author: ANNE GARDNER, Justice.

text:
    Guy LAVIGNE, Appellant, v. Alvis W. HOLDER and Michael W. Broome, Appellees.
    No. 2-05-223-CV.
    Court of Appeals of Texas, Fort Worth.
    Feb. 9, 2006.

      Jack G. Neal, Roanoke, for appellant.
    Michael W. Broome, P.C. and Michael W. Broome, Hurst, pro se, Hurst, for ap-pellees.
    PANEL A: CAYCE, C.J.; DAUPHINOT and GARDNER, JJ.
   OPINION

ANNE GARDNER, Justice.

Introduction

The question in this case of first impression is whether the granting of an easement by a mortgagor triggered the acceleration clause of a promissory note and deed of trust. The trial court determined that it did and granted summary judgment in favor of Appellees. We hold that it did not and reverse the judgment of the trial court, render judgment for Appellant, and remand for further proceedings in the trial court.

Factual and Procedural History

The basic facts of the case are not in dispute. In 1996, Appellee, Alvis W. Holder, conveyed a lot in Haltom City to Appellant, Guy Lavigne, by general warranty deed in exchange for a down payment, a note, and a deed of trust. The note and the deed of trust both contain the following acceleration clause:

Assumption Limitation/Acceleration: [The] note was made and accepted based on the integrity of maker and therefore may not be assumed by any person or institution without payee’s consent which consent will not be unreasonably withheld. Provided further by payee that if all or any part of the property or interest therein is sold or transferred by maker without payee’s prior written consent, excluding (a) the creation of a lien or encumbrance subordinate to this Deed of Trust, ... THEN in any such event payee may, at Payee’s option, declare all sums secured by the Deed of Trust to be immediately due and payable.

In 2004, Lavigne granted a thirty-foot-wide drainage easement across the back of the lot to a third party. When Holder learned about the easement, he invoked the acceleration clause and demanded full payment on the balance of the note. La-vigne did not pay the full balance within the time specified by the demand. Holder directed the trustee under the deed of trust, Appellee Michael Broome, to foreclose on the property.

Lavigne sued Holder to enjoin the foreclosure sale, seeking both a temporary and a permanent injunction. Both parties moved for summary judgment on the issue underlying Lavigne’s request for injunctive relief, namely, whether the easement triggered the acceleration clause. The trial court granted Holder’s motion, denied La-vigne’s, and denied Lavigne’s request for a temporary injunction.

Lavigne filed both this interlocutory appeal and an original application for writ of injunction in this court. See Tex.R.App. P. 28.1. We denied the application for writ of injunction, but we ordered Holder and Broome to refrain from foreclosing on the property during the pendency of this appeal to protect our jurisdiction. See Tex. R.App. P. 29.3.

The procedural posture of this case is unusual because the trial court granted summary judgment in favor of Holder on the merits of the underlying issue, rather than simply denying Lavigne’s application for a temporary injunction. Yet the summary judgment was interlocutory because it did not address Lavigne’s breach of warranty claim or request for a permanent injunction. Accordingly, on our own motion, we abated this appeal and remanded the case so that the parties could take steps to finalize the partial summary judgment. On January 3, 2006, the trial court signed an order severing the summary judgment from the rest of the case. The summary judgment is now ripe for appellate review.

Standard of Review

Ordinarily, whether to grant or deny a temporary injunction is within the trial court’s sound discretion. Butnaru v. Ford Motor Co., 84 S.W.3d 198, 204 (Tex.2002). But this case is not an ordinary appeal from the grant or denial of a temporary injunction; rather, it is an appeal from a summary judgment on the merits of the claim underlying Lavigne’s request for a temporary injunction. Therefore, we will apply the standard of review applicable to summary judgments.

In a traditional summary judgment case such as this one, the issue on appeal is whether the movant met the summary judgment burden by establishing that no genuine issue of material fact exists and that the movant is entitled to judgment as a matter of law. Tex.R. Civ. P. 166a(a), (c); Sw. Elec. Power Co. v. Grant, 73 S.W.3d 211, 215 (Tex.2002). We review the trial court’s summary judgment de novo. Provident Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211, 215 (Tex.2003). Where, as here, the issues raised are based on undisputed facts, the reviewing court may determine the questions presented as a matter of law. McCreight v. City of Cleburne, 940 S.W.2d 285, 288 (Tex.App.-Waco 1997, writ denied). When both parties move for summary judgment and the trial court grants one motion and denies the other, the reviewing court should render the judgment that the trial court should have rendered. FM Props. Operating Co. v. City of Austin, 22 S.W.3d 868, 872 (Tex.2000).

Discussion

1. Did the easement trigger the acceleration clause?

In his first issue, Lavigne argues that the trial court erred by granting Holder’s motion for summary judgment. Lavigne contends that an easement is an encumbrance subordinate to the deed of trust and thus falls within exclusion (a) of the acceleration clause. We agree.

To paraphrase the relevant part of the acceleration clause, Holder may accelerate the note if Lavigne transfers an interest in the property without Holder’s prior written consent unless the transfer creates an encumbrance subordinate to the deed of trust. It is undisputed that Lavigne transferred the easement to a third party without Holder’s prior written consent. Thus, we must answer three questions to resolve this issue: (1) Is the easement an “interest” in the underlying property, (2) is the easement an “encumbrance,” and (3) is the easement subordinate to the deed of trust? The answer to all three questions is “yes.”

First, as the parties concede, an easement is an interest in land. Bennett v. Tarrant County Water Control and Imp. Dist. No. One, 894 S.W.2d 441, 447 (Tex.App.-Fort Worth 1995, writ denied).

Second, Texas courts have long held that the term “encumbrance” includes easements. See, e.g., City of Dayton v. Allred, 123 Tex. 60, 68 S.W.2d 172, 178 (Tex.1934); Smith v. McMillan, 352 S.W.2d 871, 877 (Tex.Civ.App.-Houston 1962), aff'd, 363 S.W.2d 437 (Tex.1962); Uszenski v. McNabb, 225 S.W.2d 210, 212 (Tex.Civ.App.-San Antonio 1949, writ ref'd) (op. on reh’g); Shaw v. Morrison, 14 S.W.2d 953, 955 (Tex.Civ.App.-Eastland 1929, no writ).

Holder argues that the parties did not intend the word “encumbrance” to include easements. “The language in an agreement is to be given its plain grammatical meaning unless to do so would defeat the parties’ intent.” DeWitt County Elec. Co-op., Inc. v. Parks, 1 S.W.3d 96, 101 (Tex.1999). Nothing on the face of the acceleration clause suggests that the parties intended to restrict the meaning of “encumbrance.” Nor is there any evidence in the summary judgment record reflecting such an intent. We must, therefore, give the word “encumbrance” its plain grammatical meaning, and that plain grammatical meaning includes easements.

Third, an easement is subordinate to a prior deed of trust. “When the owner of real estate executes a valid deed of trust, and then conveys an interest in the mortgaged property to a third party, the rights of the mortgagor’s vendee are subject to the rights held by the beneficiary of the deed of trust.” Motel Enters., Inc. v. Nobani, 784 S.W.2d 545, 547 (Tex.App.-Houston [1st Dist.] 1990, no writ) (holding foreclosure of prior deed of trust extinguished subsequent easement); see also Cousins v. Sperry, 139 S.W.2d 665, 667 (Tex.Civ.App.-Beaumont 1940, no writ) (holding that buyer who purchased property at foreclosure sale took title free from easement granted after deed of trust).

We hold that the easement granted by Lavigne was an encumbrance subordinate to the deed of trust and therefore fell within exclusion (a) of the acceleration clause. Thus, as a matter of law, the easement did not trigger the acceleration clause and did not give Holder the right to accelerate the note and foreclose on the property, and the trial court erred by granting Holder’s motion for summary judgment. For the same reasons, the trial court erred by denying Lavigne’s motion for summary judgment with regard to the acceleration clause issue. We therefore sustain Lavigne’s first issue and his second issue in part. We consider the rest of Lavigne’s second issue—whether he is entitled to injunctive relief—in the next part of this opinion.

