Ala. Powersport Auction, LLC v. Wiese

• Decision Date: 08 November 2013
• Docket Number: 1120007.
• Citation: 143 So.3d 713
• Parties: ALABAMA POWERSPORT AUCTION, LLC v. James WIESE, as father of Matthew Hunter Wiese, a minor, deceased.
• Court: Alabama Supreme Court

143 So.3d 713

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, Ala. 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.” ¹ 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., 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 Geohagan, 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...