IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

UTAH REVERSE EXCHANGE, LLC, )

et al., )

 )

Plaintiffs, )

 )

v. ) CIVIL ACTION 14-0408-WS-B

 )

LINDA DONADO, et al., ) 

 )

Defendants. )

 ORDER

As set forth in more detail in other Court orders, the plaintiffs are four

limited liability companies (“Utah,” “Range,” “Water” and “Patmos”), and one 

corporation (“Florencia”), all formed by non-party Charles Breland to facilitate his 

business of buying, developing and reselling real estate. The defendants are a 

mother and son (“Linda” and “William”) who performed services for Breland and 

certain of his entities regarding various properties. The plaintiffs seek a 

declaration that they owe nothing to the defendants arising out of their rendition of 

such services. (Doc. 1 at 7; Doc. 88-1 at 2). 

The defendants counterclaimed against all five plaintiffs, as well as against 

another LLC formed by Breland (“Osprey”), on theories of breach of contract and 

promissory estoppel.1 The defendants’ claims address two properties: the 

“Mexico property” and the “Utah property.” The claims concerning the Mexico 

property were tried to a jury in February 2016 and resulted in a verdict for the 

defendants on the promissory estoppel claim in the amount of $250,000 and a 

verdict for the plaintiffs on the contract claim. (Doc. 113 at 5-6).

 1 As discussed in detail in a previous Court order, (Doc. 74), Breland filed for 

personal bankruptcy and received a discharge, which presumably explains the 

defendants’ failure to pursue a counterclaim against him.

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The defendants’ claims regarding the Utah property were tried to the Court, 

with the Court considering evidence presented to the jury as well as additional 

evidence presented only to the Court. After the parties rested, the plaintiffs2

moved for judgment as a matter of law. (Doc. 108).3 The Court provided the 

parties an opportunity to submit post-trial briefs, and they did so. (Doc. 109, 112). 

The presentation of evidence and the submission of briefing having concluded, the 

matter is ripe for resolution.4 After carefully considering the evidence, the written 

and oral argument of counsel, and the final pretrial order and incorporated joint 

pretrial document, (Docs. 88-1, 90), the Court issues these findings of fact and 

conclusions of law pursuant to Rule 52(a).5 

 2 For convenience, and unless otherwise noted in a particular instance, the Court 

includes Osprey within the term “plaintiffs,” even though it was not an original plaintiff 

but is instead only a counterclaim defendant.

3 As the defendants point out, (Doc. 109 at 1 n.1), since the Utah portion of the 

case is being resolved by bench trial, the motion should have been denominated as one 

for judgment on partial findings pursuant to Rule 52(c) rather than as one for judgment as 

a matter of law pursuant to Rule 50(a). The Court, however, does not agree with the 

defendants that the misnomer requires denial of the motion on that ground. Instead, the 

Court will treat the motion as one for partial findings, as did the Eleventh Circuit in the 

case on which the defendants rely. 

4 Resolution has been delayed by Osprey’s post-trial bankruptcy. (Doc. 114). 

The defendants received relief from the automatic stay on October 12, 2016. (Doc. 123-

1). That relief having been obtained, the parallel stay imposed by the Court, (Doc. 115), 

is lifted.

5 As the Court noted in its order establishing that the case as to the Mexico 

property would be tried to a jury and that the case as to the Utah property would be tried 

to the Court, (Doc. 97), “[w]hen legal and equitable claims are joined in the same action, 

the right to jury trial on the legal claim, including all issues common to both claims, 

remains intact.” Lytle v. Household Manufacturing, Inc., 494 U.S. 545, 550 (1990) 

(internal quotes omitted). The Court acknowledged it “will be bound on the Utah side by 

findings made by the jury on the Mexico side,” to the extent the jury’s findings are 

known. (Doc. 97 at 3 & n.4). The Court suggested that the parties propose special 

interrogatories for this purpose, (id.), but the parties declined to do so. Therefore, only 

such facts as are necessarily established by the jury’s general verdict regarding the 

Mexico property can be binding on the Court as to the Utah property. E.g., Brown v. 

Alabama Department of Transportation, 597 F.3d 1160, 1184 (11th Cir. 2010). 

