author: STUART, Justice. MURDOCK, Justice COBB, Chief Justice

text:
    DUDLEY, HOPTON-JONES, SIMS & FREEMAN, PLLP v. Andrew J. KNIGHT.
    1090823.
    Supreme Court of Alabama.
    Aug. 27, 2010.
    Joseph W. Letzer and Elizabeth B. Shirley of Burr & Forman LLP, Birmingham, for appellant.
    Michael L. Jackson and Thomas A. McKnight, Jr., of Wallace, Jordan, Ratliff & Brandt, L.L.C., Birmingham, for appel-lee.
   STUART, Justice.

The accounting firm Dudley, Hopton-Jones, Sims & Freeman, PLLP (“DHSF”), appeals from an order of the Jefferson Circuit Court dismissing with prejudice its action against Andrew J. Knight, a former partner in DHSF. We reverse and remand.

I.

Knight became a partner in DHSF in 1988. The partnership agreement Knight signed at that time contained the following arbitration provision:

“In the event controversy or claim arises out of or relates to this agreement concerning the value of property or the amount of losses, profits or damages, it shall be submitted to three arbitrators and settled by arbitration in accordance with the rules, then obtaining, of the American Arbitration Association.”

Knight left DHSF in April 2000 and, on August 30, 2001, sued DHSF in the Jefferson Circuit Court, alleging that DHSF had not paid him money he was entitled to under the partnership agreement upon withdrawing from the partnership. Without filing an answer, DHSF moved to compel arbitration of Knight’s claim pursuant to the arbitration provision in the partnership agreement, and, on February 13, 2002, the circuit court granted DHSF’s motion and stayed the case “to permit the parties to arbitrate.” It appears that Knight and DHSF thereafter conferred regarding the selection of the arbitrators; however, neither party filed a demand for arbitration with any organization or otherwise took steps to formally initiate the arbitration process. The circuit court periodically held status conferences and requested status reports on the arbitration proceeding; however, on August 4, 2009, after arbitration proceedings still had not been initiated, the circuit court dismissed Knight’s action with prejudice.

Approximately five months later, on January 11, 2010, DHSF initiated the present action by filing a complaint against Knight in the Jefferson Circuit Court, alleging that Knight was liable to the firm for breach of contract, breach of fiduciary duties, and fraudulent misrepresentation. DHSF simultaneously moved the circuit court to stay the case and to refer it to arbitration pursuant to the arbitration provision in the partnership agreement. In that motion, DHSF argued that the arbitration provision encompassed the claims it was asserting against Knight, that the underlying transaction affected interstate commerce, and that the circuit court had previously compelled arbitration based upon that same, arbitration provision in the earlier action initiated by Knight. On January 29, 2010, the circuit court granted the motion and stayed the case pending the outcome of the arbitration proceedings.

On February 3, 2010, Knight moved the circuit court to dismiss the complaint filed by DHSF, arguing that the claims asserted by DHSF were barred both by the applicable statutes of limitations and by DHSF’s failure to assert the claims as compulsory counterclaims in the action filed by Knight in 2001. Knight also argued that DHSF failed to assert its fraudulent-misrepresentation claim with the particularity required by Rule 9(b), Ala. R. Civ. P. (“In all averments of fraud or mistake, the circumstances constituting fraud or mistake shall be stated with particularity.”). On March 2, 2010, DHSF filed a response in opposition to Knight’s motion to dismiss, arguing that each of Knight’s arguments lacked merit and that, in any event, those arguments should be decided by an arbitrator — not the court— because the partnership agreement between the parties contained a valid arbitration provision covering the asserted claims.

On March 4, 2010, the circuit court held a hearing on Knight’s motion to dismiss. Following that hearing, the circuit court granted Knight’s motion and entered a written order dismissing DHSF’s complaint with prejudice on the basis of the arguments made by Knight in his motion to dismiss. DHSF filed its notice of appeal to this Court that same day.

II.

DHSF argues that the circuit court erred in hearing and ruling on Knight’s motion to* dismiss its complaint because, DHSF argues, that motion raised only issues that, in the context of a dispute falling within the scope of a valid arbitration provision, must be resolved by an arbitrator— not a court, which is empowered in such cases to rule only on issues of substantive arbitrability. We review the circuit court’s judgment de novo. Brasfield & Gorrie, L.L.C. v. Soho Partners, L.L.C., 35 So.3d 601, 604 (Ala.2009).

We explained the role of the trial court in ruling on a motion to compel arbitration as follows in Brasfield & Gome:

“In ruling on a motion to stay judicial proceedings following a request for arbitration, the court is required to decide matters of ‘substantive arbitrability,’ that is, (1) whether a valid agreement to arbitrate exists and, if so, (2) whether the specific dispute falls within the scope of that agreement. Dean Witter [Reynolds, Inc. v. McDonald], 758 So.2d [539,] 542 [ (Ala.1999) ]. ‘Procedural arbitrability,’ on the other hand, involves questions that grow out of the dispute and bear on its final disposition, e.g., defenses such as notice, laches, estoppel, and other similar compliance defenses; such questions are for an arbitrator to decide. See Howsam v. Dean Witter Reynolds, Inc., 537 U.S. 79, 84, 123 S.Ct. 588, 154 L.Ed.2d 491 (2002) (‘ “ ‘procedural’ questions which grow out of the dispute and bear on its final disposition are presumptively not for the judge, but for an arbitrator, to decide” ’); John Wiley & Sons, Inc. v. Livingston, 376 U.S. 543, 84 S.Ct. 909, 11 L.Ed.2d 898 (1964) (holding that an arbitrator should decide whether the steps of a grievance procedure were completed, where those steps were prerequisites to arbitration).”

35 So.3d at 604-05. In this case, the circuit court considered DHSF’s motion to compel arbitration and the accompanying exhibits, and it initially granted the motion, staying the case so that DHSF could arbitrate its claims against Knight. That decision is supported by the evidence in the record because there is no question but that a valid agreement to arbitrate exists between DHSF and Knight and that the present dispute falls within the scope of that agreement.

However, approximately five weeks after issuing an order compelling arbitration, the circuit court entered a new order granting Knight’s motion to dismiss DHSF’s complaint on the following grounds: (1) that all DHSF’s claims were barred by the applicable statutes of limitations; (2) that all DHSF’s claims were barred because they were compulsory counterclaims that were not asserted in a previous action between the parties; and (3)that DHSF’s fraudulent-misrepresentation claim was not pleaded with the required particularity. This order effectively vacated the previous order compelling arbitration, holding instead that Knight did not have to submit to arbitration because he had valid defenses to the claims asserted against him by DHSF. However, as we explained in Brasfield & Gorrie, a trial court in such circumstances is empowered only “to decide matters of ‘substantive arbitrability.’ ” 35 So.3d at 604. The issue whether DHSF’s claims were barred by the applicable statutes of limitations or because they were not assérted in a previous action between the parties, as well as whether DHSF’s fraud claim was pleaded with the required particularity, is wholly unrelated to whether a valid agreement to arbitrate exists or whether the identified dispute falls within the scope of that agreement; accordingly, those arguments do not implicate matters of substantive arbitrability, and the circuit court erred by considering those arguments and dismissing DHSF’s complaint on that basis. The arguments raised by Knight in his motion to dismiss in fact relate to the ultimate viability of DHSF’s claims — not to the availability of arbitration — and they should accordingly be considered and ruled upon by the arbitrators, not by the circuit court.

Knight argues that this Court can nevertheless affirm the judgment of the circuit court because, he argues, DHSF waived its right to arbitrate its claims by not pursuing those claims during the eight-year period in which Knight’s action against DHSF was on the administrative docket pending arbitration. DHSF argues that it did not waive its claims and that the issue of waiver, like all the other issues Knight has raised, is for the arbitrators, not the court, to consider.

In Ocwen Loan Servicing, LLC v. Washington, 939 So.2d 6, 14 (Ala.2006), this Court stated that “whether a party has waived the right to arbitration by its conduct during litigation is a question for the court and not the arbitrator.” We further explained that “[i]n order to show waiver by litigation-related conduct, the party opposing arbitration must demonstrate that the movant has substantially invoked the litigation process_” 939 So.2d at 14. Washington therefore represents an exception to the general presumption in arbitration law that arbitrators should decide allegations of waiver. See, e.g., Howsam v. Dean Witter Reynolds, Inc., 537 U.S. 79, 84, 123 S.Ct. 588, 154 L.Ed.2d 491 (2002) (quoting Moses H. Cone Mem’l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 24-25, 103 S.Ct. 927, 74 L.Ed.2d 765 (1983)) (“[T]he presumption is that the arbitrator should decide ‘allegation[s] of waiver, delay, or a like defense to arbitrability.’ ”).

That exception does not apply in this case, however, because Knight is not arguing that DHSF waived its right to arbitrate its claims by substantially invoking the litigation process. Rather, Knight is arguing that DHSF waived its arbitration rights based on its failure to pursue its claims in a timely fashion. See Knight’s brief, p. 15 (“[DHSF’s] conduct in sitting on its hands for almost a decade before seeking arbitration of its claims constitutes a waiver of its right to arbitration. Just as parties can waive their contractual right to arbitration by substantially invoking the litigation process, they can also waive such rights through dilatory conduct.”). An allegation of waiver such as this falls outside the exception articulated in Washington and is subject to the general rule that arbitrators should decide issues of waiver or delay; accordingly, we cannot affirm the judgment of the circuit court on this basis. See also Brasfield & Gorrie, 35 So.3d at 606-07 n. 1 (explaining that whether a party has waived its right to arbitration by substantially invoking the litigation process is a matter for the trial court because invoking the litigation process involves matters that occurred under the trial court’s watch; such a waiver is therefore distinguishable from a waiver based on other factors not involving litigation conduct).

III.

DHSF’s action against Knight alleges breach of contract, breach of fiduciary duties, and fraudulent misrepresentation. The circuit court initially granted DHSF’s motion to stay the case so that DHSF could arbitrate its claims pursuant to an arbitration provision in the partnership agreement entered into by the parties, but the circuit court subsequently vacated that order and dismissed DHSF’s claims on the basis of the defenses asserted by Knight. However, because the defenses asserted by Knight concerned the ultimate viability of DHSF’s claims and not issues of substantive arbitrability, the circuit court erred by considering the merit of those defenses. Because there is no question but that there was a valid agreement between the parties to arbitrate claims such as those asserted by DHSF, arbitration was the proper forum in which to consider the defenses asserted by Knight. Accordingly, the judgment of the circuit court dismissing DHSF’s claims and implicitly vacating its eai'lier order compelling arbitration is reversed and the cause remanded to the circuit court so that DHSF can arbitrate its claims pursuant to the arbitration provision in the partnership agreement between the parties. All other issues raised by the parties on appeal are accordingly pretermitted.

REVERSED AND REMANDED.

LYONS, WOODALL, SMITH, and PARKER, JJ., concur.

MURDOCK, J., concurs specially.