2. Is Lavigne entitled to an injunction?

Once again, the unusual procedural posture of this case complicates our review of the issue presented. In his original petition in the trial court, Lavigne sought both a temporary injunction and a permanent injunction. But in his motion for summary judgment, Lavigne requested only a temporary injunction: “Lavigne prays that the Court ... grant Lavigne’s Cross-Motion for Summary Judgment and issue a Temporary Injunction ... pending a hearing on a permanent injunction.... ” Therefore, even though our review of the dueling motions for summary judgment is disposi-tive of the underlying dispute, the question of whether Lavigne is entitled to a permanent injunction is not before this court. We will, therefore, determine only whether the trial court erred by failing to issue a temporary injunction as requested by La-vigne in his motion for summary judgment.

An applicant for a temporary injunction must plead and prove three specific elements: (1) a cause of action against the defendant; (2) a probable right to the relief sought; and (3) probable injury in the interim. Butnaru, 84 S.W.3d at 204; Sun Oil Co. v. Whitaker, 424 S.W.2d 216, 218 (Tex.1968). When the only relief sought on final trial is injunctive, the applicant must show a probable right on final hearing to a permanent injunction. Sun Oil Co. 424 S.W.2d at 218. A probable injury is one that is imminent, irreparable, and has no adequate remedy at law. Harbor Perfusion, Inc. v. Floyd, 45 S.W.3d 713, 716 (Tex.App.-Corpus Christi 2001, no pet.); Tenet Health Ltd. v. Zamora, 13 S.W.3d 464, 468 (Tex.App.-Corpus Christi 2000, pet. dism’d w.o.j.). Disruption to a business can be irreparable harm. Liberty Mut. Ins. Co. v. Mustang Tractor & Equip. Co., 812 S.W.2d 663, 666 (Tex.App.-Houston [14th Dist.] 1991, no writ). Moreover, every piece of real estate is unique, and foreclosure can be an irreparable injury for which there is no adequate remedy at law. El Paso Dev. Co. v. Berryman, 729 S.W.2d 883, 888 (Tex.App.-Corpus Christi1987, no writ).

In this case, the summary judgment evidence satisfies each element of the temporary injunction test. First, La-vigne’s original petition stated a claim for a permanent injunction. Second, we have already determined that the easement did not trigger the acceleration clause; thus, Lavigne has shown a probable right on final hearing to a permanent injunction. Third, Lavigne has established an imminent threat of irreparable injury. The threat is imminent because Holder has actually posted the property for foreclosure on at least two different dates. La-vigne filed an affidavit with the trial court averring that he earns his livelihood by operating an auto body shop on the property and has done so since 1983. Holder proffered no summary judgment evidence to controvert Lavigne’s affidavit. Thus, foreclosure would cause irreparable injury to Lavigne for which there is no adequate remedy at law because it would disrupt his business and because the property, like all real estate, is unique.

Finally, Holder argues that Lavigne’s right to injunctive relief is moot because his request for such relief was denied by the trial court in the underlying proceeding and again by this court in connection with Lavigne’s original proceeding. Holder cites no authority to support this argument, and we find none ourselves. We decline his invitation to hold that our denial of Lavigne’s original-proceeding application for writ of injunction in this court precludes our review of the trial court’s summary judgment.

We hold that Lavigne proved his right to injunctive relief as a matter of law and sustain that part of his second issue that concerns injunctive relief. Because his motion for summary judgment requested only a temporary injunction pending a hearing on his request for a permanent injunction, we remand the case to the trial court with instructions to enter a temporary injunction and to conduct a hearing on Lavigne’s request for a permanent injunction in light of our resolution of the underlying motions for summary judgment.

3. Lavigne’s attorney’s fees

Lavigne asserted a claim for attorney’s fees in his petition and motion for summary judgment in connection with this request for injunctive relief. Because the trial court granted Holder’s motion for summary judgment and denied Lavigne’s motion, it did not consider Lavigne’s request for attorney’s fees. We therefore remand the issue of Lavigne’s attorney’s fees to the trial court for further proceedings.

Conclusion

Having sustained Lavigne’s two issues, we reverse the judgment of the trial court and render judgment in Lavigne’s favor. See Tex.R.App. P. 43.2(c). We remand the case to the trial court with instructions to enter a temporary injunction enjoining Holder and Broome from foreclosing on the subject property on the basis of the easement granted by Lavigne, to conduct a hearing on Lavigne’s request for a permanent injunction, and to consider La-vigne’s request for attorney’s fees. See Tex.R.App. P. 43.2(d), 43.3(a). The stay imposed by our June 25, 2005 order will dissolve without further action of this court when the trial court enters a temporary injunction consistent with this opinion. We deny Holder and Broome’s “Motion for Supersedeas Bond, Order for Payment of Arrearages or Other Equitable Relief, Including Foreclosure for Failure to Make Payments.”

      . The third party is the new owner of the property adjoining the lot to the north.

      . For the sake of simplicity, we will refer to Appellees collectively as “Holder.”

      . Lavigne also alleged a cause of action for breach of warranty, but that claim is not relevant to this appeal.


source: Caselaw Access Project

author: TERRIE LIVINGSTON, Justice. SUE WALKER, Justice,

license: Public Domain

text:
    Denis PROULX, Appellant, v. Michael A. WELLS, Appellee.
    No. 2-05-044-CV.
    Court of Appeals of Texas, Fort Worth.
    Feb. 9, 2006.

      McLain & Associates, Ronald T. McLain, Dallas, for appellant.
    David, Goodman & Madole, Barry L. Hardin, Dallas, for appellee.
    PANELF: LIVINGSTON, GARDNER, and WALKER, JJ.
   OPINION

TERRIE LIVINGSTON, Justice.

I. Introduction

The sole issue in this summary judgment case is whether appellant Denis Proulx was diligent in serving appellee Michael A. Wells. Because we determine that appellee proved as a matter of law that appellant was not diligent in effecting service before the expiration of the statute of limitations, we affirm.

II. Background Facts

In his original petition filed May 2, 2003, appellant alleged that on May 21, 2001, he was driving his car in Arlington, Texas when appellee made an unprotected left hand turn and collided with appellant’s car. Appellant claimed he suffered injuries to his head, neck, back, right leg, and his body generally. Although appellant filed suit before the statute of limitations expired on May 21, 2003, he did not serve appellee before that date. See Tex. Civ. Prao. & Rem.Code Ann. § 16.008(a) (Vernon Supp.2005).

On August 22, 2003, the trial court issued a notice of intent to dismiss the case for want of prosecution, stating that the case would be dismissed unless, on or before September 30, 2003, (1) appellant served appellee and appellee either filed an answer or appellant took a default judgment against appellee, or (2) appellant filed a verified motion to retain. Appellant neither served appellee, nor filed a verified motion to retain, so the trial court dismissed the case for want of prosecution on October 7, 2003. On October 28, 2003, appellant filed a motion to reinstate the case claiming that the failure to appear or file a motion was not intentional, but was the result of a calendaring error by appellant’s attorney. The trial court granted the motion on November 18.

Appellant served appellee by substituted service on appellee’s brother on January 26, 2004. Appellee filed an original answer on July 19, 2004 and a motion for summary judgment on statute of limitations grounds on November 12, 2004. The trial court granted the motion for summary judgment on January 6, 2005.

III. Propriety of Summary Judgment for Appellee

In his sole issue, appellant claims that a genuine issue of material fact exists as to whether he exercised due diligence in serving appellee. Appellant contends that the evidence and reasonable inferences demonstrate that he acted as an ordinarily prudent person would have under similar circumstances. Additionally, appellant argues that appellee did not present any summary judgment evidence that would sufficiently prove, as a matter of law, that appellant was not diligent in attempting to serve appellee. Appellee contends that the trial court properly granted his motion for summary judgment because there were lengthy periods of time when appellant did not attempt to serve him.

