Dupree v. PeoplesSouth Bank, [Ms. 1180095, May 8, 2020] __ So. 3d __ (Ala. 2020). In a plurality opinion, the Court (Mitchell, J.; Parker, C.J., and Shaw, Bryan, and Mendheim, JJ., concur in the result) affirms the Houston Circuit Court’s judgment for PeoplesSouth Bank on Brad Dupree’s breach-of-contract claim alleging wrongful payment of the proceeds of a certificate of deposit.
Although the opinion rejects the trial court’s conclusion that Brad’s claim was barred by res judicata, it concludes that Brad failed to prove damages, because
[W]here two parties’ names appear on a CD and the funds used to purchase the CD belong to one of the parties, unless there is evidence that the party whose funds were used to purchase the CD intended to make a gift or create a trust, the other party’s claim to the funds must fail. [Ex parte Lovett], 450 So. 2d 116, 118 (Ala. 1984).
… Because Brad undisputedly did not furnish any of the funds used to purchase the CD and because he is not a trustee over those funds, the only way he could prevail is if he established that the CD was an inter vivos gift to him from Jimmy. To prove the existence of such a gift, Brad was required to satisfy, by clear and convincing evidence, the following three elements: “[a]n intention to give and surrender title to, and dominion over, the property; delivery of the property to the donee; and acceptance by the donee.” First Alabama Bank of Montgomery v. Adams, 382 So. 2d 1104, 1110 (Ala. 1980) (quoting Garrison v.Grayson, 284 Ala. 247, 249, 224 So. 2d 606, 608 (1969)). The trial court properly found that Brad did not carry his burden of proving that an inter vivos gift was made.