text:
    FIVE STAR INTERNATIONAL HOLDINGS INCORPORATED and F-Star Socorro, L.P., Appellants, v. THOMSON, INCORPORATED, Appellee.
    No. 08-07-00143-CV.
    Court of Appeals of Texas, El Paso.
    March 31, 2010.

      Randy Lee, Attorney at Law, Midland, TX, for Appellant.
    Mark N. Osborn, Kemp, Smith, El Paso, TX, for Appellee.
    Before CHEW, C.J., McCLURE, and RIVERA, JJ.
   OPINION

DAVID WELLINGTON CHEW, Chief Justice.

Five Star International Holdings, Inc. (“Five Star”) and F-Star Socorro, L.P. (“F-Star”) appeal from a judgment awarding over $1.6 million to Thomson Incorporated (“Thomson”) for breach of a commercial lease agreement. Five Star raises sixteen issues on appeal challenging the legal and factual sufficiency of the evidence, the admissibility of expert testimony, the jury charge, and the attorney’s fees award.

On December 11, 1997, Five Star and Thomson entered into a twelve-year lease agreement where Thomson agreed to lease sixty-seven acres containing 950,000 square feet of commercial and industrial space from Five Star. The leased property was located within a larger tract of land owned by Five Star, consisting of the commercial facility and agricultural land. As part of the agreement, Five Star committed to build the facility to meet Thomson’s warehousing and distribution needs.

The lease required rental payments in two categories: “base rent” and “additional rent.” “Base rent” was the monthly rental amount for the facility. Thomson paid $113,383.33 for the first month’s base rent at the time the parties executed the lease. In months 2-120 Thomson was obligated to pay $269,166.67, with a rental increase in month 121 to $336,458.34 for the balance of the lease term. “Additional rent” included the cost of: (1) operating and maintaining the “common area;” (2) real estate taxes; and (3) insurance premiums as required by the lease. These additional charges were to be determined and paid as follows:

Landlord shall furnish Tenant a written statement estimating: (i) Common Area expenses; (ii) the total taxes dues for said calendar year; and (iii) total insurance premiums due for the year (herein collectively the ‘Estimate’). Beginning with the first month following receipt of such statement, Tenant shall pay Landlord monthly, as additional rent one-twelfth (1/12) of the Estimate. In addition, Tenant shall pay with the rental payment for the first month following receipt of the Estimate an amount equal to the difference between prior year and the current year for the number of months elapsed in the calendar year pri- or to receipt of the Estimate, so as to bring said monthly payments current for the year. As soon as practical after the end of each calendar year, but not more than one hundred twenty (120) days after the applicable year end, Landlord shall furnish Tenant a written statement showing the total Common Area expenses, taxes and insurance premiums actually due for the calendar year ended (the ‘Actual Expenses’). If the Actual Expenses exceed the Estimate, then Tenant agrees to pay within ten (10) days of receipt of said statement, the difference between the Actual Expenses and the Estimate. If the Estimate exceeds the Actual Expenses, then Landlord agrees to refund the difference at the time that such statement is furnished, provided Tenant is not then in default in the performance of any of its obligations under this Lease. The Landlord shall make the Estimate only once per year. All Actual Expenses are limited to expense items actual and necessary for the operations and maintenance of the Facility and Premises. All services provided by Landlord are limited to competitive costs.... The first payment of such additional rent shall be due on the Rent Commencement date.
Tenant may review Landlord’s records annually with respect to such charges at Landlord’s office upon thirty (30) days prior notice to Landlord.

Thomson took possession of the premises on June 15, 1998. Prior to Thomson moving into the facility, Five Star transferred its interest in the leased premises as the landlord to F-Star. F-Star, in turn, hired F-Star Property Management to manage the property. From June 15, 1998, forward, Thomson dealt exclusively with F-Star Property Management and F-Star regarding the lease. Five Star, F-Star, and F-Star Property Management are owned and controlled to varying degrees, by Mr. Gerald Ayoub of El Paso. Between 1998 and 2005, Thomson paid approximately 24 million dollars for rent, approximately 2.3 million dollars for common area expenses, over 3 million dollars in taxes, and approximately $226,000 for insurance.

On September 27, 2001, Thomson filed suit against Five Star alleging Thomson had been overcharged for common area expenses. In its third amended petition, Thomson also alleged that both Five Star and F-Star had breached the lease agreement by consistently overcharging Thomson for property taxes and common area expenses and by refusing to refund the overpayments. Thomson claimed that it was overcharged for property taxes because F-Star did not pass on the benefit of tax abatements and exemptions which the landlord received from local taxing authorities. At trial, Thomson also claimed that F-Star failed to segregate the property taxes due on the leased property from the taxes due on the larger tract, and was therefore billing Thomson for taxes owed on property beyond the acreage covered by the lease.

On January 30, 2006, the trial court granted partial summary judgment in Thomson’s favor. The court determined that as a matter of law the lease required Five Star and F-Star to pass on the benefit of any tax abatements and exemptions to Thomson in its calculation of the taxes owed on the leased property. The case was tried to a jury in December of 2006. The jury returned a verdict in Thomson’s favor, finding that Thomson had not waived its right to recover the overpayment, that Thomson had been overcharged for real estate taxes in the years 1998-2005 in the amount of $979,029, and that Thomson had been overcharged for common area expenses. The trial court entered its final judgment on March 16, 2007. Thomson was awarded $1,652,963 for breach of contract, plus attorneys fees and costs.

Five Star has combined its sixteen issues into five groups. The first group consists of Issues One, Two, and Three, all of which challenge the jury’s finding that Thomson did not waive its right to recover. The waiver issue was presented to the jury in Question One of the charge. Neither party has challenged the form or contents of the question on appeal. The question appeared in the charge as follows:

Do you find from the preponderance of the evidence that [Thomson] waived the right to demand that the excess taxes and the excess common area expenses, if any, be paid back to it
a. By signing or not returning Estop-pel Certificates ...; or
b. By paying invoices for taxes and for common area expenses as they were submitted; or
c. By not objecting at the time of the audit (Exhibit Dl)?

“Waiver” was defined for the jury as “the intentional surrender of a known right or intentional conduct inconsistent with claiming that right.” The jury answered “no.”

In Issue One, Five Star argues that Thomson waived its right to recover because Thomson failed to timely respond to the landlord’s requests for estoppel certificates as required under the lease. As Five Star has not challenged the submission of the issue to the jury, we construe this argument as a challenge to the legal sufficiency of the evidence supporting the jury’s adverse finding in part “a” of Question One. In Issues Two and Three, Five Star challenges the factual sufficiency of the jury’s determination that Thomson did not waive its right to recover overpay-ments.

Waiver is an affirmative defense for which Five Star bore the burden of proof at trial. See Tex.R. Civ. P. 94; Quantum Chemical Corp. v. Toennies, 47 S.W.3d 473, 481 (Tex.2001). A “matter of law” challenge to an adverse finding on which the complaining party had the burden of proof is a challenge to the legal sufficiency of the evidence. See Dow Chem. Co. v. Francis, 46 S.W.3d 237, 241 (Tex.2001). To succeed on such a point, the party must demonstrate that the evidence establishes, as a matter of law, all vital facts in support of the issue. Id. In reviewing a “matter of law” challenge, we must first examine the record for evidence supporting the finding, while ignoring all evidence to the contrary. Sterner v. Marathon Oil Co., 767 S.W.2d 686, 690 (Tex.1989). If there is no evidence to support the finding, we then examine the entire record to determine if the contrary proposition is established as a matter of law. Dow Chem. Co., 46 S.W.3d at 241. We may only sustain the issue if the contrary position is conclusively established. Croucher v. Croucher, 660 S.W.2d 55, 58 (Tex.1983).

When a party attacks the factual sufficiency of an adverse finding on an issue on which it has the burden of proof, it must demonstrate that the finding is against the great weight and preponderance of the evidence. Dow Chem. Co., 46 S.W.3d at 241. We must consider and weigh all the evidence, and can set aside a verdict only if the evidence is so weak or if the finding is so against the great weight and preponderance that it is clearly wrong and unjust. Id.

In Issues One and Two, Five Star relies on Paragraph Seventeen of the lease agreement in support of its conclusion that Thomson’s failure to provide the estoppel certificates precludes Thomson from recovering the excess tax and common area charges. Paragraph Seventeen required Thomson to provide F-Star with a written statement certifying that the lease was in full force and effect, and stating any uncured defaults of which Thomson was aware within ten days of F-Star’s request. The certificates could be relied upon by any prospective purchaser or encumbrancer as accurate statements of the status of the lease. The provision concludes by stating that Thomson’s failure to comply with F-Star’s request within ten days was conclusive that: (1) the lease was in full force and effect; (2) there were no uncured defaults in the F-Star’s performance; (3) not more than one month’s rent and charges had been paid in advance; and (4) the lease had not been modified. F-Star made two estoppel certificate requests which were not timely answered by Thomson; one in 2003, and another in 2005.

While Paragraph Seventeen and the related certificate requests may serve as evidence contradicting the jury’s finding, we may not consider such evidence in a “matter of law” legal sufficiency review unless we first determine there is no evidence in the record to support the finding. See Dow Chem. Co., 46 S.W.3d at 241. The record also demonstrates that at the time F-Star sent the two unanswered estoppel certificate requests, the parties were already engaged in litigation. As early as 1999, Thomson expressed concerns to F-Star over increases in common area expenses. In the summer of 2000, Thomson sent its own audit team to F-Star’s offices to investigate a $110,285 increase in common area expenses. Following its audit, Thomson requested additional documentation to support the common area expense increase. By the time F-Star sent the 2003 estoppel certificate, Thomson’s lawsuit had been on file for two years.

The evidence of Thomson’s actions in pursuit of its claims supports the jury’s determination that the company did not intend to surrender its right to recovery. As this constitutes some evidence in support of the verdict, we may not consider evidence to the contrary in our review. See Dow Chem. Co., 46 S.W.3d at 241. Therefore, the evidence is legally sufficient to support the jury’s verdict regarding the estoppel certificates. Based on the same supporting evidence, we conclude the jury’s finding was not so against the great weight and preponderance that is clearly wrong and unjust. Issues One and Two are overruled.

