SEE AMEND BRF
FILED ON 5/13/15 March 2, 2015
No:03-14-00665-CV
IN THE COURT OF APPEALS FOR
THE THIRD JUDICIAL DISTRICT OF TEXAS
AT AUSTIN, TEXAS
ERIC DRAKE
Plaintiff—Appellant
v.
KASTL LAW FIRM P.C. ET AL \xRECEIVED
MAR 0 2 2015
Defendant-Appellee
THIRCI COURT QFAPPEMS
• JEFFREY niffl^
ON APPEAL FROM THE 200th DISTRICT COURT
TRAVIS COUNTY, AUSTIN, TEXAS
Trial Court No. D-l-GN-14-001215
BREIF OF APPELLANT ERIC DRAKE
Eric Drake
Pro-Se
Appellant
PO Box 833688
Richardson, Texas 75083
214-477-9288
ORAL ARGUMENT REQUESTED
•
IDENTITY OF PARTIES AND COUNSEL
Plaintiff/Appellant/Petitioner
Eric Drake
Pro-Se
P.O. Box 833688
Richardson, Texas 75083
(214) 477-9288
Defendants/Appellee/Respondents
Seanna Willing
Scot Graydon
300West 15th Street, Ste 2
Austin, Texas 78701
512-475-4413
David Harris
Carl Ginsberg
300West 15™ Street, Ste 2
Austin, Texas 78701
Telephone: 512-475-4413
Kristina Kastl
Kastl Law P.C.
4144 N. Central Expressway
Ste 300, Dallas, Texas 75204
Telephone: 214-821-0230
Frank Waite
Vikki Ogden
411 Elm Street, Ste 500
Dallas, Texas 75202
Telephone: 214-653-7568
STATEMENT REGARDING ORAL ARGUMENT
Appellant has requested oral argument pursuant to the appeal filed
herein. The Court should grant oral argument for the following reasons:
a). Oral argument would give the Court a more complete
understanding of the facts presented in this appeal. See Tex. R. App. P.
39.1(c). This case is comprised ofseveral issues: 1. Issues concerning if an
order is obtained by fraud or perjury should it not be vacated. 2. Abuse of
discretion by the trial court and failure of the trial court to follow TRCP
recusal procedure 18a and 18b. 3. If there is a pending recusal motion filed
by a party to a cause ofaction, whether or not a visiting judge can hear the
case and sign orders before the recusal is properly adjudicated and disposed
ofby the proper judge. 4. Whether Appellee Seanna Willing proved that the
Appellant Eric Drake had no reasonable probability of success against her
and ifMs. Willing immunity prevented the Appellant from suing her.
b). Oral argument would also allow the Court to better analyze the
legal issues presented inthis appeal. Oral argument would allow the Court to
hear from bothsides of these issues and articulation of the statutes.
c). This appeal would benefit from oral argument and significantly
aid the Court in deciding this case. See Tex. R. App. P. 38.1(e), 39.1(d).
ii
TABLE OF CONTENTS
Page
IDENTITY OF PARTIES AND COUNSEL i
STATEMENT REGARDING ORAL ARGUMENT ii
TABLE OF CONTENTS Hi
ISSUES PRESENTED iii
INDEX OF AUTHORITIES ix
STATEMENT OF FACTS 6
ISSUES PRESENTED FOR REVIEW
ISSUE ONE
Whether or not the August 19, 2014 order signed by Judge Charles Ramsay
is valid, and whether or not Judge Ramsay should had recused himself from
hearing the August 19, 2014 hearing to declare the Appellant a vexatious
litigant.
ISSUE TWO
Whether or not Seanna Willing failed to prove that the Appellant could not
prevail against her pursuant to the evidence that she submitted to the trial
court on August 19, 2014. Trial Court abused its discretion by finding that
Appellant had no reasonable probability ofprevailing.
• • •
in
ISSUE THREE
Whether or not Warren Vavra had the proper legal authority to appoint
Judge Charles Ramsay to rule on Seanna Willing August 19,2014 hearing.
ISSUE FOUR
Whether or not Judge David Phillips and Judge Stephen Yelenosky orders of
recusals and referrals should be vacated.
ISSUE FIVE
Whether or not the trial court complied with Chapter 11 of the Tex. Civ. Prac.
& Rem Code, Rule 18a and 18b of the Tex. R. Civ. Prac, Rule 18a and 18b
of the Texas R. Civ. Procedure and other state laws and statutes.
ISSUE SIX
Whether or not the trial court abused its discretion when the court continued
to hear Appellees Seanna Willing Motion to Declare the Appellant as a
Vexatious Litigate in light of the fact that Judge Ramsay did not have the
authority or jurisdiction to preside over Appellees Willing motion to declare
him a vexatious litigant.
ISSUE SEVEN
Whether or not the trial court abused its discretion in signing the August 19,
2014 order declaring the Appellant as a vexatious litigant was obtained by and
through fraud, deception and perjury by Scot Graydon an assistant attorney
general.
vi
ISSUE EIGHT
Whether or not the trial court abused its discretion and erred when the court
continued to hear Appellees Seanna Willing Motion to Declare the
Appellant as a Vexatious Litigate even after Appellant objected to Judge
Ramsay of due process violations and violations under Chapter 11 of the
Texas Civil Prac. & Remedies Code.
ISSUE NINE
Whether or not the trial court abused its discretion in signing the August 19,
2014 order declaring Appellant vexatious because there was a pending
motion for recusal filed by the Appellant motion to recuse had not been
referred to the administrative law judge and ruled on as required by the Tex.
Rules of Procedure.
ISSUE TEN
Whether or not the trial court abused its discretion in signing the August 19,
2014 order declaring Appellant vexatious because Appellee Willing's
motion to declare Drakeas a vexatious litigant was procedurally defective.
ISSUE ELEVEN
Whether or not the trial court erred and abused its discretion in not ruling on
AppelleeWilling's pleato jurisdiction, or dismissing Willing as a defendant,
and allowing Willing to file affirmative action when claiming immunity.
Issue One:
The order signed by Judge Charles Ramsay is not valid. Appellant objected
to Judge Ramasy appointment on the day of the hearing, thus he should
have recused himself from hearing the August 19,2014 hearing 16
Issue Two:
Appellee Seanna Willing failed to prove by and through evidence submitted
to the trial court that was entered into evidence that the Appellant could not
prevail against her at the August 19,2014 hearing 19
Issue Three:
Warren Vavra did not have the legal authority to appoint Judge Charles
Ramsay to hear the August 19,2014 hearing 28
Issue Four:
Judges David Phillips and Stephen Yelenosky orders of recusal and referral
should be vacated 30
Issue Five:
The trial court failed to comply with Chapter 11 of the Tex. Civ. Prac. &
Rem Code, Rule 18a and 18b of the Texas Rule of Civil Procedure, and
other state laws and statutes 34
vi
Issue Six:
Trial court abused its discretion when the court continued to hear
Appellees Seanna Willing Motion to Declare the Appellant as a
Vexatious Litigate in light of the fact that Judge Ramsay did not have
the authority or jurisdiction to preside over Appellees Willing motion
to declare him a vexatious litigant 52
Issue Seven:
The August 19, 2014 order declaring the Appellant as a vexatious litigant
was obtained by and through fraud, deception and perjury by Scot Graydon
an assistant attorney general 54
Issue Eight:
Trial court abused its discretion when the court continued to hear
Appellees Seanna Willing Motion to Declare the Appellant as a
Vexatious Litigate even after Appellant objected to Judge Ramsay of
due process violations and violations under Chapter 11 of the Texas
Civil Prac. & Remedies Code 61
Issue Nine:
Trial court abused its discretion in signing the August 19, 2014 order
declaring Appellant vexatious because the trial court district judges
had not responded or acted on Appellees jurisdictional issues or
Appellant's special exceptions prior to assigning Appellee Willing
motion to declare Drake a vexatious litigant and prior to actually
signing ofthe motion 64
vii
Issue Ten:
Trial court abused its discretion in signing the August 19, 2014 order
declaring Appellant vexatious because Appellee Willing's motion to
declare Drake as a vexatious litigant was procedurally defective .. 68
Issue Eleven:
The trial court erred and abused its discretion in failing to rule on
Appellee Willing's plea to jurisdiction, before allowing Willing to file
affirmative action when claiming immunity. If the trial court accepted
Willing's immumty, it should have dismissed Willing as a defendant.
But Appellee Seanna Willing's alleged immunity did not apply... 73
STATEMENT OF THE CASE 1
STATEMENT OF FACTS 6
ARGUMENT 14
CONCLUSION 82
CERTIFICATE OF SERVICE 84
CERTIFICATE OF COMPLIANCE 85
APPENDIX 86
viii
INDEX OF AUTHORITIES
Cases Page
Mitchell Energy Corp. v. Ashworth
943 S.W.2d 436,438 (Tex. 1997) 16, 17,18
In re Union Pacific Resources Co..
m
969 S.W.2d 427,428 (Tex. 1998) 17,46
Federal Sign v. Texas S. Univ..
951 S.W.2d401,405 (Tex. 1997) 75
In re Perritt.
992 S.W.2d 444; 1999 Tex. Lexis 42 Tex. Sup. J. 574 18
IT-Dav.
74 S.W.3d at 855 75
Tex. Educ. Agency v. Leeper.
893 S.W.2d 432, 37Tex. Sup. Ct. J. 968 (Tex. 1994) 75
Printing Indus..
600 S.W.2d at 265-66 75
Texas Workers' Compensation Comm'n v. Garcia,
862 S.W.2d 61, 72 (Tex. App.-San Antonio 1993) 75
IX
INDEX OF AUTHORITIES
Cases Page
Browning v. Prostok
165 S.W.3d 336,346 (Tex. 2005) 52
Austin Indep. Sch. Dist. v. Sierra Club,
5 S.W.2d 878, 881 (Tex. 1973) 52
Easterline v. Bean,
121 Tex. 327,49 S.W.2d427,429 (1932) 53
Mapco. Inc. v. Forrest
795 S.W.2d 700, 703 (Tex. 1990) 53
Jeter v. McGraw.
218 S.W.3d 850, 853 (Tex. App.-Beaumont 2007, pet. denied) 53
Tex. Ass'n of Bus, v. Tex. Air Control Bd..
852 S.W.2d440,445 (Tex. 1993) 53
INDEX OF AUTHORITIES
Cases Page
Fed. Underwriters Exch. v. Pugh.
141 Tex. 539,174 S.W.2d 598, 600 (1943) 53
In the Guardianship of Erickson.
208 S.W.3d 737, 740 (Tex. App.-Texarkana 2006, orig. proceeding)
53
In the Estate of Bean,
120 S.W.3d 914,919 (Tex. App.-Texarkana 2003) 53
Devoil v. State of Texas.
155 S.W.3d 498; 2004 Tex.App. Lexis 10473 19, 61
Drake v. Andrews.
14,20,23,26, 51
XI
INDEX OF AUTHORITIES
Cases Page
In re Complaint on Judicial Misconduct.
U.S. Court of Appeal for the 9th Cir., 647 F.3d 1181; 2011 U.S. Lexis
10438 22
In re Norman.
S.W.3d 858, 860 (Tex. App.- Houston [14th Dist.] 2006, orig.
proceeding) 35
Norman.
191 S.W.3d at 861 38,41
Brousseau v. Ranzau.
911 S.W.2d at 892 38
Greenberg. Benson. Fisk & Fielder v. Howell.
685 S.W.2d 694, 695 (Tex. App.~ Dallasl984) 47
xn
INDEX OF AUTHORITIES
Cases Page
Texas State Employees Umon/CWA Local 6184 v. Texas Workforce.
No. 3-99-171-CV, slip op. at 5 75
Lamberti v. Tschoepe.
776 S.W.2d 651, 652 (Tex. App.-Dallas 1989, orig. proceeding) . 48
McLeod v. Harris.
S.W.2d at 773 28,40,52
In re Kiefer.
No. 05-10-00452-CV, 2010 Tex. App. LEXIS 4268, 2010 WL
2220588 41,47
In re Healthmark Partners. L.L.C..
14-04-00743-CV, 2004 Tex. App. LEXIS 7636, 2004 WL 1899953,
(Tex. App.—Houston [14th Dist.] Aug. 26,2004, orig 41
Univ. of Tex. Med. Sch. at Houston v. Than.
901 S.W.2d 926,929, 38 Tex. Sup. Ct. J. 910 (Tex. 1995) 75
xui
INDEX OF AUTHORITIES
Cases Page
In re Rio Grande Valley Gas Co..
987 S.W.2d 167, 179-80 (Tex. App.—Corpus Christi 1999, orig.
proceeding) 41,50
Arnold v. State.
853 S.W.2d 543, 544 (Tex. Crim. App. 1993 41
Ex parte Sinegar.
324 S.W.3d 578,2010 WL 4320399, (Tex. Crim. App. 2010 41
In re Prudential.
148 S.W.3d at 135 42
Bruno v. State.
916 S.W.2d 4, 7 (Tex. App.—Houston [14th Dist] 1995, no pet). 43
Goss v. Lopez.
419 U.S. 565, 574,95 S. Ct. 729, 736,42 L. Ed. 2d 725 (1975)) . 75
State v. Benavides.
772 S.W.2d 271,273 (Tex. App.—Corpus Christi 1989) 75
1VX
INDEX OF AUTHORITIES
Cases Page
In re Richard Castillo.
1998 Tex. App. El Paso, Lexis 2473 43
Douglas v. American Title Co..
(App. [1st Dist]), 2006,196 S.W.3d 876 14,26
Mullins v. Ortiz.
(App. [lOthDist], 2009, WL 2264347 14
Martin v. Svkes.
25 Tex. Supp., 198 55
McMurray v. McMurrav.
67 Tex. 665; 4 S.W.357; 1887 Tex. Lexis 943 56
Heath et al v. Lavne et al.
Supreme Court, 62 Tex. 686; 1884 Tex. Lexis 312 56
vx
INDEX OF AUTHORITIES
Cases Page
Lee v. Killian.
761 S.W.2d 139; 1988 Tex. App. [2nd] Lexis 3173 56
Green v. Chandler.
25 Tex. 148 57
History Co. v. Flint 4 WiUson.
App. §224,4 Tex. Civ. Cas. 364,15 S.W. 912 57
Drinkard v. Ingram.
2 Tex. 650, 73 Am. Dec. 250 57
Johnston v. Loop.
2 Tex. 331 57
Bankers v. Calhoun.
(Tex. Civ. App.) 209 S.W. 826 57
xvi
INDEX OF AUTHORITIES
Cases Page
Walling v. Metcalfe.
863 S.W.2d 56, 57,37 Tex. Sup. Ct. J. 18 (Tex. 1993) 56
Stanfield v. O'Bovle.
462 S.W.2d 270,272 (Tex. 1971) 58
Stone v. Williams.
358 S.W.2d 151 (Tex. Civ. App.—Houston 1962) 58
Stephens v. Turtle Creek Apartments. Ltd..
875 S.W.2d 25, 26 (Tex. App—Houston [14th Dist.] 1994, no writ).
69
Texas Dep't of Parks & Wildlife v. Miranda.
331 S.W. 3d 217,226 (Tex. 2004) 65
University of Tex. V. Poindexter.
306 S.W.3d 798, 806-07 (Tex. App.—Austin 2009, no pet.).... 65
xvn
Cases Page
Cameron v. Children's Hosp. Med.. Ctr..
131 F.3d 1167,1170(6thCir. 1997)) 65
Martin v. National Instruments Corp..
Court of Appeals, [3rd Dist.] 2013 Tex. App. Lexis 7021 65
Venable v. Sherbet.
Court of Appeals, [5th Dist.] 365 S.W.3d 359; 2010 Tex. App. Lexis
9083 66
City of Austin v. Savetownlake.Org.»x
Court of Appeals of Texas, [3rd Dist.] Austin 2008 Tex. App. Lexis
6471 66
Amir-Sharif v. Quick Trip Corp..
(App. [5th Dist]) 2013,416 S.W.3d 914 25, 26, 51, 62
In re Guilbot
2009 (Tex. App.—Houston [14th Dist.] no pet) 32,43
Wanzer v. Garcia.
2009, (Tex. App. [4th Dist] 299 S.W.3d 821 14
XVIU
City of Friendswood v. Registered Nurse Care Home.
965 S.W.2d 705, 707 (Tex. App.-Houston [1st Dist] 1998)... 75
Brown v. Ke Ping Xie.
260 S.W.3d 118, 122 (Tex. App.-Houston [1st Dist] 2008, pet.
denied) 75
STATUTES
Tex. R. Civ. P., 18a and 18b xix, xxii, 3, 15,29, 30, 34, 35, 37, 38,
39,40,43,44,45,47,48,49
Article V, Section 11 ofthe Texas Constitution 22
Tex. Gov't Code Ann. § 74.053(b) (1998) 17,18, 28,29,40, 51
Chapter 11 ofthe Tex. Civ. Prac. & Rem. Code .. xix, xxii, 11, 16, 18,20
23,24,27,28,29, 30, 31, 32, 33, 34, 35,36,37, 38, 39, 58
Tex. Gov't Code Ann. § 25.00255(f) 37
The Uniform Declaratory Judgment Act (UDJA) 76
U.S. CONST, amend. XIV 76
TEX. CONST. Art. I, § 19 75
42 U.S.C. 1983 73
ixx
TO THE HONORABLE COURT OF APPEALS:
Now comes, Eric Drake (Drake), Appellant, and files this his
Appellant's Brief and would show:
There is only one volume of Clerk's Record in this appeal. Appellant
shall cite to the Clerk's Record as (CR) followed by the number of the
page(s) assigned by the Clerk. In addition, Appellant shall cite to the
Recorders Record as (RR) followed by the number of the page(s) assigned
by the Clerk.
xx
APPELLANT'S BRIEF
To the Honorable Justices of the Third Court of Appeals:
Appellant, Eric Drake ("Drake"), submits his Appellant's Brief.
STATEMENT OF THE CASE
TO THE HONORABLE JUSTICES OF SAID COURT:
Appellant filed suit against Kastl Law Firm, Carl Ginsberg, Seanna
Willings, and Vikki Ogden alleging the following: Against Kastl Law Firm:
conspiracy, malpractice, common law fraud, fraud by nondisclosure,
negligent misrepresentation, breach of contract, breach of standard of care,
violations of the DTPA, and Unjust Enrichment. Appellant alleged against
Vikki Ogden the following: Breach of Standard of Care, Conspiracy,
Negligent Misrepresentation, and Fraud by Nondisclosure and Common-
Law fraud. Appellant requested injunctive and declaratory relief form Carl
Ginsberg, Court Reporters Certification Board, and Seanna Willings.
The trial court judges conspired together to deny Appellant Motion to
Compel. Appellant filed a motion to recuse all of the judges because he
believed that there was no possibility in obtaining a fair hearing by any of
1
the trial court district judges. Drake filed a motion for nonsuit to escape the
emblematically thugs in black robes who have used their judicial powers to
rule in favor for white attorneys or Austin's AG in Drake suit. Appellee
Willing filed a motion to declare Appellant a vexatious litigant. Appellant
arrived at the Travis County court believing that his case was nonsuited to
obtain a copy of the document only to discover that Seanna Willing
demanded a hearing on their motion to declare Drake as a vexatious litigant.
Warren Vavra appointed a visiting judge (Judge Strauss) whom the
Appellant objected to and then appointed another visiting judge (Charles
Ramsay) whom the Appellant likewise objected to but Judge Ramsay
refused to recuse himself and heard Seanna Willings motion.
On August 19, 2014, even though Appellant Drake objected to
Ramsay's he continued to preside over Seanna Willing's wrongful actions to
declare Appellant Drake as a vexatious litigate. Judge Charles Ramsay does
not qualify as a retired judge but as a former judge. His appointment was in
error because none of the judges that the Appellant recused had acted on
their recusals or referrals by the time Ramsay was appointed and ruled.
Appellant filed a motion to recuse all of the district judges in Travis
County because ofunfairness that he received when three judges conspired
together to have an order signed by one of the defendants dismissing his
motion to compel hearing on August 7, 2014. None of the judges responded
to Appellant's motion to recuse, they did not recuse or refer.
On August 19, 2014 a district judge signed a referral, pursuant to
Drake's Motion to Recuse, but it came too late after Judge Ramsay had been
wrongfully appointed to hear Appellees motion to declare Appellant as a
vexatious litigate and had ruled on the motion. Defendant's motions to quash
depositions and subpoenas to testify at the hearing were not ruled on.
Appellant has a right to have witnesses at Willing's hearing to declare him
vexatious. Ramsay violated Drake's due process rights, and he did so
knowingly because Drake informed Ramsay ofthese violations.
Trial court district judges and Ramsay violated Tex. R. Civ. P. 18a
and 18b, and Chapter 11 of the Texas Civ. Prac. Rem. & Code. Judge
Ramsay granted Appellee Motion to Declare Appellant as a vexatious
litigate in light of all of the aforementioned violations, and Signed and Enter
the Order without having a hearing on Drake's motion to recuse, or
defendant's motions to transfer or having a ruling on the motions to transfer,
or defendant's motion to quash or without having a hearing on defendant's
motion to transfer, without having authority to hear Appellees motion
because he was not properly appointed or assigned, did not have the right to
refuse Drake's objection of his presiding and hearing Appellees Motion to
Declare Appellant as a vexatious litigant.
On August 19, 2014, after an evidentiary hearing during which
Appellant was prohibited from securing the witnesses he had subpoenaed,
and in light of the fact that Appellee Seanna Willing did not submit to the
trial court sufficient evidence which would have proved that there was not a
reasonable probability that Appellant would not have been successful against
herself and each defendant in Drake's suit, being that Appellant was asking
for an injunction and declaratory judgment against Appellee Willing and
Ginsberg, and Appellee Seanna Willing failed to prove that the Appellant
would not be successful against her. Scot Graydon only offered hearsay
evidence to the trial court. Judge Ramsay wrongfully granted Appellees
Seanna Willing Motion to Declared Appellant as a Vexatious Litigate.
On September 15, 2014, Appellant filed a Mandamus with this Court,
but the Court denied Drake's mandamus wrongfully. Appellant then filed a
motion for rehearing and a motion to recuse two of the justices on
September 26.2014. This Court also overruled those motions wrongfully.
Appellant filed a Mandamus with the Texas Supreme Court, however, the
4
Supreme Court of Texas would not accept Appellant's mandamus for the
reason that he had not obtained permission with the local administrative
judge. Appellant attempted to obtain permission but Judge Lora Livingston,
who is the Travis County Local Administrative Judge refused to respond to
the Appellant's requests. Judges Charles Ramsay and Lora Livingston and
other trial court judges in Travis County will become defendants in an
upcoming federal lawsuit. Moreover, no administrative judge ruled on the
"late" referrals or recusals filed by one district judge and one county judge.
This case has been a clear violation of the Appellant's rights and of Texas
law, due process, the Texas Constitution, and federal laws.
n.
