Dr. Michael Tyurin v. Capital One, N.A.

Order issued February 15, 2018
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-16-00810-CV
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DR. MICHAEL (MIKHAIL) TYURIN, Appellant
V.
CAPITAL ONE, N.A., DAVID 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 ORDER
Currently pending before this Court is appellant Dr. Michael (Mikhail)
Tyurin’s “Verified Amended . . . Motion to Transfer 01-16-00810-CV and Related
01-17-00013-CV and 01-17-00014-CV to the Texas Supreme Court, under the 1st
Amendment.” In his motion, appellant asks “the 1st Court of Appeals to recuse itself
from 01-16-00810-CV and forward 01-16-00810-CV and related cases
01-17-00013-CV and 01-17-00014-CV to the Texas Supreme Court for Review and
ruling.”
Texas Rule of Appellate Procedure 16.3 prescribes the procedure to be
followed for recusal of an appellate justice:
Before any further proceeding in the case, the challenged justice or
judge must either remove himself or herself from all participation in
the case or certify the matter to the entire court, which will decide
the motion by a majority of the remaining judges sitting en banc. The
challenged justice or judge must not sit with the remainder of the court
to consider the motion as to him or her.
TEX. R. APP. P. 16.3(b). When, as in this case, a party challenges all the members of
the court, the court decides the motion under the procedures set forth in Rule 16.3.
See id.; see, e.g., Cameron v. Greenhill, 582 S.W.2d 775, 776–77 (Tex. 1979)
(denying motion to disqualify entire Texas Supreme Court); Cogsdil v. Jimmy
Fincher Body Shop, LLC, No. 07-16-00303-CV, 2016 WL 7321788, at *1 (Tex.
App.—Amarillo Dec. 12, 2016, order) (treating recusal motion as addressed to entire
Court).
Accordingly, upon the filing of appellant’s motion and before any further
proceedings in this appeal, each of the challenged justices of this Court considered
the motion in chambers. See TEX. R. APP. P. 16.3(b); see also Cogsdil, 2016 WL
7321788, at *1; Cannon v. City of Hurst, 180 S.W.3d 600, 601 (Tex. App.—Fort
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Worth 2005, order). Chief Justice Radack and Justices Jennings, Keyes, Higley,
Bland, Massengale, Brown, Lloyd, and Caughey each found no reason to recuse
themselves and certified the matter to the remaining members of the en banc court.
See TEX. R. APP. P. 16.3(b); Cogsdil, 2016 WL 7321788, at *1; Cannon, 180
S.W.3d at 601. This Court then followed the accepted procedure set out in Rule
16.3. See TEX. R. APP. P. 16.3(b); Cannon, 180 S.W.3d at 601. The justices
deliberated and decided the motion to recuse with respect to each challenged justice
by a vote of the remaining participating justices en banc. See TEX. R. APP. P.
16.3(b); Cogsdil, 2016 WL 7321788, at *1; Cannon, 180 S.W.3d at 601. No
challenged justice sat with the other members of the Court when his or her
challenge was considered. See TEX. R. APP. P. 16.3(b); Manges v. Guerra, 673
S.W.2d 180, 185 (Tex. 1984); Cogsdil, 2016 WL 7321788, at *1; McCullough v.
Kitzman, 50 S.W.3d 87, 88 (Tex. App.—Waco 2001, order).
Having considered the motion as to each challenged justice, and finding no
basis for recusal, appellant’s “Verified Amended . . . Motion to Transfer
01-16-00810-CV and Related 01-17-00013-CV and 01-17-00014-CV to the Texas
Supreme Court, under the 1st Amendment” is denied with respect to each
challenged justice. See Manges, 673 S.W.2d at 185; McCullough, 50 S.W.3d at 89.
The Court enters the following orders:
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ORDER DENYING MOTION AS TO CHIEF JUSTICE RADACK
To the extent that appellant’s motion requests recusal of Chief Justice Radack,
it is ordered that the motion is denied.
The Court consists of: Justices Jennings, Keyes, Higley, Bland, Massengale,
Brown, Lloyd, and Caughey.
ORDER DENYING MOTION AS TO JUSTICE JENNINGS
To the extent that appellant’s motion requests recusal of Justice Jennings, it is
ordered that the motion is denied.
The Court consists of: Chief Justice Radack and Justices Keyes, Higley,
Bland, Massengale, Brown, Lloyd, and Caughey.
ORDER DENYING MOTION AS TO JUSTICE KEYES
To the extent that appellant’s motion requests recusal of Justice Keyes, it is
ordered that the motion is denied.
The Court consists of: Chief Justice Radack and Justices Jennings, Higley,
Bland, Massengale, Brown, Lloyd, and Caughey.
ORDER DENYING MOTION AS TO JUSTICE HIGLEY
To the extent that appellant’s motion requests recusal of Justice Higley, it is
ordered that the motion is denied.
The Court consists of: Chief Justice Radack and Justices Jennings, Keyes,
Bland, Massengale, Brown, Lloyd, and Caughey.
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ORDER DENYING MOTION AS TO JUSTICE BLAND
To the extent that appellant’s motion requests recusal of Justice Bland, it is
ordered that the motion is denied.
The Court consists of: Chief Justice Radack and Justices Jennings, Keyes,
Higley, Massengale, Brown, Lloyd, and Caughey.
ORDER DENYING MOTION AS TO JUSTICE MASSENGALE
To the extent that appellant’s motion requests recusal of Justice Massengale,
it is ordered that the motion is denied.
The Court consists of: Chief Justice Radack and Justices Jennings, Keyes,
Higley, Bland, Brown, Lloyd, and Caughey.
ORDER DENYING MOTION AS TO JUSTICE BROWN
To the extent that appellant’s motion requests recusal of Justice Brown, it is
ordered that the motion is denied.
The Court consists of: Chief Justice Radack and Justices Jennings, Keyes,
Higley, Bland, Massengale, Lloyd, and Caughey.
ORDER DENYING MOTION AS TO JUSTICE LLOYD
To the extent that appellant’s motion requests recusal of Justice Lloyd, it is
ordered that the motion to recuse is denied.
The Court consists of: Chief Justice Radack and Justices Jennings, Keyes,
Higley, Bland, Massengale, Brown, and Caughey.
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ORDER DENYING MOTION AS TO JUSTICE CAUGHEY
To the extent that appellant’s motion requests recusal of Justice Caughey, it
is ordered that the motion to recuse is denied.
The Court consists of: Chief Justice Radack and Justices Jennings, Keyes,
Higley, Bland, Massengale, Brown, and Lloyd.
PER CURIAM
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