A. Standard of Review

In a summary judgment case, the issue on appeal is whether the movant met the summary judgment burden by establishing that no genuine issue of material fact exists and that the movant is entitled to judgment as a matter of law. Tex.R. Crv. P. 166a(c); Sw. Elec. Power Co. v. Grant, 73 S.W.3d 211, 215 (Tex.2002); City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678 (Tex.1979). The burden of proof is on the movant, and all doubts about the existence of a genuine issue of material fact are resolved against the mov-ant. Sw. Elec. Power Co., 73 S.W.3d at 215.

When reviewing a summary judgment, we take as true all evidence favorable to the nonmovant, and we indulge every reasonable inference and resolve any doubts in the nonmovant’s favor. Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex.2005). Evidence that favors the mov-ant’s position will not be considered unless it is uncontroverted. Great Am. Reserve Ins. Co. v. San Antonio Plumbing Supply Co., 391 S.W.2d 41, 47 (Tex.1965).

A defendant is entitled to summary judgment on an affirmative defense if the defendant conclusively proves all the elements of the affirmative defense. Rhone-Poulenc, Inc. v. Steel, 997 S.W.2d 217, 223 (Tex.1999). To accomplish this, the defendant-movant must present summary judgment evidence that establishes each element of the affirmative defense as a matter of law. Ryland Group, Inc. v. Hood, 924 S.W.2d 120, 121 (Tex.1996).

When a defendant moves for summary judgment and shows that service occurred after the limitations period expired, the burden shifts to the plaintiff to offer an explanation for the delay. See James v. Gruma Corp., 129 S.W.3d 755, 760 (Tex.App.-Fort Worth 2004, pet. denied); Tranter v. Duemling, 129 S.W.3d 257, 260 (Tex.App.-El Paso 2004, no pet.); Carter v. MacFadyen, 93 S.W.3d 307, 313 (Tex.App.-Houston [14th Dist.] 2002, pet. denied). This means only that the plaintiff must point to evidence that raises a fact issue on diligence. Tranter, 129 S.W.3d at 260. If the plaintiff satisfies this burden, the burden shifts back to the defendant to show why the explanation is insufficient as a matter of law. Id.; Carter, 93 S.W.3d at 313.

B. Analysis

A person must “bring suit” for personal injuries within two years after the cause of action accrues. See Tex. Civ. PRAC. & Rem.Code Ann. § 16.003(a). To “bring suit” the plaintiff must not only file the petition within the two-year period, but must also use diligence in serving the defendant with process. Tranter, 129 S.W.3d at 259; Tate v. Beal, 119 S.W.3d 378, 380 (Tex.App.-Fort Worth 2003, pet. denied). If the plaintiff files suit within the two-year period, but does not serve the defendant until after the two-year period has expired, the date of service relates back to the date the petition was filed if the plaintiff has exercised diligence in effecting service. See Tranter, 129 S.W.3d at 259; Tate, 119 S.W.3d at 380; Tarrant County v. Vandigriff, 71 S.W.3d 921, 924 (Tex.App.Fort Worth 2002, pet. denied); Instrument Specialties Co., v. Tex. Employment Comm’n, 924 S.W.2d 420, 422 (Tex.App.-Fort Worth 1996, writ denied).

Generally, the exercise of due diligence is a question of fact that is determined by a two-pronged inquiry: (1) whether the plaintiff acted as an ordinary prudent person would have acted under the same circumstances; and (2) whether the plaintiff acted diligently up until the time the defendant was served. Tate, 119 S.W.3d at 380. The duty to use due diligence continues from the date suit is filed until the date the defendant is served. Id.; Parsons v. Turley, 109 S.W.3d 804, 808 (Tex.App.-Dallas 2003, pet. denied). In a case such as this, the question of due diligence is answered by looking at (1) the time it took to procure citation, service, or both and (2) the type of effort or lack of effort the plaintiff expended in procuring service. Webster v. Thomas, 5 S.W.3d 287, 290 (Tex.App.-Houston [14th Dist.] 1999, no pet.).

Whether a plaintiff was diligent in serving a defendant is normally a question of fact, but if no excuse is offered for a delay or if the lapse of time coupled with the plaintiff’s acts conclusively negate diligence, lack of diligence will be found as a matter of law. Vandigriff, 71 S.W.3d at 925; Instrument Specialties, 924 S.W.2d at 422. A fact issue exists if the plaintiff gives a valid or reasonable explanation for the delay. James, 129 S.W.3d at 759.

Here, it took appellant almost nine months from the time the suit was filed to serve appellee via substituted service. The length of time it took appellant to obtain service is sufficient to prove lack of diligence as a matter of law if appellant’s summary judgment evidence does not show a reasonable or valid explanation for the delay. Texas courts have consistently held that unexplained delays of five and six months in requesting issuance and service of citation constitute a lack of due diligence as a matter of law. Zacharie, 94 S.W.3d at 754; see also Hansler v. Mainka, 807 S.W.2d 3, 5 (Tex.App.Corpus Christi 1991, no writ) (holding as matter of law the plaintiff lacked diligence after a five and four-fifths month delay). In Boyattia v. Hinojosa, the Dallas court of appeals held that the plaintiff did not exercise due diligence after a three month period of inaction by the plaintiff. 18 S.W.3d 729, 733 (Tex.App.-Dallas 2000, pet. denied) (noting that clerk’s office had mistakenly misdirected service and plaintiff did nothing to rectify error). Thus, the issue we must resolve is whether appellant’s summary judgment evidence raises a fact issue as to whether he acted with reasonable diligence. See Webster, 5 S.W.3d at 290.

C. Application to Facts

Appellant presented four affidavits as summary judgment evidence: two from process servers who attempted to serve appellant, one from an in-house investigator for the law firm representing appellant, and one from a private investigator hired by the law firm. The first affidavit shows that on May 20, 2003, Brian Duffe, a process server, received the citation. He attempted to serve appellee at 701 Riverside Drive in Arlington on May 21 and 24; on June 2, 7, 10, 19, and 27; and on July 2, 8, 16 and 22. On July 31, Duffe informed appellant’s attorney that he did not believe appellee lived at that address.

The second affidavit shows that on July 31, appellant’s attorney utilized Gene Curry, the in-house investigator for the law firm representing appellant, to obtain additional addresses where appellant might be located. Curry located three additional possible addresses for appellee.

Duffe’s affidavit further shows that on August 4, 2003, Duffe received a facsimile from Curry that listed three new possible addresses for appellee. On August 5, 7, and 9, Duffe attempted to serve appellee at 2508 Ruger Drive in Arlington. On August 9, the current resident at that address told Duffe that appellee did not live there. On August 8, 16, and 20, Duffe attempted service at 825 Muirfield Drive in Mansfield and was again told by the current resident that appellee did not live there.

On August 13,16, and 27 and September 6 and 13, Duffe attempted to serve appel-lee at 4268 Chaha Road in Garland, but he did not receive an answer when he knocked on the door. However on September 17, a Mrs. Carroll answered the door and stated, “Michael Wells is not [a]t this address.” On September 24, Duffe told appellant’s attorney that he was unable to serve appellee at the three new addresses provided by the investigator.

The third affidavit, dated January 15, 2004, showed that citation was then delivered to Cynthia Rosser, a process server, on October 17, and service attempts continued until December 5. Rosser attempted to serve appellee three times at the Riverside Drive address and four times at the Chaha Road address. Between December 5 and December 10, 2003, she made over twenty calls to Mark Wells, appellee’s brother, at the Mansfield address. Rosser averred that she confirmed that appellee’s brother, Mark Wells, resided at 825 Muirfield Drive in Mansfield, that appellee listed this address on his Texas driver’s license, that she believes the two were in contact with each other, and that in her belief the most efficient way to effect service would be by delivering substitute service at 825 Muirfield Drive.

