Texas 2023 - 88th Regular

Texas House Bill HB2310 Compare Versions

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1	1	88R4827 AJA-F
2	2	By: Canales H.B. No. 2310
3	3
4	4
5	5	A BILL TO BE ENTITLED
6	6	AN ACT
7	7	relating to certain construction defect litigation.
8	8	BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
9	9	SECTION 1. Subtitle B, Title 2, Civil Practice and Remedies
10	10	Code, is amended by adding Chapter 28 to read as follows:
11	11	CHAPTER 28. CONSTRUCTION DEFECT LITIGATION
12	12	Sec. 28.001. DEFINITIONS. In this chapter:
13	13	(1) "Claimant" means a party pursuing a commercial
14	14	construction defect claim. The term includes a party designated as
15	15	a plaintiff, counterclaimant, cross-claimant, third-party
16	16	plaintiff, or intervenor.
17	17	(2) "Commercial construction defect" means a defect,
18	18	nonconformance, or deficiency in the design, engineering,
19	19	material, workmanship, or construction of commercial property that
20	20	causes some type of failure in that property.
21	21	(3) "Commercial construction defect claim" means a
22	22	request in a civil action to recover monetary damages arising from
23	23	an alleged commercial construction defect.
24	24	(4) "Commercial property" means an improvement to
25	25	publicly or privately owned real property that is used for human
26	26	habitation or from which a governmental activity or commercial
27	27	enterprise is conducted. The term does not include:
28	28	(A) a residence as defined by Section 53.001,
29	29	Property Code; or
30	30	(B) a highway, roadway, bridge, overpass, or
31	31	other similar kind of physical infrastructure used by motor
32	32	vehicles.
33	33	(5) "Petition" means a court pleading, whether
34	34	original or amended, in which a claimant asserts a commercial
35	35	construction defect claim. The term includes a petition,
36	36	counterpetition, cross-petition, and third-party petition.
37	37	Sec. 28.002. PLEADING REQUIREMENTS. In asserting a
38	38	commercial construction defect claim, a claimant's petition must,
39	39	as to each defendant:
40	40	(1) describe with particularity the observed
41	41	manifestation of each alleged failure in the commercial property
42	42	that gives rise to the claimant's claim against the defendant;
43	43	(2) state the factual basis for the claimant's
44	44	assertion that the defendant's services, labor, or materials caused
45	45	or created, wholly or partly, each described failure; and
46	46	(3) be verified by a person with knowledge of the facts
47	47	stated in the petition.
48	48	Sec. 28.003. DISMISSAL FOR INSUFFICIENT PLEADING; EFFECT ON
49	49	LIMITATIONS PERIOD. (a) At the time of filing an original answer
50	50	or on or before the 21st day after the date the claimant's petition
51	51	was served, whichever is later, a defendant may move to dismiss a
52	52	claimant's commercial construction defect claim against the
53	53	defendant for failure to comply with the pleading requirements of
54	54	Section 28.002.
55	55	(b) The filing by a defendant of a motion to dismiss under
56	56	this section automatically abates response deadlines for discovery
57	57	requests served on the defendant by the claimant who served the
58	58	petition that is the subject of the motion until the motion has been
59	59	resolved by court order or agreement of the parties.
60	60	(c) Not later than the seventh day before the date of the
61	61	hearing on the defendant's motion to dismiss, the claimant may
62	62	replead the commercial construction defect claim.
63	63	(d) If a claimant repleads a claim under Subsection (c), the
64	64	affected defendant may supplement or amend the defendant's motion
65	65	to dismiss without causing a postponement of a hearing on the
66	66	motion.
67	67	(e) Unless extended by the court for good cause or by
68	68	agreement of the parties, a hearing on the defendant's motion to
69	69	dismiss shall be held not later than the 30th day after the date the
70	70	motion is served on the claimant. Filing an insufficient petition
71	71	to avoid the expiration of a limitations period may not be
72	72	considered good cause to extend the deadline prescribed by this
73	73	subsection if, in the exercise of reasonable diligence, the
74	74	claimant could have filed a petition complying with Section 28.002
75	75	before the expiration of the limitations period.
76	76	(f) On motion of a defendant as provided by this section,
77	77	the court shall dismiss without prejudice any commercial
78	78	construction defect claim against the defendant that is not
79	79	supported by a petition complying with Section 28.002.
80	80	(g) The filing of a petition that fails to comply with
81	81	Section 28.002 with respect to a commercial construction defect
82	82	claim does not toll any limitations period applicable to the claim.
83	83	Sec. 28.004. DISMISSAL ON DEFENDANT ESTABLISHING NO
84	84	CULPABILITY. (a) In addition to or as an alternative to the filing
85	85	of a motion to dismiss under Section 28.003, a defendant may move to
86	86	dismiss a claimant's commercial construction defect claim against
87	87	the defendant on the ground that no reasonable jury could find that
88	88	the defendant's services, labor, or materials caused or created the
89	89	construction defect that is the subject of the claim.
