SOUTHERN STATES CHEMICAL, INC. v. TAMPA TANK AND WELDING, INC ( 2023 )

NOTICE: This opinion is subject to modification resulting from motions for reconsideration under Supreme Court
Rule 27, the Court’s reconsideration, and editorial revisions by the Reporter of Decisions. The version of the
opinion published in the Advance Sheets for the Georgia Reports, designated as the “Final Copy,” will replace any
prior version on the Court’s website and docket. A bound volume of the Georgia Reports will contain the final and
official text of the opinion.
In the Supreme Court of Georgia
Decided: May 31, 2023
S23A0273. SOUTHERN STATES CHEMICAL, INC. et al. v.
TAMPA TANK & WELDING, INC. f/k/a TAMPA TANK INC. et al.
MCMILLIAN, Justice.
In 2012, Southern States Chemical, Inc. and Southern States
Phosphate and Fertilizer Company (collectively, “Southern States”)
sued Tampa Tank & Welding, Inc. (“Tampa Tank”) and Corrosion
Control, Inc. (“CCI”), claiming damages from a faulty, leaky storage
tank that Tampa Tank had installed in 2002. After a decade of
litigation and multiple appeals, the trial court dismissed Southern
States’s claims with prejudice, concluding that the claims were
barred by the applicable statute of repose. We affirm for the reasons
that follow.
As previously set out by the Court of Appeals, the record shows
that
[Southern States] manufacture[s], buy[s], sell[s], and
store[s] sulfuric acid in bulk at a facility in Savannah. In
2000, [Southern States] contacted Tampa Tank about
renovating a 24-foot tall, 130-foot wide storage tank (the
“[Duval Tank]”) that had previously stored molten sulfur,
such that it would be suitable for storing up to 2.2 million
gallons of sulfuric acid. [Southern States] and Tampa
Tank engaged in contract negotiations for at least nine
months. On August 21, 2000, a contract in the form of a
letter proposal drafted by Tampa Tank was signed and
executed by [Southern States]. Prior to January 2002, the
parties also engaged in subsequent written change orders
altering the contract. There is no merger clause in any of
these documents.
The initial letter proposal between Tampa Tank and
[Southern States] contained the following express one-
year warranty provision: “All material and workmanship
are guaranteed for a period of twelve (12) months from
the date of completion of this work.”
The [Duval Tank] renovation was completed in January
2002. The renovation required Tampa Tank to install an
impervious plastic (“HDPE”) liner directly on top of the
[existing] steel floor of the tank. Tampa Tank then welded
a new steel floor above the old floor of the tank, and a
layer of sand filled the gap between the old floor and the
new floor. In order to prevent corrosion of the new floor,
Tampa Tank installed a cathodic corrosion control system
(“cathodic system”) in the sand layer. Tampa Tank
installed, but did not design, the cathodic system; it
contracted with [CCI] to provide the design, materials, on-
site technical assistance, and testing of the system.
During installation, Tampa Tank’s foreman consulted
2
with CCI over the phone regarding the installation of the
magnesium strips of the cathodic system, but CCI did not
assist with the installation on[-]site. CCI’s contract with
Tampa Tank only required it to design the cathodic
system, procure the materials for its installation, and test
the system once installed. [Southern States contends]
that Tampa Tank misplaced magnesium ribbons, which
are a key component of the cathodic system, drove a
Bobcat bulldozer over the sand layer after the ribbons
were installed, which tampered with the integrity of the
system, and failed to properly seal the new floor, which
left it open to corrosive rainwater.
[Southern States contends] that CCI failed to properly
test, design and commission the cathodic system. After
the tank’s renovation was substantially completed in
January 2002, CCI performed a post-installation
commissioning inspection of the cathodic system. The
report resulting from that inspection indicated that the
cathodic system was working and properly installed.
However, the cathodic system and the sand layer it was
installed upon had been covered up with steel plates by
the time CCI arrived on[-]site to perform its inspection.
CCI inspected the cathodic system when the tank was
empty, and it was possible that a portion of the steel
plates was not in contact with the sand layer during the
testing because there was no liquid pressing the plates
down into the sand. [Southern States contends] that CCI
failed to properly test the cathodic system by neglecting
to confirm that Tampa Tank kept the sand layer dry, by
failing to verify that Tampa Tank had not driven a Bobcat
over the floor, and by conducting an inspection when the
tank was empty, which only put the cathodic system to
limited use. [Southern States also faults] CCI for not
having an engineer on-site to ensure that the corrosion
3
protection system was installed properly. CCI made no
warranty to [Southern States] about the tank. After
inspection, CCI prepared a post-installation report
concluding that the Duval Tank’s cathodic system had
been properly installed and was fully functioning.[ 1] CCI
sent the report to Tampa Tank, but not to [Southern
States].
On July 3, 2011, it was discovered that sulfuric acid was
leaking from the base of the Duval Tank.
Southern States Chemical, Inc. v. Tampa Tank & Welding, Inc., 331
Ga. App. XXVI (March 27, 2015) (unpublished) (“Southern States I”).
