[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 774

This court's original opinion, dated June 21, 1996, is withdrawn, and the following is substituted therefor:

Robert Bramlett, Sr., appeals the entry of summary judgment for Ford Motor Credit Company ("FMCC") and Adamson Ford, Inc. ("Adamson") on his claim for damages arising out of his purchase and financing of an automobile. Bramlett alleged fraud by suppression and misrepresentation, conspiracy to defraud, breach of contract, unconscionability, and outrage. Bramlett appealed the summary judgment as to his claims of suppression, misrepresentation, civil conspiracy, and unconscionability to the Supreme Court. The Supreme Court transferred the appeal to this court pursuant to Ala. Code 1975, § 12-2-7.

Ala. Code 1975, § 12-21-12 mandates that the nonmovant meet his burden by "substantial evidence." Bass v. SouthTrust Bankof Baldwin County, 538 So.2d 794, 797-98 (Ala. 1989). Under the substantial evidence test the nonmovant must present "evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved." West v. FoundersLife Assurance Co. of Florida, 547 So.2d 870, 871 *Page 775 (Ala. 1989). More simply stated, "[a]n issue is genuine if reasonable persons could disagree." Schwarzer, Summary JudgmentUnder the Federal Rules: Defining Genuine Issues of MaterialFact, 99 F.R.D. 465, 481 (1982).

Viewed most favorably to Bramlett, the evidence shows that Bramlett negotiated the purchase of an automobile at Adamson. FMCC and Adamson had a mutual agreement whereby Adamson received a 3% commission on all financing contracts it obtained for FMCC. Bramlett was experienced in the purchase and financing of automobiles. After Bramlett made his selection, an agent of Adamson told Bramlett that Adamson would get the best financing available. The agent disclosed the financing rate and cost of financing the purchase to Bramlett; however, the agent did not disclose Adamson's agreement with FMCC or the amount of the 3% commission.

When Bramlett asked why the cost of financing was so high, the agent informed him that the high cost was because Bramlett was a poor credit risk. At the time the agent made this representation to Bramlett, Adamson intended to finance Bramlett's purchase through FMCC under its agreement with FMCC. The financing contract was prepared by FMCC and executed on FMCC forms. Although the 3% commission was disclosed in the financing documentation between Adamson and FMCC, it was not disclosed in the financing documentation provided to Bramlett.

Bramlett argues that Adamson and FMCC fraudulently suppressed the 3% commission agreement between them because, he says, the commission resulted in a higher interest rate to Bramlett. Bramlett testified that had he known of the commission, he would have obtained financing elsewhere. Bramlett further argues that he was defrauded because he justifiably relied on Adamson's agent's representation that he would obtain the best financing available. Bramlett argues that Adamson and FMCC conspired to defraud him, and he asserts that the contract he signed was unconscionable.

A material fact is a fact that will induce action in the complaining party. Bank of Red Bay v. King, 482 So.2d 274 (Ala. 1985); Crigler v. Salac, 438 So.2d 1375 (Ala. 1983). A reasonable inference from the fact of the 3% commission is that it increased the financing cost to Bramlett. Bramlett testified that he would not have contracted to finance his purchase with Adamson and FMCC had he known of the commission. As in most cases of suppression, the question of materiality is a question for the jury. See, e.g., Bank of Red Bay, supra; Jim WalterHomes, Inc. v. Waldrop, 448 So.2d 301 (Ala. 1983).

The effect of the 3% commission in increasing Bramlett's financing costs also relates to the proximate cause of damage. Considering the evidence that Bramlett accepted the representation that the financing rate quoted was the best available, the question of proximate cause of damages is also a question for the jury. This is especially applicable under the more liberal construction of proximate cause applied to torts alleging intentional conduct. Rodopoulos v. Sam PikiEnters., Inc., 570 So.2d 661 (Ala. 1990); *Page 776 Shades Ridge Holding Co. v. Cobbs, Allen Hall Mortgage Co.,390 So.2d 601 (Ala. 1980).

