author: BRYAN, Justice. MURDOCK, Justice

text:
    CITY OF GADSDEN v. John BOMAN. Joe N. Dickson et al. v. John Boman.
    1120579 and 1120633.
    Supreme Court of Alabama.
    Nov. 8, 2013.
    Rehearing Applications Denied Jan. 17, 2014.

      H. Edgar Howard of Ford, Howard & Cornett, P.C., Gadsden, for appellant City of Gadsden.
    Kyle T. Smith and Kristin S. Cross of Sirote & Permutt, P.C., Birmingham, for appellants Joe N. Dickson et al.
    Myron K. Allenstein and Rose Marie Allenstein of Allenstein & Allenstein, LLC, Gadsden, for appellee.
   BRYAN, Justice.

The City of Gadsden (“Gadsden”) and certain members of the State Employees’ Insurance Board (“the Board”) appeal two orders of the Etowah Circuit Court, in which the court granted injunctive relief to John Boman. We reverse the orders and remand the cause for further proceedings.

In City of Gadsden v. Boman, 104 So.3d 882 (2012) (hereinafter referred to as “Boman I ”), this Court set forth many of the relevant facts related to the action underlying these consolidated appeals:

“John Boman worked as a [Gadsden] police officer from 1965 until he retired in 1991. At the time of his retirement, police officers were operating under provisions of the ‘City of Gadsden Employee Handbook: Police Department (ed. 1989-1992)’ (‘the handbook’). In § 26, entitled ‘employee benefit plan,’ the handbook listed ‘Major Medical benefits — 80% UCR [usual, customary, and reasonable charges] for the first $10,000 with 100% of covered expenses ... each year after $2,000 annual out-of-pocket per person.’ The employee-benefit plan was issued and administered by Blue Cross and Blue Shield of Alabama (‘Blue Cross’).
“In 2000, Gadsden elected to join the ‘Local Government Health Insurance Plan’ (‘the [State] plan’), a ‘self-insurance health benefit plan administered by the State Employees’ Insurance Board’ (‘the Board’). The claims administrator for the [State] plan was Blue Cross. The [State] plan stated, in pertinent part:
“ ‘Retired Employees
‘Health benefits will be modified when you or your dependent becomes entitled to Medicare. Coverage under this plan will be reduced by those benefits payable under Medicare, Parts A and B....
“ ‘The [State plan] remains primary for retirees until the retiree is entitled to Medicare. Upon Medicare entitlement, the member’s coverage under the [State plan] will complement his/ her Medicare Parts A and B coverages. Medicare will be the primary payer and the [State plan] will be the secondary payer. A Medicare retiree and/or Medicare dependent should have both Medicare Parts A and B to have adequate coverage with the [State plan].’
“(Some emphasis added; some emphasis omitted.)
“When Boman turned 65 in 2011, he was receiving medical care for ‘congestive heart failure’ and ‘severe osteoarthritis of the spine.’ After his 65th birthday, Blue Cross began denying his claims for medical treatment based on the failure to provide Blue Cross with a ‘record of the Medicare payment.’ However, Boman had no Medicare credits....
“... [Although Gadsden did begin participation in the Medicare program in 2006, Boman’s employee group had not opted to obtain Medicare coverage before Boman retired. Consequently, Bo-man never paid Medicare taxes and does not claim to have Medicare coverage.
“When the dispute over coverage arose, Boman sought review by the Board. In response, he received a letter dated March 30, 2011, from James J. Bradford, general counsel for the Board, which stated, in pertinent part:
“ ‘The [State plan] becomes secondary when a retiree becomes entitled to Medicare. In order to have no gaps in coverage a retiree must have both Parts A and B. This requirement is published in the benefits handbook that every employee and retiree receives each year. All employees and retirees are, therefore, on notice of this requirement.
“ ‘Although I can appreciate Mr. Bo-man’s situation, the [Board] must strictly enforce the [State] plan provisions. If the [Board] granted an exception to the [State plan’s] Medicare secondary provisions for retirees of units, who for their own financial purposes decided not to participate in Medicare, it would result in all units who do participate in Medicare subsidizing the cost of the retirees of those units who do not participate. As fiduciaries of the [State plan] the [Board] cannot allow such a practice. Accordingly, your request for the [State plan] to remain Mr. Boman’s primary coverage cannot be granted.
“ ‘Appeals are limited to exclusions or exceptions to coverage based on extenuating or extraordinary circumstances or policy issues not recently addressed or previously contemplated by the [Board]. The Medicare secondary provisions of the [State plan] have been in place since the inception of the [State] plan in 1993 and have been enforced without exception since that time, regardless of whether the employer unit participates in Medicare. The fact that the City of Gadsden did not begin its participation in Medicare until 2006 does not meet the criteria necessary to allow an appeal of the application of the [State plan’s] Medicare secondary provisions. Mr. Boman’s request for an appeal is, therefore, denied.’
“Meanwhile, as early as November 3, 2009, Boman and 18 other active and retired Gadsden police officers sued Gadsden, alleging, among other things, that they had ‘been deprived of Social Security and Medicare protection which other police officers have been provided’ and that, after 20 years of service, they were being required to pay a higher pension charge or percentage of base pay than their counterparts who were hired after April 1, 1986. On May 2, 2011, Boman filed a ‘motion for immediate relief for medical care.’ He alleged that, when he was hired, Gadsden ‘provided police and firemen a 20 year retirement program whereby police and firemen would receive 50% retirement benefits after 20 years of service and lifetime medical care.’ He averred that Gadsden had ‘breached its contract with [him] to provide continuing medical insurance,’ and he requested ‘immediate relief by ordering [Gadsden] to pay for [his] medical care or in the alternative ordering [Gadsden] to pay for Medicare coverage for ... Boman so he will have continuing medical insurance as agreed by [Gadsden]. On July 8, 2011, Gadsden filed a ‘motion for joinder of indispensable parties,’ pursuant to Rule 19, Ala. R. Civ. P. The motion alleged, in pertinent part[, that the Board and the State plan should be joined to the action].
“... [0]n August 1, 2011, Boman and the other officers filed a 12th amended complaint. It named as additional defendants the Board and the [State] plan. It also added distinct claims by Boman ‘for benefits’ and alleged the torts of bad faith and outrage against Gadsden. Central to this appeal is the allegation in the complaint that
“ ‘the Defendants have interpreted the State’s medical plan as secondary to Medicare even though the City of Gadsden never gave Plaintiff Boman the opportunity to participate in Medicare. Therefore, Plaintiff Boman is not Medicare eligible. Plaintiff Bo-man is not eligible for medical care because the State medical plan is secondary to Medicare and Boman does not have Medicare.’
“(Emphasis added.) Boman alleged that his ‘rights to medical care [had] vested and [could not] be modified or reduced.’ He sought ‘injunctive emergency relief requiring [Gadsden] and Defendants to provide continuing medical care and a judgment for any unpaid medical bills which [were] due and owing.’
“On September 1, 2011, the Board filed a motion to dismiss the action as to it and the [State] plan. As to it, the Board alleged that it was an agency of the State and, therefore, was entitled to absolute immunity from suit. Also, according to the Board, the [State] plan is not a legal entity subject to suit, but ‘merely a program administered by the Board to provide insurance.’ It also averred that, ‘[e]ven if [the State plan] were an entity subject to suit, it would be immune for the same reasons [the] Board is immune.’ Boman’s response to the Board’s motion failed to acknowledge or mention the immunity question.
“On December 15, 2011, the trial court, without conducting an evidentiary hearing, entered an ‘order granting motion for emergency relief,’ which provided, in pertinent part:
“ ‘The court grants Plaintiff Bo-man’s motion for immediate relief of medical care. The City of Gadsden shall be responsible for major medical expenses under the [State] Plan provided by Gadsden -without the newly added provision that benefits are secondary to Medicare. The court finds that John Boman was not provided Medicare coverage with [Gadsden].
“ ‘The City of Gadsden, at its option, may pay John Boman’s Medicare premium which is estimated to be $500/month so that Medicare will become the primary medical provider with the benefits provided by [Gadsden] through the State system as the secondary medical provider.
“ ‘The court holds that John Boman has an enforceable agreement with [Gadsden] for continued medical benefits which cannot be unilaterally modified by [Gadsden] because John Bo-man’s benefits vested after 20 years and/or when he retired.’
“On December 28, 2011, the trial court dismissed the claims against the Board and the [State] plan. That same day, Gadsden appealed.[]
Although the basis of Boman’s breach-of-contract claim is not entirely clear, it appears to rest on the theory that the handbook created an enforceable contract or promise on the part of Gadsden.
For purposes of this appeal, we regard the Board’s characterization of the [State] plan as correct.”

Boman 1, 104 So.3d at 883-86.

This Court went on in Boman I to reverse the circuit court’s judgment, granting Boman injunctive relief against Gadsden and ordering the payment of Boman’s outstanding medical bills. The Court stated:

“Because the [State Employees’ Insurance] Board’s construction of the [State] plan is at the heart of this dispute, that construction must be adjudicated in this action, and its officials must be bound by any such adjudication.”

104 So.3d at 888. The Court went on to hold that, although the Board itself could not be added to the complaint, “the inclusion of [officials of the Board] is, at a minimum, necessary for the rendition of ‘complete relief ... among those already parties,’ Rule 19(a), [Ala. R. Civ. P.,] and is needed for the just and efficient adjudication of this dispute.” Id. We then reversed the circuit court’s judgment and remanded the cause with instructions to the circuit court “to entertain an amendment to the complaint adding claims against those officials of the Board who are charged with administering the plan in their official capacities.” Id., at 888-89.

On remand, Boman again amended the complaint, adding as defendants members of the Board Joe N. Dickson, Paige Heb-son, David Bronner, Marquita Davis, Jon Barganier, John Carroll, William Meel-lown, Faye Nelson, Robert Pickett, Joanne W. Randolph, and Robert Wagstaff (“the Board members”), and seeking

“injunctive relief requiring ... the State Board members to provide continuing medical care and a judgment for any unpaid medical bills which are due and owing. Plaintiff Boman requested] attorney fees.
“Boman also requested] a determination of the Court as to whether he is Medicare eligible as defined by the State Plan. Plaintiff Boman requested] an Order compelling the Board Members to find that Boman is not Medicare eligible and an Order compelling the State Board Members to provide primary health insurance to John Boman since he is not Medicare eligible.”

Gadsden moved the circuit court to vacate its December 15 and July 30 orders. See supra note 1. The circuit court did not rule on that motion.

