rosemarie-satterfield-as-representative-of-the-estate-of-jerrold-braley-v ( 2008 )

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-04-00518-CV
Rosemarie Satterfield, as Representative of the Estate of
Jerrold Braley, Deceased, Appellant
v.
Crown Cork & Seal Company, Inc., Individually and as Successor to
Mundet Cork Corporation, Appellee
FROM THE DISTRICT COURT OF TRAVIS COUNTY, 98TH JUDICIAL DISTRICT
NO. GN403145, HONORABLE PETER M. LOWRY, JUDGE PRESIDING
DISSENTING OPINION
After careful consideration of the record and extensive analysis of the governing legal
authority—including that which is proffered as support for conclusions in the majority opinion—I
believe that Satterfield has not met her heavy burden of demonstrating that chapter 149, as applied
to her case, violates article I section 16 of the Texas Constitution, and I respectfully dissent. The
presumption of constitutionality that is afforded to chapter 149 cannot be overcome without showing
that the statute abrogated a vested right, that it deprived Satterfield of all remedy for her claims,
and that it was an improper exercise of legislative police power. The majority opinion is
fundamentally flawed because (1) it does not discern that Satterfield’s successor-liability theory
against Crown was neither a cause of action nor a vested right, (2) it favors Pennsylvania law over
Texas law on the availability of Satterfield’s remedy, and (3) it does not recognize the legislature’s
right to reasonably exercise its police power after balancing the competing considerations on its own.
Additionally, because Satterfield did not demonstrate that chapter 149 is a special law
that violates article III section 56 of the Texas Constitution and because Crown conclusively
established its affirmative defense limiting its post-merger successor liability, I would affirm the trial
court’s judgment. I write separately for full discussion of the issues presented in this appeal.
Overview
A major development in the proliferation of asbestos litigation, the “longest-running
mass tort litigation in the United States,”1 has been the increased involvement of defendants who
were not major manufacturers or distributors of asbestos. In re Joint E. & S. Dists. Asbestos Litig.,
237 F. Supp. 2d 297, 300 (E.D.N.Y. 2002). Defendants in asbestos litigation are no longer confined
to a core group of companies who processed asbestos or used it extensively. Id. at 305. Instead, the
pursuit of solvent defendants has led to the involvement of over 6,000 companies, in virtually every
type of American industry, whose connection to asbestos is attenuated. Id.
That trend is evident in this case, in which Braley sued numerous corporations
including Crown2 in Texas,3 seeking damages for injuries that he attributed to his exposure to
1
In re Abestos Litigation, 59 Pa. D. & C.4th 62, 65 (Pa. Ct. Cm. Pl. 2002), rev’d on other
grounds, Ieropoli v. AC&S Corp., 842 A.2d 919 (Pa. 2004).
2
Crown was a New York-based company when it merged with Mundet, but it has been
incorporated in Pennsylvania since 1989.
3
Braley chose to file suit in Travis County, even though he had lived in Wyoming for over
twenty years and alleged that he was exposed to asbestos-containing products in five states, including
the state of his residence. He was never an Austin or Travis County resident. Venue in this case
2
asbestos-containing products.4 Although Crown itself never manufactured, sold, or distributed
asbestos-containing products, it was the successor by merger to a corporation that did: Mundet.
Because of its merger with Mundet, Crown has been named in more than 20,000 successor-liability
cases in Texas alone. See, e.g., Robinson v. Crown Cork & Seal Co., 251 S.W.3d 520, 538 n.12
(Tex. App.—Houston [14th Dist.] 2006, pet. granted). The record reflects that through May 2003,
Crown had already paid asbestos-related claims totaling more than $413 million.
1966 Crown-Mundet merger
The successor-liability theory Satterfield asserts against Crown is based on its merger
with Mundet more than four decades ago. Mundet had a thermal-insulation division that
manufactured, sold, and installed asbestos products before 1963. Mundet also had a “closure”
division, which was not involved with asbestos at all. The closure division, like Crown,
manufactured and sold metal bottle caps lined with cork, known in the industry as “crowns.” Crown
sought to acquire Mundet’s closure division. After being informed that the closure division would
not be sold separately, Crown purchased a majority of Mundet stock for approximately $7 million
on November 13, 1963. Mundet had ceased manufacturing insulation products during the summer
before Crown’s stock purchase.
was based on the principal office of one defendant who had already provided a settlement. Given
these facts, Crown correctly noted that the relationship between Braley’s suit and the state of Texas
was “tenuous.”
4
Braley smoked a pack of cigarettes daily since the age of fourteen. Against his physicians’
advice, he continued to smoke, even after his cancer diagnosis and his lawsuit’s filing.
3
Immediately after the stock purchase and at Crown’s request, Mundet began looking
for a purchaser for the insulation division. Mundet sold the insulation division within ninety days,
on February 8, 1964, to a manufacturer and seller of asbestos-containing insulation products,
Baldwin-Ehret-Hill, Inc. (“B-E-H”). As part of the purchase agreement, B-E-H acquired the books,
records, employees, equipment, finished goods, trademarks, licenses, raw material, and post-
purchase liabilities of Mundet’s insulation division. In 1966, two years after B-E-H purchased
Mundet’s insulation division, Crown and Mundet merged.5
Based on this merger, Braley filed a motion for partial summary judgment asserting
that “Crown Cork [wa]s responsible for the products and conduct of Mundet Cork, which it acquired
through merger.”6 The trial court granted the motion, imposing liability on Crown for damages
caused by asbestos-containing products that were manufactured, sold, or distributed before
February 8, 1964, by Mundet.
Enactment of chapter 149
Recognizing that successor corporations could be bankrupted by liability for asbestos-
related injuries that they did not cause and recognizing the risks to Texas jobs and pensions, the
5
The majority assumes that Crown acquired all of Mundet’s pre-merger liabilities. Nowhere
in the certificate of merger does Crown assume any liabilities of Mundet.
6
Crown’s response to Braley’s motion for partial summary judgment clarified that when a
Wyoming resident files a lawsuit against a Pennsylvania corporation in a Texas court, Texas choice-
of-law rules apply. Moreover, Crown noted that the tort liability in this case was based on the
alleged torts of Mundet—Crown was not a “bad actor” but an innocent successor corporation. The
parties disputed whether the punitive damages issue should be governed by Pennsylvania or
New York law. However, because statutes from either state provided that Crown would have
succeeded to Mundet’s compensatory liability, the lack of contest to such liability is unsurprising.
4
legislature enacted the liability limitation in chapter 149 of the civil practice and remedies code
on June 2, 2003. See Tex. Civ. Prac. & Rem. Code Ann. §§ 149.001-.006; see also H.J. of Tex.,
78th Leg., R.S. 6042-43 (2003). The statute was made applicable to domestic corporations that were
organized under Texas law, and to foreign corporations—like Mundet and Crown—organized under
the law of another jurisdiction. See Tex. Civ. Prac. & Rem. Code Ann. §§ 149.001(2); .002.
Under the statute, a successor corporation that had paid claims equivalent to the
statutory limit would remain liable only for certain types of claims or if the successor continued the
business of manufacturing, selling, or distributing asbestos-containing products after the merger.
Id. § 149.002(b) (providing that liability limitations in section 149.003 do not apply to certain claims,
including those for workers’ compensation, premises liability, and pending settlement contracts for
asbestos claims; or to successors who continue business of mining asbestos, or manufacturing,
selling, or distributing asbestos-containing products after merger or consolidation). Here, the record
reflects that by mid-2003, Crown had already paid cumulative asbestos-related liabilities over
$413 million—more than six times the statutory limit.
The legislature also codified a choice-of-law provision in chapter 149 that made
Texas law applicable to every successor-liability suit filed in the state, even if the issue of post-
merger liability would have otherwise been governed by another state’s law under choice-of-law
rules such as the common law “most significant relationship” test.7 Id. § 149.006.
7
Texas courts use the Restatement’s “most significant relationship” test to decide choice-
of-law issues, applying the law of the state with the most significant relationship to the particular
issue to be resolved. Torrington Co. v. Stutzman, 46 S.W.3d 829, 848 (Tex. 2001); Hughes Wood
Prods., Inc. v. Wagner, 18 S.W.3d 202, 204 (Tex. 2000); Restatement (Second) of Conflict of Laws
§§ 6, 145 (1971).
5
Additionally, the legislature expressly provided that chapter 149 would become
“effective immediately” in all cases commenced on or after June 11, 2003. See Act of June 2, 2003,
78th Leg., R.S., ch 204, § 17.02, 2003 Tex. Gen. Laws 895; see also Tex. Civ. Prac. & Rem. Code
Ann. § 149.001 (referencing historical note that designates June 11, 2003, as statute’s effective date).
Cases pending as of June 11, 2003, have chapter 149 applied to them.8 Id. (mandating application
of chapter 149 to all cases “in which the trial, or any new trial or retrial following motion, appeal,
or otherwise, begins on or after that effective date.”). Because this suit against Crown was pending
on June 11, 2003, and set for trial on November 3, 2003, chapter 149 applied to it.
8
It is undisputed that the legislature intended chapter 149 to apply to pending cases. That
clear legislative intent would be a decisive factor in upholding the constitutionality of the statute if
it were scrutinized only under analogous federal law. The Supreme Court held that the judiciary’s
first task when considering a case that challenges a statute enacted after the events in suit is to
determine whether Congress has expressly prescribed the statute’s proper reach:
If Congress has done so [expressly prescribed the statute’s proper reach], of course,
there is no need to resort to judicial default rules. When, however, the statute
contains no such express command, the court must determine whether the new statute
would have retroactive effect . . . . If the statute would operate retroactively, our
traditional presumption teaches that it does not govern absent clear congressional
intent favoring such a result.”
Landgraf v. USI Film Prods., 511 U.S. 244, 280 (1994); see also Fernandez-Vargas v. Gonzales,
548 U.S. 30, 37 (2006) (quoting United States v. St. Louis, San Francisco & Tex. Ry. Co., 270 U.S.
1, 3 (1926)) (holding that “a statute shall not be given retroactive effect unless such construction
is required by explicit language or by necessary implication”); Tex. Gov’t Code Ann. § 311.022
(West 2005) (“A statute is presumed to be prospective in its operation unless expressly made
retroactive.”); cf. Johns-Manville Sales Corp. v. R. J. Reagan Co., 577 S.W.2d 341 (Tex. Civ.
App.—Waco 1979, writ ref’d n.r.e.) (invalidating statute that lacked any provision making it
expressly retroactive).
6
No vested right in successor-liability remedy
Successor liability issues are fact-intensive—given the “myriad factual circumstances
and legal contexts in which it can arise,” the Supreme Court has noted that “an emphasis on the facts
of each case as it arises is especially appropriate.” Howard Johnson Co., Inc. v. Detroit Local Joint
Exec. Bd., 417 U.S. 249, 256 (1974). The majority veers from any analysis of the facts that inform
the vested-rights issue and in doing so, confuses a theory of successor-liability against Crown with
a cause of action against Mundet.9 It states that “the question presented is whether an accrued and
pending common law cause of action is a vested right and thus protected by the Texas Constitution.”