90	90	(b) A motion to dismiss under this section may be supported
91	91	by evidence that could support a motion for summary judgment. The
92	92	motion must:
93	93	(1) describe the services, labor, or materials
94	94	provided by the defendant in regard to the building or other
95	95	improvement that is the subject of the claimant's commercial
96	96	construction defect claim against the defendant;
97	97	(2) explain why the services, labor, or materials
98	98	provided by the defendant did not cause or create the construction
99	99	defect that is the subject of the claim;
100	100	(3) include a stipulation that the defendant will not
101	101	assert limitations as a defense against the claimant reasserting
102	102	the same claim against the defendant in a petition that is:
103	103	(A) filed on or before the first anniversary of
104	104	the date the motion is granted;
105	105	(B) sufficient under Section 28.002; and
106	106	(C) based on evidence that was not available to
107	107	the claimant at the time the motion was heard; and
108	108	(4) be verified by a person with knowledge of the facts
109	109	stated in the motion.
110	110	(c) If the defendant has filed a motion to dismiss under
111	111	Section 28.003, a motion to dismiss under this section must be filed
112	112	not later than the 14th day after the earlier of:
113	113	(1) the date of the court's order overruling the motion
114	114	to dismiss under Section 28.003; or
115	115	(2) the date an agreement under Rule 11, Texas Rules of
116	116	Civil Procedure, resolving the motion to dismiss under Section
117	117	28.003 is filed.
118	118	(d) If a defendant has not filed a motion to dismiss under
119	119	Section 28.003, a motion to dismiss under this section must be filed
120	120	at the time of the filing of the defendant's original answer or on
121	121	or before the 21st day after the date the claimant's petition was
122	122	served, whichever is later.
123	123	(e) Except as provided by Subsection (f), the filing by a
124	124	defendant of a motion to dismiss under this section automatically
125	125	abates response deadlines for discovery requests served on the
126	126	defendant by the claimant who served the petition that is the
127	127	subject of the motion until the motion has been resolved by court
128	128	order or agreement of the parties.
129	129	(f) On a showing of good cause, the court may allow
130	130	specified and limited discovery relevant to the defendant's motion
131	131	to dismiss.
132	132	(g) Not later than the seventh day before the date of the
133	133	hearing on the defendant's motion to dismiss, the claimant may
134	134	replead the commercial construction defect claim or file a verified
135	135	response to the motion. A response to the defendant's motion to
136	136	dismiss may be supported by evidence that could support a motion for
137	137	summary judgment.
138	138	(h) Unless extended by the court for good cause or for
139	139	discovery to be conducted, or extended by agreement of the parties,
140	140	the court shall hold a hearing on the defendant's motion to dismiss
141	141	not later than the 30th day after the date the motion is served on
142	142	the claimant.
143	143	(i) The court shall grant the defendant's motion to dismiss
144	144	if the court finds, based on the verified pleadings and summary
145	145	judgment evidence submitted by the parties, that no reasonable jury
146	146	could find that the defendant's services, labor, or materials
147	147	caused or created the construction defect that is the subject of the
148	148	claimant's claim against the defendant.
149	149	(j) If the defendant's motion to dismiss under this section
150	150	is granted and the claimant files a subsequent petition reasserting
151	151	the same claim against the defendant as described by Subsection
152	152	(b)(3), the defendant may file a motion under this chapter to
153	153	dismiss the claim. If that motion is granted, the claim shall be
154	154	dismissed with prejudice.
155	155	Sec. 28.005. AWARD OF ATTORNEY'S FEES AND COSTS;
156	156	SANCTIONS. (a) On ruling on a motion to dismiss filed under this
157	157	chapter, the court may award costs and reasonable attorney's fees
158	158	to the prevailing party. The court shall award costs and reasonable
159	159	attorney's fees to the prevailing party if:
160	160	(1) the motion to dismiss is granted and the court
161	161	determines there was no reasonable justification for the claimant
162	162	having joined the defendant in the action; or
163	163	(2) the motion to dismiss is overruled and the court
164	164	determines the defendant used the procedures provided by this
165	165	chapter for the primary purpose of postponing the defendant's
166	166	obligation to participate in the action.
167	167	(b) The court shall impose an appropriate sanction on a
168	168	person who verifies a petition or motion or signs an affidavit filed
169	169	under this chapter when the person knew or reasonably should have
170	170	known the facts stated in the petition, motion, or affidavit were
171	171	untrue.
172	172	Sec. 28.006. SUPREME COURT RULEMAKING. The supreme court
173	173	may adopt rules to implement this chapter.
174	174	Sec. 28.007. SUPPLEMENTATION OF EXISTING LAWS. The
175	175	procedures and remedies provided by this chapter are in addition to
176	176	other procedures and remedies provided by law.
177	177	SECTION 2. Chapter 28, Civil Practice and Remedies Code, as
178	178	added by this Act, applies only to an action commenced on or after
179	179	the effective date of this Act.
180	180	SECTION 3. This Act takes effect September 1, 2023.