On October 28, 2012, the Board members moved the circuit court for a summary judgment, arguing, among other things, that because Boman is over 65 years old and a United States citizen, he is entitled to Medicare benefits. Therefore, the Board argued, “as a matter of law, any coverage for Boman under the [State plan] is secondary to Medicare.” The Board members did not take a position with regard to Gadsden’s obligation to provide Boman with medical benefits.

In November 2012, Boman moved for a “Summary Judgment on the issue of the State medical insurance being primary coverage for Boman since he is not Medicare eligible.” Boman argued that under the retirement plan in place when he retired, he was entitled to 50% retirement benefits and lifetime medical care funded by Gadsden. He also argued that he was not “Medicare eligible” and that, therefore, he was entitled to primary coverage under the self-insurance health-benefit plan administered by the Board (“the State plan”). In January 2018, Boman moved the circuit court to instruct the Board members or, in the alternative, Gadsden to pay his medical bills and to reinstate his prescription card.

On February 5, 2013, after a hearing on the summary-judgment motions, the circuit court entered a summary judgment in favor of Boman “on the issue of the State medical insurance being primary coverage for Boman since he is not Medicare eligible.” The circuit court found, among other things, that “[t]he insurance provided to John Boman by the [Board] provides that medical insurance provided by the State is secondary to Medicare” and that “Boman does not have Medicare.” The circuit court went on to conclude, among other things, that “John Boman is not Medicare eligible because he was never allowed to participate in the Medicare program while a Gadsden Police Officer,” that “[t]he medical insurance provided by the [Board] does not define ‘Medicare eligible,’ ” and that “[t]he [Board] is obligated to provide medical benefits to John Boman as primary insurance because John Boman is not ‘Medicare eligible.’ ”

The circuit court determined that “John Boman [was] entitled to summary judgment on the issue of the State medical insurance being primary coverage for Bo-man since he is not Medicare eligible” and awarded him relief based on that conclusion. Specifically, the circuit court stated:

“The Board Members ... are ordered to provide major medical insurance benefits to John Boman and his wife as primary insurance through the insurance coverage provided the [Board].
“The insurance provided to John Bo-man will include all medical expenses incurred after John Boman became 65 years old.
“The Board Members shall approve all costs of medical treatment reasonably incurred by John Boman and his wife.
“The Board Members shall report back to the Court on the payment of John Boman’s medical bills within 14 days of this Order.
“In the event that a higher Court overturns the Court’s decision that the [Board] is responsible for medical benefits for John Boman and his wife, the City shall be responsible for providing medical benefit coverage for John Bo-man and his wife.”

On February 7, 2013, the circuit court entered an “order granting emergency relief,” in which the circuit court ordered the Board members to “process all of John Boman’s outstanding bills for medical services forthwith in accordance with the State plan,” based on its finding that Bo-man was not eligible for Medicare. The circuit court also ordered the Board members to continue Boman’s insurance coverage during any appeal that might be filed and to provide “prompt and full insurance coverage” for Boman under the State plan.

The February 7 order also granted Bo-man injunctive relief against Gadsden. The circuit court ordered Gadsden to pay Boman’s medical expenses and to provide coverage, including prescription coverage, to Boman in accordance with the retirement program Gadsden was using at the time Boman retired as a Gadsden police officer. The circuit court also found that Gadsden was responsible for making up the difference, if any, between Boman’s coverage under the State plan and coverage under the plan in place at the time Boman retired.

Gadsden and the Board members separately appealed the circuit court’s orders. Those appeals have been consolidated for the purpose of issuing one opinion.

Although the February 5 summary judgment adjudicated the claims raised by Boman against the Board members, it did not address all the claims against Gadsden, and it was not certified as final pursuant to Rule 54(b), Ala. R. Civ. P. “ ‘A nonfinal judgment will not support an appeal.’ ” Schlarb v. Lee, 955 So.2d 418, 420 (Ala.2006) (quoting Dzwonkowski v. Sonitrol of Mobile, Inc., 892 So.2d 354, 368 (Ala.2004)). However, the February 5 and February 7 orders award injunctive relief against the Board members and Gadsden, and the Board and Gadsden appeal those orders pursuant to Rule 4(a), Ala. R.App. P., which provides, in pertinent part, for an appeal from “any interlocutory order granting, continuing, modifying, refusing, or dissolving an injunction.” In Dawkins v. Walker, 794 So.2d 333, 335 (Ala.2001), this Court addressed a similar situation, involving a summary judgment that included an award of injunctive relief. It stated:

“At the outset, we note that this Court must consider this appeal as an appeal from an order granting injunctive relief. Such an order is appealable. See Rule 4(a)(1)(A), Ala.R.App.P., relating to the appeal of ‘any interlocutory order granting, continuing, modifying, refusing, or dissolving an injunction, or refusing to dissolve or to modify an injunction.’ Any noninjunctive aspect of this interlocutory ‘summary judgment’ would not be appealable. See Ala.Code 1975, § 12-22-2.
“An injunction is defined as ‘[a] court order commanding or preventing an action.’ Black’s Law Dictionary 788 (7th ed. 1999). Because the order at issue in this case directs the [board of directors] to take action, by ordering that ‘Walker be restored to the [board of directors] ... forthwith,’ we conclude that the order, though styled as a ‘partial summary judgment,’ was injunctive in nature.”

The February 5 order in this case was entered in response to a motion for a summary judgment as to “the issue of the State medical insurance being primary coverage for Boman.” That order, like the order in Dawkins, directs the Board members to take action, by ordering them “to provide major medical insurance benefits to John Boman and his wife,” to include in that coverage “all medical expenses incurred after John Boman became 65 years old,” to “approve the costs of medical treatment reasonably incurred by John Boman and his wife,” and to report back to the circuit court when the payment was complete. The February 5 order also instructed Gadsden to provide Boman’s medical-benefits coverage, in the event that the order regarding the Board members was overturned on appeal. Like the summary judgment in Dawkins, the February 5 order in this case was injunctive in nature and that order, although not a final judgment, and the February 7 order are ap-pealable pursuant to Rule 4(a).

The orders provide both permanent and preliminary injunctive relief. A permanent injunction is “[a]n injunction granted after a final hearing on the merits.” Black’s Law Dictionary 855 (9th ed. 2009), whereas a preliminary injunction is “[a] temporary injunction issued before or during trial to prevent an irreparable injury from occurring before the court has a chance to decide the case.” Id. The relief awarded in the February 5 order followed a hearing on Boman’s summary-judgment motion addressing the issue whether Bo-man was entitled to Medicare and, therefore, entitled to primary coverage under the State plan. Thus, the relief related to the Board members’ obligations under the State plan, i.e., directing the Board members to provide Boman and his wife major-medical insurance benefits, was in the nature of permanent injunctive relief.

“ ‘ “To be entitled to a permanent injunction, a plaintiff must demonstrate success on the merits, a substantial threat of irreparable injury if the injunction is not granted, that the threatened injury to the plaintiff outweighs the harm the injunction may cause the defendant, and that granting the injunction will not disserve the public interest.”
‘“TFT, Inc. v. Warning Sys., Inc., 751 So.2d 1238,1242 (Ala.1999), overruled on another point of law, Holiday Isle, LLC v. Adkins, 12 So.3d 1173 (Ala.2008). The entry of a permanent injunction is reviewed de novo....’”

Walden v. ES Capital, LLC, 89 So.3d 90, 105 (Ala.2011) (quoting Sycamore Mgmt. Grp., LLC v. Coosa Cable Co., 42 So.3d 90, 93 (Ala.2010)).

The Board members argue that “Boman cannot be successful on the merits in this case because he is not entitled to primary coverage under the terms of the [State] Plan.” Board members’ brief, at 27. The State plan provides, in pertinent part:

“Retired Employees
“Health benefits will be modified when you or your dependent becomes entitled to Medicare. Coverage under this plan will be reduced by those benefits payable under Medicare, Parts A and B.... “The [State plan] remains primary for retirees until the retiree is entitled to Medicare. Upon Medicare entitlement, the member’s coverage under the [State plan] will complement his/her Medicare Parts A and B coverages. Medicare will be the primary payer and the [State plan] will be the secondary payer. A Medicare retiree and/or Medicare dependent should have both Medicare Parts A and B to have adequate coverage with the [State plan].”

(Emphasis added.)

The Board members argue that “[t]he language of the applicable [State] Plan is unambiguous. Coverage under the Plan becomes secondary once an insured is ‘entitled to Medicare.’ ” Board members’ brief, at 17. Boman appears to agree that the State plan is unambiguous, arguing, however, that “[t]he [State] Plan clearly provides that benefits will be provided when the beneficiary becomes entitled to the benefit.” Boman’s brief, at 17. Bo-man goes on to argue that “[i]f the [State] Plan is ambiguous, the [State] Plan should be construed in favor of the insured against the insurer.” Id. The parties disagree, however, on the meaning of the phrase “entitled to Medicare” as that phrase is used in the State plan.

“‘Under general Alabama rules of contract interpretation, the intent of the contracting parties is discerned from the whole of the contract. Where there is no indication that the terms of the contract are used in a special or technical sense, they will be given their ordinary, plain, and natural meaning. If the court determines that the terms are unambiguous (susceptible of only one reasonable meaning), then the court will presume that the parties intended what they stated and will enforce the contract as written.’ ”

Shoney’s LLC v. MAC E., LLC, 27 So.3d 1216, 1222 (Ala.2009) (quoting Homes of Legend, Inc. v. McCollough, 776 So.2d 741, 746 (Ala.2000) (citations omitted)).

The State plan does not define the term “entitled” as that word is used in the State plan. However, there is no indication that the term is “used in a special or technical sense.” Shoney’s, 27 So.3d at 1222. Thus, “[it] will be given [its] ordinary, plain, and natural meaning.” Id. To “entitle” is “to furnish with proper grounds for seeking or claiming something.” Merriam-Webster’s Collegiate Dictionary 417 (11th ed. 2003). That definition is consistent with the definition in the federal Medicare regulations, which provides that “[e]ntitled means that an individual meets all the requirements for Medicare benefits.” 42 C.F.R. § 400.202.

