DOCUMENT 14

ELECTRONICALLY FILED
2/6/2023 4:31 PM
47-CV-2022-901399.00
CIRCUIT COURT OF
MADISON COUNTY, ALABAMA
DEBRA KIZER, CLERK
IN THE CIRCUIT COURT OF MADISON COUNTY, ALABAMA

REVELETTE ENTERPRISES, )
LLC and JONATHAN’S )
GRILLE – CLIFT FARMS, LLC, )
)
Plaintiffs, )
) Case No. 47-CV-2022-901399
v.
)
CLIFT HOME PLACE, LLC and )
BRELAND COMPANIES, LLC, )
)
Defendants. )

MOTION TO DISMISS

Pursuant to Alabama Rule of Civil Procedure 12(b)(6) and Ala. Code § 8-9-2, Defendants

Clift Home Place, LLC (“Clift Home”) and Breland Companies, LLC (“Breland Companies” and,

together with Clift Home, the “Breland Parties”) move to dismiss all of the claims asserted against

them in the Complaint (Doc. 2) filed by Plaintiffs Revelette Enterprises, LLC (“Revelette”) and

Jonathan’s Grille – Clift Farms, LLC (“Jonathan’s” and, together with Revelette, “Plaintiffs”). At

its core, the Complaint alleges that Plaintiffs are the beneficiaries of a restrictive covenant

preventing any other sports bar from operating in the Clift Farm development.1 Plaintiffs do not

— and cannot — cite to a single contractual provision, written agreement or signed document

supporting their position. This is fatal. As shown below, black-letter Alabama law squarely

defeats all of Plaintiffs’ claims for the following fundamental reasons:

1. Alabama’s Statute of Frauds bars the enforcement or proof of any alleged

“promise” that the Breland Parties would not sell or lease any land in Clift Farm to another sports

bar because that alleged agreement was never reduced to writing and signed by the Breland Parties.

1
This is commonly referred to as an “exclusivity” provision which, if agreed to, is heavily negotiated as to scope,
reduced to writing and recorded in the public records. (See Exs. A-1, A-2).
 DOCUMENT 14

2. The governing contract between Revelette and Clift Home contains no exclusivity

provisions, specifically requires any agreement regarding exclusivity to be in a signed amendment

and expressly disclaims reliance on any alleged representations or agreements outside the four

corners of the document.

3. Settled Alabama law precludes fraud claims that depend on an alleged agreement

that is void under the Statute of Frauds.

4. Since Plaintiffs allege the existence and enforceability of an express contract, they

cannot recover under an implied contract theory.2

INTRODUCTION

Plaintiffs’ Complaint is a textbook example of why the Statute of Frauds exists. All

agreements involving the sale of land or an interest in real property must be in writing and signed

to be enforceable. Despite the lack of any contractual provision or other signed writing to stand

on, Plaintiffs claim the Breland Parties “promised” they would never sell or lease any land in Clift

Farm to another sports bar. As a threshold matter, Plaintiffs’ claims are directly contradicted by

the written contract Revelette negotiated and signed. It contains zero exclusivity provisions,

covenants or restrictions that preclude another sports bar in the development and expressly

disclaims any representations not set forth in the document. Even more fundamentally, that

contract’s own terms and the Statute of Frauds both require that any amendment or modification

affording Plaintiffs exclusivity be in writing and signed to be effective. Plaintiffs cite three emails

out of context, none of which even remotely satisfies Alabama’s strict Statute of Frauds

requirements. As noted below, the parties did discuss possibly amending their contract to provide

2
In addition, Breland Companies is due to be dismissed as a defendant because the Complaint contains zero allegations
directly against it other than stating it “is the Manager of” Clift Home. (Doc. 2, ¶ 4). Moreover, Breland Companies
was not a party to the contract underlying the Complaint and therefore cannot be liable for any alleged breach. Ligon
Furniture Co. v. O.M. Hughes Ins., Inc., 551 So. 2d 283, 285 (Ala. 1989).

2
 DOCUMENT 14

some level of exclusivity. However, such an amendment was never negotiated, agreed to or

memorialized in writing.

FACTUAL ALLEGATIONS

Clift Home is the owner and developer of Clift Farm, a 550-acre, master planned

development in Madison County that brings together premier retail, dining, residential and office

spaces in a cohesive, vibrant community. On April 1, 2019, Revelette executed a contract with

Clift Home (the “PSA”) to purchase approximately 1.27 acres in Clift Farm (the “Property”) to

construct and operate a Jonathan’s Grille. (Doc. 2, ¶¶ 7–8; Ex. 1 to Compl.). Revelette is a

sophisticated business with its own in-house general counsel. Revelette and its affiliates own and

operate at least nine other restaurants and have a line of wines.

When negotiating the PSA, Revelette and Clift Home did not agree to or incorporate any

exclusivity provisions that preclude another sports bar in the Clift Farm development. (See Ex. 1

to Compl.). And, nothing in the document prevents Clift Home from allowing another sports bar

to operate in current or future phases of Clift Farm. Importantly, Plaintiffs do not allege that the

PSA contains any language that supports their claims.

