Opinion
NO. 01-17-00727-CV NO. 01-17-00736-CV
06-26-2018
DR. MICHAEL (MIKHAIL) TYURIN, Appellant v. ROBERT WEITZEL, CLINT CORRIE, RITU GUPTA, C.M. HENKEL, AND FRITZ, BYRNE, HEAD & GILSTRAP, PLLC, Appellees
On Appeal from the 164th District Court Harris County, Texas
Trial Court Case No. 2017-30630
MEMORANDUM OPINION
Dr. Michael Tyurin, acting pro se, has filed multiple notices of appeal in the underlying case that have been docketed under two separate appellate cause numbers. In Appellate Cause Number 01-17-00727-CV, Tyurin attempts to appeal the trial court's orders granting appellees' motions to dismiss. In Appellate Cause Number 01-17-00736-CV, Tyurin attempts to appeal the trial court's order declaring him to be a vexatious litigant. At the parties' requests, these two appeals were consolidated for briefing, submission, and disposition. All subsequent filings proceeded under Appellate Cause Number 01-17-00727-CV. We dismiss the appeals.
I. Appeal of Dismissal Orders
Tyurin attempts to appeal from the trial court's orders granting appellees' motions to dismiss in the underlying case. Tyurin has been declared a vexatious litigant and is subject to a prefiling order. Accordingly, Tyurin may not proceed with an appeal from the dismissal orders without a permission order from the local administrative judge. Because Tyurin has not obtained such an order, we dismiss the appeal.
The Office of Court Administration website lists all vexatious litigants subject to prefiling orders. See Office of Court Administration, List of Vexatious Litigants Subject to Prefiling Orders under Section 11 .101, Civil Practice and Remedies Code, http://www.txcourts.gov/judicial-data/vexatious-litigants/ (list last updated May 16, 2018); see also TEX. CIV. PRAC. & REM. CODE § 11.104(b) (requiring office of court administration to maintain list and post list of vexatious litigants on agency's website). Tyurin is one such litigant. See Dr. Michael Tyurin v. Robert F. Weitzel, et al., Cause No. 2017-30630 in the 164th District Court of Harris County, Texas (September 19, 2017); http://www.txcourts.gov/media/1438922/dr-michael-mikhail-tyurin-09_19_17.pdf (lhttp://www.txcourts.gov/media/1438912/thomas - florence .pdfast viewed on May 31, 2018); see also Douglas v. Am. Title Co., 196 S.W.3d 876, 878 n.2 (Tex. App.—Houston [1st Dist.] 2006, no pet.) (taking judicial notice of Harris County record of vexatious litigants).
The Clerk of this Court may not file an appeal presented by a vexatious litigant subject to a prefiling order unless ( 1 ) the litigant first obtains an order from the local administrative judge permitting the filing or (2) the appeal is from a prefiling order designating the person a vexatious litigant. See TEX. CIV. PRAC. & REM. CODE § 11.103(a), (d). Tyurin's appeal from the dismissal orders are not appeals from the prefiling order designating him a vexatious litigant. Thus, Tyurin may not proceed with his appeal of the dismissal orders unless the local administrative judge permitted this filing.
This Court issued a notice to Tyurin advising him that we would dismiss his appeal of the dismissal orders unless he responded within 10 days with proof that, before filing the appeal, he had obtained an order from the local administrative judge permitting the appeal. Tyurin did not adequately respond to the notice and the record is devoid of any order permitting the filing of the appeal.
Because Tyurin fails to make the requisite showing that the local administrative judge permitted the appeal of the dismissal orders, we dismiss the appeal of these orders. See Kastner v. Fulco, No. 01-13-00100-CV, 2013 WL 6157392, at * 1-2 (Tex. App.—Houston [1st Dist.] Nov. 21, 2013, no pet.) (dismissing appeal after providing notice of intent to dismiss because vexatious litigant appellant failed to provide copy of order permitting filing of appeal); McCray v. Prudential Ins., No. 14-12-00860-CV, 2012 WL 5586804, at *1 (Tex. App.—Houston [14th Dist.] Nov. 15, 2012, no pet.) (same). Any pending motions are dismissed as moot.
