OPINION
CHAVEZ, Justice.
Borg-Warner Protective Services Corporation a/k/a Borg-Warner Physical Security Corporation d/b/a Wells Fargo Guard Services (“Borg-Warner”) appeals the rendition of judgment in favor of Amelia Flores, a former Borg-Warner employee, on numerous common law and statutory claims for sexual harassment and related intentional torts. We will affirm.
Facts
Borg-Warner is among this country’s largest security firms.1 Its McAllen, Texas, office is under the supervisory jurisdiction of its San Antonio, Texas, office. The McAllen field office, which, at the time of the events underlying this case employed up to 100 (or [863]*863more—testimony was varied) security guards, was run by two Borg-Warner employees—operations manager Santiago “Jimmy” Gonzales, and security consultant Ru-ford “Rob” Richards. Essentially, Gonzales directly supervised the guards, and Richards was the firm’s salesman. Gonzales and Richards had virtual autonomy in the day-to-day management of the McAllen office, as supervisory personnel from San Antonio would only visit the McAllen office between two and four times per year.
Prior to being hired to oversee all security guards in Borg-Warner’s McAllen office, Gonzales had been employed as a school bus driver, janitor, farm field worker and a furniture delivery driver. Gonzales was an allegedly habitual sexual harasser vis-a-vis the female guards whom he supervised at Borg-Warner. Testimony concerning his misdeeds included:
• asking guards (including married ones) for dates and sexual favors, sometimes offering work-related incentives to submission;
• fondling the breasts of female employees;
• insisting that he be present in the bathroom to observe the giving of a female applicant’s urine sample for the company’s pre-employment drug test;
• calling and visiting, unannounced and often intoxicated, female guards at their homes;
• surreptitiously entering the home of ap-pellee, a female guard who had spumed him; and
• raping appellee during a business outing, in the course of which transmitting gonorrhea to her.
Although Gonzales’s misconduct was reported to Borg-Warner’s management by Gonzales’s female targets on several occasions, the record indicates that Gonzales was never reprimanded by his managers. Rather, it appears that Borg-Warner ignored and/or discredited each such report. The record indicates that Borg-Warner even requested that one female complainant reduce her grievance to a notarized written statement, as a precondition to its acceptance by management; having complied with Borg-Warner’s request, her complaint was nevertheless apparently ignored.
Amelia Flores was hired by Borg-Warner in July, 1993, to be a security guard out of the McAllen office. The record reflects that, from the outset of her employment, she was a target of Gonzales’s sexual advances. The record also reflects that, at the time Flores commenced employment with Borg-Warner, Gonzales had seen his superiors ignore and disbelieve numerous reports that he had sexually harassed female employees for about a year.
Incidents of Gonzales’s inappropriate conduct toward appellee, set forth in the record, include the following: When Gonzales initially went to get Flores a uniform, he tried to kiss her and pin her to a desk in the office; after she started working, Gonzales began calling her at home; Gonzales promised Flores that she would receive favors at work if she would consent to sex with him; on one occasion, an apparently intoxicated Gonzales used a business pretext to appear at Flores’s home, whereupon he tried to unfasten his trousers and pin her down; on another occasion, Gonzales appeared at Flores’s home and tried to forcibly remove her skirt (this incident was admitted by Gonzales to his supervisor, Mike McEwen).
Finally, one afternoon in mid-August 1993, Flores paged Gonzales from her home to report an attempted auto theft which had been related to her by another Borg-Warner guard. Gonzales arrived at Flores’s home, instructing her to accompany him to the crime scene in Gonzales’s vehicle for the ostensible purpose of training Flores. En route to the attempted theft investigation, Gonzales took a detour down a dirt road, parked his car, and raped Flores, causing her to contract gonorrhea. After the rape, Gonzales returned Flores to her home, where she showered and “just kept crying and crying.”
Flores testified that she attempted to report the rape—to no avail—to BorgWamer, stating that she “tried calling the office, but Jimmy [Gonzales] was—was the one always answering the phone. So, I couldn’t get to nobody [sic] higher.” Flores attempted to call Borg-Warner’s office, in the ostensible [864]*864hopes of speaking to a managerial employee other than Gonzales, “several times.” The following testimony was elicited on the direct examination of Flores:
Q: Did Jimmy [Gonzales] ever tell you who [sic] to complain to?
A: To him.
Q: Did he say to complain to him alone?
A: To him alone.
Q: And why didn’t you want to complain to Jimmy [Gonzales] about the rape?
