Ex parte General Motors Corp.

• Decision Date: 24 September 1999
• Citation: 769 So.2d 903
• Parties: Ex parte GENERAL MOTORS CORPORATION and Ex parte Jim Bishop Chevrolet-GEO-Buick-Olds, Inc. (Re Aaron Tucker v. General Motors Corporation and Jim Bishop Chevrolet-GEO-Buick-Olds, Inc.)
• Court: Alabama Supreme Court

769 So.2d 903

Ex parte GENERAL MOTORS CORPORATION and Ex parte Jim Bishop Chevrolet-GEO-Buick-Olds, Inc.

(Re Aaron Tucker v. General Motors Corporation and Jim Bishop Chevrolet-GEO-Buick-Olds, Inc.)

1943.

Supreme Court of Alabama.

September 24, 1999.

Rehearing Denied March 10, 2000.

Robert R. Baugh and Sandra L. Vinik of Sirote & Permutt, P.C., Birmingham, for petitioner General Motors Corporation.

Lindsey Mussleman Davis of Holt, McKenzie, Holt & Mussleman, Florence, for petitioner Jim Bishop Chevrolet-GEO-Buick-Olds, Inc.

Ralph M. Young and Sherry Collum-Butler of Gonce, Young, Sibley & Moreau, Florence, for respondent.

MADDOX, Justice.

Aaron Tucker sued General Motors Corporation ("GM") and Jim Bishop Chevrolet-GEO-Buick-Olds, Inc. ("Bishop"), alleging that GM and Bishop had breached express warranties and that Bishop had breached the implied warranty of merchantability and the implied warranty of fitness for a particular purpose. He alleged that, as a result, he had suffered physical injuries and sustained damage to his automobile. He sought damages for personal injury, medical expenses, emotional and mental distress, property damage, and loss of value and use of the car. The circuit court entered a summary judgment in favor of GM and Bishop, and the Court of Civil Appeals affirmed in part, reversed in part, and remanded. See Tucker v. General Motors Corp., 769 So.2d 895 (Ala.Civ.App.1998). The Court of Civil Appeals summarized its holdings as follows:

"As to GM, the summary judgment is affirmed as to the claims that GM breached an implied warranty of merchantability and an implied warranty of fitness for a particular purpose.[¹] As to the dealership, the summary judgment is affirmed as to the claim that it breached an implied warranty of fitness for a particular purpose. As to the claim that the dealership breached an implied warranty of merchantability and the claims that the dealership and GM breached their express warranties, the summary judgment is reversed. The case is remanded for proceedings consistent with this opinion."

769 So.2d at 902. We granted GM's and Bishop's petitions for certiorari review. We affirm in part, reverse in part, and remand with instructions. Although we reestablish in this opinion a rule of law that this Court had previously abandoned relating to the burden of proof on a movant for summary judgment, we do not apply the rule at this stage of the proceedings in this case, because to do so would be unjust.

Facts and Procedural History

The evidence in this case is quite limited. It consists of the plaintiff's deposition and his affidavit. The evidence, however, is sufficient for us to decide the ultimate legal issue presented: whether the trial court erred in entering a summary judgment in favor of GM and Bishop on Tucker's breach-of-warranty claims.

In support of its motion for a summary judgment, GM submitted Tucker's deposition. In opposition to GM's motion for a summary judgment, Tucker submitted his affidavit. In accordance with the standard of review for summary judgments, we must view the facts as stated in Tucker's deposition and in his affidavit in the light most favorable to the nonmovant—Tucker. See Hanners v. Balfour Guthrie, Inc., 564 So.2d 412, 413 (Ala.1990).

The facts are as follows. In February 1992, Tucker bought a new Chevrolet Camaro automobile from Bishop. GM manufactured the car, and General Motors Acceptance Corporation ("GMAC") financed the purchase. According to Tucker's deposition, shortly after he bought the car, it began stalling while he was driving it. He stated that the car stalled at least three times per week. He also testified that he took the car back to Bishop several times to have the stalling problem corrected, but the problem persisted.

Tucker's deposition indicated that on February, 28, 1993, the car stalled while Tucker was driving it. When it stalled, he lost the power steering and the power brakes. As a result, the car left the roadway and collided with a utility pole. Tucker was injured in the accident. The car was repaired, but the stalling problem continued.

