Dudley, Hopton-Jones, Sims & Freeman, PLLP v. Knight

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…