Texas Judiciary Online - HTML Opinion

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Opinion issued November = 30,=20 2006

In The

Court of=20 Appeals

For The

First=20 District of Texas

NO. = 01-04-01223-CV

NEXEN = INC., NEXEN=20 PETROLEUM OPERATIONS YEMEN LIMITED, and CANADIAN NEXEN PETROLEUM = YEMEN,=20 Appellants

GULF = INTERSTATE=20 ENGINEERING CO., Appellee

On = Appeal from the=20 127th District Court

Harris = County,=20 Texas

Trial = Court Cause=20 No. 2004-18471

O P I N I O = N

Appellants,=20 Nexen Inc., Nexen Petroleum Operations Yemen Limited, and Canadian = Nexen=20 Petroleum Yemen (collectively, "the Nexen parties"), appeal from a = take-nothing summary judgment rendered on their claims against = appellee,=20 Gulf Interstate Engineering Co. ("GIE"), for engineering work that = GIE had=20 done in Yemen on a pipeline for the Nexen parties' corporate = predecessor.=20 We determine whether (1) the statute of repose of Texas or = Alberta, Canada=20 applied and (2) GIE conclusively proved its affirmative defense = that the=20 applicable statute of repose barred the Nexen parties' claims = again it. We=20 affirm the judgment.

Background

In 1991, as=20 alleged by the Nexen parties, CanadianOxy Offshore International = Ltd.=20 ("COIL") entered into a contract ("the contract") with GIE, a = company=20 headquartered in Texas, for GIE to provide engineering services = for COIL's=20 proposed oil processing and development facility in the Masila = Block area=20 of Yemen ("the Masila Project"). Under the contract, GIE provided=20 engineering services for what was designated "Phase 1" of the = Masila=20 Project, which included preparation of a design-basis manual, a=20 project-execution plan, and a detailed estimate of total = installation=20 costs for the facilities for the Masila Project. The Masila = Project had=20 nine principal components: a gathering system, a pump station, a = central=20 production facility, a pipeline, an export terminal, data and=20 communications systems, offshore facilities, infrastructure, and = power=20 generation and distribution.

On January=20 1, 1992, COIL and GIE entered into an amendment to the 1991 = contract ("the=20 amended contract"). The amended contract provided for GIE's = engineering=20 services to continue into "Phase 2." In Phase 2, GIE was to design = and to=20 engineer the detailed design, procurement, engineering, and "other = project-related services" required for the Masila Project = facilities. At=20 no time did GIE perform construction services for the Masila=20 Project.

The Nexen=20 parties alleged in their petition and have asserted in their = brief,=20 without dispute by GIE, that appellant Nexen Inc. is the corporate = successor to the company that was the corporate assignee of COIL; = that=20 appellant Nexen Inc. was a partner in appellant Canadian Nexen = Petroleum=20 Yemen, which in turn had an interest in the ownership and = operations of=20 the Masila Project; and that appellant Nexen Petroleum Operations = Yemen=20 Limited was a partner in appellant Canadian Nexen Petroleum Yemen = and was=20 also a successor to COIL.

In July or=20 August 1993, the pipeline at the Masila Project was completed, = with the=20 exception of punch-list and "ROW clean-up" items, and became = operational,=20 although engineering and construction on the overall Masila = Project was=20 still on-going. In July 1994, GIE certified that it had completed = all of=20 its engineering work for the Masila Project.

The Nexen=20 parties alleged that, in April 2002, rainfall caused flooding at = the=20 Masila Project site. The flooding caused the pipeline to move, = which=20 further caused the pipeline to strain, to buckle, and to lose its = concrete=20 coating, resulting in damage to the pipeline. In April 2004, the = Nexen=20 parties sued GIE for failing to design and to engineer the = pipeline and=20 its route properly, alleging claims for breach of contract, breach = of=20 warranty, negligence, and strict liability for design defect. GIE=20 answered, alleging, among other things, the affirmative defense of = the=20 10-year statute of repose under Texas or Alberta law.

GIE moved=20 for traditional summary judgment against all of the Nexen parties' = claims.=20 GIE asserted that the statute of repose under both Texas and = Alberta law=20 precluded the Nexen parties' claims. Concerning the choice of law, = GIE=20 argued:

Although=20 there is some indication in the contract[s] between the parties = that the=20 laws of Alberta, Canada should apply, the choice of law is = immaterial=20 because the overall result is the same whether Texas law or = Alberta law=20 applies: [the Nexen parties'] claims must be dismissed with = prejudice as a=20 matter of law.

GIE then=20 analyzed the statutes of repose under both jurisdictions' laws.^{=20
(1)} The crux of GIE's argument was that (1) under both = statutes,=20 the date of substantial completion of GIE's work was the accrual = date for=20 purposes of repose and (2) that date was July 1993, when the = pipeline=20 became fully operational. The Nexen parties responded that (1) the = repose=20 law of Alberta and Texas differed materially; (2) Alberta law = applied; (3)=20 the Nexen parties' claims were timely filed under Alberta's repose = statute; and, alternatively, (4) the Nexen parties' claims were = timely=20 filed under Texas's repose statute.^{=20
(2)} In particular, the Nexen parties argued that the = pipeline=20 portion of GIE's work was only part of the work that GIE had = contracted to=20 do for the Masila Project and that GIE's overall work was not=20 substantially completed until at least July of 1994.

