LEE STEARMAN AND DAMON STEARMAN, Jointly and Severally and d/b/a THE FLOOR STORE & MORE, Appellants v. COBB CARPET SUPPLY, INC., Appellee

 
Affirmed and Opinion filed November 20, 1989
 
 
S
In The
Court of Appeals
Fifth District of Texas at Dallas
............................
No. 05-89-00403-CV
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LEE STEARMAN AND DAMON STEARMAN, Jointly and Severally and d/b/a
THE FLOOR STORE & MORE, Appellants
V.
COBB CARPET SUPPLY, INC., Appellee
 
.................................................................
On Appeal from the County Court at Law No. 4
Dallas County, Texas
Trial Court Cause No. CC-88-5799-d
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O P I N I O N
Before Justices Howell, Baker, and Whittington
Opinion By Justice Baker
        Lee Stearman appeals from the trial court's summary judgment in favor of Cobb Carpet Supply, Inc. He asserts five points of error contending that: (1) he was denied assistance of non-bar-licensed counsel; (2) the trial court failed to protect his rights because it refused to grant him a trial on the merits on controverted issues; (3) there was a genuine issue of fact as to whether he was liable in the capacity in which he was sued; (4) he was denied due process of law because although he demanded a jury trial and paid his jury fee, the trial court refused him a trial on the merits and granted summary judgment; and (5) counsel for Cobb engaged in misconduct in the course of the proceedings that requires admonishment under applicable disciplinary rules. We overrule these points and affirm the trial court's judgment.
        Cobb sued Lee Stearman and his brother Damon, individually and d/b/a the Floor Store and More, on a sworn account. Stearman answered with a general denial and a plea that he was not liable in the capacity in which he was sued. Stearman swore to this pleading. Subsequently, Cobb served Stearman with requests for admissions. Thereafter, Cobb filed its motion for summary judgment, alleging that it was based upon the pleadings, the affidavit of its vice president, and the deemed admissions. FN:1 Stearman responded to Cobb's motion alleging that he was not liable in the capacity sued because the Floor Store and More was a corporation. Stearman did not swear to this response, nor did he file any affidavits or other summary judgment evidence controverting Cobb's motion. The trial court granted an interlocutory summary judgment against Stearman, held a trial as to attorney's fees, and subsequently made that summary judgment final.
        We note that since Stearman has elected to represent himself in the trial court and before this court, he must still abide by the laws and rules of procedure governing the courts of this state. Stein v. Highland Park Ind. School Dist., 574 S.W.2d 807, 808 (Tex. Civ. App.--Texarkana 1978, writ dism'd). This court is bound to apply the law and rules of procedure without consideration of who the parties might be or how inadequate their representation, in complete equality of treatment under the law. We may not grant Stearman any special consideration because he is attempting to represent himself without the aid of an attorney. See Stein v. Lewisville Ind. School Dist., 481 S.W.2d 436, 439 (Tex. Civ. App.--Fort Worth 1972, writ ref'd n.r.e.), appeal dism'd, cert. denied, 414 U.S. 948 (1974).         In his first point of error, Stearman contends that the trial court erred by refusing to permit him the assistance of non-bar-licensed counsel. In civil cases, a litigant has the right to represent himself. See Ex parte Shaffer, 649 S.W.2d 300, 302 (Tex. 1983); Tex. R. Civ. P. 7. However, a litigant is not entitled to the assistance of one not admitted to practice law by the Texas Supreme Court. See Coyle v. State, 775 S.W.2d 843, 845-46 (Tex. App.--Dallas 1989, no pet.); Harkins v. Murphy & Bolanz, 51 Tex. Civ. App. 568, 112 S.W. 136, 138 (1908, writ dism'd, w.o.j.). We overrule Stearman's first point of error.