But what follows that statement is an analysis of vested rights in a vacuum. Nowhere does
the majority opinion identify what “cause of action” or which “common-law claims” against
Crown have supposedly vested. There were none. As the summary-judgment evidence in this record
demonstrates, Crown itself never manufactured, sold, or distributed asbestos-containing products,
and Braley was not injured by any act or omission on the part of Crown.10 Cf. Barker v. Eckman,
213 S.W.3d 306, 311 (Tex. 2006) (“This Court has consistently held that a cause of action accrues
when a party has been injured by actions or omissions of another.”).
9
The majority’s discussion of vested rights in this as-applied challenge leaves significant
questions unanswered with regard to Crown: What were Braley’s accrued causes of action or
common-law claims against Crown? What duty was owed to Braley by a corporation that never
manufactured, sold, or distributed asbestos-containing products? What theory of recovery permits
Braley to seek damages from Crown? What “validly vested rights” did Braley have against Crown
that were affected by chapter 149?
10
The majority discerns no dispute between the parties that “the causes of action Braley
asserted against Crown Cork accrued prior to the Statute’s enactment.” Review of the record and
briefing show otherwise, as Crown has consistently maintained that it was sued as Mundet’s
successor and that the causes of action alleged in this case accrued against the alleged tortfeasor,
Mundet.
7
The successor-liability theory does not create a cause of action. In re Fairchild
Aircraft Corp., 184 B.R. 910, 920, 921 n.11(Bankr. W.D. Tex. 1995), vacated on other grounds,
220 B.R. 909 (Bankr. W.D. Tex. 1998); see National Architectural Prods. Co. v. Atlas-Telecom
Servs., No. 3:06-CV-0751-G ECF, 2007 U.S. Dist. LEXIS 51182, at *34 (N.D. Tex. 2007) (noting
that issue of whether sale-of-assets agreement subjected corporate defendant to successor liability
was not one sounding in tort). The theory merely allows for the transfer of liability from the
predecessor to the successor. In re Fairchild Aircraft Corp., 184 B.R. at 920, 921 n.11; see Griggs
v. Capitol Mach. Works, Inc., 690 S.W.2d 287, 289 (Tex. App.—Austin 1985, writ ref’d n.r.e.)
(noting that liability sought to be imposed against successor corporation was vicarious because it was
not based on any act or omission by successor but on its imputed liability for act or omission of
dissolved predecessor corporation); see also R.C.M. Executive Gallery Corp. v. Rols Capital Co.,
901 F. Supp. 630, 636 (S.D.N.Y. 1995) (characterizing successor liability as “fundamentally a form
of secondary, vicarious liability imposed upon an innocent party”). Successor liability supplies the
claimant with a remedy when a predecessor corporation ceases to exist—e.g., because of a
dissolution or merger—and cannot be sued. See White v. Cone-Blanchard Corp., 217 F. Supp. 2d
767, 774 n.1 (E.D. Tex. 2002). Here, it allows Crown to be considered a “tortfeasor” by virtue of
its merger with Mundet.
Thus, the successor-liability theory is the procedural remedy that makes recovery
possible for the torts Satterfield has attributed to Mundet, from whom she would otherwise have no
recovery at all. The precise question presented to this Court is whether Satterfield had a vested right
to that successor-liability remedy against Crown under the Texas Constitution. After considering
8
the parameters of a “vested right” that receive constitutional protection and applying them to the
facts of this record, I am persuaded that she did not.
Vested rights are certain and immediately enforceable
In her first issue, Satterfield contends that chapter 149 retroactively impaired a vested
right. Vested rights are property rights, which the constitution protects like any other property.
Subaru, Inc. v. David McDavid Nissan, Inc., 84 S.W.3d 212, 219 (Tex. 2002) (citing Middleton
v. Texas Power & Light Co., 185 S.W. 556, 560 (Tex. 1916)). Article I, section 16 of the
Texas Constitution, which prohibits the enactment of retroactive laws, protects vested rights by
excluding them from the reach of subsequently enacted legislation. See Tex. Const. art. I, § 16.
Statutes that do not affect a claimant’s vested rights, however, are not shielded by article I,
section 16. State v. Project Principle, Inc., 724 S.W.2d 387, 390 (Tex. 1987) (stating that laws are
deemed retrospective and constitutionally prohibited if their retrospective operation destroys or
impairs vested rights); De Cordova v. City of Galveston, 4 Tex. 470, 479-80 (Tex. 1849) (same); see
also Corpus Christi People’s Baptist Church v. Nueces County Appraisal Dist., 904 S.W.2d 621,
626 (Tex. 1995) (concluding that provision in tax code allowing exemption to be established after
taxes were assessed was not retroactive law because taxing unit had no vested right to taxes until
determination of exemption). Thus, in the absence of a constitutional prohibition, the legislature
may change statutory or common law, but in so doing, it may not deprive a person of a property right
acquired under existing law. Aetna Ins. Co. v. Richardelle, 528 S.W.2d 280, 284 (Tex. Civ.
App.—Corpus Christi 1975, writ ref’d n.r.e.).
9
Whether a particular right is vested is a difficult question, Grocers Supply Co.
v. Sharp, 978 S.W.2d 638, 643 (Tex. App.—Austin 1998, pet. denied), but a key characteristic of
a vested legal right is its immediate legal enforceability. See Mellinger v. Houston, 3 S.W. 249,
253 (Tex. 1887); see also Corpus Christi People’s Baptist Church, 904 S.W.2d at 626. The
Texas Supreme Court explained that “a right, in a legal sense, exists, when in consequence of given
facts the law declares that one person is entitled to enforce against another a claim or to resist the
enforcement of a claim urged by another.” Mellinger, 3 S.W. at 253 (emphasis added); see also
Corpus Christi People’s Baptist Church, 904 S.W.2d at 626 (noting that taxes that were due on
receipt and became delinquent next year if unpaid, represented liability “for which the taxing unit
may enforce collection”). The court further defined “rights” as “well-founded claims,” meaning
those claims that are “recognized or secured by law.” Mellinger, 3 S.W. at 253. Demonstrating its
definition of vested rights, the court in Mellinger struck a statute that was enacted after a taxpayer’s
suit was filed, barring the taxpayer’s defense of limitations to a city’s tax collection suit. See 3 S.W.
at 249-251. Determinative considerations for the Mellinger court were the lack of any suggestion
that the legislature intended to make the law applicable to pending cases and the taxpayers’ right to
rely on the defense of limitations, which vested on the expiration of the limitations period and
prevented the city’s tax claim from being enforced. See id. at 251-53.11
11
In attempt to characterize Satterfield’s successor-liability theory against Crown as a vested
right, the majority relies heavily on a line of cases concluding that, after the expiration of
time required by a statute of limitations, the legislature cannot abrogate a defendant’s vested right
to assert a limitations defense. See, e.g., Baker Hughes, Inc. v. Keco R. & D., Inc., 12 S.W.3d 1, 4
(Tex. 1999); Mellinger v. Houston, 3 S.W. 249, 253 (Tex. 1887); De Cordova v. City of Galveston,
4 (Tex. 470, 479-80 (Tex. 1849). Those are not the facts of this case.
10
Echoing these considerations of legal enforceability, Texas courts have held that
vested rights are those that imply an immediate right or an entitlement—those that are not based
upon mere expectation or contingency. See City of Dallas v. Trammell, 101 S.W.2d 1009, 1014
(Tex. 1937); Walls v. First State Bank of Miami, 900 S.W.2d 117, 121 (Tex. App.—Amarillo 1995,
writ denied); Houston Indep. Sch. Dist. v. Houston Chronicle Publ’g Co., 798 S.W.2d 580, 589
(Tex. App.—Houston [1st Dist.] 1990, writ denied); see also Attorney General of Tex. v. Redding,
60 S.W.3d 891, 893 (Tex. 2001) (noting that defendant’s right to rely on statute of limitations
vests when limitations period expires); Baker Hughes, Inc. v. Keco R. & D., Inc., 12 S.W.3d 1, 4
(Tex. 1999) (same).
Choice-of-law rules are alterable
The majority suggests that chapter 149 disrupted Satterfield’s settled expectations in
this case. It did not. Satterfield lacked any immediate entitlement or legally enforceable right to
impose successor liability on Crown. Her successor-liability remedy depended entirely on the
application of New York law through choice-of-law rules and those rules may be altered by statute
in the same manner as other Texas law. See Owens Corning v. Carter, 997 S.W.2d 560, 574
(Tex. 1997) (recognizing that courts may make reasoned adjustments in legal system); see also
Moreover, the holdings in those cases would contradict the majority’s suggestion that a
claimant has a vested right to a statutory remedy immediately upon filing suit. This is because
merely filing suit would not decide the legal enforceability or entitlement to the relief sought by the
claimant. For example, if a suit were filed after the expiration of a limitations period, the defendant
would have an immediate, legally recognized right under Texas law to dismissal of the suit on
limitations grounds, and that right could not be defeated by the claimant’s assertion of a competing
“vested interest” based solely on the suit’s filing.
11
Restatement (Second) of Conflict of Laws § 5 (choice-of-law rules are as open to reexamination as
any other common-law rules), 5 William V. Dorsaneo III, Texas Litigation Guide § 62.01 [1] (2007)
(same).
Texas law did not impose successor liability based on the merger of two foreign
corporations—those incorporated outside Texas—until chapter 149 was enacted. See Tex. Bus.
Corp. Act Ann. art. 1.02 (14) (defining “foreign corporation” as “a corporation for profit organized
under laws other than the laws of this State”), (18) (West Supp. 2006) (defining “merger” as division
of domestic corporation into two or more new domestic corporations, or into surviving corporation
and at least one new domestic corporation, or combination of one or more domestic corporations
with other entities). Mundet and Crown were considered “foreign corporations,” because they
were incorporated in a state other than Texas. See id. art. 1.02(11) (West Supp. 2006) (defining
“domestic corporation” to exclude “foreign corporation”), (14).12 When this suit was filed against
Crown, Texas courts had to apply the law of the state with the “most significant relationship” to the
merger to determine which state’s law should apply and whether that state’s law would provide
for the imposition of successor liability. See Torrington Co. v. Stutzman, 46 S.W.3d 829, 848-49
(Tex. 2001) (elaborating on “most significant relationship” test set forth in sections 6 and 145 of
Restatement (Second) of Conflict of Laws for determining choice-of-law issues).
Mundet and Crown were incorporated in New York when they merged, and
their certificate of merger was filed in New York pursuant to New York law. Using the most-
12
These definitions remain unchanged from the 2003 version in effect when Braley sought
partial summary judgment to establish Crown’s liability as Mundet’s successor.
12
significant-relationship test, the trial court determined that New York law should apply to the issue
of successor liability. It also determined that New York law provided for the imposition of successor
liability against Crown.13 See N.Y. Bus. Corp. Law Ann. § 906(b)(3) (McKinney 2003) (“[t]he
surviving . . . corporation shall assume and be liable for all the liabilities . . . of the constituent
entities. No liability . . . , claim or demand for any cause existing against any such constituent entity
. . . shall be released or impaired by such merger”). Accordingly, the court granted Braley’s motion
for partial summary judgment on the issue of liability.