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FINDINGS OF FACT AND CONCLUSIONS OF LAW6

As noted, the defendants bring two claims regarding the Utah property: 

breach of contract and promissory estoppel. The Court addresses the defendants’ 

claims in sequence, followed by the plaintiffs’ prayer for declaratory relief.

I. Breach of Contract.

The defendants assert that Breland, on behalf of himself and the LLC 

plaintiffs, agreed to compensate them with a 25% mineral interest in the Utah 

property. The single measure of relief demanded by the defendants is specific 

performance, that is, transfer to them of a 25% mineral interest.

The parties agree that Utah law supplies the elements of the defendants’ 

claim for breach of contract. (Doc. 88-1 at 8). They further agree that the 

elements of such a claim are: (1) a contract; (2) performance by the party seeking 

recovery; (3) breach by the other party; and (4) damages. (Id.).

A. Elements.

The Court finds that the defendants and Breland originally agreed that they 

would be compensated for their work in connection with the Utah property by 

payment of 10% of the resale price of the property. The Court also finds that the 

defendants and Breland, on behalf of himself and the LLC plaintiffs, later agreed 

to compensate the defendants instead with a 25% mineral interest in the Utah 

property. The defendants testified that these agreements were entered orally, 

while Breland denied any such agreement. The Court finds the defendants more 

credible than Breland for several reasons, including without limitation the 

following circumstances. 

First, Breland admits that he (through one of his entities) had an oral 

agreement with the defendants regarding their compensation with respect to the 

 6 All findings of fact are by a preponderance of the evidence. 

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Mexico property, (Doc. 112 at 2), so an oral agreement with respect to the Utah 

property is consistent with the parties’ previous dealings. Second, the 10%-ofresale-price measure of the original agreement regarding the Utah property is the 

same as with the Mexico property, and there was plentiful evidence that Breland 

and the defendants discussed and even laughed about the defendants’ consistent 

10% arrangement. Third, there was substantial evidence of Breland’s tendency to 

abruptly alter business proposals to suit his purposes, with which practice his 

switch to a 25% mineral interest is consistent. Fourth, while the defendants’ 

receipt of other forms of compensation for their efforts might suggest that such 

compensation was to the exclusion of a 25% mineral interest, the plaintiffs admit 

that the defendants have received from them no compensation of any sort in 

connection with the Utah property. (Doc. 88-1 at 8). Fifth, while Breland denied 

the specific compensation arrangement to which the defendants testified, he 

identified no different agreement governing the parties’ relations; it is not 

plausible that the defendants purposely labored for free, so Breland’s silence 

leaves the defendants’ asserted compensation agreement as the only one supported 

by any evidence. Sixth, after observing the parties throughout the trial, the Court 

finds that Breland – in both his testimony and his demeanor – was less than 

ingenuous.

7

 The Court finds that he was in all important respects a less credible 

witness than the defendants.8

 7 By way of example only, Breland testified that the first time he ever heard about 

a claimed 25% mineral interest was in this lawsuit. Adrian Zajac, however – who has no 

interest in this litigation and whom the Court finds to be credible despite the plaintiffs’ 

ineffectual attempt to paint him as a dishonest businessman – testified that he discussed 

the 25% deal with Breland and the defendants in or before 2011. In fact, Breland initially 

testified that the first he had heard of a 25% agreement was during trial; his counsel then 

had to walk him back to admitting he had known of the alleged arrangement from the 

counterclaim.

8 The Court has considered the plaintiffs’ specific challenges to the defendants’ 

credibility, (Doc. 112 at 7-9), and finds them to be overblown, largely inaccurate 

sideshows that do not appreciably undermine the defendants’ credibility, certainly not

compared to Breland’s. 

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The Court finds that the agreement to compensate the defendants with a 

25% mineral interest was entered on July 20, 21 or 22, 2005. William testified 

that Breland entered the agreement on behalf of himself and his LLCs, the first of 

which were formed on July 20, two days before closing.9

The Court finds that Breland entered the agreement to compensate the 

defendants with a 25% mineral interest on behalf of himself and on behalf of the 

LLC plaintiffs. It is uncontroverted that Breland is and always has been the sole 

member of these entities, and their close connection to both Breland and the Utah 

property satisfies the Court that Breland entered the agreement for them as well as 

for himself.