In addition to there being no restrictions in the PSA, Revelette expressly disclaimed its

reliance on any previous or future representations of Clift Home that were not “expressly set forth

in” the PSA. Among other things, Revelette agreed:

EXCEPT AS EXPRESSLY SET FORTH [IN THE PSA] . . . [REVELETTE]

HAS NOT RELIED UPON AND WILL NOT RELY UPON, EITHER
DIRECTLY OR INDIRECTLY, ANY REPRESENTATION OR WARRANTY
OF [CLIFT HOME]. . . . EXCEPT AS EXPRESSLY SET FORTH [IN THE
PSA], [CLIFT HOME] SHALL SELL AND CONVEY TO [REVELETTE], AND
[REVELETTE] SHALL ACCEPT, THE PROPERTY “AS IS”, “WHERE
IS”, AND WITH ALL FAULTS, AND THERE ARE NO ORAL
AGREEMENTS, WARRANTIES OR REPRESENTATIONS
COLLATERAL TO OR AFFECTING THE PROPERTY BY [CLIFT
HOME] OR ANY THIRD PARTY. WITHOUT IN ANY WAY LIMITING

3
 DOCUMENT 14

ANY PROVISION OF THIS SECTION 9, [REVELETTE] SPECIFICALLY

ACKNOWLEDGES AND AGREES THAT IT HEREBY WAIVES, RELEASES
AND DISCHARGES ANY CLAIM IT HAS, MIGHT HAVE HAD OR MAY
HAVE AGAINST [CLIFT HOME] WITH RESPECT TO . . . (IV) ANY OTHER
STATE OF FACTS THAT EXISTS WITH RESPECT TO THE PROPERTY. . . .

(Id., § 9) (capitalization in original; emphasis added). This language directly contradicts Plaintiffs’

claims. Stated differently, if any party has breached the PSA, it is Revelette.

The PSA does not stop there. It goes even further by including a merger clause which

provides that the PSA “embodies the entire agreement between the parties and cannot be waived

or amended except by the written agreement executed by [Revelette] and [Clift Home.]” (Id.,

§ 14.1) (emphasis added). Plaintiffs’ claims are likewise a direct violation of this provision.

Revelette was well aware of this language in the PSA and the fact that exclusivity would

have required a written amendment to the contract. This is reflected in its own emails attached as

Exhibit 2 to the Complaint. There, Revelette specifically discussed amending the PSA to

ostensibly preclude another sports bar from Clift Farm. (See Ex. 2 to Compl.). However, the

parties never signed such an amendment, and Revelette elected to close the sale without it.

Revelette’s allegation that there was some “oral” agreement not to open a Walk-On’s in

Clift Farm is also directly contradicted by a recorded document that Plaintiffs are charged with

notice of, and specifically agreed to be bound by. In Section 4.2 of the PSA, Revelette agreed to

be bound by the Clift Farm Business Declaration (the “Business Declaration”), which sets forth

certain covenants, easements and restrictions applicable to the “Business District” in Clift Farm

that run with the land and bind all property owners within the Business District (including

Revelette). (Ex. 1 to Compl., § 4.2). Clift Home publicly recorded the Business Declaration on

June 19, 2019, and it recorded the First Amendment to the Business Declaration (the “Amended

Declaration”) on October 2, 2019. Recorded copies of the Business Declaration and the Amended

Declaration are attached as Exhibits A-1 and A-2.

4
 DOCUMENT 14

Exhibit D to the Amended Declaration is titled “Use Restrictions” and is a detailed, five-

page restriction preventing any property owner besides Publix from, among other things, operating

a grocery store in Clift Farm’s Business District or engaging “in retail sales” of food for off-

premises consumption. (Ex. A-2, at 12–17). Notably, Section B(i) of that exhibit exempts from

the restriction certain “sit down restaurants . . . such as . . . Jonathan’s [Grille] . . . and Walk-

On’s.” (Id., at 12, § B(i)). In other words — nearly a year before it closed on the Property —

Revelette not only knew what a formal exclusive use agreement would require, it also knew that

Walk-On’s was not excluded from Clift Farm. Nevertheless, Revelette closed the sale on

September 4, 2020, without negotiating or obtaining an amendment to the PSA or the Amended

Declaration.

At closing, Clift Home executed and delivered a deed conveying the Property to Revelette

(the “Deed”), subject to various title exceptions. A recorded copy of the Deed is attached as

Exhibit B. Importantly, Exhibit B to the Deed expressly identified the Amended Declaration as

an exception to title. (Ex. B, at 4, ¶ 10). Thus, on top of having notice of and agreeing to be bound

by the Amended Declaration, Revelette acquired title to the Property subject to the Amended

Declaration.3 (Id.; Ex. 1 to Compl., §§ 4.2, 8.2).

According to the Complaint, more two years after closing, “around October 2022,”

Plaintiffs allegedly learned that Walk-On’s announced it would be opening a restaurant in Clift

Farm. (Doc. 2, ¶ 19). Plaintiffs’ in-house counsel subsequently sent a letter to the Breland Parties

on November 2, 2022, claiming that this contradicted “the agreement to not open a Walk-On’s

restaurant within the Clift Farm community[.]” (Ex. 4 to Compl.). Contrary to Plaintiffs’

3
The Court can consider the Business Declaration and the Amended Declaration because they are incorporated into
the PSA, and Revelette agreed to be bound by them in Section 4.2 of the PSA. (Ex. 1 to Compl., § 4.2). The Deed is
likewise referenced in the PSA (Id., § 8), and the Court can take judicial notice of all three documents because they
are publicly recorded. See Johnson v. Hall, 10 So. 3d 1031, 1034–35 (Ala. 2008).

5
 DOCUMENT 14

allegation that the Breland Parties did not respond to this letter, the Breland Parties’ counsel sent

a response on November 17, 2022, which is attached as Exhibit C. In the response, the Breland

Parties’ counsel advised Plaintiffs’ counsel that the Statute of Frauds and the terms of the PSA

barred any contract or tort claims Plaintiffs intended to assert and that Plaintiffs had “no basis in

fact or law to pursue any type of claim or assert an ‘agreement’ regarding any level of exclusivity.”

