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§ 15
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(B) the term of the lease (taking into account options to renew) is less than 50 percent of the class life of the property (as defined in section 168(i)(1)), and for the period consisting of the first 12 months after the date on which the property is transferred to the lessee the sum of the deductions with respect to such property which are allowable to the lessor solely by reason of section 162 (other than rents and reimbursed amounts with respect to such property) exceeds 15 percent of the rental income produced by such property.
For purposes of paragraphs (2) and (6), the term "controlled group" has the meaning assigned to it by section 1563(a), except that, for such purposes, the phrase "more than 50 percent" shall be substituted for the phrase "at least 80 percent" each place it appears in section 1563(a)(1).
(B) Heating, ventilation, and air-conditioning property.
(C) Fire protection and alarm systems.
2018-Subsec. (d)(1)(B)(ii). Pub. L. 115–141, §401(b)(15)(B), substituted "subsection (e)" for "subsection (f)".
Subsecs. (e), (f). Pub. L. 115–141, §401(b)(15)(A), redesignated subsec. (f) as (e) and struck out former subsec. (e) which related to special rules for qualified disaster assistance property.
2017-Subsec. (b)(1). Pub. L. 115–97, §13101(a)(1), substituted "$1,000,000" for "$500,000".
Subsec. (b)(2). Pub. L. 115–97, §13101(a)(2), substituted "$2,500,000" for "$2,000,000".
Subsec. (b)(6)(A). Pub. L. 115–97, §13101(a)(3)(B)(i), substituted "paragraphs (1), (2), and (5)(A)" for "paragraphs (1) and (2)" in introductory provisions.
Pub. L. 115–97, §13101(a)(3)(A)(i), substituted "2018" for "2015" in introductory provisions.
Subsec. (b)(6)(A)(ii). Pub. L. 115–97, §13101(a)(3)(A)(ii), substituted "calendar year 2017" for "calendar year 2014".
Pub. L. 115–97, §11002(d)(1)(R), substituted "for 'calendar year 2016' in subparagraph (A)(ii)" for "for 'calendar year 1992' in subparagraph (B)".
Subsec. (b)(6)(B). Pub. L. 115–97, §13101(a)(3)(B)(ii), inserted "($100 in the case of any increase in the amount under paragraph (5)(A))" after "$10,000".
Subsec. (d)(1). Pub. L. 115–97, §13101(c), inserted "(other than paragraph (2) thereof)" after "section 50(b)" in concluding provisions.
Subsec. (d)(1)(B). Pub. L. 115–97, §13101(b)(1), amended subpar. (B) generally. Prior to amendment, subpar. (B) read as follows: "which is section 1245 property (as defined in section 1245(a)(3)), and".
Subsec. (f). Pub. L. 115–97, §13101(b)(2), amended subsec. (f) generally. Prior to amendment, subsec. (f) consisted of pars. (1) and (2) defining "section 179 property" and "qualified real property", respectively.
"(C) $25,000 in the case of taxable years beginning after 2014."
"(C) $200,000 in the case of taxable years beginning after 2014."
Subsec. (b)(6). Pub. L. 114–113, §124(f), added par. (6).
Subsec. (c)(2). Pub. L. 114–113, §124(d), struck out "irrevocable" after "Election" in heading and "may not be revoked except with the consent of the Secretary. Any such election or specification with respect to any taxable year beginning after 2002 and before 2015" after "such election," in text.
Subsec. (d)(1). Pub. L. 114–113, §124(e), struck out "and shall not include air conditioning or heating units" after "section 50(b)" in concluding provisions.
Subsec. (d)(1)(A)(ii). Pub. L. 114–113, §124(b), substituted "and to which section 167 applies" for ", to which section 167 applies, and which is placed in service in a taxable year beginning after 2002 and before 2015".
Subsec. (f)(1). Pub. L. 114–113, §124(c)(2)(A), struck out "beginning after 2009 and before 2016" after "any taxable year" in introductory provisions.
Pub. L. 114–113, §124(c)(1)(A), substituted "2016" for "2015" in introductory provisions.
Subsec. (f)(3). Pub. L. 114–113, §124(c)(2)(B), struck out par. (3). Text read as follows: "For purposes of applying the limitation under subsection (b)(1)(B), not more than $250,000 of the aggregate cost which is taken into account under subsection (a) for any taxable year may be attributable to qualified real property."
Subsec. (f)(4). Pub. L. 114–113, §124(c)(2)(B), struck out par. (4) which related to limitation of carryover of amounts attributable to qualified real property.
Pub. L. 114–113, §124(c)(1)(B), substituted "2015" for "2014" wherever appearing.
Subsec. (f)(4)(C). Pub. L. 114–113, §124(c)(1)(C), substituted "2013, and 2014" for "and 2013" in heading.
