Texas Cases February 16, 2023: Spicer v. Maxus Healthcare Partners, LLC

Case Description

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On Appeal from the 17th District Court Tarrant County, Texas Trial Court No. 017-275219-14

Before Sudderth, C.J.; Kerr and Birdwell, JJ.

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MEMORANDUM OPINION

Bonnie Sudderth Chief Justice

This case comes back to us after remand to the trial court. In 2020, we reviewed a jury verdict and judgment in favor of Appellee Maxus Healthcare Partners, LLC. Spicer v. Maxus Healthcare Partners, LLC , 616 S.W.3d 59, 68-132 (Tex. App.- Fort Worth 2020, no pet.) (op. on reh'g). We affirmed the judgment in several respects, modified and rendered in other respects, and remanded on two narrow issues: (1) "for the trial court to reconsider the $100,000 awarded to Maxus under APA [i.e., asset purchase agreement] Section 2.16," and (2) "for Maxus to make an election between its recovery for [its] breach-of-contract claim and for fraud." Id. at 132.

After our mandate issued, Appellee elected to forgo its $100,000 award under APA Section 2.16 and to recover for breach of contract rather than fraud. The trial court entered an amended judgment reflecting these elections.

Appellants did not challenge the elections. Instead, Appellants filed a motion for new trial raising a host of new, unrelated allegations such as spoliation of evidence,

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discovery abuse, and jury tampering. Nothing in Appellants' motion mentioned "the $100,000 awarded to Maxus under APA Section 2.16" or "Maxus['s] . . . election between its recovery for breach-of-contract . . . and for fraud." Id.

The motion for new trial was overruled by operation of law, Tex.R.Civ.P. 329b(c), and the trial court subsequently entered an order explaining that the court "lack[ed] authority to consider the arguments and issues raised in the Motion for New Trial because [it] ha[d] no authority to take any action that [wa]s inconsistent with or beyond the scope of that which [wa]s necessary to give full effect to the appellate court's judgment and mandate." Appellants challenge this ruling.

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We agree with the trial court and will affirm.

I. Scope of Remand

A mandate is an appellate court's formal command requiring a lower court to comply with the appellate court's judgment. In re Guardianship of Jones, No. 02-19-00187-CV, 2022 WL 3458736, at *4 n.4 (Tex. App.-Fort Worth Aug. 18, 2022, no pet.) (mem. op. on remand). "When an appellate court remands a case for further proceedings and the mandate is not limited by specific instructions, the effect is to remand the case to the lower court for a new trial on all issues of fact, and the case is reopened in its entirety." Bell Helicopter Textron, Inc. v. Hous. Helicopters, Inc., No. 02-12-00037-CV, 2012 WL 5439025, at *2-3 (Tex. App.-Fort Worth Nov. 8, 2012, no pet.) (per curiam) (mem. op.) (noting that remand "for further proceedings consistent

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with our opinion . . . was a general remand"); see In re DSTJ, L.L.P., No. 14-16-00645-CV, 2016 WL 6603739, at *4 (Tex. App.-Houston [14th Dist] Nov. 8, 2016, orig. proceeding) (mem. op.) (holding mandate that "d[id] not contain any language limiting the scope of the remand" was "a general remand"). But "when an appellate court remands a case with specific instructions, the trial court is limited to complying with the instructions and cannot relitigate issues [that were or could have been] controverted at the former trial." In re Leachman, No. 02-11-00368-CV, 2011 WL 5515498, at *3 (Tex. App.-Fort Worth Nov. 10, 2011, orig. proceeding) (mem. op.). The trial court's "authority is limited to only those issues specified in the mandate." Id.; see Hudson v. Wakefield, 711 S.W.2d 628, 630 (Tex. 1986) (recognizing that "[w]hen this court remands a case and limits a subsequent trial to a particular issue, the trial court is restricted to a determination of that particular issue").

The trial court was correct that it had no authority to take any action inconsistent with or beyond the scope of that necessary to give full effect to the appellate court's judgment and mandate. See Seger v. Yorkshire Ins. Co., 503 S.W.3d 388, 408 (Tex. 2016); Phillips v. Bramlett, 407 S.W.3d 229, 234 (Tex. 2013). And to determine the scope of an appellate court's mandate, we look not only to the mandate itself, but also to the opinion of the court. Hudson, 711 S.W.2d at 630.

Here, our mandate and opinion reinforce one another by using substantially similar language to precisely modify the judgment and narrowly confine the scope of remand. Both the mandate and the opinion provide a bulleted list of detailed

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corrections to the judgment, e.g., "delete the award of $250,000 to Maxus under APA Section 4.15" and "delete the $115,112.83 awarded to Maxus for breach by Zera."

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See Spicer , 616 S.W.3d at 132. And both the mandate and the opinion state that we "remand for the trial court to reconsider the $100,000 awarded to Maxus under APA Section 2.16" and "for Maxus to make an election between its recovery for [its] breach-of-contract claim and for fraud." Id. These instructions are specific and detailed, leaving little room for interpretation.

