ACCEPTED
03-14-00665-CV
5697843
THIRD COURT OF APPEALS
AUSTIN, TEXAS
6/16/2015 2:54:14 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 6/16/2015 2:54:14 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
APPELLEE’S ADVISORY TO THE COURT
TO THE HONORABLE COURT OF APPEALS:
COMES NOW SEANA WILLING, Appellee herein, and files this Advisory
to the Court regarding the Amended Brief of Appellant Eric Drake, and would
respectfully show this Court the following:
As is further discussed infra, the Amended Brief of Appellant Eric Drake
exceeds the maximum length for a brief, despite this Court’s previous order
requiring Eric Drake (“Appellant”) to file a brief conforming to the Texas Rules of
Appellate Procedure. Notwithstanding Appellant’s violation of the Rules of
Appellate Procedure, in the event that this Court does not strike Appellant’s briefing,
Appellee stands on her previously filed Appellee Brief, as discussed infra.
I. Appellant’s Amended Brief Exceeds the Maximum Length
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). Appellant
consistently exceeds that maximum, despite his actual knowledge and the direction
of this Court.
A. Appellant has Previously Been Warned About Brief Length
On or about February 20, 2015, this Court denied Appellant’s request to
exceed the word count in his brief.
On March 2, 2014, Appellant filed his Appellant’s Brief, which contained
approximately 16,675 words, exceeding the limit established by TEX. R. APP. P.
9.4(i)(2)(B).
On March 27, 2015, Ms. Willing filed a Motion to Strike, identifying this
defect to the Court and to Appellant.
On May 1, 2015, Ms. Willing’s Motion to Strike was denied, but this Court
entered a separate Order noting that Appellant’s Brief exceeded the maximum length
of a brief and directing Appellant to “file an amended brief complying with the rules
of appellate procedure on or before May 15, 2015.” [Order, May 1, 2015].
This Court admonished that “If Drake fails to comply with this order, this
Court may strike appellant’s brief and dismiss this appeal.” [Order, May 1, 2015].
B. Appellant’s Amended Brief Still Exceeds Maximum Length of a Brief
On May 13, 2015, Appellant filed the Amended Brief of Appellant Eric
Drake. [Amended 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 14,819 words.
[Amended Appellant’s Brief, page 85].
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 14,819 words, and thus just making the word limit, the brief actually
contains approximately 15,642 words, significantly exceeding the limit established
by TEX. R. APP. P. 9.4(i)(2)(B).
1. Appellant’s Pages 1-6 Should Be Counted
Rather than comply with the Briefing requirements, Appellant has sought to
conceal argument that should count against the length of the brief by improperly
titling it “Statement of the Case1,” despite the fact that it does not conform in any
1
A true Statement of the Case is not counted against the maximum length of a brief. TEX. R.
APP. P. 9.4(i)(1).
way to the statutory description of a “Statement of the Case.” Compare Amended
Appellant’s Brief, pages 1-6 with TEX. R. APP. P. 38.1(d). The statutory requirement
of a “Statement of the Case” is as follows:
The brief must state concisely the nature of the case (e.g., whether it is
a suit for damages, on a note, or involving a murder prosecution), the
course of proceedings, and the trial court's disposition of the case. The
statement should be supported by record references, should seldom
exceed one-half page, and should not discuss the facts.
TEX. R. APP. P. 38.1(d) (emphasis added).
By contrast, pages 1-6 of Amended Appellant’s Brief contain not a single
reference to the record, and are solely Appellant’s argument of “the facts” despite
no references to support those interpretations or alleged “facts.” [Amended
Appellant’s Brief, pages 1-6]. For example, Appellant argues about the sufficiency
of evidence presented at a hearing (a merit based argument, not a “Statement of the
Case”), without any attempt to refer to the record:
Appellee Seanna Willing failed to submit to the trial court sufficient
evidence, which would have proved that there was not a reasonable
probability that Appellant, would not have been successful against her.
