Leckey v. Warren

635 S.W.2d 752, 1982 Tex. App. LEXIS 4406

• Court: Court of Appeals of Texas
• Decided: April 22, 1982
• Docket: 1965
• Status: Published

Opinions

OPINION

BISSETT, Justice.

This is a Deceptive Trade Practices case. John S. Warren and Rebecca P. Warren [hereinafter “the appellees”] filed this suit against Keith Leckey, doing business as Keith’s House Painting Service [hereinafter “the appellant”] alleging numerous violations of the Deceptive Trade Practices-Consumer Protection Act, Tex.Bus. & Comm. Code Ann. §§ 17.41 et seq. (Vernon Supp. 1981). Following a jury trial, judgment was rendered against the appellant in accordance with the jury’s answers to the special issues submitted. The appellant raises ten points of error.

In his first six points of error, the appellant contends that there is no evidence to support the jury’s answers to special issues 1, 5, 6, 9, 10 and 13, and that said answers are against the great weight and preponderance of the evidence. We note that the appellant has failed to cite any authority in support of his first six points of error. Rule 418(e), T.R.C.P., provides that a brief shall contain “such discussion of the facts and the authorities relied upon as may be requisite to maintain the point at issue.” [emphasis added]. Points of error not supported by arguments and authorities are waived. Hatch v. Davis, 621 S.W.2d 443, 447 (Tex.Civ.App. — Corpus Christi 1981, writ ref’d n. r. e.); Schero v. Astra Bar, Inc., 596 S.W.2d 613, 614 (Tex.Civ.App.—Corpus Christi 1980, no writ); Crutcher-Rolfs-Cummings, Inc. v. Ballard, 540 S.W.2d 380, 389 (Tex.Civ.App.—Corpus Christi 1976), writ ref’d n. r. e., cert. denied, 433 U.S. 910, 97 S.Ct. 2978, 53 L.Ed.2d 1095 (1977); Inman v. Padrezas, 540 S.W.2d 789, 797 (Tex.Civ.App.—Corpus Christi 1976, no writ).

Even if the points had been properly briefed, they would be overruled. The testimony presented by the appellees constituted some evidence of probative value to support the jury’s answers to the special issues complained of, and the answers are not against the great weight and preponderance of the evidence. The first six points of error are overruled.

In his remaining points of error, the appellant challenges the constitutionality of Tex.Bus. & Comm.Code Ann. 17.50(b)(1) (Vernon Supp.1981). The appellant, however, failed to affirmatively plead unconstitutionality in the trial court. Unconstitutionality of a statute is an affirmative defense which must be pled. Hyder-Ingram Chevrolet, Inc. v. Kutach, 612 S.W.2d 687, 689 (Tex.Civ.App.— Houston [14th Dist.] 1981, no writ); Mobile America Sales Corp. v. Rivers, 556 S.W.2d 378, 382 (Tex.Civ.App.—San Antonio 1977, writ dism’d). Therefore, the appellant’s remaining points of error are overruled.

The judgment of the trial court is AFFIRMED.