The final affidavit shows that appellant also used Arthur B. Cantrell, a private investigator, to locate appellee. In his January 14, 2004 affidavit, Cantrell stated that appellee had public utilities as late as December 2003 at the Chaha Road address and that a David Wells was currently living there. Appellee’s driver’s license listed 825 Muirfield Drive as his residence, and this home was “registered” to Mark and Carla Wells. Cantrell averred that the most current address for appellee was care of Julie A. Wells, 2126 Fleur de Lis Court, Arlington, Texas. Cantrell stated that “[appellee] appears to be moving from relative to relative and doing his best to avoid service from the courts and creditors.” He concluded that the Fleur de Lis address was the best address for service but that substituted service at either the Fleur de Lis address or the Muirfield address would be the best solution for proper service.

The record shows that appellant did not file a motion for substituted service until January 15, 2004. He served appellee on January 26, 2004, over eight months after filing suit.

Appellee contends that he is entitled to summary judgment because appellant did not explain two periods of delay: (1) from May 2, when appellant filed his original petition, to May 20, when Duffe received the citation (nineteen days); and (2) from September 18, when Duffe last attempted service, to October 20, when Rosser made her first attempt to serve appellee (thirty-three days). Appellant claims in his brief that he requested and paid for the citation on May 2 when he first filed suit. In his summary judgment response, he stated, “Citation was received from the District Clerk and forwarded to ... Duffe.... ” Duffe averred in his affidavit that he received the citation on May 20, 2003. There is no evidence in the summary judgment record as to when appellant requested and received the citation. Thus, we do not know whether this delay resulted from appellant’s inaction or the time it took for the court to issue the citation. It is the responsibility of the party requesting service to see that it is properly accomplished. See Tex.R. Civ. P. 99a; Primate Constr., Inc. v. Silver, 884 S.W.2d 151, 153 (Tex.1994); Carter, 93 S.W.3d at 313.

Duffe averred that he last attempted service on September 17, but he did not notify appellant of his inability to effectuate service until September 24. There is no evidence in the record explaining appellant’s efforts as to service in the twenty-four days between September 24 and October 17, the day Rosser received the citation. It was during this period that the trial court, after notice to appellant, dismissed the case for want of prosecution. Although the trial court reinstated the case on November 18, 2004, appellant did not request substituted service until almost two months later.

In Cantrell’s affidavit, the private investigator averred that “the initial search for a proper service location for [appellee] was initiated after serveral [sic] failed attempts by the process server at ... 4268 Chaha Road, Apt 303, Garland, Texas,” but he did not say on what specific date appellant hired him. Thus, appellant’s summary judgment evidence shows that the private investigator did not begin to search for appellee until sometime after Duffe’s faded September attempts to serve appellee, almost five months after appellant filed suit and after Duffe had attempted to serve appellee over twenty times.. Appellant provided no explanation for the lengthy delay in hiring a private investigator to investigate appellee’s whereabouts. See Schwehr v. Martens, No. 01-00-00217-CV, 2000 WL 1831539, at *2-3 (Tex.App.-Houston [1st Dist.] Dec. 14, 2000, no pet.) (not designated for publication) (holding that evidence of obstacles to effecting service, including defendant’s moving without notification, was not evidence showing plaintiff’s diligence in attempting service and that plaintiff’s attorney’s knowledge of such difficulties made unexplained delay in hiring private investigator “more egregious”).

The record shows that appellant filed his suit less than a month before limitations expired; that he made no attempt to serve appellee until after limitations had expired; that his suit was dismissed once for want of prosecution and he did not file a motion to reinstate it until three weeks later; that despite knowledge of numerous faded attempts to serve ap-pellee, appellant did not hire a private investigator to determine appellee’s whereabouts, including the facts necessary to effect substituted service, until almost five months after he filed suit; and that appellant was not able to serve appellee for almost nine months. Additionally, appellant failed to explain why it took almost three weeks for citation to be delivered to the first process server and twenty-four days for citation to be delivered to the second process server. Although the process servers hired by appellant made numerous attempts to serve appellee, appellant did not explain all periods of delay in effecting service on appellee, and the circumstances show that appellant was not diligent in prosecuting the case and in procuring substituted service.

We hold that the summary judgment evidence shows that appellant failed to raise a fact issue on his due diligence excuse by providing a valid or reasonable explanation for his delay in effecting service; therefore, appellee proved as a matter of law that appellant did not use due diligence in serving him, and appellant’s suit is barred by limitations. We overrule appellant’s sole issue.

IV. Conclusion

Having overruled appellant’s sole issue, we affirm the trial court’s judgment.

WALKER, J. filed a dissenting opinion.

SUE WALKER, Justice,

dissenting.

I respectfully dissent. I agree with the majority’s statement of the facts and with its recitation of the controlling case law. I cannot agree,'however, that viewing the summary judgment evidence in the fight most favorable to the nonmovant, Appellant Denis Proulx, it fails to- raise a genuine issue of material fact regarding whether Appellant acted as an ordinary prudent person would have acted under the same circumstances and whether Appellant acted diligently up until the time Appellee Michael A. Wells was served. Consequently, I would sustain Appellant’s sole issue and reverse the trial court’s summary judgment.

The law is well settled that when a movant seeks summary judgment on the ground that the suit was not served upon him within the applicable limitations period and the nonmovant raises the issue of due diligence, then to obtain summary judgment the movant must conclusively establish that diligence was not used to effectuate service. S.W. Elec. Power Co. v. Grant, 73 S.W.3d 211, 215 (Tex.2002); Zale Corp. v. Rosenbaum, 520 S.W.2d 889, 891 (Tex.1975); Tate v. Beal, 119 S.W.3d 378, 381 (Tex.App.-Fort Worth 2003, pet. denied). A matter is conclusively established if reasonable minds cannot differ as to the conclusion to be drawn from the summary judgment proof. See, e.g., Triton Oil & Gas Corp. v. Marine Contractors & Supply, Inc., 644 S.W.2d 443, 446 (Tex.1982). In other words, if the summary judgment evidence concerning due diligence — including the nonmovant’s controverting summary judgment evidence— viewed in the light most favorable to the nonmovant, raises a genuine issue of material fact concerning the nonmovant’s diligence in obtaining service, then summary judgment is improper. Tate, 119 S.W.3d at 381 (holding that “[vjiewing all of the evidence and its reasonable inferences in the light most favorable to Tate [the non-movant], we hold that a fact issue exists concerning whether Tate exercised due diligence in effecting service on Beal”). Generally a plaintiffs diligence in effectuating service is a question of fact that is determined by a two-pronged inquiry: (1) whether the plaintiff acted as an ordinary prudent person would have acted under the same circumstances, and (2) whether the plaintiff acted diligently up until the time the defendant was served. Id. (citing Hodge v. Smith, 856 S.W.2d 212, 215 (Tex.App.-Houston [1st Dist.] 1993, writ denied)).

Here, Appellant’s summary judgment evidence included affidavits from two process servers, one in-house investigator, and one private investigator. Viewed in the light most favorable to Appellant, these affidavits raise a fact issue concerning whether Appellant acted with reasonable diligence in effecting service on Appellee. The summary judgment affidavits filed by Appellant establish that during the nine months between when suit was filed and when Appellant finally successfully obtained substituted service on Appellee’s brother, Appellant utilized two process servers who attempted service on Appellee twenty-three times at five different addresses and utilized two different investigators in an effort to locate Appellee. The private investigator stated in his affidavit that Appellee “appears to be moving from relative to relative and doing his best to avoid service from the courts and creditors.”

Viewing this evidence and its reasonable inferences in the light most favorable to Appellant and resolving all doubts about the existence of a genuine issue of material fact against Appellee, the sheer volume of Appellant’s repeated and consistent service attempts, combined with his use of two investigators and supported by the private investigator’s sworn conclusion that Appel-lee was intentionally avoiding service, at least raise a fact issue regarding Appellant’s due diligence in serving process on Appellee. See, e.g., id. (holding that appellant, who served appellee three months after suit was filed and after the limitations period, used due diligence even though there was an eleven-day delay in first attempting service and a near three-month delay between the first failed attempt at service and the date of actual service); Tranter v. Duemling, 129 S.W.3d 257, 261-63 (Tex.App.-El Paso 2004, no pet.) (holding that appellant, who served appellee three months after suit was filed and after the limitations period, used due diligence); Martinez v. Becerra, 797 S.W.2d 283, 285 (Tex.App.-Corpus Christi 1990, no writ) (noting that defendant’s efforts to conceal his identity “weigh heavily in favor of finding due diligence”); see also Forrest v. Houck, No. 14-03-00583-CV, 2004 WL 2163057, at *7 (Tex.App.-Houston [14th Dist.] Sept. 28, 2004, no pet.) (mem.op.) (recognizing defendant’s use of address other than his residence for driver’s license was major cause of delay in serving defendant and constituted explanation for delay in service requiring reversal of summary judgment for defendant).

