Gus H. Comiskey, III A/K/A Trey Comiskey and TC3, Inc. v. FH Partners, LLC ( 2012 )

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