author: LEE, J.,

text:
    Shirley SMITH, Appellant, v. STATE of Mississippi, Appellee.
    No. 2003-CP-00622-COA.
    Court of Appeals of Mississippi.
    Aug. 24, 2004.

      Shirley Smith (pro se).
    Office of the Attorney General by John R. Henry, attorney for appellee.
    Before KING, C.J., LEE and GRIFFIS, JJ.
   LEE, J.,

for the Court.

FACTS AND PROCEDURAL HISTORY

¶ 1. On January 17, 2002, Shirley Smith was indicted by the grand jury of Pike County on two counts of arson. Smith pled guilty to both counts, and on April 19, 2002, Judge Mike Smith sentenced her to fifteen years on each count, with seven years to serve on each count and the remaining eight to be served in post-release supervision. The two seven-year sentences were to be served concurrently, and the two eight-year periods of post-release supervision were to be served consecutively. Smith was also ordered to make restitution for the damages she caused. Aggrieved with her sentence, Smith timely petitioned the trial court for post-conviction relief. Judge Smith denied the motion without a hearing, and it is from this denial that Smith now appeals.

¶ 2. In her appeal, Smith argues the following five points of error: (1) that because the crime was a crime of passion, she should have pled “not guilty by reason of temporary insanity;” (2) that “the plea was involuntarily made during interrogation of investigators; cause for self-incrimination;” (3) that she was provided ineffective assistance of counsel, specifically counsel failed to investigate and present mitigating evidence during sentencing; (4) that the sentencing was based upon perjured testimony; and (5) that the second offense of arson should have been only a lesser-included offense because only the porch of the house was burned.

STANDARD OF REVIEW

¶ 3. When a trial court has denied a petition for post-conviction relief, this Court will examine whether the denial is clearly erroneous. White v. State, 867 So.2d 1047, 1049(¶ 10) (Miss.Ct.App.2004). The trial judge must review the “original motion, together with all the files, records, transcripts and correspondence relating to the judgment under attack” in resolving the merits of the allegations. Miss.Code Ann. § 99-39-11(1) (Rev.2000).

DISCUSSION OF ISSUES

I. TEMPORARY INSANITY DEFENSE

¶ 4. Smith argues that her emotional state at the time of the crime warrants a plea of “not guilty by reason of temporary insanity.” Smith argues:

[f]rom all the pressures, the sufferings, and heartaches in Mrs. Smith’s life, the reality of the fact that her trusted fiancé [sic] was sleeping with another woman ... was just too much for her to bare [sic] causing her to have a relapse in the mind, suffering blackouts and memory loss. In the mental and emotional state Mrs. Smith was in could not be held responsible for her actions.

¶ 5. Smith also argues that the court should have heard testimony regarding her mental state and her “emotional and mental disorders” and that such testimony would have resulted in a plea of not guilty by reason of temporary insanity.

¶ 6. Quite bluntly, diminished capacity is not a defense to a criminal charge in this state. Cannaday v. State, 455 So.2d 713, 720 (Miss.1984). “[I]f a person, when sober, is capable of distinguishing between right and wrong and voluntarily intoxicates or drugs himself to the extent that he does not know or understand his actions, e.g., steals, robs, or murders, he is responsible and he may be convicted and sentenced for the crime.” Smith v. State, 445 So.2d 227, 231 (Miss.1984). Not only is the issue without merit, it is procedurally barred from consideration, as Smith failed to raise this defense at the time she pled guilty. Miss.Code Ann. § 99-39-21(1).

II. WHETHER SMITH’S PLEA WAS VOLUNTARY

¶ 7. In this assignment of error Smith argues that her plea was not voluntarily made and that her rights under the Fifth Amendment were violated by the investigating officers.

¶ 8. Smith argues that “[the investigators] pressured and pried and threatened, and frightened me into confession. Without the advice or presence of an attorney.”

¶ 9. The Uniform Rules of Circuit and County Court Practice require that a plea be intelligently and voluntarily made.

Before the trial court may accept a plea of guilty, the court must determine that the plea is voluntarily and intelligently made and that there is a factual basis for the plea. A plea of guilty is not voluntary if induced by fear, violence, deception, or improper inducements. A showing that the plea of guilty was voluntarily and intelligently made must appear in the record.

URCCC 8.04(3).

¶ 10. A plea of guilty is not binding upon a criminal defendant unless it is entered voluntarily and intelligently. Myers v. State, 583 So.2d 174, 177 (Miss.1991). A plea is deemed “voluntary and intelligent” only where the defendant is advised concerning the nature of the charge against him and the consequences of the plea. Wilson v. State, 577 So.2d 394, 396-97 (Miss.1991). To resolve this issue, this Court must have information regarding the plea, that is, evidence as to whether or not Smith was informed of her right not to testify against herself, the effect of her guilty plea, and whether or not she felt she had been adequately represented by counsel. This information is found in the transcript of Smith’s guilty plea.

¶ 11. Judge Smith states in his order that “[tjhis court adjudicated that Shirley Smith voluntarily and intelligently entered her plea of guilty.” The record before this Court reflects this finding. Smith signed the petition to plead guilty, and the petition clearly and thoroughly enumerates Smith’s rights under the United States Constitution. Additionally, Judge Smith asked Smith, under oath, “Has anyone threatened, abused, or promised you anything to cause you to want to plead guilty?” Smith responded, “No, sir.” Judge Smith inquired of Smith, “Are you pleading guilty because you are guilty and for no other reason?” Shirley Smith responded, “Yes, sir.” Claims by the petitioner, even if supported by affidavit, that are contradicted by the record of the plea acceptance hearing may be disregarded by the trial court. McCuiston v. State, 758 So.2d 1082(¶ 9) (Miss.Ct.App.2000). Smith’s claims that she was forced to confess to her crimes is contradicted by the record of her plea hearing. This assignment of error is without merit.

III. SMITH’S INEFFECTIVE ASSISTANCE OF COUNSEL CLAIMS

¶ 12. Smith argues that she was inadequately represented by her attorney because he “fail[ed] to investigate and present mitigating evidence [in accordance with] Miss.Code Ann. 99-19-101(6) when determining the petitioner’s sentence.” Allegations of ineffective assistance of counsel must be made with specificity and detail. Garner v. State, 864 So.2d 1005, 1008(¶ 13) (Miss.Ct.App.2004). “[I]n order to establish that failure to investigate a line of defense constituted ineffective assistance, a petitioner must show that knowledge of the uninvestigated evidence would have caused counsel to vary his course.” King v. State, 503 So.2d 271, 275 (Miss.1987).

¶ 13. Smith writes that two mental health professionals were “willing to be summoned to speak on my behalf, but [my attorney] would not summon them. They are both mental health counselors who has [sic] a record of my history and could have made a great difference in the outcome of my case.” First, Smith is incorrect in relying on Mississippi Code Annotated Section 99-19-101(6). That section of the code pertains to mitigating evidence presented to a jury in capital cases. The maximum punishment for arson is twenty years in the penitentiary. Miss.Code Ann. § 97-17-1 (Rev.2000). Arson is clearly not a “capital crime” as defined by Mississippi Code Annotated Section 1-3-4, (Rev. 1998) which limits capital crimes to crimes punishable by death or imprisonment for life in the state penitentiary.

¶ 14. Second, Smith’s proposition regarding the two mental health professionals and their willingness to testify on her behalf lacks evidentiary support as required under Mississippi Code Annotated Section 99-39-9 (Supp.2003). “A petition that fails to incorporate an affidavit attesting to facts outside the personal knowledge of the petitioner fails to meet the statutory requirement for post-conviction relief motions.” Jefferson v. State 855 So.2d 1012, 1014(¶ 11) (Miss.Ct.App.2003). Additionally, Smith’s plea of guilty waived any evidentiary issues. Id. Thus, Smith’s argument that her counsel was ineffective for failing to subpoena these mental health professionals lacks merit on its face, and the trial court did not err in denying an evidentiary hearing on this issue.

IV. SMITH’S CLAIM THAT THE SENTENCING WAS BASED ON PERJURED TESTIMONY

¶ 15. In support of this assignment of error, Smith recounts that at her sentencing the “plaintiffs” were present and Smith thinks “it is wrong that they had the recommendations for my sentencing and they didn’t press any charges.” Smith further states that “after the judge had spoke (sic) with [one of the victims], his whole attitude and everything changed dramatically towards me. He stated that I was a very mean and terrible person. And that he had to give me some time in prison.” Smith further states that she did not know what the victims told the judge, however she knows that the victim would tell the judge lies.

¶ 16. As discussed in Section III, Smith’s allegations of perjured testimony are not sufficient to require a hearing under Mississippi Code Annotated Section 99-39-9. The trial court did not err in denying an evidentiary hearing on this issue.

V. LESSER-INCLUDED OFFENSE ARGUMENT

¶ 17. Smith argues that the second charge of arson should be considered a lesser-included offense to the first count of arson because “the second plaintiffs property received only a minimum to hardly any damage, done only to the front porch which resulted only in a thousand dollars worth of damage.” Construing this argument as an attack on the validity of the indictment, this Court is mindful that a substantive defect in an indictment cannot be waived by entry of a guilty plea and may be raised in a motion for post-conviction relief. Jefferson v. State, 556 So.2d 1016, 1019 (Miss.1989). However, non-substantive defects in the indictment curable by amendment and not requiring further grand jury action may be waived if not timely raised. Brandau v. State, 662 So.2d 1051, 1055 (Miss.1995). Entry of a guilty plea is, itself, an act of waiver of all defects in the indictment that could have been cured by amendment. Foster v. State, 716 So.2d 538(¶5) (Miss.1998); Brandau, 662 So.2d at 1055.

¶ 18. Smith pled guilty to two counts of arson in violation of Mississippi Code Annotated Section 97-17-1. That section provides:

Any person who willfully and maliciously sets fire to or burns or who causes to be burned ... any dwelling house, whether occupied, unoccupied or vacant, or any kitchen, shop, barn, stable or other outhouse that is parcel thereof, or belonging to or adjoining thereto ... shall be guilty of arson in the first degree.

Miss.Code Ann. § 97-17-1 (Rev.2000).

¶ 19. “A ‘lesser-included offense’ is defined as ‘one composed of some, but not all, of the elements of the greater crime, and which does not have any element not included in the greater offense.’ ” Cannaday, 455 So.2d at 724 (quoting Black’s Law Dictionary, p. 812 (5th ed.1979)). The burning of the second dwelling is not a lesser-included offense of the first count of arson. Both crimes share the same elements: the willful or malicious burning of a house or any “kitchen, shop, barn, stable or other outhouse that is parcel thereof, or belonging to or adjoining thereto.... ” The statute makes no exception for “minimum to hardly any damage, done only to the front porch” as Smith would have this Court to believe. The indictment clearly charged Smith with committing the setting of fire to two separate dwellings, and Smith pled guilty to the two separate offenses. The burning of one dwelling constituted one act of arson. The burning of the other dwelling, no matter how slight the damage, constituted another act of arson. The indictment was not defective, and Smith has failed to show any substantive defect in the indictment. This assignment of error lacks merit.

