ACCEPTED
03-14-00665-CV
4795733
THIRD COURT OF APPEALS
AUSTIN, TEXAS
4/7/2015 4:14:38 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 4/7/2015 4:14:38 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
REPLY BRIEF FOR APPELLEE’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:
In her Motion to Strike, Appellee Seana Willing (“Ms. Wiling”) demonstrated
to the Court that despite this Court’s previous order, Appellant’s brief exceeded the
word count and should be struck for violating TEX. R. APP. P. 9.4(i)(2)(B).
On or about April 6, 2015, Eric Drake (“Appellant”) responded. In his
response, Appellant argues that it is difficult to count words. Nevertheless, this is
an obligation that all parties need to meet. TEX. R. APP. P. 9.4(i)(2)(B).
Appellant also argues that he excluded from the word count items excluded
under TEX. R. APP. P. 9.4(i)(1). Appellant for the first time tells this Court that his
“Statement of Facts” is not a statement of facts, as is required of an Appellant’s
Brief. TEX. R. APP. P. 38.1(g). Instead, Appellant has wholly omitted the required
Statement of Facts, and has instead characterized it as a “statement of procedural
history.” (Appellant’s Response, page 2). There are three problems with
Appellant’s arguments. First, while Appellant recounts filings made, this is not
simply a statement of procedural history, but is in fact argument. See, e.g.,
Appellant’s Brief, page 8, alleging, with no support from the record, that: “Assistant
attorney general Scot Graydon quarterbacked getting an order signed1 to deny the
Appellant's motion to compel…” Appellant cannot avoid the word limits of a brief
by repackaging his argument and suggesting it is a statement of procedural history.
Second, even if Appellant’s suggestion is considered accurate by this Court, and
pages 6-13 are excluded from the word count, Appellant has still exceeded the
maximum word count, simply by a smaller margin. Third, if Appellant has wholly
1
Appellant’s argument on page 8 is contradicted by his allegations on page 36, in which he
alleges that Judge “Meachum knew that Kastl was trying to get an order signed on the day of
Appellant's compel hearing…” (Appellant’s Brief, page 36) (emphasis added).
2
failed to present a Statement of Facts as required, his Brief should be struck on that
basis, as it does not comply with TEX. R. APP. P. 38.1(g). Any attempt to add a
Statement of Facts would only further exceed the already exceeded word-count for
Appellant’s Brief.
Next, Appellant argues that Ms. Willing’s attempt to confer was inadequate,
because only one letter was sent to attempt to confer. Appellant cites no authority
to support his position. More significantly, Appellant’s argument suggests that he
may simply not pick up his mail and argue that written conferring is inadequate. In
reality, Appellant was sent the written request to confer on March 10, 2015, and it
arrived in his mail on March 11, 2015. (Exhibit C2). This attempt to confer then sat
in Appellant’ mailbox for an additional 16 days, during which Appellant either did
not pick up his mail, or refused to sign for this particular mailing. (Exhibit C). After
16 days in which Appellant simply did not pick up this mail, the letter was returned
to Ms. Willing, marked “Unclaimed” by Appellant. (Exhibit D, page 5). Appellant
cannot simply refuse to receive communications and then argue that inadequate
attempts were made.
Appellant’s remaining arguments are in relation to a Motion for Sanctions,
and will be addressed in another pleading. For the purposes of this Reply, the only
2
For the purpose of clarity, Exhibits C and D are attached to this pleading, following Exhibits
A and B, which were filed with the original Motion to Strike.
3
relevant matter is that Appellant’s remaining arguments are all predicated on Ms.
Willing not filing her brief by April 1, 2015, despite the fact that she did so.
Accordingly, Appellant’s argument has no basis in fact or law.
Finally, Appellant responds to Ms. Willing’s Advisory to the Court regarding
his attempts to insert documents into the record which were not filed before the Trial
Court, nor received by Ms. Willing. Appellant states “this is the first time that the
Appellant has heard” that Ms. Willing has not received the documents he presented.