SHAW, J., concurs in the result.

COBB, C.J., dissents.

BOLIN, J., recuses himself.

MURDOCK, Justice

(concurring specially).

I concur in the main opinion. I write separately (1) to explain my understanding of the concept of “procedural arbitrability” referenced in Brasfield & Gorrie, L.L.C. v. Soho Partners, L.L.C., 35 So.3d 601 (Ala.2009), as quoted in the main opinion, see 57 So.3d at 70, and (2) to explain further my unwillingness to embrace, as does Chief Justice Cobb in her dissent, a defense of waiver as a ground for affirming the order of the circuit court.

I first note that the defenses of statute of limitations and failure to assert a compulsory counterclaim (thus giving rise to a res judicata bar), though obviously procedural in one sense, are not “procedural arbitrability ” issues as that term has come to be understood since the United States Supreme Court’s decision in John Wiley & Sons, Inc. v. Livingston, 376 U.S. 543, 84 S.Ct. 909, 11 L.Ed.2d 898 (1964). Rather, as the main opinion suggests, these are defenses that arise under state law and that ultimately may defeat a claim; they do not per se address the “arbitrability” of the claim.

“ ‘Procedural arbitrability ... involves questions that grow out of the dispute and bear on its final disposition, e.g., defenses such as notice, laches, estoppel, and other similar compliance defenses; such questions are for an arbitrator to decide. See Howsam v. Dean Witter Reynolds, Inc., 537 U.S. 79, 84, 123 S.Ct. 588, 154 L.Ed.2d 491 (2002) (““procedural’ questions which grow out of the dispute and bear on its final disposition are presumptively not for the judge, but for an arbitrator, to decide” ’); John Wiley & Sons, Inc. v. Livingston, 376 U.S. 543, 84 S.Ct. 909, 11 L.Ed.2d 898 (1964) (holding that an arbitrator should decide whether the steps of a grievance procedure were completed, where those steps were prerequisites to arbitration ).”

Brasfield & Gorrie, 35 So.3d at 604-05 (emphasis added).

The Court in Howsam v. Dean Witter Reynolds, Inc., 537 U.S. 79, 84, 123 S.Ct. 588, 154 L.Ed.2d 491 (2002), explained as follows:

“[T]he Court has found the phrase ‘question of arbitrability not applicable in other kinds of general circumstance where parties would likely expect that an arbitrator would decide the gateway matter. Thus ‘ “procedural” questions which grow out of the dispute and bear on its final disposition’ are presumptively not for the judge, but for an arbitrator, to decide. John Wiley [& Sons, Inc. v. Livingston, 376 U.S. 543,] at 557 [ (1964) ] (holding that an arbitrator should decide whether the first two steps of a grievance procedure were completed, where these steps are prerequisites to arbitration). So, too, the presumption is that the arbitrator should decide ‘allegation[s] of waiver, delay, or a like defense to arbitrability.’ Moses H. Cone Memorial Hospital [v. Mercury Constr. Corp., 460 U.S. 1,] at 24-25, 103 S.Ct. 927 [ (1983) ]. Indeed, the Revised Uniform Arbitration Act of 2000 (RUAA), seeking to ‘incorporate the holdings of the vast majority of state courts and the law that has developed under the [Federal Arbitration Act],’ states that an ‘arbitrator shall decide whether a condition precedent to arbi-trability has been fulfilled.’ RUAA § 6(c), and comment 2, 7 U.L.A. 12-13 (Supp.2002). And the comments add that ‘in the absence of an agreement to the contrary, issues of substantive arbi-trability are for a court to decide and issues of procedural arbitrability, i.e., whether prerequisites such as time limits, notice, laches, estoppel, and other conditions precedent to an obligation to arbitrate have been met, are for the arbitrators to decide.’ Id., § 6, comment 2, 7 U.L.A., at 13.”

(Emphasis omitted; emphasis added.)

Hoivsam gives as an example of a procedural-arbitrability issue a failure to follow a given procedure that, under a collective-bargaining agreement, was part of the process entitling the aggrieved party to arbitrate its dispute. Howsam also refers to “prerequisites” to arbitration, “such as time limits, notice, laches, estoppel, and other conditions precedent to an obligation to arbitrate.” 537 U.S. at 84. The reference is to time limits, notice, etc., that are a function of the agreement to arbitrate and thus are “conditions precedent” to the arbitration, not conditions precedent to the claim itself. That is, the reference to “prerequisites” is not intended as a reference to defenses that would simply defeat the claim as a matter of state law in a court, as. opposed to defeating merely the ability to arbitrate the claim. As one treatise explains it, the “more apt phrase” for “procedural arbitrability” is a “gateway procedural issue,” and this is intended as a reference to “the institutional rules” of the arbitration process itself, rules that arbitrators are “comparatively more expert about” and “comparatively better than judges to interpret and apply.” 92 Am. Jur. Proof of Facts 1, § 42 (3d ed. 2006). The notion of a “gateway” is that of a gateway to the arbitration per se, not a gateway to a viable claim under otherwise applicable state or federal law.

The state-law defenses of statute of limitations and failure to plead as a compulsory counterclaim asserted in this case do not go to the availability of arbitration per se (i.e., they are not “gateways” to arbitration) and accordingly do not constitute “procedural arbitrability” issues. Nonetheless, as the main opinion concludes, they are issues for the arbitrator to address and to decide because they go to “the ultimate viability of DHSF’s claims” themselves.

As for the willingness of the dissent to affirm the circuit court’s order on the alternative ground of waiver, I note that waiver is a defense that entails factual determinations. See, e.g., Nunnelley v. GE Capital Info. Tech. Solutions-North America, 730 So.2d 238, 241 (Ala.Civ.App.1999) (“Generally, the issue whether there has been a waiver is a question for the finder of fact.”). Accordingly, for this reason, if not others, if waiver was not raised in the circuit court, it cannot serve in the context of this case as a ground for affirming the circuit court’s order. Reliance at this stage by this Court upon such a ground, without having given Knight the opportunity to address it both factually and legally, would run afoul of the due-process exception to the general affirm-on-any-valid-legal-ground rule. See Liberty Nat’l Life Ins. Co. v. University of Alabama Health Servs. Found., P.C., 881 So.2d 1013, 1020 (Ala.2003) (the general affirm-on-any-valid-legal-ground “rule fails in application only where due-process constraints require some notice at the trial level, which was omitted, of the basis that would otherwise support an affirmance, such as when a totally omitted affirmative defense might, if available for consideration, suffice to affirm a judgment”).

I further note that the waiver issue as presented here appears to be a perfect example of a “procedural arbitrability” question. It is one that grows out of the dispute and, specifically, is a function of the contractual limits intended by the parties on their right to arbitrate a dispute between them. As noted above, “ ‘[procedural arbitrability1 ... involves questions that grow out of the dispute and bear on its final disposition, e.g., defenses such as notice, laches, estoppel, and other similar compliance defenses; such questions are for an arbitrator to decide.” Brasfield & Gorrie, 35 So.3d at 604. This question, therefore, is one that the arbitrator, not this Court, must decide.

COBB, Chief Justice

(dissenting).

I would affirm the circuit court’s judgment dismissing DHSF’s claims and implicitly vacating its prior order compelling arbitration. Therefore, I respectfully dissent.

In 2001, Knight sued DHSF, alleging breach of the parties’ partnership agreement. DHSF moved to compel arbitration of Knight’s claims, and the circuit court granted that motion. Thereafter, the action languished on the circuit court’s administrative docket for eight years. During that time, DHSF made periodic status reports to the circuit court, stating that the parties were trying to agree on an arbitrator, but neither party took formal steps to initiate the arbitration process. The circuit court dismissed Knight’s action with prejudice in 2009.

In 2010, DHSF sued Knight, asserting claims that, DHSF concedes, were compulsory counterclaims in Knight’s 2001 action because they arose out of the partnership agreement that was the subject of Knight’s 2001 complaint. Contemporaneously with the filing of its complaint, DHSF moved the court to refer the case to arbitration. Although the circuit court initially granted DHSF’s motion and stayed the case pending arbitration, the circuit court later dismissed DHSF’s complaint following oral argument by the parties and the submission of post-hearing briefs, implicitly vacating its earlier order. In his post-hearing brief, Knight argued that DHSF had waived the right to arbitrate its claims by its dilatory conduct in the 2001 action and, further, that its claims were barred by the applicable statutes of limitations and by DHSF’s failure to have asserted its claims as compulsory counterclaims in the 2001 action. The circuit court dismissed DHSF’s action.

The main opinion rejects Knight’s argument that the circuit court was authorized to decide whether “ ‘[DHSF’s] conduct in sitting on its hands for almost a decade before seeking arbitration of its claims constitutes a waiver of its right to arbitration,’ ” 57 So.3d at 71, because, it concludes, Knight’s allegation of waiver does not fall within the rule announced in Ocwen Loan Servicing, LLC v. Washington, 939 So.2d 6 (Ala.2006). In Ocwen, this Court stated that “whether a party has waived the right to arbitration by its conduct during litigation is a question for the court and not the arbitrator.” 939 So.2d at 14. Specifically, this Court in Ocwen held that, “[i]n order to show waiver by litigation-related conduct, the party opposing arbitration must demonstrate that the movant has substantially invoked the litigation process.... ” 939 So.2d at 14. Notwithstanding our use of the phrases “conduct during litigation” and “litigation-related conduct” in Ocwen, this Court’s later explanation, in Brasfield & Gorrie, L.L.C. v. Soho Partners, L.L.C., 35 So.3d 601, 607 n. 1 (Ala.2009), of the reason for the rule allowing the court to decide whether a party has waived arbitration by substantially invoking the litigation process demonstrates that the court’s ability to decide questions of waiver is not limited solely to litigation-related matters. In Brasfield & Gorrie, this Court explained:

“In Alabama, the issue whether a party has substantially invoked the litigation process is a matter for the trial court to decide. This is so because invoking the litigation process involves matters that occurred before the court or under its watch.”

35 So.3d at 607 n. 1 (emphasis added). The fact that “matters [occurring] before the court or under its watch” will, more often than not, take place in the context of litigation does not mean that they must arise in that context. Brasfield & Gorrie stated the rationale more broadly to include “matters that occurred before the court or under its watch”' — that is, matters of which the trial court has knowledge because they occurred in the judicial forum and, therefore, matters the trial court is better suited to decide than is an arbitrator.

Accordingly, I disagree with the implication in the main opinion that the only waiver issue within the purview of the court is whether a party has “substantially invoked the litigation process.” A party’s substantially invoking the litigation process and a party’s doing absolutely nothing to initiate the arbitration process for eight years actually represent two sides of the same coin. Both involve alleged waivers by conduct occurring in the judicial forum that signals an intent not to insist on arbitration as the means of settling the dispute. When that conduct occurs under the trial court’s watch, as it did in Ocwen, and as it did in this case, the trial court is better suited than the arbitrator to decide whether a waiver has occurred.

