McCulloch v. Fox & Jacobs, Inc., 05-83-01329-CV

Citation696 S.W.2d 918
Decision Date15 July 1985
Docket NumberNo. 05-83-01329-CV,05-83-01329-CV
PartiesAndrew McCULLOCH, Appellant, v. FOX & JACOBS, INC., Appellee. Dallas
CourtCourt of Appeals of Texas

Terry Hyatt, Alice Oppenheim, Dallas, for appellant.

Ronald W. Johnson, Dallas, for appellee.

Before the court en banc.

SPARLING, Justice.

Appellant, Andrew McCulloch, appeals a summary judgment disposing of his causes of action for damages against defendant/appellee, Fox & Jacobs, Inc. McCulloch contends, inter alia, that the court erred by finding that the summary judgment evidence established as a matter of law that TEX.REV.CIV.STAT.ANN. art. 5536a (Vernon Supp.1985) immunized Fox & Jacobs from liability. Alternatively, McCulloch argues that if the statute does in fact protect Fox & Jacobs, it unconstitutionally denies him equal protection of the laws, due process of law, and access to the courts. We disagree with all contentions and, accordingly, affirm.

Summary judgment is proper only if the pleadings, depositions, affidavits, and admissions in the record establish that no genuine issue of material fact exists and that the movant is entitled to relief as a matter of law. TEX.R.CIV.P. 166-A(c); McFadden v. American United Life Insurance Co., 658 S.W.2d 147, 148 (Tex.1983); Wesson v. Jefferson Savings & Loan Association, 641 S.W.2d 903, 904-05 (Tex.1982). In reviewing the propriety of a summary judgment, we accept as true the nonmovant's version of the facts adduced through the summary judgment proof and indulge every reasonable intendment in the non-movant's favor. Nelson v. Krusen, 678 S.W.2d 918, 919 (Tex.1984); Williams v. Bennett, 610 S.W.2d 144, 145 (Tex.1980); Swilley v. Hughes, 488 S.W.2d 64, 67 (Tex.1972).

From approximately 1960 to 1966, Fox & Jacobs, a developer and builder of residential single-family homes, developed and constructed the Greenwood Hills community. In addition to planning and building houses, Fox & Jacobs, in 1961, contracted for the construction of a swimming pool which it conveyed to the Greenwood Hills Community Club as part of a community package to attract persons to reside in the development.

On July 13, 1979, McCulloch dove into the shallow end of the pool and severed his spinal cord, suffering severe injuries and incurring substantial expenses for which he seeks reparation from Fox & Jacobs. McCulloch alleges that Fox & Jacobs negligently failed to warn him of a dangerous condition, failed properly to inspect the swimming pool, and failed to provide adequate lighting at the pool. Additionally, McCulloch alleges a cause of action in strict liability, charging that the defective design of the pool rendered it unreasonably dangerous and that Fox & Jacobs failed to provide sufficient markings of the depth of the pool or otherwise warn of the danger. Finally, McCulloch argues that Fox & Jacobs breached warranties of merchantability and fitness for intended purpose.

In its motion for summary judgment, Fox & Jacobs contended that article 5536a barred each and every alleged cause of action. Article 5536a provides, in pertinent part:

Section 1. There shall be commenced and prosecuted within ten years after the substantial completion of any improvement to real property ..., and not afterward, all actions or suits in court for damages for any injury ... or unsafe condition of any such real property ... or improvement attached to such real property against any registered or licensed engineer or architect in this state performing or furnishing the design, planning, inspection of construction of any such improvement, equipment or structure or against any such person so performing or furnishing such design, planning, inspection of construction of any such improvement, equipment, or structure;

Section 2. There shall be commenced and prosecuted within ten years after the substantial completion of any improvement to real property, and not afterward, all actions or suits in court for damages for any injury ... to a person ... arising out of the defective or unsafe condition of any such real property or any deficiency in the construction ... of any improvements on such real property against any person performing or furnishing construction ... of any such improvement.... [Emphasis added.]

The parties do not dispute that the pool constituted an "improvement" within the meaning of the statute. McCulloch argues, however, that the express language evinces a legislative intent to limit the liability of persons involved in the actual construction of improvements to real property and that Fox & Jacobs was merely a residential developer. Fox & Jacobs counters that, as supervisor of the project, it was sufficiently involved in the construction process to merit the protection of the statute.

