Eric Drake v. Seana Willing

May 13, 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

Defendant-Appellee

ON APPEAL FROM THE 200™ DISTRICT COURT
TRAVIS COUNTY, AUSTIN, TEXAS
Trial Court No. D-l-GN-14-001215

AMENDED BREIF OF APPELLANT ERIC DRAKE

Eric Drake
Pro-Se
Appellant
RECEDED > PO Box 833688
13 2MB \ Richardson, Texas 75083
W \ 214-477-9288

ORAL ARGUMENT REQUESTED
 IDENTITY OF PARTIES AND COUNSEL

Plaintiff/Appellant/Petitioner

Eric Drake
Pro-Se
si
P.O. Box 833688
1 Richardson, Texas 75083
m (214) 477-9288

r Defendants/Appellee/Respondents

Seanna Willing
p Scot Graydon
300 West 15th Street, Ste 2
Austin, Texas 78701
512-475-4413

f" David Harris
Carl Ginsberg
P 300 West 15T" Street, Ste 2
^ Austin, Texas 78701
m Telephone: 512-475-4413

Kristina Kastl
p

Kastl Law P.C.
4144 N. Central Expressway
pi
Ste 300, Dallas, Texas 75204
' Telephone: 214-821-0230
pi

Frank Waite

m Vikki Ogden
411 Elm Street, Ste 500
Dallas, Texas 75202
P Telephone: 214-653-7568

!!p)
1B5I

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.

iB
39.1(c). This case is comprised of several 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 of action, whether or not a visiting judge can hear the

case and sign orders before the recusal is properly adjudicated and disposed

of by the proper judge. 4. Whether Appellee Seanna Willing proved that the

Appellant Eric Drake had no reasonable probability of success against her

and if Ms. Willing immunity prevented the Appellant from suing her.

b). Oral argument would also allow the Court to better analyze the

legal issues presented in this appeal. Oral argument would allow the Court to

hear from both sides of these issues and articulation of the statutes.
W

c). This appeal would benefit from oral argument and significantly
SI
aid the Court in deciding this case. See Tex. R. App. P. 38.1(e), 39.1(d).

n
 TABLE OF CONTENTS

Page

IDENTITY OF PARTIES AND COUNSEL i

STATEMENT REGARDING ORAL ARGUMENT ii

TABLE OF CONTENTS iii
3

ISSUES PRESENTED iii

EpI

INDEX OF AUTHORITIES ix

p STATEMENT OF FACTS 6

ISSUES PRESENTED FOR REVIEW

iftwil

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

r Appellant had no reasonable probability of prevailing.
iii
Iwjtf.l
ISSUE THREE

Whether or not Warren Vavra had the proper legal authority to appoint
pffl

Judge Charles Ramsay to rule on Seanna Willing August 19, 2014 hearing.

Iii3

ISSUE FOUR

Whether or not Judge David Phillips and Judge Stephen Yelenosky orders of
recusals and referrals should be vacated.
ftpl

ISSUE FIVE
S

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

S^
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
ss

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.
B

ISSUE SEVEN
i^a

Whether or not the trial court abused its discretion in signing the August 19,

(ffl
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.

fSl vi

5R
fell

BBS

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

\;i'!tf\ 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

$3
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 Drake as a vexatious litigant was procedurally defective.

ISSUE ELEVEN

Whether or not the trial court erred and abused its discretion in not ruling on

Appellee Willing's plea to jurisdiction, or dismissing Willing as a defendant,

and allowing Willing to file affirmative action when claiming immunity.

ftwl
 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
tiiSJ

Issue Two:
p3

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

lip)
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:
fftJ

The trial court failed to comply with Chapter 11 of the Tex. Civ. Prac. &

iS^
Rem Code, Rule 18a and 18b of the Texas Rule of Civil Procedure, and

other state laws and statutes 34

liiiSl
VI
f Issue Six:

f Trial court abused its discretion when the court continued to hear
Appellees Seanna Willing Motion to Declare the Appellant as a
F Vexatious Litigate in light ofthe fact that Judge Ramsay did not have
m the authority or jurisdiction to preside over Appellees Willing motion
I
to declare him a vexatious litigant 52

f Issue Seven:

p The August 19, 2014 order declaring the Appellant as a vexatious litigant
s was obtained by and through fraud, deception and perjury by Scot Graydon

an assistant attorney general 54

l~ Issue Eight:

f Trial court abused its discretion when the court continued to hear
s Appellees Seanna Willing Motion to Declare the Appellant as a
r 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
b. motion to declare Drake a vexatious litigant and prior to actually
= signing ofthe motion "4

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
pSI

Appellee Willing's plea to jurisdiction, before allowing Willing to file

affirmative action when claiming immunity. If the trial court accepted

Willing's immunity, it should have dismissed Willing as a defendant.

