OPINION
Opinion By
Aftеr a nonjury trial, the trial court found in favor of appellee Strategic Energy, L.L.C. on its breach-of-contract claim against appellant RM Crowe Property Services Company, L.P. and awarded Strategic actual damages, interest, and attorneys’ fees. On appeal Crowe challenges (1) the trial court’s adverse findings on Crowe’s affirmative defenses of novation, modification, and waiver, and (2) the award of attorneys’ fees. We rеsolve Crowe’s issues against it and affirm the trial court’s modified final judgment.
BACKGROUND
The material underlying facts of this case are largely undisputed. Strategic supplies electricity to commercial properties and Crowe manages commercial properties. In 2005 Strategic and Crowe entered into a Power Supply Coordination Service Agreement (the Agreement), in which Crowe is identified as the “Buyer.” Under the terms of the Agreement, Strategic agrеed to provide electricity and related services to certain commercial properties listed in the Agreement “for which Buyer has the authority to purchase Electricity,” and Crowe agreed to receive and pay for the electricity and related services. The Agreement also contains an integration clause stating that it “contains the entire understanding of the parties,” and that it “may only be amended by a written instrument executed by both parties.”
Rainier Metroplex Partners, L.P. owned five of the properties listed in the Agreement, and from the outset of the Agreement, Strategic received payments primarily from Rainier. After certain invoices became past due, Rainier asked Strategic if Rainier could set up a payment plan to pay off the outstanding balances. As a result, Rainier and Strategic entered into five separate payment plаns to address the outstanding balances owed for each of the five properties (the Payment Plans). Crowe was not a party to the Payment Plans. The Payment Plans require Rainier to make certain payments to pay off the past-due invoices for each property. The Payment Plans also state that they do not amend the Agreement: “Nothing contained in the Payment Plan is intended or shall be construed to change or limit Strategic Energy’s rights оr Buyer’s obligations under the Agreement.”
After Rainier stopped making payments under the Payment Plans, Strategic terminated the Agreement and sued Crowe and Rainier asserting claims for breach of contract, unjust enrichment, and attorneys’ fees. In response, Rainier and Crowe filed general denials and pleaded multiple affirmative defenses. After a nonjury trial at which Rainier did not appear, the trial court rendered judgment in favor of Strategic. After the parties submitted post-trial briefing and Strategic submitted affidavits in support of its claim for attorneys’ fees, the trial court signed a modified final judgment against Crowe and Rainier, jointly and severally, for (1) $986,455.26 in actual damages, (2) $130,701.32 in attorneys’ fees through trial, (3) $363 in expenses, (4) $45,000 in conditional appellate attorneys’ fees, (5) $187,666.75 in prejudgment interest, and (6) postjudgment interest at the rate of five percent. In response to Crowe’s timely request, the trial *448 court also issuеd detailed findings of fact and conclusions of law.
Crowe’s Affirmative Defenses
In its first three issues Crowe essentially argues that it conclusively proved its affirmative defenses of novation, modification, and waiver. 1 As a result, we construe Crowe’s first three issues as challenges to the legal sufficiency of the evidence to support the trial court’s adverse findings on those affirmative defenses.
“A party challenging the legal sufficiency of an adverse finding on an issue on which that party had the burden of proof at trial must demonstrate on appeal that the evidence conclusively established, as a matter of law, all vital facts in support of the issue.”
Dallas Cnty. Constable Precinct No. 5 v. Garden City Boxing Club, Inc.,
Novation
In its first issue on appeal, Crowe argues that the Payment Plans constituted a novation because they “extinguished preexisting claims” and “operated tо discharge the Agreement.” We do not agree.
“Novation is the creation of a new obligation in the place of an old one, by which the parties agree that a new obligor will be substituted to perform the duties agreed upon by the old contract, while the original obligor is released from performing those duties.”
Vandeventer v. All Am. Life & Cas. Co.,
In this case, it is undisputed that Crowe was not a party to the Payment Plans. This undisputed fact negates the second element required for novation and supports the trial court’s adverse finding on that affirmative defense. Moreover, the express terms of the Payment Plans themselves demonstrate that they were not agreements among Strategic, Rainier, and Crowe to extinguish Crowe’s previous obligations under the Agreement — which negates the third required element.