The Board members argue:

“For purposes relevant to this case, there are two primary Medicare coverages — Part A (hospital insurance) and Part B (medical insurance). Individuals who have paid a sufficient amount of Medicare taxes while working are automatically enrolled in Part A and do not have to pay a monthly premium for Part A coverage. (C. 1081; 42 C.F.R. § 406.5, 406.6, 406.10.) This concept is generally referred to as premium-free Part A hospital insurance. Unlike Part A, there is no premium-free Part B. All participants in Part B must enroll and pay a premium....
“If an individual such as Boman, who has not participated in Social Security, is not entitled to premium-free Part A hospital insurance, he or she is still entitled to participate in Part A by simply enrolling and paying the applicable premium. (C. 1081-1084.) The only requirements for enrollment are that the individual be a U.S. citizen and resident who is 65 or older. 42 C.F.R. §§ 406.20 and 407.10....
“The requirements for Medicare Part A benefits are listed within 42 C.F.R. § 406.1, et seq. As specifically relevant to Boman, 42 C.F.R. § 406.20 lists the requirements for enrolling in Medicare Part A, premium hospital insurance.... [T]he regulation states that any individual may enroll for Medicare Part A if he or she: ‘(1) Has attained age 65; (2) Is a resident of the United States and is either — (i) a citizen of the United States; or (ii) an alien lawfully admitted for permanent residence ...; (3) Is not eligible for Part A benefits under [the premium-free provision]; and (4) Is entitled to supplementary medical insurance [under Part B of Medicare].’ 42 C.F.R. § 406.20. The requirements for receipt of Part B benefits likewise only require that an individual be 65 or older, be a resident of the U.S. and be a citizen or lawfully admitted alien. 42 C.F.R. § 407.10.
“There is no dispute in this case that Boman is a United States resident and citizen, who is age 65 or older. Therefore, pursuant to 42 C.F.R. §§ 406.20 and 407.10, he meets the requirements to enroll in Part A and Part B of Medicare and is thus ‘entitled’ to Medicare benefits as defined by 42 C.F.R. § 400.202. Because Boman is entitled to Medicare benefits, his health insurance coverage under the Plan is secondary to the coverage available to him under Medicare.”

Board members’ brief, at 22-25.

The Board members’ representation of the cited Medicare provisions and the requirements that must be met to access coverage under Parts A and B appears to be correct, and Boman provides no argument to the contrary. Instead, he argues that he is not eligible for Medicare because “he was never allowed to participate in Medicare by [Gadsden].” Boman’s brief, at 17. However, a failure to “participate in Medicare” or to pay Medicare taxes during employment does not cut off all access to Medicare. The Medicare regulations state that “[h]ospital benefits are available to most individuals age 65 or over and to certain individuals under age 65 who do not qualify for those benefits under subpart B of this part[, which addresses premium-free hospital coverage for, among others, those that paid Medicare taxes through their employer,] and are willing to pay a monthly premium.” 42 C.F.R. § 406.20. Boman has not argued that he falls outside the scope of “most individuals” who can get access to Medicare coverage, pursuant to the requirements of 42 C.F.R. §§ 406.20 and 407.10. As the Board members note in their brief, “the concept of eligibility for premium-free Medicare coverage differs significantly from the concept of entitlement to participate in the Medicare program.” Board members’ brief, at 22.

The plain language of the State plan provides that coverage under that plan becomes secondary when a retiree becomes “entitled to Medicare,” not when a retiree becomes “entitled to premium-free Medicare.” To adopt the construction advocated by Boman and applied by the circuit court, this Court would have to read an additional condition into the State plan. To do so is contrary to settled principles of Alabama law regarding the construction of contracts (i.e., when terms in a contract are unambiguous, “ ‘the court will presume that the parties intended what they stated and will enforce the contract as written,’ ” Shoney’s, 27 So.Sd at 1222 (quoting Homes of Legend, Inc. v. McCollough, 776 So.2d at 746), and ‘“[i]f there is no ambiguity, courts ... cannot defeat express provisions in a policy ... by making a new contract for the parties.’ ” Shrader v. Employers Mut. Cas. Co., 907 So.2d 1026, 1034 (Ala.2005) (quoting St. Paul Mercury Ins. Co. v. Chilton-Shelby Mental Health Ctr., 595 So.2d 1375,1377 (Ala.1992))).

Thus, we conclude that the circuit court erred in determining that Boman is not “entitled” to Medicare as that term is used in the State plan. Therefore, Boman has not demonstrated success on the merits as to that issue, and he was not entitled to the injunctive relief awarded against the Board members on that basis. The February 5 order also awarded injunctive relief to “[Boman’s] wife.” However, his wife is not a party to the underlying action, and no claims have been made or relief requested on her behalf in any of the pleadings filed in this case. No argument was made in the summary-judgment motion or at the hearing as to her entitlement to coverage under the State plan or as a result of any agreement with Gadsden. Thus, the circuit court erred in awarding her injunctive relief in the February 5 order.

The circuit court also awarded in-junctive relief against Gadsden in its February 5 order. The circuit court ordered:

“In the event that a higher Court overturns the [circuit] [cjourt’s decision that the [Board members] [are] responsible for medical benefits for John Bo-man and his wife, the City shall be responsible for providing medical benefit coverage for John Boman and his wife.”

This relief was awarded following the hearing on Boman’s motion for a summary judgment as to the issue of primary coverage under the State plan. However, there has been no final hearing on the merits as to Gadsden’s alleged obligations to Boman for medical benefits. Thus, a permanent injunction against Gadsden with regard to this issue would not be appropriate at this time, and, as will be demonstrated hereinafter, Boman has not met the requirements for preliminary injunctive relief against Gadsden, pursuant to Rule 65(c), Ala. R. Civ. P. Therefore, the circuit court erred in awarding alternative injunctive relief against Gadsden in the February 5 order.

The February 7 order also awarded preliminary injunctive relief against Gadsden. It provided, among other things, that Gadsden was responsible for providing Boman with benefits “in accordance with the medical benefits plan provided by [Gadsden] in effect ... [on] the date of John Boman’s retirement.” The circuit court also ordered Gadsden to make up the difference, if any, in the medical coverage provided under the State plan and the medical coverage allegedly provided by the plan that was in place at the time Boman retired and to provide Boman with prescription coverage.

Rule 65(c), Ala. R. Civ. P., provides:

“‘No restraining order or preliminary injunction shall issue except upon the giving of security by the applicant, in such sum as the court deems proper, for the payment of such costs, damages, and reasonable attorney fees as may be incurred or suffered by any party who is found to have been wrongfully enjoined or restrained; provided, however, no such security shall be required of the State of Alabama or of an officer or agency thereof, and provided further, in the discretion of the court, no such security may be required in domestic relations cases.”

This Court noted in Spinks v. Automation Personnel Services, Inc., 49 So.3d 186, 190 (Ala.2010), that “ ‘ “there are ... necessary exceptions to such an absolute holding ... under Rule 65(c) [that security must be given before a preliminary injunction can issue], such as requiring only a nominal security, or where the litigant is impecunious or the issue is one of overriding public concern.” ’ ” (Quoting Anders v. Fowler, 423 So.2d 838, 840 (Ala.1982), quoting in turn Lightsey v. Kensington Mortg. & Fin. Corp., 294 Ala. 281, 285, 315 So.2d 431, 434 (1975).) However, this Court went on to state:

“Alabama law ... clearly provides that ‘[i]t is mandatory that security be given under Rule 65(c), “unless the trial court makes a specific finding based upon competent evidence that one or more of the exceptions ... do exist.” ’ Anders, 423 So.2d at 840 (quoting Lightsey, 294 Ala. at 285, 315 So.2d at 434)

(emphasis added)....

“Here, the trial court issued a preliminary injunction without requiring [Automation Personnel Services, Inc.,] to give security as mandated by Rule 65(c), Ala. R. Civ. P. Furthermore, the trial court failed to make ‘a specific finding based upon competent evidence that one or more of the exceptions, stating them, do exist.’ Anders, 423 So.2d at 840. As noted, ‘there can be no injunction ... until the bond has been given.’ Anders, 423 So.2d at 840 (quoting Ex parte Miller, 129 Ala. [130] at 133, 30 So. [611] at 612 [ (1901) ], quoted with approval in Lightsey, 294 Ala. at 285, 315 So.2d at 434). Accordingly, ‘[u]nder the clear mandate of Rule 65(c), and the previous decisions of this court, we have no alternative but to reverse and remand.’ ”

Spinks, 49 So.3d at 191 (quoting Anders, 423 So.2d at 840).

Like the trial court in Spinks, the circuit court here issued preliminary injunctive relief against Gadsden without requiring Boman to give security and without making any specific finding that an exception to Rule 65(c) applied. Boman has made no argument to the contrary. Thus, as we did in Spinks, this Court has “no alternative but to reverse” the preliminary injunction issued against Gadsden and remand the cause.

For the foregoing reasons, we hold that the circuit court erred in awarding injunc-tive relief against the Board members and Gadsden. The circuit court’s orders are reversed in that regard, and the cause is remanded for further proceedings consistent with this opinion.

1120579 — REVERSED AND REMANDED.

STUART, BOLIN, PARKER, SHAW, MAIN, and WISE, JJ., concur.

MURDOCK, J., dissents.

MOORE, C.J., recuses himself.

1120633 — REVERSED AND REMANDED.

STUART, BOLIN, PARKER, MURDOCK, SHAW, MAIN, and WISE, JJ., concur.

MOORE, C.J., recuses himself.

MURDOCK, Justice

(concurring as to case no. 1120633 and dissenting as to case no. 1120579).

I concur in the reversal of the judgment of the trial court awarding injunctive relief against the Board members in case no. 1120633. As to case no. 1120579, in which this Court reverses the trial court’s judgment awarding injunctive relief in favor of Boman and against the City of Gadsden, I respectfully dissent. Unlike the majority, I believe that the trial court intended by its February 5, 2013, and February 7, 2013, orders to enter a final judgment providing permanent injunctive relief against the City of Gadsden. Furthermore, I see no basis in Gadsden’s brief to this Court for reversing the judgment against it; therefore, I would affirm that judgment.

      . On July 30, 2012, while the appeal was pending in Boman I the circuit court entered an order, holding Gadsden in contempt for failing to comply with the December 15 order, which the circuit court found had not been stayed, and instructing Gadsden to provide Boman with medical coverage as set forth in the December 15 order.

      . Gadsden’s responsibility to provide Boman with medical coverage, pursuant to the plan in place when Boman retired, has not been adjudicated on the merits. No hearing was held on Boman’s motion for emergency relief, and the summary judgment does not address the existence of an alleged contract between Boman and Gadsden or Gadsden’s alleged responsibility to provide ongoing medical coverage to Boman.

      . Boman and the circuit court frame the issue as whether Boman is "Medicare eligible" rather than "entitled to Medicare.” The relevant provisions of the State plan do not use the term "eligible” in reference to Medicare, and the Board members argue that the terms “entitled” and "eligible” are not synonymous. Addressing the alleged distinction between those two terms is not necessary to our resolution of the question of Boman's coverage under the State plan. However, for purposes of clarity, we will track the language of the State plan and address the issue in terms of whether Boman is “entitled to Medicare.”