As addressed in Part I.B, the Court finds that the defendants fully 

performed their obligations under the July 2005 agreement. As discussed above, 

the LLC plaintiffs have breached the agreement because no mineral interest has 

been transferred to the defendants. And the defendants have been damaged by the 

failure to receive the agreed (or any) compensation for their efforts. 

For the reasons set forth above, the Court finds that the defendants have 

established all elements of their claim for breach of contract against the LLC 

plaintiffs. 

B. Statute of Frauds.

The plaintiffs argue that the Utah statute of frauds bars the defendants’

contract claim. They originally invoked four different statutes, (Doc. 64 at 19-20), 

but they have now confined their argument to Utah Code § 25-5-3. (Doc. 108 at 

 9 William testified in deposition that the agreement was reached right before 

closing. (Doc. 71-5 at 87; Doc. 74 at 7). Because the parties (who presented this 

evidence to the Court on motion for summary judgment) inexplicably failed to present 

such testimony at trial, the Court does not rely on it, but the Court’s finding based on the 

evidence that was introduced at trial is consistent with it. 

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18).10 The Court, noting the defendants’ concession, (Doc. 71 at 14, 16), has 

previously ruled that this provision “definitely applies.” (Doc. 74 at 6-7).11 

The defendants invoke the “partial performance” exception to Utah’s 

statute of frauds. “Nothing in this chapter shall be construed to abridge the powers 

of courts to compel the specific performance of agreements in case of part 

performance thereof.” Utah Code § 25-5-8. The plaintiffs agree that “the doctrine 

of part performance allows a court to enforce an oral agreement, if it has been 

partially performed.” (Doc. 108 at 16). 

“It is clear ... that a verbal agreement to transfer an interest in land can be 

taken out of the statute of frauds, and that one can be estopped from challenging 

the oral agreement if three requirements are met: A court must find (1) that there 

was such an agreement, (2) that there had been part or full performance, and (3) 

that there was reliance thereon.” Orton v. Carter, 970 P.2d 1254, 1259 (Utah 

1998). The parties agree that these are the elements of the part performance 

exception. 

Demonstrating these elements is not easy. As to the first element, “the 

terms of the oral contract must be clear and definite and established by clear and 

definite testimony.” Bradshaw v. McBride, 649 P.2d 74, 79 (Utah 1982); accord 

Spears v. Warr, 44 P.3d 742, 751 (Utah 2002), disavowed in part on other 

 10 “Every contract ... for the sale, of any lands, or any interest in lands, shall be 

void unless the contract, or some note or memorandum thereof, is in writing subscribed 

by the party to whom the ... sale is to be made, or by his lawful agent thereunto 

authorized in writing.” Utah Code § 25-5-3.

11 The defendants, without explanation, now appear to question whether Section 

25-5-3 applies. (Doc. 109 at 5 (“Even if Utah’s Statute of Frauds applies to this claim 

....”). Any resistance on this ground comes too late to undo their previous concession, 

especially given their failure to identify any basis for concluding the statute does not 

apply. Cf. Flying Diamond Oil Corp. v. Newton Sheep Co., 776 P.2d 618, 629 (Utah 

1989) (“An oil and gas royalty is an interest in land.”); Utah Code § 57-1-1(3) (defining 

“real property” to include “any ... interest in land, including all nonextracted minerals 

located in, on, or under the land ....”). 

 

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grounds, Tangren Family Trust v. Tangren, 182 P.3d 326, 331 n.20 (Utah 2008).12 

As to the second element, “the acts done in performance of the contract must be 

equally clear and definite ....” Spears, 44 P.3d at 79 (internal quotes omitted). 

And as to the third element, “[s]uch acts in reliance must be such that (a) they 

would not have been performed had the contract not existed, and (b) the failure to 

perform on the part of the promisor would result in fraud on the performer who 

relied, since damages would be inadequate.” Id. (internal quotes omitted).13 “The 

critical observation to make in reading these delineations of what constitutes 

sufficient part performance is that it must be proved by strong evidence.” Martin 

v. Scholl, 678 P.2d 274, 275 (Utah 1983). 