(Ex. C, at 2). Moreover, the November 17, 2022 response demonstrates that the Breland Parties

had already confirmed their position on Plaintiffs’ claimed exclusive-sports-bar restriction on July

1, 2021. (Id. at 1–2). In that July 1, 2021 communication, the Breland Parties’ in-house counsel

reminded Plaintiffs’ counsel that exclusive agreements are: “[w]ithout fail . . . among the most

highly negotiated provisions in any lease or sales contract [at Clift Farm]. If [Clift Home] had

agreed to grant Jonathan’s a sports bar exclusive, that agreement would have been memorialized

in writing — either in the [PSA], or in a separate memorandum recorded against the encumbered

property at [Clift Farm], or both. That did not happen.” (Id. at 3). After citing the relevant

provisions of the PSA contradicting Plaintiffs’ claims, the July 1, 2021 letter ended with:

If you believe that we are mistaken about the relevant facts or law underlying this
matter, please notify me immediately, and provide whatever documentation or
other information you believe is pertinent to this situation. We would welcome the
opportunity to evaluate all of it. But, barring some revelation about unknown facts
or events surrounding our dealings with Jonathan’s Grille, we intend to move
forward with all business opportunities that present themselves to us — whether in
the form of a sports bar or not.

(Id. at 1–2, 5). Plaintiffs did not respond and sat idle for nearly 500 days — over 16 months. (Id.).

LEGAL STANDARD

A Rule 12(b)(6) motion to dismiss tests the legal sufficiency of a complaint to determine

if there is a “recognized legal basis” for granting the plaintiff relief. Pontius v. State Farm Mut.

Auto. Ins. Co., 915 So. 2d 557, 561 (Ala. 2005) (citation omitted); Anonymous v. Anonymous, 672

So. 2d 787, 788 (Ala. 1995). While courts are to accept the factual allegations in the complaint as

6
 DOCUMENT 14

true when considering a motion to dismiss, Nance v. Matthews, 622 So. 2d 297, 299 (Ala. 1993),

“conclusory allegations, unwarranted deductions of fact or legal conclusions masquerading as facts

will not prevent dismissal.” Ex parte Gilland, 274 So. 3d 976, 985, n.3 (Ala. 2018) (quoting

Oxford Asset Mgmt., Ltd. v. Jaharis, 297 F.3d 1182, 1188 (11th Cir. 2002)).

In ruling on a motion to dismiss, the Court may consider matters outside of the pleadings

when they are referenced in and central to the plaintiff’s complaint. Donoghue v. Am. Nat’l Ins.

Co., 838 So. 2d 1032, 1035 (Ala. 2002). “If the rule were otherwise, a plaintiff with a deficient

claim could survive a motion to dismiss simply by not attaching a dispositive document upon

which the plaintiff relied.” Id. (quoting GFF Corp. v. Associated Wholesale Grocers, Inc., 130

F.3d 1381, 1384–85 (10th Cir. 1997)). Further, “in case of a variance between the allegations of

the pleading and the exhibit thereto, the contents of the exhibit control.” McCullough v. Ala. By-

Products Corp., 343 So. 2d 508, 510 (Ala. 1977) (citing Twine v. Liberty Nat’l Ins. Co., 311 So.

2d 299 (Ala. 1975)) (other citations omitted).

ARGUMENT

Plaintiffs assert five claims in the Complaint: “Breach of Express Contract” (Count II)

against Clift Home; and “Promissory Fraud” (Count I), “Fraudulent Misrepresentation” (Count

III), “Deceit” (Count IV) and “Breach of Implied Contract” (Count V) against the Breland Parties.

Even accepting Plaintiffs’ allegations as true, none of these claims survive Rule 12(b)(6) scrutiny.

I. REVELETTE’S BREACH OF EXPRESS CONTRACT CLAIM (COUNT II) IS BARRED BY THE

STATUTE OF FRAUDS AND THE TERMS OF THE PSA.

In Count II, Revelette alleges that Clift Home “told Plaintiffs that they would not lease or

sell space or land in [Clift Farm] to [Walk-On’s]” and that Revelette agreed to purchase the

Property “[i]n consideration for Clift Home Place’s promise to exclude [Walk-On’s] from the

Development[.]” (Doc. 2, ¶¶ 32–33). This alleged “promise” is unenforceable for two reasons.

7
 DOCUMENT 14

First, it is void under the Statute of Frauds. Second, three independent provisions of the PSA

preclude it.

A. There is no signed writing that satisfies the Statute of Frauds.

In Alabama (and across the country), agreements that “implicate the conveyance of an

interest in land” or cannot be performed within one year are void unless they comply with the strict

requirements of the Statute of Frauds. See DeFriece v. McCorquodale, 998 So. 2d 465, 469–70

(Ala. 2008). Alabama’s Statute of Frauds provides, in relevant part:

In the following cases, every agreement is void unless such agreement or some note
or memorandum thereof expressing the consideration is in writing and subscribed
by the party to be charged therewith or some other person by him thereunto lawfully
authorized in writing:

(1) Every agreement which, by its terms, is not to be performed within one year
from the making thereof;
....

(5) Every contract for the sale of lands, tenements or hereditaments, or of any
interest therein . . . , unless the purchase money, or a portion thereof is paid and the
purchaser is put in possession of the land by the seller[.]

Ala. Code § 8-9-2(1), (5). Additionally, contracts for the sale of land, like the PSA, can only be

modified through a writing that complies with the Statute of Frauds. Kelmor, LLC v. Ala.

Dynamics, Inc., 20 So. 3d 783, 792–93 (Ala. 2009). To satisfy the Statute of Frauds, the “writing”

must be “signed by the party against whom the contract is asserted” and “must also contain a recital

of the consideration supporting the contract.” Holman v. Childersburg Bancorporation, Inc., 852

So. 2d 691, 695 (Ala. 2002) (citation omitted). Further, sophisticated businesses versed in “the

acquisition and development of real property” — like Revelette — are charged with knowledge of

the Statute of Frauds’ requirements. See Wilma Corp. v. Fleming Foods of Ala., Inc., 613 So. 2d

8
 DOCUMENT 14

359, 366 (Ala. 1993) (“The requirement that real estate transactions be in writing is well known in

our society, particularly in the context of commercial business transactions.”).4

Restrictive covenants, such as a prohibition on using land for a specific purpose, are subject

to the Statute of Frauds. Marsh v. Cheeseman, 128 So. 796, 798 (Ala. 1930) (“They [restrictive

covenants] cannot rest in parol. A permanent easement or [e]ncumbrance on lands must rest on

something more enduring than the memory of witnesses.”); Sports World, Inc. v. Neil’s Sporting

Goods, Inc., 507 So. 2d 480, 482 (Ala. 1987) (noting that landlord’s oral agreement not to lease

space in mall to any other sporting goods store was subject to the Statute of Frauds and “should

have been put in writing”) (citing Marsh and Carter v. Stringfellow, 306 So. 2d 273, 275 (Ala.

