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 

REPLY BRIEF FOR APPELLEE’S MOTION TO STRIKE 

TO THE HONORABLE COURT OF APPEALS: 

 COMES NOW SEANA WILLING, Appellee herein, and files this Motion to 

Strike Appellant’s Brief, and would respectfully show this Court the following: 

 In her Motion to Strike, Appellee Seana Willing (“Ms. Wiling”) demonstrated 

to the Court that despite this Court’s previous order, Appellant’s brief exceeded the 

word count and should be struck for violating TEX. R. APP. P. 9.4(i)(2)(B). 

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
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On or about April 6, 2015, Eric Drake (“Appellant”) responded. In his 

response, Appellant argues that it is difficult to count words. Nevertheless, this is 

an obligation that all parties need to meet. TEX. R. APP. P. 9.4(i)(2)(B). 

Appellant also argues that he excluded from the word count items excluded 

under TEX. R. APP. P. 9.4(i)(1). Appellant for the first time tells this Court that his 

“Statement of Facts” is not a statement of facts, as is required of an Appellant’s 

Brief. TEX. R. APP. P. 38.1(g). Instead, Appellant has wholly omitted the required 

Statement of Facts, and has instead characterized it as a “statement of procedural 

history.” (Appellant’s Response, page 2). There are three problems with 

Appellant’s arguments. First, while Appellant recounts filings made, this is not 

simply a statement of procedural history, but is in fact argument. See, e.g.,

Appellant’s Brief, page 8, alleging, with no support from the record, that: “Assistant 

attorney general Scot Graydon quarterbacked getting an order signed1 to deny the 

Appellant's motion to compel...” Appellant cannot avoid the word limits of a brief 

by repackaging his argument and suggesting it is a statement of procedural history. 

Second, even if Appellant’s suggestion is considered accurate by this Court, and 

pages 6-13 are excluded from the word count, Appellant has still exceeded the 

maximum word count, simply by a smaller margin. Third, if Appellant has wholly 

 

1

 Appellant’s argument on page 8 is contradicted by his allegations on page 36, in which he 

alleges that Judge “Meachum knew that Kastl was trying to get an order signed on the day of 

Appellant's compel hearing...” (Appellant’s Brief, page 36) (emphasis added). 
3 

failed to present a Statement of Facts as required, his Brief should be struck on that 

basis, as it does not comply with TEX. R. APP. P. 38.1(g). Any attempt to add a 

Statement of Facts would only further exceed the already exceeded word-count for 

Appellant’s Brief. 

Next, Appellant argues that Ms. Willing’s attempt to confer was inadequate, 

because only one letter was sent to attempt to confer. Appellant cites no authority 

to support his position. More significantly, Appellant’s argument suggests that he 

may simply not pick up his mail and argue that written conferring is inadequate. In 

reality, Appellant was sent the written request to confer on March 10, 2015, and it 

arrived in his mail on March 11, 2015. (Exhibit C2

). This attempt to confer then sat 

in Appellant’ mailbox for an additional 16 days, during which Appellant either did 

not pick up his mail, or refused to sign for this particular mailing. (Exhibit C). After 

16 days in which Appellant simply did not pick up this mail, the letter was returned 

to Ms. Willing, marked “Unclaimed” by Appellant. (Exhibit D, page 5). Appellant 

cannot simply refuse to receive communications and then argue that inadequate 

attempts were made. 

Appellant’s remaining arguments are in relation to a Motion for Sanctions, 

and will be addressed in another pleading. For the purposes of this Reply, the only 

 

2

 For the purpose of clarity, Exhibits C and D are attached to this pleading, following Exhibits 

A and B, which were filed with the original Motion to Strike. 
4 

relevant matter is that Appellant’s remaining arguments are all predicated on Ms. 

Willing not filing her brief by April 1, 2015, despite the fact that she did so. 

Accordingly, Appellant’s argument has no basis in fact or law. 

Finally, Appellant responds to Ms. Willing’s Advisory to the Court regarding 

his attempts to insert documents into the record which were not filed before the Trial 

Court, nor received by Ms. Willing. Appellant states “this is the first time that the 

Appellant has heard” that Ms. Willing has not received the documents he presented. 

This was the first time Ms. Willing had to inform the court that she had never 

received the documents. It was in response to the first time Appellant ever showed 

such documents to her. Appellant does not address the internal inconsistencies that 

cast doubt on the authenticity of his documents. 

Under ordinary circumstances, a procedural defect might be allowed to be 

cured by Appellant. In this particular instance, Ms. Willing asks this Court to 

consider the following and determine that Appellant has acted in bad faith and should 

not be allowed to cure his defect: Appellant presented a false word count, with actual 

awareness that this Court denied his request to exceed the word count, in addition to 

the numerous examples of bad faith in litigating this matter that Ms. Willing 

identified previously in her Motion to Strike, and which Appellant does not deny. 

In light of his knowing misrepresentation, Ms. Willing asks that Appellant’s 

Brief be stricken from the record, and that the determination of the Trial Court, 
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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 

 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 
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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
Customer Servic

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DATE & TIME STATUS OF ITEM LOCATIONMarch 30, 2015 , 10:06 am Delivered AUSTIN, TX 78711 Your item was delivered at 10:06 am on March 30, 2015 in AUSTIN, TX 78711 to ATTY GENERAL12548. The item was signed for by C PENDER.March 30, 2015 , 8:58 am Available for Pickup AUSTIN, TX 78711 March 30, 2015 , 8:25 am Arrived at Post Office AUSTIN, TX 78711 March 28, 2015 , 10:25 am Available for Pickup AUSTIN, TX 78711 March 28, 2015 , 6:42 am Arrived at USPS Facility AUSTIN, TX 78710 March 27, 2015 , 7:01 pm Arrived at USPS Origin Facility COPPELL, TX 75099 March 27, 2015 , 5:52 pm Arrived at USPS Origin Facility RICHARDSON, TX 75080 

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