GIE filed a=20 summary-judgment reply, in which it again argued that the result = was the=20 same under either Texas or Alberta law and in which GIE also = clarified its=20 summary-judgment grounds by arguing that, because the Nexen = parties had=20 sued for GIE's actions relating to the pipeline portion of the = Masila=20 Project, the accrual date for calculating the statutes of repose = should be=20 the date that GIE finished its work on the pipeline. In their = supplemental=20 briefing below, the Nexen parties responded that GIE could not = sever its=20 work under the contract into discrete portions merely to invoke = the=20 statutes of repose starting at an earlier date. GIE then filed = another=20 brief, again asserting that the result was the same under either = Texas or=20 Alberta law and that, for purposes of calculating the repose = statutes'=20 accrual dates, the pipeline portion of GIE's work was severable = from its=20 overall work.^{=20
(3)}

In October=20 2004, the trial court rendered a take-nothing summary judgment in = favor of=20 GIE on all of the Nexen parties' claims against it. The = summary-judgment=20 order did not specify the grounds upon which it was = rendered.

Standard of Review

GIE moved=20 for traditional summary judgment. See Tex. R. Civ. P. = 166a(c).=20 Summary judgment under rule 166a(c) is proper only when a movant=20 establishes that there is no genuine issue of material fact and = that it is=20 entitled to judgment as a matter of law. Randall's Food Mkts., = Inc. v.=20 Johnson, 891 S.W.2d 640, 644 (Tex. 1995). A defendant is = entitled to=20 summary judgment if the evidence disproves as a matter of law at = least one=20 element of each of the plaintiff's causes of action or if it = conclusively=20 establishes all elements of an affirmative defense.=20 Id.

In our=20 review, we indulge every reasonable inference in favor of the = nonmovant,=20 resolve any doubts in its favor, and take as true all evidence = favorable=20 to it. Id. When, as here, an order granting summary = judgment does=20 not specify the grounds upon which the trial court ruled, we must = affirm=20 to the extent that any of the summary judgment grounds is = meritorious.=20 See Star-Telegram, Inc. v. Doe, 915 S.W.2d 471, 473 (Tex. = 1995).

The statute=20 of repose operates as an affirmative defense. Ryland Group, = Inc. v.=20 Hood, 924 S.W.2d 120, 121 (Tex. 1996). Accordingly, GIE, as = the=20 traditional summary-judgment movant, had the burden conclusively = to prove=20 each essential element of that defense. Id. Only if GIE = carried=20 this burden would the burden then shift to the Nexen parties to = raise a=20 fact issue precluding summary judgment on this defense. See,=20 e.g., id.

Choice of Law

In their=20 first argument under their issue, the Nexen parties assert that = the=20 statute of repose of Alberta, Canada, rather than of Texas, = applied to=20 their claims because, among other things, both the contract and = the=20 amended contract called for application of Alberta's law. GIE = responds=20 that the Nexen parties waived the application of Alberta law for = various=20 reasons and that, in any event, the same result obtains under = either=20 jurisdiction's repose law.

The=20 contract and the amended contract between the Nexen parties and = GIE=20 expressly called for the application of the laws of Alberta, = Canada. Texas=20 courts generally apply Texas procedural law even while applying = the=20 parties' contractual choice of law for substantive matters. = See Ill.=20 Tool Works, Inc. v. Harris, 194 S.W.3d 529, 532 (Tex. = App.--Houston=20 [14th Dist.] 2006, no pet.). Statutes of repose have been = described as a=20 substantive definition of rights, as opposed to a procedural = limitation on=20 rights.^{=20
(4)} E.g., Trinity River Auth. v. URS = Consultants,=20 Inc.-Tex., 889 S.W.2d 259, 261 (Tex. 1994). Therefore, if the = choice-of-law provision is enforceable, it requires the = application of=20 Alberta's statute of repose.

GIE's=20 summary-judgment argument was consistently that the two = jurisdictions'=20 statutes of repose did not differ materially, so that the Nexen = parties=20 would lose under either law. The Nexen parties argued below, as = they do on=20 appeal, that the contract and the amended contract required the=20 application of Alberta law and, alternatively, that even if Texas = law=20 applied, they would prevail. The trial court did not recite in its = summary-judgment order which law it had applied, and there is no = other=20 choice-of-law ruling that we may consider.^{=20
(5)} However, "[b]ecause the question of which = . . .=20 law applies is one for the court, in the absence of any indication = as to=20 which . . . law the trial court actually applied, we = presume=20 that the trial court correctly analyzed the [applicable = choice-of-law=20 rules], took judicial notice of the relevant law brought to its = attention,=20 and applied the correct law according to the established choice of = law=20 principles." State Nat'l Bank v. Academia, Inc., 802 = S.W.2d 282,=20 290 (Tex. App.--Corpus Christi 1990, writ denied) (considering = implicit=20 ruling under Texas Rule of Evidence 202, concerning laws of other = states);=20 see also In re Estate of Loveless, 64 S.W.3d 564, 575 = (Tex.=20 App.--Texarkana 2001, no pet.) ("A court shall take judicial = notice if=20 requested by a party and supplied with the necessary information. = A party=20 who intends to raise an issue concerning the law of a foreign = country must=20 give written notice and furnish all parties copies of any written=20 materials or sources the party intends to use as proof of the = foreign law.=20 The determination of the laws of a foreign country is a question = of law=20 for the trial court. Therefore, though the trial court did not = explicitly=20 refer to the provisions of Honduran law supplied by Wanda in its = order=20 granting summary judgment or at the hearing on her motion, we must = presume=20 it took judicial notice of those provisions.").

