Case Information

*0 FILED IN 3rd COURT OF APPEALS AUSTIN, TEXAS 12/4/2015 4:07:29 PM JEFFREY D. KYLE Clerk No. 03-13-00790-CV THIRD COURT OF APPEALS 12/4/2015 4:07:29 PM JEFFREY D. KYLE AUSTIN, TEXAS 03-13-00790-CV *1 ACCEPTED ^[8101329] CLERK IN THE COURT OF APPEALS FOR THE THIRD DISTRICT OF TEXAS AT AUSTIN T. MARK ANDERSON AND CHRISTINE ANDERSON, AS CO-

EXECUTORS OF THE ESTATE OF TED ANDERSON Appellants/Cross-Appellees, v.

RICHARD T. ARCHER, DAVID B. ARCHER, CAROL ARCHER BUGG,

JOHN V. ARCHER, KAREN ARCHER BALL, AND SHERRI ARCHER

Appellees/Cross-Appellants. APPELLEES/CROSS-APPELLANTS’ OPPOSITION TO MOTION FOR

LEAVE TO FILE CROSS-APPELLEES’ BRIEF AND APPELLEES/CROSS-APPELLANTS’ MOTION TO STRIKE CROSS-APPELLEES’ BRIEF Laurie Ratliff

State Bar No. 00784817

Frank N. Ikard, Jr.

State Bar No. 10386000

IKARD GOLDEN JONES P.C.

400 W. 15th St., Suite 975

Austin, Texas 78701

Telephone: (512) 472-6695

Telecopier: (512) 472-3669

laurieratliff@igjlaw.com ATTORNEYS FOR APPELLEES/CROSS-APPELLANTS *2 NO. 03-13-00790-CV IN THE COURT OF APPEALS FOR THE THIRD DISTRICT OF TEXAS AT AUSTIN T. MARK ANDERSON AND CHRISTINE ANDERSON, AS CO-

EXECUTORS OF THE ESTATE OF TED ANDERSON Appellants/Cross-Appellees, v.

RICHARD T. ARCHER, DAVID B. ARCHER, CAROL ARCHER BUGG,

JOHN V. ARCHER, KAREN ARCHER BALL, AND SHERRI ARCHER

Appellees/Cross-Appellants. APPELLEES/CROSS-APPELLANTS’ OPPOSITION TO MOTION FOR

LEAVE TO FILE CROSS-APPELLEES’ BRIEF AND APPELLEES/CROSS-APPELLANTS’ MOTION TO STRIKE CROSS-APPELLEES’ BRIEF

TO THE HONORABLE THIRD COURT OF APPEALS:

Appellees/Cross-Appellants, Richard T. Archer, David B. Archer, Carol

Archer Bugg, John V. Archer, Karen Archer Ball, and Sherri Archer (the Archer

Family), respectfully file their Opposition to Motion for Leave to File Cross-

Appellees’ Brief and their Motion to Strike Cross-Appellees’ Brief and request that

2

the Court deny the motion for leave and strike the brief submitted on December 3,

2015.

Introduction A substitution of counsel is not authorization to resurrect long-passed

deadlines. The Rules of Appellate Procedure do not provide for, and this Court

should not permit, a more than nine-month extension of time by granting a motion

for leave. Cross-Appellees’ brief in this case was initially due March 9, 2015.

Cross-Appellees offer no evidence, no good cause, and no reasonable explanation

(other than the filing of a motion to substitute counsel) for allowing them to avoid

the clear deadlines in the rules. See T EX . R. A PP . P. 38.6(b) (appellee’s brief due 30

days after appellant’s brief is filed).

To grant Cross-Appellees’ eleventh-hour motion for leave to file a brief nine

months after the deadline—when Cross-Appellees intentionally chose not to file a

brief—turns the deadlines in Rule 38.6 on their head.

I. Cross-Appellees offer no reason for the Court to reverse its earlier orders

on this very issue.

This Court has addressed the failure of Cross-Appellees to file a brief on three

previous occasions. On all three occasions, this Court ordered the appeal to be

submitted without a Cross-Appellees’ brief. In their motion for leave, Cross-

Appellees offer no reason for this Court to reverse these prior orders.

3

First, the Court ordered the case to be submitted without Cross-Appellees’

brief after Cross-Appellees chose not to file their brief.

Appellants filed their opening brief on November 6, 2014. On February 6,

2015, the Archer Family filed their combined brief, responding to Appellants’ issues

and also raising issues on cross-appeal. Cross-Appellees’ brief was due March 9,

2015. Ex. A. Cross-Appellees requested, and this Court granted, three extensions

of time to file Cross-Appellees’ brief. Exs. B, C, & D.

Despite the three extensions of time, Cross-Appellees, one of whom is a

double-board certified attorney, chose not to respond to the Archer Family’s cross-

appeal. Ex. E, F, & Court’s website (indicating “brief was not filed” as of May 27,

2015).

