MURDOCK, Justice.
The opinion of August 12, 2011, is withdrawn and the following is substituted therefor.
The Industrial Development Board of the City of Montgomery ("the IDB") appeals, pursuant to Rule 5, Ala. R.App. P., from the Montgomery Circuit Court's interlocutory order denying its motion for a summary judgment as to the breach-of-contract claims asserted against it by George Earl Russell and Thomas E. Russell, as coexecutors and cotrustees of the wills and testamentary trusts of Earnest W. Russell and Myrtis Russell ("the Russells") (case no. CV-04-3282), and by Price McLemore, Mary H. McLemore,
Our opinions in McLemore v. Hyundai Motor Manufacturing Alabama, LLC, 7 So.3d 318 (Ala.2008), and Wheeler v. George, 39 So.3d 1061 (Ala.2009), provide detailed renditions of the facts that culminated in the filing of the instant actions by McLemore/Russell against the IDB and Hyundai Motor Manufacturing Alabama, LLC ("Hyundai"). We quote here portions of those opinions and summarize other pertinent facts necessary to an understanding of the arguments presented in this appeal.
In September 2001, various State and local officials, including officials from the City of Montgomery ("the City"), the IDB, the Montgomery County Commission ("the County"), and the Montgomery Area Chamber of Commerce, began making preparations to secure options to purchase property in the Montgomery area to create an incentive package in the hope that they could persuade Hyundai to build an industrial plant in the Montgomery area for the purpose of manufacturing and assembling motor vehicles. As we explained in Wheeler:
39 So.3d at 1069.
As noted in McLemore, however, "[a]lthough the funds to purchase the property were to be provided by the City and the County only, the option agreements on the property were acquired by the IDB." 7 So.3d at 322. As we further explained, the IDB's participation was necessary in order that the transaction "`comply with laws for tax breaks and incentives to the industry.'" 7 So.3d at 322 n. 1 (quoting the IDB's brief).
The Russells owned approximately 328 acres of land in Montgomery County. In the fall of 2001, Reuben Thornton, who was then chairman of the IDB, signed an option agreement on behalf of the IDB for the purchase of the Russells' property. In February 2002, Thornton, on behalf of the IDB, signed an option agreement with the McLemore group for the purchase of approximately 54 acres of land near the Russell property. Thornton also secured on the IDB's behalf options to purchase approximately 320 acres from Southdale, LLC, and approximately 807 acres from Helen Kathryn Wheeler and William Newton Phillips, as trustee under the Doris R.H. Phillips Revocable Living Trust Agreement dated February 21, 2001 ("Wheeler/Phillips").
Each of the option agreements was identical, providing for an option period of 120 days and providing that "in no event shall the purchase price be less than $4,500 per acre and further provided that the purchase
During the acquisition process, another landowner, Joy Shelton, was approached about an option to purchase her property;
McLemore, 7 So.3d at 323.
As explained in McLemore, in response to an inquiry by an official at the Alabama Development Office, a representative of CSX Transportation, Inc., responded with the following e-mail:
7 So.3d at 324 (footnote omitted).
Subsequently, Bobby Bright, then mayor of the City and in that capacity an ex officio member of the IDB, was selected as the main representative to meet with Shelton to acquire an assignable option agreement that would name the City, rather than either the IDB or CSX, as the purchaser of the Shelton property. Bright obtained an assignable option naming the City as the purchaser of the property; the purchase price of the property was $12,000 per acre.
On April 15, 2002, in conformance with option agreements with the Russells, the McLemore group, Southdale, and Wheeler/Phillips, the IDB gave those property owners notice that it was exercising the options on their properties at a price of $4,500 per acre. The IDB then assigned the options to the City and the County. On May 14, 2002, the City and the County purchased the properties for $4,500 per acre.
