Eric Drake v. Seana Willing

SEE AMEND BRF

FILED ON 5/13/15 March 2, 2015

No:03-14-00665-CV

IN THE COURT OF APPEALS FOR

THE THIRD JUDICIAL DISTRICT OF TEXAS

AT AUSTIN, TEXAS

ERIC DRAKE

Plaintiff—Appellant

v.

KASTL LAW FIRM P.C. ET AL \xRECEIVED

MAR 0 2 2015

Defendant-Appellee

THIRCI COURT QFAPPEMS

• JEFFREY niffl^

ON APPEAL FROM THE 200th DISTRICT COURT

TRAVIS COUNTY, AUSTIN, TEXAS

Trial Court No. D-l-GN-14-001215

BREIF OF APPELLANT ERIC DRAKE

Eric Drake

Pro-Se

Appellant

PO Box 833688

Richardson, Texas 75083

214-477-9288

ORAL ARGUMENT REQUESTED

•

IDENTITY OF PARTIES AND COUNSEL

Plaintiff/Appellant/Petitioner

Eric Drake

Pro-Se

P.O. Box 833688

Richardson, Texas 75083

(214) 477-9288

Defendants/Appellee/Respondents

Seanna Willing

Scot Graydon

300West 15th Street, Ste 2

Austin, Texas 78701

512-475-4413

David Harris

Carl Ginsberg

300West 15™ Street, Ste 2

Austin, Texas 78701

Telephone: 512-475-4413

Kristina Kastl

Kastl Law P.C.

4144 N. Central Expressway

Ste 300, Dallas, Texas 75204

Telephone: 214-821-0230

Frank Waite

Vikki Ogden

411 Elm Street, Ste 500

Dallas, Texas 75202

Telephone: 214-653-7568

STATEMENT REGARDING ORAL ARGUMENT

Appellant has requested oral argument pursuant to the appeal filed

herein. The Court should grant oral argument for the following reasons:

a). Oral argument would give the Court a more complete

understanding of the facts presented in this appeal. See Tex. R. App. P.

39.1(c). This case is comprised ofseveral issues: 1. Issues concerning if an

order is obtained by fraud or perjury should it not be vacated. 2. Abuse of

discretion by the trial court and failure of the trial court to follow TRCP

recusal procedure 18a and 18b. 3. If there is a pending recusal motion filed

by a party to a cause ofaction, whether or not a visiting judge can hear the

case and sign orders before the recusal is properly adjudicated and disposed

ofby the proper judge. 4. Whether Appellee Seanna Willing proved that the

Appellant Eric Drake had no reasonable probability of success against her

and ifMs. Willing immunity prevented the Appellant from suing her.

b). Oral argument would also allow the Court to better analyze the

legal issues presented inthis appeal. Oral argument would allow the Court to

hear from bothsides of these issues and articulation of the statutes.

c). This appeal would benefit from oral argument and significantly

aid the Court in deciding this case. See Tex. R. App. P. 38.1(e), 39.1(d).

ii

TABLE OF CONTENTS

Page

IDENTITY OF PARTIES AND COUNSEL i

STATEMENT REGARDING ORAL ARGUMENT ii

TABLE OF CONTENTS Hi

ISSUES PRESENTED iii

INDEX OF AUTHORITIES ix

STATEMENT OF FACTS 6

ISSUES PRESENTED FOR REVIEW

ISSUE ONE

Whether or not the August 19, 2014 order signed by Judge Charles Ramsay

is valid, and whether or not Judge Ramsay should had recused himself from

hearing the August 19, 2014 hearing to declare the Appellant a vexatious

litigant.

ISSUE TWO

Whether or not Seanna Willing failed to prove that the Appellant could not

prevail against her pursuant to the evidence that she submitted to the trial

court on August 19, 2014. Trial Court abused its discretion by finding that

Appellant had no reasonable probability ofprevailing.

• • •

in

ISSUE THREE

Whether or not Warren Vavra had the proper legal authority to appoint

Judge Charles Ramsay to rule on Seanna Willing August 19,2014 hearing.

ISSUE FOUR

Whether or not Judge David Phillips and Judge Stephen Yelenosky orders of

recusals and referrals should be vacated.

ISSUE FIVE

Whether or not the trial court complied with Chapter 11 of the Tex. Civ. Prac.

& Rem Code, Rule 18a and 18b of the Tex. R. Civ. Prac, Rule 18a and 18b

of the Texas R. Civ. Procedure and other state laws and statutes.

ISSUE SIX

Whether or not the trial court abused its discretion when the court continued

to hear Appellees Seanna Willing Motion to Declare the Appellant as a

Vexatious Litigate in light of the fact that Judge Ramsay did not have the

authority or jurisdiction to preside over Appellees Willing motion to declare

him a vexatious litigant.

ISSUE SEVEN

Whether or not the trial court abused its discretion in signing the August 19,

2014 order declaring the Appellant as a vexatious litigant was obtained by and

through fraud, deception and perjury by Scot Graydon an assistant attorney

general.

vi

ISSUE EIGHT

Whether or not the trial court abused its discretion and erred when the court

continued to hear Appellees Seanna Willing Motion to Declare the

Appellant as a Vexatious Litigate even after Appellant objected to Judge

Ramsay of due process violations and violations under Chapter 11 of the

Texas Civil Prac. & Remedies Code.

ISSUE NINE

Whether or not the trial court abused its discretion in signing the August 19,

2014 order declaring Appellant vexatious because there was a pending

motion for recusal filed by the Appellant motion to recuse had not been

referred to the administrative law judge and ruled on as required by the Tex.

Rules of Procedure.

ISSUE TEN

Whether or not the trial court abused its discretion in signing the August 19,

2014 order declaring Appellant vexatious because Appellee Willing's

motion to declare Drakeas a vexatious litigant was procedurally defective.

ISSUE ELEVEN

Whether or not the trial court erred and abused its discretion in not ruling on

AppelleeWilling's pleato jurisdiction, or dismissing Willing as a defendant,

and allowing Willing to file affirmative action when claiming immunity.

Issue One:

The order signed by Judge Charles Ramsay is not valid. Appellant objected

to Judge Ramasy appointment on the day of the hearing, thus he should

have recused himself from hearing the August 19,2014 hearing 16

Issue Two:

Appellee Seanna Willing failed to prove by and through evidence submitted

to the trial court that was entered into evidence that the Appellant could not

prevail against her at the August 19,2014 hearing 19

Issue Three:

Warren Vavra did not have the legal authority to appoint Judge Charles

Ramsay to hear the August 19,2014 hearing 28

Issue Four:

Judges David Phillips and Stephen Yelenosky orders of recusal and referral

should be vacated 30

Issue Five:

The trial court failed to comply with Chapter 11 of the Tex. Civ. Prac. &

Rem Code, Rule 18a and 18b of the Texas Rule of Civil Procedure, and

other state laws and statutes 34

vi

Issue Six:

Trial court abused its discretion when the court continued to hear

Appellees Seanna Willing Motion to Declare the Appellant as a

Vexatious Litigate in light of the fact that Judge Ramsay did not have

the authority or jurisdiction to preside over Appellees Willing motion

to declare him a vexatious litigant 52

Issue Seven:

The August 19, 2014 order declaring the Appellant as a vexatious litigant

was obtained by and through fraud, deception and perjury by Scot Graydon

an assistant attorney general 54

Issue Eight:

Trial court abused its discretion when the court continued to hear

Appellees Seanna Willing Motion to Declare the Appellant as a

Vexatious Litigate even after Appellant objected to Judge Ramsay of

due process violations and violations under Chapter 11 of the Texas

Civil Prac. & Remedies Code 61

Issue Nine:

Trial court abused its discretion in signing the August 19, 2014 order

declaring Appellant vexatious because the trial court district judges

had not responded or acted on Appellees jurisdictional issues or

Appellant's special exceptions prior to assigning Appellee Willing

motion to declare Drake a vexatious litigant and prior to actually

signing ofthe motion 64

vii

Issue Ten:

Trial court abused its discretion in signing the August 19, 2014 order

declaring Appellant vexatious because Appellee Willing's motion to

declare Drake as a vexatious litigant was procedurally defective .. 68

Issue Eleven:

The trial court erred and abused its discretion in failing to rule on

Appellee Willing's plea to jurisdiction, before allowing Willing to file

affirmative action when claiming immunity. If the trial court accepted

Willing's immumty, it should have dismissed Willing as a defendant.

But Appellee Seanna Willing's alleged immunity did not apply... 73

STATEMENT OF THE CASE 1

STATEMENT OF FACTS 6

ARGUMENT 14

CONCLUSION 82

CERTIFICATE OF SERVICE 84

CERTIFICATE OF COMPLIANCE 85

APPENDIX 86

viii

INDEX OF AUTHORITIES

Cases Page

Mitchell Energy Corp. v. Ashworth

943 S.W.2d 436,438 (Tex. 1997) 16, 17,18

In re Union Pacific Resources Co..

m

969 S.W.2d 427,428 (Tex. 1998) 17,46

Federal Sign v. Texas S. Univ..

951 S.W.2d401,405 (Tex. 1997) 75

In re Perritt.

992 S.W.2d 444; 1999 Tex. Lexis 42 Tex. Sup. J. 574 18

IT-Dav.

74 S.W.3d at 855 75

Tex. Educ. Agency v. Leeper.

893 S.W.2d 432, 37Tex. Sup. Ct. J. 968 (Tex. 1994) 75

Printing Indus..

600 S.W.2d at 265-66 75

Texas Workers' Compensation Comm'n v. Garcia,

862 S.W.2d 61, 72 (Tex. App.-San Antonio 1993) 75

IX

INDEX OF AUTHORITIES

Cases Page

Browning v. Prostok

165 S.W.3d 336,346 (Tex. 2005) 52

Austin Indep. Sch. Dist. v. Sierra Club,

5 S.W.2d 878, 881 (Tex. 1973) 52

Easterline v. Bean,

121 Tex. 327,49 S.W.2d427,429 (1932) 53

Mapco. Inc. v. Forrest

795 S.W.2d 700, 703 (Tex. 1990) 53

Jeter v. McGraw.

218 S.W.3d 850, 853 (Tex. App.-Beaumont 2007, pet. denied) 53

Tex. Ass'n of Bus, v. Tex. Air Control Bd..

852 S.W.2d440,445 (Tex. 1993) 53

INDEX OF AUTHORITIES

Cases Page

Fed. Underwriters Exch. v. Pugh.

141 Tex. 539,174 S.W.2d 598, 600 (1943) 53

In the Guardianship of Erickson.

208 S.W.3d 737, 740 (Tex. App.-Texarkana 2006, orig. proceeding)

53

In the Estate of Bean,

120 S.W.3d 914,919 (Tex. App.-Texarkana 2003) 53

Devoil v. State of Texas.

155 S.W.3d 498; 2004 Tex.App. Lexis 10473 19, 61

Drake v. Andrews.

14,20,23,26, 51

XI

INDEX OF AUTHORITIES

Cases Page

In re Complaint on Judicial Misconduct.

U.S. Court of Appeal for the 9th Cir., 647 F.3d 1181; 2011 U.S. Lexis

10438 22

In re Norman.

S.W.3d 858, 860 (Tex. App.- Houston [14th Dist.] 2006, orig.

proceeding) 35

Norman.

191 S.W.3d at 861 38,41

Brousseau v. Ranzau.

911 S.W.2d at 892 38

Greenberg. Benson. Fisk & Fielder v. Howell.

685 S.W.2d 694, 695 (Tex. App.~ Dallasl984) 47

xn

INDEX OF AUTHORITIES

Cases Page

Texas State Employees Umon/CWA Local 6184 v. Texas Workforce.

No. 3-99-171-CV, slip op. at 5 75

Lamberti v. Tschoepe.

776 S.W.2d 651, 652 (Tex. App.-Dallas 1989, orig. proceeding) . 48

McLeod v. Harris.

S.W.2d at 773 28,40,52

In re Kiefer.

No. 05-10-00452-CV, 2010 Tex. App. LEXIS 4268, 2010 WL

2220588 41,47

In re Healthmark Partners. L.L.C..

14-04-00743-CV, 2004 Tex. App. LEXIS 7636, 2004 WL 1899953,

(Tex. App.—Houston [14th Dist.] Aug. 26,2004, orig 41

Univ. of Tex. Med. Sch. at Houston v. Than.

901 S.W.2d 926,929, 38 Tex. Sup. Ct. J. 910 (Tex. 1995) 75

xui

INDEX OF AUTHORITIES

Cases Page

In re Rio Grande Valley Gas Co..

987 S.W.2d 167, 179-80 (Tex. App.—Corpus Christi 1999, orig.

proceeding) 41,50

Arnold v. State.

853 S.W.2d 543, 544 (Tex. Crim. App. 1993 41

Ex parte Sinegar.

324 S.W.3d 578,2010 WL 4320399, (Tex. Crim. App. 2010 41

In re Prudential.

148 S.W.3d at 135 42

Bruno v. State.

916 S.W.2d 4, 7 (Tex. App.—Houston [14th Dist] 1995, no pet). 43

Goss v. Lopez.

419 U.S. 565, 574,95 S. Ct. 729, 736,42 L. Ed. 2d 725 (1975)) . 75

State v. Benavides.

772 S.W.2d 271,273 (Tex. App.—Corpus Christi 1989) 75

1VX

INDEX OF AUTHORITIES

Cases Page

In re Richard Castillo.

1998 Tex. App. El Paso, Lexis 2473 43

Douglas v. American Title Co..

(App. [1st Dist]), 2006,196 S.W.3d 876 14,26

Mullins v. Ortiz.

(App. [lOthDist], 2009, WL 2264347 14

Martin v. Svkes.

25 Tex. Supp., 198 55

McMurray v. McMurrav.

67 Tex. 665; 4 S.W.357; 1887 Tex. Lexis 943 56

Heath et al v. Lavne et al.

Supreme Court, 62 Tex. 686; 1884 Tex. Lexis 312 56

vx

INDEX OF AUTHORITIES

Cases Page

Lee v. Killian.

761 S.W.2d 139; 1988 Tex. App. [2nd] Lexis 3173 56

Green v. Chandler.

25 Tex. 148 57

History Co. v. Flint 4 WiUson.

App. §224,4 Tex. Civ. Cas. 364,15 S.W. 912 57

Drinkard v. Ingram.

2 Tex. 650, 73 Am. Dec. 250 57

Johnston v. Loop.

2 Tex. 331 57

Bankers v. Calhoun.

(Tex. Civ. App.) 209 S.W. 826 57

xvi

INDEX OF AUTHORITIES

Cases Page

Walling v. Metcalfe.

863 S.W.2d 56, 57,37 Tex. Sup. Ct. J. 18 (Tex. 1993) 56

Stanfield v. O'Bovle.

462 S.W.2d 270,272 (Tex. 1971) 58

Stone v. Williams.

358 S.W.2d 151 (Tex. Civ. App.—Houston 1962) 58

Stephens v. Turtle Creek Apartments. Ltd..

875 S.W.2d 25, 26 (Tex. App—Houston [14th Dist.] 1994, no writ).

69

Texas Dep't of Parks & Wildlife v. Miranda.

331 S.W. 3d 217,226 (Tex. 2004) 65

University of Tex. V. Poindexter.

306 S.W.3d 798, 806-07 (Tex. App.—Austin 2009, no pet.).... 65

xvn

Cases Page

Cameron v. Children's Hosp. Med.. Ctr..

131 F.3d 1167,1170(6thCir. 1997)) 65

Martin v. National Instruments Corp..

Court of Appeals, [3rd Dist.] 2013 Tex. App. Lexis 7021 65

Venable v. Sherbet.

Court of Appeals, [5th Dist.] 365 S.W.3d 359; 2010 Tex. App. Lexis

9083 66

City of Austin v. Savetownlake.Org.»x

Court of Appeals of Texas, [3rd Dist.] Austin 2008 Tex. App. Lexis

6471 66

Amir-Sharif v. Quick Trip Corp..

(App. [5th Dist]) 2013,416 S.W.3d 914 25, 26, 51, 62

In re Guilbot

2009 (Tex. App.—Houston [14th Dist.] no pet) 32,43

Wanzer v. Garcia.

2009, (Tex. App. [4th Dist] 299 S.W.3d 821 14

XVIU

City of Friendswood v. Registered Nurse Care Home.

965 S.W.2d 705, 707 (Tex. App.-Houston [1st Dist] 1998)... 75

Brown v. Ke Ping Xie.

