author: STUART, Justice. MURDOCK, Justice

text:
    RAYMOND JAMES FINANCIAL SERVICES, INC., and Bernard Michaud v. Kathryn L. HONEA.
    1081688.
    Supreme Court of Alabama.
    June 18, 2010.
    Rehearing Denied Aug. 13, 2010.

      A. Inge Selden III, Andrea M. Greene, and Prim Formby of Maynard, Cooper & Gale, P.C., Birmingham, for appellants.
    James L. North and J. Timothy Francis of James L. North & Associates, Birmingham, for appellee.
   STUART, Justice.

Raymond James Financial Services, Inc. (“Raymond James”), and Bernard Mi-chaud, a securities broker at Raymond James (hereinafter referred to collectively as “RJFS”), appeal the judgment of the Jefferson Circuit Court vacating an arbitration award entered in their favor and against Kathryn L. Honea, a former client. We reverse and remand.

I.

Beginning in May 1997, Honea opened multiple investment accounts at a branch office of Raymond James in Birmingham. In conjunction with the opening of the accounts, Honea signed a client agreement with Raymond James containing the following provision, entitled “Arbitration and Dispute Resolution”:

“(a) In a dispute or controversy, either arising in the future or in existence now, between me and you (including your officers, directors, employees or agents and the introducing broker, if applicable) we agree to first endeavor to settle the dispute in an amicable manner by mediation at the request of either party. Thereafter, any unsettled dispute or controversy will be resolved by arbitration conducted before the New York Stock Exchange, Inc., the National Association of Securities Dealers, Inc., or the American Stock Exchange, Inc., or other self-regulatory organizations (SRO) subject to the jurisdiction of the Securities and Exchange Commission (SEC) pursuant to the arbitration rules of the Exchange or SRO, and in accordance with the United States Arbitration Act (Title 9 of the United States Code).
“(b) We agree that in any arbitration the arbitrators will resolve the dispute in accordance with applicable law and will be required to furnish us with a written decision which must explain the reasons for their decision....
“(e) A court of competent jurisdiction may enter judgment based on the award rendered by the arbitrators. We agree that both parties will have a right to appeal the decision of the arbitrators if the arbitrators award damages that exceed $100,000; the arbitrators do not award damages and the amount of my loss of principal exceeds $100,000; or the arbitrators award punitive damages. In each of the foregoing cases, a court having jurisdiction will conduct a ‘de novo’ review of the transcript and exhibits of the arbitration hearing.”

Honea alleges that, between May 1997 and 2000, she deposited over $1,200,000 into her accounts and that the accounts decreased in value by approximately $1,050,000. On March 30, 2006, Honea sued RJFS in the. Jefferson Circuit Court, alleging that her losses were the result of abusive brokerage practices, which practices, she alleges, violated the Alabama Securities Act, § 8-6-1 et seq., Ala.Code 1975, and asserting claims of breach of contract, breach of fiduciary duty, negligence, wantonness, and fraud. RJFS subsequently moved the trial court to compel arbitration pursuant to the arbitration provision in the client agreement Honea had signed, noting that the client agreement was “a contract evidencing transactions involving interstate commerce and [that those transactions] therefore are subject to the provisions of the Federal Arbitration Act, 9 U.S.C. section 1, et seq.” The trial court granted the motion, and Honea thereafter pursued her claims in arbitration.

The final arbitration hearing was conducted over three days beginning on December 18, 2007. On January 3, 2008, the three-member arbitration panel unanimously entered an award in favor of RJFS, dismissing Honea’s breach-of-fiduciary-duty, negligence, wantonness, fraud, and Alabama Securities Act claims with prejudice, and denying her breach-of-contract claim based on the statute of limitations. On January 14, 2008, Honea filed a motion in the Jefferson Circuit Court seeking to vacate the decision of the arbitrators, i.e., the arbitration award, arguing that the arbitrators had manifestly disregarded the law and that one of the arbitrators was biased in favor of RJFS, because, Honea alleged, his law firm did substantial work for another financial institution alleged to be in merger negotiations with Raymond James. RJFS opposed Honea’s motion, arguing that the arbitration award was supported by both the law and the evidence and that there was no evidence of bias on the part of the one arbitrator because the speculative allegation regarding merger negotiations was wholly untrue.

The trial court originally scheduled a hearing for Honea’s motion to vacate the arbitration award for March 28, 2008; however, for reasons including the difficulty the parties had in obtaining a transcript of the arbitration proceedings, that hearing was repeatedly continued. On October 17, 2008, Honea filed an additional motion with the trial court asking it to conduct a de novo review of the arbitration award pursuant to paragraph (c) of the arbitration provision in the client agreement, quoted supra, which specifically authorized such a review by the trial court if “the arbitrators do not award damages and the amount of [the client’s] loss of principal exceeds $100,000.” On October 31, 2008, RJFS filed its response, citing Hall Street Associates, L.L.C. v. Mattel, Inc., 552 U.S. 576, 128 S.Ct. 1396, 170 L.Ed.2d 254 (2008), for the propositions (1) that manifest disregard of the law is not a valid ground for seeking the vacatur of an arbitration award; and (2) that the Federal Arbitration Act, 9 U.S.C. § 1 et seq. (“the FAA”), provides the exclusive grounds for seeking judicial review of arbitration awards in Alabama and parties may not expand those grounds by contract to provide for de novo judicial review of such awards. RJFS also repeated its argument that there was no evidence indicating that any of the arbitrators were biased in favor of RJFS.

On November 7, 2008, the trial court held a hearing on Honea’s motion to vacate the arbitration award. At that hearing, Honea reasserted the arguments she had previously made and also argued that the arbitration award should be vacated because, she alleged, the three-member arbitration panel consisted of two “non-public” arbitrators, in violation of the specific arbitration rules of the National Association of Securities Dealers (“NASD”), which governed the arbitration proceedings. On July 20, 2009, the trial court issued an order concluding that Honea was entitled to a de novo review of the arbitration award and that the arbitration proceeding had not been conducted pursuant to NASD rules. The trial court accordingly vacated the award that had been entered in favor of RJFS and scheduled a future status conference for the purpose of setting the matter for trial. On August 27, 2009, RJFS filed this appeal. See Rule 71B(g), Ala. R. Civ. P.

II.

In Hereford v. D.R. Horton, Inc., 13 So.3d 375, 378 (Ala.2009), this Court described the standard of review applicable to an order confirming or vacating an arbitration award as follows:

“The standard by which an appellate court reviews a trial court’s order confirming [or vacating] an arbitration award under the Federal Arbitration Act is that questions of law are reviewed de novo and findings of fact are reviewed only for clear error. See Riccard v. Prudential Ins. Co., 307 F.3d 1277, 1289 (11th Cir.2002).”

III.

The gravamen of RJFS’s argument on appeal is that an Alabama court can vacate an arbitration award deciding a dispute involving interstate commerce and subject to the FAA only if one of the following grounds for vacatur enumerated in § 10(a) of the FAA is clearly established:

“(1) where the award was procured by corruption, fraud, or undue means;
“(2) where there was evident partiality or corruption in the arbitrators, or either of them;
“(3) where the arbitrators were guilty of misconduct in refusing to postpone the hearing, upon sufficient cause shown, or in refusing to hear evidence pertinent and material to the controversy; or of any other misbehavior by which the rights of any party have been prejudiced; or
“(4) where the arbitrators exceeded their powers, or so imperfectly executed them that a mutual, final, and definite award upon the subject matter submitted was not made.”

In support of this argument, RJFS cites Hall Street, in which the Supreme Court of the United States considered the issue whether parties could, consistent with the FAA, expand by contract the grounds for judicial review of an arbitration award beyond those enumerated in § 10 of the FAA and answered that question in the negative. Honea, however, argues that the holding of Hall Street does not apply to this case.

Hall Street involved a lease dispute between a landlord and tenant. While that dispute was being litigated in the United States District Court for the District of Oregon, the parties entered into an agreement to instead resolve their dispute in arbitration, but, as part of that agreement, they also agreed that the federal district court then hearing their case could vacate the resulting arbitration award if it found that the arbitrator’s findings of fact were not supported by substantial evidence or if the arbitrator’s conclusions of law were erroneous. 552 U.S. at 579. After the arbitrator entered an award in favor of the tenant, the landlord moved the trial court to vacate the award, and the trial court did so, citing legal error on the part of the arbitrator. 552 U.S. at 580. After the case was returned to arbitration and the arbitrator entered a new award in favor of the landlord, and after the trial court denied the tenant’s subsequent request to modify the award, the tenant appealed to the United States Court of Appeals for the Ninth Circuit, arguing that the provision in the arbitration agreement for judicial review in the event the conclusions of law were erroneous was unenforceable. 552 U.S. at 580. The Ninth Circuit Court of Appeals agreed; it reversed the judgment of the trial court, and the Supreme Court of the United States thereafter “granted certiorari to decide whether the grounds for vacatur and modification provided by §§ 10 and 11 of the FAA are exclusive.” 552 U.S. at 581.

In deciding the case, the Supreme Court rejected the landlord’s argument that it should uphold the contractual provision allowing for expanded judicial review of the arbitration award because arbitration is itself a creature of contract and because the FAA is “ ‘motivated, first and foremost, by a congressional desire to enforce agreements into which parties ha[ve] entered.’ ” 552 U.S. at 585 (quoting Dean Witter Reynolds, Inc. v. Byrd, 470 U.S. 213, 220, 105 S.Ct. 1238, 84 L.Ed.2d 158 (1985)). In concluding that such provisions were unenforceable, the Supreme Court stated:

“[The appellant] is certainly right that the FAA lets parties tailor some, even many features of arbitration by contract, including the way arbitrators are chosen, what their qualifications should be, which issues are arbitrable, along with procedure and choice of substantive law. But to rest this case on the general policy of treating arbitration agreements as enforceable as such would be to beg the question, which is whether the FAA has textual features at odds with enforcing a contract to expand judicial review following the arbitration.
“To that particular question we think the answer is yes, that the text compels a reading of the §§ 10 and 11 categories as exclusive. To begin with, even if we assumed §§ 10 and 11 could be supplemented to some extent, it would stretch basic interpretive principles to expand the stated grounds to the point of evi-dentiary and legal review generally. Sections 10 and 11, after all, address egregious departures from the parties’ agreed-upon arbitration: ‘corruption,’ ‘fraud,’ ‘evident partiality,’ ‘misconduct,’ ‘misbehavior,’ ‘exceeding] ... powers,’ ‘evident material miscalculation,’ ‘evident material mistake,’ ‘award[s] upon a matter not submitted;’ the only ground with any softer focus is ‘imperfections],’ and a court may correct those only if they go to ‘[a] matter of form not affecting the merits.’ Given this emphasis on extreme arbitral conduct, the old rule of ejusdem generis has an implicit lesson to teach here. Under that rule, when a statute sets out a series of specific items ending with a general term, that general term is confined to covering subjects comparable to the specifics it follows. Since a general term included in the text is normally so limited, then surely a statute with no textual hook for expansion cannot authorize contracting parties to supplement review for specific instances of outrageous conduct with review for just any legal error. ‘Fraud’ and a mistake of law are not cut from the same cloth.
“Instead of fighting the text, it makes more sense to see the three provisions, §§ 9-11, as substantiating a national policy favoring arbitration with just the limited review needed to maintain arbitration’s essential virtue of resolving disputes straightaway. Any other reading opens the door to the full-bore legal and evidentiary appeals that can ‘rende[r] informal arbitration merely a prelude to a more cumbersome and time-consuming judicial review process,’ Kyocera [Corp. v. Prudential-Bache Trade Servs., Inc.], 341 F.3d [987,] 998 [ (9th Cir.2003)]; cf. Ethyl Corp. v. United Steelworkers of America, 768 F.2d 180, 184 (7th Cir.1985), and bring arbitration theory to grief in post-arbitration process.”