Indeed, our instructions leave little room even for argument. Whereas parties in other cases have (unsuccessfully) argued that a mandate's specific instructions are broadened by terms such as "further proceedings" or "in accordance with this opinion," that argument cannot be made here. Cf. In re Castle Tex. Prod. Ltd. P'ship , 563 S.W.3d 216, 218-19 (Tex. 2018) (orig. proceeding) (rejecting argument that appellate court's use of the phrase "in accordance with this opinion" broadened scope of remand when appellate court provided specific instructions); Scott Pelley P.C. v. Wynne , 578 S.W.3d 694, 700-01 (Tex. App.-Dallas 2019, no pet.) (noting mandate's use of the term "for further proceedings consistent with this opinion" but holding that remand was limited to appellate court's specific instructions). Our mandate does not use any of these phrases. See Spicer , 616 S.W.3d at 132. Nor have Appellants pointed to any verbiage in our mandate or opinion that could be construed as broadening the scope of remand. Rather, our mandate and opinion unambiguously

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restrict the scope of remand to two narrow issues: (1) "for the trial court to reconsider the $100,000 awarded to Maxus under APA Section 2.16" and (2) "for Maxus to make an election between its recovery for [its] breach-of-contract claim and for fraud."

II. Appellants' Argument

Despite the unambiguously limited nature of our mandate, Appellants do not pretend that their motion for new trial relates to either of the two remanded issues. Rather, they argue that the trial court had the authority to consider their new challenges to the judgment because trial courts generally have the plenary power to order new trials and Appellants were "not ask[ing] the trial court to review, interpret, or modify this Court's mandate or add to, or detract from, what is now the final judgment in the trial court"-they were raising new issues that "were not before this Court in the prior appeal."

First, Appellants' argument misunderstands the nature of a limited remand. Our mandate sent two narrow issues back to the trial court, and apart from those two issues, our judgment was final "not only in reference to the matters actually litigated, but [also] as to all other matters that the parties might have litigated and had decided in the cause." Scott Pelley , 578 S.W.3d at 699-701 (quoting Martin v. Credit Prot. Ass'n , 824 S.W.2d 254, 257 (Tex. App.-Dallas 1992, writ dism'd w.o.j.), and holding that trial court erred by awarding post-judgment overhead expenses that were requested on remand when mandate limited remand to attorney's fees); see Martin , 824 S.W.2d at 255-57

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(holding that, when appellate court reversed plaintiff's judgment and ordered plaintiff to pay costs, the defendant's subsequent request for attorney's fees was "seek[ing] affirmative relief additional to that given in the mandate"); see also Jones , 2022 WL 3458736, at *9 (quoting Scott Pelley and holding that orders not challenged in original appeal could not be challenged in subsequent bill of review).

The limited remand was not an invitation for Appellants to raise new, previously unexplored challenges to the portions of the judgment that had not been remanded. See Castle , 563 S.W.3d at 218-19 (holding trial court erred by reopening record on limited remand and stating that limited remand "[wa]s not, as the real party in interest seems to suggest, an invitation to raise new arguments that would require re-opening the record"); Lake v. Lake , 899 S.W.2d 737, 741 (Tex. App.-Dallas 1995, no writ) (holding when case was remanded for "a new trial to determine the amount of credit . . . [appellees] should receive for social security payments" that "[t]he judgment did not provide that the probate court should also consider appellant's claim for attorney's fees, and the probate court could not go beyond this Court's judgment to consider that claim"); Martin , 824 S.W.2d at 257 (noting that if the appellate court "had meant for the district court to address [the] additional claims for relief, it would have directed the district court to do so").

Moreover, the idea that Appellants "did not ask the trial court to . . . modify this Court's mandate or add to, or detract from, what is now the final judgment" is simply not true. Appellants' motion for new trial seeks-as the name suggests-a

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new trial. The motion's prayer asks the trial court to "vacate the Amended Final Judgment and order a new trial." Had the trial court taken the bait and ordered a new trial, it would have needed to vacate the entirety of the judgment-including the portions that we had just affirmed or modified rather than remanded. See Grisaffi v. Rocky Mountain High Brands, Inc., No. 05-20-00538-CV, 2022 WL 10311712, at *7 (Tex. App.-Dallas Oct. 18, 2022, no pet.) (mem. op.) ("The trial court would have exceeded its authority under our mandate if it had re-litigated causation, the existence of an injury, or the amount of damages and vacated a judgment that this Court had just affirmed, in part, on appeal.").

III. Conclusion

Because this court's mandate confines the scope of remand to two specific issues, because none of the arguments in Appellants' motion for new trial relate to those two issues, and because Appellants' motion sought relief inconsistent with the mandate, the trial court correctly concluded that it lacked the authority to consider or grant Appellants' motion. We affirm the trial court's amended judgment. Tex.R.App.P. 43.2(a).