260 S.W.3d 118, 122 (Tex. App.-Houston [1st Dist] 2008, pet.

denied) 75

STATUTES

Tex. R. Civ. P., 18a and 18b xix, xxii, 3, 15,29, 30, 34, 35, 37, 38,

39,40,43,44,45,47,48,49

Article V, Section 11 ofthe Texas Constitution 22

Tex. Gov't Code Ann. § 74.053(b) (1998) 17,18, 28,29,40, 51

Chapter 11 ofthe Tex. Civ. Prac. & Rem. Code .. xix, xxii, 11, 16, 18,20

23,24,27,28,29, 30, 31, 32, 33, 34, 35,36,37, 38, 39, 58

Tex. Gov't Code Ann. § 25.00255(f) 37

The Uniform Declaratory Judgment Act (UDJA) 76

U.S. CONST, amend. XIV 76

TEX. CONST. Art. I, § 19 75

42 U.S.C. 1983 73

ixx

TO THE HONORABLE COURT OF APPEALS:

Now comes, Eric Drake (Drake), Appellant, and files this his

Appellant's Brief and would show:

There is only one volume of Clerk's Record in this appeal. Appellant

shall cite to the Clerk's Record as (CR) followed by the number of the

page(s) assigned by the Clerk. In addition, Appellant shall cite to the

Recorders Record as (RR) followed by the number of the page(s) assigned

by the Clerk.

xx

APPELLANT'S BRIEF

To the Honorable Justices of the Third Court of Appeals:

Appellant, Eric Drake ("Drake"), submits his Appellant's Brief.

STATEMENT OF THE CASE

TO THE HONORABLE JUSTICES OF SAID COURT:

Appellant filed suit against Kastl Law Firm, Carl Ginsberg, Seanna

Willings, and Vikki Ogden alleging the following: Against Kastl Law Firm:

conspiracy, malpractice, common law fraud, fraud by nondisclosure,

negligent misrepresentation, breach of contract, breach of standard of care,

violations of the DTPA, and Unjust Enrichment. Appellant alleged against

Vikki Ogden the following: Breach of Standard of Care, Conspiracy,

Negligent Misrepresentation, and Fraud by Nondisclosure and Common-

Law fraud. Appellant requested injunctive and declaratory relief form Carl

Ginsberg, Court Reporters Certification Board, and Seanna Willings.

The trial court judges conspired together to deny Appellant Motion to

Compel. Appellant filed a motion to recuse all of the judges because he

believed that there was no possibility in obtaining a fair hearing by any of

1

the trial court district judges. Drake filed a motion for nonsuit to escape the

emblematically thugs in black robes who have used their judicial powers to

rule in favor for white attorneys or Austin's AG in Drake suit. Appellee

Willing filed a motion to declare Appellant a vexatious litigant. Appellant

arrived at the Travis County court believing that his case was nonsuited to

obtain a copy of the document only to discover that Seanna Willing

demanded a hearing on their motion to declare Drake as a vexatious litigant.

Warren Vavra appointed a visiting judge (Judge Strauss) whom the

Appellant objected to and then appointed another visiting judge (Charles

Ramsay) whom the Appellant likewise objected to but Judge Ramsay

refused to recuse himself and heard Seanna Willings motion.

On August 19, 2014, even though Appellant Drake objected to

Ramsay's he continued to preside over Seanna Willing's wrongful actions to

declare Appellant Drake as a vexatious litigate. Judge Charles Ramsay does

not qualify as a retired judge but as a former judge. His appointment was in

error because none of the judges that the Appellant recused had acted on

their recusals or referrals by the time Ramsay was appointed and ruled.

Appellant filed a motion to recuse all of the district judges in Travis

County because ofunfairness that he received when three judges conspired

together to have an order signed by one of the defendants dismissing his

motion to compel hearing on August 7, 2014. None of the judges responded

to Appellant's motion to recuse, they did not recuse or refer.

On August 19, 2014 a district judge signed a referral, pursuant to

Drake's Motion to Recuse, but it came too late after Judge Ramsay had been

wrongfully appointed to hear Appellees motion to declare Appellant as a

vexatious litigate and had ruled on the motion. Defendant's motions to quash

depositions and subpoenas to testify at the hearing were not ruled on.

Appellant has a right to have witnesses at Willing's hearing to declare him

vexatious. Ramsay violated Drake's due process rights, and he did so

knowingly because Drake informed Ramsay ofthese violations.

Trial court district judges and Ramsay violated Tex. R. Civ. P. 18a

and 18b, and Chapter 11 of the Texas Civ. Prac. Rem. & Code. Judge

Ramsay granted Appellee Motion to Declare Appellant as a vexatious

litigate in light of all of the aforementioned violations, and Signed and Enter

the Order without having a hearing on Drake's motion to recuse, or

defendant's motions to transfer or having a ruling on the motions to transfer,

or defendant's motion to quash or without having a hearing on defendant's

motion to transfer, without having authority to hear Appellees motion

because he was not properly appointed or assigned, did not have the right to

refuse Drake's objection of his presiding and hearing Appellees Motion to

Declare Appellant as a vexatious litigant.

On August 19, 2014, after an evidentiary hearing during which

Appellant was prohibited from securing the witnesses he had subpoenaed,

and in light of the fact that Appellee Seanna Willing did not submit to the

trial court sufficient evidence which would have proved that there was not a

reasonable probability that Appellant would not have been successful against

herself and each defendant in Drake's suit, being that Appellant was asking

for an injunction and declaratory judgment against Appellee Willing and

Ginsberg, and Appellee Seanna Willing failed to prove that the Appellant

would not be successful against her. Scot Graydon only offered hearsay

evidence to the trial court. Judge Ramsay wrongfully granted Appellees

Seanna Willing Motion to Declared Appellant as a Vexatious Litigate.

On September 15, 2014, Appellant filed a Mandamus with this Court,

but the Court denied Drake's mandamus wrongfully. Appellant then filed a

motion for rehearing and a motion to recuse two of the justices on

September 26.2014. This Court also overruled those motions wrongfully.

Appellant filed a Mandamus with the Texas Supreme Court, however, the

4

Supreme Court of Texas would not accept Appellant's mandamus for the

reason that he had not obtained permission with the local administrative

judge. Appellant attempted to obtain permission but Judge Lora Livingston,

who is the Travis County Local Administrative Judge refused to respond to

the Appellant's requests. Judges Charles Ramsay and Lora Livingston and

other trial court judges in Travis County will become defendants in an

upcoming federal lawsuit. Moreover, no administrative judge ruled on the

"late" referrals or recusals filed by one district judge and one county judge.

This case has been a clear violation of the Appellant's rights and of Texas

law, due process, the Texas Constitution, and federal laws.

n.

Statement of Facts

A. Pre-Trial History of this litigation.

Brief History of Events Prior to Filing Suit in Travis County:

A. On December 20, 2013, Appellant filed suit against Kastl Law PC,

Kristina Kastl, (the owner of Kastl Law) and Vikki Ogden. Appellant

alleged a malpractice claim against Kastl Law and Kristina Kastl and

that Vikki Ogden, court reporter for the County Court of Law Number

5, conspired with Kastl to change a transcript where Kastl perjured

herself under oath several times, thus putting her law license at risk.

Appellant filed discovery seeking to depose Kristina Kastl, and she

filed a motion to quash. Appellant filed a motion to compel January

21, 2014. Judge Ginsberg canceled Appellant's motion to compel

without cause on January 3, 2014. However, after the judge dismissed

the case an order appeared in the file stating, "the motion was filed by

submission," but it wasn't because Appellant had secured a court date

for the hearing. Thereafter, the judge somehow finds an old order and

declares Appellant as a vexatious litigate without a hearing,

demanding that Appellant obtain permission. Judge Carl Ginsberg

finally dismisses Appellant lawsuit on March 26, 2014 and deemed

Appellant as a vexatious litigate and delivered an order to the clerks at

the Dallas County courts. However, judge Ginsberg's order came too

late and is considered moot because Appellant took immediate action

to preserve his suit against Kastl and Ogden by filing a motion for

nonsuit.

Filing Suit in Travis County;

B. On April 28, 2014, Appellant filed suit in Travis County against

several defendants, some of which he filed against in Dallas County

and they are: Judge Carl Ginsberg, Kristina Kastl, Kastl Law firm,

Vikki Ogden, Court Reporters, and Seanna Willing. Again, Appellant

moved forward with discovery and the defendants (each and every

one of the defendants) filed motions to quash, motion to transfer, and

notices to the trial court that Appellant was an alleged vexatious

litigate.

C. On June 17,2014, Defendant Carl Ginsberg files a motion to transfer

and a motion to declare Appellant as a vexatious litigate.

D. On July 3, 2014, Defendant Vikki Ogden filed a motion to transfer

and notice ofvexatious litigate order.

E. On July 11, 2014, Defendant Kastl Law PC filed a motion to transfer

and notice of vexatious litigate order.

F. On July 15, 2014, Defendant Carl Ginsberg filed a motion to quash

deposition and protection.

G. On July 16,2014, Defendant Kastl filed a motion to quash deposition

and protection.

H. On July 16,2014, Appellant filed a motion to continue to obtain limit

discovery to properly respond to defendant's motions to transfer.

I. On July 16,2014, Appellant filed a motion for evidentiary hearing.

J. On July 17, 2014, Defendant Vikki Ogden filed a motion to quash

deposition.

K. On July 24, 2014, Appellant filed a motion to compel to try and

obtain limited discovery in the Travis County lawsuit. Appellant set a

hearing on matter and on August 7, 2014, Appellant appeared in

Travis County for the hearing. Assistant attorney general Scot

Graydon quarterbacked getting an order signed to deny the

Appellant's motion to compel that Kastl had presented to the trial

court. Assistant attorney general Scot Graydon instructed Kastl's

employee to get the order signed by judge Orlinda Naranjo while

8

Appellant was waiting in judge Amy Meachum's court for his motion

to compel to be heard. Thereafter judge Tim Sulak advised Appellant

that he couldn't hear his motion to compel because of an order that

was just signed.

L. On August 7, 2014, Appellant filed a motion to recuse all of the

district judges as a result of judges Meachum, Sulak and Naranjo's

behavior, Appellant understood that it would be impossible to obtain

an impartial hearing or trial when judges conspire together to defeat a

motion. This action by the district judges was similar to judge

Ginsberg actions in Dallas County, dismissing his motion to compel

without a hearing.

M.On August 19, 2014, Appellant was at the court to get a copy of an

order of his motion for nonsuit. To Appellant's surprise, Appellee

Willing motion to declare him as a vexatious litigate was still going to

be heard because Scot Graydon demanded it, though the judges

opinion that the lawsuit was dismissed. Appellant objected to the

assignment of judges, and objected to the proceeding but the trial

court moved forward with the hearing. During the hearing, Scot

Graydon lied to the trial court claiming that he had conference with

Appellant regarding his motion to declare him as a vexatious litigant.

But Scot Graydon did not confer with Appellant and violated local

rules. Ramsay continued to hear the motion in light of the fact that

proper procedure had not been observed. After Appellant filed his

motion to recuse, even if the recusal is defective, it must be referred or

the judge must recuse. The judge cannot do nothing. Yet this is what

all of he judges did in Travis County—nothing. On August 19, 2014,

a district judge filed into the trial court's record a referral and a

County judge a recusal, but these orders came too late and was

defective. Judges filing a recusal and referral after the Ramsay had

been assigned will not cure the blatant disregard for proper procedure

and ethics by the judges in Travis County. Moreover, the defendant's

motions to transfer had not been ruled on or decided at the time the

Ramsay ruled on Appellee Willing motion to declare Appellant as a

vexatious litigant. The defendant's motions to quash had not been

ruled on or decided at the time the Ramsay ruled on Appellee Willing

motion. The defendant's motions in objection to jurisdiction or plea to

jurisdiction had not been ruled on or decided at the time the Ramsay

ruled on Appellee Willing motion to declare Appellant as a vexatious

10

litigant. Ramsay could not had been properly assigned because the

court administrator, Warren Vavra has no authority to assign judges,

but that authority comes from the administrative law judge. Warren

Vavra is not a judge. Furthermore, the judges the Appellant recused

had to act within three (3) days as the Tex. R. Civ. P. Appellant filed

his motion to recuse on August 7, 2014 and there was no entry in the

record of a referral or recusal of any of the judges on by mid-

afternoon on August 19, 2014, until the Appellant argued that the

assignment ofthe Ramsay was improper because the judges had to act

on Appellant's motion to recuse. Appellant obtained a certified copy

of the docket sheet to make sure of the record. Ramsay assignment

was during the period when no judge had acted on Appellant's motion

to recuse, thus Ramsay had no authority or jurisdiction to hear the

Appellee Willing motion to declare the Appellant as a vexatious

litigant. Thus, Ramsay order signed on August 19, 2014 is therefore

void and should be vacated.

B. Post Judgment.

On August 19, 2014, the trial court signed an order in this matter in

favor ofAppellee. Appellant filed his notice of appeal on September 18,

11

2014 but that document disappeared from the trial court's records. Appellant

properly and timely filed his notice for appeal on September 18, 2014,

however, since his September 18,2014 notice of appeal disappeared and his

September 19, 2014 notice of appeal that he sent by U.S. Mail disappeared

Drake was compelled to filed yet another notice of appeal on October 19,

2014. Appellant believes that someone at Travis County is guilty of federal

violations of mail tampering, interstate conspiracy, and other federal

violations.

On September 15, 2014 Appellant filed his Petition for Writ of

Mandamus. The third court of appeals denied the writ in two days. Appellant

filed a Motion for rehearing and Motion to Recuse two of the justices on

September 26, 2014. Those motions were overruled by the third Court of

appeals. On October 15, 2014 the Appellant filed his Petition for Writ of

Mandamus with the Texas Supreme Court, but the court refused to file the

writ because Appellant had not obtained permission from the administrative

law judge, although Drake tried aggressively to obtain permission. The

result will be a lawsuit against many judges in Travis County, 3rd Court

Appeals justices, newly elected governor, federal judges, and all defendants

in the Travis County original suit, Tex. assist attorney generals and others.

12

STATEMENT OF JURISDICTION

This Court has jurisdiction over this matter pursuant to section 22.221

of the Texas Government Code. TEX. GOV'T CODE ANN. § 22.221

(Vernon 2004).

13

HI.

ARGUMENT

A. Standard of Review

Chapter 11—Texas Civil Practice & Remedies Code.

Court of Appeals review trial court's determination of vexatious

litigant as abuse of discretion. Wanzer v. Garcia (App. [4th Dist.]) 2009,299

S.W.3d 821. Douglas v. American Title Co. (App. [1st Dist], 2006, 196

S.W.3d 876. Mullins v. Ortiz, (App. [10th Dist]), 2009, WL 2264347.

Pursuant to Tex. Civ. Prac. & Rem. Code § 11.054, a court may find a

"plaintiff' as a vexatious litigant if the defendant shows in a seven-year

period immediately preceding the date the defendant makes the motion

under Section 11.051, that plaintiff has commenced, prosecuted, or

maintained in propria persona at least five litigations other than in a small

claims court that have been finally determined adversely to the plaintiff.

However, a defendant must first satisfy the requirement in section 11.054 of

Chapter 11 of the Tex. Civ. Prac. & Rem. Code; by showing there is not a

reasonable probability that the plaintiff will prevail in the litigation. In re

Douglas, Court of Appeals of Tx., [First Dist] Houston, 333 S.W.3d 273;

2010 Tex. App. Lexis 7338; Drake v. Andrews.

14

If a party is claiming immunity, as in Appellee Seanna Willing case,

that immunity is not absolute; not even forjudges.

According to the Supreme Court, a former judge, who is not a retired

judge, is a judge who has not vested under the state judicial retirement

system when she left office.

A trial court abuses its discretion if it acts without reference to any

guiding rules or principles, that is, if the act is arbitrary or unreasonable.

Low v. Henry, 221 S.W.3d 609, 614 (Tex. 2007); Cire V. Cummings, 134

S.W.3d 835, 838-39 (Tex. 2004). A trial court also abuses its discretion by

ruling without supporting evidence. Ford Motor Co. v. Garcia, 363 S.W.3d

573, 578 (Tex. 2012).

B. Standard of Review.

Rule 18a and 18b—Texas Rules of Civil Practice

The denial of a motion to recuse is reviewed under an abuse of

discretion standard. See Tex. R. Civ. P. 18a(f). The standards are set by the

Supreme Court of Texas in Dolgencorp Tex. Inc., v. Lerma, 288 S.W. 3d

922,926 (Tex. 2009).

15

D. Issue One:

The order signed by Judge Charles Ramsay is not valid. Appellant

objected to Judge Ramasy appointment on the day of the hearing,

thus he should have recused himself from hearing the August 19,

2014 hearing.

On August 19, 2014 Appellant objected to Judge Strauss who was

appointed to hear Appellee Willing's motion to declare Appellant as a

vexatious litigant (RR: Vol 1, P: 5, L: 2-11). Thereafter, Warren Vavra,

who had no authority to assign judges, assigned yet again another judge,

[Charles Ramsay] to hear Appellee Willing's motion to declare Appellant as

a vexatious litigant. Drake also objected to Judge Ramsay on the record

(RR: Vol 3 of 4, P: 10, L: 14-25; P: 11, L: 1—25; P: 12, L: 1—23).

