Eric Drake v. Seana Willing

May 13, 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

Defendant-Appellee

ON APPEAL FROM THE 200™ DISTRICT COURT

TRAVIS COUNTY, AUSTIN, TEXAS

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

AMENDED BREIF OF APPELLANT ERIC DRAKE

Eric Drake

Pro-Se

Appellant

RECEDED > PO Box 833688

13 2MB \ Richardson, Texas 75083

W \ 214-477-9288

ORAL ARGUMENT REQUESTED

IDENTITY OF PARTIES AND COUNSEL

Plaintiff/Appellant/Petitioner

Eric Drake

Pro-Se

si

P.O. Box 833688

1 Richardson, Texas 75083

m (214) 477-9288

r Defendants/Appellee/Respondents

Seanna Willing

p Scot Graydon

300 West 15th Street, Ste 2

Austin, Texas 78701

512-475-4413

f" David Harris

Carl Ginsberg

P 300 West 15T" Street, Ste 2

^ Austin, Texas 78701

m Telephone: 512-475-4413

Kristina Kastl

p

Kastl Law P.C.

4144 N. Central Expressway

pi

Ste 300, Dallas, Texas 75204

' Telephone: 214-821-0230

pi

Frank Waite

m Vikki Ogden

411 Elm Street, Ste 500

Dallas, Texas 75202

P Telephone: 214-653-7568

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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.

iB

39.1(c). This case is comprised of several 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 of action, whether or not a visiting judge can hear the

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

of by the proper judge. 4. Whether Appellee Seanna Willing proved that the

Appellant Eric Drake had no reasonable probability of success against her

and if Ms. Willing immunity prevented the Appellant from suing her.

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

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

hear from both sides of these issues and articulation of the statutes.

W

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

SI

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

n

TABLE OF CONTENTS

Page

IDENTITY OF PARTIES AND COUNSEL i

STATEMENT REGARDING ORAL ARGUMENT ii

TABLE OF CONTENTS iii

3

ISSUES PRESENTED iii

EpI

INDEX OF AUTHORITIES ix

p STATEMENT OF FACTS 6

ISSUES PRESENTED FOR REVIEW

iftwil

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

r Appellant had no reasonable probability of prevailing.

iii

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ISSUE THREE

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

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

Iii3

ISSUE FOUR

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

recusals and referrals should be vacated.

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ISSUE FIVE

S

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

S^

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

ss

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.

B

ISSUE SEVEN

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

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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.

fSl vi

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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

\;i'!tf\ 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

$3

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 Drake as a vexatious litigant was procedurally defective.

ISSUE ELEVEN

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

Appellee Willing's plea to jurisdiction, or dismissing Willing as a defendant,

and allowing Willing to file affirmative action when claiming immunity.

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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

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Issue Two:

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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

lip)

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:

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

iS^

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

other state laws and statutes 34

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VI

f Issue Six:

f Trial court abused its discretion when the court continued to hear

Appellees Seanna Willing Motion to Declare the Appellant as a

F Vexatious Litigate in light ofthe fact that Judge Ramsay did not have

m the authority or jurisdiction to preside over Appellees Willing motion

I

to declare him a vexatious litigant 52

f Issue Seven:

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

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

an assistant attorney general 54

l~ Issue Eight:

f Trial court abused its discretion when the court continued to hear

s Appellees Seanna Willing Motion to Declare the Appellant as a

r 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

b. motion to declare Drake a vexatious litigant and prior to actually

= signing ofthe motion "4

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

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

affirmative action when claiming immunity. If the trial court accepted

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

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

!P&1

STATEMENT OF THE CASE 1

STATEMENT OF FACTS 6

ARGUMENT 14

CONCLUSION 82

CERTIFICATE OF SERVICE 84

CERTIFICATE OF COMPLIANCE 85

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APPENDIX 86

viii

m

Fwfl

INDEX OF AUTHORITIES

Cases Page

i!pi

Mitchell Energy Corp. v. Ashworth

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

•SR

In re Union Pacific Resources Co..

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

^ Federal Sign v. Texas S. Univ..

951 S.W.2d 401,405 (Tex. 1997) 75

iRl

l- 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.

ijS\

893 S.W.2d 432, 37 Tex. 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

p£l

IX

r

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.2d 427, 429 (1932) 53

Mapco. Inc. v. Forrest.

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

i$#\

Jeter v. McGraw.

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

S

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

852 S.W.2d 440, 445 (Tex. 1993) 53

INDEX OF AUTHORITIES

Cases Page

fiffi)

Fed. Underwriters Exch. v. Pugh.

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

In the Guardianship of Erickson.

fttml 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

SR

Devoil v. State of Texas.

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

Drake v. Andrews.

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14, 20,23, 26, 51

B5)

^j XI

|IU!^I

INDEX OF AUTHORITIES

Cases Page

IS)

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

pi

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

s?

Greenberg, Benson. Fisk & Fielder v. Howell.

