# Howell Ex Rel. Howell v. Burk

> New Mexico Court of Appeals · July 19, 1977 · 90 N.M. 688

URL: https://www.frixlaw.com/law-library/cases/9549597

## Case

- **Full name:** Calvin HOWELL, as Next Friend of Patrick Howell, a Minor, Plaintiff-Appellant, and City of Albuquerque, Cross-Claimant Defendant-Appellant, v. W. E. BURK, Jr., PPG Industries, Inc., and Universal Constructors, Inc., Defendants-Appellees
- **Court:** New Mexico Court of Appeals
- **Decided:** July 19, 1977
- **Citations:** 90 N.M. 688; 568 P.2d 214
- **Precedential status:** Published
- **Opinion:** Dissent by Sutin
- **Judges:** Wood, Hendley, Sutin
- **Cited by:** 75 later opinions in the Frix Law Library

## Citator (automated)

- **Yellow flag:** Modified on other grounds by Terry v. New Mexico State Highway Commission, 98 N.M. 119 (1982).
- Negative treatments: 1
- Distinguished by: 0
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9549597

## Opinion text

SUTIN, Judge (dissenting).
I dissent.
“It is true that the presumption of law is that the majority of the court are right and that I am wrong; yet, in the face of this presumption, and the positiveness with which the views of the majority are asserted, I cannot yield my convictions the other way [convictions which I submitted to my brethren], [convictions] which were never clearer or stronger in any case.” O’Neil v. Vermont, 144 U.S. 323, 353 , 12 S.Ct. 693, 704 , 36 L.Ed. 450 (1892) (Justice Field, dissenting).
The bench and the bar have commented favorably and adversely on the role of the dissenting opinion. In this case, and in some prior thereto, my authorship of an opinion finds disfavor with my brethren, and my formal opinion becomes a dissent. The reasons should be made known to the bench, the bar and the public. The past experiences of judges as lawyers in the courtroom and on appeal, the past human and legal relationship in society, the development subconsciously of ideas of “equity,” “fair play” and “morality” create differences of opinion on the juridical concepts of justice in the administration of the law. I am not a humorless self-righteous sort of judge who has a firm conviction that always I alone, of the regiment of this Court, is in step. But we must not surrender our honest convictions solely because of the opinions of our brethren. The Supreme Court of the United States is the exemplar of this truism.
When the legislature enacts an odd statute, many courts and lawyers are disposed to construe such legislation in the light of preconceived ideas. They often do this without being aware of it because it is ■natural for us to be prejudiced in favor of those things with which we are familiar. It is difficult to break away from preconceived ideas. However, when the legislature departs from the past, such as a departure from the statute of limitations, it is the duty of courts to lay aside their preconceived ideas and construe such legislation according to its spirit and reason, and the evil aimed at in its enactment. Ofttimes, with the aid of satisfying words and phrases, to express our ideas, we give ourselves the illusion of possession the ultra-mundane ability to decide constitutional questions. We perceive with an optical illusion instead of with the retina.
In anticipation of a petition for certiorari being filed, I want to lay my cards on the table so that the Supreme Court can decide which opinion holds the royal flush.
The evil at which § 23-1-26 was aimed and the reason given for its enactment are the potential liability of the architectural profession and construction industry. The spirit in which it was first enacted in 1967, generally in the United States and in New Mexico, resulted from pressures brought to bear upon state legislatures by architects and construction industry. Cotter, Comment/Limitation of Action Statutes for Architects and Builders-Blue Prints for Non-Action, 18 Catholic U. of Amer.L.Rev. 361 (1967). I see no evil and denigrate the spirit and the reason for which this Act was passed. My brethren feel otherwise.
Plaintiff and the City attack the statute on three constitutional grounds: (1) Article IV, Section 24 of the New Mexico Constitution, which prohibits local or special laws; (2) Article II, Section 18 of the New Mexico Constitution and United States Constitution Amendment XIV, the Equal Protection Clause; (3) Article IV, Section 16, subject in title of the Act. This constitutional question is a matter of first impression.
