                                                                                       ACCEPTED
                                                                                   04-14-00078-CV
                                                                       FOURTH COURT OF APPEALS
                                                                            SAN ANTONIO, TEXAS
                                                                              6/30/2015 4:07:08 PM
                                                                                    KEITH HOTTLE
                                                                                            CLERK


                             NO. 04-14-00078-CV

                                                         FILED IN
                                                  4th COURT OF APPEALS
                        IN THE COURT OF APPEALS    SAN ANTONIO, TEXAS
                                                  06/30/15 4:07:08 PM
                FOR   THE FOURTH JUDICIAL DISTRICT OF
                                                    KEITH E. HOTTLE
                         TEXAS AT SAN ANTONIO             Clerk



           RIVER CITY CARE CENTER, INC. D/B/A RIVER CITY CARE
                               CENTER,
                               Appellant,
                                  v.
                            BETTY TAYLOR,
                               Appellee.

                  On Appeal from the 37th Judicial District Court,
                  Bexar County, Texas, Cause No. 2011-CI-15814


       APPELLEE’S MOTION FOR REHEARING AND BRIEF IN
                       SUPPORT
                                       Paul G. Vick - State Bar No. 20563950
                                       pvicklaw@aol.com
                                       James McDonough - State Bar No.
                                       24007325 lawjmcd@yahoo.com


                                       Law Offices of Paul G. Vick
                                       Law Offices of James C.
                                       McDonough
                                       6243 IH 10 West, Suite 860
                                       San Antonio, Texas 78201
                                       210-735-1794
                                       210-733-7510 fax
                                       ATTORNEYS FOR APPELLEE

                                       June 30, 2015


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TO THE HONORABLE FOURTH COURT OF APPEALS:

      Comes Now, Appellee Betty Taylor, and pursuant to Texas Rule of

Appellate Procedure 49, files this Motion for Rehearing, and states as follows:


                               ISSUE PRESENTED


      Appellee, Betty Taylor files this Motion for Rehearing of this Court’s June

17, 2015 Memorandum Opinion on the grounds that the Court improperly reversed

and rendered judgment that Appellee, Betty Taylor take nothing solely with respect

to the issue of the award of attorney fees.


                            STATEMENT OF FACTS


      The underlying lawsuit was filed by Taylor against Appellant, River City

Care Center, Inc. (hereinafter referred to as River City) which alleged age

discrimination and related damages. The case was called to trial on September 16,

2013 and the jury returned a verdict in favor of Taylor on the issue of age

discrimination, but found that River City would have taken the same action in the

absence of the impermissible motivating factor. (CR 310-311). The Trial Court

held a hearing on Taylor and River City‘s Motions for Final Judgment and, after

hearing arguments of counsel, entered a Final Judgment against River City which

prohibited River City “from engaging in the unlawful employment practice of age

discrimination…”, and awarded damages and attorney fees to Taylor. (Cr 398).
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River City appealed the Judgment and this Court determined that the Trial Court

had abused its discretion in its award of damages and attorney fees and reversed

and remanded that Taylor take nothing. Taylor brings this Motion for

Reconsideration solely on the issue of attorney’s fees.


                      ARGUMENT AND AUTHORITIES


      As this Court correctly points out, there are two (2) remedies for the

recovery of attorney fees in an age discrimination case. For purposes of this

motion, Taylor focuses her attention on Section 21.125 of the Texas Labor Code

which in summary grants the trial court the discretion to award attorney fees and

costs demonstrated to be directly attributable to the discriminatory complaint when

there is a finding that age was a motivating factor in the employment decision, and

that the employer would have taken the same action in the absence of the

impermissible motivating factor. See Tex. Labor Code Ann. §21.125 (a), (b). The

award of attorney’s fees generally rests within the sound discretion of the trial

court. Ragsdale v. Progressive Voters League, 801 S.W.2d 880, 881 (Tex.1990)

(per curiam).

      In the Memorandum Opinion, this Court relies on the premise that when

Taylor failed to obtain a jury finding on attorney’s fees and fees were disputed, any

award of attorney’s fees would be an abuse of discretion, citing Univ. of Tex. v.

Ables, 914 S.W.2d 712 (Tex. App.- Austin 1996, no writ) and Tex. R. Civ. P. 279.
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However, the facts in the Ables case are not analogous to the facts in this case as

they relate to the relevant issues in this appeal, and in particular this motion for

reconsideration. In the Ables case, the trial court excluded attorney testimony about

the reasonableness and necessity of the work and the resulting fees, and the

requesting party in Ables did not submit a question/issue for the jury concerning

attorney fees. Id. at 717. As a result of the express provisions of Rule 279, the

exclusion of such testimony and the failure to submit the question to the jury

resulted in a waiver of the right to recover attorney fees. Id.

      In this case, Taylor reiterates that admissible trial testimony concerning

reasonable and necessary attorney fees was provided by counsel (5 RR 8), and the

issue of attorney fees was submitted to the jury on behalf of Taylor (CR 314). As a

result of this evidence and jury charge submission, the requirements of Rule 279

were met and there was no waiver by Taylor of her right to recover attorney’s fees.

The fact that the jury did not answer the submitted jury question is not germane to

the issue because §21.125(b) gives the trial court the discretion to determine and

award reasonable fees in the event of a jury finding that age was a motivating

factor in the decision to terminate Taylor, and the same decision would have been

made absent the impermissible motivating factor.