685 S.W.2d 694, 695 (Tex. App.- Dallas1984) 47

pfffil

xn

INDEX OF AUTHORITIES

Cases Page

Texas State Emplovees Union/CWA Local 6184 v. Texas Workforce.

IS\ 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

i^f

McLeod v. Harris.

VlPl

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

?3

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..

5^

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

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

ff£) Univ. of Tex. Med. Sch. at Houston v. Than.

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

xni

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

^pi

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

551

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.

wt

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

Wb *• VA

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INDEX OF AUTHORITIES

Cases Page

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iW

In re Richard Castillo,

1998 Tex. App. El Paso, Lexis 2473 43

P Douglas v. American Title Co..

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

Mullins v. Ortiz.

(App. [10th Dist], 2009, WL 2264347 14

Martin v. Svkes,

pS 25 Tex. Supp., 198 55

m 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

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vx

|wp)

r INDEX OF AUTHORITIES

Cases Page

^i

Lee v. Killian,

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

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P Green v. Chandler.

1 25 Tex. 148 57

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S3

Historv Co. v. Flint. 4 Willson.

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

Drinkard v. Ingram,

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

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P Johnston v. Loop.

1 2 Tex. 331 57

Bankers v. Calhoun.

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

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xvi

INDEX OF AUTHORITIES

Cases Page

S^l

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

IP

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

p^

University of Tex. V. Poindexter.

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

xvn

ist

Cases Page

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

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

Martin v. National Instruments Corp.,

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

iiffl

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,,

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

S)

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

5«V XV111

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

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

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

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

Tex. Gov't Code Ann, g 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

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IjY.rtfi

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.

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xx

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53

APPELLANT'S BRIEF

To the Honorable Justices of the Third Court of Appeals:

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

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STATEMENT OF THE CASE

L TO THE HONORABLE JUSTICES OF SAID COURT:

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

p 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,

[jFf 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 to deny Appellant Motion to Compel.

Appellant filed a motion to recuse all of the judges because he believed that

there was not a possibility of him obtaining a fair hearing by any of the trial

1

r

court district judges. Drake filed a motion for nonsuit to escape further abuse

by the judges who sought to misuse their authority to assist the defendants in

the trial court.

p^l

Appellee Willing through her attorney, Scott Graydon 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.

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Warren Vavra, who is not an attorney, and has no authority to appoint

a visiting judge to hear cases, appointed (Judge Strauss) whom the Appellant

objected to, shortly thereafter Vavra 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

r

the Appellant recused had acted on their recusals or referrals by the time

Ramsay was appointed and ruled.

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

p County because of unfairness that he received when three judges conspired

to have an order signed by one of the defendants dismissing Drake's motion

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

Appellant's motion to recuse, they failed to recuse or to refer, thus violating

f" the Texas Rules of Civil Procedure 18a and 18b.

p, 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.

p Each defendant in the trial court filed motions to quash depositions,

i

and those whom the Appellant subpoenaed to testify at the hearing were not

ruled on. Appellant has a right to have witnesses at Willing's hearing to

declare him as a vexatious litigant. Ramsay violated Drake's due process

I rights, and he did so knowingly because Drake informed Ramsay of these

P violations.

[PI

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

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

Ramsay granted Appellee Motion to Declare Appellant as a vexatious

S3 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

B5

motion to transfer, without having authority to hear Appellees motion

rs

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.

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On August 19, 2014, during the hearing on Willing's motion to

declare Drake as a vexatious litigant, Appellant was prohibited from

securing the witnesses he had subpoenaed.

Appellee Seanna Willing failed to submit to the trial court sufficient

evidence, which would have proved that there was not a reasonable

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probability that Appellant, would not have been successful against her.

Appellant was asking the trial court for an injunction and declaratory judg-

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L ment against Appellee Willing and Ginsberg, as well as damages against

both Willing and Ginsberg. Scot Graydon offered only hearsay evidence to

** the trial court. Judge Ramsay wrongfully granted Appellees Seanna Willing

p 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. Appellant then filed a motion for

[ rehearing and a motion to recuse two of the justices on September 26, 2014.

m This Court also overruled those motions wrongfully.

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

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

l reason that he had not obtained permission with the local administrative

p

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

|!S

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

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the Appellant's requests. Appellant complained to the Supreme Court of

Texas regarding Judge Livingston's behavior, but the court failed to do

anything about Livingston's conduct. Thus, all of the Supreme Court justices

and Livingston shall become defendants in a federal lawsuit.

Judges Charles Ramsay and Lora Livingston and other trial court

judges in Travis County will become defendants in an upcoming federal

F?3

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 laws, due process, the

Texas Constitution, and the Texas Rules of Civil Procedure, and the Texas

Civil Practice and Remedies Code.

ESI

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II.

Statement of Facts

A. Pre-Trial Historv of this litigation.

Brief History of Events in the Trial Court:

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A. On April 28, 2014, Appellant filed suit in Travis

n$) County against defendants Judge Carl Ginsberg,

Kristina Kastl, Kastl Law firm, Vikki Ogden, Court

Reporters, and Seanna Willing. After Appellant

moved for discovery, each and every one of the

defendants filed motions to quash, and many of them

filed motions to transfer.

