No:03-14-00665-CV
IN THE COURT OF APPEALS FOR THE THIRD JUDICIAL DISTRICT OF TEXAS AT AUSTIN, TEXAS
ERIC DRAKE
Plaintiff-Appellant April 6, 2015 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
APPELLANT ERIC DRAKE'S RESPONSE TO APPELLEES MOTION TO STRIKE AND APPELLANT'S MOTION FOR SANCTIONS AND APPELLANT'S MOTION FOR JUDGMENT
Eric Drake r^RECEIVEDN Pro-Se Appellant APR 0 6 2015 PO Box 833688 THIRD COURT OF APPEALS Richardson, Texas 75083 \ JEFFREY D. KYLE / 214-477-9288 APPELLANT ERIC DRAKE'S RESPONSES TO APPELLEES MOTION TO STRIKE. APPELLANT'S MOTION FOR SANCTIONS AND APPELLANT MOTION FOR JUDGMENT
TO HONORABLE JUSTICES OF SAID COURT:
Appellant Eric Drake files this response to Appellees motion to strike,
and files a motion for sanctions, and for judgment against Appellees Seana
Willing and her attorney Scott Graydon.
Appellee filed a motion to strike the Appellant's brief based on
allegations that the Appellant's brief was over one thousand words in excess
of the 15,000-word count. Appellees also alleged that Appellant's brief
exceeded the page count limit. There is a 15,000-word count for computer-
generated briefs, but to the best of Appellant's legal research there is not a
page count limit unless the brief is typewritten or handwritten. Otherwise for
computer-generated briefs, the limit is based on the word count. The
following are exclusions to the calculating the word count: caption, identity
of parties and counsel, statement regarding oral argument, table of contents,
index of authorities, statement of the case, statement of issues presented,
statement of jurisdiction, statement of procedural history, signature, proof of
service, certification, certificate of compliance, and appendix.
Appellant checked his brief carefully before filing it with the Court,
and excluded the above exclusions when calculating the word count. The
APPELLANT'S RESPONSE/MOTION FOR SANCTIONS AND JUDGMENT PAGE 1 Appellant re-checked his brief after learning of the Appellees allegations,
and the brief is the same word count. It is difficult to calculate word count
on a document if the document is in paper form. And it takes minutes to do
so when the document has been generated by a computer, as in the
Appellant's case. Simply enough, the Appellees motion to strike is frivolous,
and the Court should sanction the Appellee Seana Willing and her attorney
Scot Graydon under Tex. R. Appellate P. 52.11.
The Cover Page is excluded from calculating word count. Appellant
filed his Identity of Parties and Counsel, which is excluded from calculating
word count. Appellant filed his Statement regarding Oral Argument, and this
is excluded from calculating word count. Appellant filed his Table of
Contents and Issues Presented for Review, which are also excluded from
calculating word count. Index of Authorities is also excluded. The Statement
of the Case is excluded. Appellant filed his Statement of Facts, (Pre-Trial
History and Brief History of Events [which is Appellant's statement of
procedure history], which is also excluded from calculating word count.
Jurisdiction is also excluded. Certificate of Service and Certificate of
Compliance and any relevant Appendix information to the Court is also
excluded. Appellant fully understands how to check on his computer for
APPELLANT'S RESPONSE/MOTION FOR SANCTIONS AND JUDGMENT PAGE 2 word and character count. After the Appellant rechecked the word count in
the brief he filed with the Court, the count remains below 15,000 words.
The due date on Appellees brief was April 1, 2015. And unless there
has been a brief filed that the Appellant is unaware of, Appellees has failed
to file it's brief timely, and has failed to file a request of the Court for an
extension of time to file its brief. Thus, the Court should rule in favor of the
Appellant, and against the Appellees, for Appellant's cost and time in filing
this appeal. Moreover, Appellees failed to conference with the Appellant
prior to filing its frivolous motion to strike in the Court's record.
Local rules require a party to an appeal to conference with the other
party before filing a motion with the Court. The Appellees failed to do so,
like it failed to conference with the Appellant before filing its motion to
wrongfully declare Appellant as a vexatious litigant. Graydon states that he
tired to conference with the Appellant in writing. Appellant have never
agreed to conferencing in writing with the Appellees. Thus, Appellee
Graydon again, is refusing to comply with the most simplest procedure rules.
