# NO. 05-15-00459-CV

IN THE COURT OF APPEALS FOR THE

FIFTH SUPREME JUDICIAL DISTRICT OF TEXAS

AT DALLAS

________________________________________________________________

Richard K. Archer, Sr., an individual, The Richard K.

Archer Profit Sharing Trust, The Richard K. Archer

Pension and Profit Sharing Plan, the Richard K.

Archer Keogh, and the Richard K. Archer IRA,

APPELLANTS

VS.

Bobby Tunnell, an individual

APPELLEE

APPEALED FROM THE 298 JUDICIAL DISTRICT COURT OF th



# DALLAS COUNTY, TEXAS

[State Court #DC-12-08161-M]

_______________________________________________________________

RESPONSE OF THE ARCHER APPELLANTS IN OPPOSITION TO MOTION TO

DISMISS FOR LACK OF JURISDICTION AND MOTION FOR SANCTIONS OF

APPELLEES

_______________________________________________________________

TO THE HONORABLE COURT OF APPEALS FOR THE FIFTH DISTRICT OF

TEXAS SITTING IN DALLAS:

Come Now, Appellants Richard K. Archer, Sr., an individual, and representative of The

Richard K. Archer Profit Sharing Trust, The Richard K. Archer Pension and Profit Sharing Plan,

the Richard K. Archer Keogh, and the Richard K. Archer IRA, and Ruth E. Archer, and file this

their Response of the Archer Appellants In Opposition to Motion to Dismiss For Lack of

Jurisdiction and Motion for Sanctions of Appellees (erroneously denominated as Appellant in the

first paragraph of Appellees Motion) and would show the Court the following:

Page 1 ACCEPTED

05-15-00459-CV

FIFTH COURT OF APPEALS

DALLAS, TEXAS

5/19/2015 9:10:21 AM

LISA MATZ

CLERK

# I. The Archer Appellants respond and clarify Appellee’s rendition of the case

background because it is misleading and a distortion of the true facts in Appellant (sic) Tunnells

favor to such an extent as to be a total mischaracterization of what actually took place.

In addressing the petition for writ of mandamus filed by Richard K. Archer, Sr., et al,

Appellee suggests Archer waited until the week before the scheduled trial setting to do so.

Appellee states the Archer Motion to Dismiss had not been set for hearing before trial. Although

true it was not because a setting had not been requested as suggested by the Appellee. The

request for a setting was made and the Court Clerk advised that the Motion would not be set

before trial because there was not time available (see affidavit of Jonathan Bearrie, attached

hereto as Exhibit “A”). (Tr. P.11). Likewise, Jonathan Bearrie appeared at the pre-trial on the

week before January 12, 2015, to urge the motion at the pretrial conference - see Exhibit 7-A to

Appellees Motion which specifies “Pretrial Conference - 1 week before trial.” When counsel

appeared at the pretrial to urge the Motion to Dismiss he was advised nothing was set and the

Motion would be not be heard. Accordingly, Archer Appellants filed their Petition for Writ of

Mandamus seeking a ruling on their Motion to Dismiss before trial to avoid an argument of

waiver. The trial court denied said motion. That matter did not delay the trial, as asserted by

Appellee, the trial was simply not reached that trial week – another false implication suggested

by Tunnell’s counsel. The Petition for Writ of Mandamus simply sought to have the trial court

rule one way or the other since the Archer appellants could not get a setting before trial to hear

said motion to avoid any waiver of that motion.

The Appellee implies that the Archer Appellants were dilatory in getting the Motion to

Dismiss set for hearing following the resetting of the trial date due to not being reached in

Page 2

# January by asserting that the motion was set just days before the trial was scheduled – yet another

distortion. In view of the prior problems in getting a setting due to the Court’s busy schedule ,

the Archer Appellees obtained two dates for the hearing and were advised those two dates were

the only two available (see Bearrie affidavit) and when the earlier setting of the two was

requested the Appellees counsel – Dean Boyd – advised he could not do it on that date because

he would be on vacation, see Boyd letter attached as Exhibit “B” hereto. Again, the Appellees

implication the Archer Appellants waited until the last moment to schedule a hearing is

disingenuous and simply false. The vicissitudes of the trial courts docket are something over

which Appellants have no control and to suggest they planned these delays is simply false.

Until the Supreme Court changed directions on May 1, 2015, in Ross v. St. Luke’s

Episcopal Hospital , the law was clear that Appellants Archer were entitled to have the case

dismissed for lack of an expert report pursuant to West Oaks Hospital, LP v. Williams, supra

.

