STAN STANDRIDGE, d/b/aFROM A COUNTY COURT STAN'S SERVICE COMPANY, APPELLANT, v. CITIZEN'S NATIONAL ASSURANCE COMPANY, APPELLEE

COURT OF APPEALS
FIFTH DISTRICT OF TEXAS
AT DALLAS
 
NO. 05-88-00066-CV
 
STAN STANDRIDGE, d/b/aFROM A COUNTY COURT
STAN'S SERVICE COMPANY,
 
        APPELLANT,
 
v.
 
CITIZEN'S NATIONAL
ASSURANCE COMPANY,
 
        APPELLEE.OF DALLAS COUNTY, TEXAS
 
 
BEFORE JUSTICES HOWELL, LAGARDE AND WHITTINGTON
OPINION BY JUSTICE HOWELL
APRIL 18, 1989
 
        Appellant Stan Standridge d/b/a Stan's Service Company (Subcontractor) challenges the trial court's refusal to grant leave to file a trial amendment pursuant to Rule 66 of the Texas Rules of Civil Procedure, allowing him to assert the affirmative defense of waiver. Following this denial, the trial court rendered a take nothing judgment against Subcontractor. In two points of error, Subcontractor claims the trial court abused its discretion in refusing leave to amend. For the reasons recited below, we affirm the trial court's judgment.
        Subcontractor contracted with L.W.D. Construction and Benny Welch (collectively General Contractor) to perform work on a municipal improvement project in Irving, Texas. Subcontractor completed the labor and provided materials for the project, forwarding invoices to the General Contractor. The General Contractor subsequently filed for bankruptcy. Subcontractor claims he delivered demand letters to the City of Irving and to appellee Citizens' National Assurance Company, the surety for the project (Surety).
        Subcontractor filed suit in county court to recover payment for the Irving project. Surety's attorney filed an amended answer asserting, by way of affirmative defense, that Subcontractor had failed to perfect his claim in compliance with the notice provision of the McGregor Act, FN:1 which regulates governmental construction projects. Both parties filed motions for summary judgment; however, trial commenced without a hearing on either motion.
        At trial, Subcontractor sought leave of court to file a trial amendment, pursuant to Rule 66 of the Texas Rules of Civil Procedure, alleging that Surety had waived the notice requirements of the McGregor Act and was estopped from asserting them. At this time, Surety's counsel objected to the amendment claiming (1) that waiver and estoppel were pleas in avoidance required by Rule 94 FN:2 to be pleaded by Subcontractor but were not; (2) that the only evidence in the record regarding waiver was testimony by Subcontractor's attorney in a summary judgment affidavit; (3) that if Subcontractor's attorney were going to testify on substantive matters such as waiver and estoppel, she would have to disqualify herself to avoid violating the Disciplinary Rules; FN:3 and (4) because Subcontractor's attorney was present, Surety was led to believe the Subcontractor's attorney would not argue waiver and estoppel. Based on this objection, the trial court found that Surety was entitled to more notice of this defense than would be given by a trial amendment, and sustained Surety's objection.
        The rule governing trial amendments provides:
         If evidence is objected to at the trial on the ground that it is not within the issues made by the pleading, or if during the trial any defect, fault or omission in a pleading, either of form or substance, is called to the attention of the court, the court may allow the pleadings to be amended and shall do so freely when the presentation of the merits of the actions will be subserved thereby and the objecting party fails to satisfy the court that the allowance of such amendment would prejudice him in maintaining his action or defense upon the merits. The court may grant a postponement to enable the objecting party to meet such evidence.
TEX. R. CIV. P. 66. The permitting of trial amendments is within the sound discretion of the trial court and will not be disturbed absent abuse. Vermillion v. Haynes, 147 Tex. 359, 215 S.W.2d 605, 609 (1948); Cocke v. White, 697 S.W.2d 739, 742 (Tex. App.--Corpus Christi 1985, writ ref'd n.r.e.). The burden falls upon the objecting party to state the reasons why the trial amendment will prejudice or surprise him. Ortale v. City of Rowlett, 696 S.W.2d 640, 641 (Tex. App.--Dallas 1985, writ ref'd n.r.e.). Without a showing of prejudice or surprise, a trial court loses its discretion to grant leave to file a trial amendment. See Ortale, 696 S.W.2d at 641, citing Hardin v. Hardin, 547 S.W.2d 347, 350 (Tex. 1980) (Campbell, J., concurring). When one party shows that he will be surprised or prejudiced, however, the trial court does not err in denying leave. Rocha v. Ahmad, 676 S.W.2d 149, 154-55 (Tex. App.--San Antonio 1984, writ dism'd); see also Cocke, 697 S.W.2d at 742 (no error in denying leave when record shows lack of diligence).
        In this case, although the objection of Surety's counsel was not the most specific or artful claim of prejudice or surprise, we conclude that Surety made a sufficient showing. From Surety's objection, the trial court could have found that Surety was entitled to more notice than that given by a trial amendment. In essence, the trial court was stating that Surety was prejudiced and surprised by the lack of notice of Subcontractor's intent to proceed on the waiver and estoppel issues. The court noted that proper pleading of these two affirmative defenses would have provided Surety with the requisite notice, and thus Surety would not have been prejudiced or surprised. We find no abuse of discretion in the trial court's denial of leave to file the trial amendment, and we overrule the initial point of error.
        By point two Subcontractor complains that the trial court abused its discretion in overrruling Subcontractor's motion for new trial. The sole error charged in the motion was the court's refusal to grant Subcontractor leave to file the trial amendment. Subcontractor has failed to cite in his brief any authority to support this contention. We are not compelled to address points of error which cite no authority. Texaco v. Pennzoil, Inc., 729 S.W.2d 764, 810 (Tex. App.--Houston [1st Dist.] 1987, writ ref'd n.r.e.); O'Dowd v. Johnson, 666 S.W.2d 619, 620 (Tex. App.--Houston [1st Dist.] 1986, writ ref'd n.r.e.); TEX. R. APP. P. 74(f). However, inasmuch as we have concluded that the trial court did not abuse its discretion in refusing to grant leave, we hold the trial court did not err in overruling Subcontractor's motion for new trial asserting the same action as error. We overrule point two.
        We AFFIRM the trial court's judgment.
                                                  
                                                  CHARLES BEN HOWELL
                                                  JUSTICE
 
 
DO NOT PUBLISH
TEX. R. APP. P. 90
88-00066.F
 
FN:1 TEX. REV. CIV. STAT. ANN. art. 5160 (Vernon 1987). For the specific notice provisions, see art. 5160(B).
FN:2 Of the Texas Rules of Civil Procedure.
FN:3 See SUPREME COURT OF TEXAS, RULES GOVERNING THE STATE BAR OF TEXAS art. X, § 9 (Code of Professional Responsibility) DR 5-102 (West 1988).
File Date[01-02-89]
File Name[880066]