Five Star’s factual sufficiency argument in Issue Three fails for much the same reason. In part “b” of Question One, the jury was asked to determine whether Thomson’s failure to lodge a complaint immediately following its audit of F-Star’s expense and tax records constituted a waiver of its right to recover. Five Star argues that the jury’s “no” answer on this issue is against the great weight and preponderance of the evidence. As we have already discussed, Thomson conducted an audit of F-Star’s common area expense records in 2000. In his audit report, Thomson’s auditor claimed F-Star had omitted documents which were required to complete the review. The parties continued to argue about the “omitted” documents over the next several months. In March 2001, F-Star produced its 1999 common area charge spreadsheet for Thomson’s review. In the interim, the parties continued to dispute the amount owed under the lease. Thomson filed suit less than a year later. Based on this evidence, we conclude that the jury’s adverse finding on part “b” of Question One was not so against the great weight and preponderance of the evidence. Issue Three is overruled.

Issues Four through Seven challenge the jury’s award for common area expense overpayment. In Issues Four, Five, and Six, Five Star contends there is no competent evidence on which the jury could have based the award. Five Star argues that Thomson’s expert witness testimony was not admissible to establish standard market rates for the expenses, and therefore concludes that the jury’s verdict is without evidentiary support. In Issue Seven, Five Star argues the question which addressed common area expenses in the jury charge was improperly submitted.

An appellate court will sustain a “no evidence” legal sufficiency challenge if the record shows: (1) the complete absence of a vital fact; (2) the fact finder was barred by rules of law or evidence from giving weight to the only evidence offered to prove an essential fact; (8) the evidence to prove a vital fact is no more than a mere scintilla; or (4) the evidence conclusively establishes the opposite of an essential fact. Carrasco v. Stewart, 224 S.W.3d 363, 367 (Tex.App.-El Paso 2006, no pet.). We will view the evidence in the light most favorable to the verdict and indulge every reasonable inference that would support it. Id. However, if the evidence allows only one inference, the trier of fact may not be permitted to disregard that inference. Id. When a no evidence point rests on the competency of the evidence, we may not disregard contrary evidence showing it to be incompetent. Id.

Thomson offered the expert testimony of Mr. Jerome Steuart as its primary evidence of F-Star’s overcharging for common area expenses. Five Star contends the trial court abused its discretion in admitting Mr. Steuart’s testimony because Thomson did not demonstrate his opinions were reliable. A trial court’s decision to admit expert testimony is reviewed for an abuse of discretion. E.I. du Pont de Nemours & Co., Inc. v. Robinson, 923 S.W.2d 549, 558 (Tex.1995). The trial court abuses its discretion when it rules without regard to guiding rules and principles of law. See Owens-Corning Fiberglas Corp. v. Malone, 972 S.W.2d 35, 43 (Tex.1998).

The testimony of a qualified expert is generally admissible when scientific, technical, or other specialized knowledge will assist the fact finder in understanding the evidence, or to determine a fact issue. Tex.R. Evid. 702. The trial court has the gatekeeper function of ensuring that expert testimony is base on a reliable foundation, and is relevant to the issues in the case. Gammill v. Jack Williams Chevrolet, Inc., 972 S.W.2d 713, 728 (Tex.1998).

When an expert is offered to testify based on his or her experience and training, rather than a specific scientific methodology, the trial court must determine whether there is, “too great an analytical gap between the data and the opinion proffered” for the opinion to be reliable. See Gammill, 972 S.W.2d at 726; Taylor v. American Fabritech, Inc., 132 S.W.3d 613, 619 (Tex.App.-Houston [14th Dist.] 2004, pet. denied). When measuring the reliability of an expert’s opinion in non-scientific fields, such as we have here, courts should consider whether: (1) the field of expertise is a legitimate one; (2) the subject matter of the expert’s testimony is within the scope of that field; and (3) the expert’s testimony properly relies upon the principles involved in that field. See Taylor v. Texas Dept. of Protective and, Regulatory Services, 160 S.W.3d 641, 650 (Tex.App.-Austin 2005, pet. denied).

At the time of his testimony, Mr. Ste-uart was employed as the director for property management for Primera Partners, a full-service real estate company in San Antonio. He is in charge of all the property management activities for Prim-era Partners, and oversees budgeting, fiscal management, and all aspects of property management. Primera Properties manages office, industrial, and retail properties. Mr. Steuart testified that he has been in the property management business since 1985, and with Primera specifically since 2001. He is a certified property manager through the Institute of Real Estate Management and maintains a Texas Real Estate License. Mr. Steuart explained that he has experience handling common area expenses for industrial properties occupied by a single tenant. In preparation for his testimony, Mr. Steuart reviewed the lease agreement between Five Star and Thomson, deposition testimony by the designated representative of the property management company hired by F-Star, expense spreadsheets provided by the property manager, and interviewed several colleagues in the El Paso area to familiarize himself further with the local market.

Five Star argues that because of Mr. Steuart’s lack of experience in the El Paso real estate market, and his failure to describe “any foundation or standards for measuring or testing [his] methodology or opinions,” the trial court had no basis on which it could have determined the opinions were reliable. We find otherwise. There is no dispute that property management as a field or profession, is a legitimate one. There is no dispute that the issue of common area expenses — how they are calculated and charged — falls within the bounds of the property management business. Finally, there is no indication from the record, and Five Star does not argue to the contrary, that Mr. Steuart’s opinions depend on principles not generally applicable to entities involved in property management.

All of Five Star’s concerns were properly tested by its cross-examination of Mr. Steuart. They were not of the type which would have rendered the opinions unreliable and therefore inadmissible. See SAS & Assoc., Inc. v. Home Marketing Servicing, Inc., 168 S.W.3d 296, 300 (Tex.App.-Dallas 2005, pet. denied). The trial court did not abuse its discretion in admitting Mr. Steuart’s testimony. Because those opinions provided the jury with a reasonable basis for its award for common area expense overcharges, Five Star’s no evidence point must fail. Issues Four though Six are overruled. Five Star’s argument in Issue Seven, that the question of common area expenses was improperly submitted to the jury, is based entirely on the success of its argument that Mr. Steuart’s testimony was inadmissible. Given the disposition of Issues Four, Five, and Six, we also overrule Issue Seven.

Issues Eight and Nine deal with Five Star’s contention that Thomson is not entitled to recover for the alleged overpayment of real property taxes. In Question Two of the court’s charge, the trial court instructed the jury “that [Thomson] paid more in taxes to [F-Star] than [F-Star] paid in taxes on the property subject to the lease.” This instruction mirrors the court’s summary judgment ruling that the lease required Five Star and F-Star to pass the benefit of any tax abatements and exemptions on to Thomson.

Question Two then asked: “[b]ased on a preponderance of the evidence, what amount did [Thomson] pay in taxes to [F-Star] in excess of what [F-Star] paid in taxes on the property subject to the lease for the following years.... ” All that was left for the jury to determine, was what amount Thomson overpaid each year. The jury answered as follows:

1998 $ 72,800
1999 $141,070
2000 $146,104
2001 $204,200
2002 $152,855
2003 $187,147
2004 $ 64,657
2005 $ 10,196

In Issue Nine, Five Star contends that Question Two was not properly submitted to the jury, and caused the rendition of an improper judgment. The goal of the jury charge is to submit to the jury all the issues for decision simply, clearly, fairly, correctly, and completely. Hyundai Motor Co. v. Rodriguez ex rel. Rodriguez, 995 S.W.2d 661, 664 (Tex.1999). To that end, the trial court is accorded broad discretion in constructing the jury charge, so long as the charge is legally correct. Id. A court abuses its discretion when it rules without regard to guiding rules and principles of law. See Malone, 972 S.W.2d at 43.

Five Star argues that by phrasing Question Two as it did, the trial court “created its own measure of taxes supposedly owed by Thomson — the same amount F-Star paid in taxes.” Five Star continues by arguing that such a definition is contrary to the terms of the lease. Paragraph Eleven in the lease provided in part: “Tenant, as additional rent, agrees to pay all taxes (both general and special), assessments, or governmental charges (hereinafter ‘taxes’) lawfully levied or assessed against the Facility.” Five Star concludes that this language does not specify that Thomson would be responsible for the Facility’s taxes regardless of what was actually paid by F-Star, and that by defining the amount of taxes owed as it did, the trial court re-wrote this portion of the lease.

The parties litigated the meaning of Paragraph Eleven at summary judgment. The trial court determined the lease obligated Thomson to pay real estate taxes in the amount equal to that actually assessed by the various taxing authorities. The court specifically concluded that the lease obligated F-Star to pass on any tax savings, in the form of abatements or exemptions, to Thomson. Based on the court’s ruling, it is reasonable to conclude that Thomson contracted to repay whatever amount F-Star actually paid in property taxes. It is important to note that Five Star has not challenged the instruction accompanying Question Two, in which the court instructed the jury that Thomson had been overcharged for taxes. Because the only issue remaining for the jury was to determine what amount Thomson paid in excess taxes, and given the court’s summary judgment ruling, the court did not abuse its discretion by posing the question as it did. Accordingly we overrule Issue Nine.

In Issue Eight, Five Star argues the evidence is legally and factually insufficient to support the jury’s answer to Question Two. However, Five Star does not include any citations to legal authority, or argument in support of this issue. This failure results in a waiver of the issue. See Tex.R.App. P. 38.1(i); Wheeler v. Methodist Hosp., 95 S.W.3d 628, 646 (Tex.App.-Houston [1st Dist.] 2002, no pet.). Issue Eight is overruled.

Five Star’s fifth group includes Issues Fourteen, Fifteen, and Sixteen. In these, Five Star contends that Thomson is not entitled to the attorney’s fee awarded in the judgment. In Issue Fourteen, Five Star argues the trial court erred by allowing Thomson’s attorney to present expert testimony on the reasonableness of the fee amounts because Thomson did not timely respond to its request for disclosure of the basis of the opinions. Based in its conclusion that the attorney testimony was inadmissible, in Issue Fifteen Five Star contends there is no competent, admissible evidence to support the amount of the award. In Issue Sixteen, Five Star argues the trial court did not submit the issue of attorney’s fees to the jury properly.

