Rel: 09/26/2014




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           SUPREME COURT OF ALABAMA
                              SPECIAL TERM, 2014
                             ____________________

                                    1121479
                             ____________________

                            Barko Hydraulics, LLC

                                           v.

                                Michael Shepherd

                    Appeal from Bullock Circuit Court
                              (CV-11-900010)



PER CURIAM.

       Following a two-day trial in May 2013, a Bullock County

jury returned a $450,000 verdict in favor of Michael Shepherd

on    a   breach-of-warranty          claim     he    asserted      against      Barko
1121479

Hydraulics, LLC ("Barko"). Barko appeals the judgment entered

on that verdict.   We reverse and remand.

              I.   Facts and Procedural History

    On September 12, 2008, Shepherd purchased a Barko 495ML

knuckle boom loader ("the 495ML loader") from G&S Equipment

Company in Prattville for use in his logging operation.1    The

price of the 495ML loader was $202,274, and Shepherd financed

the purchase through Wells Fargo, agreeing to make 60 monthly

payments of $4,039.   In conjunction with Shepherd's purchase

of the 495ML loader, Barko issued a warranty.     That warranty

provided, in part:

         "Barko Hydraulics, LLC ('Barko'), warrants to
    the distributor and/or original Buyer each new
    hydraulic   knuckle   boom   loader  ...   including
    attachments and accessories thereto.     ('Product')
    sold by Barko is to be free from defects in material
    and workmanship under normal use, maintenance and
    service.

         "Barko will cause any major structural component
    of a Barko product covered by this warranty which
    proves to be defective in material or workmanship
    under normal use, maintenance and service within
    three (3) years or 6,000 hours, whichever occurs
    first from first day in service ..., to be replaced

    1
     As described in the record, the 495ML loader was used to
pick up trees and load them onto a truck after the trees were
felled by a "cutter" such as a "feller buncher" and then
dragged to the loading area by a "skidder."


                              2
1121479

    without charge with a new or repaired part, at
    Barko['s] election. Barko also will cause the labor
    to remove any such defective part and to install the
    new or repaired part to be provided without charge
    to the owner of said Barko product. The parts and
    labor to meet this warranty will be furnished by
    designated Barko distributor.

         "Barko will cause all other parts of product
    covered by this warranty which proves to be
    defective in material or workmanship under normal
    use, maintenance and service within one (1) year or
    2,000 hours, whichever occurs first from first day
    in service ..., to be replaced, without charge, with
    a new or repaired part, at Barko['s] election.
    Barko also will cause the labor to remove any such
    defective part and to install the new or repaired
    part to be provided without charge to the owner of
    said Barko product.    The parts and labor to meet
    this warranty will be furnished by designated Barko
    distributor."

The warranty excluded coverage for "[d]amage due to failure to

maintain   or   use   the   Barko   product   or   part   according   to

manuals, schedules, or good practice."         The warranty limited

Barko's potential liability under the warranty as follows:

         "Remedies available to any person claiming under
    this warranty are exclusive and expressly limited to
    obtaining the parts and the labor, where applicable,
    in accordance with terms of this warranty.

         "Barko['s] liability for losses, damages, or
    expenses of any kind arising from the design,
    manufacture or sale of the product covered by this
    warranty, whether based on warranty, negligence,
    contract, tort or otherwise, is limited to an amount
    not exceeding the cost of correcting the defects as
    herein provided, and, at the expiration of the

                                    3
1121479

    applicable warranty period, all such liability shall
    terminate.

         "Barko shall in no event be liable for
    incidental, consequential, or special damages [for]
    losses of use of the Barko product, a loss or damage
    to property other than the Barko product, a loss of
    profits or other commercial loss, or any special or
    consequential   damages    (except   liability   for
    consequential damages which by law may not be
    disclaimed)."

Finally, the warranty stated that it was issued "in lieu of

all other warranties express or implied, statutory, written or

oral"     and   that        there    was     "no       implied   warranty   of

merchantability        or    fitness       for     a   particular   purpose."

Shepherd signed a receipt indicating that he understood the

warranty and the maintenance requirements of the 495ML loader.

    Shepherd testified that he was initially pleased with the

performance of the 495ML loader after incorporating it into

his logging operation.              Shepherd testified, however, that

after approximately four months of use the 495ML loader began

having problems with its hydraulic system and with fuel

consumption. Shepherd testified at trial that he informed G&S

Equipment about these problems with the 495ML loader numerous

times.    G&S Equipment's owner, Mike Guy, testified that G&S

Equipment was not notified of all of these problems.                        On


                                       4
1121479

behalf of Barko, G&S Equipment serviced the 495ML loader

several times during Shepherd's first year of ownership,

replacing the alternator, a turntable bearing, an air-heater

contact switch twice, all under the warranty and without cost

to Shepherd.      Guy testified at trial that these were fairly

minor repairs and that they were unrelated to the hydraulic

system.

    In August 2009, Shepherd brought the 495ML loader to G&S

Equipment   for    it   to   complete   some   outstanding   warranty

repairs.    At the time, the 495ML loader's clock was at

approximately 1900 hours; thus, only 1 month or 100 hours

remained before the warranty expired.          G&S Equipment replaced

the swivel, replaced the solenoids, and repaired the joysticks

used by the operator to control the equipment on the loader.

