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
RESPONSE IN OPPOSITION TO APPELLANT’S MOTION FOR SANCTIONS
TO THE HONORABLE COURT OF APPEALS:
COMES NOW SEANA WILLING, Appellee herein, and files this Response
in Opposition to Appellant’s Motion for Sanctions, and would respectfully show this
Court the following: I. INTRODUCTION
On March 27, 2015, Appellee Seana Willing (“Ms. Wiling”) filed a Motion
to Strike Appellant’s Brief, demonstrating to the Court that despite this Court’s
previous order, Appellant’s brief exceeded the word count and violates TEX. R. APP.
P. 9.4(i)(2)(B).
On April 1, 2015, Ms. Willing filed her Appellee’s Brief in this matter.
On April 1, 2015 Appellant filed a Response to Ms. Willing’s Motion to Strike
and a Motion for Sanctions and Motion for Judgment. Appellant’s filing was
received by this Court on April 6, 2015.
Appellant’s argument related to the Motion to Strike are addressed in Ms.
Willing’s Reply Brief in Support of her Motion to Strike.
In this pleading, Ms. Willing demonstrates that Appellant’s Motion for
Sanctions and Motion for Judgment should be denied.
II. MOTION FOR SANCTIONS
Pursuant to TEX. R. APP. P. 52.11, this Court may impose sanctions on a party
or attorney who is not acting in good faith as indicated by any of the following:
(a) filing a petition that is clearly groundless; (b) bringing the petition solely for delay of an underlying proceeding; (c) grossly misstating or omitting an obviously important and material fact in the petition or response; or
2 (d) filing an appendix or record that is clearly misleading because of the omission of obviously important and material evidence or documents. TEX. R. APP. P. 52.11.
Appellant’s argument is wholly lacking in meeting any of the legal
requirements for sanctions. On the contrary, it has been demonstrated that Appellant
should be sanctioned, and Ms. Willing has asked that this Court strike Appellant’s
Brief for his actions.
As a threshold matter, Appellant has not demonstrated to this Court that Ms.
Willing or her counsel are not acting in good faith. Conversely, in her Motion to
Strike, Ms. Willing has demonstrated (and it has not been disputed) that Appellant’s
actions show the bad faith with which he litigates this matter.
Appellant further argues for sanctions as follows:
A. Sanctions for the filing of the Motion to Strike
Appellant argues that the Motion to Strike is frivolous. (Motion for Sanctions,
page 1-2). Ms. Willing assumes that this is to be brought under TEX. R. APP. P.
52.11(a) as “clearly groundless.” As a threshold matter, this section applies to
petitions, and not to motions. TEX. R. APP. P. 52.11(a). Further, Appellant presents
no case law or legal support for this suggestion. Further, he does not present any
fact from which the Court could conclude the Motion to Strike is frivolous. Instead,
Appellant suggests that counting words is difficult (Motion for Sanctions, page 2)
3 and can take minutes. Nevertheless, this is an obligation that all parties need to meet.
TEX. R. APP. P. 9.4(i)(2)(B).
A determination that a petition is groundless requires this Court to determine
“that there is no legal or factual basis to arguably justify the filing of” that petition.
In re Lincoln, 114 S.W.3d 724, 727–28 (Tex.App.-Austin 2003, orig. proceeding).
In the instant case, Ms. Willing provided this Court with the specific word count for
specific pages in Appellant’s Brief (Motion to Strike, Exhibit A), and identified the
computer program that provided this information: “Word Counter,” an Add-on Tool
for Adobe Acrobat. Ms. Willing’s motion is not “clearly groundless” or frivolous,
as alleged by Appellant.
The other potential elements authorizing sanctions are not presented and do
not apply to Ms. Willing’s Motion to Strike. There has been no delay of the
proceeding. TEX. R. APP. P. 52.11(b). While Appellant has, in his brief, grossly
misstated or omitted an obviously important and material fact in his brief 1, he has
not demonstrated that Ms. Willing has done so. TEX. R. APP. P. 52.11(c). Ms.
1 Ms. Willing presents just two instances, to demonstrate by example: First, Appellant has misrepresented his word-count, as is detailed in the Motion to Strike. Second, Appellant presented this Court with an incomplete recitation of TEX. R. CIV. P. 18a(f)(2)(A) as if it were the entire rule while expressly omitting the portion cited in the Order of the Trial Court authorizing judicial action. Compare Rule 18a as presented on Appellant’s Brief, page 34 with TEX. R. CIV. P. 18a(f)(2)(A) and with CR 547.
