous ruling probably caused the rendition of an improper judgment. See Auld , 34 S.W.3d at 906. “Reversible e rror in connection with rulings on questions of evidence usually does not occur unless the complaining party can demonstrate that the whole case turned on the evidence that was admitted.” Reliant Energy , 336 S.W.3d at 793. As established above, Mexican law does not apply in this case in light of the Settlement Agreement’s Texas choice-of-law provision. Since Mexican law has no application in this case, evidence regardi ng Mexican law is irrelevant. Tex. R. Evid. 401, 402. Moreover, any minimal probative value Mexican law may have46 had would have been “substantially outwe ighed” by the danger of unfair prejudice, confusion of the issues, misleading the jury , and by considerations of delay. Tex. R. Evid. 403. Therefore, the trial court di d not abuse its discretion in refusing to admit the Union’s evidence re garding Mexican law. As a result, the Court should also reject the Union’s appeal on this issue.

B. Any Error in Instructing the Jury Regarding Apparent Authority, if Any, Was Harmless A trial court's decision to submit or refu se a particular instruction is reviewed under an abuse of discretion standard. Thota v. Young , 366 S.W.3d 678, 687 (Tex. 2012). “The trial court ha s considerable discretion to determine proper jury instructions, and ‘[i]f an instruction might aid the jury in answering the issues presented to them, or if there is any suppor t in the evidence for an instruction, the instruction is proper.’ ” Id . quoting La.-Pac. Corp. v. Knighten , 976 S.W.2d 674, 676 (Tex. 1998). “An instruction is proper if it (1) assists the jury, (2) accurately states the law, and (3) finds suppor t in the pleadings and evidence.” Columbia Rio Grande Healthcare, L.P. v. Hawley , 284 S.W.3d 851, 855-56 (Tex. 2009). In this case, the Court should not reverse the judgm ent for a charge error unless that error was harmful because this Court determines that it “probably caused the rendition of an improper judgment. Thota , 366 S.W.3d at 687 quoti ng Tex. R. App. P. 44.1(a)(1). The Union bears the burden of establishing the error was harmful. See47 Crescendo Invs. v. Brice , 61 S.W.3d 465, 477 (Tex. App. – San Antonio 2001, pet. denied) (“[appellant] has the burden to show the error probably caused the rendition of an improper judgment.”). Here, the trial court instructed the ju ry on apparent authority using Texas Pattern Jury Charge 101.4. (14 CR 7630-7631. ) This is an accurate statement of the law in Texas. See Gaines , 235 S.W.3d at 182-183. Although the Union contends that the instruction was not complete in light of Gaines , the Union has failed to present any evidence of argument establishing how the trial court’s refusal to submit its proposed instructions “pro bably caused the rendition of an improper judgment.” In fact, as set forth above, th e evidence established that Ryerson and Alvarez had actual authority to enter into the Settlement Agreement on behalf of the Union. Therefore, the trial court’s fail ure to submit the Union’s proposed jury charge on apparent authority could not cause the rendition of an improper verdict. Moreover, as also set forth above, the evidence submitted to the jury established that: (1) the Union’s lack of or dinary care led Arri ba to believe that Ryerson and Alvarez had authority to en ter into the Settlement Agreement; (2) Arriba justifiably relied on the Union’s lack of ordinary care to its detriment; and (3)48 the Union had full knowledge of all material facts. 16 Therefore, there was no harmful error due to the trial court’s refu sal to use the Union’s proposed charge to instruct the jury regarding apparent authority. Applying the principles in Columbia Rio Grande Healthcare , supra , the trial court’s charge to the jury regarding appare nt authority was proper because it assisted the jury in determining the applicable law to apply to this case, it accurately stated the law in Texas regarding apparent author ity as set forth in Texas Pattern Jury Charge 101.4, and the instruction was supported by the pleadings and evidence. Finally, the Union has failed to offer any evidence or argument demonstrating that the jury may have had an inaccurate impression that Ryerson’s status as the Union’s attorney improperly clothed him with authority to enter into the Settlement Agreement. For all of these reasons, the Union has failed to meet its burden of proving harmful error. Therefore, there is no basis for the Court to find that the trial court’s charge to the jury probably caused the rendition of an improper judgment.