On the eve of trial, Five Star moved to preclude Thomson’s attorney from testifying as an expert on attorney’s fees. Five Star argued that Thomson had not timely responded to its various discovery requests for all the documents, reports, and other information on which the attorney would rely in his testimony. According to the motion, Five Star received the final, unedited, copies of Thomson’s attorney’s bills only days before trial began. Five Star concluded that under Texas Rule of Civil Procedure 193.6, the late-produced materials were not admissible.

Even if we were to accept Five Star’s argument that the documents were not admissible, it does not necessarily follow that the attorney’s testimony was also inadmissible. There is no requirement under Texas law that the billing records be admitted into evidence for a party to recover attorney’s fees. See Air Routing Intern. Corp. (Canada) v. Britannia Airways, Ltd., 150 S.W.3d 682, 692 (Tex.App.-Houston [14th Dist.] 2004, no pet.). Thomson’s trial attorney gave detailed testimony on the time and costs which were spent pursuing these claims. He concluded that the fees charged to his client were reasonable, and calculated the total representation, from April 2003 through trial was $315,000. This testimony contains sufficient evidence to support the award. See Schlager v. Clements, 939 S.W.2d 183, 193 (Tex.App.-Houston [14th Dist.] 1996, writ denied). Five Star has not raised an issue challenging the admissibility of the attorney’s testimony, and does not argue that the testimony alone was insufficient to support the award. Issues Fourteen and Fifteen are overruled.

In Issue Sixteen, Five Star argues the trial court erred in awarding attorney’s fees as it did because Thomson failed to properly segregate the fees and costs related to this suit from fees incurred investigating other lawsuits related to the facility. A party seeking attorney’s fees must show that the fees were incurred on a claim that allows recovery of such fees, and thus is generally required to segregate fees incurred on claims allowing recovery of fees from those that do not. Stewart Title Guaranty Co. v. Aiello, 941 S.W.2d 68, 73 (Tex.1997). When discrete legal services advance both recoverable, and unrecoverable claims, attorneys are not required to segregate to recover the total amount covering all claims. See Tony Gullo Motors I, L.P. v. Chapa, 212 S.W.3d 299, 313-14 (Tex.2006). In making this determination, we do not look at the legal work as a whole, but parse the work into component tasks to determine which tasks relate to recoverable claims. See Chapa, 212 S.W.3d at 313. The issue of whether segregation is necessary is a question of law, while the extent to which claims can be .segregated is a mixed question of law and fact. Id. at 312-13.

Thomson’s lead trial attorney, Mr. Mark Osborn, testified as to the attorney’s fees and expenses incurred in this suit. During cross-examination, Mr. Osborn agreed that Thomson’s legal expenses in this case included the costs incurred by his firm for investigating and monitoring four other lawsuits, to which Thomson was not a party, but which involved Five Star and the facility. Mr. Osborn’s testimony indicates that members of his firm attended other trials, spoke with representatives of the other entities involved, and observed common witnesses who were also scheduled to testify in this case, as part of their investigative work and preparation for Thomson’s claims in this case.

Five Star summarily argues that any actions taken by Thomson’s lawyers which refer to other lawsuits cannot be considered in the attorney’s fee award in this case. We disagree. There is no indication from the record that the expenses at issue were performed in pursuit of claims or defenses outside those at issue here. Five Star did not present any evidence to contradict Mr. Osborn’s testimony. The fact that the investigation of their client’s claims in this case lead Thomson’s lawyers to investigate and monitor other lawsuits related to the facility, does not render the expenses incurred for those services unrecoverable. The only evidence presented on this issue supports Thomson’s position that the services were performed in pursuit of Thomson’s claims in this case. There was no basis for segregation. See Chapa, 212 S.W.3d at 313-14. Issue Sixteen is overruled.

Finally, Issues Ten through Thirteen must be overruled because they have not been preserved for review. In these points, Five Star presents a single broad argument dealing with the trial court’s decision to grant a declaratory judgment in Thomson’s favor regarding tax abatement agreements entered into by F-Star. There is no indication that these arguments were presented to the trial court, and therefore they have not been preserved for our review. See Tex.R.App. P. 33.1(a). To the extent such an argument may have been preserved during summary judgment, these issues have not been adequately briefed and are therefore waived. See Tex.R.App. P. 38.1(i); Wheeler, 95 S.W.3d at 646. Issues Ten through Thirteen are overruled.

Having overruled all of Appellants’ issues, we affirm the trial court’s judgment.


source: Caselaw Access Project

author: DAVID WELLINGTON CHEW, Chief Justice.

license: Public Domain

text:
    F-STAR SOCORRO, L.P., Appellant, v. EL PASO CENTRAL APPRAISAL DISTRICT and Thomson, Inc., Appellees.
    No. 08-08-00050-CV.
    Court of Appeals of Texas, El Paso.
    May 28, 2010.

      Randy Lee, Attorney at Law, Midland, TX, for Appellant.
    Joseph Longoria, Perdue, Brandon, Fielder, Collins & Mott, L.L.P., Houston, TX, Mark N. Osborn, Kemp, Smith, El Paso, TX, for Appellees.
    Before CHEW, C.J., McCLURE, J. and MACIAS, Judge.
   OPINION

DAVID WELLINGTON CHEW, Chief Justice.

F-Star Socorro, L.P. appeals from the trial court’s order granting the El Paso Central Appraisal District’s plea to the jurisdiction. Appellant’s first issue challenges the trial court’s failure to file findings of fact and conclusions of law. In Issues Two through Four, Appellant argues the trial court granted the plea to the jurisdiction in error because it was excused from exhausting its administrative remedies prior to filing suit in this instance. Issues Five and Six address questions of contractual privity and collateral estoppel, which were raised as alternative grounds for dismissal. Affirmed.

F-Star Socorro, L.P. is a limited partnership operating in El Paso County. In 1998, F-Star acquired approximately 140 acres of agricultural land in El Paso County as part of a commercial real estate development project. • When F-Star purchased the land, it also negotiated several tax abatement agreements with the local taxing authorities: the City of Socorro; the El Paso County Community College District; the Lower Valley Water District; El Paso County; the El Paso County Hospital District; and Socorro Independent School District. The abatement agreements each provide for a 50 percent tax abatement of the assessed value of the property for ten years, beginning the year after F-Star completed construction on the property. F-Star completed construction, and leased the property to Thomson, Inc. in June 1998.

The El Paso Central Appraisal District (“EPCAD”) administers property taxes within El Paso County. See Tex. Tax Code Ann. § 6.01 (Vernon 2008). F-Star filed this lawsuit against the appraisal district in April 2006, seeking a declaratory judgment that EPCAD had misapplied the abatement agreements in the annual property appraisals. F-Star presented its allegations as follows:

13. From inception, in violation of the Abatement Agreements and Texas law, EPCAD has incorrectly certi-fled the appraised values of the improvements on the Eligible Real Property to the City. As a result, the City has annually prepared tax bills to F-Star, which incorrectly state the amounts of ad valorem taxes assessed against the improvements to the Eligible Real Property. Instead of abating the taxes assessed, the City’s tax bills to date have uniformly reflected a 50% reduction in the appraised values of the improvements on the Eligible Real Property, which reduction is referred to on the tax bills as an ‘exemption.’
14. As a result of the manner in which EPCAD has certified to the City the taxable value of the improvements to the Eligible Real Property leased by Thomson, the tax bills prepared by the City reflect amounts of assessed ad valorem taxes thereon which, in effect, give the full value of the Abatement Agreements to Thomson, rather than to F-Star, in violation of the lease and in an unconstitutional de-pravation and taking of F-Star’s property without due process of law.

F-Star represented to the court that according to the lease agreement, Thomson was required to pay the full amount of ad valorem taxes assessed each year, absent the benefit of the abatement agreements negotiated by F-Star. F-Star claimed this provision was intended to allow F-Star to “partially recoup its costs for developing [the property] and the investment which it made for the utilities and other infrastructure....” Thomson filed a plea in intervention in this case on July 6, 2006, in which the lessee argued that F-Star’s interpretation of the lease terms was in error, and that Thomson was entitled to the benefit of the abatements.

EPCAD answered the F-Star’s lawsuit with a general denial,. several special exceptions, and a plea to the jurisdiction. In its plea, EPCAD argued in part that F-Star’s failure to pursue and exhaust its administrative remedies provided in the Texas Property Tax Code prior to filing suit deprived the trial court of jurisdiction over the case. In its response to EP-CAD’s plea, F-Star asserted the Property Tax Code did not mandate administrative review of this particular type of tax dispute prior to filing suit. It argued that its case was not an appraisal contest, but that the entity was seeking relief from the, “application of an unwanted, unauthorized exemption of a portion” of the appraised value of the property, and therefore was not required to pursue an administrative decision prior to filing suit.

The trial court heard the parties’ legal arguments on the plea during a hearing on October 24, 2007. On January 9, 2008, the court issued an order granting EPCAD’s plea, and dismissing the case for lack of jurisdiction. F-Star raises six issues challenging the dismissal order and the trial court’s failure to file findings of fact and conclusions of law.

In Issue One, F-Star contends the trial court’s failure to file findings of fact and conclusions of law despite a timely request and reminder, constitutes reversible error. Texas Rules of Civil Procedure 296 provides a party with the procedural requirements to request the trial court to produce written findings of fact and conclusions of law. Tex.R.Civ.P. 296. Rule 297 mandates that the court make such findings upon timely request and reminder should the findings become overdue. See Tex.R.Civ.P. 297. It is undisputed in this case that the trial court failed to respond to a timely request to do so. F-Star argues that it is entitled to a reversal of the dismissal order, and remand for trial on the merits, or in the alternative this Court must abate the appeal so the findings may be entered. Because the trial court’s ruling on the jurisdictional issues before it did not include any fact findings, we disagree with F-Star’s assertion.

