                                                                                             ACCEPTED
                                                                                        03-14-00665-CV
                                                                                               4682145
                                                                              THIRD COURT OF APPEALS
                                                                                         AUSTIN, TEXAS
                                                                                   3/27/2015 5:44:21 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      3/27/2015 5:44:21 PM
                              AUISTIN, 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 ADVISORY TO THE COURT

TO THE HONORABLE COURT OF APPEALS:

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

to the Court thereof would respectfully show this Court the following:

      On March 12, 2015, Appellant asked this Court to supplement the Clerk’s

Record to contain documents that are not in the Clerk’s Record filed with this Court.

      On March 17, 2015, this Court ordered a Supplemental Clerk’s record to be

filed, if the documents in Appellant’s Motion for Supplemental Clerk’s Record exist
in the Trial Court’s file, or that the Trial Court should notify this Court if the

documents do not exist in this file.

      Independently, counsel for Ms. Willling has reviewed the files provided to her

by Plaintiff during this litigation and makes the following observations:

   1) The documents purportedly filed in the trial court contain Certificates of

      Service indicating that they were served on all defendants (presumably

      including Ms. Willing);

   2) None of the documents attached to Appellant’s Motion to Supplement Clerk’s

      Record were ever received by Ms. Willing, despite the purported Certificates

      of Service;

   3) The documents attached to Appellant’s Motion to Supplement Clerk’s Record

      have internal inconsistencies casting doubt on their authenticity, including,

      but not limited to the following:

          a. Plaintiff’s initial for Documents to be Included in the Clerk’s Record
             was apparently mailed to the clerk on October 23, 2014 and received
             on October 27, 2014, and included no reference to any Amended Notice
             of Appeal. (Exhibit A).

          b. In Plaintiff’s Request for Documents to be Included in the Clerk’s
             Record (Appellant’s Exhibit 2), Appellant complains that on October
             27, 2014, he placed an Amended Notice of Appeal in the hand of a court
             clerk, but that it did not appear in the Clerk’s Record.
          c. Appellant purports to have filed an Amended Notice on October 27,
             2014, the day he complains about it not being previously included in
             the record. (Compare Certificates of Service on Appellant’s Exhibit 1
             and 2).

          d. It is suspicious that Appellant complains about the Amended Notice not
             being included, particularly because he did not file an Amended Notice
             until (purportedly) the exact same day he complains about it not being
             in the Clerk’s Record that he requested.

          e. Appellant certifies that he hand delivered the purported Plaintiff’s
             Amended Notice of Appeal to Appellee’s attorney on October 27, 2014.
             On that same day, he certifies that he mailed Plaintiff’s Request for
             Documents to be Included in the Clerk’s Record to Appellee’s attorney.
             (Compare Certificates of Service on Appellant’s Exhibit 1 and 2). In
             reality, neither occurred, and Appellee had never seen the documents
             in question until Appellant asked this Court to supplement the Clerk’s
             record on March 12, 2015.
      Because the documents do not appeal in Appellee’s files, and do not seem to

appear in the files of the Trial Court, they should not be included for the first time

after Appellant has filed his brief.

      Moreover, it is clear that Appellant’s request is an attempt to suggest to this

Court that many of the arguments in his Appellant’s Brief were at least referenced

in an Amended Notice of Appeal at the Trial Court level, when they were not.

Appellant did not raise several of his appellate issues with the Trial Court, before,

during, or after the hearing, in his argument before the Trial Court or in his multiple

Responses to the Motion to Declare Eric Drake a Vexatious Litigant. Accordingly,

he may not present those issues for review at this stage of litigation. See TEX. R. APP.

P. 33.1(a); see also Drum v. Calhoun, 299 S.W.3d 360, 370 (Tex. App.-Dallas 2009,
pet. denied) (holding that arguments by a vexatious litigant not raised in the trial

court are not preserved for appellate review.).

      This is yet another example of Appellant litigating cases in bad faith.

      Out of candor to this Court, Appellee feels it should make this Court aware

that on the exact date Appellant filed his Appellant’s Brief with this Court, he sought

to invoke the jurisdiction of the Trial Court by filing Plaintiff’s Verified Motion to

Reinstate and For New Trial, in which Appellant makes the exact same arguments

he makes in his appeal. (Exhibit B). It is clear that Appellant hopes that some court

will agree with his arguments, and he is trying to bite as many apples as possible,

even though he knows that at this stage, jurisdiction lies with this Court, and not the

Trial Court. Nevertheless, Appellant has requested that the Trial Court set his

motion for a hearing while his appeal is ongoing. (Exhibit B, page 62: “Plaintiff

respectfully requests a hearing on his motion to reinstate and for new trial.”).

      In light of Appellant’s pattern of litigating cases in bad faith, which are

illustrated not only in the Trial Court, but now in this Court, the Clerk’s Record

should not be supplemented with documents never filed in court, and the Order

Declaring Eric Drake a Vexatious Litigant should be affirmed, for reasons briefed

in the forthcoming 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 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
Exhibit A