The critical question is whether there was a duty to disclose the particulars of the financing arrangement under the circumstances of this case. At the outset, we address the application of Ala. Code 1975, § 5-19-6(c), a portion of the Alabama "Mini-Code." In pertinent part, that section provides:

"[T]here is no obligation or duty under this chapter to disclose to a debtor any agreement to assign or otherwise transfer a consumer credit transaction at a discount or that the assignee of, or person who funded, the consumer credit transaction agreed or may agree to pay the creditor or other person who originated the consumer credit transaction all or a portion of the prepaid finance charges and other fees and/or a portion of the finance charge to be paid by the debtor over the term of the transaction and/or other compensation irrespective of how the compensation is determined or described."

Adamson and FMCC contend that this language means that Adamson had no duty to disclose the 3% commission. Based on the facts of this case, we disagree.

Bramlett's suppression claim is based on Ala. Code 1975, §6-5-102. Ala. Acts 1994, No. 94-115, which amends Section5-19-6, provides in Section 4: "Section 6-5-102 and Sections8-19-1 through 8-19-15 are not amended or repealed by this act." We conclude that although § 5-19-6 does not impose a duty to disclose a discount in a consumer credit transaction, that section does not mean that a duty to disclose such a discount cannot arise from other circumstances. This conclusion is strongly supported by the construction of the Mini-Code by our Supreme Court that it is consumer legislation that promotes the full disclosure of financing charges. See, e.g., Smith v. FirstFamily Financial Services, Inc., 626 So.2d 1266 (Ala. 1993).

In response to Judge Thigpen's dissent on rehearing, the goal of the Mini-Code is "the protection of the public."McCullar v. Universal Underwriters Life Ins. Co., 687 So.2d 156 (Ala. 1996). Accordingly, we will not hold that the Mini-Code means that, as a matter of law, hidden discounts can never support a claim of common law fraudulent suppression.

Under the facts of the present case, we do not address whether Adamson had a duty to disclose the commission in the absence of any inquiry. We hold that Bramlett's inquiry as to why the finance charge was so high is substantial evidence from which the trier of fact could infer that Adamson had a duty to disclose the full nature of Adamson's commission agreement with FMCC. A duty to disclose can arise from a request for information. Hines, supra; Dodd v. Nelda Stephenson Chevrolet,Inc., 626 So.2d 1288 (Ala. 1993). One who responds to an inquiry has the duty to speak the entire truth. First Va.Bankshares v. Benson, 559 F.2d 1307, rehearing denied, 564 F.2d 416 (5th Cir. 1977), cert. denied, 435 U.S. 952, 98 S.Ct. 1580,55 L.Ed.2d 802 (1978); Roberts v. C S Sovran Credit Corp. ofAla., 621 So.2d 1294 (Ala. 1993); and Fennell Realty Co. v.Martin, 529 So.2d 1003 (Ala. 1988).

Bramlett's request why the financing rate was so high is substantial evidence from which a reasonable person could infer that Adamson had a duty to disclose its commission arrangement with FMCC. Moreover, FMCC's preparation of the loan documentation to prevent disclosure of the 3% commission to Bramlett raises a question of fact as to whether FMCC was a participant in the alleged suppression. Accordingly, the trial court's entry of summary judgment with respect to Bramlett's claim of fraudulent suppression is due to be reversed as to both Adamson and FMCC.

The evidence raises a question of fact about two representations: (1) after Bramlett *Page 777 agreed to purchase the automobile, Adamson Ford told him that they would obtain the best financing available, and (2) the reason Bramlett's financing rate was high was because of his credit history. These representations, taken together, support the inference that Adamson falsely assured Bramlett that he was getting the best financing contract available. Bramlett argues that he justifiably relied on these statements and obtained financing with Adamson Ford and FMCC, and as a result, Bramlett was damaged by paying a higher interest rate than he could have obtained elsewhere.

In light of the evidence of the agreement between FMCC and Adamson as to the 3% commission, reasonable persons could disagree as to whether Adamson obtained the best financing or simply acted to obtain the 3% commission by delivering the financing contract to FMCC. We conclude that there is a question of fact for the jury whether these representations by Adamson were false.

