in Re: Calvin D. Wells D/B/A/ Wells & Son Roofing Company

Opinion

Opinion of August 14, 2007, Withdrawn; Petition for Writ of Mandamus Granted and Majority and Dissenting Opinions filed February 7, 2008

Opinion of August 14, 2007, Withdrawn; Petition for Writ of Mandamus Granted and Majority and Dissenting Opinions filed February 7, 2008.

In The

Fourteenth Court of Appeals

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NO. 14-07-00653-CV

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IN RE CALVIN D. WELLS d/b/a/ WELLS & SONS ROOFING COMPANY, Relator

ORIGINAL PROCEEDING

WRIT OF MANDAMUS

D I S S E N T I N G   O P I N I O N

 This is a case of first impression that involves interpretation of the Residential Construction Liability Act (ARCLA@).^[1] I would hold that the trial court did not abuse its discretion by denying relator=s motion to dismiss the underlying lawsuit.  Accordingly, I respectfully dissent. 

The threshold inquiry regarding protections afforded by the RCLA is whether that person is a Acontractor@ as defined in the act.  In pertinent part, the legislature defined contractor as follows:

a builder, as defined by Section 401.003, and any person contracting with an owner for the construction or sale of a new residence constructed by that person or of an alteration of or addition to an existing residence, repair of a new or existing residence, or construction, sale, alteration, addition, or repair of an appurtenance to a new or existing resident.

Act of June 20, 2003, 78th Leg. R.S., ch 458 ' 2.01, 2003 Tex. Gen. Laws 1723(amended 2007) (current version at Tex. Prop. Code Ann. ' 27.001(5) (Vernon Supp. 2007).^[2] 

In pertinent part of the Texas Residential Construction Commission Act,  Abuilder@ is defined as:

any business entity or individual who . . . constructs or supervises or manages the construction of:

(1) a new home;

(2) a material improvement to a home, other than an improvement solely to replace or repair a roof of an existing home; or

(3) an improvement to the interior of an existing home when the cost of the work exceeds $20,000

Act of June 20, 2003, 78th Leg., R.S., ch. 458 ' 1.01, 2003 Tex. Gen. Laws 1704, (amended 2007) (current version at Tex. Prop. Code Ann. ' 401.003(a) (Vernon Supp. 2007) (emphasis added).^[3]

Regretfully, my colleagues employ a literal text interpretation to support their conclusion that the above provisions are unambiguous. The majority bases its interpretation on the broad definition of Acontractor,@ and reasons that relator, Wells Roofing, is a contractor as defined by the RCLA because it contracted with an owner for Aconstruction of an alteration to an existing residence or repair to an existing residence.@  The majority emphasizes general or broad language over specific language that pertains to the status of a person or entity engaged solely in the repair or replacement of roofs.  The majority follows with the conclusion: Awhile Wells Roofing may not be a Abuilder,@ it is, as a matter of law, a Acontractor.@  While I agree that the definition of Acontractor@ includes more persons and circumstances than the definition of Abuilder,@ the majority=s interpretation is flawed because general or broad language is given greater force or effect than contradictory specific language. Without reference to common law rules of statutory construction or the Code Construction Act,^[4]  the majority has rendered the roofing contractor=s exclusion in the RCLA meaningless. 

In defining the term builder, the legislature specifically excluded entities that replace or repair the roof of an existing home.  See Act of June 20, 2003, 78th Leg., R.S., ch. 458 ' 1.01, 2003 Tex. Gen. Laws 1704, (amended 2007).  The legislature infused this specific exclusionary language into the RCLA by reference to the word Abuilder as defined by  Section 401.003."  The majority attempts to avoid the conflicting language by emphasizing the conjunctive Aand@ in the definition of Acontractor@ under Section 27.001.  The majority refuses to acknowledge that there is a conflict between general language that includes any Aalteration of or addition to an existing residence@ and language that specifically excludes contracts Asolely to replace or repair a roof.@  

 This court should attempt to harmonize statutes and avoid an interpretation that renders any portion meaningless.  See Barfield, 898 S.W.2d at 292. I would hold that the specific exclusionary language controls and roofers are outside the purview of the RCLA.

If possible, we must construe statutes as written and ascertain legislative intent from the text. Helena Chem. Co. v. Wilkins, 47 S.W.3d 486, 493 (Tex. 2001).  However, if the plain language is susceptible to two or more reasonable interpretations a statute will be considered ambiguous, and we should refer to extra-textual sources to determine legislative intent.  See in re Mo. Pac. R.R. Co., 998 S.W.2d 212, 217 (Tex. 1999).  We must consider the statute as a whole rather than its isolated provisions, and we should not give one provision a meaning out of harmony or inconsistent with other provisions, although it might be susceptible to such a construction standing alone.  Helena Chem. Co., 47 S.W.3d at 493.  We must presume that the Legislature intends an entire statute to be effective and that a just and reasonable result is intended.  Id.  Moreover, we should avoid statutory construction that renders any part of the statutory language meaningless.  See City of LaPorte v. Barfield, 898 S.W.2d 288, 292 (Tex. 1995).  Finally, we are instructed that if a general provision of a statute irreconcilably conflicts with a special provision, the special provision prevails as an exception to the general provision.  See Tex. Gov=t Code Ann. ' 311.026 (b) (Vernon 2005); Bradley v. State ex. rel. White, 990 S.W.2d 245, 251 (Tex. 1999) (Abbot J., concurring) (stating that when an irreconcilable conflict occurs between a general and a special statutory provision, the special provision prevails as an exception to the general provision). 

Accordingly, I would deny the petition for writ of mandamus and remand for further proceedings in the trial court. 

/s/        Charles W. Seymore

Justice

Judgment rendered and Opinion filed February 7, 2008.

Panel consists of Justices Yates, Seymore, and Guzman. (J., Yates files majority).

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^[1]Tex. Prop. Code Ann. ' 27.001 et. seq. (Vernon 2000 & Supp. 2007).

^[2]The Legislature amended this definition effective September 1, 2007.  See Tex. Prop. Code Ann. ' 27.001(5) .  However, Roberts and Wells Roofing entered into their contract in 2005, and the pre-amendment definition applies.  See Act of June 15, 2007, 80th Leg. R.S., ch 750 ' 3, 2007 Tex. Gen. Laws 1554.

^[3]The Legislature likewise amended this definition effective September 1, 2007, See Tex. Prop. Code Ann. ' 401.003(a).  However, the pre-amendment definition applies. See Act of June 15, 2007, 80th Leg., R.S., ch. 843 ' 57, 2007 Tex. Gen. Laws 1768.

^[4]Tex. Gov=t Code Ann. ' 311.001 et. seq. (Vernon 2005)