With no Cross-Appellees’ brief filed, the Court placed the case on its ready

docket with the briefs on file as of May 27, 2015 and dismissed Cross-Appellees’

fourth motion for extension of time as moot. Ex. G & Court’s website (indicating

case “ready to be set” as of May 27, 2015).

The Court next considered Cross-Appellees’ failure to file a brief in the

Archer Family’s Motion to Allocate Time for Oral Argument. See T EX . R. A PP . P.

39.1 (limiting oral argument to parties who have filed a brief); 39.2 (purpose of oral

argument is to emphasize and clarify written arguments in the brief); & 39.6 (court

may allow oral argument when only one party has filed a brief). The Court granted

4

the Archer Family’s motion and, because no Cross-Appellees’ brief was filed, the

Court allocated oral argument time without permitting a response to the cross appeal.

Ex. H.

Finally, on December 3, 2015, the Court considered the Cross-Appellees’

failure to file a brief. In its December 3, 2015 notice of setting the case for oral

argument for January 27, 2016, the Court again ordered that oral argument time will

be allocated without permitting a response to the cross appeal. Ex. I.

Cross-Appellees offer no explanation why this Court should reverse its earlier

orders. Accordingly, this Court’s prior orders to submit the case without a Cross-

Appellees’ brief compel this Court to deny the motion for leave.

II. Cross-Appellees offer no legal support and no reasonable explanation for

filing a brief nine months after the initial deadline.

Notwithstanding the Court’s prior orders to submit with case without Cross-

Appellees’ brief, none of Cross-Appellees’ excuses support this Court granting leave

to file a brief that is nine months late.

First, Cross-Appellees’ primary argument for allowing them to circumvent

Rule 38.6(b) and file their Cross-Appellees’ brief nine months after the initial

deadline is that they substituted counsel . A substituting attorney, however, takes the

case and deadlines as he finds them. That Cross-Appellees substituted counsel long

after the Court designated the case as “ready to be set” does not support modifying

the briefing deadlines in the rules. Nothing in the rules permits a substitution of

5

counsel to restart long-expired deadlines. Otherwise, the deadlines in Rule 38.6 have

no meaning.

Second, Cross-Appellees offer no reasonable explanation for their failure to

file a cross-appellees’ brief during the relevant time period. Cross-Appellees’ brief

was initially due on March 9, and by extensions, as late as May 8, 2015. Nowhere

in Cross-Appellees’ motion for leave do they explain or even mention the March

through May 2015 time period when their brief was due, but not filed. Instead,

Cross-Appellees rely on an August 2015 purported health issue of their prior

counsel.

Third, Cross-Appellees rely on this purported health issue of their prior

counsel to support their motion for leave. Mot. at p. 2. Prior counsel’s purported

health issue in August 2015 (that was used to postpone the previous oral argument

setting of September 2, 2015), however, does not explain Cross-Appellees’ failure

to timely file a brief during March through May of 2015. Mot. at 2; Ex. J.

Further, contrary to Cross-Appellees’ characterization, their prior counsel’s

health in August 2015 has no bearing on the March through May 2015 time period

when the Cross-Appellees’ brief was due. In fact, Cross-Appellees’ prior counsel’s

purported health condition that was used to delay submission of this case is expressly

prospective. Ex. K. Cross-Appellees’ prior counsel’s motion states that he, “has

personal health conditions which have become disabling and incompatible with

6

continuation of proper representation of Movants herein.” Ex. K (Mot. for

Continuance at p.1) (emphasis added). The health excuse states nothing about prior

counsel’s purported health condition five months before when Cross-Appellees’

brief was due, but not filed. Even if prior counsel’s purported health had any bearing

on this issue, why is it only being raised nine months after the deadline?

Accordingly, Cross-Appellees allegation of “good cause” does not support the

motion for leave to file a brief nine months after the initial deadline.

Fourth, Cross-Appellees contend that this Court will “benefit” from a cross-

appellees’ brief. Mot. at p.2. No one deprived Cross-Appellees of their opportunity

to “benefit” the Court with a brief responding to the cross appeal. Quite the contrary:

the Court gave Cross-Appellees every opportunity to file their Cross-Appellees’

brief by granting three extensions of time. That Cross-Appellees, one of whom is a

double-board certified attorney, chose not to file a cross-appellees’ brief is not an

excuse to now justify a motion for leave to file a brief nine months after the deadline.

Cross-Appellees had the opportunity to file a brief; they simply chose not to do so.