¶ 20. Because none of Smith’s assignments of error have merit, this Court finds that the trial court did not err in denying Smith’s motion for post-conviction relief.

¶ 21. THE JUDGMENT OF THE PIKE COUNTY CIRCUIT COURT DENYING POST-CONVICTION RELIEF IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO PIKE COUNTY.

KING, C.J., BRIDGES, P.J., MYERS, CHANDLER AND GRIFFIS, JJ., CONCUR. IRVING AND BARNES, JJ., NOT PARTICIPATING.


source: Caselaw Access Project

author: HARWOOD, Justice. JOHNSTONE, Justice

license: Public Domain

text:
    Sherrian Y. WILSON v. Rhoda MANNING.
    1020432.
    Supreme Court of Alabama.
    Oct. 24, 2003.

      Bryan G. Duhé, Mobile, for appellant.
    K. Paul Carbo, Jr., of Atchison, Crosby, Saad & Beebe, Mobile, for appellee.
   HARWOOD, Justice.

Sherrian Y. Wilson sued Rhoda Manning, a registered nurse, asserting medical-malpractice claims, alleging that Manning’s negligence resulted in further amputation of Wilson’s leg. Manning filed a motion for a summary judgment, with supporting evidentiary submissions, and Wilson filed a brief opposing the motion. The trial court granted the motion, and made the summary judgment final pursuant to Rule 54(b), Ala. R.Civ.P.

Our review of a summary judgment is de novo.

“In reviewing the disposition of a motion for summary judgment, ‘we utilize the same standard as the trial court in determining whether the evidence before [it] made out a genuine issue of material fact,’ Bussey v. John Deere Co., 531 So.2d 860, 862 (Ala.1988), and whether the movant was ‘entitled to a judgment as a matter of law.’ Wright v. Wright, 654 So.2d 542 (Ala.1995); Rule 56(c), Ala.R.Civ.P. When the movant makes a prima facie showing that there is no genuine issue of material fact, the burden shifts to the nonmovant to present substantial evidence creating such an issue. Bass v. SouthTrust Bank of Baldwin County, 538 So.2d 794, 797-98 (Ala.1989). Evidence is ‘substantial’ if it is 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.’ Wright, 654 So.2d at 543 (quoting West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala.1989)). Our review is further subject to the caveat that this Court must review the record in a light most favorable to the nonmovant and must resolve all reasonable doubts against the movant. Wilma Corp. v. Fleming Foods of Alabama, Inc., 613 So.2d 359 (Ala.1993)[overruled on other grounds, Bruce v. Cole, 854 So.2d 47 (Ala.2003) ]; Hanners v. Balfour Guthrie, Inc., 564 So.2d 412, 413 (Ala.1990).”

Hobson v. American Cast Iron Pipe Co., 690 So.2d 341, 344 (Ala.1997).

The record reveals that Wilson was arrested at her home on Wednesday, May 21, 1997, and was taken to the Mobile County Metro Jail for failing to appear at a hearing on a charge of negotiating a worthless instrument. Wilson was brought to the jail at 6:30 p.m., and a corrections officer noted on her “Jail Receiving Screening Form” that she had “bone cancer.” At the time of her incarceration, Wilson was receiving intravenous antibiotic medication twice daily, through a Groshong shunt in her chest, to treat what she termed a “bone disease” in her left leg, which had been amputated below the knee. When she was admitted to the jail, she had not had her second daily dosage of the antibiotic medication.

Manning, an employee of the Mobile County Sheriffs Department, was director of nursing at the jail and was responsible for supervising two medical secretaries, five registered nurses, and seven licensed practical nurses. She testified in her deposition, filed in support of her motion for a summary judgment, that the warden ran the jail and that his immediate supervisor was the chief, who answered to the chief deputy, who answered to the sheriff. On Thursday, May 22, Wilson signed a “consent for medical care” form and filled out a “request for medical evaluation,” on which she wrote “PAIN, leg stump — need IV treatment], I have a shunt in my chest for bone disease.”

That same day, in response to Wilson’s request for a medical evaluation, Manning visited Wilson and filled out a “medical encounter record.” Manning noted in the medical encounter record that Wilson informed her that she was a patient of Infirmary Home Health Agency, Inc., and she provided her doctor’s name, Dr. Steven G. Alsip, and a telephone number for Infirmary Home Health. Manning telephoned Infirmary Home Health and spoke to Jackie Woolfolk, the nurse who administered Wilson’s medications to her at Wilson’s home. Manning recorded in the medical encounter record, and subsequently testified on deposition, that Woolfolk told her that Wilson was taking one gram of Cefotan, an antibiotic, intravenously twice daily, at 6:00 а.m. and 6:00 p.m., and was having the dressing changed on the Groshong shunt three times per week. She also stated in her deposition: “The assessment from this lady, Jackie, was osteomyelitis,[] amputee, car accident two years ago, long-standing, chronic.” During her deposition, Manning further described her telephone conversation with Woolfolk:

“Q [Wilson’s counsel]: 11:00 a.m. Did Jackie call or did you call Jackie or how did that conversation take place, as best as you can recall?
“A: I called.
“Q: Okay.
“A: Because I got the nurse’s name.
“Q: All right. And did she indicate to you what the situation was with this lady’s osteomyelitis and care and that sort of thing?
“A: Yes, the medication.
“Q: Okay.
“A: But it was not a doctor’s order.
“Q: Okay. Did — it was not a doctor’s order? I’m sorry. Help me with that, now.
“A: She gave me a report—
“Q: Right.
“A: — an assessment, a history, but — and told me what the patient had been on.
“Q: Right.
“A: But didn’t — you know, it was not a doctor’s order. A nurse can’t give another nurse or a—
“Q: Sure.
“A: Office personnel can’t give a doctor’s order.”

In regard to her conversation with Infirmary Home Health, Manning also stated that she telephoned them “to make them aware that [Wilson was] there so they [could] continue the treatment or whatever they do.... ” Woolfolk testified somewhat differently, by deposition, concerning the content of that telephone conversation. She stated that she telephoned the jail “and left a message for the head nurse to call me back.” Woolfolk stated that when she talked to Manning, “I introduced myself, told her that I was the one who had been primarily seeing Sherrian. I told her what medication she was getting ... how often she was getting it, and who her doctor was, and I also gave her the doctor’s phone number.” Woolfolk testified that there was no discussion during that conversation about Infirmary Home Health’s delivering Wilson’s medication and she stated that Manning did not request that Infirmary Home Health send the medicine.

Manning noted in the May 22 medical encounter record that the medical “plan” for Wilson was for Lt. Smith, who she said in her deposition was “in charge of the jail’s functions” at that time, to check on Wilson’s being released because of the cost of her medications. On Friday, May 23, Manning added to the May 22 medical encounter record a notation that she had also notified Lt. York of Wilson’s situation, and that he was going to telephone the judge to inquire about the possibility of Wilson’s release. Manning acknowledged that this “plan” was adopted because the charge Wilson had been arrested for was a minor charge, but Wilson had not made bond and the estimated cost of her medicine, Cefotan, was “two hundred and fifty dollars a day.”

Also on that Friday, Joann Peavy, a nurse working at the jail, completed a “physical examination” sheet, a “health history” sheet, a “mental status assessment sheet,” and a “medical encounter record” in regard to Wilson. The health history sheet noted that Manning had cancer and that she wore a prosthesis below her left knee. The medical encounter record, which Manning signed, documented Wilson’s medical condition, provided her doctor’s name, and stated “no distress noted.” That same day, Brenda Cain, a registered nurse working at the jail, filled out another medical encounter record concerning Wilson, which Manning also signéd; that medical encounter record contained the following notation:

“5:00 p.[m.] Dr. Alsip’s nurse Karen called. The family called to express concern that Ms. Wilson has not had her IV Therapy Cefotan in 3 days. Dr. Alsip was not aware she was incarcerated. He also wanted to know if her charges were drug related.
“5:00 p.[m.] 1. Placed call to Rhoda Manning to determine if arrangements had been made for [Infirmary Home Health] to come in and give her IV’s daily and Groshong care 3 [times] weekly. 5:30 p.[m.] 2. Placed call to Warden Gaston to determine if a release had been arranged. 7:00 p.[m.] 3. Per R.M. [Rhoda Manning] contact [Infirmary Home Health] to set up visit in a.m. 10:30 p.[m.] 4. Emily (nurse on call) [Infirmary Home Health] returned call — [Wilson] was discharged from their services due to noncompliance. She was never at home when nurse came — never got her medication and never got Groshong care. She would have to be a new admit — referral again from Dr. Alsip — They would then evaluate her referral — undecided if they would take her on now again due to incarceration.”

(Emphasis original.)

On Wednesday, May 28, Wilson, who was still incarcerated, filled out another request for medical evaluation form; that form stated, “I have an infection of the bone that is VERY active at present. I have a shunt in my chest and I need antibiotics I.V. and pain medication.” (Capitalization in original.) At 9:10 a.m., on May 28, Manning completed another medical encounter record concerning Wilson, which stated:

“Called [and] spoke to Karen, Dr. Alsip’s nurse. She states Infirmary Home Health cannot abandon this [patient]. She will call me back. 9:35 a.m. Nurse Karen called, she will call back to give [patient] her infusions [schedule]. She will talk [to] Mobile Infirmary Home Health. 11:30 a.m. Karen called back. [Infirmary Home Health] refuses to come in; they will provide the meds, but not the service. Ms. Wilson has an appointment [with] Dr. Alsip on Fri[day] 5/30/97 at 10:15 a.m. 11:35 a.m. [Paged] Dr. S. Eichold,[] gave him report. He’s going to call Karen. Will await one of their calls for instruction. 12:40 p.m. Dr. Eichold [called.] Infirmary Home Health will supply meds, we will give it.”

In regard to her conversation with Dr. S. Eichold, Manning testified:

“A: And [Dr. Eichold] stated at that time that the Infirmary — that Infirmary Home Health will supply the meds and we will give it. That was the first time that we got any sort of treatment or medication orders.
“Q [Wilson’s counsel]: Okay.
“A: They were bringing in the medication. I don’t know what transpired during his conversation. We were in touch with Karen, Dr. Alsip’s nurse—
“Q: All right.
“A: — and with Dr. Eichold.
“Q: All right. Now, where did the order come from to start her medication, is all I’m asking?
“A: [Infirmary Home Health] finally gave the order because they were supplying it. They had to have an order to supply the medicine.”

