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).