Finally, Cross-Appellees make the absurd statement that the Archers are not

harmed by their filing of a brief nine months after the initial deadline. To the

contrary, the Archer Family is harmed by this eleventh-hour attempt to file a brief

that is not contemplated by the rules. Rule 38.6 provides for specific deadlines for

filing briefs. T EX . R. A PP . P. 38.6. The Archers have complied with those briefing

7

deadlines. Cross-Appellees, despite three extensions, chose not to abide by the

briefing deadlines. Because Cross-Appellees chose not to file a cross-appellees’

brief, and as this Court has already ordered three times, the Archer Family’s cross

appeal proceeds unanswered and without Cross-Appellees’ brief. Allowing Cross-

Appellees to now file a brief under these circumstances causes the Archer Family

harm.

Further, if the Court grants the motion for leave, the Archer Family is harmed

by the obligation to file a reply brief responding to Cross-Appellees’ brief.

Accordingly, the Archer Family requests that this Court deny the motion for

leave, adhere to the Court’s earlier orders on Cross-Appellees’ brief, and submit the

case for oral argument without Cross-Appellees’ brief.

III. The Court should strike Cross-Appellees’ brief submitted December 3,

2015.

With their motion for leave, Cross-Appellees submitted their Cross-

Appellees’ brief to the Court on December 3, 2015. Because there is no basis for

the motion for leave, this Court should strike Cross-Appellees’ brief. Accordingly,

the Archer Family requests that the Court grant their motion to strike and not

consider the previously submitted Cross-Appellees’ brief.

For these reasons, Appellees/Cross-Appellants Richard T. Archer, David B.

Archer, Carol Archer Bugg, John V. Archer, Karen Archer Ball, and Sherri Archer

respectfully request that this Court deny Cross-Appellees’ Motion for Leave to File

8

Cross-Appellees’ Brief, grant their Motion to Strike and strike and not consider the

Cross-Appellees’ brief that was submitted on December 3, 2015. The Archer Family

prays for such other and further relief to which they may be entitled.

Respectfully submitted, I KARD G OLDEN J ONES , P.C. /s/ Laurie Ratliff Laurie Ratliff State Bar No. 00784817 Frank N. Ikard, Jr.

State Bar No. 10386000 400 West 15th Street, Suite 975 Austin, Texas 78701 Telephone: (512) 472-6695 Telecopier: (512) 472-3669 laurieratliff@igjlaw.com ATTORNEYS FOR APPELLEES/CROSS-APPELLANTS R ICHARD T. A RCHER , D AVID B. A RCHER , C AROL A RCHER B UGG , J OHN V. A RCHER , K AREN A RCHER B ALL AND S HERRI A RCHER 9

CERTIFICATE OF SERVICE I hereby certify that on the date listed below a copy of Appellees/Cross-

Appellants’ Response in Opposition to Motion for Leave to File Cross-Appellees’

Brief and Appellees/Cross-Appellants’ Motion to Strike Cross-Appellees’ Brief was

served on the counsel of record listed below via electronic delivery in accordance

with the Texas Rules of Appellate Procedure on this 4th day of December 2015:

Via e-service file and email

Scott R. Kidd

K IDD L AW F IRM

819 West 11th

Austin, Texas 78701

Attorneys for Appellants/Cross-Appellees

T. Mark Anderson and Christine Anderson

/s/ Laurie Ratliff Laurie Ratliff t:\archer 3 2007 tortious interference\appeal\motions\response opposing motion for leave to file cross-

appellees' brief.docx

10

FILE COPY Appellees/Cross-Appellants’ Opposition to Motion for Leave to File

Cross-Appellees’ Brief and Appellees/Cross-Appellants’ Motion to

Strike Cross-Appellees’ Brief Exhibit A *12 C OURT OF A PPEALS

THIRD DISTRICT OF TEXAS P.O. BOX 12547, AUSTIN, TEXAS 78711-2547 www.txcourts.gov/3rdcoa.aspx (512) 463-1733 JEFF L. ROSE, CHIEF JUSTICE JEFFREY D. KYLE, CLERK DAVID PURYEAR, JUSTICE BOB PEMBERTON, JUSTICE MELISSA GOODWIN, JUSTICE SCOTT K. FIELD, JUSTICE CINDY OLSON BOURLAND, JUSTICE February 13, 2015

Mr. Gerald D. McFarlen Ms. Laurie Ratliff

28 Fabra Oaks Road Ikard Golden Jones, P.C.

Boerne, TX 78006-2831 400 West 15th Street, Suite 975

* DELIVERED VIA E-MAIL * Austin, TX 78701

* DELIVERED VIA E-MAIL * RE: Court of Appeals Number: 03-13-00790-CV

Trial Court Case Number: D-1-GN-07-002328

Style: Appellants, T. Mark Anderson, as Co-Executor of the Estate of Ted Anderson, and

Christine Anderson, as Co-Executor of the Estate of Ted Anderson// Cross-Appellants,

David R. Archer, Carol Archer Bugg, John V. Archer, Karen Archer Ball, and Sherri

Archer

v.