Bramlett's reliance on Adamson's representations must be evaluated under the standard set out by our Supreme Court inHickox v. Stover, 551 So.2d 259, 263 (Ala. 1989):

"[A] plaintiff . . . has not justifiably relied on the defendant's representation if that representation is 'one so patently and obviously false that he must have closed his eyes to avoid the discovery of the truth.' "

Although the simple statement that Adamson could obtain the best financing might not have been justifiably relied on by a buyer of Bramlett's experience, that statement was only part of the representation made to Bramlett. The additional representation that the rate was high because of Bramlett's credit history implies that Adamson checked all the possibilities and was unable to provide a better rate. A question of fact as to justifiable reliance can be raised by the entire context of a conversation, as it is in these circumstances. Love v. Townsend Ford, Inc., 623 So.2d 1153 (Ala. 1993).

FMCC also argues that it cannot be liable for any misrepresentation because it had no direct contact with Bramlett. However, our law is long settled that a principal may be liable for the tortious acts of its agent under the doctrine of respondeat superior. Southern Life Health Ins. Co. v.Turner, 571 So.2d 1015 (Ala. 1990). Moreover, questions of agency are usually questions of fact:

"A summary judgment on the issue of agency is generally inappropriate because the existence of an agency relationship is generally a question of fact to be determined by the trier of fact. Carlton v. Alabama Dairy Queen, Inc., 529 So.2d 921, 923 (Ala. 1988); Malmberg v. American Honda Motor Co., 644 So.2d 888, 890 (Ala. 1994). The test for determining whether an agency relationship exists under the doctrine of respondeat superior is whether the alleged principal has control over the manner of the alleged agent's performance. Carlton, supra, at 923."

Our Supreme Court has held that a single sale of chattel paper is not substantial evidence of an agency relationship.Mardis v. Ford Motor Credit Co., 642 So.2d 701 (Ala. 1994). However, the facts of this case raise more of an indicia of an agency relationship than a single chattel paper transaction. In this case, there is evidence that Adamson and FMCC had long engaged in a business relationship that included FMCC doing "floor plans" for Adamson's sales in addition to its agreements governing Adamson's acquisition of finance contracts for FMCC. Moreover, Adamson's alleged misrepresentations were made in attempting to obtain a finance contract for FMCC. These circumstances present a question of fact whether Adamson was acting in an agency relationship with FMCC.

The elements of materiality, causation, and damages are questions for the jury under the same rationale as discussed under the claim of suppression. It follows that the trial court erred in entering the summary judgment for Adamson and FMCC on the claim of misrepresentation. In response to Judge Crawley's *Page 778 dissent on rehearing, we emphasize that we hold only that the summary judgment on these facts was not appropriate; we do not hold that either suppression or misrepresentation took place. That question must be resolved by the trier of fact after a review of the facts of this particular case. Hanners, Harrell, and Wilson, supra.

"A civil conspiracy action focuses not on the conspiracy alleged, but on the wrong committed by virtue of the alleged conspiracy. Sadie v. Martin, 468 So.2d 162, 165 (Ala. 1985). Conspiracy itself furnishes no civil cause of action. Allied Supply Co. v. Brown, 585 So.2d 33, 36 (Ala. 1991)."

We have already concluded that Bramlett's claims of suppression and misrepresentation are sufficient to raise a question of fact for the jury. Therefore, Bramlett's conspiracy claim does not fail for lack of substantial evidence of an underlying wrong. Moreover, there is substantial evidence in this record to support the inference that Adamson and FMCC "worked in concert" toward the end of obtaining Bramlett's financing contract. The entry of the summary judgment on the conspiracy claim was therefore incorrect.

"The statute contemplates the court's determining, as a matter of law, upon consideration of the contract itself and the circumstances at the time such contract was made, whether or not such contract was unconscionable under the circumstances then in existence."

There is no general standard in Alabama law for unconscionability, and each determination must turn on the circumstances of the particular case before the court. E WBldg. Material Co. v. American Sav. Loan Ass'n, 648 F. Supp. 289 (M.D.Ala. 1986).

