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.

A similar law-of-the-case/mandate issue was discussed by the Dallas Court of Appeals in In re Assurances Generales Banque Nationale.  In that case, Assurances Generales Banque Nationale filed an interlocutory appeal to challenge the trial court’s refusal to sustain its special appearance.  The court of appeals held that there was no personal jurisdiction and issued a judgment and mandate reciting that "An order granting [Banque’s] special appearance and dismissing [the plaintiff’s] action against [Banque] is RENDERED."  Subsequently, the plaintiff filed an amended third-party petition against Banque and sought further discovery.  Banque sought a writ of mandamus from the court of appeals to require the trial court to comply with the prior mandate and judgment.

The court of appeals holds that the mandate rule or law-of-the-case doctrine precludes relitigation of the personal jurisdiction issue.  The court further holds that the trial court abused its discretion by permitting the plaintiff to reopen that issue.  Because the trial court failed to follow the prior judgment of the court of appeals, the court of appeals holds that mandamus will lie.  The court’s opinion may be found here.