Case Information
*0 FILED IN 14th COURT OF APPEALS HOUSTON, TEXAS 6/11/2015 12:01:36 AM CHRISTOPHER A. PRINE Clerk *1 ACCEPTED 14-14-00807 FOURTEENTH COURT OF APPEALS HOUSTON, TEXAS 6/11/2015 12:01:36 AM CHRISTOPHER PRINE CLERK No. l4-14-00834-CV
IN nrp Counr or Appsars FoR mr FoURTEENTT{ Drsrrucr oF Tnxas INTERVENOR cARLos RYERSOI t,
AppnrraNr v.
TsE PrrnoLEUM Womrns UNlow oF THE Rspunr,rc op MExrco, Appsr.Lrs On Appeal from 28lst Judicial District Court Harris County, Texas, Hon. Sylvia A. Matthews presiding Trial Court Cause No. 1985-35446-AC OPENING BRIEF OF INTERVENOR APPELLANT CARLOS RYERSON
Carlos Ryerson, In Pro Per
State Bar No. 1749250A
TI{E RYERSON LAW FIRM, P.C.
6700 Belmont No. I
Houston, Texas 77A05
(713) 2e1-2301 (832) 383-9320 (facsimile)
carlos. ryerson@ryersonlaw. com
Oral Argument Requested *2 IDENTITY OF PARTIES AND.COUNSEL Cross-Appellant/Plaintiff (Appeal No. [1] 4- 14-00807-cv) :
James Gomez, Receiver for Aniba Limited
Trial Appellate Counsel Cross-AppellantlPlaintiff:
Brian A. Calhoun Michael J. Perez State Bar No. 24044827 Jeffrey A. Feasby CALHOUN, BHELLA & PEREZ & WILSON, INC.
SECHREST, LLP 325 N. St. Paul St., Suite nUA San Diego, California 92101 B Street, Suite 3300 Dallas, Texas 752A1 (619) 741-0282 (214) 981-9258 (619) 460-0437 (facsimile)
(214) 981-9203 (facsimile) perez@perezwilson.com bc alhoun@cbsattorneys. com
Steven Ward Williams
SMITH SOVIK KENDRICK &
SUGNET, PC S. Clinton Street, Suite 600
Syracuse, New York
(3ls) 474-2911
(315) 474-6015 (facsimile)
swil liams@smithsovik. com
AppelleelDefendant: Petroleum Workers Union of the Republic of Mexico
Appellate Counsel Appellee/Defendanf: Michael Choyke
Paul Simon State Bar No. 24003276 State Bar No. 00793504 WRIGHT & CLOSE, LLP SIMON HERBERT &, One Riverway, Suite 2200 MCCLELLAND, LLP Houston, Texas 77A56 34Ll Richmond Ave., Ste. 400 (7r3) s72-4321 Houston, Texas 77046 (7 L3) 572-4320 (facsimile) (7r3) 987-7\40 choyke@unightclo se. com (713) 987-7nA (facsimile) psimon@shmsfirm.com
Trial Counsel Appellee/Ilefendant: Michael Choyke
Paul Simon State Bar No. 24AA3276 State Bar No. 00793504 WRIGHT & CLOSE, LLP SIMON HERBERT & MCCLELLAND, LLP One Riverway, Suite 2200 34ll Richmond Ave., Ste. 400 Houston, Texas 77056 (7r3) s72-4321 Houston, Texas 77046 (7 13) 57 2-4320 (facsimile) (713) e87-7r00 (713) 987-7120 (facsimile) choyke@ wri ghtclose. com psimon@shmsfirm.com George Mufroz
Jamie Pefla State Bar No. 14669925 State Bar No. 90001988 1300 Pennsylvania Ave., N.W. Pefla Law Group 900 Kerria Ave Suite 700
McAllen, Texas 78501-1913 Washington, D.C. (202) 204-2s30
(e56) e48-222t j pena@penalawgroup. com (202) -23 rZ facsimile) ( gmrnoz@munozlaw.com *4 Inte rve rno r/Appella nt:
Carlos Ryerson
Appellate Counsel fnterernor/Appellant:
Carlos Ryerson, In Pro Per
state Bar No. 17492500 Law Firm, P.C.
6700 Bemont No. I I
Houston, Texas
(713) 29r-2301
(832) 383-e320
(facsimile)
carlos. ryerson@ryersonlaw. com
Trial Counsel IntervenorlAppellant:
Craig R. Keener
state Bar No. 11167g75
Craig R Keener PC Heights Blvd.
Houston, Texas 77008-6913
(7t3) s2e-0048
crkeener@aol.com
iii *5
ABBR4VIATI9NS AND RECORD .RETERENCES PAS,TY ABBRE\aIAIIONS
Cross-Appellant James Gomez, as Receiver for Arriba Limited, is referred to herein as
"Arriba."
James Gomez, as an individual, is referred to as "Gomez."
Appellee The Petroleum Workers Union of the Republic of Mexico is referred to
herein as "LJnion." In record, is sometimes referred to by its
Spanish name, "Sindicato."
