Goose Creek Sch. Dist. v. Jarrar's Plumbing

• Decision Date: 28 March 2002
• Docket Number: No. 06-01-00030-CV.,06-01-00030-CV.
• Citation: 74 S.W.3d 486
• Parties: GOOSE CREEK CONSOLIDATED INDEPENDENT SCHOOL DISTRICT OF CHAMBERS AND HARRIS COUNTIES, TEXAS, Appellant, v. JARRAR'S PLUMBING, INC., Appellee.
• Court: Texas Court of Appeals

74 S.W.3d 486

GOOSE CREEK CONSOLIDATED INDEPENDENT SCHOOL DISTRICT OF CHAMBERS AND HARRIS COUNTIES, TEXAS, Appellant, v. JARRAR'S PLUMBING, INC., Appellee.

No. 06-01-00030-CV.

Court of Appeals of Texas, Texarkana.

Submitted February 27, 2002.

Decided March 28, 2002.

Rehearing Overruled May 14, 2002.

Rogers S. McCabe, John E. Haught, Mehaffy & Weber, PC, Beaumont, for appellant.

Devon H. Decker, Lee D. Thibodeaux, Preston & Cowan, LLP, Houston, for appellee.

Before CORNELIUS, C.J., GRANT and ROSS, JJ.

OPINION

Opinion by Justice GRANT.

Both the plaintiff, Goose Creek Consolidated Independent School District of Chambers and Harris Counties, Texas, and the defendant, Jarrar's Plumbing, Inc., appeal the trial court's judgment regarding claims for injuries Goose Creek sustained arising out of the work Jarrar's Plumbing performed as a subcontractor in constructing three elementary schools.

Goose Creek contends the trial court erred by rendering partial summary judgment in favor of Jarrar's Plumbing. Goose Creek further contends the court erred by placing the burden of allocating the settlement damages on Goose Creek instead of on Jarrar's Plumbing before applying the credit to the jury's verdict, by refusing to consider Goose Creek's extrinsic evidence on that issue, or by failing to find that Goose Creek met the burden to establish that none of the settlement funds were attributable to common damages for which appellee would be jointly responsible, regardless of who had the burden of allocation, and by crediting the settlement funds received in compensation for separate damages against the jury's verdict, and by rendering a take-nothing judgment.

Jarrar's Plumbing contends the court erred in denying Jarrar's Plumbing's Motion for Judgment Notwithstanding the Verdict. Jarrar's Plumbing also contends that the evidence to support loss-of-use damages was legally and factually insufficient and that the jury question submitted on loss-of-use damages was improper and an incorrect statement of the law.

Goose Creek contracted with Lee Lewis Construction (Lewis), as a general contractor, to furnish all necessary labor and materials for construction of three elementary schools. Lewis entered into a contract with a subcontractor, Jarrar's Plumbing, to perform the plumbing work at the schools. The schools were occupied when they were substantially complete on August 24, 1992, and classes began that September. Shortly after occupancy of the buildings, numerous defects were discovered, including a faulty sewer line and other plumbing problems.

Five years later, on August 25, 1997, Goose Creek filed suit against the architects and the general contractor. Lewis then filed third-party actions against other parties that participated in the design or installation of various defective systems, including Jarrar's Plumbing. Lewis's third-party action against Jarrar's Plumbing was filed on May 26, 1998, and was based on breach of contract, breach of warranty, and negligence. Goose Creek brought claims directly against Jarrar's Plumbing in Goose Creek's fourth amended petition filed on August 2, 1999. After Goose Creek executed a Release of the General Contractor and all subcontractors except Jarrar's Plumbing, Goose Creek's direct claims against Jarrar's Plumbing were severed into cause number 97-44388B, and Goose Creek filed its fifth amended petition on January 24, 2000, alleging negligence and breach of warranty claims solely against Jarrar's Plumbing for the plumbing defects. After receiving the assignment of claims from the general contractor on January 31, 2000, Goose Creek filed its sixth amended petition asserting the assigned breach of contract and breach of express and implied warranty claims against Jarrar's Plumbing in addition to the direct claims already asserted.

The trial court granted summary judgment dismissing Goose Creek's direct claims for breach of the warranty of workmanlike performance and the assigned negligence and contract claims, the latter as barred by the statute of limitations. Goose Creek continued to trial on its direct claim of negligence. The jury found Jarrar's Plumbing was negligent and awarded damages for the cost of repairs and loss of use.

The Trial Court's Granting of Partial Summary Judgment

To prevail on a motion for summary judgment, a movant must establish that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law. Tex.R. Civ. P. 166a(c). Summary judgment for a defendant is proper when the defendant negates at least one element of each of the plaintiff's theories of recovery or pleads and conclusively establishes each element of an affirmative defense. Sci. Spectrum, Inc. v. Martinez, 941 S.W.2d 910, 911 (Tex.1997); Wornick Co. v. Casas, 856 S.W.2d 732, 733 (Tex.1993). Goose Creek does not contend that a question of material fact exists. The question raised here is how the statute of limitations applies, which is a matter of law we review de novo.

