                             NUMBER 13-08-00370-CV

                             COURT OF APPEALS

                  THIRTEENTH DISTRICT OF TEXAS

                     CORPUS CHRISTI - EDINBURG


MIKE JONES,                                                                   Appellant,

                                            v.

WELLS FARGO BANK, N.A.,                                                        Appellee.


                    On appeal from the 117th District Court
                          of Nueces County, Texas.


                           MEMORANDUM OPINION

    Before Chief Justice Valdez and Justices Yañez and Benavides
            Memorandum Opinion by Chief Justice Valdez

       In this appeal, appellant, Mike Jones, complains about the trial court’s order

dismissing his case for want of prosecution in favor of appellee, Wells Fargo Bank, N.A.

(“Wells Fargo”). Advancing pro se, appellant argues that the trial court erred in dismissing

his case because he did not receive notice of the dismissal hearing conducted by the trial
court. We dismiss for lack of jurisdiction.

                                             I. BACKGROUND

        The underlying dispute pertains to approximately $49,900 contained in two checking

accounts and one savings account located at Wells Fargo. Appellant, also allegedly known

as Mohamad Hosein Yazdi, deposited the money in the aforementioned accounts at an

unspecified time. Apparently, in November 1999, the State of Texas filed a consumer

protection suit against appellant’s brother, Ali Yazdchi, asserting that Yazdchi engaged in

several illegal financial schemes using numerous aliases, including “Mike Jones,” and the

schemes involved some of the money at issue.1 The 61st Judicial District Court in Harris

        1
         As noted in an earlier opinion by this Court, the style of the State of Texas’s Novem ber 1999
consum er protection suit was as follows:

        State of Texas v. Ali Yazdchi, also known as Al Giovanni, Habibollah Yazdchi, Habibolah
        Yazdchi, Hosein Y. Mohamad, Moham ed H. Yazdchi, Abbas Yazdchi, A. Abbasyazdchi,
        Ahmad Yazdchi, Habibolloah Yazdchi, Ali Yazdi Habibolah Yazdi, Amir Ahmad, Yazdchi
        Habibollah, Yazdchi Ali, Yazdchi Mohamad, Yazdchi Habibolah, Yazdchi Ahmad, A. Yazdchi
        Habibolah, A. Yazdchi, A. Yazdchi Abbas, A. Aliyazdchi, Sidney Sam Hessein, Mike Jones,
        Al Auto, Al Auto Sales, All’s Cars, Ali’s Cars, and Alis Cars, No. 1999-57020, pending in the
        61 st Judicial District Court of Harris County, Texas.

