author: CHANDLER, J., IRVING, J.,

text:
    SERVICE ELECTRIC SUPPLY COMPANY, INC., Appellant, v. HAZLEHURST LUMBER COMPANY, INC., Appellee.
    No. 2004-CA-02135-COA.
    Court of Appeals of Mississippi.
    Feb. 28, 2006.
    Rehearing Denied June 27, 2006.

      Derek Andrew Henderson, attorney for appellant.
    Dennis L. Horn, Shirley Payne, Madison, attorneys for appellee.
   CHANDLER, J.,

for the Court.

¶ 1. Service Electric Supply Company, Inc. sold electrical parts to Magnum Industrial and Controls, Inc. for use in a building project owned by Hazlehurst Lumber Company, Inc. (HLC). Magnum was the general electrical contractor on the project. On October 1, 2002, Service Electric filed suit against HLC for the value of certain materials which Service Electric had delivered to the job site. HLC moved for summary judgment. Service Electric filed a response and a cross-motion for partial summary judgment.

¶ 2. The trial court granted summary judgment in favor of HLC and denied Service Electric’s cross-motion for partial summary judgment. Service Electric appeals, arguing (1) that a letter from HLC to Magnum and Service Electric created a contractual relationship between HLC and Service Electric; (2) alternatively, that HLC is estopped from denying its liability to Service Electric; and (3) that the trial court should have granted Service Electric’s motion for partial summary judgment and entered a judgment for Service Electric in the amount of $13,787.05.

¶ 3. We find that Service Electric was not entitled to recover payment from HLC for any materials which Service Electric sold to Magnum. Therefore, we affirm the grant of summary judgment to HLC.

FACTS

¶ 4. HLC planned to add updated equipment to its lumber milling operation. On February 11, 1998, HLC contracted with Magnum to perform the electrical work for the project on a cost-plus basis, with the total cost of Magnum’s work not to exceed $240,000. HLC agreed to pay Magnum for all materials used in the project at cost plus ten percent. The construction contract was memorialized as HLC’s Purchase Order No. 24234.

¶ 5. Shortly thereafter, Ronnie Rogers, the owner of Magnum, informed Starke Albritton, HLC’s operations manager, that he wished to purchase electrical supplies for the project from Service Electric. Rogers told Albritton that Larry Stickell, the owner of Service Electric, refused to sell to Magnum unless HLC promised to pay for electrical supplies by joint check payable to Magnum and to Service Electric. In response, Albritton executed the following letter:

February 20,1998
TO: Terry Stickels [sic] and Ronnie Rogers
Hazlehurst Lumber Company agrees to pay for materials used on our project NO. 699-01 by joint check. The check will be made to Service Electric Supply and Magnum Industrial Power and Controls. This in no way affects the responsibility of Magnum to perform to the bid specifications (Dated 1/20/98) and does not in any way alter the purchase order currently in place.
Sincerely,
s/Starke Albritton
Starke Albritton,
Operations Manager
Hazlehurst Lumber Company

¶ 6. Rogers gave a copy of the letter to Stickell. According to Albritton, Stickell called him and asked if HLC was agreeing to pay for any and all materials ordered by Magnum. Albritton said HLC did not agree to pay for any and all materials ordered by Magnum, but only agreed to pay Magnum for parts with joint checks payable to Magnum and to Service Electric. Albritton emphasized that his contract for parts was with Magnum and that the total cost of parts and labor for the project was not to exceed $240,000. Stic-kell stated that Service Electric never would have sold materials to Magnum without the letter from Albritton agreeing to issue joint checks.

¶ 7. Magnum began ordering parts from Service Electric for use on the HLC project. Service Electric shipped the parts to Magnum at the HLC job site. A statement from Service Electric reveals that Service Electric billed Magnum for the parts. Albritton testified that, as the project progressed, Magnum submitted bills to HLC that included parts accountings from Service Electric. HLC paid several such bills by joint check made payable to Magnum and to Service Electric. The amount of each check reflected Magnum’s cost for the parts plus his ten percent profit. Magnum endorsed each check and sent it to Service Electric, which endorsed and cashed the check. Per agreement with Magnum, Service Electric kept Magnum’s ten percent profit as payment toward Magnum’s debt to Service Electric for parts supplied on a prior construction job.

¶8. In April 1998, HLC noticed that Service Electric had overcharged Magnum for certain electrical parts. Magnum contacted Service Electric, which admitted having inadvertently overcharged Magnum. Service Electric issued credit memorandums for the overcharges. At the end of April, HLC instructed Magnum to cease ordering electrical supplies from Service Electric. For the next couple of months, previously ordered parts and their associated invoices continued to arrive from Service Electric.

¶ 9. In June 1998, HLC paid one of Magnum’s bills for Service Electric parts with a check made payable to Magnum alone. This check was in the amount of $13,787.05. Albritton admitted that the check was supposed to have been made jointly payable to Magnum and to Service Electric. He averred that HLC’s accounting office had inadvertently left Service Electric’s name off the check. Magnum cashed the check. Rogers told Stickell that he planned to send the money to Service Electric. Stickell called Albritton and explained the situation. According to Albritton, he told Stickell that HLC would withhold payments from Magnum until Magnum paid the $13,787.05 to Service Electric. In July 1998, Stickell told Al-britton that Magnum had paid it, and HLC resumed payments to Magnum. Later, Stickell told Albritton that, in fact, Magnum had given him a bad check and Service Electric remained unpaid. Service Electric never recovered the $13,787.05 from Magnum.

¶ 10. In late spring and summer 1998, Magnum’s work on the HLC project slowed and, by fall 1998, had stopped entirely. Several HLC employees observed Magnum employees removing electrical supplies from Magnum’s on-site storage trailer. One of Magnum’s employees stated that Magnum was transporting the supplies to other construction sites.

¶ 11. Due to Magnum’s failure to perform, HLC was forced to hire other electrical contractors to complete the project. HLC stopped paying Magnum at the time it became apparent that Magnum was not going to complete the work. Albritton was uncertain whether its total payments to Magnum had met the contract price of $240,000.

¶ 12. Magnum never paid several of Service Electric’s materials invoices. Service Electric sued to recover $33,420.35, the amount of the unpaid invoices, from HLC in contract or quantum meruit. Additionally, Service Electric moved on the ground of estoppel for a partial summary judgment in the amount of $13,787.05, for the check which HLC had made payable to Magnum alone. In its bench opinion granting summary judgment to HLC, the trial court found that Service Electric could not recover in quantum meruit because it had failed to show that it had a reasonable expectation that HLC would pay Service Electric for the materials. Rather, the court found, HLC had a contract with Magnum under which Magnum was to pay materialmen. The court further found that Service Electric was barred from recovering from HLC because it had failed to serve HLC with a stop notice pursuant to Mississippi Code Annotated section 85-7-181 (Rev.1999). Finally, the court found that the February 20 letter was a term ancillary to the HLC-Magnum construction contract which provided for a method of payment. The court found that the letter was not a contract between HLC and Service Electric due to a want of consideration.

STANDARD OF REVIEW

¶ 13. This Court reviews the grant or denial of summary judgment de novo. Stewart v. Hoover, 815 So.2d 1157, 1159(¶ 6) (Miss.2002). The trial court’s grant of summary judgment will be affirmed when “the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” M.R.C.P. 56(c). “[T]o determine which factual issues are material, we must first examine the substantive law that governs the case, and to determine if an issue of material fact is genuine, we must then decide whether ‘the evidence is such that a reasonable jury could return a verdict for the nonmoving party.’ ” Murphree v. Fed. Ins. Co., 707 So.2d 523, 529 (Miss.1997) (quoting Bache v. Am. Telephone and Telegraph, 840 F.2d 283, 287 (5th Cir.1988)). This Court considers all the evidence in the light most favorable to the non-moving party. Hataway v. Nicholls, 893 So.2d 1054, 1057(¶ 9) (Miss.2005).

¶ 14. In the case sub judice, the Court has been asked to review the propriety of the lower court’s grant of summary judgment to HLC and its denial of partial summary judgment to Service Electric. On summary judgment, the movant carries the burden of persuading the court that there is no genuine issue of material fact and that he is entitled to a judgment as a matter of law. Hartford Cas. Ins. Co. v. Halliburton Co., 826 So.2d 1206, 1215(¶ 30) (Miss.2001) (citing Fruchter v. Lynch Oil Co., 522 So.2d 195, 198 (Miss.1988)). The party with the burden of proof of a claim or defense at trial carries the burden of production. Id. If the movant has the burden of proof of a claim at trial, then the movant must demonstrate that the non-movant “has no valid ... defense to the action” and that the movant therefore is entitled to a judgment as a matter of law. M.R.C.P. 56 cmt. To survive summary judgment, the non-moving party then must produce affidavits or other materials showing that a genuine issue of material fact exists to be tried. Hartford Cas. Ins. Co., 826 So.2d at 1215(¶ 31). If the non-moving party bears the burden of proof of a claim or defense at trial, then the moving party must demonstrate that there is no genuine issue of material fact and that the moving party is entitled to a judgment as a matter of law. Id. at (¶ 30). In response, the non-moving party, “by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial.” Id. at (¶ 31) (quoting MST Inc. v. Miss. Chem. Corp., 610 So.2d 299, 304 (Miss.1992)).

LAW AND ANALYSIS

I. DID THE FEBRUARY 20 LETTER FROM HLC TO MAGNUM AND SERVICE ELECTRIC CREATE A CONTRACTUAL RELATIONSHIP BETWEEN HLC AND SERVICE ELECTRIC?