But Appellee Seanna Willing's alleged immunity did not apply ... 73

!P&1

STATEMENT OF THE CASE 1

STATEMENT OF FACTS 6

ARGUMENT 14

CONCLUSION 82

CERTIFICATE OF SERVICE 84

CERTIFICATE OF COMPLIANCE 85
p^

APPENDIX 86

viii
m
Fwfl

INDEX OF AUTHORITIES

Cases Page
i!pi

Mitchell Energy Corp. v. Ashworth
943 S.W.2d 436,438 (Tex. 1997) 16, 17, 18

•SR

In re Union Pacific Resources Co..
969 S.W.2d 427, 428 (Tex. 1998) 17, 46

^ Federal Sign v. Texas S. Univ..
951 S.W.2d 401,405 (Tex. 1997) 75
iRl

l- 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.
ijS\
893 S.W.2d 432, 37 Tex. 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

p£l

IX
r
 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.2d 427, 429 (1932) 53

Mapco. Inc. v. Forrest.
795 S.W.2d 700, 703 (Tex. 1990) 53

i$#\
Jeter v. McGraw.
218 S.W.3d 850, 853 (Tex. App.-Beaumont 2007, pet. denied) 53
S

Tex. Ass'n of Bus, v. Tex. Air Control Bd..
852 S.W.2d 440, 445 (Tex. 1993) 53
 INDEX OF AUTHORITIES

Cases Page

fiffi)

Fed. Underwriters Exch. v. Pugh.
•BR 141 Tex. 539,174 S.W.2d 598, 600 (1943) 53

In the Guardianship of Erickson.
fttml 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

SR

Devoil v. State of Texas.
155 S.W.3d 498; 2004 Tex.App. Lexis 10473 19, 61

Drake v. Andrews.
ffpl
14, 20,23, 26, 51

B5)

^j XI
|IU!^I

INDEX OF AUTHORITIES

Cases Page

IS)

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

pi

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

s?

Greenberg, Benson. Fisk & Fielder v. Howell.
685 S.W.2d 694, 695 (Tex. App.- Dallas1984) 47
pfffil

xn
 INDEX OF AUTHORITIES

Cases Page

Texas State Emplovees Union/CWA Local 6184 v. Texas Workforce.
IS\ 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
i^f

McLeod v. Harris.
VlPl
S.W.2d at 773 28,40, 52

?3

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..
5^
14-04-00743-CV, 2004 Tex. App. LEXIS 7636, 2004 WL 1899953,
(Tex. App.—Houston [14th Dist.] Aug. 26, 2004, orig 41

ff£) Univ. of Tex. Med. Sch. at Houston v. Than.
901 S.W.2d 926, 929, 38 Tex. Sup. Ct. J. 910 (Tex. 1995) 75

xni
 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

^pi
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
551

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.

wt
772 S.W.2d 271,273 (Tex. App.—Corpus Christi 1989) 75

Wb *• VA
iwy

INDEX OF AUTHORITIES

Cases Page
ifymj

iW
In re Richard Castillo,
1998 Tex. App. El Paso, Lexis 2473 43

P Douglas v. American Title Co..
(App. [1st Dist]), 2006, 196 S.W.3d 876 14, 26

Mullins v. Ortiz.
(App. [10th Dist], 2009, WL 2264347 14

Martin v. Svkes,
pS 25 Tex. Supp., 198 55

m 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
wi

vx

|wp)
r INDEX OF AUTHORITIES

Cases Page
^i

Lee v. Killian,
761 S.W.2d 139; 1988 Tex. App. [2nd] Lexis 3173 56
j!B

P Green v. Chandler.
1 25 Tex. 148 57
(SI

S3
Historv Co. v. Flint. 4 Willson.
App. §224,4 Tex. Civ. Cas. 364, 15 S.W. 912 57

Drinkard v. Ingram,
2 Tex. 650, 73 Am. Dec. 250 57
jiffl

P Johnston v. Loop.
1 2 Tex. 331 57

Bankers v. Calhoun.
(Tex. Civ. App.) 209 S.W. 826 57

pi

$Ml
xvi
 INDEX OF AUTHORITIES

Cases Page
S^l

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

IP

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
p^

University of Tex. V. Poindexter.
306 S.W.3d 798, 806-07 (Tex. App.—Austin 2009, no pet.).... 65

xvn

ist
 Cases Page

Cameron v. Children's Hosp. Med.. Ctr..
131 F.3d 1167, 1170 (6th Cir. 1997)) 65

Martin v. National Instruments Corp.,
Court of Appeals, [3rd Dist.] 2013 Tex. App. Lexis 7021 65

iiffl
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,,
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

S)