B. On June 17, 2014, Defendant Carl Ginsberg filed a

motion to transfer and to declare Appellant as a

vexatious litigate.

1^3

C. On July 3, 2014, Defendant Vikki Ogden filed a

motion to transfer and notice of vexatious litigate

order.

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D. On July 11, 2014, Defendant Kastl Law PC filed a

motion to transfer and notice of vexatious litigate

order.

J£ffr)

E. On July 15, 2014, Defendant Carl Ginsberg filed a

motion for protection.

F. On July 16, 2014, Defendant Kastl filed a motion to

quash deposition and protection.

(iff)

G. On July 16, 2014, Appellant filed a motion to

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continue to obtain limit discovery to properly respond

to defendant's motions to transfer.

H. On July 16, 2014, Appellant filed a motion for

evidentiary hearing.

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I. On July 17, 2014, Defendant Vikki Ogden filed a

motion to quash deposition.

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8

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J. On July 24, 2014, Appellant filed a motion to compel

to try and obtain limited discovery in the Trial Court

lawsuit.

K. Appellant set a hearing on his motion to compel on

August 7, 2014. Appellant appeared in Trial Court for

the hearing. Assistant attorney general Scot Graydon

conspired with Kastl's employee to obtain an order

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denying the Plaintiffs motion to compel hearing.

L. On August 7, 2014, Appellant filed a motion to

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recuse all of the district judges as well as County

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judges.

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

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be heard because Scot Graydon demanded it, though

the judges opinion was that the lawsuit was dismissed.

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N. On August 19, 2014, Appellant objected to the

assignment of judges, and objected to the proceeding

but the trial court moved forward with the hearing.

O. During the August 19, 2014 hearing, Scot Graydon

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lied to the trial court claiming that he had conference

with Appellant regarding his motion to declare him as

a vexatious litigant.

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P. Once a recusals are filed, a judge cannot do nothing.

Yet this is what all of he judges did in Trial Court—

nothing.

Q. Judges filing a recusal and referral after visiting judge

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had been assigned will not cure the blatant disregard

^)

10

for proper procedure and ethics by the judges in Trial

Court.

S3

R. The defendant's motions to transfer had not been

ruled on or decided at the time the visiting judge ruled

•i5Sl

on Appellee Willing motion to declare Appellant as a

vexatious litigant.

BR

S. The defendant's motions to quash had not been ruled

on at the time the visiting judge ruled on Appellee

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Willing motion.

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T. Ramsay could not had been properly assigned because

|l|»*

the court administrator, Warren Vavra had no

authority to assign judges, because he is not a judge.

Furthermore, the judges the Appellant recused had to

act within three (3) days as the Tex. R. Civ. P.

11

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B. Post Judgment:

Appellant properly and timely filed his notice of appeal

on September 18, 2014; however, this notice disappeared

3

from the trial court docket. Likewise, Appellant's

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

Mail also disappeared from the trial court docket.

Thereafter, Drake filed yet another notice of appeal on

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October 19, 2014.

JUSI

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12

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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).

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13

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in.

ARGUMENT

A. Standard of Review

Chapter 11—Texas Civil Practice & Remedies Code.

tm

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.

(ff^

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.

m

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

p»j

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

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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).

i ii^

S«l 15

D. Issue One:

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

objected to Judge Ramasy before he began to preside over 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

IP?

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

pS)

vexatious. Drake also objected to Judge Ramsay (RR: Vol 3 of 4, P: 10, L:

14-25; P: 11, L: 1—25; P: 12, L: 1—23).

Appellant objected 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

L- 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

f* 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.

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

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

p 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

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

Si

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

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

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

FH 17

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

f 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" should have recuse

himself or removed himself from presiding over the motion on August 19,

L 2014. In re Perritt, Supreme Court of Texas, 992 S.W.2d 444; 1999 Tex.

Lexis 42 Tex. Sup. J. 574.

F 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

L 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

p 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 the administrative judge, ordering the assignment of Judge Ramsay to

\ hear Appellee Willing's motion to declare Appellant vexatious prior to the

P August 19,2014, hearing.

18

E. Issue Two:

Appellee Seanna Willing failed to prove by and through evidence

submitted to the trial court that was entered into evidence on

August 19, 2014, hearing that the Appellant could not prevail

against her.

I- Appellant's cause of action against Appellees Seanna Willing was not

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

p 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 in the

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

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

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

F limited discovery through depositions and his attempts at subpoenas to have

same witnesses to testify, 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

I 1, P: 245—255), (CR: Vol 1, P: 239—242), (CR: Vol 1, P: 219—223).

Appellees failed to prove that Appellant did not have a reasonable

f probability of prevailing; counsel for Willing just made the statement,

"Appellant have no probability of prevailing" to the trial court without

sworn affidavits or proof of any kind which does not satisfy Chapter 11 of

19

the Tex. Civ. Rem Code, 11.054. (RR: Vol 1, P: 5, L: 2-11). Graydon only

[ referred to Willing's immunity. Appellant has uncontroverted proof to offer

m any trial court that Appellee Willing failed to investigate his case against

i39

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 vexatious, as Andrews did in Drake v.

