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in Re Fluor Enterprises, Inc. Fluor Corporation Fluor Constructors International, Inc. And Fluor Texas, Inc.
Citation: Not availableDocket: 03-06-00113-CV
Court: Court of Appeals of Texas; February 26, 2006; Texas; State Appellate Court
Original Court Document: View Document
A concurring opinion was issued in the case In re Fluor Enterprises, Inc., where the author disagrees with the majority's implication that a failure to meet a deadline in a case management order could lead to remanding a case from a pretrial court back to a trial court when statutory criteria have not been met. The author agrees that section 90.010(b) of the civil practice and remedies code is not applicable because the case was filed in January 2004, and thus the notice of transfer was improperly based on this section. The opinion emphasizes that a pretrial court cannot remand a case unless specific statutory requirements are fulfilled, as outlined in section 90.010(d). This section mandates that a pretrial court shall retain jurisdiction over an action if the claimant does not serve a required report and specifies the conditions under which a remand is permissible. The author notes that in this case, the claimant failed to serve any required reports. The majority's conclusion that remand is appropriate due to the Fluor defendants missing a deadline in a case management order is contested. The opinion references the civil practice and remedies code and the rules of judicial administration, stating that the pretrial court’s authority includes establishing case management orders to ensure efficient litigation, but this does not override the statutory requirements for remand. Rule 13.6 does not authorize remanding a case to the trial court for failure to meet a deadline for filing a notice of transfer as specified in a case management order. The MDL rules imply an automatic transfer process without granting pretrial courts the authority to reject transferred cases. Rule 13.7 permits remand only when pretrial proceedings have reached a stage where the purposes of the transfer are fulfilled, but it does not address violations of case management orders, nor does it indicate that the purposes of transfer were satisfied in this instance. The majority's interpretation suggests that a pretrial court's case management order overrides statutory requirements in section 90.010(d), a conclusion not supported by the language of the statute or rules. In this case, the Fluor defendants delayed transferring the case until just four days before trial, leading the trial court to determine they waived their right to participate in MDL proceedings and the application of subsection 90.010(d). Waiver, defined as the intentional relinquishment of a known right, can be demonstrated through prolonged silence or inaction. The judgment of the court is concurred with.