Appellant objection to Ramsay before he began presiding over

Willing's motion to declare Appellant as a vexatious litigate. Judge Ramsay

chose to continue to preside over the August 19,2014 motion hearing, rather

than recuse himself (RR: Vol 3 of 4, P: 15, L: 2-3). Moreover, Judge

Ramsay is not considered a "retired judge." A "retired" judge is a judge

receiving an annuity under the Texas Judicial Retirement System. See

Mitchell Energy Corp. v. Ashworth, 943 S.W.2d 436, 438 (Tex. 1997). To

receive such an annuity, a judge must meet requirements about either the

length of service or service plus age. Id. Judge Ramsay is considered as a

16

former judge. According to the Supreme Court, a former judge, is a judge

who has not vested under the state judicial retirement system when she left

office. See Mitchell Energy, 943 S.W.2d at 438-39. Any later-acquired status

will not remove the judge from the category of former judges, i.e, those who

may be removed by objection of either party under Section 74.053(d). Id.

Judge Ramsay was disqualified to proceed over Willing's motion to

declare Appellant vexatious for all the reasons asserted in this brief.

Appellant may raise Ramsay's qualifications for the first time on appeal. In

re DC. Jr., 2010 WL 3718564 (Tex.App.—Amarillo 2010, no pet).

Under the Tex. R. Civ. P. a former judge can be objected to as many

times as a party desires. When the Appellant objected to Judge Ramsay and

he failed to recuse himself or remove himself from presiding over the

Appellees motion to declare the Appellant as a vexatious litigant, the order

signed on August 19, 2014 is void and should be vacated. (CR: Vol. 1 of 1,

P: 547—555). Moreover, the trial court erred in that the Appellant received

no prior notice of Judge Ramsay's appointment before the hearing date.

When a proper objection under section 74.053 is filed, but the

objectionable judge refuses to remove himself from the case, the objecting

party is entitled to appellate relief. See In re Union Pacific Resources Co.,

17

969 S.W.2d 427, 428 (Tex. 1998) (citing Mitchell Energy Corp. v.

Ashworth, 943 S.W.2d 436,440-41; Fry v. Tucker, 146 Tex. 18,202 S.W.2d

218,221(1947)).

Judge Ramsay, who qualifies as an "former judge" was objected to

before he began to hear the Appellees Motion to declare Appellant as a

vexatious litigate, as such he should have recuse himself or removed himself

from presiding over the motion on August 19, 2014. In re Perritt, Supreme

Court ofTexas, 992 S.W.2d 444; 1999 Tex. Lexis 42 Tex. Sup. J. 574.

Section 74.053(d) permits unqualified objections to the assignment of

any former judge, such as the Judge Ramsay. See Mitchell Energy Corp. v.

Ashworth, 943 S.W.2d 436 (Tex. 1997). A judge's status is fixed when a

judge leaves office. Mitchell Energy Corp., 943 S.W.2d at 437. Thus, a

former judge, who accumulates additional service time as a visiting judge

and subsequently retires, does not become a retired judge for purposes of

Section 74.053.

As equally as important: the trial court's record contains no order

from a judge, ordering the assignment of Judge Charles Ramsay to hear

Appellee Willing's motion to declare Appellant a vexatious litigant prior to

the August 19,2014 hearing.

18

E. Issue Two:

Appellee Seanna Willing failed to prove by and through evidence

submitted to the trial courtthat was entered into evidence that the

Appellant could not prevail against her at the August 19, 2014

hearing.

Appellant's cause ofaction against Appellees Seanna Willing was not

based on the same or substantially similar facts, transition, or occurrence,

which is required by section 11.054. Devoil v. State of Texas, 155 S.W.3d

498; 2004 Tex.App. Lexis 10473. Appellee Willing did not establish for the

trial court that Appellant could not prevail in his lawsuit against her. Scot

Graydon, counsel for the Appellees provided no proof that Appellant could

not be successful against Willing. In light ofAppellant's attempts to obtain

limited discovery through depositions and his attempts at subpoenas to have

same witnesses to testify, which the trial court never addressed those issues,

nor did any judge (CR: Vol 1, P: 159—172), CR: Vol 1, P: 206—209),

(CR: Vol 1, P: 245—255), (CR: Vol 1, P: 239—242), (CR: Vol 1, P: 219^

-223). Appellees did not prove that Appellant did not have a reasonable

probability of prevailing; counsel for the Appellee Willing just made the

statement, "Appellant have no probability ofprevailing" to the trial court

without sworn affidavits or proofofany kind which does not satisfy Chapter

19

11 ofthe Tex. Civ. Rem Code, 11.054. Drake vAndrews (RR: Vol 1, P: 5,

L: 2-11) and referred to Willing's immunity. Appellant has incontroverted

proof to offer any trial court that Appellee Willing failed to investigate his

case against Judge Martin Hoffman properly. Considering the fact that the

Appellant was requesting an injunction and declaratory judgment against

Appellee Willing in her official capacity, which is allowed, she horribly

failed to prove the first prong in declaring Appellant a vexatious litigant, as

Andrews did in Drake v. Andrews. But that evidence was prevented from

being offered into evidence because the trial court erred by not addressing

the pending motions to quash that prevented Appellant from obtaining

limited discovery. Appellant also filed suit against Willing as a "person" or

individual capacity and asked for damages. Brown v. Brown.

Scot Graydon advised the trial court that Appellant had already been

declared a vexatious litigant by another court, which is partly true. Mr.

Graydon just failed to inform the trial court that the 5th court ofappeals in

Dallas overturned that order. This failure to be completely truthful wasn't an

error on part of the Appellee Willing or her attorney, but it was to

accomplish their task of labeling Appellant as a vexatious litigant at any

cost, even at the expense oflying, misleading the trial court, and perjury.

20

Defendant Carl Ginsberg, a district judge in Dallas County, denied

Appellant's motion to compel the discovery against Kastl and Ogden. The

judge filed a notice that Appellant was avexatious litigate, and then ordered

Appellant to seek permission before going forward. Thereafter Ginsberg

dismissed Appellant lawsuit against Kastl and Ogden. However, Appellant

Drake dismissed his case before Ginsberg's order (CRr Vol 1, Pt-576-590).

The judge in a lawsuit cannot raise the issues of-whether a "plaintiff" is

vexatious as Ginsberg in Drake's case without holding a hearing. It is the

defendants who must make this motion. Because Ginsberg dismissed

Appellant's case and it was involuntarily done, the dismissal superseded the

vexatious litigate order signed by Ginsberg.

Appellant provided Appellee Willing with uncontroverting evidence

that clearly demonstrated that judge Martin Hoffinan treated the Appellant

differently than he did white attorneys. This evidence was provided to

Appellee Willing inHie^rm of a magnetictape recording—in person. Yet,

Willing made the comment to Appellant with such evidence, "Who could

say a good word about^our character." The Appellant's character-was not

the subject to be scrutinized but it was judge Martin Hoffman's behavior in

the courtroom and his desire to purposely harm the Appellant cases.

21

Appellant filed a motion to recuse and disqualify Hoffman. A hearing

was conducted. And an officer of the court Robert Goodman Jr., testified

that Hoffman was hostile toward Appellant.

The grounds for recusal and disqualifications are set out in Article V,

Section 11 of the Texas Constitution. Disqualrfication in a civil case is

permissible, and required, whenever the judge: 1). Is interested in the

outcome ofthe case. Hoffman ^was not onfy interested in the outcome; he

made sure that the Appellant's cases before him were ruled against the

Appellant. In fact, Hoffman committed a crime in one of the Appellant's

claims against Travelers Insurance Company by facilitating or aiding

obstruction of justice. Hoffman failed to recuse himself for improper

purposes. In re Complaint on Judicial Misconduct, U.S. Court of Appeal for

the 9th Cir., 647 F.3d 1181; 2011 U.S. Lexis 10438. The Appellant's

complaint that he filed with Appellee Wilting contained uncontroverting

evidence; Willing did notflnd itnecessaryto acton Appellant's complaint.

Pursuant ttrChapter 11 of the Tex. Civ. Prac. & Rem. Code, Appellee

Wiiling-failedto ccirrply^whh Section: 11.054. CRITERIA FOR FINDING

PLAINTIFF A VEXATIOUS LITIGANT. A court may find a plaintiff a

vexatious litigant ifthe defendant shows that there is not a reasonable proba-

22

bility that the plaintiff will prevail in the litigation against a "defendant."

Appellee Willing provided sufficient evidence to the trial court that Drake

would not prevail in his suit against her. Willing provided no affidavits, no

sworn statements, and no witness testimony. As explained herein, the

Appellant-was suing Seanna Willing in her official capacity and individual

capacity. Appellee Willing was so focused on Appellant's litigation history

that shetailed to prove the tirst prong under Chapter 11 ofthe Tex. Civ:

Prac. & Rem. Code. Drake v. Andrews.

Notwithstanding, Appellant was not attempting to relitigate any

claims against Appellee Willing, nor was there any proof provided to the

trial court of that fact. Appellee Willing did not appear as a witness against

Appellant to testify, nor did she provide any affidavits, or sworn statements

of any kind to offer the trial court. Willing only advised the trial court that

she had sovereign immunity (RR: Vol 3 of 4, P: 26, L: 23), however, even

judges can be sued and they also enjoy sovereign immunity. This in itself

does not prove that the Appellant did not have the ability to prevail against

Appellee Seanna Willing because Drake-was seeking an injunction against

Appellee Willing. Appellee also failed to show tile trial court by case law

that a person that has sovereign immunity is immune against injunctive

23

or declaratory relief. Similar to the Andrews case, counsel for Willing

focused on Appellant's litigation history, which many of the cases presented

to the trial court had been settled or did not qualify under Chapter 11 of the

litigation history. Appellee Willing failed to prove the first prong under

Chapter 11ofthe Tex. Civ: Prac. & Rem. Code.

Appellant argued to the trial court that because of violations of due

process, he was prevented from proving his case against any of the

defendants (RR: Vol 3 of 4, P: 31, L: 8—43) (RR: Vol 3 of 4, P: 31, L:

23—25, and P: 52, L: 1—9). Appellant makes the same argument before

this Court. Appellant advised the trial court that Appellee Willing failed

procedurally, in that Willing would have to prove that all ofthe defendants

that the Appellate filed suit against were equally frivolous or in this case.

Appellee Willing failed procedurally to bring her motion against Drake.

(RR: Vol 3 of 4, P: 32, L: 14—22), (RR: Vol3 of 4, P: 38, L: 7—«).

Appellantcautioned thetrial courtthat ittailedtorfbllow procedure and the

Texas Rules ofCivil Procedure (RRt Vol 5 of 4, P: -39, Lr 4—17). Appellee

Willing advisethetrial court of a casethatAppellateliled in Dallas County,

DC-13-14911, that the Appellant has already shown was properly dismissed

by Drake before the judges actions (RR: Vol 3 of 4, P: 47, L: 10—19).

24

But as in the Andrews case, the Appellee Willing failed to meet the

first prong. If given the opportunity to orally examine Appellee Seanna

Willing, with the evidence that the Appellant has in his possession, it would

be proven without a doubt that Appellee Willing should not be allowed to

investigate any other complaints filed by the Appellant. This is the reason

why Willing, Kastl, and Ogden filed motions to quash. Uut the trial court

assisted them by conspiring together to block the Appellant from obtaining

discovery by denying Appellant's motion to compel hearing on the day of

the hearing for his motion to compel (CR: Vol 1, P: 219-223), (Vol 2 of 4,

P: 8, L: 10—25, and P: 9, L: 1—20), where the trial court judges conspired

against the Appellant to overcome his pending motion to compel.

When a defendant seeks a vexatious litigant declaration, the plaintiff

may offer evidence to show there is a reasonable probability he will prevail

in the litigation. Amir-Sharifv. Quick Trip Corp., (App. [5th Dist.] 2013,

416 S.W.3d 914. As argued herein, the Appellant was prohibited in

acquiring his witnesses by motions to quash that the trial court never ruled

on before the trial court assigned improperly a visiting judge to hear and

ruled on Appellee Willing motion to declare Drake as a vexatious litigant.

Appellant argued before the trial court that he has been prevented from

25

having his witnesses, which is a due process violation and Drake argues the

same in this Court.(RR: Vol 2 of 4, P: 10. L: 16—21). All ofthe defendants

in the trial court filed motions to quash, which the trial court never address,

though the Appellant sought limited discovery (CR: Vol 2 of 4, P: 234—

244), (CR: Vol 2 of 4, P: 245—255), (CR: Vol 2 of 4, P: 534—543).

As in Drake v. Andrews, Appellee Willing did not offer sufficient

evidence to prove that there was no reasonable probability that Appellant

could not prevail in his lawsuit against her. Drake v. Andrews, (App. [5th

Dist], 2009, 294 S.W.3d3T0. Amir-Sharif v. Quick Trip Corp., (App. [5th

Dist] 2013, 416 S.W.3d 914. Appellant also argued that Appellee Willing

failed to prove that Appellant filed 5 (five) qualifying lawsuits that were

ruled against him. Douglas v. American Title Co. (App. [1st Dist.], 2006,

196 S.W.3d 876. Appellant filed a motion to vacate vexatious order (CR:

Vol 1, P: 608—614). "Defendant offered insufficient evidence that there

was no reasonable probability plaintiff could prevail in lawsuit, as required

to support dismissal of suit on ground that plaintiff was vexatious litigant.

Drake v. Andrews (App.5 Dist. 2009) 294 S.W.3d 370."

When there are multiple defendants in a litigation, the defendant who

is bringing the motion to declare the "plaintiff" vexatious, must either apply

26

proper procedure or prove there is not a reasonable probability that the

"plaintiff" would prevail against all defendants in the litigation—not just a

select defendant in the lawsuit. Appellee Seanna Willing failed to do either.

Plaintiff does not have to show that his claims against any of the

defendants can be proven beyond a reasonable doubt, he only has to prove

that his claims are not frivolous to evade being labeled as a vexatious

litigant, which is a lesser standard than a preponderance ofevidence.

However, Appellee Seanna Willing must prove that Drake's litigation

is frivolous as a whole. However, Appellee Willing at the August 19, 2014

hearing was unable to prove this point when Drake brought this to the trial

court's attention.

Scot Graydon perjured himself multiple times to the trial court by

stating that he conference with the Appellant. (RR: Vol 3 of 4, P: 45, L: 1—

14). Quite the opposite, Appellant swears under the penalty of perjury that

Scot Graydon did not conference with him. See Exhibits [Appellant's

Affidavit] attached to Appellant's Third Amended Response to Vexatious

Litigant Order and Appellant's Motion to Vacate Vexatious Litigant Order

(CR: Vol 1, P: 616-618),(CR: Vol 1, P: 624—626).

27

F. Issue Three:

Warren Vavra did not have the legal authority to appoint Judge

Charles Ramsay to hear the August 19, 2014 hearing

Appellant objected to Warren Vavra in the appointment of a visiting

judge, (Charles Ramsay) because Mr. Vavra is not a judge and pursuant to

the Tex. R. Civ. Practice he does not have the authority to appoint a judge in

the context of the Appellant's circumstances. Warren Vavra, is the trial

court's administrator, who isn't the regional presiding judge, nevertheless,

he assigned Judge Charles Ramsay to hear and rule on Appellees Willing's

Motion to Declare Appellant as a vexatious litigate, which was error.

In McLeodv. Harris, 582 S.W.2d 772 (Tex. 1979), the Supreme Court

interpreted a statute, subsequently codified as section 74.059 of the

Government Code, which provided that a "district judge shall request the

presiding judge to assign a judge of the administrative district to hear any

motions to recuse such district judge from a case pending in his court." TEX.

GOVT CODE ANN. § 74.059 (Vernon 1988) (formerly TEX. REV. CIV.

STAT. ANN. art. 200a, § 6). Warren Vavra is not a judge nor is Mr. Vavra

the administrative judge and thus the assignment of Charles Ramsay was a

procedural error and any judgments or orders made by that judge should be

28

vacated. The presiding judge of the administrative region or the Chief

Justice of the Tex. Sup makes assignments of judges. Court. Gov't Code

§74.056(c); Chandler v. Chandler, 991 S.W.2d 367, 379 (Tex. App.—El

Paso 1999).

Mr. Vavra advised Mr. Graydon (Willing lawyer) and the Appellant

that the court had signed his motion of nonsuit, on August 19, 2014.

Therefore, the trial court failed to follow the TRCP in many ways. Appellee

Willing cannot overcome violating the Tex. R. Civ. P., in order to try and

declare the Appellate as being vexatious. At the time Vavra assigned Judge

Strauss and Judge Ramsay, he was fully aware that the Appellant had filed

recusals against all of the district judges and that the Appellant's recusal

motion had not been heard. Mr. Vavra was fully aware that Appellant filed a

motion to recuse all of the district judges in Travis County. And Vavra

admitted to Appellant that Willing's motion wasn't on the docket on August

19,2014.