Guy testified at trial that those repairs were both common and

relatively minor.       Guy also testified, however, that during

the course of making those repairs, his shop noticed that

Shepherd's maintenance of the 495ML loader was lacking ––

specifically moving parts were not being greased and both

hydraulic filters and air filters were not being changed in

accordance with the manufacturer's recommended schedule. Both


                                   5
1121479

Shepherd and his employee, George Oliver, however, disputed

the   idea   that   the   495ML   loader   was   not   being   properly

maintained, testifying that they regularly maintained it in a

fashion similar to every other piece of logging equipment

they had used in their many years -- approximately 20 and 30

years, respectively -- of working in the logging industry.

Shepherd also emphasized that G&S Equipment's written service

records do not indicate that the 495ML loader was not being

properly maintained.

      In November 2010, when the 495ML loader had approximately

4,300 hours on its clock, Shepherd transported it to G&S

Equipment for repairs after the hydraulic pumps began making

noise.    G&S Equipment confirmed that the hydraulic pumps had

failed and notified Shepherd that the needed repairs, costing

approximately $10,000, would not be covered under the warranty

because the warranty period had expired.                At Shepherd's

request, G&S Equipment contacted Barko, which confirmed that

it would not authorize or reimburse G&S Equipment for making

the needed repair because of the expiration of the warranty.

At that point, Shepherd told G&S Equipment that he could not

afford to pay for the repairs to the 495ML loader, nor could


                                   6
1121479

he continue to meet his obligation to Wells Fargo.                            He

therefore    left    the   495ML    loader         with     G&S   Equipment   and

apprised Wells Fargo of its location and of his intention to

make no further payments on it.                    Wells Fargo subsequently

repossessed the 495ML loader, sold it, and obtained a $124,184

deficit judgment against Shepherd.

      On January 28, 2011, Shepherd sued Barko, G&S Equipment,

and   Cummins   Mid-South,       LLC,       the    manufacturer     of   certain

component    parts    of   the     495ML          loader,    asserting    fraud,

negligence and/or wantonness, and multiple breach-of-warranty

claims.     Shepherd sought both compensatory damages for lost

profits and mental anguish and punitive damages.                    Ultimately,

G&S Equipment and Cummins Mid-South were dismissed from the

action, and, during the course of the trial, all of Shepherd's

claims against Barko except a breach-of-express-warranty claim

were withdrawn or dismissed.            On May 2, 2013, the breach-of-

express-warranty claim was submitted to the jury following a

two-day trial and, after the jury returned a $450,000 verdict

in favor of Shepherd and against Barko, the trial court

entered a judgment consistent with the verdict.                          Barko's

subsequent postjudgment motion renewing its previous motion


                                        7
1121479

for a judgment as a matter of law or, in the alternative, for

a new trial was denied by the trial court on August 29, 2013;

on September 23, 2013, Barko filed its notice of appeal to

this Court.

                  II.   Standard of Review

    On appeal, Barko argues that the trial court erred by

denying Barko's motion for a judgment as a matter of law on

Shepherd's breach-of-express-warranty claim and by allowing

the jury to award damages for mental anguish and compensatory

damages exceeding the amount it would have cost to repair the

495ML loader. We review Barko's first argument concerning its

motion for judgment as a matter of law in accordance with the

following standard of review:

         "When reviewing a ruling on a motion for a
    [judgment as a matter of law], this Court uses the
    same standard the trial court used initially in
    deciding whether to grant or deny the motion for a
    [judgment as a matter of law]. Palm Harbor Homes,
    Inc. v. Crawford, 689 So. 2d 3 (Ala. 1997).
    Regarding questions of fact, the ultimate question
    is whether the nonmovant has presented sufficient
    evidence to allow the case to be submitted to the
    jury for a factual resolution. Carter v. Henderson,
    598 So. 2d 1350 (Ala. 1992).    The nonmovant must
    have presented substantial evidence in order to
    withstand a motion for a [judgment as a matter of
    law].   See § 12-21-12, Ala. Code 1975; West v.
    Founders Life Assurance Co. of Florida, 547 So. 2d
    870, 871 (Ala. 1989).      A reviewing court must

                                8
1121479

    determine whether the party who bears the burden of
    proof has produced substantial evidence creating a
    factual dispute requiring resolution by the jury.
    Carter, 598 So. 2d at 1353. In reviewing a ruling
    on a motion for a [judgment as a matter of law],
    this Court views the evidence in the light most
    favorable to the nonmovant and entertains such
    reasonable inferences as the jury would have been
    free to draw. Id."

Waddell & Reed, Inc. v. United Investors Life Ins. Co., 875

So. 2d 1143, 1152 (Ala. 2003).

    As     to   Barko's   second         argument     regarding   damages,

generally, the assessment of damages is within the sole

province of the jury.          This Court will not substitute its

judgment for that of the jury and will not disturb a damages

award unless the award is the product of bias, prejudice,

improper motive or influence or was reached under a mistake of

law or in disregard of the facts.           See, e.g., Daniels v. East

Alabama Paving, Inc., 740 So. 2d 1033, 1050 (Ala. 1999).

                           III.      Analysis

                 A.    Breach of Express Warranty

    Barko argues that Shepherd's breach-of-express-warranty

claim should never have been submitted to the jury because, it

says,     Shepherd    failed    to    adduce        substantial   evidence

indicating that the hydraulic pumps stopped working on the


                                     9
1121479

495ML loader because of a defect.             More particularly, Barko

contends that, to support a breach-of-express-warranty claim,

a plaintiff must present expert testimony detailing the defect

that caused the product to fail.            Alternatively, Barko argues

that there was substantial evidence showing that Shepherd had

not   maintained    the    495ML    loader    in    accordance      with   the

factory-suggested       schedule.         Barko    also    argues   that   the

warranty period had expired when the hydraulic pumps failed.

