dissenting.
I respectfully dissent, and point out that this is an appeal from a summary judgment in which the trial court held that the statute of limitations provided for in TEX. REV.CIV.STAT.ANN. art. 5536a (Vernon Supp.1985) was applicable to a residential developer.
Reduced to their minimum, the facts reveal that Fox & Jacobs constructed a residential development called Greenwood Hills. The development included a community swimming pool, built in 1961, and designed by an independent planner along guidelines furnished by Fox & Jacobs. Fox & Jacobs had previously constructed other residential developments with swimming pools which were conveyed at no cost to the Homeowners’ Association in those developments. Fox & Jacobs asserted in the trial court and on appeal that it did not participate in the construction of the pool, but did supervise and inspect its construction. It did, however, convey the pool to the Homeowner’s Association at no cost. Some eighteen years later, McCulloch dived into the shallow end of the pool and severed his spinal cord.
McCulloch sued Fox & Jacobs for negligence and in strict liability. The trial court, interpreting the statute of limita*926tions contained in TEX.REV.CIV.STAT. ANN. art. 5536a (Vernon’s Supp.1985) as applying to Fox & Jacobs, granted summary judgment. Properly viewed, the issue before this court is whether the statute is to be applied to residential developers who are sued in strict liability for conveying a defective product. I would hold that it is not to be so applied.
The statute of limitations provides:
Art. 5536a. Architects, engineers and persons performing or furnishing construction or repair of improvement to real property
Section 1. There shall be commenced and prosecuted within ten years after the substantial completion of any improvement to real property or the commencement of operation of any equipment attached to real property, and not afterward, all actions or suits in court for damages for any injury, damages or loss to property, real or personal, or for any injury to a person, or for wrongful death, arising out of the defective or unsafe condition of any such real property or any equipment or improvement attached to such real property, for contribution or indemnity for damages sustained on account of such injury, damage, loss or death 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; provided, however, if the claim for damages, contribution or indemnity has been presented in writing to the registered or licensed engineer or architect performing such services within the ten-year period of limitation, said period shall be extended to include two years from the time such notice is presented.
Sec. 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, damages, or loss to property, real or personal, or for any injury to a person, or for wrongful death, or for contribution or indemnity for damages sustained on account of such injury, damage, loss, or death arising out of the defective or unsafe condition of any such real property or any deficiency in the construction or repair of any improvements on such real property against any person performing or furnishing construction or repair of any such improvement; provided, however, if the claim for damages, contribution or indemnity has been presented in writing to the person performing such services within the ten-year period of limitation, said period shall be extended to include two years from the time such notice in writing is presented, or if said injury, damage, loss, or death occurs during the tenth year, all actions or suits in court may be brought within two years from the date of such injury, damage, loss, or death; and provided further, however, this section shall not apply and will not operate as a bar to an action or suit in court (a) on a written warranty, guaranty, or other contract which expressly is effective for a period in excess of the period herein prescribed; (b) against persons in actual possession or control of the real property as owner, tenant, or otherwise at the time the injury, damage, loss, or death occurs; (c) based on willful misconduct or fraudulent concealment in connection with the performing or furnishing of such construction or repair. Nothing in this section shall be construed as extending or affecting the period prescribed for the bringing of any action under Articles 5526, 5527, and 5529, Revised Civil Statutes of Texas, 1925, or any other law of this state.
We are bound by the clear language of the statute. Railroad Commission of Texas v. Miller, 434 S.W.2d 670, 672 (Tex.1968). Neither party asserts that the statute is ambiguous; thus, the rules of statutory construction of an ambiguous statute are inappropriate. Call v. Service Motors, *927Inc., 660 S.W.2d 814, 815 (Tex.1983). Therefore, we must determine its intent from its language and not elsewhere. Simmons v. Amim, 110 Tex. 309, 220 S.W. 66, 70 (1920). In short, we look to the entire statute in determining the legislature’s intent. Taylor v. Firemen’s & Policemen’s Civil Service Commission of the City of Lubbock, 616 S.W.2d 187, 190 (Tex.1981).
Confining ourselves to the statutory language, we should first observe that the heading of the statute plainly applies to “architects, engineers and persons performing or furnishing construction or repair of improvement to real property.” The Houston Court of Civil Appeals [1st Dist.] has held that the statute is limited to registered architects and engineers, and to any person performing or furnishing construction or repair of any improvements on real property. Ellerbe v. Otis Elevator Company, 618 S.W.2d 870, 872 (Tex.Civ.App.—Houston [1st Dist.] 1981, writ ref’d n.r.e.), appeal dism’d, 459 U.S. 802, 103 S.Ct. 24, 74 L.Ed.2d 39 reh’d denied, 459 U.S. 1059, 103 S.Ct. 478, 74 L.Ed.2d 625 (1982).
