                         COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH

                               NO. 02-10-00337-CV


IN RE MARY RICHARDSON                                                    RELATOR


                                     ------------

                            ORIGINAL PROCEEDING

                                     ------------

                                    OPINION
                                      ----------

                                 I. INTRODUCTION

      This original proceeding stems from a prior interlocutory appeal and

judgment issued by this court. See Foster v. Richardson, 303 S.W.3d 833 (Tex.

App.—Fort Worth 2009, no pet.). Because the trial court has issued an order

that fails to carry out our mandate and interferes with our judgment in this prior

appeal, we will conditionally grant the petition for writ of mandamus.
                       II. THE PRIOR INTERLOCUTORY APPEAL(S)1

      In the prior interlocutory appeal pertinent to this original proceeding, Daniel

L. Foster, D.O. appealed the trial court=s order denying his motion to dismiss

Mary Richardson=s health care liability claim against him for failure to file an

adequate expert report as required by chapter 74 of the civil practice and

remedies code. Foster, 303 S.W.3d at 833. In that appeal, we affirmed in part

the trial court=s order denying Dr. Foster=s motion to dismiss, and we reversed

and remanded in part. Id. at 836. Specifically, we found Richardson=s expert=s

report on causation adequate as to one of her claims and inadequate as to

another of her claims. Id. at 841–42.

      We held that the expert report adequately addressed causation on

Richardson=s claim that Dr. Foster=s alleged misdiagnosis of her ankle fracture

caused her to suffer an additional approximately one month of pain and disability.

Id. We explained that the report was adequate on the causation element of this

claim because the report adequately

      links Richardson=s continued pain and disability related to the
      fracture to Dr. Foster=s erroneous diagnosis for as long a period––
      here, more than a month––until her condition was correctly
      diagnosed and treated.

            ....



      1
      This is the third opinion we have issued in this case, all dealing with the
same expert report—In re Richardson, No. 02-10-00077-CV (the present case),
Otero v. Richardson, No. 02-09-00401-CV, 2010 WL 3834519 (Tex. App.CFort
Worth Sept. 30 2010, no pet. h.), and Foster, 303 S.W.3d at 833.

                                         2
      For these reasons, we hold that, to the extent that Richardson=s
      claim against Dr. Foster concerns her prolonged pain because of his
      alleged misdiagnosis, the trial court did not abuse its discretion by
      denying Dr. Foster=s motion to dismiss based on his allegation that
      [Richardson=s expert=s] causation opinion is factually unsupported or
      inadequately explained.

Id. at 840–41 (footnote omitted). We held that the expert report inadequately

addressed     causation    on    Richardson=s   claim   that   Dr.   Foster=s   alleged

misdiagnosis caused Richardson to require ankle surgeries or caused other

harmful conditions related to the surgeries. Id. We explained that, according to

Richardson=s expert, another doctor had failed for six months to diagnose

Richardson=s ankle fracture and that

      [Richardson=s expert=s] report does not identify how Dr. Foster’s
      alleged misdiagnosis in June 2007, which caused about one month’s
      delay in correctly diagnosing the ankle injury after the correct
      diagnosis had already been delayed for about six months since the
      initial injury in December 2006, contributed to the requirement of
      such exhaustive care. In other words, the report does not explain
      beyond mere conjecture how the condition of Richardson’s ankle
      worsened from June 2007 to July so that Dr. Foster’s failure to give
      a correct diagnosis in June caused the requirement of further
      treatment in July that would not have otherwise been required if Dr.
      Foster had correctly diagnosed the injury. Thus, we hold that the
      trial court abused its discretion to the extent that it found that
      [Richardson=s expert] provided a sufficient explanation about Dr.
      Foster=s actions causing Richardson=s ankle treatment.

Id. at 842 (citation omitted).

      In light of these holdings, we set forth our conclusion:

            Having overruled the majority of Dr. Foster’s sole issue
      regarding Richardson’s assertion that his alleged misdiagnosis
      caused her additional pain, we affirm the trial court’s order denying
      his motion to dismiss as to that issue. Having sustained a portion of
      Dr. Foster’s sole issue concerning Richardson’s assertion that his

                                          3
       alleged misdiagnosis caused her need for ankle surgeries and
       having found [Richardson=s expert=s] report deficient as to that
       causal relationship, we reverse the trial court’s decision regarding
       the sufficiency of the report in that regard and remand this case to
       that court to consider the issue of whether to grant Richardson a
       thirty-day extension to cure that deficiency.

Id. at 845–46. Neither Dr. Foster nor Richardson filed a petition for review after

we issued our judgment, and our mandate issued on March 11, 2010.

       Our mandate to the 17th District Court provided, in pertinent part:

              This court has considered the record on appeal in this case
       and holds that there was error in part of the trial court=s judgment. It
       is ordered that the judgment of the trial court is affirmed in part and
       reversed and remanded in part. We affirm that portion of the trial
       court=s judgment denying appellant=s motion to dismiss. We reverse
       that portion of the trial court=s judgment regarding the sufficiency of
       the expert report as to the causal relationship between the alleged
       misdiagnosis and appellee=s need for surgery. We remand this case
       for consideration of whether to grant appellee a thirty-day extension
       to cure that deficiency and for further proceedings consistent with
       this opinion.

                         III. THE TRIAL COURT PROCEEDING

       After we issued our opinion and judgment in Foster and the case was

remanded to the trial court, Richardson elected to not file an amended expert

report curing, if possible, the causation inadequacy addressed in our opinion as

set forth above. She decided instead to move forward only on the claim on

which, as addressed in our opinion, her expert had set forth an adequate

causation opinion––the claim that Dr. Foster=s alleged misdiagnosis of her ankle

fracture caused her a prolonged, approximately one-month period of pain and

disability.