A.=20 GIE's Arguments on Appeal

GIE devotes=20 a large portion of its appellate brief to the argument that the = Nexen=20 parties "waived" the application of Alberta law because (1) they = "did not=20 seek and receive a ruling pursuant to Rule 203 of the Texas Rules = of=20 Evidence"; (2) they invoked Texas substantive law by seeking = attorney's=20 fees in their petition under a Texas statute; and (3) they = allegedly=20 "failed to sufficiently apprise the court of Alberta law and its=20 application to this case." We reject GIE's waiver arguments. =

First, we=20 note that GIE--through its answer's allegation that the Nexen = parties'=20 claims were barred under the repose laws of Texas or = Alberta--was=20 the first party to raise the choice-of-law issue. Indeed, because = the=20 contracts expressly called for application of Alberta law, GIE, as = the=20 summary-judgment movant, had the burden to demonstrate = conclusively either=20 (1) that the Alberta statute of repose barred the Nexen parties' = claims;=20 (2) that the contracts' choice-of-law provisions were invalid, so = that the=20 Texas statute of repose applied and barred the Nexen parties' = claims; or,=20 as GIE actually chose to do, (3) that no material difference = existed=20 between application of the two jurisdictions' statutes of repose, = so that=20 the Nexen parties' claims were barred under either law. In = attempting to=20 prove the third matter conclusively, GIE itself produced = and=20 relied on the Alberta statute and two Alberta cases.^{=20
(6)} Having litigated under Alberta and Texas law, GIE = cannot now=20 argue that the Nexen parties did not sufficiently raise = the issue=20 or that they are somehow estopped from asserting the application = of=20 Alberta's law. Moreover, rule 203, by its plain language, does not = require=20 an express, written ruling; none of the cases that GIE cites = stands for=20 this proposition; and, as explained above, we deem the trial court = to have=20 made the proper choice of law when, as here, it is presented with = the=20 choice-of-law issue and the evidence in support of it. See = Tex.=20 R. Evid. 203 (not mentioning that express, written ruling is = required);=20 In re Estate of Loveless, 64 S.W.3d at 575; cf. State = Nat'l=20 Bank, 802 S.W.2d at 290 (similar holding under Texas Rule of = Evidence=20 202); Tex. R. App. P. 33.1(a)(2)(A) (allowing for implicit rulings = to=20 preserve error). Finally, the Alberta case law, the Alberta = Limitations=20 Act, and the ALRI report^{=20
(7)} that, together, both parties presented below are the = type of=20 materials contemplated under rule 203 to prove foreign = jurisdictions'=20 laws.^{=20
(8)} See Tex. R. Evid. 203 (allowing court to = consider,=20 in determining law of foreign country, "any material or = source=20 . . . including but not limited to affidavits,=20 testimony, briefs, and treatises"). In fact, if this type of = evidence did=20 not suffice, then GIE--which presented this same type of evidence = in=20 support of its own summary-judgment motion--could not have carried = its=20 burden of showing conclusively that the Alberta and Texas statutes = of=20 repose were materially similar.

B.=20 Which Law Applied

"The most=20 basic policy of contract law is the protection of the justified=20 expectations of the parties." Chase Manhattan Bank, N.A. v. = Greenbriar=20 N. Section II, 835 S.W.2d 720, 723 (Tex. App.--Houston [1st = Dist.]=20 1992, no writ) (citing DeSantis v. Wackenhut Corp., 793 = S.W.2d=20 670, 677 (Tex. 1990)). "The parties' understanding of their = respective=20 rights and obligations under the contract depends in part upon how = certain=20 they are about how the law will interpret and enforce their = agreement."=20 Id. (citing DeSantis, 793 S.W.2d at 677). When, = as here,=20 "the parties reside or expect to perform their respective = obligations in=20 different jurisdictions, they may be uncertain about which = jurisdiction's=20 law will govern the construction and enforcement of the contract." = Id. (citing DeSantis, 793 S.W.2d at 677). "In an = attempt=20 to avoid this uncertainty, they may express in their agreement = their=20 choice that the law of a specified jurisdiction will apply to = their=20 contract." Id. (citing DeSantis, 793 S.W.2d at = 677).=20 "Judicial respect for their choice promotes the policy of = protecting their=20 expectations." Id. (citing DeSantis, 793 S.W.2d = at=20 677).

"However,=20 the parties' freedom to choose which jurisdiction's law will apply = to=20 their agreement is not unlimited." Id. (citing = DeSantis,=20 793 S.W.2d at 677). "They cannot require that their contract be = governed=20 by the law of a jurisdiction which has no relation whatsoever to = them or=20 their agreement." Id. (citing DeSantis, 793 = S.W.2d at=20 677). "Nor can they, in their agreement, thwart or offend the = public=20 policy of the state whose law would otherwise apply." Id. = (citing=20 DeSantis, 793 S.W.2d at 677).

These=20 principles are embodied in section 187 of the Restatement (Second) = of=20 Conflicts of Law, which the Texas Supreme Court has adopted for = review of=20 choice-of-law clauses. See DeSantis, 793 S.W.2d at 677-78 = (adopting same). Section 187 provides as follows:

(1) The law=20 of the state chosen by the parties to govern their contractual = rights and=20 duties will be applied if the particular issue is one which the = parties=20 could have resolved by an explicit provision in their agreement = directed=20 to that issue.

(2) The law=20 of the state chosen by the parties to govern their contractual = rights and=20 duties will be applied, even if the particular issue is one which = the=20 parties could not have resolved by an explicit provision in their=20 agreement directed to that issue, unless either

(a) the=20 chosen state has no substantial relationship to the parties or the = transaction and there is no other reasonable basis for the = parties'=20 choice, or

(b)=20 application of the law of the chosen state would be contrary to a=20 fundamental policy of a state which has a materially greater = interest than=20 the chosen state in the determination of the particular issue and = which,=20 under the rule of =A7 188,^{=20
(9)} would be the state of the applicable law in the = absence of=20 an effective choice of law by the parties.

. . . .

Restatement=20 (Second) of Conflict of Laws =A7 187 (1971).

