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

APPELLEE’S ADVISORY TO THE COURT

TO THE HONORABLE COURT OF APPEALS:

COMES NOW SEANA WILLING, Appellee herein, and file s this Advisory
to the Court regarding the Amended Brief of Appellant Eric Drake , and would
respectfully show this Court the following:

As is further discussed infra , the Amended Brief of Appellant Eric Drake

e xceeds the maximum length for a brief, despite this Court’s previous order
requiring Eric Drake (“Appellant”) to file a brief conforming to the Texas Rules of ACCEPTED 03-14-00665-CV 5697843 THIRD COURT OF APPEALS

AUSTIN, TEXAS 6/16/2015 2:54:14 PM JEFFREY D. KYLE

CLERKAppellate Procedure. Notwithstanding Appellant’s violation of the Rules of
Appellate Procedure, in the event that this Court does not strike Appellant’s briefing,
Appellee stands on her previously filed Appellee Brief , as discussed infra

.
I. Appellant’s Amended Brief Exceeds the Maximum Length
The maximum length of a brief in an appellate court is 1 5,000 words if

computer

- generated, and 50 pages if not. T EX

. R. A PP . P. 9.4(i)(2)(B). Appellant
consistently exceeds that maximum, despite his actual knowledge and the direction

of this Court.

A. Appellant has Previously Been Warned About Brief Length

On o r about February 20 , 20 15, this Court denied Appellant’s request to

exceed the word count in his brief.
On March 2, 2014, Appellant filed his Appellant’s Brief , which contained
approximately 16,675 words, exceeding the limit established by T EX

. R. A PP . P.
9.4(i)(2)(B).
On March 27, 2015, Ms. Willing filed a Motion to Strike, identifying this
defect to the Court and to Appellant.
On May 1, 2015, Ms. Willing’s Motion to Strike was denied, but this Court
entered a separate Order noting that Appellant’s Brief exceeded the maximum length
of a brief and directing Appellant to “file an amended brief complying with the rules
of appellate procedure on or before May 15, 2015. ” [ Order , May 1, 2015].This Court admonished that “ If Drake fails to comply with this orde r, this
Court may strike appellant’s brief and dismiss this appeal. ” [ Order , May 1, 2015].

B. Appellant’s Amended Brief Still Exceeds Maximum Length of a Brief

On May 13, 2015, Appellant filed the Amended Brief of Appellant Eric
Drake. [ Amended Appellant’s Brief ]. In that brief, he certified that his brief was in
compliance of the word limit, as per T EX

. R. A PP . P. 9.4(i)(3). Appellant certified
that “exclusive of the exempted portions, the brief contains 14, 8 19 words.

[ Amended Appellant’s Brief , page 85]

. Appellant’s Brief exceeds the maximum length. Ms. Willing asks this Court
to take judicial notice of the fact that exclusive of the exempted portions, the brief is

over 75 pages in length. More significantly, despite Appellant certifying that his
brief contained 14,819 words, and thus just making the word limit, the brief actually
contains approximately 15,642 words, significantly exceeding the limit established
by T EX

. R. A PP . P. 9.4(i)(2)(B).

1

. Appellant’s Pages 1

- 6 Should Be Counted
Rather than comply with the Briefing requirements, Appellant has sought to
conceal argument that should count against the length of the brief by improperly
titling it “Statement of the Case 1 ,” despite the fact that it does not conform in any

1 A true Statement of the Case is not counted against the maximum length of a brief. T EX

. R. A PP . P. 9.4(i)(1).way to the statutory description of a “Statement of the Case.” Compare Amended
Appellant’s Brief , pages 1

- 6 with T EX

. R. A PP

. P. 38.1(d). The statutory requirement

of a “Statement of the Case” is as follows:
The brief must state concisely the natur e of the case (e.g., whether it is a suit for damages, on a note, or involving a murder prosecution), the course of proceedings, and the trial court's disposition of the case. The statement should be supported by record references , should seldom exceed one

- half page, and should not discuss the facts

. T EX

. R. A PP

. P. 38.1(d) (emphasis added).
By contrast, pages 1

- 6 of Amended Appellant’s Brief contain not a single
reference to the record, and are solely Appellant’s argument of “the facts” despite
no references to support those interpretations or alleged “facts.” [ Amended
Appellant’s Brief , pages 1