Tex. R. Civ. P. 18a; see also Tex. Gov't Code Ann. § 74.059(c)(3)

(West 2005) (juctee must "request the presiding judge to assign another

judge to hear a motion relating to the recusal of the judge from a case

pending in his court").

29

G. Issue Four:

Judges David Phillips and Stephen Yelenosky orders of recusal

and referral should be vacated

The August 19, 2014 order is void because even though Judges

Phillips and Judge Yelenosky filed sham orders to attempt to make it appear

as if they were complying with Tex. R. Civ. P., 18a; Judge Phillips did not

indicate if he was recusing himself or refusing to recuse himself and

referring—in other words, the order he signed is as if he never signed the

order if the ORDER itself does not indicate what the judges position is on

the matter. The Tex. R. Civ. P., clearly set forth, a judge must either recuse

or refer. Moreover, Phillips order to recuse was not referred to the judge of

the administrative judicial district, as Rule 18a requires. And because

Phillips failed to refer his recusal, procedurally his August 19, 2014 order is

invalid, defective. But more importantly Phillips order was signed too late

and should be vacated.

Besides, Judge Phillips lacked legal basis for assuming jurisdiction

over a motion seeking recusal of a district judge even though he was named

in Appellant's recusal motion. Neither the order of recusal or order of

referral that was signed on August 19,2014 was signed timely. Both orders

30

were signed after the visiting judge; Charles Ramsay had already been

wrongfully assigned to hear Appellee Willing's motion to declare Appellant

vexatious, and after the trial court had signed the order declaring Appellant

as a vexatious litigant.

The Appellant argued in open court of the many procedural errors of

not responding to his motion to recuse. (RR: Vol 3 of 4, P: 24, L: 1&-25; P:

38, L: 7—12; P: 40, L: 10—16; P: 12, L: 8—23).

An order that is signed after the harm and error has been carried out is

an order that is void. A court administrator does not have the judicial power

to assign judges pursuant to Tex. R. Civ. P., or Tex. Gov't Code Ann.,

consequently the visiting judge, Charles Ramsay was not properly assigned

to hear Appellees Willing's motion to declare the Appellant as a vexatious

litigant, and therefore the order should be vacated.

Therefore, the August 19, 2014 order declaring Appellant as a

vexatious litigate is void, and an appeal is the appropriate remedy to address

these void orders. The Appellant filed a mandamus, but this Court denied the

mandamus without providing a reason for its denial.

It is Appellant's legal opinion, and pursuant to case law cited in this

briefherein that the following orders are void: 1). The order ofreferral by

31

Judge Yelenosky); 2). The order of recusal by Judge Phillips; and 3). The

order declaring the Appellant as a vexatious litigate signed by the visiting

judge Charles Ramsay.

All of these orders should be vacated by the Court and considered

void. (CR: Vol 1 of 1, P: 608—623); (CR: Vol 1 of 1, P: 545); (CR: Vol 1,

P: 559); (CR: Vol 1 of 1, P: 546); (CR: Vol of 1, 547—555). The August

19, 2014 orders cited herein are void and should be vacated because the

visiting judge signed the order while the Appellant's motion to recuse was

pending before the trial court. Victor Enterprises, Inc. v. Holland, (Tex.

App.—Dallas 2013); In re Guilbot.

Likewise, on August 14, 2014 the trial court signed an order of

nonsuit on Appellant's claims against defendants Carl Ginsberg, Kristina

Kastl, Vikki Ogden, and Seanna Willing. The trial court made numerous

procedure errors, which were derived by the trial court's judge's intentional

and reckless desires to supersede Texas law and the Texas Code of Civil

Procedure. Even the simplest orders signed by the trial court should be

voided. There have been an overwhelming number of errors and conspirator

acts by several judges in Travis County. Victor v. Enterprises, Inc. v.

Holland.

32

The sham orders by Judges David Phillips and Stephen Yelenosky are

a good example of how these judges circumvent the law. But they have no

fear because Seanna Willing, who also committed fraud with her counsel

Scot Graydon an assistant attorney general, is the Travis County's judge's

overseer ofjudicial misconduct.

The judges in Travis County fully is aware that the possibility of

being held account for their actions are none—as long as the person filing

the compliant is nonwhite and pro se.

33

H. Issue Five:

The trial court failed to comply with Chapter 11 of the Tex. Civ.

Prac. & Rem Code, Rule 18a and 18b of the Texas Rule of Civil

Procedure, and other state laws and statutes

The trial court failed to comply with the very statute that it declared

Appellant as a vexatious litigant. Chapter 11 ofthe Tex. Civ. Prac. & Rem.

Code allows a "plaintiff" to call witnesses in his or her defense. But the

Appellant was prohibited from basic due process rights. The trial court failed

to rule on the defendants motions to quash and Appellant's motion to

compel, and recuse before holding the August 19, 2014 hearing—the trial

court failed to act in accordance with Rule 18a and 18b ofthe Tex. R. Civ.

P., Texas Rules of Evidence, and the Texas and U.S. Constitutions.

1. Texas Rules of Civil Practice 18a and 18b.

Section 18a provides in pertinent part as follows:

§18a

(f) Duties of Respondent Judge; Failure to Comply. (1) Responding to

Motion. Regardless of whether the motion complies with this rule, the

respondent judge, within three business days after the motion is filed,

must either:

(A) sign and file with the clerk an order of recusal; or (B) sign and file

with the clerk an order referring the motion to the regional presiding

judge. (2) Restrictions on Further Action.

(A) Motion Filed Before Evidence Offered at Trial. If a motion is

filed before evidence has been offered at trial, the respondent judge

must take no further action in the case until the motion has been

decided.

34

Denial of a motion to recuse is appealable upon final judgment. Tex.

R. Civ. P. 18a(f). Thus, an Appellant challenging the denial of a recusal

motion ordinarily has an adequate remedy by appeal of the denial of a

motion to recuse. However, in this case the recusal was never denied

because the trial court never acted timey on Appellant's motion to recuse.

Appellate relief is available when a judge violates a mandatory duty to

recuse or refer a motion to recuse. In re Norman, 191 S.W.3d 858, 860

(Tex. App.- Houston [14th Dist.] 2006, orig. proceeding).

On August 7, 2014, Appellant filed a motion to recuse against all of

the district judges in Travis County. This action was taken only after judges

Tim Sulak, Amy Clark Meachum, and Orlinda Naranjo conspired together

with the assistant attorney general Scot Graydon and defendants Kastl and

Ginsberg to deny the Appellant's motion to compel hearing on the day of

Appellant's hearing. It is evident to the Appellate that he cannot obtain a fair

hearing in Travis County.

On July 24, 2014, Appellant filed a motion to compel the defendant's

depositions, which he needed to respond to defendant's motions to transfer,

and notices he was an alleged vexatious litigant. The trial court took no

action regarding Appellant's motion to compel, up and until the date ofthe

35

hearing. While waiting in judge Amy Meachum's court she was given an

order by Kastl and it appears a letter of some kind. Meachum knew that

Kastl was trying to get an order signed on the day of Appellant's compel

hearing to deny the hearing. Once the denial was signed, judge Meachum

advised the Appellant and Scot Graydon that judge Sulak would hear

Appellant's pending motion to compel, knowing that an order was signed

denying die motion. Judge Sulak announced that he could not hear the

Appellant's motion to compel because another equal judge has signed an

order denying the motion to compel moments ago. (RR: Vor 2 of4, P: 8, L:

11—25; P: 9: L: 1—19).

Travis County does not appoint one judge to hear cases but it's an

open docket, where any district judges may hear a motion or try cases.

However, after such of a conspired effort by the Travis County district

judges to deny Appellant's motion to compel hearing, Appellant had no

choice butto recuse all ofthedistrict judges. (CRr Vol 1, Pr 521—526). The

behavior by the three district judges named herein was reprehensible.

Appellant believed that he could not reasonably obtain a fair and impartial

hearing from any ofthe District or County judges. All judges involved will

be sued in federal court.

36

After Appellant filed his motion to recuse, not one of the judges

recused themselves or referred the Appellant's recusals. Pursuant to Tex. R.

Civ. P. 18a and 18b, upon a motion to recuse being filed against ajudge, he

or she must either recuse or refer, there are no other options. However, after

the Appellant announced at the August 19, 2014 hearing that none of the

judges took any action on his motion to recuse, and that it is a violation of

TRCP 18a and 18b, one ofthe clerks in the 353rd left the courtroom and

apparently notified the judges ofthe procedural error, and two judges filed

sham orders in the trial court's record (CR: Vol 1 of1,P: 545); (CR: Vol 1,

P: 559); (CR: Vol 1 of 1, P: 546). But those sham orders came too late

because the visiting judge had already been appointed to hear the Appellee

Willing motion and had ruled on Willing motion to declare Appellant

vexatious.

Under the general recuse or refer rule in Tex. Gov't Code Ann. §

25.00255(f), ajudge against whom a recusal motion has been filed has onfy

two options: grant the motion to recuse or refer the motion to another judge

for a ruling. Neither occurred in the trial court. The same is required under

the Tex. R. Civ. P. 18a and 18b. Even though a motion to recuse may be

defective, the challenged judge must either recuse orrefer the motion, so that

37

another judge can determine the procedural adequacy and merits of the

motion to recuse. Appellee Willing objections to the motion has no bearing

on a judge following Rule 18a, especially because Appellant verified his

motion and the motion had been pending for more than 3 (three) days.

Pursuant to the Tex. R. Civ. P., a judge should respond to a litigates motion

of recusal within 3 business days. All of the Travis County district judges

failed to respond in 14 business days. Thus the sham orders of referral and

recusals by David Phillips and Stephen Yelenosky are again void.

The statute states in mandatory language that the district judge shall

request the presiding judge to assign a judge to hear any motions to recuse.

Regardless of whether a motion to recuse may be defective or untimely, the

challenged judge must recuse or refer the motion so that another judge can

determine the procedural adequacy and merits ofthe motion. Norman, 191

S.W.3dat861.

All courts agree that when a judge is confronted with a timely,

procedurally sufficient motion, the trial judge must either recuse herself or

refer the case to the presiding judge. Rule 18a(c), (d); See Brousseau v.

Ranzau, 911 S.W.2d at 892. These are the only two options the judge has

when a procedurally proper motion is filed. Brousseau v. Ranzau, 911

38

S.W.2d at 892. In such a case, when the judge refuses to recuse herself, two

things must happen: (1) she must send all motions, responses, and

concurring briefs, and the order ofreferral, to the administrative judge; and

(2) she must take no further action and make no further orders in the case

except for good cause stated in the order in which the action is taken. Rule

18a(d). Likewise, when a judge recuses herself, two things must happen: (1)

she must request that the presiding judge of the administrative judicial

district assign another judge to the case; and (2) she must take no further

action and make no further orders in the case except for good cause, which

must be stated in the order in which action is takenRule 18a(c).

In addition, one court has held that a transfer made by the trial judge-

-not the presiding judge—would be void. Lamberti v. Tschoepe, 116 S.W.2d

651, 652 (Tex. App.-Dallas 1989, orig. proceeding).

As a result of Appellant's motions to recuse, there was never a

hearing nor does the trial court's clerk's record reflect that the administrative

judge denied Appellant a hearing onJudge Stephen Yelenosky referral. This

is mandatory. Though Yelenosky signed a referral, and if there is a referral

there must be a hearing or a denial of a hearing. The trial court's record

reflects neither occurred.

39

In McLeod v. Harris, 582 S.W.2d 772 (Tex. 1979), the Supreme Court

interpreted a statute, subsequently codified as section 74.059 of the

Government Code, which provided that a "district judge shall request the

presiding judge to assign a judge of the administrative district to hear any

motions to recuse such district judge from a case pending in his court." TEX.

GOVT CODE ANN. § 74.059 (Vernon 1988) (formerly TEX. REV. CIV.

STAT. ANN. art. 200a, § 6).

When a motion to recuse has been filed, it is mandatory that the trial

judge request the administrative judge to assign another judge to hear the

motion. McLeod, 582 S.W.2d at 773. The trial court visiting judge was not

assigned by a judge to hear Appellees Willing motion to declare Appellant

as a vexatious litigate, but the visiting judge was assigned by the court

administrator (Vavra) who had no authority to assign judges, thus any orders

executed by the visiting judge (Charles Ramsay), including the August 19,

2014 order declaring the Appellant as a vexatious litigate should be vacated

and or set aside.

Tex. R. Civ. P. 18a; see also Tex. Gov't Code Arm. § 74.059(cX3)

(West 2005) (judge must "request the presiding judge to assign another

40

judge to hear a motion relating to the recusal of the judge from a case

pending in his court").

Other courts of appeals have concluded that Rule 18a's recusal-or-

referral requirement is mandatory and that mandamus relief is appropriate to

compel compliance with the rule. See, e.g., In re Kiefer, No. 05-10-00452-

CV, 2010 Tex. App. LEXIS 4268, 2010 WL 2220588, at (Tex. App. Dallas

June 4, 2010, orig. proceeding) (recusal or referral "mandatory"); In re

Norman, 191 S.W.3d 858, 860 (Tex. App.-Houston [14th Dist] 2006, orig.

proceeding) (Rule 18a states that judge has "mandatory duty either to recuse

himself or refer the motion to the presiding judge"); In re Healthmark

Partners, L.L.C., No. 14-04-00743-CV, 2004 Tex. App. LEXIS 7636, 2004

WL 1899953, (Tex. App.-Houston [14th Dist] Aug. 26, 2004, orig. pro

ceeding). In re Rio Grande Valley Gas Co., 987 S.W.2d 167, 179-80 (Tex.

App.—Corpus Christi 1999, orig. proceeding) see also Arnold v. State, 853

S.W.2d 543, 544 (Tex. Crim. App. 1993) (Rule 18a applies in criminal

cases); see also Ex parte Sinegar, 324 S.W.3d 578,2010 WL 4320399, (Tex.

Crim. App. 2010)

Likewise, construing a substantially similar statutory predecessor to

Rule 18a, the Texas Supreme Court has held that (1) a judge has "the

41

mandatory duty" to recuse himself or refer the matter to the presiding judge

to hear a properly filed motion to recuse. See McLeod v. Harris, 582 S.W.2d

772, 775 (Tex. 1979). But again, this Court disagreed and denied the

Appellant's mandamus—wrongfully. Appellate courts agree that the

provisions of Rule 18a are mandatory; and that they cannot be reasonably

read otherwise.

Consequently, all of the district judges in Travis County abused their

discretion by failing to either recuse themselves or refer the motion to the

presiding judge of the administrative judicial district. See In re Prudential,

148 S.W.3d at 135 (judge has no discretion in applying facts to law).

Thereafter, the district judges failed again by conspiring to sign an order to

refer only after the Appellant argued on August 19, 2014 that they failed to

properly respond to his recusal motion.

Moreover, the order of referral that came after the visiting judge that

was assigned to hear the Appellee Willing motion to declare Appellant as a

vexatious litigate was not forwarded to the Regional Presiding Judge. The

sham referral order was signed by Judge Yelenosky of the 34th JDC and

filed stamped at 5:00 P.M., however, the referral should had been to the

42

presiding judge of the administrative judicial district for assignment to

another judge for hearing and disposition. There was no hearing conducted

on Appellant's motion to recuse nor was it denied. Bruno v. State, 916

S.W.2d 4, 7 (Tex. App.-Houston [14th Dist.] 1995, no pet).

If a motion to recuse is procedurally sound, or otherwise in substantial

compliance with Tex. R. Civ. P. 18a, it is error for a trial judge to refuse to

either recuse herself or himself or to otherwise refer the recusal motion to

the presiding judge of the administrative region for assignment to another

judge for full evidentiary hearing and disposition. In re Richard Castillo,

1998 Tex. App. El Paso, Lexis 2473. In re Guilbot, 2009 (Tex. App.—

Houston [14th Dist] no pet.

Additionally, David Phillips is not a district judge; he is the judge of

County Court No. 1, and therefore a County judges referral does not count in

the case of a district court case. A County judge would not be in a position to

preside over a district court case. The sham order signed by David Phillips is

not valid in several aspects.

This Court should grant Appellant's appeal, vacate all orders pursuant

to the Appellant's case (Drake v. Kastl Law et al) signed on August 19,

2014, for the reason that relevant procedural rules required that a hearing be

43

held to develop arecord sufficient for any appeal onthe motion to recuse the

trial judges and for all the reasons stated herein. And such that the trial

judge's actions denying such requirements, and for all other reasons asserted

herein the Appellant files this appeal timely to have the August 19, 2014

order vacated in its entirety, including its prefiling order. Appellant contends

that the trial court's order that Judge Charles Ramsay signed on August 19,

2014 is void because Ramsay did not have the authority to sign the order.

The August 19, 2014 order is void because it was derived by and

through fraud. The August 19, 2014 order is void because once Appellant

objected to the visiting judge Ramsay, though he refused to recuse or

remove himself from hearing the motion was error and abuse of discretion.