The cardinal rule of statutory construction is to ascertain the intent of the legislature and to give effect to that intent. Knight v. International Harvester Credit Corp., 627 S.W.2d 382, 384 (Tex.1982); State v. Terrell, 588 S.W.2d 784, 786 (Tex.1979); Minton v. Frank, 545 S.W.2d 442, 445 (Tex.1976). The legislative intent is determined through scrutiny of the statute in its entirety, rather than through study of isolated portions. Taylor v. Firemen's & Policemen's Civil Service Commission, 616 S.W.2d 187, 190 (Tex.1981); Citizen's Bank of Bryan v. First State Bank, 580 S.W.2d 344, 347, 348 (Tex.1979); City of Mason v. West Texas Utilities Co., 150 Tex. 18, 237 S.W.2d 273, 278 (1951). If the statute is clear and unambiguous, extrinsic aids and rules of construction are inappropriate, and words should be given their common, everyday meaning. Cail v. Service Motors, Inc., 660 S.W.2d 814, 815 (Tex.1983); Minton, 545 S.W.2d at 445; Railroad Commission of Texas v. Miller, 434 S.W.2d 670, 672 (Tex.1968). A reviewing court, however, is not confined to the literal meaning of the words used but must consider that which is implied as well as that which is express. Citizen's Bank, 580 S.W.2d at 348; Austin Road Co. v. Evans, 499 S.W.2d 194, 203 (Tex.Civ.App.--Fort Worth 1973, writ ref'd n.r.e.). Since article 5536a is curative or remedial, Hill v. Forrest and Cotton, Inc., 555 S.W.2d 145, 149 (Tex.Civ.App.--Eastland 1977, writ ref'd n.r.e.), it should be given a comprehensive and liberal construction rather than a technical construction which would defeat the purpose motivating its enactment. City of Mason, 237 S.W.2d at 280. Finally, a statute should be given a reasonable interpretation to avoid injustice or absurd consequences. Gulf Insurance Co. v. James, 143 Tex. 424, 185 S.W.2d 966, 969 (1945); State Highway Department v. Gorham, 139 Tex. 361, 162 S.W.2d 934, 936 (1942); Alvarado v. Gonzales, 552 S.W.2d 539, 542 (Tex.Civ.App.--Corpus Christi 1977, no writ).

Applicability of Article 5536a

Applying the admonition in Hill, 555 S.W.2d at 149, that article 5536a is to be given "the most comprehensive and liberal construction possible," we conclude that the statute protects Fox & Jacobs. Although Fox & Jacobs clearly was not a registered or licensed engineer or architect and, consequently, not protected by section 1, see Ellerbe v. Otis Elevator Co., 618 S.W.2d 870, 872 (Tex.Civ.App.--Houston [1st Dist.] 1981, writ ref'd n.r.e.), appeal dismissed, 459 U.S. 802, 103 S.Ct. 24, 74 L.Ed.2d 39, reh'g denied, 459 U.S. 1059, 103 S.Ct. 478, 74 L.Ed.2d 625 (1982), the exclusion of engineers and architects in section 1 guides our construction of the phrase "any person performing or furnishing construction ... of any improvement" used in section 2. 1

The statute was intended to apply to litigation against architects, engineers, and others involved in designing, planning or inspecting improvements to real property, as distinguished from materialmen and suppliers and from tenants and owners who possess or control the property. See Thompson, When the Walls Come Tumbling Down--Article 5536(a): The Texas Architect and Engineer Statute of Limitation, Texas Trial Lawyers Forum (October-December 1983). Thus, the critical inquiry is whether Fox & Jacobs' role in constructing the pool was more analogous to that of a builder or to an owner or supplier.

Fox & Jacobs fashioned general guidelines and hired a professional land developer to designate the location of the pool and create a conceptual layout. Although the guidelines did not specify dimensions, Fox & Jacobs approved the approximate dimensions selected by the land planner. A professional engineer under contract with Fox & Jacobs designed the pool, and approval by Fox & Jacobs of the final specifications was an indispensable prerequisite to construction of the facility. Fox & Jacobs solicited bids and hired a contractor to perform the actual construction. Fox & Jacobs supervised the construction process, inspected the pool upon completion, and found the workmanship "satisfactory."

Thus, although Fox & Jacobs did not design or construct the pool and although Fox & Jacobs was the nominal owner of the pool at the time of construction, the summary judgment evidence establishes that Fox & Jacobs never intended to maintain possession or control of the facility. Fox & Jacobs intended to and did convey the pool to the Homeowners Association to attract prospective buyers to purchase property in the development. Thus, with respect to building the pool, Fox & Jacobs functioned not as an owner but as a builder or supervisor. By furnishing money, planners, engineers, and subcontractors for the construction of the pool, and by performing supervisory and inspection duties, Fox & Jacobs functioned as a "person performing or furnishing construction ... of ... [an] improvement."

Our holding is consistent with prior case law broadly construing the statute. In Hill v. Forrest and Cotton, Inc., 555 S.W.2d 145, 149 (Tex.Civ.App.--Eastland 1977, writ ref'd n.r.e.), the court held that registered engineers operating as a corporation were amenable to the benefits of the statute. In Ellerbe, 618 S.W.2d at...

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