# Eric Drake v. Seana Willing > Texas Court of Appeals, 3rd District (Austin) · May 13, 2015 URL: https://www.frixlaw.com/law-library/cases/4065886 ## Case - **Court:** Texas Court of Appeals, 3rd District (Austin) - **Decided:** May 13, 2015 - **Precedential status:** Published - **Opinion:** Opinion - **Cited by:** 0 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/4065886 ## Opinion text 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 !!p) 1B5I 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 Iwjtf.l ISSUE THREE Whether or not Warren Vavra had the proper legal authority to appoint pffl 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. ftpl 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 i^a Whether or not the trial court abused its discretion in signing the August 19, (ffl 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 5R fell BBS 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. ftwl 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 tiiSJ Issue Two: p3 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: fftJ 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 liiiSl 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 pSI 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 p^ 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. ffpl 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 iwy INDEX OF AUTHORITIES Cases Page ifymj 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 wi vx |wp) r INDEX OF AUTHORITIES Cases Page ^i Lee v. Killian, 761 S.W.2d 139; 1988 Tex. App. [2nd] Lexis 3173 56 j!B P Green v. Chandler. 1 25 Tex. 148 57 (SI 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 jiffl P Johnston v. Loop. 1 2 Tex. 331 57 Bankers v. Calhoun. (Tex. Civ. App.) 209 S.W. 826 57 pi $Ml 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 ixx 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. fepf xx jpsi? 53 APPELLANT'S BRIEF To the Honorable Justices of the Third Court of Appeals: Appellant, Eric Drake ("Drake"), submits his Appellant's Brief. iRI 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. p£? 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 Iffl 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. iSl 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 jfftl probability that Appellant, would not have been successful against her. Appellant was asking the trial court for an injunction and declaratory judg- ipJ) 5S( 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 p5S| 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 ilSI 5S9 fc^ II. Statement of Facts A. Pre-Trial Historv of this litigation. Brief History of Events in the Trial Court: £pl 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. ffil 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 'CT 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. l,w^ I. On July 17, 2014, Defendant Vikki Ogden filed a motion to quash deposition. i.i-fpl 8 c?w 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 'iSl denying the Plaintiffs motion to compel hearing. L. On August 7, 2014, Appellant filed a motion to iwi) recuse all of the district judges as well as County l^V| 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 iBf) SKI r be heard because Scot Graydon demanded it, though the judges opinion was that the lawsuit was dismissed. pi ^i 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 i® lied to the trial court claiming that he had conference with Appellant regarding his motion to declare him as a vexatious litigant. ,$^ 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 fp^ 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 'iSJ Willing motion. \ 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 w\ 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 ttm\ 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 \$m\ party is entitled to appellate relief. See In re Union Pacific Resources Co., FH 17 !B\ 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 pa 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 JfV 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 i*jm\ 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. i.vHi ip$ 21 p^ 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 p^ 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 jjpi/ 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— rwu 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 i(SI 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 $$t iH3 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 p? judge, (Charles Ramsay) because Mr. Vavra is not a judge and pursuant to pi 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 Fsw) K*J 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 pi 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 p^l fflfil 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 (Bfl fiSH 33 1^1 IBB H. Issue Five: w\ 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. $&l 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 r^u 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 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. UpT 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/4065886. Public record. Not legal advice.