Jones v. W ells Fargo Bank, N.A., No. 13-04-609-CV, 2007 Tex. App. LEXIS 3165, at *1 n.1 (Tex.
App.–Corpus Christi Apr. 26, 2007, no pet.) (m em . op.). Moreover, as pointed out by the First C ourt of
Appeals, appellant and his brother have been involved in num erous appeals involving the sam e set of facts
as alleged in the Novem ber 1999 lawsuit, which also give rise to this appeal. See Yazdchi v. W alker, No. 01-
05-00177-CV, 2009 Tex. App. LEXIS 3166, at **2-4 n.1 (Tex. App.–Houston [1st Dist.] May 7, 2009, pet.
denied) (m em . op.) (citing Yazdchi v. Nexcess Motorcars, No. 01-07-00185-CV, 2007 Tex. App. LEXIS 5043,
(Tex. App.–Houston [1st Dist.] June 28, 2007, no pet.) (m em . op.); Yazdchi v. Allstate Ins. Co., No.
01-05-00327-CV, 2007 Tex. App. LEXIS 3005 (Tex. App.–Houston [1st Dist.] Apr. 19, 2007, no pet.) (m em .
op.); Yazdchi v. Am. Honda Fin. Corp., 217 Fed. Appx. 299 (5th Cir. 2007); Yazdchi v. Chesney, No.
14-05-00817, 2007 Tex. App. LEXIS 615 (Tex. App.–Houston [14th Dist.] Jan. 30, 2007, no pet.) (m em . op.);
Auto v. Travelers Ins. Co., No. 01-05-00327-CV, 2006 Tex. App. LEXIS 8828 (Tex. App.–Houston [1st Dist.]
Oct. 12, 2006, no pet.) (m em .op.); Yazdchi v. S. County Mut. Ins. Co., No. 11-06-00166-CV, 2006 Tex. App.
LEXIS 6820 (Tex. App.–Eastland Aug. 3, 2006, no pet.) (m em . op.); Yazdchi v. Tradestar Invs., Inc., 217
S.W .3d 517 (Tex. App.–Houston [14th Dist.] 2006, pet. denied); Yazdchi v. Bennett, No. 01-04-01057-CV,
2006 Tex. App. LEXIS 3122 (Tex. App.–Houston [1st Dist.] Apr. 20, 2006, no pet.) (m em . op.); Yazdchi v.
Geico, 161 Fed. Appx. 438 (5th Cir. 2006) (not designated for publication); Yazdchi v. Bank of Am., No.
11-05-00060-CV, 2006 Tex. App. LEXIS 234 (Tex. App.–Eastland, Jan. 12, 2006) (m em . op.); Yazdchi v. Am.
Nat'l Prop. and Cas. Co., No. 01-05-00750-CV, 2005 Tex. App. LEXIS 10470 (Tex. App.–Houston [1st Dist.]
Dec. 15, 2005, no pet.) (m em . op.); Yazdchi v. Citicorp Credit Serv., Inc., No. 01-05-00740-CV, 2005 Tex.
App. LEXIS 9086 (Tex. App.–Houston [1st Dist.] Nov. 3, 2005, no pet.) (m em . op.); Yazdchi v. W ash. Mut.,
No. 14-04-00639-CV, 2005 Tex. App. LEXIS 7702 (Tex. App.–Houston [14th Dist.] Sept. 20, 2005, no pet.)
(m em . op.); Yazdchi v. State, No. 14-04-00500-CV, 2005 Tex. App. LEXIS 7406 (Tex. App.–Houston [14th
Dist.] Sept. 8, 2005, no pet.) (m em . op.); Yazdchi v. Frost Nat'l Bank, No. 14-0500399-CV, 2005 Tex. App.
                                                      2
County concluded that appellant assisted Yazdchi by depositing sums of money and

withdrawing “some of those funds for transfer to Iran and other financial institutions outside

the jurisdiction of [the Harris County District Court].” As a result, the Harris County District

Court entered orders prohibiting Wells Fargo from allowing appellant to transfer, remove,

or withdraw any of the monies in question and appointing the Honorable David West as

temporary receiver of the funds. Wells Fargo complied with the orders entered by the

Harris County District Court.

         Subsequently, on April 14, 2000, the Harris County District Court entered an agreed

final judgment, permanent injunction and appointment of a permanent receiver to freeze

and direct the disposition of the assets. Later, appellant, advancing pro se, filed an original

petition in the 117th Judicial District Court in Nueces County against Wells Fargo, asserting

conversion, breach of fiduciary duty, negligence, and breach of contract causes of action.2

In particular, appellant argued that Wells Fargo wrongfully took the $49,900 from the

various accounts without his consent even though it was merely complying with the orders

entered by the Harris County District Court. Wells Fargo filed an original answer, generally

denying all of the allegations contained in appellant’s original petition.