In 2012, Southern States sued Tampa Tank and CCI for breach
of contract, negligence, negligent undertaking, negligent
misrepresentation, fraud, punitive damages, and attorney fees. The
trial court granted summary judgment in favor of Tampa Tank and
CCI, in part, on the grounds that the claims were barred by the
eight-year statute of repose under OCGA § 9-3-51 (a) 2 (“the statute
1 “As part of its claim for breach of contract, [Southern States] had
previously asserted that it was the intended beneficiary of the contract
between Tampa Tank and CCI, that CCI had promised, in its post-installation
report, that the cathodic protection system would last 43-45 years, and that
this promise was intended for [Southern States’s] benefit.” Southern States
Chemical, Inc. v. Tampa Tank & Welding, Inc., 359 Ga. App. 731, 734 n.2 (858
SE2d 72) (2021) (“Southern States IV”).
2 OCGA § 9-3-51 (a) provides:
4
of repose”) and that Southern States could not show that it was
prevented from filing suit because of fraud.3 Southern States
appealed, and in an unpublished opinion in March 2015, the Court
of Appeals reversed the grant of summary judgment and remanded
for the trial court to determine if a genuine issue of material fact
existed as to whether Tampa Tank and CCI fraudulently concealed
any defects in the renovation, installation, or testing of the Duval
Tank and whether Southern States diligently pursued its claims
after the discovery of the alleged fraud. See Southern States I, 331
Ga. App. at XXVI.
(a) No action to recover damages:
(1) For any deficiency in the survey or plat, planning, design,
specifications, supervision or observation of construction, or
construction of an improvement to real property;
(2) For injury to property, real or personal, arising out of any such
deficiency; or
(3) For injury to the person or for wrongful death arising out of any
such deficiency
shall be brought against any person performing or furnishing the
survey or plat, design, planning, supervision or observation of
construction, or construction of such an improvement more than eight
years after substantial completion of such an improvement.
3 The trial court also made other rulings that are not pertinent to this
appeal.
5
On remand, in July 2015, the trial court again granted
summary judgment in favor of Tampa Tank and CCI based on the
running of the eight-year statute of repose and in an extensive order
found that Southern States did not exercise due diligence to discover
any fraud because it had never conducted any testing of the cathodic
protection system within the statute of repose time period.4
Southern States appealed, and in July 2016, the Court of Appeals
affirmed in another unpublished opinion. See Southern States
Chemical, Inc. v. Tampa Tank & Welding, Inc. f/k/a Tampa Tank,
Inc., 338 Ga. App. XXVIII (unpublished) (July 14, 2016) (“Southern
States II”). However, the Court of Appeals also concluded that the
trial court had ruled on the motions for summary judgment that
were filed before the fourth amended complaint, such that the trial
court did not expressly rule on whether the statute of repose barred
the claim for breach of the express one-year warranty contract,
4 At this point in the litigation, Southern States had filed its fourth
amended complaint, which asserted breach of contract, breach of contract per
se, negligence, negligence per se, negligent performance of undertaking
pursuant to Section 324A of the Second Restatement of Torts, negligent
misrepresentation, fraud, punitive damages, and attorney’s fees.
6
which claim apparently had been raised for the first time in the
fourth amended complaint. Southern States petitioned for writ of
certiorari, which this Court denied in April 2017. See Southern
States Chemical v. Tampa Tank & Welding, 2017 Ga. LEXIS 276(April 17, 2017).
Southern States filed a fifth amended complaint, and in
December 2017, the trial court found that Tampa Tank and CCI
were entitled to judgment as a matter of law once again based on
the statute of repose, but this time specifically addressing the breach
of express warranty claim and other claims raised in the fifth
amended complaint. The trial court also concluded that Southern
States’s contract claims were barred by the six-year statute of
limitations for breach of contract under OCGA § 9-3-24. Southern
States appealed to this Court, asserting jurisdiction on the grounds
that the Impairment Clause of the Georgia Constitution bars the
application of the statute of repose to its claims. See Ga. Const. of
1983, Art. I, Sec. I, Par. X. We rejected that contention and ordered
the case to be transferred to the Court of Appeals in November 2018.
7
In October 2019, the Court of Appeals affirmed the trial court’s
grant of summary judgment to Tampa Tank and CCI. See Southern
States Chemical, Inc. et al. v. Tampa Tank & Welding, Inc. et al.,
353 Ga. App. 286 (836 SE2d 617) (2019) (“Southern States III”). In
addition to affirming on the statute of repose, the Court of Appeals
held that Southern States was not a third-party beneficiary to the
contract between Tampa Tank and CCI, such that Southern States
could not rely on CCI’s representation to Tampa Tank that the
system should last 43 to 45 years and that “the only actionable
warranty from which Southern could seek damages is the one-year
express warranty in its contract with Tampa Tank.” Southern States
III, 353 Ga. App. at 292 (2). The Court of Appeals also determined
that it need not address Southern States’s remaining enumerations
of error, including whether the trial court had properly granted
summary judgment on the contract claims based on the six-year
statute of limitations. See id. at 296 (5).
Southern States filed a petition for writ of certiorari with this
Court, but while the petition was pending, the Georgia General
8
Assembly passed an amendment to OCGA § 9-3-51, which became
effective July 1, 2020 (“the 2020 amendment”). See Ga. L. 2020, p.
37, § 1. The 2020 amendment added subsection (c) to § 9-3-51,
providing: “This Code section shall not apply to actions for breach of
contract, including, but not limited to, actions for breach of express
contractual warranties.” Id. Section 2 of the 2020 amendment, which
is uncodified, provides: “This Act shall apply to causes of action
which have accrued on or after January 1, 1968.” Ga. L. 2020, p. 37,
§ 2. In August 2020, this Court granted certiorari, vacated the Court
of Appeals’ judgment in Southern States III, and remanded the case
to the Court of Appeals for consideration in light of the 2020
amendment. See Southern States Chemical, Inc. v. Tampa Tank &
Welding, Inc., 2020 Ga. LEXIS 650 (August 10, 2020).