In July 1993, the car again stalled while he was driving it. He testified that on that occasion the car also began to overheat, so he stopped on the side of the road. After allowing the car's engine to cool, Tucker tried to restart the car. It would not restart, and he telephoned a wrecker service. Because it was the Fourth of July holiday weekend, the employee who answered the telephone at the wrecker service told Tucker that no one would be able to tow the car until the next day. Tucker left the car on the side of the road, and it was vandalized during the night. The next day, the wrecker service towed the car to its lot. Tucker says that Bishop refused to repair the car. On the advice of his lawyer, Tucker stopped making payments on his automobile loan. GMAC subsequently repossessed the car, and Tucker never saw it again.

Discussion

I. Standard of Review

"In reviewing the disposition of a motion for summary judgment, we utilize the same standard as that of the trial court in determining whether the evidence before the court made out a genuine issue of material fact" and whether the movant was entitled to a judgment as a matter of law. Bussey v. John Deere Co., 531 So.2d 860, 862 (Ala.1988); Rule 56(c), Ala. R. Civ. P. When the movant makes a prima facie showing that there is no genuine issue of material fact, the burden then shifts to the nonmovant to present substantial evidence creating such an issue. Bass v. South-Trust Bank of Baldwin County, 538 So.2d 794, 797-98 (Ala.1989). Evidence is "substantial" if it is of "such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved." West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala.1989).

II. Express Warranties

We first consider the Court of Civil Appeals' reversal of the summary judgment in favor of GM and Bishop on Tucker's breach-of-express-warranties claim. The record does not contain a copy of any express warranty. Nor does the record contain any evidence indicating the terms of an express warranty. The only evidence in the record relating to an express warranty is Tucker's statement in his deposition that he had purchased an extended warranty from Bishop and that that warranty covered the costs of towing the car in the event of a breakdown.

In his complaint, Tucker made the following allegations:

"8. By and through the purchase of said automobile, ... an express warranty attached by contract, and the plaintiff further purchased a 75,000 mile extended warranty for an additional fee of $1,000.00.

"9. After purchase of the Camaro said vehicle developed serious engine problems. The automobile was returned to the dealership for attempted repairs on numerous occasions but, despite the attempted repairs, the Camaro continued to malfunction.

"10. On February 28, 1993, the plaintiff was operating the Camaro when the engine died as he approached a curve in the road; he lost control of the vehicle and plaintiff was injured when he hit a utility pole. The Camaro suffered extensive body damage and plaintiff received serious personal injury.

"11. The vehicle was repaired and on or about July 2, 1993, the plaintiff was operating the Camaro when it again malfunctioned[,] resulting in a second significant property damage loss.

"12. The plaintiff has given personal and written notice of the defects in said automobile. With knowledge of said defects, the defendants have attempted to repair said vehicle[;] the vehicle was not repaired and remained defective and unsuitable for the purposes for which it was purchased.

"13. Defendants have breached the express warranty that accompanied the purchase of the automobile and have further breached the purchased `extended warranty' that covered the first 75,000 miles of the vehicle, thereby resulting in property damage to the plaintiff."

(Emphasis added.)

As this Court stated in Ex parte Miller, 693 So.2d 1372, 1376 (Ala.1997): "Express warranties should be treated like any other type of contract and interpreted according to general contract principles. Williston on Sales, § 15-9 (4th ed.1974)." As discussed above, the record contains no evidence indicating that GM had issued an express warranty on the car Tucker purchased. Although the record does contain some evidence that Tucker purchased an extended warranty from Bishop when he purchased the car, the record is devoid of evidence indicating the terms of any such warranty, other than Tucker's statement that the warranty would cover towing costs. This Court will not consider facts not in the record in its review of cases on appeal. See Smith v. Smith, 565 So.2d 72 (Ala.1990).

At oral argument of this case, a question arose as to whether GM and Bishop were required to produce affirmative evidence before their summary-judgment motion could be granted. In other words, was GM and Bishop's failure to introduce any evidence in support of their summary-judgment motion, other than Tucker's deposition, fatal to their motion? This Court touched on that very question in two cases decided in the late 1980s, Lawson State Community College v. First Continental Leasing Corp., 529 So.2d 926 (Ala.1988), and Berner v. Caldwell, 543 So.2d 686 (Ala.1989). There has been little debate over the meaning of those two cases in the intervening years. However, because the parties raised this question at oral argument of this case, we take this opportunity to clarify the holdings of those two cases.

In Lawson State, Justice Houston, writing for the Court, considered the question whether a movant must present independent evidence as a prerequisite for obtaining summary judgment. Justice Houston wrote:

"We would also emphasize that we disagree with the [plaintiff's] contention that the movants must introduce affirmative evidence to negate

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