As for the Shelton property, we further explained in McLemore as follows:
"On May 31, 2002, the day the option agreement on the Shelton property was to expire, CSX entered into a real-estate sales contract for the purchase of the property at $12,000 per acre. When Hyundai learned that CSX, and not the State, was to pay for the rail installation and that Hyundai would be expected to enter into a long-term contract with CSX, Hyundai decided to install the rail using its own funds. As a result of Hyundai's decision not to involve CSX in rail installation, CSX assigned the real-estate contract to Hyundai. According to the assignment contract, CSX assigned the contract to Hyundai on May 28, 2002, three days before the real-estate contract between CSX and Shelton was executed. On July 12, 2002, funds from the State of Alabama Incentives Finance Authority were transferred to Hyundai to pay for the Shelton property, and Hyundai purchased the property."
7 So.3d at 326.
Subsequently, the Russells and the McLemore group each filed a breach-of-contract action in the Montgomery Circuit Court against the IDB and Hyundai, alleging that the IDB and Hyundai had breached the most-favored-nation clause in the option agreements by not paying them
This Court affirmed the trial court's judgment in part and reversed it in part. Specifically, the Court reversed the summary judgment for the IDB as to the Russells' breach-of-contract claim because "a question for the jury exists as to whether the amended option agreement modified or waived the most-favored-nation clause in the Russells' original option agreement." McLemore, 7 So.3d at 334. The McLemore Court also held that "the Russells' and the McLemore group's breach-of-contract claims are not barred by the doctrine of merger." 7 So.3d at 336. Finally, the McLemore Court concluded that
7 So.3d at 338-39.
Southdale and Wheeler/Phillips also filed an action in the Montgomery Circuit Court; they alleged fraud, suppression, breach of contract, rescission, and conspiracy against multiple defendants including the IDB, Thornton, the City, the County, and others, charging that the defendants had conspired to purchase the Shelton property at a higher price than was paid for their property and conspired to do so without complying with the most-favored-nation clause contained in the option agreements. On November 2, 2007, the trial court entered a summary judgment in favor of the defendants on Southdale's and Wheeler/Phillips's tort claims on the basis that those tort claims were barred by the applicable statute of limitations. On November 20, 2007, the trial court entered a summary judgment in favor of the defendants on all remaining claims. Southdale and Wheeler/Phillips appealed from the summary judgments.
That appeal was addressed in Wheeler v. George, 39 So.3d 1061 (Ala.2009). Based on statements made by this Court in Wheeler, the IDB filed a motion for a summary judgment in the McLemore/Russell actions, asking the trial court to dismiss the breach-of-contract claims against the IDB. On May 3, 2010, the trial court denied the IDB's motion. The IDB filed a motion asking the trial court to certify its interlocutory order for a permissive appeal. On May 18, 2010, the trial court certified two controlling questions of law for permissive appeal to this Court. The trial court stated those questions as follows:
On May 28, 2010, the IDB filed with this Court a petition for permission to appeal the trial court's denial of its motion for a summary judgment based on the trial court's certification of the above-quoted questions. This Court granted the petition on August 17, 2010.
Panayiotou v. Johnson, 995 So.2d 871, 875-76 (Ala.2008). "Questions of law are reviewed de novo. Davis v. Hanson Aggregates Southeast, Inc., 952 So.2d 330 (Ala.2006)." McLemore, 7 So.3d at 327 (quoting Catrett v. Baldwin Cnty. Elec. Membership Corp., 996 So.2d 196, 200 (Ala.2008)).
As the questions certified by the trial court indicate, the IDB argues that the McLemore/Russell breach-of-contract claims against it should be dismissed on two alternative grounds. First, it contends that the Wheeler Court held that the IDB assigned the option agreements to the City and that, therefore, the IDB cannot be held liable for any alleged breach of those option agreements. Second, it contends that the Wheeler Court concluded that the IDB is immune from all claims in tort and contract because of the application of the Volunteer Service Act, § 6-5-336, Ala.Code 1975 ("the VSA"), to the IDB's chairman, Thornton. The IDB asks this Court, as it did the trial court, to apply these "holdings" in Wheeler to the breach-of-contract claims brought against it by McLemore/Russell.