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

5«V XV111
 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

t Tex. Gov't Code Ann. §74.053(b) (1998) 17, 18, 28, 29,40, 51

Chapter 11 of the Tex. Civ. Prac. & Rem. Code .. xix, xxii, 11, 16, 18, 20
F 23,24, 27,28, 29, 30, 31, 32, 33, 34, 35, 36, 37, 38, 39, 58

Tex. Gov't Code Ann, g 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

IjY.rtfi
 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.

fepf

xx

jpsi?
53

APPELLANT'S BRIEF

To the Honorable Justices of the Third Court of Appeals:

Appellant, Eric Drake ("Drake"), submits his Appellant's Brief.

iRI

STATEMENT OF THE CASE

L TO THE HONORABLE JUSTICES OF SAID COURT:

Appellant filed suit against Kastl Law Firm, Carl Ginsberg, Seanna

p 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,

[jFf 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 to deny Appellant Motion to Compel.

Appellant filed a motion to recuse all of the judges because he believed that

there was not a possibility of him obtaining a fair hearing by any of the trial

1

r
 court district judges. Drake filed a motion for nonsuit to escape further abuse

by the judges who sought to misuse their authority to assist the defendants in

the trial court.

p^l
Appellee Willing through her attorney, Scott Graydon 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.

p£?
Warren Vavra, who is not an attorney, and has no authority to appoint

a visiting judge to hear cases, appointed (Judge Strauss) whom the Appellant

objected to, shortly thereafter Vavra 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
r
 the Appellant recused had acted on their recusals or referrals by the time

Ramsay was appointed and ruled.

r Appellant filed a motion to recuse all of the district judges in Travis

p County because of unfairness that he received when three judges conspired

to have an order signed by one of the defendants dismissing Drake's motion

^ to compel hearing on August 7, 2014. None of the judges responded to

Appellant's motion to recuse, they failed to recuse or to refer, thus violating

f" the Texas Rules of Civil Procedure 18a and 18b.

p, 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.

p Each defendant in the trial court filed motions to quash depositions,
i

and those whom the Appellant subpoenaed to testify at the hearing were not

ruled on. Appellant has a right to have witnesses at Willing's hearing to

declare him as a vexatious litigant. Ramsay violated Drake's due process

I rights, and he did so knowingly because Drake informed Ramsay of these
P violations.
[PI

The trial court district judges and Ramsay violated Tex. R. Civ. P. 18a
Iffl

and 18b, and Chapter 11 of the Texas Civ. Prac. Rem. & Code. Judge

Ramsay granted Appellee Motion to Declare Appellant as a vexatious

S3 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

B5
motion to transfer, without having authority to hear Appellees motion

rs
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.
iSl

On August 19, 2014, during the hearing on Willing's motion to

declare Drake as a vexatious litigant, Appellant was prohibited from

securing the witnesses he had subpoenaed.

Appellee Seanna Willing failed to submit to the trial court sufficient

evidence, which would have proved that there was not a reasonable
jfftl

probability that Appellant, would not have been successful against her.

Appellant was asking the trial court for an injunction and declaratory judg-

ipJ)

5S(
L ment against Appellee Willing and Ginsberg, as well as damages against
both Willing and Ginsberg. Scot Graydon offered only hearsay evidence to

** the trial court. Judge Ramsay wrongfully granted Appellees Seanna Willing

p 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. Appellant then filed a motion for

[ rehearing and a motion to recuse two of the justices on September 26, 2014.
m This Court also overruled those motions wrongfully.

Appellant filed a Mandamus with the Texas Supreme Court; however,

the Supreme Court of Texas would not accept Appellant's mandamus for the

l reason that he had not obtained permission with the local administrative
p
[ judge. Appellant attempted to obtain permission but Judge Lora Livingston,
|!S
who is the Travis County Local Administrative Judge refused to respond to

p5S|
the Appellant's requests. Appellant complained to the Supreme Court of

Texas regarding Judge Livingston's behavior, but the court failed to do

anything about Livingston's conduct. Thus, all of the Supreme Court justices

and Livingston shall become defendants in a federal lawsuit.

Judges Charles Ramsay and Lora Livingston and other trial court

judges in Travis County will become defendants in an upcoming federal
F?3

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 laws, due process, the

Texas Constitution, and the Texas Rules of Civil Procedure, and the Texas

Civil Practice and Remedies Code.

ESI

ilSI

5S9

fc^
 II.
Statement of Facts

A. Pre-Trial Historv of this litigation.

Brief History of Events in the Trial Court:

£pl
A. On April 28, 2014, Appellant filed suit in Travis

n$) County against defendants Judge Carl Ginsberg,

Kristina Kastl, Kastl Law firm, Vikki Ogden, Court

Reporters, and Seanna Willing. After Appellant

moved for discovery, each and every one of the

defendants filed motions to quash, and many of them

filed motions to transfer.

