88R4827 AJA-F
By: Canales H.B. No. 2310
A BILL TO BE ENTITLED
AN ACT
relating to certain construction defect litigation.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Subtitle B, Title 2, Civil Practice and Remedies
Code, is amended by adding Chapter 28 to read as follows:
CHAPTER 28. CONSTRUCTION DEFECT LITIGATION
Sec. 28.001. DEFINITIONS. In this chapter:
(1) "Claimant" means a party pursuing a commercial
construction defect claim. The term includes a party designated as
a plaintiff, counterclaimant, cross-claimant, third-party
plaintiff, or intervenor.
(2) "Commercial construction defect" means a defect,
nonconformance, or deficiency in the design, engineering,
material, workmanship, or construction of commercial property that
causes some type of failure in that property.
(3) "Commercial construction defect claim" means a
request in a civil action to recover monetary damages arising from
an alleged commercial construction defect.
(4) "Commercial property" means an improvement to
publicly or privately owned real property that is used for human
habitation or from which a governmental activity or commercial
enterprise is conducted. The term does not include:
(A) a residence as defined by Section 53.001,
Property Code; or
(B) a highway, roadway, bridge, overpass, or
other similar kind of physical infrastructure used by motor
vehicles.
(5) "Petition" means a court pleading, whether
original or amended, in which a claimant asserts a commercial
construction defect claim. The term includes a petition,
counterpetition, cross-petition, and third-party petition.
Sec. 28.002. PLEADING REQUIREMENTS. In asserting a
commercial construction defect claim, a claimant's petition must,
as to each defendant:
(1) describe with particularity the observed
manifestation of each alleged failure in the commercial property
that gives rise to the claimant's claim against the defendant;
(2) state the factual basis for the claimant's
assertion that the defendant's services, labor, or materials caused
or created, wholly or partly, each described failure; and
(3) be verified by a person with knowledge of the facts
stated in the petition.
Sec. 28.003. DISMISSAL FOR INSUFFICIENT PLEADING; EFFECT ON
LIMITATIONS PERIOD. (a) At the time of filing an original answer
or on or before the 21st day after the date the claimant's petition
was served, whichever is later, a defendant may move to dismiss a
claimant's commercial construction defect claim against the
defendant for failure to comply with the pleading requirements of
Section 28.002.
(b) The filing by a defendant of a motion to dismiss under
this section automatically abates response deadlines for discovery
requests served on the defendant by the claimant who served the
petition that is the subject of the motion until the motion has been
resolved by court order or agreement of the parties.
(c) Not later than the seventh day before the date of the
hearing on the defendant's motion to dismiss, the claimant may
replead the commercial construction defect claim.
(d) If a claimant repleads a claim under Subsection (c), the
affected defendant may supplement or amend the defendant's motion
to dismiss without causing a postponement of a hearing on the
motion.
(e) Unless extended by the court for good cause or by
agreement of the parties, a hearing on the defendant's motion to
dismiss shall be held not later than the 30th day after the date the
motion is served on the claimant. Filing an insufficient petition
to avoid the expiration of a limitations period may not be
considered good cause to extend the deadline prescribed by this
subsection if, in the exercise of reasonable diligence, the
claimant could have filed a petition complying with Section 28.002
before the expiration of the limitations period.
(f) On motion of a defendant as provided by this section,
the court shall dismiss without prejudice any commercial
construction defect claim against the defendant that is not
supported by a petition complying with Section 28.002.
(g) The filing of a petition that fails to comply with
Section 28.002 with respect to a commercial construction defect
claim does not toll any limitations period applicable to the claim.
Sec. 28.004. DISMISSAL ON DEFENDANT ESTABLISHING NO
CULPABILITY. (a) In addition to or as an alternative to the filing
of a motion to dismiss under Section 28.003, a defendant may move to
dismiss a claimant's commercial construction defect claim against
the defendant on the ground that no reasonable jury could find that
the defendant's services, labor, or materials caused or created the
construction defect that is the subject of the claim.