         Shortly thereafter, several motions for summary judgment were filed by both parties,

including a traditional motion for summary judgment filed by Wells Fargo. On July 12,

LEXIS 4782 (Tex. App.–Houston [14th Dist.] June 23, 2005, no pet.) (not designated for publication); Yazdchi
v. Bank One, Texas, 177 S.W .3d 399 (Tex. App.–Houston [1st Dist.] 2005, pet. denied); Yazdchi v. Am. Arb.
Ass'n, No. 01-04-00149-CV, 2005 Tex. App. LEXIS 1320 (Tex. App.–Houston [1st Dist.] Feb. 17, 2005, no
pet.) (m em . op.); Yazdchi v. Bennett Law Firm, P.C., No. 14-01-00928-CV, 2002 Tex. App. LEXIS 3973 (Tex.
App.–Houston [14th Dist.] May 30, 2002, no pet.) (not designated for publication); Bouja v. State, No.
14-00-00072-CV, 2000 Tex. App. LEXIS 3394 (Tex. App.–Houston [14th Dist.] May 25, 2000, no pet.) (not
designated for publication); Yazdchi v. C ity of Houston, No. 14-98-01296-CV, 1999 Tex. App. LEXIS 2885
(Tex. App.–Houston [14th Dist.] Apr. 15, 1999, no pet.) (not designated for publication)).


         2
             Apparently, the accounts at issue in this case were opened in various banks in Corpus Christi,
Texas.
                                                      3
2004, the Nueces County district court conducted a hearing on the pending motions for

summary judgment. Appellant failed to attend this hearing, and, after hearing arguments

from Wells Fargo, the trial court denied all of appellant’s motions for summary judgment

and granted Wells Fargo’s traditional motion for summary judgment. In its summary

judgment order signed on July 12, 2004, the trial court ordered that appellant take nothing

from Wells Fargo and noted that the order was “final and appealable, disposing of all

claims and parties.” On August 11, 2004, appellant filed a motion for new trial, which was

overruled by operation of law. See TEX . R. CIV. P. 329b(c). Appellant then filed a notice

of appeal.

       In the first appeal pertaining to these accounts, this Court held that Wells Fargo had

lawfully complied with the orders entered by the Harris County District Court by transferring

all accounts associated with “Mike Jones” to the receiver. Jones v. Wells Fargo Bank,

N.A., No. 13-04-609-CV, 2007 Tex. App. LEXIS 3165, at *10 (Tex. App.–Corpus Christi

Apr. 26, 2007, no pet.) (mem. op.). However, we also held that the summary judgment

evidence indicated that two of the accounts had been released by the receiver; thus, we

remanded the case to the trial court to determine only the disposition of the assets in the

two accounts that were released by the receiver. Id. at **10-12.

       Nothing transpired in the case until Wells Fargo filed a second motion for summary

judgment on January 28, 2008. Upon receiving Wells Fargo’s second motion for summary

judgment, the Nueces County district court set the case for a docket control conference on

April 8, 2008 at 9:30 a.m. Notice of the docket control conference was mailed to the

parties on March 13, 2008. In particular, notice of the docket control conference was

mailed to appellant at the following address: “Mike Jones[;] 2100 Tanglewilde #662[;]

                                             4
Houston, Texas 77063."3             Appellant, however, failed to attend the docket control

conference.

        Then, pursuant to rule 165a of the rules of civil procedure, the Nueces County

district court set the case for a dismissal hearing scheduled for April 23, 2008, at 8:15 a.m.

See TEX . R. CIV. P. 165a. Notice of the dismissal hearing was mailed to appellant’s

Houston address on April 11, 2008. Appellant, once again, failed to appear at the hearing.

As a result, the trial court dismissed the case for want of prosecution on April 23, 2008.

In notes attached to the dismissal order, the trial court explained that:

        DROP DOCKET HISTORY: 4/23/08—Plaintiff [appellant] did not appear at
        dismissal docket after receiving notice. Plaintiff faxed the Court a letter the
        day of the hearing and advised that he had not received notice of the
        scheduled DCC, despite the fact that the Court’s notice of DCC to [P]laintiff
        was not returned to the Court and that the DCC notice was to the same
        address that the Notice of Intent to Dismiss for Want of Prosecution was
        sent. Plaintiff did not adhere to the requirements of the Notice of Intent to
        Dismiss for Want of Prosecution. There has been no prosecution of this
        case since the Court of Appeals returned the case to the 117 th District Court
        for further prosecution. Attorney for Defendant [Wells Fargo] appeared at
        dismissal docket and had no objection to the case being dismissed for Want
        of Prosecution. Case was dismissed for Want of Prosecution.

