                                                                                            ACCEPTED
                                                                                        03-14-00665-CV
                                                                                                5917840
                                                                             THIRD COURT OF APPEALS
                                                                                        AUSTIN, TEXAS
                                                                                   7/2/2015 11:55:31 AM
                                                                                      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      7/2/2015 11:55:31 AM
                               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 RESPONSE TO APPELLANT’S MOTION TO STRIKE

TO THE HONORABLE COURT OF APPEALS:

      COMES NOW Seana Willing, Appellee herein, and files this Response to

Appellant’s Motion to Strike, which was filed by Appellant Eric Drake

(“Appellant”) on July 1, 2015, and would respectfully show this Court the following:
                                  I.
                        PROCEDURAL BACKGROUND

      On May 1, 2015, this Court entered a sua sponte 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].

      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].

      On June 16, 2015, Ms. Willing filed her Advisory to the Court (“Advisory”),

informing the Court that Appellant had attempted to evade the maximum word count

of a brief by presenting a portion of his argument under an improper heading, rather

than presenting an actual “Statement of the Case.” [Advisory].

      On July 1, 2015, Appellant filed his Motion to Strike Ms. Willing’s Advisory.
                                       II.
                               UNCONTESTED MATTERS

      Even after the filing of Appellant’s Motion to Strike, the following matters

are uncontested:

   1. Appellant’s briefing includes a section titled “Statement of the Case;”

   2. Despite that title, Appellant’s “Statement of the Case” does not contain any

      information required of a proper Statement of the Case. See TEX. R. APP. P.

      38.1(d). Specifically, Appellant’s briefing under that heading presents only

      his argument of facts, without a single citation to the record. [Amended

      Appellant’s Brief, pages 1-6];

   3. The content provided in Appellant’s “Statement of the Case” is Appellant’s

      arguments, such as arguing 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 [Amended Appellant’s Brief, pages 1-6];

   4. Despite the improper title of the section, 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); and
   5. The brief actually exceeds the maximum length, containing approximately

      15,642 words. This includes the argument Appellant seeks to shield by

      mischaracterizing it as a “Statement of the Case.”

Appellant does not dispute the fact that pages 1-6 are argument, but simply asks this

Court to not examine the content of his pleading and rely solely on the title he

provided to those pages.

                                III.
              RESPONSE TO APPELLANT’S MOTION TO STRIKE

      Appellant’s Motion to Strike is based on a faulty understanding of Ms.

Willing’s Advisory, and should be denied.

      Appellant incorrectly interprets Ms. Willing’s Advisory as a Motion to Strike.

Ms. Willing’s Advisory was not a Motion to Strike, but was instead providing this

Court with information related to its previous sua sponte Order regarding maximum

brief length and providing this Court with information about Ms. Willing’s intent to

rely upon her previously filed Appellee’s Brief. [Advisory].

      The sole basis of Appellant’s Motion to Strike is that TEX. R. APP. P. 9.4(i)

states that a Statement of the Case is not to be counted toward the maximum length

of a brief. Appellant makes the conclusory assertions that Ms. Willing’s Advisory

is “improper, frivolous,” and contains “misleading accusations.” In making those
unsubstantiated claims, Appellant identifies no portion of Ms. Willing’s Advisory

that he claims is factually or legally inaccurate.

      Appellant does not dispute the fact that the words he wrote in pages 1-6 are

not in any way the content of a proper Statement of the Case. Indeed, his awareness

of that exception in TEX. R. APP. P. 9.4(i), coupled with his previous

misrepresentation of the length of his original Appellant’s Brief provides further

proof that Appellant has again knowingly misrepresented the true length of his brief,

and has attempted to evade the requirements of TEX. R. APP. P. 9.4(i)(1).

      Accordingly, Appellant’s Motion to Strike should be denied.

      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.

                                        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 July 2, 2015 to:

      Eric Drake
      PO Box 833688
      Richardson, Texas 75083
      Pro Se Appellant

                                       /s/ Scot M. Graydon
                                       Scot M. Graydon
                                       Assistant Attorney General