See generally Russell v. Ne. Bank,
Modification
In its second issue, Crowe contends that it proved the affirmative defense of modification. More specifically, Crowe argues that the “evidence at trial is clear” that the Agreement was modified by the parties’ prior course of dealing and course of performance, and as a result of that modification, Strategic was required to look “only to the buildings for payment.”
A party asserting an affirmative defense in a trial before the court must request findings in support of the defense to avoid waiver of its affirmative defense.
See Cooper v. Cochran,
In this case, and unlike Crowe’s other аffirmative defenses at issue in this appeal, the trial court’s findings of fact and conclusions of law do not address the elements of the affirmative defense of modification, and the record does not demonstrate that Crowe specifically requested additional findings of fact relevant to that defense after the trial court issued its findings of fact and conclusions of law. As a result, we conclude that Crowe has waived any error with respeсt to the affirmative defense of modification.
See Intec Sys., Inc. v. Lowrey,
Waiver
In its third issue on appeal, Crowe argues that it proved its affirmative defense of waiver. More specifically, Crowe argues that Strategic waived its right to “pursue collection directly from [Crowe]” because Strategic sent invoices directly to the properties, accepted payments from Rainier, and “never objected] to that scheme of invoicing and payment.” We do not agree.
“Waiver is the intentional relinquishment of a right actually known, or intentional conduct inconsistent with claiming that right.”
Ulico Cas. Co. v. Allied Pilots Ass’n,
Intent is the key element in establishing waiver. The law on waiver distinguishes betwеen a showing of intent by actual renunciation and a showing of intent based on inference. In the latter situation, it is the burden of the party who is to benefit by a showing of waiver to produce conclusive evidence that the opposite party [unequivocally] manifested its intent to no longer assert its claim. This is a particularly onerous burden.
G.H. Bass & Co. v. Dalsan Properties-Abilene,
In this case, although Strategic accepted pаyment from Rainier, there is no conclusive evidence that Strategic unequivocally manifested its intent to relinquish its rights against Crowe. And the fact that Strategic agreed to send invoices directly to the properties and accepted payment from Rainier does not demonstrate that Strategic waived rights under the Agreement as a matter of law. See, e.g., id. at 577-78 (defendant’s waiver defense was not established as a matter of law because evidenсe that landlord accepted lower payments was not conclusive evidence that landlord waived its right to collect past-due payments). Applying the appropriate standard of review, we conclude that the evidence supports the trial court’s adverse finding on Crowe’s affirmative defense of waiver. 3 We resolve Crowe’s third issue against it. 4
The Award of Attorneys’ Fees
In its fourth issue Crowe challenges the award of attorneys’ fees. More specifically, Crowe argues that Strategiс’s evidence in support of its fee request was insufficient and that the fees awarded are excessive.