On June 11, 2008, appellant filed his pro se notice of appeal challenging the trial court’s

order dismissing his case for want of prosecution.

                                             II. JURISDICTION

        At the outset, we must analyze Wells Fargo’s contention that this Court lacks

jurisdiction over this matter because appellant did not timely file his notice of appeal. The

record reflects that the trial court signed its order dismissing appellant’s case for want of

prosecution on April 23, 2008. Appellant did not file his notice of appeal in this matter until

June 11, 2008, more than thirty days after the complained-of judgment was signed. See
        3
         Appellant confirm s in an affidavit filed with his appellate brief that his m ailing address is: “2100
Tanglewilde 662 Houston, Ttx [sic] 77063.”
                                                      5
TEX . R. APP. P. 26.1. Texas Rule of Appellate Procedure 26.1 provides that a notice of

appeal must be filed within thirty days after the judgment is signed unless the time period

is extended to ninety days by the timely filing of a motion for new trial, motion to modify,

motion to reinstate, or request for findings of fact and conclusions of law. See id. at R.

26.1(a). Here, appellant has not filed any motions or requests pertaining to the trial court’s

April 23, 2008 dismissal order, which would have extended the time period to file a notice

of appeal. See id. Thus, because pro se litigants are held to the same standards as

licensed attorneys and must comply with applicable laws and rules of procedure, we

conclude that appellant’s filing of his notice of appeal was untimely.4 See Green v.

Kaposta, 152 S.W.3d 839, 841 (Tex. App.–Dallas 2005, no pet.); see also Siddiqui v.

Siddiqui, No. 14-07-00235-CV, 2009 Tex. App. LEXIS 1443, at *4 (Tex. App.–Houston

[14th Dist.] Mar. 3, 2009, pet. denied) (mem. op.) (“While we have compassion for the

plight of the pro se litigant attempting to follow the rule of legal procedure and substantive

laws, and therefore construe pro se pleadings and briefs liberally, we must still hold

appellant to the same standard as a licensed attorney, requiring that he follow those same

rules and laws . . . . To do otherwise would give a pro se litigant an unfair advantage over

a litigant represented by counsel.”).

         However, assuming, arguendo, that appellant provided the necessary information

         4
            In his notice of appeal, appellant fails to note that the appeal in this m atter is restricted, which would
have extended the tim e period for filing his notice of appeal to six m onths after the judgm ent was signed. See
T EX . R. A PP . P. 25.1(d)(7), 26.1(c), 30. Appellant’s notice of appeal is entitled, “NOTICE OF APPEAL,” and
m erely states the following: “Notice is hereby given that MIKE JONES, Plaintiff in case style above, hereby
appeals DISMISSAL FOR W ANT OF PROSECUTION[] to 13TH Court of Appeals.” Texas Rule of Appellate
Procedure 25.1(d)(7) requires that, in a restricted appeal, appellant m ust: (1) state that he “is a party affected
by the trial court’s judgm ent but did not participate— either in person or through counsel— in the hearing that
resulted in the judgm ent com plained of”; (2) state that he “did not tim ely file either a postjudgm ent m otion,
request for findings of fact and conclusions of law, or notice of appeal”; and (3) file an affidavit swearing that
the contents contained in the notice of appeal are true if appellant does not have counsel. Here, appellant
has not satisfied any of the elem ents outlined in rule 25.1(d)(7)(A)-(B) of the rules of appellate procedure. See
id. at R. 25.1(d)(7).
                                                          6
for a restricted appeal, as required by Texas Rule of Appellate Procedure 25.1(d)(7), we

cannot say that appellant has presented sufficient evidence to demonstrate entitlement to

relief in this appeal.