2014-Subsec. (b)(1)(B). Pub. L. 113–295, §127(a)(1)(A), substituted "beginning after 2009 and before 2015" for "beginning in 2010, 2011, 2012, or 2013".
Subsec. (b)(1)(C). Pub. L. 113–295, §127(a)(1)(B), substituted "2014" for "2013".
Subsec. (b)(2)(B). Pub. L. 113–295, §127(a)(2)(A), substituted "beginning after 2009 and before 2015" for "beginning in 2010, 2011, 2012, or 2013".
Subsec. (b)(2)(C). Pub. L. 113–295, §127(a)(2)(B), substituted "2014" for "2013".
Subsec. (c)(2). Pub. L. 113–295, §127(c), substituted "2015" for "2014".
Subsec. (d)(1)(A)(ii). Pub. L. 113–295, §127(b), substituted "2015" for "2014".
Subsec. (f)(1). Pub. L. 113–295, §127(d)(1), substituted "beginning after 2009 and before 2015" for "beginning in 2010, 2011, 2012, or 2013" in introductory provisions.
Subsec. (f)(4). Pub. L. 113–295, §127(d)(2)(A), substituted "2014" for "2013" wherever appearing.
Subsec. (f)(4)(C). Pub. L. 113–295, §127(d)(2)(B), substituted "2011, 2012, and 2013" for "2011 and 2012" in heading.
2013-Subsec. (b)(1)(B). Pub. L. 112–240, §315(a)(1)(A), substituted "2010, 2011, 2012, or 2013, and" for "2010 or 2011,".
Subsec. (b)(1)(C), (D). Pub. L. 112–240, §315(a)(1)(B)–(D), redesignated subpar. (D) as (C), substituted "2013" for "2012", and struck out former subpar. (C) which read as follows: "$125,000 in the case of taxable years beginning in 2012, and".
Subsec. (b)(2)(B). Pub. L. 112–240, §315(a)(2)(A), substituted "2010, 2011, 2012, or 2013, and" for "2010 or 2011,".
Subsec. (b)(2)(C), (D). Pub. L. 112–240, §315(a)(2)(B)–(D), redesignated subpar. (D) as (C), substituted "2013" for "2012", and struck out former subpar. (C) which read as follows: "$500,000 in the case of taxable years beginning in 2012, and".
Subsec. (b)(6). Pub. L. 112–240, §315(a)(3), struck out par. (6) which related to inflation adjustment.
Subsec. (c)(2). Pub. L. 112–240, §315(c), substituted "2014" for "2013".
Subsec. (d)(1)(A)(ii). Pub. L. 112–240, §315(b), substituted "2014" for "2013".
Subsec. (f)(1). Pub. L. 112–240, §315(d)(1), substituted "2010, 2011, 2012, or 2013" for "2010 or 2011" in introductory provisions.
Subsec. (f)(4)(A), (B). Pub. L. 112–240, §315(d)(2)(A), substituted "2013" for "2011".
Subsec. (f)(4)(C). Pub. L. 112–240, §315(d)(2)(B), substituted "2010, 2011 and 2012" for "2010" in heading and inserted at end "For the last taxable year beginning in 2013, the amount determined under subsection (b)(3)(A) for such taxable year shall be determined without regard to this paragraph."
Pub. L. 112–240, §315(d)(2)(A), substituted "2013" for "2011" in two places.
2010-Subsec. (b)(1). Pub. L. 111–240, §2021(a)(1), substituted "shall not exceed-" for "shall not exceed $25,000 ($250,000 in the case of taxable years beginning after 2007 and before 2011)." and added subpars. (A) to (C).
Pub. L. 111–147, §201(a)(1), substituted "($250,000 in the case of taxable years beginning after 2007 and before 2011)" for "($125,000 in the case of taxable years beginning after 2006 and before 2011)".
Subsec. (b)(1)(C), (D). Pub. L. 111–312, §402(a), added subpars. (C) and (D) and struck out former subpar. (C), which read as follows: "$25,000 in the case of taxable years beginning after 2011."
Subsec. (b)(2). Pub. L. 111–240, §2021(a)(2), substituted "exceeds-" for "exceeds $200,000 ($800,000 in the case of taxable years beginning after 2007 and before 2011)." and added subpars. (A) to (C).
Pub. L. 111–147, §201(a)(2), substituted "($800,000 in the case of taxable years beginning after 2007 and before 2011)" for "($500,000 in the case of taxable years beginning after 2006 and before 2011)".
Subsec. (b)(2)(C), (D). Pub. L. 111–312, §402(b), added subpars. (C) and (D) and struck out former subpar. (C), which read as follows: "$200,000 in the case of taxable years beginning after 2011."
Subsec. (b)(5). Pub. L. 111–147, §201(a)(3), (4), redesignated par. (6) as (5) and struck out former par. (5) which related to inflation adjustments.