However, the enactment of chapter 149’s choice-of-law provision, requiring courts
to apply Texas law to the issue of successor asbestos-related liabilities, superseded the common
law’s most-significant-relationship test and rendered New York law inapplicable to this suit.14 See
13
Satterfield argued that the trial court’s choice of law was irrelevant because the successor-
liability law was the same in Texas as in New York. She noted that article 5.06 of the Business
Corporation Act states that the surviving company “inherits the liabilities of its predecessors” after
merger. See Tex. Bus. Corp. Act Ann. art. 5.06 (West 2003). Her reliance on article 5.06 is
misplaced. That article applies only to a merger involving at least one domestic corporation
organized under Texas laws, and neither Crown nor Mundet were domestic corporations. See id.
art. 1.02(11) (defining “domestic corporation” to exclude “foreign corporation”), (14) (defining
“foreign corporation” as “a corporation for profit organized under laws other than the laws of
this State”), (18) (defining “merger” as division of domestic corporation into two or more
new domestic corporations, or into surviving corporation and at least one new domestic corporation,
or combination of one or more domestic corporations with other entities) (West Supp. 2006).
Article 5.06 does not apply to a merger between two foreign corporations, like Crown and Mundet,
that did not incorporate in Texas. See id. art. 1.02(14), (18).
14
The majority states that Crown did not dispute that it was liable for Mundet’s tortious
conduct under Texas law and that Crown’s motion for summary judgment “conceded” its successor
liability in the absence of chapter 149. However, the record reflects that Crown did dispute its
successor liability under Texas law as it existed before the enactment of chapter 149. Crown opened
its discussion of the successor-liability issue in its motion for summary judgment with a reference
to the general rule of article 5.06. It explained the exception to that general rule in its reply, which
expressly contends that article 5.06 is inapplicable to the merger of these two foreign corporations,
that Satterfield’s only theory of recovery from Crown is based on the doctrine of successor liability,
13
Tex. Civ. Prac. & Rem. Code Ann. § 149.006; see also Citizens Ins. Co. of Am. v. Daccach,
217 S.W.3d 430, 443 (Tex. 2007) (stating that when deciding which jurisdiction’s law applies, “[t]he
first question is whether the particular substantive law is subject to a clear choice of law
determination by the Legislature of the forum state”); American Home Assurance Co. v. Safway Steel
Prods. Co., 743 S.W.2d 693, 697 (Tex. App.—Austin 1987, writ denied) (reasoning that most-
significant-relationship analysis is unnecessary if local statutory provision controls disposition of
choice-of-law question).
After the enactment of chapter 149, Satterfield had no right to the continued
application of New York’s successor-liability law through choice-of-law rules. A “right” is a claim
that one is entitled to enforce against another and a “vested right” requires more than a mere
expectancy based upon an anticipated continuance of an existing law. See Mellinger, 3 S.W. at 253;
Trammell, 101 S.W.2d at 1014. Satterfield may have anticipated that New York’s successor-liability
law would apply to her suit, but the application of New York law depended on the use of choice-of-
law rules and the lack of a Texas statute governing successor liability for foreign corporations after
their merger. See Daccach, 217 S.W.3d at 443.15
and that, until the enactment of chapter 149, successor liability involving the merger or consolidation
of solely foreign corporations was not recognized by Texas law. See id. art. 1.02(14), (18).
15
The majority states that Crown’s summary judgment “did not raise the arguments that the
Statute does not impair vested rights because it merely changes the choice of law provision or that
Satterfield has no vested right in a remedy or statutory choice of law provision.” However, in direct
response to Satterfield’s assertion of a vested right, Crown did make this argument to the trial court:
Plaintiff’s cause of action accrued against Mundet Cork Corporation, the alleged
tortfeasor. Liability, if any, for the torts of Mundet, a foreign corporation, could transfer
to Crown, a foreign corporation, only by application of the doctrine of successor
liability—a creature of individual state statute. Without the application of this
14
statutorily created remedy, plaintiffs would have no hope of recovery against successor
corporation for the alleged torts of dissolved predecessors. Prior to the adoption of
HB 4, Texas substantive law did not govern successor liability involving the merger or
consolidation of solely foreign corporations. . . . In Texas courts, therefore, the
successor liability of foreign corporations that merged with other foreign corporations
was then determined by choice-of-law principles. . . . HB 4 changes this uncertainty.
It is, first, a codified choice of law provision dictating the use of Texas substantive law
in Texas courts to determine the asbestos-related successor liability of some foreign and
domestic corporations. . . . Rather than deprive Plaintiff of a vested right, therefore,
HB 4 created a Texas substantive remedy where no Texas substantive remedy
previously existed. . . . Plaintiff could not have had a legitimate expectation that a
particular foreign state’s law would be applied through choice of law principles until a
final judgment [was] rendered in this case. . . . HB 4 is a codified choice-of-law
provision that also creates a Texas statutory remedy where none existed before. It
cannot therefore be held to frustrate legitimate expectations or impair vested rights.
[Citations omitted].
The majority suggests that issues raised by this argument cannot be considered because they were
in Crown’s reply. However, Rule 166a(c) supports a different conclusion. See Tex. R. Civ. P.
166a(c); see also Alder v. Laurel, 82 S.W.3d 372, 375-76 (Tex. App.—Austin 2002, no pet.) (“[A]
trial court considering a motion for summary judgment is restricted to the issues raised in the motion,
response, and subsequent replies.”) (citing Stiles v. Resolution Trust Co., 867 S.W.2d 24, 26 (Tex.
1993)); Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 674-77 (Tex. 1979); Blakey v. Texas
Dep’t of Health, No. 03-02-00682-CV, 2004 Tex. App. LEXIS 1247, at * 18-19 (Tex. App.—Austin
2004, no pet.) (noting that this Court was unconvinced that summary judgment rule always
prohibited movant from supplementing its grounds by way of reply if the nonmovant is not otherwise
unfairly prejudiced by supplementation). Rule 166a(c) provides that
The judgment sought shall be rendered forthwith if (i) the deposition transcripts,
interrogatory answers, and other discovery responses referenced or set forth in the
motion or response, and (ii) the pleadings, admissions, affidavits, stipulations of the
parties, and authenticated or certified public records, if any, on file at the time of the
hearing, or filed thereafter and before judgment with permission of the court, show that,
except as to the amount of damages, there is no genuine issue as to any material fact and
the moving party is entitled to judgment as a matter of law on the issues expressly set
out in the motion or in an answer or any other response. Issues not expressly presented
to the trial court by written motion, answer or other response shall not be considered on
appeal as grounds for reversal.
15
Satterfield’s reliance on existing choice-of-law rules for the application of New York
law resembles that of the Alabama claimants in Owens Corning, who relied on a Texas statute
permitting them to file their asbestos-exposure claims in Texas. 997 S.W.2d at 565. Under that
statute, if the claimants’ suits were timely under Texas’s statute of limitations, the suits could
proceed in Texas, regardless of whether limitations had expired in the state where the wrongful act
actually occurred. Id. After Texas courts became crowded with asbestos-exposure claims having
little or no connection to the state, the legislature enacted a borrowing statute, providing that foreign
claims could be brought in Texas only if those claims could also be brought in the state where the
wrongful act occurred (thus “borrowing” the state’s statute of limitations for application in Texas).
Id. at 565-66. The statute was given immediate effect, without allowing affected parties a reasonable
grace period for filing their claims after its enactment. Id. at 572. The Texas Supreme Court upheld
the constitutionality of the borrowing statute, which it characterized as “essentially a codified choice-
of-law rule.” Id. at 573. It noted that any concerns about expectations the litigants might have had
Tex. R. Civ. P. 166a(c) (emphasis added). Because the issues addressing chapter 149’s lack
of impairment of a vested right based on a mere change to a choice of law provision and
Satterfield’s lack of a vested right in a remedy or statutory choice of law provision were
expressly presented to the trial court by written response, the issues may be considered here.
Additionally, Satterfield was not prejudiced by the supplementation. She filed a
rejoinder brief the day after Crown filed its reply, and the trial court’s order specifies that it
considered “the Motion, Plaintiff’s Objections to Crown Cork & Seal Company, Inc.’s
Summary Judgment evidence and Response to Motion for Summary Judgment, Defendant’s
Reply, and Plaintiff’s Rejoinder.”
16
concerning the continued application of Texas’s statute of limitations played only a “minimal role”
in the case. Id.
Like the borrowing statute in Owens Corning, chapter 149 contains a codified choice-
of-law provision that creates a Texas-statutory remedy where none existed before—Texas had no
law governing successor liability for foreign corporations after their merger. Where the common
law is revised by statute, the statute controls. Wingfoot Enters. v. Alvarado, 111 S.W.3d 134, 146
(Tex. 2003); Pittman v. Time Sec., 301 S.W.2d 521, 523 (Tex. Civ. App.—San Antonio 1957,
no writ). “The Texas Constitution has not undertaken to preserve inviolate the rules of the common
law,” and because no one has any vested or property interest in common-law rules, no one is
deprived of a constitutional right when the common law is changed through legislative enactment.
Middleton, 185 S.W. at 560-61; Smith v. Smith, 126 S.W.3d 660, 663 (Tex. App.—Houston
[14th Dist.] 2004, no writ); see also Columbraria Ltd. v. Pimienta, 110 F. Supp. 2d 542, 548 (S.D.
Tex. 2000) (“No person has a vested right in any general rule of law or policy of legislation entitling
him to insist that it remain unchanged for his benefit.”). Satterfield did not have a vested right to a
successor-liability remedy that was dependent on choice-of-law rules.
Final judgments are legally enforceable
The majority makes the broad assertion that “Satterfield’s cause of action was accrued
and pending, or vested, prior to the effective date of the Statute.” But it offers no authority for the
proposition that the mere filing of suit on a claimed injury constitutes a vested right to a statutory
remedy provided by choice-of-law rules. Satterfield’s legal argument in this summary-judgment case
would be stronger if she had obtained a final judgment before the enactment of chapter 149. With
17
a final judgment, she could have claimed a legally enforceable entitlement to her successor-liability
remedy. See Mellinger, 3 S.W. at 253 (defining “right” as claim that is “recognized or secured
by law.”). In that situation, the triggering event that would vest the right to impose New York’s
successor-liability law on Crown would be the entry of a final judgment, not the filing of a suit. See
Dickson v. Navarro County Levee Improvement Dist. No. 3, 139 S.W.2d 257, 259 (Tex. 1940);
Durham Transp. Co. v. Beettner, 201 S.W.3d 859, 875 (Tex. App.—Waco 2006, pet. denied); Walls,
900 S.W.2d at 122; Trahan v. Trahan, 894 S.W.2d 113, 119 (Tex. App.—Austin 1995, writ denied);
Houston Chronicle Publ’g Co., 798 S.W.2d at 589; see also Pimienta, 110 F. Supp. 2d at 548;
Thompson v. Miller, No. 03-98-00627-CV, 1999 Tex. App. LEXIS 5538, at *4 (Tex. App.—Austin
1999, no pet.) (not designated for publication) (holding that any right claimant might have had to
receive certain information prior to statute’s amendment was not vested because his lawsuit had not
been resolved).
