                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
                                                               June 4, 2007
               IN THE UNITED STATES COURT OF APPEALS
                        FOR THE FIFTH CIRCUIT            Charles R. Fulbruge III
                                                                 Clerk
                      ))))))))))))))))))))))))))

                            No. 05-11329

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GINA VAUGHN, Individually and as Next Friend to Joshua Vaughn,
Brenden Vaughn and Amber Vaughn, Minors; NICHOLAS VAUGHN,

                Plaintiffs-Appellants,

     v.

FEDDERS CORPORATION; FEDDERS NORTH AMERICA INC.,

                Defendants-Appellees.


           Appeal from the United States District Court
                for the Northern District of Texas
                         No. 4:04-CV-313-Y



Before DAVIS, DENNIS, and PRADO, Circuit Judges.

Per Curiam:*

     Plaintiffs-Appellants Gina Vaughn (“Vaughn”) and Nicholas

Vaughn (collectively, “the Vaughns”) appeal from the district

court’s August 31, 2005 order granting summary judgment to

Defendants-Appellees Fedders Corporation and Fedders North

America, Inc. (collectively, “Fedders”). For the reasons that


     *
       Pursuant to 5TH CIRCUIT RULE 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIRCUIT
RULE 47.5.4.

                                  1
follow, we REVERSE the judgment of the district court.

              I. FACTUAL AND PROCEDURAL BACKGROUND

     Vaughn and her husband, Gary Vaughn, purchased a home in

Wautauga, Texas, in July 2002. The home contained a gas-fired

furnace that was manufactured by Defendant Fedders Corporation in

1979 and sold in 1979 or 1980. In January 2003, Vaughn, her

husband, and her daughter were exposed to carbon monoxide fumes,

which resulted in injuries to Vaughn and her daughter and in the

death of her husband. Vaughn claims that the source of the carbon

monoxide fumes was the allegedly faulty furnace manufactured by

Fedders. Several days after the injuries and death occurred,

Vaughn filed a claim with her homeowners’ insurer, Fire Insurance

Exchange (“FIE”), which denied her claim on the basis that her

loss was not covered by the policy.

     On June 2, 2003, the Texas legislature passed a bill that

modified Texas Civil Practices & Remedies Code § 16.012.1 Section

16.012 is a statute of repose. It requires that a products-

liability action be brought against a manufacturer or seller of a

product within fifteen years of the date of the sale of the

product by the defendant. While this requirement formerly applied

only to suits against manufacturers and sellers of manufacturing

equipment, the 2003 modifications extended the fifteen-year bar

to suits against all manufacturers or sellers of any product. On


     1
      Act of June 2, 2003, 78th Leg., R.S., Ch. 204 § 5.01, 2003
Tex. Gen. Laws 847, 859-60.

                                2
June 11, 2003, the governor of Texas signed the bill into law,

and it went into effect ninety days after the adjournment of the

legislature, or September 1, 2003. See TEX. CONST. art. III, § 39.

The modified § 16.012 applies to actions filed on or after July

1, 2003. See § 16.012, 2003 note.

     On April 28, 2004, the Vaughns commenced a personal injury

action against Fedders. In its answer, Fedders argued as an

affirmative defense that § 16.012 barred the Vaughns’ claim

because their suit was filed more than fifteen years after the

date of sale of the furnace by Fedders. The Vaughns filed a

motion for partial summary judgment on Fedders’ affirmative

defense. They contended that the application of § 16.012 to their

claim violated Article I, § 16, of the Texas Constitution, which

provides that no “retroactive law” shall be made.2 The Vaughns

also argued that the application of § 16.012 to their claim

violated the Due Process Clause of the United States

Constitution. Fedders then moved for summary judgment on the

basis of § 16.012.3

     The district court granted Fedders’ summary judgment motion



     2
      Article I, § 16, states: “No bill of attainder, ex post
facto law, retroactive law, or any law impairing the obligation
of contracts, shall be made.”
     3
      Fedders also filed a third-party action against FIE for
spoliation of evidence, on the basis that FIE had Vaughn’s
furnace destroyed after it was inspected. The district court
dismissed this action in its August 31, 2005 order, and Fedders
has not appealed.

