Dr. Michael Tyurin v. Capital One, N.A.
01-16-00810-CV
| Tex. App. | Jun 13, 2017Background
- Tyurin, pro se, appeals a trial court order (Dec 12, 2016) declaring him a vexatious litigant and prohibiting new filings against Capital One without a prefiling order, and awarding judgment to Capital One.
- Capital One moved to strike Tyurin’s brief and dismiss the appeal for Rule 38.1 noncompliance and lack of proper briefing.
- Tyurin submitted a January 9, 2017 brief that did not comply with Rule 38.1; a second brief was filed February 23, 2017 and also deemed noncompliant.
- The court advised on deficiencies, struck the noncompliant brief, and explained that a pro se litigant must comply with procedural rules; it may strike and dismiss for noncompliance.
- The court granted Capital One’s motion, struck Tyurin’s brief on the merits, and dismissed the appeal as to Capital One and David Walton for want of prosecution; other appellees’ claims remain pending.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Do Tyurin's briefs satisfy Rule 38.1 briefing requirements? | Tyurin contends the second brief contains arguments, record references, and authorities. | Capital One argues briefs are still noncompliant and fail to present concise issues and argument with proper citations. | No; briefs fail Rule 38.1, prompting strike and dismissal as to Capital One. |
| May the court strike a noncompliant brief and dismiss for want of prosecution? | Tyurin asserts he should be allowed to cure deficiencies; argues for relief from dismissal. | Capital One asserts the court may strike and dismiss under Rule 38.9 and related rules when noncompliant. | Yes; court may strike and dismiss for noncompliance/want of prosecution. |
| What is the effect on Tyurin’s appeal against other appellees? | Appeal remains pending against Bank of America, Durham, Synchrony Bank, and Citibank. | Not disputed for those parties; only Capital One portion is dismissed. | Appeal remains pending as to Bank of America, Durham, Synchrony Bank, and Citibank. |
Key Cases Cited
- Canton–Carter v. Baylor Coll. of Med., 271 S.W.3d 928 (Tex. App.—Houston [14th Dist.] 2008) (an issue must concisely direct the court’s attention to the claimed error)
- Hernandez v. Hernandez, 318 S.W.3d 464 (Tex. App.—El Paso 2010) (apply cited authorities to the facts and arguments on appeal)
- San Saba Energy, L.P. v. Crawford, 171 S.W.3d 323 (Tex. App.—Houston [14th Dist.] 2005) (brief must include concise issues, arguments, and citations)
- Clemens v. Allen, 47 S.W.3d 26 (Tex. App.—Amarillo 2000) (court may strike when brief is deficient)
- Inpetco, Inc. v. Tex. Am. Bank/Hous., N.A., 729 S.W.2d 300 (Tex. 1987) (proceedings; strict compliance with briefing rules required)