Appellees, Richard T. Archer, David R. Archer, Carol Archer Bugg, John V. Archer,

Karen Archer Ball, and Sherri Archer// Cross-Appellees,T. Mark Anderson, individually

and as Co-Executor of the Estate of Ted Anderson, Christine Anderson

Dear Counsel:

Please disregard this Court’s notice dated February 12, 2015. Brief of appellees and cross-

appellants’ was filed in this Court on February 6, 2015. Accordingly, cross-appellees’ brief is due

on or before March 9, 2015.

Very truly yours, JEFFREY D. KYLE, CLERK BY: F. Hewtty Frances Hewtty, Deputy Clerk *13 FILE COPY Appellees/Cross-Appellants’ Opposition to Motion for Leave to File

Cross-Appellees’ Brief and Appellees/Cross-Appellants’ Motion to

Strike Cross-Appellees’ Brief Exhibit B *14 C OURT OF A PPEALS T HIRD D ISTRICT OF T EXAS P.O. BOX 12547, AUSTIN, TEXAS 78711-2547 www.txcourts.gov/3rdcoa.aspx (512) 463-1733 JEFF L. ROSE, CHIEF JUSTICE JEFFREY D. KYLE, CLERK DAVID PURYEAR, JUSTICE BOB PEMBERTON, JUSTICE MELISSA GOODWIN, JUSTICE SCOTT K. FIELD, JUSTICE CINDY OLSON BOURLAND, JUSTICE March 10, 2015

Mr. Gerald D. McFarlen Ms. Laurie Ratliff

28 Fabra Oaks Road Ikard Golden Jones, P.C.

Boerne, TX 78006-2831 400 West 15th Street, Suite 975

* DELIVERED VIA E-MAIL * Austin, TX 78701

* DELIVERED VIA E-MAIL * RE: Court of Appeals Number: 03-13-00790-CV

Trial Court Case Number: D-1-GN-07-002328

Style: Appellants, T. Mark Anderson, as Co-Executor of the Estate of Ted Anderson, and

Christine Anderson, as Co-Executor of the Estate of Ted Anderson// Cross-Appellants,

David R. Archer, Carol Archer Bugg, John V. Archer, Karen Archer Ball, and Sherri

Archer

v. Appellees, Richard T. Archer, David R. Archer, Carol Archer Bugg, John V. Archer,

Karen Archer Ball, and Sherri Archer// Cross-Appellees,T. Mark Anderson,

individually and as Co-Executor of the Estate of Ted Anderson, Christine Anderson

Dear Counsel:

Cross-appellees' motion for extension of time to file brief was granted by this Court on the

date noted above. The deadline for filing cross-appellees' brief is extended to March 23, 2015 .

Very truly yours,

JEFFREY D. KYLE, CLERK BY: E. Talerico Liz Talerico, Deputy Clerk *15 FILE COPY Appellees/Cross-Appellants’ Opposition to Motion for Leave to File

Cross-Appellees’ Brief and Appellees/Cross-Appellants’ Motion to

Strike Cross-Appellees’ Brief Exhibit C *16 C OURT OF A PPEALS T HIRD D ISTRICT OF T EXAS P.O. BOX 12547, AUSTIN, TEXAS 78711-2547 www.txcourts.gov/3rdcoa.aspx (512) 463-1733 JEFF L. ROSE, CHIEF JUSTICE JEFFREY D. KYLE, CLERK DAVID PURYEAR, JUSTICE BOB PEMBERTON, JUSTICE MELISSA GOODWIN, JUSTICE SCOTT K. FIELD, JUSTICE CINDY OLSON BOURLAND, JUSTICE April 7, 2015

Mr. Gerald D. McFarlen Ms. Laurie Ratliff

28 Fabra Oaks Road Ikard Golden Jones, P.C.

Boerne, TX 78006-2831 400 West 15th Street, Suite 975

* DELIVERED VIA E-MAIL * Austin, TX 78701

* DELIVERED VIA E-MAIL * RE: Court of Appeals Number: 03-13-00790-CV

Trial Court Case Number: D-1-GN-07-002328

Style: Appellants, T. Mark Anderson, as Co-Executor of the Estate of Ted Anderson, and

Christine Anderson, as Co-Executor of the Estate of Ted Anderson// Cross-Appellants,

David R. Archer, Carol Archer Bugg, John V. Archer, Karen Archer Ball, and Sherri

Archer

v. Appellees, Richard T. Archer, David R. Archer, Carol Archer Bugg, John V. Archer,

Karen Archer Ball, and Sherri Archer// Cross-Appellees,T. Mark Anderson,

individually and as Co-Executor of the Estate of Ted Anderson, Christine Anderson

Dear Counsel:

Cross-appellees' motion for extension of time to file brief was granted by this Court on the

date noted above. The deadline for filing cross-appellees' brief is extended to April 10, 2015 .