4 Willing has not filed a misleading appendix or record that is omits obviously
important and material evidence or documents. TEX. R. APP. P. 52.11(d).
Accordingly, Appellant has demonstrated none of the required showings to
seek sanctions based on the filing of the Motion to Strike.
B. Sanctions for Drafting his Brief
Appellant also seeks sanctions based on Ms. Willing’s failure to file her
Appellee Brief by April 1, 2015, the deadline. (Motion for Sanctions, pages 3 and
5-7). In making this argument, Appellant demonstrates his bad faith, as Ms. Willing
filed her brief on that date. Rather than see if Ms. Willing filed a brief, Appellant
decided that it was a better idea to seek sanctions rather than wait to see if there was
a basis to seek sanctions. If he had waited another day to file his Motion for
Sanctions, Appellant would have known that Ms. Willing’s brief was timely filed.
Thus, with respect to sanctions for the failure of Ms. Willing to file her brief
by April 1, 2015, “there is no legal or factual basis to arguably justify the filing of”
Appellant’s Motion for Sanctions. In re Lincoln, 114 S.W.3d at 727–28.
Appellant’s Motion for Sanctions should be denied.
5 III. MOTION FOR JUDGMENT
Appellant asks this Court to enter a judgment on his behalf in all aspects of
his appeal, solely based on Ms. Willing’s failure to file her Appellee Brief by April
1, 2015, the deadline. (Motion for Sanctions, pages 3 and 5-7).
As noted supra, and is clear from this Court’s record, Ms. Willing was timely
in the filing of her brief. Thus, “there is no legal or factual basis to arguably justify
the filing of” Appellant’s Motion for Judgment. In re Lincoln, 114 S.W.3d at 727–
28. Accordingly, Appellant’s Motion for Judgment should be denied.
IV. CONCLUSION
In light of his knowing misrepresentation and bad faith dealings in this
litigation, Ms. Willing asks that Appellant’s Brief be stricken from the record, and
that the determination of the Trial Court, finding Eric Drake to be a vexatious
litigant, be affirmed. TEX. R. APP. P. 9.4(k) (court may strike a document prepared
Free access — add to your briefcase to read the full text and ask questions with AI
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
RESPONSE IN OPPOSITION TO APPELLANT’S MOTION FOR SANCTIONS
TO THE HONORABLE COURT OF APPEALS:
COMES NOW SEANA WILLING, Appellee herein, and files this Response
in Opposition to Appellant’s Motion for Sanctions, and would respectfully show this
Court the following: I. INTRODUCTION
On March 27, 2015, Appellee Seana Willing (“Ms. Wiling”) filed a Motion
to Strike Appellant’s Brief, demonstrating to the Court that despite this Court’s
previous order, Appellant’s brief exceeded the word count and violates TEX. R. APP.
P. 9.4(i)(2)(B).
On April 1, 2015, Ms. Willing filed her Appellee’s Brief in this matter.
On April 1, 2015 Appellant filed a Response to Ms. Willing’s Motion to Strike
and a Motion for Sanctions and Motion for Judgment. Appellant’s filing was
received by this Court on April 6, 2015.
Appellant’s argument related to the Motion to Strike are addressed in Ms.
Willing’s Reply Brief in Support of her Motion to Strike.
In this pleading, Ms. Willing demonstrates that Appellant’s Motion for
Sanctions and Motion for Judgment should be denied.
II. MOTION FOR SANCTIONS
Pursuant to TEX. R. APP. P. 52.11, this Court may impose sanctions on a party
or attorney who is not acting in good faith as indicated by any of the following:
(a) filing a petition that is clearly groundless; (b) bringing the petition solely for delay of an underlying proceeding; (c) grossly misstating or omitting an obviously important and material fact in the petition or response; or
2 (d) filing an appendix or record that is clearly misleading because of the omission of obviously important and material evidence or documents. TEX. R. APP. P. 52.11.
Appellant’s argument is wholly lacking in meeting any of the legal
requirements for sanctions. On the contrary, it has been demonstrated that Appellant
should be sanctioned, and Ms. Willing has asked that this Court strike Appellant’s
Brief for his actions.
As a threshold matter, Appellant has not demonstrated to this Court that Ms.
Willing or her counsel are not acting in good faith. Conversely, in her Motion to
Strike, Ms. Willing has demonstrated (and it has not been disputed) that Appellant’s
actions show the bad faith with which he litigates this matter.