B. On June 17, 2014, Defendant Carl Ginsberg filed a

motion to transfer and to declare Appellant as a

vexatious litigate.
1^3

C. On July 3, 2014, Defendant Vikki Ogden filed a

motion to transfer and notice of vexatious litigate

order.
 ffil

D. On July 11, 2014, Defendant Kastl Law PC filed a

motion to transfer and notice of vexatious litigate

order.

J£ffr)

E. On July 15, 2014, Defendant Carl Ginsberg filed a

motion for protection.

F. On July 16, 2014, Defendant Kastl filed a motion to

quash deposition and protection.
(iff)

G. On July 16, 2014, Appellant filed a motion to
'CT

continue to obtain limit discovery to properly respond

to defendant's motions to transfer.

H. On July 16, 2014, Appellant filed a motion for

evidentiary hearing.

l,w^
I. On July 17, 2014, Defendant Vikki Ogden filed a

motion to quash deposition.

i.i-fpl

8
c?w

J. On July 24, 2014, Appellant filed a motion to compel

to try and obtain limited discovery in the Trial Court

lawsuit.

K. Appellant set a hearing on his motion to compel on

August 7, 2014. Appellant appeared in Trial Court for

the hearing. Assistant attorney general Scot Graydon

conspired with Kastl's employee to obtain an order

'iSl
denying the Plaintiffs motion to compel hearing.

L. On August 7, 2014, Appellant filed a motion to
iwi)

recuse all of the district judges as well as County

l^V|
judges.

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

iBf)

SKI
r
be heard because Scot Graydon demanded it, though

the judges opinion was that the lawsuit was dismissed.

pi

^i
N. On August 19, 2014, Appellant objected to the

assignment of judges, and objected to the proceeding

but the trial court moved forward with the hearing.

O. During the August 19, 2014 hearing, Scot Graydon

i®
lied to the trial court claiming that he had conference

with Appellant regarding his motion to declare him as

a vexatious litigant.

,$^

P. Once a recusals are filed, a judge cannot do nothing.

Yet this is what all of he judges did in Trial Court—

nothing.

Q. Judges filing a recusal and referral after visiting judge
fp^

had been assigned will not cure the blatant disregard
^)

10
 for proper procedure and ethics by the judges in Trial

Court.

S3

R. The defendant's motions to transfer had not been

ruled on or decided at the time the visiting judge ruled
•i5Sl

on Appellee Willing motion to declare Appellant as a

vexatious litigant.

BR

S. The defendant's motions to quash had not been ruled

on at the time the visiting judge ruled on Appellee
'iSJ

Willing motion.
<{/!mf

T. Ramsay could not had been properly assigned because

|l|»*
the court administrator, Warren Vavra had no

authority to assign judges, because he is not a judge.

Furthermore, the judges the Appellant recused had to

act within three (3) days as the Tex. R. Civ. P.

11
$m)
fefsnl

B. Post Judgment:

Appellant properly and timely filed his notice of appeal

on September 18, 2014; however, this notice disappeared
3

from the trial court docket. Likewise, Appellant's

September 19, 2014 notice of appeal that he sent by U.S.

Mail also disappeared from the trial court docket.

Thereafter, Drake filed yet another notice of appeal on
p«l

October 19, 2014.

JUSI

•^5

12
Ipal

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).

m

ipi

13
CvFl

in.
ARGUMENT

A. Standard of Review
Chapter 11—Texas Civil Practice & Remedies Code.

tm

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.
(ff^

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.
m

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

p»j
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

w\
 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).

i ii^

S«l 15
 D. Issue One:

The order signed by Judge Charles Ramsay is not valid. Appellant
objected to Judge Ramasy before he began to preside over 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
IP?

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

pS)
vexatious. Drake also objected to Judge Ramsay (RR: Vol 3 of 4, P: 10, L:

14-25; P: 11, L: 1—25; P: 12, L: 1—23).

Appellant objected 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
L- 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
f* 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.

i Judge Ramsay was disqualified to proceed over Willing's motion to

declare Appellant vexatious for all the reasons asserted in this brief.

p 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
ttm\

L times as a party desires. When the Appellant objected to Judge Ramsay and
Si

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

m objectionable judge refuses to remove himself from the case, the objecting

\$m\
party is entitled to appellate relief. See In re Union Pacific Resources Co.,

FH 17

!B\
I 969 S.W.2d 427, 428 (Tex. 1998) (citing Mitchell Energy Corp. v.

f 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" should have recuse

himself or removed himself from presiding over the motion on August 19,

L 2014. In re Perritt, Supreme Court of Texas, 992 S.W.2d 444; 1999 Tex.
Lexis 42 Tex. Sup. J. 574.

F 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

L 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

p 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 the administrative judge, ordering the assignment of Judge Ramsay to

\ hear Appellee Willing's motion to declare Appellant vexatious prior to the

P August 19,2014, hearing.