Section 23-1-26, enacted in 1967, reads:
No action to recover damages for any injury to property, real or personal, or for injury to the person, or for bodily injury or wrongful death, arising out of the defective or unsafe condition of a physical improvement to real property, nor any action for contribution or indemnity for damages so sustained, against any person performing or furnishing the construction or the design, planning, supervision, inspection or administration of construction of such improvement to real property, and on account of such activity, shall be brought after ten [10] years from the date of substantial completion of such improvement; provided this limitation shall not apply to any action based on a contract, warranty or guarantee which contains express terms inconsistent herewith. The date of substantial completion shall mean the date when construction is sufficiently completed so that the owner can occupy or use the improvement for the purpose for which it was intended, or the date on which the owner does so occupy or use the improvement, or the date established by the contractor as the date of substantial completion, whichever date occurs last. [Emphasis added.]
For purposes of convenience, I shall deem this statute to mean “any person” involved in a “construction project.” This statute covers every construction project in the past history of New Mexico.
“No action to recover damages shall be brought” is a limitation not only on the remedy, but also on the right to institute an action. Wall v. Gillett, 61 N.M. 256 , 298 P.2d 939 (1956). Section 23-1-26 proceeds beyond this concept. It prevents a cause of action from ever arising. An injured party literally has no cause of action, even though it takes two to make a tort. It abrogates a remedy for a very real wrong, even though a plaintiff normally has a claim for relief. It abolishes what is termed “a cause of action” or “a claim for relief.” Section 23-1-26 falls within the perimeter of confused and disordered tort concepts.
Before discussing the constitutionality of § 23-1-26, it is important to establish the following propositions (A) and (B).
A. Section 23-1-26 is not a statute of limitations.
Chitty, J., said in Lavery v. Pursell, 39 Ch.D. 508, 517 (1888):
Courts of justice ought not to be puzzled by such old scholastic questions as to when a horse’s tail begins and where it ceases. You are obliged to say, “This is a horse’s tail” at some time.
I say: “This is the horse’s tail.” Section 23-1-26 is not a statute of limitations.
Seventy-five years ago, Wilson v. Iseminger, 185 U.S. 55, 62 , 22 S.Ct. 573, 575 , 46 L.Ed. 804 (1902) said:
It may be properly conceded that all statutes of limitation must proceed on the idea that the party has full opportunity afforded him to try his right in the courts. A statute could not bar the existing rights of claimants without affording this opportunity; if it should attempt to do so, it would not be a statute of limitations, but an unlawful attempt to extinguish rights arbitrarily, whatever might be the purport of its provisions. [Emphasis added.]
Two years later, Lamb v. Powder River Live Stock Co., 132 F. 434 (8th Cir. 1904), said:
It is sufficient to say that all of the cases recognize the true rule to be that a limitation is unreasonable which does riot, before the bar takes effect, afford full opportunity for resort to the courts for the enforcement of the rights upon which the limitation is intended to operate, and that this opportunity must be afforded in respect of existing rights of action after they come within the present or prospective operation of the statute and in respect of prospective rights after they accrue. [ 132 F. at 442 .]
******
Nothing could be more unreasonable or more certainly violative of constitutional prohibitions than to bar rights of action because of the lapse of time prior to their accrual, when they could not have been exercised. [ 132 F. at 443 .] [Emphasis added.]
A statute like 23-1-26 also “operates as a grant of immunity because its effect is to prohibit the injured person from recovering no matter how diligent he was in pressing his claim.” Bagby Elevator and Electric Company, Inc. v. McBride, 292 Ala. 191 , 291 So.2d 306, 311 (1974).
Section 23-1-26 is not a statute of limitations. It is “an unlawful attempt to extinguish rights arbitrarily, whatever might be the purport of its provisions.” Wilson v. Iseminger, supra.