The majority points to the following facts in holding that appellant failed to raise a fact issue on diligence: the nineteen-day delay between the date of filing suit and the date that the process server received citation, Appellant’s nearly five-month delay in hiring a private investigator to locate Appellee (prior to that time Appellant explained that he had been using an in-house investigator), a twenty-four day delay in delivering citation to the second process server, and the total nine-month delay between when suit was filed and when substituted service on Appellee was finally obtained. The short purported gaps in Appellant’s nine-months’ worth of repeated and continuous service efforts, however, do not conclusively establish a lack of diligence in effectuating service, especially in light of the summary judgment evidence -that Appellee was actively dodging service. Compare Gant v. DeLeon, 786 S.W.2d 259, 260 (Tex.1990) (holding that plaintiffs’ unexplained delay of three periods totaling thirty-eight months in obtaining service on defendant was lack of due diligence); Webster v. Thomas, 5 S.W.3d 287, 291 (Tex.App.-Houston [14th Dist.] 1999, no pet.) (holding four-month delay between obtaining citation and having it served on the defendant was a lack of due diligence when the plaintiffs actions during this time “were not designed to procure the issuance of citation and service”); Butler v. Ross, 836 S.W.2d 833, 835-36 (Tex.App.-Houston [1st Dist.] 1992, no writ) (five and one-half months of inactivity between failure of service on wrong address and service at new address was a lack of due diligence); Hansler v. Mainka, 807 S.W.2d 3, 5 (Tex.App.-Corpus Christi 1991, no writ) (no request for service of process for five months after suit filed was a lack of due diligence); Allen v. Bentley Labs., Inc., 538 S.W.2d 857, 860 (Tex.Civ.App.-San Antonio 1976, writ ref'd n.r.e.) (unexplained six-month delay between filing suit and obtaining service was a lack of due diligence); Williams v. Houston-Citizens Bank & Trust Co., 531 S.W.2d 434, 435-36 (Tex.Civ.App.-Houston [14th Dist.] 1975, writ ref’d n.r.e.) (unexplained almost eight-month delay between expiration of first citation and issuance of second citation was a lack of due diligence). The majority cites no cases that hold otherwise. In fact, until today, no case existed holding that twenty-three attempts to serve a defendant at five different addresses over nine months — all made while the defendant was actively dodging service — constitutes a lack of diligence as a matter of law.

Because reasonable minds can differ as to whether Appellant exercised due diligence in effectuating service upon Appel-lee, I would sustain Appellant’s first issue and reverse the trial court’s summary judgment for Appellee.

      . The San Antonio court of appeals has held that the length of delay is not the critical factor, but whether diligence was used to effectuate service. Zacharie v. U.S. Natural Res., Inc., 94 S.W.3d 748, 754 (Tex.App.-San Antonio 2002, no pet.); Keeton v. Carrasco, 53 S.W.3d 13, 18 (Tex.App.-San Antonio 2001, pet. denied).

        . Cf Boyattia, 18 S.W.3d at 734 (holding when defendant was served two weeks after suit filed and citation remained with court clerk during all but one day of that two-week period, that delay in effecting service not unreasonable).

      . We also believe it to be significant that once appellant served appellee by substituted service, he took no further action during the almost six-month period before appellee filed his answer.

      . Because Rosser attempted to serve appellee at the Chaha Road address during November 2003, Cantrell could have been hired much later, at the end of November or in early December 2003. Because we must resolve any doubts about the evidence in appellant's favor, we will assume that appellant hired Cantrell after Duffe’s failed attempts to serve appellee at the Chaha Road address. See Valence Operating Co., 164 S.W.3d at 661.

      . I agree with the majority that "the issue we must resolve is whether appellant’s summary judgment evidence raises a fact issue as to whether he acted with reasonable diligence.”


author: G. ALAN WALDROP, Justice. DAVID PURYEAR, Justice,

text:
    In re FLUOR ENTERPRISES, INC.; Fluor Corporation; Fluor Constructors International, Inc.; and Fluor Texas, Inc.
    No. 03-06-00113-CV.
    Court of Appeals of Texas, Austin.
    Feb. 27, 2006.

      Marie R. Yeates, Sandra G. Rodriguez, Vinson & Elkins, L.L.P., Kent M. Adams, Sarah M. Davis, Adams & Boswell, PC, Houston, for relators.
    Jeffery Mundy, Michael Singley, Mundy & Singley, L.L.P., Austin, Deborah G. Hankinson, Elana S. Einhorn, Law Offices of Deborah Hankinson, PC, Dallas, for real parties in interest.
    Before Justices B.A. SMITH, PURYEAR and WALDROP.
   OPINION

G. ALAN WALDROP, Justice.

This is an original proceeding seeking a writ of mandamus to direct Respondent, the Honorable Mark Davidson of the 11th Judicial District Court of Harris County, Texas, to vacate his order of February 23, 2006, remanding this case to the 345th Judicial District Court of Travis County, Texas. It was filed in this Court by Rela-tors Fluor Enterprises, Inc., Fluor Corporation, Fluor Constructors International, Inc., and Fluor Texas Inc. (the “Fluor Defendants”). The underlying lawsuit is an asbestos case involving allegations of a death due to mesothelioma filed against a number of defendants, including the Rela-tors. On September 29, 2005, this lawsuit was set for trial in the Travis County District Court for February 27, 2006. The Fluor Defendants transferred the lawsuit to the asbestos multi-district litigation (“MDL”) pretrial court in Harris County on February 23, 2006. The same day, Judge Davidson, the MDL pretrial judge, heard the plaintiffs’ motion, to remand and remanded the case back to Travis County district court. This original proceeding, as well as an Emergency Motion for Temporary Relief staying the trial, were filed in this Court on February 24, 2006, seeking review of Judge Davidson’s order remanding the case to the Travis County trial court.

The question before us is whether the MDL pretrial court abused its discretion in remanding this case for trial in light of Texas Civil Practices and Remedies Code section 90.010. Section 90.010 is a portion of the comprehensive statute dealing with asbestos and silica cases effective September 1, 2005. Tex. Civ. Prac. & RemuCode Ann. §§ 90.001-.012 (West Supp.2005). Relators argue that section 90.010 precludes the MDL pretrial court from remanding this case for trial until the plaintiffs serve a report on the Relators that complies with section 90.003. It is undisputed that the plaintiffs have not served such a report. The plaintiffs, who are the Real Parties in Interest, argue that section 90.010 does not prohibit a remand in this case when the Relators waited until four days before trial to attempt to transfer the case to the MDL proceeding and when the attempted transfer violated the MDL pretrial court’s deadlines set out in its case management order. We deny the Motion for Emergency Relief and deny the Petition for Writ of Mandamus.

Facts

This asbestos case was originally filed in Travis County district court on January 4, 2004. The plaintiffs seek damages for personal injury and wrongful death relating to the exposure of Sam Wallace, Jr., deceased, to asbestos fibers. Mr. Wallace had been diagnosed with mesothelioma. The Fluor Defendants appeared pursuant to the Travis County Standing Order relating to asbestos cases on February 14, 2005, and formally answered on April 28, 2005.

