THOMAS, Justice.
Appellees, David L. Ball, Michael Flores and David Stinson, former employees of appellant, Great North American Stationers, Inc., (GNAS)2 sued GNAS to recover benefits under the GNAS profit-sharing plan. The trial court rendered judgment in favor of the former employees. GNAS raises seven points of error, contending that the former employees’ state law causes of action were preempted by federal law and that the amount of attorneys’ fees awarded was excessive. We conclude that GNAS has waived its claims of federal preemption. Further, we hold that the attorneys’ fees award was proper. Accordingly, we affirm the judgment of the trial court.
In points of error one through six, GNAS contends that the former employees’ state law causes of action to recover pension benefits have been preempted by the passage of the federal Employee Retirement Income Security Act (ERISA). We note, however, that GNAS has raised this federal preemption argument for the first time on appeal. The employees argue that federal preemption has been waived. GNAS contends that a claim of federal preemption is a challenge to the court’s subject matter jurisdiction and cannot be waived.
In International Longshoremen’s Association v. Davis, 476 U.S. 380, 106 S.Ct. 1904, 90 L.Ed.2d 389 (1986), the Supreme Court considered whether a preemption argument based on the National Labor Relations Act “is in the nature of an affirmative defense that must be asserted in the trial court or be considered forever waived or whether it is in the nature of a challenge to a court’s power to adjudicate that may be raised at any time.” Davis, 476 U.S. at 381-82, 106 S.Ct. at 1907, 90 L.Ed.2d at 395. The Court concluded that when a state proceeding is claimed to be waived by the National Labor Relations Act, which give the National Labor Relations Board exclusive power to determine certain disputes, the issue is a non-waivable choice-of-forum, rather than a choice-of-law question. Davis, 476 U.S. at 391, 106 S.Ct. at 1912, 90 L.Ed.2d at 401. From the Court’s conclusion we identify the following rule: a preemption argument that affects the choice of forum rather than the choice of law is not waivable; conversely, a preemption claim that affects only the law to be applied and not the court which may hear the dispute is waivable. Dueringer v. General American Life Ins. Co., 842 F.2d 127, 130 (5th Cir.1988); Gilchrist v. Jim Slemons Imports, Inc., 803 F.2d 1488, 1497 (9th Cir.1986).
We conclude that GNAS’s ERISA preemption claim implicates only a choice of law question. Even if the preemption claim were valid, it would not force the former employees to bring their action in a [633]*633different forum. State courts of competent jurisdiction have jurisdiction of actions by a plan participant to recover benefits due to him under the terms of the plan, to enforce his rights under the plan, or to clarify his rights to future benefits. 29 U.S.C.A. § 1132(a)(1)(B) & (e) (West 1985); Ames v. Ames, 757 S.W.2d 468, 478 (Tex. App. — Beaumont 1988, writ granted). GNAS’s preemption argument thus affects only the choice of law and not the choice of forum. GNAS has neglected the preemption issue too long to raise the issue first on appeal.3 Points of error one through six are overruled.
In point of error seven, GNAS contends that the award of attorneys’ fees is excessive. The trial court awarded the three former employees a total of $225,008 as attorneys’ fees through trial, $110,750 in the event of appeal to the court of appeals, and $37,950 in the event of appeal to the Texas Supreme Court. GNAS bases its argument that these fees are excessive in part upon its contentions that the former employees were not entitled to recover because of the ERISA preemption. We deem this argument waived. Nevertheless, GNAS argues that the amount of attorneys’ fees is excessive even if the employees were entitled to the full amount of damages assessed at trial.
GNAS contends that the $225,008 in attorneys’ fees awarded at trial were excessive because they were not reasonably related to the $90,724.38 in damages. One of the factors in determining the reasonableness of attorneys’ fees is the amount of damages awarded. Wayland v. City of Arlington, 711 S.W.2d 232, 233 (Tex.1986). However, this is only one among many factors to consider. In fact, there are twelve factors that are ordinarily considered to ascertain reasonable attorneys’ fees: (1) the time and labor required; (2) the novelty and difficulty of the question; (3) the skill requisite to perform the legal service properly; (4) the preclusion of other employment by the attorney due to acceptance of the case; (5) the customary fee; (6) whether the fee is fixed or contingent; (7) time limitations imposed by the client in the circumstances; (8) the amount involved and the results obtained; (9) the experience, reputation and ability of the attorneys; (10) the “undesirability” of the case; (11) the nature and length of the professional relationship with the client; and (12) awards in similar cases. See Gill Savings Association v. International Supply Co., 759 S.W.2d 697, 703-04 (Tex.App.—Dallas 1988, writ denied). These factors are consistent with those set out in Disciplinary Rule 2-106(B) of the Texas Code of Professional Responsibility.
