Galbraith Engineering Consultants, Inc. v. Sam Pochucha and Jean Pochucha

IN THE SUPREME COURT OF TEXAS

IN THE SUPREME

COURT OF TEXAS

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No. 07-1051

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Galbraith Engineering

Consultants, Inc. ,

Petitioner,

v.

Sam Pochucha and Jean Pochucha ,

Respondents

════════════════════════════════════════════════════

On

Petition for Review from the

Court of Appeals for the Fourth District of

Texas

════════════════════════════════════════════════════

Argued December

11, 2008

Justice Medina delivered

the opinion of the Court.

Section 33.004(e) of the Civil Practice and Remedies Code purports to

revive claims otherwise “barred by limitations” under certain limited

circumstances. The issue in this summary judgment appeal is whether this statute

applies to revive a claim otherwise barred by a statute of repose, as

distinguished from a statute of limitations. The court of appeals concluded that

the statute was capable of reviving claims barred by either statutes of

limitations or statutes of repose. 243 S.W.3d 138, 141 .

We conclude that the Legislature did not intend for this statute to revive

claims extinguished by a statute of repose. Accordingly, we reverse the court of

appeals’ judgment and render judgment dismissing the plaintiffs’ claim in this

case.

I

The underlying litigation concerns the design and construction of a

house. Sam and Jean Pochucha purchased the house from

Chase Manhattan Mortgage Corporation in April 2003. Bill Cox Constructors, Inc.

had built the house about eight years before the Pochuchas ’ purchase. After moving into their new home, the

Pochuchas noticed that moderate to heavy rainfall

would cause water damage in the lower rooms. An investigation revealed a problem

with the french drain system.

The Pochuchas thereafter sued the builder, Bill

Cox, for negligence and violations of the Texas Deceptive Trade Practices Act.

In response, the builder answered and filed a motion for leave to designate

Galbraith Engineering Consultants, Inc. and Swientek

Construction Company as responsible third parties for purposes of proportionate

responsibility under chapter 33 of the Civil Practice and Remedies Code.

According to the builder, Galbraith had designed and inspected the installation

of the french drain system, while Swientek had performed the actual installation.

After the trial court approved Galbraith and Swientek’s designation as responsible third parties, the

Pochuchas amended their pleadings to join them as

defendants. See Tex. Civ. Prac.

& Rem. Code §

33.004(e). Galbraith responded by moving for summary

judgment under the applicable statute of repose, contesting its joinder because more than ten years had elapsed since the

completion of the improvement. See id. § 16.008 (barring suits against

engineers for their design, plan, or inspection of the construction of an

improvement to real property ten years after its substantial completion). The

trial court granted Galbraith’s motion, severed the Pochuchas ’ claims against Galbraith, and dismissed that part

of the case with prejudice. The court of appeals, however, reversed the summary

judgment and remanded the case against Galbraith for further proceedings. 243 S.W.3d 138 .

II

Section 16.008 of the Civil Practice and Remedies Code is a statute of

repose. Johnson v. City of Fort Worth , 774 S.W.2d 653,

654 (Tex. 1989) (per curiam ). It bars a claim

for damages relating to the design, plan, or inspection of the construction of

an improvement to real property ten years after the substantial completion of

the improvement by an engineer, among others. [1] Because the Pochuchas joined Galbraith as a defendant in this suit more

than ten years after the completion of the improvement, Galbraith argues that

the statute must be applied to foreclose the Pochuchas ’ claims against it.

The court of appeals concluded, however, that the claim was not

foreclosed, but rather had been revived under section 33.004(e) [2] of the Civil Practice and Remedies Code.

243 S.W.3d at 141 . Section 33.004(e) is a part of

chapter 33, the statutory scheme for the apportionment of responsibility in tort

and deceptive trade practice actions. See Tex. Civ. Prac. &

Rem . Code § 33.001-.017. Chapter 33

provides, among other things, that a defendant in such an action may seek to

designate a person, who has not been sued by a claimant, as a responsible third

party. Id. § 33.004(a). A responsible third

party may include any person who is alleged to have caused in any way the harm

for which the claimant seeks damages. Id . §

33.011(6). When such a designation is made, a claimant may also be able

to join that person as a defendant, and, if joinder is

sought within sixty days of the designation, limitations cannot be raised as a

bar. Id . § 33.004(e). Because the Pochuchas joined Galbraith as a defendant within the

sixty-day window provided under section 33.004(e), the court of appeals

concluded that the claim had been revived. 243 S.W.3d at

141 .

