              IN THE COURT OF APPEALS OF TENNESSEE

                   EASTERN SECTION AT KNOXVILLE
                                                                 FILED
                                                                  January 13, 1998

JANICE R. GRAVES and                    )       KNOX CIRCUIT Cecil Crowson, Jr.
JOHN GRAVES,                            )                         Appellate C ourt Clerk

                                        )       NO. 03A01-9708-CV-00336
      Plaintiffs/Appellants             )
                                        )       HON. DALE WORKMAN
v.                                      )       JUDGE
                                        )
GRADY’S INC.,                           )
LAMONTAGNE SELECTED                     )
WOOD FURNISHINGS, and                   )
RICHARDSON TURNER                       )
CONSTRUCTION CO.,                       )
                                        )
      Defendants/Appellees              )       AFFIRMED.


Philip Durand, Lars E. Schuller, and Andrew L. Colcotronis, Knoxville, for
Appellants.
Linda J. Hamilton Mowles, Knoxville, for Appellees Richardson Turner
Construction Company.
Terrill L. Adkins, Knoxville, for Appellee LaMontagne Selected Wood
Finishings

                                 OPINION

                                                INMAN, Senior Judge

                                            I

      This is the second appeal of this case. The first opinion is reported in

906 S.W.2d 463 (Tenn. App. 1995), to which we make reference for the basis

and history of this litigation. The manufacturer of the offending booth,

LaMontagne, and the general contractor, Richardson Turner, were dismissed by

the trial court which held that the one-year statute of limitations barred the

action since it was filed April 25, 1994 and the accident occurred November

13, 1992. We disagreed, holding that T.C.A. § 20-1-119 provides a special

statute of limitations.

      “(a) In civil actions where comparative fault is or becomes an issue,
      if a defendant named in an original complaint initiating a suit filed
      within the applicable statute of limitations, or named in an amended
      complaint filed within the applicable statute of limitations, alleges in
      an answer or amended answer to the original or amended complaint
      that a person not a party to the suit caused or contributed to the
      injury or damage for which the plaintiff seeks recovery, and if the
      plaintiff’s cause or causes of action against such person would be
      barred by any applicable statute of limitations but for the operation
      of this section, the plaintiff may, within ninety (90) days of the filing
      of the first answer or first amended answer alleging such person’s
      fault, . . .
      (b) A cause of action brought within ninety (90) days pursuant to
      subsection (a) shall not be barred by any statute of limitations. This
      section shall not extend any applicable statute of repose, nor shall
      this section permit the plaintiff to maintain an action against a person
      when such an action is barred by an applicable statute of repose.
      (c) This section shall neither shorten nor lengthen the applicable
      statute of limitations for any cause of action, other than as provided
      in subsection (a).”

      On remand, the manufacturer and contractor filed motions for summary

judgments based on the statute of repose, which was not an issue on the first

appeal. These motions were granted, and the plaintiffs appeal, essentially

arguing that the appellees “attempt to circumvent the Court of Appeals opinion

[which] can only be classified as a legal legerdemain.”

                                        II

      The plaintiff, Janice Graves, was injured when the booth she was

occupying at Grady’s Restaurant collapsed as she was having her lunch. The

accident occurred on November 13, 1992.

      This suit for damages was filed October 18, 1993 against Grady’s, which

answered that the injuries to the plaintiff were caused by the manufacturer of

the booth, later identified by amended answer as LaMontagne. The answer

further identified the general contractor as Richardson Turner. On April 25,

1994, by amended complaint, LaMontagne and Richardson Turner were joined

as defendants.

      Construction of Grady’s Restaurant was substantially completed on


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September 29, 1989, on which date a Certificate of Occupancy was issued.

This fact is not disputed.

      The complaint was filed against Grady’s on October 18, 1993. This fact

is not disputed. On April 24, 1994, LaMontagne and Richardson Turner were

added as defendants. This fact is not disputed.

                                       III

      It is clear that the plaintiff in comparative fault cases wherein the one-

year statute has apparently barred the action has 90 days after an answer is filed

identifying other potentially liable parties within which to add such persons to

the suit, but subject to the condition that any applicable Statute of Repose is

unaffected.

      T.C.A. § 28-3-202, 203 are the Statutes of Repose, which provide:

      28-3-202. Limitation of actions. All actions to recover damages for
      any deficiency in the design, planning, supervision, observation of
      construction or construction of an improvement to real property, for
      injury to property, real or personal, arising out of any such
      deficiency, or for injury to the person or for wrongful death arising
      out of any such deficiency, shall be brought against any person
      performing or furnishing the design, planning, supervision,
      observtion of construction, construction of, or land surveying in
      connection with, such an improvement within four (4) years after
      substantial completion of such an improvement.