18
 E. Issue Two:

Appellee Seanna Willing failed to prove by and through evidence
submitted to the trial court that was entered into evidence on
August 19, 2014, hearing that the Appellant could not prevail
against her.

I- Appellant's cause of action against Appellees Seanna Willing was not

based on the same or substantially similar facts, transition, or occurrence,

p 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 in the

trial court that Appellant could not prevail in his lawsuit against her. Scot

i Graydon, counsel for the Appellees provided no proof that Appellant could

not be successful against Willing. In light of Appellant's attempts to obtain

F limited discovery through depositions and his attempts at subpoenas to have

same witnesses to testify, 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

I 1, P: 245—255), (CR: Vol 1, P: 239—242), (CR: Vol 1, P: 219—223).
Appellees failed to prove that Appellant did not have a reasonable

f probability of prevailing; counsel for Willing just made the statement,

"Appellant have no probability of prevailing" to the trial court without

sworn affidavits or proof of any kind which does not satisfy Chapter 11 of

19
 the Tex. Civ. Rem Code, 11.054. (RR: Vol 1, P: 5, L: 2-11). Graydon only

[ referred to Willing's immunity. Appellant has uncontroverted proof to offer
m any trial court that Appellee Willing failed to investigate his case against

i39
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 vexatious, as Andrews did in Drake v.

Andrews. Evidence was prevented from being offered into evidence because

Bb|
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

pa
declared a vexatious litigant by another court, which is partly true. Mr.

Graydon just failed to inform the trial court that the 5th court of appeals in

Dallas overturned that order. This failure to be completely truthfiil wasn't an
ii|B>
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 of misleading the trial court, and perjury.

20
 Defendant Carl Ginsberg, a district judge in Dallas County, filed a

notice that Appellant was a vexatious litigate, and then he ordered Appellant

to seek permission before going forward. Thereafter, Ginsberg dismissed

PH
Appellant lawsuit against Kastl and Ogden.

However, Appellant Drake dismissed his case before Ginsberg's order

(CR: Vol 1, P: 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

F^
Ginsberg dismissed Appellant's case and it was involuntarily done, the

dismissal superseded the vexatious litigate order signed by Ginsberg.
pff|

Appellant provided Appellee Willing with uncontroverting evidence
JfV
that clearly demonstrated that judge Martin Hoffman treated the Appellant

differently than he did white attorneys.

This evidence to Appellee Willing was provided to her in the form of

a magnetic tape recording—in person. Yet, Willing made the comment to
i*jm\

Appellant with such evidence, "Who could say a good word about your

character." The Appellant's character was not the subject to be scrutinized,

but it was judge Martin Hoffman's desires to purposely harm the Appellant

cases on account of his race.
i.vHi

ip$ 21

p^
 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. Willing was given a copy of the

p^
transcript of the hearing were Goodman's testified.

The grounds for recusal and disqualifications are set out in Article V,

Section 11 of the Texas Constitution.

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.,

647F.3d 1181; 2011 U.S. Lexis 10438.

The Appellant's complaint that he filed with Appellee Willing

contained uncontroverting evidence; however, Willing did not find it

SV
necessary to act on Appellant's complaint.

Pursuant to Chapter 11 of the Tex. Civ. Prac. & Rem. Code, Appellee

Willing failed to comply with Section: 11.054. CRITERIA FOR FINDING

PLAINTIFF A VEXATIOUS LITIGANT. A court may find a plaintiff a

vexatious litigant if the defendant shows that there is not a reasonable proba

bility that the plaintiff will prevail in the litigation against a "defendant."

22
 Appellee Willing provided inadequate evidence to the trial court that Drake

would not prevail in his suit against her. Willing provided no affidavits, no

sworn statements, and she refused to testify. As explained herein, the

Appellant was suing Seanna Willing in her official capacity and individual

capacity.

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. 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 provide to the trial court any case law that a

person that has sovereign immunity is immune against injunctive 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

TCP&RC.

23
HU.
 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—13) (RR: Vol 3 of 4, P: 31, L:

23—25, and P: 32, L: 1—9). Appellant makes the same argument before

this Court. Appellant advised the trial court that Appellee Willing failed

procedurally, in that Willing failed to prove that all of the defendants that the

Appellate sued in the trial court were equally frivolous.

m
Appellee Willing failed procedurally to bring her motion against

Drake. (RR: Vol 3 of 4, P: 32, L: 14—22), (RR: Vol 3 of 4, P: 38, L: 7—

8). Appellant cautioned the trial court that it failed to follow procedure and

the Texas Rules of Civil Procedure (RR: Vol 3 of 4, P: 39, L: 4—17).

Appellee Willing advise the trial court of a case that Appellate filed 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).

If given the opportunity to orally examine Appellee Seanna Willing, it

would had been proven that Appellee Willing failed horribly to investigate

Appellant's claims against Judge Hoffman and other judges.