        In his second and third points of error, Stearman contends that the trial court erred by refusing to grant him a trial on the merits on controverted issues of fact. He claims there was a controverted issue as to his personal liability because appellee failed to prove that he conducted business under the name of the Floor Store and More and ordered the goods in question for which he was sued. Stearman claims that the Floor Store and More is a corporation and that entity is liable on the account. Although the burden was upon Cobb to prove its right to a summary judgment as a matter of law, it was Stearman's burden as the nonmovant on appeal to bring forward the record to prove error and that the error was harmful. Escontrias v. Apodaca, 629 S.W.2d 697, 699 (Tex. 1982). Cobb moved for summary judgment on its sworn account claim and offered as summary judgment evidence the pleadings, the affidavit of its vice president, together with the exhibits attached to that affidavit, and the requests for admissions. Cobb's motion alleged these requests were deemed admitted because Stearman failed to respond. Stearman argues that there was a controverted issue as to his individual liability which he raised in his unsworn and unsupported response to Cobb's motion. However, this record does not contain Cobb's requests for admissions. Consequently, when the summary judgment record is incomplete, we must assume the omitted documents support the correctness of the judgment. Chessher v. Southwestern Bell Telephone Co., 671 S.W.2d 901, 903 (Tex. App.--Houston [14th Dist.] 1983), reversed on other grounds, 658 S.W.2d 563 (1983); DeBell v. Texas General Realty, Inc., 609 S.W.2d 892, 893 (Tex. Civ. App.--Houston [14th Dist.] 1980, no writ). We overrule Stearman's second and third points of error.
        In his fourth point of error, Stearman contends that he was denied due process because he demanded a jury trial on the merits and paid his jury fee, but instead of a jury trial, his case was disposed of by summary judgment. First, we note that appellant has failed to support his argument with any authorities other than general reference to the Texas Constitution, the U. S. Constitution, and the Bill of Rights. In this respect, his brief fails to comply with the requirements of Texas Rule Appellate Procedure 74(f). Even so, his assertion of violation of due process is without merit. The summary judgment rule has been in effect for some period of time, and there are myriad cases upholding its validity. See, e.g., Gulbenkian v. Penn, 151 Tex. 412, 252 S.W.2d 929, 931 (1952). When properly applied, the rule does not deprive a party of his right to a trial by jury. The right to a trial by jury is not an absolute right in civil cases; it is subject to certain procedural rules. See Wooten v. Dallas Hunting & Fishing Club, Inc., 427 S.W.2d 344, 346 (Tex. Civ. App.--Dallas 1968, no writ). Rule 216 of the Texas Rules of Civil Procedure provides that no jury trial shall be had in any civil suit unless a written request for a jury trial is filed with the clerk of the court a reasonable time before the date set for trial but not less than thirty days in advance. Tex. R. Civ. P. 216(1). Rule 216 also provides that a jury fee must be paid within the time for making a written request for a jury trial. Tex. R. Civ. P. 216(2). The record reflects that appellant's written demand for jury was not filed until October 7, 1988, which was the date the motion for the summary judgment was heard. The record also reflects that his check for the jury fee was not tendered until October 17, 1988. Rule 216 is discretionary rather than mandatory, and when the rule has not been complied with, a trial court's decision to grant or deny a jury trial will not be reversed on appeal except on a showing of abuse of discretion. See Aronoff v. Texas Turnpike Authority, 299 S.W.2d 342, 344 (Tex. Civ. App.--Dallas 1957, no writ). We find no basis to hold the trial court abused its discretion. We overrule Stearman's fourth point of error.
        In his fifth point of error, Stearman contends that counsel for Cobb was guilty of misconduct during the course of the proceedings and that Cobb's counsel should be admonished under applicable disciplinary rules. We need not reach the issue of whether appellee's counsel violated the disciplinary rules. In order to warrant reversal on appeal, the complaining party must show that the violation caused a rendition of an improper judgment. Bullock v. Kehoe, 678 S.W.2d 558, 560 (Tex. App.--Houston [14th Dist.] 1984, writ ref'd n.r.e.). Stearman's argument does not indicate how he was harmed by the alleged misconduct, and the record contains no indication of harm. We overrule Stearman's fifth point of error.
        We affirm the trial court's judgment.
 
 
 
                                                          
                                                          JAMES A. BAKER
                                                          JUSTICE
Do Not Publish
Tex. R. App. P. 90
890403F.U05
 
FN:1 Stearman contends he answered Cobb's request for admissions. However, the record before us shows only that Cobb filed requests for admissions and does not reflect any answers having been filed by Stearman. The record before us does not contain the requests for admissions that Cobb filed.
File Date[11-20-89]
File Name[890403F]