Subsec. (b)(6). Pub. L. 111–312, §402(c), added par. (6).
Pub. L. 111–147, §201(a)(4), redesignated par. (6) as (5).
Subsec. (b)(7). Pub. L. 111–147, §201(a)(3), struck out par. (7) which related to increase in limitations for 2008 and 2009.
Subsec. (c)(2). Pub. L. 111–312, §402(e), substituted "2013" for "2012".
Pub. L. 111–240, §2021(c), substituted "2012" for "2011".
Subsec. (d)(1)(A)(ii). Pub. L. 111–312, §402(d), substituted "2013" for "2012".
Pub. L. 111–240, §2021(d), substituted "2012" for "2011".
Subsec. (f). Pub. L. 111–240, §2021(b), added subsec. (f).
Subsec. (f)(2)(B). Pub. L. 111–312, §737(b)(3)(A), struck out "(without regard to the dates specified in subparagraph (A)(i) thereof)" after "section 168(e)(7)".
Subsec. (f)(2)(C). Pub. L. 111–312, §737(b)(3)(B), struck out "(without regard to subparagraph (E) thereof)" after "section 168(e)(8)".
2009-Subsec. (b)(7). Pub. L. 111–5 substituted "2008, and 2009" for "2008" in heading and "2008, or 2009" for "2008" in introductory provisions.
2008-Subsec. (b)(7). Pub. L. 110–185 added par. (7).
2007-Subsec. (b)(1). Pub. L. 110–28, §8212(a), (b)(1), substituted "$125,000 in the case of taxable years beginning after 2006" for "$100,000 in the case of taxable years beginning after 2002" and "2011" for "2010".
Subsec. (b)(2). Pub. L. 110–28, §8212(a), (b)(2), substituted "$500,000 in the case of taxable years beginning after 2006" for "$400,000 in the case of taxable years beginning after 2002" and "2011" for "2010".
Subsec. (b)(5)(A). Pub. L. 110–28, §8212(a), (c)(1), (2), in introductory provisions, substituted "2007" for "2003", "2011" for "2010", and "$125,000 and $500,000" for "$100,000 and $400,000".
Subsec. (b)(5)(A)(ii). Pub. L. 110–28, §8212(c)(3), substituted "2006" for "2002".
Subsecs. (c)(2), (d)(1)(A)(ii). Pub. L. 110–28, §8212(a), substituted "2011" for "2010".
2006-Subsecs. (b)(1), (2), (5)(A), (c)(2), (d)(1)(A)(ii). Pub. L. 109–222 substituted "2010" for "2008".
2004-Subsec. (b)(1), (2), (5)(A). Pub. L. 108–357, §201, substituted "2008" for "2006".
Subsec. (b)(6). Pub. L. 108–357, §910(a), added par. (6).
Subsecs. (c)(2), (d)(1)(A)(ii). Pub. L. 108–357, §201, substituted "2008" for "2006".
2003-Subsec. (b)(1). Pub. L. 108–27, §202(a), reenacted heading without change and amended text generally. Prior to amendment, par. (1) contained a table specifying the maximum amounts for taxable years 1997 to 2003 and thereafter which could be taken into account as the aggregate costs under subsec. (a).
Subsec. (b)(2). Pub. L. 108–27, §202(b), inserted "($400,000 in the case of taxable years beginning after 2002 and before 2006)" after "$200,000".
Subsec. (b)(5). Pub. L. 108–27, §202(d), added par. (5).
Subsec. (c)(2). Pub. L. 108–27, §202(e), inserted at end "Any such election or specification with respect to any taxable year beginning after 2002 and before 2006 may be revoked by the taxpayer with respect to any property, and such revocation, once made, shall be irrevocable."
Subsec. (d)(1). Pub. L. 108–27, §202(c), reenacted heading without change and amended text generally. Prior to amendment, text read as follows: "For purposes of this section, the term 'section 179 property' means any tangible property (to which section 168 applies) which is section 1245 property (as defined in section 1245(a)(3)) and which is acquired by purchase for use in the active conduct of a trade or business. Such term shall not include any property described in section 50(b) and shall not include air conditioning or heating units."
1996-Subsec. (b)(1). Pub. L. 104–188, §1111(a), reenacted heading without change and amended text generally. Prior to amendment, text read as follows: "The aggregate cost which may be taken into account under subsection (a) for any taxable year shall not exceed $17,500."
Subsec. (d)(1). Pub. L. 104–188, §1702(h)(10), struck out "in" before "a trade or business".
Pub. L. 104–188, §1702(h)(19), inserted at end "Such term shall not include any property described in section 50(b) and shall not include air conditioning or heating units."
1993-Subsec. (b)(1). Pub. L. 103–66 substituted "$17,500" for "$10,000".
1990-Subsec. (d)(1). Pub. L. 101–508, §11813(b)(11)(A), substituted "section 1245 property (as defined in section 1245(a)(3))" for "section 38 property".