It seems to me that the eight-year period during which the parties took no steps to initiate the arbitration process so far exceeds the reasonable time during which some tardiness, or even some willful delay, could still be consistent with the notion that the parties were insisting on arbitration as the means of settling their dispute that it virtually dictates the conclusion that they waived their right to arbitration. Nevertheless, the conclusion that I might reach on the facts is unimportant. What is important is that the circuit court, which heard DHSF’s status reports over an eight-year period and had the opportunity to assess the bona fides of those reports, was better suited than the arbitrator to determine whether DHSF’s dilatory conduct amounted to a waiver.

Because I believe the circuit court correctly, albeit implicitly, vacated its earlier order compelling arbitration, I find no error in the circuit court’s considering the merits of Knight’s statutes-of-limitation and compulsory-counterclaim defenses. DHSF acknowledges that the contract and tort claims it asserted in the 2010 action accrued in 2000 when Knight left DHSF; it concedes that those claims are compulsory counterclaims that could have been, but were not, asserted in the 2001 action. Nevertheless, DHSF contends that the claims are not barred by the six-year statute of limitations for contracts and the two-year statute of limitations for torts because, it says, the order compelling arbitration in the 2001 action tolled the statutes of limitations — not only for Knight’s claims, but also for any potential but unas-serted counterclaims DHSF may have had against Knight in 2001 — until such time as Knight’s action was dismissed in 2009, when, DHSF says, the statutes began to run again and had not expired in 2010 when DHSF sued Knight, at which time, DHSF asserts, its claims “related back” to the time that Knight filed his complaint in 2001.

Claims asserted in a second action, however, cannot relate back to a prior action; DHSF lost the benefit of the relation-back rule when Knight’s 2001 action was dismissed with prejudice. See Ex parte Cincinnati Ins. Cos., 806 So.2d 376, 379 (Ala.2001) (stating that “[t]o effect the purpose of Rule 13, [Ala. R. Civ. P., the compulsory-counterclaim rule,] the consequence for failing to assert a compulsory counterclaim is a bar against the assertion of that claim in any other action” (emphasis added)).

I would affirm the circuit court’s judgment in all respects; therefore, I dissent.

      . DHSF attached as an exhibit to its motion the motion to compel arbitration it had filed in the earlier action initiated by Knight.

      . Obviously, an arbitrator is not “comparatively more expert” than a judge in applying a traditional, statute-of-limitations defense to a claim or in applying a defense that the claimant failed to allege the claim as a compulsory counterclaim in a prior proceeding or with sufficient particularity for purposes of Rule 9(b), Ala. R. Civ. P.

      .

        "[T]he relevant question here is what kind of arbitration proceeding the parties agreed to.

      That question does not concern a state statute or judicial procedures, cf. Volt Information Sciences, Inc. v. Board of Trustees of Leland Stanford Junior Univ., 489 U.S. 468, 474-476 (1989). It concerns contract interpretation and arbitration procedures. Arbitrators are well situated to answer that question. Given these considerations, along with the arbitration contracts' sweeping language concerning the scope of the questions committed to árbitration, this matter of contract interpretation should be for the arbitrator, not the courts, to decide. Cf. Howsam, supra, at 83, 123 S.Ct. 588 (finding for roughly simitar reasons that the arbitrator should determine a certain procedural ‘gateway matter')."

        Green Tree Fin. Corp. v. Bazzle, 539 U.S. 444, 452-53, 123 S.Ct. 2402, 156 L.Ed.2d 414 (2003).
      Compare Massachusetts Highway Dep’t v. Perini Corp., 444 Mass. 366, 377, 828 N.E.2d 34, 42 (2005) ("[T]he question involvefd] the sequence of prerequisites for the dispute’s submission to the board, and thus, presented] ... an issue of procedural arbitrability similar to ‘time limits, notice, laches, estoppel, and other conditions precedent to an obligation to arbitrate.' ” (citation omitted)).
      See generally 13D Charles Alan Wright et al., Federal Practice & Procedure § 3569 (3d ed. 2010) (emphasis added; citations omitted) ("[T]he [Supreme] Court has held that the following issues do not raise questions of arbi-trability and thus should (absent agreement to the contrary) be decided in the first instance by the arbitrator: whether a claim is barred by a temporal limitation contained in the arbitration rules of the National Association of Securities Dealers, whether an arbitration agreement’s limitation on recovery of punitive damages barred a claim for treble damages under RICO, and whether an arbitration agreement forbids class arbitration. Generally, questions about arbitration procedure should be resolved in the first.instance by the arbitrator.”).
      In Southern United Fire Insurance Co. v. Howard, 775 So.2d 156, 163-64 (Ala.2000), this Court gave a nonexhaustive, but illustrative, list of issues that constitute “procedural arbitrability” issues: the rules governing the arbitration proceeding; the arbitrators' fees and other costs associated with the arbitration proceeding; which party is responsible for paying costs other than the arbitrators’ fees; what substantive law governs the arbitrators' decision; the qualifications of the arbitrators; the parties’ discovery rights; whether or how a record is to be made of the arbitration proceedings; whether the arbitrators are required to make any findings supporting their decision; and the provisions for review or enforcement of the arbitrators’ decision.
      ”[M]atters of 'procedural arbitrability,’ such as whether a party seeking arbitration has waived its right to arbitration by failing to comply with procedural requirements set forth in the arbitration agreement, are for the arbitrator to decide." Dean Witter Reynolds, Inc. v. McDonald, 758 So.2d 539, 542 (Ala.1999).

      . As for the alleged failure to plead with the particularity required by Rule 9(b), Ala. R. Civ. P., I do not understand the Alabama Rules of Civil Procedure to be applicable in an arbitration proceeding. See 4 Charles Alan Wright & Arthur R. Miller, Federal Practice & Procedure § 1015 (3d ed. 2002) (explaining that, with certain exceptions, the Federal Rules of Civil Procedure are not applicable to arbitration proceedings conducted under the Federal Arbitration Act.) Thus, if pleading fraud with certain specificity is a "gateway” to arbitration of a fraud claim, it is so as a result of the contractual intent of the parties to the arbitration agreement and properly may be viewed as an issue of "procedural arbitrability.”

      .
      "On appeal, Bentley raises for the first time issues of unconscionability. Uncon-scionability is an affirmative defense that must be specially pleaded. AmSouth Bank v. Dees, 847 So.2d 923 (Ala.2002). Bentley neither pleaded nor argued below uncon-scionability as a basis for avoidance of the arbitration agreement at issue. This Court can affirm the judgment of a trial court on a basis different from the one on which it ruled, Smith v. Equifax, 537 So.2d 463 (Ala.1988), but the constraints of procedural due process prevent us from extending that principle to a totally omitted affirmative defense. Accordingly, we reject Bentley’s unconscionability argument.”

        Ameriquest Mortgage Co. v. Bentley, 851 So.2d 458, 465 (Ala.2002).

      . The argument presented is that DHSF's delay in asserting its claim against Knight constitutes a waiver of its right to arbitrate that claim, not a waiver of the claim itself under general principles of state law.


source: Caselaw Access Project

author: BOLIN, Justice.

license: Public Domain

text:
    Ex parte Raphael Jermine LANDRUM. (In re Raphael Jermine Landrum, v. State of Alabama).
    1090119.
    Supreme Court of Alabama.
    Aug. 27, 2010.

      Jennifer P. Clark, Mobile, for petitioner.
    Troy King, atty. gen., and Ferris W. Stephens, asst. atty. gen., for respondent.
   BOLIN, Justice.

Raphael Jermine Landrum petitions this Court for a writ of certiorari to review the Court of Criminal Appeals’ decision affirming, by unpublished memorandum, the trial court’s decision to allow into evidence Landrum’s inculpatory custodial statement. Landrum v. State (No. CR-08-0229, July 24, 2009), 57 So.3d 204 (Ala.Crim.App.2009) (table). We granted certiorari review to consider whether the Court of Criminal Appeals’ decision conflicts with precedent interpreting Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). For the following reasons, we affirm the Court of Criminal Appeals’ judgment.

Facts and Procedural History

Landrum, who was 17 years old at the time of his arrest, was charged with murdering Jimmie McGhee. The trial court denied him youthful-offender status, and Landrum was tried as an adult. The jury found Landrum guilty of the lesser-included offense of manslaughter. See § 13A-6-3(a)(1), Ala.Code 1975. The trial court sentenced Landrum to 20 years, that sentence was split, and he was ordered to serve 5 years in confinement and the balance was suspended, with 4 years’ probation.

During the trial, Landrum filed a motion to suppress an inculpatory statement he had made to Detective Mack Hardeman of the Mobile Police Department. During the hearing on the motion, defense counsel and the State stipulated to the following facts regarding the statements given by Landrum to Detective Hardeman: On the morning of June 4, 2007, around 8:00 a.m., Landrum voluntarily turned himself in at the headquarters of the Mobile Police Department and was arrested. Detective Hardeman advised Landrum of his Miranda rights and attempted to interrogate him, but Landrum refused to give a statement to Detective Hardeman until his parents arrived. When Landrum’s father arrived, Landrum gave a statement denying his involvement in the death of Jimmie McGhee. Law-enforcement officials then transported Landrum to the Mobile Metro Jail. Landrum’s girlfriend contacted Detective Hardeman and informed him that Landrum wanted to speak with him. On the afternoon of June 6, 2007, between 3:00 p.m. and 4:00 p.m., Detective Hardeman arrived at the Mobile Metro Jail and Landrum confessed to having killed Jimmie McGhee.