A: Because he was the one that committed it, how could I?
Flores was initially reluctant to report the rape to Borg-Warner, due to her observation of the company’s response to the sexual harassment reported by fellow guard Patty Garcia.2 On September 7, 1993, Flores finally informed other persons—a co-worker and a Borg-Warner client—of the harassment and rape. Flores testified that she did so “[b]eeause I needed to let it go out. I had it all inside of me.”
The client contacted Richards, to relate Flores’s revelation. Richards and Flores then met, and Flores reported the rape directly to Richards. Richards asked Flores to remain quiet about the matter. Borg-Warner offered Flores a few days off to compose herself. Declining the offer, Flores resigned.
Richards then contacted McEwen in San Antonio, the primary person to whom reports of sexual harassment were to be given. Richards also began keeping a journal of events. Gonzales was placed on “administrative leave” practically immediately, but it is unclear from the record precisely when his employment with Borg-Warner was terminated. At some point on September 7, 1998, some one from the San Antonio office of Borg-Warner called Flores to relate that Gonzales had been placed on “administrative leave”; however, Flores testified that she did not learn of Gonzales’s actual termination until March 1995.
Subsequent to Flores’s report of the rape, Gonzales continued to harass Flores, in an apparent attempt to silence her, even leaving at least one message on her telephone answering machine.3
Flores sued Borg-Warner and Gonzales on numerous theories, asserting common law causes of action as well as claims under Chapter 21 of the Texas Labor Code.4 BorgWarner claimed that Gonzales had been upbraided for violation of a supposed non-fraternization policy, implying that sexual relations among Flores and Gonzales were consensual.5 Borg-Warner and Gonzales entered into a written contract whereby Gonzales would be provided legal representation, free of charge, as long as he did not contradict the legal positions taken by Borg-Warner.
Appellee’s evidence against Borg-Warner focused on the following areas:
• Borg-Wamer’s investigation once Flores complained of harassment and rape;
• the company’s remedial measures to prevent further incidents of sexual harass- • ment;
• the existence of a sexually hostile work environment;
• the existence of sexual harassment safeguards to ensure the safety of female guards;
• whether Borg-Warner was negligent in hiring and retaining Gonzales; and
[865]*865• the corporation’s overall sexual harassment policy.
Expert testimony was also received that Flores suffered from “rape trauma syndrome” as a consequence of the rape.
Representatives of Borg-Warner who testified at trial repeatedly contradicted themselves, each other and their prior deposition testimony. For example, Walter Lepp, a human resources manager for Borg-Warner, testified that Gonzales was fired for violating a non-fraternization policy, although he stated that, hypothetically, the policy would not apply to two Borg-Warner employees who are living together.
The jury awarded actual damages as follows: 6
Past lost wages & benefits (“back pay”) $13,500
Future lost wages & benefits (“front pay”) $350,000
Past mental anguish $20,000
Future mental anguish $60,000
Past physical pain $20,000
Future physical pain $0
Having determined liability, the trial progressed to the punitive damages phase.
In argument to the jury at the punitive damages stage, counsel for Flores stated:
... I want you to pay particular attention to the size of the award needed to deter similar wrongs in the future. This again goes back to the idea that the punishment figure has to be proportionate to different people. I can’t ask you to punish Mr. Gonzales $4 million. That wouldn’t be fair to him. The average person has a net worth of $35,000 the professor [ie., plaintiffs economics expert] says. I would submit to you—and, Amelia [Flores], please forgive me—that Mr. Gonzales’s punishment should be $3,500 and I am going to tell you why.
Some of you may say ... that’s not really appropriate for what he did and I agree. It is not appropriate. But I want to be consistent in my—in my recommendation to you that the punishment should be the same for him as it should be for the company. Mr. Gonzales is a little different than the corporation. Mr. Gonzales will pay in other ways. I believe us to be compassionate people. Because of your verdict, whenever Mr. Gonzales goes out to look for a job, his employer is going to be on notice because of your decision. They are going to be more careful and they are going to watch him a little more closely. So, he will suffer in a sense beyond the monetary damages that you will award against him. [Emphasis added.]
The jury determined punitive damages of $3,500 against Gonzales and $2,225,000 against Borg-Warner.
The trial court also awarded Flores attorney’s fees in the amount of $339,509.86, as well as contingent fees for the successful representation of Flores at appellate tribunals. The court’s trial fee award represents a fifty percent enhancement of the hourly fees proved up by plaintiffs counsel.