In March 2021, the Court of Appeals issued an opinion
affirming in part, reversing in part, and remanding the case to the
trial court to reconsider in light of the 2020 amendment. See
Southern States Chemical, Inc. v. Tampa Tank & Welding, Inc., 359
Ga. App. 731 (858 SE2d 72) (2021) (“Southern States IV”).
9
Specifically, the Court of Appeals vacated Division 3 of its earlier
opinion addressing the statute of repose and remanded on that
issue; however, the Court of Appeals determined that our certiorari
grant order did not address Division 2, which concerned whether
Southern States was a third-party beneficiary to the Tampa Tank-
CCI contractual relationship, or Division 4, which concerned
whether Southern States exercised due diligence to discover any
alleged fraud, and that those divisions remain unchanged. The
Court of Appeals then addressed whether the six-year statute of
limitations barred the breach of express warranty claim and held
that it did not. The Court of Appeals reversed the trial court on this
issue, 5 see Southern States IV, 359 Ga. App. at 737-39 (2) (a), and
this Court denied certiorari in September 2021. See Tampa Tank &
Welding, Inc. v. Southern States Chemical, Inc., S21C0958
(September 21, 2021) (unpublished order). (Case No. S21C0958,
order dated September 21, 2021).
5 The Southern States IV court also addressed several other issues not
pertinent to this appeal.
10
In April 2022, the trial court granted Tampa Tank’s motion to
dismiss after considering the only remaining claim: Southern
States’s breach of contract claim based on the express one-year
warranty. The trial court reiterated that the eight-year statute of
repose as it stood prior to the 2020 amendment applied to the
contract and barred Southern States’s claims. Further, the trial
court found that retroactive application of the 2020 amendment
would deprive Tampa Tank of its vested right to be free from suit
based on the statute of repose, which would violate due process
under the federal and Georgia Constitutions.
The trial court also considered CCI’s renewed motion to
dismiss, which was limited to whether any of Southern States’s
remaining claims were pending against CCI. The trial court granted
CCI’s motion to dismiss in April 2022. Applying the law of the case
established by the Court of Appeals in Southern States III and IV,
the trial court concluded that Southern States was not a third-party
beneficiary of CCI’s alleged express warranties because Southern
States did not provide consideration directly to CCI. As such, the
11
only remaining claim was Southern States’s breach of express
warranty claim against Tampa Tank, and the trial court determined
that Southern States had not asserted a claim against CCI on the
express warranty. This appeal followed.
1. Southern States first argues that the trial court erred in
granting Tampa Tank’s motion to dismiss because the statute of
repose as amended in 2020, rather than the previous version of the
statute, applies to its breach of express warranty claim and under
the 2020 amendment, the statute of repose would not bar the claim.
On the other hand, Tampa Tank asserts that it has a vested right in
the pre-2020 version of the statute of repose and that applying the
2020 amendment retroactively to Southern States’s pre-existing
breach of express warranty claim would violate due process.
On appeal from a grant of a motion to dismiss, we review a trial
court’s decision de novo. See Norman v. Xytex Corp., 310 Ga. 127,
130 (2) (848 SE2d 835) (2020).
A motion to dismiss for failure to state a claim upon which
relief may be granted should not be sustained unless (1)
the allegations of the complaint disclose with certainty
12
that the claimant would not be entitled to relief under any
state of provable facts asserted in support thereof; and (2)
the movant establishes that the claimant could not
possibly introduce evidence within the framework of the
complaint sufficient to warrant a grant of the relief
sought.
Id. at 130-31 (2). Upon review, “any doubts regarding the complaint
must be construed in favor of the plaintiff.” Id. at 131 (2).
We start with first principles. The Due Process Clause of the
Fourteenth Amendment to the U.S. Constitution, 6 which has
language similar to the Due Process Clause in Georgia’s
Constitution, 7 “protects the interests in fair notice and repose that
may be compromised by retroactive legislation.” Landgraf v. USI
Film Products, 511 U.S. 244, 265 (IV) (A) (114 SCt 1483, 128 LE2d
6 The Fourteenth Amendment to the United States Constitution provides
that no State may “deprive any person of life, liberty, or property, without due
process of law.”
7 Ga. Const. of 1983, Art. I, Sec. I, Par. I provides: “[n]o person shall be
deprived of life, liberty, or property except by due process of law.” Because the
parties do not make any separate argument that the Due Process Clause of the
Georgia Constitution provides more protections than the federal Constitution
in this context, we will proceed with our analysis in reliance on the existing
federal precedent and federally-influenced Georgia precedent. See Rockdale
County v. U.S. Enterprises, Inc., 312 Ga. 752, 761 (3) n.10 (865 SE2d 135)
(2021) (noting that parties had made no argument that the Georgia Due
Process Clause provided greater or different protection against vague laws).