The following exchange occurred during the hearing:

“[Landrum’s counsel]: I tell you what. Judge, I don’t think it’s going to be— well, it might be. I was going to say I don’t think it’s going to be necessary for testimony. It’s merely going to be a stipulation to the facts. Let’s see if you can stipulate to it. Let’s see if we can stipulate to the factual portion of it. I think we can.
“The first time — This is my understanding. If you go along with it, tell the Judge. The first time that they interrogated Raphael he went down to the headquarters on his own and that was like 3:00 in the morning on January the 4th — I meant June the 4th. It was like 3:00 o’clock in the morning on June the 4th 2007.
“[Prosecutor]: Uh-huh.
“[Landrum’s counsel]: At that point in time when they first attempted to interrogate him, they Mirandized him and he said I don’t want to talk to anybody until my mama or daddy gets down here, okay? So they’ held off. His daddy comes down. Then they interrogate him. This is early — in- the early morning hours of June the 4th. All right. They send him to Metro. He gives a statement. They send him to Metro. Detective Hardeman then hears from Landrum’s girlfriend, Raphael’s girlfriend, says Raphael wants to talk to you. Come down to Metro. So, [Detective Hardeman] goes down there. He gets down there in the afternoon of June 6th 2007. I think it was somewhere in the neighborhood maybe of 3:30 or 4:00 o’clock.
“CPL. HARDEMAN: As best as I can remember, yeah.
“[Landrum’s counsel]: When he goes down there, I don’t have anything in my discovery that tells me or that I see where he re-Mirandized him at that time, and we’re talking about from 3:00 o’clock in the morning on June 4th until somewhere between 3:30 and 4:00 o’clock on the afternoon of June 6th. That’s not a tremendous span of time, I understand but you’ve got to realize we’re dealing with a challenged 17-year-old here. And he may — you may have re-Mirandized him, but it’s not in the transcript. It’s not in the recording or anything where you re-Mirandized him. All you did was tell him that you came down there because his girlfriend called. So, you know, if you re-Miran-dized him—
“CPL. HARDEMAN: I did not re-Mirandize him. I believe when I first walked in, I said, remember the rights I read you before, and I keep the recorder in my pocket and I turned the recorder on. And I don’t know if I said that before or after the statement. I don’t think it’s on the transcribed statement, but I would have said that. Having read someone their rights previously, I don’t always go back and reread them their rights.
“[Landrum’s counsel]: Okay.
“THE COURT: How old was [Land-rum] at the time the statement was taken?
“[Landrum’s counsel]: He was 17.
“CPL. HARDEMAN: Yes, sir.
“[Landrum’s counsel]: And challenged.
“[Prosecutor]: When you say ‘challenged,’ Claude, I mean—
“[Landrum’s counsel]: I think he’s somewhere in the neighborhood of a few points below the line. I think he’s going to be a few points or more below 72. The reason I say that is because I’ve been dealing with him. I’ve dealt with the discovery. I don’t have a certificate from a doctor, but I can just tell you right now—
“THE COURT: That’s alright.
“[Prosecutor]: Judge, when you looked at his record for [youthful-offender status], you can see that he completed school. There is no — He’s not pleading guilty by reason of insanity or anything.
“[LandnmTs counsel]: He quit school in the 8th grade and he never got a GED. I’m not using that as—
“THE COURT: I mean, I think you have to just — That’s not really for me to decide now. I mean, not many people I see down here on the criminal docket have got Phi Beta keys hanging around them necks. So, the legal proposition is if you have a 17-year-old who is properly Mirandized — Did you give him just the regular adult Miranda or did you give him the juvenile Miranda?
“CPL. HARDEMAN: The juvenile Miranda, Your Honor.
“THE COURT: Okay. So, you gave him juvenile Miranda, apparently, early hours a.m. on the 4th. So, 48 hours plus a few later, depending on what time in the afternoon you went down there — Am I doing that right?
“CPL. HARDEMAN: Roughly, 36 hours or 48—
“[Landrum’s counsel]: June 4th to June 5th is 24. 5th to the 6th is 48, and then you’ve got from 3:00 o’clock in the morning on the 6th up till 4:00 in the afternoon. So, that’s almost another— well, it is another 12 hours. That’s what, 60 hours?
“THE COURT: So, if a person is properly juvenile Mirandized, refuses to give a statement unless one of his parents is there, they wait, parent comes, statement is taken on the early morning of the 4th. And then at sometime thereafter, word is received that [Landrum] wants to again talk to the police. They go back and inquire as do you remember the rights I read you before. Yes. Do you still want to talk to me or words to that effect. Yes. And a second statement was taken. So, I guess the legal proposition is what period of time for a juvenile has to lapse before it’s necessary to re-Mirandize them and have them sign waivers, et cetera.”

The hearing continued, with the lawyers making them arguments. Ultimately, the trial court concluded that Landrum’s statement made in the afternoon of June 6 should be not be suppressed.

Discussion

The Fifth Amendment to the United States Constitution provides that “[n]o person ... shall be compelled in any criminal case to be a witness against himself.” U.S. Const. Amend. V. In Miranda, the United States Supreme Court held that the right against self-incrimination “is fully applicable during a period of custodial interrogation.” 384 U.S. at 460. The Supreme Court in Miranda further held that “the right to have counsel present at the interrogation is indispensable to the protection of the Fifth Amendment privilege.... ” 384 U.S. at 469. Before a custodial interrogation, a suspect must be informed of these rights, now commonly referred to as Miranda rights. 384 U.S. at 444 (“Prior to any questioning, the person must be warned that he has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed.”). The Supreme Court in Miranda recognized that “the defendant may waive effectuation of these rights, provided that the waiver is made voluntarily, knowingly, and intelligently.” Id.

Two factors affect the determination of whether a defendant has waived these rights:

“First, the relinquishment of the right must have been voluntary in the sense that it was the product of a' free and deliberate choice rather than intimidation, coercion, or deception. Second, the waiver must have been made with a full awareness of both the nature of the right being abandoned and the consequences of the decision to abandon it. Only if the ‘totality of the circumstances surrounding the interrogation’ reveal both an uncoerced choice and the requisite level of comprehension may a court properly conclude that the Miranda rights have been waived.”

Moran v. Burbine, 475 U.S. 412, 421, 106 S.Ct. 1135, 89 L.Ed.2d 410 (1986). In Wyrick v. Fields, 459 U.S. 42, 48-49, 103 S.Ct, 394, 74 L.Ed.2d 214 (1982), the United States Supreme Court rejected a per se rule requiring police to readvise a suspect of his Miranda rights before questioning him about results of a polygraph examination, when he had requested the polygraph examination and had waived those rights in writing before taking the examination, in favor of a more flexible approach focusing, on the totality of the. circumstances. “[T]he circumstances [had not] changed so seriously that his answers no longer were voluntary, or ... he no longer was making a ‘knowing and intelligent, relinquishment’ of his rights.” Wyrick, 459 U.S. at 47 (quoting Edwards v. Arizona, 451 U.S. 477, 482, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981)). “[T]he questions put to [the defendant] after the examination would not have caused him to forget the rights of which he had been advised and which he had understood moments before.” Wy-rick, 459 U.S. at 49.

The issue in this case is whether the Miranda warnings given to Landrum became stale or were too remote based on the facts of this case.

“It is well settled that once Miranda warnings have been given and a waiver made, a failure to repeat the warnings before a subsequent interrogation will not automatically preclude the admission of the inculpatory response. Fagan v. State, 412 So.2d 1282 (Ala.Crim.App.1982); Smoot v. State, 383 So.2d 605 (Ala.Crim.App.1980).”

Hollander v. State, 418 So.2d 970, 972 (Ala.Crim.App.1982). “Whether Miranda warnings should be given before each interrogation must depend upon the circumstances of each case. The length of time and the events which occur between interrogations are relevant matters to consider.” Jones v. State, 47 Ala.App. 568, 570, 258 So.2d 910, 912 (1972).

“ ‘Once the mandate of Miranda has been complied with at the threshold of the questioning it is not necessary to repeat the warnings at the beginning of each successive interview.’ Gibson v. State, 347 So.2d 576, 582 (Ala.Cr.App.1977). See also Cleckler v. State, 570 So.2d 796 (Ala.Cr.App.1990).
“ ‘An accused may be read the Miranda rights prior to one interrogation but not confess until a later interrogation during which there was no rereading of the Miranda warning. As a general rule, it has been held that Miranda warnings are not required to be given before each separate interrogation of a defendant after an original waiver of the accused’s rights has been made. However, if such a long period of time has elapsed between the original Miranda warning and the subsequent confession that it can be said that, under the circumstances, the accused was not impressed with the original reading of his rights in making the ultimate confession, then the confession should be held inadmissible.’
“C. Gamble, McElroy’s Alabama Evidence, 201.09 (5th ed.1997) (footnotes omitted). See Phillips v. State, 668 So.2d 881, 883 (Ala.Cr.App.1995).”

Powell v. State, 796 So.2d 404, 414 (Ala.Crim.App.1999).

In Ex parte J.D.H., 797 So.2d 1130 (Ala.2001), J.D.H. was arrested and charged with first-degree sodomy and first-degree sexual abuse. Officers advised him of his Miranda rights; he waived those rights, and he agreed to speak with police. He said nothing incriminating, but he agreed to take a polygraph examination. He was placed in jail. Sixteen days later he was brought to the courthouse to take the polygraph examination. The individual who administered the polygraph, an employee of the Alabama Bureau of Investigation, conducted a prepolygraph interview. J.D.H. received no Miranda warnings before that interview, and no one reminded him of his previous waiver. The prepoly-graph interview consisted of a written questionnaire. The questionnaire asked J.D.H. detailed questions about the allegations against him and asked for possible explanations for those allegations. The polygraph éxaminer also spoke with J.D.H., telling J.D.H., as he tells all the persons he examines, that he did not know whether J.D.H. was guilty and that, if he were guilty, he should not to. take the polygraph examination. J.D.H. then told the polygraph examiner that he did not want to take the examination. The examiner called the police investigator back to the examination room at J.D.H.’s request. The investigator then took a statement from J.D.H. that amounted to a confession. At no time was J.D.H. told that the polygraph results would be inadmissible in court, that he still had a right to remain silent, or that he had the right to consult an attorney.

With regard to the amount of time elapsed between the Miranda warnings and the interrogation in J.D.H., this Court stated:

“This Court recognizes that the Court of Criminal Appeals has a line of cases holding that once Miranda warnings have been given and the defendant has made a knowing, intelligent, and voluntary .waiver, a failure to repeat the warnings will not automatically preclude the admission of an inculpatory statement. See Hollander v. State, 418 So.2d 970 (Ala.Crim.App.1982) (between 1 and 1.75 hours passed while police were searching house; no repeat of Miranda warnings); Fagan v. State, 412 So.2d 1282 (Ala.Crim.App.1982) (lapse of 3 1/2 hours did not require a renewed warning); Smoot v. State, 383 So.2d 605 (Ala.Crim.App.1980) (lapse of 30 minutes between the warnings and the statement); Burlison v. State, 369 So.2d 844 (Ala.Crim.App.1979) (lapse of 45 minutes between the reading of Miranda warnings and the taking of a statement did not require a repeat of the warnings); Johnson v. State, 56 Ala.App. 583, 324 So.2d 298 (1975) (three to four days, with a reminder of the warnings); Jones v. State, 47 Ala.App. 568, 258 So.2d 910 (1972) (warning was given one day and statement made the following morning). However, we note that in most- of those cases the time lapse was not more than a few hours. In none of those cases did the lapse exceed a few days without at least a reminder of the warnings. See Johnson v. State, supra.”

