On 09/01/09, Harry Foster, Sr. purchased an $80,000.00 certified check and sent it to Harry Foster, Jr. On 09/03/09, Sr. committed suicide. On 09/03/09, Jr. received package from Sr. a few hours after suicide. Another son, Michael filed Petition for Letters Testamentary and was appointed executor of Sr.’s estate. Michael also filed a petition for the return on the $80,000.00. Jr. testified at trial that in 3 separate conversations, Sr. stated that he was going to give the money to Jr. as a monetary gift. He was told by Sr. to spend the money on his family. Sr. knew that Jr’s son suffered from a form of blood cancer and that his daughter was getting married in August. Probate court determined that the check was a completed gift and was not part of the estate. Michael appealed.

The elements of a gift are: (a) an intention to give and surrender title to, and dominion over , the property; (b) delivery to the donee; (c) acceptance by the donee. Garrison v. Grayson, 284 Ala. 247, 249, 224 So.2d 606, 608 (Ala. 1969). The gift is complete when it is “paid, certified or accepted by the drawee.” Dial v. Dial, 603 So2d 1020 (Ala.1992).

The Court determined that there was a completed gift from Sr. to Jr. Evidence in this case was also sufficient to support a finding of intent to gift monies to Jr.

Judgment affirmed.

Question of whether trial court erred when it awarded property purchased during the marriage to the wife.

Divorce hearing was held in 06/10. Transcript of proceedings ends during direct examination of wife after a discussion was held off the record. No other testimony was presented. Both wife and husband filed written summary of their testimony. In 10/10, the trial court entered a divorce judgment dividing real and personal property. Each was awarded real property owned prior to the marriage and the wife was awarded a farm purchased during the marriage. The husband appealed.

The properties in questions consisted of three parcels. One parcel was inherited by the wife and the other two were purchased in using an equity line from one of the properties owned by the husband. Both parties contributed monies towards the building of the home on the farm. The husband believed that he should be awarded equity in the farm. The wife argued that she contributed money to improvement of husband’s rental property which offset the husband’s financial contributions to the farm. The trial court’s judgment did not address the husband’s rental property as divisible marital asset. Husband also argued that property owned by him prior to the marriage remained on the farm.

The Court stated that “Because such a determination affects the analysis of whether the division of property was equitable, we remand the cause with instructions to the trial court to clarify its division of personal property.

Remanded.

Question of whether findings by Unemployment Administrative Hearing Officer barred argument of discharge for violating attendance policy.

Employee of Hyundai was provided handbook which included policies related to attendance and bereavement leave. In 2008, a Hyundai document stated that Hyundai may request documentation to verify relationship of Employee to deceased. Falsification of the requested documentation would result in termination.

Employee developed carpal tunnel syndrome and underwent surgery. He returned to light duty on 10/06/08. Between 10/06/08 and 11/02/08, the Employee missed 9 days of work and took one bereavement day. He then took short-term disability from 10/27/08 to 02/16/09. On 02/20/09, Hyundai sent a request for documentation as it related to work absences and to complete a bereavement-leave form. When Employee returned to work, he was told he needed to provide documentation or he would be terminated. Another letter was sent to Employee in 03/09 requesting documentation. He was discharged on 03/13/09.

Employee sought unemployment compensation benefits. Hyundai did not appear at administrative hearing and Employee was awarded benefits. The hearing officer determined that Employee’s violation of attendance policy was not “misconduct” that would disqualify benefits.

Employee sued Hyundai for workers’ compensation benefits and retaliatory discharge. Hyundai filed a motion for summary judgment on the retaliatory discharge claim and the Court granted the motion.

Employee appealed.

The Court stated that the ruling of the administrative hearing officer was not a determination that the reason for his discharge was not valid under Hyundai’s policies and that Hyundai’s “proffered reasons were not legitimate or pretextual,…” or that Hyundai terminated his “employment for the sold reason that he had filed a workers’ compensation claim.” The Employee did not offer any evidence of a prima facie case of retaliatory discharge.

Judgment affirmed.

Employee worked to ATI. His duties required that he work close to a chemical reactor. On 12/08/11, another employee noticed a foul smell and tried to locate a leak around the reactor system. A third employee found Employee lying face up on the floor 15 to 20 feet away. He died without regaining consciousness. According to the autopsy, the Employee died from “complications from hydrogen sulfide toxicity.” His widow filed a for workers’ compensation benefits action. She provided that the bag used in the mixing process had 50 times the amount of sulfur usually used causing both of the other employees to complain of a headache and one to complain of a burning sensation in his throat. ATI’s expert stated that the Employee’s physical findings were consistent with any number of causes of death other than chemical exposure. The Court determined that Employee’s accidental exposure to hydrogen sulfate gas “caused or contributed to his death.” ATI appealed.

The Appeals Court stated that it was undisputed that the Employee was exposed to hydrogen sulfide and that both ATI’s expert and the medical examiner agreed that the Employee exhibited finding consistent with death due to exposure. The Court further stated that ATI did not present substantial evidence that Employee did not die from exposure.

Affirmed.

Question of whether claim was estopped due to previous payment of unemployment compensation benefits

Employee worked for White Tiger and injured his left knee in 02/07 and right shoulder in 03/08. He filed suit for workers compensation benefits. White Tiger answered the affirmative defense of estoppel. Employee amended complaint stating that he also injured his right shoulder in 03/09. There was no answer to the amended complaint. The Court awarded permanent-total disability benefits for his injuries.