Statement of Facts
A. Pre-Trial History of this litigation.
Brief History of Events Prior to Filing Suit in Travis County:
A. On December 20, 2013, Appellant filed suit against Kastl Law PC,
Kristina Kastl, (the owner of Kastl Law) and Vikki Ogden. Appellant
alleged a malpractice claim against Kastl Law and Kristina Kastl and
that Vikki Ogden, court reporter for the County Court of Law Number
5, conspired with Kastl to change a transcript where Kastl perjured
herself under oath several times, thus putting her law license at risk.
Appellant filed discovery seeking to depose Kristina Kastl, and she
filed a motion to quash. Appellant filed a motion to compel January
21, 2014. Judge Ginsberg canceled Appellant's motion to compel
without cause on January 3, 2014. However, after the judge dismissed
the case an order appeared in the file stating, "the motion was filed by
submission," but it wasn't because Appellant had secured a court date
for the hearing. Thereafter, the judge somehow finds an old order and
declares Appellant as a vexatious litigate without a hearing,
demanding that Appellant obtain permission. Judge Carl Ginsberg
finally dismisses Appellant lawsuit on March 26, 2014 and deemed
Appellant as a vexatious litigate and delivered an order to the clerks at
the Dallas County courts. However, judge Ginsberg's order came too
late and is considered moot because Appellant took immediate action
to preserve his suit against Kastl and Ogden by filing a motion for
nonsuit.
Filing Suit in Travis County;
B. On April 28, 2014, Appellant filed suit in Travis County against
several defendants, some of which he filed against in Dallas County
and they are: Judge Carl Ginsberg, Kristina Kastl, Kastl Law firm,
Vikki Ogden, Court Reporters, and Seanna Willing. Again, Appellant
moved forward with discovery and the defendants (each and every
one of the defendants) filed motions to quash, motion to transfer, and
notices to the trial court that Appellant was an alleged vexatious
litigate.
C. On June 17,2014, Defendant Carl Ginsberg files a motion to transfer
and a motion to declare Appellant as a vexatious litigate.
D. On July 3, 2014, Defendant Vikki Ogden filed a motion to transfer
and notice ofvexatious litigate order.
E. On July 11, 2014, Defendant Kastl Law PC filed a motion to transfer
and notice of vexatious litigate order.
F. On July 15, 2014, Defendant Carl Ginsberg filed a motion to quash
deposition and protection.
G. On July 16,2014, Defendant Kastl filed a motion to quash deposition
and protection.
H. On July 16,2014, Appellant filed a motion to continue to obtain limit
discovery to properly respond to defendant's motions to transfer.
I. On July 16,2014, Appellant filed a motion for evidentiary hearing.
J. On July 17, 2014, Defendant Vikki Ogden filed a motion to quash
deposition.
K. On July 24, 2014, Appellant filed a motion to compel to try and
obtain limited discovery in the Travis County lawsuit. Appellant set a
hearing on matter and on August 7, 2014, Appellant appeared in
Travis County for the hearing. Assistant attorney general Scot
Graydon quarterbacked getting an order signed to deny the
Appellant's motion to compel that Kastl had presented to the trial
court. Assistant attorney general Scot Graydon instructed Kastl's
employee to get the order signed by judge Orlinda Naranjo while
8
Appellant was waiting in judge Amy Meachum's court for his motion
to compel to be heard. Thereafter judge Tim Sulak advised Appellant
that he couldn't hear his motion to compel because of an order that
was just signed.
L. On August 7, 2014, Appellant filed a motion to recuse all of the
district judges as a result of judges Meachum, Sulak and Naranjo's
behavior, Appellant understood that it would be impossible to obtain
an impartial hearing or trial when judges conspire together to defeat a
motion. This action by the district judges was similar to judge
Ginsberg actions in Dallas County, dismissing his motion to compel
without a hearing.
M.On August 19, 2014, Appellant was at the court to get a copy of an
order of his motion for nonsuit. To Appellant's surprise, Appellee
Willing motion to declare him as a vexatious litigate was still going to
be heard because Scot Graydon demanded it, though the judges
opinion that the lawsuit was dismissed. Appellant objected to the
assignment of judges, and objected to the proceeding but the trial
court moved forward with the hearing. During the hearing, Scot
Graydon lied to the trial court claiming that he had conference with
Appellant regarding his motion to declare him as a vexatious litigant.
But Scot Graydon did not confer with Appellant and violated local
rules. Ramsay continued to hear the motion in light of the fact that
proper procedure had not been observed. After Appellant filed his
motion to recuse, even if the recusal is defective, it must be referred or
the judge must recuse. The judge cannot do nothing. Yet this is what
all of he judges did in Travis County—nothing. On August 19, 2014,
a district judge filed into the trial court's record a referral and a
County judge a recusal, but these orders came too late and was
defective. Judges filing a recusal and referral after the Ramsay had
been assigned will not cure the blatant disregard for proper procedure
and ethics by the judges in Travis County. Moreover, the defendant's
motions to transfer had not been ruled on or decided at the time the
Ramsay ruled on Appellee Willing motion to declare Appellant as a
vexatious litigant. The defendant's motions to quash had not been
ruled on or decided at the time the Ramsay ruled on Appellee Willing
motion. The defendant's motions in objection to jurisdiction or plea to
jurisdiction had not been ruled on or decided at the time the Ramsay
ruled on Appellee Willing motion to declare Appellant as a vexatious
10
litigant. Ramsay could not had been properly assigned because the
court administrator, Warren Vavra has no authority to assign judges,
but that authority comes from the administrative law judge. Warren
Vavra is not a judge. Furthermore, the judges the Appellant recused
had to act within three (3) days as the Tex. R. Civ. P. Appellant filed
his motion to recuse on August 7, 2014 and there was no entry in the
record of a referral or recusal of any of the judges on by mid-
afternoon on August 19, 2014, until the Appellant argued that the
assignment ofthe Ramsay was improper because the judges had to act
on Appellant's motion to recuse. Appellant obtained a certified copy
of the docket sheet to make sure of the record. Ramsay assignment
was during the period when no judge had acted on Appellant's motion
to recuse, thus Ramsay had no authority or jurisdiction to hear the
Appellee Willing motion to declare the Appellant as a vexatious
litigant. Thus, Ramsay order signed on August 19, 2014 is therefore
void and should be vacated.
B. Post Judgment.
On August 19, 2014, the trial court signed an order in this matter in
favor ofAppellee. Appellant filed his notice of appeal on September 18,
11
2014 but that document disappeared from the trial court's records. Appellant
properly and timely filed his notice for appeal on September 18, 2014,
however, since his September 18,2014 notice of appeal disappeared and his
September 19, 2014 notice of appeal that he sent by U.S. Mail disappeared
Drake was compelled to filed yet another notice of appeal on October 19,
2014. Appellant believes that someone at Travis County is guilty of federal
violations of mail tampering, interstate conspiracy, and other federal
violations.
On September 15, 2014 Appellant filed his Petition for Writ of
Mandamus. The third court of appeals denied the writ in two days. Appellant
filed a Motion for rehearing and Motion to Recuse two of the justices on
September 26, 2014. Those motions were overruled by the third Court of
appeals. On October 15, 2014 the Appellant filed his Petition for Writ of
Mandamus with the Texas Supreme Court, but the court refused to file the
writ because Appellant had not obtained permission from the administrative
law judge, although Drake tried aggressively to obtain permission. The
result will be a lawsuit against many judges in Travis County, 3rd Court
Appeals justices, newly elected governor, federal judges, and all defendants
in the Travis County original suit, Tex. assist attorney generals and others.
12
STATEMENT OF JURISDICTION
This Court has jurisdiction over this matter pursuant to section 22.221
of the Texas Government Code. TEX. GOV'T CODE ANN. § 22.221
(Vernon 2004).
13
HI.
ARGUMENT
A. Standard of Review
Chapter 11—Texas Civil Practice & Remedies Code.
Court of Appeals review trial court's determination of vexatious
litigant as abuse of discretion. Wanzer v. Garcia (App. [4th Dist.]) 2009,299
S.W.3d 821. Douglas v. American Title Co. (App. [1st Dist], 2006, 196
S.W.3d 876. Mullins v. Ortiz, (App. [10th Dist]), 2009, WL 2264347.
Pursuant to Tex. Civ. Prac. & Rem. Code § 11.054, a court may find a
"plaintiff' as a vexatious litigant if the defendant shows in a seven-year
period immediately preceding the date the defendant makes the motion
under Section 11.051, that plaintiff has commenced, prosecuted, or
maintained in propria persona at least five litigations other than in a small
claims court that have been finally determined adversely to the plaintiff.
However, a defendant must first satisfy the requirement in section 11.054 of
Chapter 11 of the Tex. Civ. Prac. & Rem. Code; by showing there is not a
reasonable probability that the plaintiff will prevail in the litigation. In re
Douglas, Court of Appeals of Tx., [First Dist] Houston, 333 S.W.3d 273;
2010 Tex. App. Lexis 7338; Drake v. Andrews.
14
If a party is claiming immunity, as in Appellee Seanna Willing case,
that immunity is not absolute; not even forjudges.
According to the Supreme Court, a former judge, who is not a retired
judge, is a judge who has not vested under the state judicial retirement
system when she left office.
A trial court abuses its discretion if it acts without reference to any
guiding rules or principles, that is, if the act is arbitrary or unreasonable.
Low v. Henry, 221 S.W.3d 609, 614 (Tex. 2007); Cire V. Cummings, 134
S.W.3d 835, 838-39 (Tex. 2004). A trial court also abuses its discretion by
ruling without supporting evidence. Ford Motor Co. v. Garcia, 363 S.W.3d
573, 578 (Tex. 2012).
B. Standard of Review.
Rule 18a and 18b—Texas Rules of Civil Practice
The denial of a motion to recuse is reviewed under an abuse of
discretion standard. See Tex. R. Civ. P. 18a(f). The standards are set by the
Supreme Court of Texas in Dolgencorp Tex. Inc., v. Lerma, 288 S.W. 3d
922,926 (Tex. 2009).
15
D. Issue One:
The order signed by Judge Charles Ramsay is not valid. Appellant
objected to Judge Ramasy appointment on the day of the hearing,
thus he should have recused himself from hearing the August 19,
2014 hearing.
On August 19, 2014 Appellant objected to Judge Strauss who was
appointed to hear Appellee Willing's motion to declare Appellant as a
vexatious litigant (RR: Vol 1, P: 5, L: 2-11). Thereafter, Warren Vavra,
who had no authority to assign judges, assigned yet again another judge,
[Charles Ramsay] to hear Appellee Willing's motion to declare Appellant as
a vexatious litigant. Drake also objected to Judge Ramsay on the record
(RR: Vol 3 of 4, P: 10, L: 14-25; P: 11, L: 1—25; P: 12, L: 1—23).
Appellant objection to Ramsay before he began presiding over
Willing's motion to declare Appellant as a vexatious litigate. Judge Ramsay
chose to continue to preside over the August 19,2014 motion hearing, rather
than recuse himself (RR: Vol 3 of 4, P: 15, L: 2-3). Moreover, Judge
Ramsay is not considered a "retired judge." A "retired" judge is a judge
receiving an annuity under the Texas Judicial Retirement System. See
Mitchell Energy Corp. v. Ashworth, 943 S.W.2d 436, 438 (Tex. 1997). To
receive such an annuity, a judge must meet requirements about either the
length of service or service plus age. Id. Judge Ramsay is considered as a
16
former judge. According to the Supreme Court, a former judge, is a judge
who has not vested under the state judicial retirement system when she left
office. See Mitchell Energy, 943 S.W.2d at 438-39. Any later-acquired status
will not remove the judge from the category of former judges, i.e, those who
may be removed by objection of either party under Section 74.053(d). Id.
Judge Ramsay was disqualified to proceed over Willing's motion to
declare Appellant vexatious for all the reasons asserted in this brief.
Appellant may raise Ramsay's qualifications for the first time on appeal. In
re DC. Jr., 2010 WL 3718564 (Tex.App.—Amarillo 2010, no pet).
Under the Tex. R. Civ. P. a former judge can be objected to as many
times as a party desires. When the Appellant objected to Judge Ramsay and
he failed to recuse himself or remove himself from presiding over the
Appellees motion to declare the Appellant as a vexatious litigant, the order
signed on August 19, 2014 is void and should be vacated. (CR: Vol. 1 of 1,
P: 547—555). Moreover, the trial court erred in that the Appellant received
no prior notice of Judge Ramsay's appointment before the hearing date.
When a proper objection under section 74.053 is filed, but the
objectionable judge refuses to remove himself from the case, the objecting
party is entitled to appellate relief. See In re Union Pacific Resources Co.,
17
969 S.W.2d 427, 428 (Tex. 1998) (citing Mitchell Energy Corp. v.
Ashworth, 943 S.W.2d 436,440-41; Fry v. Tucker, 146 Tex. 18,202 S.W.2d
218,221(1947)).
Judge Ramsay, who qualifies as an "former judge" was objected to
before he began to hear the Appellees Motion to declare Appellant as a
vexatious litigate, as such he should have recuse himself or removed himself
from presiding over the motion on August 19, 2014. In re Perritt, Supreme
Court ofTexas, 992 S.W.2d 444; 1999 Tex. Lexis 42 Tex. Sup. J. 574.
Section 74.053(d) permits unqualified objections to the assignment of
any former judge, such as the Judge Ramsay. See Mitchell Energy Corp. v.
Ashworth, 943 S.W.2d 436 (Tex. 1997). A judge's status is fixed when a
judge leaves office. Mitchell Energy Corp., 943 S.W.2d at 437. Thus, a
former judge, who accumulates additional service time as a visiting judge
and subsequently retires, does not become a retired judge for purposes of
Section 74.053.
As equally as important: the trial court's record contains no order
from a judge, ordering the assignment of Judge Charles Ramsay to hear
Appellee Willing's motion to declare Appellant a vexatious litigant prior to
the August 19,2014 hearing.
18
E. Issue Two:
Appellee Seanna Willing failed to prove by and through evidence
submitted to the trial courtthat was entered into evidence that the
Appellant could not prevail against her at the August 19, 2014
hearing.
Appellant's cause ofaction against Appellees Seanna Willing was not
based on the same or substantially similar facts, transition, or occurrence,
which is required by section 11.054. Devoil v. State of Texas, 155 S.W.3d
498; 2004 Tex.App. Lexis 10473. Appellee Willing did not establish for the
trial court that Appellant could not prevail in his lawsuit against her. Scot
Graydon, counsel for the Appellees provided no proof that Appellant could
not be successful against Willing. In light ofAppellant's attempts to obtain
limited discovery through depositions and his attempts at subpoenas to have
same witnesses to testify, which the trial court never addressed those issues,
nor did any judge (CR: Vol 1, P: 159—172), CR: Vol 1, P: 206—209),
(CR: Vol 1, P: 245—255), (CR: Vol 1, P: 239—242), (CR: Vol 1, P: 219^
-223). Appellees did not prove that Appellant did not have a reasonable
probability of prevailing; counsel for the Appellee Willing just made the
statement, "Appellant have no probability ofprevailing" to the trial court
without sworn affidavits or proofofany kind which does not satisfy Chapter
19
11 ofthe Tex. Civ. Rem Code, 11.054. Drake vAndrews (RR: Vol 1, P: 5,
L: 2-11) and referred to Willing's immunity. Appellant has incontroverted
proof to offer any trial court that Appellee Willing failed to investigate his
case against Judge Martin Hoffman properly. Considering the fact that the
Appellant was requesting an injunction and declaratory judgment against
Appellee Willing in her official capacity, which is allowed, she horribly
failed to prove the first prong in declaring Appellant a vexatious litigant, as
Andrews did in Drake v. Andrews. But that evidence was prevented from
being offered into evidence because the trial court erred by not addressing
the pending motions to quash that prevented Appellant from obtaining
limited discovery. Appellant also filed suit against Willing as a "person" or
individual capacity and asked for damages. Brown v. Brown.
Scot Graydon advised the trial court that Appellant had already been
declared a vexatious litigant by another court, which is partly true. Mr.
Graydon just failed to inform the trial court that the 5th court ofappeals in
Dallas overturned that order. This failure to be completely truthful wasn't an
error on part of the Appellee Willing or her attorney, but it was to
accomplish their task of labeling Appellant as a vexatious litigant at any
cost, even at the expense oflying, misleading the trial court, and perjury.
20
Defendant Carl Ginsberg, a district judge in Dallas County, denied
Appellant's motion to compel the discovery against Kastl and Ogden. The
judge filed a notice that Appellant was avexatious litigate, and then ordered
Appellant to seek permission before going forward. Thereafter Ginsberg
dismissed Appellant lawsuit against Kastl and Ogden. However, Appellant
Drake dismissed his case before Ginsberg's order (CRr Vol 1, Pt-576-590).
The judge in a lawsuit cannot raise the issues of-whether a "plaintiff" is
vexatious as Ginsberg in Drake's case without holding a hearing. It is the
defendants who must make this motion. Because Ginsberg dismissed
Appellant's case and it was involuntarily done, the dismissal superseded the
vexatious litigate order signed by Ginsberg.
Appellant provided Appellee Willing with uncontroverting evidence
that clearly demonstrated that judge Martin Hoffinan treated the Appellant
differently than he did white attorneys. This evidence was provided to
Appellee Willing inHie^rm of a magnetictape recording—in person. Yet,
Willing made the comment to Appellant with such evidence, "Who could
say a good word about^our character." The Appellant's character-was not
the subject to be scrutinized but it was judge Martin Hoffman's behavior in
the courtroom and his desire to purposely harm the Appellant cases.
21
Appellant filed a motion to recuse and disqualify Hoffman. A hearing
was conducted. And an officer of the court Robert Goodman Jr., testified
that Hoffman was hostile toward Appellant.
The grounds for recusal and disqualifications are set out in Article V,
Section 11 of the Texas Constitution. Disqualrfication in a civil case is
permissible, and required, whenever the judge: 1). Is interested in the
outcome ofthe case. Hoffman ^was not onfy interested in the outcome; he
made sure that the Appellant's cases before him were ruled against the
Appellant. In fact, Hoffman committed a crime in one of the Appellant's
claims against Travelers Insurance Company by facilitating or aiding
obstruction of justice. Hoffman failed to recuse himself for improper
purposes. In re Complaint on Judicial Misconduct, U.S. Court of Appeal for
the 9th Cir., 647 F.3d 1181; 2011 U.S. Lexis 10438. The Appellant's
complaint that he filed with Appellee Wilting contained uncontroverting
evidence; Willing did notflnd itnecessaryto acton Appellant's complaint.
Pursuant ttrChapter 11 of the Tex. Civ. Prac. & Rem. Code, Appellee
Wiiling-failedto ccirrply^whh Section: 11.054. CRITERIA FOR FINDING
PLAINTIFF A VEXATIOUS LITIGANT. A court may find a plaintiff a
vexatious litigant ifthe defendant shows that there is not a reasonable proba-
22
bility that the plaintiff will prevail in the litigation against a "defendant."
Appellee Willing provided sufficient evidence to the trial court that Drake
would not prevail in his suit against her. Willing provided no affidavits, no
sworn statements, and no witness testimony. As explained herein, the
Appellant-was suing Seanna Willing in her official capacity and individual
capacity. Appellee Willing was so focused on Appellant's litigation history
that shetailed to prove the tirst prong under Chapter 11 ofthe Tex. Civ:
Prac. & Rem. Code. Drake v. Andrews.
Notwithstanding, Appellant was not attempting to relitigate any
claims against Appellee Willing, nor was there any proof provided to the
trial court of that fact. Appellee Willing did not appear as a witness against
Appellant to testify, nor did she provide any affidavits, or sworn statements
of any kind to offer the trial court. Willing only advised the trial court that
she had sovereign immunity (RR: Vol 3 of 4, P: 26, L: 23), however, even
judges can be sued and they also enjoy sovereign immunity. This in itself
does not prove that the Appellant did not have the ability to prevail against
Appellee Seanna Willing because Drake-was seeking an injunction against
Appellee Willing. Appellee also failed to show tile trial court by case law
that a person that has sovereign immunity is immune against injunctive
23
or declaratory relief. Similar to the Andrews case, counsel for Willing
focused on Appellant's litigation history, which many of the cases presented
to the trial court had been settled or did not qualify under Chapter 11 of the
litigation history. Appellee Willing failed to prove the first prong under
Chapter 11ofthe Tex. Civ: Prac. & Rem. Code.
Appellant argued to the trial court that because of violations of due
process, he was prevented from proving his case against any of the
defendants (RR: Vol 3 of 4, P: 31, L: 8—43) (RR: Vol 3 of 4, P: 31, L:
23—25, and P: 52, L: 1—9). Appellant makes the same argument before
this Court. Appellant advised the trial court that Appellee Willing failed
procedurally, in that Willing would have to prove that all ofthe defendants
that the Appellate filed suit against were equally frivolous or in this case.
Appellee Willing failed procedurally to bring her motion against Drake.
(RR: Vol 3 of 4, P: 32, L: 14—22), (RR: Vol3 of 4, P: 38, L: 7—«).
Appellantcautioned thetrial courtthat ittailedtorfbllow procedure and the
Texas Rules ofCivil Procedure (RRt Vol 5 of 4, P: -39, Lr 4—17). Appellee
Willing advisethetrial court of a casethatAppellateliled in Dallas County,
DC-13-14911, that the Appellant has already shown was properly dismissed
by Drake before the judges actions (RR: Vol 3 of 4, P: 47, L: 10—19).
24
But as in the Andrews case, the Appellee Willing failed to meet the
first prong. If given the opportunity to orally examine Appellee Seanna
Willing, with the evidence that the Appellant has in his possession, it would
be proven without a doubt that Appellee Willing should not be allowed to
investigate any other complaints filed by the Appellant. This is the reason
why Willing, Kastl, and Ogden filed motions to quash. Uut the trial court
assisted them by conspiring together to block the Appellant from obtaining
discovery by denying Appellant's motion to compel hearing on the day of
the hearing for his motion to compel (CR: Vol 1, P: 219-223), (Vol 2 of 4,
P: 8, L: 10—25, and P: 9, L: 1—20), where the trial court judges conspired
against the Appellant to overcome his pending motion to compel.
When a defendant seeks a vexatious litigant declaration, the plaintiff
may offer evidence to show there is a reasonable probability he will prevail
in the litigation. Amir-Sharifv. Quick Trip Corp., (App. [5th Dist.] 2013,
416 S.W.3d 914. As argued herein, the Appellant was prohibited in
acquiring his witnesses by motions to quash that the trial court never ruled
on before the trial court assigned improperly a visiting judge to hear and
ruled on Appellee Willing motion to declare Drake as a vexatious litigant.
Appellant argued before the trial court that he has been prevented from
25
having his witnesses, which is a due process violation and Drake argues the
same in this Court.(RR: Vol 2 of 4, P: 10. L: 16—21). All ofthe defendants
in the trial court filed motions to quash, which the trial court never address,
though the Appellant sought limited discovery (CR: Vol 2 of 4, P: 234—
244), (CR: Vol 2 of 4, P: 245—255), (CR: Vol 2 of 4, P: 534—543).
