Dallas Fifth Court of Appeals Affirms Summary Judgment in Favor of Mayer Client in Construction Dispute Regarding Statute of Repose
The Dallas Fifth Court of Appeals recently affirmed a summary judgment in favor of a national truss supplier firm client in a lawsuit where the parties filed competing motions for summary judgment regarding the applicable ten-year statute of repose.
The statute of repose requires a claimant to bring suit for damages against a person who constructs or repairs an improvement to real property not later than 10 years after the date of substantial completion of a construction project.
The case involved a multi-family condominium project. The Certificate of Substantial Completion stated that the work performed under the contract had been reviewed and was substantially completed as of the date of commencement, December 9, 2008, and that the developer accepted the work as substantially complete and assumed full possession on December 12, 2008. The Plaintiff presented its claim for damages under Civil Practice and Remedies Code Section 16.009(c) on December 28, 2018 and filed suit on December 4, 2019—more than 10 years after the date of substantial completion. Plaintiff argued that its Section 16.009(c) letter extended the limitations period for two additional years, such that its suit was timely. Plaintiff also contended that two additional signatures on the certificate of substantial completion dated in early 2009 meant that substantial completion occurred after December 2008, such that its Section 16.009(c) letter was timely.
After hearings on competing motions for summary judgment were filed by all parties, the district court granted our client’s and various other co-defendants’ motions for summary judgment that the statute of repose barred the Plaintiff’s claims. The Plaintiff appealed that those summary judgments to the Dallas Fifth Court of Appeals, which affirmed the district court’s judgment in a memorandum opinion, holding that the construction defect damages at issue were time-barred. The Court agreed that the date of substantial completion occurred prior to December 28, 2008—ten years prior to Plaintiff’s Section 16.009(c) letter and ruled that “[n]othing in the project's contract precluded the validity of the certificate of substantial completion signed by the owner and contractor,” and that the Plaintiff’s position “ignores portions of the [certificate of substantial completion].”
Our client was represented by partners Zach T. Mayer and BJ Jones, and associate Andrew J. Upton.
The case is Nikko Condo. Ass'n v. KWA Constr., L.P., No. 05-21-00914-CV, 2023 WL 154877 (Tex. App.—Dallas Jan. 11, 2023, no pet.).