Appellants Archer was through counsel pursuing their rights as enunciated in West Oaks

Hospital . To do anything less would have been malpractice at the time.

At page 5 of Appellee’s Motion the suggestion is made by Leighton Durham that he sent

a letter to Appellants counsel as a matter of professional courtesy “requesting dismissal of the

case.” Counsel did send such a letter but it was anything but a courtesy. The letter challenged

Appellants counsel’s ethics, was sprinkled with snide remarks and demanded dismissal on threat

of sanctions (see Appellants “Status Report” filed May 7 , 2015). th



# At p.6 of the Motion, Leighton Durham claims to have sent a second letter to Philip R.

Russ demanding the appeal be dismissed. Such a statement is another falsehood by Mr. Durham.

No such letter has been received by this office to date. The first time the purported letter was

Page 3

# seen by Appellants office was as the exhibit to Appellee’s motion.

Motion to Dismiss:

Appellants move the Court to affirm the Trial Court’s denial of the Motion to Dismiss

rather then dismissal for want of jurisdiction. This request is supported by the Supreme Court’s

ruling in Ross , supra.

Motion for Sanctions:

Appellants’ counsel has not “repeatedly demonstrated a willingness to pursue patently

frivolous arguments in an obvious effort to unnecessarily delay trial and increase the cost of

litigation.” Such a statement is another falsehood in an effort by Mr. Durham to falsely cast the

implication of delay on appellants counsel. Appellants did not wait until the eve of trial to seek a

ruling on the motions to dismiss – indeed, that was one of only two times the Court would

schedule the motion, the earlier setting being ruled out by Mr. Boyd’s vacation plans. (See

Bearrie affidavit hereto attached and Dean Boyd February 18, 2015 vacation letter, Exhibit “B”

hereto).

It is one thing to characterize the facts in the light most favorable to one’s client, it is

entirely a different matter to cast the facts to give a totally false impression of what actually

occurred. Mr. Durham has done that in an apparent effort to bootstrap his client into a position to

claim sanctions and somehow gain an unfair advantage. This Court should not countenance such

behavior.

The balance of the Appellee’s argument at p.9 of the Appellee’s Motion the Appellants

will not raise to dignity of a response.

Appellees position is little more than an assertion that the Archer Appellants are not

Page 4

# entitled to representation and if they assert their rights as set forth in West Oaks , supra, they

should be sanctioned. Such a position should not be countenamed by this Court.

Wherefore, premises considered Appellants/Defendants request the Appellees’ Motion be

denied.

Respectfully Submitted,

Jonathan J Bearrie, Esq.

SBN 24034990

The Littlefield Building

106 E. Sixth Street, 9 Floor th



# Austin, Texas 78701

Tel. 512-938-8862 / 212-203-0795

bearrie@gmail.com

-andPhilip R. Russ

L AW 

# O FFICES OF 

# P HILIP 

# R. R USS



# 2700 S. Western, Suite 1200

Amarillo, Texas 79109

(Tel.) 806-358-9293 / (Fax) 806-385-9296

philiprruss@russlawfirm.com

BY: /s/ Philip R. Russ

Philip R. Russ, SBN: 17406000

CERTIFICATE OF SERVICE

This certifies that on the 19 day May, 2015, I electronically filed the forgoing th



