author: LYONS, Justice.

text:
    Laura LOCKE v. CITY OF MOBILE.
    1011741.
    Supreme Court of Alabama.
    Nov. 22, 2002.

      John W. Parker, Mobile, for appellant.
    Mark L. Redditt of Peters & Redditt, P.C., Mobile, for appellee.
   LYONS, Justice.

Laura Locke appeals from a summary judgment in favor of the City of Mobile. Locke, who owns a house in the Azalea and Cottage Hill area of Mobile, alleges that the City negligently maintained the drainage system in her neighborhood and that its negligent maintenance of the system resulted in the flooding of her property. Because we conclude that Locke failed to present substantial evidence showing that the City’s negligent maintenance of the drainage system proximately caused the flooding of her property, we affirm.

I. Factual and Procedural History

Locke resides at 3974 Hillcrest Lane West in Mobile. The house was built in 1968, and Locke purchased the property in 1995. The original portion of the house was built on piers; however, before Locke purchased the house, a 24-foot by 24-foot addition had been constructed on a concrete slab. Since Locke purchased the house, the addition has flooded on several occasions, and her yard has flooded at least twice.

Locke testified that she first contacted the public works department of the City of Mobile in March 1997 when she noticed that “leaves and everything had come from the street up” into her yard. Locke was uncertain whether the drains were actually clogged or if the problem was caused by heavy rainfall. She has no knowledge whether the City sent a maintenance crew to clean the drain in response to her telephone call because she left town after she made the telephone call. When she returned, the leaves were gone; however, she attributed the removal of the leaves to her yardman. The record does not include any other specific telephone calls to the City by Locke or her neighbors requesting that the City maintain the drains. In referring generally to other calls she made to the City, Locke stated that “[the City] [does] come out when I call, but it’s not on a regular basis.” Locke also testified that she did not know how often the City maintained the drains or if the City had a scheduled maintenance plan.

On April 1, 1999, Locke sued the City of Mobile, alleging negligent design, construction, and maintenance of the drainage system. Locke claims that the flooding was a direct and proximate consequence of the City’s negligence, which she said resulted in damage to her home and personal belongings. Locke also seeks compensation for her physical pain, severe inconvenience, and mental anguish.

The City filed a motion for a summary judgment, claiming that Locke failed to present (1) substantial evidence indicating that the City had negligently designed, constructed, or maintained the drainage system and (2) substantial evidence indicating that any alleged negligence on the part of the City had proximately caused the flooding of her property. With its summary-judgment motion, the City submitted excerpts firom the deposition testimony of Locke and her engineering expert, Kenneth Underwood, in order to show that Locke was unable to link the flooding of her property to the City’s alleged negligent maintenance of the drains. Locke filed a response in opposition to the City’s summary-judgment motion; that response included her own deposition testimony as well as that of Underwood and Robert Vogtner, an engineer for the City of Mobile. Based upon the parties’ briefs and the materials submitted to it, the trial court held that Locke had failed to present substantial evidence from which a jury could reasonably infer that “the City of Mobile’s design, construction, or maintenance of the drainage system in [Locke’s] neighborhood proximately caused the flooding of [her] property” and entered a summary judgment in favor of the City.

II. Standard of Review

“A motion for summary judgment is granted only when the evidence demonstrates 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.’ Rule 56(c), Ala. R. Civ. P.” Reichert v. City of Mobile, 776 So.2d 761, 764 (Ala.2000). To defeat a properly supported motion for a summary judgment, the nonmoving party must present substantial evidence creating a genuine issue of material fact. “Substantial evidence” is “evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved.” West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala.1989). Our review of a summary judgment is de novo, and we review a summary judgment in the light most favorable to the nonmov-ing party, applying “the same standard as that of the trial court in determining whether the evidence before the court made out a genuine issue of material fact.” Bussey v. John Deere Co., 531 So.2d 860, 862 (Ala.1988); System Dynamics Int’l, Inc. v. Boykin, 683 So.2d 419, 420 (Ala.1996).

III. Negligent Maintenance

In order to prevail on its motion for a summary judgment, the City was not required to prove that the flooding was not a result of its negligent maintenance. See Ex parte General Motors Corp., 769 So.2d 903, 909 (Ala.1999).

“ ‘If the burden of proof at trial is on the nonmovant, the movant may satisfy the Rule 56[, Ala. R. Civ. P.,] burden of production either by submitting affirmative evidence that negates an essential element in the nonmovant’s claim or, assuming discovery has been completed, by demonstrating to the trial court that the nonmovant’s evidence is insufficient to establish an essential element of the nonmovant’s claim.’ ”

Id. (quoting Justice Houston’s special concurrence in Berner v. Caldwell, 543 So.2d 686, 691 (Ala.1989), overruling Berner and adopting Justice Houston’s special concurrence in Berner as the accurate statement of the law.) (emphasis omitted). The City, as previously noted, submitted excerpts from the depositions of Locke and her engineering expert that sufficiently discharged its burden by demonstrating the insufficiency of Locke’s evidence on the essential element of her claim — negligent maintenance as the proximate cause of the flooding. The burden then shifted to Locke to present substantial evidence indicating that the flooding was proximately caused by the City’s negligent maintenance. Reichert, 776 So.2d at 765-66. The issue on appeal is whether Locke presented substantial evidence showing that the City’s alleged negligent failure to maintain the drainage system in her neighborhood proximately caused the flooding of her property. In her appeal to this Court, Locke does not argue the theories of negligent design and construction she advanced in her complaint.

Locke argues that she presented substantial evidence showing that the flooding of her home was caused by the City’s negligent failure to maintain the drainage system in her neighborhood. The City argues that Locke provided no evidence relating any specific failure by the City to maintain the drainage system to a specific flooding event. The City also claims that the testimony of Locke’s engineering expert was inadmissible, because, it says, he based his opinion upon inadmissible information provided to him by Locke’s counsel. Because we find that Locke failed to present substantial evidence linking the flooding of her property to the negligence of the City, regardless of the alleged inadmissible testimony of Locke’s expert, we need not discuss whether that testimony was admissible.

