                         COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH


                               NO. 2-08-175-CV


ANNE BOENIG                                                          APPELLANT

                                        V.

STARNAIR, INC.                                                         APPELLEE

                                    ------------

         FROM THE 393RD DISTRICT COURT OF DENTON COUNTY

                                    ------------

                                   OPINION

                                    ------------

                                I. INTRODUCTION

      Appellant Anne Boenig appeals from the trial court’s order granting the

motion for summary judgment of Appellee StarnAir, Inc. The issue we address

in this opinion is whether a claimant is time-barred from joining in a lawsuit a

person designated as a responsible third party pursuant to civil practice and

remedies code section 33.004 when the claimant’s cause of action against the

designated responsible third party is of the type implicated by civil practice and
remedies code section 16.009—a statute of repose requiring that a suit for

damages    against    a   person   who   furnished   construction    or   repair   of

improvements to real property be brought not later than ten years after the

substantial completion of the improvement—and the ten-year deadline set forth

in section 16.009(a) for asserting such a claim has expired. See Tex. Civ. Prac.

& Rem. Code Ann. § 16.009(a), (b) (Vernon 2002), § 33.004(e) (Vernon

2008).    Because we conclude that the legislature did not intend that this

particular claim be barred, we will reverse and remand.

                     II. F ACTUAL AND P ROCEDURAL B ACKGROUND

      In September 1995, Pulte Homes of Texas, L.P. substantially completed

the construction of a residential home located at 1112 Raleigh Drive, Lewisville,

Texas. Pulte had hired StarnAir as a subcontractor to perform the heating,

ventilation, and air conditioning installation for the house. StarnAir substantially

completed its portion of the work on the house in July 1995.

      Boenig sued Pulte in November 2005 for injuries that she allegedly

sustained when—at the Raleigh Drive house—she fell through the attic floor and

into the living room area on the first floor. 1 Boenig did not sue StarnAir at the

time. On July 19, 2007, Pulte filed a motion for leave to designate StarnAir as



      1
       … Whether Boenig timely filed suit against Pulte is not at issue in this
appeal.

                                         2
a responsible third party.    On August 23, 2007, Boenig filed her fourth

amended petition, in which she joined StarnAir as a defendant. The trial court

later granted Pulte’s motion for leave to designate StarnAir as a responsible

third party on October 31, 2007.        StarnAir filed its motion for summary

judgment in February 2008, arguing that the ten-year repose period set forth

in civil practice and remedies code section 16.009 barred Boenig from asserting

against it a personal injury claim based on alleged construction defects because

twelve years had elapsed since StarnAir substantially completed the house’s

improvements.     The trial court granted StarnAir’s motion for summary

judgment.

        III. C IVIL P RACTICE AND R EMEDIES C ODES S ECTIONS 33.004(e) AND
                       16.004(a)—B OENIG’S C LAIM N OT B ARRED

      In her sole issue, Boenig argues that the trial court erred by granting

StarnAir’s motion for summary judgment. She contends that civil practice and

remedies code section 33.004(e) is an “exception” to civil practice and

remedies code section 16.009’s “limitations period,” that the plain meaning of

section 33.004 allows for joinder even if the claims would otherwise be barred

by limitations, and that the legislative history of section 33.004 champions her

interpretation in part because the legislature’s 2003 amendments to the statute

specifically repealed the limitations restrictions.      According to Boenig’s



                                        3
construction of the relevant statutes, her claim against StarnAir is not barred

because she timely sued Pulte, who subsequently designated StarnAir as a

responsible third party. Boenig argues that under section 33.004(e), because

she joined StarnAir within sixty days after Pulte designated StarnAir, she is not

barred by the repose period of section 16.009(a) since section 33.004(e) is an

“exception” to section 16.009’s “limitations period.”

      StarnAir responds that section 33.004(e) does not create an exception

to the statute of repose in section 16.009 and that the legislative history and

the purpose of section 33.004(e) do not support the expansion of the term

“limitations” to include statutes of repose. It contends that section 33.004(e)’s

saving clause is inapplicable to section 16.009 because the express language

of section 33.004(e) addresses only “limitations,” not “statutes of repose.”