We conclude=20 that, under either Restatement section 187(1) or 187(2), the = Alberta=20 statute of repose applied.^{=20
(10)} If, for example, the issue of what statute of = repose to=20 apply is one that "the parties could have resolved by an explicit=20 provision in their agreement directed to that issue," then we = would apply=20 section 187(1). Id. =A7 187(1); see Alberta = Limitations=20 Act, R.S.A., c. L-12, s. 7 (2000) ("[I]f an agreement expressly = provides=20 for the extension of a limitation period provided by this Act, the = limitation period is altered in accordance with the agreement."); = cf.=20 Kenneco Energy, Inc. v. Johnson & Higgins of Tex., 921 = S.W.2d=20 254, 262 n.9 (Tex. App.--Houston [1st Dist.] 1995) ("A party may=20 contractually lengthen a statute of limitation"), modified on = other=20 grounds, 962 S.W.2d 507 (Tex. 1998). If section 187(1) = applies, then=20 we would apply the parties' contractual choice of Alberta law. =

If, on the=20 other hand, the issue of what statute of repose to apply is one = "that the=20 parties could not have resolved by an explicit provision in their=20 agreement directed to that issue," then we would apply section = 187(2).=20 Id. =A7 187(2) & cmt. d ("Examples of such questions = [falling=20 under section 187(2)] are those involving capacity, formalities = and=20 substantial validity."); Trinity River Auth., 889 S.W.2d = at 261=20 (indicating that statutes of repose have been categorized as = substantive,=20 rather than procedural). Under section 187(2), we would apply the = parties'=20 contractual choice of Alberta law unless (1) Alberta has no = substantial=20 relationship to the parties or the transaction or, (2) assuming = without=20 deciding that Texas has a materially greater interest in = determining the=20 repose issue, the application of Alberta repose law would be = contrary to a=20 fundamental Texas public policy and Texas has the most significant = relationship to the transaction and the parties. See = DeSantis,=20 793 S.W.2d at 677-78; Restatement (Second) of Conflict of Laws =A7 = 187(2).

Under our=20 first inquiry of section 187(2)--whether Alberta has a substantial = relationship to the parties or the transaction--the proper inquiry = is=20 whether "the contract bears a reasonable relation to the chosen = state=20 . . . ." First Commerce Realty Investors v. K-F = Land=20 Co., 617 S.W.2d 806, 808-09 (Tex. Civ. App.--Houston [14th = Dist.]=20 1981, writ ref'd n.r.e.); see DeSantis, 793 S.W.2d at 678 = (applying "substantial relationship" terminology for same test).^{=20
(11)} Here, (1) the amended contract recited that it was = executed=20 in Calgary, Alberta, Canada; (2) the amended contract was signed = by COIL's=20 representative who officed in Calgary, Alberta, Canada; and (3) = the=20 contract and the amended contract required that GIE's invoices and = notices=20 be sent to a representative or to an office in Calgary, Alberta, = Canada.=20 The Nexen parties and the transaction were thus substantially = related to=20 Alberta, Canada. See DeSantis, 793 S.W.2d at 678-79 = (holding that=20 chosen state's law had substantial relationship to parties and = transaction=20 because one of parties had corporate office in that state and = because some=20 of parties' negotiations occurred there). Accordingly, the = parties' choice=20 of Alberta law must be respected unless the application of Alberta = law=20 offends fundamental Texas public policy and Texas has the = most=20 significant relationship to the transaction and parties. See=20 DeSantis, 793 S.W.2d at 677-78; Restatement (Second) of = Conflict of=20 Laws =A7 187(2)(b).

As for our=20 second inquiry under Restatement section 187(2), we begin with the = issue=20 of whether application of Alberta repose law would be contrary to = a=20 fundamental Texas public policy.^{=20
(12)} Generally speaking, application of another = jurisdiction's=20 laws is not contrary to the forum state's fundamental public = policy merely=20 because application of the other state's law leads to a different = result=20 from the result that would be obtained if the forum state's law = were=20 applied. DeSantis, 793 S.W.2d at 680 (construing = Restatement=20 (Second) of Conflicts of Law =A7 187 cmt. g). Likewise, the fact = that the=20 other state's law differs materially from that of the forum state = does not=20 itself show that application of the other state's law would offend = Texas=20 public policy. Id. Rather, in determining whether public = policy=20 would be violated by the application of another state's = law,

the focus=20 is on whether the law in question is a part of state policy so = fundamental=20 that the courts of the state will refuse to enforce an agreement = contrary=20 to that law, despite the parties' original intentions, and even = though the=20 agreement would be enforceable in another state connected with the = transaction.

Id.=20 Moreover, if the public policies in the forum state and the = parties'=20 chosen state "are the same, different approaches do not contravene = [the=20 policies] just because one [approach] is somewhat stricter than = the=20 other." Chesapeake Oper., Inc. v. Nabors Drilling USA, = Inc., 94=20 S.W.3d 163, 178 (Tex. App.--Houston [14th Dist.] 2002, no pet.).=20