To prove proximate cause, Locke presented her own testimony and that of Underwood. According to Underwood, the flooding of Locke’s property was not a result of excessive rainfall or a defect in the design of the drainage system. After eliminating those possibilities, Underwood attributed the flooding to a maintenance problem. Underwood explained his process of elimination as follows:

“My understanding is that there have been problems with blockage through time. I have reviewed no City records. This is what I’ve been told. And knowing that rainfall — the rainfall data — does not indicate that the 10-year rainfall event has been equaled or exceeded or not even close to that, the chance of excessive rainfall causing the problem, in my opinion, has been eliminated.
“The design aspect of it, I don’t have the design computations to review. This was done by an engineering firm; Nor-den Engineering Company, consulting engineers. It was approved by the County. The County accepted this. [It] signed off on it, the County engineer did in 1968, so I am assuming that the design was correct.
“The maintenance aspect of it is the only mechanism whereby I can see that failure can occur. Rainfall was not the problem, and in my opinion, the design is not the problem. It is the maintenance or the lack thereof where the problem comes from, and it’s a system, if it’s blocked, it can’t flow the water. I don’t know of any other factor to consider in this matter.”

The trial court based its ruling, in part, on its finding that Underwood was unaware of any evidence of a maintenance problem and that Underwood did not know of any particular maintenance problem that led to a specific flooding event on Locke’s property. Based upon a review of the record, we agree that Underwood was unaware of any specific maintenance problem. Any expert who must resort to the process of elimination for his or her conclusion by necessity has no specific knowledge.

Although we affirm the trial court’s summary judgment in favor of the City, we do not wish to be understood as concluding that Underwood’s methodology — using a process of elimination — cannot create circumstantial evidence on which an expert can base his or her opinion. Werth v. Makita Elec. Works, Ltd., 950 F.2d 643, 651-52 (10th Cir.1991) (expert should have been permitted to testify, having expressed his opinion based on the implicit elimination of any other possible causes); Gichner v. Antonio Troiano Tile & Marble Co., 410 F.2d 238, 247 (D.C.Cir.1969) (expert who eliminated all potential causes of fire, except one, may in some circumstances provide the basis of a court’s final decision; “Bearing on the credibility of such testimony is the thoroughness with which the expert identifies all the potential causes and the soundness of his reasoning in eliminating each one.”); Texas & Pacific Ry. v. Watson, 190 U.S. 287, 289-90, 23 S.Ct. 681, 47 L.Ed. 1057 (1903) (“Evidence of the surrounding circumstances and conditions which by a process of exclusion would have tended to establish that the burning of the cotton could not have been caused other than by the locomotive in question would, we think, have been clearly relevant.”). The validity of an expert’s opinion based on a process of elimination thus depends on the trial court’s satisfaction with the expert’s credentials and the bases for his or her ruling out other causes.

Underwood concluded by a process of elimination that the flooding was caused by faulty maintenance of the drainage system. Underwood’s process of elimination would logically support an inference that the flooding resulted from a blockage. A blockage, however, does not necessarily mean negligent maintenance; a blockage could occur as well from the sudden and unforeseeable deposit of some foreign object or material as from the gradual accumulation of foreseeable debris that prudent maintenance would prevent. If the flooding resulted from some sudden and unforeseeable deposit, the issue of the City’s negligence would depend on, among other factors, whether or not the City had notice of that particular deposit. Reading the trial court’s order as finding a lack of evidence indicating negligent maintenance, which was the gravamen of Locke’s claim, we must, as explained below, affirm.

Underwood’s process failed to eliminate all possible causes for the flooding other than the City’s negligence in maintaining the drainage system. Underwood observed the property on February 22, 2001, approximately four years after the date of the first flooding and almost two years after the filing of the complaint. Underwood testified that “[i]f what [he] saw today is any indication of the situation in the past, then the storm drain to the west of [Locke] is what caused the problem with [the water] bypass.” However, Underwood did not review any City work-crew reports or provide any evidence linking the flooding to the City’s negligent maintenance. Underwood’s personal observation merely showed that the drains were blocked on a particular day but presented no evidence of the City’s latest inspection of the drains and/or the City’s notice of the condition of the drains on that particular day. Underwood suggested that the City needed to conduct routine inspections, “especially in the areas where drainage problems exist or where flooding problems are persistent.” However, the record before us fails to outline the City’s maintenance plan, and we cannot assume that the City does not regularly inspect the drains as Underwood recommended.

Locke’s own testimony also failed to provide the necessary evidence attributing the maintenance problem to the negligence of the City. To rebut the City’s allegation that she failed to present substantial evidence of a maintenance problem, Locke made the following assertion:

“To the contrary, Ms. Locke has testified that there was no regular program of maintenance along Hillcrest Lane and that the drains at her home and at Azalea Road to the east were blocked. She further testified that she would call the City, and on occasion they would react after a flooding problem to clean the drainfs]. Therefore, there is testimony in the record that there was a maintenance problem in the area of Hillcrest Lane, contrary to the Appellee, City of Mobile’s assertion in [its] brief.”

(Locke’s reply brief, at pp. 7-8; emphasis in original.) However, after reviewing the record, we find that Locke was unaware of the City’s maintenance program. She testified that maintenance was not performed on a regular basis; yet she later stated that she did not know how often the City maintained the drains or if the City had a maintenance schedule.

In Kmart Corp. v. Bassett, 769 So.2d 282 (Ala.2000), the plaintiff, in order to defeat Kmart’s summary-judgment motion, attempted to present substantial evidence showing that Kmart’s negligent failure to maintain its automatic doors with reasonable care resulted in the plaintiffs fall and her subsequent injuries. The plaintiff presented the following evidence, which, she argued, constituted substantial evidence creating a genuine issue of material fact as to her negligence claim:

“[The plaintiff] argues that she presented evidence indicating that the company that installed the doors sold maintenance contracts as part of its business; that Kmart had no maintenance contract for the doors; that Kmart had a policy of waiting until the doors needed repair or maintenance before calling someone to work on them; that the Kmart store manager ... knew that the doors occasionally malfunctioned by failing to work at all; and that without preventive maintenance, automatic doors will malfunction or stop working properly.”

