Turner v. Westhampton Court, LLC

• Decision Date: 01 October 2004
• Citation: 903 So.2d 82
• Parties: William M. TURNER and Kathryn S. Turner v. WESTHAMPTON COURT, L.L.C.
• Court: Alabama Supreme Court

903 So.2d 82

William M. TURNER and Kathryn S. Turner v. WESTHAMPTON COURT, L.L.C.

1030423.

Supreme Court of Alabama.

October 1, 2004.

Rehearing Denied December 17, 2004.

Phillip W. McCallum and P. Michael Yancey of McCallum & Methvin, P.C., Birmingham, for appellants.

Alex L. Holtsford, Jr., Rick A. Howard, and Paul U. Chistolini of Nix Holtsford Gilliland Higgins & Hitson, P.C., Montgomery, for appellee.

HOUSTON, Justice.

William M. Turner and Kathryn S. Turner sued Dryvit Systems, Inc., Apache Products, Inc., John Harrison d/b/a Capitol City Plastering, Jenkins Manufacturing Co., Inc., Westhampton Court, L.L.C. ("Westhampton"), and numerous fictitiously named defendants, asserting various claims for damages arising from the use of an exterior insulating finishing system ("EIFS"), a synthetic stucco used in the construction of the Turners' new house. The trial court granted Westhampton's motion for a summary judgment and eventually dismissed all of the other defendants. The Turners timely appealed.

In February 1996, the Turners purchased a house from Westhampton, which had acted as the general contractor in the construction of the house. The sales contract, which was executed by Westhampton, as the seller, and William M. Turner, as the purchaser, contains the following language:

"10. BUILDER WARRANTY: At closing Seller shall furnish Purchaser a written warranty on the dwelling for a period of at least one year."

At the closing of the purchase of the home, a "Limited New Home Warranty" ("the warranty") was given to the Turners by Westhampton; the warranty provided, in pertinent part:

"WHEREAS, Builder [Westhampton] does hereby agree to give a limited warranty on the Home located at the above property for a period of one (1) year following closing or occupancy by the Purchaser [William M. Turner], whichever event shall first occur....

"....

"2. Builder warrants the above Home to be free from latent defects for a period of one (1) year following closing or occupancy, whichever event shall first occur.

"....

"THIS WARRANTY IS GIVEN IN LIEU OF ANY AND ALL OTHER WARRANTIES, EITHER EXPRESSED OR IMPLIED, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, HABITABILITY AND WORKMANSHIP....

"3. The Builder [Westhampton] shall not be liable under this Agreement unless written notice of the latent defect shall have been given by Purchaser to Builder within the one (1) year warranty period. Steps taken by the Builder to correct any defect or defects shall not act to extend the warranty period described hereunder.

"4. The Purchaser shall have 90 days after expiration of the one (1) year warranty period to bring any legal action hereunder."

(Capitalization in original.)

The warranty defined "latent defect" as follows:

"A latent defect in the construction is herein defined as a defect not apparent at time of occupancy or closing, but which becomes apparent within one (1) year from date of closing or occupancy, whichever event shall first occur, and such defect has been directly caused by Builder's failure to construct in accordance with the standards of construction prevailing in the geographical area of the Home. It is stressed, however, that normal characteristic behavior of building materials, wear and tear, general maintenance, and like terms, will not constitute a latent defect."

The warranty on the home expired in February 1997. In April 2001, Mr. Turner noticed that his floor was bowing. After discussions with a coworker who brought up the possibility of moisture intrusion into the house, the Turners hired an inspector to examine the house. The inspector reported that the EIFS on the house had not been installed according to the manufacturer's specifications and that consequently water had damaged parts of the Turners' house.

On June 22, 2001, more than five years after the Turners closed on the house, the Turners sued Westhampton and others. Westhampton filed a motion for a summary judgment, which the trial court granted on September 24, 2002. On November 3, 2003, the last defendant in the action was dismissed, making all judgments final on that date. The Turners timely filed their notice of appeal from the summary judgment in favor of Westhampton on December 8, 2003. The Turners allege several claims of negligence and wantonness, one claim of breach of an express warranty, one claim of breach of the implied warranty of habitability, and one claim of breach of contract.