      . The February 7 order also included injunc-tive relief against the Board members based on the circuit court’s finding that Boman was entitled to primary coverage under the State plan. Because we have determined that Bo-man is not entitled to such coverage, that part of the February 7 order awarding injunctive relief against the Board members is due to be reversed as well.


source: Caselaw Access Project

author: SHAW, Justice. MOORE, Chief Justice

license: Public Domain

text:
    Ex parte J.C., by and through his next friend, D.V. (In re J.C., by and through his next friend, D.V. v. Wanda Davidson et al.)
    1120500.
    Supreme Court of Alabama.
    Nov. 8, 2013.
    Robert D. Drummond, Jr., Fairhope, for petitioner.
    Submitted on petitioner’s brief only.

       Justice Bryan was a member of the Court of Civil Appeals when that court considered this case.

   SHAW, Justice.

WRIT DENIED. NO OPINION.

STUART, BOLIN, PARKER, MURDOCK, and MAIN, JJ., concur.

MOORE, C.J., and WISE, J., dissent.

BRYAN, J., recuses himself.

MOORE, Chief Justice

(dissenting).

I respectfully dissent from the Court’s decision to deny J.C.’s petition for the writ of certiorari. Three years ago, the Court of Civil Appeals, in considering another issue, noted that if the issue was whether “the Alabama [Department of Human Resources] and the Macon County [Department of Human Resources] acted lawfully in the manner in which [they] removed J.C. from the home of the foster parents, the answer would be a simple and resounding, ‘No.’ ” B.V. v. Davidson, 77 So.3d 1187, 1194 (Ala.Civ.App.2010) (a companion lawsuit brought by J.C.’s foster parents). It is undisputed here that the orders of the Macon County Department of Human Resources (“DHR”) regarding J.C.’s placement, services, foster-family contact, and foster-family visitation violated the Department of Human Resources’ own regulations and that, in issuing those orders, DHR exceeded its authority.

In this case, J.C. presents this Court with a material question of first impression: Whether a foster child can hold DHR employees personally liable in tort for making decisions that deviate from Department'of Human Resources’ regulations and policy. Because DHR’s actions toward J.C. furnish “special and important reasons for the issuance of the writ,” under Rule 39, Ala. R.App. P., I believe this Court should grant the writ and consider J.C.’s question of first impression.

I. The Facts

The facts, as J.C. presents them in his petition, are as follows. J.C. is an autistic, severely mentally retarded young man. His foster parents, B.V. and D.V., raised him from infancy until shortly before his 18th birthday. The defendants in the case are Karen Marks, a social worker and foster-parent supervisor for DHR; Teresa Momon, supervisor of DHR; Wanda Davidson, director of DHR; and Sharon Ficquette, general counsel for the Department of Human Resources.

In March 2007, Ficquette stated that “[J.C.] has been in that home for seventeen years and [B.V. and D.V. are] who[m] the child knows as his parents .... [T]he fact of the matter is that 24 hours a day [J.C.] is in this home and these are, in effect, his parents.” In mid-2007, Ficquette recommended to the Macon Juvenile Court that B.V. and D.V. receive legal custody of J.C. Nonetheless, on February 6, 2008, DHR workers decided to remove J.C. from his foster parents’ home and place him in a residential institution, The Learning Tree. J.C.’s individualized service plan (“ISP”) team did not recommend that he receive residential treatment before he was removed from his foster parents’ home. J.C. did not have an assessment, as required by Department of Human Resources’ policy, that recommended placement in a residential-care facility. DHR workers did not consult with J.C.’s medical or psychiatric providers before deciding to place him at The Learning Tree. J.C.’s guardian ad litem did not participate in the decision to remove J.C. from his foster parents’ home and to place him at The Learning Tree. The defendants did not inform J.C. ahead of time of their decision to remove him from his foster family, nor did they allow J.C. the opportunity to say good-bye to his foster parents or his siblings.

After J.C.’s removal, and despite repeated pleas by B.V. and D.V., the defendants did not allow B.V. and D.V. to see J.C. or to have any contact with J.C. for over 17 months. While J.C. was at The Learning Tree, he spontaneously responded to greetings with the words “Momma Daddy.” At The Learning Tree, J.C. was physically restrained and suffered severe emotional distress.

J.C. sued the defendants solely in their individual capacities. J.C. alleged that the defendants were negligent and wanton in deciding to change his placement with B.V. and D.V. and in how that change was effectuated. J.C. alleged that the defendants’ conduct of not allowing him to say good-bye to his foster family or to have visits or contact with them was outrageous. J.C. alleged that the defendants were negligent and wanton in failing to afford him an opportunity to visit with and to maintain contact with his foster parents.

The trial court entered a summary judgment for the defendants. J.C. appealed, and the Court of Civil Appeals affirmed the decision of the trial court, without an opinion. J.C. v. Davidson (No. 2111026, January 11, 2013), — So.3d—(Ala.Civ.App.2013) (table).

II. Applicable Department of Human Resources’ Regulations

J.C. alleged that his placement at The Learning Tree violated several administrative regulations that govern DHR’s selection of appropriate foster-care resources.

“When substitute care becomes necessary, children should be placed in the least restrictive setting possible. This means the most family-like setting that can provide the environment and services needed to serve the child’s best interests and special needs. In substitute care, relative placement should always be given first consideration after which Foster Family Care, Group Home Care, and Institutional Care are to be considered in that order. If the Department [of Human Resources] places children in foster family homes/unrelated homes, group homes and child care institutions, these placement resources are required to be in approved/licensed status except as otherwise ordered by a court of law.”

Reg. 660-5-28-.05, Ala. Admin. Code (Dep’t of Human Res.). A foster child’s case plan must include a “justification of the appropriateness of the placement as whether it is ... in the least restrictive (or family-like) setting available, relative placement to be given first consideration, after which foster family care, group home care, and institutional care are to be considered, in that order.” Reg. 660-5-28-.06(b)(1), Ala. Admin. Code.

J.C. also alleged that DHR’s placement decision violated his right as a foster child to visit with friends, which includes adults and children and others with whom the foster child has a significant bond.

“The child in foster care has the right to visit with parents, other family members, and friends unless visiting places the child’s safety at risk; substantially inhibits attainment of the goals of the safety plan or the permanency goal of the ISP; or subjects the child to intimidation regarding investigative statements or court testimony. An ISP need not be in place for visits to occur. Visits will begin immediately upon placement unless restrictions are imposed. Visits with parents or others may not be used as rewards or punishment. Visits are to take place in the most normalized, family-like setting that meets the child’s need for safety.”

Reg. 660-5-50-06(1), Ala. Admin. Code. The regulation continues:

“Visiting is needed to maintain and strengthen family and other attachments. Visiting is also a right of the child and family. Thus the ISP will identify visiting as a step needed to maintain and/or strengthen attachments to parents, other family members, and friends; and the ISP will identify steps needed to permit visiting that is desired by the child and family.”

Reg. 660-5-50-.06(l)(a)(emphasis added). Regulation 660-5-50-.03(7), Ala. Admin. Code, defines “friend” as “[a] person other than a family member with whom the child has a significant attachment. Friends include both adults and children, such as former foster parents and children from previous foster care placements.”

J.C. also alleged that the defendants’ decision to remove him from his foster parents’ house violated regulations of the Department of Human Resources regarding his ISP. The Administrative Code provides:

“ISPs shall be developed, reviewed, and revised in partnership with the age-appropriate children, their parents, service providers, and other members of the child and family planning team; and be based on underlying conditions related to identified safety threats and risks.”

Reg. 660-5-47-05(1), Ala. Admin. Code. The regulation states that “ISPs will be reviewed and needed revisions made ... when changes in family members’ circumstances warrant review and possible revision; [and] prior to the decision to remove a child from home.” Reg. 660-5-47-.05(5)(b), Ala. Admin. Code. The Department of Human Resources’ regulations define “emergency situation” as “[a] situation where the child is at imminent risk of serious harm and action to protect the child must be taken before a child and family planning team can be convened to develop an ISP.” Reg. 660-5-47-.02(10), Ala. Admin. Code. Foster-care parents are part of the foster child’s family-planning team:

“The individuals involved in planning and/or delivery of services for a child and family. The team shall include the age-appropriate child, the parent(s), others requested by the child or family, the [Department of Human Resources] worker(s), the foster care provider and other service providers if any. Their work product is known as the individualized service plan (ISP).”

Reg. 660-5^47-02(4), Ala. Admin. Code.

III. Alabama Precedent

A review of Alabama’s reported cases indicates that the question J.C. presents is indeed one of first impression for Alabama’s appellate courts. Neither this Court nor the Court of Civil Appeals has had occasion to address the tort claims brought by a foster child against Department of Human Resources workers for making placement decisions that deviate from Department of Human Resources’ regulations and policy. Under prior Alabama law, Department of Human Resources workers would have been entitled to limited parental immunity for a negligence action filed by a foster child. In Mitchell v. Davis, 598 So.2d 801 (Ala.1992), this Court held that both foster parents and Department of Human Resources workers may assert the parental-immunity doctrine as a defense to simple negligence claims brought by foster children. The Mitchell Court explained:

“Foster parents differ from natural parents and others who stand in loco par-entis, because there is no relationship by blood, marriage, or adoption. Foster parents are selected and approved by [the Department of Human Resources]. Foster care is temporary and is based upon a contract with the state. Foster children can be transferred at any time, and the foster home must be monitored by [the Department of Human Resources], Foster parents are paid a supplement for necessities of the foster children. Therefore, this Court considers it necessary to limit the parental immunity doctrine to claims of simple negligence as it relates to foster parents.
“The parental immunity doctrine should also be available, in a qualified form, to the commissioner, the [Barbour County Department of Human Resources], the [Barbour County Department of Human Resources] director, and the case supervisor charged with the care and custody of foster children. That is, they also should be able to assert the parental immunity doctrine as a defense to claims of simple negligence by foster children. Alabama has already concluded that [the Department of Human Resources] stands in loco paren-tis to children of unfit parents.”

Id. at 805.

In 2010, the Court of Civil Appeals reasoned that Mitchell and prior cases suggested that, “so long as a state agency retains legal custody of a child, employees of that agency may lawfully remove the child without notifying a foster parent.” B.V. v. Davidson, 77 So.3d at 1192. However, the Court of Civil Appeals noted that our decision in Mitchell predated Alabama’s Foster Parents’ Bill of Rights, found in § 38-12A-2, Ala.Code 1975, and also the promulgation of the Department of Human Resources’ administrative regulations.