Galbraith argues, however, that section 33.004(e) only revives claims

“barred by limitations.” Because the revival statute does not mention repose,

Galbraith contends that it cannot be used to revive a claim extinguished by a

statute of repose. The court of appeals concluded, however, that the revival

statute applied both to statutes of repose and statutes of limitations,

reasoning that the Legislature had used the term “limitations” to refer to both

types of statutes. 243 S.W.3d at 141 (noting that Civil Practice and Remedies

Code chapter 16, entitled “Limitations,” contains both statutes of limitations

and statutes of repose). Although the Legislature has grouped statutes of

limitation and statutes of repose together in chapter 16 of the Civil Practice

and Remedies Code under the general heading of “Limitations,” there are

significant differences between the two.

Statutes of repose typically provide a definitive date beyond which an

action cannot be filed. Holubec v. Brandenberger , 111 S.W.3d

32, 37 (Tex. 2003). “Unlike traditional limitations

provisions, which begin running upon accrual of a cause of action, a statute of

repose runs from a specified date without regard to accrual of any cause of

action.” Trinity River Auth. v. URS Consultants, Inc. ,

889 S.W.2d 259, 261 (Tex. 1994). Repose then differs from limitations in

that repose not only cuts off rights of action after they accrue, but can cut

off rights of action before they accrue. Holubec , 111 S.W.3d at 37 .

And while statutes of limitations operate procedurally to bar the enforcement of

a right, a statute of repose takes away the right altogether, creating a

substantive right to be free of liability after a specified time. See Trinity

River Auth ., 889 S.W.2d at 261 . Thus, the purpose

of a statute of repose is to provide “absolute protection to certain parties

from the burden of indefinite potential liability.” Holubec , 111 S.W.3d at

37 .

The court of appeals has concluded, however, that reviving a claim

otherwise barred by a statute of repose is not essentially contrary to this

purpose because the revival statute in this instance merely provides for a

limited sixty-day extension. 243 S.W.3d at 141 . The

Legislature can, of course, provide for the extension of a period of repose.

See, e.g., Tex. Civ. Prac. & Rem. Code § 16.008(c)

(providing that presenting a written claim for damages to an engineer within the

ten-year period extends the period “for two years from the day the claim is

presented”). But applying the revival statute to revive a period of repose does

more than merely extend the period for two months. It effectively renders the

period of repose indefinite by attaching the claim’s revival to the existence of

some other claim and party that may not be subject to the same or similar period

of repose.

Here, both the original defendant, Bill Cox, and the subsequently

designated responsible third party, Galbraith, worked on the same improvement to

real property and were subject to similar ten-year statutes of repose. [3] Hence, the court of appeals viewed

section 33.004(e) as extending the period only by sixty days. But in other cases

a responsible third party may be subject to a longer period of repose or none at

all, creating an opportunity for revival many months or years beyond the

ten-year period of repose prescribed by section 16.008. A products liability

claim would be an example of this.

We have held that section 16.008 was not intended to grant repose to

manufacturers in product liability suits and only precludes suits against

persons or entities in the construction industry that annex personalty to realty. Sonnier v. Chisholm-Ryder

Co. , 909 S.W.2d 475, 478-83 (Tex. 1995). Moreover, products claims

now have their own statute of repose, a fifteen-year period to which exception

is made for products with longer warranties and for products that cause latent

diseases. See Tex. Civ. Prac.

& Rem. Code §

16.012(b)-(e). Thus, a manufacturer or seller of a

defective product can be sued years after the ten-year period of repose at issue

here. Assuming that this product was used in an improvement to real property,

the seller or manufacturer named as a defendant might years later designate the

party who installed its product as a responsible third party, and, under the

court of appeals’ view, invoke the sixty-day window in section 33.004(e) to

revive a claim otherwise subject to section 16.008 many years after the running

of the ten-year statute of repose.

III

Statutes of repose are created by the Legislature, and the Legislature

may, of course, amend them or make exceptions to them. The question here,

however, is whether the Legislature intended to make such an exception when it

enacted section 33.004(e) as part of its proportionate responsibility scheme,

that is, did the Legislature intend for the revival statute to operate as a

general exception to periods of repose.