¶ 15. Pertinent to this appeal are the legal relationships between the parties to a construction contract and the suppliers of materials and labor expended in the building project. At common law, materialmen and laborers who have dealt only with the prime contractor are general creditors of the prime contractor and have no right to recovery from the project owner. Chancellor v. Melvin, 211 Miss. 590, 598, 52 So.2d 360, 364 (1951). Mississippi Code Annotated section 85-7-181 (Rev. 1999) provides that a material supplier or laborer not paid by the prime contractor may serve the project owner with a written notice of the nonpayment, termed a “stop notice.” When a material supplier or laborer serves the owner with a stop notice, all funds due from the owner to the prime contractor become bound in the hands of the owner for payment to the party having served the stop notice. Id. A judgment against the owner under section 85-7-181 operates as a lien commencing on the date the stop notice was served. Id. However, the owner’s payment in full of all amounts due to the prime contractor prior to the service of a stop notice extinguishes the owner’s liability. Engle Acoustic & Tile, Inc. v. Grenfell, 223 So.2d 613, 619 (Miss.1969).

¶ 16. Though it experienced problems securing payment from Magnum, Service Electric never availed itself of the statutory lien by serving HLC with a stop notice. Therefore, Service Electric stood as a general creditor of Magnum and did not have any right to recovery from HLC. Chancellor, 211 Miss. at 598, 52 So.2d at 364. Service Electric admits that it never served HLC with a stop notice and that it did not acquire a lien against any funds which HLC owed Magnum. Service Electric argues that no statutory lien was necessary because it had a direct contractual relationship with HLC that arose from the February 20 letter. Service Electric contends that HLC was contractually bound to pay Service Electric for all materials ordered by Magnum for the HLC project and to pay for said materials by joint check.

¶ 17. An enforceable contract requires an offer, acceptance of the offer, and consideration. Krebs v. Strange, 419 So.2d 178, 181 (Miss.1982). We find that HLC was not contractually bound to Service Electric. While HLC did agree to issue joint checks for any materials which Service Electric sold to Magnum for the project, Service Electric had no return obligation to HLC to sell materials to Magnum. Had Service Electric chosen to stop selling materials to Magnum, or had declined to sell Magnum any materials whatsoever, HLC would have had no recourse in contract. Consequently, there was no mutuality of obligation between HLC and Service Electric and, thus, no contract. See United Elec. Corp. v. All Serv. Elec., Inc., 256 N.W.2d 92, 95 (Minn.1977).

¶ 18. Service Electric argues that a unilateral contract existed because the February 20 letter was an offer by HLC to pay Service Electric for all materials ordered by Magnum and to pay by joint check. Service Electric contends that it accepted this offer by performance in the form of selling goods to Magnum, thus creating a unilateral contract. Service Electric contends that the goods it sold to Magnum constituted consideration supporting its agreement with HLC.

¶ 19. We disagree. Service Electric’s sale of goods to Magnum was not consideration to support a contract between HLC and Service Electric. Under the HLC-Magnum construction contract, HLC was to pay Magnum for materials used in the project. The February 20 letter was an agreement between HLC and Magnum as to how HLC would pay Magnum for materials for which it owed payment to Magnum under the contract.

¶ 20. Magnum had an open account with Service Electric. An open account is an unwritten contract. McArthur v. Acme Mechanical Contractors, Inc., 336 So.2d 1306, 1308 (Miss.1976). It “is a type of credit extended through an advance agreement by a seller to a buyer which permits the buyer to make purchases without a note of security and is based on an evaluation of the buyer’s credit.” Cox v. Howard, Weil, Labouisse, Friedrichs, Inc., 619 So.2d 908, 914 (Miss.1993).

¶ 21. As noted, Magnum was behind in its payments on the account and Service Electric refused to sell any further materials to Magnum without a promise to issue joint checks from the owner of the project for which the materials were intended. Magnum secured the joint check agreement from HLC, and, in reliance on that agreement, Service Electric began selling materials to Magnum. Nonetheless, in shipping materials to Magnum, Service Electric was simply performing its contract with Magnum under which Service Electric sold materials to Magnum on open account. A party’s performance of its obligations under a contract does not function as consideration supporting a different agreement. Leggett v. Vinson, 155 Miss. 411, 418, 124 So. 472, 473 (1929). Thus, Service Electric’s shipment of materials to Magnum pursuant to its contract with Magnum was not consideration to support a contract between Service Electric and HLC. We discuss the implications of Service Electric’s reliance upon HLC’s promise to issue joint checks in Issue II.

¶ 22. Since no contract existed between HLC and Service Electric, the latter stands as a general creditor of Magnum. Chancellor, 211 Miss, at 598, 52 So.2d at 364. As previously discussed, Service Electric could have recovered payment from any funds which HLC owed Magnum by serving HLC with a stop notice pursuant to § 85-7-181. While Service Electric has not renewed its quantum meruit argument on appeal, we observe that, since Service Electric’s contract for sale of goods was with Magnum, it could not recover from HLC on that basis. See Holmes v. Shands, 26 Miss. 639, 641 (1854) (stating that [“the owner’s] implied liability that would arise generally from his receiving value from the party furnishing [materials], is taken away by the special contract [the owner] has made [with the prime contractor], and especially by the special contract which [the material supplier] has made with the person with whom the owner of the property has contracted to complete the work”).

II. ALTERNATIVELY, IS HLC ES-TOPPED FROM DENYING ITS LIABILITY TO SERVICE ELECTRIC?

¶ 23. Service Electric argues that, even if there was no contract between it and HLC, HLC was estopped by its representations from denying its liability to Service Electric. The doctrine of promissory estoppel holds:

an estoppel may arise from the making of a promise, even though without consideration, if it was intended that the promise should be relied upon and in fact it was relied upon, and if a refusal to enforce it would be virtually to sanction the perpetuation of fraud or would result in other injustice.

C.E. Frazier Constr. Co. v. Campbell Roofing and Metal Works Inc., 373 So.2d 1036, 1038 (Miss.1979). The purpose of the doctrine of promissory estoppel is to “forbid one to speak against his own act, representations, or commitments to the injury of one to whom they were directed and who reasonably relied thereon.” Koval v. Koval, 576 So.2d 134, 137 (Miss.1991). The doctrine is “a rule of justice which prevails over all other rules” and may, where applicable, “operate to cut off a right or privilege conferred by statute or even by the constitution.” Id. “However, estoppel should only be used in exceptional circumstances and must be based on public policy, fair dealing, good faith, and reasonableness.” Powell v. Campbell, 912 So.2d 978, 982(¶ 12) (Miss.2005) (citing PMZ Oil Co. v. Lucroy, 449 So.2d 201, 206 (Miss.1984)).

¶24. Service Electric claims an estoppel arose because, in shipping materials to Magnum, it detrimentally relied upon HLC’s promise “to pay for materials used on our project NO. 699-01 by joint check.” There are two aspects to Service Electric’s detrimental reliance argument that focus upon the interpretation of the preceding language from the February 20 letter. Service Electric argues that the import of the language was (1) that HLC promised to pay for all materials ordered and (2) that HLC promised to pay for said materials by joint check. HLC argues that the letter only promised to use joint checks as the method of payment to Magnum for his materials bills, and was not a promise to pay for all materials which Magnum ordered.

¶ 25. A review of the entirety of the language in the February 20 letter indicates that the letter was ambiguous. It is impossible to discern from the language of the letter whether HLC promised to pay for all materials used in the project, or simply promised to issue joint checks as a method of payment to Magnum for materials. However, due to the contractual relationships between HLC and Magnum and between Magnum and Service Electric, Service Electric could not reasonably have construed the letter as HLC’s agreement to pay for all materials ordered. Service Electric knew that HLC’s construction contract was with Magnum and that Magnum would sell HLC all electrical supplies used in the project. Since HLC had a contract for. parts with Magnum, Service Electric could not reasonably have construed the letter to signify that HLC would buy parts directly from Service Electric. Further, Albritton’s undisputed testimony indicated that he told Stickell it was not HLC’s intent to directly purchase materials from Service Electric. Rather, if Service Electric so elected, Service Electric could sell materials to Magnum on open account. For these reasons, it would have been unreasonable for Service Electric to construe the letter as HLC’s promise to pay for all of the materials which Magnum ordered from Service Electric.

¶ 26. Albritton’s testimony shows that what HLC did intend for Service Electric to rely upon, and what Service Electric did rely upon, was HLC’s promise to issue joint checks to Magnum when Magnum presented HLC with a bill for parts from Service Electric. It was undisputed that Service Electric would not extend credit to Magnum without this assurance from HLC. When Magnum relayed Service Electric’s position to HLC, HLC gave Service Electric a written assurance that it would issue joint checks. Service Electric relied upon HLC’s assurance by selling parts to Magnum on open account. Then, HLC issued joint checks as promised.

¶ 27. Service Electric argues that it relied on HLC’s assurance to its detriment because HLC made one check for $13,787.05 payable to Magnum alone. Indeed, Albritton admitted that the check was intended to have been made jointly payable to Magnum and Service Electric. Magnum cashed the check and absconded with the funds which it owed Service Electric. HLC knew that the reason Service Electric requested that HLC issue joint checks was to protect itself from the occurrence of this exact event. Thus, Service Electric did incur detriment from HLC’s failure to issue a joint check as promised.

¶ 28. HLC argues that Service Electric had an opportunity to cure the detriment it suffered from HLC’s failure to issue a joint check. HLC points out that Albrit-ton told Stickell that HLC would withhold payment to Magnum until Magnum paid over the $13,787.05 to Service Electric. In fact, Magnum gave Stickell a check, Stic-kell assured Albritton that Service Electric had been paid, and HLC resumed payments to Magnum. Then, Stickell found out from the bank that Magnum’s account had insufficient funds to cover the check, and Stickell complained to HLC that Service Electric had not been paid after all. HLC argues that Service Electric should have assured itself that Magnum’s check was good before inducing HLC to release funds to Magnum.

¶ 29. For estoppel, “the test is whether it would be substantially unfair to allow a person to deny what he has previously induced another to believe and take action on.” Koval, 576 So.2d at 138. We have found that HLC intended for Service Electric to rely upon a promise to issue joint checks and that Service Electric reasonably relied upon the promise to its detriment. However, any injustice that resulted from HLC’s failure to issue a joint check was abrogated by Service Electric’s negligent failure to assure itself that Magnum’s check was good before notifying HLC that it could release funds to Magnum. HLC resumed paying Magnum in reliance upon Service Electric’s assurance that it had been paid the $13,787.05. In this circumstance it would be inequitable for HLC to be made to pay twice. We affirm the grant of summary judgment in favor of HLC.