                                          4
      Dr. Foster, however, filed a second motion to dismiss. He argued that

because Richardson had not filed an amended expert report, all of her claims

against him must be dismissed.2 Richardson filed a response to Dr. Foster=s

second motion to dismiss pointing out that this court had found her expert=s

report sufficient as to her claim that Dr. Foster=s alleged misdiagnosis of her

ankle fracture caused her a prolonged period of pain and disability. The trial

court granted Dr. Foster=s motion and dismissed all of Richardson=s claims

against him.

                               IV. THIS MANDAMUS

      Richardson filed this original proceeding claiming that the trial court had

abused its discretion by dismissing for an inadequate expert report the very claim

that this court had reviewed and found that her expert report adequately

addressed.     We requested a response to Richardson=s petition for writ of

mandamus, and Dr. Foster filed one.

      Upon receiving the appellate court’s mandate, the lower court has a

mandatory, ministerial duty to enforce the appellate court’s judgment. See Tex.

R. App. P. 51.1(b); In re Marriage of Grossnickle, 115 S.W.3d 238, 243 (Tex.

      2
       Dr. Foster=s motion alleged that since the appeal

      Plaintiff has not requested a thirty-day extension of time to cure the
      deficiency in [her expert=s] report and has not filed an amended
      expert report curing such deficiency. Accordingly, Plaintiff has
      waived any right to cure the deficiencies . . . and Dr. Foster is
      entitled to dismissal from this lawsuit, recovery of his attorneys= fees,
      costs, and severance.


                                         5
App.—Texarkana 2003, no pet.). The lower court has no discretion to review or

interpret the mandate but, instead, must carry out the mandate. Grossnickle, 115

S.W.3d at 243; see also In re Columbia Med. Ctr. of Las Colinas, 306 S.W.3d

246, 248 (Tex. 2010) (orig. proceeding). A court of appeals may issue a writ of

mandamus to enforce its jurisdiction and to prevent the trial court from interfering

with its judgments. See Tex. Gov=t Code Ann. § 22.221(a) (Vernon 2004); In re

Johnson, 961 S.W.2d 478, 481 (Tex. App.—Corpus Christi 1997, orig.

proceeding) (conditionally granting writ of mandamus directing trial court to

vacate orders issued by it that interfered with execution and enforcement of

judgment); Upjohn Co. v. Marshall, 843 S.W.2d 203, 204 (Tex. App.—Dallas

1992, orig. proceeding) (same).

      The trial court=s August 30, 2010 order dismissing Richardson=s claim

against Dr. Foster for the prolonged pain and disability caused by his alleged

misdiagnosis of her ankle fracture fails to carry out our March 11, 2010 mandate

affirming the portion of the trial court=s judgment that denied Foster=s motion to

dismiss and interferes with our opinion and judgment holding that Richardson=s

expert=s report (the exact same report Richardson relies on in the trial court) was

adequate as to that claim.        Thus, the trial court=s August 30, 2010 order

constitutes an abuse of discretion. See, e.g., Columbia Med. Ctr., 306 S.W.3d at

248 (holding that trial court was required to give full effect to supreme court=s

judgment and that A[b]y failing to do so, the trial court abused its discretion@).




                                           6
      Dr. Foster argues that mandamus is inappropriate because Richardson

has an adequate remedy at law by way of an interlocutory appeal of the trial

court=s dismissal order.    But we have already addressed in an interlocutory

appeal the adequacy of Richardson=s expert=s report on her claim against Dr.

Foster for misdiagnosing her ankle fracture and thereby causing her an

approximately one-month period of prolonged pain and disability. Foster, 303

S.W.3d at 840–41. We held that the report was adequate as to this claim. Id.

Richardson is not required to perfect a second interlocutory appeal in order to

require the trial court to give effect to our judgment and mandate in Foster.

Requiring Richardson to pursue a second interlocutory appeal to obtain relief we

have already granted in a prior interlocutory appeal is not an adequate remedy at

law. See Columbia Med. Ctr., 306 S.W.3d at 248 (explaining that A[b]ecause this

issue arises in connection with a final judgment following an appeal to this Court,

we conclude that Columbia now has no other adequate remedy by appeal”); see

generally In re Masonite Corp., 997 S.W.2d 194, 198 (Tex. 1999) (orig.

proceeding) (recognizing appellate remedy inadequate when trial court=s abuse

of discretion constituted automatic reversible error).

                                  V. CONCLUSION

      Because the trial court=s August 30, 2010 dismissal order fails to carry out

our mandate issued in Foster and interferes with our judgment in Foster, we

conditionally grant a writ of mandamus directing the trial court to vacate its

August 30, 2010 order granting Dr. Foster=s second motion to dismiss to the

                                          7
extent that it dismisses Richardson=s claim against Dr. Foster for prolonged pain

and disability during the approximately one-month time period attributable to his

alleged misdiagnosis of her ankle fracture. See Columbia Med. Ctr., 306 S.W.3d

at 248; see also Johnson, 961 S.W.2d at 481 (A[W]hen the appellate court has

once determined the validity of injunctive relief by interlocutory appeal, any

attempt by the trial court to interfere with that determination by a subsequent

inconsistent order is reviewable by mandamus.@); Upjohn Co., 843 S.W.2d at

204–05 (AThe [trial court] order threatens interference with this Court=s judgment

in that appeal.@).

      The writ will issue only if the trial court fails to comply with this opinion.




                                                      SUE WALKER
                                                      JUSTICE

PANEL: LIVINGSTON, C.J.; DAUPHINOT and WALKER, JJ.

DELIVERED: November 2, 2010




                                           8