552 U.S. at 586-88.

It is accordingly clear that, post-Hall Street, the specific grounds enumerated in § 10 of the FAA are the only grounds upon which an arbitration award may be vacated under the FAA. However, Honea argues that an arbitration award may nevertheless be vacated upon grounds outside those enumerated in § 10 of the FAA if those other grounds are authorized by state statute or by common law. The Supreme Court of the United States expressly recognized this possibility in Hall Street when it stated:

“In holding that §§ 10 and 11 provide exclusive regimes for the review provided by the statute, we do not purport to say that they exclude more searching review based on authority outside the statute as well. The FAA is not the only way into court for parties wanting review of arbitration awards: they may contemplate enforcement under state statutory or common law, for example, where judicial review of different scope is arguable. But here we speak only to the scope of the expeditious judicial review under §§ 9, 10, and 11, deciding nothing about other possible avenues for judicial enforcement of arbitration awards.”

552 U.S. at 590. Honea accordingly argues that even though agreements providing for the expanded judicial review of arbitration awards may not be enforceable under the FAA, they are nevertheless enforceable under Alabama common law because Alabama courts have consistently held that general contract law requires that arbitration agreements be enforced as written. This principle was explained by this Court in Bowater Inc. v. Zager, 901 So.2d 658, 667-68 (Ala.2004):

“Section 3 of the FAA provides that, when a party to pending litigation successfully moves to compel arbitration, the trial court shall stay the proceeding ‘until such arbitration has been had in accordance with the terms of the agreement.’ Section 4 of the FAA likewise provides, in a situation where there is no pending litigation and a party desiring to compel arbitration petitions a court ‘for an order directing that such arbitration proceed in the manner provided for in [the] agreement,’ that ‘the court shall make an order directing the parties to proceed to arbitration in accordance with the terms of the agreement.’ Section 5 provides that ‘[i]f in the agreement provision be made for a method of naming or appointing an arbitrator or arbitrators or an umpire, such method shall be followed.... ’
“ ‘Arbitration under the [FAA] is a matter of consent, not coercion, and parties are generally free to structure their arbitration agreements as they see fit. Just as they may limit by contract the issues which they will arbitrate, see Mitsubishi [Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614], at 628 [ (1985) ], so too may they specify by contract the rules under which that arbitration will be conducted.... By permitting the courts to “rigorously enforce” such agreements according to their terms, see [Dean Witter Reynolds Inc. v.] Byrd, [470 U.S. 213], at 221 [ (1985) ], we give effect to the contractual rights and expectations of the parties, without doing violence to the policies behind ... the FAA.’

“Volt Info. Sciences, Inc. v. Board of Trustees of Leland Stanford Junior Univ., 489 U.S. 468, 479, 109 S.Ct. 1248, 103 L.Ed.2d 488 (1989).

“ ‘Because “arbitration is a matter of contract,” AT & T Technologies, Inc. v. Communications Workers of America, 475 U.S. 643, 648, 106 S.Ct. 1415, 1418, 89 L.Ed.2d 648 (1986), parties may determine by contract the method under which arbitrators for their disputes will be appointed, Universal Reinsurance Corp. v. Allstate Ins. Co., 16 F.3d 125, 128 (7th Cir. 199[3]); Szuts v. Dean Witter Reynolds, Inc., 931 F.2d 830, 831 (11th Cir.1991); Avis Rent A Car System, Inc. v. Garage Employees Union, 791 F.2d 22, 24 (2d Cir.1986); ATSA of California, Inc. v. Continental Ins. Co., 754 F.2d 1394, 1395-96 (9th Cir.1985) (amending original opinion reported at 702 F.2d 172, 175-76 (9th Cir.1983)). In fact, the Federal Arbitration Act (FAA), 9 U.S.C. §§ 1-16, expressly states in section 5 that if the parties have provided in their contract “a method of naming or appointing an arbitrator or arbitrators ..., such method shall be followed.” 9 U.S.C. § 5.’

“Cargill Rice, Inc. v. Empresa Nicara-guense Dealimentos Basicos, 25 F.3d 223, 225 (4th Cir.1994).”

RJFS refutes Honea’s argument on this point by arguing, first, that the FAA — not Alabama common law — governs the review of this arbitration award, and, second, that the common law would nevertheless afford Honea no relief even if applied.

RJFS supports its first argument by noting that the arbitration provision itself stated that “any unsettled dispute or controversy will be resolved by arbitration ... in accordance with the [FAA],” and that its motion to compel arbitration also specifically invoked the FAA. Honea has offered no reason, RJFS argues, why the common law should apply instead of the FAA, other than the mere fact that the Supreme Court of the United States said in Hall Street that “parties wanting review of arbitration awards ... may contemplate enforcement under state statutory or common law....” 552 U.S. at 590. Moreover, RJFS argues, there is no evidence indicating that either it or Honea ever contemplated review under the common law as opposed to the FAA. See Alafabco, Inc. v. Citizens Bank, 872 So.2d 798, 801 (Ala.2002) (overruled on other grounds) (stating that where there is no evidence indicating that the parties wished to proceed in arbitration pursuant to the Alabama Arbitration Act, § 6-6-1 et seq., Ala.Code 1975 (“the AAA”), or the common law, “the parties did not contemplate arbitration” under that authority and the FAA must govern).

RJFS further quotes Birmingham News Co. v. Horn, 901 So.2d 27, 46 (Ala.2004), in which we stated: “This Court has adopted 9 U.S.C. § 10 as applicable to an appeal of an arbitration award in this state,” and succeeding cases relying upon Horn for the proposition that Alabama courts engaging in the judicial review of arbitration awards may vacate such awards only if one of the grounds in § 10 of the FAA is met, regardless of whether that review is sought pursuant to the FAA, the AAA, or the common law. See also Horton Homes, Inc. v. Shaner, 999 So.2d 462, 467 n. 2 (Ala.2008) (“We reiterate that a party desiring judicial review of an arbitration award in a proceeding subject to the [FAA] is limited to arguments based on those grounds enumerated in 9 U.S.C. § 10.”).

Moreover, RJFS argues that, even if this Court does accept Honea’s argument and apply the common law, the end result would be the same. Section 6-6-14, Ala. Code 1975, provides that an arbitration award in Alabama is final unless there is evidence of “fraud, partiality, or corruption in making it,” and this Court has declared that this statute “is but declaratory of the common-law rule on the subject.” Fuerst v. Eichberqer, 224 Ala. 81, 33, 138 So. 409, 410 (1931). Thus, RJFS argues, courts reviewing arbitration awards under Alabama common law or statute are limited to the three grounds enumerated in § 6-6-14, which grounds it argues are even more narrow than those in § 10 of the FAA, and, it further argues, courts may not therefore engage in de novo review even if the parties have contractually agreed to such review. It is therefore ultimately immaterial, RJFS argues, whether the arbitration award in this case is reviewed pursuant to the FAA, the AAA, or the common law. For the reasons that follow, we disagree.

In Horn, we made clear that Alabama courts should apply § 10 of the FAA when moved to vacate or to confirm arbitration awards, even though § 10 was facially applicable only to federal district courts. 901 So.2d at 46. However, we refrained from holding that § 10 eonstitut-ed substantive law that we were required by the FAA to apply in state court proceedings, stating that it was unnecessary to “stumble over the distinction between substantive law and procedural law” because we had already adopted § 10 “as applicable to an appeal of an arbitration award in this state, and we see no need to retreat from that position.” 901 So.2d at 46-47. However, in Hall Street, the Supreme Court of the United States acknowledged that state statutory or common law might permit arbitration awards to be reviewed under standards different from those enumerated in § 10, thus effectively stating that § 10 represents procedural as opposed to substantive law. We are ae-cordingly at liberty to decide whether to apply § 10 in state court proceedings on motions to vacate or to confirm an arbitration award. We have heretofore done so; however, this case presents us with the situation we implicitly recognized in Horn in which there are good and sufficient reasons “to retreat from that position.” 901 So.2d at 46-47. Under the Alabama common law, courts must rigorously enforce contracts, including arbitration agreements, according to their terms in order to give effect to the contractual rights and expectations of the parties. See, e.g., Bo-water, supra. Applying that principle in this case requires us to give effect to the provision in the arbitration agreement authorizing a court having jurisdiction to conduct a de novo review of the award entered as a result of arbitration proceedings conducted pursuant to that same agreement.

Ironically, however, it is this same principle requiring us to strictly enforce arbitration agreements according to their terms that requires us to reverse the judgment entered by the trial court in this case. The relevant provision in the arbitration agreement entered into by RJFS and Honea reads as follows:

“(c) A court of competent jurisdiction may enter judgment based on the award rendered by the arbitrators. We agree that both parties will have a right to appeal the decision of the arbitrators if the arbitrators award damages that exceed $100,000; the arbitrators do not award damages and the amount of my loss of principal exceeds $100,000; or the arbitrators award punitive damages. In each of the foregoing cases, a court having jurisdiction will conduct a ‘de novo’review of'the transcript and exhibits of the arbitration hearing.”