III. SHOULD THE TRIAL COURT HAVE GRANTED SERVICE ELECTRIC’S MOTION FOR PARTIAL SUMMARY JUDGMENT AND ENTERED A JUDGMENT FOR SERVICE ELECTRIC IN THE AMOUNT OF $13,787.05?

¶ 30. We have disposed of this assignment of error under Issue II.

¶ 31. THE JUDGMENT OF THE CIRCUIT COURT OF COPIAH COUNTY IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

KING, C.J., LEE AND MYERS, P.JJ., BARNES, ISHEE, ROBERTS, JJ., CONCUR. SOUTHWICK, J. CONCURS IN RESULT ONLY. IRVING, J., DISSENTS WITH SEPARATE WRITTEN OPINION, JOINED BY GRIFFIS, J.

IRVING, J.,

dissenting.

¶ 32. I cannot agree that summary judgment was properly granted to Hazle-hurst Lumber Company, Inc. (HLC), because the record clearly reflects that there are genuine issues of material facts. Additionally, contrary to the holding of the majority, there is ample evidence to support a finding that a contract existed between HLC and Service Electric Supply Company, Inc. (SESCO). Therefore, for the reasons set out below, I respectfully dissent. I would reverse and render the summary judgment rendered in favor of HLC and remand this case to the trial court for a full trial on the merits.

¶ 33. The central holding of the majority opinion is that, notwithstanding HLC’s breach of its promise to SESCO, SESCO’s own negligence prevents it from prevailing. The factual underpinning for the majority’s holding is the premise (1) that there is no dispute that HLC offered to rectify the damage caused by its breach, (2) that SESCO assured HLC that SESCO had been made whole, and (3) that only after this assurance did HLC again make checks payable to Magnum Industrial Power and Controls, Inc. (Magnum) without SESCO being included as a co-payee. As will be demonstrated from quoted passages of SESCO’s Rule 80(b)(6) deposition, submitted in support of HLC’s motion for summary judgment, the majority’s working premise is clearly erroneous.

¶ 34. I first discuss some facts not included in the majority opinion, which, in my view, are material and indicative of why the grant of summary judgment was improper.

¶ 35. Sometime prior to February 20, 1998, HLC and Magnum entered into a contract, which obligated Magnum to construct a new logging plant for HLC. However, Magnum could not obtain the materials for the project. It wanted to buy them from SESCO, presumably on an open account, but SESCO would not agree unless the owner of the project (HLC) agreed to make payments for materials used on the project payable jointly to SESCO and Magnum.

¶ 36. Magnum contacted HLC and asked if HLC would make the payments jointly to SESCO and Magnum, as required by SESCO. HLC agreed and sent the following letter to Herbert Larry Stic-kell, owner of SESCO, and to Ronnie Rogers, owner of Magnum:

To: Terry Stickels [sic] and Ronnie Rogers
Hazlehurst Lumber Company agrees to pay for materials used on our project NO. 699-01 by joint check. The check will be made to Service Electric Supply and Magnum Industrial Power and Controls. This in no way affects the responsibility of Magnum to perform to the bid specifications (dated 1/20/98) and does not in any way alter the purchase order currently in place.
Starke Albritton,
Operations Manger
Hazlehurst Lumber Company

¶ 37. After receiving the letter from HLC, SESCO provided materials for the project and was paid at least three payments in accordance with HLC’s commitment under the letter. However, on either June 5 or 8, 1998, HLC issued a materials and supplies check for $13,787.05 payable to Magnum only. This check was for an invoice dated April 16. An invoice for $27,402.68, dated June 1 was also forwarded to HLC. On July 7, HLC issued a check for $6,259.40 payable to Magnum only.

¶ 38. The majority finds that, on these facts, the doctrine of promissory estoppel applies and that SESCO relied to its detriment on HLC’s promise to issue joint checks for all materials and supplies provided by SESCO. I agree. However, since the majority addresses only the $13,787.05 check issued without SESCO being included as a payee, I briefly defer my discussion of the matter of the $13,787.05 check to address the totality of the issues raised in the court below.

¶ 39. SESCO sued HLC for $47,207.40 for materials delivered to the HLC project. When HLC filed for summary judgment, SESCO denied that HLC was entitled to summary judgment and moved for partial summary judgment in its favor on the $13,787.05 check HLC had issued in violation of HLC’s promise to make all checks jointly payable to SESCO and Magnum. SESCO never abandoned its claim that it was entitled to the balance of the $47,207.40, or $33,420.35. It just did not seek summary judgment on that amount. Since the majority finds that promissory estoppel is applicable to the $13,787.05 check, I cannot understand its reasons for not addressing the applicability of promissory estoppel to the total of SES-CO’s claim.

¶ 40. I return to a discussion of the $13,787.05 check. The majority finds that “any injustice that resulted from HLC’s failure to issue a joint check was abrogated by Service Electric’s negligent failure to assure itself that Magnum’s check was good before notifying HLC that it could release funds to Magnum. HLC resumed paying Magnum in reliance upon Service Electric’s assurance that it had been paid the $13,787.05.” Majority opinion at (¶ 29).

¶ 41. With respect for my colleagues in the majority, I must say that the summary judgment record presented here demonstrates unquestionably that there is a genuine issue regarding whether SESCO ever informed HLC that SESCO had been paid the $13,787.05 and that HLC could release funds to Magnum. The majority says that this allegation was established as a fact by Albritton’s deposition testimony, that it was not refuted by any evidence submitted by SESCO, and that Stickell never denied making the statement to Albritton. Although Stickell was not specifically asked if he told Albritton that SESCO had been paid, he was asked whether he had a conversation with Albritton in which Albritton stated that Albritton would withhold other monies from Magnum to make the $13,787.05 check good. Stickell’s answer to that question was that no such conversation occurred. The key issue is what did HLC do or offer to do to cure the damage caused by its breach of its obligation to issue checks payable jointly to SESCO and Magnum for materials used on HLC’s project. On this key issue, there is a dispute. HLC says it offered to withhold other monies from Magnum, and SESCO says no such conversation occurred.

¶ 42. Also, the majority’s says that after “Stickell found out from the bank that Magnum’s account had insufficient funds to cover the check, and Stickell complained to HLC that Service Electric had not been paid after all.” Majority opinion at (¶ 28). That is a true statement, but in the context used by the majority, is misleading. According to Stiekell’s deposition testimony, after being given the check by Magnum, he immediately called the bank and found out that the check was no good.

¶ 43. The Rule 30(b)(6) deposition of Herbert Larry Stickell, which was made an exhibit to HLC’s motion for summary judgment, reveals the disputed material facts. I quote liberally from it:

Q. Now, did you have the conversations with Starke about—
A. About this check?
Q. —what to do about that? Yes.
A. Right.
Q. All right. What—
A. He said—
Q. What was said?
A. There at the end he said, “Well, I paid him. You’re going to have to collect from him.”
Q. Well—
A. It’s in these notes right here.
Q. What was said before then?
A. He said, “You’re going to have to get your money from him.”
Q. Well, now, you’ve heard him testify — or you know his deposition says that you told him, told Starke Al-britton to go ahead and release monies to Magnum, otherwise he’d offered to make it good and hold out the money—
A. Do what, now?
Q. (⅜) send to you.
A. (*) Tell me that again, what you said.
Q. Did you ever have a conversation with Starke Albritton where he said he would make the [$]13,000 good by holding out other monies from Magnum for you ?
A. No, no.
Q. All right. Tell me what you and Starke Albritton did say to each other about Exhibit 35.
A. The only thing — I kept trying to get this money—
Q. From whom?
A. —and it was getting it — from Magnum.
Q. Right.
A. It was getting it from Magnum.
(Emphasis added)

¶ 44. Also, as previously stated, the record does not reflect that the check given to SESCO by Magnum was returned for insufficient funds. A balanced and fair reading of the record reveals that after SESCO received the check, SESCO checked with the bank and learned that there were not sufficient funds in Magnum’s account to cover the check. Thereafter, SESCO continued to call the bank on a daily basis to see if the account ever possessed sufficient funds to cover the check. This is what the record reflects on this point:

Q. All right. Then at 30 we’re asking for any information, now, not just documents but anything you know about communications between agents for SESCO, not just you but anybody working for you, agents of Magnum, not just Ronnie, if there’s somebody else, and SESCO and Ha-zlehurst Lumber or their agents, any of you folks in the three reflecting how to process and account for this $13,000 check, we’ve been calling it, the $13,878.05, check No. 3904. Anyone else talk about how to process that check, what agreements were made, what conversations were had? Tell me about the $13,000 check.
A. Check wasn’t no good.
Q. Well, that’s the check you got from — .
A. Anyway, the check was supposed to have been made out to SESCO and Magnum or Magnum and SESCO. It was supposed to be a joint pay. Q. So you said you got the check from Magnum, and it was no good. Did you try to run it through more than once?
A. I called every day for three months on it, because if it was there I was going to run and get it. But let me start back—
Q. Did you ever—
A. —let’s make sure—
Q. —get payment on that check—
A. No.
Q. —are you still holding that check?
A. No, I didn’t never get it. Yeah, I got that check.
Q. You still have it in your physical— A. It’s bad.
Q. —possession. It came back from the bank stamped INS?
A. No, it did not come back from the bank non-sufficient funds.
Q. You’re holding it in your drawer. Where is the check?
A. I got it.
Q. You got it.
MS. PAYNE: Could we get a copy of that?
MR. HENDERSON: That’s fine.
A. But the check, getting back to the answer, the check was suppose to have been made out joint pay, and it was not made out joint pay. The computer at Hazlehurst made a error.
BY MS. PAYNE:
Q. Now, did anyone else have any conversations about this check from SESCO other than you?
A. Carol Bates heard the conversation, my end, with Starke Albritton.
Q. Did she talk to anyone directly? Did Carol Bates talk to anyone at Magnum—
A. She was trying to help me get the check made good. And I was calling Magnum, and she was calling the bank. And I called the bank everyday to see if the check was good.
Q. Did she call Magnum too?
A. She called the bank.
Q. Just the bank. Did anyone else keep calling Magnum for you trying to get the payments—
A. I tried—
Q. —were there any other communications?
A. And you can see — I got some correspondence, I think, on the check trying to get them to pay the check. MS. PAYNE: We’d like—
A. You know, in the state of Louisiana—
MS. PAYNE — copies of that correspondence, because we’re trying to find out what if it’s made—
MR. HENDERSON: Correspondence to who? What do you mean by “correspondence,” Larry?
THE WITNESS: The correspondence — I called him several times. I even called Starke back and told him that he was going to send me a check on his account when the joint pay wasn’t there. I called Starke back and let him know the damn check wasn’t no good. BY MS. PAYNE:
Q. And that would have been about June of '98?
A. That would have been shortly after he gave me the check because it wouldn’t have took it long to have been processed. We can—
Q. After Ronnie — •
A. —we can—
Q. —gave you the check.
A. We can look at his check date. Okay? And it toas shortly after that period when Starke told me this is the check, bid the compider made the error. You knotv, it wasn’t no person sitting there making the error. The computer made the error and didn’t put our name on it.