Intervenor/Appellant Carlos referred to herein "Ryerson."
RECORD REFERENCES
References Original Clerk's Record, which was submitted by Clerk the
Harris County District Court, are form (CR [page #]).
References to the lst Supplemental Clerk's Record, which was submitted
Clerk Harris County District Court, are in the form (Supp CR [page #]).
References Amended Motion Judgment on the Verdict, submitted as
Exhibit I parties' Agreed Motion Supplement Clerk's Record filed June
9,2A15, are in the form (Stip CR [page #]).
References Reporter's Record are form (RR [page #]).
tv
TABLE OF CONTENTS
IDENTITY OF PARTIES AND COUNSEL................r..............r.r..................'... i
ABBREVIATIONS AND RECORD R8F8R8NC8S.....,........,....,..........,......... iy
TABLE OF CONTENTS...........r....r........r...o...o....r......................t.....r.....o.o............V
TABLD OF AUTHORITIES..............................r................r.............r.................. Vi
STATEMENT OF THE CASE ..r.r..r.....o.......r...............o..'........o.r..............'........ Vii
ISSUES PRESENTED ....................r.............r......o...r.......................................... Viii
1. Did court error in failing award Ryerson damages and
attorney's fees breach November 27,2A04 Ryerson Agreement?
STATEMENT OF FACTS..............r.....................r....r..r......,...............r.r...............1
r. TNTRODUCTION ....................1
II. THE PARTIES' AGREEMENT ..,......2
III. PROCEDURAL HISTORY ........,....4
SUMMARY OF ARGUMENTS......r.o......o.....,.....,....r.....................!...............,.,.11
ARGUMENTS AND AUTHORrTY........,o....,.................r..o.................,......,.......13
I. Standard Review .... .. . ........13
II. The Trial Court Ened in Refusing to Award Ryerson Monetary Damages...13
III. Arguments Asserted By Union Below Do Not Support Finding that Not Entitled Damages ............. ....... ........
IV. Amount Ryerson's Damages is Readily Ascertainable ....-............'...21
CONCLUSION AND PRAYER........'.t...o..........o..r.............ro......................'........23
TABTE OF AUTHORITIES
Cases
Bowenv. Robinson,227 S.W.3d 86 (Tex. App. - Houston [lst Dist.] 2006,pet. denied).......-... 19,20
Chrysler Ins. Co. v. Greenspoint Dodge Houston, Inc.,
297 S.w.3d248 (Tex. 2009)...... 13
Colrer v. Coker,650 S.W.2d39I (Tex. 19S3)...... .....15
Columbia Gas Transmission Corp. v. New Um Gas, Ltd.,
940 S.W.zd 587 (Tex. 1996).,. '... .. .-..... ' 13
Dynegy Midstream Servs., Ltd. P'ship v. Apache Corp., 294 S.W.3d 164 (Tex. 2009)..... "......13
Jones v. Wal-Mart Stores, Inc., 893 S.W.2d 144 2t
(Tex. App. - Houston [1st Dist.] 1995, no unit Lightv. Wilson,663 S.W.2d 813 (Tex. 1933).... ........21
Lubbock Mfg Co. v. Perez,591 S.W.zd907 (Tex. Cv. App. - Waco 1979, writ dism'd by ag.) '-'..-.'20
MCI Telecomms. Corp.v. Tex. Utils. Elec. Co.,995 S.W.2d (Tex. 1999)......13
Precision Motors v. Cornish,4I3 S.W.2d (Tex. Civ. App. - Daltas writ ref d n.r.e.) ....'.............20
Seagull Energ,t E&P, Inc. v. Eland Energt, Inc., S.W.3d342 (Tex. 2006).. 15,17
Statutes
Texas Financial Code $ 304.003(cX2) ......23
Texas Financial Code $$ 304.003(c)(2), 304.006 -'.'23
vl
STATEMENT OF THE CASE This is a breach contract case arising out a November 27, fee agreement between Ryerson and Union (CR 229-243), emanating
terms a settlement agreement between Arriba and Union, which Union also
breached. (CR 3816-3821.) The Union asserted counterclaims against Arriba and
Ryerson. (CR 3822-3895.)
On February 3, 2014, the Court called this case trial. A jury was impaneled and sworn, and case proceeded trial. case was submitted to jury on February 17,2014, a verdict in favor Ryerson and Arriba was
received on February 18,2014. (CR7626-7637.) On July 15,2014, the 281st District
Court, Judge Sylvia Matthews presiding, entered a final judgment favor
Ryerson Arriba. (CR 8019-8020.)
On August 2A14, Union filed a Motion Modiff, Reform, or Correct Judgment and Motion New Trial. (CR 8028-8133; 8134-8193.) Pursuant to
Rule 329b(c) Texas Rules of Civil Procedure, Union's motions were
ovemrled operation law. filed Notice Appeal on October 8,
2014.(CR8273-8277.) Arriba filed separate Notices ofCross-
Appeal October 21,2014. (CR 8280-8283; 8284-8286.)
vll
ISSUES PRESENTEI) L Did court error failing award Ryerson damages and attorney's fees under claim breach the November 27,2004 Fee
Agreement?
vtlt
STATEMENT OF FACTS
r. INTRODUCTION
Filed in the underlying action resulted in a judgment in in favor of Aniba and against the Union and various individuals (the "1986 Judgment").