(Emphasis added.) Citing this provision, the trial court vacated the award entered by the arbitration panel for the reasons cited in its order and ordered a trial. However, as RJFS argues, the arbitration provision does not authorize that action; rather, it authorizes the trial court to “conduct a ‘de novo’ review of the transcript and exhibits of the arbitration hearing.” It does not authorize the trial court to preside over a trial and to take new evidence. Presumably, the trial court is to review the evidence presented at the arbitration proceeding and make its own findings of fact and conclusions of law and enter a judgment accordingly. It is without dispute that the trial court did not purport to undertake such a review in this case because the transcript and exhibits were apparently never submitted to the trial court for consideration and are not a part of the record. Indeed, at the hearing on the motion to vacate the arbitration award, the parties indicated that the tape recordings of the arbitration proceedings were mostly unintelligible and that the transcript was largely useless. Accordingly, the order entered by the trial court vacating the arbitration award in favor of RJFS must be reversed and the cause remanded for the trial court to conduct the de novo review contemplated by the arbitration provision. As it appears a transcript is effectively unavailable, the parties may follow the procedure outlined in Rule 10(d), Ala. RApp. P., to' create a substitute.

IV.

The claims asserted by Honea against RJFS were decided in arbitration pursuant to an arbitration provision in the client agreement entered into by the parties. The arbitrators entered an award in favor of RJFS, but, on Honea’s motion, the trial court vacated that award. RJFS argues that the trial court’s order should be reversed because the provision authorizing de novo review of the arbitration award by the trial court was effectively voided by the decision of the Supreme Court of the United States in Hall Street and because there were no valid grounds for vacating the arbitration award under § 10 of the FAA. However, because the holding of Hall Street is applicable only in a federal court and because the provision providing for de novo review of the arbitration award by the trial court is enforceable under state law, RJFS’s argument fails. However, because the trial court vacated the arbitration award before conducting the de novo review required by the arbitration provision and contemplated by the parties, its judgment is nevertheless reversed and the cause is remanded for the trial court to conduct a de novo review of the transcript and exhibits of the arbitration hearing and to enter a judgment based on that review.

REVERSED AND REMANDED.

COBB, C.J., and LYONS, WOODALL, SMITH, BOLIN, PARKER, and SHAW, JJ., concur.

MURDOCK, J., concurs specially.

MURDOCK, Justice

(concurring specially).

Paragraph (c) of the arbitration agreement between the parties contemplates a review of the merits of an arbitration decision by way of the circuit court’s de novo review of the arbitration award based on the transcript of the arbitration proceeding. In accordance with that provision of the arbitration agreement, the main opinion reverses the trial court’s judgment, reasoning that the trial court wrongly vacated the arbitration award based on paragraph (c) without first conducting such a review.

I note that the trial court vacated the arbitration award on two grounds, however: on the merits, as contemplated by paragraph (c), and also on the ground of a procedural deficiency in the arbitration proceedings, namely a violation of the panel-composition requirements imposed by paragraph (a) of the arbitration agreement. Just as they argue on appeal that the trial court erred in vacating the arbitration award based on paragraph (c), Raymond James Financial Services, Inc. (“RJFS”), and Bernard Michaud argue that the trial court should not have vacated the arbitration award (and that we should not affirm the trial court’s vacatur of the arbitration award) based on this alternative, procedural ground. I agree with RJFS and Michaud that any procedural deficiency of the stated nature was waived by the plaintiff and therefore does not serve as an alternative basis for affirming the trial court’s vacatur of the arbitration award. Accordingly, I do not find it necessary for us to consider, and I do not read the main opinion as reaching, the issue of the appropriate course of action or “remedy” in the event a vacatur were appropriate on such a ground.

      . NASD is now known as the Financial Industry Regulation Authority (“FINRA”).

      . Section 11 of the FAA provides for the modification or correction of an arbitration award if there are mathematical or clerical errors and correction is needed to "effect the intent [of the award] and promote justice between the parties."

      . At least one state, New Jersey, has enacted a statute specifically authorizing parties to expand the scope of judicial review of an arbitration award by contract. See N.J. Stat. Ann. § 2A:23B-4(c) (”[N]othing in this act shall preclude the parties from expanding the scope of judicial review of an award by expressly providing for such expansion in a record.”).

      . In Cable Connection, Inc. v. DIRECTV, Inc., 44 Cal.4th 1334, 1350-54, 190 P.3d 586, 597-99, 82 Cal.Rptr.3d 229, 242-45 (2008), the Supreme Court of California likewise concluded that § 10 was a procedural provision and that it accordingly did not preempt California law governing the review of arbitration awards. That court further held that parties in California may alter the usual scope of review applied to arbitration awards by contract pursuant to California statutory and common law, notwithstanding Hall Street. 44 Cal.4th at 1340, 190 P.3d at 589, 82 Cal.Rptr.3d at 233 (“The California rule is that the parties may obtain judicial review of the merits by express agreement. There is a statutory as well as a contractual basis for this rule; one of the grounds for review of an arbitration award is that ‘[t]he arbitrators exceeded their powers.' ([Cal.Code Civ. Proc.,] §§ 1286.2, subd. (a)(4), 1286.6, subd. (b).) Here, the parties agreed that ‘[t]he arbitrators shall not have the power to commit errors of law or legal reasoning, and the award may be vacated or corrected on appeal to a court of competent jurisdiction for any such error.’ ”).

      . Although, in Hall Street the Supreme Court of the United States did not agree with the appellant that the general policy requiring that arbitration agreements be enforced as they are written should trump the plain language of the FAA indicating that the grounds enumerated in § 10 are the exclusive grounds upon which an arbitration award may be vacated, 552 U.S. at 585-86, it has, even post-Hall Street, reiterated that courts and arbitrators must " 'give effect to the contractual rights and expectations of the parties.’" Stolt-Nielsen S.A. v. AnimalFeeds International Corp., - U.S. -, -, 130 S.Ct. 1758, 1774, 176 L.Ed.2d 605 (2010) (quoting Volt Info. Sciences, Inc. v. Board of Trustees of Leland Stanford Junior Univ., 489 U.S. 468, 479, 109 S.Ct. 1248, 103 L.Ed.2d 488 (1989)).


source: Caselaw Access Project

author: PARKER, Justice.

license: Public Domain

text:
    Ex parte Cecilia J. DIXON and City of Montgomery. (In re Linda Hollingsworth v. Cecilia J. Dixon and City of Montgomery).
    1081048.
    Supreme Court of Alabama.
    Aug. 6, 2010.

      Kimberley O. Fehl, City of Montgomery Legal Department, for petitioners.
    Robert Simms Thompson and Tiffany N. Johnson of The Law Offices of Robert Simms Thompson, PC, Tuskegee, for respondent.
   PARKER, Justice.

Cecilia J. Dixon and the City of Montgomery (“the City”) petition this Court for a writ of mandamus directing the Montgomery Circuit Court to vacate its order denying their immunity-based motion for a summary judgment. We grant their petition and issue the writ.

Background

The plaintiff, Linda Hollingsworth, a correctional officer employed by the City at the Montgomery municipal jail, sued Dixon, a major with the City of Montgomery Police Department and the Administration Division Commander, in her individual capacity and in her official capacity as a correctional officer with the Montgomery Police Department; the City of Montgomery Police Department; and three fictitiously named defendants. The cause of action arose when Dixon conducted a body search of Hollingsworth because Hollingsworth was the last person known to have been in possession of an inmate’s money, which was subsequently reported to be missing. As Administration Division Commander, Dixon was responsible for the operation of the Montgomery municipal jail. The complaint alleged four counts: assault and battery, invasion of privacy, negligent hiring, training, and/or supervision (against the City of Montgomery Police Department), and false imprisonment. The City responded to the complaint on behalf of the Montgomery Police Department, explaining the substitution in the barest terms in a footnote in its motion for a summary judgment, saying: “Because the Montgomery Police Department is not a legal entity to be sued, this Motion for Summary Judgment is submitted by City of Montgomery.”

The incident underlying this action occurred on May 15, 2007, when Dixon was advised by one of the supervisors at the jail that an inmate’s money was missing. The warden of the jail was not available, so Dixon went to the jail to resolve the matter. She was told that the newly installed video equipment, which should have recorded all the pertinent activity, was not working. Dixon obtained the assistance of officers who could get the video equipment working, and she proceeded to assess the situation. These events are summarized in Dixon’s deposition:

“We had new videos installed in the jail when I was the admin, commander. We were in the process — they hadn’t been in the jail very long. And it was for the jailers’ own protection and everything. So we had video installed in the jail. Some of it was so that when jailers were checking people in, the cameras went right down onto the desk where money and everything was. There were cameras put all over the jail. It was new equipment, so a lot of the jailers weren’t familiar with the way to handle the equipment.
“They said that the video cameras weren’t working.... Anyway, there were three or four other police officers that came to the jail to help me see if we could get the cameras up and running.
“They had been dealing with this an hour, an hour and a half — maybe. The person who the money belonged to was kind of over here in our holding cell, so he saw us kind of running around like chickens with our head cut off, you know. Then the attorney was over here. He saw what we were trying to do, that the money was gone and, you know, we didn’t really know where it was. I mean, it had been such a long time, and I thought, we’ve got to get it settled.
“So Ms. Hollingsworth was the last person seen with the money, and so I took it upon myself — and I called Marie Jenkins and I asked her if she would escort me to go into the office with Ms. Hollingsworth, because I was fixing to start searching everybody. But since she was the last person with the money, I started with her. Now, my intention was I was going to get everybody. But when we came back in, they were getting the video — after I had searched Ms. Hollingsworth, they were getting the video up and running.
“Well, while I was in the office with Ms. Jenkins and Ms. Hollingsworth about searching her, I apologized to her and told her — we have a policy that anybody can be searched, you know, in the jail and it includes employees.”

Dixon later testified in the same deposition regarding the actual search of Holl-ingsworth:

“Q. And did you order Ms. Hollings-worth for a strip search?
“A. Yes, sir.
“Q. Okay.
“A. Let me clarify that. Can I clarify that?
“Q. Sure. Yes, ma’am.
“A. I apologized to her for what I was about to do. I never touched Ms. Holl-ingsworth. The only thing I was doing was — my concern was about the money. She unbuttoned her shirt and she undid her bra. She never took her bra totally off. She undid her bra, and I told her that was fine, because I thought if she had taken the money, it would either be right here in her bra and would fall out or it would be right here in her pants. So she never took her clothes entirely off. She just unbuttoned her shirt and then she unbuckled her bra and just kind of turned it a little bit. She never took her clothes off. And when she started to undo her pants and she took her belt loose, I saw that — I mean, nothing fell out, and I told her to stop. I said, ‘That’s enough.’ I never laid my hands on her. I apologized to her and told her that I had seen enough. So as far as taking her clothes off, no, sir, she never took her clothes totally off. She still had her shirt on and she still had her bra on.”