A party is entitled to findings of fact and conclusions of law after a conventional trial on the merits to the court. IKB Indus. (Nigeria) Ltd. v. Pro-Line Corp., 938 S.W.2d 440, 442 (Tex.1997). A “trial” is a hearing in which the court hears and receives evidence. Gen. Elec. Capital Corp. v. ICO, Inc., 230 S.W.3d 702, 711 (Tex.App.-Houston [14th Dist.] 2007, pet. denied). When, as is the case with an order granting dismissal for lack of jurisdiction, a judgment is rendered as a matter of law, findings and conclusions, while not improper, have no purpose and should not be requested or considered on appeal. See Pro-Line Corp., 938 S.W.2d at 443. This is especially true when a plea to the jurisdiction does not involve disputed facts. Haddix v. Am. Zurich Ins. Co., 253 S.W.3d 339, 346 (Tex.App.-Eastland 2008, no pet.). Absent a fact question, a trial court’s decision granting or denying a plea to the jurisdiction is a question of law, subject to de novo review. See Haddix, 253 S.W.3d at 346, citing State v. Heal, 917 S.W.2d 6, 9 (Tex.1996). In such a review, the appellate court must exercise its own judgment to determine each issue, and so cannot consider findings and conclusions even if they are included in the record. See Haddix, 253 S.W.3d at 346. In addition, regardless of the trial court’s subjective basis for its decision, a party challenging a ruling on a plea must address all independent grounds, and demonstrate that none support the court’s decision. See Britton v. Tex. Dept. of Criminal Justice, 95 S.W.3d 676, 681 (Tex.App.-Houston [1st Dist.] 2002, no pet.). As such, inclusion of findings and conclusions can have no effect on the appellate court’s analysis.

In this case, the trial court heard only argument during the October 24 hearing. There was no evidence introduced by the parties, or referenced as determinative by the court, and F-Star does not identify any specific fact issues which were implicitly determined by the court in its dismissal order. While the parties expressed disagreement about the legal effect of the facts in this case, the facts related to EP-CAD’s jurisdictional arguments are undisputed. Consequently, there were no fact issues for the trial court to resolve prior to making its decision, and findings of fact and conclusions of law would have served no purpose. See Pro-Line Corp., 938 S.W.2d at 443. Accordingly, the trial court did not commit reversible error by failing to file findings of fact and conclusions of law, and there is no need to abate the appeal so that such findings may be filed. Issue One is overruled.

Issues Two through Four challenge the trial court’s ruling on the basis that F-Star’s failure to exhaust administrative remedies prior to filing suit deprived the court of subject matter jurisdiction. A plea to the jurisdiction contests a trial court’s subject matter jurisdiction. Bland Ind. Sch. Dist. v. Blue, 34 S.W.3d 547, 554 (Tex.2000). We review the trial court’s ruling de novo. Tex. Dept. of Parks and Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex.2004). The plaintiff bears the burden of pleading facts which affirmatively demonstrate the court’s jurisdiction over the case. Schecter v. Wild- wood Dev., L.L.C., 214 S.W.3d 117, 120 (Tex.App.-El Paso 2006, no pet.). As this is a case where the jurisdictional facts are uncontested, the scope of our review is limited to the face of the pleadings. Id.

The Texas Tax Code provides administrative procedures for property owners to contest ad valorem taxes. See Tex.Tax Code Ann. §§ 41.07-.71 (Vernon 2008); Cameron Appraisal Dist. v. Rourk, 194 S.W.3d 501, 502 (Tex.2006)(per curiam). Appraisal review boards are vested with the authority to hear and determine protests filed by property owners. Tex. Tax Code Ann. § 41.41. An administrative decision on a taxpayer’s protest is final if the property owner does not appeal the decision to the district court within sixty days. Tex.Tax Code Ann. § 42.21(a)(Vernon Supp. 2009). The administrative proceedings constitute the “exclusive” procedure to challenge ad valorem taxes, and most defenses are barred if not raised in the agency. See Tex.Tax Code Ann. § 42.09. Thus, “a taxpayer’s failure to pursue an appraisal review board proceeding deprives the courts of jurisdiction to decide most matters relating to ad valorem taxes.” Rourk, 194 S.W.3d at 502, quoting Matagorda Cty. Appraisal Dist. v. Coastal Liquids Partners, L.P., 165 S.W.3d 329, 331 (Tex.2005).

F-Star does not dispute the fact that it did not seek administrative relief prior to filing suit in the district court. Instead, F-Star asserts a distinction exists between a tax “exemption,” which it argues was erroneously applied to its property by EP-CAD, and a tax “abatement,” which the entity argues was what it intended to have applied to the property through the Abatement Agreements. F-Star contends it was not required to contest this “unwanted exemption” through the administrative process. In an alternative argument, F-Star argues for the application of several other exceptions to the exhaustion of remedies doctrine to excuse its failure to pursue a protest with the appraisal board.

F-Star’s primary argument is premised on the recognition of a distinction between a tax “exemption” and a tax “abatement.” According to F-Star, a tax “exemption” occurs when the appraising entity, as opposed to the taxing entity, subtracts some percentage of a property’s appraised value prior to that value being listed in the appraisal records. The effect of an “exemption,” therefore is to relieve the property owner from the duty to pay taxes on that percentage of the property’s value. An “abatement,” according to F-Star refers solely to a post-appraisal reduction in the actual amount of taxes due, by the taxing entity itself. F-Star continues by arguing that despite its agreements with the relevant taxing entities to abate 50 percent of ad valorem taxes, the appraisal board imposed a 50 percent exemption. Following the imposition of the “unwanted exemption,” the taxing authorities must further reduce the tax bill by applying the agreed abatements, thereby reducing the already reduced tax revenue by an additional 50 percent. F-Star concludes, “[t]he 50% exemption applied by [EPCAD] both takes the benefit of F-Star’s abate-ments under the Abatement Agreements away from it, and deprives taxing authorities of substantial amounts of tax.”

Even if we were to accept F-Star’s argued distinction, the question remains whether F-Star was required to protest the “unwanted exemption” to the appraisal review board prior to filing suit. Again, F-Star concedes that generally when a property owner wishes to dispute a tax, it must file a protest with the appraisal review board. However, F-Star contends it was excused from an administrative protest because the “unwanted grant” of an exemption is not one of the types of decisions the Tax Code permits a taxpayer to present to the appraisal review board.

F-Star’s argument refers to paragraph (a) of Texas Tax Code section 41.41, titled “Right of Protest.” Paragraph (a) states:

(a) a property owner is entitled to protest before the appraisal review board the following actions:
(1) determination of the appraised value of the owner’s property or, in the case of land appraised as provided by Subchapter C, D, E, or H, Chapter 23, determination of its appraised or market value;
(2) unequal appraisal of the owner’s property;
(3) inclusion of the owner’s property on the appraisal records;
(4) denial to the property owner in whole or in part of a partial exemption;
(5) determination that the owner’s land does not qualify for appraisal as provided by Subchapter C, D, E, or H, Chapter 23;
(6) identification of the taxing units in which the owner’s property is taxable in the case of the appraisal district’s appraisal roll;
(7) determination that the property owner is the owner of property;
(8) a determination that a change in use of land appraised under Sub-chapter C, D, E, or H, Chapter 23, has occurred; or
(9) any other action of the chief appraiser, appraisal district, or appraisal review board that applies to and adversely affects the property owner.

TexTax Code Ann. § 41.41(a).

In both its argument to the trial court, and in its brief to this Court, F-Star focuses on items one through eight in this list, and concludes it was not required to file an administrative protest because the appraisal review board was not vested with authority to consider this type of tax dispute. F-Star’s argument omits subpara-graph nine, which as EPGAD points out, establishes a catch-all category for claims not already addressed by the statute. See TexTax Code Ann. § 41.41(a)(9). As alleged in its pleadings, F-Star’s complaint was based on an action by the El Paso Central Appraisal District, an appraisal district created by the authority of the State of Texas; and that by imposing the “unwanted exemption,” EPCAD adversely effected F-Star. Without addressing the applicability of the provisions one through eight, we conclude subparagraph nine applies, and vested the appraisal review board with authority to review F-Star’s claim. Accordingly, F-Star was not excused from pursuing an administrative protest on this basis. F-Star’s failure to exhaust its administrative remedies, as demonstrated from the face of its pleadings, deprived the trial court of jurisdiction to consider the case. See Rourk, 194 S.W.3d at 502. The trial court did not err by granting EPCAD’s plea to the jurisdiction, and we overrule Issues Two, Three, and Four. Given our disposition of these issues there is no need to address Issues Five and Six, or F-Star’s alternative arguments regarding exhaustion of remedies.

Having overruled Issues One through Four, we affirm the trial court’s order dismissing the case for lack of jurisdiction.

MACIAS, Judge (Sitting by Assignment).

      . A more detailed explanation of F-Star’s real estate dealings in El Paso County can be found in this Court’s prior opinions: F-Star Socorro, L.P. v. City of El Paso, 281 S.W.3d 103, 104-05 (Tex.App.-El Paso 2008, no pet.) and Duncan v. F-Star Management, L.L.C., 281 S.W.3d 474, 476-78 (Tex.App.-El Paso 2008, pet. denied).

      . Thomson eventually filed a separate lawsuit against F-Star in September 2002, due to additional lease disputes. See Five Star International Holdings, Inc. v. Thomson, Inc., 324 S.W.3d. 160, No. 08-07-00143-CV (Tex.App.-El Paso 2010, pet. filed).


text:
    Peggy PRYOR and Melodye Pryor, Appellants, v. Richard DOLGENER, County Judge of Andrews County, Appellee.
    No. 08-09-00284-CV.
    Court of Appeals of Texas, El Paso.
    April 14, 2010.
    David A. Rogers, Austin, TX, for Appellants.
    John L. Pool, District and County Attorney, Andrews, TX, Norlynn B. Price, Fulbright & Jaworski L.L.P., Dallas, TX, for Appellee.
    Pamela M. Giblin, Austin, TX, for Inter-venor.
    Before CHEW, C.J., McCLURE, J., and BRAMBLETT, Judge.
   OPINION

DAVID WELLINGTON CHEW, Chief Justice.

This is an accelerated appeal of an election contest arising from a highly controversial bond election to issue bond for the construction of a low-level radioactive waste disposal facility in Andrews County. The Appellants, Ms. Peggy Pryor and Ms. Melodye Pryor (“the Pryors”), have appealed a summary judgment granted in favor of Appellee, Judge Richard Dolgener. The Pryors argue that the trial court erred because allegedly erroneous or deficient voters’ registration applications result in illegal votes in violation of the Texas Election Code.

