ACCEPTED
03-14-00665-CV
5917840
THIRD COURT OF APPEALS
AUSTIN, TEXAS
7/2/2015 11:55:31 AM
JEFFREY D. KYLE
CLERK
Case No. 03-14-00665-CV
______________________________
FILED IN
3rd COURT OF APPEALS
IN THE COURT OF APPEALS FOR THE AUSTIN, TEXAS
THIRD JUDICIAL DISTRICT 7/2/2015 11:55:31 AM
AUSTIN, TEXAS JEFFREY D. KYLE
______________________________ Clerk
ERIC DRAKE
Plaintiff - Appellant,
vs.
KASTL LAW FIRM P.C., ET. AL.
Defendants - Appellees.
______________________________
On Appeal from the 200th District Court, Travis County
Case No. D-1-GN-14-001215
APPELLEE’S RESPONSE TO APPELLANT’S MOTION TO STRIKE
TO THE HONORABLE COURT OF APPEALS:
COMES NOW Seana Willing, Appellee herein, and files this Response to
Appellant’s Motion to Strike, which was filed by Appellant Eric Drake
(“Appellant”) on July 1, 2015, and would respectfully show this Court the following:
I.
PROCEDURAL BACKGROUND
On May 1, 2015, this Court entered a sua sponte Order noting that Appellant’s
Brief exceeded the maximum length of a brief and directing Appellant to “file an
amended brief complying with the rules of appellate procedure on or before May 15,
2015.” [Order, May 1, 2015]. This Court admonished that “If Drake fails to comply
with this order, this Court may strike appellant’s brief and dismiss this appeal.”
[Order, May 1, 2015].
On May 13, 2015, Appellant filed the Amended Brief of Appellant Eric
Drake. [Amended Appellant’s Brief]. In that brief, he certified that his brief was in
compliance of the word limit, as per TEX. R. APP. P. 9.4(i)(3). Appellant certified
that “exclusive of the exempted portions, the brief contains 14,819 words.
[Amended Appellant’s Brief, page 85].
On June 16, 2015, Ms. Willing filed her Advisory to the Court (“Advisory”),
informing the Court that Appellant had attempted to evade the maximum word count
of a brief by presenting a portion of his argument under an improper heading, rather
than presenting an actual “Statement of the Case.” [Advisory].
On July 1, 2015, Appellant filed his Motion to Strike Ms. Willing’s Advisory.
II.
UNCONTESTED MATTERS
Even after the filing of Appellant’s Motion to Strike, the following matters
are uncontested:
1. Appellant’s briefing includes a section titled “Statement of the Case;”
2. Despite that title, Appellant’s “Statement of the Case” does not contain any
information required of a proper Statement of the Case. See TEX. R. APP. P.
38.1(d). Specifically, Appellant’s briefing under that heading presents only
his argument of facts, without a single citation to the record. [Amended
Appellant’s Brief, pages 1-6];
3. The content provided in Appellant’s “Statement of the Case” is Appellant’s
arguments, such as arguing the sufficiency of evidence presented at a hearing
(a merit based argument, not a “Statement of the Case”), without any attempt
to refer to the record [Amended Appellant’s Brief, pages 1-6];
4. Despite the improper title of the section, pages 1-6 of the Amended
Appellant’s Brief are not a “Statement of the Case” within the meaning of the
Texas Rules of Appellate Procedure, but rather a “Summary of the
Argument,” to be counted toward the length of a brief, pursuant to TEX. R.
APP. P. 9.4(i)(1); and
5. The brief actually exceeds the maximum length, containing approximately
15,642 words. This includes the argument Appellant seeks to shield by
mischaracterizing it as a “Statement of the Case.”
Appellant does not dispute the fact that pages 1-6 are argument, but simply asks this
Court to not examine the content of his pleading and rely solely on the title he
provided to those pages.
III.
RESPONSE TO APPELLANT’S MOTION TO STRIKE
Appellant’s Motion to Strike is based on a faulty understanding of Ms.
Willing’s Advisory, and should be denied.
Appellant incorrectly interprets Ms. Willing’s Advisory as a Motion to Strike.
Ms. Willing’s Advisory was not a Motion to Strike, but was instead providing this
Court with information related to its previous sua sponte Order regarding maximum
brief length and providing this Court with information about Ms. Willing’s intent to
rely upon her previously filed Appellee’s Brief. [Advisory].
The sole basis of Appellant’s Motion to Strike is that TEX. R. APP. P. 9.4(i)
states that a Statement of the Case is not to be counted toward the maximum length
of a brief. Appellant makes the conclusory assertions that Ms. Willing’s Advisory
is “improper, frivolous,” and contains “misleading accusations.” In making those
unsubstantiated claims, Appellant identifies no portion of Ms. Willing’s Advisory
that he claims is factually or legally inaccurate.
Appellant does not dispute the fact that the words he wrote in pages 1-6 are
not in any way the content of a proper Statement of the Case. Indeed, his awareness
of that exception in TEX. R. APP. P. 9.4(i), coupled with his previous
misrepresentation of the length of his original Appellant’s Brief provides further
proof that Appellant has again knowingly misrepresented the true length of his brief,
and has attempted to evade the requirements of TEX. R. APP. P. 9.4(i)(1).
Accordingly, Appellant’s Motion to Strike should be denied.
Ms. Willing believes that in light of this Court’s previous admonishment
about the length of Appellant’s Brief and the consequences of failure to abide by this
Court’s May 1, 2015 Order, she should bring to this Court’s attention the fact that
he has again exceeded the maximum length for a brief.
Respectfully submitted,
KEN PAXTON
Attorney General of Texas
CHARLES E. ROY
First Assistant Attorney General
JAMES E. DAVIS
Deputy Attorney General for Defense
Litigation
ANGELA V. COLMENERO
Chief–General Litigation Division
/s/ Scot M. Graydon
Scot M. Graydon
Assistant Attorney General
State Bar No. 24002175
Office of the Attorney General
P.O. Box 12548
Austin, Texas 78711-2548
(512) 463-2120
(512) 320-0667 - facsimile
ATTORNEYS FOR APPELLEE SEANA
WILLING
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing document was
sent via regular mail and certified mail, return receipt requested on July 2, 2015 to:
Eric Drake
PO Box 833688
Richardson, Texas 75083
Pro Se Appellant
/s/ Scot M. Graydon
Scot M. Graydon
Assistant Attorney General