     No:03-14-00665-CV

       IN THE COURT OF APPEALS FOR
   THE THIRD JUDICIAL DISTRICT OF TEXAS
                      AT AUSTIN, TEXAS


                                   ERIC DRAKE


                                        Plaintiff-Appellant           April 6, 2015
                                       v.



              KASTL LAW FIRM P.C. ET AL

                                       Defendant—Appellee



  ON APPEAL FROM THE 200™ DISTRICT COURT
       TRAVIS COUNTY, AUSTIN, TEXAS
        Trial Court No. D-l-GN-14-001215


         APPELLANT ERIC DRAKE'S
 RESPONSE TO APPELLEES MOTION TO STRIKE
AND APPELLANT'S MOTION FOR SANCTIONS AND
   APPELLANT'S MOTION FOR JUDGMENT



                                                                 Eric Drake
         r^RECEIVEDN                                                 Pro-Se
                                                                  Appellant
                APR 0 6 2015                                  PO Box 833688
              THIRD COURT OF APPEALS               Richardson, Texas 75083
          \      JEFFREY D. KYLE   /
                                                               214-477-9288
  APPELLANT ERIC DRAKE'S RESPONSES TO APPELLEES
MOTION TO STRIKE. APPELLANT'S MOTION FOR SANCTIONS
       AND APPELLANT MOTION FOR JUDGMENT

TO HONORABLE JUSTICES OF SAID COURT:

      Appellant Eric Drake files this response to Appellees motion to strike,

and files a motion for sanctions, and for judgment against Appellees Seana

Willing and her attorney Scott Graydon.

      Appellee filed a motion to strike the Appellant's brief based on

allegations that the Appellant's brief was over one thousand words in excess

of the 15,000-word count. Appellees also alleged that Appellant's brief

exceeded the page count limit. There is a 15,000-word count for computer-

generated briefs, but to the best of Appellant's legal research there is not a

page count limit unless the brief is typewritten or handwritten. Otherwise for

computer-generated briefs, the limit is based on the word count. The

following are exclusions to the calculating the word count: caption, identity

of parties and counsel, statement regarding oral argument, table of contents,

index of authorities, statement of the case, statement of issues presented,

statement of jurisdiction, statement of procedural history, signature, proof of

service, certification, certificate of compliance, and appendix.

      Appellant checked his brief carefully before filing it with the Court,

and excluded the above exclusions when calculating the word count. The

APPELLANT'S RESPONSE/MOTION FOR SANCTIONS AND JUDGMENT               PAGE 1
Appellant re-checked his brief after learning of the Appellees allegations,

and the brief is the same word count. It is difficult to calculate word count

on a document if the document is in paper form. And it takes minutes to do

so when the document has been generated by a computer, as in the

Appellant's case. Simply enough, the Appellees motion to strike is frivolous,

and the Court should sanction the Appellee Seana Willing and her attorney

Scot Graydon under Tex. R. Appellate P. 52.11.

      The Cover Page is excluded from calculating word count. Appellant

filed his Identity of Parties and Counsel, which is excluded from calculating

word count. Appellant filed his Statement regarding Oral Argument, and this

is excluded from calculating word count. Appellant filed his Table of

Contents and Issues Presented for Review, which are also excluded from

calculating word count. Index of Authorities is also excluded. The Statement

of the Case is excluded. Appellant filed his Statement of Facts, (Pre-Trial

History and Brief History of Events [which is Appellant's statement of

procedure history], which is also excluded from calculating word count.

Jurisdiction is also excluded. Certificate of Service and Certificate of


Compliance and any relevant Appendix information to the Court is also

excluded. Appellant fully understands how to check on his computer for


APPELLANT'S RESPONSE/MOTION FOR SANCTIONS AND JUDGMENT              PAGE 2
word and character count. After the Appellant rechecked the word count in

the brief he filed with the Court, the count remains below 15,000 words.

      The due date on Appellees brief was April 1, 2015. And unless there

has been a brief filed that the Appellant is unaware of, Appellees has failed

to file it's brief timely, and has failed to file a request of the Court for an

extension of time to file its brief. Thus, the Court should rule in favor of the

Appellant, and against the Appellees, for Appellant's cost and time in filing

this appeal. Moreover, Appellees failed to conference with the Appellant

prior to filing its frivolous motion to strike in the Court's record.

      Local rules require a party to an appeal to conference with the other

party before filing a motion with the Court. The Appellees failed to do so,

like it failed to conference with the Appellant before filing its motion to

wrongfully declare Appellant as a vexatious litigant. Graydon states that he

tired to conference with the Appellant in writing. Appellant have never

agreed to conferencing in writing with the Appellees. Thus, Appellee

Graydon again, is refusing to comply with the most simplest procedure rules.

Nevertheless, conferencing requires more than one attempt to conference

with the other party in litigation, if a party is unable able to reach the party it

is attempting to conference with. Appellee only made one allege attempt by


APPELLANT'S RESPONSE/MOTION FOR SANCTIONS AND JUDGMENT                   PAGE 3
U.S. mail to conference with Appellant. Notwithstanding, the Appellees

motion to strike does not comply with the Texas Rules of Appellate

Procedure in that the pages are not numbered, and other non-compliance

issues. Moreover, the Clerk of Court raised no compliance issues with the

Appellant's brief, however, if by some means if Appellant's brief may not

comply in some way, Drake respectfully request time to cure any defects.