Appellant was asking the trial court for an injunction and declaratory
judgment 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 Motion to Declared Appellant as a Vexatious Litigate.
[Amended Appellant’s Brief, pages 4-5].
Appellant should not be allowed to evade the requirements of TEX. R. APP. P.
9.4(i)(1) by concealing argument from the maximum length of body of the brief and
falsely titling that argument as “Statement of the Case.”
Ms. Willing asks this Court to take judicial notice that pages 1-6 of the
Amended Appellant’s Brief are not a “Statement of the Case” within the meaning of
the Texas Rules of Appellate Procedure, but rather a “Summary of the Argument,”
to be counted toward the length of a brief, pursuant to TEX. R. APP. P. 9.4(i)(1).
2. Amended Appellant’s Brief Exceeds Maximum Length
Ms. Willing asks this Court to take judicial notice that the relevant portions of
the Amended Appellant’s Brief (pages 1-122 and 14-82) 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 by using the Word Count function on Microsoft Word.
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
2
Page 13 of the Amended Appellant’s brief is a Statement of Jurisdiction, and is not counted
toward the maximum length, pursuant to TEX. R. APP. P. 9.4(i)(1). Appellant does not try to
conceal argument from the length of his brief in the Statement of Jurisdiction, unlike the argument
falsely titled “Statement of the Case.”
Trial Court. Other examples of the bad faith in his litigation were presented in the
Motion to Strike, filed on March 27, 2015.
Ms. Willing believes that in light of this Court’s previous admonishment
about the length of Appellant’s Brief and the consequences of failure to abide by this
Court’s May 1, 2015 Order, she should bring to this Court’s attention the fact that
he has again exceeded the maximum length for a brief.
II. Appellee’s Position Regarding her Brief
It is unclear from this Court’s Order of May 1, 2015 if leave was given to Ms.
Willing to file an Amended Appellee’s Brief.
A review of the Amended Appellant’s Brief shows that it is largely the same
arguments as in his original Appellant’s Brief, with very few exceptions, such as an
even more egregious omission of Tex. R. Civ. P. 18a(f)(2), which was previously
misrepresented [Appellant’s Brief, page 34] and is now wholly omitted [Amended
Appellant’s Brief, page 34], despite being the basis for the trial court’s hearing the
matter and entering the order in question [CR 547-549].
Accordingly, Appellee’s Brief adequately serves to present her legal position
to this Court, and Appellee does not ask to file an Amended 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 June 16, 2015
to:
Eric Drake
PO Box 833688
Richardson, Texas 75083
Pro Se Appellant
/s/ Scot M. Graydon
Scot M. Graydon
Assistant Attorney General
Page Number Word Count
1 157
2 194
3 197
4 199
5 201
6 56
7 110
8 97
9 123
10 117
11 109
12 58
14 189
15 56
16 218
17 234
18 175
19 220
20 218
Words for Pgs 1-20: 2928
21 193
22 195
23 195
24 215
25 225
26 190
27 199
28 219
29 213
30 190
31 219
32 195
33 44
EXHIBIT A
WORD COUNT BY PAGE
34 228
35 222
36 218
37 249
38 228
39 236
40 208
Words for Pgs. 21-40: 4081
41 182
42 194
43 225
44 245
45 223
46 198
47 215
48 208
49 210
50 223
51 105
52 221
53 228
54 218
55 220
56 222
57 236
58 235
59 223
60 184
Words for Pgs. 41-60: 4215
61 222
62 177
63 65
64 234
65 221
66 236
WORD COUNT BY PAGE
67 200
68 175
69 236
70 247
71 204
72 27
73 208
74 213
75 228
76 220
77 226
78 218
79 221
80 231
81 244
82 165
Words for Pgs. 61-82 4418
Total Words: 1-20 2928
21-40 4081
41-60 4215
61-82 4418
Total: 15,642