UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 93-7677
JOHN G. SONNIER and
HOPE SONNIER,
Plaintiffs-Appellants,
VERSUS
CHISHOLM-RYDER COMPANY, INC., ET AL.,
Defendants,
CHISOLM-RYDER COMPANY, INC.,
UNIPUNCH PRODUCTS, INC.,
3800 HIGHLAND, INC. and PREMAX
LIMITED PARTNERSHIP OF NIAGARA FALLS,
Defendants-Appellees.
Appeals from the United States District Court
for the Southern District of Texas
November 14, 1995
Before JONES and DeMOSS, Circuit Judges, and BUNTON1, District
Judge.
DeMOSS, Circuit Judge:
This products liability case involves an interpretation of the
Texas statute of repose, TEX. CIV. PRAC. & REM. CODE § 16.009. We
previously certified a question in this case to the Texas Supreme
Court. Sonnier v. Chisholm-Ryder Co., Inc., 47 F.3d 133 (5th Cir.
1
District Judge of the Western District of Texas, sitting by
designation.
1995). The Texas Supreme Court has answered our certified
question, Sonnier v. Chisholm-Ryder Co., Inc., 1995 WL 407397
(Tex. July 12, 1995), and we now apply their ruling in the
disposition of this appeal. Finding that the district court erred
in its judgment that John and Hope Sonnier (Plaintiffs) take
nothing against Chisholm-Rider Company, Inc., et al., (Defendants),
we reverse the judgment of the district court.
BACKGROUND2
Appellant John G. Sonnier, plaintiff below, was
injured while he was a Maintenance Supervisor at the
Texas Department of Correction (TDC). Sonnier's hand and
lower arm were severed as he inspected a tomato chopper
at a cannery on the Ramsey III Unit of the TDC in
Brazoria County, Texas. The tomato chopper was
manufactured by Chisholm-Ryder Company, Inc. and
purchased by the TDC in 1965. First installed at the
Sugarland Central Unit, it was transferred to Ramsey III
in 1985.
In 1991, a year after the accident, Sonnier and his
wife filed a product liability suit against the
manufacturer and its alleged successors in liability.
The defendants raised the statute of repose, Tex. Civ.
Prac. & Rem. Code, § 16.009, as a defense to the
Sonnier's claims. The district court first tried the
statute of repose defense to a jury. In their verdict,
the jury found that the tomato chopper was an
"improvement" to real property at the Central Sugarland
Unit. Having denied the plaintiff's motion for judgment
as a matter of law, the trial court entered judgment for
the defendants in September, 1993.
Sonnier, 47 F.3d at 135 (Jones, J., dissenting) (footnote omitted).
Sonnier appealed to this Court and we determined that a proper
disposition of the case required us to answer an unsettled question
2
Detailed statements of the facts of this case may be found at
Sonnier, 47 F.3d at 135 (5th Cir. 1995) (Jones, J., dissenting) and
Sonnier, 1995 WL 407397 *1.
2
of Texas law. Therefore, we certified the following question to
the Texas Supreme Court:
Whether a person or entity that manufactures a tomato
chopping machine "constructs . . . an improvement to real
property" for the purpose of qualifying for the
protection of the Statute of Repose, Tex. Civ. Pract. &
Rem. Code § 16.009 when that machine is originally
installed by another party on real estate, then removed
and reinstalled by such other party on real estate at a
different location.
Sonnier, 47 F.3d at 134.
TEXAS SUPREME COURT ANSWER
The Texas Supreme Court answered our certified question in two
parts. The court first considered "whether a manufacturer of
personalty which becomes an improvement to real property
`constructs' an `improvement to real property'". Sonnier, 1995 WL
407397 *3. Next, the court considered whether "when personalty is
installed and used on one piece of land for over ten years, and
then is removed and reinstalled on another property by the initial
purchaser, whether the ten-year repose period starts again upon the
substantial completion of the personalty's reinstallation." Id.
The court answered the first question in the negative. They
held that only one who "alter[s] realty by constructing additions
or annexing personalty to it" benefits from the statute of repose.
Id. at *8. One who does "no more than manufacture personalty that
is later transformed by third parties into an improvement" is not
protected by the statute of repose. Id. The court went on to say
that "Chisholm is only the manufacturer of personalty. As such it
cannot claim the protection of section 16.009 of the Texas Civil
3
Practice and Remedies Code because it did not `construct . . . an
improvement to real property.'" Id. at *9.
The court likewise answered the second question in the
negative. "The statute of repose governing the annexation at Sugar
Land is not revivified by any activity occurring at another
construction site. The subsequent annexation at Ramsey created a
new ten-year repose period protecting those who annexed the
personalty to the realty there . . . ." Id.
CONCLUSION
Chisolm did not "construct . . . an improvement to real
property". Therefore, it does not receive the protection of Texas'
statute of repose. In addition, when the tomato chopper was moved
to Ramsey III in 1985, a new repose period began to run. Because
Chisholm could not be protected by the statute of repose, the
judgment of the district court is REVERSED and the case is remanded
to the district court for proceedings consistent with this opinion
and the opinion of the Supreme Court of Texas.
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