# FILED

January 13, 1998 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF APPEALS OF TENNESSEE EASTERN SECTION AT KNOXVILLE

JANICE R. G

RAVES and ) KNOX CIRCUIT JOHN GRAVES, ) ) NO. 03A01-9708-C V-00336 Plaintiffs/Appell

ants )

) HON. DALE WORKMAN v. ) JUDGE ) GRADY’S INC., ) LAMONTAGNE SELECTED ) WOOD FURNI

SHINGS, and ) RICHARDSON TURNER ) CONSTRUCTION CO., ) ) Defendants/Appellees ) AFFIRMED. Philip Durand, L

ars E. Schuller

, and Andrew L.

Colcotronis, Knoxvi

lle, for Appellants. Linda J. Hamilton Mowles, Knoxville, for Appellees Richardson Turner Construction Company. Terrill L. Ad

kins, Knoxville, f

or Appellee LaM

ontagne Selected W

ood Finishings 

### O P I N IO N INMAN, Senio

r Judge I This is the second app

eal of this case. The first opinion is r eported in 906 S.W.2d 463 (T

enn. App. 1995), to which we make r eference for the

basis and history of this litigation. The manufa cturer of the offe

nding booth, LaMontagne, and th

e general contrac

tor, Richardson T

urner, were dis

missed by the trial court whi

ch held that the one-y

ear statute of limi

tations barred the action since it was filed April 25, 1994 and the accident occurred November 13, 1992. We disagreed, holding that T.C.A. § 20-1-119 provides a special statute of limitations. “(a) In civil actions where comparative fault is or becomes an issue,2 if a defendant named i

n an original complai

nt initiating a suit filed within the applicable

statute of limitations, or named in an amended complaint

filed within the

applicable statute of limitations,alleges in an answer or amendedanswer to the origi nal or amended compl

aint th at a person not a party to th e suit caused or contr

ibuted to the injury or damage for which the p la intiff seeks recov ery, and if the plaintiff’ s cause or causes of action against such pe

rson would be barred by any applicable statute of limi tations but for the ope

ration of this section, the plaintiff

may, within ninety (

90) days of the

filing of the first answeror first amended answer alleging such person’s fault, . . . (b) A cause of action b

roug ht within ninety (90) da ys pursuant to subsection

(a) shall not be bar

red by any statute of limitations. This section shall not extend any ap

plicable statut

e of repose, nor shal

l this section permit the p

laintiff to maintai

n an action against

a person when such an action is barred by an applicable statute of repose. (c) This section shall neither shorten nor lengthen t

he applicable statuteof limitations for a ny cause of

action, other than as provided in subsection (a).” On remand, the manufacturer and contractor filed motions for summary judgments based on the statute of repose, which was not an issue on the first appeal. These m

otions were grante

d, and the plaintiff

s appeal, essentia

lly arguing that the appe

llees “attempt to c

ircumvent the Court

of Appeals opinion [which] can only be cla ssified as a legal leg erdemain.” II The plaintiff, Janice Graves, was injured when the booth she was occupying at Grady’ s Restaurant collap sed as she was having her lunch. The accident occurre

d on November 13, 199 2. This suit for damages was filed October 18, 1993 against Grady’s, which answered that the injuries to the plainti ff were caused b

y the manufacturer

of the booth, later identified by amended answer as LaMontagne. The answer further identifie

d the general contra

ctor as Richardson T

urner. On April

25, 1994, by amended complaint, LaMontagne and Richardson Turner were joined as defendants. Construction of Gra

dy’s Restaurant wa

s substantially comple

ted on3

September 29, 1989, o n which date a Certificat e of Occupancy was issue d. This fact is not disp uted. The complaint was filed against Grady’s on October 18, 1993. This fact is not disputed. On April 24, 1994, LaMontagne and Richardson Turner were added as defendants.

This fact is not dispu

ted. IIIIt is clear that the plaintiff in comparative fault cases wherein the oneyear statute has apparently barred the action has 90 days after an answer is filed identifying other pote

ntially liable parti

es within which to a

dd such persons to the suit, but subject to the condition that any applica ble Statute of Repose

is unaffected. T.C.A. § 28-3-202, 203 are the Statutes of Repose, which provide: 28-3-202. Limitation of act ions. All actions to

recover damages for any deficiency in the design, planning, s upervision, observa tion of construction

or construction of

an improvement to rea

l property, for injury to property, real or personal, arising out of any such deficiency, or

for injury to the per

son or for wrongful

death arising o utof a ny such deficiency, shall be brought agains t any person performing

or furnishing the de si gn, planning, superv ision, observtion

of constr

uction , construction of,

or land surveying in connection

with, such an impr

ovement within four

(4) ye ar s after substantial completio

n of such an improveme

nt. 28-3-203. Injury during fourth y ear after completion - Limitation

of action. (a) Notwithstand ing the provisions

of § 28-3- 202, in the case of such an injury to property o r person or such injury causing wrongful death, which injury occurred during the fourth year after such substantial completion, a n action in court to recover da mages for such injury or w rongful death shall be

brought withi n one (1) year after t

he date on which such

injury ocurred, w

ith ou t respect to the date

of death of such injur

ed person. (b) Such action shal

l, in all events, be

brought within five

(5) years after the substantia

l completion of such a

n improvement.