Andrews. Evidence was prevented from being offered into evidence because

Bb|

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

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

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

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

ii|B>

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 of misleading the trial court, and perjury.

20

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

notice that Appellant was a vexatious litigate, and then he ordered Appellant

to seek permission before going forward. Thereafter, Ginsberg dismissed

PH

Appellant lawsuit against Kastl and Ogden.

However, Appellant Drake dismissed his case before Ginsberg's order

(CR: Vol 1, P: 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

F^

Ginsberg dismissed Appellant's case and it was involuntarily done, the

dismissal superseded the vexatious litigate order signed by Ginsberg.

pff|

Appellant provided Appellee Willing with uncontroverting evidence

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that clearly demonstrated that judge Martin Hoffman treated the Appellant

differently than he did white attorneys.

This evidence to Appellee Willing was provided to her in the form of

a magnetic tape recording—in person. Yet, Willing made the comment to

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Appellant with such evidence, "Who could say a good word about your

character." The Appellant's character was not the subject to be scrutinized,

but it was judge Martin Hoffman's desires to purposely harm the Appellant

cases on account of his race.

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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. Willing was given a copy of the

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transcript of the hearing were Goodman's testified.

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

Section 11 of the Texas Constitution.

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.,

647F.3d 1181; 2011 U.S. Lexis 10438.

The Appellant's complaint that he filed with Appellee Willing

contained uncontroverting evidence; however, Willing did not find it

SV

necessary to act on Appellant's complaint.

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

Willing failed to comply with Section: 11.054. CRITERIA FOR FINDING

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

vexatious litigant if the defendant shows that there is not a reasonable proba

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

22

Appellee Willing provided inadequate evidence to the trial court that Drake

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

sworn statements, and she refused to testify. As explained herein, the

Appellant was suing Seanna Willing in her official capacity and individual

capacity.

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. 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 provide to the trial court any case law that a

person that has sovereign immunity is immune against injunctive 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

TCP&RC.

23

HU.

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—13) (RR: Vol 3 of 4, P: 31, L:

23—25, and P: 32, L: 1—9). Appellant makes the same argument before

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

procedurally, in that Willing failed to prove that all of the defendants that the

Appellate sued in the trial court were equally frivolous.

m

Appellee Willing failed procedurally to bring her motion against

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

8). Appellant cautioned the trial court that it failed to follow procedure and

the Texas Rules of Civil Procedure (RR: Vol 3 of 4, P: 39, L: 4—17).

Appellee Willing advise the trial court of a case that Appellate filed 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).

If given the opportunity to orally examine Appellee Seanna Willing, it

would had been proven that Appellee Willing failed horribly to investigate

Appellant's claims against Judge Hoffman and other judges.

24

p5)

*-• This is the reason why Willing, Kastl, and Ogden filed motions to

[ quash, to prevent their oral examinations. But the trial court assisted them by

p 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—

I- 25, and P: 9, L: 1—20). 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

B3

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,

jBil

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

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

p» 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

obtaining 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 of the

•p defendants in the trial court filed motions to quash, which the trial court

25

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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.3d 370. Amir-Sharifv. 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—

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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

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L (App.5 Dist. 2009) 294 S.W.3d 370."

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

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

3

26

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

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

P select defendant in the lawsuit—unless the defendant take the proper legal

steps, which Appellee Seanna Willing failed to do either.

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

flp?

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 of evidence.

Appellee Seanna Willing must prove that Drake's litigation is

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

hearing was unable to prove this point.

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—

pwl

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

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

s3

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

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

m (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

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

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

IjST

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

p^

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

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

Justice of the Tex. Supreme Court 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). Tex. R. Civ. P. 18a; See also Tex. Gov't Code Ann. §

74.059(c)(3) (West 2005) (judge 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").

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

SJ

that the court had signed Drake's motion of nonsuit, on August 19, 2014.

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

ira

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, because he said so. And on August 19,

2014 Vavra admitted to Appellant that Willing's motion hearing wasn't on

the docket.

I!3?

29

G. Issue Four:

Judges David Phillips and Stephen Yelenosky orders of recusal

and referral should be vacated

The August 19, 2014, order declaring Drake vexatious is void because

even though Judges Phillips and Judge Yelenosky filed sham orders to

I attempt to make it appear as if they were complying with Tex. R. Civ. P.,

f3 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.

I The Tex. R. Civ. P., clearly set forth, a judge must either recuse or

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

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

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

and 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

m

30

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

IpSI

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

T wrongfully assigned to hear Appellee Willing's motion to declare Appellant

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

S3

I

t as a vexatious litigant.

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

m not responding to his motion to recuse. (RR: Vol 3 of 4, P: 24, L: 18-25; P:

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

r

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

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

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

m 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.

(SI

r 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.

31

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

brief herein that the following orders are void: 1). The order of referral by

fsi

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 with its prefiling order.