Under its construction of the relevant statutes, StarnAir argues that because it

substantially completed its portion of the work on the Raleigh Drive house in

July 1995, any claim against it must have been brought not later than July

2005, ten years later. Consequently, according to StarnAir, because Boenig

failed to assert a claim against StarnAir within the prescribed ten-year statute

of repose, Boenig’s claims are barred as a matter of law.




                                       4
      A.    Standard of Review

      In a summary judgment case, the issue on appeal is whether the movant

met the summary judgment burden by establishing that no genuine issue of

material fact exists and that the movant is entitled to judgment as a matter of

law. Tex. R. Civ. P. 166a(c); Sw. Elec. Power Co. v. Grant, 73 S.W.3d 211,

215 (Tex. 2002); City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671,

678 (Tex. 1979). The burden of proof is on the movant, and all doubts about

the existence of a genuine issue of material fact are resolved against the

movant. Sw. Elec. Power Co., 73 S.W.3d at 215. When the movant does not

meet its burden of proof, the burden does not shift to the non-movant. Atlantic

Mut. Ins. Co. v. Crow Design Ctrs., 148 S.W.3d 743, 744 (Tex. App.—Dallas

2004, no pet.). We take as true all evidence favorable to the nonmovant, and

we indulge every reasonable inference and resolve any doubts in the

nonmovant’s favor. Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661

(Tex. 2005).

      B.    Rules of Statutory Construction

      Our resolution of this specific issue, which presents a question of law that

we review de novo, involves application of well-established rules of statutory

construction. First Am. Title Ins. Co. v. Combs, 258 S.W.3d 627, 631 (Tex.

2008). Our primary objective in statutory construction is to give effect to the

                                        5
legislature’s intent. State v. Shumake, 199 S.W.3d 279, 284 (Tex. 2006). To

achieve this, “we look first and foremost to the words of the statute.”

Lexington Ins. Co. v. Strayhorn, 209 S.W.3d 83, 85 (Tex. 2006). We construe

the statute’s words according to their plain and common meaning, unless a

contrary intention is apparent from the context or unless such a construction

leads to absurd results. City of Rockwall v. Hughes, 246 S.W.3d 621, 625–26

(Tex. 2008); see also Tex. Gov’t Code Ann. § 311.011(a) (Vernon 2005)

(“Words and phrases shall be read in context and construed according to the

rules of grammar and common usage.”). We also use definitions prescribed by

the legislature and any technical or particular meaning the words have acquired.

Tex. Gov’t Code Ann. § 311.011(b).

      Further, we must read the statute as whole and not just isolated portions.

Tex. Dep’t of Transp. v. City of Sunset Valley, 146 S.W.3d 637, 642 (Tex.

2004); Nauslar v. Coors Brewing Co., 170 S.W.3d 242, 253 (Tex.

App.—Dallas, no pet.) (stating, “We determine legislative intent from the entire

act and not just its isolated portions.”). It is a well-settled rule of statutory

construction that every word of a statute must be presumed to have been used

for a purpose. Gray v. Nash, 259 S.W.3d 286, 291 (Tex. App.—Fort Worth

2008, pet. denied). Likewise, every word excluded from a statute must also

be presumed to have been excluded for a purpose. Id. We are required to

                                       6
reconcile and harmonize apparently conflicting statutory provisions, if it is

reasonably possible, so that every enactment may be given effect. Barfield v.

City of La Porte, 849 S.W.2d 842, 845 (Tex. App.—Texarkana 1993), aff’d,

898 S.W.2d 288 (Tex. 1995). We also consider the objective the law seeks

to obtain and the consequences of a particular construction. Tex. Gov’t Code

Ann. § 311.023(1), (5). In enacting a statue, it is presumed that a just and

reasonable result is intended. Id. § 311.021(3).

      C.    The Legislature Intended that Section
            16.009(a) be Subject to Section 33.004(e)

      Civil practice and remedies code chapter 33, subchapter A sets forth

Texas’s proportionate responsibility scheme. Tex. Civ. Prac. & Rem. Code Ann.

§§ 33.001–.004 (Vernon 2008).        Section 33.004 provides in part that a

defendant may seek to designate a person as a responsible third party by filing

a motion for leave to designate that person as a responsible third party. Id.