Without a final judgment, Satterfield did not have a vested right, and her statutory
successor-liability remedy was not beyond the reach of subsequently enacted legislation. See
Mellinger, 3 S.W. at 253; Trammell, 101 S.W.2d at 1014; Walls, 900 S.W.2d at 121; Houston
Chronicle Publ’g Co., 798 S.W.2d at 589. Since 1849, the Texas Supreme Court recognized that
legislative acts are not within the prohibition against retrospective laws unless they impair rights that
are vested, De Cordova, 4 Tex. at 479, and in support of that proposition, the court considered a case
that invalidated a statute “purporting to grant a new trial in a civil cause after a final judgment.” Id.
at 477. Today the majority rejects the significance of a final judgment in the vested-rights inquiry,
but its significance was previously recognized by the opinion’s author. See American Honda Motor
18
Co. v. Miller, 47 S.W.3d 614, 623 (Tex. App.—Austin 2001, pet. denied) (noting approval of this
Court’s conclusion that claimant “did not have a vested right to protest because House Bill 1595
[rescinding the right to protest] took effect prior to the time the Board rendered a final decision”)
(citing Robbins Chevrolet Co. v. Motor Vehicle Bd., 989 S.W.3d 865, 870 (Tex. App.—Austin 2001,
pet. denied). The reasoning followed by the author in Miller applies here—Satterfield did not have
a vested right to enforce the successor-liability remedy because chapter 149 took effect before the
trial court entered a final judgment.
The Texas Supreme Court’s opinion in Dickson illustrates the concept that a final
judgment is necessary to claim a vested right to a statutory remedy that subsequently collapses by
legislative action. See 139 S.W.2d at 259. In that case, E.K. Atwood held levee bonds issued by two
improvement districts. Id. at 258. Bondholders like Atwood had a statutory remedy allowing them
to sue landowners to enforce delinquent taxes on the bonds if the districts failed to do so within sixty
days after the taxes became delinquent. Id. Atwood, acting on behalf of the Navarro County Levee
Improvement District No. 3, sued three landowners in district court to recover the taxes that they
failed to pay for 1933 and 1934. Id. On June 25, 1937, Atwood obtained a default judgment in favor
of the district for the delinquent taxes. Id.
While the case was on appeal, the legislature repealed the statute authorizing
the bondholders’ remedy. Id. at 259. The court of appeals subsequently affirmed the district court’s
default judgment. Id. But the supreme court set it aside, concluding that the legislature’s repeal of
the bondholder-enforcement statute had “wholly collapsed” the “special remedial privilege” that had
been afforded to Atwood as a bond purchaser. Id. The court rejected the notion that Atwood had
19
been “robbed of some right” and noted although the district had obtained a judgment in its favor, the
court had never entered a final judgment. Id. at 260.
Another case highlighting the significance of securing final adjudication when
pursuing a statutory remedy is Richardelle. See 528 S.W.2d at 285-86. In Richardelle, application
of a newly enacted parental-liability statute deprived an insurer of the ability to enforce a favorable
jury verdict. Id. at 282. The verdict was against the Richardelles, parents of an eleven-year-old child
who set fire to a residence. Id. Aetna, which insured the residence, sued the parents to recover funds
paid to the homeowners on their fire-damage claim. Id. Although the right to attribute liability to
parents for the torts of their minor children was not recognized at common law, id. at 285; see also
In re D.M., 191 S.W.3d 381, 388 (Tex. App.—Austin 2006, pet. denied), a statute in effect on the
date of the fire in 1972 allowed property owners to seek compensation from parents whose children
were at least ten years old when they damaged or destroyed property maliciously. 528 S.W.2d 283.
That parental-liability statute was repealed on January 1, 1974, with the addition of a new title to
the family code, the day before Aetna filed suit. Id. The new law still allowed parents to be held
liable for any property damage caused by the willful and malicious conduct of their children, but
it raised the minimum age of the child to twelve. Id. Because the Richardelles’ son was eleven
years old when he set fire to the house, this statute afforded the Richardelles a new statutory defense
to Aetna’s suit.
Aetna argued that the suit should be governed by the law in effect when the
Richardelles’ son set the fire and that the new law destroyed its vested right to proceed against
the parents of ten-and eleven-year-old children who committed willful and malicious torts. Id.
20
Rejecting Aetna’s assertion of a vested right, the court stated that no person has a vested right to a
particular remedy accorded by law, either at common law or by statute. Id. at 284 (citing Middleton,
185 S.W. 556). It noted that the statute giving Aetna the right to sue the Richardelles was repealed
before proceedings commenced to enforce such right, and before the repeal Aetna had not been
granted final relief on the enforcement of its demand. Id. at 285-86; see Walls, 900 S.W.2d at 122.
The concept that rights vest upon final adjudication is also illustrated in a recent
decision from a Florida court that considered a retroactivity challenge to the state’s Asbestos
and Silica Compensation Fairness Act. See DaimlerChrysler Corp. v. Hurst, 949 So. 2d 279, 281
(Fla. Dist. Ct. App. 2007, pet. denied). Due to a flood of asbestos litigation, the Florida legislature
passed a law barring smokers from filing or maintaining civil suits that attributed their lung cancer
to asbestos exposure unless they provided a diagnosis from a qualified physician concluding
that exposure to asbestos was a substantial contributing factor to their cancer. Id. at 283-84. The
legislature specified that the Act was to be applied to all pending asbestos-related cases in which trial
had not commenced as of the effective date. Id. at 284-85. The claimant in Hurst was the wife of
the decedent, who had quit smoking about thirteen years before his lung cancer diagnosis. Id. at 282.
She argued that the addition of the “substantial contributing factor” requirement to her pending suit
against DaimlerChrysler was unconstitutional because it deprived her of a vested right. Id. at 285.
The trial court agreed and denied DaimlerChrysler’s motion to dismiss Hurst’s claim. Id. at 282.
Reversing that ruling, the appellate court stated that when Hurst filed suit she was
pursuing a common law tort theory and had, at most, a mere expectation that the common law would
not be altered by legislation. Id. at 286-87. The court held that Hurst did not have a vested right,
21
and it distinguished her expectancy from cases in which claimants had obtained a judgment before
the effective date of a statute or had a right to recover a definite sum of money that was due when
the new legislation passed. Id. at 287; see Flowserve Corp. v. Bonilla, 952 So. 2d 1239 (Fla. Ct.
App. 2007) (relying on Hurst to quash trial court’s order that held Asbestos and Silica Compensation
Fairness Act unconstitutional).
Here, it is undisputed that final judgment had not been entered before the enactment
of chapter 149. Similar to the claimants in Dickson and Hurst, Satterfield had only an expectation
that her statutory remedy would remain unchanged. Like the insurer in Richardelle, Satterfield
sought recovery from a non-tortfeasor, relying on a vicarious-liability theory that was unavailable
at common law and to which she had no vested right.
Furthermore, the partial summary judgment entered by the district court did not
transform Satterfield’s expectation of a successor-liability remedy under New York law into a vested
right. That judgment was not final when chapter 149 became effective four days later. The
district court would have been able to reconsider its ruling on the partial summary judgment and
reverse it. See Elder Const., Inc. v. City of Colleyville, 839 S.W.2d 91, 92 (Tex. 1992). Satterfield
cannot maintain her vested-right argument based on a trial-court ruling that was interlocutory. See
Middleton, 185 S.W. at 561 (concluding that law may be changed by legislature so long as it does
not destroy or prevent adequate enforcement of vested rights); Dickson, 139 S.W.2d at 259-60
(setting aside default judgment that was not final and was not immune to subsequent
legislative action).
22
Satterfield has not demonstrated that chapter 149 violates the constitutional
prohibition against retroactive laws because she has not shown that she had a vested right to a
successor-liability remedy through choice-of-law rules. See De Cordova, 4 Tex. at 479-80
(recognizing that constitutional prohibition against retroactive laws is not violated without
destruction or impairment of vested right); see also Corpus Christi People’s Baptist Church,
904 S.W.2d at 626 (same); Project Principle, Inc., 724 S.W.2d at 390 (same).
Abrogation of remedy
The majority opinion further misdirects the constitutional inquiry by relying on a case
interpreting the Pennsylvania Constitution, which has no prohibition against retroactive laws. In that
case, a closely split court invalidated a successor-liability statute under the open courts provision of
the Pennsylvania Constitution because the statute eliminated the claimants’ remedy. See Ieropoli
v. AC&S Corp., 842 A.2d 919, 932 (Penn. 2004). At least three significant problems arise with the
majority’s reliance on that case: (1) Satterfield never raised an open-courts challenge to chapter 149
in response to Crown’s summary-judgment motion; (2) the invalidated Pennsylvania statute was
broader (affording an affirmative defense to a larger, less-innocent set of corporate successors) than
the one at issue here; and (3) over four pages are devoted to discussion of nonbinding Pennsylvania
authority but the Fifth Circuit’s application of Texas law to a statute challenged on open courts
grounds as barring the claimant’s remedy is reduced to a footnote.16 See Jones v. Pullman Kellogg
16
The sole Texas decision concerning the constitutionality of chapter 149, on facts
remarkably similar to this case, is not considered by the majority opinion. See Robinson v. Crown
Cork & Seal Co., 251 S.W.3d 520, 523 (Tex. App.—Houston [14th Dist.] 2006, pet. granted).
23
Corp., 785 F.2d 1270 (5th Cir. 1986). If the majority is inclined to consider an open courts
provision, it should be the provision in the Texas Constitution. Additionally, it is my opinion that
the Fifth Circuit’s interpretation of the law has greater persuasive value in this Texas case than that
of a court in Pennsylvania, construing a broader statute and a different constitution in the context of
an open courts challenge that is not before this Court.
The Texas Supreme Court has long held that laws affecting a claimant’s remedy in
pending cases—providing a new statutory defense for instance—are constitutional if the claimant’s
remedy is not taken away entirely. See City of Tyler v. Likes, 962 S.W.2d 489, 502 (Tex. 1997)
(citing De Cordova, 4 Tex. at 480); see also Burlington N. & Santa Fe R.R. Co. v. Skinner Tank Co.,
419 F.3d 355, 359-60 (5th Cir. 2005). Quoting the supreme court in Likes, Satterfield acknowledges
that a statute does not violate the constitutional prohibition against retroactivity if it affords a
reasonable time or fair opportunity to preserve a claimant’s rights under the former law, or if the
amendment does not bar all remedy. 962 S.W.2d at 502. Additionally, the supreme court has
concluded that a grace period is unnecessary when, as here, its inclusion would defeat the very
purpose of the statute. Owens Corning, 997 S.W.2d at 573. Thus, even if Satterfield somehow had
a vested right to impose successor liability against Crown, chapter 149 will pass constitutional
muster, even without a grace period, if it does not completely deprive her of remedies for the tort
claims in her suit.
Arguing that her claims were “completely extinguished,” Satterfield compares chapter
149’s effect on her suit to that of the legislation challenged by the claimants in Likes. 962 S.W.2d
at 489. However, the legislation at issue in Likes reclassified the city’s storm sewer operation as a
24
governmental function for which the city could not be sued—even though operation and maintenance
of the sewers had been classified as proprietary functions for which a city could have been sued at
common law. Id. at 502. As a result of the statutory reclassification, cities were immune from every
suit alleging negligent maintenance of its storm sewers, and a claimant’s recovery of any amount
from a municipal defendant for such claims was forever barred. See id. By contrast, chapter 149
does not grant immunity from suit to every asbestos-manufacturer’s successor, and it does not bar
Satterfield’s cause of action. Compare id., with Tex. Civ. Prac. & Rem. Code Ann. § 149.003.17
In contrast to the challenged statute in Likes, chapter 149 does not cause complete
deprivation of a legal remedy. Applying Texas law, the Fifth Circuit has recognized that a statute
does not leave a claimant “without any ‘viable’ defendants or ‘effectively den[y] a cause of action’”
when she has claims remaining against other defendants. Jones, 785 F.2d at 1273 (citing Nelson
v. Metallic-Braden Bldg. Co., 695 S.W.2d 213, 215 (Tex. App.—Houston [1st Dist.] 1985, writ ref’d
n.r.e.); see also Gomez v. Pasadena Health Care Mgmt., 246 S.W.3d 306, 314 (Tex. App.—Houston
[14th Dist.] 2008, no pet.) (concluding that three-year survival statute for minor’s health-care
liability claim did not effectively abrogate claimant’s right to redress against medical center and its
general partner because claimant had alternative remedy of suit against physicians); Wilson v. AC&S,
Inc., 864 N.E.2d 682, 695 (Ohio Ct. App. 2006) (holding that new statute, which required proof that
asbestos exposure was substantial contributing factor to claimant’s medical condition, could be
17
In Likes, “entirely taken away” equated not to a cap on the amount of a defendant’s
statutory liability or the pursuit of money in addition to any other defendant’s paid settlement, but
an absolute abrogation of remedy for the injuries alleged, yielding the claimant a total recovery of
zero dollars. That was not the case here.
