                        COURT OF APPEALS
                        SECOND DISTRICT OF TEXAS
                             FORT WORTH

                             NO. 02-12-00453-CV


TOM FRANKLIN                                                        APPELLANT

                                       V.

CITY OF FORT WORTH AND CITY                                         APPELLEES
OF FORT WORTH-CODE
ENFORCEMENT


                                    ----------

         FROM THE 17TH DISTRICT COURT OF TARRANT COUNTY
                   TRIAL COURT NO. 17-261505-12
                              ----------

                       MEMORANDUM OPINION1

                                    ----------

                                  Introduction

     In two issues, Appellant Tom Franklin, pro se, appeals from the trial court’s

order dismissing with prejudice his claims against Appellees the City of Fort

Worth and the City of Fort Worth-Code Enforcement (collectively, the City) for


     1
      See Tex. R. App. P. 47.4.
failure to comply with an earlier order sustaining the City’s special exceptions.

We affirm the order as modified.

                                       Background

      Franklin filed a lawsuit against the City entitled “Complaint Based on

Harassment and Discrimination,” seeking $10,000,000 in damages for mental

stress and physical pain and the issuance of a cease and desist order or an

injunction against the City. The suit appears to arise from a citation the City

issued to Franklin.

      The City filed a general denial and special exceptions, alleging:            (1)

Franklin’s complaint did not plead the discovery level for the case as required by

Texas Rule of Civil Procedure 190.1; (2) paragraphs six, seven, eight, nine, and

ten of Franklin’s pleading did not give fair notice of his claims under Texas Rules

of Civil Procedure 45(b) and 47(a); and (3) the City of Fort Worth-Code

Enforcement was not a proper party because the code enforcement department

is simply a department of the City of Fort Worth. See Tex. R. Civ. P. 45(b)

(stating that a pleading must state plaintiff’s cause of action in “plain and concise

language”), 47(a) (stating that a pleading must set forth a short statement of the

causes of action sufficient to give fair notice of the claim involved), 190.1 (stating

that a plaintiff must allege a discovery control plan in the first numbered

paragraph of the original petition).

      After a hearing, the trial court sustained the City’s special exceptions and

ordered Franklin to replead and cure the defects identified by the special

                                           2
exceptions by December 7, 2012. The order warned Franklin that failure to do so

would result in the trial court striking the defective paragraphs in Franklin’s

petition.

       Franklin failed to replead by the deadline, and the City filed a motion to

dismiss on December 11, 2012, asking the trial court to strike the defective

paragraphs identified by the City’s special exceptions. The trial court scheduled

a hearing on the motion to dismiss for January 4, 2013. Franklin was notified of

the hearing by certified mail, but he failed to appear. The trial court granted the

City’s motion, dismissing Franklin’s claims with prejudice.

                                     Discussion

I. Due Process and Dismissal of Franklin’s Claims

       As part of his first issue, Franklin asserts that the trial court denied him due

process of law by dismissing his claims without a hearing. But because Franklin

did not raise his due process complaint in the trial court, Franklin failed to

preserve this complaint for appellate review. See Tex. R. App. P. 33.1(a)(1)(A)

(stating that in order to preserve a complaint for appellate review, the record

must show that appellant made the complaint to the trial court and stated the

grounds for ruling with sufficient specificity that the trial court was made aware of

the complaint); see also Nivens v. City of League City, 245 S.W.3d 470, 475 n.6

(Tex. App.—Houston [1st Dist.] 2007, pet. denied) (finding that taxpayers failed

to preserve their argument that the trial court violated their due process rights by

granting the City’s plea to the jurisdiction when taxpayers did not raise the issue

                                           3
before the trial court); In re Baby Boy R., 191 S.W.3d 916, 921 (Tex. App.—

Dallas 2006, pet. denied) (stating that constitutional claims must be raised in the

trial court or they are not preserved for appellate review), cert. denied, 549 U.S.

1080 (2006).2

      Franklin also argues that the City refused to respond to his discovery

requests and that the trial court refused to compel the City to answer his

requests. But Franklin did not file a motion to compel. Because Franklin did not

file a motion to compel, he has waived his complaint regarding the trial court’s

failure to compel the City to respond to his discovery requests. See Tex. R. App.