Very truly yours,

JEFFREY D. KYLE, CLERK BY: E. Talerico Liz Talerico, Deputy Clerk *17 FILE COPY Appellees/Cross-Appellants’ Opposition to Motion for Leave to File

Cross-Appellees’ Brief and Appellees/Cross-Appellants’ Motion to

Strike Cross-Appellees’ Brief Exhibit D *18 C OURT OF A PPEALS T HIRD D ISTRICT OF T EXAS P.O. BOX 12547, AUSTIN, TEXAS 78711-2547 www.txcourts.gov/3rdcoa.aspx (512) 463-1733 JEFF L. ROSE, CHIEF JUSTICE JEFFREY D. KYLE, CLERK DAVID PURYEAR, JUSTICE BOB PEMBERTON, JUSTICE MELISSA GOODWIN, JUSTICE SCOTT K. FIELD, JUSTICE CINDY OLSON BOURLAND, JUSTICE April 13, 2015

Mr. Gerald D. McFarlen Ms. Laurie Ratliff

28 Fabra Oaks Road Ikard Golden Jones, P.C.

Boerne, TX 78006-2831 400 West 15th Street, Suite 975

* DELIVERED VIA E-MAIL * Austin, TX 78701

* DELIVERED VIA E-MAIL * RE: Court of Appeals Number: 03-13-00790-CV

Trial Court Case Number: D-1-GN-07-002328

Style: Appellants, T. Mark Anderson, as Co-Executor of the Estate of Ted Anderson, and

Christine Anderson, as Co-Executor of the Estate of Ted Anderson// Cross-Appellants,

David R. Archer, Carol Archer Bugg, John V. Archer, Karen Archer Ball, and Sherri

Archer

v. Appellees, Richard T. Archer, David R. Archer, Carol Archer Bugg, John V. Archer,

Karen Archer Ball, and Sherri Archer// Cross-Appellees,T. Mark Anderson,

individually and as Co-Executor of the Estate of Ted Anderson, Christine Anderson

Dear Counsel:

Cross-appellees' motion for extension of time to file brief was granted by this Court on the

date noted above. The deadline for filing cross-appellees' brief is extended to April 17, 2015 .

Very truly yours,

JEFFREY D. KYLE, CLERK BY: E. Talerico Liz Talerico, Deputy Clerk *19 FILE COPY Appellees/Cross-Appellants’ Opposition to Motion for Leave to File

Cross-Appellees’ Brief and Appellees/Cross-Appellants’ Motion to

Strike Cross-Appellees’ Brief Exhibit E *20 C OURT OF A PPEALS T HIRD D ISTRICT OF T EXAS P.O. BOX 12547, AUSTIN, TEXAS 78711-2547 www.txcourts.gov/3rdcoa.aspx (512) 463-1733 JEFF L. ROSE, CHIEF JUSTICE JEFFREY D. KYLE, CLERK DAVID PURYEAR, JUSTICE BOB PEMBERTON, JUSTICE MELISSA GOODWIN, JUSTICE SCOTT K. FIELD, JUSTICE CINDY OLSON BOURLAND, JUSTICE April 27, 2015

Mr. Gerald D. McFarlen

28 Fabra Oaks Road

Boerne, TX 78006-2831

* DELIVERED VIA E-MAIL *

RE: Court of Appeals Number: 03-13-00790-CV

Trial Court Case Number: D-1-GN-07-002328

Style: Appellants, T. Mark Anderson, as Co-Executor of the Estate of Ted Anderson, and

Christine Anderson, as Co-Executor of the Estate of Ted Anderson// Cross-Appellants,

David R. Archer, Carol Archer Bugg, John V. Archer, Karen Archer Ball, and Sherri

Archer

v. Appellees, Richard T. Archer, David R. Archer, Carol Archer Bugg, John V. Archer,

Karen Archer Ball, and Sherri Archer// Cross-Appellees,T. Mark Anderson,

individually and as Co-Executor of the Estate of Ted Anderson, Christine Anderson

Dear Counsel:

Cross-Appellees’ brief was due in this Court on April 17, 2015, and is overdue. See Tex. R.

App. P. 38.6. If this Court does not receive Cross-Appellees’ brief on or before Friday, May 08,

2015 , this cause may be submitted on appellants’ and appellees/cross appellants’ briefs alone.

Further motions for extension of time may not be considered. Very truly yours, Jeffrey D. Kyle

JEFFREY D. KYLE, CLERK cc: Ms. Laurie Ratliff

Appellees/Cross-Appellants’ Opposition to Motion for Leave to File

Cross-Appellees’ Brief and Appellees/Cross-Appellants’ Motion to

Strike Cross-Appellees’ Brief Exhibit F *22 http://www.tbls.org/Directory/Attorney.aspx Search

?