On appeal, Borg-Warner asserts ten points of error, summarized thus:
• Flores was not constructively discharged (legal & factual sufficiency);
• Flores is not entitled to the award of back pay (legal & factual sufficiency);
• Flores is not entitled to the award of front pay (legal & factual sufficiency);
• Pre-judgement interest should not have been awarded on actual damages;
• Texas Labor Code, Chapter 21, precludes Flores’s recovery for intentional torts;
• Flores’s counsel made an incurable ethnic plea when he stated, “I believe us to be compassionate people”;
• Punitive damages were rendered in an unconstitutional amount; and
• Attorneys’ fees were (a) enhanced, (b) determined by the trial judge, and (c) also awarded as a contingent fee for the successful representation of Flores at appellate tribunals.
Standard of review
When considering the legal sufficiency of the evidence, we consider only the evidence and inferences that tend to support the jury’s finding, and disregard all evidence and inferences to the contrary. See Weirich v. Weirich, 833 S.W.2d 942, 945 (Tex.1992). If [866]*866there exists any evidence to support the finding, the point will be overruled and the finding upheld. See Southern States Transp., Inc. v. State, 774 S.W.2d 639, 640 (Tex.1989). In reviewing a factual sufficiency point, we must weigh all of the evidence in the record. Ortiz v. Jones, 917 S.W.2d 770, 772 (Tex.1996). Findings may be overturned only if they are so against the great weight and preponderance of the evidence as to be clearly wrong and unjust. Id.
Discussion
7
Constructive discharge
A constructive discharge occurs when an employer makes conditions so intolerable that an employee reasonably feels compelled to resign. Shawgo v. Spradlin, 701 F.2d 470, 481 (5th Cir.1983), cert. denied sub nom., Whisenhunt v. Spradlin, 464 U.S. 965, 104 S.Ct. 404, 78 L.Ed.2d 345 (1983); Benton v. Kroger Co., 640 F.Supp. 1317, 1322 (S.D.Tex.1986). To find a constructive discharge, the trier must determine whether or not a reasonable person in the employee’s position would have felt compelled to resign. Pittman v. Hattiesburg Municipal Separate Sch. Dist., 644 F.2d 1071, 1077 (5th Cir.1981). It is necessary to examine the conditions imposed, not the employer’s state of mind. Bourque v. Powell Elec. Mfg. Co., 617 F.2d 61, 65 (5th Cir.1980). Therefore, an employee does not need to prove that an employer subjectively intended to force the employee to resign. Hammond v. Katy Indep. Sch. Dist., 821 S.W.2d 174, 177 (Tex.App.—Houston [14th Dist.] 1991, no writ).
We also note that, under common-law agency principles, an employer is liable for an employee’s wrongful acts, even if those acts are not committed within the actual scope of his employment, if the employee uses his apparent authority to accomplish the wrongful acts and so is acting within the “apparent scope” of his employment. Martin v. Cavalier Hotel Corp., 48 F.3d 1343, 1352 (4th Cir.1995) (analyzing agency principles in Title VII case based on rape of hotel employee by her supervisor). The tort of an employee is within the course of his employment where the employee is endeavoring to promote his employer’s business within the actual or apparent authority conferred upon the employee for that purpose. See id. The tortious act may be within the scope of the tortfeasing employee’s apparent authority, and yet not be in the interest of the employer’s business. See id.
The agency theory of employer liability rests on a logical foundation which has been simplified and set forth by Judge Posner as follows:
Since the acts of a corporation are acts of human beings, to say that the “corporation” has committed some wrong (rather than just that it is liable under the doctrine of respondeat superior for an employee’s wrong) simply means that someone at the decision-making level in the corporate hierarchy has committed the wrong; the deliberate act of such a person is the corporation’s deliberate act. Whether his supervisors knew or should have known is irrelevant; it becomes relevant only where the wrong is committed by someone below the managerial level. [Emphasis in original.]
Martin, 48 F.3d at 1353 (quoting Hunter v. Allis-Chalmers Corp., 797 F.2d 1417, 1422 (7th Cir.1986) (Posner, J.)).