797 So.2d at 1131-32. However, this Court in J.D.H. emphasized other circumstances, besides the amount of time, that warranted suppressing the statement. The Court stated:

“The time that passed between the date J.D.H. was given the Miranda warnings and the date he made the confession was 16 days, or 2 weeks and 2 days. It is this Court’s opinion that after two weeks the warnings ordinarily will have lost their efficacy. However, this Court has stated that in determining whether a confession was voluntary a court should look to the totality of the circumstances. McLeod v. State, 718 So.2d 727 (Ala.), on remand, 718 So.2d 731 (Ala.Crim.App.), cert. denied, 524 U.S. 929, 118 S.Ct. 2327, 141 L.Ed.2d 701 (1998). The lapse of time in this case, considered in the context of the circumstances surrounding the confession, required that the evidence regarding that confession be excluded, there being no showing that the defendant had received a new warning before he made the confession.
“The defendant agreed to take a polygraph examination when he was first arrested. The record does not indicate that he had any control over when the exam would be given. On November 22, 1996, J.D.H. was taken from the jail to the courthouse. At the courthouse, he met [the polygraph examiner] and filled out' the prepolygraph written questionnaire. The questions on that form asked specifically about the charges against him and asked him to admit or to deny the allegations and to provide possible explanations. When [the polygraph examiner] reviewed the forms and then ‘advised’ J.D.H. that he should not take the test if he was guilty, [the polygraph examiner] did not tell J.D.H. that the test results were inadmissible. When [the polygraph examiner] advised J.D.H. not to take the test if he was guilty, he did not say that J.D.H. could refuse to take the test by opting to ‘remain silent.’ Nor did [the polygraph examiner] tell J.D.H. that remaining silent was still an option. Instead, when J.D.H. said he did not want to take the test, [the polygraph examiner] told [the investigator] that J.D.H. had ‘confessed.’
“These actions were designed to elicit an incriminating response. See Rhode Island v. Innis, 446 U.S. 291, 292, 100 S.Ct. 1682, 64 L.Ed.2d 297 (1980) (police action constitutes interrogation if the actions or words are ‘reasonably likely to elicit an incriminating response’). These actions overbore any will J.D.H. may have had to remain silent and not incriminate himself. The State argues that because no one promised anything to J.D.H. the actions of [the polygraph examiner] and [the detective] were not coercive. However, their actions were far more coercive and overbearing than a mere mention of leniency. The officers removed J.D.H.’s choice to be silent. They backed him into a corner. If J.D.H. took the test and failed it, [the polygraph examiner] would ‘know’ J.D.H. was guilty; if J.D.H. chose not to take the test, by choosing to remain silent, then [the polygraph examiner] would know that he was guilty. In. fact, [the polygraph examiner] took J.D.H.’s refusal to take the test to be a ‘confession,’ and that refusal was then used to cause him to feel that he had no choice but to confess. [The polygraph examiner] used the defendant’s choosing to remain silent to coerce him into confessing.
“The purpose of a Miranda warning is to ensure that any waiver of the right against self-incrimination is a knowing, intelligent, and voluntary one. There was nothing voluntary about J.D.H.’s waiver of his right to remain silent.”

Ex parte J.D.H., 797 at 1132-33.

Other courts have, in addressing whether Miranda rights have become stale, focused on the circumstances surrounding the interrogation. In Jarrell v. Balkcom, 735 F.2d 1242 (11th Cir.1984), Jarrell confessed to murder, kidnapping, armed robbery, and aggravated assault approximately three hours after receiving his Miranda warnings from a police investigator at city hall. Jarrell was never readvised of his rights, even after being arrested. From the time Jarrell received his Miranda warnings until he confessed, Jarrell was escorted from city hall to police headquarters, where he was interviewed by a police sergeant, driven from headquarters to the district attorney’s office, where a polygraph examination was administered, then driven back to police headquarters, where he was arrested by the same police sergeant, and interrogated for an additional 30 to 45 minutes by the sergeant before confessing. Jarrell argued that the Miranda waimings should have been refreshed and that, therefore, the confession was inadmissible.

“Under the circumstances of this case, we do not view a confession given less than four hours after the issuance of Miranda warnings inadmissible because of the failure to reissue the warnings. Although Jarrell was not technically in custody until he was arrested, he was a suspect from the moment he received his warnings. The record reflects that the warnings given were complete and that Jarrell understood them. Cf. Edwards v. Indiana, 412 N.E.2d 223, 225-26 (Ind.1980) (where defendant, not yet a suspect, was given orally his Miranda warnings and record contained no evidence of content of oral advisement, confession given 5 hours later when defendant had become a suspect not admissible). Furthermore, the fact that Jarrell confessed to a state officer (Blannott) other than the one who administered the Miranda warnings (Bishop), does not render the warnings insufficient, especially since, before interrogating Jarrell, Blannott asked Bishop in Jarrell’s presence whether petitioner had received his Miranda warnings. (T.T. 545). See State v. Gallagher, 36 Ohio App.2d [2]9, 301 N.E.2d 888 (1973) (change from one state interrogator to another insufficient break to require fresh warnings). Cf. United States v. Hopkins, 433 F.2d 1041 (5th Cir.1970), cert. denied, 401 U.S. 1013, 91 S.Ct. 1252, 28 L.Ed.2d 550 (1971) (change from state police officer questioning defendant about state crime to federal officer questioning about federal crime; no new warnings required); Mitchell v. State, 3 Tenn.Cr.App. 153, 458 S.W.2d 630 (1970) (questioning regarding different crime occurred on following day; no new warnings required). We conclude that no violation of petitioner’s rights occurred by the failure to reissue the Miranda warnings at the time of arrest because the totality of the facts do not reflect that Jarrell was unaware of his rights, that he was pressured, or that he was mentally deficient or naive about the process that was under way. Additionally, Jarrell had had previous experience with law enforcement officers where his rights were explained.”

735 F.2d at 1254.

In Martin v. Wainwright, 770 F.2d 918, 930 (11th Cir.1985), modified on other grounds, 781 F.2d 185 (11th Cir.1986), the United States Court of Appeals for the Eleventh Circuit determined that the defendant’s Miranda rights had not been violated when he made his second confession, even though the defendant had waived his Miranda rights one week earlier and the police did not fully readvise him of his rights. 770 F.2d at 930-31. Before the second interrogation, the defendant was given a detailed reminder of his Miranda rights. In reaching its conclusion, the court relied on the fact that the defendant had been “fully warned, and knowingly and intelligently waived his Miranda rights,” and that, during the second interrogation, he “indicated that he understood those rights.” 770 F.2d at 930.

United States v. Jones, 147 F.Supp.2d 752 (E.D.Mich.2001), involved a defendant who was arrested following a search of an automobile in which he was a passenger. He was read his Miranda rights at 11:23 p.m. on February 14, 2001, by a police sergeant, and he waived those rights. .He gave inculpatory statements to the sergeant late on the night of February 14 or early in the morning of February 15. The defendant next met with a Drug. Enforcement Administration (“DEA”) Task Force agent on February 15, 2001, between 6:00 and 7:00 p.m. The DEA agent did not think the defendant’s Miranda rights were reread to him before the second interview. With regard to whether the defendant’s Miranda warning had become stale, the court stated:

“The. question thus becomes whether the passage of time between Defendant’s being provided with his Miranda rights on February 14 and his interview with [the DEA agent] on February 15 rendered his Miranda warnings stale. There is no blanket rule for when police must remind a suspect of his Miranda rights, and the mere elapse of time does not necessarily dictate.that police give fresh warnings. See United States v. Weekley, 130 F.3d 747, 751 (6th Cir.1997). Instead, the inquiry comes down to two questions: (1) whether, when he received his Miranda warnings, Defendant knew and understood his rights; and (2) whether anything happened between the warnings and Defendant’s in-culpatory statements, including the passage of time or any other intervening event, that rendered Defendant unable to fully consider the effect of an exercise or waiver of those rights before speaking with police. United States v. Vasquez, 889 F.Supp. 171, 177 (M.D.Pa.1995).
“[The police sergeant’s] uncontradict-ed testimony was that Defendant understood his rights under Miranda, as evinced by Defendant’s signing of the Miranda waiver. The Court finds this testimony credible and concludes that Defendant knew and understood his rights when he received his Miranda warnings.
“More than eighteen hours had passed, however, between the Miranda warnings that [the police sergeant] gave Defendant on February 14 and Defendant’s interview with [the DEA agent] on February 15. During that period, there was an interruption in the continuity of the interrogation, as [the police sergeant] had ceased his questioning at 1:13 a.m. on February 15 and [the DEA agent] did not begin his interview earlier than 6:00 p.m. (Hrg. Tr. at 90:8.) There was a change in location between the interview that [the police sergeant] conducted and the interrogation done by [the DEA agent]. The former was at the police station; the latter was at the federal building. (Hrg. Tr. 89, 105.). [The DEA agent] who conducted the interview of Defendant on February 15, was not the same officer who administered the warnings on February 14. All of these factors militate toward the conclusion that Defendant could not fully appreciate a waiver of his Miranda rights when he spoke to [the DEA agent] on February 15 and that his statements to [the DEA agent] must therefore be suppressed. See Commonwealth v. Dixon, 475 Pa. 365, 380 A.2d 765, 767-69 (1977). The Court apprehends no factors militating toward the opposite conclusion.
“Considering the totality of the circumstances, the Court holds that Defendant’s Miranda warnings were stale when he spoke to [the DEA agent] on February 15. The Court will order suppressed any inculpatory statements that Defendant made to [the DEA agent] during their interview on February 15.”

147 F.Supp.2d at 761-62.

In United States v. Pruden, 398 F.3d 241, 246-47 (3d Cir.2005), the defendant was arrested by Alcohol, Tobacco, and Firearm (“ATF”) agents at a routine meeting with his probation officer on January 14, 2003. He was questioned by two ATF agents. Before questioning, the defendant was asked if he was willing to talk, and, upon receiving an affirmative answer, one of the agents read the defendant his Miranda rights. The defendant indicated that he understood his rights and did not ask a question or request a lawyer. The defendant agreed to answer the. ATF agents’ questions. The ATF agents questioned the defendant for about half an hour. He admitted that he had gone to a gun shop and that he examined some guns, but he denied that either of the people with him had attempted to buy guns for him. The agents took the defendant to a federal detention center, where he spent the night. The next morning, January 15, 2003, one of the ATF agents who had originally questioned the defendant and another ATF agent drove the defendant from the jail to the courthouse for an initial hearing. The original ATF agent explained the booking procedures to the defendant and informed him that the prosecutor planned to ask the magistrate judge to detain him before trial. The original ATF agent indicated to the defendant that, if there was anything else he had to say, he should say it because, after the initial appearance, it would be too late. The original ATF agent then reminded the defendant that had read him his Miranda rights and asked the defendant if he remembered his rights. The defendant agreed to answer questions during the ride to the courthouse. The defendant then made statements that differed from his original statements. The defendant later argued that his second waiver on January 15 was not knowing or intelligent The court addressed the issue of stale Miranda warnings as follows:.