“Those provisions do not alter the rule that a state agency with legal custody of a child may always remove the child from a foster home when it determines removal to be in the child’s best interest; however, it alters the manner in which that decision is to be made and how the removal is to be carried out.”

77 So.3d at 1193 (emphasis added).

Thus, Mitchell’s parental-immunity doctrine as applied to Department of Human Resources workers would not bar J.C.’s tort claims because the promulgation of the Department of Human Resources’ foster-care administrative regulations have altered the manner in which decisions to remove a child from a foster home may be made and carried out.

In Gowens v. Tys. S., 948 So.2d 513 (Ala.2006), this Court held that a Department of Human Resources worker was not entitled to State-agent immunity from a child’s negligence claim where the worker did not comply with a fundamental mandate in the Department of Human Resources Family and Children’s Services Manual. Id. at 527. Likewise, on J.C.’s negligence claims, there is at least a fact question as to whether the defendants would be entitled to State-agent immunity-under Ex parte Cranman, 792 So.2d 392 (Ala.2000), when they did not comply with the Department of Human Resources’ administrative regulations and policies regarding J.C.’s placement at The Learning Tree.

TV. Judicial Condemnation of DHR’s Actions

As noted above, in B.V. the Court of Civil Appeals stated that if the issue before it was “whether the Alabama [Department of Human Resources] and the Macon County [Department of Human Resources] acted lawfully in the manner in which [they] removed J.C. from the home of the foster parents, the answer would be a simple and resounding, ‘No.’ ” B.V., 77 So.3d at 1194. The court further held in B.V.:

“Applying current Alabama law and the Alabama [Department of Human Resources’] regulations to the facts of the case, when viewed in a light most favorable to the foster parents, it appears that violations of both the Foster Parents’ Bill of Rights and the Alabama [Department of Human Resources’] regulations attended the removal of J.C. from the home of the foster parents.”

77 So.3d at 1193. The court further opined:

“It should have been obvious to any person concerned that the summary removal of J.C. from the foster parents’ home would be felt by the foster parents as strongly as would the summary removal of their own natural children, which Brannon,[] Marks, and Davidson all at least implicitly acknowledged would cause any rational person extreme emotional distress.”

77 So.3d at 1194-95. It further stated:

“For a state agency whose main function involves supervising and coordinating intimate human relations, the decision to rip from the foster parents a child to whom they had undoubtedly devoted their love and attention for many years, without even allowing for a proper goodbye, appears especially and unnecessarily callous.”

77 So.3d at 1195. Then Judge Bryan concurred specially in B.V., and wrote:

“I recognize that the Alabama [Department of Human Resources] is charged with an extremely difficult task - protecting children throughout the State with finite resources, both financial and human. However, that is no excuse for how the foster parents were treated in this case. It is hard to believe how anyone could have imagined that the disruption caused by J.C.’s transfer would be minimized by informing the foster parents in the manner chosen. The only positive aspect of this case is that, hopefully, [the Department of Human Resources] will never proceed in like manner again.”

77 So.3d at 1195 (Bryan, J., concurring specially).

In 2011, this Court granted B.V.’s petition for the writ of certiorari to review the record for evidence indicating that the defendants acted intentionally or recklessly. However, the Court thereafter quashed the writ because it found there was no evidence indicating that the defendants had acted intentionally or recklessly as to the foster parents. See Ex parte B.V., 77 So.3d 1195 (Ala.2011). Justice Murdock concurred specially and wrote, in which writing Justice Wise concurred:

“I was shocked and saddened by the apparently callous and cruel manner (whether or not done on advice of counsel) in which the 18-year-old mentally retarded child in this case was so suddenly taken from the only parents he had ever known, parents who had raised him for almost his entire life.”

77 So.3d 1196 (Murdock, J., concurring specially).

I agree with the sentiments of now Justice Bryan and Justice Murdock. The unlawful removal of a foster child from his foster parents’ home where he lived for the previous 17 years is wanton, extreme, and outrageous. No reasonable person could be expected to endure what J.C. has endured.

V. Conclusion

I believe that J.C. has sufficiently pleaded a material question of first impression that gives this Court the opportunity to address J.C.’s tort claims against the defendants for making foster-care-placement decisions in violation of Department of Human Resources’ regulations and policy. Moreover, I believe that the defendants’ egregious violations of the Department of Human Resources’ regulations and policies as to J.C.’s placement at The Learning Tree furnish special and important reasons for the issuance of the writ of certiorari for this case. I therefore dissent.

WISE, J., concurs.

      . The facts are unclear whether the siblings are J.C.'s foster siblings.

      . Alabama adopted Regs. 660-5-28-.05 and .06, Ala. Admin. Code, pursuant to the federal Adoption Assistance and Child Welfare Act of 1980 ("AACWA”), 42 U.S.C. § 670 et seq. The AACWA made sums of money available to the states to provide foster care for children, which would be made available once a state adopted an AACWA-compliant plan.

      . Clay Brannon was an appellee in B.V.; he is not a party to the action underlying this appeal.


author: PARKER, Justice. MOORE, Chief Justice STUART, Justice BRYAN, Justice

text:
    ALABAMA POWERSPORT AUCTION, LLC v. James WIESE, as father of Matthew Hunter Wiese, a minor, deceased.
    1120007.
    Supreme Court of Alabama.
    Nov. 8, 2013.

      Nickolas J. Steles, Tuscumbia, for appellant.
    Harvey B. Morris, David J. Hodge, and Joseph D. Aiello, of Morris, King & Hodge, Huntsville, for appellee.
   PARKER, Justice.

Alabama Powersport Auction, LLC (“APA”), filed a permissive appeal, pursuant to Rule 5, Aa. R.App. P., from an order of the Limestone Circuit Court denying APA’s motion for a summary judgment in an action filed by James Wiese, as father of Matthew Hunter Wiese (“Matthew”), a minor, deceased, against APA. We affirm the circuit court’s judgment in part, reverse it in part, and remand the cause for proceedings consistent with this opinion.

Facts and Procedural History

The facts are undisputed. In 2005, APA began operating a public auction in Limestone County. APA auctioned various consumer goods including, but not limited to, go-carts; APA regularly auctioned motorcycles and golf carts, among other recreational vehicles. In fact, the word “Powersport” in APA’s name was because “the main things that [APA] sold were four-wheelers, boats, motorcycles, that type of thing.” Generally, all the goods APA sold were on consignment to APA from the owners of the goods; the owners of the goods agreed to pay APA a commission of 10% to 15% of the price APA was able to acquire at auction from a purchaser of the goods.

In the summer of 2005, FF Acquisition Corp., d/b/a Flexible Flyer (“FF Acquisition”), consigned several go-carts to APA to sell at auction. Wiese regularly attended auctions conducted by APA and testified during his deposition that APA regularly auctioned go-carts; one of Wiese’s coworkers had purchased a go-cart at an APA auction. On August 27, 2005, Wiese attended an auction held by APA and purchased a “Yerf Dog Go-Cart,” Model 3206 (“the go-cart”), for his two minor sons. The go-cart was on consignment to APA from FF Acquisition; however, Wiese was not aware that FF Acquisition had manufactured the go-cart.

Soon after purchasing the go-cart, Wiese discovered that the engine would not operate for more than a few minutes at a time. After several failed attempts to repair the go-cart, Wiese stored the go-cart in his garage for almost two years. In September 2007, Wiese repaired the go-cart. On September 17, 2007, Matthew was riding the go-cart and had an accident in which Matthew hit his head on the ground causing a brain injury that resulted in his death on March 6, 2010.

On August 19, 2010, Wiese filed a wrongful-death action against APA. Wiese’s complaint contained one count entitled “wrongful death/breach of warranty.” Wiese alleged that he brought his claim “pursuant to Alabama’s Wrongful Death Act, Alabama Code [1975,] §§ 6-5-391 and 6-5-410 et seq.” Wiese also alleged that APA “impliedly warranted that said product was fit for its intended use as a recreational ‘Fun-Kart’ off-road vehicle, pursuant to the Code of Alabama, 1975, § 7-2-315; and further impliedly warranted that said product was merchantable pursuant to the Code of Alabama, 1975, § 7-2-314.” Further, Wiese alleged that the go-cart “failed, and [APA] breached [its] said implied warranties in that [the go-cart] was not fit for its intended use and/or was not merchantable.” APA answered the complaint.

On June 11, 2012, APA filed a motion for a summary judgment. In its summary-judgment motion, APA argued that, under Geohagan v. General Motors Corp., 291 Ala. 167, 279 So.2d 436 (1973), ‘Wiese cannot maintain an action for wrongful death based on breach of an implied warranty.” APA also argued that Wiese could not maintain his claim of breach of the implied warranty of merchantability against APA “because [APA] was not a seller or a merchant as required by Alabama’s version of the Uniform Commercial Code.” Lastly, APA argued that Wiese could not maintain his claim of “breach of the implied warranty of fitness for a particular purpose” against APA “because [APA] was not a seller, and because Wiese did not rely on [APA’s] knowledge or skill when purchasing the go-cart.”

On July 31, 2012, Wiese filed a response to APA’s summary-judgment motion. Wiese argued that he could base his wrongful-death action on the alleged breach of an implied warranty because, Wiese alleged, Geohagan had been overruled by this Court in Sledge v. IC Corp., 47 So.3d 243 (Ala.2010). In the alternative, Wiese alleged that he had “stated a claim for compensatory damages for breach of warranty to recover for the compensatory damages suffered by the decedent, Matthew Wiese, between the date of his injury and his death, pursuant to Benefield v. Aquaslide ‘N’ Dive Corp., 406 So.2d 873 (Ala.1981).” Wiese also alleged that he could “maintain a claim [of] breach of merchantability because [APA] was a seller with a non-disclosed principal and a merchant with respect to the go-kart.” Wiese also agreed that APA’s summary-judgment motion was “due to be granted, in part, as to any claims premised on a breach of implied warranty for a particular purpose.”

On August 8, 2012, the circuit court held a hearing on APA’s summary-judgment motion. At the summary-judgment hearing, Wiese requested leave to file an amended complaint, which the circuit court granted. On August 9, 2012, Wiese filed his amended complaint, reasserting his wrongful-death claim based upon APA’s alleged “breach of the implied warranty of merchantability under § 7-2-314[, Ala. Code 1975].” Wiese also asserted a claim of breach of the implied warranty of merchantability independent of his wrongful-death claim; Wiese requested compensatory damages for APA’s alleged breach.

