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 file s 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

CLERKI. INTRODUCTION
On March 27, 2015, Appellee Seana Willing (“Ms. Wiling”) filed a Motio n to Strike Appellant’s Brief, demonstrat ing to the Court that despite this Court’s
previous order, Appellant’s brief exceeded the word count and violates T EX

. R. A PP

. P. 9.4(i)(2)(B).
On April 1, 2015, Ms. Willing filed her Appellee’s Brief in this mat ter. 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.

I I. MOTION FOR SANCTIONS

Pursuant to T EX

. R. A PP

. P. 52.11, this Court may impose sanctions on a party or attorney who is not acting in good faith as ind icated 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.
T EX

. R. A PP

. 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 Appellan t’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 T EX

. R. A PP

. P.
52.11(a) as “clearly groundless.” As a threshold matter, this section applies to
petitions, and not to motions. T EX

. R. A PP

. P. 52.11(a). Further, Appellant presents

no cas e 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)

3and can t ake minutes. Nevertheless, this is an obligation that all parties need to meet.

T EX

. R. A PP . 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 th e 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 , Exhib it 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 frivol ous , 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. T EX

. R. A PP

. P. 52.11(b). While Appellant has, in his brief, grossly

misstated or omitt ed an obviously important and material fact in his brief 1 , he has
not demonstrated that Ms. Willing has done so. T EX

. R. A PP

. 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 T EX

. R. C IV

. P. 18a(f)(2)(A) as i f 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 T EX

. R. C IV

. P. 18a(f)(2)(A) and with CR 547.

4Willing has not filed a misleading appendix or record that is o mit s obviously
important and material evidence or documents. T EX

. R. A PP

. 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 Br ief 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 Sanction s should be denied.

5I I I. 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. T EX

. R. A PP . P. 9.4( k ) (court may strike a document prepared

in a manner t o avoid the limits of Rule 9.4).
Respectfully submitted,

KE N PAXTON Attorney General of Texas

CHARLES E. ROY First Assistant Attorney General

6JAMES 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 , 201 5 to: Eric Drake PO Box 833688 Richardson, Texas 75083 Pro Se Appellant

/s/ S cot M. Graydon Scot M. Graydon Assistant Attorney General

7