“[T]he question whether a suspect needs to be warned when questioning resumes boils down to whether the suspect can and does effectively waive his Miranda rights at the second questioning. As Judge McClure has aptly put it,
“ ‘the question of whether a time lapse renders Miranda warnings “stale” may be reduced to answering two questions: (1) At the time the Miranda warnings were provided, did the defendant know and understand his rights? (2) Did anything occur between the warnings and the statement, whether the passage of time or other intervening event, which rendered the defendant unable to consider fully and properly the effect of an exercise or waiver of those rights before making a statement to law enforcement officers?’
“United States v. Vasquez, 889 F.Supp. 171, 177 (M.D.Pa.1995). We now adopt this eminently sensible framework for analyzing the effect of delays between Miranda warnings and custodial statements.
“The first question is whether Pruden knew and understood his rights at the time the Miranda warnings were given on January 14. As explained above, we think that the answer to this question must be yes. The second question -is whether the passage of time or an intervening event rendered Pruden unable to effectively waive his Miranda rights when he was questioned again the following morning. A significant amount of time passed between the Miranda warnings and Pruden’s January 15 statement: the record does not reflect the exact amount, but it seems that Pru-den was arrested in the afternoon on January 14 and questioned again in the morning of January 15, suggesting a time lapse of perhaps twenty hours. This is longer than the periods involved in [Guam v.] Dela Pena[, 72 F.3d 767 (9th Cir.1995) ] (fifteen hours) and Vasquez (three hours), and does seem to be at the upper end . of the permissible range. On the other hand, Agent Kusheba specifically reminded Pruden of his rights before resuming questions, and Pruden responded that he understood his rights, did not ask Kusheba to repeat them, and was willing to answer questions.
“Beyond the passage of time, we can find no other relevant event that could have lessened the effectiveness of Pru-den’s Miranda waiver.- There are no allegations of mistreatment, intimidation, or deprivation of food or sleep during the intervening detention. On both January 14 and January 15, Pruden was questioned by the same ATF Agent, Kusheba, about the same offenses. The charges were not escalating, see United States v. Marc, Crim. No. 96-76-SLR (D.Del.1997) (suppressing statement taken 10 hours after Miranda warnings when suspect was arrested and warned for misdemeanor drug possession, but later questioned about felony firearm charges), and there were no surprises that might have confused Pruden. Nor is there any reason to think that the circumstances of the questioning — in a police car on the way to court — were particularly intimidating. Pruden points out that he had ‘literally no choice but to stay with the agents’ during this questioning. That is true, but we cannot see how that fact distinguishes this questioning from any other custodial interrogation.
“Finally, Pruden alleges that Agent Kusheba deceived him into waiving his rights by suggesting that he should make a statement before the initial appearance, at which point ‘it would be too late.’ Agent Kusheba'apparently meant that, if Pruden had nothing else to say before the appearance, the prosecutor would move to have him detained before trial. As this appears to have been true, it is difficult to see how it constitutes deception. Furthermore, there is no evidence that Kusheba’s statement coerced Pruden, who unhesitatingly agreed to talk.
“The relatively long time between the Miranda warnings and the statement at issue, the change of location, the differences between Pruden’s January 14 and 15 statements, and the lack of independent corroboration of Pruden’s waiver are considerations that might counsel against finding an effective Miranda waiver during the January 15 questioning. These factors make this a fairly close case. Ultimately, however, we think that the changed circumstances were not enough to impair Pruden’s ability to make a knowing and voluntary Miranda waiver. Because Agent Kusheba reminded Pruden of his Miranda rights, albeit without repeating those rights in full, and because Pruden plainly remembered the warnings and unhesitatingly agreed to talk, we hold that his statement was made pursuant to an effective Miranda waiver, and should not have been suppressed.”

Pruden, 398 F.3d at 246^48.

In the present case, 60 hours had elapsed between the time Landrum had been given his juvenile Miranda warnings and the time he confessed. Detective Hardeman had given Landrum the Miranda warnings in the early morning of June 4, 2007, after Landrum turned himself into the police department. Nothing indicated that Landrum did not understand the Miranda rights read to him. Landrum refused to talk until one of his parents arrived. Landrum’s father arrived, and Landrum denied being involved in McGhee’s death. Landrum was then taken from the police department to the police station. Landrum’s girlfriend contacted Detective Hardeman and told him that Landrum wanted to speak with him. On the afternoon of June 6, 2007, Detective Hardeman spoke with Landrum and Landrum confessed to the killing. Detective Hardeman did not advise Landrum of his Miranda rights again when he met with Landrum on the afternoon of June 6, 2007. Instead, Detective Hardeman reminded Landrum that he had read the Miranda rights to him earlier. Detective Hardeman stated that he did not know if he reminded Landrum of his Miranda lights “before or after the [second] statement.” At first glance, this statement appears to be internally inconsistent — i.e., a reminder of Miranda warnings after a statement is taken would be a useless gesture. However, the more reasonable interpretation taken in the context of Detective Hardeman’s testimony, and the one apparently taken by the trial court, is that Detective Hardeman reminded Landrum of his Miranda rights before he turned on his tape recorder. This is supported by the fact that, if he reminded Landrum after the statement, then the reminder would have appeared in the statement. That the trial court made this determination is supported by the court’s statement at the conclusion of the hearing on the motion to suppress:

“[THE COURT]: So, if a person is properly juvenile Mirandized, refuses to give a statement unless one of his parents is there, they wait, parent comes, statement is taken on the early morning of the 4th. And then at sometime thereafter, word is received that [Landrum] wants to again talk to the police. They go back and inquire as do you remember the rights I read you before. Yes. Do you still want to talk to me or words to that effect. Yes. And a second statement was taken. So, I guess the legal proposition is what period of time for a juvenile has to lapse before it’s necessary to re-Mirandize them and have them sign waivers, et cetera.”

Since the tape-recorded statement does not contain Detective Hardeman’s reminder regarding the Miranda warning, then Detective Hardeman apparently reminded Landrum of his Miranda rights before turning on his tape recorder and taking his statement.

Based on the totality of the circumstances, we conclude that Landrum’s Miranda warnings were not stale when he spoke to Detective Hardeman on June 6, 2007. Landrum understood his Miranda rights on June 4, 2007, when those rights were originally read to him. Pursuant to those rights, he refused to make a statement until one of his parents arrived at the police station. Although 60 hours elapsed from the time Landrum was first read his rights, it was Landrum that reinitiated contact with the same officer who had originally interviewed him on June 4, 2007. There was a change in the location of the interviews from the police department to the city jail, and. Landrum’s original denial of involvement changed to an admission that he was involved. Landrum was reminded of his Miranda rights. We cannot say that the Miranda warnings became so stale as to fail to protect Land-rum from the coerciveness inherent in a custodial interrogation.

Based on the foregoing, we affirm the judgment of the Court of Criminal Appeals.

AFFIRMED.

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

MURDOCK, J., concurs in the result.

      . Rule 11(B) of the Alabama Rules' of Juvenile Procedure, effective at the time of Landrum’s arrest, and since rescinded, lists the “Rights of a Child Before Being Questioned While in Custody.” The interrogator must inform a juvenile of these rights before questioning him on "anything concerning the charge” for which he was arrested. They include "the right to'communicate” with the child's counsel, parent, or guardian and, if he or she is not present, "if necessary, reasonable means will be provided for the child to do so.” These rights are now provided for in § 12-15-202, Ala.Code 1975, a part of the new Juvenile Code.

      .
      "The totality-of-the-circumstances approach is adequate to determine whether there has been a waiver even where interro-gallon of juveniles is involved. We discern no persuasive reasons why any other approach is required where the question is whether a juvenile has waived his rights, as opposed to whether an adult has done so. The totality approach permits — indeed, it mandates — inquiry into all the circumstances surrounding the interrogation. This includes evaluation of the juvenile's age, experience, education, background, and intelligence, and into whether he has the capacity to understand the warnings given him, the nature of his Fifth Amendment rights, and the consequences of waiving those rights."

        Fare v. Michael C., 442 U.S. 707, 725, 99 S.Ct. 2560, 61 L.Ed.2d 197 (1979).

      . The present case is distinguishable from Ex parte Williams, 31 So.3d 670 (Ala.2009), in which the defendant, who had invoked his Fifth Amendment right to counsel during interrogation, had raised the issue whether a third party could initiate further interrogation by the police.


author: COBB, Chief Justice.

text:
    CUSTOM PERFORMANCE, INC. v. Horace DAWSON, individually and as administrator of the estate of Tammie Dawson, deceased.
    1090017.
    Supreme Court of Alabama.
    Aug. 27, 2010.

      John Martin Galese and Cassandra J. Harris of Galese & Ingram, P.C., Birmingham, for appellant.
    Jacqueline C. Smoke of Thomas, Means, Gillis & Seay, P.C., Birmingham, for appel-lee.
   COBB, Chief Justice.

This is an appeal from the order of the Jefferson Circuit Court, granting in part and denying in part the motion to compel arbitration filed by Custom Performance, Inc. We affirm in part, reverse in part, and remand.

Facts

Custom Performance, Inc., a motorcycle-part dealer in Bessemer, also has a service department in which it repairs motorcycles and installs motorcycle parts. According to Johnny Johnson, the president of Custom Performance,

“the service department at [Custom Performance] uses trained technicians and repairs are made to motorcycles, including [the motorcycle involved in the accident underlying this case] using parts and supplies traveling into Alabama from other states, and utilizing tools and instruments provided to the dealership from out of state entities.”

On May 27, 2007, Horace Dawson purchased from Custom Performance two new motorcycle tires. Horace paid Custom Performance to install the motorcycle tires on his motorcycle in its service department. In conjunction with the installation agreement, Horace signed the following arbitration agreement:

“In connection with the undersigned’s acquisition or attempted acquisition of the below described product, by lease, purchase or otherwise, the undersigned and [Custom Performance] stipulate and agree, in connection with the resolution of any dispute arising out of or relating to or concerning all of the contract(s) and agreements entered into by the parties and relationships resulting therefrom, as follows: .... The undersigned agree that all disputes not barred by applicable statutes of limitations, resulting from or arising out of or relating to or concerning the transaction entered into (including but not limited to any matters taking place either before or after the parties entered into this agreement, including any prior agreements or negotiations between the parties; the terms of this agreement and all clauses herein contained, their breadth and scope, and any term of any agreement contemporaneously entered into by the parties; the past, present, and future condition of the product, the conformity of the product to any contract description the representations, promises, undertakings, warranties or covenants made by [Custom Performance], or otherwise or dealing with the product; ... and all claims or disputes as to any body and/or mechanical repairs now or hereafter made to the product) shall be submitted to BINDING ARBITRATION pursuant to the provisions of 9 U.S.C. § 1, et seq., and according to the Commercial Dispute Resolution Procedures of the American Arbitration Association (the AAA) then existing in the County where [Custom Performance] maintains its principle place of business.... THE UNDERSIGNED HAVE AGREED TO WAIVE THE UNDERSIGNED(S) [sic] RIGHT TO A TRIAL BY JUDGE OR JURY AND THAT ARBITRATION SHALL BE IN LIEU OF ANY CIVIL LITIGATION IN ANY COURT AND IN LIEU OF ANY TRIAL BY JUDGE OR JURY....
“Description of product: SERVICE WORK.”

(Capitalization in original.) In late June 2007, Horace purchased a motorcycle helmet from Custom Performance.