13
229) (1994). “[T]he presumption against retroactive legislation is
deeply rooted in our jurisprudence, and embodies a legal doctrine
older than our Republic.” 8 Id. at 265 (IV) (A). See Deal v. Coleman,
294 Ga. 170, 174 (1) (b) (751 SE2d 337) (2013) (“Generally speaking,
the retroactive application of statutes has long been disfavored in
the law, even if it is not always forbidden.” (citing Landgraf, 511
U.S. at 265 (IV) (A)). That is because “the principle that the legal
effect of conduct should ordinarily be assessed under the law that
existed when the conduct took place has timeless and universal
appeal.” Landsgraf, 511 U.S. at 265 (IV) (A) (cleaned up). The
“largest category of cases” in which this presumption against
retroactivity has been applied “has involved new provisions affecting
8 Because the parties do not rely on the Georgia Constitution’s separate
prohibition against the passage of retroactive laws, we do not address whether
the application of the 2020 amendment would violate that provision. See Ga.
Const. of 1983, Art. I, Sec. I, Par. X (“No bill of attainder, ex post facto law,
retroactive law, or laws impairing the obligation of contract or making
irrevocable grant of special privileges or immunities shall be passed.”).
However, we note that many of our cases addressing whether a statute can be
applied retroactively refer simply to “constitutional claims” without
delineating whether the claim arose under the Due Process Clause of the
federal Constitution or the Georgia Constitution or both or the Georgia
Constitution’s retroactive law clause.
14
contractual or property rights, matters in which predictability and
stability are of prime importance.” Id. at 271 (IV) (A). See also Logan
v. Zimmerman Brush Co., 455 U.S. 422, 428 (II) (A) (102 SCt 1148,
71 LE2d 265) (1982) (“a cause of action is a species of property
protected by the Fourteenth Amendment’s Due Process Clause”);
William Danzer & Co. v. Gulf & Shrimp Island Railroad Co., 268
U.S. 633, 637 (45 SCt 612, 69 LE 1126) (1925) (retroactively reviving
an extinguished cause of action deprives a defendant of its property
without due process).
In determining whether legislation can be applied
retroactively, we engage in a two-part analysis. Because of the
presumption against retroactive legislation, this Court will initially
“insist upon some clear indication in the statutory text that a statute
is to be applied retroactively before so applying it.” Deal, 294 at 174-
75 (1) (b). It is only when such a clear indication is present that we
then consider whether retroactive application is unconstitutional,
and in this context, an unconstitutional retroactive application of
legislation would be one that would “injuriously affect the vested
15
rights of citizens.” Id. at 175 (2) (punctuation omitted; citing Bullard
v. Holman, 184 Ga. 788, 792 (2) (193 SE 586) (1937)).
(a) We thus start our analysis by first determining whether
the legislature has clearly indicated that the 2020 amendment is to
be applied retroactively. We easily conclude that it has because the
2020 amendment explicitly provides that it is to be applied to causes
of action that have accrued on or after January 1, 1968. See Ga. L.
2020, p. 37, § 2/SB 451; Deal, 294 Ga. at 175 (1) (b) (holding that the
explicit language in the statutory amendment at issue was sufficient
to provide clear indication of the legislature’s intent for retroactive
application).
(b) We now turn to the question of whether Tampa Tank had
a vested right in the pre-2020 version of the statute of repose such
that retroactive application of the 2020 amendment would be
unconstitutional.
Generally, a vested right is an interest “which it is proper for
the state to recognize and protect and of which the individual cannot
be deprived arbitrarily without injustice.” Deal, 294 Ga. at 177
16
(citation and punctuation omitted). But, as we have explained, this
description does not provide a “meaningful standard that can be
applied to discern whether a statutory right might properly be
capable of vesting,” id., and Georgia’s jurisprudence has not been
clear on whether a statute of repose creates a vested right.
In Deal, we attempted to provide some clarity on the analysis
of whether a right is vested by exploring the nature of a vested right.
One such characteristic of a vested right is that it is a private
unalienable right of an individual as opposed to a public right. See
Deal, 294 Ga. at 178-81 (2) (a). Unlike public rights, rights that
belong to “the People in common,” private rights benefit “a
particular individual.” Id. at 180 (2) (a). See also Bullard, 184 Ga. at
791 (2) (distinguishing public rights from those related to the rights
of a specific litigant or for the benefit of a “particular individual or
calling”). Compare Deal, 294 Ga. at 181 (2) (a) (citing Mikesell v. RP
Motorsports, Inc., 283 Ga. 476, 476-77 (660 SE2d 534) (2008), which
held that the “offer of settlement provisions of Tort Reform Act of
2005 could not be applied constitutionally in a lawsuit between
17
private parties for money damages, insofar as a private right of
action accrued to the plaintiff prior to the effective date of the Act”),
with id. at 184 (2) (b) (holding that the Open Records Act in question
concerns the right of access to public records and is a public right of
the People as a whole, and because that public right “could not vest
in any particular persons” . . . “there is no constitutional impediment
to the retroactive modification of the Act by subsequent legislation”).
OCGA § 9-3-51 (a) (1)9 provides in relevant part:
No action to recover damages: (1) For any deficiency in
the survey or plat, planning, design, specifications,
supervision or observation of construction, or construction
of an improvement to real property . . . shall be brought
against any person performing or furnishing the survey
or plat, design, planning, supervision or observation of
construction, or construction of such an improvement
more than eight years after substantial completion of
such an improvement.
It is clear that any right created by the statute of repose vests in a
particular person, like Tampa Tank, who is relying on the statute to
assert that a claim brought against it by another party has been
extinguished. See Mikesell, 283 Ga. at 476-77 (offer of settlement
9 The 2020 amendment did not alter this language.
18
statute applies to private parties in a suit for money damages).
Thus, the private nature of the right created by the statute of repose
supports that it may be a vested right.