25
applied to pending cases and did not abrogate claimant’s vested right because she was still able to
pursue her cause of action and recover for injury caused by her husband’s exposure to asbestos;
statute merely affected methods and procedure by which that action was recognized, protected and
enforced, not the cause of action itself), appeal dism’d, 864 N.E.2d 645 (Ohio 2007).
In Jones, the widow of a Gulf Oil refinery worker brought a wrongful death and
survivorship suit against Pullman Kellogg and appealed the trial court’s dismissal of her case on
summary judgment. Id. at 1271. She alleged that from the mid-1960s until 1975 her husband
worked around a fluid catalytic cracking unit that was designed by Pullman Kellogg, and that he
was continually exposed to polynuclear aromatic hydrocarbons which ultimately caused his lung
disease. Id. Pullman Kellogg responded that the ten-year statute of repose for suits against architects
and engineers barred Jones’s suit. Id. Jones asserted that the statute violated the open courts
clause of the Texas Constitution because her suit was barred before her husband’s injury manifested
itself. Id. at 1272.
Affirming the constitutionality of the statute, the Fifth Circuit concluded that Jones
still had a legal remedy because she was able to pursue her claims against other defendants. See id.;
see also Gomez, 246 S.W.3d at 314; Wilson, 864 N.E.2d at 695. The court noted that Jones had sued
her husband’s employer as well as thirteen manufacturers and suppliers of asbestos-containing
products and that she had entered into settlement agreements with several of them.18 Id.
18
Jones illustrates the factual basis for a Texas court’s rejection of the argument that a
claimant was left without any viable defendants or effectively denied a cause of action. For over a
century, the Texas Supreme Court has recognized that laws affecting a remedy are not
unconstitutionally retroactive unless the remedy is entirely taken away. See De Cordova , 4 Tex. at
480; see also Burlington N. & Santa Fe R.R. Co. v. Skinner Tank Co., 419 F.3d 355, 359-60 (5th Cir.
26
Satterfield’s legal position is similar to Jones’s because chapter 149 does not prevent
Satterfield from pursuing her remedies or recovering all of her damages, jointly and severally, from
numerous other defendants (nor does it affect any settlement that she has already received in this
case). Accordingly, chapter 149 does not violate the constitutional prohibition against retroactive
laws in article I, section 16.
Furthermore, there is no violation of article I, section 16 because chapter 149 is a
remedial statute that could be applied to pending cases. See Exxon Corp. v. Brecheen, 526 S.W.2d
519, 525 (Tex. 1975) (holding that statute which became effective after claimant’s death but prior
to the trial of wrongful death case was remedial, constitutional; and governed pending litigation
proceedings that were pending when statute was enacted); De Cordova, 4 Tex. at 477 (recognizing
that laws merely regulate the remedy are not within constitutional prohibition against retrospective
laws); Villers v. Republic Fin. Servs., Inc., 602 S.W.2d 566, 572 (Tex. App.—Texarkana 1980, writ
ref’d n.r.e.) (noting that generally, statutes concerning remedies are to be applied to actions tried after
their passage even though action arose beforehand); Sergeant Enters., Inc. v. Strayhorn, 112 S.W.3d
241, 250 (Tex. App.—Austin 2003, no pet.) (recognizing that remedial statutes may be applied to
pending cases because they usually do not affect vested right); see 16A C.J.S. Constitutional Law
§ 267 (1986) (“A statute which relates merely to matters of remedy may be made applicable
2005); City of Tyler v. Likes, 962 S.W.2d 489, 502 (Tex. 1997). The majority states that Jones “did
not consider whether such a law would violate the Texas Constitution’s express prohibition against
retroactive laws in article I, section 16.” However, that is not a relevant concern. Retroactivity is
a non-issue if the claimant is not completely deprived of a remedy. Jones offers assistance in
understanding what facts do not constitute complete abrogation of a claimant’s remedy and for that
reason, it is entirely instructive here.
27
to pending proceedings at any time before the final judgment of the court becomes effective.”). A
remedial statute is one that introduces a new regulation for the advancement of the public welfare
or conducive to the public good, affords a remedy, improves and facilitates existing remedies, or
corrects defects, mistakes, and omissions in the laws of the State. Lukes v. Employees Ret. Sys. of
Tex., 59 S.W.3d 838, 842 (Tex. App.—Austin 2001, no pet.) (citing Sims v. Adoption Alliance,
922 S.W.2d 213, 217 (Tex. App.—San Antonio 1996, writ denied)).
Chapter 149 is a remedial statute because it corrected an omission in Texas law
concerning the post-merger successor liability of foreign corporations. Chapter 149 also addressed
the long-tailed, unpredictable asbestos-related liabilities that may bankrupt successor corporations:
A corporation is currently liable up to its total value for all injuries it causes. If that
corporation merges with a much larger corporation, however, the successor
corporation is liable for the injuries caused by its predecessor (even though not caused
in any way by the successor) up to the successor’s much higher value. In the case of
long-tailed and unknown asbestos-related liabilities, a much larger successor can
easily be bankrupted by the asbestos-related liabilities it innocently received from a
much smaller predecessor with which it merged many decades ago. To eliminate that
unfairness––and even to save successor corporations from bankruptcy––some have
proposed a new rule limiting liability especially for asbestos-related successor
liabilities acquired solely through a merger. . . . [Under this rule], any asbestos-related
liabilities acquired solely through a merger would be traced back through one or more
mergers to the original transferor who did something related to asbestos that actually
resulted in harm. The total of transferred liabilities that the successor corporation had
to pay would be limited to the value (adjusted upward for time and inflation) of the
total gross assets of the original transferor that caused those same liabilities.
H.J. of Tex., 78th Leg., R.S. 6042-43.
28
Because chapter 149 is a remedial statute that could be applied to pending cases and
because the statute did not bar Satterfield from pursuing her claims against multiple other
defendants, it is constitutional under article I section 16.
Police power
The next fundamental flaw in the majority opinion is that it does not recognize the
legislature’s right to reasonably exercise its police power after balancing the competing
considerations on its own. Dismissing chapter 149 as being enacted under the mere “guise” of police
power, the majority posits that the needs of the public are distinct from the financial protection of
a particular private-business segment. But the connection between the solvency of a particular
business segment and potential public harm is evident to Satterfield, who does not dispute the
significance of the asbestos-litigation crisis to non-tortfeasor successor corporations or the potential
effects of their bankruptcies on Texas jobs and state revenue. The Supreme Court has also made the
connection between support of a business sector and prevention of public harm, holding that
protection of the people’s vital interests is not limited to health, morals and safety, but extends to
economic needs as well. Veix v. Sixth Ward Bldg. & Loan Ass’n, 310 U.S. 32, 38-39 (1940)
(upholding state statutes designed to protect solvency of building and loan associations as
constitutional exercise of state’s police power); see also Brand v. Korth, 99 S.W.2d 285, 287
(Tex. 1936) (recognizing that exercise of legislative police power extends to safeguarding solvency
of banks). Contrary to the majority’s declaration that the legislature’s enactment of chapter 149 is
outside the scope of the police power, the Supreme Court has determined that legislation aiming to
benefit state residents and their economic interests—by increasing state industries, developing
29
its resources, and adding to its wealth and prosperity—is embraced by the police power. Barbier
v. Connolly, 113 U.S. 27, 31 (1885); see also Jefco, Inc. v. Lewis, 520 S.W.2d 915, 922 (Tex. Civ.
App.—Austin 1975, writ ref’d n.r.e) (citing City of Coleman v. Rhone, 222 S.W.2d 646, 648
(Tex. Civ. App.—Eastland 1949, writ ref’d)). Chapter 149 serves the public goals recognized by
the Supreme Court. It seeks to minimize financial peril to non-tortfeasor successor corporations and
reduce risks to jobs and pensions, which promotes the state’s prosperity and addresses proper subject
matter for the exercise of legislative police power.
“A large discretion is necessarily vested in the Legislature to determine not only what
the interests of the public require, but what measures are necessary for the protection of such
interests.” State v. Richards, 301 S.W.2d 597, 602 (Tex. 1957); Grothues v. City of Helotes,
928 S.W.2d 725, 729 (Tex. App.—San Antonio 1996, no writ) (“As the affairs of the people and
government change and progress, so the police power changes and progresses to meet the needs.”)
(quoting City of Breckenridge v. Cozart, 478 S.W.2d 162, 165 (Tex. Civ. App.—Eastland 1972,
writ ref’d n.r.e.)). Accordingly, whether a legislative act will serve a public use or purpose is, in the
first instance, a question for the determination of the legislature, and that determination or decision
cannot be reviewed and the contrary determined by the judiciary except in instances where the
legislative determination of the question is palpably and manifestly arbitrary and incorrect. Rhone,
222 S.W.2d at 649 (quoting Neal v. Boog-Scott, 247 S.W. 689, 691 (Tex. Civ. App.—Beaumont
1923, no writ)); see also Jefco, 520 S.W.2d at 922 (citing Rhone, this Court stated that wisdom of
exercise of police power is largely for legislative rather than judicial determination, courts will not
30
disturb exercise of police power unless it was unnecessary and unreasonable, and if difference of
opinion exists as to its necessity and reasonableness, courts will not invalidate it).
Because operation of the police power often results in the abridgment of private
rights, Spann v. Dallas, 235 S.W. 513, 515 (Tex. 1921), individual hardship is balanced against
the statute’s public advantages in determining whether a statute is a valid exercise of police power,
State v. City of Austin, 331 S.W.2d 737, 743 (Tex. 1960); Texas State Teachers Ass’n v. State,
711 S.W.2d 421, 424 (Tex. App.—Austin 1986, writ ref’d n.r.e.).
Here, the legislature enacted a limitation on the asbestos-related liability of non-
tortfeasor successor corporations to contain the financial peril threatening non-tortfeasor successor
corporations and to reduce the resulting risks to Texans’ jobs and pensions19 when the financial
stability of those corporations is jeopardized by successor-liability litigation. The statement of
legislative intent expresses the policy behind the law and the harm that it was intended to address:
Corporations actually in the asbestos business and their successors through merger
have been financially drained by decades of litigation. As a result, nearly 70 such
corporations have sought protection through bankruptcy. The cost in jobs and
pension benefits, to cite just two examples, has been substantial. This legislation
seeks to help keep remaining hard-pressed successors out of bankruptcy.
H.J. of Tex., 78th Leg., R.S. 6044.
