stating that when a statute substantially modifies common law rights, the statute entirely controls the rights and obligations of the parties to an action brought under that statute
How later courts described this case
- stating that when a statute substantially modifies common law rights, the statute entirely controls the rights and obligations of the parties to an action brought under that statute
Written by the judges who cited it.
The opinion
DISSENTING OPINION ON OVERRULING OF MOTION FOR REHEARING
HOYT, Justice.
I respectfully dissent from the majority’s overruling of Travelers’ motion for rehearing. I would grant the rehearing and affirm the take-nothing judgment of the trial court.
Counsel for both Ryan and Travelers agree that the language of Article 8307, sec. 5 is clear and unambiguous. With this admission, the trial court and this court were duty bound to give art. 8307, sec. 5 its “plain, common everyday” meaning. The plain language of art. 8307, sec. 5 authorizes successive awards of costs and expenses actually furnished to and received by the claimant not more than 6 months prior to the date of each successive award.
The facts indicate that Ryan waited more than four months from the date that the costs and expenses were incurred to request a pre-hearing conference. Approximately five additional months passed before a final request for a hearing was made. No objection was made to a four month delay following the cancellation of the first hearing. These facts do not indicate that a situation existed upon which a tolling of the limitations period could be based.
I read this statute just as I read Tex.Alco. Bev.Code Ann. sec. 11.67 (Vernon Supp. 1986). There the Legislature requires that a claimant who seeks review of a permit cancellation, suspension, or denial, to acquire a trial on the matter within 10 days; otherwise the action of the agency on the license or permit is final. McBeth v. Riverside Inn Corporation, 593 S.W.2d 734 (Tex. Civ.App. — Houston [1st Dist.J 1979, writ ref’d n.r.e.). Strictly construed, art. 8307, sec. 5 could have but one meaning.
Strict construction of a statute that is plain and unambiguous is the rule, not the exception. See Pearce v. Texas Employers Insurance Association, 403 S.W.2d 493, 498 (Tex.Civ.App. — Dallas 1966), writ refd n.r.e., 412 S.W.2d 647 (Tex.1967) (op. on reh’g); Compare, Rigo Manufacturing Co. v. Thomas, 458 S.W.2d 180, 182 (Tex.1970) (use of diligence to procure issuance of service required to avoid limitations) and Johnson v. McLean, 630 S.W.2d 790 (Tex.App.— Houston [1st Dist.] 1982, no writ).
The obligation to secure an award from the Board clearly was that of Ryan. Failing to do so, he should not be allowed to elasticize the statute for his convenience.
I would affirm the judgment of the trial court.