Standard of Review

We review a summary judgment de novo. Williams v. State Farm Mut. Auto. Ins. Co., 886 So.2d 72, 74 (Ala.2003). We apply the same standard of review as the trial court applied. Specifically, we must determine whether the movant has made a prima facie showing that there exists no genuine issue of material fact and that the movant is entitled to a judgment as a matter of law. Rule 56(c), Ala. R. Civ. P.; Blue Cross & Blue Shield of Alabama v. Hodurski, 899 So.2d 949, 952 (Ala.2004). In making such a determination, we must review the evidence in the light most favorable to the nonmovant. Wilson v. Brown, 496 So.2d 756, 758 (Ala.1986). Once the movant makes a prima facie showing that he is entitled to a summary judgment, the burden shifts to the nonmovant to produce "substantial evidence" creating a genuine issue of material fact. Ala.Code 1975, § 12-21-12; Bass v. South-Trust Bank of Baldwin County, 538 So.2d 794, 797-98 (Ala.1989). "Substantial evidence" is "evidence 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 Fla., 547 So.2d 870, 871 (Ala.1989).

I. General Negligence/Wantonness Claim

The Turners first appeal the trial court's summary judgment in favor of Westhampton as to their claim asserting general negligence and/or wantonness in the construction of their house. In its motion for a summary judgment, Westhampton pleaded the statute of limitations as an affirmative defense to this claim.

The Turners argue that their cause of action for negligence and/or wantonness accrued upon their discovery of the defect in April 2001, citing Ala.Code 1975, § 6-5-220(e), which allows certain plaintiffs to file an action within two years from the date of discovery of any latent damage or defect. This "discovery rule," however, is limited to actions against an "architect, engineer, or builder, as defined in [§§ 6-5-220 through -228]." Ala.Code 1975, § 6-5-221(b) (emphasis added).

Westhampton, however, argues that it does not fit within the following statutory definition of a "builder" found in § 6-5-220:

"Any individual, partnership, firm, or corporation that constructed, or performed or managed the construction of, an improvement, or any portion thereof, on or to real estate, and [which] at the time of the construction was licensed as a general contractor in the State of Alabama."

Ala.Code 1975, § 6-5-220(a) (emphasis added).

Westhampton argues that it is not licensed as a general contractor in the State of Alabama and that it therefore does not fit within that definition. However, our review of the record shows that Westhampton did not present this argument in support of its summary-judgment motion.

Summary judgment cannot be entered against the nonmoving party on the basis of a failure of that party's proof unless the motion for summary judgment has challenged that failure of proof. Ex parte McCord-Baugh, 894 So.2d 679 (Ala.2004); McKenzie v. Killian, 887 So.2d 861 (Ala.2004); Hollis v. City of Brighton, 885 So.2d 135 (Ala.2004); Liberty Nat'l Life Ins. Co. v. University Health Servs. Found., P.C., 881 So.2d 1013 (Ala.2003); and Tanner v. State Farm Fire & Cas. Co., 874 So.2d 1058 (Ala.2003).

This Court can affirm a trial court's judgment for any reason, but only if the record on appeal evidences the fact that is the basis for the affirmance. Ex parte Ryals, 773 So.2d 1011, 1013 (Ala.2000). Reviewing the facts in the light most favorable to the Turners, we conclude that the trial court erred in entering a summary judgment for Westhampton as to the Turners' general negligence and/or wantonness claim.

II. Other Negligence/Wantonness Claims

The Turners next appeal the trial court's summary judgment in favor of Westhampton as to the Turners' claims asserting (1) negligent and/or wanton application of the EIFS; (2) negligent and/or wanton hiring, training, supervision, and retention of the independent contractors; and (3) negligent and/or wanton failure to warn.¹

A. Negligent/Wanton Application of the EIFS

In its summary-judgment motion, Westhampton argued that it was not liable for the torts of the independent contractor who installed the EIFS. The Turners responded by arguing that "regardless of how carefully or skillfully performed, installation of the EIFS would have likely resulted in the damage[ ] now experienced by the [Turners]." On appeal, however, the Turners argue that Westhampton owed them a nondelegable duty to apply the EIFS properly.

Generally, a general contractor is not liable for the negligence of his independent contractor. Knight v. Burns, Kirkley & Williams Constr. Co., 331 So.2d 651, 655 (Ala.1976). There are two common exceptions to this rule: First, the principal remains liable for work that "is of such kind or class that the doing of it, however carefully or skillfully performed, will probably result in damage, or is necessarily and intrinsically dangerous." Baker v. Atlanta, B. & A. Ry., 163 Ala. 101, 105, 49 So. 751, 752 (1909). Second, the principal is liable for "the manner of the performance of his non-delegable duties." Dixie Stage Lines v. Anderson, 222 Ala. 673, 675, 134 So. 23, 24 (1931).

The Turners' response to Westhampton's summary-judgment motion² argued only the application of the first exception (that application of the EIFS was abnormally dangerous). On appeal, however, the Turners argue only...