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,

IB)

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

W

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

JBI

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

32

BR

Texas law and the Texas Code of Civil Procedure. Victor v. Enterprises, Inc.

v. Holland. The sham orders filed into the trial courts record by Judges

David Phillips and Stephen Yelenosky are a good example of how these

judges circumvent procedure and the law.

sPI

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fiSH

33

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H. Issue Five:

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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

w

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

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

[mil

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

Wl

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

153

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

ffl

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

fSI

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

ffiRI

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

must either:

p (A) sign and file with the clerk an order ofrecusal; or (B) sign and file

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

judge. (2) Restrictions on Further Action.

34

iii.y™|

^ 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

m 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.

w^

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

SB

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

with the assistant attorney general Scot Graydon and defendants Kastl and

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

Appellant's hearing. It was evident to the Appellate that he could not obtain

r a fair hearing in Travis County.

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

ijpl

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

and allegations filed into the trial court's record that Drake was an alleged

m

vexatious litigant. The trial court took no action regarding Appellant's

fl^l

35

B3S1

motion to compel, up and until the date of the 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

5SI

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

P3

1 Graydon that judge Sulak would hear Appellant's pending motion to

[ compel, knowing that an order was signed denying the motion. Judge Sulak

m announced that he could not hear the Appellant's motion to compel because

another equal judge had signed an order denying the motion to compel

moments ago. (RR: Vol 2 of 4, P: 8, L: 11—25; P: 9: L: 1—19).

(ij8|

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

pi

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

*• However, after the trial court's judges conspired efforts to deny Appellant's

motion to compel hearing, Appellant had no choice but to recuse all of the

district judges. (CR: Vol 1, P: 521—526). The behavior by the three district

judges named herein was reprehensible. The behavior of the trial court was

intentional, unfair and partial, which would prevent the Appellant from

w« receiving an impartial hearing.

FSI

36

vj»l

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

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

SI

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

1/m)

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

However, after the Appellant announced at the August 19, 2014

i 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 of the clerks in the 353rd left

m the courtroom and apparently notified the judges of the procedural error, and

two judges filed sham orders in the trial court's record (CR: Vol 1 of 1, P:

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

iiiP

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

•w Appellant vexatious.

K&

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

25.00255(f), a judge against whom a recusal motion has been filed has only

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

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

defective, the challenged judge must either recuse or refer the motion, so that

37

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another judge can determine the procedural adequacy and merits of the

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

iW

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 of the motion. Norman, 191

v^

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.

«pi 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 of referral, to the administrative judge; and

£pl

(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

pil

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

ipl

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 taken Rule 18a(c).

pKl

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

-not the presiding judge—would be void, lamberti v. Tschoepe, 776 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 on Judge Stephen Yelenosky referral. This

IS

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).

m 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

(PS

1 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,

r 2014 order declaring the Appellant as a vexatious litigate and prefiling order

should be vacated and or set aside.

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

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

IffiH 40

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

[ pending in his court").

m Other courts of appeals have concluded that Rule 18afs 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-

I 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

I 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

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

iH&l

Crim. App. 2010)

41

Likewise, construing a substantially similar statutory predecessor to

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

'IP

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

pB|

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

m 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

SSI

I- 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).

j*» 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

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

J 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

L

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

IpSl

pift

held to develop a record sufficient for any appeal on the 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 also 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 Judge

Ramsay was improperly assigned to hear Appellee Willing motion, and the

Appellant argued in open court of the 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 void. A court administrator does not have the judicial

t-

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

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

Willing motion. An appeal and federal action is Appellant's remedy to

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

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

SIS

[ vexatious litigate signed by Judge Ramsay, 4). Federal violations.

p 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 of the co-defendants or

L 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

I 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—

tjpal

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.

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 void, which in this case

46

specifically the August 19, 2014 declaring Drake as a vexatious litigant. The

trial court records contain no ruling by or from the regional presiding

Judge.

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

recusa/ or referral, "he does not have the option of doing nothing")

Greenberg, Benson, Fisk and Fielder, P.C 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 of the

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

As in Victor Enterprises, regardless of procedural sufficiency of a

motion to recuse, the trial court violated Rule 18a in failing to act either to

recuse herself or refer the case to the presiding judge; the judges failure to

rule 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 of the 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, 776 S.W.2d 651, 652 (Tex. App.—DALLAS 1989,

Writ denied).

A court cannot ignore the motion to recuse and appoint a visiting

judge to carry on with the case as if the motion had not been filed. In the

case of Barnhill 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 subsequent order that were

ruled on was considered void.

48

L Issues as to the qualifications of the trial court judge may be raised for

the first time on appeal. In re DC Jr., 2010 WL 3718564 (Tex. App —

P Amarillo 2010, no pet). However, the Appellant raised Judge Charles

Ramsay's ability to hear Willings motion to declare Drake vexatious on

August 19, 2014. (RR: Vol 3 of 4, P: 12, L: 8—12).