On May 9, 2009, Andrews County held a bond election to issue bonds to support construction of a new low-level radioactive waste disposal facility in Andrews County (“the May 9 election”). The highly contested bond proposal was approved by a three-vote margin — 642 to 689. Before the election, the Pryors requested oversight of the election by the Secretary of State of Texas. A Secretary of State election inspector did observe the May 9 election. There was a recount which confirmed the vote count, and the Andrews County Commissioners Court completed its canvass of the May 9 election returns. The Secretary of State election inspector also presented a report confirming that Andrews County election officials had complied with the Texas Election Code in conducting the election.

On June 17, 2009, the Pryors, both qualified voters who voted in the election, filed an election contest against the Honorable Richard Dolgener, County Judge of Andrews County, to challenge the May 9 election. The Pryors subsequently filed a motion for summary judgment on the basis that more than ninety votes were illegally cast in the election. On September 8, 2009, Judge Dolgener filed a motion for a final take-nothing summary judgment on all of the Pryors’ claims. After a hearing, the trial court denied the Pryors’ motion for summary judgment but granted Judge Dolgener’s take-nothing summary judgment. This accelerated appeal followed.

The sole issue before us is the Pryors’ contention that a voter applicant’s error or omission in his or her voter’s registration application invalidates that registration, and so a vote resulting from such a defective registration is illegal and violates the Texas Election Code.

We review summary judgments de novo. Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex.2005). In this case, Judge Dolgener filed a “traditional” motion for summary judgment under Rule 166a(c) of the Texas Rules of Civil Procedure. When reviewing a traditional summary judgment, we view the evidence in the light most favorable to the nonmovant and resolve any doubts against the motion. Wal-Mart Stores, Inc. v. Spates, 186 S.W.3d 566, 568 (Tex.2006). We must consider whether reasonable and fair-minded jurors could come to different conclusions considering all the evidence presented. See id. When, as in this case, the trial court’s order does not specify the ground upon which it relied for its ruling, we must affirm the judgment if any of the theories asserted in the motion is meritorious. Garcia v. El Paso Ltd. P’ship, 203 S.W.3d 432, 435 (Tex.App.-El Paso 2006, no pet.).

In an election contest, the trial court’s obligation is to ascertain whether the outcome is not a true outcome because, inter aha, illegal votes were counted. Tex.Elec. Code Ann. § 221.003(a)(1)(Vernon 2010). An illegal vote is one that is not legally countable. Id. at § 221.003(b).

In the instant case, the Pryors point to a variety of defects or omissions in the registration applications of certain Andrews County individuals who voted in the May 9 election. They argue that such defects invalidated these registrations, and so the votes associated with these registrations were uncountable and illegal. These defects included omissions of applicants’ complete signatures, failure to indicate applicants’ citizenship status, and failure to indicate a signee’s relationship to the applicant when signing on behalf of the applicant. The Pryors argue an election official’s mistake with respect to a registration application would not disqualify one’s vote, but a voter’s own mistake with respect to his application would disqualify him from voting. They further claim that because it was the voters who committed the errors contained in the disputed registration applications, this yielded illegally registered votes for the May 9 election.

The Texas Election Code provides that once the registrar approves an applicant’s registration application, the application remains “effective until canceled” under the Code. Tex.Elec.Code Ann. § 13.143(c)(Ver-non 2010). The Code provides that in general, “a registered voter may challenge the registration of another voter of the same county at a hearing before the registrar.” Tex.Elec.Code Ann. § 16.091. At the conclusion of the hearing, “the registrar shall promptly determine the challenge,” and issue a written decision. Id. at § 16.095(a). Further, “[i]f the registrar determines that the voter’s registration should not be canceled,” the registration remains effective. Id. at § 16.095(b). On the other hand, “[i]f the registrar determines that the voter’s registration should be canceled, the registrar shall cancel the registration on the 31st day after the date the registrar’s decision is issued.” Id. at § 16.095(c).

The Pryors have not disputed the specific qualifications of those who voted in the May 9 election, including the voters’ residence and citizenship; they simply argue these individuals lacked eligibility to vote based on their facially defective registration applications for voting. However, the case law cited in support of their argument that “when voters make mistakes that violate the requirements of the Texas Election Code, those votes are not countable” deal with an applicant’s qualifications to vote, which is governed by Chapter 11 of the Texas Election Code. That is, an applicant’s qualifications to vote are distinct from the registration process to vote, which is governed by other parts of the Code, inter alia Chapters 13 and 16. The record also reflects that the Pryors never challenged the registration status of any voter at a hearing before the Andrews County registrar. We find that an omission or error in a voter’s registration application does not automatically invalidate that registration. And unless a party challenges a voter’s registration, and the registrar determines it should be canceled, the registration remains effective. See Tex. Elec.Code Ann. §§ 16.091, 16.095. We conclude that the disputed registration applications did not yield uncountable or illegal votes in the May 9 election.

Accordingly, the Pryors’ sole issue is overruled and the judgement of the trial court is affirmed.

BRAMBLETT, Judge (Sitting by Assignment).


text:
    EL APPLE I, LTD., Appellant, v. Myriam OLIVAS, Appellee.
    No. 08-07-00257-CV.
    Court of Appeals of Texas, El Paso.
    April 21, 2010.
    Rehearing Overruled May 13, 2010.

      Joseph L. Hood Jr., Windle, Hood, Alley, Norton, Brittain & Jay, LLP, El Paso, TX, for Appellant.
    John P. Mobbs, Attorney at Law, El Paso, TX, for Appellee.
    Before CHEW, C.J., RIVERA, J„ and MOODY, Judge.
   OPINION

DAVID WELLINGTON CHEW, Chief Justice.

This is an employment discrimination and retaliation case. El Apple I, Ltd. appeals from a judgment in favor of its employee, Myriam Olivas. A jury determined Ms. Olivas was the target of illegal retaliatory conduct following her filing of sex discrimination charges against her employer, and awarded her $104,700 in compensatory damages and back pay. The trial court awarded Ms. Olivas $464,000 in attorney’s fees, and added conditional attorney’s fee awards for post-judgment and appellate proceedings. El Apple raises four issues challenging: the sufficiency of the evidence supporting the jury’s retaliation finding; the jury’s award of $1,700 for “back-pay;” the trial court’s admission of evidence of discrimination of other employees; and several aspects of the attorney’s fee award. We affirm as reformed.

Myriam Olivas began working for El Apple I, Ltd., as an assistant manager in one of the company’s Applebee’s restaurants on August 4, 2001. In October 2001, after completing training at El Apple’s Yarborough location, Ms. Olivas was assigned to the Applebee’s on George Dieter. During her training, one of Ms. Olivas’ supervisors was the Yarborough restaurant’s general manager, Mr. Alex Aguirre. At the George Dieter restaurant, Ms. Oli-vas’ supervisor was Mr. Freddy Hernandez. In May 2002, Mr. Hernandez began talking to Ms. Olivas about a possible promotion, and Ms. Olivas began training as an assistant general manager.

In July 2002, Ms. Olivas learned she was pregnant with her first child. She informed Mr. Hernandez about her condition early in August. Over the next few weeks, Ms. Olivas continued to maintain her work schedule which could be up to seventy-five hours per week. On August 7, 2002, Ms. Olivas left her shift at the restaurant and was admitted to the hospital for a possible miscarriage. She notified the restaurant, through another manager, that she would not be able to work her shift on the 8th. Mr. Hernandez left several messages on Ms. Olivas’ voicemail indicating his concern that Ms. Olivas was missing her shift that evening. When Ms. Olivas returned to work on the 9th, Mr. Hernandez asked her if she intended to stay with the company through the rest of her pregnancy. Ms. Olivas explained that she intended to keep working, and that she had an appointment to see her doctor to discuss her ongoing symptoms in September. At her appointment, Ms. Olivas’ doctor voiced some concerns about fluctuations in Ms. Olivas’ blood pressure, but did not put her on any work restrictions. When Ms. Olivas reported back to Mr. Hernandez following her appointment, he informed her that she would need documentation releasing her to work after every appointment for the duration of her pregnancy. There was never any more talk about Ms. Olivas’ promotion after her hospitalization.

When Ms. Olivas returned to her doctor in October, they discussed her work schedule and requirements. When she told the doctor she was working up to seventy-five hours per weeks, she expressed concerns about Ms. Olivas not getting enough rest, and restricted her to a forty-hour work week. Ms. Olivas reported the doctor’s restriction to Mr. Hernandez, who spoke to Applebee’s director of operations, Mr. Butch Gore. Because of her hourly restrictions, the company cut Ms. Olivas’ salary by approximately $120 per pay period, a one-fifth reduction. Ms. Olivas contacted Ms. Bea Martinez, the company’s contact person for human resource issues, to complain about the pay reduction. Ms. Martinez informed Ms. Olivas that there was no written company policy requiring managers to work fifty or more hours per week to receive a full salary.

Ms. Olivas’ schedule continued to be more than forty hours per week, but she was working less hours than she had prior to her pregnancy. When her paycheck continued to reflect a one-fifth pay cut she called Ms. Martinez a second time. Again, Ms. Martinez indicated that the company did not have a written policy requiring managers to work over fifty hours per week to receive their full salaries. Ms. Martinez informed Ms. Olivas that if she felt she was being discriminated against, she could contact the Texas Workforce Commission or the Equal Employment Opportunity Commission and file a complaint. Ms. Olivas filed her first complaint with the Texas Human Rights Commission and the EEOC on November 19, 2002, charging her employer with discrimination based on her sex and because of her pregnancy.

From November 2002 until March 2003, just before the end of her pregnancy, Ms. Olivas was often scheduled for closing shifts, which required her to be at work from late afternoon until between midnight and three a.m. During November and December, Ms. Olivas was scheduled to close more often than any other manager at the George Dieter restaurant. On several occasions, she was scheduled to work more than forty hours per week, and on other occasions, although she was scheduled for less than forty hours, the closing shifts required her to work beyond the hours scheduled.