The August 19, 2014 order is void because although two judges filed sham

orders to attempt to make it appear as if they were complying with Tex. R.

Civ. P., 18a, the orders were defective on its face and procedurally defective.

Neither the sham orders of recusal nor referral that was signed on

August 19, 2014 was signed timely. Both orders were signed after the

Appellant had already been wrongfully assigned to Judge Ramsay, and the

Appellant argued in open court ofthe procedural errors of not responding to

his motion to recuse. An order that is signed after the harm and error has

44

been carried out is an order that is void. A court administrator does not have

the judicial power to assign judges pursuant to Tex. R. Civ. P., or Tex. Gov't

Code Ann., therefore the visiting judge was not properly assigned to hear

Appellee Willing motion. An appeal is his only remedy to the Appellant to

address: 1). The order of referral by Judge Stephen Yelenosky, 2). The order

of Recusal by Judge David Phillips, and 3). The order declaring Drake as a

vexatious litigate signed by Judge Ramsay.

Appellant filed his motion for nonsuit on August 7, 2014. Willing

filed her motion to declare Appellant as a vexatious litigant on August 5,

2014. Appellee Willing failed to conference with any ofthe co-defendants or

the Appellant per local rules before filing her motion to declare Drake

vexatious. Appellant had no idea that Willing had filed a motion for

affirmative relief when he filed his motion for nonsuit. Wiling argued that

she conference with Drake later, but she cannot revitalize her motion,

because her second conference came too late. Willing could not repair a

motion that was dismissed because of intentional procedural errors.

Willing through her legal counsel admits during the August 19, 2014

hearing that she failed to conference with the Appellant timely. Appellant

Drake must be timely noticed that a defendant is seeking affirmative relief—

45

which Willing failed to do so—and not file a motion by "seek attack."

Willing did not want the Appellant to know that she was filing the motion

until after the motion was filed with the trial court. Thereafter, Willing (the

head of the Judicial Commission) through her attorney who is an assistant

Attorney General acts dumb and say to the trial court that they were unaware

that they had to conference with the Appellant. Willing intentionally violated

procedure to file the motion without the Appellant's knowledge. Moreover,

Willing pursuant to the TRCP and local rules in Travis County should have

conference with the Appellant and co-defendants, which she failed to do.

If a motion to recuse is denied, the denial may be reviewed on appeal

from the final judgment. Tex. R. Civ. P. 18a(f). See In re Union Pacific

Resources Co., 969 S.W.2d 427, 428, 41 Tex. Sup. Ct. J. 591 (Tex. 1998).

The standard of review for the denial of a motion to recuse is abuse of

discretion. Tex. R. Civ. P. 18a(f). The test for an abuse of discretion is

whether the trial court acted without reference to any guiding rules or

principles, or acted arbitrarily or unreasonably. The trial court judges did not

refer Appellant's motion to recuse to the regional presiding judge or recuse

themselves as required by Rule 18a, thus any order signed are considered

46

void, which in this case specifically the August 19, 2014 declaring Drake as

a vexatious litigant. The trial court records contain no ruling by or from the

regional presidingjudge.

Appellant brought to the attention of the trial court that his recusal

motion was pending, however, the visiting judge ignored Appellant's

objection and proceeded with the hearing (RR: Vol 3 of 4, P: 14, L: 5—25;

P: 10, L: 14—25; P: 11, L: 1—15). The trial court did not have Willing's

motion on the docket, it had signed Appellant's nonsuit, but Willing's

counsel demanded the hearing, even when it wasn't on the docket.

The trial court did nothing about Appellant's recusal. A trial judge

presented with a motion to recuse must promptly enter an order for either

recuse/ or referral, "he does not have the option of doing nothing")

Greenberg, Benson, Fisk and Fielder, PC. v Howell, 685 S.W.2d 694, 94

(Tex. App.—Dallas 1984, no writ, no writ). In re Kiefer, 2010 WL 2220588

(Tex. App.—Dallas 2010, no pet.) (mem. op.). In Appellant's case, his

motion to recuse was not denied; it was just never acted upon by any ofthe

judges up and until the Appellant was in a hearing, which the trial court

acted too late, thus any orders signed by the visiting judge are void.

47

Regardless of procedural sufficiency of a motion to recuse, trial court

violated Rule 18a in failing to act either to recuse herself or refer the case to

the presiding judge; her ruling on the recusal motion was an abuse of

discretion by which such ruling was vacated and any subsequent orders or

judgment made subsequent to the denial ofthe first recusal motion are void.

Victor Enterprises, Inc. v. Holland, 2013 WL 329034 (Tex. App.—Dallas

2013).

If a trial court fails to comply with the rules provided in Rule 18a, all

actions taken by the judge subsequent to such violation are void. Mosley v.

State, 141 S.W.3d 816, 837 (Tex. App.-Texarkana 2004, pet. Refd);

Lamberti v. Tschoepe, 116 S.W.2d 651, 652 (Tex. App.—DALLAS 1989,

Writ denied).

Appellant's motion to recuse was never acted on by the presiding

judge ofthe administrative judicial district. In the case ofBamhill v. Agnew,

2013 WL 5657644 (Tex. App.—Tyler 2013) the judge did not refer the

motion to the regional presiding judge or recuse himself, as in the issues

before this Court. All subsequentorderwere ruled void.

48

Issues as to the qualifications ofthe trial court judge may be raised for

the first time on appeal. In re DC. Jr., 2010 WL 3718564 (Tex. App —

Amarillo 2010, no pet). However, the Appellant raised Judge Charles

Ramsay's ability to hear Willings motion to declare Drake as a vexatious

litigant on the day ofthe hearing itself: August 19, 2014. (RR: Vol 3 of 4,

P: 12, L: 8—12).

Appellant recused all of the district judges and two County judges

(CR: Vol 1, P: 521—526). Pursuant to Rule 18 of the TRCP, the regional

presiding judge must rule on a referred motion or assign a judge to rule,

neither occurred in the Appellant's case in the trial court. Notwithstanding,

the ruling must be in writing. No such rutins Is contained In the trial

court's clerk's record submitted to this Court. There was no hearing on

Appellant's recusal motion. The trial court judges ignored the Appellant's

motion of recusal, which is forbidden by Rule 18 of the TRCP. Johnson v.

Pumjani, 56 S.W.3d 670, 672 (Tex.App.—Houston [14th Dist] 2001.

Judge Phillips did not indicate if he was referring or recusing (CR:

Vol 1, P: 546). Because Phillips did not complete his order, he also failed to

comply with the TRCP 18a (f)(1)(B). The trial court's clerk of court should

49

had delivered a copy of the order of disqualification, recusal or referral to

the regional presiding judge immediately with the 3 day period, but this did

not occur in the Appellant's trial court's case. TRCP 18a (e)(2).

All of the greatest intentions do not allow a judge to escape the fact

that the order he signed was not complete. Regardless of procedural

sufficiency's of a motion to recuse, trial court violated Rule 18a in failing to

act either to recuse or refer as in the case before the Court. Victor

Enterprises, Inc. v. Holland, 2013, WL 329034 (Tex. App.—Dallas 2013).

Appellant was entitled to a hearing on his motion to recuse. TRCP 18a

(g)(6). The hearing would have given the Appellant an opportunity to

develop a record to support his motion. In re Rio Grande Valley Gas Co.,

987 S.W.2d 167,179 (Tex.App.—Corpus Christi 1999).

Because ofthe judges failure to comply with the TRCP 18, all orders

or judgments of a trial judge who was constitutionally disqualified from

sitting are void. TescoAm., Inc. v. Strong Indus., 221 S.W.3d 550, 555 (Tex.

2006); In re Union Pac. Res., 969 S.W.2d 427, 428 (Tex. 1998). And regard

ing Judge Charles Ramsay, orders of an assigned judge who should have

been removed after an objection under Gov't Code §74.053 are void. In re

50

Canales, 52 S.W.3d 698, 701 (Tex. 2001); Dunn v. Street, 938 S.W.2d 33,

34—35 (Tex. 1997); Flores v. Banner, 932 S.W.2d 500, 501 (Tex. 1996).

As in Drake v. Andrews, Appellees did not offer sufficient evidence

to prove that there was no reasonable probability that Appellant could not

prevail in his lawsuit against her. Drake v. Andrews, (App. [5th Dist.], 2009,

294 S.W.3d 370. Amir-Sharif v. Quick Trip Corp., (App. [5th Dist.] 2013,

416 S.W.3d 914. Appellant also argued and argues in his brief that

Appellees failed to prove that Appellant filed 5 (five) qualifying lawsuits

that were ruled against him. As in the Andrews case, Appellee Willing failed

to prove the first prong under Tex. Prac. & Rem. Code and committed a

crime of perjury, and fraud. Any party to a case may move for recusal ofthe

judge; the judge may then voluntarily recuse himself or requests the chief

administrative judge of the district to appoint a judge to hear the motion for

recusal. Tex. Arty. Gen. Op. DM—109 (1992).

51

I. Issue Six:

Trial court abused its discretion when the court continued to hear

Appellees Seanna Willing Motion to Declare the Appellant as a

Vexatious Litigate in light of the fact that Judge Ramsay did not

have the authority or jurisdiction to preside over Appellees

Willing motion to declare him a vexatious litigant

Appellant argue that the Judge Ramsay lacked authority to hear the

Appellee Willing motion to declare him as a vexatious litigation and that the

resulting final August 19,2014 order is void. Part of Appellant's argument is

that the visiting judge's (Charles Ramsay) authority originates solely from

an order of assignment from a proper judge. However, in this case, there was

no order of assignment by a proper judge or any judge that can be found in

the trial court's clerk record.

As already argued before the Honorable Court, the visiting judge did

not have jurisdiction to act or authority to enter the August 19,2014 order. A

judgment is void when the court rendering judgment has no jurisdiction of

the person of a party or his property, no jurisdiction ofthe subject matter, no

jurisdiction to enter the particular judgment, or no capacity to act."

Browning v. Prostok, 165 S.W.3d 336, 346 (Tex. 2005); Austin Indep. Sch.

Dist. v. Sierra Club, 495 S.W.2d 878, 881 (Tex. 1973).

52

A judgment of a court which has no jurisdiction over the subject

matter is void, that is, "entirely null within itselfand which is not susceptible

of ratificationf,] confirmation," or waiver. Easterline v. Bean, 121 Tex. 327,

49 S.W.2d 427,429 (1932). Subject-matter jurisdiction "cannot be conferred

on a court by consent or waiver," and lack thereof "renders ajudgment void

rather than merely voidable." Mapco, Inc. v. Forrest, 795 S.W.2d 700, 703

(Tex. 1990); Jeter v. McGraw, 218 S.W.3d 850, 853 (Tex. App.-Beaumont

2007, pet. denied); See Tex. Ass'n of Bus. v. Tex. Air Control Bd., 852

S.W.2d 440, 445 (Tex. 1993); Fed. Underwriters Exch. v. Pugh, 141 Tex.

539, 174 S.W.2d 598, 600 (1943) (subject-matter jurisdiction exists by

operation of law and cannot be conferred on any court by consent or

waiver); In the Guardianship ofErickson, 208 S.W.3d 737, 740 (Tex. App.-

Texarkana 2006, orig. proceeding); In the Estate ofBean, 120 S.W.3d 914,

919 (Tex. App.-Texarkana 2003, pet. denied).

Because Charles Ramsay was not assigned by a proper judge, he had

no authority or jurisdiction to preside over, hear or rule on any motions

presented by either party on August 19, 2014. Ramsay ignored the

Appellant's notices and the Tex. R. Civ. P., and proceeded with the hearing

which was error and abuse ofdiscretion (RR: Vol 3of4, P: 15, L: 2—3).

53

J. Issue Seven:

The August 19, 2014 order declaring the Appellant as a vexatious

litigant was obtained by and through deception and perjury by

Scot Graydon an assistant attorney general and was a product of

fraud, fraudulent inducement

Scot Graydon, an assistant attorney general for the state of Texas in

Austin, Texas perjured himself and obtained the August 19, 2014 order by

and through fraud, and deception. Mr. Graydon advised the trial court that he

conference with the Appellant regarding Appellees Willing's Motion to

Declare Drake as a vexatious litigant. Because Mr. Graydon is an officer of

the court and an assistant attorney general, his statements to the trial court

were considered perjury if he knowingly made a false statement to the court.

Appellee Willing's counsel failure to be completely truthful wasn't an

error on part ofthe Appellee Wiling or her attorney, but it was to accomplish

their task of labeling Appellant as a vexatious litigate at any cost, even at the

expense of lying, misleading the trial court, and perjury. However, as

already pled herein, Seanna Willing failed to conference with the other

defendants in seeking her motion to declare Appellant vexatious.

Scot Graydon perjured himself multiple times to Judge Ramsay by

stating that he conference with the Appellant. (RR: Vol 3 of 4, P: 45, L: 1—

54

14). Appellant has sworn under the penalty of perjury that Scot Graydon did

not conference with him. See Exhibits [Appellant's Affidavit] attached to

Appellant's Third Amended Response to Vexatious Litigant Order and

Appellant's Motion to Vacate Vexatious Litigant Order. (CR: Vol 1, P:

620—626). Where there is any doubt that the order signed by visiting judge

is even possibly fraudulent and or obtained by fraud, the order should be

vacated.

The mere allegation, "that the judgment was obtained by fraud," is not

sufficient. The facts relied on as constituting the fraud must be distinctly

averred, and the court is to determine whether those facts sustain the charge.

(Martin v. Sykes, 25 Tex. Supp., 198.) Appellant executed affidavits under

the penalty of perjury that Graydon did not conference with him. (CR: Vol

1, P: 608—618; P: 620—626).

The appellate courts in the exercise of equitable powers may grant by

re-examining a case on its merits, such relief as equity and justice may

demand when it is made to appear that a judgment is obtained by fraud. That

the willful giving of false testimony by a party to an action in relation to a

matter affecting an issue to be tried is fraud ofthe most pernicious character

cannot be questioned, and for such conduct, an injured party is entitled to

55

have a cause re-examined on its merits, and granting such relief as equity

and justice may demand. McMurray v. McMurray, 67 Tex. 665; 4 S.W.357;

1887 Tex. Lexis 943.

In common with all other courts, the appellate court's have the power,

when a judgment, order or decree has been entered without jurisdiction, or

when obtained by fraud or such other means as are held to render the

judgments, orders or decrees void, so to declare them at any time. Heath et

al v. Layne et al, Supreme Court, 62 Tex. 686; 1884 Tex. Lexis 312. Lee v.

Killian, 761 S.W.2d 139; 1988 Tex. App. [2nd] Lexis 3173.

In Lee v Killian, the trial court granted summary judgment based on a

wavier that was obtained by fraud. The appeals court reversed and

remanded. Lee v Killian, 161 S.W.2d 139; 1988 Tex. App. Lexis 3173. Un

less the order is set aside that was obtained by fraud; Appellant will suffer

substantial and irreparable injury. Smith v. McDaniel, 170 S.W. 1070; 1914

Tex. App. Lexis 1021.

Upon proof that assistant attorney general Scot Graydon did commit

fraud upon the court and was untmthful to the court to obtain an order

against Appellant, the Court should sanction him, report him to the bar

association, and have him disbarred. Contracts induced by fraud are not

56

valid. Green v. Chandler, 25 Tex. 148; History Co. v. Flint, 4 Willson, Civ.

Cas. Ct. App. §224,4 Tex. Civ. Cas. 364, 15 S.W. 912; Drinkardv. Ingram,

21 Tex. 650, 73 Am. Dec. 250; Johnston v. Loop, 2 Tex. 331; Bankers v.

Calhoun (Tex. Civ. App.) 209 S.W. 826.

The trial court's visiting judge made his decision based on misleading,

and false information directed to him by the Appellee Willing legal counsel.

Graydon advised Judge Ramsay on 8/19/2014, "In the event the Court of

Appeals determines that a motion to recuse would been proper, if the court

enters an order today granting my motion, it can simply be vacated" (RR:

Vol 3 of 5, P: 22, L: 7—19). Graydon goes on to suggest to the trial court

on August 19,2014 that there would be "no harm" caused to Drake.

Appellee Willing demanded and got the trial court's visiting judge to

sign a prefiling order, which the Appellant objected to in form and content.

(CR: Vol 1, P: 564-571). The order derived of fraudulent behavior by the

Appellee Willing and an assistant attorney general was intended to prevent

the Appellant from filing new litigation without permission of the

administrative judge. But because the order signed on August 19, 2014 by

Judge Ramsay is void, and a product of fraudulent misrepresentations, which

is an actionable fraud; the August 19,2014 order is non-effect. Stanfieldv.

57

O'Boyle, 462 S.W.2d 270, 272 (Tex. 1971); Stone v. Williams, 358 S.W.2d

151 (Tex. Civ. App.-Houston 1962).

