Case No. 03-14-00665-CV

______________________________

IN THE COURT OF APPEALS FOR THE 

THIRD JUDICIAL DISTRICT

AUSTIN, TEXAS

______________________________

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:

ACCEPTED

03-14-00665-CV

4795733

THIRD COURT OF APPEALS

AUSTIN, TEXAS

4/7/2015 4:14:38 PM

JEFFREY D. KYLE

CLERK

 FILED IN 3rd COURT OF APPEALS AUSTIN, TEXAS 4/7/2015 4:14:38 PM JEFFREY D. KYLE Clerk
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

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(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) 

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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 brief1

, he has 

not demonstrated that Ms. Willing has done so. TEX. R. APP. P. 52.11(c). Ms. 

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 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.

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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.

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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

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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

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