§ 33.004(a). Section 33.004(e) provides as follows:

      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.

Id. § 33.004(e) (emphasis added).




                                      7
      Civil practice and remedies code chapter 16, subchapter A sets forth

statutes of limitations and repose.    Id. §§ 16.001–.012 (Vernon 2002).

Section 16.009 provides in part (a) as follows:

      A claimant must bring suit for damages for a claim listed in
      Subsection (b) against a person who constructs or repairs an
      improvement to real property not later than 10 years after the
      substantial completion of the improvement in an action arising out
      of a defective or unsafe condition of the real property or a
      deficiency in the construction or repair of the improvement.

Id. § 16.009(a) (emphasis added). Section 16.009 applies to a suit for personal

injury. Id. § 16.009(b)(2). Section 16.009 has been identified by courts as a

statute of repose. See, e.g., Sonnier v. Chisholm-Ryder Co., Inc., 909 S.W.2d

475, 476–77 (Tex. 1995); Fuentes v. Cont’l Conveyor & Equip. Co., Inc., 63

S.W.3d 518, 520 (Tex. App.—Eastland 2001, pet. denied).

      Utilizing the rules of statutory construction set out above, we first

examine the plain language of sections 33.004(e) and 16.009(a).        There is

nothing specifically set forth in section 33.004(e) to indicate that it is not

applicable to section 16.009(a), and there is nothing specifically set forth in

section 16.009(a) to indicate that it is not subject to section 33.004(e).

      Reading the statutes as a whole, we now look to other relevant statutes

for additional guidance. Section 33.002 is part of the same subchapter as

section 33.004 and specifically states which claims the chapter applies to and



                                       8
which claims the chapter does not apply to. Tex. Civ. Prac. & Rem. Code Ann.

§ 33.002(a), (c). Section 33.002(a) provides in part that the proportionate

responsibility chapter 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.” Id. § 33.002(a)(1). Boenig

seeks to recover damages in tort from Pulte and StarnAir, among others, for

injuries that she allegedly sustained after falling through the attic floor and into

the living room at the 1112 Raleigh Drive house.2 In light of section 33.002(a),

section 33.004(e) appears to be specifically applicable to Boenig’s claims

against StarnAir.

      Section 33.002(c) provides that the proportionate responsibility chapter,

including the designation of responsible third party statute, does not apply to

(1) an action to collect workers’ compensation benefits under the workers’

compensation laws of this state or actions against an employer for exemplary

damages arising out of the death of an employee, (2) a claim for exemplary

damages included in an action to which this chapter otherwise applies,3 or (3)


      2
       … Boenig asserted negligence, premises defect, and product liability
claims against StarnAir in her fourth amended petition.
      3
      … See generally I-Gotcha, Inc. v. McInnis, 903 S.W.2d 829, 840 (Tex.
App.—Fort Worth 1995, writ denied) (stating that because comparative
responsibility applies to Dram Shop Act claims but not to a claim for punitive
damages, amount of punitive damages does not have to be reduced by the

                                         9
a     cause    of   action   for   damages    arising     from   the   manufacture     of

methamphetamine as described by chapter 99.                Id. § 33.002(c) (emphasis

added).       Boenig’s tort claims against StarnAir for injuries that she allegedly

sustained after falling through the attic floor are not specifically excluded from

the    chapter’s     application   by   any    of   the    classifications   in   section

33.002(c)(1)–(3).       In light of section 33.002(c), section 33.004(e) is not

specifically inapplicable to Boenig’s claim against StarnAir.

        The legislature specifically designated only section 16.011 as a statute

of repose. Subsection (c) of section 16.011 states, “This section is a statute

of repose and is independent of any other limitations period.” Id. § 16.011(c).

Section 16.009 contains no similar provision specifically identifying it as a

statute of repose that is “independent of any other limitations period.”              Id.

§ 16.009.

        StarnAir contends that the legislature’s exclusion of the term “repose”

from section 33.004(e) evidences its intent to distinguish between statutes of

repose and statutes of limitation, but the legislature used a significant similar

term in both section 33.004(e) and section 16.009: “limitation.” So long as

the joinder is timely, section 33.004(e) provides that a claimant is not barred




percentage responsibility the jury attributed to the injured party).