It has been said that § 23-1-26 “is a special statutory limitation or ‘hybrid.’ On the one hand, it bars a right of action from coming into existence if the accident occurs subsequent to the ten-year period; but as to those events happening before the statutory period has run, the provision disallows, like any other statute of limitations, the institution of suit after the prescribed ten years has expired.” O’Connor v. Altus, 67 N.J. 106 , 335 A.2d 545, 553 (1975). The purpose of the New Jersey statute, like our § 23-1-26, “is to cut off all claims of the sort referred to in the statute at the end of ten years from completion of the work.” O’Connor, supra [ 335 A.2d at 554 .]
This “hybrid” statute is a mixture of language that means this: A claim for tort relief that arises prior to the ten-year period must be commenced within the three-year limitation period fixed by statute. Section 23-1-8. If the claim for relief arises after a seven-year period has passed, the action must be commenced within the ten-year period after substantial completion of the work. The three-year period of limitation is shortened. I do not interpret this to mean that § 23-1-26 is a statute of limitations.
On the other hand, a statute of limitations determines whether an existing claim has become a stale claim because a party has slept on his rights. It must afford a person a reasonable time in which to commence the action before the bar takes effect. Davis v. Savage, 50 N.M. 30 , 168 P.2d 851 (1946). It governs the time within which a legal proceeding must be instituted after the cause of action accrues. This was graphically illustrated by Circuit Judge Frank in a dissenting opinion. In Dincher v. Marlin Firearms Co., 198 F.2d 821, 823 (2d Cir. 1952), he wrote:
Except in topsy-turvy land, you can’t die before you are conceived, or be divorced before ever you marry, or harvest a crop never planted, or burn down a house never built, or miss a train running on a nonexistent railroad. For substantially similar reasons, it has always heretofore been accepted, as a sort of legal “axiom," that a statute of limitations does not begin to run against a cause of action before that cause of action exists, i. e., before a judicial remedy is available to the plaintiff. For a limitations statute, by its inherent nature, bars a cause of action solely because suit was not brought to assert it during a period when the suit, if begun in that period, could have been successfully maintained; the plaintiff, in such a case, loses for the sole reason that he delayed — beyond the time fixed by the statute — commencing his suit which, but for the delay, he would have won. [Emphasis added.]
In New Mexico, since territorial days, the limitation period in every action begins to run after the cause of action accrues, “and not afterwards, except when otherwise specially provided.” [Emphasis added.] Section 23-1-1, N.M.S.A. 1953 (Vol. 5). In wrongful death actions, the limitation period is “within three [3] years after the cause of action accrues.” Section 22-20-2, N.M. S.A. 1953 (Vol. 5, 1975 Supp.). For personal injury, the accrual limitation period is three years. Section 23-1-8. For property damage, the accrual limitation period is four years, and this limitation period is applicable to “all other actions not herein otherwise provided for”. [Emphasis added.] Section 23-1 — 4.
Section 23-1-26, supra, does not specially provide otherwise because it is not a statute of limitations, and it bars any action from ever arising.
B. There is a conflict in judicial decisions.
In 1967, “construction project” statutes began to sweep the country.
Since 1967, a conflagration has arisen among the courts to decide the constitutional issues. None of the courts upholding the statute have considered Wilson, supra. An analysis of cases which uphold a statute will show seriatim that (1) different types of statutes were involved; (2) appellate court decisions were not final; (3) constitutional issues were not involved; (4) different constitutional provisions exist; (5) misinterpretations have occurred; and (6) unfortunately, inapplicable cases are cited as authority. For examples seriatim:
(1)Josephs v. Burns, 260 Or. 493 , 491 P.2d 203 (1971). Oregon enacted a general statute in 1967. It reads:
In no event shall any action for negligent injury to person or property of another be commenced more than 10 years from the date of the act or omission complained of.