On September 21, 2012, the circuit court denied APA’s summary-judgment motion, stating:

“Before the court is the motion for summary judgment pursuant to Rule 56 of the Alabama Rules of Civil Procedure filed by [APA]. This court heard the oral arguments of the parties on August 8, 2012. At the hearing, the court granted [Wiese] leave to amend his complaint, and [Wiese] filed an amended complaint, which this court has considered. The court holds that a breach of warranty claim can be maintained under Alabama’s wrongful death statute. The court further holds that [Wiese] has a maintainable breach of implied warranty of merchantability claim under pursuant to Benefield v. Aquaslide N’ Dive Corp., 406 So.2d 873 (Ala.1981). [Wiese’s] amended complaint does not assert a claim for breach [of] the implied warranty for a particular purpose, and this part of [APA’s] motion is therefore moot.
“The court having considered the motion of [APA] for summary judgment, upon pleadings, evidentiary submissions, briefs of authority, and the oral arguments of counsel; it is,
“Ordered, adjudged and decreed that [APA’s] motion for a summary judgment is denied.”

On that same day, the circuit court granted APA permission to appeal the circuit court’s denial of APA’s summary-judgment motion pursuant to Rule 5, Ala. R.App. P. Pursuant to Rule 5, APA then filed a petition for permission to appeal with this Court, which this Court granted.

Discussion

In the petition for a permissive appeal, the party seeking to appeal must include a certification by the trial court that the interlocutory order involves a controlling question of law, and the trial court must include in the certification a statement of the controlling question of law. Rule 5(a), Ala. R.App. P. In conducting our de novo review of the question presented on a permissive appeal, “this Court will not expand its review ... beyond the question of law stated by the trial court. Any such expansion would usurp the responsibility entrusted to the trial court by Rule 5(a).” BE & K, Inc. v. Baker, 875 So.2d 1185, 1189 (Ala.2003). Therefore, the only issues before this Court are the controlling questions of law identified by the circuit court in its certification, which are set forth below.

I.

The circuit court certified the first controlling question of law presented by the permissive appeal, as follows:

“[W]hether a breach of warranty claim cannot be maintained under Alabama’s wrongful death statute pursuant to Geohagan v. General Motors Corp., [291 Ala. 167,] 279 So.2d 436 (Ala.1973); or whether this Court is correct that Geohagan was overruled by Sledge v. IC Corporation, 47 So.3d 243 (Ala.2010).”

We answer the second part of this question in the negative: Sledge does not overrule Geohagan and a breach-of-warranty claim cannot be maintained under Alabama’s wrongful-death statute. In Geoha-gan, this Court held that “no contractual cause of action for wrongful death is created by our Uniform Commercial Code arising from a breach of warranty, and that actions for wrongful death can arise in this state and be processed only under our wrongful death acts.” 291 Ala. at 172, 279 So.2d at 440. In so reaching this conclusion, this Court explained:

“So far as can be determined from a reading of our Uniform Commercial Code, there is not one word, sentence, paragraph, clause, or section which in anywise even suggests that for the breach of an express or implied warranty in a contract any person is given a right to maintain an action for a wrongful death. On the other hand, the precision with which the legislature has defined the purpose and policy of the act, limiting the same to commercial transactions, clearly demonstrates that it was not the intent of the legislature in enacting the Uniform Commercial Code to create a wrongful death action in case of a breach of warranty of the contract involved.”

291 Ala. at 171, 279 So.2d at 439.

In Sledge, the case the circuit court incorrectly determined overruled Geohagan, we dismissed the appeal of a personal representative of an estate as being from a nonfinal judgment. The personal representative represented the estate of a minor who had died as the result of injuries she sustained from a vehicular accident that involved a school bus in which she was riding. The personal representative sued numerous parties, including IC Corporation (“IC”) and International Truck and Engine Corporation (“ITEC”), the companies responsible for the design, manufacture, and distribution of the school bus. The personal representative’s complaint sought damages “under various theories of negligence, breach of warranty, products liability, and violation of the Alabama Extended Manufacturer’s Liability Doctrine (‘AEMLD’). [The personal representative] specifically sought damages for [the minor’s] wrongful death.” Sledge, 47 So.3d at 245. IC and ITEC

“filed a joint motion for a partial summary judgment as to all counts alleging that the school bus was defective and/or dangerous because of the lack of seat belts for passengers, arguing that those counts were legislatively preempted as a cause of action by § 16-27-6, Ala.Code 1975,[] as interpreted by this Court in Dentson v. Eddins & Lee Bus Sales, Inc., 491 So.2d 942 (Ala.1986).”

47 So.3d at 245. The trial court

“entered a partial summary judgment in favor of IC and ITEC “with respect to any claim, either in tort or contract, alleging that the school bus was defective or in breach of warranty due to its failure to provide seatbelts for passengers,’ including ‘any ancillary claims arising out of such defect theory such as failure to warn of the lack of passenger seatbelts and the like.’ The trial court expressly stated that its decision ‘[did] not affect any of the other pending claims of product defect [asserted] by [the] [plaintiffs against [IC and ITEC].’

The trial court certified the judgment as final pursuant to Rule 54(b), Ala. R. Civ. P.”

Id. The personal representative appealed.

As a threshold matter, this Court had to determine whether the trial court’s Rule 54(b), Ala. R. Civ. P., certification was valid. After setting forth pertinent rules of law, this Court held, as follows:

“The complaint alleges several different counts against ITEC and IC, including products liability (count VIII), negligence and/or wanton conduct (count IX), violation of the AEMLD (count X), and breach of warranty (count XI). However, those counts are not separate claims. Instead, [the personal representative] can maintain an action against ITEC and IC only under Ala.Code 1975, § 6-5-410, for wrongful death, which she specifically alleged in count XV of the complaint. Alabama Power Co. v. White, 377 So.2d 930, 933 (Ala.1979) (‘[I]n Alabama there is but one cause of action for wrongful death, i.e., [Ala.] Code 1975, § 6-5-410.’); see also Carter v. City of Birmingham, 444 So.2d 373, 375 (Ala.1983) (noting that ‘under Alabama law only a wrongful death action may be maintained, and only punitive damages are recoverable’). Counts VIII through XI in this case cannot be maintained by [the personal representative] outside a wrongful-death action under § 6-5-410, Ala.Code 1975; instead, those counts are “‘mere variations of legal theory” ’ underlying [the personal representative’s] single wrongful-death claim, Scrushy [ v. Tucker, 955 So.2d 988 (Ala.2006) ] (quoting Steams v. Consolidated Mgmt., Inc., 747 F.2d 1105, 1109 (7th Cir.1984)), and [the personal representative] can recover only one set of damages for all. Trott v. Brinks, Inc., 972 So.2d 81, 84 (Ala.2007) (noting that, in a wrongful-death action, ‘the only recoverable damages are punitive damages’).
“The trial court certified as final its judgment in favor of IC and ITEC as to all allegations related to the lack of passenger seat belts on the school bus. Count IX of the complaint makes allegations of negligence and wantonness based on a failure to provide adequate safety and protection measures. Given the plaintiffs’ explanation that the school bus was defective because it lacked seat belts, the trial court’s partial summary judgment appears to have disposed of that count in full. Similarly, count X seeks damages under the AEMLD based on the lack of adequate safety features that, again, would suggest that that count relates solely to the lack of passenger restraints. Thus, those two counts appear to be wholly adjudicated by the trial court’s partial summary judgment.
“Two other counts, however, appear to remain pending in part. Specifically, count VIII alleges 11 separate defects in the school bus. Of those, some dealt with alleged defects unrelated to the lack of passenger seat belts. Count XI alleges a breach of the implied warranty of suitability and references the dangerous, unsafe, and/or defective condition of the ‘component parts’ of the bus. Those counts — for the most part — allege defects unrelated to the lack of passenger seat belts and survived the trial court’s summary judgment. Thus, portions of [the personal representative’s] original wrongful-death action against ITEC and IC remain pending in the trial court.
“Although counts IX and X appear to be wholly adjudicated, Rule 54(b) does not authorize the entry of final judgment on parts of a claim — here, [the personal representative’s] wrongful-death claim. Haynes v. Alfa Fin. Corp., 730 So.2d 178, 181 (Ala.1999) (‘for a Rule 54(b) certification of finality to be effective, it must fully adjudicate at least one claim or fully dispose of the claims as they relate to at least one part/); Precision American Corp. v. Leasing Serv. Corp., 505 So.2d 380, 381 (Ala.1987) (‘Rule 54(b) does not authorize the entry of final judgment on part of a single claim.’ (citing Tolson v. United States, 732 F.2d 998, 999 (D.C.Cir.1984))). Because the trial court’s partial summary judgment did not ‘direct the entry of a final judgment as to one or more but fewer than all of the claims or parties,’ i.e., because it did not enter a judgment on Sledge’s wrongful-death claim, certification is not available under Rule 54(b); this appeal is thus from a nonfinal judgment and is due to be dismissed.
We see nothing in the arguments before us indicating that [the personal representative] is also seeking damages of the nature found in Benefield v. Aquaslide ‘N’ Dive Corp., 406 So.2d 873 (Ala.1981) (in which the plaintiff sought compensatory damages for breach of warranty to recover for the pain and medical expenses suffered by the decedent between the date of his injury and his death).”

47 So.3d at 247-48 (some footnotes omitted). The only issue decided by this Court in Sledge was that the personal representative’s appeal was from a nonfinal judgment.

In the present case, Wiese argues that, in Sledge, “the Alabama Supreme Court held that a wrongful[-]death claim may be maintained based upon a breach of warranty theory, which overruled Geohagan.” Wiese’s brief, at p. 12. Wiese further argues that

“[t]he plaintiffs complaint [in Sledge] alleged several different counts including violation of AEMLD, breach of implied warranty and wrongful death. The Supreme Court held that the separate counts for AEMLD, breach of implied warranty and the other claims should be construed to state a wrongful death claim. The Court held that those counts were ‘mere variations of legal theory’ underlying [the personal representative’s] single wrongful-death claim. Sledge v. IC Corp., 47 So.3d 243, 247 (Ala.2010) (internal citations omitted).”

Id. at p. 13.

Wiese — and the circuit court — have misread this Court’s holding in Sledge. As set forth above, this Court in Sledge had to address initially whether the trial court had properly certified its partial summary judgment as a final judgment pursuant to Rule 54(b). This Court in Sledge determined only that certification of the trial court’s partial summary judgment under Rule 54(b) was not available because the trial court had not ruled on the personal representative’s wrongful-death claim; it was not necessary for this Court to overrule Geohagan to reach its conclusion. In so holding, this Court merely noted that the personal representative’s breach-of-warranty claim was still pending in the trial court. Although this Court relied upon the fact that the Sledge plaintiffs breach-of-warranty claim — along with another of the plaintiffs claims — was still pending, this Court did not hold in Sledge that a breach-of-warranty claim could actually support a wrongful-death claim. The issue whether a contractual cause of action for wrongful death is created by Alabama’s version of the Uniform Commercial Code (“UCC”) arising from a breach-of-warranty issue was not before the Court in Sledge; the Sledge Court was not asked to overrule Geohagan; and the Sledge Court did not even cite Geohagan.