      Shepherd counters that he presented substantial evidence

showing    that    Barko   had     breached       the     express   warranty.

Specifically, Shepherd says that he presented substantial

evidence showing that the 495ML loader did not preform as

warranted, especially when Barko was given notice of the

problems with the 495ML loader but was unable, or unwilling,

to    correct   those   problems.         Shepherd      contends    that   the

evidence as to whether inadequate maintenance caused the 495ML

to fail was disputed and that, therefore, the issue whether

improper maintenance of the 495ML loader precludes any breach-

of-warranty claim was proper for determination by the jury.

Shepherd also contends that there is no merit to Barko's

argument that the warranty period had expired when the pumps


                                     10
1121479

failed because Shepherd had repeatedly reported problems with

the 495ML loader and Barko did not, or could not, repair those

problems.

    "Express warranties should be treated like any other type

of contract and interpreted according to general contract

principles." See Ex parte Miller, 693 So. 2d 1372, 1376 (Ala.

1997) (citing 2 Alphonse M. Squillante & John R. Fonseca,

Williston on Sales § 15–9 (4th ed. 1974)).          "In Alabama, the

crux of all express warranty claims is that the goods did not

conform to the warranty."         Ex parte Miller, 693 So. 2d at

1376.     Barko warranted the 495ML loader to be free from

defects     "in   material   or   workmanship    under    normal   use,

maintenance and service."

    Barko asserts that Shepherd failed to prove that there

was any defect in the 495ML loader.              The argument Barko

advances is that, like the plaintiffs in actions based on the

theory    of   products   liability,    the   plaintiff   asserting   a

breach-of-warranty claim must establish the presence of a

specific defect.      We conclude that the identification of an

existing defect is not essential to recovery upon an express




                                   11
1121479

warranty.    See Ex parte Miller, 693 So. 2d at 1376,2 Yarbrough

v. Sears, Roebuck & Co., 628 So. 2d 478, 483 (Ala. 1993), and

Shell v. Union Oil Co., 489 So. 2d 569, 571 (Ala. 1986).3                 It

is sufficient if, as here, the evidence shows, either directly

or   by   permissible     inference,    that    the   495ML   loader     was

defective in its performance or function or that it otherwise

failed to conform to the warranty.

     In this case, the evidence showed that, after four months

of   use,   the   495ML   loader   began   to    overheat     and   to   use

excessive fuel and hydraulic fluid.             Ultimately, after the

495ML loader was serviced repeatedly, the hydraulic pumps

stopped working.     "[W]e have held that the application of an

express warranty is a question of fact for the trier of fact.

Ex parte    Miller, 693 So. 2d 1372 (Ala. 1997)."              Vesta Fire

Ins. Corp. v. Milam & Co. Constr., Inc., 901 So. 2d 84, 104

(Ala. 2004).       The parties submitted conflicting evidence.


     2
     Explaining that "'[c]are must be taken to avoid elevating
a defect in the goods to the status of an essential element
that must be shown in order to recover for a breach of an
express warranty.'    Ronald A. Anderson, Anderson on the
Uniform Commercial Code, § 2–313:217 (3d ed. 1995))."
     3
     Yarbrough and Shell recognize the clear distinction in
proof between Alabama Extended Manufacturer's Liability
Doctrine law and Uniform Commercial Code law.
                                   12
1121479

Therefore, the trial court properly submitted this issue to

the jury for resolution.

       In   the   alternative,    Barko     maintains      that   Shepherd's

improper maintenance of the 495ML loader precludes any breach-

of-warranty claim.        We are not persuaded by Barko's argument

in that regard.       The evidence was conflicting as to whether

Shepherd properly maintained the 495ML loader, and that issue

was likewise proper for jury resolution.

       Guy,   G&S   Equipment's        owner    and   Barko's     Prattville

dealership representative, testified that his shop noticed

that Shepherd's maintenance of the 495ML loader was not in

accord with the manufacturer's specifications.               Guy explained

that    moving    parts   were   not    being    greased    and   that   both

hydraulic filters and air filters were not being changed in

accordance with the manufacturer's recommended schedule. Both

Shepherd and his employee, Oliver, however, disputed that the

495ML loader was not properly maintained. Shepherd and Oliver

both testified that they regularly maintained the 495ML loader

in a fashion similar to every other piece of logging equipment

they had used in their many years -- approximately 20 and 30

years, respectively -- of working in the logging industry.


                                       13
1121479

Shepherd emphasized that the written service records failed to

indicate    that   the   495ML    loader   was   not    being   properly

maintained.     Based on conflicting evidence, whether improper

maintenance resulted in the failure of the hydraulic pumps in

the 495ML loader and precluded any breach-of-warranty claim

was a matter for the jury to determine.                See, e.g., Royal

Typewriter Co. v. Xerographic Supplies Corp., 719 F.2d 1092,

1103    (11th   Cir.   1983)   (providing   that   whether      improper

maintenance     precluded   any    breach-of-warranty      claim   was   a

matter for the jury to determine).

       Regarding Barko's contention that the warranty period had

already expired when the hydraulic pumps                failed, we are

likewise not persuaded.          Barko had an obligation under the

warranty. After four months of use, the 495ML loader began to

overheat and to use excessive fuel and hydraulic fluid. After

the 495ML loader was repeatedly serviced, the hydraulic pumps

stopped working.       Barko failed to correct the problems with

the 495ML loader after repeated complaints and servicings.