The court held this statute valid based upon a quotation from Silver v. Silver, 280 U.S. 117 , 50 S.Ct. 57 , 74 L.Ed. 221 (1929). Silver involved the validity of the New Jersey “guest” statute. The court said by way of dictum:
We need not, therefore, elaborate the rule that the Constitution does not forbid the creation of new rights, or the abolition of old ones recognized by the common law, to attain a permissible legislative object. [Emphasis added.] [ 280 U.S. at 122 , 50 S.Ct. at 58 .]
A review of Silver and the cases cited therein do not disclose “a permissible legislative object” that abolishes “a tort claim for relief” to which a party is entitled. To deny a party the right to seek relief in court, public policy must justify the enactment of the statute. “Public policy” imports something that is uncertain and fluctuating, varying with changing economic needs, social customs, and moral aspirations of the people. A state has no public policy, properly cognizable by the courts, which is not derived by clear implication from the established law of the state, as found in its Constitution, statutes and judicial decisions. Barwin v. Reidy, 62 N.M. 183 , 307 P.2d 175 (1957). The State of Oregon believed its general law to comport with public policy. Silver was brushed aside in McGeehan v. Bunch, 88 N.M. 308 , 540 P.2d 238 (1975).
However, the ten-year statute specific to construction projects was adopted in Oregon in 1971. ORS 12.135. Its constitutionality has not yet been determined. Mt. Hood Radio & T. Broad. Corp. v. Dresser Indus., Inc., 270 Or. 690 , 530 P.2d 72 (1974).
(2) Regents of U. of Calif, v. Hartford Acc. & Indem. Co., 59 Cal.App.3d 675 , 131 Cal.Rptr. 112 (1976). In this case “Hearing Granted Sept. 15, 1976.” The California statute does not apply to “injury to the person ... or wrongful death . .” The Supreme Court of California has not yet rendered its decision.
Freezer Storage, Inc. v. Armstrong Cork Co., 234 Pa.Super. 441 , 341 A.2d 184 (1975). In this case “Application for Allocatur Granted Sept. 16, 1975.” The Supreme Court of Pennsylvania has not yet rendered its decision.
(3) Nevada Lakeshore Co., Inc. v. Diamond Electric, Inc., 89 Nev. 293 , 511 P.2d 113 (1973); Grissom v. North American Aviation, Inc., 326 F.Supp. 465 (M.D.Fla.1971). In these cases, no constitutional issue was involved.
(4) In some cases, constitutional provisions in these states on “local or special laws” are distinguishable in some respects from that in New Mexico. Article IV, Section 24 of our Constitution enumerates classes. Arkansas does not: Carter v. Hartenstein, 248 Ark. 1172 , 455 S.W.2d 918 (1970).
(5) Yakima Fruit & Cold Stor. Co. v. Central Heat. & P. Co., 81 Wash.2d 528 , 503 P.2d 108 (1972).
Yakima Fruit misinterprets Skinner v. Anderson, 38 Ill.2d 455 , 231 N.E.2d 588 (1967) which appears to be the first case that declared a statute like § 23-1-26 unconstitutional.
Yakima Fruit, in its misinterpretation of Skinner, says:
The case of Skinner v. Anderson, 38 Ill.2d 455 , 231 N.E.2d 588 (1967), declared the Illinois statute unconstitutional as being special legislation in favor of only architects and contractors. The same cannot be said of RCW 4.16.300 et seq. because the scope of the Washington provision is not limited as to vocation. The subject statute bars actions against any person having constructed, altered or repaired any improvement upon real property. [Emphasis added, except to “any person”.] [ 503 P.2d at 111 .]
The Illinois statute, like that in Washington and New Mexico, applies to “any person.” Skinner said:
The effect of section 29 of the Limitations Act is to grant to architects and contractors a special or exclusive immunity. [ 231 N.E.2d at 590 .]