This was the first time Ms. Willing had to inform the court that she had never
received the documents. It was in response to the first time Appellant ever showed
such documents to her. Appellant does not address the internal inconsistencies that
cast doubt on the authenticity of his documents.
Under ordinary circumstances, a procedural defect might be allowed to be
cured by Appellant. In this particular instance, Ms. Willing asks this Court to
consider the following and determine that Appellant has acted in bad faith and should
not be allowed to cure his defect: Appellant presented a false word count, with actual
awareness that this Court denied his request to exceed the word count, in addition to
the numerous examples of bad faith in litigating this matter that Ms. Willing
identified previously in her Motion to Strike, and which Appellant does not deny.
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,
4
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
5
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 April 7, 2015
to:
Eric Drake
PO Box 833688
Richardson, Texas 75083
Pro Se Appellant
/s/ Scot M. Graydon
Scot M. Graydon
Assistant Attorney General
6
USPS.com® - USPS Tracking™ https://tools.usps.com/go/TrackConfirmAction.action?tRef=fullpage&tLc=1&text28777=&tLa...
English Customer Service USPS Mobile Register / Sign In
Customer Service ›
Have questions? We're here to help.
Tracking Number: EI063313274US
Updated Delivery Day: Monday, March 30, 2015
Scheduled Delivery Day: Wednesday, March 11, 2015, 12:00 pm
Money Back Guarantee
Signed for By: C PENDER // AUSTIN, TX 78711 // 10:06 am
Product & Tracking Information Available Actions
Postal Product: Extra Svc:
Priority Mail Express 1-Day™ PO to Addressee Up to $100 insurance included Proof of Delivery
Restrictions Apply
Text Updates
DATE & TIME STATUS OF ITEM LOCATION
March 30, 2015 , 10:06 am Delivered AUSTIN, TX 78711 Email Updates
Your item was delivered at 10:06 am on March 30, 2015 in AUSTIN, TX 78711 to ATTY GENERAL
12548. The item was signed for by C PENDER.
March 30, 2015 , 8:58 am Available for Pickup AUSTIN, TX 78711
March 30, 2015 , 8:25 am Arrived at Post Office AUSTIN, TX 78711
March 28, 2015 , 10:25 am Available for Pickup AUSTIN, TX 78711
March 28, 2015 , 6:42 am Arrived at USPS Facility AUSTIN, TX 78710
Arrived at USPS Origin
March 27, 2015 , 7:01 pm COPPELL, TX 75099
Facility
Arrived at USPS Origin
March 27, 2015 , 5:52 pm RICHARDSON, TX 75080
Facility
EXHIBIT C
1 of 3 4/7/2015 10:47 AM
USPS.com® - USPS Tracking™ https://tools.usps.com/go/TrackConfirmAction.action?tRef=fullpage&tLc=1&text28777=&tLa...
DATE & TIME STATUS OF ITEM LOCATION
March 27, 2015 , 5:50 pm Picked Up RICHARDSON, TX 75080
March 27, 2015 , 3:55 pm Unclaimed RICHARDSON, TX 75080
March 11, 2015 , 11:39 am Available for Pickup RICHARDSON, TX 75080
March 11, 2015 , 11:35 am Arrived at Post Office RICHARDSON, TX 75080
Arrived at USPS Origin
March 11, 2015 , 6:45 am COPPELL, TX 75099
Facility
March 10, 2015 , 9:22 pm Departed USPS Facility AUSTIN, TX 78710
March 10, 2015 , 6:58 pm Arrived at USPS Facility AUSTIN, TX 78710
March 10, 2015 , 5:42 pm Departed Post Office AUSTIN, TX 78701
March 10, 2015 , 3:41 pm Acceptance AUSTIN, TX 78701
Track Another Package
Tracking (or receipt) number
2 of 3 4/7/2015 10:47 AM
EXHIBIT D