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Total E & P USA, Inc. v. Mo-Vac Services Company, Inc.

Court of Appeals of Texas, Thirteenth District, Corpus Christi-Edinburg

July 27, 2017

TOTAL E&P USA, INC., Appellant,

         On appeal from the 275th District Court of Hidalgo County, Texas.

          Before Justices Rodriguez, Benavides, and Longoria



         This case is before us for a second time. The underlying suit arose from appellant Total E&P USA, Inc.'s (Total) 2005 decision to award a multi-year oil field services contract to Pool Well Services, Co. a/k/a Nabors Well Services (Pool), instead of to appellee Mo-Vac Services Company, Inc. (Mo-Vac). Mo-Vac eventually sued Total and Pool alleging various claims under tort and contract theories. In 2009, a jury found in favor of Mo-Vac on each of its claims. The final judgment awarded $750, 000 in damages to Mo-Vac, and it provided in part that Total and Pool were jointly and severally liable to Mo-Vac for $433, 912.50 in attorneys' fees.

         On appeal, we reversed the judgment with respect to each of Mo-Vac's claims except its claim for breach of confidentiality agreement against Total. Total E&P USA, Inc. v. Mo-Vac Serv. Co., No. 13-10-00021-CV, 2012 WL 3612505, at **3-8 (Tex. App.- Corpus Christi Aug. 23, 2012, pet. denied) (mem. op.). Accordingly, we reversed the entire damages award except for the jury's $100, 000 award associated with the breach of confidentiality agreement claim. Id. at *10. We also reversed the award of attorneys' fees and remanded to the trial court "to determine the amount of fees earned with respect to" that specific claim. Id.

         Following a new trial on remand solely on the issue of attorneys' fees, a jury awarded Mo-Vac $370, 375 in fees attributable to the trial work associated with the breach of confidentiality agreement claim. The jury also found that Mo-Vac was entitled to prospective, conditional appellate attorneys' fees as follows: $25, 000 for an appeal in this Court; $5, 000 for a petition for review in the Texas Supreme Court; $12, 000 for briefing on the merits at the Texas Supreme Court; and $8, 000 for representation "through oral argument and the completion of proceedings" at the Texas Supreme Court. The trial court rendered judgment on the verdicts.

         By two issues now on appeal, Total argues that the trial court erred in awarding $420, 375 in trial and appellate attorneys' fees to Mo-Vac, contending that: (1) the trial court erred in allowing Mo-Vac's counsel to ask Total's counsel about fees he charged in an unrelated case; and (2) the fee award was excessive and supported by insufficient evidence. We affirm.[1]

         I. Testimony Regarding Unrelated Case

         By its first issue, Total asserts that the trial court abused its discretion by allowing Mo-Vac's counsel to question and elicit testimony from Total's lead trial and appellate counsel, Edmundo O. Ramirez, regarding expert testimony Ramirez gave about attorneys' fees in an unrelated case. Total argues that Ramirez's testimony was irrelevant and prejudicial, and should not have been allowed by the trial court.

         A. Standard of Review

         Evidentiary rulings are committed to the trial court's sound discretion. See U-Haul Int'l, Inc. v. Waldrip, 380 S.W.3d 118, 132 (Tex. 2012). A trial court abuses its discretion when it acts without regard for guiding rules or principles. Id.

         B. Discussion

         Evidence is "relevant"-and therefore generally admissible-if it has "any tendency to make a fact more or less probable than it would be without the evidence" and "the fact is of consequence in determining the action." Tex. R. Evid. 401, 402. But a trial court may exclude relevant evidence "if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, or needlessly presenting cumulative evidence." Id. R. 403.

         First, the record shows that before trial, Total designated two expert witnesses on the issue of the reasonableness and necessity of attorneys' fees in this case: Ramirez; and attorney Raymond L. Thomas. The record further shows that Mo-Vac designated its own trial and appellate counsel, Adrian R. Martinez and Alberto T. Garcia, as well as Ramirez to serve as its expert witnesses on the issue of the reasonableness and necessity of the attorneys' fees in this case.

         At the new trial on attorneys' fees, Mo-Vac called Ramirez as its first witness.[2] Mo-Vac's counsel proceeded to ask Ramirez about a trial which took place several years prior at which Ramirez testified as an expert on attorneys' fees. Ramirez confirmed that the prior case was a breach of contract action concerning "the distribution rights of Playboy magazine in Mexico" and that he was paid by Playboy of North America to serve as an expert in that matter (the Playboy case). After Mo-Vac attempted to ask Ramirez about what he charged in that previous case, Total objected on relevance grounds, and the trial court sustained the objection. The following colloquy then occurred:

Q. [Mo-Vac's counsel]: Now, were you also in that case testifying about reasonable and necessary attorneys' fees?
A. [Ramirez] Correct. That's standard.
Q. Okay. And with respect to whose fees were you giving an opinion about in reasonable and necessary fee?
A. I was giving as to Playboy North America's lawyers, and their fees.
Q. And how many lawyers were there?
A. There was an army.
Q. Okay. Is that five? Is that 20? Is that-
A. That case was tried twice. It went up on appeal, came down. They hired more lawyers. I don't recall the exact number of lawyers. But probably anywhere in the two different cases, anywhere from 15 to 20 lawyers involved.
Q. Okay. And did you give testimony about what is a reasonable fee for those 15 or 20 lawyers?
[Total's counsel]: Your Honor, I will object to relevance. Mr. Ramirez is not being-we're not putting him on the stand as an expert as to attorneys' fees in this case. So I think it is irrelevant.
[Mo-Vac's counsel]: I designated Mr. Ramirez as an expert. He designated himself as an expert. He is an expert based on his qualifications. Whether he chooses to say, I'm testifying as an expert or not is irrelevant. He is an expert because he has specialized knowledge that will assist the jury. And if he's testified as an expert in other cases, I'd like to know what his opinions are there to judge them against the credibility of whatever opinions he might give here. So it's relevant to the credibility and experience.
[Total's counsel]: We're not putting him on as an expert on attorneys' fees. Mr. Ramirez explained earlier, it was only in case Mr. Thomas was not available. Mr. Thomas is here. We are not offering him. If we did offer him, then he could be cross examined on that. But he's putting him on, so we are not-
[Mo-Vac's counsel]: Your Honor, I designated Mr. Ramirez as an expert because he is an expert on attorneys' fees. So I designated him as an expert. And I haven't withdrawn that designation.
THE COURT: The objection is at this time ...

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