      In the Ables case, the dispute regarding attorney fees involved two (2) fact

issues which were not present with Taylor. First, the plaintiffs failed to submit a


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jury question and thus waived their right to recover. As pointed out, that was not

the case with Taylor; a jury question on attorney fees was submitted (CR 314).

Second, the plaintiffs in Ables failed to establish any legal right or vehicle to

recover attorney fees. Thus the trial court in Ables lacked the authority, and hence

the discretion to award attorney fees. Such is not the case with respect to Taylor.

As this Court pointed out in its memorandum opinion, §21.125(b) of the Texas

Labor Code affords the plaintiff the right to recover attorney’s fees. Unlike in

Ables, the Taylor attorney fee dispute involves a question of the amount of fees

between the trial testimony of counsel for Taylor and the post-trial affidavit

submitted; not that the trial court lacked the authority or discretion to award

attorney’s fees under §21.125(b).      However, it is important to point out that

counsel for Taylor testified at trial that the normal hourly rate for work on the case

was $300.00 per hour. This is the same hourly rate used by the Court to determine

the fee award to Taylor. (5 RR 5, 8); (CR 310, 311).

      All parties and this Court seem to be in agreement that attorney’s fees may

be awarded under §21.125(b), and that it is a discretionary measure for the trial

court. (Appellant Brief, page 24, FN 8). Therefore, with the burden of Rule 279

met because a question on attorney fees was submitted to the jury, the proper

analysis for this Court is to accord the trial court’s award of fees to the provisions

of §21.125(b) of the Texas Labor Code, which as this Court points out, grants the


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trial court the discretion to award reasonable fees and costs in accordance with the

evidence. As Section 21.125(b) of the Texas Labor Code states:


      (b) In a complaint in which the complainant proves a violation under
      Subsection (a) and a respondent demonstrates that the respondent would
      have taken the same action in the absence of the impermissible motivating
      factor, the court may grant declaratory relief, injunctive relief except as
      provided by his subsection, and attorney’s fees and costs demonstrated to be
      directly attributable only to the pursuit of a complaint under Subsection (a),
      but may not award damages or issue an order requiring an admission,
      reinstatement, hiring, promotion , or back pay.


                 CONCLUSION AND PRAYER FOR RELIEF

      As previously discussed, the jury found that age was a motivating factor in

the decision to terminate Betty Taylor (fulfilling the requirement of 21.125(a)), and

that the same action would have been taken in the absence of the impermissible

motivating factor. (CR 310, 311). The award of attorney’s fees generally rests

within the sound discretion of the trial court. Ragsdale v. Progressive Voters

League, 801 S.W.2d at 881; EL Apple I, Ltd. v. Olivas, 370 S.W.3d 757, 761 (Tex.

2012). Taylor argues that, based upon the above, the proper result of this appeal

with respect to Taylor’s attorney fee award is to affirm the award of attorney fees

by the trial court, or to remand this case back to the trial court for a redetermination

of reasonable and necessary attorney fees should the Court feel that the lodestar

method burden was not met in the trial court testimony. EL Apple I, Ltd. v. Olivas,

370 S.W.3d at 765; City of Laredo v. Montano, 414 S.W.3d 731, 736-37 (Tex.

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2013); Long v. Griffin (Tex. 2014) (per curiam). Again, it is important to note that

the trial court in this case had received testimony during the trial of reasonable and

necessary fees by counsel for Taylor in the amount awarded, and was vested with

the discretion to award fees based upon the evidence presented.

       WHEREFORE, Appellee Betty Taylor prays that this Court reconsider its

previous Memorandum Opinion with respect to the award of attorney fees, and

affirm the award of attorney’s fees and costs awarded by the trial court, or

alternatively, remand the question of attorney’s fees back to the trial court for a

redetermination of reasonable and necessary attorney’s fees and for such other

and further relief, at law or in equity, to which Taylor may show herself to be

justly entitled.

                                       Respectfully submitted,


                                       LAW OFFICES OF PAUL G. VICK
                                       First National Bank Building
                                       6243 IH-10 West, Suite 860
                                       San Antonio, Texas 78201
                                       Tel: (210) 735-1794
                                       Fax: (210) 733-7510


                                       THE LAW OFFICES OF JAMES C.
                                       McDONOUGH
                                       First National Bank Building
                                       6243 IH-10 West, Suite 860
                                       San Antonio, Texas 78201
                                       210-736-2843
                                       210-733-7511 (FAX)

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                                     ATTORNEYS FOR APPELLEE,
                                     BETTY TAYLOR


                              By:    /S/ Paul G. Vick
                                     Paul G. Vick
                                     STATE BAR NO. 20563950
                                     James C. McDonough
                                     STATE BAR NO. 13569015


                        CERTIFICATE OF SERVICE

        I hereby certify that, on the 30th day of June, 2015, a true and correct
  copy of the foregoing was served on all counsel of record listed below in
  accordance with Rule 9.5(c) of the Texas Rules of Appellate Procedure via
  e-mail:
                                             Aldean E. Kainz
                                             akainz@jw.com
                                             Breck Harrison
                                             bharrison@jw.com
                                             Jorge A. Padilla
                                             jpadilla@jw.com
                                             100 Congress, Suite 1100
                                             Austin, TX 78701
                                             (512) 236-2000
                                             (512) 236-2002 – Facsimile


                                             /s/ Paul G. Vick
                                             Paul G. Vick




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