# Appellants’ Brief with the Clerk of the 5 Court of Appeals, by using the CM/ECF system which th



# will send notice of electronic filing and a courtesy copy to the opposing council to the following

email addresses: dean@deanboyd.com, durham@kdplawfirm.com

BY: /s/ Philip R. Russ

Philip R. Russ, SBN: 17406000

ATTORNEYS FOR APPELLANTS

Page 5EXHIBIT''A''-CAUSENO.DC-12-08161-MBOBBYTUNNELL§§Plaintiff,§vs.§§RACHELANDREW,RUTHIEANDREW§GRANT,RICHARDARCHER,ARCHER§FARMS,LLC,DONNIETRAMMELL,§RICHARDK.ARCHER,Individuallyandas§TrusteeoftheRICHARDK.ARCHERPROFIT§SHARINGTRUST,RICHARDK.ARCHER,§IndividuallyandasRepresentativeand/orTrustee§oftheRICHARDK.ARCHERPENSIONPLAN,§RICHARDK.ARCHER,Individuallyandas§RepresentativeoftheRICHARDK.ARCHER§KEOGH,RICHARDK.ARCHER,Individually§andasRepresentativeoftheRICHARDK.§ARCHERIRA,ABusinessEntityKnownas§REBACATTLE,LLC,RUTHE.ARCHER,§RICHARDK.ARCHER,Individuallyandas§Representativeand/orTrusteeoftheRICHARD§K.ARCHERPROFITSHARINGPLAN,and§RICHARDK.ARCHER,Individuallyandas§TrusteeoftheRICHARDK.ARCHERM.D.P.A.§PROFITSHARINGPLANANDTRUST,§Defendants.INTHEDISTRICTCOURTDALLASCOUNTY,TEXAS2981hJUDICIALDISTRICTAFFIDAVITOFJONATHANBEARRIESTATEOFTEXAS§§COUNTYOFPOTTER§BEFOREME,theundersignedauthoritypersonallyappearedJONATHANJ.BEARRIE,whobeingbymedulysworn,deposedasfollows:1.MynameisJONATHANJ.BEARRIE,1amovertheageoftwenty-one(21)years,IhaveneverbeenconvictedofacrimeandIamdulycompetentinallrespectstomakePageI"thisaffidavit.Iamoneoftheattorneysinthiscase,mystatebarlicense#is24034990.Ihavepersonalknowledgeofallthefactsandcircumstancessetforthinthisaffidavitandtheyaretrueandcorrect,2.Icalledtheclerk'softhe2981hDistrictCourtinanefforttoscheduletheMotiontoDismissforFailuretoFileandExpertReportpursuantto§74.35ITexasMedicalHealthcareactinthefallof2014shortlyafterourmotionwasfiledonbehalfofRichardK.Archer,Sr.,M.D.IwasadvisedbytheCourt'sstaffthatsincethetrialsettingfortheTunnellv.Archercasewasintwo(2)monthstherewasnotimetoschedulethehearingthatwasavailablebeforethetrialsettingofJanuary12,2015.ThecasewasnumberfourontheCourt'sdocketthattrialweekandwasresetfortrialontheCourt'sApril13,2015docket.Wewerenumberfourfortrialthatweekandwerenotreached.3.DefendantArchers'MotiontoDismisshadnotbeenheardpriortothelastsetting.IcalledtheCourt'sstafftorequesttheearliestsettingforsaidMotionandwasgiventwodates,eitherMarch27,2015orApril10,2015,astheonlydatesavailable.InitiallyIscheduledthehearingforthe27•hdayofMarch,2015.WhenIadvisedDeanBoyd,Esq.,ofthissettingdateandtimeherespondedbyletterstatinghewouldbeonvacationthatdate.AccordinglythehearingwassetFriday,April10,2015,precedingthetrialweek.Iwasadvisedbythecourt'sstaffthattheseweretheonlytwodatesavailable.4.ThesettingforthehearingontheArcher'sMotiontoDismisswasnotscheduledatthelastminutebeforetrialasimpliedbyTunnell,itwasscheduledpursuanttotheCourtClerk'sinstructionthatonlytwodateswereavailableandtheearlierdatewasnotavailableduePage2toDeanBoyd'svacationschedule,seeBoydletterdatedFebruary18,2015.Furtheraffiantsayethnaught.Datedandsignedthis19thdayofMay2015SUBSCRIBEDANDSWORNTObeforeme,theundersignedauthority,onthis191hdayofMay2015.o.-dYJ~~NOTARtPUBLICPagelEXHIBIT''B''ATTORNEYDEANBOYD-THESTRONGARMFeliciaPitreDALLASCOUNTYDISTRICTCLERK600CommerceDallas,Texas75202February18,2015(806)242-33332505lakeviewOr.Ste.100Amarillo,TX79109www.deanboyd.comIIaRe:CauseNo.DC-12-08161;BobbyTunnellv.RichardArchereJal.;Inthe298111DistrictCourtofDallasCounty.TexasDearMs.Pitre:Pleasebeadvisodthattheundersignedattorneywishestodesignatethefollowingscheduleasvacationdatesforcalendaryear2011:March27,2015toApril8,2015July17,2015-Augustl,2015PleaseacceptthisletterasaformaldesignationthatisintendedtocomplywithallLocalRulesofCourtregulatingvacation-week:designations.Totheextentthatyourcountymayrefusetorecognizesuchdesignation,Iwouldaskthatallcounselofrecordrefrainfromsettinganyhearingsortrialsdmingthereferencedwoeb.Ifyouhaveanyquestionsorconcerns,pleasedonothesitatetocontactme.Thankyouforyowcourtesies.Sincerely,DeanBoyd(806)242-3333