                                3
in its August 31, 2005 order, concluding that § 16.012 barred the

Vaughns’ claim and rejecting the Vaughns’ argument that this

application of § 16.012 was unconstitutional. The district court

explained that accrued causes of action were not vested rights

and that, while “a reasonable time must be afforded within which

existing causes of action may be commenced,” “Vaughn had over

five months to file her claims before the statute of repose went

into effect,” which constituted a reasonable period of time.        The

district court also concluded that § 16.012 did not violate the

Due Process Clause of the United States Constitution because the

rights protected by that clause are defined by state law, and an

accrued cause of action was not a protected right under Texas

law. The Vaughns filed this timely appeal.

         II. APPELLATE JURISDICTION AND STANDARD OF REVIEW

     Under 28 U.S.C. § 1291, this court has jurisdiction over the

Vaughns’ appeal from the district court’s August 31, 2005 final

order and judgment, which disposed of all the parties’ claims.

     We review a district court’s grant of summary judgment de

novo.   Dallas County Hosp. Dist. v. Assocs. Health & Welfare

Plan, 293 F.3d 282, 285 (5th Cir. 2002). Summary judgment is

proper when the “pleadings, depositions, answers to

interrogatories, and admissions on file, together with the

affidavits, if any, show that there is no genuine issue as to any

material fact and that the moving party is entitled to a judgment

as a matter of law.”   FED. R. CIV. P. 56(c).   A dispute about a

                                 4
material fact is genuine if the evidence is such that a

reasonable fact-finder could return a verdict for the non-moving

party.    Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248

(1986).    When deciding whether there is a genuine issue of

material fact, this court must view all evidence in the light

most favorable to the non-moving party.       Daniels v. City of

Arlington, 246 F.3d 500, 502 (5th Cir. 2001).

                          III.   DISCUSSION

A.   As applied to the Vaughns, § 16.012 violates Article I,
     § 16, of the Texas Constitution

     1.     A plaintiff with an accrued claim must be afforded a
            reasonable time in which to file her claim

     There is a long line of Texas cases addressing the

constitutional limits on retroactive laws, mainly new statutes of

limitations. In essence, these cases declare that a newly enacted

statute of limitations may not bar all remedies for an existing

cause of action and must allow a reasonable period for its

prosecution. One of the earliest cases to announce this principle

is DeCordova v. City of Galveston, 4 Tex. 470 (1849). In

interpreting Article I, § 16, of the Texas Constitution,

DeCordova stated:

     Laws   are   deemed    retrospective   and    within   the
     constitutional   prohibition    which   by   retrospective
     operation destroy or impair vested rights or rights to “do
     certain actions or possess certain things, according to
     the laws of the land,” (3 Dall. 349,) but laws which
     affect the remedy merely are not within the scope of the
     inhibition unless the remedy be taken away altogether or
     incumbered with conditions that would render it useless or
     impracticable to pursue it. (Bronson v. McKinzie, 1 How.

                                  5
     R. 315.) Or, if the provisions regulating the remedy be so
     unreasonable as to amount to a denial of right, as, for
     instance, if a statute of limitations applied to existing
     causes barred all remedy or did not afford a reasonable
     period for their prosecution, or if an attempt were made
     by law, either by implication or expressly, to revive
     causes of action already barred, such legislation would be
     retrospective within the intent of the prohibition, and
     would therefore be wholly inoperative.