Statutory construction is a question of law we review de novo. First Am. Title Ins. Co. v. Combs, 258 S.W.3d 627, 631 (Tex.

2008). In construing statutes, our primary objective is to give effect to

the Legislature’s intent as expressed in the statute’s language. Tex. Gov’t Code § 312.005; First Am. Title, 258 S.W.3d at

631-32 . If the words of a statute are clear and

unambiguous, we apply them according to their plain and common meaning. City of Rockwall v. Hughes , 246 S.W.3d 621, 625-26 (Tex.

2008).

It is unclear here, however, whether the Legislature intended the term

“limitations” in section 33.004(e) to apply narrowly to statutes of limitations

or more broadly to include statutes of repose because the term has been used in

both contexts. [4] When the plain language of a statute does

not convey the Legislature’s apparent intent, we may resort to additional

construction aids, such as the objective of the law, the legislative history,

the common law or former statutory provisions, including laws on the same or

similar subject, and the consequences of a particular construction.

Hughes , 246 S.W.3d at 626 ; Tex. Gov’t Code § 311.023. [5]

The consequence of construing “limitations” broadly here informs our

decision. Such a construction would defeat the recognized purpose for statutes

of repose, that is, the establishment of a definite end to the potential for

liability, unaffected by rules of discovery or accrual. Holubec , 111 S.W.3d at 37 ; Trinity River

Auth ., 889 S.W.2d at 261 ; Johnson , 774 S.W.2d at

654 n.1 . As already observed, statutes of repose create a substantive

right to be free from liability after a legislatively determined period.

Trinity River Auth. , 889 S.W.2d at 261 ; see also Cadle Co. v. Wilson , 136 S.W.3d 345, 350 (Tex.

App.—Austin 2004, no pet.). In contrast, statutes of limitations are procedural

devices operating as a defense to limit the remedy available from an existing

cause of action. Cadle Co. , 136 S.W.3d at 350 . A statute of repose thus represents the

Legislature’s considered judgment as to the inadequacy of the traditional

statutes of limitations for some types of claims. Sowders v. M.W. Kellogg

Co. , 663 S.W.2d 644, 647 (Tex. App.—Houston [1st Dist.] 1983, writ ref’d n.r.e .). The statute

of repose at issue here is no different.

When first enacted in 1969, the stated purpose of this statute of repose

was to eliminate “unlimited time liability” against engineers or architects.

Act of May 27, 1969, 61st Leg., R.S., ch . 418, § 2, 1969 Tex. Gen. Laws 1379 , 1379 (amended 1985)

(current version at Tex. Civ. Prac. & Rem. Code

§ 16.008). The statute

has been amended since 1969 to extend protection to interior designers and

landscape architects, but its purpose of defining a definite period for

liability to attach has not changed. Act of May 17, 1985, 69th

Leg., R.S., ch . 959, § 1, 1985 Tex. Gen. Laws 3242 ,

3253 (amended 1997) (current version at Tex. Civ. Prac & Rem. Code

§ 16.008); Act of May 26, 1997, 75th Leg.,

R.S., ch . 860, § 1, 1997 Tex. Gen. Laws 2738 , 2738

(current version at Tex. Civ. Prac. & Rem.

Code § 16.008).

The proportionate responsibility scheme of chapter 33, on the other hand,

is a complex statutory scheme for the comparative apportionment of

responsibility among parties in most tort actions in Texas. Although the scheme

initially equated responsibility with liability to the plaintiff or claimant,

this is no longer the case. [6] Thus, a defendant may designate a

responsible third party even though that party possesses a defense to liability,

or cannot be formally joined as a defendant, or both. Chapter 33 then is

apparently unconcerned with the substantive defenses of responsible third

parties, who are defined to include “any person who is alleged to have caused or

contributed to causing in any way the harm for which recovery of damages is

sought, whether by negligent act or omission, by any defective or unreasonably

dangerous product, by other conduct or activity that violates an applicable

legal standard, or by any combination of these.” Tex. Civ. Prac. & Rem.

Code § 33.011(6). But we

have found nothing in section 33.004 or the proportionate responsibility scheme

to convince us that the Legislature intended to revive claims extinguished by a

statute of repose. Cf . Shirley v. Reif ,

920 P.2d 405, 412 (Kan. 1996) (holding that a claim barred by a statute of

repose cannot be revived by legislation enacted after the period of repose);

Farber v. Lok -N-Logs, Inc. , 701 N.W.2d 368, 377-78

(Neb. 2005) (holding amendment to product liability statute of repose could not

resurrect action which prior version of statute of repose had already

extinguished). Because application of the revival statute in this instance

effectively renders the period of repose indefinite, a consequence clearly

incompatible with the purpose for such statutes, we conclude that the

Legislature intended for the term “limitations” in section 33.004(e) to refer

only to statutes of limitations.

