Richard Alan Dunn v. City of Bellmead--Appeal from 19th District Court of McLennan County

IN THE

TENTH COURT OF APPEALS

No. 10-00-042-CV

RICHARD ALAN DUNN,

Appellant

v.

CITY OF BELLMEAD,

Appellee

From the 19th District Court

McLennan County, Texas

Trial Court # 99-1854-1

MEMORANDUM OPINION

The City of Bellmead (the City ) filed suit against Richard Alan Dunn ( Dunn ) to abate a nuisance on his property. Dunn appeals from a judgment favoring the City. Because his appeal does not challenge the merits of the trial court s judgment or present any preserved complaint which is subject to review, we affirm.

BACKGROUNDDunn owns property within the city limits of the City of Bellmead, Texas. On his property, Dunn had accumulated junk, junked vehicles, refrigerators, auto parts, lumber, and other miscellaneous materials. The City warned Dunn on multiple occasions that the presence of the junk, refuse, and other discarded materials created a nuisance condition under the City s ordinances. In spite of the warnings, Dunn failed to remove the materials from his property. The City municipal court fined Dunn and ordered him to abate the nuisance. However, Dunn continued to accumulate junked vehicles, junk, and other undesirable materials on his property.

Because of the continuing condition, the City filed suit against Dunn in district court alleging that his property constituted a common law nuisance, a nuisance per se, and was in violation of the City s ordinances. // The City sought and obtained declaratory and injunctive relief requiring Dunn to remove all accumulated junked vehicles, junk, rubbish, trash, and discarded material from his property. The judgment also authorized the City to abate the nuisance if Dunn failed to comply within thirty days. When Dunn failed to comply, the City abated the nuisance.

DISCUSSION

Dunn presents five points of error on appeal. He complains that: 1) he was entitled to a more definite statement of the City s pleadings, 2) the City was required to prove his corporate existence, 3) the trial court was required to take judicial notice of Rule 12(e) of the Federal Rules of Civil Procedure, 4) he was denied effective assistance of counsel of choice, and 5) the trial court failed to rule on various pre-trial motions.

Dunn s appeal, however, does not challenge the merits of the trial court s judgment requiring him to remove undesirable materials from his property and authorizing the City to abate the nuisance if he failed to comply. Instead, Dunn complains about various procedural aspects of the proceedings.

1. More definite statement of the City s pleadings

Dunn complains generally that he was entitled to a more definite statement of the City s pleadings. Every defect, omission, or fault in a pleading, either of form or of substance, which is not specifically pointed out by exception in writing and brought to the attention of the judge before the judgment in a non-jury case is signed, shall be deemed to have been waived. See Tex. R. Civ. P. 90. A special exception, governed by Rule 91, shall not only point out the particular pleading excepted to, but it shall also point out intelligibly and with particularity the defect, omission, obscurity, duplicity, generality, or other insufficiency in the allegations in the pleading excepted to. Tex. R. Civ. P. 91; Muecke v. Hallstead, 25 S.W.3d 221, 224 (Tex. App. San Antonio 2000, no pet.).

Dunn filed a pleading identified as a Demand for Bill of Particulars. To the extent this pleading may be taken as special exceptions, it does not point out intelligibly and with particularity the pleading excepted to. Also, the record does not reflect whether this demand was ever presented to the trial court, and no written order granting or denying the requested relief was obtained. We will not review an unpreserved complaint. Tex. R. App. P. 33.1. Dunn s first point of error is without merit and is overruled.

2. The City was required to prove Dunn s corporate existence

Dunn contends that the City was required to prove his corporate existence, citing to Rules 52 and 93 of the Rules of Civil Procedure. Because the City brought this action against Richard Alan Dunn, an individual, and did not name a corporation as a defendant, there is no requirement to allege that a corporation is incorporated, and any verified denial of such has no application to this case. Tex. R. Civ. P. 52, 93(6). Dunn s second point of error is without merit and is overruled.

3. The trial court was required to take judicial notice of Rule 12(e) of the Federal Rules of Civil Procedure

Dunn argues that the trial court was required to take judicial notice of Rule 12(e) of the Federal Rules of Civil Procedure. The Federal Rules of Civil Procedure explicitly govern the procedure in the United States district courts. See Fed. R. Civ. P. 1. They have no application to this action in state court. Dunn s third point of error is without merit and is overruled.

4. Dunn was denied effective assistance of counsel of choice

Dunn requested a non-licensed attorney to assist him and speak on his behalf during the proceedings. The City objected, and the trial court sustained the objection. Dunn complains this denied him effective assistance of counsel of choice. A person may not practice law in this state unless the person is a member of the state bar. See Tex. Gov t Code Ann. 81.102 (Vernon 1998). The practice of law includes the managing of an action or proceeding on behalf of a client before a judge in a court. See id. 81.101(a) (Vernon Supp. 2001). Only the Supreme Court may issue licenses to practice law in this state. See Tex. Gov t Code Ann. 82.021 (Vernon 1998). Furthermore, neither the Texas Constitution nor the United States Constitution guarantees a right to counsel in a civil suit, and therefore Dunn cannot make a claim for ineffective assistance. Stokes v. Puckett, 972 S.W.2d 921, 927 (Tex. App. Beaumont 1998, pet. denied); Tex. Const. art. I, 10; U.S. Const. amend. VI. Dunn s fourth point of error is without merit and is overruled.

5. The trial court failed to rule on various pre-trial motions

Finally, Dunn complains that the trial court failed to rule on certain pre-trial motions. As a prerequisite to presenting a complaint for appellate review, the record must show that the complaint was made to the trial court by a timely request, objection, or motion and that the trial court ruled on the request, objection, or motion, either expressly or implicitly, or refused to rule thereon. Tex. R. App. P. 33.1. Because the record does not reflect that the trial court either ruled or refused to rule on any of the various motions Dunn complains about, nothing is presented for review, and Dunn s final point of error is overruled.

CONCLUSION

Because Dunn has failed to show error, we affirm the trial court s judgment.

BILL VANCE

Justice

Before Chief Justice Davis,

Justice Vance, and

Justice Gray

Affirmed

Opinion delivered and filed April 4, 2001

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