The body of the statute does not expand on the scope of what is contained in the title. It simply says that suits against architects, engineers, or any person performing or furnishing the design, planning, construction, or inspection of the improvement must be brought within ten years after the substantial completion of any improvement. It is clear from the statute, and I would hold that a cause of action must arise out of the design, planning, inspection, construction, or repair of an improvement to real property.
The record shows, and the majority agrees, that Fox & Jacobs is not a registered architect or engineer. Therefore, section 1 of the statute does not apply to Fox & Jacobs. Section 2 of the statute clearly applies to persons “performing or furnishing construction or repair” of the swimming pool. Because this is a summary judgment case, the court must first decide if there is no fact issue as to whether Fox & Jacobs performed or furnished the construction of the swimming pool. (There is no allegation that it was repaired.) Furthermore, even if the majority were correct that Fox & Jacobs furnished the construction of the pool, the court must then determine if Fox & Jacobs is being sued for furnishing the construction of the pool. I would hold that there are fact issues as to whether Fox & Jacobs furnished construction of the pool and that, even if there were no fact issues on that question, McCul-loch’s cause of action is not barred by the statute because he is not suing Fox & Jacobs for furnishing the construction of the pool, but rather for conveying a pool which was not fit for the purposes for which it was intended.
As to whether Fox & Jacobs furnished the construction of the pool, there must be no disputed fact issues. But the record reveals a fact issue on this point. There are affidavits and deposition testimony by Fox & Jacobs that it did not construct the pool. There is a motion for summary judgment in which Fox & Jacobs states it “had nothing to do with the construction of the swimming pool.” Moreover, Fox & Jacobs contends in a counterpoint that the pool was constructed by an independent contractor. I would hold that by its own motion, testimony, affidavits, and judicial admissions, Fox & Jacobs has raised a fact question precluding summary judgment.
Even if Fox & Jacobs furnished the construction of the pool, I would hold that Fox & Jacobs is not insulated from liability by TEX.REV.CIV.STAT.ANN. art. 5536a (Vernon Supp.1985) because it was not sued by McCulloch for furnishing the construction of the swimming pool, but rather for conveying a defective pool. Section 2 of the statute is limited to persons performing or furnishing construction of any improvements on real property. Ellerbe, 618 S.W.2d at 872. The question, therefore, is whether McCulloch’s causes of action arise out of Fox & Jacobs’ furnishing the construction of the pool. The pleadings reveal that Fox & Jacobs was sued for negligently conveying a pool without adequate warning *928and for conveying a pool that was not fit for the purposes for which it was intended. In each of these causes of action, Fox & Jacobs could incur liability without regard to who may have constructed the pool. Its alleged liability is similar to middlemen in products liability cases. Cf. McKisson v. Sales Affiliates, Inc., 416 S.W.2d 787 (Tex.1967).
It may be argued that Fox & Jacobs cannot be liable under McCulloch’s theory of recovery for strict liability because it did not sell the pool and is not, therefore, a seller as that term is used in the Restatement (Second) of Torts § 402A (1965). The Restatement sets forth the liability of a seller as follows:
§ 402A. Special Liability of Seller of Product for Physical Harm to User or Consumer
(1) One who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm thereby caused to the ultimate user or consumer, or to his property, if
(a) the seller is engaged in the business of selling such a product, and
(b) it is expected to and does reach the user or consumer without substantial change in the condition in which it is sold.
(2) The rule stated in Subsection (1) applies although
(a) the seller has exercised all possible care in the preparation and sale of his product, and
(b) the user or consumer has not bought the product from or entered into any contractual relation with the seller.
While at first blush it would appear that a sale must take place for strict liability to commence, neither the comment to the Restatement (Second) of Torts nor case law support this analysis. Comment f points out the following:
The rule stated in this Section applies to any person engaged in the business of selling products for use or consumption. It therefore applies to any manufacturer of such a product, to any wholesale or retail dealer or distributor, and to the operator of a restaurant. It is not necessary that the seller be engaged solely in the business of selling such products. Thus the rule applies to the owner of a motion picture theater who sells popcorn or ice cream, either for consumption on the premises or in packages to be taken home.