Subsec. (d)(5). Pub. L. 101–508, §11813(b)(11)(B), amended par. (5) generally. Prior to amendment, par. (5) read as follows: "This section shall not apply to any section 179 property purchased by any person described in section 46(e)(3) unless the credit under section 38 is allowable with respect to such person for such property (determined without regard to this section)."
"(A) In general.-The aggregate cost of section 179 property taken into account under subsection (a) for any taxable year shall not exceed the aggregate amount of taxable income of the taxpayer for such taxable year which is derived from the active conduct by the taxpayer of any trade or business during such taxable year.
"(B) Carryover of unused cost.-The amount of any cost which (but for subparagraph (A)) would have been allowed as a deduction under subsection (a) for any taxable year shall be carried to the succeeding taxable year and added to the amount allowable as a deduction under subsection (a) for such succeeding taxable year.
"(C) Computation of taxable income.-For purposes of this paragraph, taxable income derived from the conduct of a trade or business shall be computed without regard to the cost of any section 179 property."
Subsec. (d)(1). Pub. L. 100–647, §1002(a)(19), substituted "tangible property (to which section 168 applies)" for "recovery property".
1986-Subsec. (b). Pub. L. 99–514, §202(a), in amending subsec. (b) generally, substituted "Limitations" for "Dollar limitation" in heading, in par. (1) substituted as heading "Dollar limitation" for "In general" and in text "shall not exceed $10,000" for "shall not exceed the following applicable amount:" and a table specifying amounts for specific years, added pars. (2) to (4), and struck out former par. (2) which read as follows: "In the case of a husband and wife filing separate returns for a taxable year, the applicable amount under paragraph (1) shall be equal to 50 percent of the amount otherwise determined under paragraph (1)."
Subsec. (d)(1). Pub. L. 99–514, §202(b), inserted "in the active conduct of".
Subsec. (d)(8). Pub. L. 99–514, §201(d)(3), substituted "Treatment of" for "Dollar limitation in case of" in heading and amended text generally. Prior to amendment, text read as follows: "In the case of a partnership, the dollar limitation contained in subsection (b)(1) shall apply with respect to the partnership and with respect to each partner. A similar rule shall apply in the case of an S corporation and its shareholders."
Subsec. (d)(10). Pub. L. 99–514, §202(c), struck out "before the close of the second taxable year following the taxable year in which it is placed in service by the taxpayer" after "at any time".
1984-Subsec. (b)(1). Pub. L. 98–369 amended table by dropping items setting applicable amounts of $0 for 1981 and $5,000 for 1982, substituting an applicable amount of $5,000 for 1983, 1984, 1985, 1986, and 1987 for former table items which had set applicable amounts of $5,000 for 1983, $7,500 for 1984, $7,500 for 1985, and $10,000 for 1986 or thereafter, and added items setting applicable amounts of $7,500 for 1988 or 1989, and $10,000 for 1990 or thereafter.
1983-Subsec. (d)(10). Pub. L. 97–448 added par. (10).
1982-Subsec. (d)(8). Pub. L. 97–354 substituted "partnerships and S corporations" for "partnerships" in heading, and inserted "A similar rule shall apply in the case of an S corporation and its shareholders."
1981-Pub. L. 97–34 amended section generally, changing its content from provisions that formerly made available an additional first-year depreciation allowance for small businesses to provisions allowing a taxpayer to elect to treat the cost of section 179 property as an expense which is not chargeable to capital account, with any cost so treated to be allowed as a deduction for the taxable year in which the section 179 property is placed in service.
1976-Subsecs. (c)(1), (2), (d)(6)(B). Pub. L. 94–455, §1906(b)(13)(A), struck out "or his delegate" after "Secretary".
Subsec. (d)(8), (9). Pub. L. 94–455, §213(a), added par. (8) and redesignated former par. (8) as par. (9).
Subsec. (e). Pub. L. 94–455, §1906(b)(13)(A), struck out "or his delegate" after "Secretary".
1969-Subsec. (d). Pub. L. 91–172 substituted reference to component members of a controlled group for reference to members of an affiliated group in pars. (2)(B) and (b), and substituted definition of controlled group for definition of affiliated group in par. (7).
1962-Subsec. (d)(5). Pub. L. 87–834, §13(c)(2)(A), substituted "section 167(h)" for "section 167(g)".
Subsec. (d)(8). Pub. L. 87–834, §13(c)(2)(B), substituted "section 167(g)" for "section 167(f)".
Pub. L. 115–141, div. U, title IV, §401(b)(15)(C), Mar. 23, 2018, 132 Stat. 1202 , provided that: "The amendments made by this paragraph [amending this section] shall not apply to property placed in service before the date of the enactment of this Act [Mar. 23, 2018]."
