handling, this issue is a matter of first impression for both the Texas Supreme Court and this court. Resolution of this issue, howev resolve all of the issues in an appeal based on briefing waiver. See TEX. R. APP. P. 44.3 ("A court of appeals must not affirm or reverse a judgment or dismiss an appeal for formal defects or irregularities in appellate procedure without allowing a reasonable time to correct or amend the defects or irregularities.”); Inpetco, Inc. v. Texas American Bank/Houston, N.A., 729 S.W.2d 300, 300 (Tex.1987) (per curiam) (stating that, under predecessor to Rule 44.3, a court of appeals cannot overrule all issues and affirm trial court’s judgment based only on briefing waiver); Elder v. Bro, 809 S.W.2d 799, 802 (Tex.App.-Houston [14th Dist.] 1991, writ denied) (<HOLDING>). For this reason, it is appropriate to reach
holding that disputed issues of fact cannot be resolved based on affidavits and must be decided based on evidentiary hearings the only admissible procedure for resolving such issues recognizing that appellate court may reverse trial courts judgment when it is based on an erroneous conclusion of law holding that decision on waiver of affirmative defense normally is within district courts discretion holding that a notice of appeal based on a dissent in the appellate division preserves for review only those issues on which the dissent was filed and certification must be sought separately as to all other issues holding that appellate courts may overrule some of appellants issues based on briefing waiver but must not overrule all of them based on briefing waiver