Manning testified that Wilson was given a dose of antibiotics on May 28, at 6:00 p.m., and stated further:

“Q [Wilson’s counsel]: Okay. And she got her medication on the 28th, did she not?
“A: Yes, because we received a doctor’s order.
“Q: Why couldn’t that have been done on the 22nd?
“A: I don’t know. You need to ask [Infirmary] Home Health and Dr. Alsip.
“Q: Well, you are the person who actually got the ball rolling on the 28th to get her medication, aren’t you?
“Q: I mean, on the 28th, you are the one who — if I’m reading this, and you read it to me, you are the one who coordinated all of these activities to get her medication started? Am I wrong about that?
“A: You are right, but I also did that on the 23rd by way of Brenda Cain, the nurse, the RN.
“Q: Once you were unsuccessful on the 23rd, did you not feel incumbent to continue to try to get her medication for her no matter what the source was or to get her out of jail, I mean?
“A: That was obvious. We had tried all that. I cannot give especially a Groshong I.V. therapy without a doctor’s orders. We had the doctor on the phone. He did not give us an order.
“Q: Well, couldn’t you call him back and get an order? Is there something—
“A: We had him on the phone. He didn’t give an order.”

Wilson’s counsel questioned Manning concerning a possible breach of the standard of care, as follows:

“Q: I just have a couple just to follow up. In this ease, this lady not having this type of medication for the condition for which she was suffering for a week, was there a standard of medical care breached in this case, in your opinion, by this lady not having her medication for a week?
“A: I’m not qualified to make that.
“Q: As an RN — let me just kind of backtrack a little bit. As an RN, do you think that a standard of care, your standard of care as an RN, was breached by not having this lady have her medication for seven days, just generically speaking?
“A: Continuity of care is always important with delivering patient care.
“Q: Okay.
“A: But on the other hand, nurses can’t just generate orders themselves.
“Q: Assume there was an order here and that someone did not comply with that order after seven days. Would that be a breach of a standard of nursing care that you would expect to be delivered to Ms. Wilson? Do you want me to break it down for you?
“A: The integrity of delivering nursing care would have been breached, yes.
“A: Okay. If there was a breach of care, my personal professional opinion is that it was with [Infirmary Home Health]. They could have either delivered the medication or they could have given us a written copy of the treatment order and the order. On the other hand, we had the doctor on the phone and he could have also have given us an order or faxed us an order.
“Q: Obviously there was a breach here?
“A: Yes.”

Dr. Alsip sent Infirmary Home Health a letter, dated May 28,1997, which stated, in relevant part:

“I was dismayed to hear about the gap in the treatment of our patient, Sherrian Wilson. To summarize the facts as I understand them, she was incarcerated at some point at the end of last week, perhaps May 22 or 23. We heard about the unfortunate turn of events with a call from the jail. We spoke with them, both my nurse and me, with the understanding that indeed there was a nurse available at the jail and that if Ms. Wilson did not leave jail, then her antibiotics could be delivered to the jail and infused by the nurse there. This has been done in the past when a patient on IV infusion therapy has been arrested. I personally spoke with the jail sometime after 5 o’clock the evening of May 23, and I know that they had your number and there was a clear understanding to continue her therapy if she were not to be released, which at that point seemed very unlikely. On call as I was all through the weekend, and then the office being open as usual on Monday, May 26, I expected I would have heard if there was a problem, either from you or from the jail. Unfortunately, I find that today, May 28, her antibiotic therapy was discontinued in spite of our efforts. I understand that it was unilateral on your part at least, in that you had no order from us to stop the therapy and the jail was more than happy to deliver the treatment, which I confirmed later in a phone call that I received from the medical director of the jail. After a series of phone calls today, the therapy was quickly reinstituted.
“How did such an occurrence take place? Even if your company felt that it was impossible for them to deliver[ ] therapy, shouldn’t I have received some notification? I am afraid that this is the most recent dramatic example of problems that we have had with your company when we tried to deliver care to our patients. The questions that we receive from your representatives often portray an obviously poor knowledge base (such as being unfamiliar with common tests, drugs, and procedures), poor lines of communication within your company (multiple calls from different representatives of the Infirmary Home Health for the exact same orders), and unfortunately a lack of responsibility for the welfare of the patients. As we are often obligated to use your company through the contractual arrangements you have arranged, I hope that something can be done to improve the situation before anyone else gets hurt.”

Wilson was released from the jail on May 29. According to Wilson’s brief opposing Manning’s summary-judgment motion and her brief to this Court, she was “taken immediately to Mobile Infirmary hospital where the remainder of her leg was amputated.”

I. State-Agent Immunity

Wilson argues that the trial court “erroneously applied this Court’s decision in Ex parte Alabama Department of Transportation, 764 So.2d 1263 (Ala.2000), and found that Rhoda Manning was entitled to discretionary[-function] immunity, and, therefore, granted the Defendant’s motion for summary judgment.” The trial court stated in its summary-judgment order, in relevant part:

“Rhoda Manning, as an employee of Sheriff [Jack] Tillman, is entitled to discretionary function immunity. [Wilson] has failed to present substantial evidence to raise a genuine issue of material fact as to whether Rhoda Manning acted fraudulently, willfully, maliciously or in bad faith. Ex parte Department of Transportation, 764 So.2d 1263 (Ala.2000).
“Further, [Wilson] has failed to raise a genuine issue of material fact regarding whether Rhoda Manning breached the standard of care for treatment of [Wilson]. The evidence shows that Nurse Manning and/or nurses under her supervision contacted both the home health care agency and [Wilson’s] personal physician in a timely manner. No orders were provided allowing the nursing staff to provide treatment to [Wilson] until May 28, 1997. Upon receipt of the doctor’s orders the nursing staff administered the medication.
“Viewing all evidence in the light most favorable to [Wilson], the Court finds ... Defendant Rhoda Manning is entitled to judgment based on discretionary function immunity and the failure of [Wilson] to present substantial evidence in which to raise a genuine issue of material fact regarding the breach of the standard of care.”

Discretionary-function immunity is now referred to as State-agent immunity. Giambrone v. Douglas, 874 So.2d 1046, 1048 n. 1 (Ala.2003) (“The immunity available to individuals sued for actions taken on behalf of the State is now referred to as ‘State-agent immunity.’”). As Wilson notes in her brief to this Court, Manning’s immunity claim should have been reviewed under the standard set forth in Ex parte Cranman, 792 So.2d 392 (Ala.2000). Explaining the issue of State-agent immunity, this Court stated in Alabama Department of Corrections v. Thompson, 855 So.2d 1016, 1020 (Ala.2003):

‘Ex parte Cranman, 792 So.2d 392 (Ala.2000), recounts the evolution of State-agent immunity ...,’ Ex parte Rizk, 791 So.2d [911] at 913 [(Ala.2000)], and restates the law on that topic:
“ ‘We therefore restate the rule governing State-agent immunity:
“ ‘A State agent shall be immune from civil liability in his or her personal capacity when the conduct made the basis of the claim against the agent is based upon the agent’s
“ ‘(1) formulating plans, policies, or designs; or
“ ‘(2) exercising his or her judgment in. the administration of a department or agency of government, including, but not limited to, examples such as:
“ ‘(a) making administrative adjudications;
“ ‘(b) allocating resources;
“ ‘(c) negotiating contracts;
“ ‘(d) hiring, firing, transferring, assigning, or supervising personnel; or
“ ‘(3) discharging duties imposed on a department or agency by statute, rule, or regulation insofar as the statute, rule, or regulation prescribes the manner for performing the duties and the State agent performs the duties in that manner; or
“ ‘(4) exercising judgment in the enforcement of the criminal laws of the State, including, but not limited to, law-enforcement officers’ arresting or attempting to arrest persons; or
“ ‘(5) exercising judgment in the discharge of duties imposed by statute, rule, or regulation in releasing prisoners, counseling or releasing persons of unsound mind, or educating students.
“ ‘Notwithstanding anything to the contrary in the foregoing statement of the rule, a State agent shall not be immune from civil liability in his or her personal capacity
“ ‘(1) when the Constitution or laws of the United States, or the Constitution of this State, or laws, rules, or regulations of this State enacted or promulgated for the purpose of regulating the activities of a governmental agency require otherwise; or
“ ‘(2) when the State agent acts willfully, maliciously, fraudulently, in bad faith, beyond his or her authority, or under a mistaken interpretation of the law.’
“Ex parte Cranman, 792 So.2d 392, 405 (Ala.2000) (emphasis in original). ‘This restatement was adopted by our decisions in Ex parte Rizk, [supra,] and Ex parte Butts, 775 So.2d 173 (Ala.2000).’ Ex parte Blankenship, 806 So.2d 1186, 1189 (Ala.2000).”

As noted, Manning, a registered nurse, worked for the Mobile County Sheriffs Department and, as director of nursing for the jail, supervised 14 employees. Wilson, in her brief, cites Ex parte Cranman, supra, for the proposition that “this Court found that in a medical malpractice setting state employees who deny proper care to patients entrusted to them fit within no category of conduct recognized by the restated rule ... as immune.”

The only categories enumerated in Cranman that could possibly have any applicability to the facts of this case are (1), (2), or (3). Manning, in her brief to this Court, argues only the applicability of category (2). She states that “she was exercising her judgment in the administration of a department of the government.” Wilson argues that Manning, in her dealings with Wilson, was in violation of § 14-6-19, Ala.Code 1975, which provides:

“Necessary clothing and bedding must be furnished by the sheriff or jailer, at the expense of the county, to those prisoners who are unable to provide them for themselves, and also necessary medicines and medical attention to those who are sick or injured, when they are unable to provide them for themselves.”

(Emphasis supplied.)

Although the statute states that “the sheriff or jailer” is responsible for providing “necessary medicines and medical attention,” those duties were delegated to and assumed by Manning, as director of nursing for the jail, and she therefore also had the responsibility of conforming to the dictates of the statute. Compare Ex parte Progress Rail Servs. Corp., 869 So.2d 459, 469 (Ala.2003) (“Alabama ha[s] recognized the right of an employee to sue a co-employee for negligently failing to carry out his individually delegated or assumed duty to provide a safe workplace.”). The facts of this case raise a genuine issue of material fact as to whether Manning provided Wilson the “necessary medicines and medical attention” required by § 14-6-19. Even if Manning was “exercising ... her judgment in the administration of a department or agency of government,” Cran-man, supra, she had no discretion to decline to provide necessary medicines and treatment in violation of that statute. Accordingly, the trial court erred in entering the summary judgment on the basis that Manning was entitled to State-agent immunity.

II. Breach of the Standard of Care

In its order, the trial court also stated that “Rhoda Manning is entitled to judgment based on ... the failure of [Wilson] to present substantial evidence [which raises] a genuine issue of material fact regarding the breach of the standard of care.” This Court stated in Vaughan v. Oliver, 822 So.2d 1163, 1168 (Ala.2001):

“In medical-malpractice cases, ‘[t]he plaintiff must prove the alleged negligence through expert testimony, unless an understanding of the alleged lack of due care or skill requires only common knowledge or experience.’ McAfee v. Baptist Med. Ctr., 641 So.2d 265, 267 (Ala.1994).”