As in Drake v. Andrews, Appellee Willing did not offer sufficient
evidence to prove that there was no reasonable probability that Appellant
could not prevail in his lawsuit against her. Drake v. Andrews, (App. [5th
Dist], 2009, 294 S.W.3d3T0. Amir-Sharif v. Quick Trip Corp., (App. [5th
Dist] 2013, 416 S.W.3d 914. Appellant also argued that Appellee Willing
failed to prove that Appellant filed 5 (five) qualifying lawsuits that were
ruled against him. Douglas v. American Title Co. (App. [1st Dist.], 2006,
196 S.W.3d 876. Appellant filed a motion to vacate vexatious order (CR:
Vol 1, P: 608—614). "Defendant offered insufficient evidence that there
was no reasonable probability plaintiff could prevail in lawsuit, as required
to support dismissal of suit on ground that plaintiff was vexatious litigant.
Drake v. Andrews (App.5 Dist. 2009) 294 S.W.3d 370."
When there are multiple defendants in a litigation, the defendant who
is bringing the motion to declare the "plaintiff" vexatious, must either apply
26
proper procedure or prove there is not a reasonable probability that the
"plaintiff" would prevail against all defendants in the litigation—not just a
select defendant in the lawsuit. Appellee Seanna Willing failed to do either.
Plaintiff does not have to show that his claims against any of the
defendants can be proven beyond a reasonable doubt, he only has to prove
that his claims are not frivolous to evade being labeled as a vexatious
litigant, which is a lesser standard than a preponderance ofevidence.
However, Appellee Seanna Willing must prove that Drake's litigation
is frivolous as a whole. However, Appellee Willing at the August 19, 2014
hearing was unable to prove this point when Drake brought this to the trial
court's attention.
Scot Graydon perjured himself multiple times to the trial court by
stating that he conference with the Appellant. (RR: Vol 3 of 4, P: 45, L: 1—
14). Quite the opposite, Appellant swears under the penalty of perjury that
Scot Graydon did not conference with him. See Exhibits [Appellant's
Affidavit] attached to Appellant's Third Amended Response to Vexatious
Litigant Order and Appellant's Motion to Vacate Vexatious Litigant Order
(CR: Vol 1, P: 616-618),(CR: Vol 1, P: 624—626).
27
F. Issue Three:
Warren Vavra did not have the legal authority to appoint Judge
Charles Ramsay to hear the August 19, 2014 hearing
Appellant objected to Warren Vavra in the appointment of a visiting
judge, (Charles Ramsay) because Mr. Vavra is not a judge and pursuant to
the Tex. R. Civ. Practice he does not have the authority to appoint a judge in
the context of the Appellant's circumstances. Warren Vavra, is the trial
court's administrator, who isn't the regional presiding judge, nevertheless,
he assigned Judge Charles Ramsay to hear and rule on Appellees Willing's
Motion to Declare Appellant as a vexatious litigate, which was error.
In McLeodv. Harris, 582 S.W.2d 772 (Tex. 1979), the Supreme Court
interpreted a statute, subsequently codified as section 74.059 of the
Government Code, which provided that a "district judge shall request the
presiding judge to assign a judge of the administrative district to hear any
motions to recuse such district judge from a case pending in his court." TEX.
GOVT CODE ANN. § 74.059 (Vernon 1988) (formerly TEX. REV. CIV.
STAT. ANN. art. 200a, § 6). Warren Vavra is not a judge nor is Mr. Vavra
the administrative judge and thus the assignment of Charles Ramsay was a
procedural error and any judgments or orders made by that judge should be
28
vacated. The presiding judge of the administrative region or the Chief
Justice of the Tex. Sup makes assignments of judges. Court. Gov't Code
§74.056(c); Chandler v. Chandler, 991 S.W.2d 367, 379 (Tex. App.—El
Paso 1999).
Mr. Vavra advised Mr. Graydon (Willing lawyer) and the Appellant
that the court had signed his motion of nonsuit, on August 19, 2014.
Therefore, the trial court failed to follow the TRCP in many ways. Appellee
Willing cannot overcome violating the Tex. R. Civ. P., in order to try and
declare the Appellate as being vexatious. At the time Vavra assigned Judge
Strauss and Judge Ramsay, he was fully aware that the Appellant had filed
recusals against all of the district judges and that the Appellant's recusal
motion had not been heard. Mr. Vavra was fully aware that Appellant filed a
motion to recuse all of the district judges in Travis County. And Vavra
admitted to Appellant that Willing's motion wasn't on the docket on August
19,2014.
Tex. R. Civ. P. 18a; see also Tex. Gov't Code Ann. § 74.059(c)(3)
(West 2005) (juctee must "request the presiding judge to assign another
judge to hear a motion relating to the recusal of the judge from a case
pending in his court").
29
G. Issue Four:
Judges David Phillips and Stephen Yelenosky orders of recusal
and referral should be vacated
The August 19, 2014 order is void because even though Judges
Phillips and Judge Yelenosky filed sham orders to attempt to make it appear
as if they were complying with Tex. R. Civ. P., 18a; Judge Phillips did not
indicate if he was recusing himself or refusing to recuse himself and
referring—in other words, the order he signed is as if he never signed the
order if the ORDER itself does not indicate what the judges position is on
the matter. The Tex. R. Civ. P., clearly set forth, a judge must either recuse
or refer. Moreover, Phillips order to recuse was not referred to the judge of
the administrative judicial district, as Rule 18a requires. And because
Phillips failed to refer his recusal, procedurally his August 19, 2014 order is
invalid, defective. But more importantly Phillips order was signed too late
and should be vacated.
Besides, Judge Phillips lacked legal basis for assuming jurisdiction
over a motion seeking recusal of a district judge even though he was named
in Appellant's recusal motion. Neither the order of recusal or order of
referral that was signed on August 19,2014 was signed timely. Both orders
30
were signed after the visiting judge; Charles Ramsay had already been
wrongfully assigned to hear Appellee Willing's motion to declare Appellant
vexatious, and after the trial court had signed the order declaring Appellant
as a vexatious litigant.
The Appellant argued in open court of the many procedural errors of
not responding to his motion to recuse. (RR: Vol 3 of 4, P: 24, L: 1&-25; P:
38, L: 7—12; P: 40, L: 10—16; P: 12, L: 8—23).
An order that is signed after the harm and error has been carried out is
an order that is void. A court administrator does not have the judicial power
to assign judges pursuant to Tex. R. Civ. P., or Tex. Gov't Code Ann.,
consequently the visiting judge, Charles Ramsay was not properly assigned
to hear Appellees Willing's motion to declare the Appellant as a vexatious
litigant, and therefore the order should be vacated.
Therefore, the August 19, 2014 order declaring Appellant as a
vexatious litigate is void, and an appeal is the appropriate remedy to address
these void orders. The Appellant filed a mandamus, but this Court denied the
mandamus without providing a reason for its denial.
It is Appellant's legal opinion, and pursuant to case law cited in this
briefherein that the following orders are void: 1). The order ofreferral by
31
Judge Yelenosky); 2). The order of recusal by Judge Phillips; and 3). The
order declaring the Appellant as a vexatious litigate signed by the visiting
judge Charles Ramsay.
All of these orders should be vacated by the Court and considered
void. (CR: Vol 1 of 1, P: 608—623); (CR: Vol 1 of 1, P: 545); (CR: Vol 1,
P: 559); (CR: Vol 1 of 1, P: 546); (CR: Vol of 1, 547—555). The August
19, 2014 orders cited herein are void and should be vacated because the
visiting judge signed the order while the Appellant's motion to recuse was
pending before the trial court. Victor Enterprises, Inc. v. Holland, (Tex.
App.—Dallas 2013); In re Guilbot.
Likewise, on August 14, 2014 the trial court signed an order of
nonsuit on Appellant's claims against defendants Carl Ginsberg, Kristina
Kastl, Vikki Ogden, and Seanna Willing. The trial court made numerous
procedure errors, which were derived by the trial court's judge's intentional
and reckless desires to supersede Texas law and the Texas Code of Civil
Procedure. Even the simplest orders signed by the trial court should be
voided. There have been an overwhelming number of errors and conspirator
acts by several judges in Travis County. Victor v. Enterprises, Inc. v.
Holland.
32
The sham orders by Judges David Phillips and Stephen Yelenosky are
a good example of how these judges circumvent the law. But they have no
fear because Seanna Willing, who also committed fraud with her counsel
Scot Graydon an assistant attorney general, is the Travis County's judge's
overseer ofjudicial misconduct.
The judges in Travis County fully is aware that the possibility of
being held account for their actions are none—as long as the person filing
the compliant is nonwhite and pro se.
33
H. Issue Five:
The trial court failed to comply with Chapter 11 of the Tex. Civ.
Prac. & Rem Code, Rule 18a and 18b of the Texas Rule of Civil
Procedure, and other state laws and statutes
The trial court failed to comply with the very statute that it declared
Appellant as a vexatious litigant. Chapter 11 ofthe Tex. Civ. Prac. & Rem.
Code allows a "plaintiff" to call witnesses in his or her defense. But the
Appellant was prohibited from basic due process rights. The trial court failed
to rule on the defendants motions to quash and Appellant's motion to
compel, and recuse before holding the August 19, 2014 hearing—the trial
court failed to act in accordance with Rule 18a and 18b ofthe Tex. R. Civ.
P., Texas Rules of Evidence, and the Texas and U.S. Constitutions.
1. Texas Rules of Civil Practice 18a and 18b.
Section 18a provides in pertinent part as follows:
§18a
(f) Duties of Respondent Judge; Failure to Comply. (1) Responding to
Motion. Regardless of whether the motion complies with this rule, the
respondent judge, within three business days after the motion is filed,
must either:
(A) sign and file with the clerk an order of recusal; or (B) sign and file
with the clerk an order referring the motion to the regional presiding
judge. (2) Restrictions on Further Action.
(A) Motion Filed Before Evidence Offered at Trial. If a motion is
filed before evidence has been offered at trial, the respondent judge
must take no further action in the case until the motion has been
decided.
34
Denial of a motion to recuse is appealable upon final judgment. Tex.
R. Civ. P. 18a(f). Thus, an Appellant challenging the denial of a recusal
motion ordinarily has an adequate remedy by appeal of the denial of a
motion to recuse. However, in this case the recusal was never denied
because the trial court never acted timey on Appellant's motion to recuse.
Appellate relief is available when a judge violates a mandatory duty to
recuse or refer a motion to recuse. In re Norman, 191 S.W.3d 858, 860
(Tex. App.- Houston [14th Dist.] 2006, orig. proceeding).
On August 7, 2014, Appellant filed a motion to recuse against all of
the district judges in Travis County. This action was taken only after judges
Tim Sulak, Amy Clark Meachum, and Orlinda Naranjo conspired together
with the assistant attorney general Scot Graydon and defendants Kastl and
Ginsberg to deny the Appellant's motion to compel hearing on the day of
Appellant's hearing. It is evident to the Appellate that he cannot obtain a fair
hearing in Travis County.
On July 24, 2014, Appellant filed a motion to compel the defendant's
depositions, which he needed to respond to defendant's motions to transfer,
and notices he was an alleged vexatious litigant. The trial court took no
action regarding Appellant's motion to compel, up and until the date ofthe
35
hearing. While waiting in judge Amy Meachum's court she was given an
order by Kastl and it appears a letter of some kind. Meachum knew that
Kastl was trying to get an order signed on the day of Appellant's compel
hearing to deny the hearing. Once the denial was signed, judge Meachum
advised the Appellant and Scot Graydon that judge Sulak would hear
Appellant's pending motion to compel, knowing that an order was signed
denying die motion. Judge Sulak announced that he could not hear the
Appellant's motion to compel because another equal judge has signed an
order denying the motion to compel moments ago. (RR: Vor 2 of4, P: 8, L:
11—25; P: 9: L: 1—19).
Travis County does not appoint one judge to hear cases but it's an
open docket, where any district judges may hear a motion or try cases.
However, after such of a conspired effort by the Travis County district
judges to deny Appellant's motion to compel hearing, Appellant had no
choice butto recuse all ofthedistrict judges. (CRr Vol 1, Pr 521—526). The
behavior by the three district judges named herein was reprehensible.
Appellant believed that he could not reasonably obtain a fair and impartial
hearing from any ofthe District or County judges. All judges involved will
be sued in federal court.
36
After Appellant filed his motion to recuse, not one of the judges
recused themselves or referred the Appellant's recusals. Pursuant to Tex. R.
Civ. P. 18a and 18b, upon a motion to recuse being filed against ajudge, he
or she must either recuse or refer, there are no other options. However, after
the Appellant announced at the August 19, 2014 hearing that none of the
judges took any action on his motion to recuse, and that it is a violation of
TRCP 18a and 18b, one ofthe clerks in the 353rd left the courtroom and
apparently notified the judges ofthe procedural error, and two judges filed
sham orders in the trial court's record (CR: Vol 1 of1,P: 545); (CR: Vol 1,
P: 559); (CR: Vol 1 of 1, P: 546). But those sham orders came too late
because the visiting judge had already been appointed to hear the Appellee
Willing motion and had ruled on Willing motion to declare Appellant
vexatious.
Under the general recuse or refer rule in Tex. Gov't Code Ann. §
25.00255(f), ajudge against whom a recusal motion has been filed has onfy
two options: grant the motion to recuse or refer the motion to another judge
for a ruling. Neither occurred in the trial court. The same is required under
the Tex. R. Civ. P. 18a and 18b. Even though a motion to recuse may be
defective, the challenged judge must either recuse orrefer the motion, so that
37
another judge can determine the procedural adequacy and merits of the
motion to recuse. Appellee Willing objections to the motion has no bearing
on a judge following Rule 18a, especially because Appellant verified his
motion and the motion had been pending for more than 3 (three) days.
Pursuant to the Tex. R. Civ. P., a judge should respond to a litigates motion
of recusal within 3 business days. All of the Travis County district judges
failed to respond in 14 business days. Thus the sham orders of referral and
recusals by David Phillips and Stephen Yelenosky are again void.
The statute states in mandatory language that the district judge shall
request the presiding judge to assign a judge to hear any motions to recuse.
Regardless of whether a motion to recuse may be defective or untimely, the
challenged judge must recuse or refer the motion so that another judge can
determine the procedural adequacy and merits ofthe motion. Norman, 191
S.W.3dat861.
All courts agree that when a judge is confronted with a timely,
procedurally sufficient motion, the trial judge must either recuse herself or
refer the case to the presiding judge. Rule 18a(c), (d); See Brousseau v.
Ranzau, 911 S.W.2d at 892. These are the only two options the judge has
when a procedurally proper motion is filed. Brousseau v. Ranzau, 911
38
S.W.2d at 892. In such a case, when the judge refuses to recuse herself, two
things must happen: (1) she must send all motions, responses, and
concurring briefs, and the order ofreferral, to the administrative judge; and
(2) she must take no further action and make no further orders in the case
except for good cause stated in the order in which the action is taken. Rule
18a(d). Likewise, when a judge recuses herself, two things must happen: (1)
she must request that the presiding judge of the administrative judicial
district assign another judge to the case; and (2) she must take no further
action and make no further orders in the case except for good cause, which
must be stated in the order in which action is takenRule 18a(c).
In addition, one court has held that a transfer made by the trial judge-
-not the presiding judge—would be void. Lamberti v. Tschoepe, 116 S.W.2d
651, 652 (Tex. App.-Dallas 1989, orig. proceeding).
As a result of Appellant's motions to recuse, there was never a
hearing nor does the trial court's clerk's record reflect that the administrative
judge denied Appellant a hearing onJudge Stephen Yelenosky referral. This
is mandatory. Though Yelenosky signed a referral, and if there is a referral
there must be a hearing or a denial of a hearing. The trial court's record
reflects neither occurred.
39
In McLeod v. Harris, 582 S.W.2d 772 (Tex. 1979), the Supreme Court
interpreted a statute, subsequently codified as section 74.059 of the
Government Code, which provided that a "district judge shall request the
presiding judge to assign a judge of the administrative district to hear any
motions to recuse such district judge from a case pending in his court." TEX.
GOVT CODE ANN. § 74.059 (Vernon 1988) (formerly TEX. REV. CIV.
STAT. ANN. art. 200a, § 6).
When a motion to recuse has been filed, it is mandatory that the trial
judge request the administrative judge to assign another judge to hear the
motion. McLeod, 582 S.W.2d at 773. The trial court visiting judge was not
assigned by a judge to hear Appellees Willing motion to declare Appellant
as a vexatious litigate, but the visiting judge was assigned by the court
administrator (Vavra) who had no authority to assign judges, thus any orders
executed by the visiting judge (Charles Ramsay), including the August 19,
2014 order declaring the Appellant as a vexatious litigate should be vacated
and or set aside.
Tex. R. Civ. P. 18a; see also Tex. Gov't Code Arm. § 74.059(cX3)
(West 2005) (judge must "request the presiding judge to assign another
40
judge to hear a motion relating to the recusal of the judge from a case
pending in his court").
Other courts of appeals have concluded that Rule 18a's recusal-or-
referral requirement is mandatory and that mandamus relief is appropriate to
compel compliance with the rule. See, e.g., In re Kiefer, No. 05-10-00452-
CV, 2010 Tex. App. LEXIS 4268, 2010 WL 2220588, at (Tex. App. Dallas
June 4, 2010, orig. proceeding) (recusal or referral "mandatory"); In re
Norman, 191 S.W.3d 858, 860 (Tex. App.-Houston [14th Dist] 2006, orig.
proceeding) (Rule 18a states that judge has "mandatory duty either to recuse
himself or refer the motion to the presiding judge"); In re Healthmark
Partners, L.L.C., No. 14-04-00743-CV, 2004 Tex. App. LEXIS 7636, 2004
WL 1899953, (Tex. App.-Houston [14th Dist] Aug. 26, 2004, orig. pro
ceeding). In re Rio Grande Valley Gas Co., 987 S.W.2d 167, 179-80 (Tex.
App.—Corpus Christi 1999, orig. proceeding) see also Arnold v. State, 853
S.W.2d 543, 544 (Tex. Crim. App. 1993) (Rule 18a applies in criminal
cases); see also Ex parte Sinegar, 324 S.W.3d 578,2010 WL 4320399, (Tex.
Crim. App. 2010)
Likewise, construing a substantially similar statutory predecessor to
Rule 18a, the Texas Supreme Court has held that (1) a judge has "the
41
mandatory duty" to recuse himself or refer the matter to the presiding judge
to hear a properly filed motion to recuse. See McLeod v. Harris, 582 S.W.2d
772, 775 (Tex. 1979). But again, this Court disagreed and denied the
Appellant's mandamus—wrongfully. Appellate courts agree that the
provisions of Rule 18a are mandatory; and that they cannot be reasonably
read otherwise.
Consequently, all of the district judges in Travis County abused their
discretion by failing to either recuse themselves or refer the motion to the
presiding judge of the administrative judicial district. See In re Prudential,
148 S.W.3d at 135 (judge has no discretion in applying facts to law).
Thereafter, the district judges failed again by conspiring to sign an order to
refer only after the Appellant argued on August 19, 2014 that they failed to
properly respond to his recusal motion.
Moreover, the order of referral that came after the visiting judge that
was assigned to hear the Appellee Willing motion to declare Appellant as a
vexatious litigate was not forwarded to the Regional Presiding Judge. The
sham referral order was signed by Judge Yelenosky of the 34th JDC and
filed stamped at 5:00 P.M., however, the referral should had been to the
42
presiding judge of the administrative judicial district for assignment to
another judge for hearing and disposition. There was no hearing conducted
on Appellant's motion to recuse nor was it denied. Bruno v. State, 916
S.W.2d 4, 7 (Tex. App.-Houston [14th Dist.] 1995, no pet).
If a motion to recuse is procedurally sound, or otherwise in substantial
compliance with Tex. R. Civ. P. 18a, it is error for a trial judge to refuse to
either recuse herself or himself or to otherwise refer the recusal motion to
the presiding judge of the administrative region for assignment to another
judge for full evidentiary hearing and disposition. In re Richard Castillo,
1998 Tex. App. El Paso, Lexis 2473. In re Guilbot, 2009 (Tex. App.—
Houston [14th Dist] no pet.
Additionally, David Phillips is not a district judge; he is the judge of
County Court No. 1, and therefore a County judges referral does not count in
the case of a district court case. A County judge would not be in a position to
preside over a district court case. The sham order signed by David Phillips is
not valid in several aspects.
This Court should grant Appellant's appeal, vacate all orders pursuant
to the Appellant's case (Drake v. Kastl Law et al) signed on August 19,
2014, for the reason that relevant procedural rules required that a hearing be
43
held to develop arecord sufficient for any appeal onthe motion to recuse the
trial judges and for all the reasons stated herein. And such that the trial
judge's actions denying such requirements, and for all other reasons asserted
herein the Appellant files this appeal timely to have the August 19, 2014
order vacated in its entirety, including its prefiling order. Appellant contends
that the trial court's order that Judge Charles Ramsay signed on August 19,
2014 is void because Ramsay did not have the authority to sign the order.
The August 19, 2014 order is void because it was derived by and
through fraud. The August 19, 2014 order is void because once Appellant
objected to the visiting judge Ramsay, though he refused to recuse or
remove himself from hearing the motion was error and abuse of discretion.
The August 19, 2014 order is void because although two judges filed sham
orders to attempt to make it appear as if they were complying with Tex. R.
Civ. P., 18a, the orders were defective on its face and procedurally defective.
Neither the sham orders of recusal nor referral that was signed on
August 19, 2014 was signed timely. Both orders were signed after the
Appellant had already been wrongfully assigned to Judge Ramsay, and the
Appellant argued in open court ofthe procedural errors of not responding to
his motion to recuse. An order that is signed after the harm and error has
44
been carried out is an order that is void. A court administrator does not have
the judicial power to assign judges pursuant to Tex. R. Civ. P., or Tex. Gov't
Code Ann., therefore the visiting judge was not properly assigned to hear
Appellee Willing motion. An appeal is his only remedy to the Appellant to
address: 1). The order of referral by Judge Stephen Yelenosky, 2). The order
of Recusal by Judge David Phillips, and 3). The order declaring Drake as a
vexatious litigate signed by Judge Ramsay.
Appellant filed his motion for nonsuit on August 7, 2014. Willing
filed her motion to declare Appellant as a vexatious litigant on August 5,
2014. Appellee Willing failed to conference with any ofthe co-defendants or
the Appellant per local rules before filing her motion to declare Drake
vexatious. Appellant had no idea that Willing had filed a motion for
affirmative relief when he filed his motion for nonsuit. Wiling argued that
she conference with Drake later, but she cannot revitalize her motion,
because her second conference came too late. Willing could not repair a
motion that was dismissed because of intentional procedural errors.
Willing through her legal counsel admits during the August 19, 2014
hearing that she failed to conference with the Appellant timely. Appellant
Drake must be timely noticed that a defendant is seeking affirmative relief—
45
which Willing failed to do so—and not file a motion by "seek attack."
Willing did not want the Appellant to know that she was filing the motion
until after the motion was filed with the trial court. Thereafter, Willing (the
head of the Judicial Commission) through her attorney who is an assistant
Attorney General acts dumb and say to the trial court that they were unaware
that they had to conference with the Appellant. Willing intentionally violated
procedure to file the motion without the Appellant's knowledge. Moreover,
Willing pursuant to the TRCP and local rules in Travis County should have
conference with the Appellant and co-defendants, which she failed to do.
