Court of Appeals of Texas, Thirteenth District, Corpus Christi-Edinburg
appeal from the 275th District Court of Hidalgo County,
Justices Rodriguez, Benavides, and Longoria
M. BENAVIDES, JUSTICE.
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'
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.
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.
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.
Testimony Regarding Unrelated Case
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
Standard of Review
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
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.
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
new trial on attorneys' fees, Mo-Vac called Ramirez as
its first witness. 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'
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
[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
THE COURT: The objection is at this time ...