Goose Creek appeals the summary judgment regarding the actions for negligence, breach of contract, and breach of warranty that Lewis assigned to Goose Creek, arguing the assigned causes of action were not subject to the two- and four-year statutes of limitations because they were raised as third-party actions to Goose Creek's original claim and therefore acquire Goose Creek's statute of limitations.

Under Tex.R. Civ. P. 38(a), a defendant may bring a third-party petition to join a party who may be liable to the defendant or to the plaintiff for all or part of the plaintiff's claims against the defendant. A third-party action is not an independent cause of action, but is derivative of the plaintiff's claim against the responsible third party. Eslon Thermoplastics v. Dynamic Sys., Inc., 49 S.W.3d 891, 902 (Tex.App.-Austin 2001, no pet. h.) (citing Shoemake v. Fogel, Ltd., 826 S.W.2d 933, 935 (Tex.1992)). As such, an action for indemnification or contribution does not accrue for limitations purposes until a plaintiff recovers damages or settles its suit against a defendant. City of San Antonio v. Talerico, 98 Tex. 151, 81 S.W. 518, 520 (1904); see also Ingersoll-Rand Co. v. Valero Energy Corp., 997 S.W.2d 203, 211 (Tex.1999); Conroe Truck & Tractor, Inc. v. Childs Truck Equip., 723 S.W.2d 207, 208-09 (Tex.App.-Beaumont 1986, writ ref'd n.r.e.). After the defendant has joined the third party, the third party is subject to such other same transaction claims as may be brought by the parties. Tex. Civ. Prac. & Rem.Code Ann. § 33.004 (Vernon 1997), regarding joinder of responsible third parties, does not alter the defendant's statute of limitations regarding same transaction claims.

Lewis's actions for negligence and breach of contract and warranty against Jarrar's Plumbing were not derivative of Goose Creek's possible claims against Jarrar's Plumbing because Goose Creek could not have sued Jarrar's Plumbing directly on those claims. Those claims could only have been same transaction claims brought against a third-party defendant. Although Lewis's claim for contribution based on any claim Goose Creek would have against Jarrar's Plumbing would not have accrued until Goose Creek recovered damages or settled with Lewis, Lewis's independent actions of negligence and breach of contract and warranty accrued under the general rule. Goose Creek, in its brief, does not argue any recognized exception to the general rule.

Breaches of contract and breaches of warranty are governed by the four-year statute of limitations contained in Tex. Civ. Prac. & Rem.Code Ann. § 16.004 (Vernon Supp.2002). The statute begins to run from the date of the contract breach. Harrison v. Bass Enter. Prod. Co., 888 S.W.2d 532, 537 (Tex.App.-Corpus Christi 1994, no writ). Actions in negligence are governed by the two-year statute of limitations contained in Tex. Civ. Prac. & Rem.Code Ann. § 16.003 (Vernon Supp.2002). The cause of action accrues when the negligent act is committed. See Johnson & Higgins of Tex., Inc. v. Kenneco Energy, Inc., 962 S.W.2d 507, 514 (Tex. 1998). Tex. Civ. Prac. & Rem.Code Ann. § 16.061 (Vernon Supp.2002) provides that a school district's right of action is not barred by Tex. Civ. Prac. & Rem.Code Ann. §§ 16.001-16.004 (Vernon Supp.2002). Therefore, Goose Creek's actions against Lewis were not bound by the two- and four-year periods of limitations, and Goose Creek was able to properly file the claims outside that time.

The facts regarding the date of accrual and filing of claims were undisputed. The general statutes of limitations had run on Lewis's claims against Jarrar's Plumbing before Lewis filed the third-party petition in 1998. Nothing in the statutes regarding third-party claims extends the applicable limitations periods for same transaction claims brought against third-party defendants. Therefore, Lewis's claims against Jarrar's Plumbing were barred by the statute of limitations when Lewis assigned the claims to Goose Creek. Because an assignee stands in the shoes of the assignor, Goose Creek was subject to the statute of limitations as it applied to Lewis's independent actions for breach and negligence, and was thus barred by the statute of limitations from bringing such actions. See Cadle Co. v. Henderson, 982 S.W.2d 543, 545 (Tex.App.-San Antonio 1998, no pet.). This point of error is overruled.

The Trial Court's Denial of Judgment Notwithstanding the Verdict

Jarrar's Plumbing contends the trial court erred in denying its Motion for a Judgment Notwithstanding the Verdict regarding Goose Creek's direct action for negligence against Jarrar's Plumbing. Jarrar's Plumbing argues that as a matter of law, there was no evidence that Jarrar's Plumbing owed a duty to Goose Creek and that no cause of action was available under the circumstances of the case regarding Jarrar's Plumbing's relationship to Goose Creek. A motion for judgment notwithstanding the verdict be granted when (1)...