                                                                                            ACCEPTED
                                                                                       03-14-00665-CV
                                                                                              4681580
                                                                             THIRD COURT OF APPEALS
                                                                                        AUSTIN, TEXAS
                                                                                  3/27/2015 5:05:16 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      3/27/2015 5:05:16 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



                   DEFENDANT’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:

      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).
      On or about February 12, 2015, Eric Drake (“Appellant”) asked this Court for

permission to exceed the word count in his original brief. In his motion, Appellant

admits that his brief exceeds the word limit for a brief.

      On or about February 20, 2015, this Court denied Appellant’s motion.

      On March 2, 2014, Appellant filed his 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 14,980 words. [Appellant’s Brief, page 85].

      The exempted portions for purposes of a brief’s length are specified as

follows:

      “In calculating the length of a document, every word and every part of
      the document, including headings, footnotes, and quotations, must be
      counted except the following: 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.”

TEX. R. APP. P. 9.4(i)(1).

      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

14,980 words, and thus just making the word limit, the brief actually contains

approximately 16,675 words, significantly exceeding the limit established by TEX.

R. APP. P. 9.4(i)(2)(B).

      Ms. Willing asks this Court to take judicial notice that the relevant portions of

Appellant’s Brief (pages 6-83) 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 using “Word Counter,” an Add-on Tool for Adobe Acrobat.

      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

Trial Court. Other examples of the bad faith in his litigation include (but are not

limited to):

      1. Threatening spouses of state officials with litigation solely to avoid

          immunity afforded to state officials [See Vol. 4 Reporter’s Record, pages

          11-12];

      2. Filing and asking the trial court to entertain Plaintiff’s Verified Motion to

          Reinstate and For New Trial on the same day as filing his Appellant’s

          Brief, knowing that this Court has jurisdiction over the subject matter;
      3. Attempting to forum shop by asking that this appeal be transferred to the

          Twelfth Court of Appeals;

      4. Attempting to recuse judges on this Court based solely on speculation;

      5. Attempting to recuse judges in Travis County on the day Appellant filed a

          Nonsuit, so that the Trial Court’s plenary jurisdiction would expire before

          the Motion to Declare Eric Drake a Vexatious Litigant could be heard [See

          Clerk’s Record, pages 547-555]; and

      6. Attempting to insert documents into the record that were never filed or

          served on Ms. Willing.

      Appellant’s misrepresentation of the length of his brief should be considered

more egregious when considered in the context of Appellant’s actions in this Court

and in the Trial Court, and when the purpose of Appellant’s appeal is to avoid being

declared (again) a vexatious litigant.

      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,

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

                      CERTIFICATE OF CONFERENCE

       On March 10, 2015, the undersigned attempted to confer in writing with Mr.
Eric Drake, Plaintiff Pro Se, regarding the underlying Motion. (Exhibit B, pages 1-
4). The undersigned has previously indicated to Mr. Drake that communications
should be done in writing to avoid any miscommunication or misinterpretation
regarding what parties did and did not agree to in oral attempts to confer. (Exhibit
B, pages 7-8). Although the letter was sent to Appellant on March 10, 2015, and
arrived at his address on March 11, 2015, Appellant has not picked up this letter as
of the filing of this Motion. (Exhibit B, page 5). It is assumed Appellant is opposed
to this Motion. While other parties were involved at the Trial Court level, none are
involved in the appeal.
                                        /s/ Scot M. Graydon
                                        Scot M. Graydon
                                        Assistant Attorney General
                         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 March 27, 2015
to:
       Eric Drake
       PO Box 833688
       Richardson, Texas 75083
       Pro Se Appellant

                                      /s/ Scot M. Graydon
                                      Scot M. Graydon
                                      Assistant Attorney General
              WORD COUNT BY PAGE
                Page Number            Word Count

                       6                  188
                       7                  180
                       8                  181
                       9                  201
                      10                  226
                      11                  207
                      12                  215
                      13                   29
                      14                  203
                      15                  188
                      16                  245
                      17                  243
                      18                  215
                      19                  226
                      20                  226
                      21                  205
                      22                  208
                      23                  227
                      24                  239
                      25                  245
Words for Pgs 6-25:                      4097

                      26                  258
                      27                  206
                      28                  225
                      29                  218
                      30                  211
                      31                  224
                      32                  217
                      33                   84
                      34                  271
                      35                  228
                      36                  223
                      37                  247
                      38                  230


                           EXHIBIT A
              WORD COUNT BY PAGE
                       39           239
                       40           218
                       41           241
                       42           213
                       43           234
                       44           240
                       45           226
Words for Pgs. 26-45               4453

                       46           239
                       47           229
                       48           192
                       49           232
                       50           238
                       51           194
                       52           223
                       53           250
                       54           215
                       55           228
                       56           230
                       57           245
                       58           245
                       59           239
                       60           226
                       61           236
                       62           207
                       63           125
                       64           228
                       65           236
Words for Pgs. 46-65               4457

                       66           234
                       67           224
                       68           194
                       69           233
                       70           249
                       71           224
                 WORD COUNT BY PAGE
                       72                44
                       73               214
                       74               218
                       75               245
                       76               232
                       77               224
                       78               222
                       79               236
                       80               230
                       81               250
                       82               195
Words for Pgs. 66-82                   3668

        Total Words:        6-25       4097
                            26-45      4453
                            46-65      4457
                            66-82      3668
        Total:                        16,675
EXHIBIT B

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