Dunn v. W. F. Jameson & Sons, Inc.

• Decision Date: 24 July 1978
• Citation: 569 S.W.2d 799
• Parties: Winfield DUNN et al., Appellants, v. W. F. JAMESON AND SONS, INC., et al., Appellees. 569 S.W.2d 799
• Court: Tennessee Supreme Court

Page 799

569 S.W.2d 799

Winfield DUNN et al., Appellants, v. W. F. JAMESON AND SONS, INC., et al., Appellees.

569 S.W.2d 799

Supreme Court of Tennessee.

July 24, 1978.

Brooks McLemore, Atty. Gen., William C. Koch, Jr., Deputy Atty. Gen., Nashville, Edward G. Grogan, Heiskell, Donelson, Adams, Williams & Kirsch, Memphis, for appellants.

John B. Mack, Clifton & Mack, Bruce S. Kramer, Rosenfield, Borod, Bogatin & Kremer, Heiskell Weatherford, Canada, Russell & Turner, DeWitt M. Shy, Jr., Burch, Porter & Johnson, Erich W. James, Waring, Cox, James, Sklar & Allen, Alan R. Strain, Nelson, Norvell, Wilson, McRae & Sevier, Memphis, for appellees.

WILLIAM S. RUSSELL, Special Justice.

The dispositive questions in this case are (1) whether or not a suit by the Board of Regents of the State University and College System is exempt because of the provisions of T.C.A. § 28-115 ¹ from the three year statute of limitation set out in T.C.A. § 28-305 ², to Inter alia suits, for damages to property; and (2) whether or not under this record the trial judge was correct in dismissing this suit against two defendants ³ on the further ground that there was no privity of contract between them and the plaintiff. For the reasons hereinafter set out, we hold that the trial court erred in holding that the aforesaid statute of limitation barred this action; and we further hold that the dismissal as to the two defendants on the additional ground of no showing of privity of contract was premature and hence erroneous.

This action arose from the construction of a physical education building at Memphis State University. The roof on the new building turned out to be defective. This is a suit brought by the Board of Regents of the State University and College System against the architects who designed and supervised the construction of the building ⁴, the general contractor ⁵, the roofing subcontractor ⁶, the roofing material supplier ⁷, the roofing material manufacturer ⁸, and the surety upon the contractor's and various subcontractors' performance bond ⁹.

This is the second time that this case has been before this court, following the trial court's dismissal of it as to all defendants. The first time, the trial court held that the plaintiff's causes of action all simultaneously accrued on November 15, 1971, and were extinguished after the passage of three years; and also found that there was no privity of contract between the material supplier and the plaintiff. This court, upon the first appeal, held that a determination of the correctness of the trial judge's order of dismissal was dependent upon the terms of the contract and specifications under which the roof was installed. We noted that the contract and specifications were not filed in the trial court and, consequently, we did not know the parties to the several contracts, or the rights of the plaintiff or the obligations of the several defendants. We said:

" * * * It is apparent from the allegations of the complaint that as to one or more of the defendants, plaintiff's cause of action did not accrue when the leaks first appeared in the roof of the building as found by the trial judge, but accrued when the defendants or at least those defendants bound by the contracts and specifications repudiated or breached the contractual provisions guaranteeing the roof and all related work against leaks for a specified period after acceptance of the building. These dates are not set forth in any of the pleadings filed in these actions. With the record in this state, the trial judge was not in a position to rule on the several motions to dismiss, nor are we. We are, therefore, setting aside his orders sustaining the motions to dismiss and are remanding the action for the filing of the contract and specifications and for such other action as the trial judge deems advisable when he considers the contract and specifications along with the other allegations of the complaint."

When the case reached the trial court the plaintiff was permitted the file an amended complaint ¹⁰, to which was appended the agreement between the owner and the architect, the agreement between the owner and the general contractor, and the performance bond of the contractor and surety. (AIA Document A201, incorporated by reference into the contract between the owner and the general contractor, was not filed as an exhibit, but it was appended to the appellant's brief.) The record still does not contain copies of any agreements or warranties entered into between any of the various defendants, although they are alluded to in various pleadings and contemplated by the general contract.