Dean Armstrong, an attorney for the former employees, testified that he had spent 712.7 hours on pretrial matters for his three clients and 492 hours at trial. He anticipated spending an additional forty hours on post-verdict matters. Armstrong testified that his hourly rate was $150.00. William Wright, another attorney for the former employees, testified that he spent forty hours on pretrial matters and 492 hours at trial. He anticipated spending an additional forty hours on post-verdict matters. Wright testified that his hourly rate was $250.00.
Both Armstrong and Wright testified that the issues involved in this lawsuit were novel and difficult, requiring many hours of research. They both testified that they considered the pre-trial matters and the seven-week trial inordinately intense and complex. Armstrong stated that much of his pretrial time was taken up with combatting “excessive and abusive” depositions. He stated further that he had anticipated that trial would take only two to three weeks, but that it was unnecessarily prolonged by the conduct of GNAS’s trial [634]*634counsel. Armstrong testified further that during the seven weeks of trial it was impossible to work on other matters for other clients.
Armstrong testified further that he had graduated cum laude from Notre Dame Law School and began working as a lawyer in Dallas in 1977. He testified concerning his awards, honors and publications. Wright also testified concerning his credentials. GNAS’s trial counsel stipulated “to Mr.
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THOMAS, Justice.
Appellees, David L. Ball, Michael Flores and David Stinson, former employees of appellant, Great North American Stationers, Inc., (GNAS)2 sued GNAS to recover benefits under the GNAS profit-sharing plan. The trial court rendered judgment in favor of the former employees. GNAS raises seven points of error, contending that the former employees’ state law causes of action were preempted by federal law and that the amount of attorneys’ fees awarded was excessive. We conclude that GNAS has waived its claims of federal preemption. Further, we hold that the attorneys’ fees award was proper. Accordingly, we affirm the judgment of the trial court.
In points of error one through six, GNAS contends that the former employees’ state law causes of action to recover pension benefits have been preempted by the passage of the federal Employee Retirement Income Security Act (ERISA). We note, however, that GNAS has raised this federal preemption argument for the first time on appeal. The employees argue that federal preemption has been waived. GNAS contends that a claim of federal preemption is a challenge to the court’s subject matter jurisdiction and cannot be waived.
In International Longshoremen’s Association v. Davis, 476 U.S. 380, 106 S.Ct. 1904, 90 L.Ed.2d 389 (1986), the Supreme Court considered whether a preemption argument based on the National Labor Relations Act “is in the nature of an affirmative defense that must be asserted in the trial court or be considered forever waived or whether it is in the nature of a challenge to a court’s power to adjudicate that may be raised at any time.” Davis, 476 U.S. at 381-82, 106 S.Ct. at 1907, 90 L.Ed.2d at 395. The Court concluded that when a state proceeding is claimed to be waived by the National Labor Relations Act, which give the National Labor Relations Board exclusive power to determine certain disputes, the issue is a non-waivable choice-of-forum, rather than a choice-of-law question. Davis, 476 U.S. at 391, 106 S.Ct. at 1912, 90 L.Ed.2d at 401. From the Court’s conclusion we identify the following rule: a preemption argument that affects the choice of forum rather than the choice of law is not waivable; conversely, a preemption claim that affects only the law to be applied and not the court which may hear the dispute is waivable. Dueringer v. General American Life Ins. Co., 842 F.2d 127, 130 (5th Cir.1988); Gilchrist v. Jim Slemons Imports, Inc., 803 F.2d 1488, 1497 (9th Cir.1986).
We conclude that GNAS’s ERISA preemption claim implicates only a choice of law question. Even if the preemption claim were valid, it would not force the former employees to bring their action in a [633]*633different forum. State courts of competent jurisdiction have jurisdiction of actions by a plan participant to recover benefits due to him under the terms of the plan, to enforce his rights under the plan, or to clarify his rights to future benefits. 29 U.S.C.A. § 1132(a)(1)(B) & (e) (West 1985); Ames v. Ames, 757 S.W.2d 468, 478 (Tex. App. — Beaumont 1988, writ granted). GNAS’s preemption argument thus affects only the choice of law and not the choice of forum. GNAS has neglected the preemption issue too long to raise the issue first on appeal.3 Points of error one through six are overruled.
In point of error seven, GNAS contends that the award of attorneys’ fees is excessive. The trial court awarded the three former employees a total of $225,008 as attorneys’ fees through trial, $110,750 in the event of appeal to the court of appeals, and $37,950 in the event of appeal to the Texas Supreme Court. GNAS bases its argument that these fees are excessive in part upon its contentions that the former employees were not entitled to recover because of the ERISA preemption. We deem this argument waived. Nevertheless, GNAS argues that the amount of attorneys’ fees is excessive even if the employees were entitled to the full amount of damages assessed at trial.