¶ 45. I now turn to the issue of the contract. The majority finds that no contract existed between SESCO and HLC because of a lack of consideration. The majority states that “in shipping materials to Magnum, Service Electric was simply performing its contract with Magnum under which Service Electric sold materials to Magnum on open account.” Then, citing Leggett v. Vinson, 155 Miss. 411, 124 So. 472, 473 (1929), the majority opines that “[a] party’s performance of its obligations under a contract does not function as consideration supporting a different agreement.” Majority opinion at (¶ 21).

¶ 46. Here again, the majority’s working factual premises are erroneous. There was no separate contract between Magnum and SESCO, obligating SESCO to provide materials to Magnum on an open account. If that were the case, Magnum would not have needed HLC’s assistance. Magnum just could have enforced its contract. That no contract existed between Magnum and SESCO is made amply clear by the following excerpts from Stickell’s deposition:

Q. So how did it come to your attention that you were [$]20,000 in the hole on that job [referring to a previous job by Ronnie Rogers of Magnum]?
s*c ⅜ ⅜ ⅜
A. Well, I look at every statement before it goes out, and here comes this job up. And then finding out the name of the job and finding out it was Rogers, it was a difficult time. And I never heard from Rogers until they wanted to do this job here [the HLC job]. And I told him, I said no way. He said if — he said, “I’m doing it for a good company, and if I can get it agreed to do joint pay, would you be interested in it?” I said yeah but that I’d have to have something in writing on a joint pay before-I would do it.
⅝ ⅜ # ⅝
Q. Is it fair to say that you had your conversation with Ronnie Rogers before February 9 of 1998?
A. I should have, because — now, he may have come up and bid and gave Starke a price at that time without even getting a price from us, you know. It’s hard to remember exactly what transpired five years ago to the dates. But I do know this: I told him before I would sell him anything on a job that he had to get me a letter where his customer would agree to joint payment or I would not sell him.
* * * *
Q. When was the first time you ever talked to Starke Albritton, near as you can figure it?
A. Now this is speculation, but I might have made sure this letter was good.
Q. And you’re referring to No. 24.
A. Yeah.
Q. So when you got 24 in your hands, you had the letterhead from Hazle-hurst Lumber, it’s got the phone number, you could pick up the phone and say, Hey, is this real?”
A. Well, I mean, I’m saying that, and it may or may not be so. Okay? But I know this: Before I would have sold [to Ronnie Rogers of Magnum], I would have had to have this, and I would have confirmed it more than likely in some kind of way.
Q. And “this” being No. 24.
(Emphasis added)

¶ 47. The quoted passages clearly demonstrate that Magnum had no separate contract with SESCO whereby SESCO was obligated to furnish Magnum materials on an open account. Rather, the passages prove that there was a contract between SESCO, Magnum and HLC. The shipping of materials by SESCO constituted acceptance of HLC’s promise to pay for the materials by making its check payable jointly to Magnum and SESCO. It also constituted consideration flowing to HLC, as HLC could now be assured that its project would get underway by its chosen contractor, which theretofore did not have the materials to perform the project. Such assurance was sufficient consideration for HLC’s promise to make joint checks for payment of the materials. It is speculation as to whether Magnum could have obtained the materials from another supplier on an open account. For our purposes, it is sufficient that that option, if available, was never pursued. Therefore, there is no need to address this issue.

¶ 48. In summary, I would reverse and remand this case to the trial court for trial, not only on SESCO’s entitlement to the $13,787.05, but also on its entitlement to the entire amount for which suit was brought. There is a genuine issue of material fact regarding the $13,787.05 check, that is, whether SESCO told HLC that SESCO had been paid and that HLC could release funds directly to Magnum. From my reading of the record, I find that, as to the remaining $33,420.35, there is also a dispute as to whether the materials which are reflected in the invoices comprising the $33,420.35 figure were in fact used on HLC’s project.

¶ 49. For the reasons discussed, I respectfully dissent.

GRIFFIS, J., JOINS THIS SEPARATE WRITTEN OPINION.

      . Stickell testified that, at the inception of the HLC project, Magnum already owed Service Electric approximately $25,000 for prior materials purchases.

      . An August 18, 1998 letter from HLC to Magnum was partially read into Albritton's deposition. In the letter, HLC communicated that it would make no further payments to Magnum until Magnum paid Service Electric the $13,787.05.

      . In United Electric, the Minnesota supreme court reached this result concerning an analogous joint check arrangement. United Elec. Corp., 256 N.W.2d at 95. We consider this result to be a sound one that reflects the intent of the parties sub judice as well as the business practices of the construction industry in Mississippi.

      . This was established by Albritton’s deposition testimony and unrefuted by any evidence submitted by Service Electric. In his deposition, Stickell never denied telling Albritton that Service Electric had been paid.

      .As will be discussed more fully later in this opinion, HLC agreed to make joints checks to SESCO and Magnum for materials supplied by SESCO for use on HLC’s building project. However, HLC breached its promise, making one check for $13,787.05 payable to Magnum only. SESCO never recouped the $13,787.05.

      . At the time, Magnum owed SESCO $20,000 for supplies furnished to Magnum on another project unrelated to HLC.

      . This letter was exhibit 24 of the various exhibits presented in the summary judgment proceedings.

      . It is interesting that the majority would cite HLC’s August 18, 1998 letter to Magnum as evidence of HLC's contention that it promised to withhold further payments to Magnum until Magnum paid SESCO the $13,787.05. The record does not indicate that any payments were made to Magnum after August 18. However, the record reflects that several payments were made to Magnum only after SES-CO's invoice for the $13,787.05, which was sent in April.

      . Starke refers to Dan Stark Albritton, Jr., part owner and operations manager, of HLC.

      . (*) indicates that a portion of the question is obliterated as a result of holes being punched at the top of the page for binding purposes.

      .Exhibit 35 is a copy of the $13,787.05 check


source: Caselaw Access Project

author: BARNES, J.,

license: Public Domain

text:
    Dennis DOBBS, Appellant v. STATE of Mississippi, Appellee.
    No. 2004-CP-01751-COA.
    Court of Appeals of Mississippi.
    March 7, 2006.
    Rehearing Denied June 27, 2006.

      Dennis Dobbs, Appellant, pro se.
    Office of the Attorney General by Deirdre McCrory, attorney for Appellee.
    Before MYERS, P.J., BARNES and ISHEE, JJ.
   BARNES, J.,

for the Court.

¶ 1. Dennis Dobbs, pro se, appeals the Circuit Court of Clay County’s dismissal of his motion for post-conviction relief. Finding no error, we affirm.

SUMMARY OF FACTS AND PROCEDURAL HISTORY

¶2. In April 2002, Dobbs was indicted for uttering a bad check in the amount of $176.40, in violation of section 97-19-55 of the Mississippi Code (Rev.2000). Dobbs signed a sworn petition to enter a guilty plea in which he acknowledged the district attorney’s recommendation that he serve one year in the custody of the Mississippi Department of Corrections, with two years of post-release supervision, pay a fine to be set by the court, and pay restitution in the amount of $2,256.50. Thereafter, on July 18, 2002, Dobbs pled guilty in the Circuit Court of Clay County. Prior to sentencing, Dobbs filed a motion to withdraw his guilty plea on the basis that the amount of restitution he had agreed to pay was too high. At the hearing on Dobbs’s motion to withdraw his plea, it became apparent that Dobbs only disputed the amount of restitution he would be ordered to pay, not any other element of his punishment. The circuit judge rejected Dobbs’s motion to withdraw his plea, and stated that he would order a review to ensure that Dobbs was properly credited for restitution payments made pursuant to his prior conviction. Dobbs was subsequently sentenced to one year in the custody of the Mississippi Department of Corrections, with two years of post-release supervision, was fined $500, and was ordered to pay restitution in the amount of $2,256.50. After being released from confinement in 2003, Dobbs had his term of post-release supervision revoked due to an alcohol violation, and was again imprisoned. On June 21, 2004, Dobbs filed a motion for post-conviction relief in the Circuit Court of Clay County in which he asserted (1) that his guilty plea had not been entered knowingly and voluntarily; (2) that he had received ineffective assistance of counsel; and (3) that he had been exposed to double jeopardy. In an order issued July 19, 2004, the circuit court dismissed Dobbs’s motion, and Dobbs timely appealed to this Court.

ISSUES AND ANALYSIS

STANDARD OF REVIEW

¶ 3. Our standard of review on a denial of a motion for post-conviction relief is well-established. We will not reverse the trial court unless we find that the court’s decision was clearly erroneous. Smith v. State, 806 So.2d 1148, 1150(¶3) (Miss.Ct.App.2002).