Pub. L. 115–97, title I, §13101(d), Dec. 22, 2017, 131 Stat. 2102 , provided that: "The amendments made by this section [amending this section] shall apply to property placed in service in taxable years beginning after December 31, 2017."
"(1) Extension.-Except as provided in paragraph (2), the amendments made by this section [amending this section] shall apply to taxable years beginning after December 31, 2014.
"(2) Modifications.-The amendments made by subsections (c)(2) and (e) [amending this section] shall apply to taxable years beginning after December 31, 2015."
Pub. L. 113–295, div. A, title I, §127(e), Dec. 19, 2014, 128 Stat. 4018 , provided that: "The amendments made by this section [amending this section] shall apply to taxable years beginning after December 31, 2013."
Pub. L. 112–240, title III, §315(e), Jan. 2, 2013, 126 Stat. 2331 , provided that: "The amendments made by this section [amending this section] shall apply to taxable years beginning after December 31, 2011."
Pub. L. 111–312, title IV, §402(f), Dec. 17, 2010, 124 Stat. 3307 , provided that: "The amendments made by this section [amending this section] shall apply to taxable years beginning after December 31, 2011."
"(1) In general.-Except as provided in paragraph (2), the amendments made by this section [amending this section] shall apply to property placed in service after December 31, 2009, in taxable years beginning after such date.
"(2) Extensions.-The amendments made by subsections (c) and (d) shall apply to taxable years beginning after December 31, 2010."
Pub. L. 111–147, title II, §201(b), Mar. 18, 2010, 124 Stat. 77 , provided that: "The amendments made by this section [amending this section] shall apply to taxable years beginning after December 31, 2009."
Pub. L. 111–5, div. B, title I, §1202(b), Feb. 17, 2009, 123 Stat. 335 , provided that: "The amendments made by this section [amending this section] shall apply to taxable years beginning after December 31, 2008."
Pub. L. 110–343, div. C, title VII, §711(b), Oct. 3, 2008, 122 Stat. 3929 , provided that: "The amendment made by this section [amending this section] shall apply to property placed in service after December 31, 2007, with respect [to] disasters declared after such date."
Pub. L. 110–185, title I, §102(b), Feb. 13, 2008, 122 Stat. 618 , provided that: "The amendment made by this section [amending this section] shall apply to taxable years beginning after December 31, 2007."
Pub. L. 110–28, title VIII, §8212(d), May 25, 2007, 121 Stat. 193 , provided that: "The amendments made by this section [amending this section] shall apply to taxable years beginning after December 31, 2006."
Pub. L. 108–357, title VIII, §910(b), Oct. 22, 2004, 118 Stat. 1660 , provided that: "The amendment made by this section [amending this section] shall apply to property placed in service after the date of the enactment of this Act [Oct. 22, 2004]."
Pub. L. 108–27, title II, §202(f), May 28, 2003, 117 Stat. 758 , provided that: "The amendments made by this section [amending this section] shall apply to taxable years beginning after December 31, 2002."
Pub. L. 104–188, title I, §1111(b), Aug. 20, 1996, 110 Stat. 1758 , provided that: "The amendment made by subsection (a) [amending this section] shall apply to taxable years beginning after December 31, 1996."
Pub. L. 103–66, title XIII, §13116(b), Aug. 10, 1993, 107 Stat. 432 , provided that: "The amendment made by subsection (a) [amending this section] shall apply to taxable years beginning after December 31, 1992."
Pub. L. 85–866, title II, §204(c), Sept. 2, 1958, 72 Stat. 1680 , provided that: "The amendments made by this section [enacting this section] shall apply with respect to taxable years ending after June 30, 1958."


On June 17, 2016, the Texas Supreme Court held that a general contractor was not a "seller" under Chapter 82 of the Civil Practice and Remedies Code and, therefore, not entitled to indemnification from the manufacturer of an allegedly defective roof truss. See Centerpoint Builders GP v. Trussway Ltd., 2016 WL 3413329 (Tex. June 17, 2016). The general contractor, according to the Court, was not a "seller" because it was not "engaged in the business of" selling the roof trusses. Rather, providing the trusses was merely incidental to the general contractor's construction services. The Centerpoint decision does not represent the expansion of liability for general contractors and manufacturers that could have occurred if the Court had ruled differently. See "Looming Texas Supreme Court Decision Could Impact Contractor Liability in Construction Cases." Nevertheless, the Court emphasized that the "seller" analysis is fact-specific and that a general contractor could be considered a "seller" under different circumstances.
Chapter 82 provides a means for an "innocent" seller to seek indemnification from the manufacturer of an allegedly defective product. See Tex. Civ. Prac. & Rem. Code § 82.002. The statute requires a manufacturer to indemnify and hold harmless a seller against loss arising out of a product liability action, except for any loss caused by the seller's negligence, intentional misconduct, or other act or omission for which the seller is independently liable. Id. at § 82.002(a). "Seller" is broadly defined in the statute as "a person who is engaged in the business of distributing or otherwise placing, for any commercial purpose, in the stream of commerce for use or consumption a product or any component part thereof." Id. at § 82.001(3).