(RR Vol. 18A, Ptf.'s Ex. That judgment awarded Arriba $33 million in actual
damages resulting from Union's breach contract, $266,000 in consequential
damages resulting from Union's breach conffact, $4 million in attorneys' fees,
$5 million in actual damages resulting from the defendants' conspiracy deprive
Aniba "of the benefits contract and the perpetration unlawful and tortious
aets" upon Arriba, and $50 million in punitive damages. (Id. at pp. 1-3.) A11
these amounts bear post-judgment interest at rate lAYo per annum. (/d.)
That case has since taken the parties and Texas courts a long and winding journey. Although judgment which the parties appeal involves
the interpretation and enforcement a fee agreemerfi between and Ryerson,
as well as a settlement agreement between Aniba and Union, underlying action
has spawned numerous garnishment actions on underlying judgment, as well as
related state actions, appeals this Court well as First Tenth
Courts Appeal,l federal actions Texas New York, a state court action in
Califomia, proceedinS Bahamas.2
I The appeal Tenth Court of Appeals was related judgrnent in a related case. The
appeliate court reversed and remanded the case retial based on the court's exclusion of
The parties are before this Court their respective appeals from the Final Judgment that was entered by the based upon the jury's verdict in favor of
Arriba Ryerson. (See CR 7626-7637; 8019-8020.)
II. THEPARTIES' AGREEMENT
On May 2l,2}04,Aniba and the Union entered into an Agreement Regarding Disposition of Garnished Funds (the "2004 Agreement"). (,See RR Vol. l8B,
Def.'s Ex. Union also entered into an agreement with Ryerson which
provided payment his attomeys' fees Union's 48o/o share the
garnished held in New York (the "Ryerson Agreement"). (See RR Vol.
l8A, Ptf.'s Ex. 15.)
In entering into the 2004 Agreement, parties sought resolve this gamishment action, distribution of the ftlrds located New York were
subject this related garnishment action, enforceability
2004 Agreement was signed Gomez as Receiver for Arriba, and by Noe Manuel
testimony one Union's attorneys, which Court of Appeal concluded "likely ... cause rendition an improper judgment." See Aniba Limited v. Petroleum Worlrers Republic of Mexico,No. l0-98-165-CV (10e Court of Appeals, October 27,1999). That case
is still pending Disfrict Court of Harris County, Texas, 281st Judicial District as Case
No.89-007592(the*l989Litigation"),andisawaitingrehial. Intheeventthejudgmentinthe
present case affirmed, it will effectively resolve this case as well 1989 Litigation, which be dismissed under the parties' sefflement agreement. (See RR Vol. Def 's Ex. 50,
ArL V.) This case Litigation remain active pending resolution of this case.
Moreno Alvarez as General Attorney in Fact for the Union, and Ryerson as
Attorney of Record for the Union. (See id. at pp. l0-11.)
Pursuant to Article III the 20A4 Agreement, the garnished in NewYork "shall be distributed asfollows:
"A. Fifly-Two percent (52%) said funds shall be paid to Gomez, as Receiver Companies; and
"8. Forry-Eight percent (48%) said funds shall be paid to Union or its designee (as directed by Union's attomey record herein); and "C. From the Union's 487o said funds, an additional amount One Million No/100 Dollars ($1,000,000.00) shall be paid Gomez, as Receiver Companies."4
(Id. at pp. 3-4.) Article III goes on state that, "The parties also agree use their
best efforts resolve any outstanding claims affecting the Garnished Funds that
have been made, or which may be made, action pending United States
District Court, Eastern District New York under Cause No. M # 02-906." (Id.)
Article IV affirms validity of the 1986 Judgment, and provides that'the Commissions hereby knowingly waive, and forever relinquish, any all claims and allegations challengingthe finalrty of Judgment as it affects them." (Id. at p. 4.)
a Gomez testified that this additional $1 million pay expenses he had incurred Receiver for
Aniba. (RR Vol. 8,264:23-265:20; RR Vol. 89:18-24.)
[5] "Commission" is Commission of Contracts ofthe Executive Committee ofthe
Petroleum Workers Union of Republic of Mexico, which also judgment debtor
Judgment.
Article IV further provides that if "the distribution Garnished Funds is not accomplished according to terms set out in this Agreement [ ], Gomez and [furiba] shall be entitled enforce 1986 Judgment in
any legal manner, anywhere in the world, except in country of Mexico." (1d) Iil.