P. 33.1(a)(1).

      Franklin also generally complains that the trial court erred by dismissing

his case. Generally, review of a trial court’s dismissal of a case based on the

grant of special exceptions requires examination of two distinct rulings: (1) the

decision to sustain the special exceptions and (2) the decision to dismiss the

cause of action. Mowbray v. Avery, 76 S.W.3d 663, 678 (Tex. App.—Corpus

Christi 2002, pet. denied). But because Franklin does not challenge the trial


      2
        We note that even if Franklin had preserved his due process complaint for
our review, Franklin was not denied a hearing at any stage of the proceedings in
the trial court. Franklin was afforded a hearing on the City’s special exceptions
and a hearing on the City’s motion to dismiss. Even though Franklin did not
appear at the hearing on the City’s motion to dismiss, Franklin does not complain
that he did not receive notice of the hearing. At the hearing, the trial judge asked
the City to provide evidence that Franklin had notice of the hearing. In response,
the City offered and the trial court admitted into evidence a copy of the letter the
City mailed to Franklin notifying him of the hearing and a copy of the certified
mail return receipt signed by him.
                                         4
court’s ruling on the City’s special exceptions, he has waived any complaint

regarding the sustaining of the special exceptions. See Cole v. Hall, 864 S.W.2d

563, 566 (Tex. App.—Dallas 1993, writ dism’d w.o.j.) (stating that if an appellant

does not challenge the trial court’s ruling sustaining special exceptions, “any

error in the sustaining of the special exceptions is waived”); see also Holt v.

Reprod. Servs., Inc., 946 S.W.2d 602, 604 (Tex. App.—Corpus Christi 1997, writ

denied) (“An appellant who complains of the dismissal of a cause of action

following the sustaining of special exceptions must first attack the trial court’s

decision to sustain the special exceptions and then attack the court’s decision to

dismiss the cause of action.”). Thus, we address only the trial court’s order

dismissing Franklin’s claims. See Cole, 864 S.W.2d at 566–67.

      A trial court may not dismiss a case after sustaining special exceptions

without first giving the nonexcepting party an opportunity to amend its pleadings.

Ford v. Performance Aircraft Servs., Inc., 178 S.W.3d 330, 336 (Tex. App.—Fort

Worth 2005, pet. denied) (citing Friesenhahn v. Ryan, 960 S.W.2d 656, 658 (Tex.

1998); Marts ex rel. Marts v. Transp. Ins. Co., 111 S.W.3d 699, 706 (Tex. App.—

Fort Worth 2003, pet. denied)). If a party refuses to amend, the trial court may

strike the objectionable pleadings and dismiss the suit if the remaining

allegations in the petition fail to state a cause of action. Cruz v. Morris, 877

S.W.2d 45, 47 (Tex. App.—Houston [14th Dist.] 1994, no writ) (noting general

rule that if a party refuses to amend, a court is within the bounds of its discretion

in striking the objectionable parts of the pleadings); D.A. Buckner Constr., Inc. v.

                                         5
Hobson, 793 S.W.2d 74, 75–76 (Tex. App.—Houston [1st Dist.] 1990, orig.

proceeding) (same).

      Franklin had twenty-eight days to amend his pleading, but he failed to do

so, notwithstanding the trial court’s warning that it would strike the defective

paragraphs if Franklin failed to amend within the prescribed time period. Without

paragraphs six through ten, there are no pleadings supporting Franklin’s claim for

damages or his requests for a cease and desist order and for injunctive relief.

Thus, the remainder of Franklin’s allegations against the City fails to state a

cause of action, and the trial court did not err by dismissing Franklin’s suit.

      It was improper, however, for the trial court to dismiss Franklin’s suit with

prejudice. The City argued in its motion to dismiss that dismissal with prejudice

was proper because even if Franklin did replead, he would not have a valid

cause of action for the reason that his causes of action against the City were

barred by governmental immunity and neither the Texas Tort Claims Act nor any

other statute waived the City’s immunity. Dismissal with prejudice may be proper

if a pleading defect cannot be cured by amendment.             See, e.g., Joseph E.

Seagram & Sons, Inc. v. McGuire, 814 S.W.2d 385, 386 (Tex. 1991); Tex.-Ohio

Gas, Inc. v. Mecom, 28 S.W.3d 129, 141 n.16 (Tex. App.—Texarkana 2000, no

pet.). But “a trial court should not dismiss a plaintiff’s claims with prejudice if the

pleadings state a valid cause of action and the pleading defect can be cured by

amendment.” Barcroft v. Cnty. of Fannin, 118 S.W.3d 922, 927 (Tex. App.—

Texarkana 2003, pet. denied).