During the week of November 11 through December 8, 2002, Ms. Olivas worked forty-eight hours, in part because she was called in to cover shifts for Mr. Hernandez who took time off to care for his wife who had suffered a miscarriage. On December 11, Ms. Olivas worked her third closing shift in as many days, pursuant to her schedule. The next week, Mr. Hernandez issued a written employee warning to Ms. Olivas, alleging that she did not perform a safety check in the kitchen to make sure the pilot lights on the stove were turned off, and as a result the entire restaurant smelled like gas the next morning. The warning also reported that at the end of the night, the kitchen was not cleaned satisfactorily, and that trash was not emptied properly. Ms. Olivas filed her second discrimination complaint to the Texas Human Rights Commission and the EEOC on March 27, 2003. In the second complaint, Ms. Olivas alleged her employer had retaliated following the first complaint by scheduling her to work more than forty hours per week despite her doctor’s orders, by cutting her salary, and by singling her our for disciplinary action.

In March 2003, Ms. Olivas began nine-weeks of maternity leave and returned to work in May 2003. When she called Mr. Hernandez to ask to be put back on the schedule, he informed her that she would be working at the restaurant at the intersection of Yarborough and Interstate 10. Mr. Aguirre was Ms. Olivas’ supervisor at the Yarborough location. Initially, she was assigned to work exclusively in the kitchen and was scheduled to open the restaurant. One of the responsibilities of the opening manager is to do a “freezer-pull,” which requires the assigned manager to pull all of the day’s supplies and move them into the cooler or other areas in the kitchen. While she was performing this task, Ms. Olivas experienced sharp pains in her breasts on two occasions. After she reported the pain to her doctor, the doctor faxed El Apple a note prohibiting Ms. Olivas from working in the freezer. The following day, she was scheduled for more work in the freezer, but when she approached her supervisor about her doctor’s restrictions, another manager informed her that the company had contacted the physician and that Ms. Olivas was now only restricted from being in the freezer for more than three to five minutes, and was required to wear a jacket. El Apple did not have Ms. Olivas’ permission to contact her doctor.

Ms. Olivas continued to work exclusively in the restaurant’s kitchen for the next three months. None of the other managers were specifically assigned to the kitchen, or any other area in the restaurant. When she complained about being prohibited from the front of the restaurant, Mr. Aguirre told Ms. Olivas that she was too negative, and did not have a proper rapport with the other employees or customers to work outside the kitchen. When Mr. Aguirre was promoted to Area Director, and Mr. Hernandez took his place as general manager at the Yarborough location, Ms. Olivas began being assigned to duties outside the kitchen. Still, whenever Mr. Aguirre visited the store, Ms. Olivas would be ordered back to the kitchen despite her assigned location for the shift. Ms. Olivas filed her third discrimination complaint on June 25, 2003, alleging that by excluding her from all areas of the restaurant but the kitchen, and that by contacting her doctor about her breast pain without her permission, her employer and supervisors continued to retaliate against her for her previous reports.

Between May and October 2003, Ms. Olivas worked in what she described as a “hostile” environment at Applebee’s. She felt that her superiors worked insidiously to undermine her capabilities to the staff and that she had been singled out for reprimands on occasions when she had not done anything wrong. On November 1, 2003, Mr. Hernandez issued a written warning against Ms. Olivas, indicating she was being sent home without pay because she had approached another manager, who was in the restaurant as a customer with family members, about her ongoing issues with her supervisors. When Mr. Aguirre and Mr. Hernandez approached Ms. Olivas with the write-up about the incident, she refused to sign the document. After she refused to sign the first reprimand, Mr. Hernandez wrote her up a second time for refusing to sign the first reprimand. When Ms. Olivas refused to sign the second reprimand, Mr. Aguirre escorted her out of the building. Ms. Olivas filed her fourth, and final, discrimination charge on November 4, 2003, claiming that she had been disciplined and threatened with termination, in retaliation for her previous discrimination charges. ■

Ms. Olivas filed her original petition alleging sex discrimination and retaliation on November 7, 2003. The case was tried to a jury from October 23 to October 30, 2006. The jury determined Ms. Olivas was not the target of discrimination based on her sex. However, the jury agreed with Ms. Olivas that her decision to file discrimination complaints against, her employer was a motivating factor in El Apple’s creation of a hostile work environment. Based on the retaliation finding, the jury awarded, $1,700 for wages Ms. Olivas would have been paid absent the retaliatory actions, $75,000 in compensatory damages for past non-economic damages, and $28,000 for future compensation for continuing non-economic damages. Ms. Oli-vas has continued to work for El Apple as an Applebee’s manager throughout the litigation.

The trial court entered its written judgment on June 14, 2007. The court awarded damages pursuant to the jury’s verdict, prejudgment interest in the amount of $20,196.79, plus $17.33 per day as post-judgment interest between December 11, 2006, and the date of the judgment. El Apple was also ordered to pay Ms. Olivas $464,000 for attorney’s fees related to the trial. The court also made conditional awards of $9,000, $50,000, $16,000, and $24,000, respectively, for costs associated with a the filing of any post-judgment motions, an appeal to the intermediate court of appeals, a petition for discretionary review, and an appeal in the Texas Supreme Court should a petition for discretionary review be granted. El Apple filed a motion for new trial on July 6, 2007, and its notice of appeal September 7, 2007. ■

In Issue One, El Apple contends the evidence is legally insufficient to support the jury’s determination that Ms. Oli-vas was retaliated against for filing discrimination charges. A legal sufficiency challenge can be sustained if the record shows: (1) the complete absence of a vital fact; (2) the court is barred by rules of law or of evidence from giving weight to the only evidence offered to prove a vital fact; (3) the evidence offered to prove a vital fact is no more than a scintilla; or (4) the evidence conclusively establishes the opposite of a vial fact. City of Keller v. Wilson, 168 S.W.3d 802, 810 (Tex.2005).

When conducting our review, we consider the evidence in the light most favorable to the verdict and induce every reasonable inference that would support it. City of Keller, 168 S.W.3d at 822. Even if evidence is undisputed, we will not disturb the inferences drawn by the trier of fact, as long as more than one inference is possible. Id. at 821. However, if the evidence allows only one inference, neither the trier of fact nor the reviewing court is permitted to disregard it. City of Keller, 168 S.W.3d at 821. We are also mindful that the trier of fact is the sole judge of witness credibility and the weight to be given witness testimony. Id. at 819. When the record contains conflicting evidence, it is the province of the trier of fact to resolve those conflicts. Id. at 820. In every circumstance where a reasonable fact finder could resolve conflicting evidence either way, the reviewing court must presume it did so in favor of the prevailing party, and must disregard the contrary evidence in its review. Id. at 821. So long as the evidence falls within the zone of reasonable disagreement we may not substitute our judgment for that of the trier of fact. Id. at 822. The ultimate test for legal sufficiency is whether the evidence at trial would enable reasonable and fair-minded people to reach the verdict under review. Id. at 827.

El Apple argues there is no evidence to support the jury’s retaliation finding because the alleged retaliatory actions Ms. Olivas points to as the basis for her claim do not constitute “adverse employment actions” as defined by the United States Supreme Court in Burlington Northern & Santa Fe Ry. Co. v. White, 548 U.S. 53, 126 S.Ct. 2405, 165 L.Ed.2d 345 (2006). El Apple also contends there is no evidence of a causal connection between Ms. Olivas filing a discrimination claim, and the alleged retaliatory actions.

As a preliminary matter, however, we must consider how the jury was, or should have been, asked to determine the' challenged issue. See Romero v. KPH Consol., Inc., 166 S.W.3d 212, 221 (Tex.2005). This inquiry is key to a sufficiency analysis because when a complaining party fails to object to the way an issue is submitted to the jury, we must review the jury’s finding in light of the charge as submitted, even if the submission was an inaccurate statement of the law. See City of Fort Worth v. Zimlich, 29 S.W.3d 62, 71 (Tex.2000). When the complaining party properly objects, however, we must first determine how the issues should have been submitted, and then review the evidence in light of the charge as it should have been submitted. See St. Joseph Hosp. v. Wolff, 94 S.W.3d 513, 530 (Tex.2002).

Ms. Olivas’ retaliation claim was submitted in Question Three of the court’s charge. Question Three asked:

Was Myriam Olivas’ making or filing a charge of discrimination or filing a complaint a motivating factor in El Apple I, Ltd’s creating a hostile work environment, if any?
A hostile work environment requires the presence of a work environment that a reasonable person would find hostile or abusive. Whether an environment is hostile or abusive depends on the totality of the circumstances, focusing on factors such as the frequency of the conduct, the severity of the conduct, the degree to which the conduct is physically threatening or humiliating, and the degree to which the conduct unreasonably interferes with an employee’s work performance.
A ‘motivating factor’ in an employment decision is a reason for making the decision at the time it was made. There may be more than one motivating factor for an employment decision.

During the charge conference, El Apple presented the White case to the trial court in support of its argument that the evidence of El Apple’s actions following Ms. Olivas’ discrimination report did not rise to the level of an actionable claim for retaliation. In White, the Supreme Court stated that an adverse employment action short of termination supports a claim for retaliation if a reasonable employee would have found the challenged action materially adverse. White, 548 U.S. at 68, 126 S.Ct. at 2415. In the retaliation context specifically, a “materially adverse” employment action is one that might have dissuaded a reasonable employee from making or supporting a discrimination charge. Id.

The jury here was not instructed to consider the evidence of El Apple’s alleged retaliatory actions in light of the standard articulated in White. Therefore, before we may review the sufficiency of the evidence in light of a standard on which the jury was not instructed, we must determine whether El Apple lodged a proper objection to the court’s definition. See Wolff, 94 S.W.3d at 530. Texas Rules of Civil Procedure 274 states:

A party objecting to a charge must point out distinctly the objectionable matter and the grounds of the objection. Any complaint to a question, definition, or instruction, on account of any defect, omission, or fault in pleading, is waived unless specifically included in the objections.

Tex.R.Civ.P. 274; see also Tex.R.Civ.P. 272.

El Apple objected to the submission of the entirety of Question Three on the basis that there was no evidence to support its inclusion in the charge in light of the standard articulated in White. El Apple did not object to the statement of the law contained in Question Three’s definitions, nor did the company argue that the definition, as worded, presented an inaccurate statement of the law. Accordingly, El Apple failed to preserve the question of the proper standard for measuring actionable retaliatory conduct for review, and we must review the sufficiency of the evidence in light of the question and definítion provided to the jury, without regard to the legality of the definition. See Equistar Chem., L.P. v. Dresser-Rand, Co., 240 S.W.3d 864, 868 (Tex.2007); Zimlich, 29 S.W.3d at 71.