GNAS contends that the $225,008 in attorneys’ fees awarded at trial were excessive because they were not reasonably related to the $90,724.38 in damages. One of the factors in determining the reasonableness of attorneys’ fees is the amount of damages awarded. Wayland v. City of Arlington, 711 S.W.2d 232, 233 (Tex.1986). However, this is only one among many factors to consider. In fact, there are twelve factors that are ordinarily considered to ascertain reasonable attorneys’ fees: (1) the time and labor required; (2) the novelty and difficulty of the question; (3) the skill requisite to perform the legal service properly; (4) the preclusion of other employment by the attorney due to acceptance of the case; (5) the customary fee; (6) whether the fee is fixed or contingent; (7) time limitations imposed by the client in the circumstances; (8) the amount involved and the results obtained; (9) the experience, reputation and ability of the attorneys; (10) the “undesirability” of the case; (11) the nature and length of the professional relationship with the client; and (12) awards in similar cases. See Gill Savings Association v. International Supply Co., 759 S.W.2d 697, 703-04 (Tex.App.—Dallas 1988, writ denied). These factors are consistent with those set out in Disciplinary Rule 2-106(B) of the Texas Code of Professional Responsibility.
Dean Armstrong, an attorney for the former employees, testified that he had spent 712.7 hours on pretrial matters for his three clients and 492 hours at trial. He anticipated spending an additional forty hours on post-verdict matters. Armstrong testified that his hourly rate was $150.00. William Wright, another attorney for the former employees, testified that he spent forty hours on pretrial matters and 492 hours at trial. He anticipated spending an additional forty hours on post-verdict matters. Wright testified that his hourly rate was $250.00.
Both Armstrong and Wright testified that the issues involved in this lawsuit were novel and difficult, requiring many hours of research. They both testified that they considered the pre-trial matters and the seven-week trial inordinately intense and complex. Armstrong stated that much of his pretrial time was taken up with combatting “excessive and abusive” depositions. He stated further that he had anticipated that trial would take only two to three weeks, but that it was unnecessarily prolonged by the conduct of GNAS’s trial [634]*634counsel. Armstrong testified further that during the seven weeks of trial it was impossible to work on other matters for other clients.
Armstrong testified further that he had graduated cum laude from Notre Dame Law School and began working as a lawyer in Dallas in 1977. He testified concerning his awards, honors and publications. Wright also testified concerning his credentials. GNAS’s trial counsel stipulated “to Mr. Wright’s expertise and to his qualifications as an accomplished trial lawyer.” Both Wright and Armstrong testified that they were familiar with the fees charged in Dallas and that their fees were reasonable and necessary in this case.
We conclude that this evidence amply supports the attorneys’ fees award through trial. The fact that the fees awarded were almost three times the damages awarded does not render the attorneys’ fees excessive. This Court has upheld an award of attorneys’ fees that was nearly seven times the actual damages. See Flint & Associates v. Intercontinental Pipe & Steel, Inc., 739 S.W.2d 622, 626 (Tex.App.—Dallas 1987, writ denied).
GNAS also complains of the amount of the attorneys’ fees award for appeal. GNAS does not argue that the evidence offered at trial fails to support the amount of appellate attorneys’ fees. Rather, GNAS argues that the fees are excessive because GNAS chose to limit the appeal to the narrow issue of federal preemption. The role of this Court is to determine whether the trial court erred in rendering judgment based upon the record before it. See Gould v. City of El Paso, 440 S.W.2d 696, 699 (Tex.Civ.App. — El Paso 1969, ref’d n.r.e.); see also Thompson v. Haberman, 739 S.W.2d 71, 72 (Tex.App.—San Antonio 1987, orig. proceeding) (court of appeals must consider the record as it appeared before the trial court at the time of its ruling). Thus, we will not consider GNAS’s post-judgment decision to limit the appeal in determining whether the trial court, based on the record before it, erroneously awarded excessive appellate attorneys’ fees.
Armstrong testified that, based upon his past experience, he would estimate attorneys’ fees of $120,000 through appeal to the court of appeals. This estimate was based upon the complexities of the issues in the case, the potential scope of the record in a seven-week trial, and the number of objections made by GNAS to preserve error. Armstrong testified further that it was possible that GNAS would appeal only three or four issues; in that event, the appeal would only cost $50,000. Armstrong also estimated that appeal to the Texas Supreme Court would cost approximately $40,000. He testified that these fees were reasonable and necessary.
Wright testified that he had been involved in “an enormous amount” of appeals. He disagreed with Armstrong’s estimate that the appeal would cost $120,000 to the court of appeals. He considered $80,000 to be the reasonable and necessary fee for the appeal to the court of appeals and $25,000 to the supreme court.
We hold that the trial court’s award of attorneys’ fees of $110,000 to the court of appeals and $37,950 to the supreme court was not excessive in light of the evidence before the court. Point of error seven is overruled.
Having overruled GNAS’s seven points of error, we affirm the trial court’s judgment.
KINKEADE, J., concurs.