      28-3-203. Injury during fourth year after completion -
      Limitation of action. (a) Notwithstanding the provisions of § 28-3-
      202, in the case of such an injury to property or person or such injury
      causing wrongful death, which injury occurred during the fourth year
      after such substantial completion, an action in court to recover
      damages for such injury or wrongful death shall be brought within
      one (1) year after the date on which such injury ocurred, without
      respect to the date of death of such injured person.
      (b) Such action shall, in all events, be brought within five (5) years
      after the substantial completion of such an improvement.



      The plaintiff was injured on November 13, 1992 and the case thus falls

within the fourth year after substantial completion - September 29, 1989 - of


                                        3
the project. The action was required to be brought not later than November 13,

1993.

        The action was filed April 25, 1994, more than five months beyond the

one-year grace for injuries occurring within the fourth year after substantial

completion.

                                         IV

        The role of the appellate courts in construing statutes is to ascertain and

give effect to the legislative intent. Wilson v. Johnson County, 879 S.W.2d

807, 809 (Tenn. 1994), which is ascertained, whenever possible, from the

natural and ordinary meaning of the language used, without forced or subtle

construction that would limit or extend the meaning of the language. Carson

Creek Vacation Resorts, Inc. v. State Dept. of Revenue, 865 S.W.2d 1, 2 (Tenn.

1993). A construction which places one statute in conflict with another should

be avoided and any possible conflict between statutes in favor of each other

should be resolved so as to provide a harmonious operation of the laws. State

By and Through Pierotti ex rel. Boone v. Sundquist, 884 S.W.2d 438, 444

(Tenn. 1994).

        The Supreme Court in Cronin v. Howe, 906 S.W.2d 910 (Tenn. 1995),

explained the operational difference between a statute of limitations and a

statute of repose:

        “[w]here the one-year statute of limitations governs the time within
        which legal proceedings may be commenced after a cause of action
        accrues, the three-year medical malpractice statute of repose limits
        the time within which an action may be brought, but it is entirely
        unrelated to the accrual of a cause of action and can, in fact, bar a
        cause of action before it has accrued . . . That distinction has
        prompted courts to hold that statutes of repose are substantive and
        extinguish both the right and the remedy, while statutes of limitation
        are merely procedural, extinguishing only the remedy. (Emphasis in
        original.)

The statute of repose has the effect of barring both the right and the remedy

                                          4
before they accrue which, as Cronin notes, is permissible.

      Applying these principles to the case at bar, we think the statute of

repose applies to the case against the manufacturer and the contractor.

Plaintiffs concede that T.C.A. § 28-3-202 is a statute of repose which cuts off

the right of action after a specified time even if that time expires before the

accrual of the cause of action, but argue that T.C.A. § 28-3-203 is a statute of

limitations which extinguishes the right to prosecute an accrued cause of

action, arguably to be considered separately from T.C.A. § 28-3-202.

According to plaintiff’s argument, since § 203 is a statute of limitations, T.C.A.

§ 20-1-119 applies, and grants additional time to allege a claim of comparative

fault, making plaintiff’s amended complaint timely.

      This rationale would undermine the entire legislative intent expounded

in Cronin, supra, that arthitects, engineers, etc. not be subject to lawsuits for

the reasons contemplated by the Act except for these injuries which occur

within four years after substantial completion. T.C.A. § 28-3-203 must be

considered in pari materia with T.C.A. § 28-3-203, and the additional time

within which to file suit if injury occurs in the fourth year following substantial

completion is to allow the plaintiff sufficient time following injury to prepare

his/her case before the statute of repose extinguishes the right and remedy.

      As we have seen, a plaintif has 90 days within which to add as a

defendant any person named by the party defendant as being potentially liable

to the plaintif under the principles of comparative fault. This period is

available to the plaintiff notwithstanding the expiration of the statute of

limitations applicable to plaintiff’s claims, but the legislature specifically

expressed its intention that any applicable statute of repose would control.

      The thrust of the plaintiffs’ argument is that they are entitled to assert a


                                         5
claim against a party for negligent acts related to the improvement of real estate

at any time within 90 days from the date that another defendant has identified a

party in a comparative fault allegation, without regard to the date of substantial

completion and the expiration of the four year statute of repose. This argument

destroys the statute of repose and ignores the plain intent of T.C.A. § 20-1-119,

which provides that it does not “extend any applicable statute of repose.”

      Our review of the findings of fact made by the trial court is de novo upon

the record of the trial court, accompanied by a presumption of the correctness

of the finding, unless the preponderance of the evidence is otherwise. T.C.A. §

50-6-225(e)(2). Stone v. City of McMinnville, 896 S.W.2d 548, 550 (Tenn.

1995).

      We agree that summary judgment was properly granted to the

manufacturer and contractor, and the judgment is affirmed at the costs of the

appellants.


                                              __________________________
                                              William H. Inman, Senior Judge
CONCUR:


__________________________
Herschel P. Franks, Judge


__________________________
Don T. McMurray, Judge




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