Opinion
No. 05-10-00112-CV
Opinion Filed June 21, 2011.
On Appeal from the 95th Judicial District Court, Dallas County, Texas, Trial Court Cause No. DC-08-05481-D.
Before Justices O'NEILL, FRANCIS, and MYERS.
MEMORANDUM OPINION
Appellant Emily Lawrence appeals a summary judgment dismissing her claims against appellee Bottling Group, L.L.C. d/b/a Pepsi Bottling Group. She asserts the trial court erred in concluding her claims against Pepsi Bottling were barred by limitations because the claims were revived under the provisions of section 33.004 of the civil practice and remedies code. For the following reasons, we affirm the trial court's judgment.
While Lawrence was working at Wal-Mart, she slipped and fell on water that had leaked from a Pepsi Cola vending machine. As a result, she suffered injuries. Lawrence filed a workers' compensation claim with Wal-Mart's workers' compensation carrier and received benefits. Later, a few days before limitations was to expire, she filed suit against Wal-Mart. Wal-Mart answered and alleged, among other things, Lawrence's claims were barred by the exclusive remedy provisions of the workers' compensation act. Wal-Mart also filed a third party petition against Pepsi Bottling asserting contractual indemnity pursuant to its vendor and supplier agreement with Pepsi Bottling. It also alleged a claim for contribution based on Pepsi Bottling's negligence.
Wal-Mart subsequently filed a motion for summary judgment based on the exclusive remedy provisions of the workers' compensation act. The trial court granted the motion and rendered judgment that Lawrence take-nothing from Wal-Mart. Wal-Mart then nonsuited its claims against Pepsi Bottling and filed a motion to sever. The trial court severed Lawrence's claims against Wal-Mart from the instant case making Wal-Mart's judgment final.
Meanwhile, after limitations had expired, Lawrence filed a "First Supplemental Petition" naming Pepsi Bottling as a defendant. On the same date, she filed a "Motion for Leave to Join Responsible Third Party." According to Lawrence, she was permitted to join Pepsi Bottling outside of limitations based on provisions of the proportionate responsibility statute. Pepsi Bottling disagreed and filed a motion for summary judgment based on limitations. The trial court granted the motion and dismissed Lawrence's claims. Lawrence appeals.
It is undisputed that Lawrence filed her suit against Pepsi Bottling after the statute of limitations expired. To show limitations does not bar her claims, Lawrence relies entirely on a revival provision found in section 33.004 of the civil practice and remedies code. Tex. Civ. Prac. Rem. Code Ann. § 33.004 (West 2008). Section 33.004(a) provides "a defendant may seek to designate a person as a responsible as a third party by filing a motion for leave to designate that person as a responsible third party." Tex. Civ. Prac. Rem. Code Ann. § 33.004(a) (West 2008). If a person is designated under this section, a claimant is not barred from seeking to join that person, even though such joinder would otherwise be barred by limitations, if the claimant seeks to join that person not later than 60 days after that person has been designated as a responsible third party. Tex. Code Crim. Proc. Ann. art. 33.004(e) (West 2008). If a person is designated as a responsible third party, he is included amongst the persons in which the jury must apportion responsibility. See Tex. Code Crim. Proc. Ann. art. 33.003 (West 2008).
The issue before us is whether Pepsi Bottling was effectively designated as a responsible third party for purposes of article 33.004 when Wal-Mart filed a third party petition against Pepsi Bottling. This is a question of statutory construction, which we review de novo. MCI Sales and Serv., Inc. v. Hinton, 329 S.W.3d 475, 499 (Tex. 2010). In construing a statute, our primary objective is to give effect to the legislature's intent. Galbraith Eng'g Consultants, Inc. v. Pochucha, 290 S.W.3d 863, 867 (Tex. 2009). The plain meaning of the text is the best expression of legislative intent unless a different meaning is apparent from the context or the plain meaning leads to absurd results. See City of Rockwall v. Hughes, 246 S.W.3d 621, 625-26 (Tex. 2008); see also Fitzgerald v. Advanced Spine Fixation Sys., Inc., 996 S.W.2d 864, 866 (Tex. 1999) ("[I]t is a fair assumption that the Legislature tries to say what it means, and therefore the words it chooses should be the surest guide to legislative intent.") If statutory language is susceptible to more than one reasonable interpretation, we look beyond its language for clues to the Legislature's intended meaning. In re Smith, 333 S.W.3d 582, 586 (Tex. 2011).