       To attack a trial court’s judgment by restricted appeal, appellant must show that:

(1) a notice of appeal was filed within six months of the date the complained-of judgment

was signed; (2) appellant was a party to the suit who did not participate in the hearing that

resulted in the judgment or order; (3) appellant did not timely file a post-judgment motion,

request findings of fact and conclusions of law, or file a notice of appeal within the time

permitted under rule 26.1(a) of the Texas Rules of Appellate Procedure; and (4) the

complained-of error is apparent from the face of the record. TEX . R. APP. P. 26.1(c), 30;

see Alexander v. Lynda’s Boutique, 134 S.W.3d 845, 848 (Tex. 2004); Tex. Dep’t of Pub.

Safety v. Fredricks, 235 S.W.3d 275, 278 (Tex. App.–Corpus Christi 2007, no pet.).

       The record reflects that appellant: (1) filed his notice of appeal within six months

of the date the trial court signed the order; (2) did not participate in the hearing from which

the dismissal order resulted; and (3) did not timely file any post-judgment motions or

requests. However, based on our review of the record, we cannot conclude that there is

error on the face of the record. See Norman Commc’ns v. Tex. Eastman Co., 955 S.W.2d

269, 270 (Tex. 1997) (per curiam) (stating that, the face of the record, for purposes of

restricted appeals, consists of all the papers on file in the appeal).

       The record contains documentation that notice of the April 23, 2008 dismissal

hearing was mailed to appellant’s Houston address on April 11, 2008, and a copy of the

dismissal order was later provided to appellant. See Ginn v. Forrester, 282 S.W.3d 430,

433 (Tex. 2009) (per curiam) (“As to what does constitute error on the face of the record,

                                              7
we have clearly said that silence is not enough. The rules governing dismissals for want

of prosecution direct the district clerk to mail notice containing the date and place of

hearing at which the court intends to dismiss the case . . . and a similar notice of the

signing of the dismissal order . . . . But the rules do not impose upon the clerk an

affirmative duty to record the mailing of the required notices; accordingly, the absence of

proof in the record that notice was provided does not establish error on the face of the

record.”). Furthermore, appellant never argues that notice of the dismissal hearing was

sent to the wrong address. Moreover, appellant’s notice argument and failure to attend the

dismissal hearing appears to be undermined by the fact that appellant faxed a letter to the

trial court on the same day as the hearing claiming not to have received notice of the

hearing.

       Despite evidence in the record indicating that he received notice of the dismissal

hearing, appellant, for the first time on appeal, provided an affidavit averring that he did not

receive notice of the dismissal hearing. Such extrinsic evidence, first presented to an

appellate court, cannot be used to support a restricted appeal. See Gen. Elec. Co. v.

Falcon Ridge Apartments, Joint Venture, 811 S.W.2d 942, 943-44 (Tex. 1991) (stating that,

when extrinsic evidence is necessary to challenge a judgment, the appropriate remedy is

by motion for new trial or by bill of review filed in the trial court so that the trial court has the

opportunity to consider and weigh factual evidence and that such evidence cannot support

a restricted appeal); see also Ginn, 282 S.W.3d at 432-33. Besides this affidavit, appellant

does not direct us to any other portion of the record demonstrating error. Therefore, based

on the foregoing, we cannot say that appellant has satisfied the elements for restricted

appeal. See TEX . R. APP. P. 26.1(c), 30; see also Alexander, 134 S.W.3d at 848;

                                                 8
Fredricks, 235 S.W.3d at 278.

                                      III. CONCLUSION

       Accordingly, we are without jurisdiction to consider this appeal; thus, we dismiss this

cause for lack of jurisdiction.


                                                  ROGELIO VALDEZ
                                                  Chief Justice


Delivered and filed the
15th day of July, 2010.




                                              9