White Tiger appealed.

Employee argued that White Tiger waived the estoppel argument because of its failure to answer the amended complaint. White Tiger argued that it did not waive the defense because it was tried by implied consent of the parties.

For judicial estoppel to apply, a party must how that (1) a party’s later position is “clearly inconsistent” with its earlier position; (2) that the party must have been successful in the prior proceeding and (3) the party seeking to assert an inconsistent position would derive an unfair advantage or impose an unfair detriment on the opposing party if not estopped.

Ala. Code 1975 § 25-4-77(a)(3) states: a recipient of unemployment compensation benefits must be “physically and mentally able to perform work of a character which he is qualified to perform by past experience or training.” The Employee’s statements that if able, he would try to find a job and that he was willing and able to perform some work is not inconsistent with his claim to be permanently and totally disabled for workers’ compensation action.

Affirmed.

An Alabama football fan, who was captured on video allegedly rubbing his genitals in the face of an unconscious man after a game in Louisiana, could be required to register as a sex offender when he returns to Alabama. 

Approximately 17% of respondents in a recent survey by the Centers for Disease Control and Prevention admitted to indulging in binge drinking over the previous month. That makes it approximately one in every 6 American adults at serious risk of a DUI. For adults between ages 18 and 34, the rate is approximately one in every 4 adults.

The Centers for Disease Control and Prevention surveyed more than 450,000 American adults, and came to the following conclusions. Not only were the rates of binge drinking high in the 18-34 age group but these drinkers also consumed the highest number of drinks during an episode, at 9 drinks compared to the national average of 6 drinks. Senior citizens were found to have much lower rates of binge drinking than other groups, but they were likely to binge more often. The average senior in the survey admitted to binge drinking on at least 5 occasions per month. That is in contrast to younger adults who had 4 episodes of binge drinking a month.

No Alabama DUI attorney would be surprised to know that males are at a much higher risk of excessive drinking. Other at-risk categories include college graduates and people with annual incomes of more than $75,000.

The results of the study are especially concerning, because binge drinking is related to a number of destructive practices. Binge drinkers are much more likely to be arrested for DUI, or are likely to measure much higher on a breathalyzer test or blood alcohol test. That makes your DUI defense that much more complicated. Additionally, binge drinkers are also believed to be more likely to be involved in automobile accidents, and episodes of violence.

Question of whether court erred when it did not credit Plaintiff for all time spent incarcerated pending trial.

In 2007, the Plaintiff failed to stop at a red light and hit another vehicle causing significant injuries to the driver and 2 passengers who were riding in that vehicle. He was indicted for 1 count of 1st degree assault 2 counts of 2nd degree assault. He was incarcerated from 02/15/08 to 10/07/09. In March 2010, the State nolle prossed the charges. He was re-indicted for 3 counts of 2nd degree assault. He was arrested and was incarcerated from 09/25/10 to 05/03/11. He pled guilty to 2 counts of 2nd degree assault and 1 count of 3rd degree assault. Plaintiff was only given credit for time served pursuant to the 2nd indictment. Plaintiff appealed.

The Court determined that all time spent incarcerated under the original indictment should have been applied to Plaintiff’s conviction under the second indictment since his incarceration was a direct result of his criminal prosecution stemming from the July 2007 accident.

Judgment reversed.

Question of whether court erred when it granted Defendant’s Motion to Dismiss Ethic Charges.

Defendant was a basketball coach at Bishop State and the project administrator for the National Youth Sports Program administered by the National Youth Sports Corporation, a nonprofit that received grants for operating summer sports camps for disadvantaged youth. In 04/09, Defendant was indicted for theft, 1st degree and ethics violation. It was alleged that Turner used his official position for financial gain by enabling financial aid to be awarded to his wife. He was also accused of paying a salary to his wife as an employee of the National Youth Sports Program. Defendant filed a motion to dismiss the ethic charges and argued that Ala. Code 1975, § 36-35-5(a) was unconstitutionally vague. After a hearing the ethics charges were dismissed. The State appealed.

To withstand a vagueness challenge, a statute must: “(a) give a person of ordinary intelligence a reasonable opportunity to know what is prohibited and (b) provide explicit standards to those who apply the laws.” The Court found that the statue prohibited Defendant “from using or causing to be used his official position or office to obtain personal gain for his wife” and that it was not unconstitutionally vague.

Judgment reversed.

Question of whether Plaintiff was denied his Sixth Amendment right to counsel.

Plaintiff was stopped while driving in City of Atalla. Vehicle had a homemade license instead of State issued tag. Plaintiff could not provide a driver’s license or proof of insurance. He only provided his first and middle names. He was charged with giving a false name to law-enforcement, driving without a driver’s license, driving a motor vehicle without a tag, and driving without insurance coverage. Plaintiff appealed.

The record did not show if the circuit court made inquiry into Plaintiff’s indigent status. There was no indication that the court advised Plaintiff of the dangers and disadvantages of self-representation. The Court stated the Plaintiff’s representation of himself in prior criminal matters, “is not sufficient evidence of his waiver of his right to counsel in the case now under review.”

Judgment reversed.