Given the numerous attempts at repair over the extended

period, the jury could properly have concluded that the 495ML

loader had not been repaired and that the warranty had failed


                                    14
1121479

of its essential purpose.4 Barko breached its contract during

the warranty period. As is the case with any contract that is

breached, Shepherd's damages were precipitated by Barko's

failure to perform.   Mere passage of time did not cure or

excuse that breach or failure to perform.     Accordingly, the

trial court did not err in submitting the breach-of-express-

warranty claim to the jury.

                        B.    Damages

    Barko argues that Shepherd's recovery was limited to the

cost to repair of the 495ML loader.     Barko also argues that

the trial court erred in instructing the jury on mental-

anguish damages.   Shepherd says that, because the warranty

    4
     See, e.g., Massey-Ferguson, Inc. v. Laird, 432 So. 2d
1259, 1264 (Ala. 1983) (holding that "[g]iven the numerous
attempts at repair over the extended time period, the jury
could properly conclude (as it presumably did, since it
obviously awarded consequential damages) that the combine was
not repaired within a reasonable time and that the limited
warranty had failed of its essential purpose"); Courtesy Ford
Sales, Inc. v. Farrior, 53 Ala. App. 94, 298 So. 2d 26, 33
(Ala. Civ. App. 1974), superseded by rule on other grounds,
see Arnold v. Campbell, 398 So. 2d 301 (Ala. Civ. App. 1981)
(stating that, when a manufacturer limits its obligation to
the repair and replacement of defective parts and repeatedly
fails to correct the defect as promised within a reasonable
time, it is liable for the breach of that promise as a breach
of warranty); Tiger Motor Co. v. McMurtry, 284 Ala. 283, 290,
224 So. 2d 638, 644 (1969) (providing that a seller does not
have unlimited time to repair and/or to replace parts under a
warranty).
                              15
1121479

failed of its essential purpose, he was entitled to an award

of damages as allowed by the Uniform Commercial Code (the

"UCC"), as well as damages for mental anguish.                    Shepherd

claims that Barko failed to preserve its claim that the trial

court     erred   in    instructing        the   jury   on   mental-anguish

damages.5

    The measure of damages for breach of warranty arising

from the sale of goods is governed by § 7-2-714 and § 7-2-715,

Ala. Code 1975.        Section 7-2-714(2) provides, in part:

         "(2) The measure of damages for breach of
    warranty is the difference at the time and place of
    acceptance between the value of the goods accepted
    and the value they would have had if they had been
    as warranted, unless special circumstances show
    proximate damages of a different amount ...."

    Section 7-2-715 provides for the recovery of incidental

and consequential damages in appropriate cases.                It provides,

in part:

         "(1) Incidental damages resulting from the
    seller's breach include expenses reasonably incurred
    in inspection, receipt, transportation and care and
    custody   of   goods   rightfully    rejected,   any
    commercially   reasonable   charges,   expenses   or
    commissions in connection with effecting cover and


    5
     Our review of the record indicates that Barko adequately
preserved the mental-anguish-instruction issue for appellate
review.
                                      16
1121479

      any other reasonable expense incident to the delay
      or other breach.

           "(2) Consequential damages resulting from the
      seller's breach include:

               "(a) Any loss resulting from general
          or particular requirements and needs of
          which the seller at the time of contracting
          had reason to know and which could not
          reasonably be prevented by cover or
          otherwise ...."

      Generally, mental-anguish damages are not recoverable in

a breach-of-contract action. Bowers v. Wal–Mart Stores, Inc.,

827 So. 2d 63, 68-70 (Ala. 2001).               This Court, however,

recognized in Bowers a limited mental-concern or solicitude

exception to the general rule.            Id.

      In this case, under the UCC, the jury could award the

difference between the actual value of the 495ML loader and

its   value   had   it   been   as    warranted   and   incidental   or

consequential damages.      However, mental-anguish damages are

not recoverable under the facts of this case.                Shepherd

alleged that he lost his business because of the problems

with, and the failure of, the 495ML loader.         Shepherd claimed

that the loss of his logging business caused his divorce,

resulting in his spending less time with his daughter.          Here,

Barko's contractual duty to Shepherd was not "'so coupled with

                                     17
1121479

matters of mental concern or solicitude ... that a breach of

that duty will necessarily or reasonably result in mental

anguish or suffering ....'"        F. Becker Asphaltum Roofing Co.

v. Murphy, 224 Ala. 655, 657, 141 So. 630, 631 (1932)(quoting

8 R.C.L. p 529, § 83).6        There must be some nexus between the

mental-anguish damages and the intention and contemplation of

the parties at the time the contract was made; there is not

substantial evidence to support the award of such damages

under the circumstances of this case.

    In    this   case,   the   jury   returned   a   general   verdict.

Because general damages were awarded, there is no way to

determine the amount the jury attributed to each type of

damages, some of which were properly awardable, and some of

which were not.     Accordingly, we reverse the judgment in its

entirety and remand the case for a new trial.

                          IV.     Conclusion

    We reverse the judgment entered against Barko, and we

remand the case for entry of an order granting Barko's motion

for a new trial.


    6
     See Bowers v. Wal–Mart Stores, Inc., 827 So. 2d 63, 68-70
(Ala. 2001), and its progeny for a discussion of cases in
which exceptions to the general rule have been upheld.
                                   18
1121479

    REVERSED AND REMANDED WITH DIRECTIONS.

    Moore, C.J., and Bolin and Main, JJ., concur.

    Murdock, J., concurs specially.