Ms. Olivas testified extensively regarding the treatment she received at the restaurant through the actions taken by her supervisors and other individuals at El Apple. She testified that Mr. Aguirre undermined her authority to manage other staff members, which made it difficult to perform her job. She testified that she felt she was singled out for reprimands, and was held to a different standard of performance than other staff members. Despite her doctor’s orders, she was required to work more than forty hours per week. El Apple interfered with her medical restrictions by contacting her doctor without her permission to alter the physician’s recommendation regarding Ms. Oli-vas’ physical limitations following her pregnancy. After she was limited to minimal physical exertion by her doctor, she was restricted almost exclusively to the restaurant kitchen for several months. She was the only manager on staff who was prohibited from working in the front of the restaurant. She was also scheduled to work a significantly higher number of closing shifts than other managers.

Viewing the evidence in a light most favorable to the verdict, we conclude there is more than a scintilla of evidence which would allow reasonably minded jurors to determine Ms. Olivas was subjected to a hostile work environment as a result of her decision to file discrimination charges against her employer. As such, the evidence is legally sufficient to support the jury’s answer to Question Three, and Issue One is overruled.

In Issue Two, El Apple asserts the jury’s $1,700 in back pay award must be reversed. El Apple’s arguments on this point are premised on the fact that during closing arguments, Ms. Olivas’ attorney asked the jury to award $1,680 to compensate Ms. Olivas for a salary reduction during her second pregnancy in 2005. Ms. Olivas does not cite to any other point in the record where there was evidence of a nearly $1,700 reduction in salary, and we have been unable to locate any other evidence in the record to support the jury’s award in this instance.

First, El Apple argues this particular damage award must be reversed because Ms. Olivas’ discrimination charges did not include a retaliation claim related to her second pregnancy. Second, El Apple argues there is no evidence of a causal connection between El Apple’s alleged discrimination or retaliation and the salary reduction during Ms. Olivas’ second pregnancy.

As Ms. Olivas points out, El Apple failed to present either of the arguments now raised in Issue Two to the trial court. Generally, failure to make a timely and specific objection to the trial court results in waiver of an issue on appeal. See Tex. R.App.P. 33.1(a). However, in rare instances where the record demonstrates a jurisdictional defect, or other type of “fundamental error,” timely objection is not necessary as the issue may be raised for the first time on appeal. See Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572, 577 (Tex.2006). In its first, argument under Issue Two, El Apple contends Ms. Olivas was not entitled to back pay damages related to her second pregnancy because, her EEOC and Texas Human Rights Commission charges did not include allegations of discrimination or retaliation beyond her first pregnancy. Under this Court’s decision in El Paso County v. Navarrete, this argument presents a challenge to the trial court’s jurisdiction to consider this limited issue. 194 S.W.3d 677, 683-84 (Tex.App.-El Paso 2006, pet. denied).

The Texas Commission on Human Rights Act, contained in Chapter 21 of the Texas Labor Code, maintains a comprehensive administrative review system for obtaining relief from unlawful employment practices. See Navarrete, 194 S.W.3d at 683. Prior to filing suit in state court, an employee must exhaust her administrative remedies under the act by first filing a complaint with the TCHR. Id. This affords the Commission an opportunity to investigate the allegation, informally eliminate any discrimination, and minimize costly litigation. Id. A claimant’s failure to satisfy the administrative requirements deprives the court of subject matter jurisdiction. Navarrete, 194 S.W.3d at 683. Unless an employee submits her complaint to the TCHR, the courts of Texas are barred from adjudicating the complaint. Id. at 683. Any lawsuit brought under the act is further limited to claims made in the discrimination complaint, and any factually related claims that could reasonably be expected to grow out of the Commission’s investigation of the charge. Thomas v. Clayton Williams Energy, Inc., 2 S.W.3d 734, 738 (Tex.App.-Houston [14th Dist.] 1999, no pet.).

Ms. Olivas’ four employment discrimination charges were filed on November 19, 2002, March 27, 2003, June 25, 2003, and November 4, 2003, respectively. Ms. Olivas became pregnant with her first child in July of 2002. She became pregnant with her second child in September of 2004, and continued to work for El Apple as a restaurant manager throughout the second pregnancy. She ended her second maternity leave at the end of June 2005, and returned to work as a manager for El Apple. Ms. Olivas’ charges to the TCHR and EEOC predated her second pregnancy by twenty-two months. There is no mention of allegedly discriminatory or retaliatory practices related to the second pregnancy in the charges, and such retaliation charges could not be expected to grow out of Ms. Olivas’ original filings. As such, we conclude Ms. Olivas failed to exhaust her administrative remedies with respect to any claims for discrimination or retaliation arising out of her second pregnancy and therefore, was precluded from raising them within this proceeding. Accordingly, the trial court lacked jurisdiction to consider, or award damages for such a claim. See Navarrete, 194 S.W.3d at 684. Similarly, without addressing the sufficiency of the evidence to support the jury’s award we sustain Issue Two, and we will reform the judgment to omit the award for back pay damages as well as the associated prejudgment interest.

In Issue Three, El Apple contends the trial court erroneously admitted evidence of unrelated acts of alleged discrimination against other female employees. The admission or exclusion of evidence is committed to the trial court’s discretion. See City of Brownsville v. Alvarado, 897 S.W.2d 750, 754 (Tex.1995). As such, a reviewing court cannot sustain an issue challenging the admission or exclusion of evidence absent an abuse of discretion. See Garcia v. Martinez, 988 S.W.2d 219, 222 (Tex.1999). In addition, evidentiary error only rises to the level of reversible error if the error probably caused the rendition of an improper judgment, or probably prevented the appellant from properly presenting the case to the court of appeals. See Tex.R.App.P. 44.1(a). A successful challenge to an evidentiary ruling usually requires the complaining party to demonstrate that the judgment turns on the particular evidence admitted or excluded. Pack v. Crossroads, Inc., 53 S.W.3d 492, 499 (Tex.App.-Fort Worth 2001, pet. denied).

Even if we were to agree, for the sake of argument, that the evidence El Apple challenges was erroneously admitted, we fail to see how El Apple was harmed by that admission. As we understand El Apple’s argument, the company contends it was harmed by the admission of this evidence because it permitted plaintiffs counsel to use the evidence to create an impression that there was a general pattern of discriminatory behavior focused on female employees, and that El Apple, as a company, cultivated a culture of sex based discrimination diming closing argument. The jury, however, was not persuaded by Ms. Olivas’ argument, and found against her regarding El Apple’s liability for sex discrimination. El Apple makes no argument that the challenged evidence influenced the jury’s verdict on Ms. Olivas’ retaliation claim, and we decline to speculate as to whether it is relevant to that inquiry. Accordingly, El Apple cannot demonstrate that admission was harmful under the standards set forth in Texas Rule of Appellate Procedure 44.1(a), and we overrule Issue Three.

In Issue Four, El Apple challenges the attorney’s fees and costs awards on four grounds. First, El Apple argues there is no evidentiary basis from which the trial court could have determined the number of hours Ms. Olivas’ attorneys claimed to have expended representing her were reasonable. Second, El Apple asserts there was no evidence to support the trial court’s determination of a reasonable hourly rate to be attributed to Ms. Olivas’ counsel’s work on the case, nor that the amount the court set was representative of the rates charged by similarly experienced lawyers in El Paso. Third, El Apple contends the trial court improperly enhanced Ms. Oli-vas’ attorney’s fee award because there was no evidence to support such enhancement. In its fourth, and final argument, El Apple contends the trial court’s conditional award of attorney’s fees for potential post-judgment and appellate proceedings was speculative, and therefore made in error.

An attorney’s fees award rests in the sound discretion of the trial court. Cordova v. Southwestern Bell Yellow Pages, Inc., 148 S.W.3d 441, 445-46 (Tex.App.-El Paso 2004, no pet.). Therefore, although the appropriate standard of review is generally abuse of discretion, we may also review an attorney’s fees award for sufficiency of the evidence. Id. at 446. This hybrid analysis results in a two-pronged inquiry: (1) did the trial court have sufficient evidence before it to properly exercise its discretion; and if so, (2) did the court err in the application of its discretion? Id. The reviewing court employs a traditional sufficiency review under the first prong, and then, if sufficient evidence appears in the record, we must determine whether the trial court’s decision falls within the bounds of its discretionary authority. See Cordova, 148 S.W.3d at 446. That is, should we reach the second inquiry, the trial court’s decision will only be reversed if it was arbitrary or unreasonable. See id.

In an employment discrimination case, attorney’s fees are authorized by Section 21.259 of the Texas Labor Code. A trial court may allow the prevailing party to recover reasonable attorney’s fees as part of the costs of pursuing the claim. See Tex.Lab.Code Ann. § 21.259(a) (Vernon 2006). In this case the trial court used the “lodestar” method to determine a reasonable fee amount. A “lodestar” calculation requires the court to determine how many hours were reasonably spent on the matter, and then to multiply those hours by a reasonable hourly rate. Dillard Dept. Stores, Inc. v. Gonzales, 72 S.W.3d 398, 412 (Tex.App.-El Paso 2002, pet. denied). The “lodestar” figure can then be adjusted according to the factors listed in Johnson v. Georgia Highway Express, Inc., 488 F.2d 714, 717-19 (5th Cir.1974); Gonzales, 72 S.W.3d at 412. The Johnson factors include: (1) the time and labor required; (2) the novelty and difficulty of the issues; (3) the level of skill involved; (4) the effect on other employment by the attorney; (5) the customary fee; (6) whether the fee is fixed or contingent; (7) time limitations imposed by the client or the circumstances; (8) the amount involved and the result obtained; (9) the experience, reputation, and ability of the attorney; (10) the undesirability of the case; (11) the nature and length of the attorney’s relationship with the client; and (12) awards in similar cases. Gonzales, 72 S.W.3d at 412, citing Johnson, 488 F.2d at 717-19. If some of these factors are accounted for in the lodestar amount, they should not be considered when making adjustments. Gonzales, 72 S.W.3d at 412.