Nevertheless, conferencing requires more than one attempt to conference
with the other party in litigation, if a party is unable able to reach the party it
is attempting to conference with. Appellee only made one allege attempt by
APPELLANT'S RESPONSE/MOTION FOR SANCTIONS AND JUDGMENT PAGE 3 U.S. mail to conference with Appellant. Notwithstanding, the Appellees
motion to strike does not comply with the Texas Rules of Appellate
Procedure in that the pages are not numbered, and other non-compliance
issues. Moreover, the Clerk of Court raised no compliance issues with the
Appellant's brief, however, if by some means if Appellant's brief may not
comply in some way, Drake respectfully request time to cure any defects.
Pursuant to Order Adopting Texas Rule of Appellate Procedure 6 and
9, Misc. Docket No. 13-9128, Supreme Court of Texas, 2013 Tex. Lexis
1087, under: Maximum Length. The documents listed below must not
exceed the following limits under subsection (b):
(B) A brief and response in an appellate court (other than a brief under subparagraph (A)) and a petition and response in an original proceeding in the court of appeals: 15,000 words if computer- generated, and 50 pages if not. In a civil case in the court of appeals, the aggregate of all briefs filed by a party must not exceed 27,000 words if computer-generated, and 90 pages if not.
Because the Appellee has failed to file a brief, and has chosen to file a
frivolous motion instead, the Appellant asks the Court for all relief that he
requested in his original brief, which is: Appellant Drake requests that the
Court vacate the following orders that were signed on August 19, 2014
APPELLANT'S RESPONSE/MOTION FOR SANCTIONS AND JUDGMENT PAGE 4 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
prefiling order; the August 19, 2014 orders of referral and recusal that this
Court has been directed to in this brief, and that these orders should be
stricken from the record and vacated for the reasons pled in Appellant brief.
Additionally, because Appellees have not even tried to file a brief in
the above matter, the Appellant requests as sanctions the time that it took to
draft his brief, including the time for research and other costs.
Appellant asks that the Court deny the Appellees motion to strike, and
Sanction Appellees Seana Willing and her attorney Scott Graydon for their
filing a frivolous pleading into the Court's record. Appellant brief is
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No:03-14-00665-CV
IN THE COURT OF APPEALS FOR THE THIRD JUDICIAL DISTRICT OF TEXAS AT AUSTIN, TEXAS
ERIC DRAKE
Plaintiff-Appellant April 6, 2015 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
APPELLANT ERIC DRAKE'S RESPONSE TO APPELLEES MOTION TO STRIKE AND APPELLANT'S MOTION FOR SANCTIONS AND APPELLANT'S MOTION FOR JUDGMENT
Eric Drake r^RECEIVEDN Pro-Se Appellant APR 0 6 2015 PO Box 833688 THIRD COURT OF APPEALS Richardson, Texas 75083 \ JEFFREY D. KYLE / 214-477-9288 APPELLANT ERIC DRAKE'S RESPONSES TO APPELLEES MOTION TO STRIKE. APPELLANT'S MOTION FOR SANCTIONS AND APPELLANT MOTION FOR JUDGMENT
TO HONORABLE JUSTICES OF SAID COURT:
Appellant Eric Drake files this response to Appellees motion to strike,
and files a motion for sanctions, and for judgment against Appellees Seana
Willing and her attorney Scott Graydon.
Appellee filed a motion to strike the Appellant's brief based on
allegations that the Appellant's brief was over one thousand words in excess
of the 15,000-word count. Appellees also alleged that Appellant's brief
exceeded the page count limit. There is a 15,000-word count for computer-
generated briefs, but to the best of Appellant's legal research there is not a
page count limit unless the brief is typewritten or handwritten. Otherwise for
computer-generated briefs, the limit is based on the word count. The
following are exclusions to the calculating the word count: caption, identity
of parties and counsel, statement regarding oral argument, table of contents,
index of authorities, statement of the case, statement of issues presented,
statement of jurisdiction, statement of procedural history, signature, proof of
service, certification, certificate of compliance, and appendix.