(6) Reeves v. Ille Electric Company, 551 P.2d 647 (Mont.1976), relied upon by defendants, held the statute not applicable to a materialman whose product was incorporated in the construction. In holding the statute unconstitutional, it relied on “other contrary authorities more persuasive and compatible with Montana law.” Of the seven cases cited in Reeves, four of them are those referenced supra, which were either caught off base or disapproved. A sixth case, a Colorado case, Housing Authority of Town of Limon v. Leo A. Daly Co., 35 Colo.App. 244 , 533 P.2d 937 (1975), did not approach a constitutional question. Its statute is a statute of limitations.
The seventh case is Good v. Christensen, 527 P.2d 223 (Utah 1974). All that the Utah Court said was:
The plaintiffs also attack the constitutionality of the statute, but the claim is without merit. [ 527 P.2d at 225 .]
This unfortunate continued citation of cases that do not come to grips with the constitutional problem fool some of the courts some of the time, but not all of the courts all of the time.
The examples mentioned are some of the events that create the judicial conflagration in the field of statutes affecting construction projects. If we open the door to construction projects, we create a loophole for the entrance of other special laws affecting the special interests of other entities apart from architects and contractors, such as manufacturers of automobiles, airplanes, railroad cars and other products, legal and medical malpractice, etc.
The reasons for upholding the statute vary. Some courts say that the statute is one of limitation and it prevents stale and fraudulent claims. Some courts say that architects and construction industries, after the specific period has passed, do not preserve their records of services rendered; that witnesses are unavailable, memories have faded, and the defense becomes more difficult. This concept is a matter of speculation. The owner of real property, excluded from the statute, has a much greater difficulty on its defense. The plaintiff has equal or greater problems on burden of proof. The difficulty of a defense must be weighed in the balance against the right of the public to a remedy to protect a right.
I shall now meet the challenge of those jurisdictions which uphold the constitutionality of the construction project statute.
C. Section 23-1-26 violates Article IV, Section 24, of the New Mexico Constitution on Special Laws.
Plaintiff and the City contend that § 23-1-26 violates Article IV, Section 24, of the New Mexico Constitution. I agree.
Article IV, Section 24, provides in pertinent part:
The legislature shall not pass local or special laws ... in the following cases: . . granting to any corporation, association or individual the right to any special or exclusive privilege, immunity or franchise . ; the limitation of actions; . . .. In every other case where a genera! law can be made applicable, no special law shall be enacted. [Emphasis added.]
This enumeration alone dismisses from consideration every jurisdiction except the States of Illinois and New Jersey. It prohibits any special law that grants exclusive privilege and immunity to any person. Illinois held this statute unconstitutional. Skinner, supra. New Jersey did not. Rosenberg v. Town of North Bergen, 61 N.J. 190 , 293 A.2d 662 (1972). Carter concedes that the enumeration creates a problem. No court to date denies that § 23-1-26 grants to persons involved in construction projects a special privilege and immunity to suit.
A “special law” is one made for individual cases, or for less than a class of persons, or subjects, requiring laws appropriate to peculiar conditions or circumstances. State v. A.T. & S.F. Ry. Co., 20 N.M. 562 , 151 P. 305 (1915).
Under § 23-1-26, the “class of persons” means “any person” involved in a construction project. Such person is a “tortfeasor,” one who commits or is guilty of a tort, i. e., a legal wrong such as that “arising out of the defective or unsafe condition of a physical improvement to real property,” with resultant injury and consequential damage which is cognizable in a court of law.
Limited to this case, “ ‘A privilege is a particular and peculiar benefit or advantage enjoyed by a person, company or class beyond the common advantage of other citizens.’ ” Daigh v. Schaffer, 23 Cal.App.2d 449 , 73 P.2d 927, 930 (1937). “Immunity” simply means immune to, or free of, suit. Barker v. City of Santa Fe, 47 N.M. 85 , 136 P.2d 480 (1943).