769 So.2d at 285. The plaintiffs fall occurred less than seven months after the most recent inspection of the automatic doors. Id. The plaintiffs own expert testified that inspecting the doors every six months constituted reasonable maintenance; “[h]owever, [the plaintiffs expert] did not testify that a failure to inspect the doors for a period exceeding six months would have been unreasonable.” 769 So.2d at 285. We affirmed the summary judgement in favor of Kmart, yet noted that “[t]his case would be quite different if [the plaintiffs expert] had been asked about, and had described, a point beyond which Kmart’s failure to inspect the doors would have been unreasonable maintenance and if that period had elapsed before [the plaintiffs] accident occurred.... ” 769 So.2d at 285 n. 3.

The plaintiffs injuries in Kmart were allegedly caused by a malfunctioning of the automatic doors. However, the plaintiff failed to provide evidence indicating that the malfunction was caused by Kmart’s failure to use reasonable care to maintain the doors. Here, Locke presented evidence tending to show that the flooding was a result of a maintenance problem. However, she failed to link this cause to any alleged negligent maintenance by the City. As in Kmart, the case before us would be quite different if Underwood or Locke had provided evidence of a point beyond which the City’s maintenance of the drains would be considered negligent.

Locke relies on several cases that recognize a City’s continuing duty to maintain its drainage system. However, in each case cited by Locke, the plaintiffs presented substantial evidence of negligence so as to meet the applicable burden of proof. For example, Locke cites Lee v. City of Anniston, 722 So.2d 755 (Ala.1998), a case in which this Court reversed a summary judgment for the City of Anniston. The plaintiff in Lee sued the City alleging that it negligently designed or constructed a storm-sewer system causing the plaintiffs son to drown in an inlet pit during a storm. 722 So.2d at 757. The plaintiff also alleged that the City knew or should have known that safety devices were required to warn individuals of the dangers of the inlet pit. Id. The plaintiffs expert testified that the pipe in the inlet pit was negligently installed and that that negligent installation created a foreseeable danger during major storms. Id. at 759. Further testimony established that the City was on inquiry notice of the dangers of the unmarked inlet pits. A newspaper reporter had previously posed a young lady in the channel to show the depth of the water; she lost her footing and was pulled through a pipe in the inlet pit. Id. at 760.

Unlike the evidence in Lee, Underwood’s testimony failed to eliminate causes other than the negligent maintenance of the City for the drainage problem. Locke’s own testimony establishes that she was unaware of the City’s maintenance plan or schedule. Furthermore, Locke presented no evidence to show that the City was placed on notice of the drainage problems and that it subsequently failed to respond. See Reichert, 776 So.2d at 766 (reversing a summary judgment, in part, when the expert testified that the City’s failure to maintain storm-water culverts contributed to flooding and that the City’s permits for development would increase the discharge of surface water); see also City of Mobile v. Jackson, 474 So.2d 644, 646 (Ala.1985) (affirming a judgment on a jury verdict in favor of the plaintiff when evidence showed that the plaintiff informed the City of drainage problems and the City failed to act upon the recommendations of the city engineer to remedy the flooding).

In her reply brief to this Court, Locke summarized her evidence, stating that “[w]hile [she] could not, as it is submitted any reasonable person could not, assert the exact condition of the drains on each exact flood date, a general pattern of lack of maintenance existed through and including the flood dates at issue.” (Locke’s reply brief, at p. 8.) Locke’s only evidence supporting her allegation of a general lack of maintenance consists of her testimony (1) that the clogged drains have been a persistent, constant problem, (2) that the only times she witnessed the City actually cleaning the drains were in response to her telephone calls to the City, and (3) that the City would clean the drains after her calls, but not on a regular basis, although she also said that she did not know whether the City had a maintenance schedule for the drains. For all that appears, the obstruction causing the drains not to function occurred at the time of or immediately before the rainfall that led to the flooding, a circumstance not consistent with negligent maintenance.

Locke failed to present substantial evidence indicating that the maintenance problems existed for such a length of time that constructive notice of the drainage buildup could be imputed to the City and/or that the City had actual notice of the problem and failed to respond. Compare Lee, supra, and Carson v. City of Prichard, 709 So.2d 1199, 1203 (Ala.1998) (affirming a judgment on a jury verdict in favor of the plaintiff when evidence showed that the Board knew of the sewage overflow problem, yet failed to act upon the engineer’s recommendations to remedy the problem), with Speer v. Pin Palace Bowling Alley, 599 So.2d 1140 (Ala.1992) (affirming a summary judgment in favor of bowling alley when the plaintiff failed to present evidence indicating that the bowling alley had actual or constructive notice of the substance on the floor that allegedly caused the plaintiff to slip and fall). Because Locke failed to meet her burden of proof, the City is entitled to a summary judgment as a matter of law.

TV. Conclusion

Because we find that Locke failed to provide substantial evidence of negligent maintenance on the part of the City, we affirm the summary judgment in favor of the City.

AFFIRMED.

MOORE, C.J., and HOUSTON, JOHNSTONE, and WOODALL, JJ., concur.

      . In her initial complaint, Locke alleges that her property flooded in January 1998, March 1998, and March 1999. Locke amended her complaint to include the additional dates of June 1999 and November 1999. Locke’s deposition testimony also includes the dates of May 1997 and July 1997. The two dates on which only Locke's yard flooded are March 1999 and June 1999.

      . The duty of the City to maintain the drainage system is not an issue in the present case. "Pursuant to Ala.Code 1975, §§ 11-50-50 to - 56, 'municipalities are authorized to construct and maintain drainage systems.’ ” Lee v. City of Anniston, 722 So.2d 755, 757 (Ala.1998) (quoting City of Mobile v. Jackson, 474 So.2d 644, 649 (Ala.1985)). A municipality is not required to exercise this authority; however, once it does, a duty of care arises and a municipality becomes liable for its own negligence. Id. Locke presented the testimony of Vogtner, an engineer for the City of Mobile, who stated that the streets surrounding Locke’s property were city streets, which the City undertook a duty to maintain.

      . Kenneth Underwood is a retired engineer; before he retired he worked for the United States Corps of Engineers. He has over 34 years of experience as a resident engineer.

      . See Advisory Committee’s Notes to Ala. R. Evid. 702 ("Much discretion remains vested in the trial judge to determine whether a proffered witness qualifies as an expert.”).


source: Caselaw Access Project

author: STUART, Justice. JOHNSTONE, Justice

license: Public Domain

text:
    Ex parte Roy Edward PERKINS. (In re Roy Edward Perkins v. State of Alabama).
    1991016.
    Supreme Court of Alabama.
    Nov. 22, 2002.
    Rehearing Denied Jan. 31, 2003.