    Shaw, J., concurs in the result.

    Parker and Bryan, JJ., concur in part and dissent in

part.

    Stuart, J., concurs in the result in part and concurs in

part and dissents in part as to the rationale.




                             19
1121479

MURDOCK, Justice (concurring specially).

    I concur in the main opinion, as well as in Justice

Shaw's special writing regarding consequential and incidental

damages.   For its part, the main opinion holds that it is not

necessary for a purchaser making a warranty claim under the

Uniform Commercial Code to present expert testimony or other

evidence to explain the specific defect giving rise to a

warranty claim and that "[i]t is sufficient if, as here, the

evidence shows, either directly or by permissible inference,

that the 495ML loader was defective in its performance or

function   or    that   it   otherwise   failed   to   conform   to   the

warranty."      ___ So. 3d at ___.   I agree with this statement in

the context presented here, where the evidence of a failure is

coupled with evidence upon which a jury could find that the

purchaser properly maintained and used the product or that any

deficiency in the maintenance or use was not the cause of the

failure of the product.        Were we to hold otherwise based on

Ex parte Miller, 693 So. 2d 1372, 1376 (Ala. 1997), as Barko

Hydraulics, LLC, urges, then it appears to me that we would

have to ignore the logical inference possible in a case in

which a jury is presented with substantial evidence showing no


                                   20
1121479

lack of proper maintenance or use of the product that could

have caused its failure and place too much weight on the

discussion by Miller as to cases that might involve warranties

against "defects in materials and workmanship," which Miller

did not.




                             21
1121479

SHAW, Justice (concurring in the result).

    I concur in the result reached by the main opinion.                              I

write specially to explain why the trial court did not err in

submitting       to     the     jury    the     issue       of    incidental       and

consequential damages.

    Incidental and consequential damages can be recovered for

a seller's breach.            Ala. Code 1975, §§ 7-2-714(3) and -715.

Under Ala. Code 1975, § 7-2-719(1), parties may agree to limit

remedies     for       breaches,       including       damages.         However,     §

7-2-719(2)       states       that     "[w]here    circumstances           cause    an

exclusive or limited remedy to fail of its essential purpose,

remedy may be had as provided in this title."                             Under the

authority of Massey-Ferguson, Inc. v. Laird, 432 So. 2d 1259

(Ala. 1983), when a limited remedy fails of its essential

purpose,    the       damages    available        in    §   7-2-714,      including

incidental       and    consequential          damages,     can    be     recovered,

despite the limitations in the contract.

    In     the     instant      case,    the     warranty        issued    by   Barko

Hydraulics, LLC ("Barko"), limited recovery to the replacement

of defective parts and barred incidental and consequential

damages.     However, the main opinion holds that there was


                                          22
1121479

sufficient evidence from which the jury could          conclude that

Barko's   warranty      failed     of   its     essential        purpose.

Specifically,   there   were     numerous     complaints    by    Michael

Shepherd as to the hydraulic system as early as four months

after the 495ML loader was purchased.         Those hydraulic-system

issues apparently were not resolved.            As the main opinion

concludes: "Barko failed to correct the problems with the

495ML loader after repeated complaints and servicings.              Given

the numerous attempts at repair over the extended period, the

jury could properly have concluded that the 495ML loader had

not been repaired and that the warranty had failed of its

essential purpose." ___ So. 3d at ___.         Thus, the limitations

on remedies and damages were not applicable in this case.




                                  23
1121479

BRYAN, Justice (concurring in part and dissenting in part).

    I concur in all aspects of the main opinion except

insofar as it reverses the judgment in its entirety and

remands for a new trial.   I would affirm the judgment as to

liability, reverse the judgment as to damages, and remand for

a new trial on the issue of damages only. See, e.g., LaFarge

Bldg. Materials, Inc. v. Stribling, 880 So. 2d 415 (Ala.

2003).

    Parker, J., concurs.




                             24
1121479

STUART, Justice (concurring in the result in part         and
concurring in part and dissenting in part as to           the
rationale).

    I agree with the conclusion of the main opinion that the

trial court erred by instructing the jury on mental-anguish

damages and subsequently entering judgment on the general

verdict returned by the jury, which presumably included such

damages. However, I believe that it is ultimately unnecessary

to address the damages issue because, in my view, the trial

court erred by denying the motion filed by Barko Hydraulics,

LLC ("Barko"), seeking a judgment as a matter of law on

Michael Shepherd's breach-of-warranty claim.   That motion was

supported by the facts in the record and the law and should

have been granted at the close of evidence before the case was

submitted to the jury.    Accordingly, although I too would

reverse the judgment entered by the trial court in toto, I

would remand the cause, not for a new trial, but for the trial

court to enter a judgment as a matter of law in favor of

Barko.

    The main opinion correctly cites Ex parte Miller, 693 So.

2d 1372, 1376 (Ala. 1997), for the proposition that express

warranties are to be treated like any other type of contract


                             25
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and interpreted according to general contract principles. ___

So. 3d at ___.        Foremost among those principles is the idea

that an agreement that is complete, clear, and unambiguous on

its face must be enforced according to the plain meaning of

its terms.      Black Diamond Dev., Inc. v. Thompson, 979 So. 2d

47, 52 (Ala. 2007).        In this case, the express warranty Barko

is alleged to have breached was clear and unambiguous –– Barko

warrantied that the 495ML loader purchased by Shepherd would

be "free from defects in material and workmanship under normal

use, maintenance and service."              Importantly, this is the only

warranty at issue in this case; we are not concerned with

implied warranties –– only this express written warranty.