Search Results Name Firm / Organization Specialization

Mr. T. Mark Anderson T. Mark Anderson, P.C. 1996 Real Estate Law - Commercial

Mr. T. Mark Anderson T. Mark Anderson, P.C. 1996 Real Estate Law - Residential

Texas Board of Legal Specialization, 505 E. Huntland Dr., Ste. 400, LB 28, Austin, TX 78752 • 1-855-277-TBLS(8257)

Copyright © 2015 Texas Board of Legal Specialization

12/4/2015 3:37 PM *23 FILE COPY Appellees/Cross-Appellants’ Opposition to Motion for Leave to File

Cross-Appellees’ Brief and Appellees/Cross-Appellants’ Motion to

Strike Cross-Appellees’ Brief Exhibit G *24 C OURT OF A PPEALS T HIRD D ISTRICT OF T EXAS P.O. BOX 12547, AUSTIN, TEXAS 78711-2547 www.txcourts.gov/3rdcoa.aspx (512) 463-1733 JEFF L. ROSE, CHIEF JUSTICE JEFFREY D. KYLE, CLERK DAVID PURYEAR, JUSTICE BOB PEMBERTON, JUSTICE MELISSA GOODWIN, JUSTICE SCOTT K. FIELD, JUSTICE CINDY OLSON BOURLAND, JUSTICE May 27, 2015

Mr. Gerald D. McFarlen Ms. Laurie Ratliff

The Law Office of Gerald D. McFarlen, PC Ikard Golden Jones, P.C.

28 Fabra Oaks Road 400 West 15th Street, Suite 975

Boerne, TX 78006-2831 Austin, TX 78701

* DELIVERED VIA E-MAIL * * DELIVERED VIA E-MAIL *

RE: Court of Appeals Number: 03-13-00790-CV

Trial Court Case Number: D-1-GN-07-002328

Style: Appellants, T. Mark Anderson, as Co-Executor of the Estate of Ted Anderson, and

Christine Anderson, as Co-Executor of the Estate of Ted Anderson// Cross-Appellants,

David R. Archer, Carol Archer Bugg, John V. Archer, Karen Archer Ball, and Sherri

Archer

v.

Appellees, Richard T. Archer, David R. Archer, Carol Archer Bugg, John V. Archer,

Karen Archer Ball, and Sherri Archer// Cross-Appellees,T. Mark Anderson,

individually and as Co-Executor of the Estate of Ted Anderson, Christine Anderson

Dear Counsel:

On the date noted above, cross-appellees' Fourth Motion to Extend Time to File Brief

was dismissed as moot by this Court.

Very truly yours, JEFFREY D. KYLE, CLERK BY: F. Hewtty Frances Hewtty, Deputy Clerk *25 FILE COPY Appellees/Cross-Appellants’ Opposition to Motion for Leave to File

Cross-Appellees’ Brief and Appellees/Cross-Appellants’ Motion to

Strike Cross-Appellees’ Brief Exhibit H *26 C OURT OF A PPEALS T HIRD D ISTRICT OF T EXAS P.O. BOX 12547, AUSTIN, TEXAS 78711-2547 www.txcourts.gov/3rdcoa.aspx (512) 463-1733 JEFF L. ROSE, CHIEF JUSTICE JEFFREY D. KYLE, CLERK DAVID PURYEAR, JUSTICE BOB PEMBERTON, JUSTICE MELISSA GOODWIN, JUSTICE SCOTT K. FIELD, JUSTICE CINDY OLSON BOURLAND, JUSTICE August 26, 2015

Mr. Gerald D. McFarlen Ms. Laurie Ratliff

The Law Office of Gerald D. McFarlen, PC Ikard Golden Jones, P.C.

28 Fabra Oaks Road 400 West 15th Street, Suite 975

Boerne, TX 78006-2831 Austin, TX 78701

* DELIVERED VIA E-MAIL * * DELIVERED VIA E-MAIL *

RE: Court of Appeals Number: 03-13-00790-CV

Trial Court Case Number: D-1-GN-07-002328

Style: Appellants, T. Mark Anderson, as Co-Executor of the Estate of Ted Anderson, and

Christine Anderson, as Co-Executor of the Estate of Ted Anderson// Cross-Appellants,

David R. Archer, Carol Archer Bugg, John V. Archer, Karen Archer Ball, and Sherri

Archer

v. Appellees, Richard T. Archer, David R. Archer, Carol Archer Bugg, John V. Archer,

Karen Archer Ball, and Sherri Archer// Cross-Appellees,T. Mark Anderson,

individually and as Co-Executor of the Estate of Ted Anderson, Christine Anderson

Dear Counsel:

Appellees/Cross-Appellants' Motion to Allocate Time for Oral Argument was granted by

this Court on the date noted above. Accordingly, time at oral argument will be allocated in the

following manner: 15 minutes for appellants’ opening; 15 minutes for appellees’ response; 5

minutes for appellants’ rebuttal; and 5 minutes for appellees/cross-appellants’ issues on cross-

appeal.