Here, the=20 Texas repose statute applies more to a specific group of = plaintiffs,=20 whereas the Alberta statute is of general application, and the = statutes=20 have different accrual dates. Compare Tex. Civ. Prac. = & Rem.=20 Code Ann. =A7 16.008(a) (providing for 10-year statute of = repose for=20 engineers and certain other professionals) with Alberta=20 Limitations Act, R.S.A., c. L-12, s. 3(1)(b) (2000) (providing for = general=20 10-year statute of repose). Nonetheless, each jurisdiction has a = repose=20 statute of 10 years. Id. Selection of Alberta substantive = law=20 thus subjects the Nexen parties to some repose statute, = rather=20 than freeing them of one altogether. Additionally, the policies = and=20 purposes underlying the two jurisdictions' repose statutes are = similar.^{=20
(13)} See Chesapeake Oper., Inc., 94 S.W.3d at = 178=20 (indicating that if public policies in forum state and parties' = chosen=20 state "are the same, different approaches do not contravene [the = policies]=20 just because one [approach] is somewhat stricter than the = other.").=20 Furthermore, the mere fact that Alberta's repose law differs to = some=20 extent from Texas's does not make the Alberta law contrary to = Texas's=20 fundamental public policy, even if the application of Alberta's = repose law=20 would lead to a different result. See DeSantis, 793 = S.W.2d at=20 680. Finally, at least one Texas court, although it did not = address the=20 issue of whether doing so would violate a fundamental public = policy of=20 Texas, has applied another jurisdiction's statute of repose. = See=20 Crisman v. Cooper Indus., 748 S.W.2d 273, 280 (Tex. = App.--Dallas=20 1988, writ denied) (applying another state's statute of repose = under=20 pre-DeSantis choice-of-law rule for tort actions, even = when Texas=20 did not have applicable statute of repose for that tort); cf. = Allison=20 v. ITE Imperial Corp., 928 F.2d 137, 145 (5th Cir. 1991) = (holding=20 that application of another state's statute of repose did not = violate=20 fundamental public policy of forum state of Mississippi); = Boudreau v.=20 Baughman, 322 N.C. 331, 342, 368 S.E.2d 849, 858 (N.C. 1988) = (holding=20 that application of another state's statute of repose did not = violate=20 fundamental public policy of forum state of North Carolina). = Accordingly,=20 we conclude that the application of Alberta's statute of repose = does not=20 offend any fundamental public policy of Texas, and we thus need = not decide=20 whether Texas has the most significant relationship to the = transaction and=20 parties.

We hold=20 that, under either provision of Restatement section 187, Alberta = law=20 applied to the Nexen parties' claims. Accordingly, we further hold = that=20 the trial court could not have rendered summary judgment on the = basis that=20 the Texas statute of repose applied to those claims, and we thus = deem the=20 trial court to have applied Alberta law in its summary-judgment=20 determination. See In re Estate of Loveless, 64 S.W.3d at = 575;=20 cf. State Nat'l Bank, 802 S.W.2d at 290 (under Texas Rule = of=20 Evidence 202). We thus need not reach the Nexen parties' = alternative=20 arguments under their issue that, if the Texas statute of repose = applied,=20 that statute did not bar their claims.

The Alberta Statute of Repose

In the next=20 argument under their sole issue, the Nexen parties assert that the = trial=20 court erred in rendering summary judgment because GIE did not = conclusively=20 demonstrate that the Alberta statute of repose barred their = claims. In=20 particular, the Nexen parties argue that Alberta law does not = allow GIE to=20 divide up its work under the contract in order to obtain an = earlier=20 accrual date.

In=20 pertinent part, the Alberta statute of repose, which is part of = the=20 Alberta "Limitations Act," provides:

3.=20 Limitations periods

(1)=20 . . . [I]f a claimant does not seek a remedial order=20 within

. . .

(b) 10=20 years after the claim arose,

. . . the=20 defendant, on pleading this Act as a defence, is entitled to = immunity from=20 liability in respect of the claim.

. . .

(3) For the=20 purposes of subsection (1)(b),

(a) a claim=20 or any number of claims based on any number of breaches of duty, = resulting=20 from a continuing course of conduct or a series of related acts or = omissions, arises when the conduct terminates or the last act or = omission=20 occurs;

(b) a claim=20 based on the breach of a duty arises when the conduct, act or = omission=20 occurs;

. . . .

Alberta=20 Limitations Act, R.S.A., c. L-12, ss. 3(1)(b), 3(3)(a)-(b) (2000). = The=20 defendant has the burden of proof under section 3(1)(b). = Id. s.=20 3(5)(b). The Limitations Act does not define the term "conduct" as = used in=20 section 3(3)(a) or expressly state that conduct under a contract = can be=20 divided into discrete parts, the ending of each of which triggers = the=20 repose period, absent such a division in the contract = itself.

In its=20 summary-judgment motion, GIE relied on sections 3(1)(b) and = 3(3)(a) to=20 defeat the Nexen parties' claims. In its appellee's brief, GIE = argues that=20 the summary judgment may be affirmed based on the limitations = accrual date=20 specified in Limitations Act section 3(3)(b): "a claim = based on=20 the breach of a duty arises when the conduct, act or omission = occurs." GIE=20 did not assert this provision of the Limitations Act as a basis = for=20 summary judgment, however, instead relying on section = 3(3)(a): "a=20 claim or any number of claims based on any number of breaches of = duty,=20 resulting from a continuing course of conduct or a series of = related acts=20 or omissions, arises when the conduct terminates or the last act = or=20 omission occurs."^{=20
(14)} Summary judgment cannot be rendered on a basis that = was not=20 asserted in the movant's motion as a ground for summary judgment. = See,=20 e.g., Postive Feed, Inc. v. Guthmann, 4 S.W.3d 879, = 881=20 (Tex. App.--Houston [1st Dist.] 1999, no pet.). We thus consider = only=20 whether GIE proved conclusively that the Alberta Limitations Act = sections=20 3(1)(b) and 3(3)(a) barred the Nexen parties' claims.

There is=20 relatively little Alberta case law interpreting section 3(3)(a). = What case=20 law there was at the time of summary judgment, the parties = produced. The=20 case law that the parties produced does not resolve the question = of=20 whether a contracting party's overall work may be divided = piecemeal for=20 purposes of determining when the statute of repose is triggered, = when the=20 contract does not so divide the work.^{=20
(15)} Nonetheless, we conclude that, what Alberta law = there is=20 suggests that Alberta's statute of repose bars the Nexen parties' = claims=20 in this case.