The plaintiff wa

s injured on November

13, 1992 and the case

thus falls within the fourth yea

r after substantia

l completion - Septe

mber 29, 1989 - of4

the project. The

action was requir

ed to be brought not late

r than November 13, 1993. The action was fi

led April 25, 1994,

more than five months beyond the one-year grace for injuries occurring within the fourth year after substantial completion. IV The role of the app

ellate courts in cons

truing statutes is to a

scertain and give effect to the leg islative intent. Wilson v. Johnson Co unty, 879 S.W.2d 807, 809 (Tenn. 1994) , which is ascert ained, whenever

possible, from the natural and ordinar

y meaning of the langua

ge used, without for

ced or subtle construction tha t would limit or exte nd the meaning of th e language. Carson Creek Vacation Resort s, Inc. v. State Dept. of Revenu e, 865 S.W.2d 1, 2 (T enn. 1993). A construct

ion which places one

statute in conflict w

ith another should be avoided and any possible conflict between statutes in favor of each other should be resolv ed so as to provide a harmonious operat ion of the laws. State By and Through Piero tti ex rel. Boone v. Sund quist, 884 S.W.2d 438, 444 (Tenn. 1994). The Supreme Cour

t in Cronin v. Howe, 906 S.W.2d 910 (Tenn. 1995), explained the operat

ional difference between a statute of limitations and a statute of repose: “[w]here the one-year statut e of limitations governs

the time within which legal proceedings may be commenced after a cause of action accrues, the three-year

medical malpractice stat ute of repose limits the time within which an action may be brought, but it is entirely unrelated to the accrual of a cause of action and can, in fact, bar a caus e of acti on before it has accrued . . . That distinction has prompted courts to hold that stat u tes of re pose are substantive and extinguish

both the right and

the remedy, while statutes of limitation are merely procedura

l, extinguishing only the

remedy. (Emphasisin original.) The statute of rep

ose has the effect

of barring both the r

ight and the remedy5

before they accr

ue which, as Cronin notes, is permissible. Applying these princi

ples to the case at ba

r, we think the sta

tute of repose applies to t he case against the man ufacturer and the con tractor. Plaintiffs concede that T.C.A. § 28-3-202 is a statute of repose which cuts off the right of action a

fter a specified time even if that tim e expires before t

he accrual of the ca

use of action, but ar

gue that T.C.A . § 28-3-203 is a stat ute of limitations

which extinguishes the

right to prosecute a

n accrued cause of action, arguably to be considered separa tely from T.C.A. § 28-3-202

. According to plain tiff’s argument, sinc e § 203 is a statute o f limitations, T.C.A. § 20-1-119 applies, a

nd grants additional ti

me to allege a clai

m of comparative fault, making plain

tiff’s amended com

plaint timely. This rationale would undermine the entire legislative intent expounded in Cronin, supra, that arthitects, engineers, etc.not be subject to law suits for the reasons contempl

ated by the Act exc

ept for these injuri

es which occur within four years a

fter substantial com

pletion. T.C.A . § 28-3-203 must be considered in pari materia with T.C.A. § 28-3-203, and the additional time within which to file suit if injury occurs in the fourth year following substantial completion is to allow the plaintiff sufficient time following injury to prepare his/her case before th e statute of repose ex tinguishes the ri ght and remedy. As we have seen,

a plaintif has 90 days within which to add a s a defendant any person

named by the party de

fendant as being poten

tially liable to the plaintif under the principles of com parative fault. T

his period is available to the plai

ntiff notwithstanding

the expiration of the

statute of limitations applicabl

e to plaintiff’s cla

ims, but the legislat

ure specifically expressed its intenti

on that any applicable

statute of repose w

ould control. The thrust of the pla

intiffs’ argument is that they are enti tled to assert a6

claim against a par

ty for negligent acts

related to the impr

ovement of real est

ate at any time within 90 days from the date t hat another defenda

nt has identified a party in a comparative fault allegation, without regard to the date of substantial completion and the exp

iration of the four y

ear statute of re

pose. This argume

nt destroys the statute o

f repose and ignores

the plain intent of T .C.A. § 20-1-11 9, which provides tha t it does not “exten d any applicable st atute of repose.” Our review of the

findings of fact ma

de by the trial court

is de novo upon the record of the tr

ial court, accom

panied by a presumptio

n of the correctne ss of the finding, unl ess the preponderan ce of the evidence is o therwise. T.C.A. § 50-6-225(e)(2). Stone v. City of McMinnv ille, 896 S.W.2d 548, 550 (Tenn. 1995). We agree that summ

ary judgment was pr

operly granted to the manufacturer and

contractor, and t

he judgment is affir

med at the costs of th

e appellants.

__________________________ William H. Inma

n, Senior Judge CONCUR:

__________________________ Herschel P. Fr

anks, Judge

__________________________ Don T. McMurra

y, Judge