I. WHETHER DOBBS’S GUILTY PLEA WAS ENTERED KNOWINGLY AND VOLUNTARILY.

¶ 4. Dobbs argues that it was impossible for him to knowingly and voluntarily plead guilty to a felony, as the crime with which he was charged was a misdemeanor. Dobbs asserts that he was indicted pursuant to section 97-19-39(1) of the Mississippi Code, which, in its current form, states:

Every person who, with intent to cheat or defraud another, shall designedly, by color of any false token or writing, or by another false pretense, obtain the signature of any person to any written instrument, or obtain from any person any money, personal property, or valuable thing, with a value of less than Five Hundred Dollars ($500.00), upon conviction thereof, shall be guilty of a misdemeanor and punished by imprisonment in the county jail not exceeding six (6) months, and by fine not exceeding One Thousand Dollars ($1,000.00).

Miss.Code Ann. § 97-19-39 (Supp.2005). Dobbs is mistaken. It is clear from the indictment and the record of the plea colloquy that Dobbs was charged with, and pled guilty to, uttering a bad check in violation of section 97-19-55 of the Mississippi Code. The version of section 97-19-55 that was effective at the time of the crime read as follows:

It shall be unlawful for any person with fraudulent intent: (a) To make, draw, issue, utter or deliver any check, draft or order for the payment of money drawn on any bank, corporation, firm or person for the purpose of obtaining money, services or any article of value, or for the purpose of satisfying a preexisting debt or making a payment or payments on a past due account or accounts, knowing at the time of making, drawing, issuing, uttering or delivering said check, draft or order that the maker or drawer has not sufficient funds in or on deposit with such bank, corporation, firm or person for the payment of such check, draft or order in full, and all other checks, drafts or orders upon such funds then outstanding; (b) To close an account without leaving sufficient funds to cover all outstanding checks written on such account.

Miss.Code Ann. § 97-19-55 (Rev.2000). Section 97-19-67 of the Mississippi Code prescribes the punishment for violations of section 97-19-55, and defines as a felony the violation of section 97-19-55 where the check in question is written for $100 or more. Miss.Code Ann. § 97 — 19—67(l)(d) (Rev.2000). In such an instance, a person found guilty of committing the offense may be fined between $100 and $1,000, may be imprisoned up to three years, or may face both a fine and prison sentence. Id.

¶ 5. The indictment against Dobbs tracks the statutory language set forth in section, 97-19-55, charging that:

DENNIS DOBBS ... unlawfully, wilfully & feloniously obtained] merchandise, the property of Wal-Mart Stores, Inc., by presenting to an employee of Wal-Mart Stores, Inc., a certain check on BankFirst, Inc., well knowing at the time of issuing, signing and delivering said check, that he did not have a sufficient amount of money or funds on deposit to his credit in said bank with which to pay said check....

Furthermore, at the hearing in which Dobbs pled guilty, he acknowledged that he understood the charge against him was that he passed a bad check over $100, and that he had been informed of the elements of the offense. He also stated that he understood that the maximum sentence he could receive was a sentence of up to three years of imprisonment and a fine of not more than $1,000.

¶ 6. Dobbs’ assertion that he was charged with a misdemeanor and thus improperly sentenced is clearly incorrect, as shown by the indictment and plea colloquy. As this is the only ground upon which Dobbs bases his claim that his plea was not entered voluntarily and intelligently, this claim of error must fail.

II. WHETHER DOBBS RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL.

¶ 7. Dobbs also claims that he suffered from ineffective assistance of counsel in two respects. First, Dobbs claims that his appointed defense counsel, Thad Buck, served as an assistant district attorney in prior criminal proceedings against him for uttering bad checks. Secondly, Dobbs claims that defense counsel misled him into entering a plea agreement in the present ease.

¶ 8. The test for ineffective assistance of counsel is stated in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Under Strickland, the defendant bears the burden of establishing ineffective assistance of counsel. In order to meet this burden, the defendant must show (1) that defense counsel’s performance was deficient when measured by the objective standard of reasonable professional competence, and (2) that the defendant was prejudiced by counsel’s failure to meet that standard. Pleas v. State, 766 So.2d 41, 42(¶3) (Miss.Ct.App.2000) (citing Wiley v. State, 750 So.2d 1193, 1198(¶ 11) (Miss.1999)). Where a defendant enters a guilty plea, the key question is whether “there is a reasonable probability that had counsel’s assistance been effective, [the defendant] would not have pled guilty, but would have insisted on going to trial.” Id. at 43(¶ 7) (citing Bell v. State, 751 So.2d 1035, 1038(¶14) (Miss.1999)). Such a defendant “must specifically allege facts showing that effective assistance of counsel was not in fact rendered, and he must allege with specificity the fact that but for such purported actions by ineffective counsel, the results of the trial court decision would have been different.” Roby v. State, 861 So.2d 368, 370(¶8) (quoting Smith v. State, 434 So.2d 212, 219 (Miss.1983)). Furthermore, in the case of a purported conflict of interest, the United States Supreme Court has stated that “[p]rejudice is presumed only if the defendant demonstrates that counsel ‘actively represented conflicting interests’ and that an ‘actual conflict of interest adversely affected his lawyer’s performance.’ ” Davis v. State, 897 So.2d 960, 970(¶30) (Miss.2004) (citing Strickland, 466 U.S. at 692, 104 S.Ct. 2052).

¶ 9. Other than the purported conflict of interest, Dobbs fails to specifically identify how his attorney’s performance was deficient; furthermore, the record does not reflect deficient performance on the part of Dobbs’s counsel. As to the alleged conflict of interest, Dobbs has not shown that an actual conflict existed, that his attorney actively represented other interests, or that the conflict (if any) adversely affected his attorney’s performance. Dobbs has not met his burden of proof on this claim of error, and thus this issue is without merit.

III. WHETHER DOBBS WAS EXPOSED TO DOUBLE JEOPARDY.

¶ 10. Dobbs claims that his failure to pay restitution pursuant to a prior felony conviction for uttering bad checks was used as the reason to revoke his term of post-release supervision in the present case, and that this impermissibly exposed him to double jeopardy. In dismissing Dobbs’s motion for post-conviction relief, the circuit court found that Dobbs’s post-release supervision was revoked due to an alcohol violation. As there is nothing in the record to contradict the circuit court’s finding, we cannot rule that this finding was clearly erroneous. Accordingly, we find this issue to be without merit.

¶ 11. THE JUDGMENT OF THE CLAY COUNTY CIRCUIT COURT DISMISSING THE MOTION FOR POST-CONVICTION RELIEF IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO CLAY COUNTY.

KING, C.J., LEE AND MYERS, P.JJ., SOUTHWICK, IRVING, CHANDLER, GRIFFIS, ISHEE AND ROBERTS, JJ., CONCUR.

      . Dobbs had previously been convicted of uttering bad checks, and had been ordered to pay restitution in that case. The $2,256.50 reflected the sum of outstanding restitution payments from Dobbs's previous conviction and restitution to be paid for the more recent crime.

      . The record shows that Dobbs expressed concern that he had not been properly credited for past restitution payments, and that this was the sole basis of his petition.

      . The version of section 97-19-39 in effect at the time the crime was committed classified the crime as a felony, regardless of the value of the property wrongly procured. The distinction classifying the crime as a misdemean- or when the value of the property taken is less than $500 was introduced in a 2003 amendment to the statute. See Laws 2003, Ch. 499, § 5, eff. July 1, 2003. Dobbs’ reliance upon a version of the statute not in effect at the time of the crime further undermines his assertion that he was actually charged with a misdemeanor under section 97-19-39.


author: STUART, Justice.

text:
    FREIGHTLINER, L.L.C. v. WHATLEY CONTRACT CARRIERS, L.L.C.
    1040055.
    Supreme Court of Alabama.
    Oct. 21, 2005.
    Rehearing Denied Jan. 13, 2006.

      Peter S. Fruin of Maynard, Cooper & Gale, P.C., Montgomery; and John N. Bolus of Maynard, Cooper & Gale, P.C., Birmingham, for appellant.
    L. Landis Sexton of Hamilton, Sexton & Berry, LLC, Montgomery; and Greg L. Davis, Montgomery, for appellee.
   STUART, Justice.

Freightliner, L.L.C., appeals from a judgment based on a jury verdict awarding Whatley Contract Carriers, L.L.C. (“WCC”), $440,000 in compensatory damages and $750,000 in punitive damages on WCC’s suppression claim. We reverse and remand for the entry of a judgment as a matter of law in favor of Freightliner.

Background

This action concerns the performance of 40 long-haul trucks manufactured for WCC by Freightliner. Freightliner has manufacturing plants in Portland, Oregon; Mt. Holly, North Carolina; Cleveland, Tennessee; and Santiago, Mexico. Freightliner of Southern Alabama is a Freightliner dealership located in Montgomery.

WCC, now out of business, was a commercial long-haul trucking company. WCC hauled goods into 48 states. Joseph Whatley, the managing member of WCC, has extensive experience in the trucking industry; Whatley has been involved in the trucking industry since he was a child. Whatley’s father owned a truck stop, operated a business engaged in manufacturing tractor-trailers, and operated a long-haul trucking business. Upon graduating from college in 1975, Whatley started his own trucking business. He started his business with five trucks, and by the mid-1990s Whatley’s business owned 150 trucks. According to Whatley, he was “always buying trucks and always buying trailers.” WCC went out of business in 2001.

In January and February 1999, WCC purchased 40 trucks from Freightliner of Southern Alabama. Freightliner manufactured those 40 trucks at its plant in Mexico and had the trucks delivered to WCC in Alabama. Immediately upon delivery of the trucks, Whatley complained of problems with the trucks. He alleged that they experienced constant breakdowns and had numerous manufacturing defects to the point that the trucks could not be used as intended. Whatley also claimed that Freightliner and Freightliner of Southern Alabama suppressed material information from him and from WCC regarding the deficiencies in the production quality at Freightliner’s Mexico plant, which, What-ley and WCC alleged, Freightliner and Freightliner of Southern Alabama knew of and had a duty to disclose.

