Bill Text: TX HB2310 | 2023-2024 | 88th Legislature | Introduced
NOTE: There are more recent revisions of this legislation. Read Latest Draft
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-Introduced.html
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-Introduced.html
88R4827 AJA-F | ||
By: Canales | H.B. No. 2310 |
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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. |