Relevant Facts
As evidence in support of its request for attorneys’ fees, Strategic filed two affidavits — an original affidavit and an amended affidavit — from its counsel, Matt Sjoberg. In his amended affidavit, Sjoberg stated, in part, as follows:
• he is lead counsel for Strategic;
• he has been licensed to practice law in Texas since 1990;
• he has substantial trial and appellate experience in energy-related civil litigation matters and is familiar with usual and customary charges and services for breach-of-contract cases in Texas;
• his firm took the case over from another firm, Brown McCarroll, L.L.P., in late 2007, and he has reviewed Brown McCarroll’s files and invoices;
• Strategic agreed to pay the lawyer at Brown McCarroll $200 per hour and agreed to pay Sjoberg $875 per hour;
• the novelty and difficulty of the case required Sjoberg and his predecessor at Brown, McCarroll to spend approximately 365 hours “investigating claims, drafting pleadings, discovery requests, and responses to discovery requests, taking depositions and taking other necessary actions to perform our legal services properly”;
• Strategic incurred $130,701.82 in attorneys’ fees and $4,776.21 in costs with Sjoberg’s firm and $5,915 in attorneys’ fee and $1,767.97 in expenses with Brown, McCarroll, for a total of $143,163 in attorneys’ fees and costs;
• Strategic’s reasonable and necessary attorneys’ fees and costs are (a) $143,163 through entry of the judg *451 ment, (b) $30,000 for an appeal to this Court, and (c) $40,000 for an appeal to the Texas Supreme Court;
• the attorneys’ fees charged in this case “are customarily charged in this area for the same or similar services for an attorney with my experience, reputation, and ability, considering the amount and type of controversy, and the results obtained in securing a judgment in the amount of $986,292.28, jointly and severally, against [Crowe and Rainiеr]”;
• he excluded from this total the $700 in attorneys’ fees for 3.5 hours of work done by the attorney at Brown McCar-roll for Strategic’s claim against another defendant that was dismissed before trial — which involved the same transaction and operative facts and only required preparing a demand letter and serving discovery requests that were “virtually identical” to the discovery served on Crowe the same day;
• with respect to Strategic’s alternative claim for unjust enrichment, (1) it consists of three short paragraphs in Strategic’s Original Petition and expressly incorporates the factual allegations made in support of its breach of contract claim,” (2) other than drafting those paragraphs, it required no distinct research or other drafting, (3) “[i]t is difficult if not impossible to segregate attorneys’ fees associated with this unjust enrichment claim from those associated with Strategic’s breach of cоntract claim owing to the fact that both claims arise out of the same set of facts,” and (4) “[o]ut of an abundance of caution, it is my opinion that the time spent on this claim would have been far less than half of one percent of the total time spent in attorneys’ fees incurred by Strategic in this lawsuit.”
Crowe did not submit any controverting evidence. Instead, Crowe submitted a brief in opposition to Strategic’s request, in which it referred to (but did not attach) various invoices. In its brief, Crowe argued that Strategic’s requested costs should be reduced from $6,444.18 to $363. Crowe also argued that Strategic’s attorneys’ fees “should be substantially reduced from the amount requested” because the fees are not reasonable and because Sjo-berg’s affidavit (1) “does not attach the fee statements upon which it relies,” (2) is conclusory, (3) lacks foundation, and (4) does not adequately segregate fees attributablе to Strategic’s contract claim. With respect to the reasonableness of the fees, Crowe argued, for example, that 44.50 hours reflected on certain invoices for “trial preparation” was excessive because the trial lasted approximately two hours. Crowe also argued that the requested conditional appellate fees were “excessive for a case with two witnesses, fewer than a [sic] fifteen total exhibits, and approximately 2 hours of testimony and argument.” In its conclusion and prayer for relief, Crowe asked the trial court to disallow any fees based on Strategic’s failure to properly segregate its fees. Alternatively, and based on its critique of various invoices, Crowe argued that the attorneys’ fees incurred through trial should be reduced by $79,662.73 for a total award of $63,500.27. Crowe also argued that conditional appellate аttorneys’ fees should be reduced to $20,000 for an appeal to the court of appeals and $10,000 for an appeal to the Texas Supreme Court.
In its modified final judgment, the trial court stated that it considered the evidence and arguments of counsel and awarded Strategic (1) $130,701.32 in attorneys’ fees and $363 in expenses through trial, (2) $30,000 in conditional appellate *452 attorneys’ fees in the event of an unsuccessful appeal by Crowe or Rаinier to the court of appeals, and (3) $15,000 in conditional appellate attorneys’ fees in the event of an unsuccessful appeal by Crowe or Rainier to the Texas Supreme Court.
Applicable Law and Standard of Review
“A person may recover reasonable attorney’s fees from an individual or corporation, in addition to the amount of a valid claim and costs, if the claim is for [] an oral or written contract.” Tex. Civ. Prac. & Rem.Code Ann. § 38.001(8) (West 2008). “If attorney’s fees аre proper under section 38.001(8), the trial court has no discretion to deny them.”
