Gus H. Comiskey, III A/K/A Trey Comiskey and TC3, Inc. v. FH Partners, LLC

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).