Appellant further argues for sanctions as follows:
A. Sanctions for the filing of the Motion to Strike
Appellant argues that the Motion to Strike is frivolous. (Motion for Sanctions,
page 1-2). Ms. Willing assumes that this is to be brought under TEX. R. APP. P.
52.11(a) as “clearly groundless.” As a threshold matter, this section applies to
petitions, and not to motions. TEX. R. APP. P. 52.11(a). Further, Appellant presents
no case law or legal support for this suggestion. Further, he does not present any
fact from which the Court could conclude the Motion to Strike is frivolous. Instead,
Appellant suggests that counting words is difficult (Motion for Sanctions, page 2)
3 and can take minutes. Nevertheless, this is an obligation that all parties need to meet.
TEX. R. APP. P. 9.4(i)(2)(B).
A determination that a petition is groundless requires this Court to determine
“that there is no legal or factual basis to arguably justify the filing of” that petition.
In re Lincoln, 114 S.W.3d 724, 727–28 (Tex.App.-Austin 2003, orig. proceeding).
In the instant case, Ms. Willing provided this Court with the specific word count for
specific pages in Appellant’s Brief (Motion to Strike, Exhibit A), and identified the
computer program that provided this information: “Word Counter,” an Add-on Tool
for Adobe Acrobat. Ms. Willing’s motion is not “clearly groundless” or frivolous,
as alleged by Appellant.
The other potential elements authorizing sanctions are not presented and do
not apply to Ms. Willing’s Motion to Strike. There has been no delay of the
proceeding. TEX. R. APP. P. 52.11(b). While Appellant has, in his brief, grossly
misstated or omitted an obviously important and material fact in his brief 1, he has
not demonstrated that Ms. Willing has done so. TEX. R. APP. P. 52.11(c). Ms.
1 Ms. Willing presents just two instances, to demonstrate by example: First, Appellant has misrepresented his word-count, as is detailed in the Motion to Strike. Second, Appellant presented this Court with an incomplete recitation of TEX. R. CIV. P. 18a(f)(2)(A) as if it were the entire rule while expressly omitting the portion cited in the Order of the Trial Court authorizing judicial action. Compare Rule 18a as presented on Appellant’s Brief, page 34 with TEX. R. CIV. P. 18a(f)(2)(A) and with CR 547.
4 Willing has not filed a misleading appendix or record that is omits obviously
important and material evidence or documents. TEX. R. APP. P. 52.11(d).
Accordingly, Appellant has demonstrated none of the required showings to
seek sanctions based on the filing of the Motion to Strike.
B. Sanctions for Drafting his Brief
Appellant also seeks sanctions based on Ms. Willing’s failure to file her
Appellee Brief by April 1, 2015, the deadline. (Motion for Sanctions, pages 3 and
5-7). In making this argument, Appellant demonstrates his bad faith, as Ms. Willing
filed her brief on that date. Rather than see if Ms. Willing filed a brief, Appellant
decided that it was a better idea to seek sanctions rather than wait to see if there was
a basis to seek sanctions. If he had waited another day to file his Motion for
Sanctions, Appellant would have known that Ms. Willing’s brief was timely filed.
Thus, with respect to sanctions for the failure of Ms. Willing to file her brief
by April 1, 2015, “there is no legal or factual basis to arguably justify the filing of”
Appellant’s Motion for Sanctions. In re Lincoln, 114 S.W.3d at 727–28.
Appellant’s Motion for Sanctions should be denied.
5 III. MOTION FOR JUDGMENT
Appellant asks this Court to enter a judgment on his behalf in all aspects of
his appeal, solely based on Ms. Willing’s failure to file her Appellee Brief by April
1, 2015, the deadline. (Motion for Sanctions, pages 3 and 5-7).
As noted supra, and is clear from this Court’s record, Ms. Willing was timely
in the filing of her brief. Thus, “there is no legal or factual basis to arguably justify
the filing of” Appellant’s Motion for Judgment. In re Lincoln, 114 S.W.3d at 727–
28. Accordingly, Appellant’s Motion for Judgment should be denied.
IV. CONCLUSION
In light of his knowing misrepresentation and bad faith dealings in this
litigation, Ms. Willing asks that Appellant’s Brief be stricken from the record, and
that the determination of the Trial Court, finding Eric Drake to be a vexatious
litigant, be affirmed. TEX. R. APP. P. 9.4(k) (court may strike a document prepared
in a manner to avoid the limits of Rule 9.4).
Respectfully submitted,
KEN PAXTON Attorney General of Texas
CHARLES E. ROY First Assistant Attorney General
6 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 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