If a motion to recuse is denied, the denial may be reviewed on appeal
from the final judgment. Tex. R. Civ. P. 18a(f). See In re Union Pacific
Resources Co., 969 S.W.2d 427, 428, 41 Tex. Sup. Ct. J. 591 (Tex. 1998).
The standard of review for the denial of a motion to recuse is abuse of
discretion. Tex. R. Civ. P. 18a(f). The test for an abuse of discretion is
whether the trial court acted without reference to any guiding rules or
principles, or acted arbitrarily or unreasonably. The trial court judges did not
refer Appellant's motion to recuse to the regional presiding judge or recuse
themselves as required by Rule 18a, thus any order signed are considered
46
void, which in this case specifically the August 19, 2014 declaring Drake as
a vexatious litigant. The trial court records contain no ruling by or from the
regional presidingjudge.
Appellant brought to the attention of the trial court that his recusal
motion was pending, however, the visiting judge ignored Appellant's
objection and proceeded with the hearing (RR: Vol 3 of 4, P: 14, L: 5—25;
P: 10, L: 14—25; P: 11, L: 1—15). The trial court did not have Willing's
motion on the docket, it had signed Appellant's nonsuit, but Willing's
counsel demanded the hearing, even when it wasn't on the docket.
The trial court did nothing about Appellant's recusal. A trial judge
presented with a motion to recuse must promptly enter an order for either
recuse/ or referral, "he does not have the option of doing nothing")
Greenberg, Benson, Fisk and Fielder, PC. v Howell, 685 S.W.2d 694, 94
(Tex. App.—Dallas 1984, no writ, no writ). In re Kiefer, 2010 WL 2220588
(Tex. App.—Dallas 2010, no pet.) (mem. op.). In Appellant's case, his
motion to recuse was not denied; it was just never acted upon by any ofthe
judges up and until the Appellant was in a hearing, which the trial court
acted too late, thus any orders signed by the visiting judge are void.
47
Regardless of procedural sufficiency of a motion to recuse, trial court
violated Rule 18a in failing to act either to recuse herself or refer the case to
the presiding judge; her ruling on the recusal motion was an abuse of
discretion by which such ruling was vacated and any subsequent orders or
judgment made subsequent to the denial ofthe first recusal motion are void.
Victor Enterprises, Inc. v. Holland, 2013 WL 329034 (Tex. App.—Dallas
2013).
If a trial court fails to comply with the rules provided in Rule 18a, all
actions taken by the judge subsequent to such violation are void. Mosley v.
State, 141 S.W.3d 816, 837 (Tex. App.-Texarkana 2004, pet. Refd);
Lamberti v. Tschoepe, 116 S.W.2d 651, 652 (Tex. App.—DALLAS 1989,
Writ denied).
Appellant's motion to recuse was never acted on by the presiding
judge ofthe administrative judicial district. In the case ofBamhill v. Agnew,
2013 WL 5657644 (Tex. App.—Tyler 2013) the judge did not refer the
motion to the regional presiding judge or recuse himself, as in the issues
before this Court. All subsequentorderwere ruled void.
48
Issues as to the qualifications ofthe trial court judge may be raised for
the first time on appeal. In re DC. Jr., 2010 WL 3718564 (Tex. App —
Amarillo 2010, no pet). However, the Appellant raised Judge Charles
Ramsay's ability to hear Willings motion to declare Drake as a vexatious
litigant on the day ofthe hearing itself: August 19, 2014. (RR: Vol 3 of 4,
P: 12, L: 8—12).
Appellant recused all of the district judges and two County judges
(CR: Vol 1, P: 521—526). Pursuant to Rule 18 of the TRCP, the regional
presiding judge must rule on a referred motion or assign a judge to rule,
neither occurred in the Appellant's case in the trial court. Notwithstanding,
the ruling must be in writing. No such rutins Is contained In the trial
court's clerk's record submitted to this Court. There was no hearing on
Appellant's recusal motion. The trial court judges ignored the Appellant's
motion of recusal, which is forbidden by Rule 18 of the TRCP. Johnson v.
Pumjani, 56 S.W.3d 670, 672 (Tex.App.—Houston [14th Dist] 2001.
Judge Phillips did not indicate if he was referring or recusing (CR:
Vol 1, P: 546). Because Phillips did not complete his order, he also failed to
comply with the TRCP 18a (f)(1)(B). The trial court's clerk of court should
49
had delivered a copy of the order of disqualification, recusal or referral to
the regional presiding judge immediately with the 3 day period, but this did
not occur in the Appellant's trial court's case. TRCP 18a (e)(2).
All of the greatest intentions do not allow a judge to escape the fact
that the order he signed was not complete. Regardless of procedural
sufficiency's of a motion to recuse, trial court violated Rule 18a in failing to
act either to recuse or refer as in the case before the Court. Victor
Enterprises, Inc. v. Holland, 2013, WL 329034 (Tex. App.—Dallas 2013).
Appellant was entitled to a hearing on his motion to recuse. TRCP 18a
(g)(6). The hearing would have given the Appellant an opportunity to
develop a record to support his motion. In re Rio Grande Valley Gas Co.,
987 S.W.2d 167,179 (Tex.App.—Corpus Christi 1999).
Because ofthe judges failure to comply with the TRCP 18, all orders
or judgments of a trial judge who was constitutionally disqualified from
sitting are void. TescoAm., Inc. v. Strong Indus., 221 S.W.3d 550, 555 (Tex.
2006); In re Union Pac. Res., 969 S.W.2d 427, 428 (Tex. 1998). And regard
ing Judge Charles Ramsay, orders of an assigned judge who should have
been removed after an objection under Gov't Code §74.053 are void. In re
50
Canales, 52 S.W.3d 698, 701 (Tex. 2001); Dunn v. Street, 938 S.W.2d 33,
34—35 (Tex. 1997); Flores v. Banner, 932 S.W.2d 500, 501 (Tex. 1996).
As in Drake v. Andrews, Appellees did not offer sufficient evidence
to prove that there was no reasonable probability that Appellant could not
prevail in his lawsuit against her. Drake v. Andrews, (App. [5th Dist.], 2009,
294 S.W.3d 370. Amir-Sharif v. Quick Trip Corp., (App. [5th Dist.] 2013,
416 S.W.3d 914. Appellant also argued and argues in his brief that
Appellees failed to prove that Appellant filed 5 (five) qualifying lawsuits
that were ruled against him. As in the Andrews case, Appellee Willing failed
to prove the first prong under Tex. Prac. & Rem. Code and committed a
crime of perjury, and fraud. Any party to a case may move for recusal ofthe
judge; the judge may then voluntarily recuse himself or requests the chief
administrative judge of the district to appoint a judge to hear the motion for
recusal. Tex. Arty. Gen. Op. DM—109 (1992).
51
I. Issue Six:
Trial court abused its discretion when the court continued to hear
Appellees Seanna Willing Motion to Declare the Appellant as a
Vexatious Litigate in light of the fact that Judge Ramsay did not
have the authority or jurisdiction to preside over Appellees
Willing motion to declare him a vexatious litigant
Appellant argue that the Judge Ramsay lacked authority to hear the
Appellee Willing motion to declare him as a vexatious litigation and that the
resulting final August 19,2014 order is void. Part of Appellant's argument is
that the visiting judge's (Charles Ramsay) authority originates solely from
an order of assignment from a proper judge. However, in this case, there was
no order of assignment by a proper judge or any judge that can be found in
the trial court's clerk record.
As already argued before the Honorable Court, the visiting judge did
not have jurisdiction to act or authority to enter the August 19,2014 order. A
judgment is void when the court rendering judgment has no jurisdiction of
the person of a party or his property, no jurisdiction ofthe subject matter, no
jurisdiction to enter the particular judgment, or no capacity to act."
Browning v. Prostok, 165 S.W.3d 336, 346 (Tex. 2005); Austin Indep. Sch.
Dist. v. Sierra Club, 495 S.W.2d 878, 881 (Tex. 1973).
52
A judgment of a court which has no jurisdiction over the subject
matter is void, that is, "entirely null within itselfand which is not susceptible
of ratificationf,] confirmation," or waiver. Easterline v. Bean, 121 Tex. 327,
49 S.W.2d 427,429 (1932). Subject-matter jurisdiction "cannot be conferred
on a court by consent or waiver," and lack thereof "renders ajudgment void
rather than merely voidable." Mapco, Inc. v. Forrest, 795 S.W.2d 700, 703
(Tex. 1990); Jeter v. McGraw, 218 S.W.3d 850, 853 (Tex. App.-Beaumont
2007, pet. denied); See Tex. Ass'n of Bus. v. Tex. Air Control Bd., 852
S.W.2d 440, 445 (Tex. 1993); Fed. Underwriters Exch. v. Pugh, 141 Tex.
539, 174 S.W.2d 598, 600 (1943) (subject-matter jurisdiction exists by
operation of law and cannot be conferred on any court by consent or
waiver); In the Guardianship ofErickson, 208 S.W.3d 737, 740 (Tex. App.-
Texarkana 2006, orig. proceeding); In the Estate ofBean, 120 S.W.3d 914,
919 (Tex. App.-Texarkana 2003, pet. denied).
Because Charles Ramsay was not assigned by a proper judge, he had
no authority or jurisdiction to preside over, hear or rule on any motions
presented by either party on August 19, 2014. Ramsay ignored the
Appellant's notices and the Tex. R. Civ. P., and proceeded with the hearing
which was error and abuse ofdiscretion (RR: Vol 3of4, P: 15, L: 2—3).
53
J. Issue Seven:
The August 19, 2014 order declaring the Appellant as a vexatious
litigant was obtained by and through deception and perjury by
Scot Graydon an assistant attorney general and was a product of
fraud, fraudulent inducement
Scot Graydon, an assistant attorney general for the state of Texas in
Austin, Texas perjured himself and obtained the August 19, 2014 order by
and through fraud, and deception. Mr. Graydon advised the trial court that he
conference with the Appellant regarding Appellees Willing's Motion to
Declare Drake as a vexatious litigant. Because Mr. Graydon is an officer of
the court and an assistant attorney general, his statements to the trial court
were considered perjury if he knowingly made a false statement to the court.
Appellee Willing's counsel failure to be completely truthful wasn't an
error on part ofthe Appellee Wiling or her attorney, but it was to accomplish
their task of labeling Appellant as a vexatious litigate at any cost, even at the
expense of lying, misleading the trial court, and perjury. However, as
already pled herein, Seanna Willing failed to conference with the other
defendants in seeking her motion to declare Appellant vexatious.
Scot Graydon perjured himself multiple times to Judge Ramsay by
stating that he conference with the Appellant. (RR: Vol 3 of 4, P: 45, L: 1—
54
14). Appellant has sworn under the penalty of perjury that Scot Graydon did
not conference with him. See Exhibits [Appellant's Affidavit] attached to
Appellant's Third Amended Response to Vexatious Litigant Order and
Appellant's Motion to Vacate Vexatious Litigant Order. (CR: Vol 1, P:
620—626). Where there is any doubt that the order signed by visiting judge
is even possibly fraudulent and or obtained by fraud, the order should be
vacated.
The mere allegation, "that the judgment was obtained by fraud," is not
sufficient. The facts relied on as constituting the fraud must be distinctly
averred, and the court is to determine whether those facts sustain the charge.
(Martin v. Sykes, 25 Tex. Supp., 198.) Appellant executed affidavits under
the penalty of perjury that Graydon did not conference with him. (CR: Vol
1, P: 608—618; P: 620—626).
The appellate courts in the exercise of equitable powers may grant by
re-examining a case on its merits, such relief as equity and justice may
demand when it is made to appear that a judgment is obtained by fraud. That
the willful giving of false testimony by a party to an action in relation to a
matter affecting an issue to be tried is fraud ofthe most pernicious character
cannot be questioned, and for such conduct, an injured party is entitled to
55
have a cause re-examined on its merits, and granting such relief as equity
and justice may demand. McMurray v. McMurray, 67 Tex. 665; 4 S.W.357;
1887 Tex. Lexis 943.
In common with all other courts, the appellate court's have the power,
when a judgment, order or decree has been entered without jurisdiction, or
when obtained by fraud or such other means as are held to render the
judgments, orders or decrees void, so to declare them at any time. Heath et
al v. Layne et al, Supreme Court, 62 Tex. 686; 1884 Tex. Lexis 312. Lee v.
Killian, 761 S.W.2d 139; 1988 Tex. App. [2nd] Lexis 3173.
In Lee v Killian, the trial court granted summary judgment based on a
wavier that was obtained by fraud. The appeals court reversed and
remanded. Lee v Killian, 161 S.W.2d 139; 1988 Tex. App. Lexis 3173. Un
less the order is set aside that was obtained by fraud; Appellant will suffer
substantial and irreparable injury. Smith v. McDaniel, 170 S.W. 1070; 1914
Tex. App. Lexis 1021.
Upon proof that assistant attorney general Scot Graydon did commit
fraud upon the court and was untmthful to the court to obtain an order
against Appellant, the Court should sanction him, report him to the bar
association, and have him disbarred. Contracts induced by fraud are not
56
valid. Green v. Chandler, 25 Tex. 148; History Co. v. Flint, 4 Willson, Civ.
Cas. Ct. App. §224,4 Tex. Civ. Cas. 364, 15 S.W. 912; Drinkardv. Ingram,
21 Tex. 650, 73 Am. Dec. 250; Johnston v. Loop, 2 Tex. 331; Bankers v.
Calhoun (Tex. Civ. App.) 209 S.W. 826.
The trial court's visiting judge made his decision based on misleading,
and false information directed to him by the Appellee Willing legal counsel.
Graydon advised Judge Ramsay on 8/19/2014, "In the event the Court of
Appeals determines that a motion to recuse would been proper, if the court
enters an order today granting my motion, it can simply be vacated" (RR:
Vol 3 of 5, P: 22, L: 7—19). Graydon goes on to suggest to the trial court
on August 19,2014 that there would be "no harm" caused to Drake.
Appellee Willing demanded and got the trial court's visiting judge to
sign a prefiling order, which the Appellant objected to in form and content.
(CR: Vol 1, P: 564-571). The order derived of fraudulent behavior by the
Appellee Willing and an assistant attorney general was intended to prevent
the Appellant from filing new litigation without permission of the
administrative judge. But because the order signed on August 19, 2014 by
Judge Ramsay is void, and a product of fraudulent misrepresentations, which
is an actionable fraud; the August 19,2014 order is non-effect. Stanfieldv.
57
O'Boyle, 462 S.W.2d 270, 272 (Tex. 1971); Stone v. Williams, 358 S.W.2d
151 (Tex. Civ. App.-Houston 1962).
In order to be fraud or fraudulent, the Court should look at the
following: (1) that Scot Graydon attorney for the Appellee Willing made a
material misrepresentation to the trial court on August 19, 2014 [that he
allegedly conference with the Appellant about his motion to declare
Appellant as a vexatious litigate] to induce the visiting judge to sign his
order, (2) that the representation was false, (3) that Scot Graydon knew it to
be false at the time he made the statement, (4) that the statement was made
with the intent to deceive the trial court visiting judge Charles Ramsay, (5)
that the false statement would be acted upon by the trial court, and the trial
court did act upon Mr. Graydon's misrepresentations by signing the August
19, 2014 order to declare Appellant as a vexatious litigant, and prefiling
order against Appellant and that he must obtain permission prior to filing
any new litigation, (6) that the trial court reasonably relied on Scot
Graydon's fraudulent statements because he is an officer ofthe court and an
assistant attorney general and because of Mr. Graydon's race: white, and (7)
that Appellant has suffered injury as a result of Appellee Willing and Scot
Graydon's fraud. The alleged notice ofthe hearing was filed after the
58
Appellant filed his motion for nonsuit, although the order signed by the trial
court nonsuiting the Appellant's cause of action was also defective. (CR:
Vol 1, P:527—529), file dated: August 7, 2014 at: 1:07 P.M. Appellee
Willing filed her motion to declare Appellant as a vexatious litigate on
August 5, 2014. (CR: Vol 1, P: 263—282). On August 7, 2014, Willing
through her attorney filed a supplemental notice to try to overcome their
intentionally not conferencing with the Appellant. This notice was filed
August 7, 2014. (CR: Vol 1, 517—519), at: 2:59 P.M. Even the
supplemental notice was filed after the Appellant filed his motion for
nonsuit. Pursuant to Travis County Local Rules, because Willing failed to
conference with Appellant Drake before she filed her motion to declare him
a vexatious litigant, the motion was defeated. Willing legal counsel admitted
this to the trial court and said, "I will stand here and I will tell the Court that
prior to filing the motion, I did not confer with Mr. Drake." (RR: Vol 3 of 4,
L: 1-5). Thus, a supplemental notice coming after the nonsuit is filed will
not save Willing's motion to declare the Appellant as a vexatious litigant
because it came too late—there was no pending affirmative relief. Willing
filed her original motion to declare Appellant as vexatious by "ambush."
59
Drake directs the Court's attention to Willing certificate of
conference: (CR: Vol 1, P: 518). In this document attorney Graydon,
Willing's counsel misrepresents that he conference with the Appellant
regarding Willing's motion to declare Drake as a vexatious litigant. But
there is more; the clerk's record numbered: 518, contains Graydon's
statement to the trial court that he conference with the Plaintiff at 9:50 p.m.
at night. Graydon's certificate further states that he conference with Drake
in-person at nearly 10:00 p.m. on August 6, 2014, which the Appellant was
in Dallas on August 6, 2014 at 10:00 p.m. at his home. Graydon also
perjured himself before the trial court regarding the matter. (RR: Vol 3 of 4,
P: 45, L: 1—14). Graydon violated TRCP 191.3(b).
The fact that Appellant could not call his witnesses, and Chapter 11 of
the Tex. Civ. Prac & Rem. Code allows witnesses to be called on behalf of
the "plaintiff." Judge Ramsay also knew that the trial court judges had not
recused or referred themselves because Appellant brought this to the visiting
judge's attention, however, that did not slow down Judge Ramsay's desire to
sign an order declaring Appellant as a vexatious litigant, and thus the order
should be vacated. Graydon should be sanctioned pursuant to TRCP
191.3(e).
60
K. Issue Eight:
Trial court abused its discretion when the court continued to hear
Appellees Seanna Willing Motion to Declare the Appellant as a
Vexatious Litigate even after Appellant objected to Judge Ramsay
of due process violations and violations under Chapter 11 of the
Texas Civil Prac. & Remedies Code
Appellant's cause of action against Appellees Seanna Willing was not
based on the same or substantially similar facts, transition, or occurrence.
Devoil v. State of Texas, 155 S.W.3d 498; 2004 Tex.App. Lexis 10473.
Though Appellant objected to violations of his due process, the trial court
visiting judge did not have authority to preside over the Appellee Willing's
motion to declare Appellant as a vexatious litigate because prior defendant
motions had not be ruled on and addressed nor had Drake's motion to
recuse. (CR: Vol 1, P: 521-526; P: 608-618; P: 534-543; P: 50-55; P:
125-133; P: 140-149; P: 234-244; P: 245-250).
Appellant filed a motion to continue until the court could address his
motions to take limited discovery. Appellant had to file a motion to compel
discovery. Defendant Kastl conspired with three judges to have Appellant's
compel hearing denied while Appellant sat waiting on his motion to be heard
on the very same day. Appellant has uncontroverted proof to offer any trial
court that Appellee Willing failed to investigate his case against Judge
61
Martin Hoffman properly. But that evidence was prevented from being
offered into evidence because the trial court erred by not addressing the
pending motions to quash that prevented Appellant from obtaining limited
discovery. The ability to call witnesses to the stand under oath and discovery
are important elements of any civil or criminal case, which are violations of
Appellant's due process and constitutional rights. Yet, Kastl objected to
Drake's compel hearing (CR: Vol 1, P: 513).
The trial court failed procedurally in assigning visiting judge Charles
Ramsay. Appellant also argued before the trial court that he has been
prevented from calling witnesses to the hearing, which are due process
violations. (RR: Vol 3 of 4, P: 31, L: 8—13).
When a defendant seeks a vexatious litigant declaration, the plaintiff
may offer evidence to show there is a reasonable probability he will prevail
in the litigation. Amir-Sharif v. Quick Trip Corp., (App. [5th Dist] 2013,
416 S.W.3d 914. As argued herein, the Appellant was prohibited in
acquiring his witnesses by motions to quash that the trial court never ruled
on before the visiting judge was assigned, ruled on, and signed the order to
declare the Appellant as a vexatious litigant.
62
Appellant was not given any opportunity to call the witnesses that he
needed to respond to Appellee Willing's motion to declare him as a
vexatious litigant. Though the Appellant preserved his objections to
Ramsay's assignment and to Appellees Willing's exhibits on August 19,
2014 on the record. (RR: Vol 3 of 4, P: 10, L: 14—25, and P: 11, L: 1—
25, P: 12, L: 1—12). Pursuant to RR, Vol 3 of 4, Page 26, Lines: 6 through
7, the court is noted as overruling the Appellant's objections to the exhibits
of Willing. The trial court did not overrule the Appellant's objection on
August 19,2014.
For these reasons the August 19, 2014 order declaring Appellant as a
vexatious litigant should be vacated.
63
L. Issue Nine:
Trial court abused its discretion in signing the August 19, 2014
order declaring Appellant vexatious because the trial court
district judges had not responded or acted on Appellees
jurisdictional issues or Appellant's special exceptions prior to
assigning Appellee Willing motion to declare Drake a vexatious
litigant and prior to actually signing ofthe motion
The trial court failed to address important motions filed by the
majority of the defendant's concerning jurisdiction. On June 17, 2014,
Defendant Ginsberg filed a motion to transfer for lack of subject mater
jurisdiction. On July 11,2014Defendant Kastl lawfiled a motion to transfer.
On July 8, 2014 and July 17, 2014 Defendant Vikki Ogden filed a motion to
transfer. (CR: Vol 1, P: 50—55; P: 125—133; P: 140—149).
Appellant answered those motions by responding on August 24, 2014
by filing special exceptions, motion to compel, motion for evidentiary
hearing. But none of those motions that were filed by the Appellant or
motions filed by any ofthe defendants that were important to the trial court
jurisdiction were heard or acted upon by any by the trial court before the
visiting judge was assigned to hear and rule on Appellee Willing's motion to
declare Drake as a vexatious litigant (CR: Vol 1, P: 534—543; P: 234
244; 245—250). And when jurisdiction is an issue, itwas improper for the
64
trial court to assign Judge Charles Ramsay to preside over or hear Appellee
Willing motion until those issues where decided.
All of the district trial court judges erred and abused their discretion
by not acting on the defendant's motions to transfer, motions to quash, and
motion to recuse (CR: Vol 1, P: 521—526).
Whether a court has subject-matter jurisdiction is a question of law.
Texas Depft of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex.
2004). When jurisdictional facts are disputed, the manner in which the trial
court analyzes the jurisdictional challenge depends on whether the disputed
jurisdictional fact issues do or do not implicate the merits of the plaintiffs
case. See University of Tex. v. Poindexter, 306 S.W.3d 798, 806-07 (Tex.
