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NO. 04-14-00078-CV

IN THE COURT OF APPEALS

FOR THE FOURTH JUDICIAL DISTRICT OF 

TEXAS AT SAN ANTONIO

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 

ACCEPTED

04-14-00078-CV

FOURTH COURT OF APPEALS

SAN ANTONIO, TEXAS

6/30/2015 4:07:08 PM

KEITH HOTTLE

CLERK

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