Section=20 3(3)(a) is written in reference to the claim made: "[A] claim = or=20 any number of claims based on any number of breaches of = duty=20 . . . ." Alberta Limitations Act, R.S.A., c. L-12, = s.=20 3(3)(a) (2000) (emphasis added). More specifically, section = 3(3)(a)'s=20 repose period is triggered only when the breach of duty on = which the=20 claim is based results from a continuing course of conduct; = the=20 triggering events (termination of conduct or last act or omission) = are=20 thus also tied to the breach of the duty on which the claim is = based. It=20 is true that, generally speaking, Alberta limitations statutes are = to be=20 strictly construed. See Campbell Estate v. Fang, [1994] = A.J. No.=20 521, at =B6 10 (considering another limitations statute that = provided, in=20 terms similar to part of Limitations Act section 3(3)(a), that one = year=20 from "date when the professional services terminated"). That is, = "[b]efore=20 a person should be deprived of his or her cause of action, the = language in=20 the limiting statute should be clear and unambiguous." = Id. But=20 the rule of strict construction generally makes a difference only = if the=20 statute's language is ambiguous. See Cail v. Serv. Motors, = Inc.,=20 660 S.W.2d 814, 815 (Tex. 1983) ("If the disputed statute is clear = and=20 unambiguous extrinsic aids and rules of statutory construction are = inappropriate . . . , and the statute should be given = its common=20 everyday meaning.") (citation omitted); City of Houston v.=20 Jackson, 192 S.W.3d 764, 770 (Tex. 2006) ("When the statutory = language is unambiguous, we must apply the statute as written."). = The=20 plain language of section 3(3)(a) is not ambiguous because it = leads to=20 only one conclusion: that the two listed triggering events are = tied to the=20 breach of duty on which the claim is based.

We now=20 consider the pleadings and the summary-judgment evidence in light = of the=20 contract, the amended contract, and the law. The Nexen parties are = correct=20 that both contracts spoke of GIE's work on the Masila Project as a = whole,=20 generally without breaking down that work into discrete divisions = other=20 than into Phase 1 and Phase 2--neither of which phases encompassed = only=20 the pipeline work. Nonetheless, the Nexen parties' petition = alleged that=20 "because of the manner in which GIE designed the Pipeline and = the=20 Planned Pipeline Route, the precipitation and flooding caused = the=20 pipeline to move," thereby damaging the pipeline. (Emphasis = added.) Their=20 claims were thus squarely--and completely--based on GIE's = engineering and=20 design work on the pipeline, rather than on other aspects of the = Masila=20 Project. GIE presented summary-judgment evidence that, when viewed = in the=20 light most favorable to the Nexen parties, showed that the = pipeline was=20 designed, was constructed, and became operational no later than = August=20 1993, with only minor punch-list items and "ROW clean-up" to be = done after=20 that date. For example, GIE's vice-president described GIE's = pipeline work=20 as substantially completed by July 1993. Likewise, a June 1993 = "project=20 status report" indicated that "[t]he . . . Main Export = Pipeline=20 was Mechanically accepted by [COIL] on 26th June 1993. Only minor=20 punchlist items and ROW clean-up remain." The Nexen parties' = claims were=20 based on GIE's conduct in "design[ing] the Pipeline and the = Planned=20 Pipeline Route," which conduct constituted the sole "breaches of = duty"=20 upon which their claims were based. See Alberta = Limitations Act,=20 R.S.A., c. L-12, s. 3(3)(a) (2000). GIE thus carried its burden of = showing=20 conclusively both that its last relevant act or omission in = engineering=20 and designing the pipeline occurred more than 10 years before suit = was=20 filed and that GIE terminated its relevant engineering and design = work on=20 the pipeline more than 10 years before suit was filed. = Accordingly, it is=20 immaterial that the contracts viewed GIE's services in terms of = the=20 overall Masila Project or that other summary-judgment evidence = raised a=20 fact issue on whether GIE's work continued on aspects of the = Masila=20 Project other than the relevant pipeline work after July 1993.^{=20
(16)} Seidel v. Kerr, on which the Nexen parties = rely,=20 does not require a different result. See id. [2003] 330 = A.R. 284,=20 19 Alta. L.R. (4th) 201. Seidel involved a suit for = shareholder=20 oppression, and the claims there were based on the defendant's = continuing=20 actions constituting fraudulent or wrongful conduct. See id. = at=20 =B6 5. The trial court determined that the limitations = period, under=20 the Limitations Act's predecessor, ran from the date when the = claimants=20 should have first discovered the breach of duty; the = Seidel court=20 disagreed, holding that limitations had not run because the claims = were=20 based on the defendant's course of conduct that continued = thereafter.=20 See id. at =B6=B6 14-15, 48-51 ("The trial judge = focused on the=20 first act in the course of conduct and treated the entire series = of=20 transactions as one act. This is not logical when the claim = involves=20 a series of acts amounting to a course of oppressive = conduct.")=20 (emphasis added). Here, in contrast, the claims involve a course = of=20 conduct leading up to and including the last day of the relevant = work on=20 the pipeline, not acts occurring afterwards on other aspects of = the Masila=20 Project.

Although=20 the Alberta statute of repose is to be strictly construed and the=20 contracts defined GIE's work in terms of the overall project = divided only=20 into Phase 1 and Phase 2, the repose statute unambiguously ties = the=20 triggering events for repose to the breaches of duty on which the = claims=20 are based--here, GIE's engineering and design work on the pipeline = and its=20 placement. Accordingly, we hold that the trial court did not err = in=20 rendering summary judgment on the basis that the Alberta statute = of repose=20 barred the Nexen parties' claims.

