ACCEPTED
03-14-00665-CV
4681580
THIRD COURT OF APPEALS
AUSTIN, TEXAS
3/27/2015 5:05:16 PM
JEFFREY D. KYLE
CLERK
Case No. 03-14-00665-CV
______________________________
FILED IN
3rd COURT OF APPEALS
IN THE COURT OF APPEALS FOR THE AUSTIN, TEXAS
THIRD JUDICIAL DISTRICT 3/27/2015 5:05:16 PM
AUSTIN, TEXAS JEFFREY D. KYLE
______________________________ Clerk
ERIC DRAKE
Plaintiff - Appellant,
vs.
KASTL LAW FIRM P.C., ET. AL.
Defendants - Appellees.
______________________________
On Appeal from the 200th District Court, Travis County
Case No. D-1-GN-14-001215
DEFENDANT’S MOTION TO STRIKE
TO THE HONORABLE COURT OF APPEALS:
COMES NOW SEANA WILLING, Appellee herein, and files this Motion to
Strike Appellant’s Brief, and would respectfully show this Court the following:
The maximum length of a brief in an appellate court is 15,000 words if
computer-generated, and 50 pages if not. TEX. R. APP. P. 9.4(i)(2)(B).
On or about February 12, 2015, Eric Drake (“Appellant”) asked this Court for
permission to exceed the word count in his original brief. In his motion, Appellant
admits that his brief exceeds the word limit for a brief.
On or about February 20, 2015, this Court denied Appellant’s motion.
On March 2, 2014, Appellant filed his Appellant’s Brief. In that brief, he
certified that his brief was in compliance of the word limit, as per TEX. R. APP. P.
9.4(i)(3). Appellant certified that “exclusive of the exempted portions, the brief
contains 14,980 words. [Appellant’s Brief, page 85].
The exempted portions for purposes of a brief’s length are specified as
follows:
“In calculating the length of a document, every word and every part of
the document, including headings, footnotes, and quotations, must be
counted except the following: caption, identity of parties and counsel,
statement regarding oral argument, table of contents, index of
authorities, statement of the case, statement of issues presented,
statement of jurisdiction, statement of procedural history, signature,
proof of service, certification, certificate of compliance, and appendix.”
TEX. R. APP. P. 9.4(i)(1).
Appellant’s Brief exceeds the maximum length. Ms. Willing asks this Court
to take judicial notice of the fact that exclusive of the exempted portions, the brief is
over 75 pages in length.
More significantly, despite Appellant certifying that his brief contained
14,980 words, and thus just making the word limit, the brief actually contains
approximately 16,675 words, significantly exceeding the limit established by TEX.
R. APP. P. 9.4(i)(2)(B).
Ms. Willing asks this Court to take judicial notice that the relevant portions of
Appellant’s Brief (pages 6-83) exceed the maximum length in both pages and words.
For the convenience of the Court, a spreadsheet is attached identifying how
many words are on each page. (Exhibit A). The word count for each page was
counted using “Word Counter,” an Add-on Tool for Adobe Acrobat.
Appellant’s false word count, presented knowingly to this Court despite (or
because of) his awareness of this Court’s previous ruling, is yet another example of
the bad faith in litigating this matter by Appellant, not only in this Court, but in the
Trial Court. Other examples of the bad faith in his litigation include (but are not
limited to):
1. Threatening spouses of state officials with litigation solely to avoid
immunity afforded to state officials [See Vol. 4 Reporter’s Record, pages
11-12];
2. Filing and asking the trial court to entertain Plaintiff’s Verified Motion to
Reinstate and For New Trial on the same day as filing his Appellant’s
Brief, knowing that this Court has jurisdiction over the subject matter;
3. Attempting to forum shop by asking that this appeal be transferred to the
Twelfth Court of Appeals;
4. Attempting to recuse judges on this Court based solely on speculation;
5. Attempting to recuse judges in Travis County on the day Appellant filed a
Nonsuit, so that the Trial Court’s plenary jurisdiction would expire before
the Motion to Declare Eric Drake a Vexatious Litigant could be heard [See
Clerk’s Record, pages 547-555]; and
6. Attempting to insert documents into the record that were never filed or
served on Ms. Willing.
Appellant’s misrepresentation of the length of his brief should be considered
more egregious when considered in the context of Appellant’s actions in this Court
and in the Trial Court, and when the purpose of Appellant’s appeal is to avoid being
declared (again) a vexatious litigant.
In light of his knowing misrepresentation, Ms. Willing asks that Appellant’s
Brief be stricken from the record, and that the determination of the Trial Court,
finding Eric Drake to be a vexatious litigant, be affirmed. TEX. R. APP. P. 9.4(k)
(court may strike a document prepared in a manner to avoid the limits of Rule 9.4).
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 CONFERENCE
On March 10, 2015, the undersigned attempted to confer in writing with Mr.
Eric Drake, Plaintiff Pro Se, regarding the underlying Motion. (Exhibit B, pages 1-
4). The undersigned has previously indicated to Mr. Drake that communications
should be done in writing to avoid any miscommunication or misinterpretation
regarding what parties did and did not agree to in oral attempts to confer. (Exhibit
B, pages 7-8). Although the letter was sent to Appellant on March 10, 2015, and
arrived at his address on March 11, 2015, Appellant has not picked up this letter as
of the filing of this Motion. (Exhibit B, page 5). It is assumed Appellant is opposed
to this Motion. While other parties were involved at the Trial Court level, none are
involved in the appeal.
/s/ Scot M. Graydon
Scot M. Graydon
Assistant Attorney General
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
WORD COUNT BY PAGE
Page Number Word Count
6 188
7 180
8 181
9 201
10 226
11 207
12 215
13 29
14 203
15 188
16 245
17 243
18 215
19 226
20 226
21 205
22 208
23 227
24 239
25 245
Words for Pgs 6-25: 4097
26 258
27 206
28 225
29 218
30 211
31 224
32 217
33 84
34 271
35 228
36 223
37 247
38 230
EXHIBIT A
WORD COUNT BY PAGE
39 239
40 218
41 241
42 213
43 234
44 240
45 226
Words for Pgs. 26-45 4453
46 239
47 229
48 192
49 232
50 238
51 194
52 223
53 250
54 215
55 228
56 230
57 245
58 245
59 239
60 226
61 236
62 207
63 125
64 228
65 236
Words for Pgs. 46-65 4457
66 234
67 224
68 194
69 233
70 249
71 224
WORD COUNT BY PAGE
72 44
73 214
74 218
75 245
76 232
77 224
78 222
79 236
80 230
81 250
82 195
Words for Pgs. 66-82 3668
Total Words: 6-25 4097
26-45 4453
46-65 4457
66-82 3668
Total: 16,675
EXHIBIT B
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