243 S.W.3d 138

Sam and Jean POCHUCHA, Appellants, v. GALBRAITH ENGINEERING CONSULTANTS, INC., Appellee.

No. 04-07-00119-CV.

Court of Appeals of Texas, San Antonio.

Sept. 12, 2007.

Rehearing Overruled Nov. 6, 2007.

*139Christopher D. Below, Robert W. Loree, Loree, Hernandez & Lipscomb, P.L.L.C., San Antonio, for appellants.

Ian M. McLin, Langley & Banack, Inc., San Antonio, for appellee.

Sitting: ALMA L. LÓPEZ, Chief Justice, SANDEE BRYAN MARION, Justice, PHYLIS J. SPEEDLIN, Justice.

OPINION

Opinion by

SANDEE BRYAN MARION, Justice.

This is an appeal from a summary judgment rendered in favor of appellee, Galbraith Engineering Consultants, Inc. (“Galbraith”). We reverse and remand.

BACKGROUND

On April 10, 2003, Sam and Jean Pochu-cha purchased a home built by Bill Cox Constructors, Inc. (“Bill Cox”) in September of 1995. After purchasing the home, the Pochuchas noticed water would leak into the lower rooms after it rained. The Pochuchas had the home inspected by engineers who informed them the french drain system under the foundation of the house was improperly designed and installed. On April 1, 2005, the Pochuchas filed suit against Bill Cox for the damage to their home. On November 3, 2005, Bill Cox filed a motion for leave to designate Galbraith as a responsible third party.1 On December 1, 2005, the trial court *140granted Bill Cox leave to designate Galbraith as a responsible third party. On January 27, 2006, the Pochuchas joined Galbraith as a defendant. On June 28, 2006, Galbraith moved for summary judgment, seeking dismissal of the Pochuchas’ claims on the ground that the ten-year limitations period set forth in Civil Practice and Remedies Code section 16.008(a) barred any claims against it for liability. On November 8, 2006, the trial court signed an order granting Galbraith’s motion for summary judgment and dismissing the Pochuchas’ claims against Galbraith with prejudice.

MOTION FOR SUMMARY JUDGMENT

In one issue on appeal, the Pochuchas argue the trial court erred in granting Galbraith’s motion for summary judgment because they timely added Galbraith within sixty days after Galbraith was designated a responsible third party pursuant to Civil Practice and Remedies Code section 33.004, which provides:

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 Ann. § 33.004(e) (Vernon Supp.2006) (emphasis added).

In its motion for summary judgment, Galbraith relied on Civil Practice and Remedies Code section 16.008, which requires that a suit be filed “not later than 10 years after the substantial completion of the improvement or the beginning of operation of the equipment in an action arising out of a defective or unsafe condition of the real property, the improvement, or the equipment.” Id. § 16.008(a) (Vernon 2002). Galbraith argued that because section 16.008 is a statute of repose2 and section 33.004(e) refers to “limitations,” section 33.004(e) does not apply to extend the ten-year period contained in section 16.008. Thus, Galbraith concludes, the Po-chuchas’ claim is time-barred because they sued Galbraith after the expiration of the ten-year period. We disagree.

While section 16.008 may be a statute of repose,3 the Texas Legislature did not distinguish between statutes of limitations or statutes of repose when it enacted section 33.004(e). Civil Practice and Remedies Code section 33.002 provides in relevant part, with certain exceptions not applicable here, that Chapter 33 “applies to any cause of action based on tort in which a defendant, settling person, or responsible third party is found responsible for a percentage of the harm for which relief is sought.”4 Tex. Civ. PRac. & Rem. *141Code Ann. § 83.002 (emphasis added). Both section 16.008(c) and section 33.004(e) specifically refer to “limitations.” Id. § 16.008(c) (“10-year limitations period”) (emphasis added); id. § 33.004(e) (“a claimant is not barred by limitations ”) (emphasis added). Thus, other than the claims specifically excluded in section 33.002(c), we conclude the Legislature used the word “limitations” in section 33.004(e) for the purpose of referring to each of the “limitations” periods listed in Civil Practice and Remedies Code Chapter 16, without regard to whether those “limitations” periods were determined to be statutes of repose.5 See Cornyn v. Universe Life Ins. Co., 988 S.W.2d 376, 379 (Tex.App.-Austin 1999, pet. denied) (we read every word of a statute as if it were deliberately chosen and presume that omitted words were excluded purposefully). We also conclude our holding is not contrary to the purpose of a statute of repose, which is “to give absolute protection to certain parties from the burden of indefinite potential liability.” Holubec v. Brandenberger, 111 S.W.3d 32, 37 (Tex.2003). Section 33.004(e) provides for only a sixty-day extension after a party is designated as a responsible third party, which does not expose members of the construction industry to “indefinite” liability.

Because we believe section 33.004(e) applies to section 16.008 to allow a party to be joined after the expiration of the ten-year period set forth in section 16.008, we hold the trial court erred in granting Galbraith’s motion for summary judgment and dismissing the Poehuchas’ claims against Galbraith.

CONCLUSION

We reverse the trial court’s judgment and remand for further proceedings consistent with this opinion.

Pochucha v. Galbraith Engineering Consultants, Inc.
243 S.W.3d 138

Case Details

Name
Pochucha v. Galbraith Engineering Consultants, Inc.
Decision Date
Sep 12, 2007
Citations

243 S.W.3d 138

Jurisdiction
Texas

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