Flores was raped by her immediate supervisor, Gonzales, in the course of an ostensible business outing; this fact is not disputed by Borg-Warner. Gonzales’s tortious conduct regarding this incident is clearly attributable to Borg-Warner. Following the rape, Flores was informed by Gonzales that the corporate authority to whom the rape should have been reported was himself. Flores recognized the futility of reporting the rape to her attacker; [867]*867nevertheless she sought—unsuccessfully—to reach other Borg-Warner management personnel in the McAllen office in the days following the rape. Having been frustrated in her attempts to bypass her attacker in reporting the rape, she finally divulged the details of the attack on September 7, 1993.
We believe the mere fact that the rape occurred establishes the constructive discharge of Flores.8 See, e.g., Martin, 48 F.3d at 1353 n. 5 (noting that a hotel manager, by virtue of his position alone, effectively put his employer on notice of his rape of a subordinate, so that hotel/employer was liable under Title VII for the constructive discharge of the victim); Al-Dabbagh v. Greenpeace, Inc., 873 F.Supp. 1105, 1110 (N.D.Ill.1994) (“[Plaintiff] claims that [the corporate defendant] violated her right under Title VII (specifically 42 U.S.C. § 2000e-2) not to be discriminated against on the basis of her sex by (1) failing to remedy a work environment that it knew was hostile toward women and then (2) constructively discharging her for no other reason than that she had been raped. That is more than sufficient to state a claim under Title VII [.]” [Emphasis added.]). Assuming, arguendo, that the occurrence of the rape—standing alone—was not enough to establish the constructive discharge of Flores, the record reveals that Borg-Warner responded to the September 7, 1993, report by informing Flores that Gonzales had been placed on “administrative leave.” Borg-Warner’s response, couched in corporate personnel jargon, was certainly (and perhaps purposefully) ambiguous. We agree with appellee that a reasonable person in her position would have felt compelled to resign, which compels the finding of constructive discharge.
We hold that some evidence supports ap-pellee’s theory of liability premised on constructive discharge; in light of the entire record, the jury’s finding is not clearly wrong and unjust. The third point of error is overruled.
Back pay
Flores was, appropriately, awarded back pay, notwithstanding the fact that she had failed to obtain stable employment after the occurrences giving rise to this suit. See generally City of Austin v. Gifford, 824 S.W.2d 735, 741 (Tex.App.—Austin 1992, no writ). At the time of her constructive discharge, Flores was earning $4.30 per hour. The trial occurred approximately two years after her discharge. Simple arithmetic, therefore, supports the award of back pay. We hold that some evidence supports appel-lee’s theory of damages premised on back-pay; in light of the entire record, the jury’s finding is not clearly wrong and unjust. The first point of error is overruled.
Front pay
“Front pay” refers to future lost earnings. Hansard v. Pepsi-Cola Metro. Bottling Co., 865 F.2d 1461, 1469 (5th Cir.1989), cert. denied, 493 U.S. 842, 110 S.Ct. 129, 107 L.Ed.2d 89 (1989). Although Chapter 21 of the Texas Labor Code does not literally mention the term “front pay,” section 21.258(a)(2) does allow the court to order appropriate equitable relief. The question, then, is whether front pay is appropriate, and we have found no Texas cases that disposi-tively address this issue. However, federal eases do permit awards of front pay to claimants under Title VII of the Civil Rights Act of 1964, 42 U.S.C., section 2000e, et seq. (“Title VII”), even though Title VII itself makes no specific allowance for front pay. See, e.g., Carter v. Sedgwick County, Kan., 929 F.2d 1501, 1505 (10th Cir.1991); Johnson v. Chapel Hill Indep. Sch. Dist., 853 F.2d 375, 382 (5th Cir.1988).
Because one of the purposes behind Texas Labor Code, Chapter 21, is the correlation of state law to its federal counterpart, a trial court’s award of front pay constitutes a legitimate exercise of its equity powers. See, e.g., City of Austin, 824 S.W.2d at 743-44. Flores testified that she would have worked as a guard until retirement. The jury was entitled to believe her. As with the award of back pay, simple arithmetic supports the award of front pay. We hold that some evidence supports appellee’s theory of dam[868]*868ages premised on front pay; in light of the entire record, the jury’s finding is not clearly wrong and unjust. The second point of error is overruled.
Prejudgment interest on future damages
We next consider whether Tex.Rev. Crv. Stat. Ann. article 5069-1.05, section 6(a), allows prejudgment interest on future damages. We must conclude that it does. C & H Nationwide, Inc. v. Thompson, 903 S.W.2d 315, 324 (Tex.1994). Appellant, in its brief, recognizes that “this Court is bound by [the] holding” of C & H Nationwide, Inc. Therefore, the tenth point of error is without merit and is overruled.