      Pursuant to Order Adopting Texas Rule of Appellate Procedure 6 and

9, Misc. Docket No. 13-9128, Supreme Court of Texas, 2013 Tex. Lexis

1087, under: Maximum Length. The documents listed below must not

exceed the following limits under subsection (b):

      (B) A brief and response in an appellate court (other than a brief under
      subparagraph (A)) and a petition and response in an original
      proceeding in the court of appeals: 15,000 words if computer-
      generated, and 50 pages if not. In a civil case in the court of appeals,
      the aggregate of all briefs filed by a party must not exceed 27,000
      words if computer-generated, and 90 pages if not.


      Because the Appellee has failed to file a brief, and has chosen to file a

frivolous motion instead, the Appellant asks the Court for all relief that he

requested in his original brief, which is: Appellant Drake requests that the

Court vacate the following orders that were signed on August 19, 2014


APPELLANT'S RESPONSE/MOTION FOR SANCTIONS AND JUDGMENT                PAGE 4
pursuant to cause number: D-l-GN-14-001215, which would include all

orders the Appellant has directed this Court to in this brief, including: the

August 19,2014 order declaring Appellant Drake as a vexatious litigant with

prefiling order; the August 19, 2014 orders of referral and recusal that this

Court has been directed to in this brief, and that these orders should be

stricken from the record and vacated for the reasons pled in Appellant brief.

      Additionally, because Appellees have not even tried to file a brief in

the above matter, the Appellant requests as sanctions the time that it took to

draft his brief, including the time for research and other costs.

      Appellant asks that the Court deny the Appellees motion to strike, and

Sanction Appellees Seana Willing and her attorney Scott Graydon for their

filing a frivolous pleading into the Court's record. Appellant brief is

computer-generated, it would take less than 3 minutes to calculate and show

the Court that the Appellees allegations are false and misleading, just as

Appellee Willing and Scot Graydon did before Judge Charles Ramsay.

      Further, in regards to Appellees allegations that they may not have

received documents that the Appellant has filed into the Court's record, this

is the first time that the Appellant has heard of this complaint. Nevertheless,

Appellant sent Appellee Willing copies of all pleadings filed. This complaint

is as frivolous as Appellee Willing's motion to strike.

APPELLANT'S RESPONSE/MOTION FOR SANCTIONS AND JUDGMENT                PAGE 5
      WHEREFORE, APPELLANT, ERIC DRAKE respectfully requests

the Court to vacate the following orders that were signed on August 19,

2014 pursuant to cause number: D-l-GN-14-001215, which would include

all orders the Appellant has directed this Court to in this brief, including: the

August 19, 2014 order declaring Appellant Drake as a vexatious litigant with

prefiling order; the August 19, 2014 orders of referral and recusal that this

Court has been directed to in this brief, and that these orders should be

stricken from the record and vacated for the reasons pled in Appellant's

original brief filed in the Court. Additionally, because Appellees have not

even tried to file a brief in the above matter, the Appellant requests the time

that it took to file his brief including the time for research and other costs.

And part of their sanctions, the Court should not allowed a late filing of a

brief by the Appellees Seana Willing and Scott Graydon.

      Appellant further asks for judgment of the Court in his favor, and that

the Court deny the Appellees motion to strike, and Sanction Appellees Seana

Willing and her attorney Scott Graydon for their filing a frivolous pleading

into the Court's record. To the best of Appellant's understanding and belief,

his brief filed with the Court does comply with the Tex. R. Appellate P., by

his calculations, however, if there is something that the Appellant has

possibly overlooked, he requests that the Court allow him a reasonable time

APPELLANT'S RESPONSE/MOTION FOR SANCTIONS AND JUDGMENT                 PAGE 6
to cure any defects. Appellant further requests the Court to set a hearing on

the Appellant Motion for Sanctions, and during the hearing, Appellant will

demonstrate to the Court that his brief does comply with the word count.

      Appellant finally requests all and any other relief that the court may

grant him that he may show justification.



                                             Respectfully submitted:




                                             Eric Drake
                                             PO Box 25565
                                             Dallas, Texas 75225
                                             214-477-9288




                     CERTIFICATION OF SERVICE


      I HEREBY certify that a true and correct copy of the foregoing

document has been delivered to the defendant's/appellees through their

attorney of record via US Mail on this the 1st day of April 2015.




                                       Eric Drake



APPELLANT'S RESPONSE/MOTION FOR SANCTIONS AND JUDGMENT                 PAGE 7
                   CERTIFICATION OF CONFERENCE


      I ERIC DRAKE, Appellant, on this the, 31st day of March, and on the

1st day of April 2015, certify that I attempted to make contact with Kristina

Kastl, and on April 1, 2015 on two occasions to conference with her

regarding this motion, however, she has failed to respond. Likewise, I

attempted to conference with Scot Graydon on March 31,2015, and on April

1, 2015, but he has refused to conference with Appellant by telephone.

Appellant left several messages on Mr. Graydon's voice mail with no avail.

On April 1, 2015, I also attempted to contact Frank Waite and left several

messages and he never responded. Thus, I file this motion with the Court for

its decision and ruling.




                                      Eric Drake




APPELLANT'S RESPONSE/MOTION FOR SANCTIONS AND JUDGMENT              PAGE 8
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