All four of the grounds El Apple asserts in Issue Four, focus on the first prong of the hybrid standard of review. In essence, El Apple argues by awarding the attorney’s fees it did, the trial court abused its discretion because there was no evidence upon which the trial court could properly exercise its discretion. As we discussed in Issue One, a legal sufficiency review requires us to examine all the evidence in a light most favorable to the verdict. City of Keller, 168 S.W.3d at 822. The ultimate inquiry is whether the evidence at trial would enable reasonable and fair-minded people to reach the verdict under review. Id. at 827.

Ms. Olivas filed her application for attorney’s fees and costs pursuant to Section 21.259 on December 4, 2006. The motion was supported by two separately filed affidavits by Ms. Olivas’ trial counsel; Daniel Gonzalez and Francisco Dominguez. According to Mr. Gonzales’s affidavit, over the course of five years he invested over seven hundred hours in the case, including Ms. Olivas’ four discrimination claims and trial. He indicated that $300 per hour was within the range of fees “customarily charged in El Paso County for similar legal services, for lawyers with similar experience,” and added that $200 per hour was within the appropriate range of fees for his co-counsel. Counsel attributed the number of hours expended on the case to the number of discovery instruments and pleadings, the number of depositions and witness interviews, as well as the skill with which defense counsel defended its client prior to, and during trial. Counsel also testified that he did not seek assistance from co-counsel until such assistance was necessary prior to trial. The affidavit indicates co-counsel and Mr. Dominguez, expended 190 hours preparing for, and trying the case. Mr. Gonzales indicated that both attorney’s time was reasonable and necessary given the nature of the case, and the result obtained. Mr. Dominguez testified that like Mr. Gonzalez, he refrained from taking additional clients in order to dedicate the time necessary to properly represent Ms. Olivas.

Both lawyers addressed several more Johnson factors in addition to the time required to handle the case. Both lawyers testified El Apple defended the case vigorously and that the risk involved pursuing the claim was increased due to it being of a contingent nature. Both lawyers also testified regarding the undesirablity of the case given the difficulty in establishing an employer’s intent in a discrimination case, the complexity of the law in this area, and the limited number of attorneys who are available to handle employment discrimination cases for El Paso plaintiffs. Finally, both affidavits provided an extensive list of similar awards in similar cases.

El Apple argues, in part, that without detailed billing records, and in light of its own trial attorney’s testimony that the case only required approximately 266 hours of attorney time, there is legally insufficient evidence to support the trial court’s determination that the hours claimed by Mr. Gonzalez and Mr. Dominguez were a reasonable number of hours for this case. Generally, a court does not abuse its discretion simply because the evidence of attorney time is not provided in the form of billing records, or other similar documentation. See West Telemarketing Corp. Outbound v. McClure, 225 S.W.3d 658, 676 (Tex.App.-El Paso 2006, pet. granted, judgm’t vacated w.r.m.). In light of the affidavit evidence provided by plaintiffs counsel, we conclude the evidence was legally sufficient to support the trial court’s determination, and the trial court did not abuse its discretion by accepting plaintiffs counsels’ number of hours calculation. We also conclude, in response to part two of Issue Four, that the evidence was legally sufficient to provide a reasonable basis for the trial court’s determination of the hourly rate.

In part three of Issue Four, El Apple contends there is no evidence to support the trial court’s decision to enhance the lodestar calculation. In appropriate cases, following the lodestar calculation, the trial court may adjust the lodestar up or down based on Johnson factors which have not already been considered in establishing the lodestar itself. See Gonzales, 72 S.W.3d at 412. In this instance, the trial court adjusted the lodestar by awarding twice the product of the lodestar calculation. El Apple argues this enhancement was an abuse of discretion for two reasons: (1) a fee enhancement is only warranted in exceptional cases; and (2) the applicable Johnson factors were, presumptively, included in the trial court’s lodestar calculation and were not a proper basis for adjustment.

Regarding El Apple’s first point, we note that Texas courts permit the use of a multiplier when awarding attorney fees pursuant to Texas statutes allowing recovery of attorney fees, including the TCHRA, based on the contingent nature of such cases. Gonzales, 72 S.W.3d at 413. El Apple cites almost exclusively to federal authority for the proposition that a multiplier must be reserved for exceptional cases. Without discounting such authority as it applies to federal employment discrimination cases, we will not depart from our prior decision. Accordingly, we are not persuaded by El Apple’s first argument.

In its second argument El Apple’s asserts the trial court utilized one or more of the Johnson factors twice in its lodestar calculation. As with its prior point, El Apple cites primarily to federal authority in support of its • argumént. As with its prior point, we are not persuaded by El Apple’s cited authorities. See Navarrete, 194 S.W.3d at 683 (noting Texas court may consider cases interpreting Title VII in cases brought under Chapter 21 of the Texas Labor Code).

At the close of the attorney’s fees hearing, the trial court announced its decision regarding the number of hours, and hourly rates which would serve as the basis for the lodestar calculation. The court’s findings on these two matters match the affidavit testimony provided by Mr. Dominguez and Mr. Gonzalez. Neither attorney accounted for the contingent nature of the case in his testimony regarding an appropriate hourly fee. By adopting the attorneys’ testimony, the trial court likewise did not consider the contingent nature of the case in the lodestar. Because there is no indication the trial court considered the contingency factor more than once in its calculation, it did not abuse its discretion by applying a multiplier.

In part four of Issue Four, El Apple contends the trial court’s conditional awards for post-judgment and appellate proceedings was speculative and erroneous. The Texas Supreme Court has recently declined to require a post-appeal remand for a second determination of appellate fees. See Varner v. Cardenas, 218 S.W.3d 68, 70 (Tex.2007). Citing to its 1971 opinion in Int’l Sec. Life Ins. Co. v. Spray, the Court noted that when evidence of appellate fees is provided to the trial court in the first instance, two trials on attorney’s fees are not necessary. See Varner, 218 S.W.3d at 70, citing Int’l Sec. Life Ins. Co. v. Spray, 468 S.W.2d 347, 349 (Tex.1971). Like the appellant in Varner, El Apple does not challenge the sufficiency of the evidence supporting the trial court’s conditional awards, but only argues the speculative nature of prospective awards in general warrant a change in procedure. In light of Varner, we disagree.

As a final matter, we must address El Apple’s argument regarding segregation of attorney’s fees. Embedded in parts one and two of Issue Four, El Apple argues that due to a failure to segregate recoverable from unrecoverable fees, the trial court erred by awarding attorney’s fees for claims to which Ms. Olivas was not entitled as the non-prevailing party. A party seeking attorney’s fees must show that the fees were incurred on a claim that allows recovery of such fees, and is therefore ordinarily required to segregate fees incurred on claims allowing such recovery, from claims that do not. Stewart Title Guar. Co. v. Aiello, 941 S.W.2d 68, 73 (Tex.1997). However, in cases where discrete legal services advance both recoverable and unrecoverable claims, segregation is not required. See Tony Gullo Motors I, L.P. v. Chapa, 212 S.W.3d 299, 313 (Tex.2006). If any fees relate solely to a claim for which fees are not recoverable, the claimant must segregate the unrecoverable from the recoverable claims. Chapa, 212 S.W.3d at 313. While the need to segregate attorney’s fees is a question of law, the extent to which claims can or cannot be segregated is a mixed question of law and fact. Id. at 312-13. It is the claimant’s burden to establish that segregation is not required. See CA Partners v. Spears, 274 S.W.3d 51, 81 (Tex.App.-Houston [14th Dist.] 2008, pet. denied).

Ms. Olivas achieved only partial success at trial. Although the jury determined El Apple was liable to Ms. Olivas for retaliation, it did not agree that Ms. Olivas had been subjected to discrimination based on her pregnancy. Section 21.259 provides for recovery of reasonable attorney’s fees for the prevailing party. As Ms. Olivas was not the prevailing party on her discrimination claim, the attorney’s fee award may only be upheld if the fees related to the unsuccessful claim have been segregated, or there is evidence to establish the claims were so intertwined that segregation was not necessary. See Chapa, 212 S.W.3d at 313; see also Hensley v. Eckerhart, 461 U.S. 424, 436, 103 S.Ct. 1933, 1941, 76 L.Ed.2d 40 (1983)(not-ing that in Title VII cases in which the plaintiff achieves only partial success, the product of the total number of hours expended on the litigation times a reasonable hourly rate may produce an excessive amount as the statute authorizes recovery of fees for successful claims not, “whenever it was reasonable for a plaintiff to bring a lawsuit or whenever conscientious counsel tried the case with devotion and skill.”).

In the case before us, fees related to the unsuccessful claim were not segregated from fees related to the successful claim. While the extent to which certain claims can be segregated is a mixed question of law and fact, subject to a deferential standard of review in light of the trial court’s role as the fact finder; the question of whether segregation is required in a particular case is a legal inquiry subject to de novo review. See Chapa, 212 S.W.3d at 312-13. In addition, when, as in this case, the reviewing court does not have the benefit of findings of fact and conclusions of law, we may infer the trial court made the factual determination that the legal services provided advanced both recoverable and non-recoverable claims, so that the services were “so intertwined that [the fees] need not be segregated.” See id. at 313-14; Worford v. Stamper, 801 S.W.2d 108, 109 (Tex.1990).

El Apple’s argument is limited to whether the trial court erred by determining Ms. Olivas was not required to segregate. It has not challenged the legal and factual sufficiency of the evidence supporting the court’s factual determination that Ms. Oli-vas’ claims fit within the exception. Furthermore, the evidence presented to the trial court, by both sides on this issue does not indicate that Ms. Olivas’ attorneys performed discrete legal services in pursuit of her discrimination claim, which could have been segregated. Based on the record before us, and the circumstances of this case, we cannot conclude the trial court erred by failing to require segregation. See Fortenberry v. Cavanaugh, No. 03-07-00310-CV, 2008 WL 4997568 *13 (Tex.App.-Austin Nov. 26, 2008, pet. denied)(mem. op.).

Accordingly, having considered and overruled all of El Apple’s arguments regarding the trial court’s attorney’s fee award, we conclude the trial court did not abuse its discretion, and overrule Issue Four.

Having sustained Appellant’s Issue Two, the judgment is reformed to omit the award of back-pay damages and associated pre-judgment interest. As the remainder of Appellant’s issues have been overruled, we affirm the trial court’s judgment as reformed.

MOODY, Judge, Sitting by Assignment.