In 1925, the legislature enacted a law relating to insurance. One provision made it “unlawful for any company licensed to transact an insurance business in the state of New Mexico to appoint more than one agent in any city, town or village . . .” In holding this statute unconstitutional, Franklin Fire Ins. Co. v. Montoya, 32 N.M. 88, 92 , 251 P. 390 (1926) said:
If, by law, those persons entrenched in the business with agency contracts are secured from competition, they have been granted a special privilege not enjoyed by other citizens not so entrenched. It may be conceded for the purposes of this case that constitutional provisions intended to preserve the rights of individual citizens may sometimes be forced to yield to the public welfare. It should first appear, however, that it is the public welfare which is involved, rather than the interests of a favored few. [Emphasis added.]
Let us apply the definition of “privilege” and “immunity” to the class created by § 23-1-26. The City is involved in the construction project. It contracted out the work. It is clear that the City as a tort-feasor steps into the shoes of defendants upon substantial completion of the work. As a tort-feasor, the City is liable for all torts committed by the defendants “arising out of the defective or unsafe condition of a physical improvement to real property” created by defendants. As a tort-feasor, the City is the same class as defendants; yet, the defendants are granted a privilege and immunity denied to the City. It requires a “verdictator” to say that the defendants have not been granted a privilege and immunity denied “to other citizens so entrenched.”
Section 23-1-26 grants to persons such as defendants a privilege and immunity as a peculiar benefit or advantage denied to other persons, i. e., the right to be free of suit after ten years have passed from the completion of any physical improvement of real property. This immunity is not granted to an owner of real property or any person in control of the property, who makes the improvement. Any person, firm or corporation that owns property is in the same class as the architect or contractor, but lack the immunity granted the architect or contractor. The statute not only denies the owner immunity, it also denies the owner the right to contribution or indemnity. In the instant case, the City is confronted with this perplexing problem. Section 23-1-26 does not embrace all and exclude none whose conditions and circumstances render legislation necessary or appropriate to tort-feasors as a class. The defendants have not convinced me that the public welfare shall yield to the benefit of the defendants. It is a “special law” made “for less than a class of persons.”
Article IV, Section 24, also provides that no special law shall be enacted in the following case: “the limitation of actions”. Section 23-1-26, if construed as a “special statutory limitation or ‘hybrid’ ”, applies only to “any person” involved in a construction project. Along with privilege, immunity, class and subject, discussed above, this provision of the Constitution is offended.
Article IV, Section 24, also provides:
In every other case where a general law can be made applicable, no special law shall be enacted.
“The Legislature is . enjoined from passing special laws where a general law can be made applicable.” Scarbrough v. Wooten, 23 N.M. 616, 620 , 170 P. 743, 744 (1918). “Accordingly, when a general law cannot be made applicable, but a law is required, special laws are permissible.” Albuquerque Met. Arroyo Flood Con. A. v. Swinburne, 74 N.M. 487, 490 , 394 P.2d 998, 1000 (1964).
It is obvious that a general law can be made applicable. The State of Oregon enacted a general law set forth, supra, under Josephs v. Burns. In its statute, immunity is accorded to every alleged tort-feasor after the passage of ten years.
Kallas Millwork Corporation v. Square D Co., 66 Wis.2d 382 , 225 N.W.2d 454 (1975) lays to rest the cases on which defendants rely. The court said with reference to Rosenberg, Carter and Yakima Fruit:
None of those three cases is persuasive. Each of them recites the truism that the legislature can make reasonable classifications of persons or things and accord different treatment to different classes. None of these cases, however, justify the special immunity accorded to the protected class but denied to others similarly situated. The cases relied upon, which fail to find statutes . . . unconstitutional, do not come to grips with the real problem presented — what factors distinguish the favored class so that it requires or deserves an immunity not accorded others who appear to be similarly situated. [Emphasis added.] [ 225 N.W.2d at 460 .]