Conclusion

We overrule=20 the Nexen parties' issue. We affirm the judgment of the trial=20 court.

Tim=20 Taft

Justice

Panel=20 consists of Justices Taft, Keyes, and Hanks.=20

1. In support of this summary-judgment = ground, GIE=20 relied on--and attached as summary-judgment evidence--the Alberta = repose=20 statute and two cases from that jurisdiction.=20

2. In support, the Nexen parties attached = the Alberta=20 repose statute, several cases from that jurisdiction, and one of = the=20 Alberta Law Reform Institute's ("ALRI") reports on limitations.=20

3. In this briefing, GIE again cited to and = relied on=20 Alberta case law.=20

4. "Unlike traditional limitations = provisions, which=20 begin running upon accrual of a cause of action, a statute of = repose runs=20 from a specified date without regard to accrual of any cause of = action."=20 Trinity River Auth. v. URS Consultants, Inc.-Tex., 889 = S.W.2d=20 259, 261 (Tex. 1994). Statutes of repose thus may "potentially cut = off a=20 right of action before it accrues." Id. at 263-64. It is = for this=20 reason that statutes of repose are viewed as substantive, rather = than=20 procedural.=20

5. The Nexen parties argue that a = docket-sheet entry=20 indicates that the trial court applied the Alberta statute of = repose. GIE=20 contests that we may consider a docket-sheet entry to be the = equivalent of=20 an express ruling. See Hamilton v. Empire Gas & Fuel = Co., 134=20 Tex. 377, 384-85, 110 S.W.2d 561, 566 (1937) (indicating that = docket-sheet=20 entry is generally not accepted as substitute for ruling entered = of=20 record); Energo Int'l Corp. v. Modern Indus. Heating, = Inc., 722=20 S.W.2d 149, 151 n. 2 (Tex. App.--Dallas 1986, no writ) (indicating = that=20 docket-sheet entry ordinarily forms no part of record that may be=20 considered, but is instead memorandum made for trial court's and = clerk's=20 convenience). Given our disposition below, we need not determine = whether=20 the docket-sheet entry constituted an express ruling on the = choice-of-law=20 matter.=20

6. We note that GIE's proof showed not that = the=20 statutes are materially similar, but that they are worded = differently in=20 material ways. For example, the applicable portion of the Alberta = statute=20 of repose provides that "a claim or any number of claims based on = any=20 number of breaches of duty, resulting from a continuing course of = conduct=20 or a series of related acts or omissions, arises when the = conduct=20 terminates or = the last act=20 or omission occurs." = Alberta=20 Limitations Act, R.S.A., c. L-12, s. 3(3)(a) (2000) (emphasis = added). In=20 contrast, the applicable Texas statute of repose requires that = suit be=20 filed "not later than 10 years after the substantial = completion of the=20 improvement or = the=20 beginning of operation of the equipment in an = action=20 arising out of a defective or unsafe condition of the real = property, the=20 improvement, or the equipment." Tex. Civ. Prac. & Rem. Code = Ann. =A7=20 16.008(a) (Vernon 2002) (emphasis added). Because GIE's evidence = showed=20 that the two jurisdictions' statutes of repose differed = materially, it was=20 appropriate for the trial court to conduct a choice-of-law = analysis.=20

7. The ALRI report that the Nexen parties = presented in=20 support of the application of Alberta's law was an earlier version = of the=20 same report on which at least two Alberta courts have relied--a = fact that=20 was also shown below by virtue of those courts' opinions having = been=20 produced for the trial court's consideration. See Seidel v. = Kerr,=20 [2003] 330 A.R. 284, 19 Alta. L.R. (4th) 201, at =B6 45; Bowes = v. City=20 of Edmonton, [2003] A.J. No. 700, 2003 ABQB 492, 2003 AB.C. = LEXIS=20 1644, at =B6 89.=20

8. The trial court could consider the = evidence of=20 Alberta's law supplied by both parties, regardless of who had the = burden=20 of proof. See PennWell Corp. v. Ken Assocs., Inc., 123 = S.W.3d=20 756, 761 n.4 (Tex. App.--Houston [14th Dist.] 2003, pet. denied).=20

9. Restatement (Second) of Conflicts of Law = section=20 188 provides in pertinent part that "the rights and duties of the = parties=20 with respect to an issue in contract are determined by the local = law of=20 the state which, with respect to that issue, has the most = significant=20 relationship to the transaction and the parties under the = principles=20 states in [Restatement (Second) of Conflicts of Law] section 6."=20 Restatement (Second) of Conflict of Laws =A7 188 (1971).=20

10. Because the resolution of the = choice-of-law issue=20 would be the same under either Restatement section, we need not = decide=20 whether Restatement section 187(1) or 187(2) applied.=20

11. The First Commerce Realty = Investors=20 court, like several courts predating the Texas Supreme Court's = decision in=20 DeSantis, used the language "reasonable relation[ship]." = See=20 First Commerce Realty Investors v. K-F Land Co., 617 S.W.2d = 806,=20 808-09 (Tex. Civ. App.--Houston [14th Dist.] 1981, writ ref'd = n.r.e.);=20 see also Hi Fashion Wigs Profit Sharing Trust v. Hamilton Inv. = Trust, 579 S.W.2d 300, 302 (Tex. Civ. App.--Eastland 1979, no = writ).=20 In contrast, the DeSantis court used the term = "substantial=20 relationship," which the court adopted from Restatement (Second) = of=20 Conflict of Laws section 187(2)(a). See DeSantis v. Wackenhut=20 Corp., 793 S.W.2d 670, 678 (Tex. 1990). We need not determine = what,=20 if any, difference exists between the two standards because we = conclude,=20 based on this record, that the applicable relationships with = Alberta=20 sufficed under any possible reading of either standard.=20