Because it was filed in January 2004, the lawsuit is subject to the application of MDL rules that were authorized by the Legislature in 2003. Tex. Gov’tCode Ann. § 74.163 (West 2005). Pursuant to these rules, the judicial panel on multi-district litigation appointed the 11th District Court in Harris County to act as the MDL pretrial court for consolidated pretrial proceedings in asbestos cases filed after September 1, 2003. See Union Carbide v. Adams, No. 03-0895 (Tex.M.D.L.Panel, Jan. 13, 2004). As part of its delegated authority to manage the MDL asbestos docket, the MDL pretrial court entered its original case management order on July 29, 2004, setting forth various procedures for the management of the docket, including deadlines for transferring cases to the MDL pretrial court. In re Asbestos Litigation, No.2004-03964 (11th Dist. Ct., Harris County, Tex.). This case management order was later amended by the MDL pretrial court’s First Amended Case Management Order entered on December 21, 2004. The amended case management order did not alter the procedural deadlines applicable to the transfer of this case to the MDL pretrial court.

The Case Management Order required defendants to transfer their case within thirty days of their answer. See id., par. 1.A.1. The Fluor Defendants did not transfer this case, to the MDL pretrial court by this deadline. In fact, the Fluor Defendants did not transfer or attempt to transfer the case to the MDL proceeding during 2005 or January 2006. The first attempt to transfer the case to the MDL proceeding was on Thursday, February 23, 2006, four days before the scheduled trial setting in Travis County District Court of Monday, February 27, 2006. The MDL pretrial court wasted no time in considering an oral motion to remand, held a telephonic hearing on the motion, and remanded the case the same day it was transferred. The remand was granted by written order signed by Judge Davidson and does not detail the basis for the ruling.

Because this case was pending on the date that chapter 90 of the civil practices and remedies code became law, various portions of that statute apply. Notably, the requirement under section 90.003 for the claimants to serve a report on each defendant by a board-certified physician in pulmonary medicine, occupational medicine, internal medicine, oncology, or pathology stating that “to a reasonable degree of medical probability, exposure to asbestos was a cause of the diagnosed mesothelioma.” Tex. Civ. Prac. & Rem. Code Ann. § 90.003(a)(1)(B) (West Supp. 2005). The plaintiffs do not contest that the report is required nor do they contest that they failed to serve such a report. Their argument is, in essence, that the Relators waived their right to delay a trial over the failure to serve a report by: (1) waiting several months to raise the issue, (2) foregoing their right to transfer the case to the MDL pretrial court under the provisions of the case management order, (3) failing to seek a continuance in the trial court, and (4) and raising the absence of the report for the first time on the eve of trial.

Jurisdiction

Under Rule of Judicial Administration 13.9(b), an order of the MDL pretrial court may be reviewed by the appellate court that regularly reviews orders of the court in which the case is pending at the time review is sought; irrespective of whether the court where the case is pending issued the order or judgment to be reviewed; ' Tex.R. Jud. Admin 13.9(b),re-printed in Tex. Gov’t Code Ann., tit. 2, subtit. F app. (West Supp.2005). As a result of the remand order entered by the MDL pretrial court on February 23, 2006, this case is currently pending in the 345th Judicial District Court of Travis County. The Petition for Writ of Mandamus seeks review of the order remanding the case from the MDL pretrial court to Travis County district court. Therefore, because this case is currently pending in Travis County district court, this Court has jurisdiction to review the February 23, 2006, order of the MDL pretrial court remanding the case for trial. See id.

A question arises as to the potential application of Rule of Judicial Administration 13.5(e) and whether the review of Judge Davidson’s order lies exclusively with the .MDL Panel. Rule 13.5(e) provides:

(e) Transfer of Tag-along Cases. Atag-along case is deemed transferred to the pretrial court when a notice of transfer — in the form described in Rule 13.5(a) — -is filed in both the trial court and the pretrial court. Within 30 days after service of the notice, a party to the case or to any of the related cases already transferred to the pretrial court may move the pretrial court to remand the case to the trial court on the ground that it is not a tag-along case. If the motion to remand is granted, the case must be returned to the trial court, and costs including attorney fees may be assessed by the pretrial court in its remand order. The order of the pretrial court may be appealed to the MDL Panel by a motion for rehearing filed with the MDL Panel Clerk.

See id. 13.5(e) (emphasis added).

If this case was remanded on the ground that it is not a tag-along case, then the power to review the order of remand would lie exclusively with the MDL Panel. The MDL pretrial court’s order is silent as to the grounds for remand. The motion to remand was made orally and we have no record of the telephonic hearing. Our only indication of what transpired during the telephonic hearing is a statement in Rela-tors’ brief that the MDL pretrial court “indicated that it was remanding the case in part because it believed the MDL transfer was untimely under the MDL court’s case management order.”

The Real Parties in Interest do not contest this Court’s jurisdiction to hear this matter pursuant to Rule 13.9(b). Neither party has argued that this case is not a tag-along case under the MDL rules and, therefore, subject to Rule 13.5(e). We have no record that establishes that the MDL pretrial court remanded the case on the ground that it is not a tag-along case. Indeed, the MDL pretrial court’s order is titled “Order Denying Transfer Under Rule 13 of Tag-along Case” suggesting that the MDL pretrial court considered the case a tag-along case and was remanding for some other reason. In addition, it is undisputed that this matter is a personal injury case in which the claimants are asserting an asbestos-related injury. It is, therefore, “related to cases” that were transferred in the MDL Panel’s initial transfer order to the asbestos MDL pretrial court. See Tex.R. Jud. Admin. 13.2(g), reprinted in Tex. Gov’t Code Ann., tit. 2, subtit. F app. (West Supp.2005). Thus, it qualifies as a “tag-along case” under the MDL rules. The MDL pretrial court did not indicate that it was granting the motion to remand on the basis that this case is not a tag-along case, ie., that it was not related to cases alleging asbestos-related personal injury. On this record, we cannot find that the case was remanded on the ground that it is not a tag-along case. Consequently, jurisdiction to hear this original proceeding derives from Rule 13.9(b) rather than Rule 13.5(e).

Standard of Review

Mandamus is an extraordinary remedy, available only when a trial court clearly abuses its discretion and when there is no adequate remedy by appeal. In re Ford Motor Co., 165 S.W.3d 315, 317 (Tex.2005) (orig. proceeding). A trial court clearly abuses its discretion if it reaches a decision so arbitrary and unreasonable as to amount to a clear and prejudicial error of law, or if it clearly fails to correctly analyze or apply the law. Walker v. Packer, 827 S.W.2d 833, 839 (Tex.1992) (orig. proceeding). We review the MDL pretrial court’s order remanding this case to the Travis County trial court under an abuse of discretion standard.

Analysis

As an initial matter, we note that the Relators attempted to transfer this case to the MDL proceeding under subsection 90.010(b). Their notice of transfer is titled “Notice of Transfer Under Section 90.010(b)” and recites that the case is transferred “pursuant to Section 90.010(b).” However, subsection 90.010(b) does not provide a basis for transfer of this case to the MDL proceeding. Subsection 90.010(b) states, in part: “If the claimant fails to serve a report complying with Section 90.003 or 90.004 on or before the 90th day after the date this chapter becomes law under Subsection (a)(2), the defendant may file a notice of transfer to the MDL pretrial court.” Tex. Civ. Prac. & Rem. Code § 90.010(b) (emphasis added). By its express terms this provision applies to cases falling.within the ambit of subsection (a)(2). Subsection (a)(2) applies only to actions filed before September 1, 2003. This case was filed on January 4, 2004. Subsection 90.010(b) does not apply and, therefore, can provide no basis for the transfer of this case to the MDL proceeding.