1975)). This makes sense considering that “express restrictive covenants are disfavored under

Alabama law and are to be strictly construed, with all doubts resolved in favor of the free and

unrestricted use of land and against the covenants.” Collins v. Rodgers, 938 So. 2d 379, 385 (Ala.

2006) (citations omitted); see also Rentz v. Grant, 934 So. 2d 368, 373 (Ala. 2006) (noting that

oral promises for the sale of land or “of any interest therein” are “inherently suspect, and the Statute

of Frauds prohibits enforcement of such a promise even though both parties acknowledge the

existence of the oral agreement”).

Revelette’s contract claim fails for the simple reason that there is no signed writing in

which Clift Home “promised” that it would not sell or lease any land in Clift Farm to Walk-On’s.

Revelette cites to four sources of “promises” to support its allegations. None of them satisfy the

Statute of Frauds.

4
Wilma was partially overruled on another ground by Bruce v. Cole, 854 So. 2d 47 (Ala. 2003), “to the extent, but
only to the extent” it conflicts with Bruce’s holding that “an oral promise that is void by operation of the Statute of
Frauds will not support an action against the promisor for promissory fraud.” Bruce, 854 So. 2d at 58.

9
 DOCUMENT 14

Revelette first points to a meeting between Louis Breland and Curt Revelette during the

Due Diligence Period in which Mr. Breland allegedly “agreed” not to sell or lease any land in Clift

Farm to Walk-On’s if Revelette purchased the Property. (Doc. 2, ¶ 14). Even if true (which it is

not), this is a textbook example of an unenforceable oral agreement concerning the sale of land.

See DeFriece, 998 So. 2d at 469–70 (holding a mother’s promise to transfer property to her three

children and one son’s promise that he would not accept more than a one-third share of that

property “implicate the conveyance of an interest in land” and were void under the Statute of

Frauds) (citation omitted).

Next, Revelette cites to two emails dated May 17, 2019, and May 31, 2019, as evidence

that this alleged “promise” was “confirmed in writing.” (Doc. 2, ¶ 15; Ex. 2 to Compl.). Setting

aside that Revelette mischaracterizes what those emails actually say, neither of them comply with

the threshold requirements of the Statute of Frauds: they are not “signed by the party against whom

the contract is asserted” — Clift Home — nor do they “contain a recital of the consideration

supporting the contract.” Holman, 852 So. 2d at 695 (citation omitted); see also Southland Bank

v. A & A Drywall Supply Co., 21 So. 3d 1196, 1201 (Ala. 2008) (“There must be some

consideration on which the finger may be placed and of which it may be said, ‘this was given by

[Revelette] to [Clift Home], as the price for [excluding Walk-On’s from Clift Farm].’”) (citations

omitted). Though a writing does not need to be a complete contract to satisfy the Statute of Frauds,

“it must contain the essential terms of the alleged contract, ‘namely, an offer and an acceptance,

consideration, and mutual assent to the essential terms of the agreement.’” DeFriece, 998 So. 2d

at 471 (citation omitted). The May 2019 emails do not contain any of these essential terms.

Finally, Revelette relies on an email Mr. Breland sent to Mr. Revelette on March 14, 2021,

in which Mr. Breland states that he “told [Walk-On’s] no” after Walk-On’s expressed interest in

10
 DOCUMENT 14

buying a parcel of land near the Property. (Ex. 3 to Compl.). This email likewise fails to satisfy

the Statute of Frauds’ writing requirements. More fundamentally, Mr. Breland sent this email

more than six months after Revelette purchased the Property. Consequently, this email has zero

relevance to Revelette’s contract claim, and there is no signed writing saving Revelette’s claim

from the Statute of Frauds.

Again, as an entity experienced in commercial real estate transactions, Revelette is charged

with knowledge of the Statute of Frauds’ requirements. Wilma, 613 So. 2d at 366. Further,

Revelette knew exactly what a valid exclusive use restriction would look like nearly a year before

closing after Clift Home publicly recorded the Amended Declaration. (Ex. A-2); see also Ala.

Code § 35-4-51; Haines v. Tonning, 579 So. 2d 1308, 1310 (Ala. 1991) (noting that recording an

instrument “constitutes ‘conclusive notice to all the world of everything that appears from the face’

of the instrument.”) (citations omitted). Given the “well known” requirements of the Statute of

Frauds, the terms of the PSA and Revelette’s knowledge of the Amended Declaration ― not to

mention the fact that Revelette took title to the Property subject to an express provision allowing

Walk-On’s at Clift Farm ― it defies logic for Revelette to claim that the three emails it has taken

out of context can constitute an enforceable restrictive covenant.

B. The alleged “promise” could not be fully performed within one year.

Without a valid signed writing, Clift Home’s alleged “promise” is also unenforceable

because it was “incapable of being performed in one year.” Williams v. Hill, 17 So. 3d 229, 232–

33 (Ala. 2009); Ala. Code § 8-9-2(1). The restrictive covenant Plaintiffs claim is, in reality, a

perpetual agreement that Jonathan’s Grille would be the exclusive sports bar in Clift Farm. Indeed,

this is exactly the position Plaintiffs took in May 2021. (See Ex. C, at 3) (responding to Plaintiffs’

assertion of an alleged “promise of sports bar exclusivity in” Clift Farm).