In order to be fraud or fraudulent, the Court should look at the

following: (1) that Scot Graydon attorney for the Appellee Willing made a

material misrepresentation to the trial court on August 19, 2014 [that he

allegedly conference with the Appellant about his motion to declare

Appellant as a vexatious litigate] to induce the visiting judge to sign his

order, (2) that the representation was false, (3) that Scot Graydon knew it to

be false at the time he made the statement, (4) that the statement was made

with the intent to deceive the trial court visiting judge Charles Ramsay, (5)

that the false statement would be acted upon by the trial court, and the trial

court did act upon Mr. Graydon's misrepresentations by signing the August

19, 2014 order to declare Appellant as a vexatious litigant, and prefiling

order against Appellant and that he must obtain permission prior to filing

any new litigation, (6) that the trial court reasonably relied on Scot

Graydon's fraudulent statements because he is an officer ofthe court and an

assistant attorney general and because of Mr. Graydon's race: white, and (7)

that Appellant has suffered injury as a result of Appellee Willing and Scot

Graydon's fraud. The alleged notice ofthe hearing was filed after the

58

Appellant filed his motion for nonsuit, although the order signed by the trial

court nonsuiting the Appellant's cause of action was also defective. (CR:

Vol 1, P:527—529), file dated: August 7, 2014 at: 1:07 P.M. Appellee

Willing filed her motion to declare Appellant as a vexatious litigate on

August 5, 2014. (CR: Vol 1, P: 263—282). On August 7, 2014, Willing

through her attorney filed a supplemental notice to try to overcome their

intentionally not conferencing with the Appellant. This notice was filed

August 7, 2014. (CR: Vol 1, 517—519), at: 2:59 P.M. Even the

supplemental notice was filed after the Appellant filed his motion for

nonsuit. Pursuant to Travis County Local Rules, because Willing failed to

conference with Appellant Drake before she filed her motion to declare him

a vexatious litigant, the motion was defeated. Willing legal counsel admitted

this to the trial court and said, "I will stand here and I will tell the Court that

prior to filing the motion, I did not confer with Mr. Drake." (RR: Vol 3 of 4,

L: 1-5). Thus, a supplemental notice coming after the nonsuit is filed will

not save Willing's motion to declare the Appellant as a vexatious litigant

because it came too late—there was no pending affirmative relief. Willing

filed her original motion to declare Appellant as vexatious by "ambush."

59

Drake directs the Court's attention to Willing certificate of

conference: (CR: Vol 1, P: 518). In this document attorney Graydon,

Willing's counsel misrepresents that he conference with the Appellant

regarding Willing's motion to declare Drake as a vexatious litigant. But

there is more; the clerk's record numbered: 518, contains Graydon's

statement to the trial court that he conference with the Plaintiff at 9:50 p.m.

at night. Graydon's certificate further states that he conference with Drake

in-person at nearly 10:00 p.m. on August 6, 2014, which the Appellant was

in Dallas on August 6, 2014 at 10:00 p.m. at his home. Graydon also

perjured himself before the trial court regarding the matter. (RR: Vol 3 of 4,

P: 45, L: 1—14). Graydon violated TRCP 191.3(b).

The fact that Appellant could not call his witnesses, and Chapter 11 of

the Tex. Civ. Prac & Rem. Code allows witnesses to be called on behalf of

the "plaintiff." Judge Ramsay also knew that the trial court judges had not

recused or referred themselves because Appellant brought this to the visiting

judge's attention, however, that did not slow down Judge Ramsay's desire to

sign an order declaring Appellant as a vexatious litigant, and thus the order

should be vacated. Graydon should be sanctioned pursuant to TRCP

191.3(e).

60

K. Issue Eight:

Trial court abused its discretion when the court continued to hear

Appellees Seanna Willing Motion to Declare the Appellant as a

Vexatious Litigate even after Appellant objected to Judge Ramsay

of due process violations and violations under Chapter 11 of the

Texas Civil Prac. & Remedies Code

Appellant's cause of action against Appellees Seanna Willing was not

based on the same or substantially similar facts, transition, or occurrence.

Devoil v. State of Texas, 155 S.W.3d 498; 2004 Tex.App. Lexis 10473.

Though Appellant objected to violations of his due process, the trial court

visiting judge did not have authority to preside over the Appellee Willing's

motion to declare Appellant as a vexatious litigate because prior defendant

motions had not be ruled on and addressed nor had Drake's motion to

recuse. (CR: Vol 1, P: 521-526; P: 608-618; P: 534-543; P: 50-55; P:

125-133; P: 140-149; P: 234-244; P: 245-250).

Appellant filed a motion to continue until the court could address his

motions to take limited discovery. Appellant had to file a motion to compel

discovery. Defendant Kastl conspired with three judges to have Appellant's

compel hearing denied while Appellant sat waiting on his motion to be heard

on the very same day. Appellant has uncontroverted proof to offer any trial

court that Appellee Willing failed to investigate his case against Judge

61

Martin Hoffman properly. But that evidence was prevented from being

offered into evidence because the trial court erred by not addressing the

pending motions to quash that prevented Appellant from obtaining limited

discovery. The ability to call witnesses to the stand under oath and discovery

are important elements of any civil or criminal case, which are violations of

Appellant's due process and constitutional rights. Yet, Kastl objected to

Drake's compel hearing (CR: Vol 1, P: 513).

The trial court failed procedurally in assigning visiting judge Charles

Ramsay. Appellant also argued before the trial court that he has been

prevented from calling witnesses to the hearing, which are due process

violations. (RR: Vol 3 of 4, P: 31, L: 8—13).

When a defendant seeks a vexatious litigant declaration, the plaintiff

may offer evidence to show there is a reasonable probability he will prevail

in the litigation. Amir-Sharif v. Quick Trip Corp., (App. [5th Dist] 2013,

416 S.W.3d 914. As argued herein, the Appellant was prohibited in

acquiring his witnesses by motions to quash that the trial court never ruled

on before the visiting judge was assigned, ruled on, and signed the order to

declare the Appellant as a vexatious litigant.

62

Appellant was not given any opportunity to call the witnesses that he

needed to respond to Appellee Willing's motion to declare him as a

vexatious litigant. Though the Appellant preserved his objections to

Ramsay's assignment and to Appellees Willing's exhibits on August 19,

2014 on the record. (RR: Vol 3 of 4, P: 10, L: 14—25, and P: 11, L: 1—

25, P: 12, L: 1—12). Pursuant to RR, Vol 3 of 4, Page 26, Lines: 6 through

7, the court is noted as overruling the Appellant's objections to the exhibits

of Willing. The trial court did not overrule the Appellant's objection on

August 19,2014.

For these reasons the August 19, 2014 order declaring Appellant as a

vexatious litigant should be vacated.

63

L. Issue Nine:

Trial court abused its discretion in signing the August 19, 2014

order declaring Appellant vexatious because the trial court

district judges had not responded or acted on Appellees

jurisdictional issues or Appellant's special exceptions prior to

assigning Appellee Willing motion to declare Drake a vexatious

litigant and prior to actually signing ofthe motion

The trial court failed to address important motions filed by the

majority of the defendant's concerning jurisdiction. On June 17, 2014,

Defendant Ginsberg filed a motion to transfer for lack of subject mater

jurisdiction. On July 11,2014Defendant Kastl lawfiled a motion to transfer.

On July 8, 2014 and July 17, 2014 Defendant Vikki Ogden filed a motion to

transfer. (CR: Vol 1, P: 50—55; P: 125—133; P: 140—149).

Appellant answered those motions by responding on August 24, 2014

by filing special exceptions, motion to compel, motion for evidentiary

hearing. But none of those motions that were filed by the Appellant or

motions filed by any ofthe defendants that were important to the trial court

jurisdiction were heard or acted upon by any by the trial court before the

visiting judge was assigned to hear and rule on Appellee Willing's motion to

declare Drake as a vexatious litigant (CR: Vol 1, P: 534—543; P: 234

244; 245—250). And when jurisdiction is an issue, itwas improper for the

64

trial court to assign Judge Charles Ramsay to preside over or hear Appellee

Willing motion until those issues where decided.

All of the district trial court judges erred and abused their discretion

by not acting on the defendant's motions to transfer, motions to quash, and

motion to recuse (CR: Vol 1, P: 521—526).

Whether a court has subject-matter jurisdiction is a question of law.

Texas Depft of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex.

2004). When jurisdictional facts are disputed, the manner in which the trial

court analyzes the jurisdictional challenge depends on whether the disputed

jurisdictional fact issues do or do not implicate the merits of the plaintiffs

case. See University of Tex. v. Poindexter, 306 S.W.3d 798, 806-07 (Tex.

App.—Austin 2009, no pet.). If the disputed jurisdictional issue or facts do

not implicate the merits, the court—not the jury—must make the necessary

factual findings to resolve the jurisdictional issue. See Miranda, 133 S.W.3d

at 226 ('"Whether a district court has subject matter jurisdiction is a question

for the court, not a jury, to decide, even if the determination requires making

factual findings, unless the jurisdictional issue is inextricably bound to the

merits ofthe case.1") (quoting Cameron v. Children's Hosp. Med. Ctr., 131

F.3d 1167,1170 (6th Cir. 1997)). Martin v. National Instruments Corp.,

65

Court of Appeals, [3rd Dist] 2013 Tex. App. Lexis 7021. However, a trial

court cannot ignore jurisdictional facts as it has done in this case and assign

a visiting judge to hear Appellee Willing's motion to declare Appellant a

vexatious litigant—especially under the given facts. Venable v. Sherbet,

Court ofAppeals, [5th Dist] 365 S.W.3d 359; 2010 Tex. App. Lexis 9083.

The trial court conducted no hearings pursuant to the defendant's

objection to jurisdiction, nor did itmake any rulings concerning jurisdiction

before assigning the visiting judge to hear the Appellee Willing motion to

declare Appellant as avexatious litigant. And though Appellee Willing filed

a plea to the jurisdiction, the trial court never addressed even that issue.

Furthermore, Appellee Willing has said in open court through her counsel

and in her pleadings that the Appellant's claims against her have been

falsely made. A plea to the jurisdiction cannot be sustained where the

contention is to the effect that the plaintiffhas falsely stated a claim, which,

in fact, is nonexistent, for this is amatter of defense on the merits. City of

Austin v. Savetownlake.Org, Court of Appeals of Texas, [3rd Dist] Austin

2008 Tex. App. Lexis 6471. Appellee Willing did not support its plea with

relevant facts, but inthis case more importantly, the trial court did not act on

any parties plea to jurisdiction—which is error and an abuse of discretion.

66

The trial court failed to resolve factual issues before assigning Charles

Ramsay to hear the Appellee Willing motion to declare Appellant as a

vexatious litigant. This failure is an important preempt to a hearing such as

declaring a party as a vexatious litigant or to any motions, which would

suspend or dismiss a plaintiffs cause of action.

All ten (10) district judges in Travis County failed to take even the

minimum action. There was never a hearing on Appellant's motion to

recuse, and until that Motion is determined no judge can rule or carry out

any orders. The sham orders signed by one district court judge and one

County court judgewill not overcome the untimeliness of their sham orders,

and the fact that a visiting judge was appointed improperly before Appellant

motion to recuse was decided is an even greater issue because the visiting

judge could not be assigned until the recusal was procedurally disposed of

properly. Thus trial court's orders signed on August 19,2014 are void.

Appellant directs the Court's attention to Appellee Willing order.

What the Appellee Willing was attempting to do is cover apparently a

recusal and vexatious hearing together, and neither worked properly. (CR:

Vol 1, P: 547—555). Thus, the sham order of referral, sham order of

recusal, and the order declaring Appellant a vexatious litigate each order

67

signed on August 19, 2014 should be vacated and sanctions filed against

Seanna Willing, and Scot Graydon for conspiracy and perjury.

M. Issue Ten:

Trial court abused its discretion in signing the August 19, 2014

order declaring Appellant vexatious because Appellee Willing's

motion to declare Drake as a vexatious litigant was procedurally

defective

Appellee Willing's motion to declare the Appellant, as a vexatious

litigant is procedurally defective as already pled herein to this Court.

Appellee Willing attorney failed to conference with the Appellant. Rather

than taking the proper steps to correct the motion of conferencing with

Appellant and filing an amended motion to declare the Appellant a vexatious

litigant, Appellee Willing's attorney Scot Graydon decided to commit fraud

upon the court and lied to the trial court. There are other procedures that

Willing fail to undertake to declare Appellant Drake as a vexatious litigant.

Scot Graydon did not conference with the Appellant by mistake, he

did so knowingly to avoid letting the Appellant know he was going to file

the motion, and to avoid having his motion denied pursuant to local rules.

When Mr. Graydon heard judge Meachum say onAugust 7,2014, that the

68

Travis County local rules requires a conference he hurriedly tried to repair

his intentional mistake. But because he failed to follow proper procedure and

Travis County local rules, Graydon's plans did not produce what he had

schemed. Moreover, Appellee Willing not only failed to conference with

Appellant but she failed to give adequate time for the Appellant to respond

to her motion to declare him as avexatious litigant. On August 7, 2014 Scot

Graydon claims that he conference with the Appellant and gave Appellant a

copy of his motion to declare him as avexatious litigant, which again is not

true. The hearing on that motion was held on August 19, 2014 which is only

12 days from Mr. Graydon's claims of when the Appellant was served,

which was not adequate time to properly respond to the motion. Similar to a

motion for summary judgment, a motion to declare a person, as a vexatious

litigant will alter a lawsuit, and in many cases result in a dismissal. Under

the Tex. R. Civ. P., a party must give the party who's being served a

summary judgment 21 days notice. The purpose of notice provision is to

give the party opposing the motion a full opportunity to respond on the

merits. Stephens v. Turtle Creek Apartments, Ltd., 875 S.W.2d 25, 26 (Tex.

App—Houston [14th Dist.] 1994, no writ). Likewise, Appellant should had

69

been given a 21 days notice. In addition, the trial court had dismissed the

case and the Appellant had no warning that the hearing was going to take

place and be heard.

Appellee Willing advised Judge Ramsay through her legal counsel in

the trial court that Appellant's motion to recuse does not effect him (Judge

Ramsay) because [he] (Judge Ramsay) was not named in the recusal. (RR:

Vol 3 of 4, 13—23). Willing's attorney goes on to say that there is good

cause for the trial court to continue in light ofAppellant's motion being filed

(RR: Vol 3 of 4, 19—23). Pursuant to Tex. R. Civ. P., once a judge has a

motion to recused filed against him or her, the case cannot be heard by

another judge until that motion to recuse is decided, whichneveroccurred in

this case. Willing horribly provides the trial court with justification for her

ignoring well-seated case law. Appellee Willing goes on to advise the trial

court that Appellant's motion to recuse is defective, however, case law

reinforces that this is not areason for acourt to ignore TRCP 18a, 18b. (RR:

Vol 3 of 4, P: 19, L: 7—13). Appellee Willing further argues to the trial

court that if the trial court declares Appellate a vexatious litigate and later

decides that this was improper that there is no harm caused to the Appellate.

Ofcourse, Appellate has already been substantially harmed in many ways

70

after Judge Ramsay wrongfully declared him a vexatious litigate, which he

will sue all parties involved in federal court including Judge Charles

Ramsay. (RR: Vol 3of 4, P: 22, L: 7—19). Appellee Willing admits that she

failed to conference with the Appellate but somehow believes that she cured

the defect by committing perjury to the trial court through her legal counsel.

(RR: Vol 3 Of 4, P: 44, L: 23—25, and P: 45:1—25).

The trial court made procedurally fatal decisions of appointing a

visiting judge to hear a motion before addressing important pending issues,

especially Drake's motion to recuse. And even though the Appellant

addressed those issues before the trial court, the visiting judge erred by not

stopping the hearing. Judge Charles Ramsay erred by not recusing himself

because he was not properly assigned to hear the motion to declare

Appellant as a vexatious litigant. The Judge Ramsay erred by continuing to

hear Appellee Willing's motion to declare the Appellant as a vexatious

litigant in light of the fact that the Appellant was not allowed to have

witnesses that he chose to testify at the August 19, 2014 hearing to declare

him as a vexatious litigant. The trial court's order of recusal filed into the

trial court's record was defective. The trial court's order of referral filed into

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the trial court's record was likewise defective. Judge Charles Ramsay was

improperly assigned to hear Appellee Willing's motion by a court

administrator and not a judge. Then finally, Scot Graydon's perjury was fatal

to the order the visiting judge signed on August 19,2014.