                                          10
by “limitations” from seeking to join a person designated as a responsible third

party, even though the joinder would otherwise be barred by “limitations.” Id.

§ 33.004(e). Both section 16.009(c) and section 16.009(d) refer to the ten-

year period set forth in section 16.009(a) during which a claimant must bring

suit for damages as a “limitations period.” 4         The legislature’s explicit

designation of the ten-year period in section 16.009(a) as a “limitation” period

lends support to the conclusion that the legislature intended section 16.009(a)

to be included within the purview of section 33.004(e)’s references to

“limitations”—the legislature used the same term in each statute, and there is

nothing in the statutes to indicate that the legislature intended the terms to be

construed differently.    See City of Rockwall, 246 S.W.3d at 625–26;

Strayhorn, 209 S.W.3d at 85 (providing that we construe the statute’s words

according to their plain and common meaning); Gray, 259 S.W.3d at 291.

      Further, the legislature included section 16.009 in chapter 16 among

numerous other statutes of limitations. See Tex. Civ. Prac. & Rem. Code Ann.



      4
       … Section 16.009(c) provides, “If a claimant presents a written claim for
damages, contribution, or indemnity to the person performing or furnishing the
construction or repair work during the 10-year limitations period, the period is
extended for two years from the date the claim is presented.” Id. § 16.009(c)
(emphasis added). Section 16.009(d) provides, “If the damage, injury, or death
occurs during the 10th year of the limitations period, the claimant may bring
suit not later than two years after the day the cause of action accrues.” Id.
§ 16.009(d) (emphasis added).

                                       11
§§ 16.002, 16.003, 16.004, 16.045, 16.024, 16.025, 16.026, 16.027, &

16.028. Examining and harmonizing the plain language of the relevant statutes

demonstrates that the legislature used the word “limitations” in section

33.004(e) for the purpose of referring to each of the “limitations” periods set

forth in chapter 16, including section 16.009. See Pochucha v. Galbraith Eng’g

Consultants, Inc., 243 S.W.3d 138, 141 (Tex. App.—San Antonio 2007, pet.

granted) (“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 [CPRC] Chapter 16 . . . .”).

      With the exception of its argument that section 16.009(a) is a statute of

repose and not a statute of limitations, StarnAir does not explain why—in the

context of allowing a claimant to join a designated responsible third party even

though the joinder would otherwise be barred by limitations—the legislature

intended to make a distinction between claims involving persons furnishing

construction or repair of improvements and claims not involving persons

furnishing construction or repair of improvements. StarnAir’s construction is

contrary to the presumption that the legislature intended a just and reasonable

result when enacting section 33.004(e) and intending that it be applicable to

section 16.009(a) because its construction has the effect of adding an

                                       12
additional classification of claims under section 33.002(c) that the proportionate

responsibility chapter does not apply to, which would effectively impermissibly

enlarge section 33.002(c). Interpreting the limitations provisions of section

33.004(e) to be applicable to section 16.009(a) avoids the likely unintended

consequence of rendering meaningless section 33.004(e)’s applicability to

claims involving persons furnishing construction or repair of improvements.

      StarnAir states that the responsible third party statute was “designed to

reduce the likelihood that a defendant will be found jointly and severally liable.”

It points out that Boenig’s “arguments fail to address the fact that even if the

statute of repose prevents [Boenig] from joining StarnAir as a party-defendant

to the lawsuit, StarnAir will remain designated as a responsible third party and

therefore the jury will remain able to apportion fault to StarnAir.”          This,

according to StarnAir, is “precisely the purpose of [s]ection 33.004(e).” We

disagree that this is “precisely” the purpose of section 33.004(e). The purpose

of section 33.004(e) is to provide that a claimant is not barred by limitations

from seeking to join a responsible third party even though the joinder would

otherwise be barred by limitations. Implicit (or maybe explicit) in this limitations

purpose is that a claimant may seek to join in the underlying lawsuit—and thus

assert a claim or claims against—the responsible third party, presumably in an

effort to collect part or all of any recovery from that joined party, because the

                                        13
filing or granting of a motion for leave to designate a person as a responsible

third party or a finding of fault against the person does not by itself impose

liability on the person. See Tex. Civ. Prac. & Rem. Code Ann. § 33.004(e),

(i)(1). Thus, while the responsible third party statute may have been “designed

to reduce the likelihood that a defendant will be found jointly and severally

liable,” section 33.004(e) nonetheless addresses the issue of limitations in

anticipation of a claimant’s attempted joinder of a responsible third party.