Wilson argues in her brief to this Court that Manning “admitted that she breached the standard of care” and that, even if she had not admitted that she breached the standard of care, Manning would still be held liable under Ex parte HealthSouth Corp., 851 So.2d 33, 42 (Ala.2002), which states:

“A plaintiff need not offer testimony of an expert witness in a medical-malpractice case (a) when the act or omission is in a class of cases ‘ “where want of skill or lack of care is so apparent ... as to be understood by a layman, and requires only common knowledge and experience to understand it,” ’ [Tuscaloosa Orthopedic Appliance Co. v.] Wyatt, 460 So.2d [156] at 161 [(Ala.1984)] (quoting Dimoff v. Maitre, 432 So.2d 1225, 1226-27 (Ala.1983)), such as when a foreign object is left in, the wrong body part is operated on, or a call for assistance is ignored for an unreasonable time; or (b) when a plaintiff either relies on ‘ “ ‘a recognized standard or authoritative medical text or treatise,’ ” ’ Anderson [v. Alabama Reference Labs.], 778 So.2d [806] at 811 [(Ala.2000)], or is himself a qualified medical expert.”

(Emphasis supplied.)

Manning testified that Wilson “was my patient and I was trying to get medical orders. I was trying to get the medication. I was trying to get continuity.” She explained that “continuity” means “to continue care in any setting” and acknowledged that “with antibiotics” continuity of care was important. Manning states in her brief to this Court that “[t]here is no testimony, expert or otherwise, which has been presented showing Nurse Manning or any of the nurses under her direction should have administered medication to Ms. Wilson without a doctor’s order.” As noted, the record reveals that Manning testified that “the integrity of delivering nursing care would have been breached” if there had been a doctor’s order that the nursing staff at the jail had not complied with for seven days. She admitted that “we had the doctor on the phone” and that an oral order from him would have been effective, but that no such order was requested from him; rather, her defense was simply, “he didn’t give an order.” Dr. Alsip stated in his letter to Infirmary Home Health, “I personally spoke with the jail sometime after 5 o’clock the evening of May 23, and I know that they had your number and there was a clear understanding to continue her therapy if she were not to be released, which at that point seemed very unlikely.” Also, Manning replied “[y]es” when she was asked if “obviously” there had been a breach in the standard of care administered to Wilson.

“[T]his Court recognized [in Tant v. Women’s Clinic, 382 So.2d 1120 (Ala.1980),] that a plaintiffs burden of proving the standard of care in a medical-malpractice case can be met by expert testimony of the health-care provider or its employees.” Tuck v. Health Care Auth. of Huntsville, 851 So.2d 498, 505 (Ala.2002). Drawing all reasonable inferences in favor of the nonmovant, Wilson, as we must, and taking into account Manning’s testimony, we conclude that there was substantial evidence from which a reasonable juror could infer that Manning accepted Wilson as her patient with full knowledge of Wilson’s “necessary medicines” and with full appreciation of the importance of continuity of care in antibiotic treatment, yet failed to provide that care beginning with the dosage due at 6:00 p.m. on May 21, 1997, through the 6:00 a.m. dosage due on May 28, resulting in a total of 14 missed doses.

For all that appears in the record before us, Manning did nothing to seek continuity of antibiotic treatment for Wilson from May 23 until May 28, when Wilson submitted another request for medical evaluation. Manning’s only explanations for this prolonged interruption of continuity of care were that the “plan” — devised May 22 and motivated by monetary considerations — • was to attempt to secure Wilson’s release from jail and that Manning had no doctor’s order to administer the drug. Manning elected to forgo asking Dr. Alsip or Dr. Eichold for such an order, passively relying on the fact that no such order was volunteered.

Dr. Alsip, in his May 28 letter to Infirmary Home Health, stated that it was his “clear understanding” on May 23, after he “personally spoke with the jail,” that Wilson’s therapy would be continued in the jail if she were not released. (Emphasis supplied.) He stated further that, “if there was a problem” in that regard, he would have expected to have heard from either Infirmary Home Health or “from the jail.” Although he explains in that letter that he was continuously available for further contact after the conversation, he found out only on May 28 that Wilson’s “antibiotic therapy was discontinued in spite of our efforts.”

Collectively, all of this evidence provides the requisite “substantial evidence” sufficient to allow the fact-finder to infer from it that Manning breached the standard of care in her handling of Wilson’s care by allowing her patient to be without 14 consecutive doses of “necessary medicines.” We recognize that Manning produced countervailing evidence; our conclusion, however, is controlled by the proposition that all reasonable inferences must be drawn in favor of Wilson as the nonmovant. Quad Cities Nissan, Inc. v. Griffin, 638 So.2d 830, 831 (Ala.1994). Thus, the trial court erred in entering the summary judgment on the basis that there was not substantial evidence to prove a breach of the standard of care.

Accordingly, we reverse the summary judgment and remand the cause for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

HOUSTON, SEE, LYONS, WOODALL, and STUART, JJ., concur.

JOHNSTONE, J., concurs specially.

JOHNSTONE, Justice

(concurring specially).

I concur. I add that undertaking and then neglecting the medical treatment of a patient does not constitute “exercising ... judgment in the administration of a department or agency of government” and therefore does not constitute conduct immunized by paragraph (2) of the restatement in Ex parte Cranman, 792 So.2d 392, 405 (Ala.2000).

      . Wilson also named other individuals and entities as defendants in her amended complaint, but later voluntarily dismissed her claims against one entity and did not appeal the summary judgments for the other defendants.

      . The summary-judgment motion was filed by, and summary judgment was entered for, three defendants; Wilson appeals only as to Manning.

      . The record does not expressly describe the Groshong shunt; however, we infer that it is a type of surgically installed catheter used to administer intravenous medication.

      . The consent stated, "I hereby authorize the Medical Staff at the Mobile County Sheriff's Department to treat and care for me while I am incarcerated at the Mobile County Jail.”

      . According to Manning, these forms are also called "sick call slips,” and "[t]he inmates that are requesting medical care or to be seen on sick call make out the Request for Medical Evaluation.” She stated in her deposition, "If I am in the office, I go ahead and go through the sick [call] slips. If I am not in the office, then the clinic director, Linda Singleton, sees the patient.”

      . The written order Dr. Alsip gave to Infirmary Home Health on May 12, 1997, called for that agency to administer the antibiotic in dosages of "1 gm in 50cc D5W q [every] 12 hours via Groshong,” and "[c]hange dressing 3 x wk.”

      .Manning stated in her deposition that osteo-myelitis is "a bacteria, a germ, that most often you see as the result of a gunshot wound or a dirty wound.” Osteomyelitis is "an infectious usu. painful inflammatory disease of bone often of bacterial origin that may result in the death of bone tissue.” Merriam-Webster’s Collegiate Dictionary (11th ed.2003).

      . Manning testified that "Dr. Eichold at that time was director of medicine [at the jail].... And he was basically responsible. So, I called him, gave him a report.”

      . Wilson stated in her brief, "The trial court was in error by failing to find that Ex parte Cranman ... controlled when, as in this case, [Manning], a state employee, is being sued in his or her individual capacity for medical malpractice.”

      . Manning also cites Ex parte Purvis, 689 So.2d 794 (Ala.1996), and Lancaster v. Monroe County, 116 F.3d 1419 (11th Cir.1997), in support of her immunity claim. However, those cases address sovereign immunity, not State-agent immunity. Manning never argued to the trial court, and therefore never gave Wilson an opportunity to respond to, the issue of sovereign immunity.

      . Manning also argues that "[m]ore importantly, there is no evidence that any alleged breach of the standard of care by Ms. Manning proximately caused [Wilson's] injuries.” Manning never raised the issue of lack of proximate cause in the trial court, giving Wilson no cause to present opposing argument or supplemental evidence; therefore, we will not consider the issue.


author: PER CURIAM. HOUSTON, Justice JOHNSTONE, Justice

text:
    LIBERTY NATIONAL LIFE INSURANCE COMPANY and Chris Reese v. Willie ESTER and Dorothy Ester.
    1021395.
    Supreme Court of Alabama.
    Oct. 24, 2003.
    Scott Burnett Smith of Bradley Arant Rose & White, LLP, Huntsville; and Laurie K. Pratt-Johns, Tuscaloosa, for appellants.
    C. Harry Green, Hamilton, for appellees.
   PER CURIAM.

The sole issue presented in this arbitration case is whether an insurance carrier can enforce an arbitration provision included in an insurance policy in light of the plaintiffs’ claim of fraud in the inducement as to both the policy and the arbitration provision.

The trial judge refused to compel arbitration, finding that the transaction evidenced by the policy did not substantially affect interstate commerce. His ruling was entered before the United States Supreme Court decided Citizens Bank v. Alafabco, Inc., 539 U.S. 52, 123 S.Ct. 2037, 156 L.Ed.2d 46 (2003). See also Huntsville Utilities v. Consolidated Constr. Co., 876 So.2d 450 (Ala.2003)(opinion on application for rehearing, withdrawing opinion issued on May 23, 2003).

Willie Ester and Dorothy Ester, the plaintiffs, recognize that the judgment of the trial court cannot be affirmed on the ground that the transaction does not affect interstate commerce; they argue, however, that even if the transaction evidenced by the policy affects interstate commerce, a question remains as to whether they were fraudulently induced to convert an existing policy, and that that question is an issue that must be determined by the court, not an arbitrator. They contend, further, that the trial court here determined that issue adversely to the movants, the defendants, and that the judgment of the trial court should therefore be affirmed. We disagree, and we reverse and remand.

Facts

The Esters alleged in their complaint that when they purchased their house they purchased a level premium reducing term life insurance policy, otherwise known as a mortgage-insurance policy, from Liberty National Life Insurance Company (“Liberty National”) on March 4, 1977. The term of the policy was to expire on March 4, 2007. The Esters allege that, on April 1, 2001, Chris Reese, an agent of Liberty National, told them that they could no longer keep the policy and that it would be canceled. The Esters claim that as a result of this representation they allowed the policy to lapse or to be canceled, and that they were damaged because “they could not obtain similar insurance with similar limits for the same or less premium being paid to [Liberty National].”

Willie Ester contended that on March 20, 2001, he applied to have his mortgage-insurance policy, policy no. 2392270, converted to a whole life insurance policy and that Chris Reese took the application. Based on the conversion application, Liberty National issued Willie Ester a whole life insurance policy, policy no. 5373603, which provided $10,000 in coverage; the monthly premium was $60.61. The limits of the mortgage-insurance policy were $10,000 and the monthly premium for that policy was $20.45.

Along with the conversion application, Willie Ester signed an acknowledgment form; that form notified him that the whole life insurance policy contained an arbitration clause.

The Esters sued Liberty National and Reese, who they alleged told them that the mortgage-insurance policy had to be canceled and converted to a whole life insurance policy. The Esters claimed that this representation was false and that they suffered damage because they “could not obtain similar insurance with similar limits for the same or less premium being paid to [Liberty National].”

Liberty National and Reese filed a motion to compel arbitration, supported by an affidavit of Anthony McWhorter, president of Liberty National. Liberty National also asked the court to stay the action pending arbitration.

The Esters filed a motion for a hearing on the motion to compel arbitration, and filed a memorandum brief in support of their position in the trial court that the trial court should not compel arbitration because “the transaction does not substantially affect interstate commerce.”