72

N. Issue Eleven:

Appellee Seanna Willing alleged immunity did not apply and or if

it did Appellee Willing the trial court erred in not dismissing her

from the Appellant cause of action

Appellant argue that Willing's sovereign immunity did not deprive the

trial court of jurisdiction because Appellant alleged that his rights were

violated by Willing pursuant to an unconstitutional law, and action which

did not require the State's consent in order to sue. On page 34 of Appellant's

original petition (CR: Vol 1, P: 38) Drake pleads race discrimination and

conspiracy. Willing's legal counsel admitted on August 19, 2014 that Drake

underlying charges against Appellee Willing were under 42 U.S.C. 1983

violations ofhis constitutional rights (RR: Vol 3 of 4, P: 27, L: 1-9).

Drake also pled irreparable and continuing harm caused by the actions

of Appellee Seanna Willing (CR: Vol 1, P: 39). In particularly, Appellant

requested that Appellee Willing turn over to the trial court his compliant

against Judge Martin Hoffman (CR: Vol 1, P: 40). Appellant asks the trial

court for a permanent injunction against Willing abusive ways, "Likewise.

Seanna Willing aided and abetted state judge Martin Hoffman in covering up

his discriminative acts against Drake." Willing also assisted Judge Hoffman

73

in concealing his federal felony offenses, (obstruction ofjustice) thus aiding

a sitting judge in the commission of an actual felony crime.

The Appellant requested the trial court to order Appellee Willing to

properly investigate claims made by him and other nonwhites (CR: Vol 1,

P: 45). Sovereign immunity generally protects the State from lawsuits for

damages absent legislative consent to sue the State. However, when a party's

rights have been violated by the unlawful acts of a state official or by a state

agent acting pursuant to an unconstitutional law, the suit is not an action

against the State requiring the State's consent. Declaratory relief is the

proper remedy when challenging the constitutionality of a statute and that

"plaintiffs" are not required to obtain the State's consent before suing for

declaratory judgment.

The trial court never addressed or ruled on Willing's plea to

jurisdiction, as such Willing is not protected by just filing the plea. "The

truth ofthe plaintiff's allegations is at issue only if the defendant pleads and

proves that the allegations were fraudulently made to confer jurisdiction on

the court." Texas State Employees Union/CWA Local 6184 v. Texas

Workforce Comm'n, No. 3-99-171-CV, slip op. at 5. Sovereign immunity

generally protects the State from lawsuits for damages absent legislative

74

consent to sue the State. See Federal Sign v. Texas S. Univ., 951 S.W.2d

401, 405 (Tex. 1997). However, when aparty's rights have been violated by

the unlawful acts of a state official or by a state agent acting pursuant to an

unconstitutional law, the suit is not an action against the State requiring the

State's consent. See Texas Workers' Compensation Comm'n v. Garcia, 862

S.W.2d 61, 72 (Tex. App.-San Antonio 1993), rev'd on other grounds, 893

S.W.2d 504. This is true even though the judgment may be binding on the

State. See Id. Because Appellant's rights had been violated by Appellee

Willing, a state official acting pursuant to an unconstitutional statute, he

properly brought suit to remedy the violation or prevent its occurrence.

Printing Indus., 600 S.W.2d at 265-66. Appellee Willing filed a plea to the

trial court's jurisdiction to determine the subject matter of the cause of

action—however, the trial court as stated herein never addressed that issue.

The Texas Supreme Court has held that private parties may seek

declaratory relief against government officials who allegedly act without

legal or statutory authority. IT-Davy, 74 S.W.3d at 855; see Tex. Educ.

Agency v. Leeper, 893 S.W.2d 432, 37 Tex. Sup. Ct. J. 968 (Tex. 1994).

TEX. CONST. Art. I, § 19. Texas courts have traditionally followed

contemporary federal due process interpretations of procedural due process

75

issues. Univ. ofTex. Med. Sch. at Houston v. Than, 901 S.W.2d 926, 929, 38

Tex. Sup. Ct. J. 910 (Tex. 1995) see U.S. CONST, amend. XIV. The Texas

Supreme Court has held that, "where a person's good name, reputation,

honor, or integrity is at stake because of what the government is doing to

him, the minimal requirements of due process must be satisfied." Id. at 930

(citing Goss v. Lopez, 419 U.S. 565, 574, 95 S. Ct. 729, 736, 42 L. Ed. 2d

725 (1975)). As already argued, the minimal due process rights of the

Appellant were violated. A plea to the jurisdiction contests the trial court's

authority to determine the subject matter of the cause of action. State v.

Benavides, 772 S.W.2d 271, 273 (Tex. App.—Corpus Christi 1989, writ

denied).

When an affirmative claim for relief is filed by a governmental entity,

immunity from suit no longer completely exists for the governmental entity.

The Uniform Declaratory Judgment Act (UDJA) provides a waiver of

sovereign immunity, as in the case of Drake v. Seanna Willing, because

Appellee Willing failed to perform a purely ministerial act [investigate

Judge Hoffman] properly when she possessed absolute proof that Judge

Martin Hoffman treated the Appellant differently than he did white

attorneys. Appellee Willing also had the testimony of an officer ofthe court

76

that testified under oath that Judge Hoffman was hostile toward Appellant

Drake. If Willing's plea to jurisdiction was meant to dismiss the Appellant's

claim against her, then she did not have the right to file a motion to declare

Appellant as a vexatious litigant because the trial court did not have subject

matter jurisdiction over her. However, when Willing filed her motion to

declare Drake as a vexatious litigant, that in itself removed any immunity

because she was seeking affirmative relief outside ofher plea to jurisdiction.

Traditionally, appellate courts construe the pleadings liberally in favor

ofthe plaintiff, or in this case: the Appellant. Drake's intent was for the trial

court to review Willing's alleged investigation into Judge Martin Hoffman

and for the Appellee Willing to turn over to the trial court all paperwork and

results from that investigation and an order from the trial court—ordering

Willing to investigate nonwhites claims against judges, white judges in

particularly, in a fair and proper manner. Appellee Willing could not had

received better evidence from any complainer than what she received against

Judge Martin Hoffinan, but Willing was still unable to find any need to

correct Hoffman's behavior because of racial discriminative ways against

the Appellant and her conspiring with Judge Hoffman, and her efforts to

cover up Judge Hoffman's criminal behavior of assisting white attorney with

77

their obstruction of justice. These acts waived any immunity that Appellee

Seanna Willing or Judge Martin Hoffinan may have had as a state

employees or officers. Willing's affirmative defense claim of declaring

Appellant as a vexatious litigant waived immunity—thus, Willing's failed to

prove the first prong of Chapter 11 of the Texas Practice & Remedies Code,

because she failed to prove to the trial court that the Appellant could not

prevail against her. Willing only offered the fact of her alleged immunity as

to the reason Appellant could not prevail against her—which in this case,

she does not have immunity and or its waived. (RR: Vol 3 of 4, P: 26, L:

21—25, P: 27, L: 1—15).

Willing's counsel said in open court that Appellant was suing

Appellee Willing in her individual capacity also, which is true. Graydon

pointed out that in Drake's original petition under prayer, Appellant

requested: "Wherefore, Plaintiff prays for a judgment against Defendants

and each of them as follows." Appellant asked for damages against each

defendant which Willing was included. (CR: Vol 1, P: 47-48). Rather than

ask for another continuance the Appellant requests that the Court orders the

court reporter to amend the transcript. And since Willing is guilty of

conspiring with statejudges, ignoring compelling evidence, and ofracial

78

discrimination. [Persons sued in their individual capacities, on the other

hand, may not rely on sovereign immunity protections for claims against

them in that capacity, although they may assert the defense of official

immunity.] Appellant argues that Willing conduct was not lawful and that

she failed the "good-faith" test standard in light of her conduct. In order

words, a reasonably prudent state official in Willing's position with the

amount of evidence that the Appellant provided to Willing would not have

came to the same conclusions. "Defendants claiming immunity are subject

to suit if the "plaintiff" sought monetary damages from them in their

individual capacity. Id. and n. 10. Brown v. Brown, U.S. Court of Appeals

6th Cir. 1990 U.S. App. Lexis 21851. Neither the trial court nor judge

Charles Ramsay failed to resolve the Appellant's injunction or declaratory

issues or addressed Appellee's plea to jurisdiction or before declaring him a

vexatious litigant. An applicant for a temporary injunction must establish

that the party has aprobable right to the relief sought and that the party will

suffer aprobable injury in the interim, pending atrial on the merits. Walling

v. Metcalfe, 863 S.W.2d 56, 57, 37 Tex. Sup. Ct. J. 18 (Tex. 1993); City of

Friendswood v. Registered Nurse Care Home, 965 S.W.2d 705, 707 (Tex.

App.-Houston [1st Dist.] 1998, no pet.).

79

There is no question that Appellee Willing will engage in the same

discriminative ways, not only toward Appellant but most likely toward any

nonwhites who complain about white state judges, and non-attorneys who

may file claims in her office against state judges. There is more than a

probability that the Appellant will suffer future and similar harmful conduct

and scheming by Appellee Willing's if a court does not issue an injunction

against her. And finally an injunction is an equitable remedy, not a cause of

action—thus, Willing failed to prove that Appellant could not prevail against

her in an equitable remedy. Brown v. Ke PingXie, 260 S.W.3d 118, 122

(Tex. App.—Houston [1st Dist.] 2008, pet. denied). A state official does not

enjoy immunity when he or she has committed crimes or assisted others like

Judge Hoffman in his aiding of obstruction ofjustice, by impeding or hiding

or assisting Judge Hoffman by not properly investigating a criminal act by a

state judge which is her duty. Willing became part of Judge Hoffman's

crime by her actions which grants her no immunity for those actions. She

vacated her immunity and suffocated her reasons she provided the trial court

as to why the Appellant could not prevail against her (RR: Vol 3 of 4, P: 26,

L: 21—25, P: 27, L: 1—15).

80

In closing the trial court further erred in the following additional

ways: (1) the trial court erred when it signed the order declaring Drake a

vexatious litigant when Appellant received notice that the court had singed

his motion for nonsuit and Willing's motion was not on the court's docket.

Appellant did not receive proper notice; (2) the trial court erred when it

signed the order declaring Appellant a vexatious litigant because the trial

court had a ministerial duty to ensure that the Appellant was provided with

the requisite advance notice of that hearing pursuant to section 11.053(a) of

the Texas Civil Practice and Remedies Code—this did not occur in

Appellant case; (3) the evidence was legally and factually insufficient to

support the trial court's order declaring Drake a vexatious litigant because

Willing failed to comply with the first prong ofthe Tex. Civ. Prac. & Rem.

Code and for all other reasons cited herein; (4) the trial court erred when it

failed to file the requested findings of fact and conclusions of law (CR: Vol

1, P: 604—606); (5) the trial court erred when it failed to have a hearing on

Appellant motions to reconsider the trial court's orders declaring Drake a

vexatious litigant (CR: Vol 1,608—639); (6) the trial court erred as a matter

of law when it signed the orders declaring Drake a vexatious litigant because

it failed to apply the "liberal construction" standard to hispleadings.

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CONCLUSION

The trial court failed in the ways described herein to even conduct

reasonably impartial hearings in regards to the Appellant Drake.

Appellee Willing did not meet its burden in establishing that

Appellant had no reasonable probability of success in prevailing against her,

which is the first prong in declaring a plaintiff vexatious, pursuant to

Chapter 11 ofthe Texas Practice & Remedies Code.

The Trial Court erred and abused its discretion in the ways described

as pled herein, which were substantial. The visiting judge, Charles Ramsay

had no authority to sign orders or act on Appellee Willing's motion to

declare him vexatious. Appellant Drake requests that the Court vacate the

following orders that were signed on August 19, 2014 pursuant to cause

number: D-l-GN-14-001215, which would include all orders the Appellant

has directed this Court to in this brief, including: the August 19, 2014 order

declaring Appellant Drake as a vexatious litigant with prefiling order; the

August 19, 2014 orders of referral and recusal that this Court has been

directed to in this brief, and that these orders should be stricken from the

record and vacated for the reasons pled herein.

82

Appellant finally requests all and any other relief that the court may

grant him that he may show justification.

Respectfully submitted,

Appellant

Pro-Se

P.O. Box 833688

Richardson, Texas 75083

214-477-9288

83

CERTIFICATE OF SERVICE

I hereby certify that on March 2, 2015, I served the foregoing

"APPELLANT' BRIEF," by causing one paper copy Hand Delivered to the

Clerk of the Court of the 3rd Court of Appeals Austin, and one copy was

delivered to Appellee Willing legal counsel, Scot Graydon by U.S. mail. All

other parties named herein advised Appellant that they were not a part ofthis

appeal because Appellant filed a motion for nonsuit and it was granted.

Scot Graydon

•TH

300 West 151" Street, Ste 2

Austin, Texas 78701

512-475-4413

David Harris [Refused copy because case nonsuited at trial level]

300West 15™ Street, Ste 2

Austin, Texas 78701

Telephone: 512-475-4413

Kastl Law P.C. [Refuse to respond-//**/**/ delivered copy]

4144 N. Central Expressway

Ste 300, Dallas, Texas 75204

Telephone: 214-821-0230

Vikki Ogden [Frank Waite refused copy because case nonsuited at trial]

411 Elm Street, Ste 500

Dallas, Texas 75202

Telephone: 214-653-7568

Appellant Drake

84

CERTIFICATE OF COMPLIANCE

1. EXCLUSIVE OF THE EXEMPTED PORTIONS, THE BRIEF

CONTAINS 14.980 words.

2. THE BRIEF HAS BEEN PREPARED:

A. In proportionally spaced typeface using:

Software Name and Version: Microsoft Word 2008

in Times Roman font, 14 point for text and 12 point for footnotes.

Lppellant Drake

Pro-se

March 2,2015

85

APPELLANT'S APPENDIX EXHIBITS

ACTUAL EXHIBIT'S ARE SUBMITTED TO THIS

COURT IN A SEPARATE BOUND FOLDER

1. EXCERPT FROM APPELLANT'S ORIGINAL PETITION FILED

IN THE TRIAL COURT SHOWING THAT APPELLANT SUED

WILLING AS AN INDIVIDUAL (REQUESTING DAMAGES);

2. EXCERPT FROM DEFENDANT SEANNA WILLING MOTION

HER (CERTIFICATION OF CONFERENCE) WHERE WILLING

ATTORNEY SCOT GRAYDON WAS UNTRUTHFUL TO THE

TRIAL COURT IN SAYING THAT HE CONFERENCE WITH

APPELLANT AND DRAKE RESPONDED BY SAYING,

"PLAINTIFF IS OPPOSED;"

3. SHAM ORDER OF REFERRAL BY TRIAL COURT;

4. SHAM ORDER OF RECUSAL BY TRIAL COURT;

5. ORDER ON APPELLANT'S MOTION FOR NONSUIT;

6. APPELLANT'S MOTION FOR NONSUIT;

7. APPELLEE'S ORDER DECLARING APPELLANT AS A

VEXATIOUS LITIGANT;

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8. APPELLANT AMENDED RESPONSE TO APPELLEES

DECLARING HIM AS A VEXATIOUS LITIGANT;

9. RECORDERS RECORD OF THE AUGUST 19, 2014 HEARING

TO DECLARE APPELLANT AS A VEXATIOUS LITIGANT

BEFORE JUDGE CHARLES RAMSAY.

87

No:03-14-00665-CV

IN THE COURT OF APPEALS FOR

THE THIRD JUDICIAL DISTRICT OF TEXAS

AT AUSTIN, TEXAS

ERIC DRAKE

Plaintiff-Appellant

v.

KASTL LAW FIRM P.C. ET AL f^ECEiVED

Defendant—Appellee

ON APPEAL FROM THE 200™ DISTRICT COURT

TRAVIS COUNTY, AUSTIN, TEXAS

Trial Court No. D-l-GN-14-001215

APPENDIX EXHIBITS

Eric Drake

Pro-Se

Appellant

PO Box 833688

Richardson, Texas 75083

214-477-9288

ORAL ARGUMENT REQUESTED

</

AFFIDAVIT OF ERIC DRAKE

STATE OF TEXAS §

§

COUNTY OF DALLAS §

prj

BEFORE ME, the undersigned authority, came and appeared ERIC

£»|

DRAKE, who being duly sworn, stated as follows:

IS

"My name is ERIC DRAKE. I am above the age of eighteen years of

age and I am fully competent to make this affidavit. I am the Appellant in

this appeal. I have reviewed the Court's file in this matter. I have personal

knowledge of the facts stated herein and such matters are true and correct.