      Sanjay K. Chhablani, Atlanta, Georgia, for petitioner.
    William H. Pryor,' Jr., atty. gen., and A. Vernon Barnett IV, asst. atty. gen., for respondent.

       Although Justice Harwood did not sit at oral argument, he has listened to the tape of oral argument.

   On Remand from the United States Supreme Court

STUART, Justice.

The United States Supreme Court has vacated our earlier judgment in this case and has remanded the cause for our further consideration in accordance with Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002). Perkins v. Alabama, 536 U.S. 953, 122 S.Ct. 2653, 153 L.Ed.2d 830 (mem.).

The facts are set out in their entirety in Perkins v. State, 808 So.2d 1041, 1052-56 (Ala.Crim.App.1999), and we note them here only briefly: Perkins abducted Cathy Gilliam from her house and shot her in the chest with a .357 Magnum pistol, killing her. Perkins was convicted of murder made capital because it was committed during the course of a first-degree kidnapping, see § 13A-5-40(a)(l), Ala.Code 1975. The jury, by a vote of 10-2, recommended that Perkins be sentenced to death. After weighing the aggravating circumstances and the mitigating circumstances, the trial court sentenced Perkins to death. The Court of Criminal Appeals affirmed Perkins’s conviction and sentence. Perkins v. State, supra. This Court, after conducting a thorough plain-error review of Perkins’s conviction and sentence, affirmed the judgment of the Court of Criminal Appeals. Ex parte Perkins, 808 So.2d 1143 (Ala.2001). The United States Supreme Court granted Perkins’s petition for certiorari review, and vacated our earlier judgment and remanded the case for further consideration in light of its • recent holding in Atkins that executing a mentally retarded individual violates the ban on cruel and unusual punishments found in the Eighth Amendment to the United States Constitution. Atkins, 536 U.S. at 317-18, 122 S.Ct. at 2250. On September 19, 2002, this Court ordered supplemental briefing from the parties on this issue, and on November 6, 2002, the issue was orally argued.

The United States Supreme Court decided Atkins after we issued our opinion on direct appeal in this case and while this case was pending on certiorari review before the United States Supreme Court; consequently, this issue is raised for the first time on remand from the United States Supreme Court and we apply the plain-error standard of review.

“[Tjhis Court’s review of a death-penalty case allows us to address any plain error or defect found in the proceeding under review, even if the error was not brought to the attention of the trial court. Rule 39(a)(2)(D) and (k), Ala. RApp. P. 1 “ ‘Plain error’ only arises if the error is so obvious that the failure to notice it would seriously affect the fairness or integrity of the judicial proceedings.” ’ Ex parte Womack, 435 So.2d 766, 769 (Ala.), cert. denied, Womack v. Alabama, 464 U.S. 986, 104 S.Ct. 436, 78 L.Ed.2d 367 (1983), quoting United States v. Chaney, 662 F.2d 1148, 1152 (5th Cir.1981). The plain-error standard applies only where a particularly egregious error occurs at trial. Ex parte Harrell, 470 So.2d 1309, 1313 (Ala.), cert. denied, 474 U.S. 935, 106 S.Ct. 269, 88 L.Ed.2d 276 (1985). When the error ‘has or probably has’ substantially prejudiced the defendant, this Court may take appropriate action. Rule 39(a)(2)(D) and (k), Ala. R.App. P.; Ex parte Henderson, 583 So.2d 305, 306 (Ala.1991), cert, denied, Henderson v. Alabama, 503 U.S. 908, 112 S.Ct. 1268, 117 L.Ed.2d 496 (1992).”

Ex parte Minor, 780 S.o.2d 796, 799-800 (Ala.2000)(footnote omitted).

Conducting a plain-error review of this issue is consistent with this Court’s treatment of the retroactive application of Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), mandated by the United States Supreme Court’s holding in Griffith v. Kentucky, 479 U.S. 314, 107 S.Ct. 708, 93 L.Ed.2d 649 (1987), to cases pending on direct review or otherwise not yet final. In Ex parte Watkins, 509 So.2d 1074 (Ala.1987), this Court conducted a plain-error review of the record to determine if there was any evidence to indicate that the State had exercised its peremptory challenges to remove prospec-five black jurors from the venire solely on account of their race, which would mandate a remand in light of Griffith. We noted that although the record indicated that the defendant was black and the victim was white, the record was simply devoid of any inference that the State had engaged in the practice of purposeful discrimination. We concluded that the defendant could not establish, and we could not hold, that plain error occurred “when there [was] no indication in the record that the act upon which error [was] predicated ever occurred.” 509 So.2d at 1077.

The standard applicable to plain-error review is a stringent one, i.e., the “error has or probably has adversely affected the substantial right of the appellant,” Rule 45A, Ala. RApp. P. Applying that standard, we reject Perkins’s contention that in light of the holding in Atkins, we must remand this cause for the trial court to conduct a hearing to determine if he is mentally retarded and therefore not subject to the death penalty.

We have conducted a thorough review of the record to determine if there is any inference that Perkins is mentally retarded. Although the Legislature has not had an occasion to address this State’s policy on this matter and establish a procedure for determining whether a capital defendant is mentally retarded and, therefore, not subject to the death penalty, we eon-elude that Perkins does not suffer from mental retardation under the definitions considered by the United States Supreme Court in reaching its holding in Atkins or as defined by any of the state statutes that prohibit the imposition of the death sentence on a mentally retarded defendant.

We agree with the State that this Court can determine, based on the facts presented at Perkins’s trial, that Perkins, even under the broadest definition of mental retardation, is not mentally retarded. Those states with statutes prohibiting the execution of a mentally retarded defendant require that a defendant, to be considered mentally retarded, must have significantly subaverage intellectual functioning (an IQ of 70 or below), and significant or substantial deficits in adaptive behavior. Additionally, these problems must have manifested themselves during the developmental period (i.e., before the defendant reached age 18).

