Reverse and Render : Texas Appellate Lawyer & Attorney : Cowles & Thompson Law Firm : Court of Appeals, Texas Supreme Court

I recently wrote another blog entry about what happens when the parties or the trial court fail to follow the appellate court mandate.  Now, here's another:

In a prior appeal, the Fort Worth Court of Appeals held that the Plaintiff's expert report was adequate as to one of two claims and inadequate as to the second claim.  The appellate court's mandate affirmed the portion of the trial court's judgment that denied the doctor's motion to dismiss as it pertained to the claim on which the expert's report was deemed adequate.  However the judgment was reversed as to the claim on which the report was deemed inadequate and the case was remanded for consideration of whether the trial court should allow the plaintiff to cure the deficiency in the expert affidavit.  Following the remand, the plaintiff elected not to cure the affidavit as to the claim on which the report was deemed inadequate.  The defendant doctor then sought dismissal of all claims on the grounds that the plaintiff had not amended the expert report.  The trial court granted the motion and dismissed all the claims against the doctor.

The plaintiff filed a petition for writ of mandamus and asserted that the trial court had failed to carry out the appellate court's mandate insofar as it related to the affirmed portion of the trial court's judgment.  The court of appeals granted the petition for mandamus and held that a second interlocutory appeal was not required because the plaintiff was entitled to have the trial court give effect to the judgment and mandate issued.  The court's opinion in In re Richardson may be found here.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

Over the summer, Byron Henry and I wrote an article discussing the emerging majority rule in Texas for applying section 41.0105, the paid vs. incurred rule for medical care expenses.  Our goals were two-fold: (1) to update the appellate bar on the current state of the law on this issue and (2) to provide suggestions for how to deal in practice with various pitfalls we see with the emerging majority rule.  Byron and I have practiced on both sides of the docket, so we did not intend those suggestions to be defense-oriented.  Rather, as appellate practitioners, we have seen how the current majority rule is inherently flawed in practice and creates dangers for plaintiffs and defendants alike.  

Byron and I felt the topic was especially timely because the Texas Supreme Court had recently granted the petition in one of the cases emerging in the majority -- Escabedo v. Haygood, 283 S.W.3d 3 (Tex. App.---Tyler 2009, pet. granted).  The Court heard argument on September 16, 2010.   

We received a good deal of positive feedback after the article was published in the Appellate Advocate.  But we also heard concerns from some that our article could influence the Texas Supreme Court's decision in Haygood to the detriment of Petitioner.  I was humbled to think an article I was involved with could have such an impact, but I was also excited to be part of a timely and important debate that will impact how we all practice.

Following the Haygood argument, John Gsanger and Paul Gold prepared a response to our article, which was published in the current edition of the Appellate Advocate.  Byron and I would like to briefly reply to that article here.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

A couple of opinions--one state and one federal--reiterate the effect of an appellate court's mandate following remand of the case back to the trial court.

 The Fifth Circuit Court of Appeals held that a prior decision decertifying a class certification "foreclosed the re-litigation of the class certification" on remand to the trial court.  Gene and Gene, L.L.C. filed suit against BioPay, L.L.C. alleging violation of the Telephone Consumer Protection Act of 1991 due to the sending of unsolicited advertisements from one fax machine to another.  After the district court certified the class, BioPay filed an interlocutory appeal.  The Fifth Circuit reversed the certification, held that the issue of consent precluded certification, and remanded to the district court "for further proceedings not inconsistent with this opinion."  After remand, Gene & Gene discovered a searchable datebase that it contended established a common method of establishing the issue of consent.  Gene & Gene moved to recertify and the district court granted recertification.  A second appeal followed. 

Two judges on the Fifth Circuit panel held that the law-of-the-case doctrine or mandate rule foreclosed the district court from reconsidering the certification.  Alternatively, the two-judge majority held that the evidence discovered on remand was not substantially different from the evidence before the court in the first opinion.  The third judge on the panel concurred in this latter holding.  The court's opinion in Gene & Gene, L.L.C. v. BioPay, L.L.C., may be found here.

• Email This
• Print
• Comments
• Trackbacks
• Share Link