On February 16, 2001, Whatley and WCC sued Freightliner and Freightliner of Southern Alabama, alleging misrepresentation, suppression, breach of contract, breach of express and implied warranties, negligence and/or wantonness, and negligent and/or wanton training and supervision. Freightliner denied Whatley and WCC’s claims; Freightliner of Southern Alabama also denied those claims and asserted a counterclaim against WCC seeking $39,537.02 in damages on its claims of breach of contract, unjust enrichment, and open account.

The trial court entered summary judgments in favor of Freightliner and Freightliner of Southern Alabama as to all of WCC’s claims except the suppression and breaeh-of-implied-warranty claims. The trial court also dismissed the claims asserted by Whatley in his personal capacity.

Freightliner and Freightliner of Southern Alabama also moved for judgments as a matter of law on the suppression claim and the breach-of-implied-warranty claim. In their motion they asserted, among other things, that Freightliner had no duty to disclose to WCC any latent defects in the trucks; that WCC failed to produce evidence indicating that Freightliner had suppressed any alleged defects; that Whatley made no specific and direct inquiry on behalf of WCC for information regarding alleged defects and, thus, no duty to disclose in this commercial transaction arose; that a request for information about a product’s future performance is generally considered a solicitation of an opinion and a response to such a request is considered an opinion rather than a statement of fact and a statement of opinion cannot form the basis of a suppression claim; and that WCC’s suppression claim was barred by the statute of limitations. The trial court denied this motion.

WCC’s claims of suppression and breach of implied warranty and the counterclaim asserted by Freightliner of Southern Alabama against WCC were tried before a jury. The following facts, which we find relevant to this opinion, emerged from the evidence presented at trial.

In July 1998, Whatley, on behalf of WCC, sought to purchase 69 “FLD 120” trucks from Freightliner of Southern Alabama. Freightliner had 4 trucks that it said it could deliver to WCC within a month. Because Freightliner had not yet produced the 65 remaining trucks and could not produce them for some time, it could not commit to deliver the next 40 of the trucks until July 1999 — approximately a year from the date Whatley placed the order. Freightliner could not specify a delivery date for the remaining 25 trucks. However, WCC needed the trucks sooner if possible. Whatley and the local dealership discussed the possibility of having Freightliner deliver the lot of 40 trucks earlier than July 1999.

In August or September 1998, Steve Murphy, the general manager of Freight-liner of Southern Alabama, telephoned Whatley regarding the delivery of the 40 trucks. Whatley summarized this conversation as follows:

“Steve [Murphy] told me that he thought he had found a way to get the [40] trucks quicker for me and that he knew I needed them quickly. I asked him how he had done that. He said, Well, would you take Mexican trucks if that would speed them up getting them to you?’ I said, Well, why wouldn’t I, Steve? You know, you know how bad I needed them.’ He said, Well, I think we have found a way to get the trucks for you quicker. Are you okay with Mexican trucks?’ I said ‘Aren’t they the same specs that I have got?’ ‘Yes,’ he answered. I said, Well, aren’t they the same specs that we talked about?’ And again he says, You know, yeah, they are.’ They are the same trucks.’ I said, Well, why wouldn’t I want them from there?’ He said, T just wanted to check with you. Let me see what I can do and I will be back in touch with you.’ ”

Whatley stated that he had another telephone conversation with Murphy a few days after this conversation. Murphy added to this second telephone conversation an unidentified man from the Freightliner office in Portland who was in charge of scheduling, and Whatley discussed with this man potential delivery dates for the 40 trucks that would be manufactured in Mexico. According to Whatley, the unidentified man from Portland hung up the telephone and Whatley and Murphy continued to talk. According to Whatley, Murphy told him the Mexico plant was a new plant for Freightliner. Whatley testified:

“He [Murphy] again says, You know, are you okay with this? You know, we are doing this and doing all we can because we know you need the trucks so fast and want to try to get them to you.’ I thanked him for that. Then he says, ‘Now, you’re okay taking the Mexican trucks?’ And again I said, ‘You know, Steve, I don’t see any difference. It’s my engines, my transmissions, my rear ends, my oil seals, my fan hubs, everything that I expected on them. And I just don’t see any difference in them.’ He said, ‘Well, there is not, Freightliner is Freightliner,’ or something to that— that’s not verbatim, but a comment to that degree. And that was it.”

A week or two after this second conversation, Whatley met with Murphy and with Frank Hawkins, a Freightliner representative. During this meeting, Whatley, Murphy, and Hawkins discussed WCC’s truck order and confirmed that Freightliner’s Mexico plant would manufacture 40 trucks for WCC during January 1999. Also during this meeting, Whatley told Murphy and Hawkins that he had been unaware that Freightliner even had a plant in Mexico until his telephone conversation with Murphy. Murphy or Hawkins responded that the Mexico plant was a former Mercedes-Benz brand automobile plant that was now building Freightliner trucks. Whatley admitted at trial that he did not specifically ask during these conversation about the quality of the Freightliner products manufactured in Mexico. However, in later testimony, he claimed that he asked 6 to 12 times if there were any differences between Freightliner’s American-produced trucks and Freightliner’s Mexican-produced trucks. Whatley did not identify when and with whom these conversations regarding the quality of the trucks manufactured in Mexico occurred.

In late January 1999, Freightliner began delivering to WCC the trucks produced in its Mexico plant. By February 15, 1999, Freightliner had delivered 28 of the 40 trucks to WCC. The remaining 12 trucks were delivered shortly thereafter. Each truck delivered to WCC was covered by a written warranty, which provided, in part:

“Purchaser’s Exclusive Remedy The foregoing limited warranty shall be the Purchaser’s sole and exclusive remedy against Freightliner whether in contract, under statute (including statutory provisions as to conditions as to quality or fitness for any particular purpose of goods supplied pursuant to the contract of sale), warranty, tort, strict liability or any other legal theory.
“Limitation on Liability
Freightliner’s liability to a Purchaser on any claim for loss or damage arising out of, connected with, or resulting from the contract for sale or the performance or breach thereof, or from design, manufacture, sale, delivery, service, repair or use of any vehicle manufactured by Freight-liner shall not exceed the price to Purchaser allocated to the part of such vehicle which gives rise to the claim, and in no event shall Freightliner be liable for special or consequential damages including but not limited to, injuries to person or damage to property, loss of profits or anticipated profits, or loss of vehicle use.”

Whatley acknowledged that the trucks Freightliner delivered to him met the specifications he had given Freightliner when he ordered the trucks.

According to Whatley, the 40 trucks delivered to WCC had significant problems. Whatley claimed that the trucks constantly broke down, that the optimized-idle feature did not work, and that the trucks had problems with the brakes, the shocks/suspension system, the alignment, and other features. Whatley testified that he became aware of the problems upon the delivery of the first of the 40 trucks and that he was continually aware of problems as the trucks were delivered in January and February 1999. He also testified that, after delivery of the first 10 Freightliner trucks manufactured at the Mexico plant, he no longer trusted Freightliner’s employees or his own mechanics to conduct the pre-delivery inspection on the Freight-liner trucks. Because of the number of problems WCC experienced with the first 10 trucks, Whatley insisted on performing the pre-delivery inspections on the remaining 30 trucks himself before he would authorize payment to Freightliner for those trucks. Based on his personal inspections, Whatley accepted those trucks. Whatley acknowledged that whenever he identified a problem, Freightliner of Southern Alabama worked with WCC and corrected it. However, Whatley claimed that even after the initial corrective work was performed, the trucks continued to break down and required repairs and attention.

Whatley claimed that soon after the last of the 40 trucks were delivered, he requested that Freightliner of Southern Alabama provide WCC, at no charge, with extended warranties on the trucks because of the extent of the problems WCC was encountering. Whatley claimed that Freightliner of Southern Alabama refused to provide the extended warranties. Six months later, when it became evident that the problems with the trucks were continuing, Freightliner of Southern Alabama offered WCC the extended warranties. However, Whatley refused the offer, believing at that point that WCC was due more from Freightliner than the extended warranties.

Whatley claimed that because of mechanical problems, the trucks manufactured in Mexico were unable to take loads as often as WCC’s other trucks and caused the drivers to lose time when they were on the road. In 2001, WCC ceased doing business as a result of Whatley’s poor health. Whatley sold 38 of the 40 1999 FLD 120 trucks — the Freightliner models manufactured in Mexico — for $18,000 each. At that time, each of the Freight-liner trucks manufactured in Mexico had more than 500,000 miles on it. Whatley claimed that he was able to sell his other 1999 model trucks with similar specifications and mileage for $24,000 to $25,000 each. However, the evidence established that these “other 1999 model trucks” were FLD 132 models, which, according to the record, are substantially different and substantially more expensive than the FLD 120 models.

Evidence was also presented at the trial indicating that the Freightliner plant in Mexico was a former Mercedes-Benz passenger-automobile plant that had been modified to produce Freightliner trucks. The Mexico plant had been producing Freightliner products since 1992 but had begun producing those Freightliner products for export into the United States in 1998. As was Freightliner’s policy, a “mini-audit” was conducted each day on 2% of its daily production to determine the number of “discrepancies” found in the products. Once discrepancies were identified, they were corrected. Each plant sent the results of its mini-audits daily to Freightliner’s headquarters in Portland, Oregon. According to Ronald Bush, Freightliner’s director of quality control, the results of each plant’s mini-audit were not considered public information. Freightliner considered that information to be internal quality indicators for the use only of the production facility at which the mini-audit was performed.

Evidence was introduced indicating that in 1998 the mini-audits conducted at the Mexico plant reflected discrepancies above (sometimes four to five times above) the goal set by Freightliner. In January and February 1999, this discrepancy rate was three times the goal set as desirable by Freightliner. Ronald Bush indicated that in 1999 he discovered that the higher-than-anticipated discrepancies in the Mexico plant resulted from the fact that the Mexico plant used the old Mercedes-Benz passenger-automobile standards in conducting its audits, which were more demanding standards than the commercial-long-haul-truck standards used by other Freightliner plants. Bush also testified that the mini-audit performed in the Mexico plant included a road test, which identified other discrepancies; the other Freightliner plants did not include a road test as part of their mini-audits.