(b) A motion to dismiss under this section may be supported
by evidence that could support a motion for summary judgment. The
motion must:
(1) describe the services, labor, or materials
provided by the defendant in regard to the building or other
improvement that is the subject of the claimant's commercial
construction defect claim against the defendant;
(2) explain why the services, labor, or materials
provided by the defendant did not cause or create the construction
defect that is the subject of the claim;
(3) include a stipulation that the defendant will not
assert limitations as a defense against the claimant reasserting
the same claim against the defendant in a petition that is:
(A) filed on or before the first anniversary of
the date the motion is granted;
(B) sufficient under Section 28.002; and
(C) based on evidence that was not available to
the claimant at the time the motion was heard; and
(4) be verified by a person with knowledge of the facts
stated in the motion.
(c) If the defendant has filed a motion to dismiss under
Section 28.003, a motion to dismiss under this section must be filed
not later than the 14th day after the earlier of:
(1) the date of the court's order overruling the motion
to dismiss under Section 28.003; or
(2) the date an agreement under Rule 11, Texas Rules of
Civil Procedure, resolving the motion to dismiss under Section
28.003 is filed.
(d) If a defendant has not filed a motion to dismiss under
Section 28.003, a motion to dismiss under this section must be filed
at the time of the filing of the defendant's original answer or on
or before the 21st day after the date the claimant's petition was
served, whichever is later.
(e) Except as provided by Subsection (f), the filing by a
defendant of a motion to dismiss under this section automatically
abates response deadlines for discovery requests served on the
defendant by the claimant who served the petition that is the
subject of the motion until the motion has been resolved by court
order or agreement of the parties.
(f) On a showing of good cause, the court may allow
specified and limited discovery relevant to the defendant's motion
to dismiss.
(g) Not later than the seventh day before the date of the
hearing on the defendant's motion to dismiss, the claimant may
replead the commercial construction defect claim or file a verified
response to the motion. A response to the defendant's motion to
dismiss may be supported by evidence that could support a motion for
summary judgment.
(h) Unless extended by the court for good cause or for
discovery to be conducted, or extended by agreement of the parties,
the court shall hold a hearing on the defendant's motion to dismiss
not later than the 30th day after the date the motion is served on
the claimant.
(i) The court shall grant the defendant's motion to dismiss
if the court finds, based on the verified pleadings and summary
judgment evidence submitted by the parties, that no reasonable jury
could find that the defendant's services, labor, or materials
caused or created the construction defect that is the subject of the
claimant's claim against the defendant.
(j) If the defendant's motion to dismiss under this section
is granted and the claimant files a subsequent petition reasserting
the same claim against the defendant as described by Subsection
(b)(3), the defendant may file a motion under this chapter to
dismiss the claim. If that motion is granted, the claim shall be
dismissed with prejudice.
Sec. 28.005. AWARD OF ATTORNEY'S FEES AND COSTS;
SANCTIONS. (a) On ruling on a motion to dismiss filed under this
chapter, the court may award costs and reasonable attorney's fees
to the prevailing party. The court shall award costs and reasonable
attorney's fees to the prevailing party if:
(1) the motion to dismiss is granted and the court
determines there was no reasonable justification for the claimant
having joined the defendant in the action; or
(2) the motion to dismiss is overruled and the court
determines the defendant used the procedures provided by this
chapter for the primary purpose of postponing the defendant's
obligation to participate in the action.
(b) The court shall impose an appropriate sanction on a
person who verifies a petition or motion or signs an affidavit filed
under this chapter when the person knew or reasonably should have
known the facts stated in the petition, motion, or affidavit were
untrue.
Sec. 28.006. SUPREME COURT RULEMAKING. The supreme court
may adopt rules to implement this chapter.
Sec. 28.007. SUPPLEMENTATION OF EXISTING LAWS. The
procedures and remedies provided by this chapter are in addition to
other procedures and remedies provided by law.
SECTION 2. Chapter 28, Civil Practice and Remedies Code, as
added by this Act, applies only to an action commenced on or after
the effective date of this Act.
SECTION 3. This Act takes effect September 1, 2023.