The trial court held a hearing on Liberty National and Reese’s motion to compel arbitration; after the hearing the trial court denied the motion, stating in its order that “this Court looks ‘beyond the maneuvering by [Liberty National and Reese]’ to force the [Esters] to arbitrate their justiciable grievances and clearly sees Alabama plaintiffs seeking redress in an Alabama Court against an Alabama agent and an Alabama company in which the subject transaction should be regulated by the Insurance Department of Alabama. ... [Liberty National and Reese’s] motion to compel arbitration is denied.” Liberty National and Reese appeal.

Scope of Review

This Court stated recently in Wolff Motor Co. v. White, 869 So.2d 1129, 1131 (Ala.2003):

“ ‘This Court reviews de novo a trial court’s denial of a motion to compel arbitration.’ Homes of Legend, Inc. v. McCollough, 776 So.2d 741, 745 (Ala.2000). ‘A “party seeking to compel arbitration has the burden of proving the existence of a contract calling for arbitration and proving that contract involves a transaction affecting interstate commerce.” ’ Tefco Fin. Co. v. Green, 793 So.2d 755, 758 (Ala.2001)(quoting Ex parte Caver, 742 So.2d 168, 172 n. 4 (Ala.1999)). The party moving for arbitration must ‘ “produce some evidence which tends to establish its claim.” ’ Jim Burke Auto., Inc. v. Beavers, 674 So.2d 1260, 1265 (Ala.1995)(opinion on application for rehearing)(quoting In re American Freight Sys., Inc., 164 B.R. 341, 345 (D.Kan.1994)).”

The Esters, in their brief to this Court, candidly admit that “[a]t the time the trial court denied [Liberty National and Reese’s] motion to compel [arbitration] the decision was unquestionably correct on the issue of ‘substantially affects’ interstate commerce,” but that since the trial court issued its order “the United States Supreme decided Citizens Bank v. Alafabco, Inc., [539 U.S. 52,] 123 S.Ct. 2037 (2003),” which “changed the caselaw in Alabama regarding a contract’s ‘affecting’ interstate commerce.” (Esters’ brief, p. 5.) Nevertheless, as we point out above, they argue, citing Smith v. Equifax Services, Inc., 537 So.2d 463 (Ala.1988), and Southern Energy Homes, Inc. v. Gregor, 777 So.2d 79 (Ala.2000), in support of their position, that even if they cannot “prevail in the defense that the contract does not substantially affect interstate commerce,” the order of the trial court denying the motion to compel arbitration should be affirmed because an appellate court will affirm a judgment of a trial court for any legitimate reason supported by the record — even one different from the one given by the trial court. They contend that a fact question still exists as to whether a claim alleging fraud in the inducement can be decided in an arbitration proceeding. The Esters cite Ex parte Foster, 758 So.2d 516 (Ala.1999), in support of their argument.

In Foster, an insurance policyholder asserted claims against various insurance agencies alleging fraud, breach of contract, and bad-faith failure to pay an insurance claim. The trial court granted the agencies’ motion to compel arbitration of the policyholder’s claims, and the policyholder petitioned this Court for a writ of mandamus directing the trial court to vacate its order. This Court denied the petition and held that the clear language of the arbitration provision showed that the parties agreed to arbitrate preliminary issues of arbitrability.

The Esters argue that a different result should be reached here because the language of the arbitration clause in Foster specifically stated that “all questions ... related to ... this arbitration clause shall be resolved by binding arbitration” (emphasis omitted), and that “[t]he clear language of the arbitration provision prima facie shows that the parties agreed to arbitrate preliminary issues of arbitrability.” 758 So.2d at 518-19. The Esters argue that the arbitration clause in their contract has no such provision. We cannot accept the argument advanced by the Esters. The arbitration clause in this case encompasses “any dispute, claim[,] question, or disagreement arising put of or relating to this policy,” including “any claim alleging fraud.”

In Harold Allen’s Mobile Home Factory Outlet v. Early, 776 So.2d 777 (Ala.2000), the buyers of an allegedly defective mobile home brought an action against the seller and the manufacturer to recover for alleged fraud, breach of warranty, and negligence. The trial court vacated its earlier order granting the seller’s and the manufacturer’s motions to compel arbitration, and the seller and the manufacturer appealed. This Court reversed the judgment of the lower court, holding (1) that the buyers did not reasonably rely on the salesman’s alleged representation about the arbitration agreements; (2) that they failed to' present substantial evidence of fraud in the inducement as to the arbitration agreements; and (3) that the arbitration agreements^ were enforceable. Regarding the buyers’ claim that the seller was guilty of fraud in the inducement, this Court stated:

“Federal law requires this Court to review under general Alabama contract law the allegations that the Earlys were fraudulently induced to sign the arbitration agreement, and to resolve in favor of arbitration any doubts whether the Earlys’ fraudulent-inducement claim is arbitrable. See Quality Truck & Auto Sales, Inc. v. Yassine, 730 So.2d 1164, 1167-68 (Ala.1999). The Earlys’ fraudulent-inducement claim is governed by the ‘reasonable-reliance’ standard. See Foremost Ins. Co. v. Parham, 693 So.2d 409 (Ala.1997). Under that standard, a person cannot blindly rely on an agent’s oral representations to the exclusion of written disclosures in a contract. Ex parte Caver, 742 So.2d 168, 173 (Ala.1999). Thus, the Earlys ere required to produce substantial evidence indicating that they reasonably relied on representations by Harold Allen’s salesman.”

776 So.2d at 783-84 (emphasis added).

In the Early case, this Court also discussed the issue raised by the Esters on appeal, as follows:

“We do not interpret the Earlys’ allegations, particularly allegations (2) [that the Earlys did not agree to submit disputes to binding arbitration] and (6) [that the arbitration provision was not part of the transaction and was not contained in the documents executed by the Earlys], as stating a claim of fraudulent inducement of the arbitration agreement — that is, as an allegation that they were tricked by misrepresentations into signing the arbitration agreement or the installment agreement. Even if we interpreted the Earlys’ allegations as stating a claim of fraudulent inducement, we would have to conclude that they did not present substantial evidence in support of that claim. See Ex parte Perry, 744 So.2d 859, 863 (Ala.1999) (opinion of three Justices) (A party must provide substantial evidence of fraud in the inducement, particularly related to the arbitration clause, in order to avoid arbitration.’). The only evidence presented to support their challenge to the enforceability of the arbitration agreement was their own affidavits.”

776 So.2d at 782 (footnote omitted).

The Esters are correct that this Court could affirm the trial court’s order denying the motion to compel arbitration if they had been fraudulently induced to convert their mortgage-insurance policy. However, they did not present substantial evidence to support a fraudulent-inducement claim. Therefore, in light of the United States Supreme Court’s holding in Citizens Bank and applying Harold and Early, we reverse the trial court’s order and remand the cause.

REVERSED AND REMANDED.

SEE, BROWN, and STUART, JJ., concur.

HOUSTON, LYONS, HARWOOD, and WOODALL, JJ., concur in the result.

JOHNSTONE, J„ dissents.

HOUSTON, Justice

(concurring in the result).

See Harold Allen’s Mobile Home Factory Outlet, Inc. v. Early, 776 So.2d 777, 782 (Ala.2000).

JOHNSTONE, Justice

(dissenting).

At most, the arbitration agreement requires the Esters to arbitrate only, in the words of the agreement, those claims “arising out of, or relating in any way to[,] this [new] policy or certificate, its subject matter, its negotiation, issuance or termination” (emphasis added). The Esters are not suing Liberty National for defrauding them into getting the new policy. They are suing Liberty National for defrauding them into cancelling their old policy, which did not contain any arbitration agreement.

Thus, the Esters’ claim is outside the scope of the arbitration agreement. That is, the Esters’ claim does “aris[e] out of, or relat[e] in any way to[,] this [new] policy or certificate, its subject matter, its negotiation, issuance or termination.” Therefore, I respectfully submit that this Court should affirm the denial of the motion to compel arbitration.

      . Liberty National states that it was Raymond Horace Smith who took Willie Ester’s application, not Reese, as the Esters allege. For purposes of the issue presented on this appeal, the factual mistake, if the Esters are incorrect, is of no consequence.

      . The Esters' motion and supporting brief were filed before the United States Supreme Court decided Citizens Bank v. Alafabco, Inc., 539 U.S. 52, 123 S.Ct. 2037, 156 L.Ed.2d 46 (2003), discussed later in this opinion.

      . While the main opinion recites April 1 as the date of the fraudulent misrepresentation, the Esters' amended complaint alleges March 20.


author: WOODALL, Justice.

text:
    Ex parte Timothy L. McWHORTER. (In re Marilyn McCarley et al. v. Timothy L. McWhorter et al.)
    1021638.
    Supreme Court of Alabama.
    Oct. 24, 2003.

      J. Eric Anderson of Webb & Eley, P.C., for petitioner.
    Brent Jordan of Siniard, Timberlake & League, P.C., Huntsville, for respondents.
   WOODALL, Justice.

Marilyn McCarley and four other plaintiffs (hereinafter referred to collectively as “McCarley”) sued Timothy L. McWhorter, a Lawrence County deputy sheriff; the Lawrence County Commission; and Lawrence County on theories of negligence and wantonness arising from a motor-vehicle accident. The accident occurred on May 25, 2002, on Alabama Highway 157 in Lawrence County, when a vehicle driven by Deputy McWhorter collided with a vehicle occupied by McCarley. McCarley seeks compensatory and punitive damages for personal injuries she allegedly suffered as a result of the accident.

Deputy McWhorter filed a motion to dismiss the complaint, asserting that he was entitled to sovereign immunity as provided in Art. I, § 14, Ala. Const, of 1901. The trial court denied the motion, and Deputy McWhorter petitions this Court for a writ of mandamus directing the trial court to dismiss McCarley’s claims against him. We grant the petition and issue the writ.

It is undisputed that Deputy McWhorter was acting within the line and scope of his employment as a deputy sheriff at the time of the accident. Indeed, McCarley alleged that fact in her complaint, repeated it in her opposition to McWhorter’s motion to dismiss, and conceded it in her response to the petition for writ of mandamus, stating: “McWhorter was working within the line and scope of his employment as a sheriff’s deputy for Lawrence County, Alabama, when he negligently or wantonly sped through the intersection of Alabama Highway 157 and Court Street, without utilizing his blue overhead lights and his audible siren.” (Emphasis added.) Under these circumstances, Deputy McWhorter is entitled to sovereign immunity, now referred to as State immunity. See Ex parte Haralson, 871 So.2d 802 (Ala.2003).

PETITION GRANTED; WRIT ISSUED.

HOUSTON, SEE, LYONS, BROWN, HARWOOD, and STUART, JJ., concur.


author: HARWOOD, Justice.

text:
    SOUTHTRUST CORPORATION and SouthTrust Bank of Russell County v. Hessie JAMES.
    1021103.
    Supreme Court of Alabama.
    Oct. 31, 2003.

      A. Joe Peddy and Clair M. Gammill of Smith, Spires & Peddy, P.C., Birmingham, for appellants.

      James R. McKoon, Jr., and Melissa B. Thomas of McKoon & Thomas, Phenix City, for appellee.
   HARWOOD, Justice.