Id. at 479-80. Subsequently, Mellinger v. Mayor of Houston, 68

Tex. 37, 48 (1887), quoted the above passage and stated, “[w]e

have no doubt that the law is thus correctly stated.” In 1895,

the Supreme Court of Texas declared:

     The Legislature may provide a shorter period of limitation
     for existing causes of action. It may make a statute of
     limitation for causes when none existed before. But it can
     not, by so abbreviating the time in which suit must be
     brought, take away the right of action altogether. It must
     allow a reasonable time after the law goes into effect to
     bring suit upon actions which are not then barred.

Wright v. Hardie, 88 Tex. 653, 655 (1895).

     This principle has been reaffirmed by more recent decisions

of the Texas courts. Citing Wright, among other cases, the Corpus

Christi Court of Civil Appeals stated that:

     Generally, statutes of limitation go to matters of remedy
     and not to matters of fundamental rights unless the
     limitation period set is so manifestly unjust that it
     constitutes a denial of justice or it amounts to a
     practical denial of the right itself. The legislature may
     without violating constitutional guarantees enact statutes
     which limit the time within which actions to enforce
     demands may be brought even though there existed no
     previous period of limitation; provided that such statute
     allows a reasonable time within which to bring suit. The
     determination of what constitutes a reasonable time is
     reviewable by the courts.

Alvarado v. Gonzales, 552 S.W.2d 539, 542 (Tex. Civ. App.–Corpus


                                6
Christi 1977, no writ) (internal citations omitted).

     In City of Tyler v. Likes, 962 S.W.2d 489, 502 (Tex. 1997),

the Supreme Court of Texas declared:

     laws affecting a remedy are not unconstitutionally
     retroactive unless the remedy is entirely taken away. See
     De Cordova, 4 Tex. 470, 480. . . . The Legislature can
     affect a remedy by providing a shorter limitations period
     for an accrued cause of action without violating the
     retroactivity provision of the Constitution if it affords
     a reasonable time or fair opportunity to preserve a
     claimant’s rights under the former law, or if the
     amendment does not bar all remedy.

Most recently, the Fort Worth Court of Appeals held that:

     The legislature can pass legislation affecting a remedy
     for an accrued cause of action without violating article
     I, section 16 if it affords a reasonable time or fair
     opportunity to preserve a claimant’s rights under the
     former law. When the legislature shortens an existing
     statute of limitations or creates one where none had
     existed, it must provide a reasonable time for plaintiffs
     to bring suit after the enactment of the new law . . . .

In the Interest of K.N.P., 179 S.W.3d 717, 720 (Tex. App.–Fort

Worth 2005, pet. denied) (citations omitted).

     The majority of the above-cited decisions addressed the

constitutionality of new or amended statutes of limitations. The

exceptions are Wright, which involved the length of time

available for application for a writ of error, and Likes, which

involved the reclassification of the operation of storm sewers as

a government function. None of these cases involves a statute of

repose, but it is not apparent why the same principles should not

apply to a statute of repose. Statutes of limitations and

statutes of repose have similar purposes and similar effects.


                                7
Just like a statute of limitations, § 16.012 cuts off the right

to sue after a certain length of time, only the time runs from

the sale of the manufactured product, rather than from the time

of injury.

     Based on the above-cited decisions, therefore, we can

conclude that when Texas passes a new statute of repose, it may

not entirely deprive a party with an accrued cause of action of

the right to sue, and must afford that party a reasonable time in

which to bring suit. This circuit adopted this view in a recent

case very similar to the present one, Burlington Northern & Santa

Fe Railway Co. v. Skinner Tank Co., 419 F.3d 355 (5th Cir. 2005),

which also addresses the retroactive effect of § 16.012. Citing

Likes, this court held that “[t]he Texas legislature can restrict

the time for filing a claim without violating the retroactivity

provision of the Texas constitution so long as ‘it affords a

reasonable time or fair opportunity to preserve a claimant’s

rights under the former law, or if the amendment does not bar all

remedy.’” Id. at 359-60. The court then applied this “reasonable

time” analysis to § 16.012’s effect on the plaintiff’s claim, and

concluded that a reasonable time had been afforded.