Shepherd      asserts    that    Barko    has   breached   this   warranty;

however, he has not identified for this Court any evidence or

testimony in the record indicating that the 495ML loader

suffered from "defects in material and workmanship."                Rather,

he essentially argues that the mere fact that the hydraulic

pumps on the 495ML loader failed is itself sufficient evidence

that    the   495ML     loader   was     defective.    This   argument   is

encapsulated by the following excerpt from Shepherd's brief:

            "For at least 40 years, evidence that a product
       failed to function as warranted has been sufficient

                                       26
1121479

    to present a breach-of-warranty claim to a jury.
    Barko asks this Court to ignore that line of cases
    and hold –– for the first time –– that a plaintiff
    must present expert testimony detailing the exact
    defect which caused the product to fail. Barko's
    argument should be rejected.

          "....

         "Mr. Shepherd's burden is to prove that the
    loader failed –– not why.         If a loader is
    manufactured using proper materials and in a
    workmanlike fashion, it will not fail in the manner
    this Barko loader failed.     The evidence was in
    dispute whether inadequate maintenance caused the
    loader to fail. The trial court correctly submitted
    this issue to the jury.

         "Barko argues that Mr. Shepherd was required to
    present evidence of the specific defect that caused
    the loader not to operate as warranted. No Alabama
    case law concerning a claim for breach of warranty
    supports Barko's argument."

Shepherd's brief, pp. 14-16 (footnotes omitted).   Shepherd's

argument might be persuasive if we were considering whether

there had been a breach of a broad implied warranty such as an

implied warranty of merchantability; however, in the context

of the express warranty in this case, his argument is, quite

simply, incorrect. As shown below, our caselaw makes it clear

that one asserting a breach-of-express-warranty claim based on

a warranty warranting a product to be free from defects in




                             27
1121479

material or workmanship must present evidence of a specific

defect that constitutes a breach of the warranty.

    The express warranty offered by Barko –– and accepted by

Shepherd –– provided that Barko would repair or replace

nonstructural components of the 495ML loader, such as the

hydraulic pumps, if those parts "prove[d] to be defective in

material or workmanship under normal use, maintenance and

service within one (1) year or 2,000 hours, whichever occurs

first from first day in service." (Emphasis added.) Notably,

Barko   did    not   agree   to   repair   or   replace    nonstructural

component parts of the 495ML loader merely upon proof of the

failure of a part.      This Court explained the significance of

that difference in Ex parte Miller, another case involving a

warranty dispute and a Barko-manufactured piece of logging

equipment.

    In Miller, the trial court entered a judgment as a matter

of law in favor of Pettibone Corporation, the parent company

of Barko, on various claims asserted by Thomas Miller, the

buyer of a Barko 775 feller buncher, after that feller buncher

experienced numerous hydrostatic failures.                693 So. 2d at

1373-74.      Many of the Barko 775 feller buncher's components,


                                    28
1121479

including     the     hydrostat,    were   manufactured   by   Sauer-

Sundstrand, Inc. ("Sundstrand"), and Barko and Sundstrand

shared responsibility for the hydrostatic motor and pump under

a component warranty that had been issued Miller:

         "'Sundstrand 36 series pumps and VII–160 motors
    shall be warranted to the original owner for a
    period of 24 months from in-service date of the
    machine. During the first 6 months or 1,000 hours,
    Barko/Sundstrand will determine if units are
    warrantable.... After the first 6 months or 1,000
    hours, component warranty will be determined by
    Sundstrand....   It shall be the option of Barko
    and/or Sundstrand to replace any failed units with
    genuine Sundstrand rebuilt units. Such units may be
    replaced more than once during the warranty."

693 So. 2d at 1375 n. 5.           After the Court of Civil Appeals

affirmed the trial court's judgment, Miller petitioned this

Court for certiorari review, and, after granting his petition,

we ultimately reversed the judgment that that court had

entered     on      Miller's   breach-of-express-warranty      claim,

explaining:

         "Pettibone argued, and the Court of Civil
    Appeals agreed, that Miller had failed to present
    substantial evidence of any 'warrantable defect' in
    the hydrostat.   Pettibone makes the same argument
    here.     The component warranty says that the
    hydrostatic motor and pump 'shall be warranted to
    the original owner' (emphasis added).    It further
    states that 'it shall be the option of Barko and/or
    Sundstrand to replace any failed units with genuine
    Sundstrand rebuilt units,' and that '[a]ny charges

                                    29
1121479

    for repairs to failed pumps and/or motors which are
    not warrantable as determined by Sundstrand will be
    borne by the customer' (emphasis added).

          "....

         "The   component   warranty   here   does    not
    specifically   state   that   it  warrants   against
    'defects' in the product: rather, it warrants the
    hydrostatic pumps and motors against 'failure.' The
    Court of Civil Appeals based its affirmance on the
    express warranty partly because it found that Miller
    did   not  provide    substantial  evidence    of   a
    'warrantable defect.' In other words, the Court of
    Civil Appeals treated 'warrantable defect' as if it
    was something that had to be found in every express
    warranty claim, without reference to the language of
    the warranty itself.