On June 12, 2002, Hessie James sued the SouthTrust Corporation and South-Trust Bank of Russell County (hereinafter jointly referred to as “SouthTrust”) in the Russell Circuit Court. James sought compensatory and punitive damages from SouthTrust on claims of conversion, negligence, wantonness, willful misconduct, and fraud. On July 11, 2002, SouthTrust filed its answer, denying liability. On August 26, 2002, SouthTrust filed a motion to dismiss or, in the alternative, to stay the proceedings and to compel arbitration. On November 26, 2002, one day after a hearing on the issue, the trial court, without making any findings of fact or stating any conclusions of law, denied SouthTrust’s motion. SouthTrust appeals pursuant to Rule 4(d), Ala.R.App.P.

The standard of review for the denial of a motion to compel arbitration is well established. As stated in Wolff Motor Co. v. White, 869 So.2d 1129, 1131 (Ala.2003):

“ ‘This Court reviews de novo a trial court’s denial of a motion to compel arbitration.’ Homes of Legend, Inc. v. McCollough, 776 So.2d 741, 745 (Ala.2000). ‘A “party seeking to compel arbitration has the burden of proving the existence of a contract calling for arbitration and proving that that contract involves a transaction affecting interstate commerce.” ’ Tefco Fin. Co. v. Green, 793 So.2d 755, 758 (Ala.2001)(quoting Ex parte Caver, 742 So.2d 168, 172 n. 4 (Ala.1999)). The party, moving for arbitration must ‘ “produce some evidence which tends to establish its claim.” ’ Jim Burke Auto., Inc. v. Beavers, 674 So.2d 1260, 1265 (Ala.1995)(opinion on application for re-hearing)(quoting In re American Freight Sys., Inc., 164 B.R. 341, 345 (D.Kan.1994)).”

The controversy centers around a checking account opened by James on or about December 5, 2001. To fund the account, James deposited a check, drawn on the First Bank of Chicago, payable through FCC National Bank, located in Wilmington, Delaware, in the amount of $14,342.60. One prerequisite for opening the account was signing a deposit agreement. The deposit agreement James signed states that it includes and incorporates South-Trust’s “Rules and Regulations Governing Deposit Accounts,” internal rules adopted by SouthTrust (hereinafter “the rules”). The deposit agreement also states that James agreed to be bound by the rules, including any amendments to the rules. James admits that she was given a copy of the rules when she opened the account, as the deposit agreement itself stated. Contained within those rules was an arbitration provision, last amended on September 4, 2001, which, in relevant part, states:

“BY OPENING OR MAINTAINING YOUR ACCOUNT, YOU AND WE AGREE THAT ANY CONTROVERSY BETWEEN YOU AND US, OR BETWEEN YOU AND ANY OF OUR OFFICERS, EMPLOYEES, AGENTS OR AFFILIATED ENTITIES, THAT ARISES OUT OF OR IS RELATED TO YOUR ACCOUNT, OR ANY PRODUCT OR SERVICE RELATED TO YOUR ACCOUNT, OR ANY ADVERTISEMENT, INDUCEMENT, DISCLOSURE OR ANY AGREEMENT RELATED TO YOUR ACCOUNT OF ANY SUCH PRODUCT OR SERVICE, OR THAT QUESTIONS THE ENFORCEABILITY OF THIS AGREEMENT TO ARBITRATE, OR ANY RELATIONSHIP THAT RESULTS FROM ANY OF THE FOREGOING, WHETHER THE CONTROVERSY IS NOW EXISTING OR ARISES IN THE FUTURE AND WHETHER BASED ON CONTRACT, IN TORT, OR ON ANY OTHER LEGAL THEORY, INCLUDING CLAIMS OF FRAUD, SUPPRESSION, MISREPRESENTATION AND FRAUD IN THE INDUCEMENT (INDIVIDUALLY AND COLLECTIVELY, ANY ‘CLAIM’), WILL BE SETTLED BY BINDING ARBITRATION UNDER THE FEDERAL ARBITRATION ACT (‘FAA’), 9 U.S.C. SECTION 1 ET SEQ. YOU AND WE HEREBY WAIVE THE RIGHT TO A TRIAL BY JURY OF ALL SUCH CLAIMS.”

(Capitalization and emphasis original.) After opening her account, James ordered checks; SouthTrust informed her that her checks would arrive by mail in approximately one week.

After one week had passed and James’s checks had not arrived, she contacted SouthTrust. SouthTrust informed James that it had mailed the checks to the wrong address and the checks had been returned to SouthTrust. SouthTrust further told James that pursuant to SouthTrust’s policy, the checks had been destroyed. South-Trust assured James that she soon would receive checks SouthTrust had ordered to replace the destroyed checks.

James received the new checks; however, she was notified that forged checks and forged deposit slips were being used to conduct transactions on her account. James’s account was assessed fees associated with the forgeries, which in the aggregate, totaled 13 separate incidents. Of those 13 incidents, at least 5 occurred in other states. As a result, James closed the account and opened at SouthTrust a new account. However, James asserts that the fraudulent activity on her bank account negatively impacted her credit, caused collection agencies to attempt collection of unpaid debts created by the forgeries, and may subject her to criminal prosecutions.

There is no dispute that in signing the deposit agreement, James submitted to the arbitration agreement contained in the rules. “James acknowledges the existence of a contract between the parties that contains an arbitration provision.” (James’s reply brief, p. 9.) She argues that the transactions between her and South-Trust did not sufficiently affect interstate commerce. SouthTrust argues to the contrary, asserting that the nature of the transaction affects interstate commerce, bringing the dispute under the purview of the Federal Arbitration Act (“the FAA”), 9 U.S.C. § 1 et seq. The applicable provision of the FAA, 9 U.S.C. § 2, provides, in pertinent part:

“A written provision in ... a contract evidencing a transaction involving 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.”

While Alabama law and public policy disfavor arbitration agreements, section 2 “has the effect of preempting conflicting Alabama law, in particular Ala.Code 1975, § 8-1-41(3), and thereby making enforceable a predispute arbitration agreement in a contract evidencing a transaction that involves interstate commerce.” Homes of Legend, Inc. v. McCollough, 776 So.2d 741, 745 (Ala.2000) (footnote omitted).

The crux of SouthTrust’s argument is that because the initial deposit was made by a check drawn on an out-of-state bank; because the fraudulent activity occurred in another state; because SouthTrust is regulated by the Federal Reserve Board and its deposits are insured by the Federal Deposit Insurance Corporation; and because SouthTrust is a bank with relationships to banks in other states and branches in other states, the transaction involving it and James has an effect on interstate commerce. James contends that the individual transaction between her and South-Trust does not have a “substantial effect” on interstate commerce. However, James relies on “substantial effect” as that term was defined in Sisters of Visitation v. Cochran Plastering Co., 775 So.2d 759 (Ala.2000), and that standard is no longer applicable in determining whether a transaction has the requisite nexus with interstate commerce. Citizens Bank v. Alafabco, Inc., 539 U.S. 52, 123 S.Ct. 2037, 156 L.Ed.2d 46 (2003). According to Alafabco, the decision in Sisters of the Visitation adhered to “an improperly cramped view of the Congress’ Commerce Clause Power.” 539 U.S. at 58, 123 S.Ct. at 2041. The United States Supreme Court stated: “Congress’ Commerce Clause power ‘may be exercised in individual cases without showing any specific effect upon interstate commerce’ if in the aggregate the economic activity in question would represent ‘a general practice ... subject to federal control.’” 539 U.S. at 56-57, 123 S.Ct. at 2040 (quoting Mandeville Island Farms, Inc. v. American Crystal Siogar Co., 334 U.S. 219, 236, 68 S.Ct. 996, 92 L.Ed. 1328 (1948)).

This case involves fraudulent activity relating to a bank checking account. There is no question that it is within Congress’s authority to regulate the banking industry, as that industry is a key component of “commerce.” “Banking and related financial activities are of profound local concern.... Nonetheless, it does not follow that these same activities lack important interstate attributes.” Alafabco, 539 U.S. at 58, 123 S.Ct. at 2041 (quoting Perez v. United States, 402 U.S. 146, 154-55, 91 S.Ct. 1357, 28 L.Ed.2d 686 (1971)). We conclude that the banking transaction in this case had a sufficient nexus with interstate commerce as evidenced by the following facts. First, the initial check used to open James’s account was drawn on a bank in Chicago, Illinois, payable through FCC National Bank, located in Wilmington, Delaware. Next, SouthTrust has depositors located throughout the United States. The accounts are not segregated by state, so the money used to pay account holders is derived from a pool of funds that regularly flows across state lines. SouthTrust has submitted affidavits from its officers to attest to the nature of its interstate activity. In support of its motion to compel arbitration, SouthTrust submitted the affidavit of Heather Thornburg, a group vice president for SouthTrust; Thornburg’s affidavit states:

“7. Deposits with SouthTrust Bank are insured by the Federal Deposit Insurance Corporation. SouthTrust is required to and does maintain deposits with the Federal Reserve Bank.
“8. SouthTrust has depositors located throughout the United States. South-Trust has branch offices throughout the southern United States, including Alabama, Florida, Georgia, Mississippi, North Carolina, South Carolina, Tennessee, Texas and Virginia.
“9. Checks and other items drawn on deposit accounts maintained at South-Trust are received from merchants and other payees throughout the United States. Items presented for payment from SouthTrust checking accounts are paid with funds derived from its interstate activities. SouthTrust uses the funds deposited with it to support its interstate activities.”

Third, the fraudulent activity on which this action is based occurred not only in Alabama, where James opened the account, but also in Georgia and Illinois. Linda Eavenson, an assistant vice president for bank operations for SouthTrust, attests:

“[James’s] transactions involved deposits written on banks in other states, including Georgia and Illinois, specifically Regions Bank, Gainesville, Georgia; Heritage Bank, Albany, Georgia; Colonial Bank, Birmingham, Alabama; CB & T, Junction City, Georgia; and LaSalle Bank, Chicago, Illinois.”

We conclude that under Alafabco South-Trust has shown that the transaction had a substantial effect on interstate commerce.

Although we conclude that the trial court’s order denying arbitration cannot be affirmed on the basis that the transaction in question did not have a substantial effect on interstate commerce, we are cognizant of the settled rule that “[t]he appellate courts will affirm the ruling of the trial court if it is right for any reason .... ” Premiere Chevrolet, Inc. v. Headrick, 748 So.2d 891, 893 (Ala.1999) (citing McKenzie Methane Corp. v. M-W Drilling, Inc., 653 So.2d 982, 984 (Ala.1995), and Smith v. Equifax Servs., Inc., 537 So.2d 463 (Ala.1988)). In light of this rule, we also consider James’s argument that we should affirm the trial court’s order on the basis that the agreement containing the arbitration provision is unconscionable because it gives SouthTrust the right to unilaterally amend the rules in the future. This Court stated in Conseco Finance Corporation-Alabama v. Boone, 838 So.2d 370, 373 (Ala.2002), quoting Fleetwood Enterprises, Inc. v. Bruno, 784 So.2d 277, 281 (Ala.2000), that “ ‘[u]nconsciona-bility is an affirmative defense, Green Tree Fin. Corp. v. Wampler, 749 So.2d 409, 415 (Ala.1999), and the party asserting the defense bears the burden of proof. Ex parte Napier, 723 So.2d 49, 52-53 (Ala.1998).’ ” The “ ‘applicable standards for determining unconscionability are set forth' in American General Finance[, Inc. v. Branch], 793 So.2d [738] at 748 [(Ala.2000)] — whether there are (1) terms that are grossly favorable to a party that has (2) overwhelming bargaining power.’ ” Gayfer Montgomery Fair Co. v. Austin, 870 So.2d 683, 689 (Ala.2003) (quoting Leonard v. Terminix Int’l Co., 854 So.2d 529, 538 (Ala.2002)) (footnote omitted).