The Ryerson Fee Agreement, in turn, stipulates as follows:
.(1. With respect to the recovery of the money funds of the [ | that are currently sequestered New York deposited in the Pershing Division Donaldsonn Lufhin & Jeanrette Securities Corp., by company Arriba LTD. Mexican government, we have agreed following:
(a) Carlos A. Ryerson, Erq., shall receiven of the 48"h that are apportioned or belong the STPRM, this account the amount US $7,0001000.00 legal fees;...." (see RRVol. l8A, Ptf.'s Ex. paragraph l.) UI. PROCEDURAL HISTORY
Although an entire procedural history these matters would constitute a tome, procedural history relevant Ryerson's appeal is rather simple. The
current action is a petition intervention garnishment action recover
Ryerson's legal fees due pursuant Agreement. That action sought seize assets held at Credit Suisse First Boston and Pershing Trading
Company, L.P. (CFt229-244.) Garnishee Pershing Division of Donaldson, Lufkin
E Jenrette Securities Corporation ("Pershing") answered it was the
possession of Union funds totalling 943,282,633.78. (CR 37-42.)
Those funds had also been restrained by Arriba the United States District Court Eastern District of New York. That entered an Ex Parte
Restraining Order at the request United States of America, wtrich was acting at request Government Mexico. (CR 50-51, 84-92.) According the
Government Mexico, the funds had been embezzled Union officials, including Union's President, Carlos Romero Deschamps. (,See RR Vol. 18A, Ptf.'s F;x.46,
pp. SNel 100441-10A444; RR Vol. 11, 10:13-11 :2; 13,.24-17.2.)
One Union's attorneys, George Muffoz, testified that at or about the time it entered into the 2AA4 Agreement, he was representing Union in the
District Court in New York and was attempting work with representatives
United States Mexico have garnished returned Mexico.
(RR Vol. l l, 10:10-12:6; 18:5-7.) To be clear, Agreement and the Agreement were negotiated and entered into while the $43,282,633.78 was inthe
midst ofthe United States'and Government Mexico's seizure actions. (RR Vol.
I l, 10:10-17- 17:3-6.) Ultimately, Union's attorney was successful, funds
were released after District Court's restraining order lifted August
30,2005.,See RR Vol. 18A, Ptf.'s Ex. p. 7; RR Vol. 11, l9:4-10:21,17:3-6.)
On February 8, 2005, Ryerson filed a Petition in Intervention, Application for Writ of Garnishment, and Request Injunctive Relief which he sought to
intervene a plaintiff based on his allegations that he was entitled to $7 million
from the gamished funds under his agreement with the Union. (CR 229-244.) On
March 17,2005,Aniba filed a Motion to Enforce Settlement Agreement in which it
sought an order fial court compelling the Union perform under the 2004
Agreement. (CR 438-523.)
On December 8, 2005, Union petitioned pursuant Rule 664 of Texas Rules Civil Procedure post bond in lieu of that had been garnished in
NewYork. (CR 18rc-1927.)ThatpetitionwasjoinedbyPershing. (CR 1928-1932.)On
December 16, 2006, trial court denied Union's motion pending resolution of
various Rule motions. (CR Rule motions were denied January
23,2006. (CR 2588.)
On April 2006, filed a Replevy Motion Substitution of Property Pursuant TRCP 664. (CR 2614-2672.) Pershing also joined this
motion. (CR 3103-310S.) On April 17,2006, trial granted the Union's
motion and directed the Clerk the Court accept Irrevocable Standby Letter Credit amount $46,894,000.00. (CR 3109-3111.) court
further ordered within three (3) business days filing Letter
Credit, Pershing was authoruedto release garnished funds in accordance with
the instructions Union's attorney, George Mufloz. (CR I l.)
The filed a First Amended Motion Dissolve Gomez's Writ Garnishment on August 11,2006. (CR 3139-3254.) The court granted the
Union's motion on August , 2006, and ordered unit dissolved effective
October 9, 2AA6. (CR 3379-3380.) also released the Letter Credit,
effective October 9, 2A06. (Id.) cases then continued move forward.
Numerous motions and hearings were held in various underlying actions.
On December 22, 2A11, Arriba filed its Complaint which it asserted a single cause action breach contract based 2AA4 Agreement. (CR
3816-3821.) On May 2t, Arriba filed Amended Complaint. (CR
4Arc-4022.) Aniba alleged it entitled to fiffy-two percent ofthe garnished
funds under the 2004 Agreement. (Id. at\21.) Arriba further alleged that the Union
breached parties' agreement. (Id. at \ Aniba sought both specific
performance damages as result union's breach agreement.
(Id. atfln24,28,29.) Arriba also prayed "such other and further relief
Court deems just proper." (Id. at Prayer.)
On February 28, Union filed Second Amended Answer, Special Exceptions and Counterclaims. (CR 3822-3895.) asserted various
affirmative defenses, including lack apparent or actual authority those who
signed agreement on behalf the Union. (CR 3847-3545.) It also asserted
counterclaims, including fraud and conspiracy against Arriba and Ryerson.
(cR 3850-38s1.)