"An unconscionable contract has been defined as one 'such as no man in his sense and not under delusion would make on the one hand, and as no honest and fair man would accept on the other.' West Point-Pepperell, Inc. v. Bradshaw,377 F. Supp. 154 (M.D.Ala. 1974) (quoting Hume v. United States, 132 U.S. 406 [10 S.Ct. 134, 33 L.Ed. 393] (1889))."

The trial court's entry of the summary judgment on this issue was, in effect, a determination that the financing contract Bramlett signed was not unconscionable as a matter of law. After a careful review of the general terms of the financing contract, with the interest rate of 15.49%, we conclude that the trial court correctly held that the contract was not unconscionable under the circumstances of this case. See, e.g.,Harris v. Howell, 739 F. Supp. 565 (N.D.Ala. 1989), aff'd, 902 F.2d 959 (11th Cir. 1990) (holding that loans with a 20% rate were not unconscionable), and Wilson, supra (holding that a lease agreement was not unconscionable where the lessor demonstrated an understanding of the terms). Accordingly, the trial court's entry of the summary judgment as to this issue is due to be affirmed. *Page 779

ORIGINAL OPINION WITHDRAWN; OPINION SUBSTITUTED; APPLICATION FOR REHEARING OVERRULED; AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

YATES, J., concurs.

MONROE, J., concurs specially.

THIGPEN and CRAWLEY, JJ., dissent.

While I do not believe that Adamson had an obligation to volunteer that it was receiving a commission from Ford Motor Credit Company, I do think that when Bramlett asked Adamson's agent point blank why the rate of financing was so high, the agent had a duty to tell him the truth, i.e., that in addition to Bramlett's poor credit history, FMCC had to pay Adamson a 3% commission and so that pushed the rate up. This is especially true in light of the agent's earlier statement to Bramlett that he would get him the best financing available.

I do not understand the dissents' reluctance to require a person to tell the truth. Judge Thigpen apparently believes that Bramlett's question regarding the high finance rate was not direct enough. I believe that asking why the finance rate is so high adequately covers this situation. Regardless of how many cars Bramlett had purchased in the past, or whether he liked to shop loans, the fact is, he asked Adamson's agent a direct question but was not given an entirely truthful answer.

There is nothing legally or morally wrong with requiring someone to tell the truth. Therefore, I concur with the main opinion.

On rehearing, I now concur with Judge Crawley's dissent; however, I write to add my concerns regarding the following: It appears to me that, considering, Ala. Code 1975, § 5-19-1, et seq., also known as Alabama's Mini-Code, and the Federal Truth-in-Lending Act, codified in § 15 U.S.C.A. 1601, et seq., after fulfilling the duty to inform Bramlett of the total finance charge, there is no statutory obligation on Adamson to further disclose to Bramlett that it was receiving part of the finance costs from FMCC, in the form of a commission or "rate differential."² In the absence of a more direct inquiry from Bramlett, there was no fraudulent suppression when Adamson responded to Bramlett that his rate was high due to Bramlett's poor credit history and prior bankruptcy.

The ultimate rate that Bramlett was offered was affected by a variety of factors, including the prime rate, the Federal Reserve Board's rate setting policy and procedure, the interest rates charged by other lenders, Bramlett's poor credit history, etc. It appears to me that there was no more obligation to disclose the existence or terms of the commission arrangement between Adamson and FMCC than to disclose the multiple other factors which also contributed to the final interest rateoffered to Bramlett. It was as unnecessary to provide an explanation of all of those other factors as it was to provide an explanation of the legitimate, customary arrangement between Adamson and FMCC concerning the rate differential which the Mini-Code and federal law do not require to be disclosed. Adamson disclosed the total interest and finance charges, and Bramlett accepted the loan. Moreover, Bramlett's questions regarding the interest rate were designed to discover why his rate was high. Adamson charged a commission on other loans as well as Bramlett's; therefore, the rate differential was not the relevant reason that Bramlett's rate was high; rather,Bramlett's rate was high because of his credit history. *Page 780

The majority opinion sets a precedent which, by logical extension, may have unexpected, unjustifiable and severe negative consequences to any business, attempting in good faith, to obey the consumer protection laws of this state. Accordingly, I must respectfully dissent.