The record establishes that Dr. John Goff, a licensed clinical neuropsychologist and clinical psychologist, testified on Perkins’s behalf. According to Dr. Goff, Perkins, when tested as an adult, has a full-score IQ of 76, with a verbal score of 80 and a performance score of 74. Dr. Goff stated that Perkins’s IQ scores indicate a borderline range of psychometric intelligence, and that his intellectual functioning has probably declined as he has aged because of his abuse of alcohol. Moreover, the record indicates that Perkins earned a GED certificate while he has been in prison and has completed community college courses there. Dr. Goff diagnosed Perkins with a borderline personality disorder and an alcohol dependence; he did not conclude that Perkins was mentally retarded. We find Dr. Goffs diagnosis pivotal in light of the fact that, when the penalty phase of Perkins’s trial was conducted, Penry v. Lynaugh, 492 U.S. 302, 109 S.Ct. 2934, 106 L.Ed.2d 256 (1989), and its progeny were applicable, and evidence of mental retardation established a strong mitigating circumstance to be considered in determining the appropriate sentence.

Additionally, the evidence presented at trial indicates that Perkins did not exhibit “significant” or “substantial” deficits in adaptive behavior before or after age 18. Perkins was able to have interpersonal relationships. Indeed, he was married for 10 years. He maintained a job as an electrician for a short period. Perkins did not present any evidence during the penalty phase of his trial to establish that he was mentally retarded. The record does not create any inference that Perkins is mentally retarded. Because Perkins cannot establish the common requirements for mental retardation, we reject Perkins’s contention that we must remand this cause for resentencing.

The Virginia Supreme Court in Emmett v. Commonwealth, 264 Va. 364, 569 S.E.2d 39 (2002), confronted a factual situation similar to the one this Court confronts here. The Court affirmed Emmett’s sentence of death, noting:

“The United States Supreme Court in Atkins v. Virginia, 536 U.S. 304, 321, 122 S.Ct. 2242, 2252, 153 L.Ed.2d 335 (2002), recently held that the execution of mentally retarded persons violates the Eighth Amendment’s prohibition against cruel and unusual punishments. The Court did not establish an express standard for determining when an individual would be considered mentally retarded and left to the States the task of developing appropriate ways to enforce this constitutional restriction upon executions. Atkins, 536 U.S. at 317, 122 S.Ct. at 2250. The General Assembly has not had the opportunity to address this matter following the decision in Atkins.
“At trial, Emmett did not assert that he is mentally retarded. Moreover, our review of the record reveals nothing that even suggests that he is mentally retarded. Emmett received a high school equivalency diploma, attended a community college, and was regularly employed during his adult life prior to committing the murder in question. Accordingly, we conclude that Emmett does not suffer from any mental retardation that would constitutionally restrict the imposition of the death sentence in this case.”

264 Va. at 376 n. 2, 569 S.E.2d at 47 n. 2.

Applying the plain-error standard of review, we hold that because, applying the most common definitions of mental retardation, we find no indication in the record that Perkins is mentally retarded, no reversible error occurred and the imposition of the death sentence in this case is not unconstitutional. Therefore, we affirm the judgment of the trial court sentencing Perkins to death.

AFFIRMED.

MOORE, C.J., and HOUSTON, SEE, LYONS, BROWN, HARWOOD, and WOODALL, JJ., concur.

JOHNSTONE, J., concurs in the rationale in part and concurs in the judgment.

JOHNSTONE, Justice

(concurring in the rationale in part and concurring in the judgment).

But for two exceptions, which do not affect the result, I concur in the main opinion. First, in my opinion, the reason we apply the plain-error standard of review on this particular remand is that Perkins did not contend at trial that mental retardation barred the imposition of a death sentence upon him. Second, I do not necessarily join in that part of footnote 1 urging the Alabama legislature “to expeditiously develop procedures for determining whether a capital defendant is mentally retarded and thus ineligible for execution.” I neither encourage nor discourage such legislation. This Court is capable of rightly resolving these issues if and when they are presented, whatever the statutory scheme may be at the time.

      . Although the United States Supreme Court in Atkins barred the execution of mentally retarded defendants, the Court did not provide a definition of mental retardation or a procedure for evaluating whether a defendant’s mental retardation is such as to prevent execution. Similar to that Court’s approach in Ford v. Wainwright, 477 U.S. 399, 106 S.Ct. 2595, 91 L.Ed.2d 335 (1986), with regard to the development of safeguards to prevent the execution of the insane, the Supreme Court determined that the states are in the best position to develop " 'appropriate ways to enforce the constitutional restriction’ ” on executing the mentally retarded. 536 U.S. at 317, 122 S.Ct. at 2250, quoting Ford, 477 U.S. at 416-17, 106 S.Ct. 2595.
      Both Perkins and the State urge this Court to refrain from making policy decisions with regard to claims of mental retardation by capital defendants. We agree that we should so refrain. As the judicial branch of government, this Court can only interpret the law. We urge the Legislature to expeditiously develop procedures for determining whether a capital defendant is mentally retarded and thus ineligible for execution.

      . See Atkins, 536 U.S. at 309 n. 3, 122 S.Ct. at 2245 n. 3.

      . See Ariz.Rev.Stat. § 13-703.02(J)(2) (2001); Ark. Code Ann. § 5-4-618 (Michie 1993); Colo.Rev.Stat. § 18-1.3-1101(2) (2002); Conn. Gen.Stat. § 1-lg (2001); Fla. Stat. Ann. § 921.137(1) (West 2002); Ga.Code Ann. § 17-7-131(a)(3) (1997); Ind.Code. § 35-36-9-2 (1998); Kan. Stat. Ann. § 21-4623(e) (1995); Ky.Rev.Stat. Ann. § 532.130(2) (Mi-chie 1999); Md, Ann.Code of 1957 art. 27 § 412(f)(3) (2001); Mo.Rev.Stat. § 565.030(6) (2001); Neb.Rev.Stat. § 28-105.01(3) (2000); N.M. Stat. Ann. § 31-20A-2.1(A) (Michie 2000); N.Y.Crim. Proc. Law § 400.27(12)(e) (McKinney 2002); N.C. Gen.Stat. § 15A-2005(a)(l)(a)(2001); S.D. Codified Laws § 23A-27A-26.2 (Michie 2002); Tenn.Code. Ann. § 39-13-203(a) (1997); Wash. Rev.Code § 10.95.030(2)(a)(2002).

      . Penry has been abrogated by Atkins.