16 Despite the Union’s claim to the contrary, the trial court did instruct the jury regarding the reasonably prudent person standard. (14 CR 7630.)49 C. The Evidence Was Factually Suffi cient to Support the Jury’s Findings on Actual and Apparent Authority In reviewing a jury’s verdict for factua l sufficiency, an appellate court must examine both the evidence supporting and contrary to the judgment. Reliant Energy , 336 S.W.3d at 781. However, the jury remains the sole judge of witnesses' credibility, and it may choose to believe one witness over anothe r. A reviewing court may not impose its own opinion to the contrary. Id . at 781-782. “In reviewing a factual-sufficiency challenge to a jury finding on an issue on which the party did not have the burde n of proof, we consider a nd weigh all of the evidence and set aside the verdict only if the evidence that supports the jury finding is so weak as to make the verdict clearl y wrong and manifestly unjust.” Id. at 782. Here, the evidence was not only legally su fficient, as estab lished above, it was also factually sufficient. The jury clearly believed th e testimony presented regarding Ryerson and Alvarez’ actual and apparent authority. That evidence was strong and persuasive, and certainly not so weak as to make the verdict clearly wrong and manifestly unjust. Therefore, the Union’s factual sufficiency challenge should be denied.

D. The Trial Court Did Not Error in Denying the Union’s Motion for Mistrial The Union next challenges the trial cour t’s denial of its motion for mistrial based on its contention that Arriba and Ryerson did not timely disclose certain50 evidence. A trial court’s deni al of a mistrial is reviewed for abuse of discretion. Lewis v. United Parcel Serv., Inc ., 175 S.W.3d 811, 815 (Tex. App. – Houston [1st Dist.] 2004, pet. denied). A trial cour t abuses its discretion if it acts without reference to any guiding rules or principles. Downer v. Aquamarine Operators,

Inc ., 701 S.W.2d 238, 241-42 (Tex. 1985). Here, the Union argues that Arriba failed to identify the attorney for Arriba’s Receiver in the Bahamas, Ruth Bowe-Darv ille, as a potential w itness and failed to produce requested documents regarding Arri ba’s claims that Ryerson and Alvarez had authority . The Union contends that this information was then wrongfully disclosed to the jury during Gomez and Nelson’s testimony. Contrary to the Union’s claims, Gomez and Nelson only testified regarding Bowe-Darville’s assistance in confirming Ryerson and Alvarez’ identity when they arrived in the Bahamas to sign the Settlement Agreement. This testimony was entirely consistent with Arriba’s discovery responses. Specifically, the Union’s motion is based on its Interrogatory Nos. 8 and 9 and Requests for Production Nos. 35 and 37. ( See 13 CR 7418-7419.) All of this discovery went to Arriba’s contention th at Ryerson and Alvarez had authority to enter into the Settlement Agreemen t on behalf of the Union. ( Id .) Arriba responded that Nelson verified their auth ority and that both Gomez and Black were51 fully aware that Ryerson had been the Union’s long-standing attorney. (13 CR 7418.) Arriba also produced responsive documents. The Union claims that Gomez and Nelson improperly testified that Bowe-Darville had a “dossier” with Alvarez’ passport and verified his authority to bind the Union. This simply is not true. Importantly, all of this testimony was elicited by the Union’s attorney and he was the one who us ed the term “dossier.” (9 RR 42-43, 213.) Arriba did not seek to introduce the testimony in the first instance. C.f. In re City of Houston , 418 S.W.3d 388, 396 (Tex. App. – Houston [1st Dist.] 2013, orig. proceeding) (trial court abused its discretion in granting new trial where party that did not disclose ev idence did not seek to use the undisclosed evidence). In addition, the term “dossier” is one th e Union came up with in order to try to create an appellate issue. ( See 14 RR 9.) Gomez merely testified that, in most cases, his Bahamian attorney would assemb le documentation rega rding individuals with whom he was doing bus iness. (9 RR 43-44.) However, despite the Union’s attorney’s attempts to get Gomez to confirm that such a “dossier” was created in this instance reflecting Alvarez’ background, Go mez only testified that he would have reviewed such documents if they existed. ( Id .) In fact, there was no dossier in this instance. (14 RR 9.) Moreover, the Union was aware of Alvarez’ passport52 number throughout this litigation as it app ears on the power of attorney, which is attached as Exhibit B to the Settlement Agreement. (18B RR 89-90 [DX 50].) Under examination by the Union’s attorney, Nelson testified that Bowe-Darville did not do anyt hing beforehand in terms of due diligence, but that she “may have made sure they were who they said they we re when they arrived.” (9 RR 213.) Thus, Arriba responded truthfully and co mpletely to the Union’s discovery. However, even if Arriba’s di scovery responses were somehow lacking, which they were not, Gomez and Nelson’ s testimony was nonetheless admissible under Texas Rules of Civil Procedure 193.6( a) since the Union knew of Alvarez’ passport number from Exhibit B to the Se ttlement Agreement a nd also knew about the existence of Bowe-Darville as A rriba’s Bahamian attorney, who Gomez identified and discussed numerous times dur ing his deposition. (14 RR 9-10.) The Union next argues that the trial cour t should have granted a mistrial based on Ryerson’s failure to produce an affi davit regarding a cash payment Ryerson received from the Union in 1992. Initially , as the Union concedes, the trial court did not admit the affidavit into evidence. Therefore, the trial court did not abuse its discretion in denying the Union’s motion for mistrial. In addition, as argued by Ry erson’s attorney to the tr ial court, the affidavit was not responsive to any of the Union’s requests. ( See 13 CR 7517-7522;53 Appellant’s Brief p. 69; 14 RR 18-22.) Ry erson brought the affiant with him to Mexico because he wanted a witness to the fact that he was getting less than the $3.5 million he was supposed to be paid by the Union for U.S. IRS tax purposes. (12 RR 100-101; 14 RR 18.) Thus, the a ffidavit was not made with regard to a dispute with the Union and it was not a part of Ryerson’s Union file. (13 CR 7521-7522.) Further, Ryerson did not intend to call th e affiant because he had passed away. (14 RR 20-21.) Finally, Ryerson did not intend to use the affidavit at trial, and he objected to the Union’s broad request for “[a] ll exhibits you intend to use at trial” on work product grounds. (13 CR 7518; 14 RR 18.) For all of these reasons, the trial cour t did not abuse its discretion in denying the Union’s request for a mistrial.