     2.   The Vaughns were not afforded a reasonable time to file

     We agree with the Vaughns that, contrary to the mandate of

DeCordova, Wright, Likes, et al., they were not allowed a

reasonable time in which to file their accrued personal injury

claim before § 16.012 took effect.

                                8
     We measure the length of time that the Vaughns were afforded

to file suit from the date at which the new statute became law,

which is the date at which persons may be charged with

constructive notice of its provisions. The date at which § 16.012

became law is ninety days after the adjournment of the Texas

legislature, or September 1, 2003. See TEX. CONST. art. III, § 39.

     There are numerous cases that support this proposition that

the “reasonable time” runs from the date that the new statute

becomes law, rather than from some earlier date. Popham v.

Patterson, 51 S.W.2d 680, 683 (Tex. 1932), states that “[n]o Act

of the Legislature is operative as notice until it becomes a law,

but it is so operative as soon as it does become law.” Popham

further noted that the act in question became a law “ninety days

after the adjournment of the legislature.” Id. In Wright, the

Texas Supreme Court stated that the Texas legislature “must allow

a reasonable time after the law goes into effect to bring suit”

and held that the “amended act . . . did not take effect until

the expiration of ninety days from the day on which the

Legislature adjourned.” 88 Tex. at 655 (emphasis added).

     The Dallas Court of Civil Appeals noted that “[s]ome states

have adopted the rule that the reasonable time which the statute

must allow dates from the passage of the act and not from the

effective date;” however, the court concluded that “the sounder

rule--that announced by Justice Gaines in Wright v. Hardie”--is

“that the reasonable time allowed by the statute must run from

                                9
the effective date of the act.” Highland Park Indep. Sch. Dist.

v. Loring, 323 S.W.2d 469, 471 (Tex. Civ. App.–Dallas 1959, no

writ). In Alvarado, the Corpus Christi Court of Civil Appeals

used the effective date to measure the reasonable time, 552

S.W.2d at 540, 542, and recently, in In the Interest of K.N.P.,

the Fort Worth Court of Appeals also used the effective date. 179

S.W.3d at 721.

     We acknowledge that there are cases that use a different

measuring stick. In Likes, without addressing its precedent that

used the effective date, the Texas Supreme Court measured whether

a “reasonable time” had been allowed for the filing of an accrued

claim from the date of the statute’s enactment. 962 S.W.2d at

502. In Burlington Northern, however, this court measured the

“reasonable time” under Texas law from “the September 1, 2003

effective date of the amendment to § 16.012.” 419 F.3d at 360. We

therefore follow that approach here.

     Section 16.012 operates on claims filed on or after July 1,

2003, but did not become law until September 1, 2003. Thus we may

charge the Vaughns with constructive notice of § 16.012 on

September 1, 2003, but by that time their suit had already been

barred.4 It is therefore evident that § 16.012 allowed the

Vaughns no time at all within which to file suit, and the

     4
      In contrast, the plaintiff in Burlington Northern had “at
least one month and 28 days following the September 1, 2003
effective date of the amendment to § 16.012” in which to file
suit before the fifteen-year period permitted by § 16.012
expired, barring its claim. 419 F.3d at 360.
                                10
requirement stated in DeCordova, Wright, Likes, and Burlington

Northern that they be afforded a reasonable time within which to

file their accrued claim was clearly violated.5

     3.   Fedders’ arguments

     Fedders points to a number of Texas cases in which the

constitutionality of statutes of repose has been upheld.

Specifically, Fedders cites Texas Gas Exploration Corp. v. Fluor

Corp., 828 S.W.2d 28 (Tex App.-Texarkana 1991, writ denied),

Sowders v. M.W. Kellogg Co., 663 S.W.2d 644 (Tex. App.–Houston

[1st Dist.] 1983, writ ref’d n.r.e.), and Ellerbe v. Otis

Elevator Co., 618 S.W.2d 870, 873 (Tex. App.–Houston [1st Dist.]