Before we address these arguments, however, we begin by noting that McLemore/Russell argue that the IDB should not be permitted to contend that it is entitled to a summary judgment on their breach-of-contract claims because this Court in McLemore concluded that McLemore/Russell were entitled to a jury trial on that claim. McLemore/Russell contend that McLemore is the law of the case in this regard. McLemore/Russell observe that this Court has stated that,
Blumberg v. Touche Ross & Co., 514 So.2d 922, 924 (Ala.1987). In essence, McLemore/Russell take issue with the fact that the IDB filed a second motion for a summary judgment on the same claims this Court addressed in McLemore, raising defenses the IDB pleaded in its answer to the complaint but did not raise in its initial motion for a summary judgment. McLemore/Russell note that the facts upon which McLemore was decided have not changed, and thus they argue that this Court's determination that genuine issues of material fact exist concerning their breach-of-contract claims cannot be challenged by the IDB in a second motion for a summary judgment.
The issues raised by the IDB in its second motion for a summary judgment are not the same as the issues raised in the first motion for a summary judgment and on appeal to this Court from the trial court's ruling on the first motion. Accordingly, there has been no holding by either the trial court or this Court as to the issues raised in the second summary-judgment motion; thus, no "law of the case" has been "established" as to those issues. See Bagley ex rel. Bagley v. Creekside Motors, Inc., 913 So.2d 441, 446 (Ala.2005) ("[T]he doctrine of law of the case ... is inapplicable to this case because we did not, in the original appeal, dispositively decide the issue [now raised]."); Poole v. Prince, 61 So.3d 258, 274 (Ala.2010) ("Because this Court did not definitively address in [the prior appeal] the issue whether a binding contract existed between the parties, the law-of-the-case doctrine does not preclude the trial court's determination of that issue on remand."); Lyons v. Walker Reg'l Med. Ctr., Inc., 868 So.2d 1071, 1077 (Ala.2003) ("[O]n remand the issues decided by an appellate court become the `law of the case.'" (emphasis added)).
We now examine the arguments presented by the IDB. The IDB bases its argument that its assignment of the option agreements to the City relieved it of any liability under those agreements on the following portion of the Wheeler opinion:
Wheeler, 39 So.3d at 1083-84 (emphasis added).
In its principal brief, the IDB argues:
The IDB essentially argues that, because this Court stated in Wheeler that the City, as the assignee of the option agreements, is potentially liable for breach of contract, the Court impliedly held that the IDB is not liable. We reject this argument for several reasons.
First, the portion of the Wheeler opinion relied upon by the IDB addressed the City's potential liability for breach of contract; it did not address, much less determine, the IDB's potential liability for breach of contract.
Second, the IDB cites no authority for its proposition that the assignment of rights under a contract relieves the assignor of any potential for liability for duties not performed under the assigned contract. Moreover, the law provides no support for such a proposition and, indeed, supports the contrary proposition. In a dissent in DuPont v. Yellow Cab Co. of Birmingham, Inc., 565 So.2d 190, 193 (Ala. 1990), Justice Jones explained the distinction between assignment and delegation:
(Footnote omitted.) See also Restatement (Second) of Contracts § 318 (1981).