In regard to her reason for conducting a body search of Hollingsworth, Dixon testified:

“Q. What specific objective facts did you have to believe that Ms. Hollings-worth had taken the money?
“A. Because she was the last one that had the money. It was in her hands. People said she was the last one to have the money. And she had gotten on the telephone and called — called her husband to tell her husband to bring money, that we were accusing her of taking money.
“Q. Okay. And where was the money found?
“A. I happened to find the money, because after we searched Ms. Hollings-worth and came out of the office, we came back into the office and they were bringing up the video. Okay. So her hands were the last ones on there. And we kept watching the video and watching the video and there were hands here and hands there, and the money was put in a brown envelope and she slid the brown envelope behind other envelopes when she should have given it to the officer behind the window. It was in a brown manila envelope with nothing written on it and it was slid behind other envelopes. And I followed the hands on the camera and I was the one that found the envelope.
“Q. Okay. And no one had searched the envelopes prior to you coming upstairs?
“A. Yes, sir, they had. They said they had. Now, I had to take—
“Q. Apparently, they had not.
“A. Apparently, they had not. And that was my problem with — they said they had done everything; but to me, they hadn’t done everything because obviously the money had to be somewhere.
“Q. Okay.
“A. And the reason I searched Ms. Hollingsworth was, I was the ranking officer up there, I was a female, and I felt like we needed to get the situation fixed. It had been going on long enough. And I started with her, but I was fixing to take care of the whole crew.”

On October 4, 2007, Hollingsworth filed her complaint. On March 6, 2009, Dixon and the City filed a motion for a summary judgment, claiming State-agent immunity for Dixon under § 6-5-338, Ala.Code 1975, and Ex parte Cramnan, 792 So.2d 392, 405 (Ala.2000), and immunity for the City under § 11^7-190, Ala.Code 1975.

Section 6-5-338, Ala.Code 1975, provides, in pertinent part:

“(a) Every peace officer, except constables, who is employed or appointed pursuant to the Constitution or statutes of this state, whether appointed or employed as such peace officer by the state or a county or municipality thereof, ... created pursuant to the Constitution or laws of this state and authorized by the Constitution or laws to appoint or employ police officers or other peace officers, and whose duties prescribed by law, or by the lawful terms of their employment or appointment, include the enforcement of, or the investigation and reporting of violations of, the criminal laws of this state, and who is empowered by the laws of this state to execute warrants, to arrest and to take into custody persons who violate, or who are lawfully charged by warrant, indictment, or other lawful process, with violations of, the criminal laws of this state, shall at all times be deemed to be officers of this state, and as such shall have immunity from tort liability arising out of his or her conduct in performance of any discretionary function within the line and scope of his or her law enforcement duties.
“(b) This section is intended to extend immunity only to peace officers and governmental units or agencies authorized to appoint peace officers. No immunity is extended hereby to any private nongovernmental person or entity, including any private employer of a peace officer during that officer’s off-duty hours.”

The City cited Hilliard v. City of Huntsville, 585 So.2d 889 (Ala.1991), for the premise that § 11-47-190, Ala.Code 1975, limits the liabilities of a municipality to injuries suffered through the neglect, carelessness, or unskillfulness of its agents and claimed immunity because there was no evidence indicating that Dixon had been neglectful, careless, or unskillful in her conduct in searching Hollingsworth.

Hollingsworth filed her response to the summary-judgment motion on March 10, 2009, arguing that because there is no specific written policy that permits Dixon to “strip-search” employees, Dixon is not entitled to State-agent immunity for any liability arising from her search of Holl-ingsworth. She included in her response Montgomery municipal jail policy number 2.80, effective February 13, 2005, which provides guidelines for searches of arres-tees and inmates within the jail. She also included pages 7-9 of the deposition of Maria Jenkins, who witnessed the search at Dixon’s request, in which Jenkins stated that she had been stunned that Dixon was accusing Hollingsworth of taking the money; that, in addition to unbuttoning her blouse and shaking out her bra, Hollings-worth had dropped her pants halfway down; that most of the personnel on the shift had gone so it was unlikely that Dixon intended to search others; and that Hollingsworth seemed stunned, embarrassed, shaken, and confused during the search. Hollingsworth argued that Dixon was not working as a police officer at the time of the incident but was instead working as a supervisor and that “Dixon at the least, misinterpreted regulations and believed incorrectly that strip search policies for inmates and arrestees extended to anyone entering the jail.” As to the liability of the City for Dixon’s actions, Hollings-worth argues that Dixon was clearly negligent, careless, and unskillful in her attempt to resolve the issue of the missing money and that the City is therefore liable under § 11-47-190.

In their March 25, 2009, reply to Holl-ingsworth’s response in opposition to their summary-judgment motion, Dixon and the City reiterated their position that Dixon held the rank of major in the Montgomery Police Department as well as the title of Administration Division Commander. As a major in the Montgomery Police Department, one of Dixon’s responsibilities was to supervise the operation of the Montgomery municipal jail. In performing her responsibility in supervising the operation of the jail, Dixon, in deciding to search Holl-ingsworth, was, they argued, exercising the judgment envisioned by this Court’s decision in Ex parte Cranman. They agree with Hollingsworth that a specific policy exists for searching inmates in the jail, but they argue that another general policy exists allowing a search of anyone entering the jail, and this is the policy that permitted Dixon’s search of Hollingsworth. Also, citing Hilliard v. City of Huntsville, supra, they argued that the City can claim immunity even if Dixon does not prevail on her claim of State-agent immunity.

On March 30, 2009, the trial court heard oral argument on the motion for a summary judgment, and on April 7, 2009, the trial court denied the motion without explanation.

Standard of Review

“Mandamus review of the denial of a summary-judgment motion ‘grounded on a claim of immunity’ is an exception to the general rule against interlocutory review of the denial of summary-judgment motions. Ex parte Auburn Univ., 6 So.3d 478, 483 (Ala.2008); Ex parte Hudson, 866 So.2d 1115, 1120 (Ala.2003). In those exceptional cases, ‘[w]e confíne our interlocutory review to matters germane to the issue of immunity. Matters relevant to the merits of the underlying tort claim, such as issues of duty or causation, [we leave] to the trial court....’ 866 So.2d at 1120.”

Ex parte Simpson, 36 So.3d 15, 22 (Ala.2009).

Analysis

As an officer of the Montgomery Police Department, Dixon is a peace officer, whether she was functioning as an administrator, supervisor, or jailer at the time of the incident giving rise to this action. This Court has held that a jailer is a peace officer. Howard v. City of Atmore, 887 So.2d 201 (Ala.2003).

Further, as an officer of the Montgomery Police Department, Dixon’s duties are “prescribed by law, ... [to] include the enforcement of ... the criminal laws of this state, and [she] is empowered ... to execute warrants, to arrest and to take into custody persons who violate ... the criminal laws of this state.” § 6-5-338(a), Ala. Code 1975.

In Howard this Court explained the basis for State-agent immunity for a police officer, Officer Frank Bryars, who was recuperating from surgery and who was on temporary assignment as a jailer/dispatcher when the incident that was the basis for the action occurred:

“By enacting [§ 6-5-338], the Legislature intended to afford municipal law-enforcement officials the immunity enjoyed by their state counterparts. Sheth v. Webster, 145 F.3d 1231, 1237 (11th Cir.1998). Indeed, ‘[t]his statute, by its terms, extends state-agent immunity to peace officers performing discretionary functions within the line and scope of their law-enforcement duties.’ Moore v. Crocker, 852 So.2d 89, 90 (Ala.2002) (emphasis added).
“In Ex parte Cranman, [792 So.2d 392 (Ala.2000) ], this Court ‘restated the law of state-agent immunity in Alabama.’ Moore, 852 So.2d at 90. Since Cran-man, we analyze immunity issues in terms of ‘State-agent’ immunity, rather than ‘under the dichotomy of ministerial versus discretionary functions.’ Ex parte Hudson, 866 So.2d 1115, 1117 (Ala.2003). See also Giambrone v. Douglas, 874 So.2d 1046, 1052 (Ala.2003); Ex parte Turner, 840 So.2d 132, 134 n. 1 (Ala.2002). Thus, we will address the applicability of peace-officer immunity under the principles set forth in Cran-man. See Moore, supra; Ex parte Duvall, 782 So.2d 244 (Ala.2000).
“As a threshold matter, Howard contends that Officer Bryars is not entitled to peace-officer immunity, because, she argues, § 6-5-338(a) does not apply to jailers. More specifically, she states: ‘Because Bryars was not performing any of the duties enumerated in § 6-5-338, but rather was acting as a dispatcher/jailer, he should not be cloaked with § 6-5-338 immunity. His performance of the duties of jailer/dispatcher was outside the “line and scope of his ... law enforcement duties.” ’ Howard’s appellate brief, at 66 (emphasis added). We disagree.
“Simply stated, the statute shields every defendant who (1) is a ‘peace officer,’ (2) is performing ‘law enforcement duties,’ and (3) is exercising judgment or discretion. It is undisputed that Officer Bryars was a sworn law-enforcement officer at the time of Bowens’s suicide, and that he was temporarily serving as a jailer/dispatcher while he was recuperating from surgery. The first element is, therefore, satisfied. The second inquiry is whether the guarding of a city jail by a regular police officer is one of the ‘law enforcement duties’ contemplated by the statute. We answer that question in the affirmative.
“ ‘All cities and towns of this state ... have the power to establish, erect, maintain and regulate jails, ... and to purchase and provide for any and all things which may be deemed advisable or necessary thereto.... ’ Ala.Code 1975, § 11-47-7. Thus, it requires no stretch of logic to conclude that the operation of jails by municipal police departments is a ‘law enforcement’ function. Indeed, this Court has expressly determined that a ‘jailer ... is a peace officer,’ and has adopted the view that the ‘custodian of a convict’ is a ‘law enforcement officer ... engaged in the active discharge of his lawful duty,’ within the meaning of Act No. 746, § 3, Ala. Acts 1967, formerly codified at Ala.Code 1975, § 13-1^42 (criminalizing assault on a ‘peace officer or other law enforcement officer ... engaged in the active discharge of his lawful duty') (repealed by Act No. 607, § 9901, Ala. Acts 1977).... House v. State, 380 So.2d 940, 941 (Ala.1979). In doing so, this Court explained:
“ ‘ “ ‘Whether those performing [the duties of a correction officer] bear the title of jail guard, warden or correction officer, overseeing the custody and punishment of law violators is as much a part of law enforcement as undertaking the detection and apprehension of such violators. Moreover, they have the further duty of detecting and preventing violations of law by prisoners, e.g., assaults on other prisoners, escapes, etc., and in that sense are literally law enforcement officers .... ’
“ ‘ . [PJrison guards are ‘law enforcement officers,’ particularly since it is their duty to force the convicts to obey and endure the sentence of the law.” ’
380 So.2d at 942 (quoting and adopting the reasoning of Presiding Judge Cates in his special concurrence in Lowe v. State, 54 Ala.App. 280, 285, 307 So.2d 86, 90-91 (1974), which was adopted by the court on rehearing) (emphasis added). We hold, therefore, that the guarding of a city jail by a regular municipal police officer is a ‘law enforcement dut[y]’ within the meaning of § 6-5-338(a).”