Specifically, I swear and/or affirm that the attached are true and correct

copies of the following under the penalty of perjury:

APPENDIX EXHIBITS

1. EXCERPT FROM APPELLANT'S ORIGINAL PETITION FILED

« IN THE TRIAL COURT SHOWING THAT APPELLANT SUED

WILLING AS AN INDIVIDUAL (REQUESTING DAMAGES);

1 2. EXCERPT FROM DEFENDANT SEANNA WILLING MOTION

HER (CERTIFICATION OF CONFERENCE) WHERE WILLING

r ATTORNEY SCOT GRAYDON WAS UNTRUTHFUL TO THE

I TRIAL COURT IN SAYING THAT HE CONFERENCE WITH

APPELLANT AND DRAKE RESPONDED BY SAYING,

p "PLAINTIFF IS OPPOSED;"

3. SHAM ORDER OF REFERRAL BY TRIAL COURT;

*•» 4. SHAM ORDER OF RECUSAL BY TRIAL COURT;

* 5. ORDER ON APPELLANT'S MOTION FOR NONSUIT;

r 6. APPELLANT'S MOTION FOR NONSUIT;

pi

7. APPELLEE'S ORDER DECLARING APPELLANT AS A

VEXATIOUS LITIGANT;

8. APPELLANT AMENDED RESPONSE TO APPELLEES

DECLARING HIM AS A VEXATIOUS LITIGANT;

ipi

9. RECORDERS RECORD OF THE AUGUST 19, 2014 HEARING

si TO DECLARE APPELLANT AS A VEXATIOUS LITIGANT

BEFORE JUDGE CHARLES RAMSAY

si

FURTHER AFFIANT SAYETH NOT.

Eric Drake

+A

Subscribed and sworn to me on this the oJS> day of February, 2015 to certify

which, witness my hand and seal of office.

NOTARY PUBLIC IN AND FOR

THE STATE OF TEXAS

KEVIN BILOTTI

MyCommission Expires

December 12, 2018

Exhibit"!"

Excerpt from Appellant's Original Petition

Filed with the Trial Court

.^alleged for all purposes andincorporated herein with the same force andeffect as se forth

verbatim. Plaintiff further shows as follows:

a). By extreme and outrageous behavior of depriving the Plaintiffof a just and fair

timely settlement by resorting to misrepresenting facts, and fraud.

b). By extreme and outrageous behavior ofKastl law firm as pled herein;

c). By extreme and outrageous behaviorofVikki Ogden's as pled herein;

d). By extreme and outrageous behaviorofCRCB as pled herein;

e). By extreme and outrageous behavior ofCarl Ginsberg's as pled herein;

f). Defendants conduct proximately caused severeemotional distress to the Plaintiff;

g). Plaintiff's severe emotional distress cannot be remedied by any other cause of

action.

h). Defendant's wrongful conduct caused the damages named herein, and those

damages were intentionally sought by the Defendant to cause increasedpain.

112. As a result of the above Defendants intentional inflictions to the Plaintiff, the

Plaintiff has suffered, and will continue to suffer, actual damages, loss income and benefits,

humiliation and emotional distress. Plaintiff has no adequate remedy at law and therefore

declaratory and injunctive relief is appropriate to redress the wrongs committed by the above

Defendants. The intentional emotional distress cause by the Defendants were aggravated by the

kind of willfulness, conspired, wantonness, fraud, malicious acts, fraud committed through

interstate commerce, willingness to make false and misleading statements, and malice for which

the law allows imposition ofexemplary damages.

PARYER FOR RELIEF

Wherefore, Plaintiff prays for a judgment against Defendants and each of them as

follows:

PLAINTIFFS ORIGINAL PETITION/REQUEST FOR INJUNCTIVE RELIEF PAGE 43

47

i. Special damages for Plaintiff Eric Drake in an amount to be determined at trial;

2. General damages for Plaintiff Eric Drake in an amount to be determined at trial;

3. Punitive Damages in an amount to be determined at trial;

4. Cost of suit;

5. Attorney fees for preparationand trial;

6. Attorney fees ifthere is to be an appeal to the Supreme Court ofTexas;

7. Incidental damages;

8. Past mental anguish;

9. Future mental anguish;

10. Past and future emotional distress;

11. Prejudgment interest;

12. For such other and further relief as the court deems just and proper.

DEMAND FOR JURY TRIAL

Plaintiff hereby demands trial by jury as to all issues.

PRAYER

WHEREFORE, PREMISES CONSIDERED, Plaintiff prays that the Defendants be cited

to appear and to answer herein and that upon final hearing, the Court enter judgment in favor of

Plaintiff and against each and every Defendant in the above entitled, numbered and styled cause

of action for compensatory damages, punitive damages, attorney fees, cost of court, pre-and post

judgment interest at the highest rate allowed by law and for such other further relief, general and

special at law and in equity to which Plaintiff may be justly entitled.

PLAINTIFFS ORIGINAL PETITION/REQUEST FOR INJUNCTIVE RELIEF PAGE 44

48

Exhibit "2"

Excerpt from Defendant Seanna Willing's

Motion, (Certification of Conference) where

Scot Graydon is untruthful to the trial court in making

The statement that "Plaintiff is opposed"

Scot Graydon never asked that important question to Drake

p^i?

P.O. Box 12548, Capitol Station

Austin, Texas 78711-2548

r (512) 463-2120/FAX (512) 320-0667

Attorneys for Defendant Seana Willing

CERTIFICATE OF CONFERENCE

At 9:50 p.m. on August 6, 2014, the undersigned conferred in person in court with Mr.

Eric Drake, PlaintiffPro Se, regarding the underlying Motion and the setting ofthe hearing, and

while Plaintiff is opposed to Defendant Seana Willing's Motion to Declare Eric Drake a

Vexatious Litigant, he indicated that he was aware of the hearings on the various Motions to

Declare Him a Vexatious Litigant set on August 19, 2014 at 9 a.m. at the address in this

I Supplemental Notice. Mr. Drake was provided with a copy of Defendant Seana Willing's

Motion to Declare Eric Drake a Vexatious Litigant and the original Notice ofHearing for that

Motion, and he indicated that he would be physically present in court for the hearings on that

P date.

/s/ Scot M. Graydon

SCOT M. GRAYDON

Assistant Attorney General

Ml

W\

518

Exhibit "3"

Sham Order of Referral by trial court

Notice sent: Final Interlocutory None_ DC BK14240 PG83

Disp Parties..

Dlspcode: C^

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ERIC DRAKE § IN THE DISTRICT COURT OF •*-• I—

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Plaintiff; § s

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KASTL LAW P.C., ET AL § !*S

§ uu ~ E

Defendant. § 200TH JUDICIAL DISTRICT

Order of referral t o regional presiding judge

The Court, having today received Mr. Eric Drake's attached motion, ORDERS that

Plaintiffs' Motion to Recuse is referred to the Regional Presiding Judge.

Signed this 19th day of August, 2014.

546

HsJ

P*

PS(

Exhibit "4"

Sham Order of Recusal by trial court

si

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mi

i

r

r

Notice sent Final interlocutory None DC BK14240 PG78

jazz-

CAUSE NO: D-l-GIN-14-001215

ERIC DRAKE § IN THE DISTRICT COURT

§

Plaintiff § TRAVIS COUNTY, TEXAS

VS

§

§§ 200™ JUDICIALDISTRICT

KASTL LAW P.C. ET AL

Defendants

ORDER ON PLAINTIFF'S MOTION TO RECUSE

After considering Plaintiffs Eric Drake, Motion to Recuse the response, the

pleadings and arguments of counsel, the following judges: Samuel T. Biscoe, Ron Davis, Bruce

Todd,GeraldDaugherty, MargaretGomez;DavidPhillips, Eric Shepperd, Scott Jenkins, Rhonda

Hurley, Darlene Byrne, GiselaD. Triana, Amy ClarkMeachum, John K. Dietz, Lora Livingston,

Stephen Yelenosky, Tim Sulak, Orlinda Naranjo, James L. Arth, Leonard Saenz, J. Andrew

Hathcock, John Hathaway, John Lipscombe, Mike Denton, Nancy Hohengarten, Brandy Mueller,

Elisabeth A Earle, Carlos H. Barrera, Cliff Brown, David Wahlberg, Karen Sage, David Crain,

Julie Kocurek, Brenda Kennedy, Jim Coronado, and Leon Grizzard.

o AGREES to recuse herself or himself

o REFUSES to recuse herself or himself and refer this motion to another judge to

hear the matter.

Signed this f\ day of (AA^y^iJ. j 2014, Austin, (Travis County)

Texas.

HONO

Solo Page

545

IfSV

pS

Exhibit "5"

Order on Appellant's Motion for Nonsuit

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fs

p?»

ps\

p,

DC BK14231 PG367 R!td InThe DistrictCourt

of Travis County, Texas

EM AUG H 20ft

CAUSE NO: D-l-GIN-14-001215

At OpCtI Pn

ERIC DRAKE § IN THE DlSTRl6T%?glftBW*efl<te^

Plaintiff TRAVIS COUNTY, TEXAS

VS

KASTL LAW P.C. ET AL 200™ JUDICIAL DISTRICT

Defendants

ORDER ON PLAINTIFFS MOTION FOR NONSUIT

•Having reviewed Um Plaintiffs motlort for nonSUlt, MM the fan Uiat lite DUindnnti did.

t conftmnci witli Uiu PlalHUff pi101' 10 filing Uipii motions iulu Un Cowl's leTiUwhv m ' / * tu ,./

THE COURT GRANTS Plaintiffs motion for nonsuit, nonsuiting all defendants in the

ve entitled, numbered, and styled cause of action.

This the n _day of August, 2014, Austin (Travis County) Texas.

HONORABLE

Nntfcrc ncrr Hnrri—Inter lotuluiy None

Disp Parties: A U

Dlspcode: cvo/as HUl^C

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Judge_LiL_ Clerk l2^T

544

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Exhibit "6"

Appellant's Motion for Nonsuit

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CAUSE NO: D-l-GIN-14-001215

ERIC DRAKE § IN THE DISTRICT COURT g £

§

Plaintiff § TRAVIS COUNTY,TEXAS g^

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§ .- >

§ .2

KASTL LAW P.C. ET AL § 200

TH

JUDICIAL DISTRICT £

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Defendants

PLAINTIFFS MOTION FOR NONSUIT

TO HONORABLE SAID JUDGE:

COMES NOW, Plaintiff, Eric Drake and respectfully moves this Court for nonsuit of the

above cause of action without prejudice.

1. Defendants have filed several motions with the Court Motions to transfer,

motions to determine the Plaintiff as a vexatious litigate and motions to change venue. None of

the defendants conferenced with the Plaintiff prior to filing their motions with the Court, thus

violating the local rules. And because there are no pending motions that the Court can hear, for

the reason that defendants motions were Hied improperly and in violation of the local rules and

TRCP, Plaintiff nonsuit motion should be granted or he wiU file appeal to correct.

2. Plaintiff finds that the Court have possibly conspired against him with the

defendants. Since the defendants have failed to conference with the Plaintiff the Court must deny

their motions, though they may re-file but their refilling will come too late. Plaintiff therefore

files this nonsuit without prejudice. Plaintiff has not witnessed such corruption as in Travis

County courts judges which exceeds Dallas County, and those issues will addressed with further

litigation.

WHEREFORE, PLAINTIFF, Eric Drake pray that the Court nonsuit the above cause of

action without prejudice of its refilling.

Respectfully submitted;

Eric Drake

PO Box 25565, Dallas, Tx 75225

214-477-9288

527

CERTIFICATION OF CONFERNECE

Plaintiff attempted to conference with defendants and or their respected attorneys but was

unable to reach them regarding the Plaintiffs motion for nonsuit. Plaintiff files this motion for nonsuit

for the Court's consideration.

Eric Drake

CERTIFICATION OF SERVICE

I HEREBY certify that a true and correct copy of the foregoing document has been

delivered to the opposing attorneys of record via US Mail on this the />£— of August,

2014.

Eric Drake

528

Exhibit "7"

Appellees Order Declaring Appellant

As a vexatious litigant

DC BK14237 PG16

^ ,„ S&£ 1

CAUSE NO. D-l-GN-14-001215 og S*

ERIC DRAKE, § IN THE DISTRICT COURT OF | f S

Plaintiff, § Qo Z?

§ w) CO

v. § TRAVIS COUNTY, TEXAS eg ^

§ "§£ 1*1

KASTL LAW P.C., SEANA § 1° <I

WILLING, CARL GINSBERG, AND §

THE COURT OF REPORTERS §

CERTIFICATION BOARD. §

Defendants. § 2001" JUDICIAL DISTRICT

ORDER DECLARING PLAINTIFF A VEXATIOUS LITIGANT

On August 19, 2014, in accordance with Tex. Civ. Prac. & Rem. Code § 11.053, this

Court held a hearing on Defendant Seana Willing's Motion to Declare Eric Drake a Vexatious

Litigant. Plaintiffhas filed a Motion to Recuse and seeks to recuse every DistrictJudge in Travis

County- cJ^^^l*M u ^'^cecviZ

In accordance with Tex. R. Civ. P. 18a(f)(2)(A), thia Court-"must take no further action

A

in the case until the motion has been decided, except for good cause stated in writing or on the

record."

This Court FINDS that good cause exists for hearing Defendant Seana Willing's Motion

to Declare Eric Drake a Vexatious Litigant, noticed for hearing on August 19, 2014 at 9 a.m.

The good cause supporting proceeding with said Defendant Seana Willing's Motion to Declare

Eric Drake a Vexatious Litigant includes the following:

1. Plaintiff Eric Drake was notified that on August 19, 2014, multiple motions to

have him declared a vexatious litigant were set to be heard, including Defendant

Seana Willing's Motion to Declare Eric Drake a Vexatious Litigant;

2. The purpose of the vexatious litigant statute is to prevent abuse of the judicial

547

DC BK14237 PG17

system bypro se litigants1;

3. Plaintiff Eric Drake filed a Motion for Non-Suit on August 7,2014, beginning the

30 day plenary jurisdiction ofthe trial court;

4. Plaintiff Eric Drake filed a Motion to Recuse on August 7, 2014, seeking recusal

of "all judges so that the judge that have (sic) ruled improperly against him does

not continue his or her abusive behavior." (Plaintiffs Motion to Recuse, page 2,

II4);

5. Plaintiff Eric Drake's Motion to Recuse is defective on its face in that it:

a. is based solely on the judge's rulings in the case (Plaintiff's Motion to

Recuse, page 1,^4 [second ^J 4 on that page] ); and

b. does not state with detail and particularity facts that would be sufficient to

justify recusal;

6. In the event that this Court does not proceed with the hearing on August 19, 2014,

it is likely that the recusal process will allow Plaintiff Eric Drake to evade the

purposes of the vexatious litigant statute by allowing him to improperly exhaust

the trial court's plenary jurisdiction; and

7. Plaintiff Eric Drake has additionally demonstrated the bad faith of his Motion to

Recuse and this litigation as a whole by stating his intent to file suit against the

spouses of District Judges in Travis County as well as the spouses of other state

1 In enacting Chapter 11 of the Texas Civil Practice and Remedies Code, Texas legislature sought to strike a

balance between Texans' right of access to their courts and the public interest in protecting defendants from those

who abuse the Texas court system by systematically filing lawsuits with little or no merit. Drum v. Calhoun, 299

S.W.3d 360,364 (Tex.App.-Dallas 2009, pet. denied). Additionally, purposeofthe statute is to make it possible for

courts to control their dockets rather than permitting courts to be burdened with repeated filings of frivolous and

malicious litigation by litigants without hope of success while, at the same time, providing protections for litigants'

constitutionalrights to open courts when they have genuine claims that can survive the scrutiny ofthe administrative

judge and the posting of security to protect defendants. In re Potts, 399 S.W.3d 685, 688 (Tex.App.Houston [14th

Dist.] 2013, orig. proceeding) citing In re Potts, 357 S.W.3d 766, 768 (Tex.App.-Houston [14th DisL] 2011, orig.

proceeding).

548

DC BK14237PG18

officials in an effort to evade any immunitiesthat attach to those officials;

8. Plaintiff Eric Drake brought his Motion to Recuse without sufficient cause and

solely for the purpose of delay, specifically to exhaust the trial court's plenary

jurisdiction without allowing the trial court to consider DefendantSeana Willing's

Motion to Declare Eric Drake a Vexatious Litigant;

9. In the event that the Motion to Recuse is later granted, any order related to

Defendant Seana Willing's Motion to Declare Eric Drake a Vexatious Litigant

can be vacated, so no irreversible harm exists in hearing the matter.

Accordingly, this Court FINDS that good cause exists to hear Defendant Seana Willing's

Motion to Declare Eric Drake a Vexatious Litigant on August 19, 2014 at 9 a.m. and the Court

having reviewed the motion, pleadings, the law, evidence and arguments of all parties, enters the

following order:

On April 28, 2014, Eric Drake filed this lawsuit, claiming federal civil rights violations

against Defendant Seana Willing, alleging violations of 42 U.S.C. §§ 1983. Eric Drake also

made multiple claims against other defendants in this litigation.

In the instant suit, Eric Drake makes the conclusory assertion that although Defendant

Seana Willing conducted an investigation initiated by Eric Drake, including evidence provided

by Eric Drake, because Eric Drake did not like the outcome of the investigation, "Plaintiff

identifies the following rights he opines were violated: "the Plaintiff (sic) First Amendment

Rights have been violated, his Equal Protection Rights have been

This text is long and has been trimmed here. Open the source document for the complete record.