Appellant checked his brief carefully before filing it with the Court,
and excluded the above exclusions when calculating the word count. The
APPELLANT'S RESPONSE/MOTION FOR SANCTIONS AND JUDGMENT PAGE 1 Appellant re-checked his brief after learning of the Appellees allegations,
and the brief is the same word count. It is difficult to calculate word count
on a document if the document is in paper form. And it takes minutes to do
so when the document has been generated by a computer, as in the
Appellant's case. Simply enough, the Appellees motion to strike is frivolous,
and the Court should sanction the Appellee Seana Willing and her attorney
Scot Graydon under Tex. R. Appellate P. 52.11.
The Cover Page is excluded from calculating word count. Appellant
filed his Identity of Parties and Counsel, which is excluded from calculating
word count. Appellant filed his Statement regarding Oral Argument, and this
is excluded from calculating word count. Appellant filed his Table of
Contents and Issues Presented for Review, which are also excluded from
calculating word count. Index of Authorities is also excluded. The Statement
of the Case is excluded. Appellant filed his Statement of Facts, (Pre-Trial
History and Brief History of Events [which is Appellant's statement of
procedure history], which is also excluded from calculating word count.
Jurisdiction is also excluded. Certificate of Service and Certificate of
Compliance and any relevant Appendix information to the Court is also
excluded. Appellant fully understands how to check on his computer for
APPELLANT'S RESPONSE/MOTION FOR SANCTIONS AND JUDGMENT PAGE 2 word and character count. After the Appellant rechecked the word count in
the brief he filed with the Court, the count remains below 15,000 words.
The due date on Appellees brief was April 1, 2015. And unless there
has been a brief filed that the Appellant is unaware of, Appellees has failed
to file it's brief timely, and has failed to file a request of the Court for an
extension of time to file its brief. Thus, the Court should rule in favor of the
Appellant, and against the Appellees, for Appellant's cost and time in filing
this appeal. Moreover, Appellees failed to conference with the Appellant
prior to filing its frivolous motion to strike in the Court's record.
Local rules require a party to an appeal to conference with the other
party before filing a motion with the Court. The Appellees failed to do so,
like it failed to conference with the Appellant before filing its motion to
wrongfully declare Appellant as a vexatious litigant. Graydon states that he
tired to conference with the Appellant in writing. Appellant have never
agreed to conferencing in writing with the Appellees. Thus, Appellee
Graydon again, is refusing to comply with the most simplest procedure rules.
Nevertheless, conferencing requires more than one attempt to conference
with the other party in litigation, if a party is unable able to reach the party it
is attempting to conference with. Appellee only made one allege attempt by
APPELLANT'S RESPONSE/MOTION FOR SANCTIONS AND JUDGMENT PAGE 3 U.S. mail to conference with Appellant. Notwithstanding, the Appellees
motion to strike does not comply with the Texas Rules of Appellate
Procedure in that the pages are not numbered, and other non-compliance
issues. Moreover, the Clerk of Court raised no compliance issues with the
Appellant's brief, however, if by some means if Appellant's brief may not
comply in some way, Drake respectfully request time to cure any defects.
Pursuant to Order Adopting Texas Rule of Appellate Procedure 6 and
9, Misc. Docket No. 13-9128, Supreme Court of Texas, 2013 Tex. Lexis
1087, under: Maximum Length. The documents listed below must not
exceed the following limits under subsection (b):
(B) A brief and response in an appellate court (other than a brief under subparagraph (A)) and a petition and response in an original proceeding in the court of appeals: 15,000 words if computer- generated, and 50 pages if not. In a civil case in the court of appeals, the aggregate of all briefs filed by a party must not exceed 27,000 words if computer-generated, and 90 pages if not.
Because the Appellee has failed to file a brief, and has chosen to file a
frivolous motion instead, the Appellant asks the Court for all relief that he
requested in his original brief, which is: Appellant Drake requests that the
Court vacate the following orders that were signed on August 19, 2014
APPELLANT'S RESPONSE/MOTION FOR SANCTIONS AND JUDGMENT PAGE 4 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
prefiling order; the August 19, 2014 orders of referral and recusal that this
Court has been directed to in this brief, and that these orders should be
stricken from the record and vacated for the reasons pled in Appellant brief.
Additionally, because Appellees have not even tried to file a brief in
the above matter, the Appellant requests as sanctions the time that it took to
draft his brief, including the time for research and other costs.