On February 3,2014,the Court called the case to trial. (CR 8019.) The primary issue jury to resolve whether the individuals who entered into Settlement Agreement had actual or apparent authority act on behalf Union. (See RR Vol. 6,l9 10-15 [Court: "this main issue would go before the
jury all about authority and settlement agreement itself between Ryerson Union the other party and who had authority do what they did and did
they have authority do what they did?"1.) A jury was impaneled and sworn, and case proceeded trial with opening statements and presentation evidence.
(RR Vol. 7,p. 16l; CR 8019.) After close evidence and closing arguments, case was submitted jury. (CR jury returned verdict in
favor Arriba February 18,2A14. (CR7626-7637; RR Vol. 15, p.
235.)
In its verdict, jury found that Ryerson Alvarez both had actual and apparent authority enter into 2004 Agreement on behalf of Union. (CR
7693-7694.) The jury also found that Alvarezhad actual apparent authority enter into November 27,20A4 agreement with Ryerson on behalf Union.
(CR 7695.) jury found no fraud on the part of Arriba or Ryerson. (CR 1769-
7697.) jury also awarded Ryerson afforney's fees for his counsel.. (CR Aniba did not seek its attorneys' fees.
Arriba filed its Motion Judgment on the Verdict on March 2014. (CR 7683-7704.) In its motion, Arriba argued that it entitled an award
damages based on Union's breach Article III 2A04 Agreement in failing pay Arriba 52% garnished funds. (CR 7685-7686;77A2-7703.) Arriba
also sought a declaration court regarding the validity of the Judgment
and a determination the amount outstanding on judgnent taking
into account accrued interest. (CR 7686-7688; 7703.)
On April 9,2014, filed a Proposed Judgment (CR 7718-7721) and filed Motion JNOV. (CR 7706-7717.) Arriba filed Amended Notice of Judgment on the Verdict April t4,2014. (Stip CR 1.)
On July 15,2014, trial court entered its Opinion Order on Arriba's Amended Motion for Judgment Union's Motion for Judgment
Notwithstanding the Verdict. (CR S02l-5A27.) The trial court held that Arriba entitled recover on its claim for specific performance under Afiicle IV of
2A04 Agreement. (CR 3026-5027.) However, court denied Ryerson's and
Arriba's requests for damages for Union's breach the Ryerson Agreement 2A04 Agreement. (CR 8026.) subsequently entered its Final Judgment in favor Ryerson Aniba. (CR 8019-8020.) As set forth judgment, "Ryerson shall recover
nothing on his breach contract claim.....on his claim for attorney's fees." (CR
3020.) Similarly judgment stipulated, "Arriba shall recover nothing on its
claim breach Article III fo Agreementl." (CR In addition,
'oGomez, receiver Aniba, entitled to enforce [ ] Judgment any
legal manner, anywhere in the world, except in the country Mexico." (Id.)
On August 14, 2014, filed a Motion to Modiff, Reform, or Correct
Judgment and a Motion for New Trial. (CR 8028-8133; 8134-8193.) Pursuant to
Rule 329b(c) Texas Rules of Civil Procedure, Union's motions were
ovemrled by operation law Union filed Notice of Appeal on October 8,
2014.(CRS273-8277.) Aniba and filed separate Notices of
Cross-Appeal October 2A14. (CR 8280-8283: 8284-8286.)
SUMMARY OF ARGUMENTS The Union breached Ryerson Fee Agreement and 2004 Agreement. clearly stated purpose ofthe 2004 Agreement was to resolve all disputes between Arriba and Union regarding this garnishment action, distribution of the
garnished funds in New York, enforceability of the Judgrnent, and the
outstanding issues in Litigation. (RR Vol. l88, Def.'s Ex. p. The
clearly stated purpose of the Ryerson Fee Agreement to pay his
exhaustive efforts over many years to try to resolve litigation spanning more than
two decades, and to do so from the funds allocated to Union in 2004
Agreement. After two decades litigation, with seizure more than
$43,000,000 (Forty-Three Million U.S. Dollars) Union funds secwely held a
New York bank account, Arriba Union negotiated the payment money Arriba legal fees to Ryerson. The parties accomplished this intended purpose memorializing and executing agreements which provided, inter alia, for: (l)
division (i.e., $43,282,633.78) held New York City - 52% plus $1
million Arriba and Gomez,4STo less $l million (id. atArt. III); (2)
the payment $7,000,000 in fees Ryerson. erred in determining that Ryerson was not entitled an award
damages due to the Union's breach the Ryerson Agreement. trial should have given the parties' agreements and the terms
their contracts their plain ordinary meaning. Article III of the 2044 Agreement
is clear that Union held New York "shall be disffibutet' 52o/o Arriba,
48% Union, and $1 million of Union's 48% Aniba. (Id. at Art. III
[emphasis added].) Ryerson Fee Agreement clear that out 48%
"apportioned" Union, Ryerson "shall receive" US $7,000,000. The Union
breached both agreements by negotiating the release the funds restrained by
U.S. District Court New York, then securing trial court's release those
funds upon substitution a Letter Credit. The Union breached both
agreements by not paying or distributing one thin dime Ryerson or Arriba as
required Ryerson Fee Agreement and Agreement. Therefore, has been harmed court's interpretation parties'
agreement failed to put Ryerson in good position as if had performed
under the Ryerson Agreement.
t2 *22 ARGUMPNTS ANI} AUTHORITY I. Stnndard of Review
The interpretation an unambiguous contract is a question law, wtrich is reviewed de novo. MCI Telecomms. Corp. v. Tex. Utils. Elec. Co.,995 S.W.2d 647,
650-51 (Tex. 1999). Whether a contract is ambiguous is also a question law.