Preclusion of common law claims
Federal courts presented with the issue of Title VII preclusion of common law tort claims have determined that tort plaintiffs shall not be precluded from prosecuting their tort claims on account of their other Title VII claims. See, e.g., Ivanhoe v. Gaby, 616 F.Supp. 122, 122-23 (S.D.Tex.1985); Stewart v. Thomas, 538 F.Supp. 891, 894-97 (D.D.C.1982). Texas Labor Code, Chapter 21, exists, as does Title VII, to remedy important social ills, but we cannot interpret the statutes to preclude the very important function of common law remedies for intentional torts such as battery. The fourth and fifth points of error are overruled.
Ethnic plea
Appeals to racial prejudice are prohibited. Standard Fire Ins. Co. v. Reese, 584 S.W.2d 835, 840 (Tex.1979). Trial judges have an axiomatic responsibility to police closing arguments; however, they should not be required to retry a case if a subtle or ambiguous argument does not result in harmful error. Texas Employers’ Ins. Ass’n v. Guerrero, 800 S.W.2d 859, 869, (Tex.App.—San Antonio 1990, writ denied) (Biery, J., dissenting). The true test is the degree of prejudice flowing from the argument— whether the argument, considered in its proper setting, was reasonably calculated to cause such prejudice to the opposing litigant that a withdrawal by counsel or an instruction by the court, or both, could not eliminate the probability that it resulted in an improper verdict. Texas Employers’ Ins. Ass’n v. Haywood, 153 Tex. 242, 266 S.W.2d 856, 858 (1954).
In jury argument in the exemplary damages phase of the trial, counsel for Flores stated: “I believe us to be compassionate people.” Viewed in context, there is no indication that the foregoing was a plea for Hispanic unity in imposing significant exemplary damages, as appellant suggests. To the contrary, counsel argued that Gonzales, notwithstanding the egregious nature of the tortious conduct for which he had been found liable, should not be punished disproportionately vis-a-vis Borg Warner. Further, no contemporaneous objection was lodged. Counsel’s argument presents no error in accordance with the controlling standards, and the seventh point of error is overruled.
Punitive damages
Appellant contends that the award of punitive damages violates (1) the Due Process clauses of the United States and Texas Constitutions, (2) the Excessive Fines clauses of the United States and Texas Constitutions, and (3) the Commerce Clause of the United States Constitution.
Due process
The United States Supreme Court has granted certiorari on issues relating to punitive damages and the inherent due process concerns, but “it has given lower courts no bright-line guidance.” Transportation Ins. Co. v. Moriel, 879 S.W.2d 10, 12, n. 1 (Tex.1994). First, in Pacific Mut. Life Ins. Co. v. Haslip, 499 U.S. 1, 18, 111 S.Ct. 1032, 1043, 113 L.Ed.2d 1 (1991), the Court expressed concern about j pries that “run wild” in awarding punitive damages.
In Haslip, the United States Supreme Court held that punitive damage awards do not violate the due process provision of the Fourteenth Amendment when the award is based on objective criteria. Id. The Court conceded that unlimited jury or judicial discretion in the fixing of punitive damages may invite extreme results that are unacceptable under the due process clause. Id. Therefore, [869]*869the general concerns of reasonableness and adequate guidance from the court must be considered in determining whether punitive damages are unconstitutional. Id.
The controlling precedents also expressly reject the application of a ratio-based approach for determining the constitutionality of punitive damage awards. BMW of N.A. v. Gore, 517 U.S. 559,— - —, 116 S.Ct. 1589, 1601-03, 134 L.Ed.2d 809 (1996) (“[W]e have consistently rejected the notion that the constitutional line is marked by a simple mathematical formula....”); TXO Prod. Corp. v. Alliance Resources Corp.,509 U.S. 443, 459-64, 113 S.Ct. 2711, 2721-23, 125 L.Ed.2d 366 (1993) (“[W]e do not consider the dramatic disparity between the actual damages and the punitive award controlling in a case of this character.”). We therefore reject appellant’s ratio-based constitutionality argument.
In the instant case, the court’s charge on punitive damages stated:
“Exemplary damages” means an amount that you may in your discretion award as an example to others and as a penalty or by way of punishment, in addition to any amount that you may have found as actual damages.
