DR. MICHAEL (MIKHAIL) TYURIN, Appellant
CAPITAL ONE, N.A., DAVID WALTON, BANK OF AMERICA, N.A., MATTHEW D. DURHAM, SYNCHRONY BANK, AND CITIBANK, N.A., Appellees
Appeal from the 234th District Court Harris County, Texas
Trial Court Case No. 2016-45823.
consists of Chief Justice Radack and Justices Jennings and
Dr. Michael (Mikhail) Tyurin, proceeding pro se, has filed a
notice of appeal of the trial court's December 12, 2016
order declaring him a vexatious litigant; prohibiting him
from filing any new litigation against appellees, Capital
One, N.A. and David A Walton (collectively "Capital
One"), without a prefiling order; and ordering that Tyurin
take nothing on his claims against Capital One.Capital One has
filed a motion to strike Tyurin's February 23, 2017 brief
and dismiss the appeal.
dismiss the appeal as to Capital One.
January 9, 2017, Tyurin submitted a brief relating to his
appeal of the trial court's orders. We notified Tyurin
that his brief did not comply with the requirements of Texas
Rule of Appellate Procedure 38.1, which governs the contents
and organization of an appellant's brief, struck the
brief, and directed him to file a compliant brief.
Tyurin filed a second brief on February 23, 2017, Capital One
filed a motion to strike that brief and dismiss the appeal,
asserting that the substance of Tyurin's brief "is
substantially the same as the stricken January 9 Brief"
and "is still not compliant with rule 38.1." In
response, Tyurin filed an "Objection to Appellees'
'Motion to Strike Appellant's Brief and Dismiss
Appeal, '" asserting, in part, that his second brief
"contain[s] a succinct, clear, and accurate statement of
the arguments made in the body of the brief, " "the
required 'record references, '" and "a
clear and concise argument for the contentions made, with
appropriate citations to authorities and the record."
(Internal quotations omitted.)
appellate brief is 'meant to acquaint the court with the
issues in a case and to present argument that will enable the
court to decide the case . . . .'" Schied v.
Merritt, No. 01-15-00466-CV, 2016 WL 3751619, at *2
(Tex. App.-Houston [1st Dist.] July 12, 2016, no pet.) (mem.
op.) (quoting Tex.R.App.P. 38.9). The Texas Rules of
Appellate Procedure, therefore, "have specific
requirements for briefing that require, among other things,
that an appellant provide a statement of facts, which
includes references to the record, and an argument that is
clear and concise with appropriate citations to authorities
and the record." Holz v. U.S. Corp., No.
05-13-01241-CV, 2014 WL 6555024, at *1 (Tex. App.-Dallas Oct.
23, 2014, no pet.) (mem. op.) (citing Tex.R.App.P. 38.1(g),
(i)). And, a brief must state concisely the issues presented
for review. Tex.R.App.P. 38.1(f). "An issue presented
for appellate review is sufficient if it directs the
reviewing court's attention to the error about which the
complaint is made." Canton-Carter v. Baylor Coll. of
Med., 271 S.W.3d 928, 931 (Tex. App.-Houston [14th
Dist.] 2008, no pet.) (citing Tex.R.App.P. 38.1(f)). An
appellant should also explain how the law in the cited
authorities applies to the facts of the case and supports the
appellant's arguments on appeal. See Hernandez v.
Hernandez, 318 S.W.3d 464, 466 (Tex. App.-El Paso 2010,
no pet.) (citations omitted); San Saba Energy, L.P. v.
Crawford, 171 S.W.3d 323, 338 (Tex. App.-Houston [14th
Dist.] 2005, no pet.) (citations omitted).
appellant's brief fails to contain a clear and concise
argument for the contentions made with appropriate citations
to legal authorities, it is not this Court's duty to
research the law that may support appellant's contentions
or review the appellate record for facts to support those
contentions. See Canton-Carter, 271 S.W.3d at
931-32. Although we construe an appellate brief liberally, a
party proceeding pro se must comply with all applicable
procedural rules. Green v. Midland Mortg. Co., 342
S.W.3d 686, 692 n.7 (Tex. App.-Houston [14th Dist.] 2011, no
pet.) (citing Harris v. Showcase Chevrolet, 231
S.W.3d 559, 561 (Tex. App.-Dallas 2007, no pet.)). A pro se
litigant is "not exempt from the rules of
procedure." Wheeler v. Green, 157 S.W.3d 439,
444 (Tex. 2005) (citing Mansfield State Bank v.
Cohn, 573 S.W.2d 181, 184-85 (Tex. 1978)).
brief does not provide a concise statement of the issues
presented for review; a concise statement, without argument,
of the facts pertinent to the issues presented; a succinct
and clear summary of his arguments on appeal; or "a
clear and concise argument for the contentions made, with
appropriate citations to authorities and to the record."
See Tex. R. App. P. 38.1(f), (g), (h), (i). Although
purporting to challenge the trial court's December 12,
2016 order, Tyurin does not develop any arguments to set
aside that order, support his arguments with citations to the
trial court record, or explain how cited legal authority
applies "to the purported issues on appeal-that is,
whether the trial court erred in finding Tyurin a vexatious
litigant or dismissing Tyurin's claims against [Capitol
One]." See, e.g., Jones v. Shipley,
508 S.W.3d 766, 768 (Tex. App.-Houston [1st Dist.] 2016, pet.
denied) (discussing appellate court's review of dismissal
of claims under Texas Rule of Civil Procedure 91a); Jones
v. Markel, No. 14-14-00216-CV, 2015 WL 3878261, at *2
(Tex. App.- Houston [14th Dist.] June 23, 2015, pet. denied)
(mem. op.) (discussing appellate court's review of
vexatious litigant determination). In sum, appellant has not
corrected the deficiencies in his brief as directed in this
Court's order and has not provided a brief that complies
with rule 38.1.
here, an appellant files a brief that does not comply with
the rules and then files an amended brief that also does not
comply, "the court may strike the brief, prohibit the
[appellant] from filing another, and proceed as if the
[appellant] had failed to file a brief." Tex.R.App.P.
38.9(a); see Clemens v. Allen, 47 S.W.3d 26, 28
(Tex. App.-Amarillo 2000, no pet.) (citing Inpetco, Inc.
v. Tex. Am. Bank/Hous., N.A., 729 S.W.2d 300 (Tex.
1987)). When an appellant fails to file a brief, we may
dismiss his appeal for want of prosecution. See Tex.
R. App. P. 38.8(a)(1). Accordingly, we grant Capital
One's motion, strike Tyurin's Brief on the Merits,
filed on February 23, 2017, and dismiss the appeal as to
Capitol One, N.A. and David A. Walton for want of
prosecution. See Tex. R. App. P. 42.3(b), 43.2(f).
We dismiss as moot Tyurin's motion to strike
Capitol's One's motion to strike appellant's
brief and dismiss the appeal, Tyurin's motion to allow a
brief exceeding the page limits, and Capitol One's motion
for an extension of time to file an appellee's brief.
appeal as to Bank of America, N.A., Matthew D. Durham,
Synchrony Bank, and Citibank, N.A. remains pending. This
interlocutory order will become final when a judgment is
issued in this cause number.