                                                                                            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



                    RESPONSE IN OPPOSITION TO
                APPELLANT’S MOTION FOR SANCTIONS



TO THE HONORABLE COURT OF APPEALS:

      COMES NOW SEANA WILLING, Appellee herein, and files this Response

in Opposition to Appellant’s Motion for Sanctions, and would respectfully show this

Court the following:
                                      I.
                                INTRODUCTION

      On March 27, 2015, Appellee Seana Willing (“Ms. Wiling”) filed a Motion

to Strike Appellant’s Brief, demonstrating to the Court that despite this Court’s

previous order, Appellant’s brief exceeded the word count and violates TEX. R. APP.

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

      On April 1, 2015, Ms. Willing filed her Appellee’s Brief in this matter.

      On April 1, 2015 Appellant filed a Response to Ms. Willing’s Motion to Strike

and a Motion for Sanctions and Motion for Judgment. Appellant’s filing was

received by this Court on April 6, 2015.

      Appellant’s argument related to the Motion to Strike are addressed in Ms.

Willing’s Reply Brief in Support of her Motion to Strike.

      In this pleading, Ms. Willing demonstrates that Appellant’s Motion for

Sanctions and Motion for Judgment should be denied.

                                   II.
                          MOTION FOR SANCTIONS

      Pursuant to TEX. R. APP. P. 52.11, this Court may impose sanctions on a party

or attorney who is not acting in good faith as indicated by any of the following:

             (a) filing a petition that is clearly groundless;
             (b) bringing the petition solely for delay of an underlying
                 proceeding;
             (c) grossly misstating or omitting an obviously important and
                 material fact in the petition or response; or

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             (d) filing an appendix or record that is clearly misleading because
                 of the omission of obviously important and material evidence
                 or documents.
TEX. R. APP. P. 52.11.

      Appellant’s argument is wholly lacking in meeting any of the legal

requirements for sanctions. On the contrary, it has been demonstrated that Appellant

should be sanctioned, and Ms. Willing has asked that this Court strike Appellant’s

Brief for his actions.

      As a threshold matter, Appellant has not demonstrated to this Court that Ms.

Willing or her counsel are not acting in good faith. Conversely, in her Motion to

Strike, Ms. Willing has demonstrated (and it has not been disputed) that Appellant’s

actions show the bad faith with which he litigates this matter.

      Appellant further argues for sanctions as follows:

A.    Sanctions for the filing of the Motion to Strike

      Appellant argues that the Motion to Strike is frivolous. (Motion for Sanctions,

page 1-2). Ms. Willing assumes that this is to be brought under TEX. R. APP. P.

52.11(a) as “clearly groundless.” As a threshold matter, this section applies to

petitions, and not to motions. TEX. R. APP. P. 52.11(a). Further, Appellant presents

no case law or legal support for this suggestion. Further, he does not present any

fact from which the Court could conclude the Motion to Strike is frivolous. Instead,

Appellant suggests that counting words is difficult (Motion for Sanctions, page 2)

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and can take minutes. Nevertheless, this is an obligation that all parties need to meet.

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

       A determination that a petition is groundless requires this Court to determine

“that there is no legal or factual basis to arguably justify the filing of” that petition.

In re Lincoln, 114 S.W.3d 724, 727–28 (Tex.App.-Austin 2003, orig. proceeding).

In the instant case, Ms. Willing provided this Court with the specific word count for

specific pages in Appellant’s Brief (Motion to Strike, Exhibit A), and identified the

computer program that provided this information: “Word Counter,” an Add-on Tool

for Adobe Acrobat. Ms. Willing’s motion is not “clearly groundless” or frivolous,

as alleged by Appellant.

       The other potential elements authorizing sanctions are not presented and do

not apply to Ms. Willing’s Motion to Strike. There has been no delay of the

proceeding. TEX. R. APP. P. 52.11(b). While Appellant has, in his brief, grossly

misstated or omitted an obviously important and material fact in his brief 1, he has

not demonstrated that Ms. Willing has done so. TEX. R. APP. P. 52.11(c). Ms.




1
    Ms. Willing presents just two instances, to demonstrate by example: First, Appellant has
misrepresented his word-count, as is detailed in the Motion to Strike. Second, Appellant presented
this Court with an incomplete recitation of TEX. R. CIV. P. 18a(f)(2)(A) as if it were the entire rule
while expressly omitting the portion cited in the Order of the Trial Court authorizing judicial
action. Compare Rule 18a as presented on Appellant’s Brief, page 34 with TEX. R. CIV. P.
18a(f)(2)(A) and with CR 547.

                                                  4
Willing has not filed a misleading appendix or record that is omits obviously

important and material evidence or documents. TEX. R. APP. P. 52.11(d).

      Accordingly, Appellant has demonstrated none of the required showings to

seek sanctions based on the filing of the Motion to Strike.

B.    Sanctions for Drafting his Brief

      Appellant also seeks sanctions based on Ms. Willing’s failure to file her

Appellee Brief by April 1, 2015, the deadline. (Motion for Sanctions, pages 3 and

5-7). In making this argument, Appellant demonstrates his bad faith, as Ms. Willing

filed her brief on that date. Rather than see if Ms. Willing filed a brief, Appellant

decided that it was a better idea to seek sanctions rather than wait to see if there was

a basis to seek sanctions. If he had waited another day to file his Motion for

Sanctions, Appellant would have known that Ms. Willing’s brief was timely filed.

      Thus, with respect to sanctions for the failure of Ms. Willing to file her brief

by April 1, 2015, “there is no legal or factual basis to arguably justify the filing of”

Appellant’s Motion for Sanctions. In re Lincoln, 114 S.W.3d at 727–28.

      Appellant’s Motion for Sanctions should be denied.




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                                    III.
                           MOTION FOR JUDGMENT

      Appellant asks this Court to enter a judgment on his behalf in all aspects of

his appeal, solely based on Ms. Willing’s failure to file her Appellee Brief by April

1, 2015, the deadline. (Motion for Sanctions, pages 3 and 5-7).

      As noted supra, and is clear from this Court’s record, Ms. Willing was timely

in the filing of her brief. Thus, “there is no legal or factual basis to arguably justify

the filing of” Appellant’s Motion for Judgment. In re Lincoln, 114 S.W.3d at 727–

28. Accordingly, Appellant’s Motion for Judgment should be denied.

                                       IV.
                                   CONCLUSION

      In light of his knowing misrepresentation and bad faith dealings in this

litigation, 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



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                                      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 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




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