E. The Court Properly Refused to In struct the Jury Regarding the Union’s Counterclaims The Union’s final charge of error is that the trial court improperly refused to instruct the jury on its counterclaims for wrongful garnishment against Arriba and breach of fiduciary duty against Ryerson. Ryerson is in a better position to address the Union’s claim regarding breach of fiduciary duty. 17 With regard to the Union’s

17 In the event the Court finds that the trial cour t should have instructed the jury on the Union’s breach of fiduciary duty claim, the Court should only reverse that portion of the judgment and leave the rest intact. Tex. Rul. App. Proc. 44.1(b).54 claim for wrongful garnishment, the trial court was correct in not submitting that issue to the jury. Arriba moved for directed verdict on the Union’s claim for wrongful garnishment. (14 RR 50.) The trial court’s decision not to submit the issue to the jury was the result of the trial court gran ting Arriba’s motion. Unfortunately, the record does not reflect this fact because the trial court took the proceeding off record. ( Id .) Accordingly, the Court should re view this issue under the standard for reviewing a directed verdict. In reviewing a directed verdict, th e standards are the same as a legal sufficiency challenge. City of Keller , 168 S.W.3d at 823. To reiterate, “[i]f the evidence at trial would enable reasonable a nd fair-minded people to differ in their conclusions, then jurors must be allo wed to do so. A reviewing court cannot substitute its judgment for that of the trier-of-fact, so long as the evidence falls within this zone of reasonable disagreement.” Id . at 822. “It is the province of the jury to resolve conflicts in the evidence . Accordingly, courts reviewing all the evidence in a light favorable to the verdic t must assume that jurors resolved all conflicts in accordance with that verdict.” Id . at 820. The only evidence the Union ci tes in support of this challenge is the fact that the trial court granted the Union’s motion and released Arriba and Ryerson’s writs55 of garnishment. The Union then contends that the trial court determined that the writs failed to meet the requirements for i ssuance. Not only is this statement not supported by the record, it does not establish the Union’s claim even if it were true. First, the court’s order simply states th at it is of the opinion that the Union’s motion is well taken and sustains the motion to dissolve the writs of garnishment. (4 CR 3379-3380.) The Union’s motion to di ssolve Arriba’s writ was based on four arguments, the Union arguing that any one of which would provide a basis to dissolve the writ: (1) Arriba’s applicati on for the writ was defective; (2) the affidavit/verification supporting the writ was inadequate; (3) the garnished funds