In addition to the public versus private right distinction, we
have also traditionally considered whether a right is “substantive”
or “procedural” in determining whether a right is vested as “there
are no vested rights in any course of procedure.” Deal, 294 Ga. at
177 (2) (a) (citation and punctuation omitted). A statute “which
affects substantive rights may operate prospectively only.”
Browning v. Maytag Corp., 261 Ga. 20, 21 (401 SE2d 725) (1991)
(citation and punctuation omitted). See also O’Leary v. Whitehall
Constr., 288 Ga. 790, 792 (2) (708 SE2d 353) (2011) (new legislation
that does not impair a party’s substantive rights may operate
retrospectively). “Substantive law is that law which creates rights,
duties and obligations. Procedural law is that law which prescribes
the methods of enforcement of rights, duties, and obligations.”
ECHA Cartersville, LLC v. Turner, 280 Ga. 333, 337 (3) (626 SE2d
482) (2006) (citation and punctuation omitted). See Deal, 294 Ga. at
19
175 (1) (b) n.12. Put another way, “where a statute governs only
procedure of the courts . . . it is to be given retroactive effect absent
an expressed contrary intention.” Polito v. Holland, 258 Ga. 54, 55
(2) (365 SE2d 273) (1988).
Although this Court has determined that a statute of
limitation is procedural and creates no vested right, we have never
expressly considered whether a statute of repose is substantive or
procedural in nature. See Simmons v. Sonyika, 279 Ga. 378, 379
(614 SE2d 27) (2005) (“A statute of limitation is a procedural rule
limiting the time in which a party may bring an action for a right
which has already accrued.” (citation and punctuation omitted));
Vaughn v. Vulcan Materials Co., 266 Ga. 163, 164 (1) (465 SE2d 661)
(1996) (“There is no vested right in a statute of limitation[.]”).
However, we have considered the nature of statutes of repose and
explained that, in contrast to a statute of limitation, “[a] statute of
repose stands as an unyielding barrier to a plaintiff’s right of action,”
is “absolute,” and “destroys the previously existing rights so that, on
the expiration of the statutory period, the cause of action no longer
20
exists.” Simmons, 279 Ga. at 379 (citation omitted). Also, a statute
of repose “limits the time within which an action may be brought
and is not related to the accrual of any cause of action.” Wright v.
Robinson, 262 Ga. 844, 845 (1) (426 SE2d 870) (1993) (citation
omitted). Moreover, although fraud, among other things, can toll a
statute of limitations, we have held that “nothing stops the
abrogation of the action by the statute of repose[,]” since tolling
“would deprive the defendant of the certainty of the repose deadline
and thereby defeat the purpose of a statute of repose.”10 Simmons,
279 Ga. at 380 (citations and punctuation omitted).
Thus, these cases demonstrate that a statute of repose is
10 Tampa Tank argues that Browning, 261 Ga. at 20, supports its claim
that a statute of repose is substantive and that it has a vested right in the pre-
2020 statute of repose. However, Browning is distinguishable. In that case, the
United States Court of Appeals for the Eleventh Circuit certified a question to
this Court asking whether a statute of repose for products liability actions can
bar a cause of action that accrued before the statute was enacted. We answered
in the negative, reasoning that because the plaintiffs’ cause of action accrued
at the time of the injury, they had a substantive right to bring their cause of
action at that time, which could not be defeated by the subsequently enacted
statute of repose. Id. at 21. Thus, in Browning, we addressed the question of
whether the plaintiffs had a substantive right in their cause of action, not as
in this case, whether the defendant has a substantive right in the statute of
repose.
21
materially different than a statute of limitations in that a statute of
repose extinguishes a plaintiff’s right to bring a cause of action after
the repose deadline and in that a defendant has the right to rely on
the certainty of the repose deadline. These distinctions strongly
support that a statute of repose is substantive in nature.
In considering whether a statute of repose is procedural or
substantive in nature, we also find it instructive that the majority
of other state courts that have considered the issue have concluded
that repose statutes are substantive for retroactivity purposes. See,
e.g., Davis v. Scottish Re Group Ltd., 88 NE3d 892, 897 (N.Y. 2017)
(“[R]epose statutes exhibit a substantive texture, nature and
consequence, different from regular statutes of limitation, and thus
are substantive. In other words, unlike a statute of limitations, a
statute of repose envelopes both the right and the remedy.”) (cleaned
up); Nathan v. Whittington, 408 SW3d 870, 873 (Tex. 2013) (“While
statutes of limitations operate procedurally to bar the enforcement
of a right, a statute of repose takes away the right altogether,
creating a substantive right to be free of liability after a specified
22
time.” (citation and punctuation omitted)); Ex parte Liberty Nat. Life
Ins. Co., 825 S2d 758, 765 (II) (Ala. 2002) (“[W]hile a statute of
limitations generally is procedural and extinguishes the remedy
rather than the right, repose is substantive and extinguishes both
the remedy and the actual action.” (citation and punctuation
omitted)); Harding v. K.C. Wall Products, Inc., 831 P2d 958, 967
(Kan. 1992) (a statute of limitations is “remedial and procedural”
but a statute of repose is substantive). Similarly, multiple federal
circuits have held the same. See, e.g., Augutis v. U.S., 732 F3d 749,
752-53 (II) (A) (7th Cir. 2013) (“A statute of limitations is a
procedural device whose running simply bars suit. A statute of
repose by contrast is substantive. It extinguishes any right to bring
any type of cause of action against a party, regardless of whether
such action has accrued.”); Anderson v. U.S., 669 F3d 161, 164-65
(4th Cir. 2011) (In contrast with a statute of limitations, a statute of
repose “creates a substantive right in those protected to be free from
liability after a legislatively-determined period of time.” (citation
and punctuation omitted)).