887 So.2d at 203-04 (footnotes omitted)(final emphasis added). Thus, as a municipal police officer with responsibility for the city jail, a law-enforcement duty within the meaning of § 6-5-338(a), Dixon is within the umbrella of protection provided to peace officers by § 6-5~338(a).

Dixon is also entitled to State-agent immunity under the Cranman factors. In Cranman, we said:

“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.”

792 So.2d at 405.

In her response to Dixon and the City’s petition, Hollingsworth says that “the facts are undisputed that Ms. Dixon was purportedly acting as a supervisor of jail employees at the time of the incident.” Hollingsworth’s brief, at 12. “Dixon was purportedly performing her administrative duties as an administrator of the jail and not a peace officer enforcing the laws.” Hollingsworth’s brief, at 13. Hollings-worth asserts that Ex parte Kennedy, 992 So.2d 1276 (Ala.2008), expands the rule set forth in Cranman to encompass § 6-5-338(a) but that the State-agent immunity is available only if the person seeking immunity was performing a discretionary function within the line and scope of his or her law-enforcement duties. She quotes a portion of Kennedy to support her thesis:

“ ‘ “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 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 serving as peace officers under circumstances entitling such officers to immunity pursuant to § 6-5-338(a), Ala.Code 1975.” ’ ”

Hollingsworth’s brief, at 11 (quoting Ex parte Kennedy, 992 So.2d at 1282, quoting in turn Hollis v. City of Brighton, 950 So.2d 300, 309 (Ala.2006)). As demonstrated above, “the guarding of a city jail by a regular municipal police officer is a ‘law enforcement dut[y]’ within the meaning of § 6-5-338(a),” Howard, 887 So.2d at 204, and Dixon was such an officer who was responsible for guarding the city jail through her subordinates. Moreover, Dixon was exercising her judgment in the administration of a department of government when she determined, as the supervisor of the officer employees, that the matter of the missing money required an expeditious resolution. Furthermore, Dixon did not act “beyond ... her authority,” because the standard-operating-procedures manual provided that “[ejvery person entering this facility is subject to be searched at any time.” - As a State agent, Dixon is therefore immune from tort liability.

The City is also immune. “ ‘It is well established that, if a municipal peace officer is immune pursuant to § 6-5-338(a), then, pursuant to § 6 — 5—338(b), the city by which he is employed is also immune.’ ” City of Crossville v. Haynes, 925 So.2d 944, 955 (Ala.2005) (quoting Howard, 887 So.2d at 211). See also Thurmond v. City of Huntsville, 904 So.2d 314, 326 (Ala.2004); Ex parte City of Gadsden, 781 So.2d 936, 940 (Ala.2000).

Conclusion

Both Dixon and the City have demonstrated that they are immune from tort liability and thus have demonstrated a clear legal right to the writ of mandamus. Accordingly, the petition is granted and the Montgomery Circuit Court is directed to vacate its April 7, 2009, order denying Dixon and the City’s motion for a summary judgment and to dismiss the complaint against them.

PETITION GRANTED; WRIT ISSUED.

LYONS, STUART, SMITH, BOLIN, and SHAW, JJ., concur.

WOODALL and MURDOCK, JJ., concur in the result.

COBB, C.J., recuses herself.

      .
      "Generally, the departments and subordinate entities of municipalities, counties, and towns that are not separate legal entities or bodies do not have the capacity to sue or be sued in the absence of specific statutory authority.... Among subordinate entities generally lacking the capacity to sue or be sued separately are police departments. ..."
      56 Am.Jur.2d Municipal Corporations § 787 (2000).

      . The standard-operating-procedures manual for the Montgomery municipal jail includes a policy that reads, in part:
      "Every Municipal Jail employee is to read and be familiar with the Montgomery Police Department's Manual of Rules and Regulations as it states in Article II Section 2.058.
      "The following is a standard operating procedures manual that the employees of the Municipal Jail will follow.

      "Every person entering this facility is subject to be searched at any time.”

      . In Hollis v. City of Brighton, this Court modified the fourth Cranman factor to reflect § 6-5-338(a) by adding the following language: "or serving as peace officers, under circumstances entitling such officers to immunity pursuant to § 6-5-338(a), Ala.Code 1975.” 950 So.2d at 309.


author: PER CURIAM.

text:
    Lindsey Osborn BEASLEY, individually and as trustee of the Joseph Waintraub Management Trust; Kourtney Osborn Naish; and Susan W. Stocks v. Alan M. WELLS.
    1080823.
    Supreme Court of Alabama.
    Aug. 13, 2010.

      C. Fred Daniels and Melanie M. Atha of Cabaniss, Johnston, Gardner, Dumas & O’Neal LLP, Birmingham, for appellants.
    Joshua J. Wright and Greg W. Foster of Hollis, Wright & Harrington, P.C., Birmingham, for appellee.
   PER CURIAM.

Lindsey Osborn Beasley, individually and as trustee of the Joseph Waintraub Management Trust; Kourtney Osborn Naish; and Susan W. Stocks (hereinafter collectively referred to as “the respondents”) appeal from a summary judgment entered in favor of Alan M. Wells. We reverse and remand.

Facts and Procedural History

Joseph Waintraub, the father of Wells and Stocks, died on January 21, 2007. Waintraub had executed a will in 2002 (“the will”). Among other things, the will deposited the residue of the estate into a trust, known as the Joseph Waintraub Management Trust, created contemporaneously with the will. Stocks, Beasley, and Naish are the beneficiaries of that trust. Waintraub’s wife predeceased him. A petition to probate the will was filed in the Jefferson County Probate Court on February 1, 2007. The will stated, in part, as follows:

“ITEM III
“DISPOSITION OF PERSONAL EFFECTS
“(a) I give and devise all of my wearing apparel, jewelry, books, pictures, household furniture and furnishings, both useful and ornamental, any automobile that I may own, and all other objects of my personal use, to my wife, Faye Waintraub, absolutely, if she is living at the time of my death. There is excluded from this devise all cash on hand or on deposit, stocks, bonds, notes, evidences of debts, other choses in action, intangibles and all other property held for investment. In the event my said wife shall predecease me, I give and devise all of said objects of property, in equal shares, absolutely, to my children, Alan M. Waintraub[] and Susan W. Stocks. If either of my children should predecease me, then I give and devise said child’s share of said property to his or her then living lineal descendants, per stirpes, if any, and if none, to my other child, or to his or her then living lineal descendants if he or she should predecease me, per stirpes. In the event that my said wife and my said children should all predecease me, leaving no lineal descendants of mine surviving, then this devise shall lapse, and the aforesaid property shall become a part of the residue of my estate. I hereby vest in my said Personal Representative, hereinafter named, full power and authority to determine what objects of property are included in the foregoing description contained in this Item of my Will, and, in the event my wife shall not be living, to make such division of said objects of property among my descendants as, in the opinion of my Personal Representative, may be desirable, having due regard for the personal preferences of my descendants.”

On July 3, 2007, Wells filed in the probate court a “petition for determination of share and an order that no distribution be made and for inventory of estate.” That petition asked the probate court to direct the personal representative, Regions Bank (“Regions”), to include “cash on hand or on deposit, stocks, bonds, notes, evidences of debts, other choses in action, intangibles and all other property held for investment” in the devise of “all of said objects of property, in equal shares, absolutely, to [Waintraub’s] children” in Item 111(a) of the will. Regions had determined that the “said objects of property” given to Wain-traub’s children in Item 111(a) of the will did not include Waintraub’s cash or investment property excluded by the second sentence of Item 111(a). Wells’s petition also asked the court to order Regions to file an inventory of the estate and to make no distribution of the estate until there was a final resolution concerning Wells’s share of the estate. On August 8, 2007, the respondents filed a response to Wells’s petition; Regions also filed a response that same day.

On July 1, 2008, Wells moved for a summary judgment, arguing that the phrase “all of said objects of property” in the third sentence in Item 111(a) of the will is unambiguous and should be interpreted to include “all cash on hand or on deposit, stocks, bonds, notes, evidences of debts, other choses in action, intangibles and all other property held for investment,” referenced in the second sentence. On July 18, 2008, Regions moved for a summary judgment, arguing that the unambiguous meaning of the phrase “all of said objects of property” in the third sentence in Item 111(a) of the will does not include “all cash on hand or on deposit, stocks, bonds, notes, evidences of debts, other choses in action, intangibles and all other property held for investment” referenced in the second sentence and that “the express language of the will vests ‘full power and authority’ in the personal representative to determine what objects are to be included in the Item III devise of the will.” That same day, the respondents also moved for a summary judgment. Like Regions, the respondents argued that the unambiguous language of Item 111(a) of the will does not include cash or investment property in the devise of “all of said objects of property” to Waintraub’s children and that the express language of Item 111(a) of the mil delegates to the personal representative “full power and authority” to determine what objects are to be included in the devise to Waintraub’s children. Additionally, the respondents argued that certain trusts, including the Joseph Waintraub Management Trust, that were controlled by Waintraub evidenced an intent to prevent Wells from inheriting any of Wain-traub’s financial assets.

