Jay Miller & Sundown, Inc. D/B/A Sundown Construction (Appellant/Cross Appellee) v. Camp, Dresser & McKee, Inc. D/B/A CDM (Appellee/Cross Appellant)
2012 Tex. App. LEXIS 6776
Tex. App.2012Background
- CDM, an engineering firm, designed and assisted with a water-project for the City of Del Rio; Sundown was the general contractor.
- Sundown filed suit in 2007 for breach of contract and prompts, later adding tort claims related to City delays and water pumping issues.
- CDM was designated a responsible third party under chapter 33, and Sundown joined CDM within 60 days of designation.
- Sundown amended to add tort claims against CDM; the City later settled and nonsuited.
- CDM sought dismissal under Chapter 150 (certificate of merit) and moved for summary judgment arguing the claim was time-barred.
- The trial court granted summary judgment on the limitations issue but denied dismissal under Chapter 150; Sundown appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether §33.004(e) revives a limitations-barred claim | Sun argues designation and timely joinder prevent limitations bar | CDM contends §33.004(e) cannot revive the claim depending on the nature of alleged harm | Yes; Sundown prevailed that §33.004(e) revives the claim. |
| Whether CDM was properly designated as a responsible third party | Sundown correctly designated CDM within 60 days of designation | CDM challenges designation validity under §33.004 | CDM designation proper; limitations not a bar. |
| Whether a certificate of merit was required under Chapter 150 for Sundown’s claims | Second 2005 Act applied retroactively to firms? | Certificate required for actions accruing after 2005; Sundown’s accrued before | Certificate of merit not required; pre-2005 accrual applies. |
| Whether the 2009 amendments to Chapter 150 apply to Sundown’s action against CDM | 2009 Act governs changes; retroactive to pre-2005 actions? | 2009 Act applies only to actions commenced after its effective date | 2009 amendments do not apply; action governed by prior law; court erred in summary judgment. |
Key Cases Cited
- Flack v. Hanke, 334 S.W.3d 251 (Tex. App.—San Antonio 2010) (revival of limitations under §33.004(e) allowed)
- Galbraith Eng’g Consultants, Inc. v. Pochucha, 290 S.W.3d 863 (Tex. 2009) (statutory interpretation of Chapter 33; designation of RTP)
- S & P Consulting Eng’rs, PLLC v. Baker, 334 S.W.3d 390 (Tex. App.—Austin 2011) (discussed 2009 Act effective date and action commencement)
- Raba-Kistner Consultants, Inc., 311 S.W.3d 584 (Tex. App.—El Paso 2010) (Chapter 150 applicability to design professionals)
- Entergy Gulf States, Inc. v. Summers, 282 S.W.3d 433 (Tex. 2009) (statutory interpretation—de novo review standard)