Colan W. McRae v. KONE, Inc. F/K/A Montgomery KONE, Inc.

11th Court of Appeals 11th Court of Appeals Eastland, Texas Opinion Colan W. McRae Appellant Vs. No. 11-01-00335-CV B Appeal from Dallas County KONE, Inc. f/k/a Montgomery KONE, Inc. Appellee Colan W. McRae appeals the trial court=s summary judgment in favor of KONE, Inc. f/k/a Montgomery KONE, Inc. (KONE). In two issues on appeal, appellant argues that: (1) the trial court erred in holding that the statute of repose in TEX. CIV. PRAC. & REM. CODE ANN. ' 16.009 (Vernon 1986) barred appellant=s strict liability claims; and (2) the trial court=s application of Section 16.009 violated the Aopen courts@ provision of the Texas Constitution. We affirm. Background Facts KONE manufactured and installed a freight elevator in Southwest Center Mall in 1975. In October 1997, appellant was delivering packages to the Sam Goody store in Southwest Center Mall. Appellant asked a mall employee how to operate the freight elevator, and the employee briefly told him. While trying to close the elevator=s manually-closing doors, appellant sustained injuries to his left hand. Standard of Review A trial court must grant a motion for summary judgment if the moving party establishes that no genuine issue of material fact exists and that the party is entitled to judgment as a matter of law. TEX.R.CIV.P. 166a(c); Lear Siegler, Inc. v. Perez, 819 S.W.2d 470, 471 (Tex.1991). A trial court properly grants summary judgment for a defendant if he establishes all the elements of an affirmative defense. American Tobacco Company, Inc. v. Grinnell, 951 S.W.2d 420, 425 (Tex.1997). Once the movant establishes his right to a summary judgment, the non-movant must come forward with evidence or law that precludes summary judgment. City of Houston v. Clear Creek Basin Authority, 589 S.W.2d 671, 678-79 (Tex.1979). When reviewing a summary judgment, the appellate court takes as true evidence favorable to the non-movant. American Tobacco Company, Inc. v. Grinnell, supra at 425; Nixon v. Mr. Property Management Company, Inc., 690 S.W.2d 546, 548-49 (Tex.1985). Section 16.009 Section 16.009 is a statute of repose. Fuentes v. Continental Conveyor & Equipment Company, Inc., 63 S.W.3d 518, 520 (Tex.App. B Eastland 2001, pet=n den=d). It provides in part: (a) A claimant must bring suit for damages for [personal injury and other injuries] against a person who constructs or repairs an improvement to real property not later than 10 years after the substantial completion of the improvement in an action arising out of a defective or unsafe condition of the real property or a deficiency in the construction or repair of the improvement. The statute, however, does not bar a claim Aagainst a person in actual possession or control of the real property at the time that the damage, injury, or death occurs.@ Section 16.009(e)(2). Appellant argues that KONE was in actual possession or control of the elevator when appellant was hurt because KONE and Southwest Center Mall entered into a service agreement in 1995 that required KONE to provide regular maintenance and to inspect the elevator on behalf of the premises owner, Southwest Center Mall. The purpose of Section 16.009 is to protect defendants from having to defend stale claims. Hernandez v. Koch Machinery Company, 16 S.W.3d 48, 52 (Tex.App. B Houston [1st Dist.] 2000, pet=n den=d). KONE entered into the service agreement 20 years after it installed the elevator. During that period, KONE had no possession or control of the elevator, and the service agreement did not give KONE actual possession or control in 1995. The agreement provided that Southwest Center Mall kept control of the elevator: [Southwest Center Mall] shall be solely responsible for supervising the use of the equipment, and [Southwest Center Mall] shall provide whatever attendant personnel, warning signs and other control and cautions that may be required or desirable to insure safe operation. [Southwest Center Mall] shall at all times be solely liable for the operation of the equipment. Under the service agreement, KONE had no duty or right to modify or repair the elevator=s gates and doors. The service agreement stated in pertinent part: [KONE] will regular (sic) and systematically examine, adjust, lubricate, as required, and if conditions warrant unless specifically excluded elsewhere in this agreement, repair or replace all elevator components....[KONE] assumes no responsibility for the following items of elevator equipment which are not included in this contract: [r]efinishing, repairing or replacement of car enclosure, fan, gates and/or doors...door frames and sills. (Emphasis added) Southwest Center Mall had actual possession and control of the real property that included the elevator, not KONE. Southwest Center Mall specifically kept responsibility for and control of the elevator doors that were the alleged source of appellant=s injury. Appellant=s first issue is overruled. Appellant argues in his second and final issue that affording KONE protection of Section 16.009 is a violation of the Aopen courts@ provision of the Texas Constitution. TEX. CONST. art. I, ' 13. The Texas Aopen courts@ provision provides that: AAll courts shall be open, and every person for an injury done him, in his lands, goods, person or reputation, shall have remedy by due course of law.@ Article I, section 13. A party challenging a statute on Aopen courts@ grounds must generally satisfy two criteria: (1) that the litigant has a cognizable common-law cause of action that is being restricted; and (2) that the restriction is unreasonable or arbitrary when balanced against the purpose and basis of the particular statute in question. Sax v. Votteler, 648 S.W.2d 661, 665 (Tex.1983). Appellant has not provided an analysis of what cognizable common-law cause of action was restricted by Section 16.009 or how that restriction was arbitrary or unreasonable when balanced against the statute=s purposes. Appellant brought common-law negligence claims against KONE and the premises owner, Southwest Center Mall. The trial court granted summary judgment for KONE and Southwest Center Mall on appellant=s negligence claims on grounds other than Section 16.009, and appellant did not appeal that judgment. We note also that a number of courts, presented with a similar constitutional challenge, have concluded that Section 16.009 and its predecessor did not violate the Texas Aopen courts@ provision. Barnes v. J.W. Bateson Company, Inc., 755 S.W.2d 518, 522-23 (Tex.App. B Fort Worth 1988, no writ); McCulloch v. Fox & Jacobs, Inc., 696 S.W.2d 918, 923-24 (Tex.App. B Dallas 1985, writ ref=d n.r.e.); Sowders v. M.W. Kellogg Company, 663 S.W.2d 644, 648 (Tex.App. B Houston [1st Dist.] 1983, writ ref=d n.r.e.); see Trinity River Authority v. URS Consultants, Inc.-Texas, 889 S.W.2d 259, 261-63 (Tex.1994)(holding that TEX. CIV. PRAC. & REM. CODE ANN. ' 16.008 (Vernon Supp. 2002), the companion statute of repose for claims against registered or licensed architects or engineers, did not violate the Aopens courts@ provision). Appellant=s second issue is overruled. This Court=s Ruling The judgment of the trial court is affirmed. TERRY McCALL JUSTICE August 8, 2002 Do not publish. See TEX.R.APP.P. 47.3(b). Panel consists of: Arnot, C.J., and Wright, J., and McCall, J.