         "On the contrary, '[c]are must be taken to avoid
    elevating a defect in the goods to the status of an
    essential element that must be shown in order to
    recover for a breach of an express warranty.'
    Ronald A. Anderson, Anderson on the Uniform
    Commercial Code, § 2–313:217 (3d ed. 1995). If a
    company such as Pettibone wishes to warrant only
    defects in material and workmanship, then it may do
    so; with such a warranty, the plaintiff would have
    to show that the product was defective in order to
    show that the goods did not conform to the warranty.
    Conversely, if a company wishes to warrant against
    all problems with its product, regardless of origin,
    then it may do that as well. See Anderson, supra,
    at § 2–313:205 ('A seller may make a warranty as
    broad as the seller requires and may go beyond the
    scope of those warranties that the law would
    imply').

         "In light of the broad language used in this
    particular component warranty, we can see no other
    interpretation than that it warrants against
    'failures' of the hydrostat. Miller met his prima

                             30
1121479

    facie burden of showing that the hydrostat failed on
    April 18, 1991, and other previous times, by
    presenting testimony of the operators of the feller
    buncher and of those who worked on the hydrostat
    after it had broken down. We agree that, if this
    warranty provided coverage for 'defects in material
    and workmanship,' then Pettibone would have had at
    least a plausible argument that Miller had not met
    his evidentiary burden; however, Miller did offer
    substantial evidence that the hydrostat failed on
    April 18. Accordingly, we hold that Miller met his
    evidentiary   burden   of   proof   concerning   the
    warrantability of the failure of the hydrostat."

693 So. 2d at 1376-77 (footnote omitted).   Thus, in Miller we

held that it was error for the trial court to require a party

asserting a warranty claim to prove a specific defect in a

warrantied product when the warranty itself broadly warranted

against "failures" of the product.   In the instant case, we

are presented with the converse situation –– the trial court

did not require a party asserting a warranty claim to produce

evidence of a specific defect in a warrantied product even

though the applicable warranty warranted only against defects

in material or workmanship.    For the reasons explained in

Miller, this too was error.   See Miller, 693 So. 2d at 1376

("If a company ... wishes to warrant only defects in material

and workmanship, then it may do so; with such a warranty, the

plaintiff would have to show that the product was defective in


                              31
1121479

order   to    show    that     the   goods        did   not    conform    to    the

warranty.").

    The      main    opinion    quotes      the    admonition      of    Ex   parte

Miller, 693 So. 2d at 1376, that "'"[c]are must be taken to

avoid elevating a defect in the goods to the status of an

essential element that must be shown in order to recover for

a breach of an express warranty,"'" ___ So. 3d at ___ n. 2

(quoting in turn Ronald A. Anderson, Anderson on the Uniform

Commercial Code § 2–313:217 (3d ed. 1995)), but fails to

recognize that that admonition was made in the context of a

warranty broadly warranting a product from any failure –– not

just a failure caused by a defect in material or workmanship.

Moreover, the main opinion inexplicably fails to give any

effect to the subsequent sentence in Ex parte Miller providing

that "[i]f a company ... wishes to warrant only defects in

material and workmanship, then it may do so," and, in fact,

the main opinion effectively holds the exact opposite –– a

company      cannot    warrant       only    defects          in   material     and

workmanship and, if a company clearly and unambiguously does

so, this Court is providing notice in this opinion that it

will nevertheless rewrite the warranty to generally protect


                                       32
1121479

against any failure.      This of course is contrary to our long-

standing precedent that we will enforce contracts as they are

written and will not rewrite them.          Vankineni v. Santa Rosa

Beach Dev. Corp. II, 57 So. 3d 760, 762 (Ala. 2010).

      Moreover, with regard to the global statement in the main

opinion that "[w]e conclude that the identification of an

existing defect is not essential to recovery upon an express

warranty," ___ So. 3d at ___, I would note that the terms of

an express warranty should dictate what evidence is required

to prove a breach of that warranty, not an all embracing rule

pronounced by this Court.        See Cipollone v. Liggett Grp.,

Inc., 505 U.S. 504, 525 (1992) ("A manufacturer's liability

for   breach   of   an express   warranty    derives    from,   and   is

measured by, the terms of that warranty.").             The Court of

Special   Appeals    of   Maryland   explained   this   principle     as

follows in a breach-of-express-warranty case involving a tire:

           "It is axiomatic in Maryland that an express
      warranty is breached when a product fails to exhibit
      the properties, characteristics, or qualities
      specifically attributed to it by its warrantor, and
      therefore fails to conform to the warrantor's
      representations. The breach of an express warranty
      of materials and workmanship is established by proof
      of defects in the material or workmanship.       The
      breach of an express warranty that a roof will not
      leak for 15 years is established by evidence that

                                 33
1121479

       during that period of time the roof leaked.     The
       breach of an express warranty that pipes would seal
       upon spill going through is established by evidence
       that when the pipe was assembled and installed, the
       joints did not seal when spill was pumped through
       under pressure, and there was leakage. The breach
       of an express warranty that a product will last for
       four years is established by evidence that the
       product did not last for that period of time. Thus,
       no 'defect' other than a failure to conform to the
       warrantor's representations need be shown in order
       to establish a breach of an express warranty."

McCarty v. E.J. Korvette, Inc., 28 Md. App. 421, 437, 347 A.2d

253, 264 (1975) (footnotes omitted).              See also Mac Pon Co. v.

Vinsant Painting & Decorating Co., 423 So. 2d 216, 219 (Ala.

1982)    ("The    reason   liability      is    assessed      for   breach    of

warranty, whether the warranty be express or implied, is that

goods have failed to conform to requirements imposed by the

warranty.").        The    United   States      District      Court   for    the

Southern    District      of   Alabama    also    properly     applied      this

principle in Tull Bros., Inc. v. Peerless Products, Inc., 953

F. Supp. 2d 1245, 1257 (S.D. Ala. 2013), when it held that

"[a]    written    warranty     against        defects   in    materials      or

workmanship does not encompass a warranty against defects in

design."