19
The expansion of successor-liability asbestos litigation affects Texas residents. Crown’s
former secretary and general counsel, Richard Krzyzanowski, testified that Crown’s subsidiaries or
affiliates produce beverage cans at facilities in Conroe, Sugarland, and Abilene. Those three
facilities employ almost 1,000 Texans and contribute $5 million in property and franchise taxes to
the state. Krzyzanowski further noted that Crown’s corporate family includes approximately as
many Texas retirees as employees.
31
To attain these objectives and after balancing the competing interests, the legislature
expressly decided to apply chapter 149 to pending cases. See Tex. Civ. Prac. & Rem. Code Ann.
§ 149.001 (mandating application of chapter 149 to all cases “in which the trial, or any new trial or
retrial following motion, appeal, or otherwise, begins on or after that effective date.”); Lebohm
v. City of Galveston, 275 S.W.2d 951, 955 (Tex. 1955) (op. on reh’g) (stating that police power
includes legislative authority to withdraw remedies for causes of action when that withdrawl “is a
reasonable exercise of the police power in the interest of the general welfare.”); see also Quick
v. City of Austin, 7 S.W.3d 109, 136 (Tex. 1999) (Hankinson, J., dissenting) (noting that “[w]hether
to apply a statute retroactively is, for very good reasons, a legislative policy choice”). Through
May 2003, Crown had already paid successor asbestos-related claims totaling more than
$413 million. If it had been required to continue paying such claims, Crown would have been
threatened with bankruptcy—the precise consequence that the legislature sought to prevent for all
similarly situated corporations.
Satterfield concedes that the legislature may enact laws that affect pending
matters—if the legislation addresses water conservation, protection of the environment or children,
or the regulation of professions, zoning, or handguns—because valid exercise of police power in the
public interest is a recognized exception to the unconstitutionality of laws with potential retroactive
effect. See In re A.V., 113 S.W.3d 355, 361 (Tex. 2003) (citing Barshop v. Medina County
Underground Water Dist., 925 S.W.2d 618, 633-34 (Tex. 1996)); see also Kilpatrick v. State Bd. of
Registration for Prof’l Eng’rs, 610 S.W.2d 867, 871 (Tex. Civ. App.—Fort Worth 1980, writ ref’d
32
n.r.e) (“The constitutional rules against impairing contracts and retroactive laws are not absolute and
must yield to a state’s right to safeguard the public safety and welfare.”).20
However, she also argues that the prohibition against retroactive laws in article I,
section 16 of the Texas Constitution’s Bill of Rights is strengthened by article I, section 29 of the
constitution, which states that everything in the Bill of Rights “is excepted out of the general powers
of government, and shall forever remain inviolate, and all laws contrary thereto . . . shall be void.”
See Tex. Const. art. I, § 29.
Satterfield fails to explain the evident inconsistency between (1) her recognition of
the constitutionality of applying certain police-power-enacted laws (involving water conservation;
protection of the environment and children; and regulation of professions, zoning, and handguns)
to pending claims, and (2) her assertion that article I, section 29 prohibits all retroactive laws. See
20
The question of “whether the legislature reasonably exercised its police power to enact a
retroactive law” has been answered at least twice by the author of the majority opinion, who stated
that, “[w]hile article 1, section 16 of the Texas Constitution expressly forbids retroactive legislation,
it has been consistently construed not to invalidate all retroactive legislation.” Institute of Cognitive
Dev., Inc. v. Texas Dep’t of Mental Health & Mental Retardation, No. 03-98-00376-CV,
1999 Tex. App. LEXIS 4780, at *13 (Tex. App.—Austin 1999, no pet.). The author further noted
that “valid exercise of the police power by the legislature to safeguard the public safety and welfare
can prevail over a finding that a law is unconstitutionally retroactive.” Id. at *22 (citing Barshop
v. Medina County Underground Water Dist., 925 S.W.2d 618, 637-38 (Tex. 1996); Texas State
Teachers Ass’n v. State, 711 S.W.2d 421, 424 (Tex. App.—Austin 1986, writ ref’d n.r.e.)).
The majority’s discussion of legislative police power contains conflicting assertions. On the
one hand, it states that “the Texas Legislature has no power, police or otherwise” to enact a
retroactive law. On the other hand, just four pages later, it recognizes that in Barshop and other
cases, the legislature’s enactment of laws that applied to pending causes of action “may have
involved a valid exercise of police power.”
33
id. art. I, §§ 16, 29.21 Because Satterfield concedes that, at least in some instances, the legislature
may enact laws under its police power that apply to pending claims without running afoul of the
Texas Constitution, there is no need to attempt to reconcile the inconsistency in her argument.22
Courts are reluctant to disturb legislative action on subject matter that lies within the
police power and will not do so unless it clearly appears that the regulation is unnecessary,
unreasonable,23 and unjustified by the facts. Bellaire v. Lamkin, 317 S.W.2d 43, 45-46 (Tex. 1958)
21
The utility of article I, section 29 of the Texas Constitution has been questioned:
Presumably section 29 was designed as a closing flourish to emphasize the
importance of the Bill of Rights. Unfortunately, it is not clear just what it means and
one is left with the suspicion that despite the apparently strong language it means
nothing at all. Section 29 has been cited in relatively few cases and in them the
decision typically turned on another section of the Bill of Rights cited with section
29. . . . Section 29 seems to be a meaningless provision of the Bill of Rights. It is
not even the aid to rigid construction which it might appear to be. . . . Article I today
is redundant, confusing, partially obsolete and in places highly technical. In its
present form its justification is history not logic.
1 George D. Braden, et al., The Constitution of the State of Texas: An Annotated and Comparative
Analysis 85-86 (1977).
22
The Texas Supreme Court has observed that meaning of the Texas Constitution must
be sought with the understanding that it “was ratified to function as an organic document to govern
society and institutions as they evolve through time.” Davenport v. Garcia, 834 S.W.2d 4, 19
(Tex. 1992). If the majority’s interpretation of article I, section 29 is legally sound, then all
contemporary Texas statutes that place any limit whatsoever on the freedoms of speech, press, or
religion; the right of due process; or any other provision in the bill of rights, are unconstitutional.
23
The majority asserts that legislative intent and an assessment of a statute’s reasonableness
are impossible without something akin to Congressional findings. But as the Texas Supreme Court
has stated, the “surest guide to legislative intent” is in the words that the legislature chooses to use
in a statute. Leland v. Brandal, 2008 Tex. LEXIS 574, at *5 (Tex. June 13, 2008) (quoting
Fitzgerald v. Advanced Spine Fixation Sys., Inc., 996 S.W.2d 864, 866 (Tex. 1999)). Interestingly,
in the paragraph immediately following this assertion, the majority concludes that chapter 149 is not
a reasonable exercise of legislative police power.
34
(citing Rhone, 222 S.W.2d at 649); Jefco, Inc., 520 S.W.2d at 922; Martin v. Wholesome Dairy Inc.,
437 S.W.2d 586, 591-92 (Tex. Civ. App.—Austin 1969, writ ref’d n.r.e.). As the Texas Supreme
Court has stated, “If there is room for a fair difference of opinion as to the necessity and
reasonableness of a legislative enactment on a subject which lies within the police power, the courts
will not hold it void.” Bellaire, 317 S.W.2d at 45-46 (emphasis in original); Jefco, 520 S.W.2d at
922; Martin, 437 S.W.2d at 592.
Satterfield has not made it clearly apparent that chapter 149 is unnecessary,
unreasonable, and unjustified by the facts. See Bellaire, 317 S.W.2d at 45-46. To invalidate
chapter 149, Satterfield would have this Court reject the statement of legislative intent accompanying
the statute’s enactment. However, because there is room for a fair difference of opinion as to the
necessity and reasonableness of chapter 149 on subjects that lie within the police power (i.e.,
promotion of the public interest in jobs and pensions, increasing state industries, developing its
resources, and adding to its wealth and prosperity), this Court will not hold it void. See id.; see also
Barshop, 925 S.W.2d at 634 (holding that Edwards Aquifer Act’s cap on landowners’ water
withdrawl was necessary to safeguard public welfare and that consideration of preexisting users’
water consumption before effective date of Act did not render Act unconstitutional).
Chapter 149 handles competing economic interests: having a remedy available for
claimants by shifting tort liability to successor corporations versus minimizing financial risk to
successor corporations and the jobs and pensions provided by those corporations. Balancing these
competing interests is a quintessential function of the legislature, not the judiciary. See City of
Rockwall v. Hughes, 246 S.W.3d 621, 626 n.38 (Tex. 2008) (Willett, J., dissenting).
35
Having concluded that Satterfield failed to demonstrate the unconstitutionality of
applying chapter 149 to this case, consideration is given to her next constitutional challenge:
whether chapter 149 constitutes a special law.
Constitutional challenge under article III, section 56
In her second issue, Satterfield argues that chapter 149 “singles out Crown and Crown
alone” for special treatment in violation of the Texas Constitution’s prohibition against special laws.
See Tex. Const. art. III, § 56. This argument presents a facial challenge to the statute, requiring
Satterfield to demonstrate that there is “no possible state of facts” under which the statute would be
constitutional. See Texas Workers’ Comp. Comm’n v. Garcia, 893 S.W.2d 504, 520 (Tex. 1995).
Crown responds that chapter 149 is not a special law because it is applicable to a substantial class
and its classifications are reasonable.
A special law is limited to a particular class of persons distinguished by some
characteristic other than geography. Ford Motor Co. v. Sheldon, 22 S.W.3d 444, 450 (Tex. 2000);
Maple Run at Austin Mun. Util. Dist. v. Monaghan, 931 S.W.2d 941, 945 (Tex. 1996). Article III,
section 56 of the Texas Constitution enumerates thirty contexts in which “the Legislature shall
not, except as otherwise provided in this Constitution, pass any local or specialized law.”
Additionally, “in all other cases where a general law can be made applicable, no local or special law
shall be enacted.” Tex. Const. art. III, § 56.24
24
This general prohibition does not preclude the legislature from passing special laws for
preservation of Texas fish and game and fence laws “as may be needed to meet the wants of the
people.” Tex. Const. art. III, § 56(b)(1), (2).
36
Broad authority rests with the legislature to make classifications for legislative
purposes. Sheldon, 22 S.W.3d at 450; Juliff Gardens, LLC v. Texas Comm’n on Envtl. Quality,
131 S.W.3d 271, 281 (Tex. App.—Austin 2004, no pet.). Legislative classifications “must be broad
enough to include a substantial class and must be based on characteristics legitimately distinguishing
such class from others with respect to the public purpose sought to be accomplished by the proposed
legislation.” Sheldon, 22 S.W.3d at 451 (upholding reasonableness of statutory classification of class
actions involving motor vehicle licensees because automobile is one of consumers’ largest and most
important purchases and class actions involving automobiles affect many individuals); Juliff
Gardens, 131 S.W.3d at 281 (upholding reasonableness of statutory classification of proposed
landfills because those landfills were less regulated than others and their resulting pollution had
potential to affect population centers, aquatic habitat, and recreational fishing).
In determining whether a statute is a special law, it is appropriate to examine the
statute’s legislative history. Juliff Gardens, 131 S.W.3d at 282 n.7. “The primary and ultimate
test of whether the law is general or special is (1) whether there is a reasonable basis for the
classification made by the law, and (2) whether the law operates equally on all within the class.”