Columbia Gas Transmission Corp. v. New Ulm Gas, Ltd.,940 S.W.2d 587, 589
(Tex. 1996). Here, held that Ryerson Agreement 2004
Agreement were not ambiguous and interpreted it a matter law. (See CR
citing MCI Telecomm. Corp., supra,995 S.W.2d at 650-51.)
IL Trial Court Erred in Refusing to Award Ryerson Monetary Damages Jury Awarded Attorneys Fees
If a contract is worded such a way that it can be given a definite or certain legal meaning, then the contract is not ambiguous. Chrysler Ins. Co. v. Greenspoint
Dodge of Houston, [nc.,297 S.\M.3d 248,252 (Tex. 2009). Whether a contract is
ambiguous is a legal question court. Dynegy Midstream Servs., Ltd. P'ship
v. Apache Corp.,294 S.W.3d, (Tex. 2009). A contract is not ambiguous
when meaning certain or definite not susceptible more than one
reasonable interpretation. See id. A contract is not ambiguous just because
parties disagree over its meaning. Id. Courts give contract terms their plain and
ordinary meaning unless the contract indicates that the parties intended different
meanins. Id.
r3 *23 After two decades of litigation, and with the seizwe of more than $43,000,000 (Forty-Three Million U.S. Dollars) of Union funds securely held a New York
bank account, Aniba and Union negotiated the payment of money to Aniba -
a payment a portion what had been due and owing by the Union since 1986,
and the agreed pay Ryerson $7,000,000.00 Union's portion ofthe
garnished funds. Ryerson's claim damages is based Ryerson Fee
Agreement which was not paid by terms, was not paid by direct consequence Union's breach of both 2004 Agreement the Ryerson Fee Agreement.
Article III ofthe 2004 Agreement clear unambiguous thatthe Union's gamished
funds on deposit with Pershing in New York - defined in 2004 Agreement as the
"Garnished Funds" -"shall be distributet'pursuant terms that Article. (RR
Vol. Def.'s Ex. 50, p. [emphasis added].) Pursuant paragraph 1.(a) the
Ryerson Agreement, Ryerson "shall receive" US $7,000,000.00 legal fees from *48a/o are apportioned or belong to the [Union]...". (RR Vol. l8A, Ptf.'s Ex.
the
ls.) trial court's decision not award Ryerson damages was based on its
erroneous interpretation that the Agreement only required the "dividing
garnished ifthey were released pursuant writs garnishment."
(CR 8026 [emphasis added].)
t4 *24 By interpreting agreement in this manner, the trial court failed to give meaning to the mandatory language - "shall" - requiring distribution of stated
amounts to Arriba. This error. See Seagull Energy E&P, Ine. v. Eland Energt,
Inc., 207 S.W.3d 342, 345 (Tex. 2006) quoting Coker v.
Colrer, S.W.2d 393 (Tex. 1983) (emphasis original) (in interpreting
contracts, courts "examine and consi der entire writingin an effort to harmonize
and give effect all provisions of contract so that none will be rendered
meaningless.").
As a result trial court's erroneous interpretation, the court went to conclude that there was no breach contract because "[t]he writs were dissolved by
[the] court the funds were not subject distribution provisions of the [2004]
Agreement." (CR In other words, the trial court's contract interpretation
would equate release of the funds without any consideration Arriba or
Ryerson whatsoever. In so doing, permitted the Union to
completely breach the clear unambiguous terms Agreement and
the Ryerson Agreement, take all the money allocated, inter alia, Arriba Ryerson per the terms those agreements, and allowed the Union, ass
breaching party, to benefit its breach. Simply put, there nothing inthe 2A04
Agreement conditioned Aniba's receipt portion ofthe garnished upon release those funds "pursuant to writs garnishment."
Rather, the agreement is clear, without qualification, that the funds "shall be
distributet' in accordance with the Article III(A)-(C) (RRVol. l8B, Def.'s Ex. p. 3.)