*

* * * *

The judgment of the court of appeals is reversed and judgment is rendered

dismissing the Pochuchas ’ claim against Galbraith

because it is barred by the applicable ten-year statute of repose.

___________________________________

David M.

Medina

Justice

OPINION DELIVERED:

June 26, 2009

[1] The statute

also applies to architects, interior designers, and landscape

architects.

[2] “If a person

is designated under this section as a responsible third party, a claimant is not

barred by limitations from seeking to join that person, even though such joinder would otherwise be barred by limitations, if the

claimant seeks to join that person not later than 60 days after that person is

designated as a responsible third party.” Tex. Civ. Prac. &

Rem . Code §

33.004(e).

[3] There is a

separate ten-year statute of repose for contractors who make improvements to

real property. See Tex. Civ.

Prac. & Rem. Code § 16.009; see also Ryland Group, Inc. v. Hood , 924 S.W.2d 120,

121 (Tex. 1996) (per curiam ). Whether the Pochuchas timely filed suit against Bill Cox is not at issue

in this appeal.

[4] The statutes

of repose in chapter 16 of the Civil Practices and Remedies Code refer to

limitations rather than a period of repose. See Tex. Civ. Prac. & Rem.

Code § 16.008(c) (mentioning “10-year

limitations period”); id. § 16.009(c )( same); id . § 16.011(b) (same); id . §

16.012(d-1) (mentioning “limitations period under this section”). Only section

16.011 mentions repose. Id . § 16.011(c) (“This section

is a statute of repose and is independent of any other limitations

period.”). Elsewhere in the Code the Legislature has used the phrase

“limitations and repose” when referencing both statutes of limitations and

statutes of repose rather than simply using the term “limitations” as it did in

section 33.004(e). See id. § 150.002(f) (relating to a “certificate of

merit” in actions against design professionals, such as architects and

engineers, and stating: “This statute shall not be construed to extend any

applicable period of limitation or repose.”); see also id. § 147.043

(regarding the effect of legal disability, and explaining its application to

“periods of limitation and repose”); id. § 147.044(b) (mentioning the

“period of limitation or repose” under this section); Tex. Ins. Code § 462.309(c) (concerning

“Stay of Proceedings” and stating: “Statutes of limitation or repose are not

tolled during the stay, and any action filed during the stay is stayed upon the

filing of the action.”).

[5] While the

language in today’s statute is somewhat unclear, thus justifying cautious use of

secondary construction aids, we recently reaffirmed that such aids “cannot

override a statute’s plain words.” In re Collins , ___ S.W.3d ___, ____

(Tex. 2009) (citing Alex Sheshunoff Mgmt. Servs ., L.P. v. Johnson , 209 S.W.3d 644, 652 (Tex. 2006)

(“Wherever possible, we construe statutes as written, but where enacted language

is nebulous, we may cautiously consult legislative history to help divine

legislative intent.”)).

[6] The

proportionate responsibility chapter was enacted in 1995 and amended in 2003.

The 1995 legislation contained a number of limitations on who might be named a

responsible third party, such as a requirement for personal jurisdiction and a

potential for liability to the claimant. Act of May 8, 1995,

74th Leg., R.S., ch. 136, § 1, 1995 Tex. Gen. Laws 971 , 973 (amended 2003)

(current version at Tex. Civ. Prac. & Rem. Code

§ 33.011). Certain

potential parties, such as the claimant’s employer and the bankrupt were

expressly excluded. Id. The 2003 amendments substantially broadened the

meaning of the term “responsible third party” to eliminate these restrictions.

As one commentator has observed: “The thrust of the 2003

statute is that the jury should allocate responsibility among all persons who

are responsible for the claimant’s injury, regardless of whether they are

subject to the court’s jurisdiction or whether there is some other impediment to

the imposition of liability on them, such as a statutory immunity.” 19

William V. Dorsaneo III, Texas

Litigation Guide § 291.03[2 ][ b][ i ] at 291-24.1

(2009).