The rule does not, however, apply to the occasional seller of food or other such products who is not engaged in that activity as a part of his business. Thus it does not apply to the housewife who, on one occasion, sells to her neighbor a jar of jam or a pound of sugar, (emphasis added).
Cases interpreting section 402A have held that it applies to one who does not sell a product but who does introduce it into the stream of commerce or participates in any stage of the distribution of goods. In McKisson, 416 S.W.2d 787, a defective hair preparation was given as a sample to Mrs. McKisson, and the distributor, Sales Affiliates Inc., was held liable for strict liability in tort. The supreme court held that one who delivers for advertising purposes a sample “with the expectation of profiting therefrom through future sales is in the same position as one who sells the product.” 416 S.W.2d at 792.
In our case, Fox & Jacobs Inc. delivered the swimming pool as an advertising promotion to sell houses in the development. I would hold that there is no difference for strict liability purposes between such a delivery and the delivery of defective hair preparation.
In Armstrong Rubber Company v. Urquidez, 570 S.W.2d 374 (Tex.1978), Armstrong Rubber Company supplied tires in a bailment for mutual benefit to a test-driving facility. Urquidez was killed as a result of a defective tire. The supreme court held that a sale of the tire was not necessary for strict liability to apply. It did hold that the defendant must be engaged in introducing the product into the channels of commerce. In distinguishing other juris*929dictions which extended strict liability to bailment transactions, the court noted that the bailments arose in transactions “essentially commercial in character.” Armstrong Rubber Company, 570 S.W.2d at 377. Some of the cases cited were Whitfield v. Cooper, 30 Conn.Supp. 47, 298 A.2d 50 (1972); Nawakowski v. Hoppe Tire Co., 39 Ill.App.3d 155, 349 N.E.2d 578 (1976); Fulbright v. Klamath Gas Co., 271 Or. 449, 533 P.2d 316 (1975). The facts show that the conveyance of the swimming pool by Fox & Jacobs was essentially commercial in character. I would hold that McCul-loch has stated a cause of action in strict liability notwithstanding the fact that Fox & Jacobs did not sell the pool.
The application of the doctrine of strict liability to Fox & Jacobs is further justified by the reasons for invoking the doctrine in the first place. First, it provides maximum protection for the user; and second, the marketing enterprise is in a better position to insure against liability by adding the cost of insurance to the price of the product. See Barth v. B.F. Goodrich Tire Company, 265 Cal.App.2d 228, 71 Cal.Rptr. 306, 321 (1968).
I would hold that article 5536a does not apply to a cause of action in strict liability that is unrelated to the design, construction, or inspection of improvements to real property.
The majority goes to great effort to try to show that Fox & Jacobs acted more like a builder of a pool than an owner or supplier. The effort is wasted for several reasons. As stated above, Fox & Jacobs eschews any connection to the building of the swimming pool; it is not being sued for furnishing the construction of the pool; and finally, because this is a summary judgment case it is immaterial whether Fox & Jacobs acted more as a builder than as an owner. There must be no fact issue on how Fox & Jacobs acted. Reading the majority opinion one would think that the jury found against McCulloch on this issue. But there was no trial in this case because summary judgment was rendered against McCulloch.
I feel compelled to point out that the cases cited by the majority for its proposition that the statute is applicable are not on point. In Ellerbe, the court held that a person who builds an elevator to be installed in an office building is a “person performing or furnishing the construction of the elevator.” Ellerbe, 618 S.W.2d at 872. In the instant case, Fox & Jacobs did not build the pool. In Hill v. Forrest and Cotton, Inc., 555 S.W.2d 145 (Tex.Civ.App.—Eastland 1977, writ ref d n.r.e.), the court rejected Hill’s contention that because Forrest and Cotton was a corporation, it was not a registered engineer within the meaning of the statute. Here Fox & Jacobs are not registered engineers. In Skeen v. Monsanto Co., 569 F.Supp. 232 (S.D.Tex.1983), the court dealt with a suit against a registered engineer for defective design. It was not a suit against a person furnishing construction, much less a suit for strict liability in tort. In Brown v. M. W. Kellogg Co., 743 F.2d 265 (5th Cir.1984), the suit was against registered engineers for the sale of technology or concepts. There the court held that the ideas or designs of engineers are what makes their service valuable. The instant case is not a suit against registered engineers for the sale of their ideas, but against a developer who conveys a defective product.
Because I would sustain McCulloch’s second point of error, there is no need to address his points on the constitutionality of the statute.
HOWELL, J., joins the dissent.