As noted above, the Court has found that an oral agreement to transfer to 

the defendants a 25% mineral interest in the Utah property existed. The 

defendants argue that the consideration for this promise consisted of their efforts 

in acquiring the Utah property as well as their post-acquisition efforts in exploring

the mineral interests thereunder. They point to evidence that they engaged in such 

exploration activity as demonstrating that they performed and that they did so in 

reliance on the agreement.14

 12 According to the plaintiffs, the “clear and definite” standard can be met only by 

the resisting party’s admission, a partial writing, or “the testimony of disinterested 

witnesses.” (Doc. 108 at 17-18). The plaintiffs, however, identify no Utah authority for 

such a stringent rule. Instead, they rely on a law review article that did not purport to 

express existing law but merely offered a “suggested formulation for a modern part 

performance doctrine.” (Doc. 109-1 at 17-18). In the 52 years since its publication, 

apparently no Utah court has adopted the article’s suggestion, and the Court declines to 

be the first to do so. 

13 “The reason for such requirement [that acts of part performance “must be 

exclusively referable to the contract”] is that the equitable doctrine of part performance is 

based on estoppel and unless the acts of part performance are exclusively referable to the 

contract, there is nothing to show that the plaintiff relied on it or changed his [or her] 

position to his prejudice ....” Spears, 44 P.3d at 751 (internal quotes omitted). 

14 The plaintiffs argued at trial that evidence of post-acquisition activity lies 

beyond the issues preserved for trial. This is incorrect, as the joint pretrial document 

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As found in Part I.A, the agreement to compensate the defendants with a 

25% mineral interest was reached just before closing. The defendants presented 

no evidence that they performed acquisition services after the agreement was 

reached, and the Court finds that they did not do so. Thus, the part performance 

exception to the statute of frauds can be in play only if the consideration for the 

agreement to transfer the mineral interest included post-acquisition services in 

exploring the property’s minerals.

According to the defendants, William testified that the agreement required 

them, as part of the consideration for receiving a 25% mineral interest, to 

participate with Breland in developing the Utah property’s mineral resources. 

(Doc. 109 at 2-3, 5-6, 7). The Court cannot agree. What William actually said 

was that “we were to have 25 percent of the minerals and mineral interest, the 

revenue interest in the property as part of putting the deal together.” (Doc. 111-1 

at 71 (emphasis added)). Putting the deal together is pre-acquisition activity, not 

post-acquisition exploration. 

William also testified that, before presenting the Utah property to Breland, 

he had been working with Southern Companies (“Southern”) “to put together an 

offer to come in and buy the property.” (Doc. 111-1 at 29-30). He testified that 

his “agreement for compensation” with Southern was “[a] 25 percent interest in 

the minerals moving forward,” plus a ten percent fee based on the purchase price. 

(Id. at 30). The Court finds that William reached an agreement with Southern to 

receive a 25% mineral interest exclusively for his acquisition efforts. Because 

William testified that the defendants’ deal with Breland was “basically the same 

deal that I had made with Southern Companies,” (id. at 31), it is clear that the 

defendants’ deal with Breland was to receive a mineral interest based solely on the 

defendants’ acquisition efforts.

 

addresses in some detail the defendants’ post-acquisition exploration efforts. (Doc. 88-1 

at 8-9). 

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The defendants, (Doc. 109 at 3, 5), stress that Larry Trice, a representative 

of Breland, wrote a letter in 2007 describing William as one “with whom we 

participate in our Utah gas and oil exploration.” (Defendants’ Exhibit 8 at 1). 

This statement, however, sheds no light on the terms of the agreement to transfer a 

25% mineral interest; William would have had incentive to “participate” in 

mineral exploration even if he had already fully performed his obligations under 

the agreement, since he would be exploring a mineral interest he was already 

owed.15

As noted, to successfully invoke the part performance exception, the 

defendants are required to establish, by clear and definite testimony, that the terms 

of the oral contract clearly and definitely required them to perform postacquisition work as consideration for receiving a 25% mineral interest. They have 

come nowhere close to meeting this demanding standard.16 The Court finds that 

the agreement to compensate the defendants with a 25% mineral interest did not 

make post-acquisition efforts part of the consideration.

