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 files 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 

exceeds 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

CLERK

 RECEIVED IN 3rd COURT OF APPEALS AUSTIN, TEXAS 6/16/2015 2:54:14 PM JEFFREY D. KYLE Clerk
Appellate 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 15,000 words if 

computer-generated, and 50 pages if not. TEX. R. APP. 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 or about February 20, 2015, 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 TEX. R. APP. 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 order, 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 TEX. R. APP. P. 9.4(i)(3). Appellant certified 

that “exclusive of the exempted portions, the brief contains 14,819 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 TEX. R. APP. 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 Case1

,” 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. TEX. R.

APP. 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 TEX.R.APP. P. 38.1(d). The statutory requirement

of a “Statement of the Case” is as follows:

The brief must state concisely the nature 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.

TEX. R. APP. 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, not 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 been 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 TEX. R. APP. P. 

9.4(i)(1) by concealing 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 Case” within the meaning of 

the Texas Rules of Appellate Procedure, but rather a “Summary of the Argument,” 

to be counted toward the length of a brief, pursuant to TEX. R. APP. 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 1-122 and 14-82) exceed the maximum length 

in both pages and words. For the convenience of the Court, a spreadsheet is attached 

identifying how many 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 previous 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 TEX. R. APP. P. 9.4(i)(1). Appellant does not try to 

conceal argument from the length of his brief in the Statement of Jurisdiction, 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 again 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 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

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, 2015

to:

Eric Drake

PO Box 833688

Richardson, Texas 75083

Pro Se Appellant

/s/ Scot M. Graydon

Scot M. Graydon

Assistant Attorney General
Page 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

EXHIBIT A
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