11
 DOCUMENT 14

By its terms, that type of permanent restriction cannot be performed in one year and falls

squarely within the Statute of Frauds. Sports World, 507 So. 2d at 482 (“If the agreement [not to

lease space to another sporting goods store] had been intended to constitute a permanent restriction

on the use of the property, it should have been put in writing.”); Williams, 17 So. 3d at 323–33

(finding alleged “perpetual” agreement barred by the Statute of Frauds). Revelette clearly

expected that the alleged “agreement” would last longer than a year, which is only confirmed by

Plaintiffs filing this lawsuit more than three years after the May 2019 emails were sent. See Ripps

v. Powers, 356 F. App’x 352, 356 (11th Cir. 2009) (finding agreement barred by Alabama’s Statute

of Frauds where “the contract was contemplated to last for more than one year”) (citing Cox

Nuclear Pharm., Inc. v. CTI, Inc., 478 F.3d 1303, 1309–10 (11th Cir. 2007) (holding oral non-

compete agreement that the plaintiff expected would “continue for more than one year” was barred

by Alabama’s Statute of Frauds)). Further, Revelette did not even close on the Property until

September 2020 — well over a year after May 2019. Even if an exclusivity “agreement” existed

(it did not), Revelette cannot credibly argue that it was capable of being performed within one year

or that Revelette expected as much.

C. The PSA’s own terms preclude Revelette’s contract claim.

Count II is not only barred by the Statute of Frauds, but by three separate provisions of the

PSA. First, Revelette purchased the Property “AS IS,” “WHERE IS” and agreed: “EXCEPT AS

EXPRESSLY SET FORTH [IN THE PSA], WITH RESPECT TO THE PROPERTY,

[REVELETTE] HAS NOT RELIED UPON AND WILL NOT RELY UPON, EITHER

DIRECTLY OR INDIRECTLY, ANY REPRESENTATION OR WARRANTY OF” Clift Home.

(Ex. 1 to Compl., § 9) (emphasis added). The emails Revelette cites as the basis for Clift Home’s

alleged “promise” to exclude Walk-On’s from Clift Farm are, obviously, not “expressly set forth”

in the PSA, and therefore cannot be the basis of any alleged breach. Bradley v. Bauldree, 101 So.

12
 DOCUMENT 14

3d 221, 227 (Ala. Civ. App. 2012) (“In a suit upon a contract for damages for its breach, there can

be no recovery except in pursuance of its terms. . . . Where none of the terms of the contract sued

upon are given, manifestly no recovery c[an] be had.”) (citations omitted). More importantly,

Revelette disclaimed reliance on “any representation or warranty” not expressly set forth in the

PSA. Seong Ho Hwang v. Gladden, 2020 WL 521849, at *6–7 (M.D. Ala. Jan. 31, 2020)

(reasoning that disclaimers of reliance and “complete agreement” provision “completely

insulate[d]” the defendant from liability) (subsequently remanded on jurisdictional grounds).

Second, Section 14.1 of the PSA states: “This Agreement embodies the entire agreement

between the parties and cannot be waived or amended except by the written agreement executed

by [Revelette] and [Clift Home.]” (Ex. 1 to Compl., § 14.1) (emphasis added). This provision is

consistent with the rule that contracts involving the sale of land can only be modified through a

writing that complies with the Statute of Frauds. Kelmor, 20 So. 3d at 792–93; see also Univalor

Trust, SA v. Columbia Petro. LLC, 2016 WL 7670067, at *7 (S.D. Ala. 2016) (“Merger clauses

are enforceable under state contract law and have been given effect in Alabama for years. . . . [I]f

a written contract exists, the rights of the parties are controlled by that contract and parole evidence

is not admissible to contradict, vary, add to, or subtract from its terms.”) (citations and internal

quotation marks omitted). As shown by Revelette’s own emails, Revelette considered trying to

amend the PSA, but it never did so. (Ex. 2 to Compl.) (email from broker inquiring about preparing

an amendment to the PSA “to state that there wouldn’t be a sale to Walk Ons [sic] at Clift [Farm]”).

Third, Revelette agreed to be bound by the Business Declaration and Amended Declaration

in Section 4.2 of the PSA. (Ex. 1 to Compl., § 4.2). The Amended Declaration specifically

identified Walk-On’s as an entity that could be built, or otherwise operate, in Clift Farm. (Ex. A-

2, at 12, § B(i)). Revelette does not allege that it exercised its ability in Sections 4.3, 7.2 or 7.6 of

13
 DOCUMENT 14

the PSA to object to the Amended Declaration prior to closing. (See Ex. 1 to Compl., §§ 4.2–4.3,

7.2–7.6). Thus, Revelette waived any objections it may have had to the Amended Declaration and

Walk-On’s inclusion in Clift Farm. (Id., § 7.4). More importantly, the Amended Declaration was

recorded prior to closing and incorporated into Revelette’s Deed as an exception to title. (Ex. B,

at 4, ¶ 10). Not only did Revelette agree to be bound by the Amended Declaration in the PSA, it

expressly acquired title to the Property subject to the Amended Declaration’s terms and conditions.

(Id.; Ex. 1 to Compl., §§ 4.2–4.3, 7.3–7.4); Ex parte Smokerise Homeowners Ass’n, 962 So. 2d

793, 802 (Ala. 2007).

Put simply, if Revelette wanted an enforceable agreement for Jonathan’s Grille to be the

exclusive sports bar in Clift Farm, it was required to obtain a formal amendment to the PSA.

Revelette clearly knew as much, which is evidenced by (1) the communications attached to the

Complaint discussing a possible amendment and (2) the recorded Amended Declaration. (See Ex.