24
p5)

*-• This is the reason why Willing, Kastl, and Ogden filed motions to

[ quash, to prevent their oral examinations. But the trial court assisted them by
p 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—

I- 25, and P: 9, L: 1—20). 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

B3
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,
jBil

I- 416 S.W.3d 914. As argued herein, the Appellant was prohibited in
j acquiring his witnesses by motions to quash that the trial court never ruled
p» 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

obtaining 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 of the

•p defendants in the trial court filed motions to quash, which the trial court

25
jjpi/
 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.3d 370. Amir-Sharifv. 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—

rwu
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
i(SI

L (App.5 Dist. 2009) 294 S.W.3d 370."

When there are multiple defendants in a litigation, the defendant who

«p is bringing the motion to declare the "plaintiff vexatious, must either apply

3

26
$$t
iH3

proper procedure or prove there is not a reasonable probability that the

[ "plaintiff would prevail against all defendants in the litigation—not just a
P select defendant in the lawsuit—unless the defendant take the proper legal

steps, which Appellee Seanna Willing failed to do either.

Plaintiff does not have to show that his claims against any of the
flp?

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 of evidence.

Appellee Seanna Willing must prove that Drake's litigation is
r. frivolous as a whole. However, Appellee Willing at the August 19, 2014

hearing was unable to prove this point.

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—

pwl
14). Quite the opposite, Appellant swears under the penalty of perjury that

Scot Graydon did not conference with him. See Exhibits [Appellant's
s3

Affidavit] attached to Appellant's Third Amended Response to Vexatious

P Litigant Order and Appellant's Motion to Vacate Vexatious Litigant Order
m (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
p?

judge, (Charles Ramsay) because Mr. Vavra is not a judge and pursuant to
pi

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 Mcleod v. Harris, 582 S.W.2d 772 (Tex. 1979), the Supreme Court

IjST
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

p^
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
Fsw)
K*J

vacated. The presiding judge of the administrative region or the Chief

Justice of the Tex. Supreme Court 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). Tex. R. Civ. P. 18a; See also Tex. Gov't Code Ann. §

74.059(c)(3) (West 2005) (judge 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").

Mr. Vavra advised Mr. Graydon (Willing lawyer) and the Appellant

SJ
that the court had signed Drake's motion of nonsuit, on August 19, 2014.

Therefore, the trial court failed to follow the TRCP in many ways. Appellee
ira

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, because he said so. And on August 19,

2014 Vavra admitted to Appellant that Willing's motion hearing wasn't on

the docket.
I!3?

29
 G. Issue Four:

Judges David Phillips and Stephen Yelenosky orders of recusal
and referral should be vacated

The August 19, 2014, order declaring Drake vexatious is void because

even though Judges Phillips and Judge Yelenosky filed sham orders to

I attempt to make it appear as if they were complying with Tex. R. Civ. P.,

f3 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.

I The Tex. R. Civ. P., clearly set forth, a judge must either recuse or
p refer. Moreover, Phillips order to recuse was not referred to the judge of the

pi
administrative judicial district, as Rule 18a requires. And because Phillips

failed to refer his recusal, procedurally his August 19, 2014 order is invalid,

and 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
m

30
 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

IpSI
were signed after the visiting judge; Charles Ramsay had already been

T wrongfully assigned to hear Appellee Willing's motion to declare Appellant

vexatious, and after the trial court had signed the order declaring Appellant
S3
I

t as a vexatious litigant.

I The Appellant argued in open court of the many procedural errors of

m not responding to his motion to recuse. (RR: Vol 3 of 4, P: 24, L: 18-25; P:

38, L: 7—12; P: 40, L: 10—16; P: 12, L: 8—23).
r
An order that is signed after the harm and error has been carried out is

t an order that is void. A court administrator does not have the judicial power

Y to assign judges pursuant to Tex. R. Civ. P., or Tex. Gov't Code Ann.,
m 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.
(SI
r 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.

31
p^l

fflfil

It is Appellant's legal opinion, and pursuant to case law cited in this

brief herein that the following orders are void: 1). The order of referral by
fsi
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 with its prefiling order.

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,

IB)
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
W

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

JBI
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

32

BR
 Texas law and the Texas Code of Civil Procedure. Victor v. Enterprises, Inc.

v. Holland. The sham orders filed into the trial courts record by Judges

David Phillips and Stephen Yelenosky are a good example of how these

judges circumvent procedure and the law.

sPI

(Bfl

fiSH

33
1^1

IBB

H. Issue Five:
w\
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
w

Appellant as a vexatious litigant. Chapter 11 of the Tex. Civ. Prac. & Rem.