II. Appeal of Vexatious Litigant Order
We next turn to Tyurin's appeal from the trial court's order declaring him a vexatious litigant. Tyurin is statutorily permitted to appeal an order designating him a vexatious litigant. See TEX. CIV. PRAC. & REM. CODE § 11.101(c) ("A litigant may appeal from a prefiling order entered under Subsection (a) designating the person a vexatious litigant"). But, as discussed below, Tyurin's appeal from the vexatious litigant order must be dismissed because he has failed to establish indigence or pay the required fees for his appeal.
Tyurin has neither paid the required fees nor established indigence for purposes of appellate costs. See TEX. R. APP. P. 5, 20.1; see also TEX. GOV'T CODE §§ 51.207, 51.941(a), 101.041; Fees Charged in the Supreme Court, in Civil Cases in the Courts of Appeals, and Before the Judicial Panel on Multi-District Litigation, Misc. Docket No. 15-9158 (Tex. Aug. 28, 2015). Further, Tyurin has not paid or made arrangements to pay the fee for preparing the clerk's record. See TEX. R. APP. P. 37.3(b). After being notified that his appeal was subject to dismissal, Tyurin did not adequately respond. See TEX. R. APP. P. 5, 42.3(b), (c). Appellees subsequently filed a motion to dismiss Tyurin's appeals for failure to pay the required fees. Tyurin similarly failed to adequately respond to the motion.
Tyurin filed an affidavit of indigence with this Court on January 25, 2018, but the record reflects that the trial court has held similar affidavits filed by Tyurin to be false. After the trial court entered orders declaring Tyurin a vexatious litigant and dismissing his case pursuant to Texas Rule of Civil Procedure 91a (governing dismissal of baseless causes of action), Tyurin filed a Statement of Inability to Afford Payment of Court Costs or an Appeal Bond on September 23, 2017. Following an evidentiary hearing, and pursuant to Texas Rule of Civil Procedure 145(f) and Texas Rule of Appellate Procedure 20.1, the trial court entered an order on October 20, 2017 declaring Tyurin's statement to be false and ordering him to pay court costs and fees, including appellate costs. The trial court found that (1) Tyurin could afford to pay costs and fees, including appellate costs, and (2) his statement was "materially false when filed. . . [and in it] he materially misrepresented the extent of his assets (including failing to disclose his interests in or rights to use valuable intellectual property and highly valuable proprietary technology, as well as his valuable ownership interests in business) and his financial resources." In addition, the trial court ordered Tyurin to pay $30,000 in sanctions under Texas Rule of Civil Procedure 13 and Chapters 9 and 10 of the Texas Civil Practice & Remedies Code "to prevent further frivolous filings that are groundless and false," and because the statement "had no basis in fact" and was "filed in bad faith for improper purposes, including for harassment."
Tyurin did not file a motion asking us to review the trial court's order. See TEX. R. CIV. P. 145(g)(2) (requiring motion challenging order issued under Rule 145 to be filed within 10 days of court's order, and deadline may be extended by up to 15 days by court of appeals). Tyurin's filing of another affidavit with our Court on January 25, 2018 that is materially identical to the affidavit rejected by the trial court does not allow Tyurin to avoid payment of the required fees or dismissal. See In re Newby, 07-03-00431-CV, 2004 WL 76347, at *1-2 (Tex. App.—Amarillo Jan. 16, 2004, no pet.) (dismissing appeal, holding that insufficient affidavit of indigency filed in appellate court in response to notification of failure to pay filing fee did not allow avoidance of costs). Although Texas Rule of Appellate Procedure 20.1(b)(3) provides an exception when a party's circumstances have materially changed since the date of the trial court's order under Rule 145, this exception does not apply because (1) Tyurin does not allege that his circumstances have materially changed since the trial court's order and (2) his recent affidavit contains substantially the same information as the affidavit considered by the trial court.
Accordingly, Tyurin has failed to establish indigence. We dismiss Tyurin's appeal of the vexatious litigant order for nonpayment of all required fees and for want of prosecution. We dismiss any pending motions as moot.
PER CURIAM Panel consists of Justices Keyes, Bland, and Massengale.