       Finally, although I have already noted that Shepherd

adduced no evidence of defects in material and/or workmanship

                                     34
1121479

that might serve as the basis for a breach-of-warranty claim

based     on   the   express    warranty   in    this   case   ––   and,

accordingly,     the   jury's   verdict    is   necessarily    based   on

nothing more than mere speculation that there might have been

such a defect –– I write further to emphasize the absence of

any expert testimony indicating that there was a defect in

material or workmanship.        In both its preverdict motion for a

judgment as a matter of law and its renewed motion filed after

judgment was entered on the jury's verdict, Barko argued that

Shepherd had not established what caused the failure of the

hydraulic pumps on the 495ML loader, much less that that

failure was caused by a defect in material or workmanship.

Barko also argued that Shepherd's failure to introduce any

expert testimony establishing a defect was fatal to his case.

In both motions it quoted the following passage from this

Court's opinion in Brooks v. Colonial Chevrolet-Buick, Inc.,

579 So. 2d 1328, 1333 (Ala. 1991):

         "In this case, the [plaintiffs], by their own
    admission, had no knowledge whatever regarding the
    brake system of an automobile. Furthermore, they
    offered no expert testimony as to the existence of
    a design defect –– they did not even attempt to
    offer any expert opinion related to the repair
    records concerning the complaints about the brakes
    that they had made to Colonial, nor did they attempt

                                   35
1121479

    to offer any expert testimony related to their
    allegations of a design defect in the brake system.
    The only evidence the [plaintiffs] presented
    concerning a defect in design was their own
    testimony as to the alleged defectiveness of the
    brakes and as to the alleged injuries they suffered
    as a result. Such evidence as to the cause of a
    product failure amounts to mere speculation and
    conclusory statements ...."

Like Brooks, the only supposed "evidence" of a defect in

material or workmanship in this case was the fact that a piece

of equipment failed.7   Although it bears repeating that the

mere fact that a piece of equipment fails is not substantial

evidence showing that there was a defect in materials or

workmanship –– there was, after all, testimony indicating that

the failure of the hydraulic pumps could be attributable to

just normal wear and tear after approximately 4,300 hours of

operation –– it is especially inappropriate to make that

conclusion with regard to complicated equipment like the

hydraulic system on heavy logging equipment in the absence of

any expert testimony. As this Court further stated in Brooks:



    7
     Also like the plaintiffs in Brooks, who admitted they had
no knowledge of an automotive brake system, 579 So. 2d at
1333, Shepherd acknowledged in his deposition that his
mechanical expertise with regard to heavy logging equipment
was essentially limited to changing oil and parts and that he
was not equipped to diagnose problems in such equipment.
                             36
1121479

         "The [plaintiffs] contend that the instant case
    does not present a situation so complex or
    complicated that an expert is necessary to explain
    the cause and effect of that situation to the
    jurors.    However, an automobile brake system is
    composed of, among other parts, cali[p]ers, rotors,
    discs, rear wheel cylinders, brake shoes, and master
    cylinders; it is a system composed of parts that
    would not be familiar to the lay juror, and the lay
    juror could not reasonably be expected to understand
    that system and determine if it was defective,
    without the assistance of expert testimony.       In
    essence, it is a system that appears to be precisely
    the type of complex and technical commodity that
    would require expert testimony to prove an alleged
    defect."

579 So. 2d at 1333.   It seems uncontroversial to presume that

a typical juror would likely be more familiar with the brake

system on an automobile than the hydraulic system on heavy

logging equipment; accordingly, Brooks would indicate that

expert testimony was necessary in this case as well and that

Shepherd's failure to present such evidence required the

granting of Barko's motion for a judgment as a matter of law.8

    8
     In Ex parte General Motors Corp., 769 So. 2d 903, 912-13
(Ala. 1999), this Court distinguished Brooks and held that
expert testimony was not required in a breach-of-warranty case
involving a claim that an automobile was defective. However,
the warranty at issue in that case was the implied warranty of
merchantability, not an express warranty as in this case. A
breach of the implied warranty of merchantability requires
proof that a product was not "'fit for the ordinary purposes
for which such goods are used,'" id. at 913 (quoting § 7-2-
314(2)(c), Ala. Code 1975), while a breach of an express
warranty requires proof that the warrantied product failed to
                              37
1121479

    Accordingly, because neither substantial evidence nor any

expert testimony was adduced at trial indicating that the

495ML loader manufactured by Barko and purchased by Shepherd

suffered from a defect in material and/or workmanship, the

trial   court   erred   by   not   granting   Barko's   motion   for   a

judgment as a matter of law.         This Court should accordingly

direct the trial court to enter a judgment as a matter of law

in favor of Barko; consideration of the other issues raised by

the parties is unnecessary.




conform with the representations made in the express warranty
–– in this case that the 495ML loader would be free from
"defects in material and workmanship." Thus, expert testimony
might not have been necessary to establish a hypothetical
breach-of-implied-warranty-of-merchantability claim in this
case, because Shepherd arguably submitted substantial evidence
indicating that the 495ML loader was not fit for its intended
purpose. However, the only claim submitted to the jury in
this case was a breach-of-express-warranty claim, and Shepherd
submitted no evidence, much less the expert testimony required
by Brooks, establishing a breach of the express warranty made
by Barko that the 495ML loader would be free from "defects in
material and workmanship."
                                   38