Similarly, there is nothing in the Ryerson Fee Agreement which conditioned Ryerson's fee to release the garnished "pursuant to the writs of
garnishment." Rather, the stipulation Ryerson "shall receive" $7,000,000,00 48% are "apportioned or belong" to the Union. (RR Vol. l8A, ptf.'s
Ex. Certainly, the fact the Union recovered 100% garnished funds
should in no way diminish its obligation pay per clear and
unambiguous terms Ryerson Agreement. Moreover, fact that
Articles IV V 2004 Agreement provided alternatives
event funds were not distributed the Union required by Article III, does
not relieve obligation make agreed to, eamed,
$7,000,000.00 fee payment Ryerson. fact, as argued pages 16-17
Arriba's Cross-Appellant's Brief, Agreement included provisions for
contingencies, yet did not include simitar contingencies Article III, only further
demonstrates their desire that the Union's obligation distribute funds was
absolute and without regard whether or not the funds were released pursuant to writs garnishment.
l6
See Seagull Energy E&P, Inc., supra,207 S.W.3d at ('T.{o single provision
taken alone will be given controlling effect; rather, all the provisions must be
considered with reference to the whole instrument."). trial also relies the additional language in Article III that "[t]he
parties also agree use their best efforts resolve any outstanding claims affecting
the Garnished Funds have been made, or which may be made, in the action
pending in United States District Court, Eastern District New York under
Cause No. M # 02-906." (RR Vol. l8B, Def.'s Ex. 50, p. While the provision
acknowledges that there may be additional claims on New York
proceeding, this provision does not excuse Union from obligation pay
Ryerson its fees from Union's portion of "Garnished Funds" that are released
to it, even if total amount has been reduced due these "outstanding claims."
(RR Vol. l8B, Def.'s Ex. 50, p. ) Rather than pay his fees
Union's portion of the funds, the secured release 100% those funds -
both U.S. District Court New York trial court below - to Mexico in
accordance with the instructions Union's attorney, George Mufioz. (RR Vol.
l8A, Ftf.'s Ex. p.7; RR Vol. 11, 19:4-10:21,17:3-6; CR3109-3111.)
Finally, even if court correct that the 2004 Agreement imposed a t7
requirement that the garnished funds had to be "released pursuant t0 the writs of
garnishment" before they had to be furned over to furiba or pay Ryerson, the
Union breached the Ryerson Agreement the 2004 Agreement by
circumventing the process through which this would have occurred.
Specifically, Agreement provided for the use an agreed-upon order, Exhibit C to agreement, to submit to trial court for distribution of garnished funds.6 (RR Vol. l8B, Def.'s Ex. 50, p. parties were to take
whatever steps were necessary order to assure the prompt presentation this
order trial court (Id.) did not comply. Instead, Union
proceeded in the New York action and secured an
agreement with United States Mexico the return those funds to
Mexico.(RR Vol. 11,19:4-10'.21,17:3-6.) Shortly thereafter, Union
manipulated the by securing an order allowing it to substitute a Letter
Credit garnished funds held at Pershing. (CR 3109-3111.) Those funds
were be released Pershing pursuant instructions Union's attorney.
(cR 30r 1.) Although the 2004 Agreement defined the funds held at Pershing the "Garnished Funds,"
there nothing agreement or Exhibit C that required those be "released" pursuant
to the writ of garnishment. Rather, the agreement Exhibit C refer the funds being
"distributed" or "paid." (See RR Vol. 18B, Def 's Ex. p. 4, Ex. C.)
The Union then secured release the uryit garnishment, thereby
releasing the Letter Credit. (CR 3379-3380.) Thus, the Union breached the
20A4 Agreement by failing to secure distribution Aniba's Ryerson's
share garnished funds, and by actively working to prevent that occurring.
Accordingly, erred in concluding that there was no breach contract based garnished funds. By failing to pay Arriba and Ryerson its
portion garnished as required Agreement and the
Ryerson Fee Agreement, Union breached both agreements. As a result,
Ryerson is entitled recover the amount necessary to put it in good a position as
if Union had performed under the Ryerson Agreement. Bowen v. Robinson, S.W.3d 86,96 (Tex. App.-Houston IstDist.] 2}06,pet. denied). Thatamount
is set forth section IV below.
nL Arguments Asserted By Union Below Do Not Support a Finding
that Ryerson Not Entitled Damages. Union argued that Ryerson was not entitled judgment the
amount was supposed pay under Ryerson Fee Agreement
because did not allege that he entitled damages regarding
garnished funds.
t9 *29 However, "[u]nder Texas law, a party not required to plead his measure of damages. Rule 47 ofthe Texas Rules of Civil Procedure requires only a short and
concise statement a cause of action (i.e., breach of a specific contract) damage
Aom such breach." Bowen, supra) 227 S.W .3d at 94 [internal citations omitted].
Ryerson's Petition in Intervention, Application Writ Garnishment, and Request Injunctive Relief filed February 2005 meet pleading
requirements under Rule 47. (CR 229-244.) Union also argued that its failure to pay Arriba its share gamished not breach 2004 Agreement because agreement recognized Mexico's claim the funds might be superior to Union's. As set forth
above, however, fact that others may have asserted claims the funds in the New
York action did not relieve the obligation to pay Arriba or Ryerson their
portion of whatever funds were ultimately recovered. Union cites no evidence support this argument. Indeed, no evidence exists.