In determining whether an award of exemplary damages is reasonable, the jury is instructed to consider the following factors:
1) the nature of the wrong;
2) the frequency of the wrongs committed;
3) the character of the conduct involved;
4) the degree of culpability of the wrongdoer;
5) the situation and sensibilities of the parties concerned;
6) the extent to which such conduct offends a public sense of justice and propriety[;] and
7) the size of the award needed to deter similar wrongs in the future.
The trial court’s instruction placed reasonable constraints on the exercise of the jury’s discretion. We therefore conclude that the punitive damage award was based on objective criteria, and thus due process was not violated.
Excessive fine
The United States Supreme Court held in Browning-Ferris Indus. v. Kelco Disposal, Inc., 492 U.S. 257, 109 S.Ct. 2909, 106 L.Ed.2d 219 (1989), that the excessive fines clause of the Eighth Amendment does not apply to awards of punitive damages in civil cases between private parties. The Texas Supreme Court has held that a civil penalty is excessive, and thus unconstitutional, when it becomes so manifestly violative of the constitutional prohibition against excessive fines as to shock the sense of mankind. Pennington v. Singleton, 606 S.W.2d 682, 690 (Tex.1980).
In the Pennington case, the Texas Supreme Court considered whether punitive damages violated Article 1, section 13 (excessive fines) of the Texas Constitution and the Fourteenth Amendment (due process) of the United States Constitution. The court held that whether such damages are excessive is determined by whether it was fixed with reference to the object it is to accomplish according to the seriousness of the wrong and the defendant’s culpability. Id.
Flores sought to punish Borg-Warner and Gonzales for the latter’s commission of a highly reprehensible pattern of conduct. Ap-pellee’s counsel implored the jury to render an award large enough to deter such tortious conduct in the future. The jury responded. Based on the extreme facts of this case, we cannot hold that a punitive award of $2,225,-000, vis-a-vis a corporate giant such as Borg-Warner, is unconstitutionally excessive.
Commerce clause
Appellant contends that the punitive damages award violated the commerce clause of the United States Constitution, but failed to brief its argument. We therefore consider the argument unmeritorious. See Tex.R.App. P. 74(f).
The sixth point of error is overruled.
Attorney’s fees
Borg-Warner complains that attorney’s fees were (a) enhanced, (b) determined by [870]*870the trial judge, and (e) also awarded as a contingent fee for the successful representation of Flores at appellate tribunals.
Enhancement
In the instant case, the attorney’s fees were, essentially, determined according to a “lodestar” calculation. Under this method, the court must first determine the number of hours reasonably spent by counsel on the matter, then multiply those hours by an hourly rate the court deems reasonable for similarly complex, non-contingent work. City of Dallas v. Arnett, 762 S.W.2d 942, 956 (Tex.App.—Dallas 1988, writ denied). That lodestar figure may then be adjusted upward or downward for certain factors known as multipliers, such as the complexity of the case, skill of the attorney, and contingent nature of the fee. Crouch v. Tenneco, Inc., 853 S.W.2d 643, 649 (Tex.App.—Waco 1993, writ denied). In the instant case, a multiplier of 1.5 was used.
Flores was required to pierce numerous layers of corporate bureaucracy in order to bring her case to trial; further, the jury found in favor of Flores on all liability questions. Therefore, we see nothing infirm with this upward adjustment. Use of the lodestar approach to fee calculation was not erroneous.
Determination by trial judge
As under Title VII actions, attorney’s fees are awarded as part of “costs” in Texas Labor Code, Chapter 21, actions. See Hall v. Savings of America, 859 F.Supp. 1032, 1034 (S.D.Tex.1994). The general rule is that the right to costs is based entirely on statutes or procedural rules, and therefore the trial court is the proper authority to determine and award costs. American Commercial Colleges, Inc. v. Davis, 821 S.W.2d 450, 454 (Tex.App.—Eastland 1991, writ denied). Accordingly, Borg-Warner has no complaint in this regard.
Contingent award
The award of appellate attorney’s fees to the trial court winner is appropriate, provided they are conditioned on ultimate appellate success. Chilton Ins. Co. v. Pate & Pate Enterprises, Inc., 930 S.W.2d 877, 896 (Tex.App.—San Antonio 1996, n.w.h.); CPS Int’l, Inc. v. Harris & Westmoreland, 784 S.W.2d 538, 544 (Tex.App.—Texarkana 1990, no writ). We will not disturb the fee award on this ground, as the award is premised on the ultimate success of Flores.
The eighth and ninth points of error are overruled.
The judgment of the trial court is AFFIRMED.