1981, writ ref’d n.r.e.).6 These cases, however, are

distinguishable from the case at hand. First, in none of these

decisions did the Texas court analyze the effect of the statute

of repose under Article I, § 16’s prohibition on retroactive



     5
      We would reach the same result if we were to measure the
time from the date of enactment instead of the effective date.
Using the enactment date, the Vaughns would only have had 19 days
in which to file their suit. This is not a reasonable time. See
Alvarado, 552 S.W.2d at 542-43 (where retroactive application of
the limitations statute allowed the appellant only 21 days in
which to file suit, such application “would not give the
appellant a fair opportunity to file suit”).
     6
      Ellerbe and Sowders addressed challenges to Texas Revised
Civil Statutes article 5536a, a statute of repose barring suits
against engineers or architects for damages arising out of the
defective or unsafe condition of real property or any attached
equipment or improvement ten years after its substantial
completion. See 618 S.W.2d at 871; 663 S.W.2d at 646. Texas Gas
addressed a challenge to Texas Civil Practice & Remedies Code
§§ 16.008 and 16.009, the successors to Article 5536a. 828 S.W.2d
at 30.
                                11
laws. Instead, these decisions examined whether the statutes of

repose violated the open courts provision of the Texas

Constitution.7   Second, in each of these cases the statute of

repose had cut off the plaintiff’s right to sue before the injury

occurred, and therefore before the plaintiff’s claim accrued. It

follows that these cases have little relevance to our analysis of

the Vaughns’ claim.

     Fedders also argues, relying on Ellerbe, Texas Gas, and

several additional cases, that Article I, § 16, protects only

vested rights and that the Vaughns do not have a vested right in

their accrued claim. We conclude, however, that we are not

required to wade into Texas’s difficult vested rights

jurisprudence to decide this appeal. Because the decisions

setting forth the “reasonable time” requirement did not employ a



     7
       This provision states, “[a]ll courts shall be open, and
every person for an injury done him, in his lands, goods, person
or reputation, shall have remedy by due course of law.” TEX.
CONST. art. I, § 13.
      In Texas Gas, the plaintiff cited Article I, § 16, as well,
see 828 S.W.2d at 31, but it does not appear that the plaintiff
was relying on that section’s prohibition on retroactive laws. If
the plaintiff did make an argument based on that prohibition, the
court did not address it. Rather, in rejecting the plaintiff’s
claim, the court stated that “[t]he retroactive application of
Sections 16.008 and 16.009 does not violate the right of access
to court of the constitution or the constitutional prohibition
against ex post facto laws.” Id. It is possible that the court
simply confused Article I, § 16’s prohibition on ex post facto
laws with its prohibition on retroactive laws, but clearly the
two are not the same.



                                12
vested rights analysis, we need not determine whether the Vaughns

had a vested right in their accrued claim. Rather, we may simply

rely on decisions, such as DeCordova, Wright, and Likes, which

hold that where a claim has accrued, a reasonable time must be

afforded for filing suit. For the same reason, we need not

address the caselaw, also cited by Fedders, indicating that where

a statute infringes on a vested right, the statute is not

unconstitutionally retroactive if it is a valid exercise of the

Texas legislature’s police power.

     Because we conclude that § 16.012 did not afford the Vaughns

a reasonable time in which to file suit, in violation of Article

I, § 16, of the Texas Constitution, we hold that the district

court erred by granting Fedders’ summary judgment motion.

B.   The Vaughns’ argument under the Due Process Clause

     Because we hold that the application of § 16.012 to the

Vaughns’ claim violated the Texas Constitution, we need not reach

the question of whether this application also violated the United

States Constitution.

                         IV.   CONCLUSION

     The judgment of the district court is REVERSED, and the case

REMANDED for further proceedings not inconsistent with this

opinion.

     REVERSED and REMANDED.




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