      . Indeed, Perkins did not file an affidavit pursuant to the Retarded Defendant Act, § 15-24-3, Ala.Code 1975.


author: HOUSTON, Justice.

text:
    AMERIQUEST MORTGAGE COMPANY, INC., and Diana Harmon v. Kathryn BENTLEY, individually and d/b/a Kathryn Bentley & Associates.
    1011791.
    Supreme Court of Alabama.
    Nov. 27, 2002.

      Wilson F. Green and F.A. Flowers III of Burr & Forman, L.L.P., Birmingham, for appellants.
    George Huddleston, Birmingham, for appellee.
   HOUSTON, Justice.

Ameriquest Mortgage Company, Inc., and Diana Harmon, the defendants in an action pending in the Jefferson Circuit Court, appeal from an order denying their motion to compel arbitration of various tort and contract claims filed against them by Kathryn Bentley, individually and d/b/a Kathryn Bentley & Associates. We reverse and remand.

I.

Kathryn Bentley owns and operates a real estate appraisal business, Kathryn Bentley & Associates, in Jefferson County, Alabama. Bentley performed real estate appraisals for Ameriquest Mortgage Company, Inc. (“Ameriquest”), from May 1998 to January 2000.

In January 2000, Bentley accepted an offer to work for Ameriquest at its Birmingham office as a retail account executive. Her job duties with Ameriquest consisted of originating loans on behalf of the company. The employment agreement Bentley signed upon acceptance of the Ameriquest job stated that her employment was on an “at-will basis” and that it was also conditioned upon her signing an arbitration agreement. The contract provided: “As a condition of employment, you will be required to sign the standard Mutual Agreement to Arbitrate Claims ..., which will apply during your employment with the Company and thereafter.” Bentley and a representative of Ameriquest both signed the employment contract and the arbitration agreement. The arbitration agreement signed by both parties reads as follows:

“MUTUAL AGREEMENT TO ARBITRATE CLAIMS
“I recognize that differences may arise between Ameriquest Mortgage Company (collectively ‘the Company’) and me during or following my employment with the Company, and that by entering into this Agreement to Arbitrate Claims (‘Agreement’), I anticipate gaining the benefits of a speedy, impartial dispute-resolution procedure.
“Claims Covered by the Agreement
“The Company and I mutually consent to the resolution by arbitration of all claims (‘claims’), whether or not arising out of my employment (or its termination), that the Company may have against me or that I may have against the Company or against its officers, directors, employees or agents in their capacity as such or otherwise. The claims covered by this Agreement include, but are not limited to, claims for wages or other compensation due; claims for breach of any contract or covenant (express or implied); tort claims; claims for discrimination (including, but not limited to, race, sex, religion, national origin, age, marital status, medical condition, or disability); claims for benefits (except where an employee benefit or pension plan specifies that its claims procedure shall culminate in an arbitration procedure different from this one), and claims for violation of any federal, state, or other governmental law, statute, regulation, or ordinance, except claims in the Claims Not Covered section below.
“Except as otherwise provided in this Agreement, both the Company and I agree that neither of us shall initiate or prosecute any lawsuit or administrative action (other than an administrative charge of discrimination) in any way related to any claim covered by this Agreement.
“Claims Not Covered by the Agreement
“Claims I may have for workers’ compensation or unemployment compensation benefits are not covered by this Agreement.
“Also not covered are claims by the Company for injunctive and/or other equitable relief for unfair competition and/or the use and/or unauthorized disclosure of trade secrets or confidential information, as to which I understand and agree that the Company may seek and obtain relief from a court of competent jurisdiction.
“Arbitration Procedures
“The Company and I agree that, except as provided in this Agreement, any arbitration shall be in accordance with the then-current Model Employment Arbitration Procedures of the American Arbitration Association (‘AAA’) before an Arbitrator who is licensed to practice law in the state of California (‘Arbitrator’). The arbitration shall take place in or near the city in which I am or was last employed by the Company, if I am or was employed in the State of California. If I am or was employed outside the State of California, then at the Company’s headquarters in Orange, California.
“Interstate Commerce
“I understand and agree that the Company is engaged in transactions involving interstate commerce and that my employment involves such commerce.
“Consideration
“The promises by the Company and by me to arbitrate differences, rather than litigate them before courts or other bodies, provide consideration for each other.
“Employment Agreement
“This Agreement is not, and shall not be construed to create, any contract of employment, express or implied. Nor does this agreement in any way alter the ‘at-will’ status of my employment.
“Voluntary Agreement
“I ACKNOWLEDGE THAT I HAVE CAREFULLY READ THIS AGREEMENT, THAT I UNDERSTAND ITS TERMS, THAT ALL UNDERSTANDINGS AND AGREEMENTS BETWEEN THE COMPANY AND ME RELATING TO THE SUBJECTS COVERED IN THE AGREEMENT ARE CONTAINED IN IT, AND THAT I HAVE ENTERED INTO THE AGREEMENT VOLUNTARILY AND NOT IN RELIANCE ON ANY PROMISES OR REPRESENTATIONS BY THE COMPANY OTHER THAN THOSE CONTAINED IN THIS AGREEMENT ITSELF.
“I FURTHER ACKNOWLEDGE THAT I HAVE BEEN GIVEN THE OPPORTUNITY TO DISCUSS THIS AGREEMENT WITH MY PRIVATE LEGAL COUNSEL AND HAVE AVAILED MYSELF OF THAT OPPORTUNITY TO THE EXTENT I WISH TO DO SO.
“/s/ M. Kathryn Bentley
“Signature of Associate
“01/27/00
“Date”

(Capitalization original.)

The following facts were presented during the argument on the motion to compel arbitration. Bentley worked for Ameri-quest originating loans until March 2000. Bentley became dissatisfied with her compensation, and she believed that Ameri-quest had unilaterally changed the terms and conditions of her compensation package. Bentley decided to return to her real estate appraisal business. Bentley terminated her employment with Ameriquest, but claims that she left only after Ameri-quest allegedly represented to her that the company would use her as a preferred real estate appraiser if she terminated her employment.