 15 The defendants argue that William’s deposition, their brief in opposition to 

motion for summary judgment, and the joint pretrial document all reflect that postacquisition work was part of the consideration. (Doc. 109 at 3-4 n.3). Briefs and other 

filings, of course, are not evidence, and no party submitted William’s deposition as trial 

evidence. Even had the defendants done so, the Court has already noted that his 

deposition testimony indicates only an agreement to transfer a mineral interest “as 

compensation simply for their services in acquiring the Utah property.” (Doc. 74 at 7). 

Even William’s deposition assertion that he “earned every dime” of the mineral interest 

by his post-acquisition activity, (Doc. 71-5 at 116), is a rationalization for why he 

deserves the mineral interest, not testimony as to what the terms of the contract actually 

were.

16 The defendants suggest they need prove the elements of the part performance 

exception only by a “fair preponderance” of the evidence. (Doc. 109 at 5 n.6). This 

language, however, addresses the standard of review on appeal, not the quality of 

evidence that must be presented to sustain the exception – as the very case cited by the 

defendants reflects. Spears, 44 P.3d at 751. At any rate, a fair preponderance of the 

evidence does not support the proposition that post-acquisition activity was consideration 

for the agreement to transfer a 25% mineral interest. 

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Because the defendants cannot establish the first element of the part 

performance exception, the Court need not consider whether they could satisfy the 

second and third elements.17 The defendants’ breach of contract claim is barred by 

the statute of frauds. 

C. Summary.

The Court finds that the defendants have established every element of their 

claim for breach of contract. The Court finds that the plaintiffs have established 

every element of their affirmative defense of the statute of frauds. The Court finds 

that the defendants have not established every element of any exception to the 

statute of frauds. The defendants have not prevailed on their breach of contract 

claim and are not entitled to any relief under that claim. The plaintiffs’ motion for 

partial findings is granted as the breach of contract claim.

II. Promissory Estoppel.

The promissory estoppel claim is presented as an “alternative” to the 

contract claim. (Doc. 109 at 2 n.2). The defendants assert that Breland promised 

on behalf of himself and the plaintiff LLCs to transfer to the defendants a 25% 

mineral interest in the Utah property. 

The parties agree that Alabama law supplies the elements of the defendants’ 

claim for promissory estoppel. (Doc. 88-1 at 9). They further agree that the 

elements of such a claim are: (1) a promise which; (2) the promisor should have 

reasonably expected to induce action or forbearance of a definite and substantial 

character; (3) the promise did in fact induce such action or forbearance by the 

promisee; and (4) injustice can be avoided only by enforcing the promise. (Id.).

 17 However, the discussion in text regarding the Larry Trice letter suggests the 

defendants cannot establish – at all, much less by strong evidence – that their postacquisition work would not have been performed unless their receipt of a 25% mineral 

interest contractually depended upon it. 

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A. Elements.

For reasons expressed in Part I.A, the Court finds that Breland promised the 

defendants, on behalf of himself and the plaintiff LLCs, to transfer to the 

defendants a 25% mineral interest in the Utah property based on their services in 

acquiring the property. The Court further finds that Breland at the same time 

promised, on behalf of himself and the plaintiff LLCs, to participate with the 

defendants in oil and gas exploration on the Utah property.18 The Court further 

finds that Breland and the plaintiff LLCs should have reasonably expected these

promises to induce the defendants to invest substantial time and treasure in 

exploring the minerals on the Utah property, since they had been promised both 

that they would own 1⁄4 of them and that Breland and his entities would participate 

in the costs of developing them. 

The Court finds that Breland’s promise induced the defendants to take 

actions of a definite and substantial character. Without pretense of being 

exhaustive, those efforts included securing a petroleum engineer, identifying 

additional mineral leases, negotiating mineral leases, crafting a drilling deal, 

working on multiple wells, exploring financing needed to retain state leases, and 

testifying as an entity representative. For years, William traveled to Utah 20-30 

times a year, staying as long as six weeks at a time, and he paid all his own 

expenses for almost all these trips. 