Appellant recused all of the district judges and two County judges

f" (CR: Vol 1, P: 521—526). Pursuant to Rule 18 of the TRCP, the regional

m 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

i .

the Appellant's motion of recusal, which is forbidden by Rule 18 of the

Ifpl

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

Ijpl

49

fm\

r

1 had delivered a copy of the order of disqualification, recusal or referral to

PR

[ the regional presiding judge immediately with the 3 day period, but this did

P 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

I- sufficiency's of a motion to recuse, the 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

L 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 of the judge's failure to comply with the TRCP 18, all orders

or judgments of a trial judge who was constitutionally disqualified from

sitting are void. Tesco Am., 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

f 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 on August 19, 2014, and argues in

his brief that Appellees failed to prove that Appellant filed 5 (five)

qualifying lawsuits that were ruled against him.

51

Il,p<l

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

Ii.YpwI

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

SI

an order of assignment from a proper judge. However, in this case, there was

p£|

no order of assignment by a proper judge or any judge that can be found in

m 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

flp^

judgment is void when the court rendering judgment has no jurisdiction of

the person of a party or his property, no jurisdiction of the subject matter, no

Avpyfl 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

tvii^l

^

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

P1 of ratification^] 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 a judgment void

L 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

P 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

P waiver); In the Guardianship ofErickson, 208 S.W.3d 737, 740 (Tex. App.~

p 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 judge, he had no

I authority or jurisdiction to preside over, hear or rule on any motions

r presented by either party on August 19, 2014. Ramsay ignored the

f* Appellant's notices and the Tex. R. Civ. P., and proceeded with the hearing

which was error and abuse of discretion (RR: Vol 3 of 4, P: 15, L: 2—3).

p 53

t 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 and was a product offraud, fraudulent inducement

I- 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.

m Appellee Willing's counsel failure to be completely truthfiil wasn't an

pif

error on part of the 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 also failed to conference with the other

JSS? 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—

FH

54

pif&

«3?

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:

r 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 of the most pernicious character

cannot be questioned, and for such conduct, an injured party is entitled to

55

pi

L 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;

m 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

L when obtained by fraud or such other means as are held to render the

iff?

judgments, orders or decrees void, so to declare them at any time. Heath et

m 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

w$

wavier that was obtained by fraud. The appeals court reversed and

remanded. Lee v Killian, 761 S.W.2d 139; 1988 Tex. App. Lexis 3173. Un

less the order is set aside that was obtained by fraud; Appellant will continue

pffiw!

to 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 untruthful 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.

f Cas. Ct. App. §224, 4Tex. Civ. Cas. 364, 15 S.W. 912; Drinkardv. Ingram,

F 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.

I Graydon advised Judge Ramsay on 8/19/2014, "In the event the Court of

f Appeals determines that a motion to recuse would been improper, 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

F 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

P Judge Ramsay is void, and a product of fraudulent misrepresentations, which

is an actionable fraud; the August 19, 2014 order is non-effect. Stanfieldv.

m 57

ff^J

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

[ST 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 Willing's 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 the

^!

statement to be false at the time he made it, (4) that the statement was made

with the intent to deceive the trial court visiting judge, (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

W

Appellant and that he must obtain permission prior to filing any new

litigation, (6) that the trial court reasonably relied on Scot Graydon's

p?J

fraudulent statements because he is an officer of the 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 of the hearing was filed after the

58

r

Appellant filed his motion for nonsuit, although the order signed by the trial

court nonsuiting the Appellant's cause of action was also defective, file

dated: August 7, 2014 at: 1:07 P.M. (CR: Vol 1, P:527—529). 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,

5p|

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

w 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. (RR: Vol 3 of 4, P:

45, L: 1—14). Graydon violated TRCP 191.3(b).

Appellant was prohibited from calling any witnesses to Willings

.jtjfiwj

August 19, 2014 hearing, however, Chapter 11 of the Tex. Civ. Prac & Rem.

fpn

Code allows witnesses to be called on behalf of the "plaintiff." Judge

Ramsay erred in continuing to hear the August 19, 2014 hearing when knew

that there was a pending motion to recuse filed by the Appellant. Graydon

pfR

should be sanctioned pursuant to TRCP 191.3(e).

60

TP1

K. Issue Eight:

Trial court abused its discretion when the court continued to hear

rsi

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

i

ip 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.

pi?

Though Appellant objected to violations of his due process, the trial court

P visiting judge did not have authority to preside over the Appellee Willing's

p 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).

P Appellant filed a motion to continue until the court could address his

m motions to take limited discovery. Appellant filed 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

P court that Appellee Willing failed to investigate his case against Judge

61

Martin Hoffman properly. But that evidence was prevented from being

pm

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. (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,

416S.W.3d914.

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, and signed the August 19, 2014, order to

declare the Appellant as a vexatious litigant.

usi

ESI

62

Appellant preserved his objections to Ramsay's assignment and to

3*1

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.

p&l

iffl

5B

63

Fm£|

BW

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 of the motion

The trial court failed to address important motions filed by the

(SI

majority of the defendant's concerning jurisdiction. On June 17, 2014,

SI

Defendant Ginsberg filed a motion to transfer for lack of subject mater

jurisdiction. On July 11, 2014, Defendant Kastl law filed 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

r

motions filed by any of the 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, it was improper for the

64

P

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

SS) by not acting on the defendant's motions to transfer, motions to quash, and

motion to recuse (CR: Vol 1, P: 521—526).

