Richard K. Archer, M.D. v. Bobby Tunnell ( 2015 )

Order entered June 23, 2015
In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-15-00459-CV
RICHARD K. ARCHER, M.D., ET AL., Appellants
V.
BOBBY TUNNELL, Appellee
On Appeal from the 298th Judicial District Court
Dallas County, Texas
Trial Court Cause No. DC-12-08161-M
ORDER
Before Chief Justice Wright, Justice Lang-Miers and Justice Stoddart
Before the Court is appellee’s May 14, 2015 motion to dismiss the appeal and for
sanctions. This appeal arises in a case involving a vehicular accident in which the driver of the
vehicle in which appellee was traveling allegedly struck one or more cows ostensibly owned by
or under the control of a physician. Appellants appeal the trial court’s April 10, 2015 order
denying their motion to dismiss the case for failure of the appellee to file an expert witness report
under chapter 74 of the Texas Civil Practice and Remedies Code.
We conclude we possess jurisdiction over the appeal of the trial court’s April 10, 2015
order denying appellants’ motion to dismiss. TEX. CIV. PRAC. & REM. CODE ANN. §
51.014(a)(9) (extending appellate jurisdiction to appeals from interlocutory orders denying all or
part of the relief sought by a motion under chapter 74.351(b) of the Civil Practice and Remedies
Code). Accordingly, we DENY the motion to dismiss the appeal. Although appellants also
assert that this Court has appellate jurisdiction over the denial of their plea in abatement or denial
of their motion for summary judgment asserting lack of jurisdiction pursuant to the Employee
Retirement Income Security Act, their notice of appeal does not seek to appeal any such orders
and review of the clerk’s record fails to reveal the existence of any such orders.
We DEFER ruling on appellee’s motion for sanctions. The parties may further address
in their briefs on the merits whether this appeal is frivolous, the appropriate extent of any
sanctions the Court should award, and whether, if sanctions are awarded, they should
appropriately be assessed against the appellants, counsel or both. See TEX. R. APP. P. 45
/s/ CAROLYN WRIGHT
CHIEF JUSTICE