Accordingly, Union's arguments asserted below do not preclude an award damages Ryerson resulting the Union's breach Fee Agreement the 2004 Agreement.
fV. The Amount of Ryerson's Damages is Rcadily Ascertainable
As set forth Union's Petition TRCP 664 Judicial Review Defendant's Replevy Bond (CR 1810-1927), as close of business on December 5,
2005, amount garnished funds, including accrued interest, was
$43,943,997.88. (See id., p. 3, [11] garnished funds were accruing interest at
the rate approximately $1,895.00 per day. garnishments on the funds were
dissolved this Court effective October 9,2006. (CR 3379-3380.) Accordingly,
at latest time Union was required to make payment under the Agreement,T amount the garnished was $44,529,552.88 follows:
. $1,895.00 x 309 days between December 2005 October 9,2006 = $585,555.00
. $585,555.00 interest+ $43,943,997.88 principal : $44,529,552.88 Arriba entitled 52% of that amount, which is $23,155,367.50, plus $1,000,000.00 Union's 48yo, total $24,155,367.5A owed Arriba at time of Union's breach. entitled $7,000,000.00 out the
Union's share.
Ryerson is also entitled prejudgment interest on this amount based holding of the Supreme Court of Texas in Johnson & Higgins of Texas, Inc. v.
Kenneco Energy, Inc., S.W.2d (Tex. 1998).
? Aniba could arguably be entitled pre-judgment interest March 17,2005, the date on
which it filed Motion to Enforce Settlement Agreement. (CR 438-523.)
2t
In case, the Supreme Court held that prejudgment interest is permitted under
Texas common law at the rate of post-judgment interest as simple interest. Id.
at 528,532. Supreme Court firther held that "prejudgment interest begins to
accrue on the earlier of (l) days after date adefendant receives uniffen notice claim or (2) the date suit is filed." Id. at 531. rate prejudgment interest
is same statutory rate post-judgment interest and is simple interest.
Id. at 532.
Ryerson is entitled prejudgment interest at rate 5Yo per annum. Tex. Fin. Code $ 304.003(cX2) Accumulation of this prejudgnent interest should
begin to run from October 9,2006,the date on which Ryerson's writ garnishment dissolved by court at Union's request. Daily interest
$7,000,000.00 owed Ryerson based on Union's breach the Ryerson Fee
Agreement is $958.90. Accordingly, judgment should award Aniba damages prejudgment interest inthe amount $583,013.70 plus $958.90 daily
interest October 9,20A6, until date modified judgment entered by
this Court. also entitled post-judgment interest on that total amount
damages at the rate 5% compounded annually. Tex. Fin. Code $$ 304.003(c)(2),
304.006. In addition, because breached Ryerson Agreement,
Ryerson is fully entitled to recovery of jury awarded attorney's fees, per Chapter Civil Practice and Remedies Code. attorney's fees determined
jury amount $73,125. (CR Ryerson also entitled to post-judgment interest
on these attorney's fees.
CONCLUSION AND PRAYER Ryerson was entitled an award damages resulting Union's breach parties' agreement. trial erred in refusing award those damages. WHEREFORE, PREMISES CONSIDERED, Appellant Carlos Ryerson, respectfully prays that this Court grarrt appeal affirm jury's verdict,
reverse court's judgment regarding Appellant Carlos Ryerson's claim for
damages breach contract, modi$ that judgment include an award
damages favor Appellant in amount $7,000,000.00, plus pre-judgment
interest post-judgment interest, together with jury determined attorney's fees amount 573,125 plus post-judgment interest.
Appellant further prays such other relief it may be justly entitled. Respectfully Submitted,
By: /s/ Carlos Ryerson
Carlos Ryerson
State Bar No. 17492500
67AA Belmont No. [1]
Houston, Texas 77405
Telephone: (71 3) 291-2301 Facsimile: (832) 383-9320 Email: carlos.ryerson@ryersonlaw.com *33 CERTIFICATE qF SERYICE I certify true correct copy this brief served on all counsel record elecfronically June 2015.
Michael Choyke, Esq. Paul Simon, Esq. State Bar No. 00793504 State Bar No. 240A3276
WRIGHT & CLOSE, LLP SIMON HERBERT & MCCLELLAND, LLP
One Riverway, Suite 2200 34II Richmond Ave., Ste. 400
Houston, Texas 77056 Houston, Texas 77A46
(713) s72-4321 (7r3) s72-4320 (ra:<) (7r3) 987-7100
(713)987-7120 (Fax)
cho]'ke@wrightclose.com psimon@shmsfirm.com
Michael J. Perez, Esq. P6rez & Wilson, Inc. Steven Ward Williams, Esq.
Smith Sovick Kendrick & Sugnet, PC B. Street, Suite 3300 San Diego, California 92101 Syracuse, New York 13202-1252 South Clinton Street, Suite 600 (61e) 74t-A282 (6l e) 460-a$7 (Fax) (31s) 474-2ett
(31s) 474-6aLs (Fax)
perez@perezwilson.com swilliams@smithsovik.com
/s/ Carlos Ryerson Carlos Ryerson