I follow Skinner and Kallas Millwork Corporation. Section 23-1-26 violates Article IV, Section 24, of the New Mexico Constitution.
D. Section 23-1-26 violates Article II, Section 18, of the New Mexico Constitution and Amendment XIV of the Constitution of the United States.
Article II, Section 18, of the New Mexico Constitution reads:
No person shall be deprived of life, liberty or property without due process of law; nor shall any person be denied the equal protection of the laws. [Emphasis added.]
Amendment XIV of the Constitution of the United States provides in pertinent part:
No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; . nor deny to any person within its jurisdiction the equal protection of the laws.
The business of engaging in construction projects is one clothed with a public interest. Section 23-1-26 makes no provision which protects the interest of owners of property. No reasonable connection is shown between granting special privileges and immunities to persons involved in construction projects and denying them to citizens who own the real property upon which improvements are made.
Equal protection means that a law enacted by the legislature must b’e so framed as to embrace equally all who may be in like circumstances and situations. Our duty is to determine whether the purpose behind the legislation is lawful and, if so, whether the legislation tends, in a rational manner, to promote that lawful purpose. McGeehan v. Bunch, supra.
The “equal protection” clause is aligned with immunity. The Hawaii statute is far more specific than § 23-1-26. However, Fujioka v. Kam, 55 Haw. 7 , 514 P.2d 568, 571 (1973) quoted the following from a decision of the Supreme Court of the United States'.
“Immunity granted to a class, however limited, having the effect to deprive another class, however limited of a personal or property right, is just as clearly a denial of equal protection of the laws to the latter class as if the immunity were in favor of, or the deprivation of right permitting working against, a larger class.”
Fujioka followed the language in Skinner and held its statute unconstitutional because “the statute calls for arbitrary and capricious discrimination and must therefore be declared an invidious discrimination violative of the equal protection guaranty.” Kallas Millwork Corporation followed the language in Fujioka and Skinner.
I say that § 23-1-26 violates Article II, Section 18, of the New Mexico Constitution and Amendment XIV of the United States Constitution.
E. Section 23-1-26 violates Article IV, Section 16, of the New Mexico Constitution on the title of the Act.
Article IV, Section 16, of the New Mexico Constitution, provides in pertinent part:
The subject of every bill shall be clearly expressed in its title .
The title of Laws of 1967, ch. 193, p. 1125, reads:
AN ACT RELATING TO CONSTRUCTION PROJECTS; AND PROVIDING FOR A LIMITATION ON ACTIONS FOR DEFECTIVE OR UNSAFE CONDITIONS ON CONSTRUCTION PROJECTS.
“In our opinion, the true test of the validity of a statute under this constitutional provision is: Does the.title fairly give such reasonable notice of the subject matter of the statute itself as to prevent the mischief intended to be guarded against? If so, the act should be sustained.” State v. Ingalls, 18 N.M. 211, 219 , 135 P. 1177, 1178 (1913). This has been the rule for sixty-four years. Martinez v. Jaramillo, 86 N.M. 506 , 525 P.2d 866 (1974). Martinez says:
The mischief to be prevented was hodgepodge or log-rolling legislation, surprise or fraud on the legislature, or not fairly apprising the people of the subjects of legislation so that they would have no opportunity to be heard on the subject. [ 86 N.M. at 508 , 525 P.2d at 868 .]
The words in the title “PROVIDING FOR A LIMITATION ON ACTIONS FOR DEFECTIVE OR UNSAFE CONDITIONS ON CONSTRUCTION PROJECTS” falls far short of advising the members of the legislature or the people that § 23-1-26 is not a statute of limitations; that it bars a cause of action before it arises; that it bars a right of action from coming into existence if the accident occurs subsequent to the ten-year period. This language would lead members of the legislature and the people to believe that this Act would fall within the “Limitation on time of bringing actions”, § 23-1-1, et seq.