Section 33.004 states expressly that a claim against a person that is otherwise barred by limitations is revived only if that person is designated as a responsible third party under that section. See Ruiz v. Guerra, 293 S.W.3d 706, 714 (Tex. App.-San Antonio 2009, no pet.). Section 33.004 provides the specific manner in which a person is so designated. Id. Specifically, a person is designated if a defendant files a motion for leave to designate and the trial court grants the motion designating the named person. Id. Here, Wal-Mart did not file a motion to designate Pepsi Bottling as a responsible third party under section 33.004 and the trial court did not enter an order designating Pepsi Bottling as a responsible third party. Thus, under the plain text of the statute, Lawrence's claim against Pepsi Bottling was not revived. Id.
Lawrence nevertheless asserts we should not apply the plain text of the statute because to do so would result in an "improper consequence." In asserting we can ignore the plain text of the statute, she relies on Galbraith Engineering Consultants, Inc. v. Pochucha, 290 S.W.3d 863 (Tex. 2009). In Galbraith, the plaintiff attempted to utilize section 33.004 to revive a claim that had become time barred by a statute of repose. In determining whether the legislature intended the term limitations to include statutes of repose, the Supreme Court noted that the legislature has used the term "limitations" to refer both narrowly to statutes of limitations and more broadly to include statues of repose. Id. at 867. The Court stated when the plain language of a statute does not convey the legislature's apparent intent, we may resort to additional construction aids. Id. at 867-68. It cautioned that use of such aids is not appropriate unless the language used in the statute is unclear. Id. at n. 5. Further, aides of construction cannot override a statute's plain words. Id. The Court ultimately concluded the legislature intended the term "limitations" to refer only to statutes of limitations.
Here, Lawrence asserts Galbraith dictates we look to the overall purpose of section 33.004 instead of to its plain language. To the extent she asserts Galbraith allows this court to ignore statutory language to implement perceived legislative intent, she misconstrues Galbraith. The court in that case made clear that it was only resorting to additional construction aids because the term limitations had two established meanings. In this case, on the other hand, the plain terms are not unclear or ambiguous. A third party petition is not a motion for leave to designate. To accept Lawrence's "construction" of the statute, we would be required to ignore the plain text of the statute. Gailbrath does not authorize this result.
Lawrence specifically states " Galbraith is a very good example of how the courts should look beyond the plain meaning of a statute, even when the language is clear and unambiguous." This statement is not supported by the Galbraith opinion. See Gailbraith, 290 S.W.3d 863, 867 (Tex. 2009).
Lawrence also asserts we should not apply the plain text because to do so would lead to absurd results. She contends her ability to sue Pepsi Bottling outside of limitations should not depend upon the vehicle Wal-Mart chose to make Pepsi Bottling responsible for Lawrence's injuries. According to Galbraith, it is absurd that the viability of her claim against Pepsi Bottling is dependant upon the "technical title" of the document filed by Wal-Mart. However, the difference between a third party petition and a motion for leave to designate is not merely in the title. They are distinct pleadings, have different legal effects, and serve different purposes. We will not speculate as to why the legislature chose not to provide for designation of a responsible third party by filing a third party petition. Finally, Lawrence complains about the potential of collusion between defendants because a defendant can determine whether the revival provision will apply by filing either a motion to designate responsible third party or a third party petition. However, to the extent the statute allows for collusion, that is an argument for the legislature. By limiting the revival provisions to cases in which a motion to designate is filed and granted, the legislature has struck a balance between the interests of defendants sued within limitations, the interests of plaintiffs, and the interests of persons who were otherwise protected by a statute of limitations. See generally Kimbrell v. Molinet, 288 S.W.3d 464, 469-71 (Tex. App.-San Antonio 2008) (Simmons J. concurring) (discussing Legislature's balancing of defendant's and plaintiff's interests), aff'd, ___ S.W.3d ___, 2011 WL 182230 (Tex. 2011). It is not for this Court to alter this balance. See Molinet v. Kimbrell, 2011 WL 182230, ___ S.W.3d ___ (Tex. 2011). Because Pepsi Bottling was not designated as a responsible third party in accordance with section 33.004, the revival provisions do not apply and Lawrence's claims against Pepsi Bottling are barred by limitations. Therefore, we affirm the trial court's judgment.
Further, to accept Lawrence's construction would lead to uncertainty. Certain deadlines in the statute run from the date the trial court rules on the defendant's motion to designate. See Tex. Code Crim. Proc. Ann. art. 33.004(e) (West 2008). A third party petition does not ask the trial court to make any such designation.
Nor do we agree with Lawrence's perception of the equities in this case. First, it was Lawrence's own failure to sue Pepsi Bottling within limitations that caused her claim to become time barred. Further, when she did sue Pepsi Bottling, Pepsi Bottling was protected by limitations. The only reason the revival provision may have operated to benefit Lawrence in this case was to protect Wal-Mart from having to bear Pepsi Bottling's share of Lawrence's loss. Since Wal-Mart is not liable in this case, Wal-Mart does not need the statute's protection.