With the filing of the amended complaint, and answers and various cross-complaints, and motions to dismiss by two of the defendants ¹¹, the trial court again dismissed the action against all of the defendants. Despite our holding upon the initial appeal that the plaintiff's cause of action did not accrue when the leaks in the roof first appeared, the trial judge again held that it did then so accrue as to the architects, the general contractor, the roofing subcontractor, the roofing supplier, the roofing manufacturer and the surety, and that three years from that date had passed before suit was filed. Furthermore, as to the roofing manufacturer and as to the roofing supplier, the trial court held that in addition to the suit being barred as to them because of the three year statute of limitation (T.C.A. § 28-305), it was also barred as to these two defendants because of the absence of privity of contact.

While we did not say so upon the first appeal, because as we said in our opinion it was obvious that the claimed statute of limitation had not run as to some of the defendants, even if it was applicable, upon this appeal we face the question of the applicability of this statute to this plaintiff State agency at the threshold, because it is dispositive. We need not decide if this is a property damage case (as contrasted with being purely a suit upon a contract, or perhaps for breach of warranty), to say if T.C.A. § 28-305 applies or not; nor must we decide when this cause of action accrued. ¹² We hold straightaway that the clear and unambiguous provisions of T.C.A. § 28-115 exempt the State from the ambit of this statute of limitation. The language is: "The provisions of this title do not apply to actions brought by the state of Tennessee, unless otherwise expressly provided." This statute is a part of Title 28, "Limitations of Actions"; as is T.C.A. § 28-305, the statute of limitation relied upon by these defendants. Since there is nowhere an express provision making T.C.A. § 28-305 applicable to an action by the State, then it simply and clearly is not. When the State is acting in its sovereign capacity, it is not barred by any statute of limitation unless the particular statute of limitation expressly provides that it applies to actions brought by the State. In re Estate of Darwin, 503 S.W.2d 511 (Tenn.1973).

There can be no doubt that the State, in entering into the contracts involved in this case through its agency (the plaintiff), was acting in furtherance of education. As education is a governmental function, see, e. g., Applewhite v. Memphis State University, 495 S.W.2d 190 (Tenn.1973), the State was acting in its sovereign capacity in this instance. In Applewhite, supra, this court expressly held that Memphis State University was entitled to sovereign immunity. The plaintiff in the case at bar is the State. For that reason, the three year statute, even if otherwise applicable ¹³, is not a bar to this suit.

T.C.A. § 28-305 is not applicable, because it does not expressly say that it is, as required for applicability to the State by the provisions of T.C.A. § 28-115. The common law rule, now codified in T.C.A. § 28-115, provides that statutes of limitation against the State as the sovereign are looked upon with disfavor, and will not be enforced unless there is a clear and explicit authority therefor given by statute. Anderson v. Security Mills, 175 Tenn. 197, 133 S.W.2d 478 (1939). See also State ex rel Cates v. Standard Oil Co., 120 Tenn. 86, 110 S.W. 565 (1907); State ex rel Dossett v. Obion County, 188 Tenn. 538, 221 S.W.2d 705 (1949); and Nelson v. Loudon County, 176 Tenn. 632, 144 S.W.2d 791 (1940).

We hold that the trial judge erred in dismissing this suit as being barred by the state of limitation (T.C.A. § 28-305).

The remaining question involves the correctness of the trial judge's ruling that the suit be dismissed as to the roofing material supplier and as to the roofing material manufacturer for want of privity of contract. We again hold, as we did upon the initial appeal, that the trial judge was not in a position to rule upon this question, given the state of the record.

We explicitly pointed out in our first opinion the substance of civil procedure Rule 10.03, "which details the circumstances under which exhibits referred to in a complaint shall be a part of the pleadings for all purposes". Our suggestion was substantially ignored. Despite the clear fact that this whole contractual scheme explicitly provided for subcontracts ¹⁴, and warranties ¹⁵, the pleadings (which were all that the trial court had before him) nowhere include the full and pertinent substance of these agreements. The defensive pleadings filed also allude to such other agreements ¹⁶.

We were invited by counsel, upon the oral argument of this appeal, to furnish detailed guidance for the trial court should we reverse the dismissal and remand the case for trial. We judge that this case has not yet properly progressed to a point where all of the controlling facts have...