On June 19, 2000, Bentley learned that she had been removed from Ameriquest’s “preferred appraiser’s list.” She was shown a facsimile transmission from Diana Harmon, an Ameriquest representative in California, which stated that Bentley had been removed from the preferred appraiser’s list “for cause” because of a perceived conflict of interest. Harmon claimed that Bentley had been removed from the list because she had “refused to assure Ms. Harmon that she will not allow her prior experience as an Ameriquest Account Executive to interfere with her professional responsibilities as an independent appraiser.”

Bentley sued Ameriquest and Harmon in the Circuit Court of Jefferson County, Alabama. In her complaint, she alleged breach of contract, fraud, defamation, and tortious interference with business relations against both defendants. All of the claims are based on the alleged representations by Ameriquest to Bentley while she was employed at Ameriquest.

Ameriquest and Harmon moved to stay the proceedings and to compel arbitration based on the arbitration agreement signed by Bentley. In support of their motion, Ameriquest and Harmon submitted a copy of the arbitration agreement, a copy of the employment agreement, and the affidavit of Ginger Crawford, human resources manager for Ameriquest. Crawford’s affidavit stated, in pertinent part, that Ameri-quest is a Delaware corporation whose headquarters are in California. The affidavit also stated:

“4. While employed as an account executive at Ameriquest, plaintiff received monthly payments from the Ameriquest headquarters in Orange, California.”

In her response to the motion to compel arbitration, Bentley argued that the arbitration agreement did not apply to the claims she was asserting because, she says, the claims are unrelated to her employment with Ameriquest and, even if they were, her employment contract did not sufficiently affect interstate commerce so as to invoke the Federal Arbitration Act, 9 U.S.C. § 1 et seq. (“FAA”).

The trial court denied Ameriquest and Harmon’s motion to compel arbitration. In its order, the trial court found that the arbitration agreement was unenforceable for three reasons: 1) no binding arbitration agreement was formed by the parties because there was no separate written acknowledgment of the arbitration agreement executed by the parties; 2) the arbitration agreement fails for lack of consideration because continued at-will employment was the recognized consideration for the agreement and Bentley’s claims arose after her at-will employment with Ameriquest was terminated; and 3) because Ameriquest and Harmon did not meet their burden of showing that the employment contract between the parties substantially affects interstate commerce. Ameriquest and Harmon appeal.

II.

The appeal of an order denying a motion to compel arbitration is subject to de novo review. Celtic Life Ins. Co. v. McLendon, 814 So.2d 222, 224 (Ala.2001); Fleetwood Enters., Inc. v. Bruno, 784 So.2d 277, 280 (Ala.2000); Patrick Home Ctr., Inc. v. Karr, 730 So.2d 1171, 1172 (Ala.1999). A trial court is required to stay or dismiss proceedings and to compel arbitration if the parties have entered into a valid contract containing an arbitration agreement. Ex parte Colquitt, 808 So.2d 1018, 1022 (Ala.2001). The party seeking to compel arbitration has the initial burden of producing a written arbitration agreement, covering a transaction that “substantially affects interstate commerce.” Sisters of the Visitation v. Cochran Plastering Co., 775 So.2d 759, 761 (Ala.2000). We hold that Ameriquest and Harmon have clearly satisfied their burden and have shown a valid, controlling contract containing an arbitration agreement in a transaction that substantially affects interstate commerce.

A.

Section 2 of the FAA provides:

“A written provision in any ... contract evidencing a transaction involving [interstate] commerce to settle by arbitration a controversy thereafter arising out of such contract or transaction ... shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.”

9 U.S.C. § 2. The federal policy favoring arbitration is so strong that, as a matter of law, “any doubts concerning the scope of arbitrable issues should be resolved in favor of arbitration.... ” Moses H. Cone Mem’l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 24-25, 103 S.Ct. 927, 74 L.Ed.2d 765 (1983); Green Tree Fin. Corp. v. Wampler, 749 So.2d 409, 416 (Ala.1999).

It is undisputed that in this ease the arbitration agreement was set forth in a writing signed by both parties. Also the claims Bentley asserts are clearly within the scope of the arbitration, agreement. The agreement provides, in pertinent part:

“The Company and I mutually consent to the resolution by arbitration of all claims (‘claims’), whether or not arising out of my employment (or its termination), that the Company may have against me or that I may have against the Company or against its officers, directors, employees or agents in their capacity as such or otherwise.”

Bentley’s claims, which are based on alleged representations made to her by Harmon while she was employed by Am-eriquest, certainly fall within this broad provision. Therefore, Ameriquest and Harmon met their burden of showing that the parties have entered into a valid contract containing an arbitration agreement. However, the trial court, purportedly relying on Ex parte Beasley, 712 So.2d 338 (Ala.1998), held that the parties did not intend to enter into a binding arbitration contract and that, even had they intended to do so, the contract would fail for lack of consideration.

In Beasley, all employees, as a condition of continued employment, were required to acknowledge receipt of a new handbook; the handbook contained an arbitration agreement. The employee in Beasley did not sign the actual acknowledgment form contained in handbook, but signed only a separate acknowledgment form. The unsigned acknowledgment in the handbook contained the following statement: “[N]o written statement or agreement in this handbook concerning employment is binding .... ” 712 So.2d at 340 (emphasis omitted). We noted that the clause in the acknowledgment form disclaiming the binding effect of the handbook would have rendered the arbitration provision of the handbook inoperative, but that the employee did not sign even that form. Beasley, 712 So.2d at 341. The acknowledgment form signed by the employee did not contain an arbitration clause. We therefore concluded that, “[ajbsent [the employeejs signature on a document that contains a valid arbitration clause, we cannot hold that she agreed to arbitrate her employment claims against [the employer].” 712 So.2d at 341.

The trial court seized upon both our language in Beasley and the clause in the arbitration agreement signed by Bentley, which read, “[t]his Agreement is not, and shall not be construed to create, any contract of employment, express or implied.” The trial court held:

“The employer in both [Beasley and the present case] did not wish [to] create a contract of employment by providing employees with an employee handbook in Beasley which contained the arbitration clause; the employer in the case before the Court, likewise, by the wording of its submitted document did not evidence an intent to create a binding contract of employment. By its terms, the document denies that a contract between the parties was intended or created.”