Notably, the Texas Supreme Court in Fresh Coat, Inc. v. K-2, Inc., 318 S.W.3d 893 (Tex. 2010) held that a contractor hired to apply synthetic stucco components to homes according to the manufacturer's instructions and training is a "seller" of the synthetic stucco components. The Court in Fresh Coat held that Chapter 82's definition of "seller" does not exclude a seller who is also a service provider, and Chapter 82 does not require the seller to sell only the product at issue. Id. at 899.
Centerpoint began as a personal injury action filed by Merced Fernandez against Centerpoint Builders GP, LLC ("Centerpoint") and Trussway Ltd. ("Trussway") for injuries sustained while installing drywall at an apartment complex construction project. Centerpoint was the general contractor, and Fernandez was an independent contractor. At the time of the accident, Fernandez was standing on a roof truss that had not yet been installed. The truss broke and Fernandez was severely injured from his fall. Fernandez filed suit, asserting that the truss, which was manufactured by Trussway and purchased by Centerpoint, was defective and unreasonably dangerous.
Centerpoint filed a claim against Trussway seeking statutory indemnification under Chapter 82. Trussway filed a cross-action against Centerpoint, denying that Centerpoint was a seller under Chapter 82 and contending that it was actually an innocent seller that was entitled to indemnification from Centerpoint. The trial court granted Centerpoint's motion for summary judgment and held that Centerpoint was a "seller" under Chapter 82 but denied Centerpoint's motion for partial summary judgment regarding its entitlement to indemnity. The trial court also held that Trussway was not entitled to indemnity from Centerpoint. The parties then filed a joint notice of agreed interlocutory appeal.
On appeal, the Beaumont Court of Appeals reversed the trial court's order and held that Centerpoint does not fit the statutory definition of "seller," focusing on how the Fresh Coat opinion was distinguishable from the facts before it. Centerpoint Builders GP, LLC v. Trussway, Ltd., 436 S.W.3d 882 (Tex. App.—Beaumont, pet. granted).
The Texas Supreme Court framed the inquiry as whether Centerpoint was "engaged in the business of" selling trusses. If so, then it was a "seller" under Chapter 82 entitled to indemnification.
The Court began its analysis by distinguishing Fresh Coat, which it described as being limited to the proposition that one is not precluded from being a seller merely because one also provides services. See Centerpoint, 2016 WL 3413329 at *4. The Court also noted that the contractor in Fresh Coat sold and installed a particular product, as evidenced by testimony that the contractor was in the business of providing the product combined with the service of installing the product. Id.
The Court then turned to case law from both Texas and other jurisdictions, which, although sparse, supported the conclusion that Centerpoint is not a seller. Id. at *6. The Court examined cases—typically in the strict liability context—holding that contractors whose business is providing construction services, as opposed to any particular building material utilized in the construction process, were not sellers of the material. These cases emphasized the distinction between a company in the business of selling its services and a company in the business of selling products. Distilling these cases, the Court held that one is not "engaged in the business of" selling a product if providing that product is incidental to selling services. Id.
Applying this standard, the Court held that Centerpoint was not a seller, even though it technically sold trusses to its customer. Id. In particular, the Court examined the specific project at issue, noting that Centerpoint agreed to undertake construction of an entire building and to be reimbursed for the cost of the materials—including the trusses at issue. Id. This, according to the Court, indicated that Centerpoint was in the business of selling construction services as opposed to trusses or other building materials. Id.
The Court in Centerpoint declined to expand Chapter 82's applicability to construction cases and provided some much-needed clarity regarding the parameters of the statute's definition of "seller." However, contractors and those in the manufacturing chain should note that the Centerpoint decision left open the possibility of the "seller" designation being applied to contractors in certain situations.
In particular, the Court implied that a general contractor who is also a "retailer" or a "wholesale distributor" of a particular product might be a "seller" under Chapter 82. The Court also placed particular emphasis on how Centerpoint charged its customer for the building materials. The Court noted that Centerpoint did not set prices on the materials to achieve a gain or profit but was effectively reimbursed for the cost of the materials. If building materials were priced to achieve a profit in a particular contract, this fact could weigh in favor of Chapter 82's application.
Given the Court's admonishment that the Chapter 82 "seller" analysis is highly fact-specific—and its acknowledgment that "some contractors may engage in the business of selling both products and services"—this will likely continue to be a heavily contested issue in the construction context. Thus, general contractors and product manufacturers will need to determine how best to allocate the uncertainty of such a statutory indemnification claim. See Centerpoint, 2016 WL 3413329 at *7.