      StarnAir argues that Boenig’s proposed construction of the relevant

statutes “would effectively abolish every statute of repose within Chapter 16”

of the civil practice and remedies code. The argument is inaccurate as stated.

A claimant must still bring a suit for damages under section 16.009 not later

than ten years after the substantial completion of the improvement. StarnAir’s

argument fails to recognize the distinction between a defendant who has not

previously been designated as a responsible third party and is timely directly

sued at some point during the ten-year “limitations period” and a defendant

who has previously been designated as a responsible third party and is

subsequently joined in the suit at some point during or after the “limitations

period.”

      While we disagree with StarnAir’s general “abolishment” argument,

interpreting section 16.009(a) to be subject to section 33.004(e) would render

                                      14
meaningless section 33.004(e)’s ten-year repose period under one particular set

of circumstances: a claimant could directly sue beyond the ten-year repose

period a party who did not construct or repair improvements before joining a

party who constructed or repaired improvements and who had previously been

designated as a responsible third party by the directly sued defendant. This

circumstance conflicts with the legislature’s intent that section 16.009 claims

be brought during the ten-year repose period, but the plain language of section

33.004(e) demonstrates that the legislature seems to have recognized—and

accepted—this circumstance (that otherwise time-barred claims can be asserted

against a party who had constructed or installed improvements and who had

previously been designated as a responsible third party). See Tex. Civ. Prac.

& Rem. Code Ann. § 33.004(e) (stating that a claimant is not barred by

limitations even though joinder would otherwise be barred by limitations); see

also Michael S. Hull et al., House Bill 4 and Proposition 12: An Analysis with

Legislative History, 36 Tex. Tech. L. Rev. 51, 99–100 (2005) (considering

section 33.004(e) and stating, “Thus, Chapter 33 has a mechanism for reviving

claims that would have been barred by limitations. As long as the statute of

limitations has not run on one defendant, a plaintiff has an opportunity to join

any designated defendants within a sixty-day window from the designation

date, even though the statute of limitations has expired for those defendants.”).

In other words, while the legislature designates that particular actions be

                                       15
subject to a repose period to give absolute protection to certain parties from the

burden of indefinite potential liability,5 it may also—as it did by intending that

section 16.004(a) be subject to section 33.004(e)—identify a particular

circumstance where otherwise time-barred claims can nonetheless be asserted.

      Applying the rules of statutory construction set out above, we hold that

the legislature intended that section 16.004(a) be applicable to section

33.004(e)’s savings provision. Accordingly, we hold that the trial court erred

by granting summary judgment in favor of StarnAir. We sustain Boenig’s issue.

                                IV. C ONCLUSION

      Having sustained Boenig’s sole issue, we reverse the trial court’s order

granting final summary judgment in favor of StarnAir and remand the case to

the trial court.




                                                  DIXON W. HOLMAN
                                                  JUSTICE

PANEL: GARDNER and WALKER, JJ.; and DIXON W. HOLMAN, J. (Senior
Justice, Retired, Sitting by Assignment).

DELIVERED: February 19, 2009


      5
       … See Holubec v. Brandenberger, 111 S.W.3d 32, 37 (Tex. 2003);
Sonnier, 909 S.W.2d at 489 (“The intent of a statute of repose is to provide
some ending point for the assertion of claims.”). Section 16.009, which has
been identified as a statute of repose, though not specifically designated as
such in the statute, is no different. Its purpose is to protect someone who
constructs or installs an improvement from facing never-ending potential liability
based on that work. Reames v. Hawthorne-Seving, Inc., 949 S.W.2d 758, 761
(Tex. App.—Dallas 1997, pet. denied).

                                       16