Sheldon, 22 S.W.3d at 451 (quoting Rodriguez v. Gonzales, 227 S.W.2d 791, 793 (Tex. 1950)).
Before a statute will be nullified by the constitutional proscription of article III, section 56, it must
clearly appear that there is no reasonable basis for the classification adopted by the legislature to
support the statute. County of Cameron v. Wilson, 326 S.W.2d 162, 167 (Tex. 1959). As this Court
observed, “If there could exist a state of facts justifying the classification or restriction complained
of, courts will assume that it existed.” Inman v. Railroad Comm’n, 478 S.W.2d 124, 127 (Tex. Civ.
37
App.—Austin 1972, writ ref’d n.r.e.) (quoting Reed v. City of Waco, 223 S.W.2d 247, 252 (Tex. Civ.
App.—Waco 1949, writ ref’d)).
Because Satterfield does not allege that chapter 149 applies unequally to those within
the defined class, her special-law challenge can succeed only if she demonstrates the first prong of
the special-law test: that the legislative classifications in chapter 149 are unreasonable and bear no
substantial relation to objectives sought to be accomplished by the act. See Sheldon, 22 S.W.3d at
451; Monaghan, 931 S.W.2d at 946.
Reasonableness of classifications
Satterfield argues that chapter 149 “creates an unconstitutional special class of one”
and that its narrowly defined class is not reasonably related to the statute’s “purported goals.” She
specifically asserts that: (1) details defining the class fit Crown and it is the only corporation known
to have raised the statutory defense; (2) a class that includes only Crown is not reasonably related
to the objective of saving corporate successors on the verge of bankruptcy; and (3) a senator’s
remark about the “Crown Cork and Seal asbestos issue” reveals that chapter 149 created only a
“pretend” class.
1. Classification details
First, Satterfield states that the details defining the class in chapter 149 were tailored
to fit Crown’s corporate history and that Crown has been unable to identify another corporation
encompassed by the statute’s classifications. But she concedes that Crown had no legal burden to
make that identification. As the party that initiated the challenge to the constitutionality of
38
chapter 149, Satterfield had the burden of demonstrating its unconstitutionality. See Walker
v. Gutierrez, 111 S.W.3d 56, 66 (Tex. 2003). She cannot prevail by attempting to shift her burden
of proof to Crown. Satterfield has not referenced any case striking a statute as a special law solely
because the potential class size was small. Rather, the test of a special law is whether there is a
reasonable basis for the classification and whether the law operates equally on all within the class.
Sheldon, 22 S.W.3d at 451. Merely because Crown is the only entity to assert the applicability of
chapter 149 thus far does not mean that any other corporate successor that may have failed to do so
is statutorily ineligible. As the supreme court has recognized, the fact that a statute that may have
applied to only one entity when it was enacted does not compel the conclusion that it is a special or
local law if it is “not so inflexibly fixed” as to prevent it from ever being applicable to others. Bexar
County v. Tynan, 97 S.W.2d 467, 469-70 (Tex. 1936) (considering legislation applicable to only
one county).
Second, Satterfield criticizes chapter 149’s use of May 13, 1968, as the merger
deadline for a successor corporation to become eligible for the asbestos-liability limitation. See
Tex. Civ. Prac. & Rem. Code Ann. § 149.002(a). She claims the classification is unreasonable
because the Texas Department of Health suspected the hazards of asbestos since 1958 and had
adopted a workplace regulation capping the concentration of asbestos dust at 5 million particles per
cubic feet of air (“mppcf”). That regulation approved of the listed concentrations as “generally safe”
and noted that the concentrations “were not maximum values” but could be momentarily exceeded.
However, Satterfield has not clearly demonstrated that there is no reasonable basis
for the legislative classification concerning the May 13, 1968 merger deadline. See Wilson,
39
326 S.W.2d at 167; see also Smith v. Davis, 426 S.W.2d 827, 831 (Tex. 1968) (stating that mere
difference of opinion, where reasonable minds could differ, is insufficient basis for striking
legislation as arbitrary or unreasonable). In 1968, the American Conference of Governmental
Industrial Hygienists (ACGIH) tightened the asbestos concentration standard significantly, cutting
the limit by more than half to 2 mppcf. H.J. of Tex., 78th Leg., R.S. 6044. The ACGIH first adopted
that change on May 13, 1968, following Dr. Irving Selikoff’s issuance of his “famous warnings in
the mid-1960s about the dangers of asbestos in the workplace.” Id.
According to the statement of legislative intent, the classification that required the
original transfer of successor asbestos liabilities to have occurred before May 13, 1968, was included
to concentrate the liability limitation on innocent successor corporations. Id. at 6043-44. Logically,
successors that had not engaged in the asbestos business, did not intend to take over their
predecessors’ asbestos business, and merged before 1968 were unlikely to have known about any
workplace asbestos regulation—much less that Texas’s standard 5 mppcf limit was unsafe. See id.
I am unpersuaded that the merger deadline in chapter 149 is unreasonable.
Third, Satterfield asserts that the successor-to-successor provision in chapter 149 was
designed specifically for Crown, which changed its state of incorporation from New York to
Pennsylvania by merger and consolidation in 1989. I disagree. Chapter 149 was intended to allow
successors who receive only the same bundle of original asbestos liabilities through successive
mergers to plead the liability limits applicable to the first pre-1968 successor. Id. at 6043; see also
Tex. Civ. Prac. & Rem. Code Ann. § 149.002(a). Without this provision, chapter 149 would be
ineffective to accomplish its legislative intent: corporations that currently satisfy chapter 149 but
40
subsequently merge with another corporation would relinquish their eligibility for the liability
limitation, even though their culpability for asbestos-related claims would still be nonexistent. And
without this provision, as Crown notes, claimants who could not sue the intermediate successor
would have a revived cause of action against an equally innocent corporation that is even further
removed from the corporation from which the liability derived.
Courts must reject interpretations of a statute that defeat the purpose of the legislation,
so long as another reasonable interpretation exists. Nootsie, Ltd. v. Williamson County Appraisal
Dist., 925 S.W.2d 659, 662 (Tex. 1996); see Webb County Appraisal Dist. v. New Laredo Hotel,
Inc., 792 S.W.2d 952, 954 (Tex. 1990) (cautioning that the legislature is not presumed to have done
“a useless act”). Inclusion of the successor-to-successor provision in a statute designed to address
the long-tailed, unpredictable asbestos-related liabilities that may bankrupt successor corporations,
see H.J. of Tex., 78th Leg., R.S. 6043, bears a substantial relation to the legislative objectives sought.
See Sheldon, 22 S.W.3d at 451; Monaghan, 931 S.W.2d at 946.
2. Bankruptcy risk
Satterfield next contends that chapter 149 is not rationally related to the objective of
averting bankruptcy for corporate successors because Crown is not at risk of bankruptcy. For the
reasons that follow, I conclude that Crown’s inclusion in the class of successor corporations
attempting to avert bankruptcy is reasonable.
Through May 2003, Crown compensated claimants in an amount that exceeded
Mundet’s adjusted fair market value almost six times—paying over $413 million. Crown states that
its continued responsibility to pay such claims would have posed a bankruptcy threat. It has already
41
refinanced $1 billion of debt in 2003 to continue its operations, and it will have to pay $1 billion of
that refinanced debt in 2008. As Crown noted in its annual report filed with the United States
Securities and Exchange Commission, the fate of recent legislation limiting successor liability could
materially affect Crown’s operations, financial position, and cash flow.
However, chapter 149 does not require deviation from some threshold of solvency
before the statute will apply to a corporate successor. Rather, chapter 149 sought to address
unfairness to innocent successor corporations and stem negative economic effects on employees and
pensioners. The scope of Crown’s successor liability is not premised on any sale, manufacture, or
distribution of asbestos-containing products, and the duration of its liability before chapter 149 was
almost infinite. Unlike an actual tortfeasor, Crown was unable to take any corrective action to
minimize its potential successor-related asbestos liability. Judgments against Crown cannot function
as legitimate deterrents to the alleged tortious acts or omissions of Mundet. It would not have been
unreasonable for the legislature to include innocent corporate successors that have paid more than
six times their predecessors’ adjusted fair market value in asbestos-related claims within
theclassification of those eligible for the liability limit. There is a strong presumption that the
legislature understands and appreciates the needs of the people and that its discriminations are based
on adequate grounds. Enron Corp. v. Spring Indep. Sch. Dist., 922 S.W.2d 931, 934 (Tex. 1996);
Williams v. Razor Enters., Inc., 70 S.W.3d 274, 275-76 (Tex. App.—San Antonio 2002, no pet.).
3. Pretend class
Satterfield further contends that a senator’s remark about the “Crown Cork and Seal
asbestos issue” reveals that chapter 149 created only a pretend class. A “pretended” class, as
42
defined by this Court, is one that “manifest(s) a purpose to evade the constitution.” Public Util.
Comm’n v. Southwest Water Serv., Inc., 636 S.W.2d 262, 265 (Tex. App.—Austin 1982, writ ref’d
n.r.e.) (quoting Clark v. Finley, 54 S.W. 343, 346 (Tex. 1899)).
Crown’s involvement in asbestos litigation did precede the legislature’s action with
regard to chapter 149. During a meeting of the Texas Senate State Affairs Committee, its chair
described article 17 of House Bill 4:
Article 17, limitations in civil actions of liabilities relating to certain mergers or
consolidations. This, members, is the Crown Cork and Seal asbestos issue. What we
have put in this bill is what I understand to be an agreed arrangement between all of
the parties in this—in this matter.
Meeting on Proposed Senate Substitute for Tex. H.B. 4, State Senate Affairs Committee, 79th Leg.,
R.S., 13 (Apr. 30, 2003). I disagree with Satterfield’s suggestion that this shorthand reference to the
issue in Article 17 reveals a purpose to evade the constitution through the creation of a pretended
class that would benefit only Crown. Cf. Finley, 54 S.W. at 345 (citing Pennsylvania case in
discussion of pretended class, which noted that its legislature had engaged in “a studied and constant
effort” to evade constitutional prohibition against local and special legislation).
This Court has considered legislation with highly specific classifications, allegedly
applicable to only one entity, that resemble Satterfield’s special law challenge to chapter 149. See
Juliff Gardens, 131 S.W.3d at 283. In our review of the summary judgment in Juliff Gardens,
appellant emphasized excerpts from a Senate floor discussion as evidence that one senator was
attempting to specifically “target” the Juliff landfill with the legislation. Id. at 282-83. The
legislative classifications at issue applied only to permits that had been recommended for denial by
43
a county commissioners’ resolution, concerning landfills containing type IV waste (brush,
construction-demolition waste, and/or other non-putrescible, non-household rubbish), that were
located within 100 feet of a canal used for public drinking water or crop irrigation, in counties
with populations exceeding 225,000, and adjacent to the Gulf of Mexico. Id. at 275. These statutory
classifications, among others, were based on the following facts: type IV landfills were less
regulated than others; the potential effects of pollution would produce greater harm to the population
centers, aquatic habitat, and fishing in coastal counties; and it would be unwise to place a landfill
near low-circulation canals or in areas susceptible to hurricanes, tidal surges, and other climatic
conditions. Id. at 284.