23
Likewise, “[m]ost state courts addressing the issue of the
retroactivity of statutes have held that legislation which attempts to
revive claims which have been previously time-barred [by a statute
of repose] impermissibly interferes with vested rights of the
defendant, and thus violates due process.” State of Minn. ex rel. Hove
v. Doese, 501 NW2d 366, 369-70 (S.D. 1993) (citing numerous cases
from different states). See, e.g., Harding, 831 P2d at 968 (The
“legislature cannot revive a cause of action barred by a statute of
repose, as such action would constitute the taking of property
without due process.” (emphasis in original)); Firestone Tire &
Rubber Co. v. Acosta, 612 S2d 1361, 1363-64 (Fla. 1992) (a statute
of repose extinguishes a cause of action, and repealing the statute of
repose cannot revive the case).
Based on the nature of a statute of repose, we conclude that a
statute of repose creates a substantive right in being free from
liability for a claim after a fixed period of time and join the majority
of jurisdictions that have reached that conclusion. In so holding, we
overrule any contrary decisions of the Court of Appeals, to the extent
24
that they hold that repose statutes only implicate procedural rights
and may be applied retroactively, including, Bagnell v. Ford Motor
Co., 297 Ga. App. 835, 837 (1) (678 SE2d 489) (2009) (“statutes of
repose look only to remedy and not to substantive rights” (citation
and punctuation omitted)); Bieling v. Battle, 209 Ga. App. 874, 878
(1) (434 SE2d 719) (1993) (“statutes of limitation and statutes of
repose look only to remedy and not to substantive rights” (citation
and punctuation omitted)); and LFE Corp. v. Edenfield, 187 Ga. App.
785, 787 (371 SE2d 435) (1988) (“Statutes of limitation and statutes
of repose ‘look only to remedy and not to substantive rights.’”
(citation omitted)).
Accordingly, we conclude that Tampa Tank had a substantive,
vested right to be free from liability for Southern States’s contract
claims as set out in the pre-2020 version of OCGA § 9-3-51 and that,
under the Due Process Clause of the federal and Georgia
Constitutions, the 2020 amendment cannot be applied retroactively
25
to Southern States’s breach of express warranty claim. 11
2. Southern States next argues that even if the 2020
amendment does not apply retroactively, the trial court erred in
applying the pre-2020 version of OCGA § 9-3-51 to bar its breach of
warranty claim because it claims that the statute of repose only
applies to claims that rely on proof of negligence as an element and
does not apply to contract claims.
In considering a statute’s meaning, “courts must afford the
words of the statute their ordinary meaning, see OCGA § 1-3-1 (a),
and we must presume that the General Assembly meant what it said
and said what it meant.” Arby’s Restaurant Group, Inc. v. McRae,
292 Ga. 243, 245 (734 SE2d 55) (2012) (citations and punctuation
omitted). “Where the language of a statute is plain and susceptible
to only one natural and reasonable construction, courts must
11 Because we have determined that the 2020 amendment cannot be
applied retroactively consistent with Due Process, we need not consider Tampa
Tank’s arguments that the retroactive application of the 2020 amendment
would also violate the United States Constitution’s Contracts Clause and the
Georgia Constitution’s Impairment of Contracts Clause. See U.S. Const., Art.
I, Sec. X; Ga. Const. of 1983, Art. I, Sec. I, Par. X.
26
construe the statute accordingly. In fact, where the language of a
statute is plain and unambiguous, judicial construction is not only
unnecessary but forbidden.” Chase v. State, 285 Ga. 693, 695 (2) (681
SE2d 116) (2009) (citations and punctuation omitted). See also
Lumpkin County v. Ga. Insurers Insolvency Pool, 292 Ga. 76, 78 (734
SE2d 880) (2012) (where “statutory language is clear and does not
lead to an unreasonable or absurd result, it is the sole evidence of
the ultimate legislative intent”) (cleaned up).
The relevant part of the pre-2020 statute of repose provides:
No action to recover damages . . . [f]or any deficiency in
the survey or plat, planning, design, specifications,
supervision or observation of construction, or construction
of an improvement to real property; . . . shall be brought
against any person performing or furnishing the survey
or plat, design, planning, supervision or observation of
construction, or construction of such an improvement
more than eight years after substantial completion of
such an improvement.
Former OCGA § 9-3-51. See Ga. L. 1968, p. 127, § 1. The statute
applies to an “action to recover damages,” without any exception for
contract-based claims. And Southern States’s breach of warranty
claim asserts an action to recover damages against Tampa Tank and
27
CCI for a “deficiency” in the “construction of an improvement to real
property,” which falls under the clear language of the statute. See
White v. State, 305 Ga. 111, 118 (1) (823 SE2d 794) (2019) (where
plain language of the statute has no exception for certain types of
evidence, the plain meaning controls). Thus, we conclude that under
the plain language of the pre-2020 version of OCGA § 9-3-51, it
would apply to Southern States’s breach of express warranty claim. 12
Southern States also asserts that the original 1968 statute of
repose, which was in effect until the 2020 amendment, was never
intended to apply to contract claims because the General Assembly
did not adopt specific language from a model statute of repose that
was developed in the 1960s by architectural, engineering, and
contracting industry representatives.13 Southern States asserts that
12 Because there is no ambiguity in the language, we do not need to resort
to other canons of statutory construction, such as the absurdity doctrine or the
“incongruous result” argument raised by Southern States. See, e.g., City of
Marietta v. Summerour, 302 Ga. 645, 654 (2) (807 SE2d 324) (2017) (analyzing
absurdity doctrine only after acknowledging that the introductory provision of
the statute is “somewhat ambiguous”).