The trial court’s reliance on Beasley, however, is misplaced. The clause in the unsigned employee handbook in Beasley completely disclaimed the binding effect of the handbook. The clause in the agreement signed by Bentley, however, appears merely to reflect the parties’ intention that the arbitration agreement, the signing of which was a condition of employment incorporated into the employment contract, was not itself a contract of employment. The clause hardly rises to the effect given it by the trial court: that it “denies that a contract between the parties was intended or created.” Even if that interpretation of the clause was plausible, under well-established rules of contract construction, “where there is a choice between a valid construction and an invalid construction the court has a duty to accept the construction that will uphold, rather than destroy, the contract and that will give effect and meaning to all of its terms.” Homes of Legend, Inc. v. McCollough, 776 So.2d 741, 746 (Ala.2000).

The trial court’s conclusion that the arbitration agreement was unenforceable because of a failure of consideration is also without merit. The trial court held:

“Continued at-will employment, thus, is clearly the recognized consideration necessary to support and make binding an arbitration agreement in the at-will employment context. [Bentley] alleges and affirmatively states in response to [Am-eriquest and Harmon’s] motion that the basis of all three counts of her cause of action arose after the at-will employment terminated. The Court therefore finds ... that the arbitration provision before it, to the extent that its scope attempts to extend to claims which arise following or beyond the term of the at-will employment or its termination, is unenforceable due to a failure of consideration.”

This Court has consistently held, however, that providing continued at-will employment is sufficient consideration to make an employee’s promise to arbitrate binding. Gadsden Budweiser Distrib. Co. v. Holland, 807 So.2d 528, 531 (Ala.2001); Ex parte McNaughton, 728 So.2d 592, 595 (Ala.1998). The fact that the at-will employment is or may be terminated does not work a failure of consideration. This is especially true when the contract, by its terms, extends beyond the termination of employment. For example, in both Condelles v. Alabama Telecasters, Inc., 530 So.2d 201, 204 (Ala.1988), and Daughtry v. Capital Gas Co., 285 Ala. 89, 93, 229 So.2d 480, 483 (1969), we held that continued at-will employment was sufficient consideration for signing a noncompetition agreement, an agreement whose obligation, by its very nature, extends beyond the employment that served as consideration. The trial court, therefore, erred in holding that no binding arbitration agreement was formed.

B.

A party seeking to compel arbitration has the burden of proving that the contract containing the arbitration agreement has a substantial effect on interstate commerce. Liberty Nat’l Life Ins. Co. v. Douglas, 826 So.2d 806 (Ala.2002); Ex parte Ephraim, 806 So.2d 352, 356 (Ala.2001); Sisters of the Visitation v. Cochran Plastering Co., 775 So.2d 759, 761 (Ala.2000). The trial court found, and Bentley argues in her brief, that Ameriquest and Harmon have not met their burden of proof because Bentley’s claims have no substantial effect on interstate commerce. However, in determining whether a contract containing an arbitration agreement substantially affects interstate commerce, we look to the contract, not the claims sought to be arbitrated. Benchmark Homes, Inc. v. Aleman, 786 So.2d 1101, 1104 (Ala.2000)(noting that the “language of 9 U.S.C. § 2 does not apply the term ‘involving commerce’ to the controversy, but to the contract ”).

The affidavit of Ginger Crawford, human resources manager for Ameriquest, shows that the employment contract provided Bentley with a position that unquestionably involved interstate commerce. While she was employed as an account executive at Ameriquest, Bentley received her monthly salary from Ameriquest’s California headquarters. This fact, which is undisputed, sufficiently satisfies Ameri-quest and Harmon’s burden of proof regarding the employment contract’s effect on interstate commerce. In the present action, Ameriquest and Harmon have met their burden of proving that the employment agreement had a substantial effect on interstate commerce.

III.

On appeal, Bentley raises for the first time issues of unconscionability. Unconscionability is an affirmative defense that must be specially pleaded. AmSouth Bank v. Dees, 847 So.2d 928 (Ala.2002). Bentley neither pleaded nor argued below unconscionability as a basis for avoidance of the arbitration agreement at issue. This Court can affirm the judgment of a trial court on a basis different from the one on which it ruled, Smith v. Equifax, 537 So.2d 463 (Ala.1988), but the constraints of procedural due process prevent us from extending that principle to a totally omitted affirmative defense. Accordingly, we reject Bentley’s unconscionability argument.

IV.

The trial court erred in refusing to compel arbitration of Bentley’s claims against Ameriquest and Harmon. Therefore, we reverse the order denying Ameriquest and Harmon’s motion to compel arbitration and remand the cause for an order or proceedings consistent with this opinion.

REVERSED AND REMANDED.

LYONS, BROWN, JOHNSTONE, HARWOOD, WOODALL, and STUART, JJ., concur.

SEE, J., concurs in the result.

MOORE, C.J., dissents.

      . Because those documents were signed contemporaneously in the course of the same transaction by the same parties, they are " ‘in the eye of the law one instrument.’ ” Quality Truck & Auto Sales v. Yassine, 730 So.2d 1164, 1170 n. 8 (Ala.1999) (quoting Weeden v. Asbury, 223 Ala. 687, 690, 138 So. 267, 270 (1931)).


author: WOODALL, Justice. JOHNSTONE, Justice

text:
    Jerry GRUBBS and Linda Grubbs v. LIFE INSURANCE COMPANY OF GEORGIA et al.
    1011233.
    Supreme Court of Alabama.
    Nov. 27, 2002.
    L. Andrew Hollis, Jr., and Josh J. Wright of Hollis & Wright, P.C., Birmingham, for appellants.
    William C. Roedder, Jr., P. Russel Myles, and Richard M. Gaal of McDowell, Knight, Roedder & Sledge, L.L.C., Mobile, for appellee Life Insurance Company of Georgia.
    James L. Martin, Eufaula, for appellee James C. Warr.
   WOODALL, Justice.

AFFIRMED. NO OPINION.

See Rule 53(a)(1) and (a)(2)(E), Ala. R.App. P.

MOORE, C.J., and SEE, LYONS, BROWN, HARWOOD, and STUART, JJ., concur.

JOHNSTONE, J., concurs in part and dissents in part.

HOUSTON, J., recuses himself.

JOHNSTONE, Justice

(concurring in part and dissenting in part).

While I concur in affirming summary-judgment against the plaintiffs on their contract and negligence theories, I respectfully dissent from affirming summary judgment against the plaintiffs on their fraud theory.