James argues in her brief to this Court that “SouthTrust’s promise [to arbitrate disputed claims] is illusory and should be unenforceable due to the fact that South-Trust could amend its own [rules] to allow it to proceed into a court of law on any dispute while limiting the customers’ right to arbitration.” The deposit agreement stated that James agreed to be bound by the rules “and all amendments made ... to them from time to time upon notice to” her as the sole signatory on the account. In SouthTrust Bank v. Williams, 775 So.2d 184, 188 (Ala.2000), a case where the bank’s regulations allowed similar amendments and the arbitration provisions were added by amendment, this Court stated, “This case involves at-will, commercial relationships, based on a series of unilateral transactions. Thus, it is more analogous to cases involving insurance policies, such as Woodmen of the World v. Harris, 740 So.2d 362 (Ala.1999), and Ex parte Rager, 712 So.2d 333 (Ala.1998).” (Footnote omitted.) In holding that the dispute in Woodmen of the World v. Harris, 740 So.2d 362 (Ala.1999), could be arbitrated, this Court stated:

“When Harris purchased insurance from Woodmen, he agreed to be bound by all of the documents expressly incorporated into the certificate, specifically the Woodmen constitution and any amendments to that constitution. The certificate states that ‘[t]he Articles of Incorporation and the Constitution and laws and any amendments to them are binding on the member.’ The arbitra tion provision was duly adopted by an amendment of the kind that Harris agreed to be bound by when he joined Woodmen. Although Harris may not have expressly assented to the particular arbitration provision at issue here, it appears to be undisputed that he did assent to the plain terms of the certifí-cate, which, at the time he entered into the contract with Woodmen, included a provision allowing for future amendments to the constitution.”

740 So.2d at 367 (emphasis added).

When James signed the deposit agreement, she agreed to be bound by the rules and by any subsequent amendments to those rules. The arbitration provision was already a feature of those rules, and James was given a copy of them. The mere fact that SouthTrust can unilaterally amend the rules in the future is not detrimental to its position, because “[ajmend-ments to the conditions of unilateral-contract relationships with notice of the changed conditions are not inconsistent with the general law of contracts.” Williams, 775 So.2d at 190-91. James consented to any future amendments, not involved in this case, when she signed the contract — the deposit agreement. Therefore, enforcement of the arbitration provision is not unconscionable.

For the foregoing reasons, we conclude that the trial court erred in denying South-Trust’s motion to compel arbitration. The order of the trial court is therefore reversed, and this cause is remanded for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

SEE, BROWN, WOODALL, and STUART, JJ., concur.


text:
    Robert L. STEELE v. Maxine WALSER.
    1020652.
    Supreme Court of Alabama.
    Oct. 31, 2003.

      H.E. Nix, Jr., and M. Todd Russell of Nix Holtsford Gilliland Higgins & Hitson, P.C., Montgomery, for appellant.

      Joseph C. MeCorquodale III of MeCor-quodale & MeCorquodale, Jackson, for ap-pellee.
   HARWOOD, Justice.

Maxine Walser sued Robert L. Steele, president of S.S. Steele and Company, Ine. (hereinafter “the company”), alleging fraud, mental anguish, and emotional distress arising from the construction of a new house. Steele filed a “Motion to Dismiss and Compel Arbitration,” with supporting evidentiary submissions. Walser filed a response in opposition, and Steele filed a reply to Walser’s opposition. The trial court entered an order denying Steele’s motion, stating, in relevant part:

“Upon consideration thereof, the Court is of the opinion that the acts complained of in the Complaint in this action do not substantially [ajffect interstate commerce sufficiently to invoke the Federal Arbitration Act as discussed in length in Rogers Foundation Repair, Inc. v. Powell, 748 So.2d 869 (Ala.1999); Sisters of the Visitation v. Cochran Plastering Company, Inc., 775 So.2d 759 (Ala.2000); McConnell Automotive Corp. v. Jackson, [849 So.2d 159] (Ala.2002). It is therefore,
“Ordered and adjudged that defendant’s motion to dismiss and compel arbitration is hereby denied.”

The standard of review for the denial of a motion to compel arbitration is well, settled. This Court stated in SouthTrust Bank v. Ford, 835 So.2d 990, 993 (Ala.2002) (quoting American General Finance, Inc. v. Morton, 812 So.2d 282, 284 (Ala.2001)):

“ ‘This Court reviews the denial of a motion to compel arbitration de novo. Green Tree Fin. Corp. v. Vintson, 753 So.2d 497, 502 (Ala.1999); Patrick Home Ctr., Inc. v. Karr, 730 So.2d 1171, 1172 (Ala.1999). The party seeking to compel arbitration has the initial burden of proving the existence of a contract calling for arbitration and proving that the contract evidences a transaction substantially [] affecting interstate commerce. TranSouth Fin. Corp. v. Bell, 739 So.2d 1110, 1114 (Ala.1999).... “[A]fter a motion to compel arbitration has been made and supported, the burden is on the nonmovant to present evidence that the supposed arbitration agreement is not valid or does not apply to the dispute in question.” Jim Burke Auto., Inc. v. Beavers, 674 So.2d 1260, 1265 n. 1 (opinion on application for rehearing) (Ala.1995).’ ”

I. Facts

The record reveals that Walser entered into a contract with the company for the construction of a new house (hereinafter “the construction and sales contract”). Steele stated in his affidavit, which was filed with his motion to dismiss and to compel arbitration, that the company, an Alabama corporation, “is in the business of constructing new homes, and constructing and selling trusses and garage kits.” The construction and sales contract was signed by Steele and Walser, and it contained an arbitration clause, which stated:

“Any controversy or claim arising out of or relating to this contract or any other agreement relating in any way to the matters addressed in this contract, or the breech [sic] thereof, and any controversy or claim arising out of any other document or representation relating to the construction and purchase of the purchaser’s home, shall be settled by binding arbitration administered by the American Arbitration Association in accordance with its commercial arbitration rules, and judgment on the award rendered by the arbitrator or arbitrators may be entered in any court having jurisdiction thereof.”

Steele stated in his affidavit that “[t]he construction of Ms. Walser’s home involved many materials that were purchased from out of state companies, and which were transported to Alabama from those companies.” He stated in his affidavit that those materials included: steel strappings, eave strips, felt disks, and rafter ties purchased from Jacksonville, Florida; truss plates purchased from Pompano Beach, Florida; lumber, shutters, wire mesh, lap siding, nails, bath accessories, and doorstops purchased from Atlanta, Georgia; prime trim, lumber, and vent hoods purchased from Charlotte, North Carolina; wall ties purchased from Orlando, Florida; sheathing purchased from Dallas, Texas; lumber purchased from Laurel, Mississippi; waterproofing membrane purchased from Jefferson, Louisiana; columns purchased from Russia, Ohio; strapping for transport purchased from Jackson, Mississippi; and windows purchased from Woodville, Texas. Steele stated in his affidavit that the construction of Walser’s house involved the use of machinery and tools purchased from out-of-state companies, including:

“(1) component saw, manufactured by Clary Corporation, located in Texas, and transported to Mobile, Alabama from Texas; (2) component saw and two truss machines, manufactured by Mitek Corporation and transported to Mobile, Alabama from Earth City, Missouri; (3) framing table, manufactured by Merrick Machine Company and transported to Mobile, Alabama from Alda, Nebraska; (4) forklifts, custom manufactured by Heister and transported to Mobile, Alabama from Danville, Illinois; (5) lumber stackers, manufactured by Kenwell Jackson Machine, Inc., and transported to Mobile, Alabama from Dallas, Texas; and (6) chopsaw, manufactured by Whirlwind and transported to Mobile, Alabama from Dallas, Texas.”

Steele further stated in his affidavit that “[t]he contract with Ms. Walser also integrally involved other agreements made with either foreign corporations or corporations that do business in multiple states,” including the following:

“Payment of the purchase price for the home was handled through an escrow agreement with ... Regions Bank, which upon information and belief is an Alabama corporation which does business all across the Southeast- Ms. Walser was required as a condition of this contract to obtain homeowners insurance, which she did through Nationwide Insurance Company, which is a foreign corporation doing business all across the United States.... As a condition of the contract, [the company] obtained a termite bond on the home with Killingsworth Pest Control, which is upon information and belief a Florida corporation with offices in various states, including Alabama.”

Walser stated in her complaint that Steele represented to her that the plans for the house needed to be modified so that “water pipes would be run over the house instead of under the house, and that constructing the house in this manner would not alter or diminish the value of the home, and that the quality of living would not be altered or diminished in any way.” Walser stated in her complaint that Steele knew that those representations “were false or [he] made said representations with a reckless disregard for the truth.” She stated in her complaint that she relied on these representations and agreed to the modification. Walser’s complaint states that she has been damaged because “the home is defective, not as presented, and is less valuable than represented.”

II. Analysis

In his brief to this Court, Steele argues that “[t]he arbitration agreement clearly affects interstate commerce in that many of the components and parts used to build this particular home at issue were originally manufactured in other states and transported to Alabama....” As noted, the trial court, in its order denying Steele’s motion to dismiss and to compel arbitration, concluded that the acts complained of in the complaint did not substantially affect interstate commerce sufficiently to invoke the Federal Arbitration Act.

As this Court explained in AmSouth Bank v. Dees, 847 So.2d 923, 929 (Ala.2002):

“Section 2 of the Federal Arbitration Act (‘FAA’), 9 U.S.C. § 2, provides in pertinent part:
“ ‘A written provision in ... a contract evidencing a transaction involving 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’
“Section 2 preempts conflicting Alabama law, including in particular Ala.Code 1975, § 8-1^11(3), which states that ‘[a]n agreement to submit a controversy to arbitration’ cannot be specifically enforced.”