Jacob Rassner, New York City, for plaintiff-appellant.
Joseph M. Costello, New York City (Hanrahan & Costello, New York City, on the brief), for defendant-respondent.
It was not contested below, nor is it upon this appeal, that the United States owned and operated the S. S. Bucyrus Victory, upon which the alleged assault upon the plaintiff seaman by a fellow seaman took place. The defendant was not an operating agent of the United States; its only connection with the vessel arose from its general agency contract with the United States which required [Article 3(d)] that " [t]he General Agent shall procure and make available to the Master for engagement by him the officers and men required to fill the complement of the vessel (i. e., the Bucyrus Victory)." Since the defendant was not the owner, clearly it was not liable under a Jones Act, 46 U.S.C.A. § 688, claim. Cosmopolitan Shipping Co. v. McAllister, 337 U.S. 783, 69 S. Ct. 1317, 93 L. Ed. 1692. And this holding is equally conclusive against the plaintiff on his second and third causes of action (negligence in providing medical aid and maintenance and cure, respectively) which lie only against an owner.
On appeal, however, the plaintiff argues that its first cause of action also states a common law claim in that the defendant was negligent in the discharge of its contractual obligation to provide suitable seamen for engagement by the Master. But in this case, the defendant was acting under the General Agency Contract with the United States, as indeed the complaint expressly alleges. For harm so caused a third person such as the plaintiff, the United States as principal would be liable. And under the Suits in Admiralty Act, 46 U.S.C.A. § 745, it is provided: "Where a remedy is provided by this chapter it shall hereafter be exclusive of any other action by reason of the same subject matter against the agent * * * whose act or omission gave rise to the claim." Williams v. United States, 4 Cir., 228 F.2d 129, 132-133, certiorari denied 351 U.S. 986, 76 S. Ct. 1054, 100 L. Ed. 1499; Atlantic Coast Line R. Co. v. Agwilines, Inc., 5 Cir., 195 F.2d 459; Richardson v. American President Lines, D.C.S.D.N.Y., 144 F. Supp. 641; Arnold v. Luckenbach S.S. Co., D.C.S.D.N.Y., 162 F. Supp. 58.
Brady v. Roosevelt Steamship Co., 317 U.S. 575, 63 S. Ct. 425, 87 L. Ed. 471, relied on by the plaintiff, was decided seven years before the quoted language was added to the statute by the amendment of December 13, 1950, 64 Stat. 1112. And for the suggestion that the plaintiff, as a third-party beneficiary, had a claim for breach by the defendant of the General Agency Contract, we find no support at all. Robins Dry Dock & Repair Co. v. Flint, 275 U.S. 303, 48 S. Ct. 134, 72 L. Ed. 290; 5 Corbin on Contracts § 776.


1. Case held properly reviewable by appeal under Jud.Code § 241, before amendment, and certiorari denied. P. 274 U. S. 197.
2. In a suit by the United States against a lessor and a lessee to abate a liquor nuisance under § 22 of Title II of the Prohibition Act, issues raised by a cross-bill of the lessor asserting his federal right under § 23 to a forfeiture of the lease as against the lessee are within the jurisdiction of the district court regardless of the citizenship of the parties. P. 274 U. S. 197.
3. A suit by the United States to abate a liquor nuisance under § 22 of Title II of the Prohibition Act is a suit in equity, and triable without a jury. P. 274 U. S. 197.
4. The constitutional right to a jury trial may be waived by proceeding to trial without demanding a jury, and is not saved by an application to the discretionary power of the court, sitting in equity, to frame issues for a jury. P. 274 U. S. 198.
5. To support a demand for a jury trial of matter raised by a cross-bill, the demandant must first put them in issue by answering the cross-bill. P. 274 U. S. 199.
6. Objections to the equity jurisdiction to adjudge a forfeiture of a lease under § 23 of Title II of the Prohibition Act, and to the assertion of this right through a cross-bill filed by the lessor against the lessee in a suit brought against them both by the United States under § 22, are waived if not seasonably taken. P. 274 U. S. 199.
Appeal from a decree of the circuit court of appeals which affirmed a decree of the district court abating a nuisance and adjudging forfeiture of a lease under §§ 22 and 23 of the Prohibition Act.
Act, and asked that the lease be forfeited under § 23 of Title II of the Act. Appellant neither answered the cross-bill nor directed any motion to it, but made application for a jury trial, which was denied.
On the trial without a jury, appellant drew in question the constitutionality of the forfeiture of his leasehold as a denial of due process of law. After the trial, in which the existence of the nuisance was litigated, the district court decreed the forfeiture of the lease. This was affirmed by the Circuit Court of Appeals for the Second Circuit. 4 F.2d 983. The case is properly here on appeal, Jud.Code, § 241, before amended, and the petition for certiorari, filed as a jurisdictional precaution, is denied.