On February 12, 2009, the probate court entered a summary judgment in favor of Wells, holding:

“After review of the Last Will and Testament of Joseph Waintraub (‘the Waintraub Will’) and its Codicils, and after oral argument, the Court finds as follows:
“1. Extrinsic evidence is unnecessary to consider in this case if there is no latent ambiguity. Given the language itself, there is no ambiguity in the language of the Will and/or Codicils. As such, no extrinsic evidence submitted herein was considered in this ruling. This Court rules based on the language of the Will and/or Codicils themselves, regardless of the arguments and extrinsic evidence presented by either of the parties.
“2. Item 111(a) of the Waintraub Will contains two separate devises. The first devise is to Mr. Waintraub’s wife, Faye Waintraub, and would control had Faye survived Mr. Waintraub, which she did not. The second devise is to Mr. Wain-traub’s children, Alan M. Waintraub (Wells) and Susan W. Stocks; it is the controlling devise in this case because Faye Waintraub predeceased her husband.
“3. The first devise in Item 111(a), gave ‘all of [Mr. Waintraub’s] wearing apparel, jewelry, books, pictures, household furniture and furnishings, both useful and ornamental, any automobile that [Mr. Waintraub owned], and all other objects of [his] personal use’ to Faye Waintraub, if she were living at the time of Mr. Waintraub’s death. Mr. Wain-traub excluded from this devise ‘all cash on hand or on deposit, stocks, bonds, notes evidences of debts, other choses in action, intangibles and all other property held for investment.’
“4. The second devise in Item 111(a) states that in the event Faye Waintraub were to predecease her husband, then Mr. Waintraub gives ‘all of said objects of property, in equal shares, absolutely to [his] children, Alan M. Waintraub (Wells) and Susan W. Stocks.’ The plain language of this devise incorporates both the ‘objects of personal use’ given to Faye Waintraub in the first devise and the cash, stocks, and other intangibles that were excluded from the devise to Ms. Waintraub by use of the phrase ‘all of said objects of property.’ The court finds that ‘all of said objects of property’ in the third sentence in Item 111(a) refers to both preceding sentences in Item 111(a) of the Last Will And Testament.
“5. Mr. Waintraub gave Regions Bank, as the Personal Representative of his estate, ‘full power and authority’ to determine the objects of property contained in the categories of property devised by Item 111(a) of the Waintraub Will. Regions Bank’s authority, however, is not unlimited and cannot be exercised expressly contrary to Mr. Wain-traub’s intent as expressed by the plain language of the Waintraub Will. See, e.g., Martin v. First Nat’l Bank of Mobile, 412 So.2d 250 (Ala.1982); Elliott v. Elliott, 349 So.2d 1092 (Ala.1977). Such an exercise of executory authority may be challenged by a will’s beneficiaries, as Mr. Wells has done in this case. Baker v. Wright, 60 So.2d 825, 832 (Ala.1952). Thus, the actions of Regions Bank as Personal Representative are not conclusive in this case.
“6. Martin v. First National Bank of Mobile does not bar this Court from exercising its proper authority in this case, contrary to Respondents’ assertion that there is ‘no room for [this Court’s] construction;’ those words, as used in Martin, applied to the court’s role in deciding the meaning of the discrete phrase ‘personal property.’ Martin, 412 So.2d at 254. In the present case, intervening language in Mr. Waintraub’s Will, and the fact that it contains two devises, instead of only one like the Will at issue in Martin, support this Court’s ruling. This Court followed the true holdings of Martin, that extrinsic evidence is improper unless a will contains latent ambiguities, and that rules of construction cannot be applied to an unambiguous will, Martin, 412 So.2d 250.
“Thus, it is hereby ORDERED and ADJUDGED as follows:
“1. The MOTION FOR SUMMARY JUDGMENT filed by Petitioner Alan M. Wells is GRANTED.
“2. The MOTION FOR SUMMARY JUDGMENT filed by Regions Bank as Personal Representative of the Estate of Joseph Waintraub, and the WAIN-TRAUB RESPONDENTS’ MOTION FOR SUMMARY JUDGMENT filed by Lindsey Osborn Beasley, individually and as Trustee of the Joseph Waintraub Management Trust, Kourtney Osborn Naish, individually, and Susan W. Stocks, individually, on behalf of themselves in such capacities and as representatives of their minor and unborn issue, are both DENIED.
“3. Mr. Wells is entitled to receive one-half of Mr. Waintraub’s ‘wearing apparel, jewelry, books, pictures, household furniture and furnishings, both useful and ornamental, any automobile that [Mr. Waintraub] may own, and all other objects of [Mr. Waintraub’s] personal use,’ and one-half of all of Mr. Wain-traub’s ‘cash on hand or on deposit, stocks, bonds, notes, evidences of debts, other choses in action, intangibles and all other property held for investment’ at the time of Mr. Waintraub’s death.
“4. Regions Bank, as Personal Representative, shall make an accounting to Mr. Wells and Ms. Stocks, of all of the ‘cash on hand or on deposit, stocks, bonds, notes, evidences of debts, other choses in action, intangibles and all other property held for investment’ contained in the Estate of Joseph Wain-traub at the time of Mr. Waintraub’s death.
“5. Costs of Court are hereby taxed against the estate.”

(Footnote omitted.) The respondents appealed.

Standard of Review

In Pittman v. United Toll Systems, LLC, 882 So.2d 842 (Ala.2003), this Court set forth the standard of review applicable to a summary judgment:

“This Court’s 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 maltes 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, 588 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).’ ”

882 So.2d at 844 (quoting Hobson v. American Cast Iron Pipe Co., 690 So.2d 341, 344 (Ala.1997)).

Discussion

The issue before this Court is whether the devise to Waintraub’s children of “all of said objects of property” in the third sentence in Item 111(a) of the will includes Waintraub’s “cash on hand or on deposit, stocks, bonds, notes, evidences of debts, other choses in action, intangibles and all other property held for investment” referred to in the second sentence in Item 111(a). Both Wells and the respondents contend that the language of the will is unambiguous. However, the respondents argue that the devise to Waintraub’s children in Item 111(a) includes only Wain-traub’s “wearing apparel, jewelry, books, pictures, household furniture and furnishings, both useful and ornamental, any automobile that [he] may own, and all other objects of [his] personal use,” as described in the first sentence in Item 111(a). The respondents contend that Waintraub’s intent in Item 111(a) was to make the children contingent beneficiaries of the objects Waintraub devised to his wife in the first sentence in Item 111(a). On the other hand, as the probate court held, Wells contends that Item 111(a) of the will contains two separate devises — one to Wain-traub’s wife and one to his children. Wells argues that the phrase “all of said objects of property” includes both the objects of personal use described in the first sentence in Item 111(a) and “cash on hand or on deposit, stocks, bonds, notes, evidences of debts, other choses in action, intangibles and all other property held for investment,” described in the second sentence in Item 111(a).

In Cottingham v. McKee, 821 So.2d 169 (Ala.2001), this Court summarized the principles of law applicable when a court is construing a will:

“The Alabama Legislature has established that ‘[t]he intention of a testator as expressed in his will controls the legal effect of his dispositions.’ § 43-8-222, Ala.Code 1975. ‘In Alabama the law is well settled that “the intention of the testator is always the polestar in the construction of wills, and that the cardinal rule is to give that intention effect if it is not prohibited by law.” ’ Hansel v. Head, 706 So.2d 1142, 1144 (Ala.1997), quoting deGraaf v. Owen, 598 So.2d 892, 895 (Ala.1992). ‘To determine the intent of a testator or testatrix, the court must look to the four corners of the instrument, and if the language is unambiguous and clearly expresses the testator’s or testatrix’s intent, then that language must govern.’ Born v. Clark, 662 So.2d 669, 671 (Ala.1995).”

821 So.2d at 171-72. Furthermore, this Court has stated: “The rule, of course, is that the intention of the testator governs the construction of a will, but if by its terms it is unambiguous there is no room for construction and it will be taken as written.” Fuller v. Nazal, 259 Ala. 598, 603, 67 So.2d 806, 810 (1953).

In the present case, the terms of Item 111(a) of the will are unambiguous and must be taken as written. Considering Item 111(a) as a whole, we conclude that Waintraub’s intent was not to include “cash on hand or on deposit, stocks, bonds, notes, evidences of debts, other choses in action, intangibles and all other property held for investment” in the devise of “all of said objects of property” to his children in Item 111(a) of the will. Item 111(a) is entitled “Disposition of Personal Effects.” As the Court of Appeals of Nebraska has held, “[t]he term ‘personal effects’ ordinarily designates only such property that is worn or carried about the person.” Clausen v. Columbia Nat’l Ins. Co., 1 Neb. App. 808, 811, 510 N.W.2d 399, 402 (1993) (citing In re Estate of Stengel, 557 S.W.2d 255 (Mo.Ct.App.1977); In re Estate of Reitz, 213 Kan. 534, 516 P.2d 909 (1973); Estate of Johnson, 5 Cal.App.3d 173, 84 Cal.Rptr. 914 (1970); and Black’s Law Dictionary 1143 (6th ed. 1990)). The term “personal effects” ordinarily does not include cash and property held for investment. In the second sentence in Item 111(a) of the will, Waintraub clarified what he intended to include in his personal effects by specifically stating that “cash on hand or on deposit, stocks, bonds, notes, evidences of debts, other choses in action, intangibles and all other property held for investment” are “excluded from this devise.” Waintraub did not manifest any intention in Item 111(a) of the will to include the property listed in the second sentence in any devise.

Also, the property included in the first sentence in Item 111(a) is specifically described as “objects of [his] personal use.” Likewise, in the third sentence in Item 111(a), Waintraub’s children are given “objects of property.” The property excluded from the devise in the second sentence in Item 111(a) is never described as “objects.”

Furthermore, Waintraub’s clearly stated intent was for the devise to his children in the third sentence in Item 111(a) of the will to take effect only “[i]n the event [his] said wife shall predecease [him].” There is no indication that Waintraub intended for the devise to his children and the devise to his wife in Item 111(a) to be completely separate devises in which his children would receive certain property if his wife predeceased him that neither his children nor his wife would receive under Item 111(a) if she did not predecease him. As the respondents contend, Item 111(a) of the will is clearly one devise of Waintraub’s personal effects, with contingent beneficiaries. Waintraub’s intent in Item III (a) was to make his wife the primary beneficiary and his children the contingent beneficiaries of the objects listed in the first sentence in Item 111(a) of the will.

We hold that the language of Item 111(a) of the will is unambiguous and that it clearly expresses Waintraub’s intent to give “all of [his] wearing apparel, jewelry, books, pictures, household furniture and furnishings, both useful and ornamental, any automobile that [he] may own, and all other objects of [his] personal use” to his children if his wife predeceased him. Item 111(a) of the will clearly expresses Wain-traub’s intent to exclude from that devise “cash on hand or on deposit, stocks, bonds, notes, evidences of debts, other choses in action, intangibles and all other property held for investment.” Therefore, the probate court erred in entering a summary judgment in favor of Wells.

Conclusion

Based on the foregoing, we reverse the probate court’s judgment and remand this case for proceedings consistent with this opinion.

REVERSED AND REMANDED.

COBB, C.J., and WOODALL, STUART, PARKER, and SHAW, JJ., concur.

      . Lindsey Osborn Beasley and Kourtney Osborn Naish are Stocks's daughters and Joseph Waintraub's granddaughters.

