                                                                                             ACCEPTED
                                                                                        03-14-00665-CV
                                                                                               4795733
                                                                              THIRD COURT OF APPEALS
                                                                                         AUSTIN, TEXAS
                                                                                    4/7/2015 4:14:38 PM
                                                                                      JEFFREY D. KYLE
                                                                                                 CLERK
                           Case No. 03-14-00665-CV
                       ______________________________
                                                             FILED IN
                                                      3rd COURT OF APPEALS
                    IN THE COURT OF APPEALS FOR THE AUSTIN, TEXAS
                         THIRD JUDICIAL DISTRICT      4/7/2015 4:14:38 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



         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).
       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).

                                               2
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.

                                                3
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,

                                          4
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




                                         5
                         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




                                         6
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                                                                                            EXHIBIT C
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                             March 10, 2015 , 3:41 pm    Acceptance                 AUSTIN, TX 78701




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