At the outset, appellant denies the jurisdiction of the district court to try the issues raised by the cross-bill in the absence of diversity of citizenship. Section 23 provides: "Any violation of this title upon any leased premises by the lessee or occupant thereof shall, at the option of the lessor, work a forfeiture of the lease." The right thus given to the lessor to forfeit the lease is one arising under a law of the United States, and the district court had jurisdiction to determine a suit founded upon it, regardless of the citizenship of the parties. Judicial Code, § 24(a).
Numerous other questions are raised by appellant's brief and argument, but, so far as they are of substance, they are involved in or incidental to the two principal grounds urged for reversal: (1) that appellant was denied the right to a jury trial, in violation of the Seventh Amendment of the Constitution, and (2) that the forfeiture of appellant's lease is a denial of due process of law.
authorizes the abatement of a liquor nuisance by a bill in equity filed by the United States. Cf. Murphy v. United States, 272 U. S. 630. But it is urged, assuming the constitutionality of § 23, that section at most gives a right at law to a possessory action for the recovery of the leased premises, which is not cognizable in a court of equity, and in any case appellant was entitled to have the issues raised by the cross-bill tried by a jury.
Appellant's application for a jury was in terms a motion for an order "framing for trial by jury the issues in this action as to the occurrences of the alleged violations of the National Prohibition Act." It clearly appears from the notice of motion and the supporting affidavits that the motion was not a challenge to the equity jurisdiction of the court, nor a demand for a jury trial in an action at law, such as is guaranteed by the Constitution. It was rather an application addressed to the discretion of the court sitting in equity to frame issues for a jury to aid, as stated, "in advising the court as to the credibility of the witnesses," and was made on the ground that this was "not the usual equity case, which ordinarily involves only matters of law."
the course of the trial or of the sufficiency of a special finding to support the judgment. See Law v. United States, 266 U. S. 494, 266 U. S. 496. Cf. Fleischmann Co. v. United States, 270 U. S. 349, 270 U. S. 355-356. Appellant's failure to demand a trial by a common law jury amounted, we think, to a waiver of the constitutional right, if any, now claimed.
But even if his application for a jury trial be regarded as an assertion of his constitutional right, there were no issues to be tried by a jury, as he had failed to answer the cross-bill. The Confiscation Cases, 20 Wall. 92, 87 U. S. 110. Hence, there was no error in the court's finding the facts supporting its judgment, without a jury. Whether issues raised by the pleadings in proceedings under § 23 must be tried by jury if seasonably demanded is a question which does not arise on this record.
Appellant on appeal for the first time challenged the equity jurisdiction of the court, urging that the remedy at law was adequate. The cancellation of appellant's lease, which was the relief sought, was a remedy competent for equity to give. The repeated holdings of the lower courts that a suit brought under § 23 is one cognizable in equity * at least suggest that the suit is not so plainly at law that the court should, of its own motion, have dismissed it. Under such circumstances, objection to the equity jurisdiction not seasonably taken is waived. Kilbourn v. Sunderland, 130 U. S. 505, 130 U. S. 514; Brown v. Lake Superior Iron Co., 134 U. S. 530, 134 U. S. 534-536; Perego v. Dodge, supra, 163 U. S. 164, especially where, as here, appellant did not answer the cross-bill. For the same reason, it is unnecessary for us to determine whether appellee adopted the proper procedure in seeking the forfeiture of the lease by cross-bill.
We do not consider the constitutionality of the forfeiture under § 23. The court below, in enumerating the questions raised and presented, made no mention of the constitutional question. The assignment of errors below did not refer specifically to it as required by the rules of that court, and, so far as the record discloses, it was not presented there. See United States v. Gaffney, 10 F.2d 694, 696. This Court sits as a court of review. It is only in exceptional cases coming here from the federal courts that questions not pressed or passed upon below are reviewed. See Montana Ry. Co. v. Warren, 137 U. S. 348, 137 U. S. 351; Old Jordan Mining Co. v. Societe Anonyme Des Moines, 164 U. S. 261, 164 U. S. 264-265; Magruder v. Drury, 235 U. S. 106, 235 U. S. 113; Gila Valley Ry. v. Hall, 232 U. S. 94, 232 U. S. 98; Grant Bros. v. United States, 232 U. S. 647, 232 U. S. 660; Ana Maria Sugar Co. v. Quinones, 254 U. S. 245, 254 U. S. 251. Cf. West v. Rutlege Timber Co., 244 U. S. 90, 244 U. S. 99, 100; United States v. Tennessee & Coosa R. Co., 176 U. S. 242, 176 U. S. 256.
* Grossman v. United States, 280 F. 683; United States v. Bynton, 297 F. 261; United States v. Archibald, 4 F.2d 587; United States v. Gaffney, 10 F.2d 694. Cf. United States v. Schwartz, 1 F.2d 718.