Code allows a "plaintiff to call witnesses in his or her defense. But the

[mil
Appellant was prohibited from basic due process rights. The trial court failed

Wl
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
153

court failed to act in accordance with Rule 18a and 18b of the Tex. R. Civ.
ffl

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
fSI

Motion. Regardless of whether the motion complies with this rule, the

ffiRI
respondent judge, within three business days after the motion is filed,
must either:

p (A) sign and file with the clerk an order ofrecusal; or (B) sign and file
with the clerk an order referring the motion to the regional presiding
judge. (2) Restrictions on Further Action.

34
iii.y™|

^ 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

m 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.
w^

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
SB

I Tim Sulak, Amy Clark Meachum, and Orlinda Naranjo conspired together

with the assistant attorney general Scot Graydon and defendants Kastl and

m Ginsberg to deny the Appellant's motion to compel hearing on the day of

Appellant's hearing. It was evident to the Appellate that he could not obtain
r a fair hearing in Travis County.
$&l

On July 24, 2014, Appellant filed a motion to compel the defendant's
ijpl

depositions, which he needed to respond to defendant's motions to transfer,

and allegations filed into the trial court's record that Drake was an alleged

m
vexatious litigant. The trial court took no action regarding Appellant's

fl^l
35
B3S1

motion to compel, up and until the date of the 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

5SI
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
P3

1 Graydon that judge Sulak would hear Appellant's pending motion to

[ compel, knowing that an order was signed denying the motion. Judge Sulak
m announced that he could not hear the Appellant's motion to compel because

another equal judge had signed an order denying the motion to compel

moments ago. (RR: Vol 2 of 4, P: 8, L: 11—25; P: 9: L: 1—19).
(ij8|

I Travis County does not appoint one judge to hear cases but it's an
pi

open docket, where any district judges may hear a motion or try cases.

*• However, after the trial court's judges conspired efforts to deny Appellant's

motion to compel hearing, Appellant had no choice but to recuse all of the

district judges. (CR: Vol 1, P: 521—526). The behavior by the three district

judges named herein was reprehensible. The behavior of the trial court was

intentional, unfair and partial, which would prevent the Appellant from

w« receiving an impartial hearing.

FSI

36

vj»l
 After Appellant filed his motion to recuse, not one of the judges

recused themselves or referred the Appellant's recusals. Pursuant to Tex. R.

SI
Civ. P. 18a and 18b, upon a motion to recuse being filed against a judge, he

1/m)
or she must either recuse or refer, there are no other options.

However, after the Appellant announced at the August 19, 2014

i 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 of the clerks in the 353rd left

m the courtroom and apparently notified the judges of the procedural error, and

two judges filed sham orders in the trial court's record (CR: Vol 1 of 1, P:

545); (CR: Vol 1, P: 559); (CR: Vol 1 of 1, P: 546). But those sham orders
iiiP

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

•w Appellant vexatious.

K&
Under the general recuse or refer rule in Tex. Gov't Code Ann. $

25.00255(f), a judge against whom a recusal motion has been filed has only

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

fm\ the Tex. R. Civ. P. 18a and 18b. Even though a motion to recuse may be

defective, the challenged judge must either recuse or refer the motion, so that

37
r^u

another judge can determine the procedural adequacy and merits of the

motion to recuse. Appellee Willing objections to the motion has no bearing
iW
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 of the motion. Norman, 191

v^
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.

«pi 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 of referral, to the administrative judge; and

£pl
(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
pil

18a(d). Likewise, when a judge recuses herself, two things must happen: (1)
ipl

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 taken Rule 18a(c).
pKl

In addition, one court has held that a transfer made by the trial judge-

-not the presiding judge—would be void, lamberti v. Tschoepe, 776 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 on Judge Stephen Yelenosky referral. This
IS
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).

m 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
(PS

1 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,
r 2014 order declaring the Appellant as a vexatious litigate and prefiling order

should be vacated and or set aside.

Tex. R. Civ. P. 18a; see also Tex. Gov't Code Ann. § 74.059(c)(3)

(West 2005) (judge must "request the presiding judge to assign another

IffiH 40
r judge to hear a motion relating to the recusal of the judge from a case

[ pending in his court").
m Other courts of appeals have concluded that Rule 18afs 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-

I 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

I 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

I. cases); see also Exparte Sinegar, 324 S.W.3d 578,2010 WL 4320399, (Tex.
iH&l

Crim. App. 2010)

41
 Likewise, construing a substantially similar statutory predecessor to

Rule 18a, the Texas Supreme Court has held that (1) a judge has "the
'IP
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
pB|

provisions of Rule 18a are mandatory; and that they cannot be reasonably

m 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
SSI

I- 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).

j*» 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

I. sham referral order was signed by Judge Yelenosky of the 34th JDC and
J 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
L
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

IpSl
pift

held to develop a record sufficient for any appeal on the 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 also 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 Judge

Ramsay was improperly assigned to hear Appellee Willing motion, and the

Appellant argued in open court of the 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 void. A court administrator does not have the judicial

t-
power to assign judges pursuant to Tex. R. Civ. P., or Tex. Gov't Code

P Ann., therefore the visiting judge was not properly assigned to hear Appellee

Willing motion. An appeal and federal action is Appellant's remedy to

address: 1). The order of referral by Judge Stephen Yelenosky, 2). The order

L of Recusal by Judge David Phillips, 3). The order declaring Drake as a
SIS

[ vexatious litigate signed by Judge Ramsay, 4). Federal violations.
p 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 of the co-defendants or

L 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

I 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—
tjpal

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.

