Opinion
NO. 01-16-00810-CV
06-12-2018
DR. MICHAEL (MIKHAIL) TYURIN, Appellant v. CAPITAL ONE, N.A., DAVID A. WALTON, BANK OF AMERICA, N.A., MATTHEW D. DURHAM, SYNCHRONY BANK, AND CITIBANK, N.A., Appellees
On Appeal from the 234th District Court Harris County, Texas
Trial Court Case No. 2016-45823
MEMORANDUM OPINION
Appellant, Dr. Michael (Mikhail) Tyurin, proceeding pro se, has filed notices of appeal of orders granting (1) appellee Bank of America, N.A.'s motion to dismiss, pursuant to Texas Rule of Civil Procedure 91a; (2) appellee Matthew D. Durham's motion to dismiss, pursuant to Rule 91a; (3) appellee Synchrony Bank's no-evidence and traditional motion for summary judgment, and (4) appellee Citibank, N.A.'s no-evidence and traditional motion for summary judgment. Synchrony Bank has filed a motion to dismiss the appeal and, alternately, strike Tyurin's "Verified Amended Dr. Tyurin's Brief on the Merits under the 1st Amendment " (the "Amended Brief"), filed on January 18, 2018.
See TEX. R. CIV. P. 91a (providing trial court may dismiss claim on ground claim has no basis in law or fact, or both).
We previously dismissed Tyurin's appeal as to appellees Capital One, N.A. and David A. Walton.
After appellant submitted his "Appellant's Brief on the Merits," we notified him that the brief did not comply with Texas Rule of Civil Procedure 38.1, struck the brief, and directed him to file a compliant brief. See TEX. R. APP. P. 38.1 (governing contents and organization of appellant's brief). Tyurin timely submitted his Amended Brief. Asserting that the Amended Brief "still [did] not comply" with Texas Rule of Appellate Procedure 38.1, Synchrony Bank filed a motion to dismiss the appeal "for waiver of appellate points" or, alternatively, strike the Amended Brief and require Tyurin to file a compliant brief. Citibank has filed an "Appellee's Brief," asserting, in part, that Tyurin "has waived review by failing to adequately brief any issue pertinent to the Court's disposition of this appeal" and asking that we affirm the judgment or, in the alternative, dismiss the appeal "for [Tyurin's] serial failures" to comply with this Court's orders and the Texas Rules of Appellate Procedure. Finally, appellees, Bank of America, N.A. and Matthew D. Durham, have filed a "Brief of Appellees," asserting that Tyurin has waived any error "by failing to adequately brief any issue pertinent to the Court's disposition of this appeal" and asking that we affirm the trial court's judgment. Tyurin has responded with an "Objection" to Synchrony Bank's motion to dismiss, a "Reply Brief to 'Appellee's Bank of America, N.A. and Matthew D. Durham Brief,'" and a "Reply Brief to 'Appellee [Citibank's] Brief.'" In these responses, Tyurin does not address appellees' assertions that his Amended Brief does not comply with Rule 38.1 and he has not adequately briefed issues relating to consideration and disposition of his appeal.
"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. United States of Am. 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.); San Saba Energy, L.P. v. Crawford, 171 S.W.3d 323, 338 (Tex. App.—Houston [14th Dist.] 2005, no pet.).
When an appellant's brief fails to contain a clear and concise argument for the contentions made with appropriate citations to legal authorities, this Court does not have a duty to research the law that may support appellant's contentions or review the appellate record for facts to support those contentions to determine if there was error. See Canton-Carter, 271 S.W.3d at 931-32; Marantha Temple, Inc. v. Enter. Prods., Co., 893 S.W.2d 92, 106 (Tex. App.—Houston [1st Dist.] 1994, writ denied). 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.). A pro se litigant is "not exempt from the rules of procedure." Wheeler v. Green, 157 S.W.3d 439, 444 (Tex. 2005).
Tyurin's Amended Brief does not provide a "Statement of the Case" that concisely states "the nature of the case . . ., the course of proceedings, and the trial court's disposition of the case"; 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(d), (g), (h), (i). The Amended Brief includes five issues in which Tyurin challenges alleged actions of the trial court, the trial court clerk, this Court, and its clerk, asserting an "elaborated scheme of fraud upon the courts." He also asserts that appellees' counsel, many of whom are not parties to this appeal, have "tort liability," and asserts a "counter-claim" for "trespass to chattel of [his] businesses and [his] business due process rights operations." Tyurin, however, does not develop any legal arguments to set aside the trial court's orders granting appellees' motions. The Amended Brief consists of complaints, conclusory statements, and factual assertions that are not supported by citations to the appellant record and are irrelevant to the issues before an appellate court on a review of a summary judgment or a dismissal under Rule 91a. 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.
The trial court severed Tyurin's claims against Citibank's counsel, Hirsch & Westheimer, Michael D. Connor, and Jessica Levy, and Synchrony Bank's counsel, Stephen Selinidis, into separate proceedings. We dismissed Tyurin's appeals in those proceedings after he failed to file compliant briefs. See Tyurin v. Hirsch & Westheimer, P.C., No. 01-17-00014-CV, 2017 WL 4682191, at *2 (Tex. App.—Houston [1st Dist.] Oct. 19, 2017, no pet.) (mem. op.); Tyurin v. Selinidis, No. 01-17-00013-CV, 2017 WL 2545123, at *2 (Tex. App.—Houston [1st Dist.] June 13, 2017, no pet.) (mem. op.).
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.). 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 Synchrony Bank's motion, strike the "Verified Amended Dr. Tyurin's Brief on the Merits under the 1st Amendment ," filed on January 18, 2018, and dismiss the appeal. See TEX. R. APP. P. 42.3(b), 43.2(f). We dismiss all other pending motions as moot.
PER CURIAM Panel consists of Chief Justice Radack and Justices Jennings and Lloyd.