The reasoning behind this is revealed by the history of chapter 90 and the original MDL statute passed by the Legislature. Section 90.010 provides that the MDL rules apply to any action pending on the date that chapter 90 became law. Chapter 90 became law on September 1, 2005. At that time,, the MDL rules already applied to cases filed after September 1, 2003, when the original MDL statute became effective. Section 90.010 expanded the application of the MDL rules to cases alleging asbestos-related injury filed prior to September 1, 2003. It also created a mechanism for these cases to be transferred to the pending asbestos MDL proceeding (with certain exceptions listed in subsection (a) of section 90.010 and not relevant here). Section 90.010 does not create a mechanism for transferring asbestos cases filed after September 1, 2003. The mechanism for transferring post-September 2003 asbestos cases to the MDL proceeding already exists and is governed by the MDL rules and the MDL pretrial court’s case management order. Asbestos cases filed after September 1, 2003, are transferred to the MDL proceeding or not transferred based on the procedures laid out in the MDL rules and the MDL pretrial court’s case management order. Subsection 90.010(b) sets out what is to be done with cases filed before September 1, 2003, in which trial has not commenced before the 90th day after the chapter became law, arid that do not involve a malignancy. Subsection 90.010(b) simply does not address any issue relevant to a case filed after September 1, 2003.

This interpretation is further reinforced by the fact that asbestos cases filed after September 1, 2003, had been governed for over a year by the MDL rules and Judge Davidson’s case management order at the time chapter 90 became law. Under the case management order authorized by the MDL rules, asbestos defendants had deadlines by which they had to act to transfer cases to the MDL proceeding or their right to transfer would be waived. This is the situation with the Relators/Defendants in this case. If section 90.010 were intended to revive the right of these defendants to transfer their cases to- the MDL proceeding, one would expect to find a provision addressing such a revival. Such a provision does not appear in section 90.010 despite the fact that the Legislature was aware of the existence of the MDL rules and Judge Davidson’s case management order at the time it passed section 90.010. In light of this history, we are not persuaded that we should engraft a revival of such transfer rights onto section 90.010.

Relators point to subsection 90.010(d) as evidence that this case must remain in the MDL pretrial court until the plaintiffs serve a report that complies with section 90.003. Section 90.010(d) provides:

(d) In an action pending on the date this chapter becomes law that is transferred to or pending in an MDL pretrial court and in which the claimant does not serve a report that complies with Section 90.003 or 90.004, the MDL pretrial court shall not dismiss the action pursuant to this chapter but shall retain jurisdiction over the action under the MDL rules. The MDL pretrial court shall not remand such action for trial unless:
(1) the claimant serves a report complying with Section 90.003 or 90.004; or
(2) (A) the claimant does not serve a report that complies with Section 90.003 or 90.004;
(B) the claimant serves a report complying with Subsection (f)(1); and
(C) the court, on motion and hearing, makes the findings required by Subsection (f)(2).

Tex. Civ. Prac. & Rem.Code § 90.010(d) (West Supp.2005).

Subsection 90.010(d) does not create a right to transfer a case to an MDL proceeding. It provides that if a case pending on September 1, 2005, is transferred to or pending in an MDL proceeding, it must remain in the MDL proceeding unless certain requirements are met. The right to be transferred to or pending in an MDL proceeding has to derive from a source other than subsection 90.010(d). Relators argue that the source of the right to transfer this case comes from subsection 90.010(b). However, as we have discussed above, subsection 90.010(b) does not apply to this case.

Subsection 90.010(d) also does not abrogate the procedural requirements governing transfer to the MDL pretrial court under the MDL rules and Judge Davidson’s case management order. Subsection (d) provides that if a case is transferred to or pending in the MDL pretrial court and the claimant has failed to serve a report, the case must stay there until the report is served or the claimant meets the requirements of subsection (f)(2). This does not abrogate the requirement that a case be transferred to the MDL proceeding in a manner that complies with the applicable MDL rules and procedures put in place by the MDL pretrial court. This includes such requirements as the timetables established by the MDL pretrial court’s case management order. Otherwise, subsection (d) would stand for the proposition that cases which are plainly excepted from the application of section 90.010 and the MDL rules, such as actions filed before September 1, 2003, in which the exposed person was diagnosed with mesothelioma, would be subject to a notice to transfer to the MDL and once there could not be remanded until section 90.003 reports were served. Such an interpretation is not consistent with the structure of chapter 90 or the specific structure of section 90.010. We believe the better view is that subsections 90.010(a) and 90.010(b) address rights and procedural mechanisms for cases filed before September 1, 2003, and subsection 90.010(d) addresses the disposition of cases that have been transferred to the MDL proceeding either pursuant to 90.010(b) or pursuant to the applicable MDL rules, and that remain in the MDL pretrial court as of September 1, 2005. This case falls in neither category.

This question of interpretation arises due to the way the procedure for transferring cases to an MDL proceeding works. Under Rule of Judicial Administration 13, a transfer is accomplished by filing a notice of transfer. Much like the procedure for removal to federal court, the filing of such a notice of transfer to an MDL proceeding operates to, at least initially, transfer the case to the MDL proceeding. Pursuant to Rule 18.5, a case is “deemed transferred” to the MDL pretrial court when the notice of transfer is filed. This puts the case within the jurisdiction of the MDL pretrial court subject to that court’s review of the transfer and subject to any motion to remand filed by a party who objects to the transfer. See Tex.R. Jud. Admin 13.5 and 13.7, reprinted in Tex. Gov’t Code Ann., tit. 2, subtit. F app, (West Supp.2005). Relators argue that subsection 90.010(d)’s language to the effect that “an action pending on the date this chapter becomes law that is transferred to ... an MDL pretrial court ” cannot be remanded by the MDL pretrial court except under certain circumstances means that once a party has unilaterally filed a notice of transfer — i.e. “tagged” the case to the MDL proceeding — the transfer is accomplished and the MDL pretrial court can remand only if the additional requirements of subsection 90.010(d) are met. However, this is toó strained a reading of subsection 90.010(d). Subsection 90.010(d) was passed by the Legislature with the backdrop of the MDL rules in place. Those rules govern how a case is to be transferred to the MDL pretrial court. Section 90.010 does not supply new rules, it relies on the application of the MDL rules. Subsection 90.010(d) must be read with the overlay of the MDL rules in mind. Thus, if a case is transferred to the MDL pretrial court or is pending in the MDL pretrial court in accordance with' the MDL rules, the MDL pretrial court cannot remand such a case unless the additional requirements of subsection (d) are met. Any. other reading would create plainly unintended consequences. For example, it would allow:

■ «defendants to '“tag” cases excepted from the application of the MDL rules to the MDL pretrial court, such as pre-September ■ 2003 mesothelioma cases, and require the MDL pretrial court to retain these cases until the subsection (d) requirements are met; or
• defendants who have waived their right to transfer a case (waited until after the MDL case management order deadline) to “tag” the case to the MDL pretrial court at any point in the litigation process, including post-verdict, and then claim the case cannot be remanded until the subsection (d) requirements are met.

We do not believe subsection 90.010(d) was intended to be read this way. Section 90.010 and all of its subsections were passed by the Legislature with the MDL rules in existence and in effect. Those rules apply to the extent they are not inconsistent with express statutory requirements. Requiring that subsection (d) be read to allow the MDL pretrial court to remand a case if the transfer of the case was not in accordance with the procedural requirements of MDL rules or the MDL pretrial court’s case management order is not inconsistent with the express statutory mandate of subsection (d). The right to transfer a case is not absolute. It can be waived and it is governed by MDL procedural rules. However, once an asbestos case is transferred in accordance with the MDL rules, subsection 90.010(d) provides that, if it is a pre-September 2005 case, it must remain in the MDL pretrial court unless the requirements of subsection 90.010(d)(1) or (d)(2) are met. This case was not transferred to the MDL pretrial court in accordance with the MDL rules and the MDL pretrial court’s case management order. Therefore, it was subject to remand by the MDL pretrial court.

