dissenting.
In my judgment ORS 12.135(1) bars plaintiffs’ ause of action regardless of whether it sounds in tort r in contract. ORS 12.135(1) provides:
"An action to recover damages for injuries to a person or to property arising from another person having performed the construction, alteration or repair of any improvement to real property or the supervision or inspection thereof, or from such other person having furnished the design, planning, surveying, architectural or engineering services for such improvement, shall be commenced within two years from the date of such injury to the person or property; provided that such action shall be commenced within 10 years from substantial completion of such construction, alteration or repair of the improvement to real property.”
The majority, in holding that ORS 12.135(1) applies only to tort actions, relies on our opinion in Portland Hous. Auth. v. Ash. Nat'l 36 Or App 391, 584 P2d 776 978). There we construed ORS 12.135(1) as applying lly to tort actions arising out of performance of irvices in connection with improvements to real property, and we concluded that contract actions arising it of such services are governed by the general stat:e of limitations applicable to contract actions. (ORS 1.080(1)).
I joined in Portland Hous. Auth., but now conclude ¿at it was incorrect and should be overruled.
*114ORS 12.135(1) was enacted in 1971. Oregon Laws 1971, ch 664, §§ 2, 3, and 4.1 do not find the legislative history enlightening. However, I do find persuasive the proposition that, if the statute does not apply to contract actions, it is meaningless, and that "[a] legislative act is not to be deemed meaningless.” Standard Ins. Co. v. Tax Com., 230 Or 461, 468, 370 P2d 608 (1962).
ORS 12.135(1) establishes a two-year limitation prior to the commencement of the actions to which it refers. Prior to the enactment of ORS 12.135, tort actions arising out of real property improvement services were already subject to a two-year limitation period under the general statute of limitations applicable to torts (ORS 12.110(D).1 ORS 12.135(1) also provides that no action of the kind to which it refers shall be commenced after ten years from the date of substantial completion of the services giving rise to the action. If ORS 12.135(1) were intended to apply only to tort actions, then the ten-year "ultimate repose” provision it contains would be duplicative of ORS 12.115(1), which provides that no action for negligent injury to persons or property may be commenced "more than ten years from the act or omission complained of.” Accordingly, the only change to existing law which ORS 12.135(1) could have achieved was the reduction of the limitation period for contract actions arising out of real property improvement services from the six years prescribed by ORS 12.080(1) to the two-year period ORS 12.135(1) itself establishes.
Because ORS 12.135(1) would be meaningless if it did not apply to contract actions arising out of real *115property improvement services, I construe the section is having that application if the statutory language vill support such a construction. We stated in Portland Hous. Auth.:
"We observe at the outset that the language utilized in ORS 12.135(1) contemplates tort actions. Language such as 'damages for injuries to a person or to property’ and 'such injury to the person or property’ is tort language — not contract. The words 'contract’ and 'breach’ are conspicuously absent.” 36 Or App at 394.
We there read too much into the statutory language, ’ersons and property can of course be injured by nadequate performance of contracts as well as by orts — and it is also noteworthy that ORS 12.135, mlike ORS 12.110(1) and ORS 12.115(1), contains no anguage which specifically exludes contract actions.
I conclude that the two-year limitation period of )RS 12.135(1) is applicable to the action here regard-ess of whether it is denominated contract or tort, and hat the motion for summary judgment was correctly dlowed.
For the foregoing reasons I respectfully dissent.
ORS 12.080(3) now provides a six-year limitation period for
"[ajn action for waste or trespass upon or for interference with or injury to any interest of another in real property, excepting those mentioned in* * * ORS 12.135 * * (Emphasis supplied.)
The emphasized language was added by Oregon Laws 1973, ch 363, § 11. Thus, at the time of the enactment of ORS 12.135 in 1971, all actions for tortious injuries to property, other than for waste or trespass, were already subject to the two-year limitation period of ORS 12.110(1).