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.