Utah Reverse Exchange, LLC et al v. Donado et al
Order regarding trial briefs: The plaintiffs are forbidden to assert the issues set out. Signed by Chief Judge William H. Steele on 2/12/2016. (tgw)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
UTAH REVERSE EXCHANGE, LLC,
LINDA DONADO, et al.,
) CIVIL ACTION 14-0408-WS-B
On January 13, 2016, the Court ordered the plaintiffs to file a trial brief
addressing, inter alia, res judicata and “any other disputed question of law that the
parties have not previously briefed.” (Doc. 90 at 2). The plaintiffs filed a trial
brief addressing several issues, including res judicata. The final paragraph of the
res judicata section does not address res judicata at all but instead introduces a
brand-new “disputed question of law that the parties have not previously
addressed” – whether Breland had “authority to reach any new alleged agreement
regarding the Donados’ claims.” (Doc. 92 at 18). The Court ordered briefing on
this issue, (Doc. 98), which the parties have now provided. (Docs. 100, 101).
The parties were warned long ago that affirmative defenses not listed in the
joint pretrial document, once adopted by the Court as part of its final pretrial order,
would not be part of the case. (Doc. 37-1 at 4-5). The final pretrial order
confirmed that “[d]ispositive legal issues that are not contained in the parties’ Joint
Pretrial Document” or any authorized amendment thereto “will not be
considered.” (Doc. 90 at 2). The Court has scoured the joint pretrial document in
vain for any reference to lack of authority as a defense to the defendants’ contract
claims.1 The plaintiffs’ failure to preserve any such issue for trial obviates
consideration of the issue.
Even had the plaintiffs not waived this issue, it would avail them nothing.
They argue that Breland’s alleged agreement to commit the assets of the plaintiffs
to satisfying any debt to the defendants constituted a “compromise … involv[ing]
estate assets” that “is not enforceable because a settlement or compromise in
bankruptcy is not enforceable without court approval.” (Doc. 100 at 3). Thus, any
agreement by Breland “was not authorized and was of no effect and could not be
enforced without approval by the Bankruptcy Court,” (id. at 4), which approval
was not sought or obtained.
It is the plaintiffs’ theory that Bankruptcy Rule 9019 requires this result.
That rule provides that,”[o]n motion by the trustee and after notice and a hearing,
the court may approve a compromise or settlement.” The plaintiffs assert, and the
Court assumes, that the same applies to a debtor-in-possession under Chapter 7.2
Where, though, is the compromise or settlement? The defendants did not
agree to accept less than what they claimed was owed, and Breland did not agree
to pay more than what he claimed was owed. The allegation is that Breland
“promised that he would satisfy all obligations to the Donados from his assets
remaining in his possession, including those in his various LLCs, after his
bankruptcy matter had been settled,” (Doc. 88-1 at 7), in exchange for their
assistance of Breland in his bankruptcy proceedings and their refraining from
It appears that lack of authority to enter a contract is a defense to a contract
claim and not an element of the claim. See Service Corp. International v. Fulmer, 883
So. 2d 621, 631 (Ala. 2003) (lack of mental capacity to enter a contract is a defense); see
also Wausau Development Corp. v. Natural Gas & Oil, Inc., 144 So. 3d 309, 314 (Ala.
2013) (lack of capacity under the door-closing statute is an affirmative defense).
Regardless of how Alabama law characterizes a lack-of-authority argument, in this case it
must be considered a defense for the simple reason that the parties in the joint pretrial
document did not describe authority to enter a contract as an element of the contract
claims. (Doc. 88-1 at 5, 8).
See In re: Signet Industries, Inc., 1998 WL 639168 at *3 (6th Cir. 1998)
(assuming Rule 9019 applies to debtors-in-possession).
filing a claim therein. This is an agreement, but it addresses only how to pay the
defendants, not how much to pay them. Absent such an agreement, there was no
settlement or compromise of their claim. See In re: Signet Industries, Inc., 1998
WL 639168 at *3 (6th Cir. 1998) (for purposes of Rule 9019, “a compromise is any
agreement between two parties made in order to avoid a lawsuit or otherwise settle
a dispute on mutually agreeable terms”).
Nor is there any indication that Breland lacked “authority to reach any new
alleged agreement regarding the Donados’ claims.” The plaintiffs’ own case, as
well as many others, confirm that a debtor-in-possession (or trustee) can enter an
agreement with a creditor in settlement or compromise of a claim; the agreement
thereupon exists, subject only to the condition subsequent of judicial approval.3
These cases reflect that, even if it applied, Rule 9019 would not deprive Breland of
authority to reach an agreement with the defendants; at most, it would deprive the
defendants of the ability to enforce an agreement he had authority to enter. While
the plaintiffs in their brief speak in terms of enforceability as well as authority,
(Doc. 100 at 3-4), unenforceability under Rule 9019 is not an issue raised by the
plaintiffs, even tardily, and it therefore is not part of this case.4
E.g., In re: Seminole Walls & Ceilings Corp., 388 B.R. 386, 395 (M.D. Fla.
2008) (“[A] party to a valid settlement agreement is bound to the contract unless and until
the bankruptcy court rejects the settlement ….”); In re: Cotton, 136 B.R. 888, 890 (M.D.
Ga. 1992) (“[A] debtor’s agreement to compromise is binding upon all parties to the
agreement pending court approval of the agreement.”), rev’d on other grounds, 992 F.2d
311 (11th Cir. 1993); In re: Turner, 274 B.R. 675, 681 (Bankr. W. D. Pa. 2002)
(“Applying principles of contract law, it is clear that the parties before us reached a
binding agreement[, subject to a] condition subsequent” of judicial approval); In re:
Frye, 216 B.R. 166, 174 (Bankr. E.D. Va. 1997) (“The agreement is therefore binding on
the parties pending approval by this Court.”); In re: United Shipping Co., 1989 WL
12723 at *5 (Bankr. D. Minn. 1989) (“The absence of court approval does not mean that
the parties did not agree to the settlement. It only means that the court has not yet
The only unenforceability arguments preserved in the final pretrial document are
based on the statute of frauds. (Doc. 88-1 at 5, 9).
For the reasons set forth above, the Court concludes that the plaintiffs have
preserved no issue relating to either Breland’s authority to enter the alleged
agreement with the defendants or the unenforceability of the agreement for failure
to obtain the Bankruptcy Court’s approval of the agreement. Nor is the plaintiffs’
authority argument legally supportable. Accordingly, the plaintiffs are forbidden
to assert these issues before the jury by evidence or argument.5
DONE and ORDERED this 12th day of February, 2016.
s/ WILLIAM H. STEELE
CHIEF UNITED STATES DISTRICT JUDGE
The Court is concerned that the plaintiffs have now attempted to inject into this
complicated case, on the eve of trial, two issues that they failed to preserve for trial in the
joint pretrial document. The parties are admonished to confine themselves at trial to the
issues they have preserved in that document.
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