Very truly yours, JEFFREY D. KYLE, CLERK BY: E. Talerico Liz Talerico, Deputy Clerk *27 FILE COPY Appellees/Cross-Appellants’ Opposition to Motion for Leave to File

Cross-Appellees’ Brief and Appellees/Cross-Appellants’ Motion to

Strike Cross-Appellees’ Brief Exhibit I *28 C OURT OF A PPEALS

FILE COPY T HIRD D ISTRICT OF T EXAS P.O. BOX 12547, AUSTIN, TEXAS 78711-2547 www.txcourts.gov/3rdcoa.aspx (512) 463-1733 JEFF L. ROSE, CHIEF JUSTICE JEFFREY D. KYLE, CLERK DAVID PURYEAR, JUSTICE BOB PEMBERTON, JUSTICE MELISSA GOODWIN, JUSTICE SCOTT K. FIELD, JUSTICE CINDY OLSON BOURLAND, JUSTICE December 3, 2015

Ms. Laurie Ratliff Mr. Scott R. Kidd

Ikard Golden Jones, P.C. Kidd Law Firm

400 West 15th Street, Suite 975 819 West 11th Street

Austin, TX 78701 Austin, TX 78701

* DELIVERED VIA E-MAIL * * DELIVERED VIA E-MAIL *

RE: Court of Appeals Number: 03-13-00790-CV

Trial Court Case Number: D-1-GN-07-002328

Style: Appellants, T. Mark Anderson, as Co-Executor of the Estate of Ted Anderson, and

Christine Anderson, as Co-Executor of the Estate of Ted Anderson// Cross-Appellants,

David R. Archer, Carol Archer Bugg, John V. Archer, Karen Archer Ball, and Sherri

Archer

v. Appellees, Richard T. Archer, David R. Archer, Carol Archer Bugg, John V. Archer,

Karen Archer Ball, and Sherri Archer// Cross-Appellees,T. Mark Anderson,

individually and as Co-Executor of the Estate of Ted Anderson, Christine Anderson

Dear Counsel:

You are hereby notified that the above cause has this day been set for submission and oral

argument on January 27, 2016 at 9:00 AM , before Chief Justice Rose, Justices Pemberton, and

Field. Each side will be allowed 20 minutes to argue. See Tex. R. App. P. 39.8. The time for oral

argument will be allocated in the following manner: 15 minutes for appellants’ opening; 15 minutes for appellees’ response; 5 minutes for appellants’ rebuttal; and 5 minutes for appellees/cross- appellants’ issues on cross-appeal.

Upon receipt of this letter, please notify the Clerk, in writing via your electronic service

provider, of your intention to argue this case before the Court. In the event that parties previously

requesting oral argument should decide to waive argument, this should be communicated to the

Clerk well in advance of the setting date. The Court expects counsel to appear at the stated time,

prepared to argue without undue repetition of or reading from the brief, and to respond to questions

from the bench.

Any person seeking a reasonable accommodation during oral argument for a disability must

make that request to the Court Clerk within 10 days of this letter so that appropriate arrangements

can be made.

Very truly yours, JEFFREY D. KYLE, CLERK BY: E. Talerico Liz Talerico, Deputy Clerk *30 FILE COPY Appellees/Cross-Appellants’ Opposition to Motion for Leave to File

Cross-Appellees’ Brief and Appellees/Cross-Appellants’ Motion to

Strike Cross-Appellees’ Brief Exhibit J *31 C OURT OF A PPEALS

FILE COPY T HIRD D ISTRICT OF T EXAS P.O. BOX 12547, AUSTIN, TEXAS 78711-2547 www.txcourts.gov/3rdcoa.aspx (512) 463-1733 JEFF L. ROSE, CHIEF JUSTICE JEFFREY D. KYLE, CLERK DAVID PURYEAR, JUSTICE BOB PEMBERTON, JUSTICE MELISSA GOODWIN, JUSTICE SCOTT K. FIELD, JUSTICE CINDY OLSON BOURLAND, JUSTICE August 4, 2015

Mr. Gerald D. McFarlen Ms. Laurie Ratliff

The Law Office of Gerald D. McFarlen, PC Ikard Golden Jones, P.C.