2 to Compl.; Ex. A-2). That amendment never materialized, and it certainly was never signed by

any of the parties. Clift Home cannot be liable for an alleged obligation the parties never agreed

on. Bradley, 101 So. 3d at 227.

II. ALL OF PLAINTIFFS’ FRAUD CLAIMS ARE BARRED BY THE STATUTE OF FRAUDS, THE
PSA AND THE AMENDED DECLARATION.

In Counts I, III and IV, Plaintiffs rely on the same alleged “promise” underlying Count II,

essentially recasting the breach of contract claim as claims for promissory fraud, fraudulent

misrepresentation and deceit. The Alabama Supreme Court has flatly rejected identical fraud

claims that seek to circumvent the Statute of Frauds and rely on unenforceable “promises.” This

is because “tort claims fail[] as a matter of law [if] they . . . ‘turn[] on proof of an alleged oral

promise’ that [is] precluded by the Statute of Frauds.” Branch Banking & Trust Co. v. Nichols,

14
 DOCUMENT 14

184 So. 3d 337, 346 (Ala. 2015) (quoting Holman, 852 So. 2d at 702). There is no reason for this

Court to depart from this settled principle of Alabama law.

A. Plaintiffs’ promissory fraud claim (Count I) fails because it is based on an

alleged “promise” that is void under the Statute of Frauds.

Plaintiffs claim in Count I that the Breland Parties represented during the Due Diligence

Period that they would not sell or lease any land in Clift Farm to Walk-On’s. (Doc. 2, ¶ 23).

According to Plaintiffs, the Breland Parties made this alleged promise to induce Plaintiffs to

proceed with purchasing the Property, and Plaintiffs relied on this alleged promise by proceeding

to closing. (Id., ¶¶ 25, 27). In other words, Plaintiffs seek to avoid the Statute of Frauds by

converting a contract claim into a promissory fraud claim. Established Alabama law does not

permit that.5

In Bruce v. Cole, the Alabama Supreme Court unequivocally held that “an oral promise

that is void by operation of the Statute of Frauds will not support an action against the promisor

for promissory fraud.” 854 So. 2d 47, 58 (Ala. 2003). The Court made clear that a plaintiff cannot

“avoid the effect of the Statute of Frauds by framing the claim as one alleging promissory fraud or

by invoking the historical fraud-in-the-inception exception to the Statute of Frauds.” DeFriece,

998 So. 2d at 471 (citing Bruce, 854 So. 2d 47). Indeed, allowing promissory fraud claims like

Plaintiffs’ to proceed “defies the policy and frustrates the efficacy of the Statute of Frauds.” Bruce,

854 So. 2d at 58.

Alabama courts have consistently applied this straightforward rule. See, e.g., DeFriece,

998 So. 2d at 470–71 (holding that the plaintiffs’ promissory fraud claim was “foreclosed by our

holding in Bruce” because it was based on an unenforceable promise); Nichols, 184 So. 3d at 346–

5
In addition, according to the Alabama Secretary of State’s website, Jonathan’s was not formed as a legal entity until
February 25, 2021. It could not have “relied” on the alleged oral agreement or the May 2019 emails for the simple
reason that it did not exist when those alleged “promises” were made.

15
 DOCUMENT 14

47 (rejecting claim that bank “made fraudulent representations to the [plaintiffs] to induce them to

enter into the loan agreement” when contract claim was barred by the Statute of Frauds); Brenda

Darlene, Inc. v. Bon Secour Fisheries, Inc., 101 So. 3d 1242, 1252–54 (Ala. Civ. App. 2012)

(rejecting promissory fraud claim where underlying promise was barred by the Statute of Frauds,

reasoning the plaintiffs “are unable to demonstrate reasonable reliance because of rules announced

in” Bruce and Wilma); Branch Banking & Trust Co. v. EBR Invests., LLC, 2015 WL 225457, at

*2 (N.D. Ala. Jan. 16, 2015) (dismissing claims for “misrepresentation/promissory fraud/fraud in

the inducement” because “the statute of frauds destroy[ed] the only alleged contract”).

Put simply, allowing Plaintiffs’ promissory fraud claim to survive would ignore express

directives from the Alabama Supreme Court and would revive an exception to the Statute of Frauds

that the Court abolished twenty years ago.

B. Plaintiffs’ fraudulent misrepresentation and deceit claims (Counts III–IV)

suffer the same fate as Count I.

Plaintiffs’ claims for fraudulent misrepresentation and deceit fare no better. This is because

“‘[i]f the proof of a promise or contract, void under the statute of frauds, is essential to maintain

the action, there may be no recovery.’” Holman, 852 So. 2d at 699 (quoting Pacurib v. Villacruz,

705 N.Y.S. 2d 819, 827 (N.Y. Civ. Ct. 1999)) (second emphasis added).

For example, in Holman, the plaintiffs asserted a claim for breach of contract and various

tort claims, including fraud, negligence, wantonness and slander of title. Id. at 699–702. After

holding that the contract claim was barred by the Statute of Frauds, the Court held that the Statute

of Frauds likewise barred all of the plaintiffs’ tort claims:

In accord with the general rule, we hold that where, as here, an element of a tort
claim turns on the existence of an alleged agreement that cannot, consistent with
the Statute of Frauds, be proved to support a breach-of-contract claim, the Statute
of Frauds also bars proof of that agreement to support the tort claim. Were the
rule otherwise, the Statute of Frauds could be effectively avoided by the simple
wording of the complaint.

16
 DOCUMENT 14

Id. at 701 (emphases added); see also Nichols, 184 So. 3d at 346–47 (“[T]he Nicholses’ tort claims

all turn on proof of alleged representations or promises that are invalid under the Statute of

Frauds . . . . Thus, the Nicholses’ tort claims also fail as a matter of law.”).