WCC argued that the higher discrepancy rate in the Mexico plant resulted from Freightliner’s failure to translate its manufacturing instructions and schematics into Spanish for the Mexican workers and from Freightliner’s failure to provide sufficient Spanish-speaking supervisors for its Mexican workers. However, testimony from Freightliner’s quality-assurance manager for the Mexico plant indicated that “a lot” of the workers in the Mexico plant spoke English and that 70% to 80% of them had had prior experience in the automotive industry.

Julio Alverez, who in 1998 and 1999 was employed by Freightliner as the quality-control manager for the Mexico plant, testified that, at the time WCC’s trucks were manufactured, Freightliner’s Mexico plant was “ISO 9001 certified” and “TUV” audited. According to Alverez, “ISO 9001” is an international standard used to “evaluate[ ] any organization, which verifies that [the organization’s] quality systems meet a series of regulations that allows us to ensure the organization has standardized processes and that it’s continually improving its results.” Alverez testified that TUV is “an organization that exists throughout the world that has the authority of the ISO organization to do these types of evaluations.” Alverez testified that TUV conducts audits to determine if a plant meets the ISO 9001 standards.

According to Alverez, in conducting those audits, TUV first verifies all the manufacturer’s documents and the quality-control manual. Then, a TUV representative visits the different installations to corroborate that the procedures are being performed correctly, work instructions are being followed, and all legal requirements have been met by the manufacturer. Al-verez testified that, in the third step of a TUV audit, a report of the audit results is issued and a decision is made whether to issue or to renew an ISO 9001 certificate to the manufacturer. If a plant is ISO certified, the holder of the certificate is authorized to export products manufactured at the certified location. Alverez testified that the Mexico plant was ISO certified in 1996 and that the plant had retained its certificate every year since then. Alverez also testified that a TUV audit was conducted at the Mexico plant in February 1999 and that, as a result of that audit, TUV recommended that Freightliner’s Mexico plant retain its certification.

Whatley testified at trial that the employees of Freightliner of Southern Alabama did not withhold from him any information regarding Freightliner’s Mexico plant. Whatley testified that the Freightliner representatives he spoke with concerning the 40 Freightliner trucks manufactured in Mexico were “just as honest as they [could] be ... [They were] honest, straight-up folks.” Whatley also testified that he did not believe that anyone that he dealt with at Freightliner kept any information from him. Whatley did not allege that he questioned any Freight-liner employees other than Murphy and Hawkins regarding the trucks ultimately delivered to WCC. At trial, Murphy and Hawkins denied that they knew the results of the audits performed at the Mexico plant.

At the close of the evidence, WCC agreed to dismiss its breach-of-implied-warranty claim. At the close of the plaintiffs case-in-chief and again at the close of all the evidence, Freightliner and Freight-liner of Southern Alabama renewed their motion for a judgment as a matter of law on the suppression claim. The trial court denied that motion.

The jury returned a verdict against Freightliner awarding WCC $440,000 in compensatory damages and $750,000 in punitive damages. The jury found in favor of Freightliner of Southern Alabama on WCC’s claim. As to the counterclaim asserted against WCC by Freightliner of Southern Alabama, the jury found in favor of WCC. Freightliner filed a post-judgment motion for a judgment as a matter of law, a motion for a new trial or, alternatively, for a remittitur. The trial court denied the motion for a judgment as a matter of law and the motion for a new trial; it apparently never ruled on the motion for a remittitur.

Freightliner appealed, asserting among others, the following issue:

“Whether the trial court erred when it failed to grant a judgment as a matter of law in Freightliner’s favor on the suppression claim.”

(Freightliner’s brief at p. 7.) Because we conclude that Freightliner had no duty to disclose, we reverse the judgment in favor of WCC on the suppression claim and remand the case for the entry of a judgment in favor of Freightliner.

Duty to Disclose

The trial court submitted WCC’s suppression claim to the jury, which found in favor of WCC. Section 6-5-102, Ala. Code 1975, provides that “[suppression of a material fact which the party is under an obligation to communicate constitutes fraud. The obligation to communicate may arise from the confidential relations of the parties or from the particular circumstances of the case.” The elements of a suppression claim are “(1) a duty on the part of the defendant to disclose facts; (2) concealment or nondisclosure of material facts by the defendant; (3) inducement of the plaintiff to act; (4) action by the plaintiff to his or her injury.” Lambert v. Mail Handlers Benefit Plan, 682 So.2d 61, 63 (Ala.1996). It is evident from a reading of the statute and the caselaw that, without a duty to disclose, there can be no recovery for suppression.

We must first consider whether the trial court properly submitted the suppression claim to the jury. “ ‘The question whether a party had a duty to disclose is a question of law to be determined by the trial court.’ ” Armstrong Business Servs., Inc. v. AmSouth Bank, 817 So.2d 665, 676-77 (Ala.2001) (quoting Barnett v. Funding Plus of America, Inc., 740 So.2d 1069, 1074 (Ala.1999)). In Armstrong Business Services, this Court stated:

“The trial court must consider and apply the following factors in determining whether, under the particular circumstances, a duty to disclose exists: ‘(1) the relationship of the parties; (2) the relative knowledge of the parties; (3) the value of the particular fact; (4) the plaintiffs’ opportunity to ascertain the fact; (5) the customs of the trade; and (6) other relevant circumstances.’ ”

817 So.2d at 677 (quoting State Farm Fire & Cas. Co. v. Owen, 729 So.2d 834, 842-43 (Ala.1998)). Additionally, this Court has stated:

“A duty to communicate can arise from a confidential relationship between the plaintiff and the defendant, from the particular circumstances of the case, or from a request for information, but mere silence in the absence of a duty to disclose is not fraudulent....
“This Court has stated that whether one has a duty to speak depends upon a fiduciary, or other, relationship of the parties, the value of the particular fact, the relative knowledge of the parties, and other circumstances of the case.... When the parties to a transaction deal with each other at arm’s length, with no confidential relationship, no obligation to disclose information arises when the information is not requested.”

Mason v. Chrysler Corp., 653 So.2d 951, 954-55 (Ala.1995).

Thus, we must consider whether the particular facts and circumstances of this case created a common-law duty on Freightliner’s part to disclose. We find that the facts and circumstances of this case did not give rise to such a duty.

First, we note that this transaction was an arm’s length commercial transaction. “When the parties to a transaction deal with each other at arm’s length, with no confidential relationship, no obligation to disclose information arises when the information is not requested.” Mason, 653 So.2d at 954-55. In Shutter Shop, Inc. v. Amersham Corp., 114 F.Supp.2d 1218, 1225 (M.D.Ala.2000), the federal district court, applying Alabama law to a commercial transaction, stated:

“In commercial transactions involving parties to arm’s length negotiations, however, a bright line rule generally applies: The parties have no general obligation to disclose, but each has an affirmative duty to respond ‘truthfully and accurately’ to direct questions from the other.
“Thus, Alabama law presumes that the parties are capable of handling their own affairs and guarding their interests by asking reasonably specific, direct questions that will satisfy their need for information. The parties decide what information they need, and the law protects their rights to receive it.”

(Citations omitted.)

Applying this law to the facts of this case, we recognize that, without a specific inquiry by Whatley, Freightliner clearly had no duty to disclose any information regarding the internal audit results for the Mexico plant. As this Court has recognized, the law generally allows a business to keep confidential its internal operating procedures and data unless that information is specifically requested. See Ex parte Ford Motor Credit Co., 717 So.2d 781, 787 (Ala.1997) (citing Norman v. Amoco Oil Co., 558 So.2d 903 (Ala.1990); King v. National Found Life Ins. Co., 541 So.2d 502 (Ala.1989); Surrett v. TIG Premier Ins. Co., 869 F.Supp. 919 (M.D.Ala.1994)).

This Court has addressed similar issues in DaimlerChrysler Corp. v. Morrow, 895 So.2d 861 (Ala.2004); Mason, supra; and McGowan v. Chrysler Corp., 631 So.2d 842 (Ala.1994). In each of these cases, the Court recognized that, without a specific inquiry from the purchasers, the defendant/sellers in those cases had no generalized obligation to disclose information regarding defects in similar products. We reach that same conclusion in this case.

We next must consider whether Whatley’s conversations with Murphy and Hawkins regarding the trucks manufactured in Mexico imposed on Freightliner or Freightliner of Southern Alabama a duty to disclose to WCC the results of the internal audits conducted at the Freight-liner plant in Mexico. However, after reviewing Whatley’s testimony regarding his conversations with representatives of Freightliner and with representatives of Freightliner of Southern Alabama, we find nothing that gave rise to such a duty.

In addition to his two conversations with Murphy summarized earlier in this opinion, Whatley described a third conversation with Murphy and Hawkins. During this conversation, Whatley, Murphy, and Hawkins discussed WCC’s truck order and confirmed that Freightliner’s Mexico plant would manufacture 40 trucks for WCC during January 1999. Also during this conversation, Whatley told Murphy and Hawkins that he had been unaware that Freightliner even had a Mexico plant until his telephone conversation with Murphy. Murphy or Hawkins responded that the Mexico plant was a former Mercedes-Benz passenger-automobile plant that was now building Freightliner trucks. Whatley admitted that he did not specifically ask during these conversations about the quality of the Freightliner products manufactured in Mexico.

However, in later testimony, Whatley claimed that, at some unspecified time, he asked 6 to 12 times if there were any differences between Freightliner’s American-made trucks and Freightliner’s Mexican-made trucks. Whatley did not identify when and with whom these conversations occurred.

From these conversations and allegations, we conclude that Whatley’s comments and inquiries were not specific enough to impose on Freightliner or on Freightliner of Southern Alabama a duty to disclose to Whatley the results of the manufacturer’s internal audit at the Mexico plant. First, Whatley acknowledged that the trucks were delivered to WCC in accordance with his exact specifications. Therefore, the response given to Whatley’s question — “Aren’t they the same specs that we talked about?” — was completely truthful.

