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Tyurin v. Selinidis

Court of Appeals of Texas, First District

June 13, 2017

DR. MICHAEL (MIKHAIL) TYURIN, Appellant
v.
STEPHEN D. SELINIDIS, Appellee

         On Appeal from the 234th District Court Harris County, Texas Trial Court Case No. 2016-45823-B.

          Panel consists of Chief Justice Radack and Justices Jennings and Lloyd.

          MEMORANDUM OPINION

          PER CURIAM

         Appellant, Dr. Michael (Mikhail) Tyurin, proceeding pro se, has filed a notice of appeal of orders granting the motions of appellee Stephen D. Selinidis to dismiss Tyurin's claims against Selinidis[1] and severing those claims into a separate trial-court cause. Selinidis has filed a motion to strike Tyurin's March 13, 2017 brief and dismiss the appeal.

         We dismiss the appeal.

         Appellant submitted a brief to this Court before the appellate record was complete. See Tex. R. App. P. 34.1 (appellate record consists of clerk's record and, if necessary to appeal, reporter's record), 38.6(a) (appellant must file brief within thirty days after later of date clerk's record or reporter's record filed). On January 24, 2017, 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.

         After Tyurin filed a second brief, Selinidis filed a motion to strike the second brief and dismiss the appeal, asserting that Tyurin had "failed to file a brief in compliance with rule 38.1 and the Court's January 24, 2017 order." In response, Tyurin filed an "Objection and Motion to Disregard Appellee's Motion to Dismiss Appeal, " asserting, in part, that his brief provides "a clear and concise argument for the contentions made, with appropriate citations to authorities and the [s]upplemental trial [c]ourt record."

         "An 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 also should 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).

         When an 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)).

         Tyurin's 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 orders granting Selinidis's motions to dismiss and motion for severance, Tyurin does not develop any legal arguments to set aside the trial court's orders or support his arguments with citations to the trial court record. 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); Mallory v. Arctic Pipe Inspection Co., No. 01-14-00104-CV, 2014 WL 701123, at *6 (Tex. App.-Houston [1st Dist.] Feb. 20, 2014, pet. denied) (mem. op.) (discussing appellate court's review of order granting motion to sever claims). In sum, Tyurin 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.

         When as 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, 300 (Tex. 1987)). When an appellant fails to file a brief, we may dismiss his appeal for want of prosecution. Tex.R.App.P. 38.8(a)(1). Accordingly, we grant Selinidis's motion, strike Tyurin's Brief on the Merits, filed on March 13, 2017, and dismiss the appeal. See Tex. R. App. P. 42.3(b), 43.2(f). We dismiss all other pending motions as moot.

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Notes:

[1] See Tex. R. Civ. P. 91a (providing trial court may dismiss claim on ground claim has no basis in law or ...


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