      . Alan M. Waintraub changed his name to Alan M. Wells in August 2006.


author: SHAW, Justice.

text:
    GREEN TREE-AL LLC v. Lisa K. WHITE.
    1071515.
    Supreme Court of Alabama.
    Aug. 13, 2010.

      R. Austin Huffaker, Jr., of Rushton, Stakely, Johnston & Garrett, P.A., Montgomery, for appellant.

      Leah O. Taylor and Rhonda P. Chambers of Taylor & Taylor, Birmingham, for appellee.
   SHAW, Justice.

Green Tree-AL LLC (“Green Tree”), the plaintiff in a replevin action pending below, appeals from the denial of its motion to compel arbitration of the counterclaims of the defendant/counterclaimant, Lisa K. White. We reverse and remand.

Facts and Procedural History

In 1999, White purchased a manufactured home from Southland Quality Homes, Inc. (“Southland”). In connection with this purchase, White executed a document titled “Manufactured Home Retail Installment Contract and Security Agreement” (“the contract”). The contract listed Green Tree as an “Assignee.” Page 4 of the contract was titled “Assignment by Seller” and indicated that Southland was assigning the contract to the “Assignee,” i.e., Green Tree. Additionally, the contract contained an arbitration provision that stated, in pertinent part:

“All disputes, claims or controversies arising from or relating to this Agreement or the relationships which result from this Agreement, or the validity of this arbitration clause or the entire Agreement, shall be resolved by binding arbitration by one arbitrator selected by you with my consent. This arbitration agreement is made pursuant to a . transaction involving interstate commerce, and shall be governed by the Federal Arbitration Act, Title 9 United States Code. Judgment upon the award rendered may be entered in any court having jurisdiction. The parties agree and understand that they choose arbitration instead of litigation to resolve disputes. The parties understand that they have a right or opportunity to litigate disputes in court, but that they prefer to resolve their disputes through arbitration, except as provided herein. THE PARTIES VOLUNTARILY AND KNOWINGLY WAIVE ANY RIGHT THEY HAVE TO A JURY TRIAL, EITHER PURSUANT TO ARBITRATION UNDER THIS CLAUSE OR PURSUANT TO A COURT ACTION BY YOU (AS PROVIDED HEREIN). The parties agree and understand that all disputes arising under case law, statutory law, and all other laws including, but not limited to, all contract, tort and property disputes, will be subject to binding arbitration in accord with this agreement. I agree that I shall not have the right to participate as a representative or a member of any class of claimants pertaining to any claim arising from or relating to this Agreement. The parties agree that the arbitrator shall have all powers provided by law and the Agreement. These powers shall include all legal and equitable remedies including, but not limited to, money damages, declaratory relief and injunctive relief. Notwithstanding anything hereunto the contrary, you retain an option to use judicial or non-judicial relief to enforce a security agreement relating to the collateral secured in a transaction underlying this arbitration agreement, to enforce the monetary obligation or to foreclose on the collateral. Such judicial relief would take the form of a lawsuit. The institution and maintenance of an action for judicial relief in a court to foreclose upon any collateral, to obtain a monetary judgment or to enforce the security agreement, shall not constitute a waiver of the right of any party to compel arbitration in this Agreement, including the filing of a counterclaim in a suit brought by you pursuant to this provision.”

(Capitalization in original.)

Subsequently, in July 2007, Green Tree sued White, alleging that White had failed to make payments pursuant to the contract and seeking, among other things, possession of the manufactured home. Green Tree later filed a request that the case be placed on the trial court’s administrative docket, indicating that the parties were working on resolving the arrearage. The case was ultimately removed from the administrative docket, and a default judgment was entered in Green Tree’s favor on April 7, 2008. On April 24, 2008, White moved to set aside the default judgment, and the trial court granted her motion. White then filed an answer, as well as a counterclaim against Green Tree seeking damages based on abuse of process, slander of title, the tort of outrage, fraud, and negligence and wantonness.

Green Tree moved to compel arbitration of White’s counterclaims and to stay the case pending arbitration. The motion was supported by evidentiary exhibits. Green Tree’s motion was set for a hearing; on the day of the hearing, White filed a brief opposing Green Tree’s motion. Subsequently, the trial court entered an order denying the motion to compel. Green Tree appeals.

Standard of Review

“ ‘[T]he standard of review of a trial court’s ruling on a motion to compel arbitration at the instance of either party is a de novo determination of whether the trial judge erred on a factual or legal issue to the substantial prejudice of the party seeking review.’ Ex parte Roberson, 749 So.2d 441, 446 (Ala.1999). Furthermore:

“ ‘A motion to compel arbitration is analogous to a motion for summary judgment. TranSouth Fin. Corp. v. Bell, 739 So.2d 1110, 1114 (Ala.1999). The party seeking to compel arbitration has the burden of proving the existence of a contract calling for arbitration and proving that that contract evidences a transaction affecting interstate commerce. Id. “After a motion to compel arbitration has been made and supported, the burden is on the non-movant to present evidence that the supposed arbitration agreement is not valid or does not apply to the dispute in question.” ’
“Fleetwood Enters., Inc. v. Bruno, 784 So.2d 277, 280 (Ala.2000) (quoting Jim Burke Auto., Inc. v. Beavers, 674 So.2d 1260, 1265 n. 1 (Ala.1995) (emphasis omitted)).”

Vann v. First Cmty. Credit Corp., 834 So.2d 751, 752-53 (Ala.2002).

Discussion

“The Federal Arbitration Act, 9 U.S.C. § 1 et seq. (‘the FAA’), provides that ‘[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.... ’ 9 U.S.C. § 2. The FAA ‘mandates the arbitration of claims encompassed by an arbitration clause that is contained in a binding contract that involves interstate commerce.’ Ex parte Conference America, Inc., 713 So.2d 953, 955 (Ala.1998).”

Elizabeth Homes, L.L.C. v. Cato, 968 So.2d 1, 3-4 (Ala.2007).

In support of its motion to compel arbitration, Green Tree presented a copy of the contract, which, as noted above, contained the arbitration provision. Additionally, Green Tree submitted the affidavit of Robert D. Eller, a regional manager for Green Tree, who testified regarding the effect on interstate commerce of the transaction evidenced by the contract. Green Tree thus met its “ ‘ “burden of proving the existence of a contract calling for arbitration and proving that that contract evidences a transaction affecting interstate commerce.” ’ ” Vann, 834 So.2d at 753 (quoting other cases). The burden thus shifted to White “ ‘ “to present evidence that the supposed arbitration agreement is not valid or does not apply to the dispute in question.” ’ ” Id. (quoting other cases).

In response to the motion to compel arbitration, White argued that no contract calling for arbitration existed between Green Tree and White, that Green Tree was not a signatory to the contract, and that the contract limited arbitration to the signatories. Specifically, White correctly noted that the “definitions” portion of the contract provided as follows: “T,’ ‘me,’ ‘my’ means the Buyer(s). “You,’ ‘your’ means the Seller and also the Assignee or their affiliates (after the Contract is assigned by Seller). The ‘parties’ means the Buyer and Seller, together.... ” The arbitration provision stated that only the “parties,” which White contends does not include Green Tree, agreed to arbitration:

“The parties agree and understand that they choose arbitration instead of litigation to resolve disputes. The parties understand that they have a right or opportunity to litigate disputes in court, but that they prefer to resolve their disputes through arbitration, except as provided herein. THE PARTIES VOLUNTARILY AND KNOWINGLY WAIVE ANY RIGHT THEY HAVE TO A JURY. TRIAL, EITHER PURSUANT TO ARBITRATION UNDER THIS CLAUSE OR PURSUANT TO A COURT ACTION BY YOU (AS PROVIDED HEREIN).”

(Capitalization in original; emphasis added.) Thus, White argued that she agreed to arbitrate claims only with Southland. The trial court agreed, holding:

“Green Tree has failed to meet its burden of establishing the existence of a contract between it and Lisa White calling for arbitration. In this case, the arbitration provision is specifically applicable only to the ‘parties’ who executed the Retail Installment Contract. The purchaser is Lisa K. White. The seller is Southland Quality Homes. Green Tree is not a ‘party1 to the contract. The Retail Installment Contract limits the applicability of the contract to the ‘parties’ Lisa K. White and Southland Quality Homes. The language of the Retail Installment Contract is not broad enough to reach Green Tree, who is a nonsignatory. Therefore, Green Tree is not entitled to compel arbitration of White’s claims against it by the terms of the Retail Installment Contract.”

/.

On appeal, Green Tree challenges the trial court’s holding that Green Tree could not enforce the arbitration provision. White reiterates the argument she presented below and that was adopted by the trial court.

That one may be compelled to arbitrate a claim is not necessarily premised on the fact that both participants in the arbitration proceedings are signatories to a contract calling for arbitration. Specifically, this Court has held that in numerous situations one may compel arbitration under a contract to which it is not a party, or that one who is not a signatory to a contract calling for arbitration must nevertheless arbitrate his or her claims. See, e.g., Ex parte Stanley, 776 So.2d 85, 89 (Ala.2000) (“[B]oth Federal courts and Alabama courts have enforced exceptions to this rule, so as to allow a nonsignatory, and even one who is not a party, as to a particular contract, to enforce an arbitration provision within that same contract.”). However, “unless the arbitration provision contains sufficiently broad language that indicates that the nonsignatory was contemplated as a party, we have repeatedly held that the nonsignatory lacks ‘standing’ to enforce the arbitration agreement.” Smith v. Mark Dodge, Inc., 934 So.2d 375, 380-81 (Ala.2006).

First, Green Tree contends that, as an assignee of the contract, it was entitled to all the rights and privileges held by Southland under the contract. Generally, an assignee steps into the shoes of an assignor who was the signatory of an arbitration provision, thus allowing the assign-ee to enforce that arbitration provision. Nissan Motor Acceptance Corp. v. Ross, 703 So.2d 324, 326 (Ala.1997). In Green Tree Financial Corp. v. Channell, 825 So.2d 90 (Ala.2002), a financial-services company, “Green Tree Financial,” financed the purchase of a mobile home. Green Tree Financial was an assignee of a sales contract and installment agreement between the purchasers of the mobile home and Johnson Mobile Homes, the seller of the mobile home. The purchasers later sued Green Tree Financial and Johnson Mobile Homes, both of which moved to compel arbitration. We stated:

“As an assignee, Green Tree [Financial] simply steps into the shoes of the assignor, Johnson Mobile Homes, a signatory to the installment agreement, which contained the arbitration clause. See Nissan Motor Acceptance Corp. v. Ross, 703 So.2d 324, 326 (Ala.1997) (citing Upchurch v. West, 234 Ala. 604, 609, 176 So. 186, 190 (1937), overruled on other grounds, Dominex, Inc. v. Key, 456 So.2d 1047 (Ala.1984)). ‘A valid assignment gives the assignee the same rights, benefits, and remedies that the assignor possesses.’ 703 So.2d at 326. Therefore, as a result of the assignment of the installment agreement to Green Tree [Financial], it holds the same rights, benefits, and remedies that Johnson Mobile Homes held under the installment agreement.”