Based on the foregoing, we answer the circuit court’s first controlling question of law in the negative; Geohagan was not overruled by Sledge and a breach-of-warranty claim cannot be maintained under Alabama’s wrongful-death statute. APA has demonstrated that the circuit court erred in denying its motion for a summary judgment on this issue. Therefore, we reverse the circuit court’s judgment denying APA’s summary-judgment motion insofar as the circuit court held that “a breach of warranty claim can be maintained under Alabama’s wrongful death statute” and remand the cause to the circuit court. On remand, the circuit court is to dismiss Wiese’s wrongful-death claim.

II.

We now turn to the circuit court’s second controlling question of law, which the circuit court set forth, as follows:

“[W]hether [Wiese’s] breach of implied warranty of merchantability claim under ... Benefield v. Aquaslide 'N' Dive Corp., 406 So.2d 873 (Ala.l981),[] cannot be maintained against [APA] because [APA] was not a seller or merchant as required by Alabama’s version of the Uniform Commercial Code; or whether this court is correct that Bradford v. Northwest Alabama Livestock Ass’n, 379 So.2d 609, 611 (Ala.Civ.App.1980), is controlling and every sale of goods, including a sale by auction, includes an implied warranty of merchantability if the seller is a merchant with respect to the goods of that kind.”

It is not clear from the wording of the question exactly what controlling question of law the circuit court would have this Court answer; thus, we will re-frame the question. In reframing the above question, however, we are mindful that this Court is to provide a de novo review of the controlling question of law presented by the circuit court, and, as noted above, “this Court will not expand its review on permissive appeal beyond the question of law stated by the trial court. Any such expansion would usurp the responsibility entrusted to the trial court by Rule 5(a).” Baker, 875 So.2d at 1189. Therefore, in refraining the controlling question of law, we are cautious not to expand our review beyond the question of law stated by the circuit court. With these considerations in mind, we reframe the circuit court’s controlling question of law as follows:

Whether an auctioneer selling consigned goods on behalf of a seller may be held liable under Alabama’s version of the Uniform Commercial Code as a merchant-seller for a breach of an implied warranty of merchantability.

We answer this question in the affirmative.

In Ex parte General Motors Corp., 769 So.2d 903, 911-12 (Ala.1999), this Court set forth the following concerning the implied warranty of merchantability:

“The implied warranty of merchantability is found in § 7-2-314(1), Ala.Code 1975, which provides:
“‘Unless excluded or modified (Section 7-2-316), a warranty that the goods shall be merchantable is implied in a contract for their sale if the seller is a merchant with respect to goods of that kind.’
“Subsection (2)(c) of that Code section provides that to be considered merchantable, goods must be ‘fit for the ordinary purposes for which such goods are used.’ As the Court of Civil Appeals held, ‘[t]o establish his claim of breach of the implied warranty of merchantability, [the plaintiff] must “ ‘prove the existence of the implied warranty, a breach of that warranty, and damages proximately resulting from that breach.’ ” ’ [Tucker v. General Motors Corp.,] 769 So.2d [895,] 901 [ (Ala.Civ.App.1998) ] (quoting Barrington Corp. v. Patrick Lumber Co., 447 So.2d 785, 787 (Ala.Civ.App.1984), quoting, in turn, Storey v. Day Heating and Air Conditioning Co., 56 Ala.App. 81, 88, 319 So.2d 279, 280 (1975)).”

An implied warranty of merchantability exists only if there is a “seller,” as that term is defined in § 7-2-103, Ala.Code 1975, who is a “merchant with respect to goods of that kind.” § 7-2-314(1), Ala. Code 1975. Section 7-2-103(l)(d) defines a “seller” as “a person who sells or contracts to sell goods”; § 7-2-104(1), Ala. Code 1975, defines “merchant” as follows:

“ ‘Merchant’ means a person who deals in goods of the kind or otherwise by his occupation holds himself out as having knowledge or skill peculiar to the practices or goods involved in the transaction or to whom such knowledge or skill may be attributed by his employment of an agent or broker or other intermediary who by his occupation holds himself out as having such knowledge or skill.”

It is well settled that under Alabama law an auctioneer may be considered a merchant under Alabama’s version of the UCC. See Bradford v. Northwest Alabama Livestock Ass’n, 379 So.2d 609, 611 (Ala.Civ.App.1980) (holding that a livestock auctioneer was a merchant because it “was in the business of selling cattle to prospective buyers and had been so engaged for a number of years and held itself out as having the knowledge and skill to conduct such sales”). However, the parties have not directed this Court’s attention to any Alabama precedent concerning whether an auctioneer selling goods on behalf of a consignor — and, thus, not holding title to the goods being sold, see Bischoff v. Thomasson, 400 So.2d 359 (Ala.l981)(not-ing that a consignee does not hold title to the goods consigned to it by a consignor; title passes from the consignor to the buyer) — may be considered a seller under Alabama’s version of the UCC and held liable as a merchant-seller for a breach of an implied warranty of merchantability.

This very issue was considered by the United States Court of Appeals for the Tenth Circuit in Powers v. Coffeyville Livestock Sales Co., 665 F.2d 311 (10th Cir.1981). In Powers, Jack and Rita Powers, owners of a livestock auction, purchased several hundred head of cattle at a livestock auction conducted by Coffeyville Livestock Sales Co., Inc. (“Coffeyville”). The Powerses then sold some of the cattle at an auction they conducted. The buyer later brought a civil action against the Powerses, alleging that the cattle he had purchased were diseased and dying. The buyer’s lawsuit against the Powerses resulted in a $38,360 judgment against the Powerses based upon the breach of an implied warranty of merchantability. The Powerses then sought indemnification from Coffeyville in the federal district court. The federal district court concluded “that Coffeyville never held title to the cattle claimed to be unmerchantable ‘and consequently cannot be liable as a “seller” under any implied warranty theory.’ ” 665 F.2d at 312. The Powerses appealed.

The question before the Tenth Circuit Court of Appeals was whether, under Kansas law, an auctioneer can be held liable as a merchant-seller for purposes of § 84-2-314, Kan. Stat. Ann., which is identical to § 7-2-314, Ala.Code 1975, and which states, in pertinent part:

“(1) Unless excluded or modified (section 84-2-316), a warranty that the goods shall be merchantable is implied in a contract for their sale if the seller is a merchant with respect to goods of that kind. Under this section the serving for value of food or drink to be consumed either on the premises or elsewhere is a sale.”

The Tenth Circuit Court of Appeals determined that Coffeyville was a merchant under § 84-2-104, Kan. Stat. Ann., which is identical to § 7-2-104, Ala.Code 1975, and which states, in pertinent part:

“(1) ‘Merchant’ means a person who deals in goods of the kind or otherwise by the person’s occupation holds oneself out as having knowledge or skill peculiar to the practices or goods involved in the transaction or to whom such knowledge or skill may be attributed by such person’s employment of an agent or broker or other intermediary who by such person’s occupation holds oneself out as having such knowledge or skill.”

After determining that Coffeyville was a merchant, the Tenth Circuit then stated that “[s]ince only merchants who are ‘sellers’ are liable for breach of the implied warranty of merchantability, we must also determine whether Coffeyville is a seller under the Uniform Commercial Code.” Section 84-2-103(d), Kan. Stat. Ann., which is identical to § 7-2-103(d), Ala. Code 1975, defines a seller as “a person who sells or contracts to sell goods.” In considering whether Coffeyville was a seller, the Tenth Circuit held:

“Certainly an auctioneer sells goods, although generally as agent for someone else. The statute provides no explicit guidance on whether an auctioneer acting as agent for another is a seller under the statute. When the statute is not specific we look to the common law as an aid to interpretation. Kan. Stat. Ann. § 84 — 1—103;[] Service Iron Foundry, Inc. v. M.A. Bell Co., 2 Kan.App.2d 662, 588 P.2d 463, 472 (1978).
“Under traditional agency law, an agent is liable as if it were the principal when the agent acts for an undisclosed principal. This rule applies whether the agent holds itself out as principal or only as agent but does not disclose the identity of its principal. Bruce v. Smith, 204 Kan. 473, 464 P.2d 224 (1970); Restatement (Second) of Agency §§ 321-22 (1958). Applying this common law rule to auctioneers, courts in other jurisdictions have held that an auctioneer is liable as a seller if the auctioneer fails to disclose to the buyer the identity of the principal. E.g., Universal C.I.T. Credit Corp. v. State Farm Mutual Automobile Insurance Co., 493 S.W.2d 385, 390 (Mo.Ct.App.1973); Itoh v. Kimi Sales, Ltd., 74 Misc.2d 402, 345 N.Y.S.2d 416, 420 (Civ.Ct.N.Y.1973); Hagen v. Brzozowski, 336 S.W.2d 213, 215-16 (Tex.Civ.App.1960). The UCC did not alter the common law application of agency principles to sales made by an auctioneer. See Kan. Stat. Ann. § 84-1-103. We believe the Kansas courts would hold that an auctioneer who fails to disclose the identity of its principal and who regularly auctions merchandise of a particular kind is, with regard to those goods, a merchant seller within the coverage of section 84-2-314.”

Powers, 665 F.2d at 312-13.

The Tenth Circuit Court of Appeals concluded that “[t]he record ... suggests that Coffeyville did not disclose the owners’ identities to the Powers[es], but the trial court’s opinion does not expressly address this issue, nor whether the exceptions to implied warranties in section 84-2-316 apply.” 665 F.2d at 313. As a result, the Tenth Circuit reversed the judgment of the federal district court and remanded the case “for a finding by the trial court as to whether Coffeyville disclosed the identity of the owners of the cattle sold to the Powers[es], and for other proceedings consistent with this opinion.” 665 F.2d at 313.