- 6]. For example, Appellant argues about the sufficiency
of evidence presented at a hearing (a merit based argument, no t a “Statement of the
Case”) , without any attempt to refer to the record:
Appellee Seanna Willing failed to submit to the trial court sufficient evidence, which would have proved that there was not a reasonable probability that Appellant, would not have be en successful against her. Appellant was asking the trial court for an injunction and declaratory judgment against Appellee Willing and Ginsberg, as well as damages against both Willing and Ginsberg. Scot Graydon offered only hearsay evidence to the trial court. Judge Ramsay wrongfully granted Appellees Seanna Willing Motion to Declared Appellant as a Vexatious Litigate

. [ Amended Appellant’s Brief , pages 4

- 5].Appellant should not be allowed to evade the requirements of T EX

. R. A PP . P.
9.4(i)(1) by conc ealing argument from the maximum length of body of the brief and
falsely titling that argument as “Statement of the Case.”
Ms. Willing asks this Court to take judicial notice that pages 1

- 6 of the
Amended Appellant’s Brief are not a “Statement of the Ca se” within the meaning of
the Texas Rules of Ap pellate Procedure, but rather a “Summary of the Argument,”

to be counted toward the length of a brief , pursuant to T EX

. R. A PP . P. 9.4(i)(1).

2

. Amended Appellant’s Brief Exceeds Maximum Length
Ms. Willing asks this Court to take judicial notice that the relevant portions of
the Amended Appellant’s Brief (pages 1

- 12 2 and 14

- 82) exceed the maximum length
in both pages and words. For the convenience of the Court, a spreadsheet is attached
identifying how man y words are on each page. ( Exhibit A ). The word count for
each page was counted by using the Word Count function on Microsoft Word

. Appellant’s false word count, presented knowingly to this Court despite (or
because of) his awareness of this Court’s pre vious ruling, is yet another example of
the bad faith in litigating this matter by Appellant, not only in this Court, but in the

2 Page 13 of the Amended Appellant’s brief is a Statement of Jurisdiction, and is not counted toward the maximum length, pursuant to T EX

. R. A PP . P. 9.4(i)(1). Appellant does not try to conceal argument from the length of his brief in the Statement of Ju risdiction, unlike the argument falsely titled “Statement of the Case.”Trial Court. Other examples of the bad faith in his litigation were presented in the
Motion to Strike, filed on March 27, 2015

. Ms. Willing believes that in light of this Court’s previous admonishment
about the length of Appellant’s Brief and the consequences of failure to abide by this
Court’s May 1, 2015 Order , she should bring to this Court’s attention the fact that
he has ag ain exceeded the maximum length for a brief

.

II. Appellee’s Position Regarding her Brief
It is unclear from this Court’s Order of May 1, 2015 if leave was given to Ms.
Willing to file an Amended Appellee’s Brief.
A review of the Amended Appellant’s Brief shows that it is largely the same
arguments as in his original Appellant’s Brief, with very few exceptions, such as an
even more egregious omission of Tex. R. Civ. P. 18a(f)(2), which was previously
misrepresented [ Appellant’s Brief , page 34] and is now wholly omitted [ Amended
Appellant’s Brief , page 34], despite being the basis for the trial court’s hearing the
matter and entering the order in question [CR 547

- 549].
Accordingly, Appellee’s Brief adequately serves to present her legal position
to this Court, and Appellee does not ask to file an Amended Appellee’s Brief.
Respectfully submitted,

KEN PAXTON Attorney General of TexasCHARLES E. RO Y 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 Attorn ey 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 June 16
, 201 5 to: Eric Drake PO Box 833688 Richardson, Texas 75083 Pro Se Appellant

/s/ S cot M. Graydon Scot M. Graydon Assistant Attorney GeneralPage Number Word Count

1 157 2 194 3 197 4 199 5 201 6 56 7 110 8 97 9 123 10 117 11 109 12 58

14 189 15 56 16 218 17 234 18 175 19 220 20 218 Words for Pgs 1-20: 2928

21 193 22 195 23 195 24 215 25 225 26 190 27 199 28 219 29 213 30 190 31 219 32 195 33 44

### WORD COUNT BY PAGE

34 228 35 222 36 218 37 249 38 228 39 236 40 208 Words for Pgs. 21-40: 4081

41 182 42 194 43 225 44 245 45 223 46 198 47 215 48 208 49 210 50 223 51 105 52 221 53 228 54 218 55 220 56 222 57 236 58 235 59 223 60 184 Words for Pgs. 41-60: 4215

61 222 62 177 63 65 64 234 65 221 66 236

### WORD COUNT BY PAGE

67 200 68 175 69 236 70 247 71 204 72 27 73 208 74 213 75 228 76 220 77 226 78 218 79 221 80 231 81 244 82 165 Words for Pgs. 61-82 4418

Total Words: 1-20 2928 21-40 4081 41-60 4215 61-82 4418 Total: 15,642