                  UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT



                             No. 93-7677


                         JOHN G. SONNIER and
                            HOPE SONNIER,

                                               Plaintiffs-Appellants,


                               VERSUS


               CHISHOLM-RYDER COMPANY, INC., ET AL.,

                                                          Defendants,

                    CHISOLM-RYDER COMPANY, INC.,
                      UNIPUNCH PRODUCTS, INC.,
                   3800 HIGHLAND, INC. and PREMAX
               LIMITED PARTNERSHIP OF NIAGARA FALLS,

                                               Defendants-Appellees.




           Appeals from the United States District Court
                 for the Southern District of Texas
                          November 14, 1995


Before JONES and DeMOSS, Circuit Judges, and BUNTON1, District
Judge.

DeMOSS, Circuit Judge:

     This products liability case involves an interpretation of the

Texas statute of repose, TEX. CIV. PRAC. & REM. CODE § 16.009.     We

previously certified a question in this case to the Texas Supreme

Court.   Sonnier v. Chisholm-Ryder Co., Inc., 47 F.3d 133 (5th Cir.

     1
      District Judge of the Western District of Texas, sitting by
designation.
1995).      The   Texas   Supreme    Court   has   answered   our   certified

question,     Sonnier v. Chisholm-Ryder Co., Inc., 1995 WL 407397

(Tex. July 12, 1995),        and we now apply their ruling in the

disposition of this appeal.         Finding that the district court erred

in its judgment that John and Hope Sonnier (Plaintiffs) take

nothing against Chisholm-Rider Company, Inc., et al., (Defendants),

we reverse the judgment of the district court.

                                BACKGROUND2

          Appellant John G. Sonnier, plaintiff below, was
     injured while he was a Maintenance Supervisor at the
     Texas Department of Correction (TDC). Sonnier's hand and
     lower arm were severed as he inspected a tomato chopper
     at a cannery on the Ramsey III Unit of the TDC in
     Brazoria County, Texas.       The tomato chopper was
     manufactured by Chisholm-Ryder Company, Inc. and
     purchased by the TDC in 1965. First installed at the
     Sugarland Central Unit, it was transferred to Ramsey III
     in 1985.

          In 1991, a year after the accident, Sonnier and his
     wife filed a product liability suit against the
     manufacturer and its alleged successors in liability.
     The defendants raised the statute of repose, Tex. Civ.
     Prac. & Rem. Code, § 16.009, as a defense to the
     Sonnier's claims. The district court first tried the
     statute of repose defense to a jury. In their verdict,
     the jury found that the tomato chopper was an
     "improvement" to real property at the Central Sugarland
     Unit. Having denied the plaintiff's motion for judgment
     as a matter of law, the trial court entered judgment for
     the defendants in September, 1993.

Sonnier, 47 F.3d at 135 (Jones, J., dissenting) (footnote omitted).

     Sonnier appealed to this Court and we determined that a proper

disposition of the case required us to answer an unsettled question



    2
     Detailed statements of the facts of this case may be found at
Sonnier, 47 F.3d at 135 (5th Cir. 1995) (Jones, J., dissenting) and
Sonnier, 1995 WL 407397 *1.

                                       2
of Texas law.   Therefore, we certified the following question to

the Texas Supreme Court:

     Whether a person or entity that manufactures a tomato
     chopping machine "constructs . . . an improvement to real
     property" for the purpose of qualifying for the
     protection of the Statute of Repose, Tex. Civ. Pract. &
     Rem. Code § 16.009 when that machine is originally
     installed by another party on real estate, then removed
     and reinstalled by such other party on real estate at a
     different location.

Sonnier, 47 F.3d at 134.

                     TEXAS SUPREME COURT ANSWER

     The Texas Supreme Court answered our certified question in two

parts.   The court first considered "whether a manufacturer of

personalty   which   becomes   an       improvement   to    real    property

`constructs' an `improvement to real property'".           Sonnier, 1995 WL

407397 *3.   Next, the court considered whether "when personalty is

installed and used on one piece of land for over ten years, and

then is removed and reinstalled on another property by the initial

purchaser, whether the ten-year repose period starts again upon the

substantial completion of the personalty's reinstallation."             Id.

     The court answered the first question in the negative.             They

held that only one who "alter[s] realty by constructing additions

or annexing personalty to it" benefits from the statute of repose.

Id. at *8.   One who does "no more than manufacture personalty that

is later transformed by third parties into an improvement" is not

protected by the statute of repose.        Id.   The court went on to say

that "Chisholm is only the manufacturer of personalty.             As such it

cannot claim the protection of section 16.009 of the Texas Civil



                                    3
Practice and Remedies Code because it did not `construct . . . an

improvement to real property.'"                  Id. at *9.

        The        court   likewise   answered     the   second   question      in   the

negative. "The statute of repose governing the annexation at Sugar

Land is        not     revivified     by   any    activity    occurring    at   another

construction site.            The subsequent annexation at Ramsey created a

new    ten-year        repose   period     protecting    those    who     annexed    the

personalty to the realty there . . . ."                  Id.

                                       CONCLUSION

        Chisolm did not "construct . . . an improvement to real

property". Therefore, it does not receive the protection of Texas'

statute of repose.            In addition, when the tomato chopper was moved

to Ramsey III in 1985, a new repose period began to run.                        Because

Chisholm could not be protected by the statute of repose, the

judgment of the district court is REVERSED and the case is remanded

to the district court for proceedings consistent with this opinion

and the opinion of the Supreme Court of Texas.




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