825 So.2d at 95. See also Ocwen Loan Servicing, LLC v. Washington, 939 So.2d 6, 9 (Ala.2006) (“As a general rule, an assignee stands in the shoes of the assign- or and may enforce an arbitration agreement entered into between the assignor and another party.”).

White argues that parts of the arbitration provision appear to designate that White and Southland agreed, as the “parties” to the contract, to arbitrate disputes against each other; White thus argues that Green Tree, even as an assignee, was not contemplated as a party capable of enforcing arbitration. However, we note that other parts of the arbitration provision do contemplate the involvement of other entities, including Green Tree, in arbitration. Specifically, in parts of the provision, Green Tree, which is included in the definition of “you,” is referenced as participating in the arbitration process:

“All disputes, claims or controversies arising from or relating to this Agreement or the relationships which result from this Agreement ... shall be resolved by binding arbitration by one arbitrator selected by you with my consent.... THE PARTIES VOLUNTARILY AND KNOWINGLY WAIVE ANY RIGHT THEY HAVE TO A JURY TRIAL, EITHER PURSUANT TO ARBITRATION UNDER THIS CLAUSE OR PURSUANT TO A COURT ACTION BY YOU.... Notwithstanding anything hereunto the contrary, you retain an option to use judicial or non-judicial relief to enforce a security agreement relating to the collateral secured in a transaction underlying this arbitration agreement, to enforce the monetary obligation or to foreclose on the collateral.... The institution and maintenance of an action for judicial relief in a court to foreclose upon any collateral, to obtain a monetary judgment or to enforce the security agreement, shall not constitute a waiver of the right of any party to compel arbitration in this Agreement, including the filing of a counterclaim in a suit brought by you pursuant to this provision.”

Additionally, the scope of the arbitration agreement is clearly broad enough to apply to disputes between Green Tree and White. Specifically, the arbitration provision specifies that all disputes arising from or relating to the contract “or the relationships which result from” the contract shall be resolved by arbitration.

Finally, this Court has previously noted: “‘[There is a] strong presumption in favor of arbitration’ created by the Federal Arbitration Act. See, generally, Blue Cross Blue Shield of Alabama v. Rigas, 928 So.2d 1077, 1083 (Ala.2005). ‘In interpreting an arbitration provision, “any doubts concerning the scope of ar-bitrable issues should be resolved in favor of arbitration, whether the problem at hand is the construction of the contract language itself or an allegation of waiver, delay, or a like defense to arbi-trability.”’ The Dunes of GP, L.L.C. v. Bradford, 966 So.2d 924, 927 (Ala.2007) (quoting Moses H. Cone Mem’l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 24-25 (1983)) (emphasis omitted). Indeed, ‘ “a motion to compel arbitration should not be denied ‘unless it may be said with positive assurance that the arbitration clause is not susceptible of an interpretation that covers the asserted dispute.’ ” ’ Id. (quoting Ex parte Colquitt, 808 So.2d 1018, 1024 (Ala.2001), quoting in turn United Steelworkers of America v. Warrior & Gulf Navigation Co., 363 U.S. 574, 582-83 (1960)) (emphasis omitted). ‘While, “as with any other contract, the parties’ intentions control, ... those intentions are generously construed as to issues of arbitrability.” ’ Carroll v. W.L. Petrey Wholesale Co., 941 So.2d 234, 237 (Ala.2006) (quoting Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614, 626 (1985)).”

Kenworth of Mobile, Inc. v. Dolphin Line, Inc., 988 So.2d 534, 544-45 (Ala.2008).

Although the language of the arbitration provision defining “parties” has Southland and White agreeing to arbitrate their claims, the provision also contemplates Green Tree’s participation in the arbitration process. Further, Green Tree, as the assignee designated in the contract, is entitled to all the rights and privileges held by Southland under the contract. Finally, the scope of the arbitration provision is broad and specifically provides for the arbitration of disputes arising from or related to relationships resulting from the contract. Given these facts and the broad federal policy in favor of arbitration, we conclude that the trial court erred in holding that Green Tree had no standing to enforce the arbitration provision.

II.

The second issue is whether, even if Green Tree could enforce the arbitration provision, White’s counterclaims were subject to arbitration. The trial court held that they were not:

“The Retail Installment Contract provides that ‘all disputes, claims, or controversies arising from or relating to’ the Retail Installment Contract between Lisa K. White and Southland Quality-Homes shall be subject to binding arbitration. White’s counterclaim against Green Tree asserts claims for fraud on the court, abuse of process, slander of title, outrage, negligence and wantonness claims. The claims relate to Green Tree’s conduct following an Order from this Court. This Court is a party to that Order and the Court is an entity offended if the Order is not obeyed. This Court does not agree to arbitrate the claims. Claims for contempt or violation of a court order or abuse of or disrespect for judicial authority are not appropriate for arbitration. In re Grant, 281 B.R. 721 (S.D.Ala.2000).”

White contends that her counterclaims “relate to Green Tree’s conduct before the trial court” and that, under Grant v. Cole (In re Grant), 281 B.R. 721 (S.D.Ala.2000), claims “for contempt or violation of a court order or abuse of or disrespect for judicial authority are not appropriate for arbitration.” White’s brief, at 17-18.

The order to which the trial court and White refer is not included in the record before us. In an affidavit attached to her motion to set aside the default judgment, White claimed that, sometime after August 9, 2007, she appeared at a hearing and demonstrated to the trial court that she was current on her payments and that the trial court acknowledged or expressed both to her and to Green Tree’s counsel that White’s obligation was current. Green Tree, on the other hand, disputes these assertions, arguing that the record indicates that no such hearing took place in this case and further that no order declaring that White was current on her obligation exists. Instead, Green Tree suggests that White is confusing the instant case with a previous action that was dismissed; Green Tree asserts that the instant action was filed after White had again defaulted on her payments.

The record reveals no motion for contempt or other request for relief premised on Green Tree’s alleged violation of the trial court’s instructions and no order directing Green Tree’s conduct with respect to its collection of White’s purported debt.

“It has long been our rule that an appellate court may not rely on facts outside the record.... Moreover, a court may not ordinarily take judicial notice of the records of another court. See Belyeu v. Boman, 252 Ala. 371, 373, 41 So.2d 290, 291 (1949) (holding that the Supreme Court of Alabama may not take judicial notice of the records of the trial court unless those records appear in the clerk’s record or in the records of the Supreme Court); Worthington v. Amerson, 741 So.2d 437, 438 n. 2 (Ala.Civ.App.1999) (‘Generally, a court may not take judicial notice of the records of another court.’).”

Ex parte Jett, 5 So.3d 640, 645-46 (Ala.2007) (See, J., concurring specially). Therefore, there is no basis for this Court to consider White’s claims as an attempt to enforce a previous order of the trial court; instead, for all that appears, White’s counterclaims are all premised on actions taken by Green Tree in servicing the loan and seek damages for those actions. Therefore, the trial court erred in holding that the counterclaims were “for contempt or violation of a court order or abuse of or disrespect for judicial authority” and thus not appropriate for arbitration.

Ill

Finally, White contends on appeal that the arbitration provision in this case is unconscionable.

“It is well settled that ‘[t]he burden of proving unconscionability of an arbitration agreement rests with the party challenging the agreement.’ Green Tree Fin. Corp. of Alabama v. Vintson, 753 So.2d 497, 504 (Ala.1999); Briarcliff Nursing Home, Inc. v. Turcotte, 894 So.2d 661, 665 (Ala.2004); see also Young v. Jim Walter Homes, Inc., 110 F.Supp.2d 1344, 1347 (M.D.Ala.2000). The party challenging the agreement must demonstrate that ‘(1) [the challenged] terms ... are grossly favorable to a party that has (2) overwhelming bargaining power.’ American Gen. Fin., Inc. v. Branch, 793 So.2d 738, 748 (Ala.2000) (summarizing the four factors set forth in Layne v. Garner, 612 So.2d 404, 408 (Ala.1992)).”

Sloan Southern Homes, LLC v. McQueen, 955 So.2d 401, 403 (Ala.2006).

White contends that the arbitration provision is unconscionable because, she says, the terms are overly broad and it “exempts] the defendants from the duty to arbitrate and expressly reserves] the right to try to a jury their claims.” White’s brief, at 23. However, this Court has previously rejected similar arguments regarding similarly worded arbitration provisions. See, e.g., Green Tree Fin. Corp. of Alabama v. Vintson, 753 So.2d 497 (Ala.1999); Green Tree Fin. Corp. v. Wampler, 749 So.2d 409 (Ala.1999); and Conseco Fin. Corp.-Alabama v. Boone, 838 So.2d 370, 373 (Ala.2002).

White also argues, citing Harold Allen’s Mobile Home Factory Outlet, Inc. v. Butler, 825 So.2d 779, 783 (Ala.2002), that the arbitration provision is unconscionable because, she says, Green Tree essentially has the power to pick the arbitrator. However, the arbitration provision held to be unconscionable in Harold Allen’s Mobile Home allowed the seller “to select the arbitrator with no input from” the purchaser. 825 So.2d at 783 (emphasis added). The arbitration provision in the instant case essentially requires the parties to mutually agree on the arbitrator; thus, Harold Allen’s Mobile Home is clearly distinguishable.

Finally, White contends that Green Tree possessed overweening bargaining power. However, it was White’s burden to produce evidence substantiating this assertion, and no such evidence is found in the record. See Blue Cross Blue Shield of Alabama v. Rigas, 923 So.2d 1077, 1090 (Ala.2005), and Leeman v. Cook’s Pest Control, Inc., 902 So.2d 641, 648 (Ala.2004). Therefore, we conclude that White has failed to establish that the arbitration provision in this case is unconscionable.

Conclusion

The trial court’s order denying the motion to compel arbitration of White’s counterclaims is reversed, and the case is remanded for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

COBB, C.J., and WOODALL, SMITH, and PARKER, JJ., concur.

      . This page, which White initialed, stated that Southland “sells, assigns, and transfers its entire right, title, and interest in” the contract to Green Tree.

      . A transcript of the hearing was not made part of the record.

      . The trial court did not base its decision on this premise; however, White raised it in her opposition to Green Tree's motion to compel arbitration.