I dissent because, like Judge Thigpen, I do not believe the undisclosed information (the existence of the "rate differential") was a material fact. The majority's holding that this fact was material and should have been divulged means that there is no component of a seller's pricing structure that will not be subject to mandatory disclosure upon request — even if that component is perfectly legal and is applied across-the-board to all prospective buyers.

I also think that Bramlett's reliance on the representation that the 15.49% interest rate quoted to him by Adamson Ford was the "best rate possible," was unjustifiable as a matter of law.

Under the justifiable reliance standard,

" '[a] plaintiff, given the particular facts of his knowledge, understanding, and present ability to fully comprehend the nature of the subject transaction and its ramifications, has not justifiably relied on the defendant's representation if that representation is 'one so patently and obviously false that he must have closed his eyes to avoid the discovery of the truth.' "

Hickox v. Stover, 551 So.2d 259, 263 (Ala. 1989) (quoting Southern States Ford, Inc. v. Proctor, 541 So.2d 1081, 1091-92 (Ala. 1989) (Hornsby, C.J., concurring specially)).

Bramlett testified by deposition that he had bought and sold between 200 and 300 cars in his lifetime. He had financed between 10 and 20 of those vehicles. Less than 3 weeks before the transaction at issue in this case, Bramlett had bought and financed a vehicle from another Ford dealership at an interest rate of 12.75% — more than 2 1/2 percentage points below the rate he was quoted by Adamson. When Bramlett was asked whether he mentioned to Adamson the fact that he had recently gotten a lower interest rate on a car loan from another dealer, the following occurred:

"A. I trusted my finance and insurance man to do the best he could for me. Because I had bought several vehicles, I assumed — which you know what 'assume' does — but I assumed that he would do what was best for me. And that's as much as I can go on. . . . And, as I mentioned, I'm not a comparison shopper. And I take — sometimes take people at their word too quick. And the man said, 'this is the best I can do on a vehicle and we're out there dickering about the price of the vehicle, I'll argue with him. But when he sits there behind the desk with the financing and he's got the computer, he knows what lenders will do. He knows my situation and what he can do. And I took him at his word that he would do the best he could for me.

"Q. But as you were sitting there that day, you knew that you could shop the interest rates?

"A. Sure, I knew that I could shop interest rate[s]. . . . But I was out to buy the vehicle, not shop."

Bramlett further testified:

"Q. Mr. Bramlett, in the past when you bought — traded all these cars that you talked about buying and trading, did you ever go to one dealer and see a particular car that you liked and negotiate a price on, weren't satisfied with the price, and go to another dealer and get a better deal?

"A. On the car?

"Q. Yes, sir.

"A. Per se?

"Q. Yes, sir.

"A. No, I don't shop dealers.

"Q. You just don't shop, period?

"A. I go — if I see something I want, if I can buy it, I buy it. I'm not a shopper. I do K-Mart the same way and Wal-Mart the same way. I usually know what I want when I go, and that's what I go buy."

Bramlett acknowledged that he could have "shop[ped] interest rates," but he did not do so here. He conceded that he was not a comparison shopper and that sometimes he "[took] people at their word too quick." Although he claims that he trusted Adamson to give him the best deal on interest rates, he had received a substantially better deal on interest rates only three weeks earlier from another dealer. Under the circumstances, Bramlett's reliance was unjustifiable.

In Lucky Manufacturing Co. v. Activation, Inc.,406 So.2d 900, 905 (Ala. 1981), the Alabama Supreme Court held that the buyer of a hydraulic pump could not have relied on the seller's alleged misrepresentation about the pump when the buyer had previously purchased the same type of pump and tested it for a year. Although Lucky Manufacturing is a pre-Hickox fraud case, the principle is the same: Bramlett had no right to rely on Adamson's representation that it had obtained for him the best available interest rate when, less than a month earlier, another dealer had given him a better rate. See Osborne v.Weil, 628 So.2d 436, 438 (Ala. 1993).