This Act was passed ten years ago. I do not know what pressure, if any, was brought to bear upon the legislature by the architectural profession and construction industries. But I do believe that the title of the Act, which must clearly express the subject, may have misled the members of the legislature who enacted the law and the governor who signed it.
Section 23-1-26 violated Article IV, Section 16 of the New Mexico Constitution.
F. Miscellaneous Matters.
The majority opinion, under the classification of Application of the Statute, pp. 221-224, has come to conclusions, some of which I do not understand, and some of which are not clear to me. To keep the record straight, I present these matters now as I presented them to my brethren.
(1) Universal Constructors’ cross-appeal is without merit.
Universal Constructors cross-appealed from that portion of the judgment of the district court which denied Universal Constructors’ motion for summary judgment on plaintiff’s claims of negligent maintenance and negligent failure to warn.
The claim of Universal Constructors is that plaintiff’s complaint falls within the proscriptions of § 23-1-26. Having declared this statute unconstitutional, Universal Constructors’ cross-appeal is without merit.
(2) Motions filed on this appeal should be sustained.
After the appeal was perfected and briefs filed, the following events occurred.
On February 25, 1977, Universal Constructors filed a motion to strike portions of briefs filed by PPG and plaintiff, or in the alternative for permission to file a reply brief. The parties were granted through March 7,1977 to respond to the motion. On March 8, 1977, the responses having been filed, we held that the motion to strike would be considered at the same time the case was considered on the merits.
On March ,15, 1977, this Court received a communication from Universal Constructors that “In the absence of any mention of a denial of the right to submit a reply brief, Universal is now preparing a reply brief, soon to be submitted to the Court . . .”
On March 28, 1977, Universal filed a reply brief. On April 4,1977, PPG filed a motion to strike the reply brief. On April 6, 1977, this motion to strike was deferred pending a decision on the merits.
We now turn to Universal Constructors’ motion to strike portions of briefs filed by plaintiff and PPG. The first portion deals with plaintiff’s argument that the statute is unconstitutional on the grounds that the title of the statute does not clearly express the subject of the Act. On this matter, the motion to strike should be overruled.
The second portion deals with the applicability of § 23-1-26 to Universal Constructors’ claim for contractual indemnity.
On November 8, 1976, Universal Constructors filed a cross claim against PPG in two counts. One was based upon a subcontract between Universal Constructors and PPG, and the other on strict liability.
On October 29, 1976, ten days before the cross claims were filed, PPG moved for summary judgment on these cross claims.
I can find no determination in the trial court of PPG’s motion for summary judgment on these cross claims. Nevertheless, PPG, in Point III of its answer brief, asserts that § 23-1-26 applies to actions of indemnity and contribution asserted against PPG by Universal Constructors. Universal Constructors moved to strike this portion of PPG’s answer brief. Universal Constructors’ motion to strike is sustained.
PPG sought to use a pole vault to jump over issues not decided in the trial court. In this case, the pole broke and the vault failed. This civil war should be returned to the district court. Any relief PPG seeks on its motion for summary judgment must be sought in the trial court.
PPG’s motion to strike Universal Constructors’ reply brief, except as to matters pertinent to plaintiff’s brief-in-chief, should be sustained.
G. Conclusion.
The summary judgments granted Universal Constructors, PPG and Burk against plaintiff, Counts I-VI of plaintiff’s complaint having been dismissed with prejudice, and all cross claims having been dismissed with prejudice, should be reversed. The judgment in favor of plaintiff on portions of Count I should be affirmed.
The trial court has the right to re-reconsider all motions for summary judgment on the complaint and cross claims, so long as motions are grounded on reasons other than § 23-1-26, the statute of repose. On Universal Constructors’ cross claim for indemnity, see § 28-2-1, N.M.S.A. 1953 (Vol. 5, 1975 Supp.).

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9549597. Public record. Not legal advice.