12. Again, we assume without deciding that = Texas law=20 has a materially greater interest in this issue than does Alberta. =

13. See Trinity River Auth., 889 = S.W.2d at=20 263-64 (indicating that purpose of limitations statutes in = general, and of=20 section 16.008 in particular, is to compel exercise of right of = action=20 within reasonable time so that opposing party has fair opportunity = to=20 defend before evidence is stale); Alberta Law Reform Institute,=20 Limitations, at 1-2 (Report No. 55, Dec. 1989) = (indicating that=20 concept of repose serves interests of defendants by providing for = absolute=20 cut-off date for claims, in order to facilitate long-term planning = by=20 those persons, as well as to require bringing of claims before = evidence=20 becomes "defective because of the passage of time").=20

14. GIE's summary-judgment motion did quote = both=20 sections 3(3)(a) and 3(3)(b) and once stated that the repose = period ran=20 from the alleged breach or the date of the work's = substantial=20 completion, but the overall gist of GIE's motion was that = Limitations Act=20 section 3(1)(b) and 3(3)(a)--the latter of which GIE construed as = being=20 triggered upon substantial completion of the work--barred the = Nexen=20 parties' claims. Because "[s]ummary judgment is a harsh remedy," = an=20 appellate court "will strictly construe summary judgment in = procedural and=20 substantive matters against the movant." Tanksley v. = CitiCapital=20 Commercial Corp., 145 S.W.3d 760, 763 (Tex. App.--Dallas = 2004, pet.=20 denied) (citations omitted). Accordingly, we must strictly = construe GIE's=20 summary judgment grounds. Castillo v. Flores, No. = 01-05-00760-CV,=20 2006 WL 488609, at *9 (Tex. App.--Houston [1st Dist.] Mar. 2, = 2006, no=20 pet.). Given a fair reading and a strict construction, GIE's=20 summary-judgment ground was that the Limitations Act section = 3(1)(b) and=20 3(3)(a) barred the Nexen parties' claims. This is also how the = Nexen=20 parties interpreted the motion's grounds below: their = summary-judgment=20 response focused--without correction by GIE in its = summary-judgment reply=20 brief--on Limitations Act section 3(3)(a).=20

15. None of the case law that the parties = produced=20 expressly decides this issue, some of it contains only dictum = concerning=20 section 3(3)(a), and some of it interprets different limitations = statutes=20 with somewhat similar wording. See Bowes v. City of = Edmonton,=20 [2003] A.J. No. 700, 2003 ABQB 492, 2003 AB.C. LEXIS 1644, at = =B6=B6 74-76,=20 92, 114, 119-22 (cited by both parties; providing that, under = predecessor=20 to Limitations Act, repose period began running on date that = construction=20 of plaintiffs' homes was finished because that was date that their = claims=20 against defendant, who had sold them their land, were = discoverable;=20 containing only dictum on purposes of current Limitations Act = section=20 3(3)(b)); Seidel v. Kerr, [2003] 330 A.R. 284, 19 Atla. = L.R.=20 (4th) 201, at =B6=B6 42-45 (cited by the Nexen parties; = stating in dictum=20 rationale behind Limitations Act section 3(3)(a) and applying that = rationale to hold that shareholder-oppression suit was not barred = by=20 repose); Badger Daylighting, Inc. v. Sunoma Energy Corp., = [2003]=20 19 Alta. L.R. (4th) 54, 10 W.W.R. 480, at =B6 69 (cited by = the Nexen=20 parties; concerning whether lien was timely filed when it was = filed during=20 period that work was abated for weather); Campbell Estate v.=20 Fang, [1994] A.J. No. 521, at =B6 16 (cited by the Nexen = parties;=20 considering different limitations statute, which provided (like = part of=20 section 3(3)(a)) that suit must be brought within one year from = "date when=20 the professional services terminated"; not considering accrual = date, but=20 instead whether claimant fell within class of persons to whom = statute=20 applied). Some of the case authority that the parties produced was = also=20 inapposite. See Herron v. Hunting Chase, Inc., = [2003]=20 330 A.R. 53, 16 Alta. L.R. (4th) 225, at =B6=B6 19-23 (relied on = by the Nexen=20 parties; considering meaning of "substantial performance" for = purposes of=20 common-law anticipatory breach); Allen Farms Ltd. v. Oliver = Indus.=20 Supply Ltd., [1992] 124 A.R. 321, 1992 A.R. LEXIS 4046, at = =B6 105=20 (cited by GIE; concerning different limitations statute providing = that=20 "date of substantial performance of the agreement" was accrual = date). In=20 short, none of the parties' authority commands a particular result = or is=20 particularly helpful in this case.=20

16. For example, viewed in the required = light, one of=20 the 1993 status reports also showed that other engineering = projects that=20 the contracts listed among GIE's responsibilities were on-going at = the=20 time that the pipeline went into use. Another 1993 status report = indicated=20 that the Masila Project reached a "major milestone" when the = pipeline went=20 into use in July and early August 1993. However, that same report = stated=20 that "[t]he completion and start-up of the Central Production = Facility=20 remains as a challenging task to fulfill the commitment of the = project=20 team"; it recited that "assessment of [GIE's] remaining work to = complete=20 the engineering and procurement activities is underway"; and the = report=20 again showed that other engineering projects that the contracts = listed=20 among GIE's responsibilities were on-going at that time. In fact, = it was=20 not until July 20, 1994 that GIE certified, as the contract = required, that=20 "all work authorized under the contract has been completed." = Finally, GIE=20 submitted three invoices to the Nexen parties for work done in = 1995. None=20 of this evidence appears to concern GIE's alleged breaches of duty = in=20 their work on the engineering and design of the pipeline and its=20 placement.

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