28 Fabra Oaks Road 400 West 15th Street, Suite 975

Boerne, TX 78006-2831 Austin, TX 78701

* DELIVERED VIA E-MAIL * * DELIVERED VIA E-MAIL *

RE: Court of Appeals Number: 03-13-00790-CV

Trial Court Case Number: D-1-GN-07-002328

Style: Appellants, T. Mark Anderson, as Co-Executor of the Estate of Ted Anderson, and

Christine Anderson, as Co-Executor of the Estate of Ted Anderson// Cross-Appellants,

David R. Archer, Carol Archer Bugg, John V. Archer, Karen Archer Ball, and Sherri

Archer

v. Appellees, Richard T. Archer, David R. Archer, Carol Archer Bugg, John V. Archer,

Karen Archer Ball, and Sherri Archer// Cross-Appellees,T. Mark Anderson,

individually and as Co-Executor of the Estate of Ted Anderson, Christine Anderson

Dear Counsel:

You are hereby notified that the above cause has this day been set for submission and oral

argument on September 2, 2015 at 9:00 AM , before Chief Justice Rose, Justices Pemberton and

Field. Argument is limited to 20 minutes for appellants and for appellees. Appellants’ time

may be divided and a portion used in rebuttal. In past cross-appeals, the standard time allotment has been: 10 minutes for appellants' opening; 15 minutes for appellees/cross-appellants’ response and issues on cross-appeal; 10 minutes

for appellants'/cross-appellees' rebuttal and response; and 5 minutes for cross-appellants’ rebuttal.

Upon receipt of this letter, please notify the Clerk, in writing, of your intention to argue this

case before the Court. Counsel should include any alternative agreement on the division of time, if

any. In the event that parties previously requesting oral argument should decide to waive argument,

this should be communicated to the Clerk well in advance of the setting date. All attorneys in civil

and criminal cases are required to file all documents (except a document submitted under seal or

subject to a motion to seal) with the Court through the eFileTexas.gov electronic filing system.

The Court expects counsel to appear at the stated time, prepared to argue without undue

repetition of or reading from the brief, and to respond to questions from the bench.

Very truly yours, JEFFREY D. KYLE, CLERK BY: E. Talerico Liz Talerico, Deputy Clerk *33 Appellees/Cross-Appellants’ FILED IN 3rd COURT OF APPEALS AUSTIN, TEXAS Opposition to Motion for Leave to File 8/28/2015 5:29:28 PM JEFFREY D. KYLE

Cross-Appellees’ Brief and Clerk Appellees/Cross-Appellants’ Motion to

Strike Cross-Appellees’ Brief Exhibit K No. 03-13-00790-CV THIRD COURT OF APPEALS 8/28/2015 5:29:28 PM JEFFREY D. KYLE AUSTIN, TEXAS 03-13-00790-CV *34 ACCEPTED ^[6711306] CLERK T. Mark Anderson, § IN THE THIRD

as co-executor of the estate of §

Ted Anderson, and §

Christine Anderson, §

as co-executor of the estate of §

Ted Anderson, Appellants §

§

v. § COURT OF APPEALS

§

Richard T. Archer, David §

B. Archer, Carol Archer §

Bugg, John V. Archer, §

Karen Archer Ball, and §

Sherri Archer, Appellees § AUSTIN, TEXAS

MOTION FOR CONTINUANCE TO THE HONORABLE JUDGE OF THIS COURT:

Appellants/Cross-appellees, Movants, hereby urge the Court to continue

oral argument and submission of this case, and in support show:

1. Oral argument is set for September 2, 2015.

2. Movants seek a continuance of 30 days to allow them to retain new

counsel. Appellants’ current counsel has personal health conditions which have

become disabling and incompatible with continuation of proper representation

of Movants herein. A Motion to Withdraw is filed contemporaneously

herewith. Movants do not oppose the motion to withdraw as long as they have

a reasonable time to allow their substitute counsel opportunity to prepare.

3. This withdrawal is not sought for delay only but that justice may be done.

CERTIFICATE OF CONFERENCE 4. Movants have conferred with counsel for Appellees/Cross-

appellants in this action; and they are opposed.

5. For the above reasons, Movants request the Court to continue

submission of this case and reset oral argument for thirty days, or as soon

thereafter as the Court can hear the matter.

Respectfully submitted, THE LAW OFFICE OF GERALD D. MCFARLEN, PC 28 Fabra Oaks Road Boerne, TX 78006 Phone: (830) 331-8554 Fax: (210) 568-4305 Email: gmcfarlen@mcfarlenlaw.com BY: /s/ Gerald D. McFarlen GERALD D. McFARLEN State Bar No. 13604500 A ATTORNEYS FOR CROSS APPELLEES *36 CERTIFICATE OF SERVICE I do hereby certify that on the 28th day of August, 2015, a true and correct

copy of the foregoing motion was furnished to all counsel of record in accordance

with the Texas Rules of Civil Procedure.

.

Laurie Ratliff

Ikard, Golden, Jones, P.C.

400 West 15 th Street, Suite 975

Austin, Texas 78701

ATTORNEYS FOR APPELLEES/CROSS APPELLANTS

/s/ Gerald D. McFarlen GERALD D. McFARLEN