were in custodia legis and were not subject to ga rnishment; and (4) Arriba’s application contained false information. (4 CR 3139.) However, there is nothing in the record to indicate which one of thes e arguments provided the basis for the trial court’s order releasing the writs of garn ishment. (4 CR 3379-3380.) Therefore, the fact that the trial court released the writs of garnishment does not establish the Union’s claim. In addition, a garnishment is only wrongful if the facts set forth in the affidavit are false or if the debt or judgment alle ged to be the basis for the garnishment is non-existent or not sufficient to support the writ. Aetna Cas. & Sur. Co. v. Raposa , 560 S.W.2d 106, 109 (Tex. App. – Fort Worth 1977, writ dism'd). Even if the trial56 court released the writs because the require ments for issuance were not met, there is no indication which requirements the trial c ourt believed were lacking. Thus, the trial court’s order dissolving the garnis hment does not establish the elements required for a claim for wrongful garnishment. As such, the Union’s claim of error could not have caused the rendition of an improper judgment as required by Rule 44.1(a)(1) of the Texas Rules of Appellate Procedure. The Union will likely rely on Texas Commerce Bank N.A. v. Tripp , 516 S.W.2d 256 (Tex. Civ. App. – Fort Worth 1974, writ dism’d.) to argue that Arriba’s writ of garnishment was wrongful because the 1986 Judgment had been released as a part of Arriba’s agreemen t with Comater. Initially, Texas Commerce Bank involved a prejudgment writ of garnishment. Id . at 257. Arriba’s writ of garnishment was based on the 1986 Judgment, which is a final judgment. More importantly, however, Black testified that the Comater agreement was rescinded and the 1986 Judgment was reinstated. (8 RR 196-197.) Black’s testimony was further supported by documen tary evidence of the April, 2002 agreement between Arriba and Comater reinstating the 1986 Judgment. (18A RR 31-33 [DX 7].) Arriba did not apply for its writ of ga rnishment until May, 2002. (1 CR 24.) Therefore, at the time Arri ba made its application, the 1986 Judgment was valid and in effect.57 Finally, the other cases relied upon by th e Union do not support reversing the trial court in this case. In Chandler v. Cashway Bldg. Materials, Inc ., 584 S.W.2d 950 (Tex. Civ. App. – El Paso 1979, no writ) , the court found that the garnishment was wrongful because some of the facts in the affidavit supporting the garnishment

were untrue. Id . at 952-953. Similarly, in Peerless Oil & Gas Co. v. Teas , 138 S.W.2d 637 (Tex. Civ. App. – San Antonio 1940, jdgmt. aff’d.), the jury found that the garnishment was wrongful and that the defendant acted with malice. Here, on the other hand, the Union’s only evidence to support its claim was the fact that the trial court had previously di ssolved the writ of garnishm ent. As set forth above, however, this does not establish the elemen ts of a claim for wr ongful garnishment. For all of these reasons, the Court shoul d not reverse based on the trial court’s decision not to submit the Union’s claim for wrongful garnishment to the jury. CONCLUSION AND PRAYER The Union has failed to meet its burden of establishing that the trial court erred in any manner that woul d warrant reversing the judgment entered in this case. WHEREFORE, PREMISES CONSIDER ED, Appellee/Cross-Appellant James Gomez, as Receiver for Arriba Limi ted, respectfully prays that this Court deny the appeal by Appellant and Cross-A ppellee The Petroleum Workers Union of the Republic of Mexico in its entirety.58 Appellee/Cross-Appellant further prays for such other and further relief that it may be justly entitled. Respectfully submitted, CALHOUN, BHELLA & SECHREST, LLP By: /s/ Brian Calhoun Brian Calhoun, Esq. State Bar No. 24044827 325 N. Saint Paul Street, Suite 2300 Dallas, Texas 75201 Telephone: 214.981.9200 Facsimile: 214.981.9203 Email: bcalhoun@cbsattorneys.com Michael J. Pérez, Esq. Pérez & Wilson, Inc. 750 B Street, Suite 3300 San Diego, California 92101 Telephone: 619.741.0282 Facsimile: 619.460.0437 Email: perez@perezwilson.com Steven Ward Williams, Esq. Smith Sovik Kendrick & Sugnet, PC 250 South Clinton Street, Suite 600 Syracuse, New Work 13202-1252 Telephone: 315.474.2911 Facsimile: 315.474.6015 Email: swilliams@smithsovik.com ATTORNEYS FOR PLAINTIFF JAMES GOMEZ, AS RECEIVER FOR ARRIBA LIMITED59 CERTIFICATE OF COMPLIANCE I certify that the foregoing brief is in compliance with Texas Rule of Appellate Procedure 9.4 becaus e it contains 14,138 words and has been prepared in a proportionally spaced typeface using Mi crosoft Word 2010 in 14-point Times New Roman font for text and 12- point Times New Roman font for footnotes, which meets the typeface requirements. /s/ Brian Calhoun Brian Calhoun60 CERTIFICATE OF SERVICE I certify that a true and correct copy of this brief was served on all counsel of record electronically on September 24, 2015.

Michael Choyke State Bar No. 00793504 WRIGHT & CLOSE, LLP One Riverway, Suite 2200 Houston, Texas 77056 (713) 572-4321 (713) 572-4320 (fax) choyke@wrightclose.com Paul Simon State Bar No. 24003276 SIMON HERBERT & MCCLELLAND, LLP 3411 Richmond Ave., Ste. 400 Houston, Texas 77046 (713) 987-7100 (713) 987-7120 (fax) psimon@shmsfirm.com Carlos Ryerson R YERSON & A SSOCIATES , P.C. The Kirby Mansion 2000 Smith Street Houston, Texas 77002-8652 (713) 307-9900 (832) 383-9320 (fax) carlos.ryerson@ryersonlaw.com /s/ Jeffrey A. Feasby Jeffrey A. Feasby