Bill Text: TX HB2310 | 2023-2024 | 88th Legislature | Comm Sub


Bill Title: Relating to certain construction defect litigation.

Spectrum: Partisan Bill (Democrat 1-0)

Status: (Introduced - Dead) 2023-05-05 - Committee report sent to Calendars [HB2310 Detail]

Download: Texas-2023-HB2310-Comm_Sub.html
  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.
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