Smith v. Patrick W.Y. Tam Trust,
Factors to guide a trial court in determining whether the fees are reasonable and necessary include: (1) the time and labor required, the novelty and difficulty of the questions involved, and the skill required to perform the legal services properly; (2) the likelihood the acceptance of the particular employment will preclude other employment; (3) the customary fees charged in the locality for similar legal services; (4) the amount involved and the results obtained; (5) the time limitations imposed by the client or the circumstances; (6) the nature and length of the professional relationship; (7) the experience, reputation, and ability of the lawyer performing the services; and (8) whether the fee is fixed or contingent on results obtained or uncertainty of collection before the legal serviсes have been rendered.
Arthur Andersen & Co. v. Perry Equip. Corp.,
When a trial court sits as the trier of fact, the amount of a fee award generally rests in the sound discretion of the trial court, and its judgment will not be reversed on appeal absent a clear abuse of discretion. Id.
Analysis
In its fourth issue Crowe makes three main arguments to support its contention that the award of attorneys’ fees is improper. First Crowe argues that a party requesting attorneys’ fees must provide the trial court with time records. To support this argument Crowe relies solely on the Supreme Court’s statement in
Hensley v. Eckerhart,
Next Crowe argues that Strategic’s fees were not adequately segregated. We disagree. The Texas Supreme Court has explained that to meet a party’s burden to segregate its attorneys’ fees, it is sufficient to submit to the fact-finder testimony from a party’s attorney concerning the percentage of hours that related solely to a claim for which fees are not recoverable.
Tony Gullo Motors I, L.P. v. Chapa,
Finally, Crowe argues that “application of the 1.04(b) factors invites significant reductions in the request for fees.” We disagree. The record demonstrates that the trial court made certain reductions to the attorneys’ fees and costs requested by Strategic in light of the evidence and arguments presented. We conclude that the evidence presented in this case supports the award of attorneys’ fees and costs to Strategic.
See generally Flatrolled Steel, Inc. v. Jones,
No. 05-04-01175-CV,
We resolve Crowe’s fourth issue against it. 5
Conclusion
We resolve Crowe’s issues against it and affirm the trial court’s modified final judgment.
Notes
. Because Crowe does not challenge the trial court’s finding of fact no. 8 ("Crowe failed to make all of the payments to Strategic required under the terms оf the [Agreement]."), and instead argues that its breach of the Agreement was excused, we do not address Crowe's general challenge to the trial court's conclusion of law no. 12 ("Crowe breached the terms of the [Agreement] by failing to make the payments to Strategic required therein.”).
. Our resolution of Crowe's first issue also resolves Crowe’s general challenge to the trial court’s findings of fact nos. 36 ("Strategic did not enter into a new agreement with Rainier to take the place of the [Agreement].”) and 39 ("Strategic did not enter into any agreement with Rainier for the extinguishment of the [Agreement].”), and the trial court’s conclusion of law no. 4 ("Strategic’s right to collection of such indebtedness is not barred by novation.”).
. Our resolution of Crowe's third issue also resolves Crowe’s general challenge to the trial court's findings of fact nos. 20 ("Strategic did not expressly or impliedly release Crowe from its obligations undеr the terms of the [Agreement].”) and 30 ("Strategic did not intentionally relinquish any right it has to collect the amounts due under the terms of the [Agreement] from Crowe.”), and the trial court's conclusion of law no. 6 ("Strategic’s right to collection of such indebtedness is not barred by waiver.”).
. Our resolution of Crowe’s first three issues also resolves Crowe’s general challenge to the trial court's findings of fact nos. 13 ("Strategic is owed the sum of $986,455.26 for electricity it supplied to the proрerties listed on Exhibit B to the [Agreement].”) and 41 ("Strategic is entitled to $187,665.75 in prejudgment interest.”).
. Our resolution of Crowe’s fourth issue also resolves Crowe's general challenge to the trial court’s findings of fact no. 17 ("Strategic incurred the sum of $131,064.82 in attorneys’ fees and costs with the firms of Jackson, Sjoberg, McCarthy & Wilson, L.L.P. and Brown McCarroll, L.L.P. to handle the above-styled and number lawsuit.”), and the trial court's conclusion of law no. 15 ("Strategic is entitled to an award of its reasonable and necessary attorneys' fees for the trial and any appeal of this breach of contract action pursuant to Section 38.001(8) of the Texas Civil Practice & Remedies Code.”).