The Holman Court further noted that the facts underlying the plaintiffs’ fraud claims

“duplicated” those underlying their contract claim and that the plaintiffs sought the same damages

for both theories. Holman, 852 So. 2d at 701. The same is true here. A cursory review of the

Complaint confirms that Plaintiffs rely on the same allegations for both their contract and fraud

claims — i.e., that the Breland Parties “promised” they would not sell or lease any property in Clift

Farm to Walk-On’s. (Doc. 2, ¶¶ 32–35, 41–42). Moreover, the damages Plaintiffs seek in Counts

III–IV simply repeat those sought in Count II, including transaction costs; the purchase price for

the Property; development, investment and renovation costs; and opportunity costs, lost income

and lost business opportunities. (Id., ¶¶ 38, 44, 49).

As in Holman, Plaintiffs’ “recovery — whether under the breach-of-contract theory or

under any of the tort theories — turns on the existence of a[] . . . promise [not to sell lease or land

to Walk-On’s], the proof of which is barred by the Statute of Frauds.” Holman, 852 So. 2d at 700;

see also Nichols, 184 So. 3d at 346–47. Thus, the same fatal flaw that bars Counts I–II also

forecloses Plaintiffs’ other fraud claims.

C. The PSA and the Amended Declaration foreclose any reliance by Plaintiffs.

In addition to the Statute of Frauds’ total bar, Plaintiffs’ fraud claims fail for two additional

reasons. First, Revelette purchased the Property “AS IS,” “WHERE IS” and expressly agreed that

it “HAS NOT RELIED UPON AND WILL NOT RELY UPON” any representation of Clift

Home not contained in the PSA. (Ex. 1 to Compl., § 9) (emphasis added). This provision

completely forecloses Plaintiffs’ fraud claims “because an ‘as is’ clause negates the element of

reliance essential to any claim of fraud and/or fraudulent suppression.” Clay Kilgore Constr. v.

17
 DOCUMENT 14

Buchalter/Grant, L.L.C., 949 So. 2d 893, 895–98 (Ala. 2006) (affirming trial court’s judgment

finding the seller “explicitly disclaimed any duty by selling the land ‘as is’ to a builder in an arm’s

length commercial transaction.”); see also Gaulden v. Mitchell, 849 So. 2d 192, 194, 199 (Ala.

2002) (holding the plaintiffs “disclaimed any reliance on any representations” by signing contract

with “as is” clause and that disclaimed any representations not in the agreement).

Second, the Amended Declaration was publicly recorded in October 2019 — almost a year

before Revelette closed on the Property. (Ex. A-2). It is bedrock Alabama law that recording an

instrument “constitutes ‘conclusive notice to all the world of everything that appears from the face’

of the instrument.” Haines, 579 So. 2d at 1310 (citations omitted); Ala. Code § 35-4-51 (“[A]ll . . .

documents purporting to convey any right, title, easement, or interest in any real estate . . . shall

be admitted to record in the office of the probate judge of any county. Their filing for registration

shall constitute notice of their contents.”) (emphasis added); Ellis v. City of Montgomery, 460 F.

Supp. 2d 1301, 1306 (M.D. Ala. 2006) (“In Alabama, as in most States, transfers of land and

encumbrances on land are recorded in the probate office; future interest-holders are then said to be

on ‘record notice’ when real property undergoes a change in ownership or becomes encumbered.”).

The Amended Declaration put Plaintiffs on notice in October 2019 that Walk-On’s was not

excluded from Clift Farm. (Ex. A-2, at 12, § B(i)). Since Plaintiffs are charged with this

knowledge as a matter of law, they are precluded from claiming they reasonably relied on any

other representations to the contrary. See Boyce v. Cassese, 941 So. 2d 932, 943–45 (Ala. 2006)

(finding there could be no suppression of an easement when the easement was publicly recorded

four days before the transaction at issue); AmerUs Life Ins. Co. v. Smith, 5 So. 3d 1200, 1215–16

(Ala. 2008) (finding reliance unreasonable as a matter of law where documents in the transaction

conflicted with the alleged misrepresentations).

18
 DOCUMENT 14

III. PLAINTIFFS’ IMPLIED CONTRACT CLAIM (COUNT V) IS PRECLUDED BY THE PSA AND
VIOLATES THE STATUTE OF FRAUDS.

A. The implied contract claim fails because Plaintiffs allege the existence of an
express contract governing the same subject matter.

In Plaintiffs’ final claim, they seek to hold the Breland Parties liable under an implied

contract theory. In essence, Plaintiffs ask the Court to ignore the terms of the PSA and impose an

implied “exclusivity” provision that the parties never actually agreed on. This claim fails on its

face for the simple reason that Plaintiffs allege the existence of an express contract governing the

same subject as the implied contract: the sale of the Property to make Jonathan’s Grille a part of

the Clift Farm community.

“It has long been recognized that the existence of an express contract generally excludes

an implied agreement relative to the same subject matter.” Vardaman v. Florence City Bd. of Edu.,

544 So. 2d 962, 965 (Ala. 1989); see also Robinson Lumber Co. v. Sager, 75 So. 309, 309 (Ala.

1917) (“The existence of an express contract, which was here shown, precludes the legal

implication of an obligation with respect to the same subject-matter.”); White v. Microsoft Corp.,

454 F. Supp. 2d 1118, 1133 (S.D. Ala. 2006) (“The reasoning is simple: If the parties’ dealings

are covered by an express agreement, then there is no need to imply an agreement between them

to ward off inequitable results.”).