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 void, which in this case

46
specifically the August 19, 2014 declaring Drake as a vexatious litigant. The

trial court records contain no ruling by or from the regional presiding

Judge.

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

recusa/ or referral, "he does not have the option of doing nothing")

Greenberg, Benson, Fisk and Fielder, P.C 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 of the

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
 As in Victor Enterprises, regardless of procedural sufficiency of a

motion to recuse, the trial court violated Rule 18a in failing to act either to

recuse herself or refer the case to the presiding judge; the judges failure to

rule 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 of the 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, 776 S.W.2d 651, 652 (Tex. App.—DALLAS 1989,

Writ denied).

A court cannot ignore the motion to recuse and appoint a visiting

judge to carry on with the case as if the motion had not been filed. In the

case of Barnhill 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 subsequent order that were

ruled on was considered void.

48
L Issues as to the qualifications of the trial court judge may be raised for

the first time on appeal. In re DC Jr., 2010 WL 3718564 (Tex. App —

P Amarillo 2010, no pet). However, the Appellant raised Judge Charles

Ramsay's ability to hear Willings motion to declare Drake vexatious on

August 19, 2014. (RR: Vol 3 of 4, P: 12, L: 8—12).

Appellant recused all of the district judges and two County judges

f" (CR: Vol 1, P: 521—526). Pursuant to Rule 18 of the TRCP, the regional
m 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
i .

the Appellant's motion of recusal, which is forbidden by Rule 18 of the

Ifpl
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

Ijpl

49

fm\
r
1 had delivered a copy of the order of disqualification, recusal or referral to
PR

[ the regional presiding judge immediately with the 3 day period, but this did
P 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

I- sufficiency's of a motion to recuse, the 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

L 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 of the judge's failure to comply with the TRCP 18, all orders

or judgments of a trial judge who was constitutionally disqualified from

sitting are void. Tesco Am., 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

f 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 on August 19, 2014, and argues in

his brief that Appellees failed to prove that Appellant filed 5 (five)

qualifying lawsuits that were ruled against him.

51
Il,p
The Trial Court erred and abused its discretion in the ways described

as pled herein, which were substantial. Appellant Drake requests that the

Court vacate the following orders that were signed on August 19, 2014,
f*pvl

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 its prefiling order, and the August 19, 2014, orders of referral and

recusal.

Appellant finally requests all and any other relief that the court may

grant him that he may show justification.

82
 Respectfully submitted,

Appellant Drake
Pro-Se
P.O. Box 833688
Richardson, Texas 75083
214-477-9288

•

83
 CERTIFICATE OF SERVICE

I hereby certify that on May 14, 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 of this
appeal because Appellant filed a motion for nonsuit and it was granted.

Scot Graydon
300 West 15th Street, Ste 2
Austin, Texas 78701
512-475-4413

David Harris [Refused copy because case nonsuited at trial level]
300 West 15th Street, Ste 2
Austin, Texas 78701
Telephone: 512-475-4413

Kastl Law P.C. [Refuse to respond-//awr/ 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 14,819 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.

Appellant Drake
Pro-se

May 14,2015

85
1 APPELLANT'S APPENDIX EXHIBITS
APPENDIX ACTUAL EXHIBIT'S ARE SUBMITTED TO
THE COURT IN A SEPARATE BOUND FOLDER
FT

' 1. EXCERPT FROM APPELLANT'S ORIGINAL PETITION FILED
pi

IN THE TRIAL COURT SHOWING THAT APPELLANT SUED

p WILLING AS AN INDIVIDUAL (REQUESTING DAMAGES);
r 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,

fjwl "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;

pw
7. APPELLEE'S ORDER DECLARING APPELLANT AS AN

VEXATIOUS LITIGANT;

lifp#}
86

«$r.
UpT

8. APPELLANT AMENDED RESPONSE TO APPELLEES

DECLARING HIM AS A VEXATIOUS LITIGANT;

iPT
9. RECORDERS RECORD OF THE AUGUST 19, 2014 HEARING

TO DECLARE APPELLANT AS A VEXATIOUS LITIGANT

BEFORE JUDGE CHARLES RAMSAY.

Ipf

[p^

1^1

87