App.—Austin 2009, no pet.). If the disputed jurisdictional issue or facts do
not implicate the merits, the court—not the jury—must make the necessary
factual findings to resolve the jurisdictional issue. See Miranda, 133 S.W.3d
at 226 ('"Whether a district court has subject matter jurisdiction is a question
for the court, not a jury, to decide, even if the determination requires making
factual findings, unless the jurisdictional issue is inextricably bound to the
merits ofthe case.1") (quoting Cameron v. Children's Hosp. Med. Ctr., 131
F.3d 1167,1170 (6th Cir. 1997)). Martin v. National Instruments Corp.,
65
Court of Appeals, [3rd Dist] 2013 Tex. App. Lexis 7021. However, a trial
court cannot ignore jurisdictional facts as it has done in this case and assign
a visiting judge to hear Appellee Willing's motion to declare Appellant a
vexatious litigant—especially under the given facts. Venable v. Sherbet,
Court ofAppeals, [5th Dist] 365 S.W.3d 359; 2010 Tex. App. Lexis 9083.
The trial court conducted no hearings pursuant to the defendant's
objection to jurisdiction, nor did itmake any rulings concerning jurisdiction
before assigning the visiting judge to hear the Appellee Willing motion to
declare Appellant as avexatious litigant. And though Appellee Willing filed
a plea to the jurisdiction, the trial court never addressed even that issue.
Furthermore, Appellee Willing has said in open court through her counsel
and in her pleadings that the Appellant's claims against her have been
falsely made. A plea to the jurisdiction cannot be sustained where the
contention is to the effect that the plaintiffhas falsely stated a claim, which,
in fact, is nonexistent, for this is amatter of defense on the merits. City of
Austin v. Savetownlake.Org, Court of Appeals of Texas, [3rd Dist] Austin
2008 Tex. App. Lexis 6471. Appellee Willing did not support its plea with
relevant facts, but inthis case more importantly, the trial court did not act on
any parties plea to jurisdiction—which is error and an abuse of discretion.
66
The trial court failed to resolve factual issues before assigning Charles
Ramsay to hear the Appellee Willing motion to declare Appellant as a
vexatious litigant. This failure is an important preempt to a hearing such as
declaring a party as a vexatious litigant or to any motions, which would
suspend or dismiss a plaintiffs cause of action.
All ten (10) district judges in Travis County failed to take even the
minimum action. There was never a hearing on Appellant's motion to
recuse, and until that Motion is determined no judge can rule or carry out
any orders. The sham orders signed by one district court judge and one
County court judgewill not overcome the untimeliness of their sham orders,
and the fact that a visiting judge was appointed improperly before Appellant
motion to recuse was decided is an even greater issue because the visiting
judge could not be assigned until the recusal was procedurally disposed of
properly. Thus trial court's orders signed on August 19,2014 are void.
Appellant directs the Court's attention to Appellee Willing order.
What the Appellee Willing was attempting to do is cover apparently a
recusal and vexatious hearing together, and neither worked properly. (CR:
Vol 1, P: 547—555). Thus, the sham order of referral, sham order of
recusal, and the order declaring Appellant a vexatious litigate each order
67
signed on August 19, 2014 should be vacated and sanctions filed against
Seanna Willing, and Scot Graydon for conspiracy and perjury.
M. Issue Ten:
Trial court abused its discretion in signing the August 19, 2014
order declaring Appellant vexatious because Appellee Willing's
motion to declare Drake as a vexatious litigant was procedurally
defective
Appellee Willing's motion to declare the Appellant, as a vexatious
litigant is procedurally defective as already pled herein to this Court.
Appellee Willing attorney failed to conference with the Appellant. Rather
than taking the proper steps to correct the motion of conferencing with
Appellant and filing an amended motion to declare the Appellant a vexatious
litigant, Appellee Willing's attorney Scot Graydon decided to commit fraud
upon the court and lied to the trial court. There are other procedures that
Willing fail to undertake to declare Appellant Drake as a vexatious litigant.
Scot Graydon did not conference with the Appellant by mistake, he
did so knowingly to avoid letting the Appellant know he was going to file
the motion, and to avoid having his motion denied pursuant to local rules.
When Mr. Graydon heard judge Meachum say onAugust 7,2014, that the
68
Travis County local rules requires a conference he hurriedly tried to repair
his intentional mistake. But because he failed to follow proper procedure and
Travis County local rules, Graydon's plans did not produce what he had
schemed. Moreover, Appellee Willing not only failed to conference with
Appellant but she failed to give adequate time for the Appellant to respond
to her motion to declare him as avexatious litigant. On August 7, 2014 Scot
Graydon claims that he conference with the Appellant and gave Appellant a
copy of his motion to declare him as avexatious litigant, which again is not
true. The hearing on that motion was held on August 19, 2014 which is only
12 days from Mr. Graydon's claims of when the Appellant was served,
which was not adequate time to properly respond to the motion. Similar to a
motion for summary judgment, a motion to declare a person, as a vexatious
litigant will alter a lawsuit, and in many cases result in a dismissal. Under
the Tex. R. Civ. P., a party must give the party who's being served a
summary judgment 21 days notice. The purpose of notice provision is to
give the party opposing the motion a full opportunity to respond on the
merits. Stephens v. Turtle Creek Apartments, Ltd., 875 S.W.2d 25, 26 (Tex.
App—Houston [14th Dist.] 1994, no writ). Likewise, Appellant should had
69
been given a 21 days notice. In addition, the trial court had dismissed the
case and the Appellant had no warning that the hearing was going to take
place and be heard.
Appellee Willing advised Judge Ramsay through her legal counsel in
the trial court that Appellant's motion to recuse does not effect him (Judge
Ramsay) because [he] (Judge Ramsay) was not named in the recusal. (RR:
Vol 3 of 4, 13—23). Willing's attorney goes on to say that there is good
cause for the trial court to continue in light ofAppellant's motion being filed
(RR: Vol 3 of 4, 19—23). Pursuant to Tex. R. Civ. P., once a judge has a
motion to recused filed against him or her, the case cannot be heard by
another judge until that motion to recuse is decided, whichneveroccurred in
this case. Willing horribly provides the trial court with justification for her
ignoring well-seated case law. Appellee Willing goes on to advise the trial
court that Appellant's motion to recuse is defective, however, case law
reinforces that this is not areason for acourt to ignore TRCP 18a, 18b. (RR:
Vol 3 of 4, P: 19, L: 7—13). Appellee Willing further argues to the trial
court that if the trial court declares Appellate a vexatious litigate and later
decides that this was improper that there is no harm caused to the Appellate.
Ofcourse, Appellate has already been substantially harmed in many ways
70
after Judge Ramsay wrongfully declared him a vexatious litigate, which he
will sue all parties involved in federal court including Judge Charles
Ramsay. (RR: Vol 3of 4, P: 22, L: 7—19). Appellee Willing admits that she
failed to conference with the Appellate but somehow believes that she cured
the defect by committing perjury to the trial court through her legal counsel.
(RR: Vol 3 Of 4, P: 44, L: 23—25, and P: 45:1—25).
The trial court made procedurally fatal decisions of appointing a
visiting judge to hear a motion before addressing important pending issues,
especially Drake's motion to recuse. And even though the Appellant
addressed those issues before the trial court, the visiting judge erred by not
stopping the hearing. Judge Charles Ramsay erred by not recusing himself
because he was not properly assigned to hear the motion to declare
Appellant as a vexatious litigant. The Judge Ramsay erred by continuing to
hear Appellee Willing's motion to declare the Appellant as a vexatious
litigant in light of the fact that the Appellant was not allowed to have
witnesses that he chose to testify at the August 19, 2014 hearing to declare
him as a vexatious litigant. The trial court's order of recusal filed into the
trial court's record was defective. The trial court's order of referral filed into
71
the trial court's record was likewise defective. Judge Charles Ramsay was
improperly assigned to hear Appellee Willing's motion by a court
administrator and not a judge. Then finally, Scot Graydon's perjury was fatal
to the order the visiting judge signed on August 19,2014.
72
N. Issue Eleven:
Appellee Seanna Willing alleged immunity did not apply and or if
it did Appellee Willing the trial court erred in not dismissing her
from the Appellant cause of action
Appellant argue that Willing's sovereign immunity did not deprive the
trial court of jurisdiction because Appellant alleged that his rights were
violated by Willing pursuant to an unconstitutional law, and action which
did not require the State's consent in order to sue. On page 34 of Appellant's
original petition (CR: Vol 1, P: 38) Drake pleads race discrimination and
conspiracy. Willing's legal counsel admitted on August 19, 2014 that Drake
underlying charges against Appellee Willing were under 42 U.S.C. 1983
violations ofhis constitutional rights (RR: Vol 3 of 4, P: 27, L: 1-9).
Drake also pled irreparable and continuing harm caused by the actions
of Appellee Seanna Willing (CR: Vol 1, P: 39). In particularly, Appellant
requested that Appellee Willing turn over to the trial court his compliant
against Judge Martin Hoffman (CR: Vol 1, P: 40). Appellant asks the trial
court for a permanent injunction against Willing abusive ways, "Likewise.
Seanna Willing aided and abetted state judge Martin Hoffman in covering up
his discriminative acts against Drake." Willing also assisted Judge Hoffman
73
in concealing his federal felony offenses, (obstruction ofjustice) thus aiding
a sitting judge in the commission of an actual felony crime.
The Appellant requested the trial court to order Appellee Willing to
properly investigate claims made by him and other nonwhites (CR: Vol 1,
P: 45). Sovereign immunity generally protects the State from lawsuits for
damages absent legislative consent to sue the State. However, when a party's
rights have been violated by the unlawful acts of a state official or by a state
agent acting pursuant to an unconstitutional law, the suit is not an action
against the State requiring the State's consent. Declaratory relief is the
proper remedy when challenging the constitutionality of a statute and that
"plaintiffs" are not required to obtain the State's consent before suing for
declaratory judgment.
The trial court never addressed or ruled on Willing's plea to
jurisdiction, as such Willing is not protected by just filing the plea. "The
truth ofthe plaintiff's allegations is at issue only if the defendant pleads and
proves that the allegations were fraudulently made to confer jurisdiction on
the court." Texas State Employees Union/CWA Local 6184 v. Texas
Workforce Comm'n, No. 3-99-171-CV, slip op. at 5. Sovereign immunity
generally protects the State from lawsuits for damages absent legislative
74
consent to sue the State. See Federal Sign v. Texas S. Univ., 951 S.W.2d
401, 405 (Tex. 1997). However, when aparty's rights have been violated by
the unlawful acts of a state official or by a state agent acting pursuant to an
unconstitutional law, the suit is not an action against the State requiring the
State's consent. See Texas Workers' Compensation Comm'n v. Garcia, 862
S.W.2d 61, 72 (Tex. App.-San Antonio 1993), rev'd on other grounds, 893
S.W.2d 504. This is true even though the judgment may be binding on the
State. See Id. Because Appellant's rights had been violated by Appellee
Willing, a state official acting pursuant to an unconstitutional statute, he
properly brought suit to remedy the violation or prevent its occurrence.
Printing Indus., 600 S.W.2d at 265-66. Appellee Willing filed a plea to the
trial court's jurisdiction to determine the subject matter of the cause of
action—however, the trial court as stated herein never addressed that issue.
The Texas Supreme Court has held that private parties may seek
declaratory relief against government officials who allegedly act without
legal or statutory authority. IT-Davy, 74 S.W.3d at 855; see Tex. Educ.
Agency v. Leeper, 893 S.W.2d 432, 37 Tex. Sup. Ct. J. 968 (Tex. 1994).
TEX. CONST. Art. I, § 19. Texas courts have traditionally followed
contemporary federal due process interpretations of procedural due process
75
issues. Univ. ofTex. Med. Sch. at Houston v. Than, 901 S.W.2d 926, 929, 38
Tex. Sup. Ct. J. 910 (Tex. 1995) see U.S. CONST, amend. XIV. The Texas
Supreme Court has held that, "where a person's good name, reputation,
honor, or integrity is at stake because of what the government is doing to
him, the minimal requirements of due process must be satisfied." Id. at 930
(citing Goss v. Lopez, 419 U.S. 565, 574, 95 S. Ct. 729, 736, 42 L. Ed. 2d
725 (1975)). As already argued, the minimal due process rights of the
Appellant were violated. A plea to the jurisdiction contests the trial court's
authority to determine the subject matter of the cause of action. State v.
Benavides, 772 S.W.2d 271, 273 (Tex. App.—Corpus Christi 1989, writ
denied).
When an affirmative claim for relief is filed by a governmental entity,
immunity from suit no longer completely exists for the governmental entity.
The Uniform Declaratory Judgment Act (UDJA) provides a waiver of
sovereign immunity, as in the case of Drake v. Seanna Willing, because
Appellee Willing failed to perform a purely ministerial act [investigate
Judge Hoffman] properly when she possessed absolute proof that Judge
Martin Hoffman treated the Appellant differently than he did white
attorneys. Appellee Willing also had the testimony of an officer ofthe court
76
that testified under oath that Judge Hoffman was hostile toward Appellant
Drake. If Willing's plea to jurisdiction was meant to dismiss the Appellant's
claim against her, then she did not have the right to file a motion to declare
Appellant as a vexatious litigant because the trial court did not have subject
matter jurisdiction over her. However, when Willing filed her motion to
declare Drake as a vexatious litigant, that in itself removed any immunity
because she was seeking affirmative relief outside ofher plea to jurisdiction.
Traditionally, appellate courts construe the pleadings liberally in favor
ofthe plaintiff, or in this case: the Appellant. Drake's intent was for the trial
court to review Willing's alleged investigation into Judge Martin Hoffman
and for the Appellee Willing to turn over to the trial court all paperwork and
results from that investigation and an order from the trial court—ordering
Willing to investigate nonwhites claims against judges, white judges in
particularly, in a fair and proper manner. Appellee Willing could not had
received better evidence from any complainer than what she received against
Judge Martin Hoffinan, but Willing was still unable to find any need to
correct Hoffman's behavior because of racial discriminative ways against
the Appellant and her conspiring with Judge Hoffman, and her efforts to
cover up Judge Hoffman's criminal behavior of assisting white attorney with
77
their obstruction of justice. These acts waived any immunity that Appellee
Seanna Willing or Judge Martin Hoffinan may have had as a state
employees or officers. Willing's affirmative defense claim of declaring
Appellant as a vexatious litigant waived immunity—thus, Willing's failed to
prove the first prong of Chapter 11 of the Texas Practice & Remedies Code,
because she failed to prove to the trial court that the Appellant could not
prevail against her. Willing only offered the fact of her alleged immunity as
to the reason Appellant could not prevail against her—which in this case,
she does not have immunity and or its waived. (RR: Vol 3 of 4, P: 26, L:
21—25, P: 27, L: 1—15).
Willing's counsel said in open court that Appellant was suing
Appellee Willing in her individual capacity also, which is true. Graydon
pointed out that in Drake's original petition under prayer, Appellant
requested: "Wherefore, Plaintiff prays for a judgment against Defendants
and each of them as follows." Appellant asked for damages against each
defendant which Willing was included. (CR: Vol 1, P: 47-48). Rather than
ask for another continuance the Appellant requests that the Court orders the
court reporter to amend the transcript. And since Willing is guilty of
conspiring with statejudges, ignoring compelling evidence, and ofracial
78
discrimination. [Persons sued in their individual capacities, on the other
hand, may not rely on sovereign immunity protections for claims against
them in that capacity, although they may assert the defense of official
immunity.] Appellant argues that Willing conduct was not lawful and that
she failed the "good-faith" test standard in light of her conduct. In order
words, a reasonably prudent state official in Willing's position with the
amount of evidence that the Appellant provided to Willing would not have
came to the same conclusions. "Defendants claiming immunity are subject
to suit if the "plaintiff" sought monetary damages from them in their
individual capacity. Id. and n. 10. Brown v. Brown, U.S. Court of Appeals
6th Cir. 1990 U.S. App. Lexis 21851. Neither the trial court nor judge
Charles Ramsay failed to resolve the Appellant's injunction or declaratory
issues or addressed Appellee's plea to jurisdiction or before declaring him a
vexatious litigant. An applicant for a temporary injunction must establish
that the party has aprobable right to the relief sought and that the party will
suffer aprobable injury in the interim, pending atrial on the merits. Walling
v. Metcalfe, 863 S.W.2d 56, 57, 37 Tex. Sup. Ct. J. 18 (Tex. 1993); City of
Friendswood v. Registered Nurse Care Home, 965 S.W.2d 705, 707 (Tex.
App.-Houston [1st Dist.] 1998, no pet.).
79
There is no question that Appellee Willing will engage in the same
discriminative ways, not only toward Appellant but most likely toward any
nonwhites who complain about white state judges, and non-attorneys who
may file claims in her office against state judges. There is more than a
probability that the Appellant will suffer future and similar harmful conduct
and scheming by Appellee Willing's if a court does not issue an injunction
against her. And finally an injunction is an equitable remedy, not a cause of
action—thus, Willing failed to prove that Appellant could not prevail against
her in an equitable remedy. Brown v. Ke PingXie, 260 S.W.3d 118, 122
(Tex. App.—Houston [1st Dist.] 2008, pet. denied). A state official does not
enjoy immunity when he or she has committed crimes or assisted others like
Judge Hoffman in his aiding of obstruction ofjustice, by impeding or hiding
or assisting Judge Hoffman by not properly investigating a criminal act by a
state judge which is her duty. Willing became part of Judge Hoffman's
crime by her actions which grants her no immunity for those actions. She
vacated her immunity and suffocated her reasons she provided the trial court
as to why the Appellant could not prevail against her (RR: Vol 3 of 4, P: 26,
L: 21—25, P: 27, L: 1—15).
80
In closing the trial court further erred in the following additional
ways: (1) the trial court erred when it signed the order declaring Drake a
vexatious litigant when Appellant received notice that the court had singed
his motion for nonsuit and Willing's motion was not on the court's docket.
Appellant did not receive proper notice; (2) the trial court erred when it
signed the order declaring Appellant a vexatious litigant because the trial
court had a ministerial duty to ensure that the Appellant was provided with
the requisite advance notice of that hearing pursuant to section 11.053(a) of
the Texas Civil Practice and Remedies Code—this did not occur in
Appellant case; (3) the evidence was legally and factually insufficient to
support the trial court's order declaring Drake a vexatious litigant because
Willing failed to comply with the first prong ofthe Tex. Civ. Prac. & Rem.
Code and for all other reasons cited herein; (4) the trial court erred when it
failed to file the requested findings of fact and conclusions of law (CR: Vol
1, P: 604—606); (5) the trial court erred when it failed to have a hearing on
Appellant motions to reconsider the trial court's orders declaring Drake a
vexatious litigant (CR: Vol 1,608—639); (6) the trial court erred as a matter
of law when it signed the orders declaring Drake a vexatious litigant because
it failed to apply the "liberal construction" standard to hispleadings.
81
CONCLUSION
The trial court failed in the ways described herein to even conduct
reasonably impartial hearings in regards to the Appellant Drake.
Appellee Willing did not meet its burden in establishing that
Appellant had no reasonable probability of success in prevailing against her,
which is the first prong in declaring a plaintiff vexatious, pursuant to
Chapter 11 ofthe Texas Practice & Remedies Code.
The Trial Court erred and abused its discretion in the ways described
as pled herein, which were substantial. The visiting judge, Charles Ramsay
had no authority to sign orders or act on Appellee Willing's motion to
declare him vexatious. Appellant Drake requests that the Court vacate the
following orders that were signed on August 19, 2014 pursuant to cause
number: D-l-GN-14-001215, which would include all orders the Appellant
has directed this Court to in this brief, including: the August 19, 2014 order
declaring Appellant Drake as a vexatious litigant with prefiling order; the
August 19, 2014 orders of referral and recusal that this Court has been
directed to in this brief, and that these orders should be stricken from the
record and vacated for the reasons pled herein.
82
Appellant finally requests all and any other relief that the court may
grant him that he may show justification.
Respectfully submitted,
Appellant
Pro-Se
P.O. Box 833688
Richardson, Texas 75083
214-477-9288
83
CERTIFICATE OF SERVICE
I hereby certify that on March 2, 2015, I served the foregoing
"APPELLANT' BRIEF," by causing one paper copy Hand Delivered to the
Clerk of the Court of the 3rd Court of Appeals Austin, and one copy was
delivered to Appellee Willing legal counsel, Scot Graydon by U.S. mail. All
other parties named herein advised Appellant that they were not a part ofthis
appeal because Appellant filed a motion for nonsuit and it was granted.
Scot Graydon
•TH
300 West 151" Street, Ste 2
Austin, Texas 78701
512-475-4413
David Harris [Refused copy because case nonsuited at trial level]
300West 15™ Street, Ste 2
Austin, Texas 78701
Telephone: 512-475-4413
Kastl Law P.C. [Refuse to respond-//**/**/ delivered copy]
4144 N. Central Expressway
Ste 300, Dallas, Texas 75204
Telephone: 214-821-0230
Vikki Ogden [Frank Waite refused copy because case nonsuited at trial]
411 Elm Street, Ste 500
Dallas, Texas 75202
Telephone: 214-653-7568
Appellant Drake
84
CERTIFICATE OF COMPLIANCE
1. EXCLUSIVE OF THE EXEMPTED PORTIONS, THE BRIEF
CONTAINS 14.980 words.
2. THE BRIEF HAS BEEN PREPARED:
A. In proportionally spaced typeface using:
Software Name and Version: Microsoft Word 2008
in Times Roman font, 14 point for text and 12 point for footnotes.
Lppellant Drake
Pro-se
March 2,2015
85
APPELLANT'S APPENDIX EXHIBITS
ACTUAL EXHIBIT'S ARE SUBMITTED TO THIS
COURT IN A SEPARATE BOUND FOLDER
1. EXCERPT FROM APPELLANT'S ORIGINAL PETITION FILED
IN THE TRIAL COURT SHOWING THAT APPELLANT SUED
WILLING AS AN INDIVIDUAL (REQUESTING DAMAGES);
2. EXCERPT FROM DEFENDANT SEANNA WILLING MOTION
HER (CERTIFICATION OF CONFERENCE) WHERE WILLING
ATTORNEY SCOT GRAYDON WAS UNTRUTHFUL TO THE
TRIAL COURT IN SAYING THAT HE CONFERENCE WITH
APPELLANT AND DRAKE RESPONDED BY SAYING,
"PLAINTIFF IS OPPOSED;"
3. SHAM ORDER OF REFERRAL BY TRIAL COURT;
4. SHAM ORDER OF RECUSAL BY TRIAL COURT;
5. ORDER ON APPELLANT'S MOTION FOR NONSUIT;
6. APPELLANT'S MOTION FOR NONSUIT;
7. APPELLEE'S ORDER DECLARING APPELLANT AS A
VEXATIOUS LITIGANT;
86
8. APPELLANT AMENDED RESPONSE TO APPELLEES
DECLARING HIM AS A VEXATIOUS LITIGANT;
9. RECORDERS RECORD OF THE AUGUST 19, 2014 HEARING
TO DECLARE APPELLANT AS A VEXATIOUS LITIGANT
BEFORE JUDGE CHARLES RAMSAY.