HU

Whether a court has subject-matter jurisdiction is a question of law.

Texas Dep't 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

^1

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

pSI

for the court, not a jury, to decide, even if the determination requires making

^1

factual findings, unless the jurisdictional issue is inextricably bound to the

merits of the case.1") (quoting Cameron v. Children's Hosp. Med. Ctr., 131

psi

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 of Appeals, [5th Dist.] 365 S.W.3d 359; 2010 Tex. App. Lexis 9083.

pi

The trial court conducted no hearings pursuant to the defendant's

objection to jurisdiction, nor did it make any rulings concerning jurisdiction

before assigning the visiting judge to hear the Appellee Willing motion to

ppl declare Appellant as a vexatious 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 plaintiff has falsely stated a claim, which,

in fact, is nonexistent, for this is a matter 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

IS5

relevant facts, but in this case more importantly, the trial court did not act on

any parties plea to jurisdiction—which is error and an abuse of discretion.

66

151

iift

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.

ISl All of the district judges in Travis County failed to take even the

minimum action. There was never a hearing on Appellant's motion to

recuse, nor was the motion referred to the proper judge, 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

W)

court judge will not overcome the untimeliness of their sham orders, and the

fact that a visiting judge was appointed improperly before Appellant motion

H»l

to recuse was decided is an even greater issue because the visiting judge

could not be assigned until the recusal was procedurally disposed of

iuii^

properly. Thus trial court's orders signed on August 19, 2014 are void.

Appellant directs the Court's attention to Appellee Willing order.

r What the Appellee Willing was attempting to do is cover apparently a

r$p\

recusal and vexatious hearing together, and neither worked properly. (CR:

Vol 1, P: 547—555). Thus, the sham order presented to the visiting judge,

•m on August 19,2014, which he signed, should be vacated.

i^|

67

r

,[ff|

M. Issue Ten:

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

3^ order declaring Appellant vexatious because Appellee Willing's

motion to declare Drake as a vexatious litigant was procedurally

defective

w Appellee Willing's motion to declare the Appellant, as a vexatious

p litigant is procedurally defective as already pled herein to this Court.

Appellee Willing attorney failed to conference with the Appellant.

BSI

Rather than taking the proper steps to correct the motion of

conferencing with Appellant and filing an amended motion to declare the

m 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

also other procedures that Willing fail to undertake to declare Appellant

Drake as a vexatious litigant.

p

( Scot Graydon did not conference with the Appellant by mistake, he

m 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 on August 7, 2014, that the

68

Travis County local rules requires a conference he hurriedly tried to repair

iySI

his intentional actions of not conferencing. But because he failed to follow

m proper procedure pursuant to 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

jfffil

the Appellant to respond to her motion to declare him as a vexatious 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 a

vexatious litigant. 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

OT*l

was served, which was not adequate time to properly respond to the motion.

yffi)

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.

fim\

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

a Apartments, Ltd., 875 S.W.2d 25, 26 (Tex. App—Houston [14th Dist.] 1994,

RSI

no writ). Appellant should had been given a 21 days notice.

m 69

lip!

In addition, the trial court had dismissed the case and the Appellant

I had no warning that Appellee Willing's hearing was going to take place and

m be heard on August 19, 2014.

— Appellee Willing advised Judge Ramsay through her legal counsel in

the trial court that Appellant's motion to recuse does not effect him (Judge

L Ramsay) because [he] (Judge Ramsay) was not named in the recusal. (RR:

J Vol 3 of 4, 13—23). Willing's attorney goes on to say that there is good

SSI

cause for the trial court to continue in light of the fact that Drake's motion to

^1

recuse had not been ruled on by the trial court (RR: Vol 3 of 4,19—23).

Pursuant to Tex. R. Civ. P., once a judge has a motion to recused filed

tm\

against him or her, the case cannot be heard by another judge until that

motion to recuse is decided, which never occurred 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 a reason for a court 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. Of course,

70

Appellate has already been substantially harmed in many ways after Judge

Ramsay wrongfully declared him a vexatious litigate, which he will sue all

IBS

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

I defect by committing perjury to the trial court through her legal counsel.

[" (RR: Vol 3Of 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.

iS3

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. 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.

wii

71

Willing's motion was assigned by a court administrator—not a judge.