Finally, the Court concludes that injustice can be avoided only by enforcing 

the promise to transfer a 25% mineral interest. The plaintiffs admit the defendants 

“have not received any compensation from Breland or his entities in connection 

with the Utah property.” (Doc. 88-1 at 8). This is an extraordinary injustice. 

Breland extracted from the defendants all their services in acquiring the Utah 

property (beginning with their bringing the property to his attention in the first 

place), in exchange for a promise to pay them 10% of the resale price. Shortly 

 18 Trice confirmed this arrangement in the letter discussed in Part I.B.

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before closing, he swapped the cash compensation for a 25% mineral interest. 

Failing to enforce this promise would condone Breland’s complete stiffing of the 

defendants for services that he himself valued in seven figures.

19 This injustice 

would only be magnified by his stiffing the defendants for all the time, effort and 

money they expended in developing the mineral interests, the benefits of which 

Breland now claims exclusively for himself and his entities.20

The plaintiffs offer no relevant response. Rather than addressing 

promissory estoppel with respect to the 2005 promise to transfer a 25% mineral 

interest, they focus exclusively on attempting to show that promissory estoppel 

does not apply to a separate (and redundant) promise by Breland, made in 2010, to 

use the assets of all his entities to satisfy all obligations to the defendants. (Doc. 

108 at 13-16). The plaintiffs’ confusion is not easy to understand, given that the 

 19 The Utah property was purchased for $13 million, and the Court finds Breland 

did not expect to resell the property at a loss. Thus, the parties anticipated the defendants 

would receive at least $1.3 million on resale.

20 Breland blames William for unsuccessful drilling efforts on the property, but by 

his own telling the fault lay with the petroleum engineer, and Breland offered no 

evidence that William knew or should have known the engineer would fail. Breland also 

blames William for a $3 million judgment against Breland that occurred because Breland 

sought and obtained a loan that he thereafter refused to accept, triggering a default and 

litigation. Breland blames William for bringing the lender to his attention (after 

William’s exhaustive efforts to obtain other financing failed to produce an acceptable 

proposal), but it is clear that Breland brought the whole mess on himself by his 

repudiation of his own deal. The Court finds that William is not at fault, either for the 

well failures or for Breland’s loan fiasco, and neither furnishes grounds for finding no 

injustice in the refusal of Breland and his entities to honor their promises. What 

Breland’s testimony on these matters chiefly accomplishes is to illustrate what the Court 

finds to be his pattern of resistance to honoring his obligations and of making excuses for 

doing so.

Breland also suggests that injustice is lacking because Zajac and/or Levada paid 

William $450,000 after Levada’s 2011 bid to purchase the Utah property fell through. 

By the plaintiffs’ own admission, the payment was made for services rendered in 

connection with that transaction, (Doc. 108 at 14), not for the defendants’ work for 

Breland in acquiring the property years earlier. It is therefore irrelevant to the injustice 

inquiry. 

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joint pretrial document expressly and in detail ties the promissory estoppel claim 

to Breland’s 2005 promise to transfer a mineral interest. (Doc. 88-1 at 8-9). Even 

after the defendants explicitly set forth their theory in their post-trial brief, (Doc. 

109 at 2-5), the plaintiffs in their subsequent post-trial brief completely ignored it 

and instead repeated – essentially verbatim – their earlier, misdirected argument 

regarding the 2010 agreement. (Doc. 112 at 14-17). They have thereby forfeited 

whatever argument (if any) they might have raised in opposition to the defendants’ 

theory.

B. Broker’s License.

With exceptions not relevant here, “an individual is required to be licensed 

as a principal broker ... if the individual performs, offers to perform, or attempts 

to perform one act for valuable consideration of ... buying ... real estate for 

another person” or of “offering for another person to buy ... real estate.” Utah 

Code § 61-2f-201(2). “Unless a person is licensed under this chapter, it is 

unlawful for the person to ... act in the capacity of a principal broker ....” Id. § 

61-2f-201(1). “An individual required to be licensed under this chapter who 

violates this chapter ... is, upon conviction of a first violation, guilty of a class A 

misdemeanor.” Id. § 61-2f-405(1)(a). “A person may not bring or maintain an 

action in any court of this state for the recovery of a commission, fee, or 

compensation for any act done or service rendered if the act or service is 

prohibited under this chapter.” Id. § 61-2f-409(1)(a). The plaintiffs assert that 

Alabama law precludes the defendants from recovering under a theory of 

promissory estoppel because they lacked a Utah broker’s license. (Doc. 108 at 21-

22; Doc. 112 at 14).21 

 21 The defendants maintain the plaintiffs forfeited this defense by not preserving it 

in the joint pretrial document. (Doc. 109 at 9 n.14). They are mistaken. The plaintiffs 

expressly stated as an affirmative defense that “the Donados lack the requisite 

professional licenses to be paid for engaging in the transactions involved in this case.” 