In Abercrombie v. Nashville Auto Auction, Inc., 541 So.2d 516 (Ala.1989), as in the cases cited in Powers above, this Court stated that an auctioneer may be liable as a seller under § 7-2-312, Ala.Code 1975, for a breach of the warranty of title if the auctioneer fails to disclose to the buyer the identity of the principal:

“It has been held in Alabama that an auctioneer, in selling property for another, is the agent of the seller, and that if the auctioneer acts on behalf of a disclosed principal, he is not liable to the buyer for a defect in the title to the property sold, provided that he does not incur liability by personally warranting good title. Welch v. Mitchell, 351 So.2d 911 (Ala.Civ.App.1977); see, also, 7 Am. Jur.2d Auctions and Auctioneers § 66 (1980). The rationale underlying this rule is that an auctioneer who, in dischárging his ordinary duties, sells property on behalf of a disclosed principal generally is not regarded as warranting good title. On the other hand, an auctioneer who sells property without disclosing his principal is, in the eyes of the law, considered as the vendor himself and, as such, is responsible to the buyer for a defect in the title. See 7 Am. Jur.2d, supra, § 67.”

Abercrombie, 541 So.2d at 518. In so holding in Abercrombie, this Court relied upon Welch v. Mitchell, 351 So.2d 911, 915 (Ala.Civ.App.1977), in which the Court of Civil Appeals stated that “an auctioneer who acts for a disclosed principal will not be deemed liable for a defect in the title of the property sold.”

Therefore, based on the reasoning in Poiuers and the common-law principles of agency set forth by this Court in Abercrombie, we hold that an auctioneer may be held liable as a merchant-seller for the implied warranty of merchantability under § 7-2-314 if the auctioneer fails to disclose the principal for whom the auctioneer is selling the goods.

We note that the rule set forth in Welch and applied in Abercrombie is related to the application of the warranty of title set forth in § 7-2-312, Ala.Code 1975, which states:

“(1) Subject to subsection (2) there is in a contract for sale a warranty by the seller that:
“(a) The title conveyed shall be good, and its transfer rightful; and
“(b) The goods shall be delivered free from any security interest or other lien or encumbrance of which the buyer at the time of contracting has no knowledge.
“(2) A warranty under subsection (1) will be excluded or modified only by specific language or by circumstances which give the buyer reason to know that the person selling does not claim title in himself or that he is purporting to sell only such right or title as he or a third person may have.
“(3) Unless otherwise agreed a seller who is a merchant regularly dealing in goods of the kind warrants that the goods shall be delivered free of the rightful claim of any third person by way of infringement or the like, but a buyer who furnishes specifications to the seller must hold the seller harmless against any such claim which arises out of compliance with the specifications.”

(Emphasis added.) By holding in Aber-crombie that an auctioneer may be liable as a seller for the warranty of title if the auctioneer fails to disclose the principal, this Court held that an auctioneer may be liable as a seller under § 7-2-312. In a general sense, the question before the Court in Abercrombie was essentially the same question before this Court: Can an auctioneer be held liable as a seller under Alabama’s version of the UCC? We answered that question in the affirmative in Abercrombie concerning the warranty of title, and we do so in this case concerning the implied warranty of merchantability.

APA does not argue that Powers is not analogous to this case; instead, APA argues that it is not necessary for this Court to consider principles of common law, as allowed under § 7-1-103, Ala.Code 1975, set forth supra in note 5, because, APA argues, the definition of “seller” in § 7-2-103(d), Ala.Code 1975, is clear. However, consistent with § 7-1-103, we have considered “the principles of law and equity, including ... the law relative to ... principal and agent ... [to] supplement” the provisions of Alabama’s version of the UCC.

In summary, based on the common-law principles of agency set forth in Abercrom-bie, an auctioneer selling consigned goods on behalf of an undisclosed principal may be held liable as a merchant-seller for a breach of the implied warranty of merchantability under § 7-2-314, Ala.Code 1975. As a result, we answer the circuit court’s second controlling question of law in the affirmative, and we affirm the circuit court’s judgment denying APA’s summary-judgment motion as to Wiese’s breach-of-the-implied-warranty-of-merchantability claim.

Conclusion

Based on the foregoing, we affirm the circuit court’s judgment in part, reverse the circuit court’s judgment in part, and remand the cause for proceedings consistent with this opinion.

AFFIRMED IN PART; REVERSED IN PART; AND .REMANDED.

MURDOCK, MAIN, and WISE, JJ., concur.

SHAW, J., concurs in the result.

MOORE, C.J., and STUART, BOLIN, and BRYAN, JJ., concur in part and dissent in part.

MOORE, Chief Justice

(concurring in part and dissenting in part).

I concur in the answer to the first controlling question of law presented by the trial court on permissive appeal, but I dissent from the answer to the second question.

In its second controlling question of law, the trial court asked this Court “whether [James Wiese’s] breach of implied warranty of merchantability claim ... cannot be maintained against [Alabama Powersport Auction, LLC (‘APA’),] because [APA] was not a seller or merchant as required by Alabama’s version of the Uniform Commercial Code.” (Emphasis added.) This Court reworded that question as follows: “Whether an auctioneer selling consigned goods on behalf of a seller may be held liable under Alabama’s version of the Uniform Commercial Code as a merchant-seller for a breach of an implied warranty of merchantability.” 148 So.8d at 720 (emphasis added).

I do not believe that APA is a seller under Alabama’s version of the Uniform Commercial Code (“UCC”). A seller is defined as “a person who sells or contracts to sell goods.” § 7-2-103(l)(d), Ala.Code 1975. Black’s Law Dictionary defines “sell” as “[t]o transfer (property) by sale.” Black’s Law Dictionary 1482 (9th ed. 2009). “A ‘sale’ consists in the passing of title from the seller to the buyer for a price.... ” § 7-2-106(1), Ala.Code 1975 (emphasis added). This Court has held that a consignee does not hold title to the goods consigned to it by a consignor but that title passes from the consignor to the buyer. Bischoff v. Thomasson, 400 So.2d 359, 365 (Ala.1981).

In this case, FF Acquisition Corp. (“FFA”) consigned its goods to APA, which served as the auctioneer. Because APA was the consignee, and because a consignee does not hold title to the goods consigned to it by the consignor, then APA could not pass title to Wiese. Because a seller has to pass title under Alabama’s version of the UCC, and because APA did not pass title to Wiese, APA cannot be considered a “seller” under Alabama’s version of the UCC and therefore cannot be liable for breach of an implied warranty of merchantability under § 7-2-314, Ala. Code 1975.

The main opinion decides the case based on the common law of agency, which, “[u]nless displaced by the particular provisions of [Alabama’s version of the UCC] ... supplements] its provisions.” § 7-1-103(b), Ala.Code 1975. However, because § 7-2-103 defines “seller” in a way that excludes APA, the common law cannot supplement § 7-2-103 in this case. Therefore, although I concur in the answer to the first controlling question of law, I dissent from the answer to the second question.

BOLIN, J., concurs.

STUART, Justice

(concurring in part and dissenting in part).

I concur with the answer to the first controlling question of law posed by the circuit court in this permissive appeal; I dissent from the answer to the second question.

BRYAN, Justice

(concurring in part and dissenting in part).

I concur with the answer to the first controlling question of law presented by the trial court, but I dissent from the answer to the second question.

      . Section 6-5-391, Ala.Code 1975, states, in pertinent part:
      "(b) An action under subsection (a) for the wrongful death of the minor shall be a bar to another action either under this section or under Section 6-5-410[, Ala.Code 1975].”

      . Section 16-27-6, Ala.Code 1975, states:
      “(a) No school bus shall be operated on a public street, highway or elsewhere, unless it shall be equipped with a seat belt for the driver.
      “(b) The driver of a school bus while transporting pupils on a public street or highway or elsewhere shall wear a properly fastened seat belt when the bus is in motion. Failure of a bus driver to comply with this requirement shall be prima facie evidence of nonfeasance of duty, and any driver who fails to comply with this requirement shall be subject to dismissal.
      “(c) Every contract between a board of education and a school bus contract operator shall contain a clause requiring the driver of a school bus to wear a properly fastened seat belt when the bus is being used for the transporting of pupils on a public street or highway or elsewhere. Failure of any driver to comply with this requirement shall constitute a breach of contract on the part of the contract operator.”

      . In Benefield v. Aquaslide 'N' Dive Corp., 406 So.2d 873, 876 (Ala.1981), this Court held that "[t]he breach of warranty (contract) claim is a separate and distinct claim from the wrongful death (tort) claim and seeks compensatory damages only, not for the wrongful death of the decedent but for the injuries suffered before his death.”

      . This Court has reworded controlling questions of law framed by a trial court for permissive appeal pursuant to Rule 5 before. See Okeke v. Craig, 782 So.2d 281, 282 (Ala.2000).

      . Section 84-1-103, Kan. Stat. Ann., which is identical to § 7-1-103, Ala.Code 1975, states:
      "(a) The uniform commercial code must be liberally construed and applied to promote its underlying purposes and policies, which are:
      "(1) To simplify, clarify, and modernize the law governing commercial transactions;
      "(2) to permit the continued expansion of commercial practices through custom, usage and agreement of the parties; and
      "(3) to make uniform the law among the various jurisdictions.
      "(b) Unless displaced by the particular provisions of the uniform commercial code, the principles of law and equity, including the law merchant and the law relative to capacity to contract, principal and agent, estoppel, fraud, misrepresentation, duress, coercion, mistake, bankruptcy, and other validating or invalidating cause supplement its provisions.”

      . Accord Lary Lawrence, Lawrence's Anderson on the Uniform Commercial Code § 2-103:37 (3d ed. 2012) (citing Powers, supra) ("If the auctioneer does not disclose the identity of the principal, the auctioneer is the seller. Although the auctioneer does not transfer title, he or she makes a contract of sale and, thus, comes within the definition of 'seller.'”); §§ 2-314:580 and 2-314:581 ("A sale by auction is a sale and consequently the same warranties arise when the sale is made through an auctioneer as when a sale is made directly by the principal.... When the auctioneer sells without identifying the principal on whose behalf it is selling, the auctioneer has the status of a partially-disclosed agent, and is deemed the seller and is liable for any warranty, express or implied, that is involved in the sale.”); and 12 Richard A. Lord, Williston on Contracts § 35:43, at 555 (4th ed. 2007) (“The rule of liability which ensues from a nondisclosure of the principal has been applied to hold a selling agent who does not disclose the principal to all the general liabilities of any other seller.”).

      . APA encourages this Court to apply our decision in this case prospectively only. Prospective application is not appropriate in this case, however. First, we held that Geohagan was not overruled by Sledge. Second, in determining that an auctioneer may be held liable as a merchant-seller for a breach of an implied warranty of merchantability, our holding is based on well established principles of Alabama law; thus, this Court's decision in the present case was "clearly foreshadowed.” See McCullar v. Universal Underwriters Life Ins. Co., 687 So.2d 156, 165 (Ala.1996).

      . Although Alabama’s version of the UCC has changed since Bischoff was decided, Bis-choff ’s rule appears still to be correct in light of§ 7-2-106(1), Ala.Code 1975.