Finally, we are troubled by the fact that Relators waited until the Thursday before a Monday trial setting to raise the issue of a lack of a section 90.003 report and to attempt to transfer the case to the MDL proceeding. This case was potentially transferrable to the MDL pretrial court as early as February 2005 when the Relators were aware of the existence of the case, the existence of the MDL pretrial court, and the fact that it was an asbestos personal injury case. Relators elected to forego transfer to the asbestos MDL pretrial court under the rules in place and applicable to this case in 2004. In addition, the case was set for trial in September 2005, over five months before the February 27, 2006 trial date. Chapter 90 did not create a new right of transfer to the MDL proceeding for those cases to which the MDL rules already applied, but even if it had, waiting nearly six months after chapter 90 became law, five months after the case was set for trial, and until the eve of trial before raising lack of a report as an issue or attempting to transfer the case to the MDL proceeding amounts to waiver of such a right under the circumstances of this case and as a matter of equity. There is no question that a report is required by section 90.003. However, in cases filed in the two-year period between September 1, 2003, and September 1, 2005, in which the defendants have waived their right to transfer to the MDL proceeding, the remedy for a failure to serve a report lies in the sound discretion of the trial court. The remedy does not include a transfer to the MDL proceeding as a matter of right to prevent the commencement of a trial. As set out by the Legislature in its statement of the purpose of chapter 90, the chapter was intended to reheve litigants and the court system of the burden of claims by unimpaired asbestos claimants. Act of May 11, 2005, 79th Leg., R.S., ch.97, § 1, 2005 Tex. Gen. Laws 169,169. It was not intended to be a procedural trap for claimants with mesothelioma.

Conclusion

We hold that section 90.010(b) does not create a right of transfer for asbestos cases filed after September 1, 2003, that is independent of the MDL rules. We also hold that section 90.010(d) does not require the MDL pretrial court to retain cases filed after September 1, 2003, that were not transferred to the MDL pretrial court in accordance with the procedures established by the MDL rules. In addition, we hold that even if section 90.010 can be interpreted to create a new right to transfer post-September 2003 cases to the MDL proceeding independent of the rules promulgated by the Supreme Court and the MDL pretrial court, the Relators in this case waived that right by failing to assert it in a more timely fashion. Accordingly, we find that the MDL pretrial court’s order remanding this case to the Travis County district court was not an abuse of discretion, and we deny the Petition for Writ of Mandamus and the Motion for Emergency Relief.

Concurring Opinion by Justice PURYEAR.

DAVID PURYEAR, Justice,

concurring.

Because I disagree with the majority opinion to the extent that it implies that failure to comply with a deadline established in a case management order can result in remand from a pretrial court to a trial court when all the statutory requirements have not been complied "with, I write this concurring opinion to the majority opinion.

I agree with the portion of the majority’s opinion concluding that section 90.010(b) of the civil practice and remedies code does not apply to this case. Subsection (b) provides, in relevant part, as follows:

If the claimant fails to serve a report complying with Section 90.103 or 90.004 on or before the 90th day after the date this chapter becomes law under Subsection (a)(2), the defendant may file a notice of transfer to the MDL pretrial court.

Tex. Civ. Prac. & Rem.Code Ann. § 90.010(b) (West Supp.2005) (emphasis added).

Subsection (a)(2) applies to cases “filed before September 1, 2003.” Id. § 90.01(a)(2) (West Supp.2005). However, the present case was filed in January 2004. Therefore, the notice of transfer was improper as it was based on section 90.010(b).

However, I disagree with the majority’s suggestion that a pretrial court may remand a case to the trial court even though all statutory requirements have not been satisfied. In construing statutes, our goal is to give effect to the legislature’s intent. Texas Dep’t of Protective & Regulatory Servs. v. Mega Child Care, Inc., 145 S.W.3d 170, 176 (Tex.2004). If the statutory text is unambiguous, a court must adopt the interpretation supported by the statute’s plain language unless that interpretation would lead to absurd results. Id. at 177.

Section 90.010(d) of the civil practice and remedies codes provides, in relevant part, as follows:

In an action pending on the date this chapter becomes law that is transferred to or pending in an MDL pretrial court and in which the claimant does not serve a report ... the pretrial court shall not dismiss the action pursuant to this chapter but shall retain jurisdiction over the action under the MDL rules. The MDL pretrial court shall not remand such action for trial unless:
(1) the claimant serves a report complying with Section 90.003 or 90.004; or
(2) (A) the claimant does not serve a report that complies with Section 90.003 or 90.004;
(B) the claimant serves a report complying with Subsection (f)(1); and
(C) the court, on motion and hearing, makes the findings required by Subsection (f)(2).

Tex. Civ. Prac. & Rem.Code Ann. § 90.010(d) (West Supp.2005) (emphasis added).

The present case was pending when section 90.010 became effective in 2005. The clear language of subsection (d) specifies that the pretrial court shall not remand the case unless the claimant serves one of two types of reports. The claimant did not serve either type of report in this case.

The majority concludes that remand is appropriate because the Fluor defendants missed the deadline specified in a case management order for filing a notice of transfer of the case to a pretrial court. Section 90.010(a) of the civil practice and remedies code states that the MDL rules, which are set out in the rules of judicial administration, apply to any action pending after chapter 90 became effective. See id. § 90.010(a) (West Supp.2005); Tex.R. Jud. Admin. 13.1-13.9. Rule 13.6 authorizes the pretrial court “in all related cases transferred to the court” to enter a case management order “to set fair and firm time limits tailored to ensure the expeditious resolution of each case and the just and efficient conduct of the litigation as a whole.” Tex.R. Jud. Admin. 13.6(b), (c). Its case management order “should address [] all matters pertinent to the conduct of litigation.” Id. (emphasis added). However, nothing in rule 13.6 indicates that remand to the trial court for failure to comply with a deadline for filing a notice of transfer as specified in a case management order is an authorized action. Rather, the language of the MDL rules seems to establish an automatic transfer process, and no language in the rules specifically gives pretrial courts the authority to reject cases that have been transferred to it. See id. 13.1-13.9. The only rule that mentions a pretrial court’s ability to remand a case to the trial court is rule 13.7, which authorizes a pretrial court to remand a case to the trial court “when pretrial proceedings have been completed to such a degree that the purposes of the transfer have been fulfilled or no longer apply.” Id. 13.7(b). Nothing in rule 13.7 discusses violations of case management orders, and there is no indication that the purposes of the transfer had been fulfilled.

Further, the majority’s interpretation of the governing framework implies that a case management order issued by a pretrial court under the authority of the MDL rules supersedes the statutory requirements listed in section 90.010(d), but nothing in the statute or in the rules leads me to believe the legislature intended such a result.

However, under the circumstances of this case and given our standard of review, I agree that the pretrial court did not abuse its discretion. This case was filed in January 2004, but the Fluor defendants made no attempt to transfer the case until February 23, 2006, which was four days before the trial was scheduled to begin. Under these circumstances, the trial court did not abuse its discretion by finding that the Fluor defendants waived their right to participate in an MDL proceeding and, therefore, waived their right to invoke the application of subsection 90.010(d). See Comsys Info. Tech. Servs., Inc. v. Twin City Fire Ins. Co., 130 S.W.3d 181, 189-90 (Tex.App.-Houston [14th Dist.] 2003, pet. denied) (waiver is intentional relinquishment of known right or intentional conduct inconsistent with that right and may be established by silence or inaction for a long period).

For the reasons given, I concur in the judgment of this court.

      . The court signed a second amended order on February 24, 2006 — the day after the court remanded this cause to the Travis County District Court.

      . Although the case was filed in January 2004, citation was not served until January 2005. The Fluor Defendants appeared for the first time in February 2005.

      . This process is sometimes referred to as “tagging” because it usually concerns the transfer of "tag-along cases” — cases that fall within the subject matter of the MDL proceeding at issue — and is effective immediately upon the filing of a notice of transfer pursuant to the MDL rules.

      . There is also no question that providing such a report in this case would have been a very easy task since the only requirement was a statement by a board-certified physician diagnosing Mr. Wallace with mesothelioma. Why this was not done is not clear from the record. However, it is clear from the record that the plaintiffs are alleging that Mr. Wallace died as a result of mesothelioma and there were physicians designated to testify to this fact. While these factors will not relieve a claimant from the obligation to serve a report that complies with chapter 90, they are relevant when there is no statutorily mandated remedy for failure to serve the required report (such as dismissal under section 90.007 or retention in the MDL pretrial court under section 90.010(d)) and the defendant does not exercise diligence in objecting to the lack of a report.