This Court held that the classifications were reasonable and not specifically targeted
at Juliff’s landfill. Id. at 283 & n.8. We clarified that when presented with legislation that is
challenged as a special law, “we review the reasonableness of the statute’s classifications, . . . not
the precipitating forces that led to its enactment.” Id. at 283. That the legislation may have had its
origin in local controversy, which then led one senator to sponsor the particular amendment that was
eventually enacted, did not render it a prohibited local or special law. Id. at 283-84.25
Similarly, review for possible infringement of article III, section 56 in this case is not
based on any precipitating forces leading to the enactment of chapter 149 but whether its legislative
25
In Juliff Gardens v. Texas Comm’n on Envtl. Quality, we noted that specific events have
led to numerous statutes that were enacted as laws of general applicability, including the AMBER
alert law and the Brady bill. 131 S.W.3d 271, 282-83 (Tex. App.—Austin 2004, no pet.) (citing
Tex. Gov’t Code Ann. §§ 411.351-.358 (West 2005) (Statewide America’s Missing: Broadcast
Emergency Response (AMBER) Alert System for Abducted Children); 18 U.S.C.A. § 921-31
(West 2000 & Supp. 2008) (Brady Handgun Violence Prevention Act)).
44
classifications are reasonable. See Sheldon, 22 S.W.3d at 451. For the reasons that follow, I
conclude that they are.
Chapter 149 is written in general terms, applicable to all within the defined class,
and does not single out any particular member of the class for special treatment. The specific
classifications in chapter 149 were intended to include successor corporations that “were the most
innocent about the potential hazards of asbestos” and “at the greatest financial peril, especially those
threatened with bankruptcy.” H.J. of Tex., 78th Leg., R.S. 6043. When the legislation was
considered, concerns were raised about the substantial cost in jobs and pension benefits. Id. at 6044.
To address those concerns and target the most innocent successors, one classification required that
the liability to be imposed must be based on the original transfer of successor asbestos liabilities that
occurred prior to May 13, 1968. Id.; see also Tex. Civ. Prac. & Rem. Code Ann. §§ 149.001(3)
(defining “successor asbestos-related liabilities”), .002(a). Subsequent successors may qualify under
the statute if they receive only that same bundle of original asbestos liabilities through successive
mergers. H.J. of Tex., 78th Leg., R.S. 6043; see also Tex. Civ. Prac. & Rem. Code Ann.
§ 149.002(a).
Another classification in chapter 149 restricted the liability limitation to successor
corporations that did not continue their predecessors’ business of mining, selling, or distributing
asbestos fibers, or manufacturing, distributing, installing, or removing asbestos-containing products.
Tex. Civ. Prac. & Rem. Code Ann. § 149.002(b)(5). The legislature sought to accomplish its goals
“without limiting every type of asbestos liability.” H.J. of Tex., 78th Leg., R.S. 6043; see also
Tex. Civ. Prac. & Rem. Code Ann. §§ 149.002(b)(8) (excluding from statute a successor
45
asbestos-related liability arising from certain premises liability claims), .003(a), (b) (statute is
inapplicable to corporations that have not yet exceeded their statutory limit).
Rather than demonstrating that it is a special law, the precision of the classifications
in chapter 149 shows that it is narrowly tailored to serve its purposes: to prevent asbestos-related
liabilities from bankrupting innocent successor corporations and creating a negative economic effect
on employees and pensioners. See H.J. of Tex., 78th Leg., R.S. 6044. Through chapter 149, the
legislature addressed the economic concerns that implicate the ability of successor corporations to
continue to provide jobs and pension benefits. These are matters of importance to Texas and its
citizens. See Barbier, 113 U.S. at 31; see also Robinson, 251 S.W.3d at 538.
Based on this record, I conclude that a reasonable relationship exists between the
classifications and the objectives sought to be accomplished by chapter 149 and that article III,
section 56 of the constitution is not violated. See Davis, 426 S.W.2d at 830. The wisdom or
expediency of chapter 149 is the legislature’s prerogative, not ours. See id. at 831. Satterfield
provides alternatives to the stated reasoning of the legislature, but she does not contradict the
significance of the asbestos crisis to corporations, including those doing business in Texas, or the
other legislative justifications for chapter 149, and she has not shown that the classifications set forth
in chapter 149 are unreasonable. For these reasons, I conclude that Satterfield has not met her
burden of demonstrating that chapter 149 is a special law.
Having concluded that Satterfield’s challenges to chapter 149 as a retroactive law
and as a special law do not defeat the presumption of the statute’s validity, see Barshop, 925 S.W.2d
46
at 629, consideration must be given to the establishment of Crown’s affirmative defense under
chapter 149.
Crown’s summary judgment burden
Although Satterfield’s second issue urged that the legislative classifications in
chapter 149 were tailor-made for Crown, her third issue insists that chapter 149 does not apply to
Crown at all. In her third issue, Satterfield argues that summary judgment was improper because her
evidence created a fact issue about whether Crown continued the asbestos business after “acquiring”
Mundet. Based on her incorrect interpretation of section 149.002(b)(5) of the civil practice and
remedies code, she alleges that Crown was ineligible for chapter 149’s liability limitation.
Stock purchase vs. merger under section 149.002(b)(5)
The parties dispute when Crown became Mundet’s successor. Satterfield asserts that
Crown became Mundet’s successor and first incurred successor asbestos-related liabilities in 1963,
after Crown’s $7 million purchase of Mundet’s stock. Crown contends that it became Mundet’s
successor in 1966 when the corporations merged. The distinction between a merger and a stock
purchase is significant because of the text of chapter 149. The relevant subsection of the
statute—noticeably omitted from Satterfield’s brief—states that the successor-liability limitation is
inapplicable to:
a successor that, after a merger or consolidation, continued in the business of mining
asbestos or in the business of selling or distributing asbestos fibers or in the business
of manufacturing, distributing, removing, or installing asbestos-containing products
which were the same or substantially the same as those products previously
manufactured, distributed, removed, or installed by the transferor.
47
Tex. Civ. Prac. & Rem. Code Ann. § 149.002(b)(5) (emphasis added). Nothing in subsection
149.002(b)(5) addresses corporations who continue the business of asbestos after a stock purchase.
Nevertheless, Satterfield emphasizes that successor asbestos-related liabilities need
not originate with corporate mergers. She asserts that successor asbestos-related liabilities includes
those “related in any way to asbestos claims based on the exercise of control or the ownership of
stock of the corporation before the merger or consolidation.” See id. § 149.001(3). Based on
testimony from a former Mundet employee, E.J. Stansbury,26 Satterfield contends that Crown
continued Mundet’s asbestos business after the 1963 stock purchase, and that Crown was therefore
ineligible, under subsection 149.002(b)(5), for the statutory liability limitation. The fallacy of
Satterfield’s suggestion that subsection 149.002(b)(5) applies to stock purchases is revealed by the
text of the statute.
Testimony about pre-merger events
Satterfield relies on Stansbury’s 1983 deposition testimony in another lawsuit to argue
that there is a fact issue about whether Crown continued Mundet’s asbestos business for several
months after its stock purchase. However, Stansbury’s testimony relates exclusively to activity
before the 1966 Crown-Mundet merger. Stansbury testified that he was in charge of Mundet’s
operation in Houston between 1963 and 1964, which includes the time period when Crown
purchased Mundet’s stock. He was asked whether he knew Mundet employees that went to work
for Crown when Mundet sold to Crown, and he responded affirmatively. He also responded
26
Stansbury is deceased.
48
affirmatively when asked whether Crown continued to sell, contract for, and fill orders for Mundet
products, including those containing asbestos, for three months.27
Pre-merger events are irrelevant under subsection 149.002(b)(5). See id.; see also
Robinson, 251 S.W.3d at 540. That subsection addresses a successor’s continuation of its
predecessor’s asbestos business after their merger and excludes such a successor from the statute’s
liability limitation. Tex. Civ. Prac. & Rem. Code Ann. § 149.002(b)(5). The summary-judgment
evidence shows that Stansbury did not work for Crown during the statutorily relevant time
period—after the 1966 Crown-Mundet merger. Stansbury testified that he began working for B-E-H
in February 1964, when B-E-H purchased Mundet’s insulation division.28 His testimony did not
raise a fact issue about whether Crown continued Mundet’s asbestos business after the 1966 merger.
Because Stansbury’s testimony fails to allege facts concerning a post-merger continuation of
Mundet’s asbestos business, it does not invoke subsection 149.002(b)(5).
Evidence in pre-merger bill of sale
Satterfield also notes that Mundet’s bill of sale to B-E-H in 1963 referred to Mundet
as “a Division of Crown Cork & Seal,” and was signed by Crown’s chairman of the board on behalf
of “Mundet Cork Corporation, a Division of Crown Cork & Seal Company, Inc.” Like Stansbury’s
testimony, this evidence too, fails to raise a fact question about whether Crown is excluded from
27
It is undisputed that Stansbury did not participate in the stock-purchase transaction, did
not work at the location where the transaction was handled, and knew nothing about the transaction
or Mundet’s independent existence.
28
It is undisputed that B-E-H acquired Mundet’s employees as part of B-E-H’s purchase of
Mundet’s insulation division on February 8, 1964.
49
chapter 149’s limitation of liability because the bill of sale predates the 1966 Crown-Mundet merger.
The plain language of the statute concerns a successor’s continuation of its predecessor’s
asbestos-related business “after a merger or consolidation.” See id. (emphasis added); see also
Robinson, 251 S.W.3d at 540.
The entirety of Satterfield’s summary judgment evidence relates to pre-merger events
before 1966, none of which constitute continuing the asbestos-related business as defined in
subsection 149.002(b)(5). See Tex. Civ. Prac. & Rem. Code Ann. § 149.002(b)(5); see also
Robinson, 251 S.W.3d at 540.
Crown’s uncontroverted evidence
Crown produced uncontroverted summary judgment evidence from its former
secretary and general counsel, Richard Krzyzanowski, who averred that Crown never engaged in the
asbestos business. He explained that by the time of Crown’s 1966 merger with Mundet, Mundet had
divested itself of its previous insulation operations. Krzyzanowski further averred that Crown itself
“never manufactured, distributed, advertised, sold, or installed any asbestos-containing or other
insulation products.”
Based on this record, I conclude that Satterfield failed to raise an issue of material fact
concerning Crown’s continuation in the business of asbestos after the merger that would trigger the
exclusion of section 149.002(b)(5) of the civil practice and remedies code and that Crown has
demonstrated its entitlement to summary judgment based on the limitation of liability in chapter 149.
50
CONCLUSION
The theory of successor liability serves a useful function in Texas law, but it is not
recognized as one of the “great and essential principles of liberty and free government” that receive
constitutional protection. See Tex. Const. art. I. The majority declares that the trial court erred in
granting summary judgment, but in doing so, it rejects certain holdings of the Texas Supreme Court
and persuasive authority from the Fifth Circuit, as well as principles recognized in the author’s own
prior opinions. Furthermore, by accepting Satterfield’s invitation to invalidate chapter 149, the
majority unnecessarily binds the legislature to existing choice-of-law rules.
The trial court ruled correctly in granting this summary judgment. Satterfield failed
to meet her heavy burden of demonstrating that chapter 149 is unconstitutional as applied to her case
under article I section 16 or under article III section 56 of the Texas Constitution, and Crown
conclusively established its affirmative defense limiting its successor liability. Accordingly, I would
affirm the trial court’s order.
W. Kenneth Law, Chief Justice
Before Chief Justice Law, Justices Patterson and Henson
Filed: August 29, 2008
51