Here, Plaintiffs allege that a legally binding contract (the PSA) exists regarding the

purchase and sale of the Property for the operation of a Jonathan’s Grille at Clift Farm. (Doc. 2,

¶¶ 7–8, 22, 30–34). The first page of the PSA states that Revelette “desire[d] to construct and

operate a Jonathan’s Grille” in Clift Farm, which mirrors Plaintiffs’ description of the alleged

implied agreement: “Plaintiffs offered to purchase real property within [Clift Farm] from

Defendants for $1,189,188.00, and invest in the real property to construct and operate a Jonathan’s

Grille[.]” (Ex. 1 to Compl., at 1, ¶ B; Doc. 2, ¶ 51). In addition, the PSA incorporates the Business

19
 DOCUMENT 14

Declaration and the Amended Declaration, which set forth covenants and restrictions governing

the use of property in the Business District. (Ex. 1 to Compl., § 4.2). Those restrictions and

regulations are integral to the success of Clift Farm as a whole and include, among other things,

exclusive use restrictions, prohibitions on certain business uses and limited, specified exceptions

to the restrictions. (See Ex. A-2, at 12–17). The terms and conditions of the Business Declaration

and Amended Declaration “are part of the consideration for . . . the granting of deeds” to property

owners in the Business District and are likewise binding on tenants. (Ex. A-1, § 4.1).

The Breland Parties do not dispute the existence or validity of the PSA. As such, Plaintiffs

cannot circumvent that express contract through an implied contract theory. Vardaman, 544 So.

2d at 965 (rejecting implied contract claim even when the plaintiffs argued that “not all of the

terms of the contract . . . were expressly stated” in the express contract). Moreover, the Breland

Parties could not enter into an implied contract with Jonathan’s related to the Property or

Jonathan’s Grille because Jonathan’s did not exist as an entity until February 2021 — five months

after Revelette purchased the Property. Again, if Plaintiffs wanted a binding “exclusivity”

agreement from the Breland Parties, the PSA required them to execute a formal amendment to the

PSA. They did not do so, and they cannot obtain an implied agreement to impose an obligation

that the Breland Parties never agreed to.

B. The Statute of Frauds also precludes Plaintiffs’ implied contract claim.

As discussed in detail above, Plaintiffs’ express contract and tort claims are all barred by

the Statute of Frauds. Plaintiffs’ implied contract claim cannot survive for the same reasons. See

Davis v. Wells Fargo Home Mortg., Inc., 2016 WL 393850, at *4 (N.D. Ala. Feb. 2, 2016) (“[E]ven

if an implied contract existed, it would be barred by Alabama’s Statute of Frauds.”); Collins, 938

20
 DOCUMENT 14

So. 2d at 385 (“Logically, if express restrictive covenants are disfavored under the law, implied

restrictive covenants are to be viewed with even less favor.”).

IV. PLAINTIFFS’ CLAIMS ARE ALSO BARRED BY LACHES BECAUSE THEIR DELAY
ASSERTING THEIR ALLEGED RIGHTS PREJUDICED THE BRELAND PARTIES.

Even if Plaintiffs stated legally viable claims, they are barred as a matter of law from

recovery due to laches. Laches “is founded upon the inequity of permitting [a] claim to be

enforced—an inequity founded upon some change in the condition or relation of the property, or

the parties.” Darden v. Meadows, 68 So. 2d 709, 712 (Ala. 1953) (quoting Galliher v. Caldwell,

145 U.S. 368 (1892)). Laches precludes recovery when, as here, “knowing his rights, [a plaintiff]

takes no step to enforce them until the condition of the party has, in good faith, become so changed

that he cannot be restored to his former state[.]” Id. (citation omitted). When that occurs, the

“delay becomes inequitable” and prevents “the assertion of the right.” Id. The prejudice to the

defendant precluding the plaintiff’s recovery can be from “change of title, intervention of equities,

and other causes; but, when a court sees negligence on one side and injury therefrom on the other,

it is a ground for denial of relief.” Id.

Here, Clift Home recorded the Amended Declaration in October 2019, which clearly

indicated that Walk-On’s was not excluded from Clift Farm and provided an example of an

enforceable exclusive use restriction. (Ex. A-2). Revelette did nothing and proceeded to closing

without obtaining an amendment to the PSA. After Plaintiffs claimed they had exclusivity in May

2021, the Breland Parties responded on July 1, 2021, confirming that they did not have any “sports

bar exclusive” at Clift Farm and that Clift Home “remain[ed] free to sell or lease [the] property at

Clift Farm to any user, including other sports bars[.]” (Ex. C, at 4). Plaintiffs again did nothing

and sat on their alleged “rights” for over 16 months until November 2, 2022. (Ex. 4 to Compl.).

During that time, and without hearing a word from Plaintiffs, Clift Home materially changed its

21
 DOCUMENT 14

position “in good faith” by selling property to a developer for the construction and operation of a

Walk-On’s. (See Ex. C, at 1–2). That change cannot be undone, particularly after Revelette agreed

to purchase the Property with knowledge of (and subject to) the Amended Declaration, and

Plaintiffs failed to take any action for 16 months after the Breland Parties confirmed there was no

“sports bar exclusive” at Clift Farm. In short, Plaintiffs’ silence combined with the material

“change in the condition or relation of property [and] the parties” forecloses Plaintiffs’ recovery.

See Darden, 68 So. 2d at 712.

CONCLUSION

For the foregoing reasons, the Breland Parties request that the Court dismiss the Complaint

in its entirety, with prejudice, and that they be awarded their attorneys’ fees pursuant to Section

14.9 of the PSA.

Dated: February 6, 2023 Respectfully Submitted:

/s/ Walter A. Dodgen

Walter A. Dodgen
Zachary P. Mardis
MAYNARD, COOPER & GALE, P.C.
655 Gallatin Street S.W.
Huntsville, AL 35801
Phone: (256) 551-0171
Fax: (256) 512-0119
[email protected]
[email protected]

Counsel for the Breland Parties

22
 DOCUMENT 14

CERTIFICATE OF SERVICE

I hereby certify that on February 6, 2023, I filed the foregoing with the Clerk of Court using
the Court’s electronic filing system, which will automatically send notice of such filing to all
counsel of record.

/s/ Walter A. Dodgen

Of Counsel

23