87
No:03-14-00665-CV
IN THE COURT OF APPEALS FOR
THE THIRD JUDICIAL DISTRICT OF TEXAS
AT AUSTIN, TEXAS
ERIC DRAKE
Plaintiff-Appellant
v.
KASTL LAW FIRM P.C. ET AL f^ECEiVED
Defendant—Appellee
ON APPEAL FROM THE 200™ DISTRICT COURT
TRAVIS COUNTY, AUSTIN, TEXAS
Trial Court No. D-l-GN-14-001215
APPENDIX EXHIBITS
Eric Drake
Pro-Se
Appellant
PO Box 833688
Richardson, Texas 75083
214-477-9288
ORAL ARGUMENT REQUESTED
day of February, 2015 to certify
which, witness my hand and seal of office.
NOTARY PUBLIC IN AND FOR
THE STATE OF TEXAS
KEVIN BILOTTI
MyCommission Expires
December 12, 2018
Exhibit"!"
Excerpt from Appellant's Original Petition
Filed with the Trial Court
.^alleged for all purposes andincorporated herein with the same force andeffect as se forth
verbatim. Plaintiff further shows as follows:
a). By extreme and outrageous behavior of depriving the Plaintiffof a just and fair
timely settlement by resorting to misrepresenting facts, and fraud.
b). By extreme and outrageous behavior ofKastl law firm as pled herein;
c). By extreme and outrageous behaviorofVikki Ogden's as pled herein;
d). By extreme and outrageous behaviorofCRCB as pled herein;
e). By extreme and outrageous behavior ofCarl Ginsberg's as pled herein;
f). Defendants conduct proximately caused severeemotional distress to the Plaintiff;
g). Plaintiff's severe emotional distress cannot be remedied by any other cause of
action.
h). Defendant's wrongful conduct caused the damages named herein, and those
damages were intentionally sought by the Defendant to cause increasedpain.
112. As a result of the above Defendants intentional inflictions to the Plaintiff, the
Plaintiff has suffered, and will continue to suffer, actual damages, loss income and benefits,
humiliation and emotional distress. Plaintiff has no adequate remedy at law and therefore
declaratory and injunctive relief is appropriate to redress the wrongs committed by the above
Defendants. The intentional emotional distress cause by the Defendants were aggravated by the
kind of willfulness, conspired, wantonness, fraud, malicious acts, fraud committed through
interstate commerce, willingness to make false and misleading statements, and malice for which
the law allows imposition ofexemplary damages.
PARYER FOR RELIEF
Wherefore, Plaintiff prays for a judgment against Defendants and each of them as
follows:
PLAINTIFFS ORIGINAL PETITION/REQUEST FOR INJUNCTIVE RELIEF PAGE 43
47
i. Special damages for Plaintiff Eric Drake in an amount to be determined at trial;
2. General damages for Plaintiff Eric Drake in an amount to be determined at trial;
3. Punitive Damages in an amount to be determined at trial;
4. Cost of suit;
5. Attorney fees for preparationand trial;
6. Attorney fees ifthere is to be an appeal to the Supreme Court ofTexas;
7. Incidental damages;
8. Past mental anguish;
9. Future mental anguish;
10. Past and future emotional distress;
11. Prejudgment interest;
12. For such other and further relief as the court deems just and proper.
DEMAND FOR JURY TRIAL
Plaintiff hereby demands trial by jury as to all issues.
PRAYER
WHEREFORE, PREMISES CONSIDERED, Plaintiff prays that the Defendants be cited
to appear and to answer herein and that upon final hearing, the Court enter judgment in favor of
Plaintiff and against each and every Defendant in the above entitled, numbered and styled cause
of action for compensatory damages, punitive damages, attorney fees, cost of court, pre-and post
judgment interest at the highest rate allowed by law and for such other further relief, general and
special at law and in equity to which Plaintiff may be justly entitled.
PLAINTIFFS ORIGINAL PETITION/REQUEST FOR INJUNCTIVE RELIEF PAGE 44
48
Exhibit "2"
Excerpt from Defendant Seanna Willing's
Motion, (Certification of Conference) where
Scot Graydon is untruthful to the trial court in making
The statement that "Plaintiff is opposed"
Scot Graydon never asked that important question to Drake
p^i?
P.O. Box 12548, Capitol Station
Austin, Texas 78711-2548
r (512) 463-2120/FAX (512) 320-0667
Attorneys for Defendant Seana Willing
CERTIFICATE OF CONFERENCE
At 9:50 p.m. on August 6, 2014, the undersigned conferred in person in court with Mr.
Eric Drake, PlaintiffPro Se, regarding the underlying Motion and the setting ofthe hearing, and
while Plaintiff is opposed to Defendant Seana Willing's Motion to Declare Eric Drake a
Vexatious Litigant, he indicated that he was aware of the hearings on the various Motions to
Declare Him a Vexatious Litigant set on August 19, 2014 at 9 a.m. at the address in this
I Supplemental Notice. Mr. Drake was provided with a copy of Defendant Seana Willing's
Motion to Declare Eric Drake a Vexatious Litigant and the original Notice ofHearing for that
Motion, and he indicated that he would be physically present in court for the hearings on that
P date.
/s/ Scot M. Graydon
SCOT M. GRAYDON
Assistant Attorney General
Ml
W\
518
Exhibit "3"
Sham Order of Referral by trial court
Notice sent: Final Interlocutory None_ DC BK14240 PG83
Disp Parties..
Dlspcode: C^
Redact pbs:
Judge, g/| M - Clerk___£ZL CAUSE NO. D-l-GN-14-001215
ii 0. -
ERIC DRAKE § IN THE DISTRICT COURT OF •*-• I—
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Plaintiff; § s
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v. § TRAVIS COUNTY, TEXASSJ
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KASTL LAW P.C., ET AL § !*S
§ uu ~ E
Defendant. § 200TH JUDICIAL DISTRICT
Order of referral t o regional presiding judge
The Court, having today received Mr. Eric Drake's attached motion, ORDERS that
Plaintiffs' Motion to Recuse is referred to the Regional Presiding Judge.
Signed this 19th day of August, 2014.
546
HsJ
P*
PS(
Exhibit "4"
Sham Order of Recusal by trial court
si
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Notice sent Final interlocutory None DC BK14240 PG78
jazz-
CAUSE NO: D-l-GIN-14-001215
ERIC DRAKE § IN THE DISTRICT COURT
§
Plaintiff § TRAVIS COUNTY, TEXAS
VS
§
§§ 200™ JUDICIALDISTRICT
KASTL LAW P.C. ET AL
Defendants
ORDER ON PLAINTIFF'S MOTION TO RECUSE
After considering Plaintiffs Eric Drake, Motion to Recuse the response, the
pleadings and arguments of counsel, the following judges: Samuel T. Biscoe, Ron Davis, Bruce
Todd,GeraldDaugherty, MargaretGomez;DavidPhillips, Eric Shepperd, Scott Jenkins, Rhonda
Hurley, Darlene Byrne, GiselaD. Triana, Amy ClarkMeachum, John K. Dietz, Lora Livingston,
Stephen Yelenosky, Tim Sulak, Orlinda Naranjo, James L. Arth, Leonard Saenz, J. Andrew
Hathcock, John Hathaway, John Lipscombe, Mike Denton, Nancy Hohengarten, Brandy Mueller,
Elisabeth A Earle, Carlos H. Barrera, Cliff Brown, David Wahlberg, Karen Sage, David Crain,
Julie Kocurek, Brenda Kennedy, Jim Coronado, and Leon Grizzard.
o AGREES to recuse herself or himself
o REFUSES to recuse herself or himself and refer this motion to another judge to
hear the matter.
Signed this f\ day of (AA^y^iJ. j 2014, Austin, (Travis County)
Texas.
HONO
Solo Page
545
IfSV
pS
Exhibit "5"
Order on Appellant's Motion for Nonsuit
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DC BK14231 PG367 R!td InThe DistrictCourt
of Travis County, Texas
EM AUG H 20ft
CAUSE NO: D-l-GIN-14-001215
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ERIC DRAKE § IN THE DlSTRl6T%?glftBW*efl
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CAUSE NO: D-l-GIN-14-001215
ERIC DRAKE § IN THE DISTRICT COURT g £
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Plaintiff § TRAVIS COUNTY,TEXAS g^
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KASTL LAW P.C. ET AL § 200
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JUDICIAL DISTRICT £
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Defendants
PLAINTIFFS MOTION FOR NONSUIT
TO HONORABLE SAID JUDGE:
COMES NOW, Plaintiff, Eric Drake and respectfully moves this Court for nonsuit of the
above cause of action without prejudice.
1. Defendants have filed several motions with the Court Motions to transfer,
motions to determine the Plaintiff as a vexatious litigate and motions to change venue. None of
the defendants conferenced with the Plaintiff prior to filing their motions with the Court, thus
violating the local rules. And because there are no pending motions that the Court can hear, for
the reason that defendants motions were Hied improperly and in violation of the local rules and
TRCP, Plaintiff nonsuit motion should be granted or he wiU file appeal to correct.
2. Plaintiff finds that the Court have possibly conspired against him with the
defendants. Since the defendants have failed to conference with the Plaintiff the Court must deny
their motions, though they may re-file but their refilling will come too late. Plaintiff therefore
files this nonsuit without prejudice. Plaintiff has not witnessed such corruption as in Travis
County courts judges which exceeds Dallas County, and those issues will addressed with further
litigation.
WHEREFORE, PLAINTIFF, Eric Drake pray that the Court nonsuit the above cause of
action without prejudice of its refilling.
Respectfully submitted;
Eric Drake
PO Box 25565, Dallas, Tx 75225
214-477-9288
527
CERTIFICATION OF CONFERNECE
Plaintiff attempted to conference with defendants and or their respected attorneys but was
unable to reach them regarding the Plaintiffs motion for nonsuit. Plaintiff files this motion for nonsuit
for the Court's consideration.
Eric Drake
CERTIFICATION OF SERVICE
I HEREBY certify that a true and correct copy of the foregoing document has been
delivered to the opposing attorneys of record via US Mail on this the />£— of August,
2014.
Eric Drake
528
Exhibit "7"
Appellees Order Declaring Appellant
As a vexatious litigant
DC BK14237 PG16
^ ,„ S&£ 1
CAUSE NO. D-l-GN-14-001215 og S*
ERIC DRAKE, § IN THE DISTRICT COURT OF | f S
Plaintiff, § Qo Z?
§ w) CO
v. § TRAVIS COUNTY, TEXAS eg ^
§ "§£ 1*1
KASTL LAW P.C., SEANA § 1° Willing by posting a
bond with this Court in the airfount of $ to cWer reasonable expenses incurred in
connection with the legation commenced by Eric Drake, iaciuding costs and attorney's fees;
that, if Eric Drakefails tojrost a $ bond Within ten calendar days ofthe signing of
this Ordet/men this suit will ok dismissed in its entirety, pursuant to Tex. Civ. Prac. Rem.Code
§11.056.
Date
JUDGE PRESIDING
555
Exhibit "8"
Appellant's Amended Response to Appellees
Declaring him as a vexatious litigant
Hted inThe District Court
«trim County, Tmw
CAUSE NO: D-l-GIN-14-001215 AUG 28 2014 ok.
ERIC DRAKE § IN THE DISTR^£j$g^ H i K «-
™TO™rCTo£W™iU^
*tan 3 hearing that Mr. Drake filed that was on August 7th, I
4 had no knowledge that that was being done prior to the
W)
11:17 5 signature on the paper. I was aware of it after the
6 fact. So any suggestion that I was involved in
Si
7 signing an order on that, without his knowledge, is
SJ
8 simply not true.
9 Having said that, Mr. Drake has already
£$£1
11:17 10 objected to one visiting judge today, and it's my
11 understanding that he does not get to do that on more
^
12 than one occasion on one particular judge.
13 With respect to the motion to recuse,
r
14 the ordinary course of business is for a respondent
pl^t
11:17 15 judge to send something to a — to the regional
16 administrative judge. And the respondent judge who
^V
17 has had a motion to recuse filed against him or her
IPI 18 should not proceed further unless good cause is shown.
19 Now, you were not named in the motion
p>
11:18 20 to recuse. And out of an abundance of caution, I can
21 provide the Court with good cause as to why this
IB
22 should go forward today. And I am prepared to do that
W& 23 if the Court would like.
24 My understanding was that this was just
SI
11:18 25 the announcements, but if you will tell me what you
1 would like me to — procedurally, what you would like
2 me to address —
3 MR. DRAKE: Your Honor —
4 MR. GRAYDON: — I will be happy to.
ii:i8 5 MR. DRAKE: — pretty much Mr. Graydon
6 has already said — I mean, I'm not trying to — to
7 really circumvent what he's saying by any stretch of
8 the imagination. But I — he may have never recused a
9 judge before and he may not understand the recusal
ii:i8l0 process.
11 The recusal process, there is tons of
12 case law on it that demands that when I file that
13 motion of recusal that the court can't do anything.
14 What the court has done is taken no action. Again,
ii:i9l5 wait until I got here, and then surprised me. You
16 can't do that. You — the court should have sent out
17 notices saying, okay, Mr. Drake, you want to recuse
18 all of us, we're all recused. We're appointing this
19 judge here to hear your case, will give me a chance to
ii:i9 20 see, A, are there any conflicts, are there any
21 problems, et cetera, et cetera, et cetera.
22 I mean, literally, due process-wise,
23 the court has just run over me with a Mack truck,
24 thinking because I am a pro se litigant that I'm not
ii:i9 25 going to say anything about it. No.
1 MR. GRAYDON: If I may, Your Honor.
2 THE COURT: You may proceed with your
3 reasons and your evidence.
4 MR. GRAYDON: Yes, Your Honor. First
ii:i9 5 of all, I would like to present the Court and opposing
6 party with Rule 18a, the recusal.
7 THE COURT: Mr. Drake, you may be
8 seated —
9 MR. DRAKE: Yes, sir.
ii:20 10 THE COURT: — while he's —
11 MR. DRAKE: Yes, sir. Thank you.
12 MR. GRAYDON: Additionally, I'm
13 providing the Court with Watkins v. Pearson, which is
14 795 S.W.2d 257. I have tabbed for the Court and for
ii:2015 opposing party the relevant section, which clearly
16 says that if I am able to demonstrate good cause as to
17 why a court should go forward, even with a judge who
18 is named in a recusal motion, the court may go forward
19 on the matter without -- as required — excuse me —
u:2o20 within Rule 18a (f) (2) (A) , which is the Texas Rule of
21 Civil Procedure that is relevant to this matter.
22 The good cause that I would put forth
23 is as follows: Within the Court's file it can be
24 noted that there were various motions to declare
ii:2i 25 Mr. Drake a vexatious litigant that were filed and set
1 for August the 19th. The first motion was filed on
2 June the 18th of 2014. Mine was filed more recently,
3 on August the 5th of 2014. Mr. Drake received notice
4 of it. It was mailed to him on August the 5th of
ii:2i 5 2014. And there was a supplemental notice of hearing
6 that was sent to him on August the 7th of 2014, which,
7 in addition, attempted to correct procedural — any
8 potential procedural defect with respect to
9 conferring; because I conferred on August the 7th with
ii:2i 10 Mr. Drake to ascertain the fact that he was, first of
11 all, opposed to the motion to have him declared a
12 vexatious litigant that I filed; and also that he was
13 aware of and would be present at the hearing today.
14 And so I filed the supplemental notice, which, in the
ii:2215 event that a court might construe there to be some
16 kind of defect, cures that defect.
17 Moreover, the purpose of the matter
18 here today is to entertain the motion to have him
19 declared vexatious litigant under Civil Practices and
ii:22 20 Remedies Code Chapter 11. The purpose of that is to
21 prevent abuse of the judicial system by pro se
22 litigants, that it — the Legislature, according to
23 Drum v. Calhoun, 299 S.W.3d 360 at 364, out of the
24 appellate court of Dallas was — indicates that the
ii:22 25 Texas Legislature sought to strike a balance between
10
1 Texans' right to access their court and the public
2 interest in protecting defendants from those who abuse
3 the Texas court system by systematically filing
4 lawsuits with little or no merit.
ii:23 5 Moreover, In re: Potts, 399 S.W. 3d 685
6 at 688, out of the 14th Court of Appeals in Houston,
7 indicates that the purpose of the statute is to make
8 it possible for courts to control their dockets rather
9 than permitting courts to be burdened with repeated
ii:2310 filings of frivolous and malicious litigation by
11 litigants without hope of success, while at the same
12 time providing protection for litigants'
13 constitutional rights to open court when they have
14 genuine claims that can survive the scrutiny of
ii:23l5 administrative — of the administrative judge and the
16 posting of security to protect defendants.
17 The purpose of this statute is to
18 protect the judicial system from the abuse that
19 Mr. Drake is perpetrating in this case and has done
ii:23 20 for years.
21 Mr. Drake, while aware of this, filed a
22 motion for nonsuit on August the 7th of 2014, which as
23 the Court would be aware, begins the Court's plenary
24 jurisdiction to entertain matters and that would be
ii:24 25 entertained for 30 days.
11
1 He then, on the same day, filed a
2 motion to recuse every judge in the county so that
3 nobody could hear the motion to have him declared a
4 vexatious litigant; in the hopes that the process
ii:24 5 involved in filing a motion to recuse would take long
6 enough to run out the Court's plenary jurisdiction so
7 that no hearing could be held on the motion to have
8 him declared a vexatious litigant.
9 There's no other purpose in filing a
ii:24l0 motion to recuse in a case that was nonsuited.
11 MR. DRAKE: I would have to object to
12 him saying what my mindset is, Your Honor.
13 THE COURT: Sustain the objection.
14 MR. GRAYDON: The motion itself seeks
ii:25l5 to recuse all judges so that the judge -- the judges
16 that improperly ruled against him do not continue his
17 or her abusive behavior, which is on page two of his
18 motion to recuse.
19 Mr. Drake filed the motion to recuse on
ii:2s20 the date in which courts did not hear his motion to
21 compel. They did not hear his motion to compel
22 because, as per Civil Practice and Remedy Code 11.052,
23 upon the filing of a motion to have him declared a
24 vexatious litigant, all litigation — all other
ii:25 25 aspects of the litigation must cease until that matter
12
1 is heard. And so the courts were without power to
2 hear his motions to compel that he set after the
3 motion to recuse was file =— or after the motion to
4 have him declared vexatious was filed. And then
11:26 5 subsequently he filed that motion to compel, and then
6 tried to have it set when he was aware that all
7 litigation aspects were stayed.
8 In the motion to recuse, it is
9 defective on its face. It does not — first of all,
11:26 10 it is based solely upon the judge's rulings from July
11 the 7th — or from August the 7th of 2014, which under
12 Rule of Civil Procedure A — 18a (a) (3) says that the
13 motion to recuse must not be based solely on the
14 judge's rulings in the case. And you can ascertain
11:26 15 from plaintiff's filings that the only reason that he
16 puts forth why people should be recused is based upon
17 the rulings on his motion to compel and the subsequent
18 motions to quash. That is listed in his motion to
19 recuse on page one, paragraph four. Just for clarity,
11:27 20 there are two paragraph fours listed on page one, and
21 I am referring to the second paragraph four on page
22 one of his motion to recuse.
23 In the event that the Court does not
24 proceed with hearing on this today, it is very likely
11:27 25 that the recusal process will allow Mr. Drake to evade
13
1 the purpose of the pro se litigant stat — of the
2 vexatious litigant statute by allowing him to
3 improperly exhaust the Court's plenary jurisdiction,
4 or at least benefit from the exhaustion of the Court's
ii:27 5 plenary jurisdiction due to the filing of his motion
6 to recuse.
7 Additionally, I'd like to show the
8 Court what I am going to refer to as Exhibit A. I
9 have filed some exhibits that, if the Court hears me,
ii:28l0 there are 62 other exhibits, so I can either call this
11 A in an attempt to not be confusing with those other
12 exhibits, or I can call it 63, I believe. What would
13 the Court prefer?
14 THE COURT: It's your case.
ii:28l5 MR. GRAYDON: Okay. I'm going to go
16 with Exhibit A simply to avoid confusion.
17 THE COURT: All right.
18 MR. GRAYDON: Your Honor, I move to
19 have Exhibit A admitted. This is a letter that
ii:29 20 Mr. Drake sent to me in — along with some other
21 motions that he filed in this lawsuit that relates to
22 his intent to file suit against the judges who refused
23 to have the hearings against him. I would ask that
24 this be admitted for this hearing.
ii:29 25 THE COURT: Number A is admitted.
14
1 (Defendant's Exhibit A admitted.)
2 MR. GRAYDON: I would also point out,
3 Judge, that this shows the bad faith that Mr. Drake
4 shows, as exhibited in this litigation, not only by
ii:3o 5 identifying that he intends — and my understanding
6 from this morning is that he has filed the lawsuit
7 that he is referring to in this letter.
8 Is that correct?
9 THE COURT: You don't need to answer
ii:30 10 the question.
11 MR. GRAYDON: Your Honor, yes, sir. It
12 is my understanding that he has filed the federal
13 litigation that he is referring to in this law —
14 letter, that includes not only the filing of suit
ii:3o 15 against the three judges who statutorily could not
16 hear his motion to compel; but it also indicates that
17 he intends to sue their spouses and the spouses of the
18 other State officials and other State officials in an
19 effort to avoid any kind of immunity that might attach
ii:3o 20 to a State official. He's intending to go after
21 spouses.
22 This demonstrates the vexatious nature
23 of his litigation, as well as the bad faith that he is
24 showing in his actions. You may certainly infer from
ii:3i 25 his actions that he is providing bad faith.
15
1 In light of that, Mr. Drake brought his
2 motion to recuse without sufficient cause, and I think
3 the evidence shows it can be inferred solely for the
4 purpose of delay, specifically to try to exhaust the
ii:3i 5 Court's plenary jurisdiction while the case has
6 already been nonsuited, so that he may avoid having
7 the hearing on the motion to have him declared a
8 vexatious litigant.
9 In the event that the Court goes
ii:3i 10 through and has this hearing, and the Court of Appeals
11 or the regional administrative judge later determines
12 that a motion to recuse would have been proper, then
13 if the Court enters an order today granting my motion,
14 it can simply be vacated. It is within the Court's
ii:32l5 ongoing authority to vacate an order or judgment that
16 the Court has entered. So there is no harm, no
17 permanent and irreversible harm, that would occur if
18 the Court hears this matter today, even if the Court
19 granted this matter today. Even if the Court granted
ii:32 20 this matter today in error, there would be no
21 irreversible harm.
22 On the other hand, if the Court does
23 not allow this matter to go forward today, then it is
24 very likely that the plenary jurisdiction will expire
ii:32 25 and that Mr. Drake, who is — was at the time faced
16
1 with at least three motions to have him declared a
M
2 vexatious litigant, will have been able to evade that
m 3 by filing a motion to nonsuit when it became clear
-
4 that the Court was not going to enter any other aspect
pf
11:33 5 of litigation before entertaining the motion as is
6 required by statute.
^
7 I can certainly call Mr. Drake to the
i- 8 stand to testify as to whether or not he filed the
9 lawsuit. And, in fact, I would like to call Mr. Drake
wt
11:33 10 to the stand.