On July 1, 2007, Horace and his wife, Tammie, were riding Horace’s motorcycle on Interstate 65 in Alabama when, according to Horace, the rear motorcycle tire deflated suddenly without warning. As a result, Horace contends, he lost control of the motorcycle, and both he and Tammie were thrown from the motorcycle and seriously injured. After the accident, Tammie was transported to a hospital in Montgomery, where she died on July 6, 2007, from head trauma" suffered in the motorcycle accident. According to Horace, at the time of the motorcycle accident, Tammie was wearing the motorcycle helmet Horace had purchased from Custom Performance in June.

Tammie was not present when Horace purchased the motorcycle tires or when he purchased the motorcycle helmet.

Procedural History

On June 19, 2009, Horace filed a complaint in the Jefferson Circuit Court, Bessemer Division, on his own behalf and as administrator of Tammie’s estate. Horace’s complaint named Custom Performance; HongJin Crown America, Inc., the manufacturer of the motorcycle helmet Tammie was wearing; and Sullivans, Inc., a retail distributor of motorcycle helmets from whom Custom Performance had acquired the helmet Horace purchased, as defendants. In the complaint, Horace alleged that “Custom Performance failed to properly install the subject rear tire on the motorcycle.” With regard to the motorcycle helmet, Horace, individually and as administrator of Tammie’s estate, asserted claims against Custom Performance under the Alabama Extended Manufacturer’s Liability Doctrine, as well as claims of negligence, wantonness, failure to warn, and breach of warranty. With respect to the sale and installation of the motorcycle tires, Horace, individually and as administrator of Tammie’s estate, claimed that Custom- Performance negligently or wantonly installed the tires and that Custom Performance failed to warn that it had not replaced the tire valve stems during installation.

On July 31, 2009, Custom Performance filed a motion to dismiss without prejudice and compel arbitration. On September 17, 2009, the trial court granted the motion to compel arbitration with regard to Horace’s personal claims against Custom Performance arising out of the sale and installation of the motorcycle tires. The trial court denied the motion to compel arbitration of the remaining claims against Custom Performance, i.e., Horace’s personal claims with regard to the motorcycle helmet and all the claims asserted on behalf of Tammie’s estate.

On October 2, 2009, Custom Performance appealed from the trial court’s order denying the motion to compel arbitration in part. Horace did not cross-appeal.

Standard of Review
“We review de novo the trial court’s grant or denial of a motion to compel arbitration. Bowen v. Security Pest Control, Inc., 879 So.2d 1139, 1141 (Ala.2003). Initially, 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 involving interstate commerce. Polaris Sales, Inc. v. Heritage Imports., Inc., 879 So.2d 1129, 1132 (Ala.2003). The moving party ‘must “ ‘produce some evidence which tends to establish its claim.”” Wolff Motor Co. v. White, 869 So.2d 1129, 1131 (Ala.2003) (quoting Jim Burke Auto., Inc. v. Beavers, 674 So.2d 1260, 1265 (Ala.1995), quoting in turn In re American Freight Sys., Inc., 164 B.R. 341, 345 (D.Kan.1994)). Once the moving party has properly supported his or her motion to compel arbitration, the burden then shifts to the nonmovant to present evidence tending to show that the arbitration agreement is invalid or inapplicable to the case. Polaris Sales, 879 So.2d at 1132.”

Edwards v. Costner, 979 So.2d 757, 761 (Ala.2007).

Analysis

I. Enforceability of the Written Arbitration Agreement

We note that predispute arbitration agreements cannot be specifically enforced under Alabama law. See Ala.Code 1975, § 8-1-41(3) (“The following obligations cannot be specifically enforced: ... An agreement to submit a controversy to arbitration .... ”).

“However, through the combined holdings of several decisions of the United States Supreme Court, the application of [Alabama’s prohibition on the specific enforcement of written arbitration contracts] has been relegated to the rare case of a purely intrastate transaction that could not be said to ‘involve commerce’ in any way. See Southland Corp. v. Keating, 465 U.S. 1, 16, 104 S.Ct. 852 (1984); Allied-Bruce Terminix Cos. v. Dobson, 513 U.S. 265, 115 S.Ct. 834 (1995); and Citizens Bank v. Alafabco, Inc., 539 U.S. 52, 123 S.Ct. 2037 (2003).”

Birmingham News Co. v. Horn, 901 So.2d 27, 44 (Ala.2004), overruled on other grounds, Hereford v. D.R. Horton, Inc., 13 So.3d 375 (Ala.2009), and Horton Homes, Inc. v. Shaner, 999 So.2d 462 (Ala.2008). Instead, the Federal Arbitration Act (“the FAA”), 9 U.S.C. § 1 et seq., preempts Alabama law and provides for the specific enforcement of “[a] written provision in ... a contract evidencing a transaction involving commerce.” 9 U.S.C. § 2.

It is undisputed that Horace entered into a written arbitration agreement with Custom Performance in conjunction with Custom Performance’s agreement ■ to install new tires on Horace’s motorcycle. Horace contends, however, that the agreement does not evidence a transaction involving commerce. Therefore, to determine whether the arbitration agreement may be specifically enforced by the courts of this state, we must determine whether the transaction represents a “rare case of a purely intrastate transaction that could not be said to ‘involve commerce’ in any way.” Birmingham News, 901 So.2d at 44.

“[T]he term ‘involving commerce’ in the FAA [is] the functional equivalent of the more familiar term ‘affecting commerce’ — words of art that ordinarily signal the broadest permissible exercise of Congress’ Commerce Clause power.” Citizens Bank v. Alafabco, Inc., 539 U.S. 52, 56, 123 S.Ct. 2037, 156 L.Ed.2d 46 (2003) (quoting Allied-Bruce Terminix Cos. v. Dobson, 513 U.S. 265, 273-74, 115 S.Ct. 834, 130 L.Ed.2d 753 (1995)). Congress’s Commerce Clause power reaches “transactions (1) that use the channels of interstate commerce, (2) that involve the instrumentalities of interstate commerce, or persons or things in interstate commerce, or (3) that involve general activities having a substantial effect on interstate commerce.” McKay Bldg. Co. v. Juliano, 949 So.2d 882, 885 (Ala.2006). “Congress’s Commerce Clause power may reach a transaction even if the individual transaction at issue does not have a ‘substantial effect’ on interstate commerce if ‘in the aggregate the economic activity in question would represent “a general practice ... subject to federal control.” ’ ” Id. (quoting Citizens Bank, 539 U.S. at 56-57, quoting in turn Mandeville Island Farms, Inc. v. American Crystal Sugar Co., 334 U.S. 219, 236, 68 S.Ct. 996, 92 L.Ed. 1328 (1948)).

We find it unnecessary to consider every specific way in which the arbitration agreement between Custom Performance and Horace can be said to evidence a transaction that “involv[es] commerce,” 9 U.S.C. §■ 2. The economic activity in question — an agreement between a customer and a dealer pursuant to which the dealer would install new tires on the customer’s motorcycle using parts, tools, and supplies obtained through interstate commerce — is unquestionably a commercial transaction involving a necessary part of a motorcycle, which is inherently an instrumentality of commerce; the activity bears directly on the safety and efficiency of a major channel of interstate commerce — the interstate highways; and, in the aggregate, installation of motorcycle tires substantially affects interstate commerce. See Wolff Motor Co. v. White, 869 So.2d 1129, 1132 n. 3 (Ala.2003) (“ ‘Instrumentalities of interstate commerce — e.g., cars, trains, airplanes, see [United States v.] Bishop, 66 F.3d [569,] 588 [ (3d Cir.1995) ] — retain the inherent potential to affect commerce, unlike other objects of regulation. Thus, even if a particular activity involving an instrumentality might not, through repetition elsewhere, substantially affect interstate commerce during the moment of regulation, the activity still falls within [the reach of the Commerce Clause] because the object of regulation contains the unique capacity to affect commerce at some future point in time.’ ” (quoting United States v. McHenry, 97 F.3d 125, 126-27 (6th Cir.1996))); see also United States v. Ballinger, 312 F.3d 1264, 1269 (11th Cir.2002) (“The instrumentalities of interstate commerce are those ‘persons or things’ that move in interstate commerce, including all cars and trucks, ships, aircraft and anything else that travels across state lines, as do interstate shipments.”); Gibbs v. Babbitt, 214 F.3d 483, 490-91 (4th Cir.2000) (“The term ‘channel of interstate commerce’ refers to, inter alia, ‘navigable rivers, lakes, and canals of the United States; the interstate railroad track system; the interstate highway system; ... interstate telephone and telegraph lines; air traffic routes; television and radio broadcast frequencies.’” (quoting United States v. Miles, 122 F.3d 235, 245 (5th Cir.1997), cert. denied, 523 U.S. 1011, 118 S.Ct. 1201, 140 L.Ed.2d 329 (1998))). Cf. Katzenbach v. McClung, 379 U.S. 294, 302, 85 S.Ct. 377, 13 L.Ed.2d 290 (1964) (“This Court has held time and again that this [Commerce Clause] power extends to activities of retail establishments, including restaurants, which directly or indirectly burden or obstruct interstate commerce.”).

Accordingly, the arbitration agreement between Horace and Custom Performance evidences a transaction that is within the reach of Congress’s Commerce Power and the FAA, and it may be specifically enforced in Alabama.

II. Horace’s Claims Relating to the Helmet and the Scope of the Arbitration Agreement

It is undisputed that Horace did not execute an arbitration agreement as part of the June 2007 transaction in which he purchased the motorcycle helmet Tammie was wearing at the time of the accident. However, Custom Performance argues that Horace’s claims pertaining to the motorcycle helmet are encompassed within the arbitration agreement Horace executed in May 2007 in conjunction with the installation of the tires on Horace’s motorcycle.

A trial court may not order arbitration of the issue of arbitrability except upon “ ‘ “clea[r] and unmistakable]” evidence’ ” that the parties agreed to arbitrate that issue. Commercial Credit Corp. v. Leggett, 744 So.2d 890, 892 (Ala.1999) (quoting First Options of Chicago, Inc. v. Kaplan, 514 U.S. 938, 944, 115 S.Ct. 1920, 131 L.Ed.2d 985 (1995)). The record in this case contains such evidence in the clear and unambiguous language of the arbitration agreement itself. Cf. Jim Burke Auto., Inc. v. McGrue, 826 So.2d 122, 132 (Ala.2002) (holding that the plain language of an arbitration agreement stated the parties’ intent to arbitrate the question of arbitrability); see also Strickland v. Rahaim, 549 So,2d 58, 60 (Ala.1989) (“In order to ascertain the intention of the parties, the clear and plain meaning of the terms of the contract are to be given effect, and the parties are presumed to have intended what the terms clearly state.”).

The arbitration agreement provides:

“The undersigned agree that all disputes ... resulting from or arising out of or relating to or concerning the transaction entered into (including but not limited to ... the terms of this agreement and all clauses herein contained, their breadth and scope ...) shall be submitted to BINDING ARBITRATION.”

(Capitalization in original.)