13 This Court has recognized that legislation similar to the statute of
repose in OCGA § 9-3-51 “was enacted in many jurisdictions in response to the
demands of architects, engineers and contractors who wanted to be provided
28
the adoption of the omitted language would have made clear that
the statute of repose applied to any “action, whether in contract (oral
or written, sealed or unsealed), in tort or otherwise, to recover
damages.” According to Southern States, OCGA § 9-3-51 was not
intended to apply to contract actions because the General Assembly
did not adopt the phrase “whether in contract (oral or written, sealed
or unsealed), in tort or otherwise” after the words “No action” in
section (a) but included the word “tort” in section (b).14 But the
natural import of Southern States’s argument is that the omission
with immunity from suit after a reasonable period of time from their
completion of an improvement to real property.” Benning Constr. Co. v.
Lakeshore Plaza Enterprises, Inc., 240 Ga. 426, 427 (241 SE2d 184) (1977).
Southern States cites to the record of a hearing from a Congressional
subcommittee to establish the text of this proposed model code. See Amend the
Statute of Limitations, Hearing before Subcomm. No. 1 of the House Comm. On
the District of Columbia, 90th Cong. (1967), at pp. 31-34.
14 Former OCGA § 9-3-51 (b) provided in relevant part:
Notwithstanding subsection (a) of this Code section, in the case of
such an injury to property or the person or such an injury causing
wrongful death, which injury occurred during the seventh or
eighth year after such substantial completion, an action in tort to
recover damages for such an injury or wrongful death may be
brought within two years . . . .”
That language remains in the current version of the statute. See OCGA
§ 9-3-51 (b).
29
of the phrase “whether in contract (oral or written, sealed or
unsealed), in tort or otherwise” to modify “action” would mean that
not only contract actions would be excepted, but also other actions
sounding “in tort or otherwise.” This would result in a nonsensical
meaning, which we decline to adopt. See Riley v. State, 305 Ga. 163,
168 (3) (824 SE2d 249) (2019) (“this Court may construe statutes to
avoid absurd results”); State v. Mulkey, 252 Ga. 201, 204 (2) (312
SE2d 601) (1984) (“It is the duty of the court to consider the results
and consequences of any proposed construction and not so construe
a statute as will result in unreasonable or absurd consequences not
contemplated by the legislature.” (citation and punctuation
omitted)).
Likewise, we reject the assertion that just because subsection
(b) provides specific details about certain tort claims, it means that
the entire statute is applicable only to tort claims. Instead, a natural
and reasonable reading of the word “tort” in subsection (b) is that
the subsection (b) sets out a separate rule for tort claims under
certain circumstances.
30
Southern States further argues that the statute of repose is
limited to tort-based claims, citing Virginia Ins. Reciprocal v. Pilzer,
278 Ga. 190 (599 SE2d 182) (2004), Benning Constr. Co. v. Lakeshore
Plaza Enterprises, Inc., 240 Ga. 426 (241 SE2d 184) (1977), and Nat.
Svc. Indus., Inc. v. Ga. Power Co., 294 Ga. App. 810 (670 SE2d 444)
(2008), but we find each of these cases distinguishable. Pilzer dealt
with OCGA § 9-3-71 (b), 15 a medical statute of repose that explicitly
requires a “negligent or wrongful act or omission” to have occurred
in order for the statute to apply. See Pilzer, 278 Ga. at 190. And we
see nothing in Benning that holds that a statute of repose is limited
to tort claims. 16 See Benning, 240 Ga. 426. Finally, in Nat. Svc.
15 OCGA § 9-3-71 (b) provides: “Notwithstanding subsection (a) of this
Code section, in no event may an action for medical malpractice be brought
more than five years after the date on which the negligent or wrongful act or
omission occurred.”
16 Southern States points to the following language in Benning as
supporting its argument:
Prior to the enactment of the [statute of repose], an architectural
firm or construction company which designed or built a structure
could be sued at any time by third-parties no matter how many
years had passed since the architects’ or contractors’ work had
been completed, so long as the third-party brought suit within the
applicable statute of limitation, commencing to run from the date
of injury caused by the alleged defect.
31
Indus., the Court of Appeals simply held that the statute of repose
in OCGA § 9-3-51 did not apply to bar the suit because the claims
did not allege any deficiency covered by that statute, and the court
did not address whether the statute of repose could apply to contract
claims. See Nat. Svc. Indus., 294 Ga. App. at 813 (3).
Southern States does not seriously dispute that the storage
tank was substantially completed in 2002, nor is it disputed that
Southern States filed its initial complaint in 2012. Because the pre-
2020 statute of repose required Southern States to file its action
within eight years of substantial completion of the improvement, we
Benning, 240 Ga. at 427. Based on this language, Southern States argues that
“[t]hese prospective ‘third-party’ plaintiffs would obviously not be suing for
breach of warranty, because contractors sell warranties to second-party
building owners, not to third parties.” According to Southern States, it follows
that these claims by “third parties” could only sound in tort, and thus, OCGA
§ 9-3-51 only applies to tort claims.
