Affirmed in Part and Reversed and Remanded in Part and Majority and
Concurring and Dissenting Opinions filed April 12, 2012.




                                           In The

                       Fourteenth Court of Appeals

                                   NO. 14-10-01001-CV

 GUS H. COMISKEY, III A/K/A TREY COMISKEY AND TC3, INC., Appellants

                                             V.

                             FH PARTNERS, LLC, Appellee

                        On Appeal from the 113th District Court
                                    Harris County
                          Trial Court Cause No. 2008-60397


           CONCURRING AND DISSENTING OPINION

       I concur in the majority’s analysis with respect to all but one issue. Because I
believe the trial court properly directed a verdict in FH Partners’ favor on the waiver
issue, I respectfully dissent from that portion of the opinion. The majority aptly describes
the appellants’ case for waiver; I just do not agree that it amounts to more than a scintilla.
But I would not affirm the judgment entirely. Had this panel affirmed on waiver, it
would then reach the segregation-of-attorney’s-fees issue. Because I believe FH Partners
did not meet its burden to segregate recoverable fees from unrecoverable fees, I would
remand this cause for a redetermination of properly recoverable fees. See Ruiz v. Stewart
Mineral Corp., 202 S.W.3d 242, 249 (Tex. App.―Tyler 2006, pet. denied).




                                         /s/       Jeffrey V. Brown
                                                   Justice




Panel consists of Justices Seymore, Brown, and Jamison. (Jamison, J., Majority).




                                               2