                                          6
      The City did not raise any complaint in its special exceptions that Franklin

failed to state a valid cause of action, and its motion to dismiss was not the

appropriate method to raise this pleading defect. See In re Marriage of Ham, 59

S.W.3d 326, 330 (Tex. App.—Texarkana 2001, no pet.) (“A motion to dismiss is

also not the appropriate method to raise defects in the pleadings, as such defects

should be raised by special exception.”).      Franklin could have amended his

petition to cure the defects identified in the City’s special exceptions by pleading

the discovery level for the case, amending paragraphs six through ten to give fair

notice of his claims, and deleting the City of Fort Worth-Code Enforcement as a

party, but Franklin was not given the opportunity to amend his pleadings to

address the City’s complaint that he failed to plead a valid cause of action.

Therefore, the trial court should not have dismissed Franklin’s claims with

prejudice. See Barcroft, 118 S.W.3d at 927; see also In re Marriage of Ham, 59

S.W.3d at 330 (“A judgment dismissing the action is not the proper remedy for

defective pleadings unless the party with the defective pleadings is given the

opportunity to amend and either stands by the original pleadings or submits

defective amended pleadings.”).

      Therefore, we hold that the trial court did not err by dismissing Franklin’s

claims against the City. Accordingly, we overrule Franklin’s first issue. But we

hold that the trial court’s order dismissing Franklin’s lawsuit with prejudice was

improper.   The trial court’s order will be modified to reflect a dismissal of

Franklin’s lawsuit “without prejudice.”

                                          7
II. Trial Court Bias

      In his second issue, Franklin contends that “there was a quick rush to

immediate and prior judicial bias.” We construe this as complaint that the trial

judge should have recused herself due to bias. See Tex. R. Civ. P. 18b(b)(2)

(providing that “a judge must recuse in any proceeding in which . . . the judge has

a personal bias or prejudice concerning the subject matter or a party”).

      Under rule 18a, a party seeking recusal must file a verified motion stating

with particularity why the judge should not hear the case. Tex. R. Civ. P. 18a(a).

If a party does not comply with these mandatory requirements, he waives his

right to complain of the trial judge’s refusal to recuse himself. See McElwee v.

McElwee, 911 S.W.2d 182, 186 (Tex. App.—Houston [1st Dist.] 1995, writ

denied). Even though Franklin raised the issue of the trial judge’s bias in his

response to the City’s motion to dismiss, he failed to comply with the mandatory

requirements set forth in rule 18a.    See Tex. R. Civ. P. 18a(a).         Therefore,

Franklin has waived his right to complain on appeal that the judge should have

recused herself because she was biased.3 See McElwee, 911 S.W.2d at 186.

Accordingly, we overrule Franklin’s second issue.


      3
        Even if Franklin had preserved his complaint that the trial judge should
have been recused, we have carefully reviewed the record and find no evidence
of judicial bias. When a request for recusal is based on alleged bias of the judge,
the bias must be “extrajudicial and not based upon in-court rulings.” Grider v.
Boston Co., Inc., 773 S.W.2d 338, 346 (Tex. App.—Dallas 1989, writ denied),
disapproved on other grounds by Tex. Commerce Bank, N.A. v. Grizzle, 96
S.W.3d 240, 250 n.42 (Tex. 2002). “‘[J]udicial rulings alone almost never
constitute a valid basis for a bias or partiality motion,’ and opinions the judge
                                        8
                                   Conclusion

      The trial court’s dismissal of Franklin’s claims with prejudice was improper.

We modify the trial court’s order of dismissal by deleting the words “with

prejudice” and substituting in their place the words “without prejudice.” Having

overruled Franklin’s two issues, we affirm the trial court’s dismissal order as

modified. See Tex. R. App. P. 43.2(b).


                                                   /s/ Anne Gardner
                                                  ANNE GARDNER
                                                  JUSTICE

PANEL: GARDNER, MEIER, and GABRIEL, JJ.

DELIVERED: July 24, 2014




forms during a trial do not necessitate recusal ‘unless they display a deep-seated
favoritism or antagonism that would make fair judgment impossible.’” Dow
Chem. Co. v. Francis, 46 S.W.3d 237, 240 (Tex. 2001) (quoting Liteky v. United
States, 510 U.S. 540, 555, 114 S. Ct. 1147, 1157 (1994)). There is no evidence
in the record of extrajudicial bias or deep-seated favoritism or antagonism by the
trial judge.
                                         9