(Doc. 88-1 at 9-10). 

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The burden is on the plaintiffs to establish all elements of this affirmative

defense.22 The first of these elements is that the defendants bought or offered to 

buy the Utah property for Breland and/or his entities or offered or attempted to do 

so. The plaintiffs have identified no such evidence. It is clear that the defendants 

performed services in connection with Breland’s acquisition of the Utah property 

(including informing Breland of its availability, examining the property, 

performing due diligence, and talking to the property owner’s chief creditor), but 

the plaintiffs point to no evidence that the defendants actually bought the Utah 

property on behalf of Breland23 or that they made the property owner (or chief 

creditor) an actual offer to purchase on behalf of Breland. The Court finds that the 

defendants did not engage in activity that would trigger the license requirement.24

Even had the plaintiffs demonstrated that the defendants were required to 

hold a license but did not possess one, they have not demonstrated that such a 

failure precludes the defendants’ claim. In identifying the consequences of such a 

failure, the plaintiffs eschew Utah law. Instead, they rely exclusively on Alabama 

law, arguing that it prohibits the defendants’ claim because their pursuit of a 25% 

mineral interest is based on an “illegal contract,” enforcement of which is barred 

by public policy. (Doc. 108 at 21-22). 

The Court detects multiple deficiencies in the plaintiffs’ cursory treatment 

of the issue. First, the plaintiffs have not explained – despite the defendants’ 

 

22 E.g., Fibro Trust, Inc. v. Brahman Financial, Inc., 974 P.2d 288, 295 n.8 (Utah 

1999).

23 The purchase agreement was executed by Breland, not by either defendant. 

(Defendants’ Exhibit 4).

24 The plaintiffs apparently seek to switch the focus of the inquiry to the 

defendants’ efforts in connection with resale of the Utah property. (Doc. 108 at 21). 

However, as the plaintiffs admit, (id. at 19-20), and as the Court has found, the 25% 

mineral interest was promised exclusively for the defendants’ pre-acquisition efforts. At 

any rate, the Court finds the defendants did not sell the Utah property for Breland and/or 

his entities and did not make an actual offer to sell the property.

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objection, (Doc. 109 at 8) – why Alabama law would supply the rule of decision.25 

Second, they have oversimplified Alabama law concerning the enforcement of 

“illegal” contracts. According to the plaintiffs, Alabama law is rigid and 

unforgiving: once a contract is declared illegal, its enforcement is automatically 

prohibited. The law, however, appears to be more nuanced:

As a general principle, a party may not enforce a void or illegal 

contract either at law or in equity. [citations omitted] [T]he principle 

that contracts in contravention of public policy are not enforceable 

should be applied with caution and only in cases plainly within the 

reason on which the doctrine rests. [citations omitted] The true test 

to determine whether a contract is unenforceable because of public 

policy is whether the public interest is injuriously affected in such a 

substantial manner that private rights thereunder should yield to 

public interest. 

Beverly v. Chandler, 564 So. 2d 922, 924 (Ala. 1990) (internal quotes omitted); 

accord J.C. Bradford & Co., L.L.C. v. Vick, 837 So. 2d 271, 175 (Ala. 2002). 

Because the Court finds the defendants were not required to have a broker’s

license, the Court need not consider further the difficulties with the plaintiffs’ 

legal argument.

C. Other Matters.

As noted in Part I.B, the defendants’ contract claim is barred by the statute 

of frauds. The plaintiffs have explicitly limited their invocation of this defense to 

the contract claim. (Doc. 108 at 16; Doc. 112 at 17). Because the plaintiffs have

preserved no argument that the promissory estoppel claim is barred by the statute 

of frauds, the Court does not consider or address this forfeited defense.