The United States Supreme Court in Citizens Bank v. Alafabco, Inc., 539 U.S. 52, 56, 123 S.Ct. 2037, 2040, 156 L.Ed.2d 46 (2003), recently rejected the test we set out in Sisters of the Visitation v. Cochran Plastering Co., 775 So.2d 759 (Ala.2000), which the trial court here relied on in denying Steele’s motion to compel arbitration. In Citizens Bank, the Supreme Court held that debt-restructuring agreements, executed in Alabama by Alabama residents, “satisfied] the [Federal Arbitration Act’s] ‘involving commerce’ test,” and explained:

“We have interpreted the term ‘involving commerce’ in the FAA [Federal Arbitration Act] as the functional equivalent of the more familiar term ‘affecting commerce’ — words of art that ordinarily signal the broadest permissible exercise of Congress’ Commerce Clause power. Allied-Bruce Terminix Cos. [v. Dobson], 513 U.S. [265], at 273-274, 115 S.Ct. 834 [ (1995) ]. Because the statute provides for ‘the enforcement of arbitration agreements within the full reach of the Commerce Clause,’ Perry v. Thomas, 482 U.S. 483, 490, 107 S.Ct. 2520, 96 L.Ed.2d 426 (1987), it is perfectly clear that the FAA encompasses a wider range of transactions than those actually ‘in commerce’ — that is, ‘within the flow of interstate commerce,’ Allied-Bruce Terminix Cos., supra, at 273, 115 S.Ct. 834 (internal quotation marks, citation, and emphasis omitted).
“... Congress’ Commerce Clause power ‘may be exercised in individual cases without showing any specific effect upon interstate commerce’ if in the aggregate the economic activity in question would represent ‘a general practice ... subject to federal control.’ Mandeville Island Farms, Inc. v. American Crystal Sugar Co., 334 U.S. 219, 236, 68 S.Ct. 996, 92 L.Ed. 1328 (1948). See also Perez v. United States, 402 U.S. 146, 154, 91 S.Ct. 1357, 28 L.Ed.2d 686 (1971); Wickard v. Filburn, 317 U.S. 111, 127-128, 63 S.Ct. 82, 87 L.Ed. 122 (1942). Only that general practice need bear on interstate commerce in a substantial way. Maryland v. Wirtz, 392 U.S. 183, 196-197, n. 27, 88 S.Ct. 2017, 20 L.Ed.2d 1020 (1968) [overruled by National League of Cities v. Usery, 426 U.S. 833 (1976)]; NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1, 37-38, 57 S.Ct. 615, 81 L.Ed. 893 (1937).”

Walser does not dispute the existence of a written contract that calls for arbitration; she argues only that “the construction [and sales] contract at issue does not substantially involve interstate commerce [so as] to trigger application of the [Federal Arbitration Act].” We therefore consider whether the contract for the construction and sale of Walser’s house “involved commerce” under the formulation set out in Citizens Bank, supra. As noted, Steele’s affidavit establishes that materials used to construct Walser’s house were purchased from companies located in Florida, Georgia, North Carolina, Texas, Mississippi, Louisiana, and Ohio, and we can infer that those materials were necessarily transported to Alabama through other states. Steele stated that some of the machinery and tools used to construct Walser’s house were purchased and transported from out-of-state companies located in Texas, Missouri, Nebraska, and Illinois. Steele also attested that: (1) the escrow agreement relating to the construction of the house was handled by Regions Bank, an Alabama corporation, “which does business all across the Southeast”; (2) Walser obtained the contractually required homeowners’ insurance from Nationwide Insurance Company, “a foreign corporation doing business all across the United States”; and the company obtained the contractually required termite bond from Killings-worth Pest Control, “a Florida corporation with offices in various states.” In light of these facts, we conclude that Steele has shown that the aggregate effect of the transaction evidenced by the construction and sales contract did “satisfy the [Federal Arbitration Act’s] ‘involving commerce’ test.” Citizens Bank, supra.

Although we cannot affirm the trial court’s order denying arbitration on the basis that the construction and sales contract does not have the required effect on interstate commerce, we are cognizant of the settled rule that an appellate court can affirm a summary judgment on any valid argument if it is developed in and supported by the record, even an argument rejected by the trial court. Ex parte Ryals, 773 So.2d 1011, 1013 (Ala.2000). In light of this rule, we also consider Walser’s argument that the trial court’s order is due to be affirmed on the basis that the construction and sales contract containing the arbitration provision was unconscionable. Relying on American General Finance, Inc. v. Branch, 793 So.2d 738 (Ala.2000), Walser argued to the trial court, and does so again in her brief to this Court, that “the arbitration clause contained in the construction [and sales] contract should be declared void on the grounds of uncon-scionability.” This Court stated in Conseco Finance Corp.-Alabama v. Boone, 838 So.2d 370, 373 (Ala.2002), quoting Fleetwood Enterprises, Inc. v. Bruno, 784 So.2d 277, 281 (Ala.2000), that “ ‘[u]nconsciona-bility is an affirmative defense, Green Tree Fin. Corp. v. Wampler, 749 So.2d 409, 415 (Ala.1999), and the party asserting the defense bears the burden of proof. Ex parte Napier, 723 So.2d 49, 52-53 (Ala.1998).’ ” The “ ‘applicable standards for determining unconscionability are set forth in American General Finance [Inc. v. Branch], 793 So.2d [738] at 748 [(Ala. 2000) ] — whether there are (1) terms that are grossly favorable to a party that has (2) overwhelming bargaining power.’ ” Gayfer Montgomery Fair Co. v. Austin, 870 So.2d 683, 688-89 (Ala.2003), quoting Leonard v. Terminix Int’l Co., 854 So.2d 529, 538 (Ala.2002).

The only aspect of the construction and sales contract that Walser asserts, in her opposition to Steele’s motion to dismiss and to compel arbitration and in her brief to this Court, is “grossly favorable” to the company is the breadth of the arbitration clause. She states in her brief that the arbitration clause is “extremely broad in scope and application” because, she says, it “purports to apply to all possible claims relating to the construction of Walser’s modular home.”

Walser points out that this Court in American General Finance, Inc. v. Branch, 793 So.2d 738, 740 (Ala.2000), concluded that the language “ ‘all claims, disputes, or controversies of every kind and nature between Borrower(s) and Lender shall be resolved by binding arbitration, including ... those arising out of or relating to the transaction(s) evidenced by this agreement’ ” satisfied the first prong of the unconscionability test. However, in American General Finance, supra, this Court did not rely solely on the breadth of the arbitration clause; rather, it noted that there were several indicia that the provisions of the contract were “so grossly favorable ... as to pass the first prong” of the unconscionability test. 793 So.2d at 750. The Court identified “the breadth of the clause,” “the provision purporting to invest the arbitrator with the threshold issues of arbitrability,” “the provision exempting the Lenders from the duty to arbitrate and expressly reserving for them the right to try to a jury their claims against Branch up to $10,000,” and the “provision purporting to limit the right of the arbitrator to award an amount ‘exceeding] five times the amount of economic loss.’ ” 793 So.2d at 749. (Emphasis omitted.)

Although Walser argues that the scope of the arbitration agreement in the construction and sales contract is overly broad, she makes no showing that it assigned the threshold issues of arbitrability to the arbitrator, that there was a lack of mutuality of remedies, that it set a limit on the amount the arbitrator could award, or that any other terms of the agreement were “grossly favorable” to the company. Thus, the number and degree of “grossly favorable” terms found in the contract in American General Finance are not present here.

Moreover, even if we assume, purely for the sake of further analysis, that the breadth of the arbitration clause in the construction and sales contract is so grossly favorable to the company as to pass the first prong of the unconscionability test, Walser must still present evidence showing that the company had overweening bargaining power. Although Walser stated in her opposition to Steele’s motion to dismiss and compel arbitration that “[she], a simple consumer, had no meaningful opportunity to negotiate the contract terms and was forced to accept the agreement on a take-it-or-leave-it basis,” she offered no evidence to support those assertions.

Walser also stated in her opposition to the motion to compel arbitration that she “is financially unable to undergo the expense of resolving her claim in accordance with [the Commercial Arbitration Rules].” In Steele’s reply to Walser’s opposition, he stated that his attorney contacted Walser’s attorney and advised him of Steele’s “willingness to pay for 2 and $ of the arbiters .... Most recently, counsel for [Steele] ... advised [Walser’s] counsel by telephone that the Defense would pay for all three arbitrators.” This Court stated in Potts v. Baptist Health System, Inc., 853 So.2d 194, 206 (Ala.2002): “Alabama law does not allow a mere showing of financial hardship to invalidate an arbitration agreement.”

Walser has not made the type of eviden-tiary showing this Court was presented with in American General Finance, supra, when it held the arbitration agreement there unconscionable. Walser has not put forth evidence demonstrating that the terms of the arbitration agreement were grossly favorable or that the company had unequal bargaining power. Therefore, she did not carry her burden in establishing that the arbitration agreement was unconscionable.

For the foregoing reasons, the trial court erred, under the rationale of the United States Supreme Court in Citizens Bank, in denying Steele’s motion to dismiss and to compel arbitration. We must note, in that regard, that the Supreme Court held in Citizens Bank that in that case we likewise had erred in our understanding that a “substantial effect” analysis was in order. Nonetheless, the judgment of the trial court denying Steele’s motion to dismiss and to compel arbitration must be reversed and the cause remanded for proceedings consistent with this opinion.

REVERSED AND REMANDED.

HOUSTON, SEE, LYONS, BROWN, and WOODALL, JJ., concur.

STUART, J., concurs in the judgment.

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 reservations, I concur in the main opinion. The first reservation is that I concur only in the result of the analysis of the issue of whether the nexus of the contract with interstate commerce is sufficient for the Federal Arbitration Act to apply. The second reservation is that my concurrence is contingent on the existence and performance of the defendant’s agreement to pay for all three arbitrators.

      . "[I]n light of the United States Supreme Court's decision in [Citizen’s Bank v.] Alafabco, [539 U.S. 52, 123 S.Ct. 2037 (2003),] we no longer apply the substantial-impact-on-interstate-commerce test adopted in Sisters of the Visitation [v. Cochran Plastering Co., 775 So.2d 759 (Ala.2000)]. As the United States Supreme Court stated, the [Federal Arbitration Act] is triggered even ' “in individual cases without showing any specific effect upon interstate commerce” if in the aggregate the economic activity in question would represent a general practice ... subject to federal control.’ Alafabco, 539 U.S. at 56-57, 123 S.Ct. at 2040. Therefore, a ' "party seeking to compel arbitration has the burden of proving the existence of a contract calling for arbitration and proving that the contract involves a transaction affecting interstate commerce.” ' Tefco Fin. Co. v. Green, 793 So.2d 755, 758 (Ala.2001) (quoting Ex parte Caver, 742 So.2d 168, 172 n. 4 (Ala.1999)).”

        Huntsville Utils. v. Consolidated Constr. Co., 876 So.2d 450, 454 (Ala.2003)(footnote omitted).

      . Walser, in her response to Steele's motion to dismiss and compel arbitration and in her brief to this Court, characterizes the house as a "modular home"; Steele stated in an affidavit that it was actually a "panelized home." He stated in his affidavit that a modular home is "a structure with completely built sections of a building with wiring, plumbing, heating and air conditioning, sheetrock, doors, carpets, cabinets, etc.[,] already installed." Steele attested that the difference between a modular home and a panelized home is that the panelized home "is exactly the same as a stick built home except our walls are constructed at our plant and delivered to the job site and nailed together....”