# Turner v. Westhampton Court, L.L.C.

> Supreme Court of Alabama · October 1, 2004 · 903 So. 2d 82

URL: https://www.frixlaw.com/law-library/cases/9938125

## Case

- **Full name:** William M. Turner and Kathryn S. Turner v. Westhampton Court, L.L.C.
- **Court:** Supreme Court of Alabama
- **Decided:** October 1, 2004
- **Citations:** 903 So. 2d 82; 2004 WL 2201933
- **Precedential status:** Published
- **Opinion:** Dissent by Johnstone
- **Judges:** Houston, Johnstone
- **Cited by:** 55 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9938125

## How later opinions describe it (automated extraction)

- stating that “[s]ummary judgment cannot be entered against the non-moving party on the basis of a failure of that party’s proof unless the motion for summary judgment has challenged that failure of proof’
- stating that "[s]ummary 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"
- explaining that a "plaintiff has the option of alleging failure to warn as a matter of negligence [or] under the Alabama Extended Manufacturer's Liability Doctrine"
- holding that a warranty period that was less than the six-year statute of limitations “does not override the 6– year statute of limitations”

## Opinion text

But for two exceptions, I concur in the main opinion. I will briefly explain the two exceptions.
The first exception is that I respectfully dissent from affirming summary judgment against the plaintiffs on their failure-to-warn claim. In my opinion, EIFS is a "product." See Keck v. Dryvit Sys., Inc. , 830 So.2d 1 , 12 (Ala. 2002) (Johnstone, J., concurring in part and dissenting in part).
The second exception is that I respectfully dissent from affirming summary judgment against the plaintiffs on their express warranty claim. Contrary to Article III , § 43 , Alabama Constitution of 1901, the holding in "The Limited New Warranty" section of the main opinion validating and enforcing the notice-within-one-year condition on the warranty, largely nullifies § 6-2-15 , Ala. Code 1975, which voids agreements purporting to shorten times for suing prescribed by statutes of limitations. Notifying is an integral part of suing. The main opinion will allow any warrantor to frustrate § 6-2-15 and to achieve most of the effect of an agreement to shorten the period of a statute of limitations by conditioning the warranty on notice within a period shorter than prescribed by the statute. Neither the holdings in Southern Energy Homes v. Washington , 774 So.2d 505 , 511 (Ala. 2000), and Copenhagen Reinsurance Co. v. Champion Home Builders Co. , 872 So.2d 848 , 854-55
(Ala.Civ.App. 2003), cited by the main opinion, nor any other authority supports the validity of such a time condition in derogation of § 6-2-15 .

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9938125. Public record. Not legal advice.