It is undisputed that Horace assented to the agreement containing the language quoted above. By its clear terms, that language plainly indicates that Custom Performance and Horace intended to arbitrate the issue of arbitrability. Cf. Jim Burke, supra (holding that similar language evidenced an intent to arbitrate a dispute over the arbitrability of claims); Ex parte Waites, 736 So.2d 550, 553 (Ala.1999) (“The arbitration provision ... states that the parties agree to arbitrate any disputes ‘resulting from or arising out of the sale transaction entered into (including but not limited to: the terms of this agreement and all clauses herein contained, their breadth and scope, and any term of any agreement contemporaneously entered into by the parties ...)’ (emphasis added). This language expresses a clear intent to submit to arbitration the issue of arbitrability ... ”). Therefore, the trial court erred in not compelling the parties to arbitrate their dispute over whether Horace’s claims related to the helmet are subject to arbitration.

III. Arbitrability of the Claims Asserted By Tammie’s Estate

It is undisputed that Tammie was not a party to the arbitration agreement Horace signed in conjunction with the installation of the motorcycle tires. “ ‘ “[Arbitration is a matter of contract, and a party cannot be required to submit to arbitration any dispute which he has not agreed so to submit.” ’ ” Central Reserve Life Ins. Co. v. Fox, 869 So.2d 1124, 1127 (Ala.2003) (quoting AT & T Techs., Inc. v. Communications Workers of America, 475 U.S. 643, 648, 106 S.Ct. 1415, 89 L.Ed.2d 648 (1986), quoting in turn United Steelworkers of America v. Warrior & Gulf Navigation Co., 363 U.S. 574, 582, 80 S.Ct. 1347, 4 L.Ed.2d 1409 (1960)). “Generally, ‘a nonsignatory to an arbitration agreement cannot be forced to arbitrate [his] claims.’ ” Edward D. Jones & Co. v. Ventura, 907 So.2d 1035, 1042 (Ala.2005) (quoting Cook’s Pest Control, Inc. v. Boykin, 807 So.2d 524, 526 (Ala.2001)). However, there are exceptions to this general rule.

A. Third-PaHy-Beneficianj Status

A nonsignatory can be bound to an arbitration agreement if “the contracting parties intended, upon execution of the contract, to bestow a direct, as opposed to incidental benefit upon the third party.” Dunning v. New England Life Ins. Co., 890 So.2d 92, 97 (Ala.2003). See also Edwards v. Costner 979 So.2d 757, 763 (Ala.2007). “[I]n order for a person to be a third-party beneficiary of a contract, the contracting parties must have intended to bestow benefits on third parties.” Locke v. Ozark City Bd. of Educ., 910 So.2d 1247, 1251 (Ala.2005). Custom Performánee has presented no evidence indicating that, at the time it and Horace entered into a contract containing an arbitration agreement, they intended to bestow a direct benefit on Tammie. Edwards v. Costner, 979 So.2d at 761 (“The [party moving for arbitration] ‘must “‘produce some evidence which tends to establish its claim.’ ” ’ ” (quoting Wolff Motor Co., 869 So.2d at 1131, quoting in turn Jim Burke Auto., 674 So.2d at 1265, quoting in turn American. Freight Sys., Inc. v. Consumer Prods. Assocs. (In re American Freight Sys., Inc.), 164 B.R. 341, 345 (D.Kan.1994))). Thus, the third-party-beneficiary exception is not applicable to the claims asserted by Tammie’s estate.

B. Equitable Estoppel

“A plaintiff cannot simultaneously claim the benefits of a contract and repudiate its burdens and conditions.” Southern Energy Homes, Inc. v. Ard, 772 So.2d 1131, 1134 (Ala.2000). Thus, this Court has developed a second exception to the general rule that a nonsignatory cannot be forced to arbitrate. Regardless of whether a nonsignatory is in fact a'third-party beneficiary, the nonsignatory is treated as a third-party beneficiary — and is equitably estopped from avoiding arbitration — when he or she asserts legal claims to enforce rights or obtain benefits that depend on the existence of the contract that contains the arbitration agreement. See, e.g., Capitol Chevrolet & Imports, Inc. v. Grantham, 784 So.2d 285, 289 (Ala.2000) (“[T]o maintain her claims, [the nonsignatory plaintiff] must be treated as a third-party beneficiary- [A] third-party beneficiary is afforded all the rights and benefits, and has imposed upon him or her the burdens, of a contract, including those benefits and burdens associated with arbitration. Ex parte Stamey, 776 So.2d 85 (Ala.2000). Therefore, [the nonsignato-ry] cannot base her claims on the contract executed between her husband arid Capitol Chevrolet, and at the same time seek to avoid the arbitration agreement. See Infiniti of Mobile, Inc. v. Office, 727 So.2d 42 (Ala.1999); Delta Constr. Corp. v. Gooden, 714 So.2d 975 (Ala.1998); and Ex parte Dyess, 709 So.2d 447 (Ala.1997).”); Infiniti of Mobile, Inc. v. Office, 727 So.2d 42, 48 (Ala.1999) {“Under these circumstances, [the nonsignatory] is in the position of basing her fraud[-in-the-inducement] and breach-of-warranty claims on the contract ... while at the same time seeking ... to avoid the operation of [an arbitration] provision in that contract.... This she cannot do.” (emphasis added)).

However, as this Court explained in Cook’s Pest Control, Inc. v. Boykin, 807 So.2d 524, 526-27 (Ala.2001), to the extent that the nonsignatory’s claims do not rely ón the existence of the contract containing the arbitration provision, the nonsignatory is not estopped from avoiding arbitration:

“Under the facts of this present case, it appears [the nonsignatory] relies on theories of recovery that do not depend upon the existence of the contract [containing an arbitration provision]. To the extent that she can prove the prima facie elements of her case against [the defendant signatory] without reference to the contract between [the signatories], she is not bound by the arbitration agreement.”

(Emphasis added.) Accordingly, to determine whether Tammie’s estate is equitably estopped from avoiding the contractual burden of arbitration, we must first consider whether, under the circumstances of this case, any of the legal claims asserted by Tammie’s estate are dependent on the existence of the contract that contains the arbitration agreement. Custom Performance argues that Horace, on behalf of Tammie’s estate, asserts “claims of breach of warranty, failure to warn, and negligence in connection with the sale and installation of the subject tires,” Custom Performance’s brief, at 24, and that each of those claims is dependant on the existence of the contract that contains the arbitration agreement. We note, however, that Horace, as administrator of Tammie’s estate, does n'ot assert a breach-of-warranty claim in connection with the sale and installation of the tires. We also note that, in the abstract, neither negligence nor negligent, wanton, or willful failure to warn is necessarily dependant on the existence of a contract. See Ex parte Chevron Chem. Co., 720 So.2d 922, 924-25 (Ala.1998) (setting forth the elements of a claim of negligent failure to warn); Martin v. Arnold, 643 So.2d 564 (Ala.1994) (listing the elements of a claim of negligence). Cf. Cook’s Pest Control, supra (holding that a nursing-home resident injured by fire ants in a nursing home was not required to arbitrate claims of negligence and wantonness against a pest-control company because the claims of the nursing-home resident were not dependent on the existence of the service contract between the pest-control company and the nursing home).

In Infiniti, sttpra, and Cook’s Pest Control, supra, this Court reached seemingly opposite results after analyzing whether, under the particular circumstances of each case, the plaintiffs’ specific causes of action in those cases were dependent on the existence of a contract containing an arbitration provision. Custom Performance cites both cases. However, Custom Performance does not offer any analysis of the particular circumstances of this case or any discussion of whether any of the causes of action Tammie’s estate may have necessarily rely on the contract that contains the arbitration agreement. In short, Custom Performance’s argument is devoid of any meaningful explanation of why In-finiti and Cook’s Pest Control require this Court to compel arbitration of the claims asserted hy Tammie’s estate (cf. Infiniti) or to affirm the denial of the motion to arbitrate those claims (cf. Cook’s Pest Control). It is not the function of this Court to construct and address arguments for the parties on this essential point. Cf. Dykes, 652 So.2d at 251 (“We have unequivocally stated that it is not the function of this Court ... to make and address legal arguments for a party based on un-delineated general propositions not supported by sufficient authority or argument.” (citing Spradlin v. Spradlin, 601 So.2d 76 (Ala.1992))).

Under the circumstances, we find no basis upon which to hold that Tammie’s estate is estopped from avoiding arbitration.

C. “Intertwining Claims” Theory

Custom Performance argues that a distinct and separate basis for requiring Tammie’s estate to arbitrate its claims is the doctrine of intertwining claims. Under this doctrine, a nonsignatory to an arbitration agreement may compel a signatory to arbitrate claims “where arbitrable and nonarbitrable claims are so closely related that the party to a controversy subject to arbitration is equitably estopped to deny the arbitrability of the related claim.” Conseco Fin. Corp. v. Sharman, 828 So.2d 890, 893 (Ala.2001) (citing Cook’s Pest Control, Inc. v. Boykin, 807 So.2d 524 (Ala.2001)); see also Ex parte Tony’s Towing, Inc., 825 So.2d 96, 97 (Ala.2002) (explaining the reasons for limiting the doctrine of intertwining claims to use by the nonsigna-tory in compelling arbitration of a signatory’s claims). The doctrine of intertwining claims “is not applicable, however, when a signatory attempts to compel a nonsigna-tory third party to arbitrate claims it may have against a signatory.” Edwards v. Costner, 979 So.2d at 764 (citing Ex parte Tony’s Towing, supra) (emphasis added).

In this case, Custom Performance, a signatory to the arbitration agreement, seeks to compel arbitration of the claims asserted by Tammie’s estate, when Tammie was a nonsignatory. Under these circumstances, the doctrine of intertwining claims cannot serve as a basis to compel arbitration. See Ex parte Tony’s Towing, supra, and Edwards, supra.

Conclusion

We reverse the trial court’s order insofar as the trial court did not submit to arbitration the question of the arbitrability of Horace’s claims related to the motorcycle helmet. In all other respects, we affirm the order of the trial court. We remand this case to the trial court for further proceedings consistent with this opinion.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

LYONS, WOODALL, STUART, SMITH, BOLIN, PARKER, MURDOCK, and SHAW, JJ., concur.

      . Tammie Dawson’s first name is spelled “Tammy” in the initial complaint in this case, as well as in some other places in the record. The record as currently composed, however, lends itself to the conclusion that the correct spelling of Horace's wife's first name is "Tammie.”

      . We need not evaluate whether the estate's breach-of-warranty claim in connection with the motorcycle helmet is dependant on or subject to the arbitration agreement in the tire-installation contract. Custom Performance makes no such argument. Butler v. Town of Argo, 871 So.2d 1, 20 (Ala.2003) (" ‘[I]t is not the function of this Court to do a party’s legal research or to make and address legal arguments for a party -(quoting Dykes v. Lane Trucking, Inc., 652 So.2d 248, 251 (Ala.1994))).