Brown & Root Inc. v. Shelton
Decision Date | 31 July 2003 |
Docket Number | No. 12–01–00259–CV.,12–01–00259–CV. |
Citation | 446 S.W.3d 386 |
Parties | BROWN & ROOT INC. n/k/a Kellogg–Brown & Root, Appellants, v. Shearon SHELTON, Appellee. |
Court | Texas Court of Appeals |
David J. White, David L. Patterson, Steven T. Polino, Godwin Gruber, L.L.P., Dallas, for appellants.
Jeffrey B. Simon, Daryl L. Moore, Houston, for appellee.
Panel consisted of WORTHEN, C.J., GRIFFITH, J., and RAMEY, Jr., Retired Chief Justice, Twelfth Court of Appeals, Tyler, sitting by assignment.
Brown & Root, Inc., now known as Kellogg Brown & Root, Inc. (“Brown & Root”), appeals the trial court's judgment entered in favor of Shearon Shelton (“Mrs. Shelton”). Brown & Root raises four issues on appeal. We modify the judgment of the trial court and affirm as modified.
John Shelton (“Mr. Shelton”) was a thirty-year employee of the Kelly–Springfield tire plant (“Kelly–Springfield”) located in Tyler, Texas. From 1969 until 1971, Kelly–Springfield contracted with Brown & Root as a general contractor to construct certain renovations and additions at its plant. During this construction, asbestos-laden materials were used in various forms on multiple expansion projects, which included the construction of a new cafeteria addition, new pipelines in the plant, the application of fireproofing and the installation of insulation. In September of 1999, Mr. Shelton was diagnosed with mesothelioma and was forced to retire. In January of 2000, Mr. and Mrs. Shelton filed a personal injury action against Brown & Root and fourteen other defendants. Other than Brown & Root, all defendants settled prior to the conclusion of trial. Mr. Shelton died after settlement but before the close of trial, and Mrs. Shelton chose to proceed in her individual capacity only.
At trial, Mrs. Shelton introduced Mr. Shelton's deposition testimony concerning his exposure to asbestos from Brown & Root's activities at the Kelly–Springfield Plant such as installing asbestos-containing insulation, cutting gaskets, and cutting rope packing. Two of Mr. Shelton's co-workers also testified extensively about Brown & Root's activities as a general contractor during the period in question. Both stated that workers in Mr. Shelton's position were exposed to asbestos from such acts as the application of fireproofing, insulation, cement, and plaster, all of which contained asbestos. Additionally, the record reflects that at a date much earlier than 1971, Brown & Root became aware of the hazards posed by the use of asbestos and even took measures to alleviate this risk at some of their work sites.
Prior to the close of trial, Mr. and Mrs. Shelton entered into settlements totaling $3,951,900 with the other fourteen defendants. Brown & Root subsequently made a timely request for a dollar-for-dollar settlement credit for the sum total of those settlements. At the close of Mrs. Shelton's case, Brown & Root made a motion for a directed verdict based on the contractor's statute of repose.1 Brown & Root's motion was denied by the trial court.
On January 22, 2001, the jury returned a verdict against Brown & Root in the amount of $2,766,000 in actual damages and $1,250,000 in punitive damages. Brown & Root was given a $70,000 settlement credit.2 Again based on the statute of repose, Brown & Root made a motion for judgment notwithstanding the verdict. The trial court denied Brown & Root's motion and entered judgment in favor of Mrs. Shelton. Brown & Root subsequently filed a motion for a new trial which was denied on September 9, 2001. This appeal followed.
In its first issue, Brown & Root contends that the trial court erred in failing to grant its motion for a directed verdict and motion for judgment notwithstanding the verdict because the statute of repose applies and protects Brown & Root from liability.
An appeal from the denial of a motion for directed verdict is in essence a challenge to the legal sufficiency of the evidence. Haynes & Boone, L.L.P. v. Chason, 81 S.W.3d 307, 309 (Tex.App.-Tyler 2002, pet. denied) ; Lochinvar Corp. v. Meyers, 930 S.W.2d 182, 187 (Tex.App.-Dallas 1996, no writ). Likewise, a motion for judgment notwithstanding the verdict should be granted when the evidence is conclusive and one party is entitled to judgment as a matter of law. Mancorp, Inc. v. Culpepper, 802 S.W.2d 226, 227–28 (Tex.1990) ; see also Brookshire Bros., Inc. v. Wagnon, 979 S.W.2d 343, 351 (Tex.App.-Tyler 1998, pet. denied) ( ). On review, this court will consider only the evidence and inferences tending to support the trial court's decision, and disregard evidence and inferences to the contrary. Minyard Food Stores, Inc. v. Goodman, 80 S.W.3d 573, 577 (Tex.2002) ; Bradford v. Vento, 48 S.W.3d 749, 754 (Tex.2001). A motion for a directed verdict should be granted when, viewing the evidence in the light most favorable to the non-movant, there is no more than a scintilla of evidence that would defeat the movant's entitlement to judgment as a matter of law. See Trinity Indus., Inc. v. Ashland, 53 S.W.3d 852, 862 (Tex.App.Austin 2001, no pet.).
