ACCEPTED
03-14-00665-CV
4682145
THIRD COURT OF APPEALS
AUSTIN, TEXAS
3/27/2015 5:44:21 PM
JEFFREY D. KYLE
CLERK
Case No. 03-14-00665-CV
______________________________
RECEIVED IN
3rd COURT OF APPEALS
IN THE COURT OF APPEALS FOR THE AUSTIN, TEXAS
THIRD JUDICIAL DISTRICT 3/27/2015 5:44:21 PM
AUISTIN, TEXAS JEFFREY D. KYLE
______________________________ Clerk
ERIC DRAKE
Plaintiff - Appellant,
vs.
KASTL LAW FIRM P.C., ET. AL.
Defendants - Appellees.
______________________________
On Appeal from the 200th District Court, Travis County
Case No. D-1-GN-14-001215
DEFENDANT’S ADVISORY TO THE COURT
TO THE HONORABLE COURT OF APPEALS:
COMES NOW SEANA WILLING, Appellee herein, and files this Advisory
to the Court thereof would respectfully show this Court the following:
On March 12, 2015, Appellant asked this Court to supplement the Clerk’s
Record to contain documents that are not in the Clerk’s Record filed with this Court.
On March 17, 2015, this Court ordered a Supplemental Clerk’s record to be
filed, if the documents in Appellant’s Motion for Supplemental Clerk’s Record exist
in the Trial Court’s file, or that the Trial Court should notify this Court if the
documents do not exist in this file.
Independently, counsel for Ms. Willling has reviewed the files provided to her
by Plaintiff during this litigation and makes the following observations:
1) The documents purportedly filed in the trial court contain Certificates of
Service indicating that they were served on all defendants (presumably
including Ms. Willing);
2) None of the documents attached to Appellant’s Motion to Supplement Clerk’s
Record were ever received by Ms. Willing, despite the purported Certificates
of Service;
3) The documents attached to Appellant’s Motion to Supplement Clerk’s Record
have internal inconsistencies casting doubt on their authenticity, including,
but not limited to the following:
a. Plaintiff’s initial for Documents to be Included in the Clerk’s Record
was apparently mailed to the clerk on October 23, 2014 and received
on October 27, 2014, and included no reference to any Amended Notice
of Appeal. (Exhibit A).
b. In Plaintiff’s Request for Documents to be Included in the Clerk’s
Record (Appellant’s Exhibit 2), Appellant complains that on October
27, 2014, he placed an Amended Notice of Appeal in the hand of a court
clerk, but that it did not appear in the Clerk’s Record.
c. Appellant purports to have filed an Amended Notice on October 27,
2014, the day he complains about it not being previously included in
the record. (Compare Certificates of Service on Appellant’s Exhibit 1
and 2).
d. It is suspicious that Appellant complains about the Amended Notice not
being included, particularly because he did not file an Amended Notice
until (purportedly) the exact same day he complains about it not being
in the Clerk’s Record that he requested.
e. Appellant certifies that he hand delivered the purported Plaintiff’s
Amended Notice of Appeal to Appellee’s attorney on October 27, 2014.
On that same day, he certifies that he mailed Plaintiff’s Request for
Documents to be Included in the Clerk’s Record to Appellee’s attorney.
(Compare Certificates of Service on Appellant’s Exhibit 1 and 2). In
reality, neither occurred, and Appellee had never seen the documents
in question until Appellant asked this Court to supplement the Clerk’s
record on March 12, 2015.
Because the documents do not appeal in Appellee’s files, and do not seem to
appear in the files of the Trial Court, they should not be included for the first time
after Appellant has filed his brief.
Moreover, it is clear that Appellant’s request is an attempt to suggest to this
Court that many of the arguments in his Appellant’s Brief were at least referenced
in an Amended Notice of Appeal at the Trial Court level, when they were not.
Appellant did not raise several of his appellate issues with the Trial Court, before,
during, or after the hearing, in his argument before the Trial Court or in his multiple
Responses to the Motion to Declare Eric Drake a Vexatious Litigant. Accordingly,
he may not present those issues for review at this stage of litigation. See TEX. R. APP.
P. 33.1(a); see also Drum v. Calhoun, 299 S.W.3d 360, 370 (Tex. App.-Dallas 2009,
pet. denied) (holding that arguments by a vexatious litigant not raised in the trial
court are not preserved for appellate review.).
This is yet another example of Appellant litigating cases in bad faith.
Out of candor to this Court, Appellee feels it should make this Court aware
that on the exact date Appellant filed his Appellant’s Brief with this Court, he sought
to invoke the jurisdiction of the Trial Court by filing Plaintiff’s Verified Motion to
Reinstate and For New Trial, in which Appellant makes the exact same arguments
he makes in his appeal. (Exhibit B). It is clear that Appellant hopes that some court
will agree with his arguments, and he is trying to bite as many apples as possible,
even though he knows that at this stage, jurisdiction lies with this Court, and not the
Trial Court. Nevertheless, Appellant has requested that the Trial Court set his
motion for a hearing while his appeal is ongoing. (Exhibit B, page 62: “Plaintiff
respectfully requests a hearing on his motion to reinstate and for new trial.”).
In light of Appellant’s pattern of litigating cases in bad faith, which are
illustrated not only in the Trial Court, but now in this Court, the Clerk’s Record
should not be supplemented with documents never filed in court, and the Order
Declaring Eric Drake a Vexatious Litigant should be affirmed, for reasons briefed
in the forthcoming Appellee’s Brief.
Respectfully submitted,
KEN PAXTON
Attorney General of Texas
CHARLES E. ROY
First Assistant Attorney General
JAMES E. DAVIS
Deputy Attorney General for Defense
Litigation
ANGELA V. COLMENERO
Chief–General Litigation Division
/s/ Scot M. Graydon
Scot M. Graydon
Assistant Attorney General
State Bar No. 24002175
Office of the Attorney General
P.O. Box 12548
Austin, Texas 78711-2548
(512) 463-2120
(512) 320-0667 - facsimile
ATTORNEYS FOR APPELLEE SEANA
WILLING
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing document was
sent via regular mail and certified mail, return receipt requested on March 27, 2015
to:
Eric Drake
PO Box 833688
Richardson, Texas 75083
Pro Se Appellant
/s/ Scot M. Graydon
Scot M. Graydon
Assistant Attorney General
Exhibit A