Sis?
11 THE COURT: Would you raise your right
12 hand and be sworn.
13 MR. DRAKE: I object. He has not
r
-
14 subpoenaed me to — to testify and he cannot call me
fS?
11:33 15 to the stand unless he has subpoenaed me to do so.
16 And I object.
^1
17 THE COURT: Objection is overruled, but
^? 18 I'm not going to require you to take the stand.
19 MR. DRAKE: All right. Thank you.
SSI
11:33 20 May I respond to some of this that he's
21 saying?
w
r 22 THE COURT: You may later.
IssssJ 23 MR. DRAKE: Okay.
24 THE COURT: When he gets through, you
V
11:33 25 may
17
1 MR. GRAYDON: Mr. Drake, did you
2 recently file a lawsuit in the Northern District — in
3 the United States District Court for the Northern
4 District of Texas?
ii:33 5 THE COURT: I'm not going to force him
6 to answer. You need to move on.
7 MR. GRAYDON: Okay. Mr. — Mr. Drake,
8 did you file all of the lawsuits identified in
9 Exhibits 1 through 62 that were attached to the motion
ii:3410 that was filed?
11 MR. DRAKE: I haven't had a chance to
12 look at them yet, at this point in time. You'll have
13 to identify —
14 MR. GRAYDON: Please — please, take
ii:34l5 your time.
16 MR. DRAKE: No. No.
17 MR. GRAYDON: Take your time. They're
18 right here, they're in front of you. I've handed them
19 to you.
ii:34 20 MR. DRAKE: Objection. I object. I
21 object. We're not -- we're not going to have an
22 argument — Your Honor, we shouldn't be arguing here.
23 Let him just go ahead and present his case because
24 there are some procedural problems with his motion.
ii:34 25 He did not — he stood here and told the Court that he
18
1 conferenced with me and he did not conference with me.
2 That's number one.
3 Under the local 'rules, he has to
4 conference with me before he filed his motion. He
11:34 5 failed to do so. And he realized that, so on the 7th,
6 he tried to botch it up. With — with him filing this
7 motion without conferencing with me, it is defective.
8 And I am quite sure that the appellate court will
9 reverse a ruling to declare me as a vexatious litigant
11:35 10 when his motion itself is defective. He needs to
11 stand — he needs to stay with the Chapter 11 of the
12 Texas civil code of remedy and prove his case based
13 upon that. And he has failed to do so.
14 MR. GRAYDON: I haven't even begun,
11:35 15 Your Honor.
16 MR. DRAKE: Well, I'm waiting. Go
17 ahead.
18 THE COURT: Be seated.
19 And you may proceed.
11:35 20 MR. GRAYDON: I'm going to move to have
21 Exhibits 1 through 60 — 1 through 62, which were
22 attached to the motion to dismiss — excuse me — to
23 the — Seana Willing's Motion to Declare Eric Drake a
24 Vexatious Litigant that was filed with the Court on
11:36 25 August the 5th of 2014. I would ask that Exhibits 1
19
1 through 62 be admitted into evidence.
2 THE COURT: 1 through 62 are admitted.
3 (Defendant's Exhibits 1-62 admitted.)
4 MR. DRAKE: I would like to also object
ii:36 5 to those exhibits being that -- for what he's trying
6 to use them for, they are defective. And I note my
7 objection.
8 THE COURT: Objection overruled.
9 MR. DRAKE: Okay.
ii:36l0 MR. GRAYDON: In fact, Your Honor, I
11 have certified copies, if I can give them to the
12 Court.
13 THE COURT: You may.
14 MR. GRAYDON: One moment, please,
ii:37l5 Your Honor.
16 Your Honor, Chapter 11 requires that a
17 defendant show a couple of different things in order
18 to have an order entered declaring Mr. Drake a
19 vexatious litigant. The first is that Mr. Drake
ii:38 20 has -- I want to get the language correct here -- that
21 there is not a reasonable probability that the
22 plaintiff will prevail in the litigation.
23 In the instant case, Ms. Willing filed
24 a plea to the jurisdiction in which she identifies
ii:38 25 that she has sovereign immunity and that Mr. Drake has
20
1 articulated no waiver of sovereign immunity. In
2 addition, it demonstrates that Mr. Drake did not
3 establish his standing to bring any claims against
4 Ms. Willing. And he has not alleged even a prima
ii:38 5 facie case against Ms. Willing. Moreover, because he
6 sued Ms. Willing in her official capacity, the
7 underlying charges against him were under 42 U.S.C.
8 1983, a violation of his constitutional rights, and
9 Ms. Willing in her official capacity is not legally
ii:39l0 considered a person within the meaning of 42 U.S.C.
11 1983. That matter is fully briefed in the Defendant
12 Seana Willing's plea to the jurisdiction, which was on
13 file before the filing of the motion to declare Eric
14 Drake a vexatious litigant. So there is no likelihood
ii:3915 that he would succeed in this matter against
16 Ms. Willing even before he filed his nonsuit in this
17 case.
18 Once that's established, then he —
19 the — there are a couple of different ways in which
ii:39 20 Mr. Drake's vexatious litigant history may qualify
21 under Chapter 11. He has previously been declared a
22 vexatious litigant in federal court, which is
23 articulated on Exhibit 1, in which the Eastern
24 District — the federal court in the Eastern District
ii:4o 25 of Texas, in three separate lawsuits, entered a single
21
1 opinion declaring him a vexatious litigant and barring
2 him from filing any further suits in that district
3 without the permission of the senior judge.
4 So pursuant to Texas Civil Practice and
ii:4o 5 Remedies Code 11.054, paragraph 3, Mr. Drake qualifies
6 to be declared a vexatious litigant under that section
7 of the statute.
8 In addition, under 11.054(1)(A) and
9 (B), if — it may be shown that the plaintiff has
ii:4o 10 commenced, prosecuted, or maintained as a pro se
11 litigant at least five litigations, other than in
12 small claims court, that have been, (A), finally
13 determined adversely to the plaintiff; (B) , permitted
14 to remain pending at least two years without having
ii:4i 15 been brought to trial or hearing; or (C) , determined
16 by a trial or appellate court to be frivolous or
17 groundless under state or federal laws or rules of
18 procedure.
19 The relevant portion will be that I
ii:4i 20 have — I have demonstrated and provided the Court
21 with evidence of at least five litigations, other than
22 in small claims court, that have been finally
23 determined adversely to the defendant, which all were
24 filed within the last seven years, as is required by
ii:4i 25 CPRC 11.054.
22
1 In fact, I have not provided the Court
2 with evidence of only five, I have provided the Court
3 with evidence of 25 different lawsuits within that
4 relevant time period that Mr. Drake has filed as a
ii:4i 5 pro se litigant that have been adversely determined
6 against him.
7 In addition to that, in the motion to
8 declare a vexatious litigant, I have identified — I
9 have identified some lawsuits that he has filed that
ii:42 10 have been adversely determined at the trial court
11 level, but that are on appeal. I believe that is in
12 15 — page 15 and 16 of Defendant Willing's Motion to
13 Declare Eric Drake a Vexatious Litigant. He has not
14 had a final adverse determination, so those are not
ii:42l5 included in the 25 that have been adversely determined
16 against him.
17 Your Honor, in light of the fact that
18 this lawsuit has been nonsuited, but apparently he has
19 refiled in federal court, with respect to this
ii:42 20 litigation, I do not know that requiring Mr. Drake to
21 put forth security in this cause number, which is
22 D-l-GN-14-001215, I don't know that asking him or
23 ordering him to furnish security would be appropriate
24 at this time. But what we would ask the Court to do
ii:43 25 is declare him a vexatious litigant and, further, to
23
1 enter the prefiling order that that chapter allows.
2 In the event that you have — in the
3 event that you grant this, I do have a proposed order
4 that contains the good cause that I have presented,
ii:43 5 and so I would ask the Court to — in the event that
6 it grants the motion to file that order, that I can
7 provide it to the Court.
8 THE COURT: Anything — anything
9 further?
ii:44l0 MR. GRAYDON: No, Your Honor.
11 THE COURT: Reply.
12 MR. DRAKE: Thank you, Your Honor.
13 The plaintiff will reply first by
14 saying that, again, the motion is defective because
ii:44l5 Defendant Willing failed to follow local rules and
16 conference with me. In fact, none of the defendants
17 conferenced with me. We got some defendants that
18 won't talk to me on the telephone, won't even — won't
19 talk to me at all.
ii:44 20 In regards to Mr. Graydon's false
21 testimony that he conferenced with you, he has
22 perjured himself, and I am going to find it pleasure
23 to prove that he did so. But that's for another
24 court.
ii:45 25 In order to declare me as a vexatious
24
1 litigant, the defendant will have to prove that the
2 case that I filed, not just Ms. Willing, but the case
3 itself against each and every defendant — this is the
4 difference between someone who don't understand and
ii:45 5 has not researched the vexatious litigant statute as
6 well as I have. When there is multiple defendants,
7 you have to prove that each one of the defendants that
8 the plaintiff could not prevail against, not just one.
9 Case law substantiates that.
ii:45l0 Number two, he can't prove — I haven't
11 been allowed to prove that Ms. Willing is not because
12 of due process. I have tried to subpoena witnesses on
13 my behalf to testify and each time they have had
14 motions to quash, whether I'm trying to take
ii:46l5 depositions, or subpoenaed them here. I believe that
16 the appellate court will agree with me that you can't
17 have it both ways, Ms. Willing. You cannot cut my arm
18 off and say that you cannot have your witnesses that
19 you need for this hearing to declare me as a vexatious
ii:46 20 litigant, and at the same time say, Mr. Drake, now go
21 swim with these iron shoes on, as you — and compete
22 with Mark Spitz. He cannot say I cannot have the
23 witnesses that I need without violating my due process
24 rights.
ii:46 25 In regards to the motions itself for
25
1 transfer, there is case law that says that the
2 appellate court will reverse if I am not allowed to
3 take depositions. I tried my best to get my discovery
4 together so that I could properly bring this case
ii:46 5 before the Court so that the Court could see that I
6 have a strong case, but I cannot possibly prove my
7 case if I'm hindered from discovery, if I'm hindered
8 from getting my witnesses here today. Each one of the
9 defendants has systematically filed their motions to
ii:47l0 quash any effort that I've made in order to try to
11 establish that.
12 They want to declare me as a vexatious
13 litigant, but they do not want me to be able to prove
14 my case, that these cases does have vitality, that
ii:47l5 they are — that it does have merit.
16 But, again, Your Honor, based on case
17 law, Mr. Graydon here would have to prove that every
18 defendant on that — that's in this case, that I have
19 no probability of proving that case. And that has
ii:47 20 been tried against me with much better attorneys than
21 he do, with Drake v. Andrews, and I'm the Drake, and
22 they lost in the appellate court because the court
23 says they failed to prove that Mr. Drake didn't have
24 any reasonable probability of success.
ii:48 25 And I'm pretty sure that the appellate
26
1 court will agree with me that if you're going to
2 restrict me from being able to have the witnesses that
3 I need, that that in itself is stopping me from being
4 able to prove my case, that it does have merit. Every
ii:48 5 turn, they have stopped me from being able to get the
6 witnesses to show that those cases are — that this
7 case is — you know, that it has merit.
8 Then further, Your Honor, as we look at
9 this case, vexatious litigant case law says that if I
ii:4810 file suit against 35 defendants — now, this is case
11 law. This is not something that Mr. Graydon could
12 read. And one of those defendants, I settle with
13 them, they cannot declare me as being a vexatious
14 litigant.
ii:49l5 Also, the same case law that I will
16 plead to the appellate court, if I have to do so, in
17 the Third Circuit, says that if I can prove that any
18 one of those defendants that I have filed suit
19 against, Ms. Kastl, any of them, that that case has
ii:49 20 merit, which Mr. Graydon didn't say Ms. Kastl's
21 lawsuit didn't have merit. He only pointed to
22 Ms. Willing. He would have to prove that each one of
23 these defendants that I filed against them involve
24 that.
ii:49 25 Then, moreover, Mr. Graydon, what he
27
1 has done is that he said, here is all this evidence to
BR!
2 the court, but he has not called out the cases that he
S^ 3 and himself have determined that were against me, that
4 they were finally ruled against me. Yes, there are
51
11:50 5 cases that are on appeal, but what I'd like to see,
6 Your Honor, Mr. Graydon to do is to say, okay,
Itipi
7 Your Honor — and he said that I filed 25 cases in the
«p) 8 last seven years, which is also a falsity. That's not
9 true. There are cases right now on appeal, yes. In
SB!
11:50 10 fact, there are cases that he has probably included in
11 here that have been settled that he don't even know
"3
12 that they have been settled.
iijwV 13 In regards to the Eastern District of
14 Texas, he told this Court that they declared me as a
iBSI
11:50 15 vexatious litigant, and that is a lie. What the court
16 did do is say that in order for you to come back to
S5I
17 this court, because one of the judges got upset with
"53 18 me filing pleadings there, the judge ruled that I
19 would have to get permission before I could come back
Tf^t!
11:50 20 as a pauper. The court did not declare me as a
21 vexatious litigant. That court also made the
SI
22 assumption that the Andrews case that I fought for
«fSl 23 seven years, that I had been declared as a vexatious
1
24 litigant. That was overturned because the appellate
hS!
11:51 25 court recognized that Mr. Drake is not a vexatious
28
1 litigant. In fact, Mr. Drake has never been declared
2 properly as a vexatious litigant, ever. Mr. Graydon
3 here has stood before this Court and gave this Court
4 false information.
ii:5i 5 Now, before this Court makes any
6 decisions, I would respectfully request the Court —
7 because I didn't know what he was going to say — I
8 would respectfully request this Court to take both
9 arguments under advisement and allow each one of us to
ii:5i 10 file, if we need be, briefs. And in my brief I will
11 point out -- because either I'm going to file it here
i
12 or I'm going to file it in the Third Circuit, either
13 one. I'm going to point out the fact that, number
14 one, that no federal court has declared me as a
ii:5i 15 vexatious litigant; number two, that I have not filed
16 25 cases that have been adverse against me in the past
17 seven years. Some of those cases that he talked
18 about, I've settled.
19 And, again, if I have 25 defendants -
ii:52 20 this is what case law says, Your Honor - and I settle
21 with any one of those defendants, the case cannot be
22 construed as being vexatious. Because attorneys do
23 that all the time. They file suit and they have many,
24 many different defendants, and then they will let this
ii:52 25 guy go and let that guy go, and et cetera, et cetera.
29
1 But I think the biggest issue here — one of the
2 biggest issues is my due process. They're preventing
3 me from calling my witnesses that I need. I tried to
4 call Ms. Willing. No, motion to quash. You can't
ii:52 5 quash me and then not allow me to bring them.
6 I tried to bring Ms. Ogden, which that
7 case, if the court would allow me to put her on the
8 stand and cross-examine her, you'd say, wow, yeah,
9 Mr. Drake got a case here. But what do they do? They
ii:52l0 file motions to quash. Ms. Kastl: Motions to quash.
11 Everybody has filed their motions to quash, and if
12 this Court should rule in favor of Ms. Willing, I
13 think the appellate court will say, well, Judge, you
14 can't — you can't stop Mr. Drake from putting on his
ii:53l5 evidence, if that's what they're trying to do, and at
16 the same time declare him as a vexatious litigant.
17 You cannot do that. And that's what their — that's
18 what their goal. They did not want me to be able to
19 prove my case by trying to stop me from taking
ii:53 20 depositions.
21 When I file a lawsuit, Your Honor, I'm
22 aggressive. I am. I filed a lawsuit and I come right
23 out of the gates with discovery, written discovery,
24 depositions. And the only thing that they can do to
ii:53 25 stop me is file a frivolous motion like this to try to
30
1 stop me from moving forward.
2 Now, Mr. Graydon also said that, well,
3 Mr. Drake knows that the statute itself stays
4 everything. I saw that they — that they had filed
ii:54 5 notice that I was already a vexatious litigant,
6 because the judge in Dallas County, Judge Ginsberg, on
7 his own declared me as a vexatious litigant based upon
8 an older order that had already been reversed, part of
9 what the appellate court had done. Well, but that
ii:54l0 came too late. So Judge Ginsberg's order came too
11 late. And I can prove that.
12 Ms. Kastl, that case, I have over 32
13 pieces of evidence. Ms. Kastl don't want to take that
14 stand. She already has perjured herself in Dallas,
ii:54l5 Texas. And so I filed a suit here trying to get this
16 together and to move forward.
17 But if the Court should grant the
18 defense motion, then it would force me to file an
19 appeal, and the appellate court is going to ask a
ii:55 20 simple question, was Mr. Drake's rights -- due process
21 rights violated? Yes, they were, because I can't get
22 any witnesses here because they'll block them. You
23 can't do that, and then declare me a vexatious
24 litigant. You can't block me from trying to prove my
ii:55 25 case and at the same time say, these cases doesn't
31
1 have merit. That's what they want. They want it both
2 ways, Your Honor, and you can't have that.
3 The motion is — and it's improper
4 before the Court because, again, Mr. Graydon did not
ii:55 5 conference with me. And he said -- he.stood here and
6 said that he did. Well, he's going to see that again
7 in not only appellate court, but through the Bar
8 association.
9 Procedurally, his motion is also -- it
ii:55l0 fails. He has not shown that the entire case
11 against — that he's referring to is frivolous. He's
12 just only pointed out his one client, and he'll have
13 to show that each one of those defendants is
14 frivolous, and he's failed to do so.
ii:56l5 You can't pick and choose and say,
16 well, I want to pick this defendant and say, well,
17 see, this case, Your Honor, is not good, but the rest
18 of them, he never commented on them. He never
19 commented on Ms. Kastl's case. He never commented on
ii:56 20 Ms. Ogden's case. He never commented on any of these
21 cases whatsoever. So he's failed to prove the first
22 prong, and that is, whether or not I would be
23 successful or not against any and all of those, not
24 just one. And there's case law that will substantiate
ii:56 25 that, too.
32
1 THE REPORTER: Is there — is it
2 Ms. Olgen or —
3 MR. DRAKE: Ogden, O-g-d-e-n. Vikki
4 Ogden. Yes, ma'am.
ii:56 5 THE REPORTER: Thank you.
6 MR. DRAKE: In many respects it's
7 already brought up, the court has failed to follow the
8 TRCP as far as the recusal, and Mr. Graydon spent a
9 lot of time with that. But Mr. Graydon., himself,
ii:56l0 failed to follow the local rules. We were here on the
11 7th, Your Honor, sitting in court, and Mr. Graydon
12 realized that he hadn't conferenced with me so he
13 could try to fix it. But you — you don't try to fix
14 it - I'm not going to tell him how to fix these
ii:57l5 pleadings. He's an attorney - to have — to have made
16 that work for him, but he did not conference with me.
17 And I can prove it. He stood here and told the Court
18 an outright, flat-out lie, and I'm going to be able to
19 prove that to the Court, too.
ii:57 20 He told the Court that I conferenced
21 with Mr. Drake, and I asked Mr. Drake whether or not,
22 indeed, you know, through any — when you're — when
23 you're talking about a conference, whether or not he
24 was opposed to it, he didn't use that language. He
ii:57 25 knows that and I can prove that.
33
1 The defendant's motion is moot because
2 he failed to do what he should have done. And more
3 importantly, Your Honor, because he failed to
4 conference with me, his motion, itself — and I'm not
ii:57 5 going to tell him how he should have fixed it. But he
6 was so in a hurry when he heard Judge Meachum, Amy
7 Meachum, say that, hey, we've got a new rule here that
8 you have to conference, and he realized he hadn't
9 conferenced with me, so he tried to go out and put a
ii:58l0 Band-Aid on it, and that's not how you should have
11 done it.
12 My motion for nonsuit has been signed
13 by the court, by a judge, by a sitting judge, and that
14 motion for nonsuit was filed before he had a chance to
ii:58l5 file anything else to try to correct his motion. And
16 I will show the appellate court, if I have to, that.
17 He has failed to file this timely and procedurally
18 correct, and because he has, the Court should deny it.
19 Not only that, but, there again, as far
ii:58 20 as the prong of showing that each and every one of
21 those defendants that I had no reasonable probability
22 of being successful against, he has failed. And I
23 have yet to hear, in the last five years, what cases
24 he's referring to. I'd like for him to put that on
ii:59 25 the record what cases he's referring to that were —
34
w^
i were ruled against me. I don't — I don't know what
2 those cases are. I would like for him to put that on
Si
3 the record.
.
4 The last — the statute says that I —
19
r 11:59 5 he would have to be able to prove, he said, in seven
^v
6 years, six years, the last at least six cases that —
1 7 excuse me — five cases that I have had ruled against
w\
8 me. I have not heard those cases at all. And this is
--
9 going to be something that we'll have to deal with in
K5fr
11:59 10 the appellate court, but the vexatious litigant
11 statute is a state injunction. It does not stop me
m
12 from filing federal lawsuits at all. It is a state
13 injunction. It has — and there is case law that
r
14 proves that. That means that, what he don't know,
w\
11:59 15 that you can't even use, technically speaking, any
16 federal lawsuits because the federal lawsuits have
155)
17 nothing to do with state claims. But the case law
1S9
18 will speak to this. Of course, he don't know this,
19 and he'll have to go research it.
r 12:00 20 I have been tried -- there have been
21 defendants that have tried to declare me as a
si
i • 22 vexatious litigant since 2004 and no one yet has been
W$k
23 able to withstand what the appellate court says, no,
24 that won't work.
"-'
12:00 25 And in this particular case, due
35
process rights have been violated. He's failed to
show that each and every one of these defendants — he
cannot show this — that each one of the defendants,
that I have no merit to it. He can't show that.
12:00 5 That's impossible. It's literally impossible for him
6 to show this. And if I don't prove it to this Court,
r 7 I know very well that I'll prove it to the appellate
p^i 8 court. There's no question about that.
L
9 I'll also prove to the Court that he's
s^
12:00 10 failed to even show that there has been six cases that
11 have been ruled against me. I would like to see those
R}
1 12 cases, those state cases that have been ruled against
tfS 13 me.
14 Your Honor, this motion for vexatious
12:01 15 litigant is just a way to stop me from getting to the
16 discovery in this case.
lap!
I
17 Now, let me explain to the Court very
f$^ 18 quickly, and then I will close, what happened on the
19 7th. On the 7th, I came to this Court with the
r
12:01 20 expectation of having my motion to compel to be heard.
21 And what happened was that Mr. Graydon here got
1
22 together with Ms. Kastl's assistant, he went out in
23 the hall and he told him to go downstairs and get
r
24 Ms. Orlinda —
r 12:01 25 MR. GRAYDON: Your Honor, I'm going to
36
1 need to object. This is not accurate as to what
2 happened in the least.
3 THE COURT: Overrule the objection.
4 You can answer later.
12:01 5 MR. GRAYDON: Yes, sir.