Southern States’s argument is without merit. This Court concluded in
Benning that the preexisting six-year statute of limitation applied to the
contract claims in that case and that the Court of Appeals erred in applying
the eight-year statute of repose as an extended statute of limitation for those
claims, instead of considering the statute of repose as an “outside time limit”
“within which preexisting statutes of limitation would continue to operate.”
Benning, 240 Ga. at 428. Thus, Benning clarified that OCGA § 9-3-51 is not a
statute of limitation; it did not, in any way, address the nature of claims to
which the statute of repose applied.
32
conclude that the pre-2020 statute of repose bars Southern States’s
breach of express warranty claim, and the trial court properly
dismissed it.17
3. Lastly, Southern States argues that the trial court erred in
applying the “law of the case” from the Court of Appeals’ decisions
in Southern States III and IV in granting CCI’s motion to dismiss.
In Southern States III and IV, the Court of Appeals held that “the
only actionable warranty from which Southern could seek damages
17In supplemental briefing, Southern States also argues that even if the
pre-2020 statute of repose applies, it would not bar Southern States’s breach
of warranty claim because Tampa Tank is estopped from claiming the statute
of repose as a defense under the doctrines of promissory estoppel, estoppel by
contract, and equitable estoppel. But Southern States did not argue estoppel
by contract or promissory estoppel in the trial court, so those arguments were
not preserved. See Pfeiffer v. Ga. Dept. of Transp., 275 Ga. 827, 829 (2) (573
SE2d 389) (2002) (“[A]bsent special circumstances, an appellate court need not
consider arguments raised for the first time on appeal.”).
Although Southern States has previously asserted that Tampa Tank is
equitably estopped from raising the 2020 statute of repose as a defense, that
argument was previously rejected by the Court of Appeals in Southern States
II. There, the Court of Appeals affirmed the trial court’s conclusion that
equitable estoppel does not preclude Tampa Tank from asserting a statute of
repose defense because Southern States failed to establish that a genuine issue
of material fact existed as to whether Tampa Tank “concealed information with
an intent to deceive and prevent Southern [States] from discovering
wrongdoing and injury,” which is required for equitable estoppel to apply.
Southern States II, 338 Ga. App. at XXVIII (emphasis in original). Because
Southern States has already litigated this issue, the law of the case rule bars
this Court from revisiting it. See OCGA § 9-11-60 (h).
33
is the one-year express warranty in its contract with Tampa Tank”
and that Southern States could not pursue a breach of contract claim
against CCI based on an agreement between CCI and Tampa Tank
because Southern States was not a third-party beneficiary to that
contract. Southern States IV, 359 Ga. App. at 737 n.7; Southern
States III, 353 Ga. App. at 292. On remand, the trial court found
that these rulings constituted law of the case and therefore Southern
States’s breach of contract claim against CCI has already been
resolved against it. On appeal, Southern States asks this Court to
create an exception to the “law of the case” doctrine because the
Court of Appeals’ holdings in Southern States III and IV are fatally
flawed or, alternatively, are clearly erroneous and work a manifest
injustice.
Under the “law of the case” doctrine, “any ruling by the
Supreme Court or the Court of Appeals in a case shall be binding in
all subsequent proceedings in that case in the lower court and in the
Supreme Court or the Court of Appeals as the case may be.” OCGA
§ 9-11-60 (h). Thus, the trial court in this case, as well as this Court,
34
are bound by the Court of Appeals’ decisions in Southern States III
and IV and are precluded by the law of the case from revisiting those
prior holdings. See Hollmon v. State, 305 Ga. 90, 91 (1) (823 SE2d
771) (2019); Pirkle v. Turner, 281 Ga. 846, 847 (1) (642 SE2d 849)
(2007).
Georgia courts have never held that an exception exists to the
“law of the case” doctrine where a prior ruling was clearly erroneous
or would otherwise create a manifest injustice. To the contrary, this
Court has said that the law of the case applies despite contentions
that a ruling below is erroneous. See Hollmon, 305 Ga. at 91 (1)
(“[L]aw of the case” doctrine applies “despite all contentions that
prior rulings in the matter are erroneous.”); Security Life Ins. Co. of
America v. Clark, 273 Ga. 44, 46 (1) (535 SE2d 234) (2000)
(“[A]ppellate rulings remain binding as between parties to a case, so
long as the evidentiary posture of the case remains unchanged,
despite all contentions that prior rulings in the matter are
erroneous.”). Without addressing this precedent, Southern States
asks us to adopt a “clearly erroneous” or “manifest injustice”
35
exception, which Southern States asserts other jurisdictions have
recognized. We decline to do so. See Gilliam v. State, 312 Ga. 60, 62
(860 SE2d 543) (2021) (“Under the doctrine of stare decisis, we
generally stand by our prior decisions to promote the evenhanded,
predictable, and consistent development of legal principles, foster
reliance on judicial decisions, and contribute to the actual and
perceived integrity of the judicial process.” (cleaned up)).
Accordingly, we see no error in the trial court’s application of the law
of the case doctrine in granting CCI’s motion to dismiss.
Judgment affirmed. Ellington, LaGrua and Colvin, JJ., and
Judge LaTisha Dear Jackson concur. Boggs, C. J., and Peterson, P.
J., disqualified. Warren, Bethel and Pinson, JJ., not participating.
36