Appellant asks that the Court deny the Appellees motion to strike, and
Sanction Appellees Seana Willing and her attorney Scott Graydon for their
filing a frivolous pleading into the Court's record. Appellant brief is
computer-generated, it would take less than 3 minutes to calculate and show
the Court that the Appellees allegations are false and misleading, just as
Appellee Willing and Scot Graydon did before Judge Charles Ramsay.
Further, in regards to Appellees allegations that they may not have
received documents that the Appellant has filed into the Court's record, this
is the first time that the Appellant has heard of this complaint. Nevertheless,
Appellant sent Appellee Willing copies of all pleadings filed. This complaint
is as frivolous as Appellee Willing's motion to strike.
APPELLANT'S RESPONSE/MOTION FOR SANCTIONS AND JUDGMENT PAGE 5 WHEREFORE, APPELLANT, ERIC DRAKE respectfully requests
the Court to vacate the following orders that were signed on August 19,
2014 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
prefiling order; the August 19, 2014 orders of referral and recusal that this
Court has been directed to in this brief, and that these orders should be
stricken from the record and vacated for the reasons pled in Appellant's
original brief filed in the Court. Additionally, because Appellees have not
even tried to file a brief in the above matter, the Appellant requests the time
that it took to file his brief including the time for research and other costs.
And part of their sanctions, the Court should not allowed a late filing of a
brief by the Appellees Seana Willing and Scott Graydon.
Appellant further asks for judgment of the Court in his favor, and that
the Court deny the Appellees motion to strike, and Sanction Appellees Seana
Willing and her attorney Scott Graydon for their filing a frivolous pleading
into the Court's record. To the best of Appellant's understanding and belief,
his brief filed with the Court does comply with the Tex. R. Appellate P., by
his calculations, however, if there is something that the Appellant has
possibly overlooked, he requests that the Court allow him a reasonable time
APPELLANT'S RESPONSE/MOTION FOR SANCTIONS AND JUDGMENT PAGE 6 to cure any defects. Appellant further requests the Court to set a hearing on
the Appellant Motion for Sanctions, and during the hearing, Appellant will
demonstrate to the Court that his brief does comply with the word count.
Appellant finally requests all and any other relief that the court may
grant him that he may show justification.
Respectfully submitted:
Eric Drake PO Box 25565 Dallas, Texas 75225 214-477-9288
CERTIFICATION OF SERVICE
I HEREBY certify that a true and correct copy of the foregoing
document has been delivered to the defendant's/appellees through their
attorney of record via US Mail on this the 1st day of April 2015.
APPELLANT'S RESPONSE/MOTION FOR SANCTIONS AND JUDGMENT PAGE 7 CERTIFICATION OF CONFERENCE
I ERIC DRAKE, Appellant, on this the, 31st day of March, and on the
1st day of April 2015, certify that I attempted to make contact with Kristina
Kastl, and on April 1, 2015 on two occasions to conference with her
regarding this motion, however, she has failed to respond. Likewise, I
attempted to conference with Scot Graydon on March 31,2015, and on April
1, 2015, but he has refused to conference with Appellant by telephone.
Appellant left several messages on Mr. Graydon's voice mail with no avail.
On April 1, 2015, I also attempted to contact Frank Waite and left several
messages and he never responded. Thus, I file this motion with the Court for
its decision and ruling.
APPELLANT'S RESPONSE/MOTION FOR SANCTIONS AND JUDGMENT PAGE 8 -aaas-fflF^^iggj U.S.flPgST«GE mZSSomm APR Bl.'lS WlfiUNT PRESS FIRMLY TO SEAL PRESS FIRMLY TO SEAL 1007 $19.99 \ 00041879-11 priority rr, Mail EXPRESS Lsbd • MAIL • EI 102a3m57 us !Z£Z!!££L*c.. PostOfficeToA EXPRESS" OUR FASTEST SERVICE IN THE U.S. 31? Court oS <+??'« I* WHEN USED INTERNATIONALLY, S^l-te /O/ A CUSTOMS DECLARATION 8 LABEL MAY BE REQUIRED. /h«s&/*>, 77. 7*?ot Q. "WEI FOR PICKUP OR TRACKING ,SE@@E+n[J visit www.usps.com ^-^.g Call 1-800-222-1811 ~£3?3- EP13F July 2013 OD: 12.5x9.5 L inniT iia «t unnn <^r\K>t /^icn f/iAirrp