Section 16.009 of the Texas Civil Practice and Remedies Code provides 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 ten years after the substantial completion of the improvement in an action arising out of the defective or unsafe condition of the real property or a deficiency in the construction or repair of the improvement.
Tex. Civ. Prac. & Rem.Code § 16.009(a). By enacting this statute of repose, the Legislature sought to protect contractors who install such improvements from a perpetual threat of liability. See Petro Stopping Ctrs., Inc. v. Owens-Corning Fiberglas Corp., 906 S.W.2d 618, 620 (Tex.App.El Paso 1995, no writ). If applicable, the statute of repose “provides a complete defense to a personal injury action based on strict liability or negligence.” Reames v. Hawthorne-Seving, Inc., 949 S.W.2d 758, 761 (Tex.App.-Dallas 1997, writ denied).3
A defendant seeking to invoke the statute of repose must satisfy two underlying requirements. Williams v. U.S. Natural Resources, 865 S.W.2d 203, 206 (Tex.App.-Waco 1993, no writ). A defendant who satisfies only one of these requirements is not protected by section 16.009. Id. at 207. Both parties acknowledge that Brown & Root is “one who constructs or repairs.” Therefore, the applicability of the statute of repose turns on whether the construction performed by Brown & Root constitutes an improvement to real property. Before personalty can be considered an improvement, it must be annexed to realty.4 Sonnier v. Chisholm-Ryder Co., Inc., 909 S.W.2d 475, 479 (Tex.1995).
Annexation
Three factors are relevant in determining whether personalty has been annexed to realty. See Logan v. Mullis, 686 S.W.2d 605, 607 (Tex.1985) ; Fenlon v. Jaffee, 553 S.W.2d 422, 428 (Tex.Civ.App.-Tyler 1977, writ ref'd n.r.e.). These factors include (1) the mode and sufficiency of annexation, either real or constructive, (2) the adaptation of the article to the use or purpose of the realty, and (3) the intention of the party who annexed the chattel to the realty. Logan, 686 S.W.2d at 607 ; see also O'Neal v. Quilter, 111 Tex. 345, 234 S.W. 528, 529 (Tex.1921). The third of these criteria “is preeminent, whereas the first and second criteria constitute evidence of intention.” Logan, 686 S.W.2d at 607 ; Fenlon, 553 S.W.2d at 428–29. Though, as a general rule, the existence of such an intent to annex would be “a question of fact for the trier of fact, ... it becomes a question of law where reasonable minds could not differ on the issue of intent.” White v. CBS Corp., 996 S.W.2d 920, 924 (Tex.App.-Austin 1999, pet. denied) ; see also Sonnier, 909 S.W.2d at 487 ; Logan, 686 S.W.2d at 607.
An intent to make improvements a fixture may be conclusively established by conduct at the time of the improvements including the adaptation of the personalty to the realty. See Logan, 686 S.W.2d at 608. Thus, such factors as the permanency of any attachment and the modification of personalty to fit a specific design may be considered to determine intent. Id.; Fuentes v. Continental Conveyor & Equip., 63 S.W.3d 518, 521 (Tex.App.-Eastland 2001, pet. denied). Such adaptation “ ‘of the personalty to the use or the purpose of the realty’ [is] evidence of the owner's intent” to effect annexation. Fuentes, 63 S.W.3d at 521 (quoting Sonnier, 909 S.W.2d at 479 ).
Here, Brown & Root applied fireproofing to the ceiling of the plant, installed pipe insulation and gaskets adapted to fit the layout of Kelly–Springfield's plant, built an expansion of the cafeteria in accordance with Kelly–Springfield's design, and installed new tire machines in the factory, each of which is an action analogous to those in Fuentes and Logan. See Fuentes 63 S.W.3d at 521 ; Logan, 686 S.W.2d at 608. Consequently, Brown & Root's actions, its adaptation of the items to the use and purpose of the Kelly–Springfield plant, and the “mode and sufficiency” of the construction's joinder to the realty similarly evidence an intent to effect annexation. See White, 996 S.W.2d at 924 ; see also Logan, 686 S.W.2d at 608. Thus, we conclude that the personalty at issue was annexed to realty.
Improvements
“An improvement includes all additions to the freehold except trade fixtures that can be removed without injury to the property.” Reames, 949 S.W.2d at 761 ; see also Sonnier, 909 S.W.2d at 479. Additionally, those things which are classified as improvements constitute a more expansive class than does the class of fixtures, which are...
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