6 MR. DRAKE: And next thing you know,
7 the case was moved to another court. And Timothy
8 Sulak says, I'm sorry, Mr. Drake, but, you know, we've
9 got an order here. I wasn't at all advised by the
12:0210 Court, by anybody, that there was a hearing going on
11 for an order. Mr. Graydon knew that that was going
12 'on, and he's denying it, just like he just told the
13 Court, and he's perjured himself and said that he
14 conferenced with me, and that is not true. And I will
12:0215 prove that not by a preponderance of evidence,
16 Your Honor, but I'm going to prove it beyond a
17 reasonable doubt that he's already perjured himself
18 and lied to this Court.
19 He believes because he's an attorney,
12:0220 he comes from the attorney general's office that he
21 can just say just about anything. Yes, I filed a lot
22 of lawsuits, and some of them, like Andrews, I fought
23 that case for eight years. Eight years. Eight years.
24 But I filed that case with vigor because I knew, just
12:02 25 like with this case, that I was right, and the
37
1 appellate court agreed with me. And the Texas Supreme
2 Court would not even hear the defense at all because
3 of the circumstances.
4 Now, this is the case that they say
12:03 5 that Mr. Drake was declared a vexatious litigant,
6 whereas the appellate court say this case has merit
7 and the Texas Supreme Court says, I agree. You
8 couldn't even get a better case than that. A rear-end
9 collision, medical bills, and in the court's docket
12:03 10 I've got affidavits of medical records, affidavits of
11 costs, and Ms. Andrews lied 37 times in her
12 deposition. Yet, because I'm an African-American, and
13 a pro se litigant, we can declare Mr. Drake a
14 vexatious litigant. That will stop him.
12:03 15 I'm asking the Court to deny their
16 motion to declare me as a vexatious litigant. They
17 have failed to prove the first prong as in Drake v.
18 Andrews. My due process rights has been violated.
19 I — I can't get any of my witnesses here. It is
12:04 20 wrong. It was wrong what they did with the motion to
21 compel. They waited until I got here. There was no
22 order, nothing, until I got here, and then all of a
23 sudden we've got an order, you know, thank you very
24 much, sir, you drove six hours, I'm sorry. It's
12:04 25 wrong.
38
1 Thank you.
2 THE COURT: Reply.
3 MR. GRAYDON: Your Honor, to the extent
4 that the Court might interpret a lack of certificate
12:04 5 of conference in the motion to declare him a vexatious
6 litigant that was filed on behalf of Seana Willing, I
7 will stand here and I will tell the Court that prior
8 to filing the motion, I did not confer with Mr. Drake.
9 However, when I became aware that the
12:04 10 local rule required a conference, which was on August
11 7th, I asked Mr. Drake on that date if he was aware
12 that the motion had been filed. I confirmed that he
13 was, in fact, opposed to the motion. I confirmed that
14 he was aware of the hearing that was scheduled for
12:05 15 this date, and he told me expressly that he was going
16 to be here on this date, and, in fact, he is here on
17 this date.
18 I filed on August 7th the supplemental
19 notice of hearing in which I have that certificate of
12:05 20 conference in there. To the extent that there might
21 have been some sort of procedural defect, I believe I
22 have cured it. You have heard nothing from Mr. Drake
23 as to how he was prejudiced by the fact that I
24 conferenced with him on the matter on August the 7th,
12:05 25 which was 12 days before today's date. You have heard
39
1 nothing suggesting that he was in any way prejudiced
2 by the fact that the conference occurred on
3 August 7th.
4 With respect to the suggestion that in
12:06 5 order to succeed, a defendant must show that Mr. Drake
6 has no hope — reasonable hope of success against any
7 of the defendants, you have heard no case law
8 suggested to the Court that this is the case. There
9 have been no filings with the Court suggesting that
12:06 10 this is the case, in which any of those cases were
11 identified.
12 Moreover, Mr. Drake has gone to the
13 trouble of dismissing his case against all the
14 defendants, which certainly indicates that he will not
12:06 15 be successful in this cause of action against any of
16 the litigants.
17 With respect to the motion to transfer,
18 I'm not even addressing that, because that's not set.
19 I didn't file a motion to transfer. I have no idea
12:07 20 why that's being referenced.
21 With respect to the motion to compel,
22 there's been no evidence presented to the Court that
23 anyone could have been called to — or a deposition
24 was appropriate in this matter to demonstrate any of
12:07 25 the elements to have him declared vexatious.
40
1 With respect to the requirement to show
2 that he would not have been successful against
3 Ms. Kastl, in the motion itself, I number the 25
4 things — litigations that Mr. Drake has filed and
12:07 5 that have been adversely determined against him within
6 the last seven years. They are listed with the name,
7 which court they're in, and the cause number for them.
8 And the exhibits that are admitted into evidence
9 support each of these 25. They are before the Court.
12:08 10 I have not gone to the trouble of listing them, but
11 they are listed in the motion itself, and the evidence
12 is before the Court with respect to each of those 25.
13 Two of them are against Ms. Kastl, and
14 they have been adversely determined against this
12:08 15 plaintiff. In fact, one of them was against Ms. Kastl
16 and Ms. Ogden and it has been determined adversely
17 against the plaintiff; that is, Eric Drake v.
18 Kristina Nadine Kastl, et al, in the 193rd District
19 Court of Dallas County, Texas, Cause Number
12:0820 DC-13-14911. It is the 15th of the 25 that I list.
21 15th litigation. It is documented on Exhibits 31
22 through 33, which are before the Court in evidence.
23 In addition to that, the 18th
24 litigation that I referenced is Eric Drake v. Kristina
12:09 25 Nadine Kastl, et al., in the County Court at Law
41
iSi
1 Number 5 of Dallas County, Texas, Cause Number
2 CC-13-03247. And that is Exhibits 49 and 50.
W$t 3 And one moment, please, Your Honor.
4 And that also — Exhibits 49 and 50
!5ty
12:09 5 indicate that this lawsuit was filed against Kristina
6 Nadine Kastle and Kastl Law, PC. And in the briefing,
HFN
7 I have quoted Mr. Drake, who identifies the fact that
SSJ
8 Kristina Kastl and Kastl Law, PC, are the same entity.
Additionally, he has been declared
-
9
Wh
12:10 10 vexatious by the Eastern District in Exhibit Number 1,
11 and he was suggesting to the Court that that was not
s
12 an order filing him — finding him to be a vexatious
(ft!
13 litigant. I would ask the Court to look at Exhibit 1,
14 particularly on page five, in which the Court says —
B8>
12:10 15 one moment, please, Your Honor. I want to make sure
rtft
16 that I read this correctly to you.
1 17 On page five of Exhibit 1, there's a
pi 18 paragraph that reads, "As outlined by the Magistrate
1
1
19 Judge, plaintiff has not only filed the current cases
#T
12:11 20 in this district, but he has also filed almost a dozen
21 previous cases in the Eastern District of Texas alone.
[^(
22 Given plaintiff's history of filing lawsuits involving
[&r^
23 the same or similar allegations, the Court agrees with
24 the Magistrate Judge that the plaintiff is a vexatious
FW
12:11 25 litigant."
42
1 MR. DRAKE: Your Honor, that's a big
#>
2 difference between declaring me as a vexatious
S\
3 litigant. That particular federal judge was going by
,4 the Andrews case, which she was incorrect in believing
w$
12:11 5 that the Andrews case had declared me a vexatious
6 litigant. In fact, the appellate court said, no,
1S\
! 7 Mr. Drake is not. And they wouldn't let me even come
rfff
8 in to have a hearing.
9 Moreover, Mr. Graydon just pointed out
lii?
12:12 10 two cases of Ms. Kastl. Okay. Neither one of those
11 cases was ruled against me improperly. Neither one.
[*»
12 Number one, the case that he's citing
S?< 13 that's in Dallas County, that case got dismissed by
14 me. Now, he doesn't have, probably, privilege to
9l
12:12 15 this, and I'll have to file that with the appellate
T!$f\
16 court. So if you do rule against me, I will file a
1 17 motion for new trial and put all of that evidence in
18 there so the appellate court can see it.
f
19 Secondly, the case that he's talking
1ST
12:12 20 about in the county court, there was no case ruled
21 against me either, neither one. He's gotten
[Si
1 22 misinformation and he's given this information to the
T^
23 Court erroneously.
24 Now, I will say this, with the
iM
12:12 25 county — with the Dallas Court, he may not have that
43
1 information for some reason or another. But what I'm
«
2 saying to you is that what he's doing is compiling a
s 3 lot of cases here that the appellate court is going to
4 look at, because, you know, if you rule against me,
is^
12:13 5 I'm going to file a motion for new trial and put all
6 of that stuff into the record so that I can show it to
r 7 the appellate court.
Wmt
8 The — the case in Dallas County, I'm
9 telling the Court — I'm not an officer of the Court,
'*$$
12:13 10 but I am a licensed minister for 32 years, and I'm
11 telling the Court that that case was dismissed by me.
•
12 By me. The judge couldn't do anything with that case.
^l 13 Ginsberg came too late, just like he's coming too late
.
14 here with this case. And the county court case that
St/
12:13 15 he's referring to, no, again, that's not true either.
16 And if the Court make a decision based upon these kind
17 of facts — well, these are not actually facts —
SI 18 these erroneous suggestions to the Court, without
19 giving me a chance to show the Court through
W
12:14 20 briefing — and I think that's the best way to handle
21 this, is just to tell — he's filed — say, okay,
22 Mr. Drake, if you feel like that's incorrect, file me
*s? 23 a brief by blah, blah, blah, or I'm going to file a
24 motion for new trial and file that and all of it is
13
-12:14 25 going to be there. And then right after I file that,
44
1 then I'm going to come right behind that with a
p 2 motion — a notice of appeal, and it's going to be in
3SI 3 the appellate court, and they're going to say, well,
l_ 4 Judge, I'm sorry, Mr. Drake is right.
^7
12:14 5 He did dismiss that case in Dallas. He
6 may not have that information. Mr. Drake, as far as
33
7 the case that he's talking about in the county court
W 8 at law, Ms. — Ms. — there was a dispute over
9 Ms. Kastl's attorney's fees. This is where that
70H
12:14 10 Ms. Ogden and Ms. Kastl got in. And Ms. Kastl lied
11 under oath three times because she was scared she was
P 12 going to lose her license. So Ms. Ogden changed her
SpI 13 transcript so that it wouldn't seem like she had done
14 so. But the court gave her attorney's fees. That's
p!
12:15 15 not — that's not a case that's ruled against me and
16 against Ms. Kastl. I'm sorry. That — that is not.
wfo
17 That's not what the statute is for. It's not to go
#•, 18 and hedge and find anything that Mr. Drake does. And
-
19 that case is on appeal right now. And he's already
FriTT
12:15 20 said — Mr. Graydon already said that, hey, cases that
21 are on appeal is not found determined against me. I
r 22 expect for the appellate court to agree with me.
fiffl 23 Ms. Kastl did a horrible job.
24 But this Court does not have everything
».
12:15 25 before it right now. And to make a decision without
45
1 giving me a chance to properly respond would be an
2 error, or, you know, if you-— if you declare it
3 anyway, then I'm going to just, like I said, file a
4 motion for new trial. I know what to do. I've done
12:15 5 it many times. And then turn around and file an
6 appeal. It's there. The appellate court is going to
7 look at it and they're going to say, Mr. Drake is
8 right again. He's right. He is right.
9 The cases that he's given the court, he
i2:i6l0 does not have all the information. I want to be able
11 to get that to this Court, to the trial court. And
12 I'm asking the Court to take this under advisement, to
13. give me a chance to respond in a brief - and he can
14 respond - where I can attach whatever I need; but,
i2:i6l5 nevertheless, it's still don't overcome the fact that
16 I can't call in my witnesses here because they're —
17 they're blocking me. They're — they're keeping me
18 from proving my case.
19 I would love to have Ms. Kastl be on
i2:i6 20 the stand. I would love to have Ms. Vikki Ogden there
21 on the stand. I would love to have Ginsberg there on
22 the stand. But I can't, because they'll stop me.
23 They're tying my hands and then want me to — want to
24 declare me as a vexatious litigant. That is wrong.
12:16 25 MR. GRAYDON: May I continue,
46
1 Your Honor?
2 THE COURT: Could I have the exhibits?
3 MR. GRAYDON: Yes, sir.
4 THE COURT: And you may reply.
12 17 5 MR. GRAYDON: They are tabbed
6 (indicating).
7 THE COURT: All right.
8 MR. GRAYDON: But they don't have
9 stickers on them, do they?
10 THE REPORTER: Yeah, I've been
11 stickering them while I've been writing.
12 MR. GRAYDON: Okay. Sorry.
13 THE REPORTER: No, they're not
14 stickered.
12 17 15 THE COURT: No, they're not attached.
16 You may reply.
17 MR. GRAYDON: Yes, Your Honor.
18 The evidence before the Court speaks
19 for itself as to whether these have been adversely
12 •17 20 determined against Mr. -- Mr. Drake. They are
21 supporting the 25 cases that are listed in the motion.
22 The Court can review all the evidence that's before
23 the Court, and it speaks for itself as to whether they
24 have — whether Mr. Drake has had at least five
12 17 25 lawsuits that he filed, maintained, or prosecuted
47
1 within the last seven years that were adversely
2 determined against him. I do not need to demonstrate
3 all 25; I only need to show five. I have, in fact,
4 provided the evidence to meet all 25.
12:18 5 I will suggest to the Court that it
6 look on Exhibit 1, on page five, in which it says that
7 it agrees that he is a vexatious litigant. I will ask
8 the Court to turn the page and see the prefiling order
9 that is the federal analog to the order that we are
i2:i8l0 asking this Court to file. The suggestion that that
11 court did not find him a vexatious litigant as — in
12 the understanding of Civil Practice and Remedies Code
13 Chapter 11 is simply factually and legally incorrect.
14 Moreover, I would suggest that the
i2:i8l5 Court look at Exhibit 48. Exhibit 48 is an opinion
16 from the Court of Appeals in Drake v. Consumer County
17 Mutual Insurance Company. It demonstrates two things
18 that are significant to this. One is that that case,
19 the opinion of which was handed down on September the
i2:i9 20 28th of 2010, was maintained by Mr. Drake as a pro se
21 litigant within the last seven years; and that it was
22 finally and adversely determined against him. But
23 more significantly, this demonstrates, in the first
24 paragraph, that in this case, Mr. Drake was attempting
i2:i9 25 to appeal an order declaring him a vexatious litigant.
48
1 And that order apparently came about, according to
mj
2 this document, on appeal from the 44th Judicial
mt 3 District Court of Dallas County in Cause Number
4 09-04284; that he was attempting to appeal an order
^1
12:20 5 declaring him a vexatious litigant, and that his
6 appeal was dismissed. That it was not reversed. The
^5
7 trial court's judgment was not reversed. It was
S3|
8 dismissed on appeal, which is an adverse determination
9 against him.
S
12:20 10 MR. DRAKE: No, it's not, Your Honor.
11 And, again, he is misconstruing things. The reason
i^l
12 why it was dismissed is because the appellate court
«3f| 13 had agreed that -- and, of course, I'd have to file
14 all of this with the appellate court to review. But
Wl
12:20 15 the Andrews case, that's what this is from. He's
16 talking about the 44, that's from the Andrews case.
fS)
17 That because the court had made a determination that
W® 18 the Andrews case had merit, when the 4 4th had signed
19 that order back in 2004 regarding that same case, that
W9
12:21 20 when you have two cases that are of the same
21 circumstances, that a court has made a ruling, then
HI
22 the latter case also is considered to be moot. So
SI 23 what he's doing now is trying to — to alter the
24 circumstances completely.
12:21 25 MR. GRAYDON: If I may continue,
49
1 Your Honor.
2 THE COURT: Yeah.
3 MR. GRAYDON: As you will see, the
4 evidence speaks for itself. It is not in the Andrews
12:21 5 case. It is in a different lawsuit. It is my
6 understanding that the Andrews case was actually in
7 the 68th District Court, which is —
8 MR. DRAKE: And that's where you're
9 actually wrong, sir. And as I was saying, Your Honor,
12:2110 he's giving you --
11 MR. GRAYDON: If I may continue,
12 Your Honor.
13 THE COURT: You can answer later.
14 MR. DRAKE: All right, sir.
12:21 15 MR. GRAYDON: This shows that the court
16 did not overrule an order declaring him a vexatious
17 litigant out of the 44th District Court against — in
18 the lawsuit, Drake v. Consumer County Mutual Insurance
19 Company.
12:2220 Your Honor, the evidence is here. As I
21 have said, I have not included in my 25, which is
22 expressly stated in the motion itself -- I have not
23 included the additional litigations that have not been
24 adverse — finally adversely determined against him.
12:2225 The motion is clear, and I don't want
50
1 the Court to get confused that some of these aren't
2 final findings. The ones that are not final, I have
3 not listed in those 25 cases. I have also not listed
4 in those 25 cases, because it, under the statute, does
12:23 5 not qualify, but it is relevant for considering the
6 nature of Mr. Drake's actions. A case in the Third JP
7 Court here in Travis County that Mr. Drake filed
8 against the Fifth Court of Appeals, the Court of
9 Appeals for Dallas, when they ruled in a way that he
12:23 10 did not like.
11 MR. DRAKE: Objection. Small claims
12 courts cases are not relevant, and it's just hearsay.
13 THE REPORTER: It's just what?
14 MR. DRAKE: It is not relevant. Those
12:23 15 small claims court cases are not relevant.
16 And moreover, Your Honor, the biggest
17 thing here, as in the Andrews case, Mr. Graydon has
18 filed a lot of paperwork with the Court, just like the
19 previous attorneys have. But one thing he has failed
12:23 20 to do is to show this Court that I would be — it
21 would be impossible or unlikely for me to be
22 successful against each and every one of those
23 defendants in this case. He has failed to do so. He
24 has given this Court misinformation, false
12:24 25 information. And because the Fifth Circuit has
51
l already said that you have to — that prong, you have
"^1
2 to prove that it is a reasonable probability that I
• 3 won't be successful. And he has failed to do so
4 against each and every one of the defendants in this
1^1
12:24 5 case. He'll have to do that. He's avoided it, but he
6 cannot do so, and I know he can't. And without doing
w\
7 that, the Court cannot declare me as a vexatious
«a
8 litigant without the appellate court reversing it.
9 Just like in the Andrews case, I will bring it right
^^
12:24 10 back up again. And then, too, with the due process
ji5|
11 problems, stopping me from getting my witnesses here
12 so that I can show the Court that this case is good,
SJ
13 this case is good, this case has merit, I have a right
14 to be able to call these people. I did everything I
S|
12:24 15 could do. I did everything that is humanly possible.
16 I tried to notice them for deposition. They quashed
«U
17 that. I tried to —
mt 18 THE COURT: You're repeating now. You
19 said that several times.
p»
12:25 20 MR. DRAKE: Yes, sir. Well, he's
21 repeating himself, too, quite a few times.
r
1
22 THE COURT: I agree.
23 MR. DRAKE: Quite a few times.
r
24 What I'm saying here, Your Honor, is
pi)
12:25 25 that he failed to — to show the Court that first
52
1 prong, and that's what in the Andrews case was so
2 significant to the appellate court. I argued that
3 case where the — where the judges said to the
4 defense, now, show me how this case does not have
12:25 5 merit. And, of course, he just about swallowed the
6 whole courtroom, but he couldn't. Neither can
7 Mr. Graydon show this Court that. He can't show this
8 Court that.
9 THE COURT: Anything further?
12:25 10 MR. GRAYDON: Your Honor, Mr. Drake was
11 noticed for the hearing today. All evidence has been
. 12 put forth for the hearing. I have nothing further.
13 THE COURT: Defendant's motion is
14 granted.
12:26 15 MR. GRAYDON: May I present the Court
16 with a proposed order?
17 THE COURT: You may. Give Mr. Drake a
18 copy.
19 MR. DRAKE: I will be filing a motion
12:26 20 for a new t r i a l , and then I will file a motion for
21 appeal.
22 THE COURT: That's your right.
23 MR. DRAKE: Yes, sir.
24 MR. GRAYDON: And, Your Honor, so that
12:26 25 the Court is aware, on the first page of the proposed
53
1 order that I — I wrote, I start a paragraph saying,
pS)
2 "In accordance with Texas Rules of Civil Procedure,"
3*1 3 and I say, "this Court," I would suggest to the Court
4 that when I drafted this, I did not know a visiting
«S)
12:26 5 judge who was not subject to the motion to recuse
6 would be hearing it. I would suggest that instead of
[3S|
r 7 the words "this Court," it could be substituted with a
iw 8 judge subject to a motion to recuse or the respondent
9 judge, either one of which I think - I presented you
SI
12:26 10 with Rule 18a - might be a better language for those
11 two words.
m
12 THE COURT: You may print it in.
iffil 13 MR. GRAYDON: Yes, sir.
_
14 MR. DRAKE: The plaintiff would also
™a
12:27 15 like to have your reasons for your decision,
16 Your Honor.
P 17 THE COURT: That's not proper at this
nSI 18 time. Request is denied.
19 MR. DRAKE: Well, I will be filing,
?S|
12:27 20 like I said, my motion for new trial, and then I will
21 put everything in there, and then I will also file a
W|
22 motion for appeal.
TSI 23 Now, you realize, Mr. — Mr. Graydon,
24 that this order here is not going to be effective to
WB
12:27 25 stopping me from filing anything in state court until
54
1 after the appellate court has made a ruling on it.
2 You realize that, don't you?
3 THE COURT: Also —
4 MR. DRAKE: Then he don't know. Okay.
12 28 5 THE COURT: Also, there will be no
6 security. I'm going to mark that out.
7 MR. GRAYDON: Yes, sir.
8 MR. DRAKE: No, he couldn't get
9 security. Thank you, Judge.
12 28 10 So now we've -- so now that you've
11 declared me as a vexatious litigant, and everything
12 else, and the Court is — and the case is -- is
13 nonsuited, I guess I can't file a — I won't be able
14 to file a — well, then, procedurally, the —
12 28 15 THE COURT: I can't give you legal
16 advice. You'll have to do it on your own.
17 Court is recessed.
18
19
20
21
22
23
24
25
55
1 REPORTER'S CERTIFICATE
2 STATE OF TEXAS )
)
3 COUNTY OF TRAVIS )
4 I, Rhonda Watson, Official Court Reporter in
5 and for the 353rd District Court of Travis County,
6 Texas, do hereby certify that the above and foregoing
7 contains a true and correct transcription of all
8 portions of evidence and other proceedings requested
9 in writing by counsel for the parties to be included
10 in this volume of the Reporter's Record, in the
11 above-styled and numbered cause, all of which occurred
12 in open court or in chambers and were reported by me.
13 I further certify that this Reporter's Record
14 of the proceedings does not include the exhibits
15 offered in evidence, per the request of Plaintiff.
16 I further certify that the total cost for the
17 preparation of this Reporter's Record is $378.00 and
18 was not paid by Plaintiff due to claim of indigency.
19 WITNESS MY OFFICIAL HAND this the 2nd day of
20 October, 2014.
21
/s/ Rhonda Watson
22 Rhonda Watson, Texas CSR No. 2022
Expiration Date: 12/31/2014
23 Official Court Reporter, 353rd District Court
Travis County, Texas
24 P.O. Box 1748, Austin, Texas 78767
Telephone (512) 854-9356
25