Second, Whatley’s question to Murphy — ‘Well, why wouldn’t I want them from there?” — was not specific enough to give rise to an obligation on Freightliner’s part to reveal the internal audit results for the Mexico plant. As noted in Shutter Shop, supra, “[a] disclosing party cannot be punished for fraudulent suppression unless the questioning party articulates with reasonable clarity the particular information it desires.” 114 F.Supp.2d at 1226. Additionally, “[w]hile the law still requires, even in the present adversarial world of commercial transactions, that direct questions be responded to truthfully and accurately, the law also generally allows a business to keep confidential its internal operating procedures.” Ex parte Ford Motor Credit Co., 717 So.2d at 787.

We also conclude that Whatley’s alleged question, asked, he says, 6 to 12 times, about the differences between the American-made Freightliner trucks and the Mexican-made Freightliner trucks was not specific enough to create a duty to disclose the results of the internal audit at the Mexico plant. Whatley cannot identify to whom or when he posed this alleged question, and we find no other possibilities in the record. Therefore, we simply do not find in the record an adequate and sufficient inquiry from Whatley that imposed upon Freightliner or upon Freightliner of Southern Alabama a duty to reveal all of the potential differences between the Mexican-made Freightliner trucks, and the American-made Freightliner trucks, assuming it was possible to catalog such differences in a concrete and meaningful way.

The Court addressed a somewhat similar situation in Ex parte Ford Motor Credit Co., 717 So.2d at 787. In that case, Bramlett, a buyer of a used automobile, had obtained financing through the dealer from Ford Motor Credit Company at a rate of 15.49%. Although Bramlett agreed to that rate of interest, he asked the salesperson why the interest rate was so high. The salesperson responded by telling Bramlett that he was considered a poor credit risk because of a personal bankruptcy. The salesperson did not tell Bramlett that the 15.49% rate included a 3% commission to the dealer. Bramlett later sued the dealer and Ford Motor Credit, alleging fraudulent suppression.

In addressing that fraudulent-suppression claim, this Court stated:

“Moreover, given the general nature of Bramlett’s question [why the interest rate was so high], we believe it would be unreasonable to require that the Adam-son salesperson reveal every factor that went into determining the exact interest rate offered to Bramlett. As Judge Thigpen noted in his dissenting opinion, ‘[t]he 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.’ [Bramlett v. Adamson Ford, Inc., 717 So.2d 772, 779 (Ala.Civ.App.1996)(Thigpen, J., dissenting).] While the law still requires, even in the present adversarial world of commercial transactions, that direct questions be responded to truthfully and accurately, the law also generally allows a business to keep confidential its internal operating procedures. Although this case specifically involves lenders and interest rates, interest is nothing other than the cost or price of borrowing money. Black’s Law Dictionary, 812 (6th ed. 1990). The 3% commission agreement at issue here is nothing more than Adamson’s profit on the loan transaction, which had a wholesale price and a retail price. We decline to recognize a common law duty that would require the seller of a good or service, absent special circumstances, to reveal to its purchaser a detailed breakdown of how the seller derived the sales price of the good or service, including the amount of profit to be earned on the sale.”

717 So.2d at 787 (some citations omitted). We agree with the rationale of Ex parte Ford Motor Credit Co., supra, and hold that, in response to this question, it would be unreasonable to impose upon Freight-liner a duty to disclose all of the potential reasons a prospective purchaser might not want an order filled from its Mexico plant or a duty to disclose all of the potential differences between a truck manufactured at one plant as opposed to a truck manufactured at another. The facts of this case certainly did not give rise to a duty to disclose the differences in internal quality control data between different Freightliner plants. As the record in this case demonstrates, a number of factors could account for those differences. Further, assuming this question was a reference to Whatley’s inquiry, “[W]hy wouldn’t I want them from there,” Murphy’s response was that “a Freightliner is a Freightliner.” His response was a legitimate and truthful response.

Finally, we address WCC’s claim that Freightliner assumed a duty to disclose the distinctions between trucks manufactured at its Mexico plant and those manufactured at its American plants when it asked Whatley if WCC would accept trucks manufactured by its Mexico plant. (WCC’s brief at pp. 27-28.) WCC argues that by initiating the topic of the Mexico plant, Freightliner undertook the duty to fully disclose all the pertinent facts regarding that plant. In support of this argument, WCC relies on First Alabama Bank of Montgomery, N.A. v. First State Insurance Co., 899 F.2d 1045 (11th Cir.1990). In that case, the United States Court of Appeals for the Eleventh Circuit, quoting Ellis v. Zuck, 409 F.Supp. 1151 (N.D.Ala.1976), stated:

“Finally, even if one is not under a duty to speak, if he decides to do so, ‘he must make a full and fair disclosure,’ without concealing any facts within his knowledge. Ellis, 409 F.Supp. at 1158 (citing Jackson Co. v. Faulkner, 55 Ala.App. 354, 315 So.2d 591 (1975)).”

899 F.2d at 1056.

However, the Court of Appeals for the Eleventh Circuit did not include the full quote from Ellis v. Zuck; in Ellis, the court stated:

“Nevertheless, even though one is under no obligation to speak as to a matter, if he undertakes to do so, either voluntarily or in response to inquiry, he is bound not only to state the truth but also not to suppress or conceal any facts within his knowledge ivhich will materially qualify those stated; if he speaks at all, he must make a full and fair disclosure.”

409 F.Supp. at 1158 (citing Jackson Co. v. Faulkner, 55 Ala.App. 354, 315 So.2d 591 (1975)). Thus, once a party elects to speak, he or she assumes a duty not to suppress or conceal those facts that materially qualify the facts already stated. That party does not assume a duty to divulge all information that may be or may become relevant to the other party. The duty imposed on the speaking party is to disclose those facts that are material to the ones already stated so as to make them truthful.

In this case, Freightliner did not assume a duty to disclose all of the facts it had regarding the Mexico plant, including internal quality-control data, by virtue of suggesting that WCC’s order could be filled at the Mexico plant to accomplish WCC’s goal of getting the trucks sooner. Had Whatley considered that information necessary to WCC’s decision-making process, he could have inquired about that data. He did not. Additionally, neither Murphy nor Hawkins suppressed or concealed any facts within their knowledge that materially qualified their conversation with Whatley regarding the Mexico plant. The record does not reveal any other conversations by employees or agents of Freightliner that could serve as the basis for the alleged suppression.

Because we conclude that Freightliner had no duty to disclose the information allegedly suppressed from WCC, we conclude that the trial court improperly denied Freightliner’s motion for a judgment as a matter of law on the suppression claim. We reverse the judgment entered on the jury’s verdict and remand this case to the trial court for the entry of a judgment as a matter of law in Freightliner’s favor.

REVERSED AND REMANDED WITH DIRECTIONS.

NABERS, C.J., and SEE, HARWOOD, and BOLIN, JJ., concur.

      . WCC was originally incorporated under the name of Whatley Contract Carriers, Inc. In 1997, Whatley Contract Carriers, L.L.C., was formed. In late 1999 or 2000, the corporation was dissolved and Whatley continued doing business as the limited liability company until 2001. We shall refer to both the corporation and the limited liability company as "WCC” unless a distinction is required for clarity in the opinion.

      . Whatley testified that he elected to purchase trucks from Freightliner because Freightliner offered competitively priced trucks that were comparable in value to other manufacturers' trucks, but Freightliner offered a much larger dealer network. A large dealer network was important to Whatley because WCC operated its trucks all over the country.

      . According to the parties, the actual sale of a long-haul truck did not occur until the truck had been manufactured and was ready for delivery. Also, according to Freightliner, it was not unusual for manufacturers of long-haul trucks to require an extended time for production because of the high demand for such trucks.

      . At trial, there was some debate whether the written warranties were effective or not. However, Whatley eventually acknowledged that he was aware of the written warranties and that he had accepted repair work on the trucks under the written warranties.

      . WCC retained ownership of the other two Freightliner FLD 120 trucks.

      . Whatley stated that he usually sold his long-haul trucks after they had been driven 500,-000 to 750,000 miles.

      .According to testimony from Guillermo Valdez, the quality-assurance manager at Freightliner’s Mexico plant, a "mini-audit” is "a product audit which is performed to a complete truck once this truck is released from the production area ... [I]t verifies all the systems that the truck is complete and the performance of the truck on the road. Also, we are seeing all the discrepancies or the details regarding paint, finishing of the product, performance of the product and the specifications. That means we have to verify that all the options are built and are mounted in the truck.” Valdez also testified that a "discrepancy” is "a detail or something in the assembly line that is not complete or has some small problem or detail.”

      . The testimony indicated that the Mercedes-Benz standards were more demanding on cosmetic defects and that "it was much more difficult to keep a low score through the Mercedes system than it was through [a] Freight-liner commercial system.”

      . Alverez was previously employed by the Mercedes-Benz plant in various positions, including as a training coordinator and in the area of quality control. He remains employed with Freightliner as a manager of quality control.

      . It was undisputed that none of the employees at Freightliner of Southern Alabama had access to any information regarding the results of the internal audits at Freightliner’s Mexico plant.

      . Freightliner of Southern Alabama did not appeal the judgment entered on its counterclaim; WCC did not appeal the judgment in favor of Freightliner of Southern Alabama on its suppression claim.

      . We find no indication in the record that the trial court conducted a hearing on the motion for a remittitur, although Freightliner requested such a hearing. However, because of our disposition of this case on the motion for a judgment as a matter of law in Freight-liner’s favor, we need not address the outstanding motion for a remittitur and the failure of the trial court to hold a hearing on the motion.

      . Even if we were inclined to view this transaction as a consumer, as opposed to a commercial, transaction, we would be forced to conclude that Whatley was well versed in the trucking industry and in the business of purchasing long-haul trucks. He was not in an unequal bargaining position with Freight-liner, and he was fully capable of protecting his own interests. Therefore, we could not conclude, even if this were a consumer transaction, that a special relationship, a confidential relationship, or any other special circumstances relating to the bargaining positions of the parties gave rise to a duty to disclose on Freightliner’s part.