 25 Choice-of-law issues are notoriously tricky, and the plaintiffs cannot by their 

own inaction shift to the Court the burden that rests on them of developing and 

articulating a logical, legally supported rationale for applying Alabama law. While the 

parties agreed that Alabama law supplies the elements of the defendants’ promissory 

estoppel claim, (Doc. 88-1 at 9), they reached no similar agreement regarding the law 

governing the plaintiffs’ affirmative defense. 

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The plaintiffs argue that the defendants’ claims are barred by res judicata. 

(Doc. 108 at 5-13). The argument is presented as an almost verbatim repetition of 

the plaintiffs’ trial brief. (Doc. 92 at 10-18). The Court, addressing that trial brief,

has previously ruled that “the plaintiffs’ res judicata defense is legally 

insupportable.” (Doc. 103 at 4). That ruling remains unchanged.

The joint pretrial document preserved an affirmative defense of laches. 

(Doc. 88-1 at 9-10). The plaintiffs, however, did not mention – much less address 

– such a defense in either their Rule 50 motion or their post-trial brief. They have 

thereby forfeited any argument they might (or might not) have regarding the 

timeliness of the defendants’ claim. Cf. Sapuppo v. Allstate Floridian Insurance 

Co., 739 F.3d 678, 681 (11th Cir. 2014) (“We have long held that an appellant 

abandons a claim when he either makes only passing references to it or raises it in 

a perfunctory manner without supporting arguments and authority.”). 

The plaintiffs propose that any recovery on the defendants’ promissory 

estoppel claim should be limited to a 3% mineral interest rather than the 25% 

demanded. (Doc. 112 at 3-4 n.3). The basic idea seems to be that, because the 

jury awarded the defendants $250,000 on their promissory estoppel claim 

regarding the Mexico property (or about 12% of the $1.9 million they were 

seeking), the plaintiffs’ recovery regarding the Utah property should likewise be 

limited to about 12% of what they seek, which would be roughly a 3% mineral 

interest. As discussed in note 5, supra, only such facts as are necessarily 

established by the jury’s general verdict regarding the Mexico property can be 

binding on the Court as to the Utah property. The plaintiffs identify nothing 

necessarily established by the jury’s verdict – on the contrary, they concede the 

“uncertain nature of the binding effect of the jury’s finding in favor of the 

Donados on their promissory estoppel claim on the Mexico side.” (Doc. 112 at 3 

n.3). Because the Mexico claim involved a promise, made in 2004, to pay money

for work regarding the Mexico property, while the Utah claim involves a different

promise, made at a different time, to provide different compensation for different 

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work, and with different acts of reliance supporting the two claims, it is impossible 

to conclude that the jury made any finding regarding the quantum of recovery that 

could be binding on the Utah claim. To the extent the plaintiffs suggest the Court 

follow the jury though not bound to do so, the Court declines.

D. Summary.

The Court finds that the defendants have established every element of their 

claim for promissory estoppel. The Court finds that the plaintiffs have not 

established every element of their affirmative defense regarding a broker’s license. 

The Court rejects the plaintiffs’ affirmative defense of res judicata on grounds 

previously stated. The plaintiffs have not presented or preserved any other 

defense to the promissory estoppel claim. The defendants have prevailed on their 

promissory estoppel claim and are entitled to a judgment awarding them a 25% 

mineral interest in the Utah property. The plaintiffs’ motion for partial findings is 

denied as to the promissory estoppel claim.

III. Declaratory Relief.

The plaintiffs seek a declaration “that there are no commissions, fees or 

expenses owed by” them to the defendants. (Doc. 1 at 7). Given the jury’s verdict 

as to the Mexico claims and the Court’s ruling as to the Utah claims, the plaintiffs 

are not entitled to the relief they seek.

IV. Judgment.

The parties are ordered to confer as to the form and content of a final 

judgment to be entered in this action and to file their proposed final judgment on 

or before November 18, 2016.

DONE and ORDERED this 4th day of November, 2016.

s/ WILLIAM H. STEELE

CHIEF UNITED STATES DISTRICT JUDGE 

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