According to the portion of Wheeler relied upon by the IDB, the IDB assigned to the City and the County its rights under the option agreements. Assuming that this assignment of rights carried with it a delegation of the duties owed by the IDB under the agreements, the IDB nonetheless also would have had to demonstrate either (1) that the terms of the contracts allowed the IDB to relieve itself of contractual liability by way of such a delegation or (2) that the parties had entered into novations pursuant to which McLemore/Russell agreed that the IDB's obligations had changed. See generally, e.g., Marvin's, Inc. v. Robertson, 608 So.2d 391, 393 (Ala.1992) (explaining that "`[a] novation is the substitution of one contract for another, which extinguishes the pre-existing obligation and releases those bound thereunder.... In addition, the party alleging a novation has the burden of proving that such was the intention of the parties.'" (quoting Pilalas v. Baldwin County Sav. & Loan Ass'n, 549 So.2d 92, 94-95 (Ala.1989) (emphasis omitted))). The IDB does not assert or demonstrate
We turn now to the IDB's argument that it is immune under the VSA from the McLemore/Russell breach-of-contract claims. We first note that the VSA does not grant immunity to governmental or other entities, but grants immunity only to natural persons serving as "volunteers" for certain entities. The VSA, § 6-5-336(c)(4), Ala.Code 1975, defines a "volunteer" as "[a] person performing services for a nonprofit organization, a nonprofit corporation, a hospital, or a governmental entity without compensation, other than reimbursement for actual expenses incurred." Section 6-5-336 then provides:
(Emphasis added.) Further, when the legislature passed the VSA, it declared in § 6-5-336(b):
(Emphasis added.)
The IDB attempts to find support for its position in the following portion of this Court's opinion in Wheeler:
Wheeler, 39 So.3d at 1089-91 (emphasis added). The IDB argues that the foregoing supports the conclusion that the IDB is immune from liability under the VSA as to the McLemore/Russell's claims of breach of contract.
The principle that an entity may be insulated from vicarious liability that would otherwise result from the misfeasance or malfeasance of its employee or agent where the employee or agent enjoys immunity for his or her acts or omissions is not apposite here. This is a breach-of-contract action against the IDB, a party to the contract at issue, alleging its breach of that contract. The following argument in the brief of the appellees, the Russells and the McLemore group, is meritorious:
(Emphasis in original.)
The doctrine of vicarious liability is premised on the fact that an agent or employee has committed his or her own misfeasance or malfeasance — i.e., the agent or employee has violated a duty created and imposed by law upon him or her, as an individual — in circumstances under which the law also deems it appropriate to hold accountable the principal. A duty created by contract is one imposed upon the party to the contract, not directly upon the employee or agent of that party. If an employee or agent acting within the scope of his or her employment or agency acts in a manner that causes the principal to be in breach of the principal's contract, the breach is that of the principal itself, not of the employee, who is not a party to the contract. The concept of vicarious liability is jurisprudentially inapposite (and unnecessary) in such a circumstance.
Finally, it may also be noted that § 11-54-87, Ala.Code 1975, provides, in part, as follows:
(Emphasis added.) To hold that the VSA and the above-quoted portion of this Court's opinion in Wheeler render an entity immune from all claims — including claims arising in contract — essentially would eliminate any field of operation for the above-emphasized language in § 11-54-87, except where an agent or employee has acted willfully or wantonly. "Statutes should be construed together so as to harmonize the provisions as far as practical." Ex parte Jones Mfg. Co., 589 So.2d 208, 211 (Ala.1991). Clearly, pursuant to § 11-54-87, industrial development boards are given the power to purchase property and to enter into contracts for that purpose. Although the VSA clothes volunteers — such as members of the IDB's board of directors — from liability in tort so long as the volunteers' actions are not willful and wanton, and thereby also renders the IDB itself immune from vicarious liability, § 6-5-336 does not operate to prevent an industrial development board from being sued and facing liability for breaches by it of its contracts. The trial court did not err in denying the IDB's motion for a summary judgment on this ground.
The trial court's order denying the IDB's motion for a summary judgment, in which the trial court rejected the IDB's arguments that the IDB should be relieved from liability based on its assignment of it rights under the option agreements and
APPLICATION OVERRULED; OPINION OF AUGUST 12, 2011, WITHDRAWN; OPINION SUBSTITUTED; AFFIRMED.
STUART, BOLIN, SHAW, WISE, and BRYAN, JJ., concur.
MOORE, C.J., concurs in the result.
MAIN, J., recuses himself.
