Tunnell sued Archer for negligence after a truck accident involving Archer’s cattle. The trial court declined to dismiss Tunnell’s claim for failure to file an expert report under a statute related to claims against health care providers (Archer was a doctor), and Archer appealed that denial. After a Texas Supreme Court opinion clarified the underlying statute,Tunnell contended that Archer’s appeal not only no longer had merit, but had become frivolous and sanctionable.
After Archer continued with the appeal on other grounds, the Fifth Court agreed with Tunnell and sanctioned Archer and his counsel for the costs of the motion to dismiss: “After the supreme court’s opinion in Ross, there were no reasonable grounds for an advocate to believe the case could be reversed. However, appellants did not dismiss this frivolous appeal. Instead, appellants’ counsel filed a brief on the merits asserting ERISA preemption based on non-existent orders that this Court lacked jurisdiction to consider. No reasonable counsel could believe the ERISA-preemption argument was a reasonable ground for reversal in this case when there was no written order on a motion asserting the argument and no statute permits an interlocutory appeal from such an order. In these circumstances, we conclude that appellants and their counsel’s actions are so egregious as to warrant the award to Tunnell of just damages from appellants and their counsel for their pursuit of this frivolous appeal.” Archer v. Tunnell, No. 05-15-00459-CV (Feb. 9, 2016) (mem. op.)