Scot Graydon's perjury was fatal to the order the visiting judge signed on

August 19, 2014.

c

es\

r

GPS

fjp\

pi 72

N. Issue Eleven:

Appellee Seanna Willing alleged immunity did not apply and or if

it did apply to 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

I trial court of jurisdiction because Appellant alleged that his rights were

m violated by Willing pursuant to an unconstitutional law, and that action did

p 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

L conspiracy. Willing's legal counsel admitted on August 19, 2014, that Drake

pis

[ underlying charges against Appellee Willing were under 42 U.S.C. 1983

[ff^

violations of his 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

fcl

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 of the plaintiffs 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 a party's rights have been violated by

p the unlawful acts ofa 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

I 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

|i;rw)

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

p5l

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 of the court

76

' that testified under oath that Judge Hoffman was hostile toward Appellant

( Drake. IfWilling'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

r

1 declare Drake as a vexatious litigant, that in itself removed any immunity

because she was seeking affirmative relief outside of her plea to jurisdiction.

m Traditionally, appellate courts construe the pleadings liberally in favor

of the 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

p 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 Hoffman, but Willing was still unable to find any need to

correct Hoffinan's behavior because of her racial discriminative ways

p against Drake, and her conspiring with Judge Hoffman, and her efforts to

cover up Judge Hoffman's criminal behavior of assisting white attorney with

77

W&?

their obstruction of justice. These acts waived any immunity that Appellee

( Seanna Willing or Judge Martin Hoffman may have had as a state

** employees or officers. Willing's affirmative defense claim of declaring

Appellant as a vexatious litigant waived her immunity. Moreover, Willing's

defensive pleading must allege that she had a cause of action, independent of

' the plaintiffs claim, which she failed to do. BHP Petro Co. v. Millard, 800

£ S.W.2d 838, 841 (Tex. 1990). Willing only offered the fact of her alleged

Kiwi

immunity as to the reason Appellant could not prevail against her—which in

pp?)

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

...

f^ court reporter to amend the transcript. And since Willing is guilty of

conspiring with state judges, ignoring compelling evidence, and of racial

78

w^

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

jjpV

6th Cir. 1990 U.S. App. Lexis 21851.

The trial court and Judge Charles Ramsay failed to resolve the

Appellant's injunction or declaratory issues or addressed Appellees plea to

jurisdiction before declaring Drake a vexatious litigant. An applicant for a

temporary injunction must establish that the party has a probable right to the

relief sought and that the party will suffer a probable injury in the interim,

pending a trial 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).

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 or non-attorneys who

may file claims in her office against state judges.

There is more than a probability that the Appellant will suffer future

pi

and similar harmful conduct and scheming by Appellee Willing's if a court

does not issue an injunction against her. Moreover, 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 of justice, by impeding or hiding or assisting crimes by judges,

or 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 to assist

him in covering the crime up, 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

L 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

P 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

L 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

L support the trial court's order declaring Drake a vexatious litigant because

_

Willing failed to comply with the first prong of the 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

P vexatious litigant (CR: Vol 1, 608—639); (6) the trial court erred as amatter

m of law when it signed the orders declaring Drake a vexatious litigant because

it failed to apply the "liberal construction" standard to his pleadings.

ipi.

m 81

L. 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,

fff?

which is the first prong in declaring a plaintiff vexatious, pursuant to

Chapter 11 ofthe Texas Practice & Remedies Code.

|ff!>

The Trial Court erred and abused its discretion in the ways described

as pled herein, which were substantial. Appellant Drake requests that the

Court vacate the following orders that were signed on August 19, 2014,

f*pvl

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 its prefiling order, and the August 19, 2014, orders of referral and

recusal.

Appellant finally requests all and any other relief that the court may

grant him that he may show justification.

82

Respectfully submitted,

Appellant Drake

Pro-Se

P.O. Box 833688

Richardson, Texas 75083

214-477-9288

•

83

CERTIFICATE OF SERVICE

I hereby certify that on May 14, 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 of this

appeal because Appellant filed a motion for nonsuit and it was granted.

Scot Graydon

300 West 15th Street, Ste 2

Austin, Texas 78701

512-475-4413

David Harris [Refused copy because case nonsuited at trial level]

300 West 15th Street, Ste 2

Austin, Texas 78701

Telephone: 512-475-4413

Kastl Law P.C. [Refuse to respond-//awr/ 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 14,819 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.

Appellant Drake

Pro-se

May 14,2015

85

1 APPELLANT'S APPENDIX EXHIBITS

APPENDIX ACTUAL EXHIBIT'S ARE SUBMITTED TO

THE COURT IN A SEPARATE BOUND FOLDER

FT

' 1. EXCERPT FROM APPELLANT'S ORIGINAL PETITION FILED

pi

IN THE TRIAL COURT SHOWING THAT APPELLANT SUED

p WILLING AS AN INDIVIDUAL (REQUESTING DAMAGES);

r 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,

fjwl "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;

pw

7. APPELLEE'S ORDER DECLARING APPELLANT AS AN

VEXATIOUS LITIGANT;

lifp#}

86

«$r.

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8. APPELLANT AMENDED RESPONSE TO APPELLEES

DECLARING HIM AS A VEXATIOUS LITIGANT;

iPT

9. RECORDERS RECORD OF THE AUGUST 19, 2014 HEARING

TO DECLARE APPELLANT AS A VEXATIOUS LITIGANT

BEFORE JUDGE CHARLES RAMSAY.

Ipf

[p^

1^1

87