                                                                                           ACCEPTED
                                                                                       03-14-00665-CV
                                                                                               5697843
                                                                            THIRD COURT OF APPEALS
                                                                                       AUSTIN, TEXAS
                                                                                  6/16/2015 2:54:14 PM
                                                                                     JEFFREY D. KYLE
                                                                                                CLERK
                           Case No. 03-14-00665-CV
                       ______________________________
                                                           RECEIVED IN
                                                      3rd COURT OF APPEALS
                    IN THE COURT OF APPEALS FOR THE AUSTIN, TEXAS
                         THIRD JUDICIAL DISTRICT      6/16/2015 2:54:14 PM
                               AUSTIN, TEXAS            JEFFREY D. KYLE
                       ______________________________         Clerk


                                  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
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
