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Nghiem v. Sajib

Court of Appeals of Texas, First District

June 29, 2017

DANIEL NGHIEM, Appellant
v.
RUPOM SAJIB AND GLOBAL AVIATION SERVICE, INC. D/B/A GLOBAL AVIATION SERVICES AND D/B/A GLOBAL AVIATION SERVICES, INC., Appellees

         On Appeal from the 61st District Court Harris County, Texas Trial Court Case No. 2015-27690A

          Panel consists of Justices Higley, Bland, and Brown.

          MEMORANDUM OPINION

          Harvey Brown Justice

         In this appeal from an order striking a petition in intervention, the issue is whether the two-year statute of limitations of the Deceptive Trade Practices- Consumer Protection Act applies to the intervenor's claim for breach of the implied warranty of good and workmanlike repairs to existing tangible goods and property.[1]

         Intervenor Daniel Nghiem was injured in a plane crash. Over two years later, Nghiem petitioned to intervene in a suit against a company that made repairs to the plane before the crash, Global Aviation Service, Inc. The trial court struck Nghiem's petition as untimely. In a single issue, Nghiem argues that the trial court erred in striking his petition because his implied warranty claim was governed by the residual four-year statute of limitations of the Civil Practice and Remedies Code.[2] We affirm.

         Background

         In June 2013, Daniel Nghiem and Rupom Sajib were injured in a plane crash. Sajib asserted a negligence claim against Global, a company that had performed maintenance and repairs on the plane before the crash.

         More than two years later, Nghiem petitioned to intervene as a plaintiff in Sajib's suit against Global, asserting a claim for breach of the implied warranty of good and workmanlike repairs to existing tangible goods and property.

         Global moved to strike Nghiem's petition, arguing that Nghiem could not intervene because his implied-warranty claim was barred by the DTPA's two-year statute of limitations. Nghiem responded that he was asserting his claim under the common law and that his claim was therefore governed by the four-year statute of limitations of the Civil Practice and Remedies Code. Global replied that the implied warranty of good and workmanlike repairs is not actionable under the common law but only under the DTPA and is therefore necessarily governed by the DTPA's two-year statute of limitations.

         The trial court agreed with Global, struck Nghiem's petition, and severed his claims. Nghiem appeals.

         Statute of Limitations

         In a single issue, Nghiem contends that the trial court erred in striking his petition in intervention. Nghiem argues that his claim was not barred by limitations because it was brought under the common law, not the DTPA, and was therefore governed by the residual four-year statute of limitations of the Civil Practice and Remedies Code, not the two-year statute of limitations of the DTPA.

         A. Applicable law and standard of review

         The purpose of an intervention is to join a lawsuit that is already in progress. Under Rule 60 of the Rules of Civil Procedure, a "party may intervene by filing a pleading, subject to being stricken out by the court for ...


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