Marrero v. McDonnell Douglas Capital Corp.
| Citation | 505 N.W.2d 275,200 Mich.App. 438 |
| Decision Date | 25 June 1993 |
| Docket Number | Docket No. 137972 |
| Parties | Manuel E. MARRERO, Plaintiff-Appellant, v. McDONNELL DOUGLAS CAPITAL CORPORATION, Defendant-Appellee, and Alan Forrester, Defendant. |
| Court | Court of Appeal of Michigan (US) |
Harvey, Kruse, Westen & Milan, P.C. by Lisa T. Milton and Frances H. Porretta, Troy, for Manuel E. Marrero.
Dickinson, Wright, Moon, Van Dusen & Freeman by Henry W. Saad and Terry W. Milne, Bloomfield Hills, for McDonnell Douglas Capital Corp.
Before BRENNAN, P.J., and MARK J. CAVANAGH and CORRIGAN, JJ.
In this breach of contract action, plaintiff appeals the trial court's grant of summary disposition to defendant McDonnell Douglas Capital Corporation (MDCC) pursuant to MCR 2.116(C)(7) (statute of frauds) and 2.116(C)(10). We affirm.
Plaintiff was employed as a salesman at Burroughs Corporation in Mexico in 1986 when he learned of an opening at First National Capital C. In 1987, he met with an agent of FNC, Thomas Husband, and discussed the possibilities of employment and FNC's opening of a branch office in Puerto Rico. Plaintiff resigned from Burroughs, moved to Michigan, and began working for FNC in April 1987. Plaintiff's family, which had been living in Mexico, relocated to Puerto Rico, where plaintiff's mother-in-law lived. (This move was made at Burroughs' expense by prearrangement with plaintiff.)
In September 1987, believing that the compensation was not what he had been promised, plaintiff met with Husband, who outlined a three-year compensation plan and suggested that plaintiff move his family to Michigan. No written record of this meeting or the compensation arrangements was ever made. Plaintiff's family joined him in Michigan in December 1987.
MDCC took over FNC, restructured the corporation, and eliminated plaintiff's position in February 1989. Plaintiff was not offered a position with MDCC. He sued MDCC and its president in June 1990, alleging breach of contract, promissory and equitable estoppel, intentional infliction of emotional distress, and misrepresentation. The trial court granted MDCC's motion for summary disposition of all counts and sua sponte dismissed the claims against MDCC's president as well. On appeal, plaintiff does not challenge the decision to dismiss MDCC's president or the dismissal of the claim of intentional infliction of emotional distress.
The standard of review under MCR 2.116(C)(7) requires us to accept all plaintiff's well-pleaded allegations as true and to construe them most favorably to the plaintiff. Beauregard-Bezou v. Pierce, 194 Mich.App. 388, 390-391, 487 N.W.2d 792 (1992); Bonner v. Chicago Title Ins. Co., 194 Mich.App. 462, 469, 487 N.W.2d 807 (1992). In reviewing a motion under MCR 2.116(C)(7), a court must consider all affidavits, pleadings, depositions, admissions, and documentary evidence filed or submitted by the parties. The motion should not be granted unless no factual development could provide a basis for recovery. Harrison v. Director, Dep't of Corrections, 194 Mich.App. 446, 449, 487 N.W.2d 799 (1992); MCR 2.116(C)(7); MCR 2.116(G)(5).
A motion for summary disposition under MCR 2.116(C)(10) tests the factual support for a claim. A court must consider the pleadings, affidavits, depositions, admissions, and other documentary evidence available to it and grant summary disposition if there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. AFL-CIO v. Civil Service Comm., 191 Mich.App. 535, 546-547, 478 N.W.2d 722 (1991); Panich v. Iron Wood Products Corp., 179 Mich.App. 136, 139, 445 N.W.2d 795 (1989).
Defendant argued below that plaintiff's claims are barred by the statute of frauds, M.C.L. § 566.132(1)(a); M.S.A. § 26.922(1)(a), which requires that "[a]n agreement that, by its terms, is not to be performed within 1 year from the making thereof" be in writing and signed by the party to be charged if it is to be enforced. We agree.
A contract, including an employment contract, that is not capable of being performed within one year is within the statute. Schipani v. Ford Motor Co., 102 Mich.App. 606, 612, 302 N.W.2d 307 (1981). Plaintiff's own deposition testimony reflects that the alleged September 1987 contract was for a three-year term. "By its terms," then, the contract could not have been "performed within one year" and so falls within the statute of frauds. Plaintiff attempts to avoid the effect of the statute of frauds in two ways. First, he alleges that, because he could have been fired within one year, the contract could have been performed within one year and so M.C.L. § 566.132(1)(a); M.S.A. § 26.922(1)(a) does not apply. The critical term here is "performed." The alleged three-year contract could not have been performed within one year by either party. The possibilities of breach of contract, or termination by agreement, or dissolution in some other way in less than one year do not make the contract one that "by its terms " could have been performed within one year from being made.
Plaintiff's claim of promissory estoppel also fails.
The elements of equitable or promissory estoppel are (1) a promise; (2) that the promisor should reasonably have expected to induce action of a definite and substantial character on the part of the promisee; (3) which in fact produced reliance or forbearance of that nature; and (4) in circumstances such that the promise must be enforced if injustice is to be avoided. [Schipani, supra at 612-613, 302 N.W.2d 307.]
The doctrine of promissory estoppel is cautiously applied. State Bank of Standish v. Curry, 190 Mich.App. 616, 621, 476 N.W.2d 635 (1991), reversed in part on other grounds 442 Mich. 76, 500 N.W.2d 104 (1993). The sine qua non of promissory estoppel is a promise that is definite and clear. Id. at 620, 476 N.W.2d 635; see also Kamalnath v. Mercy Memorial Hosp. Corp., 194 Mich.App. 543, 552, 487 N.W.2d 499 (1992); Martin v. East Lansing School Dist., 193 Mich.App. 166, 178, 483 N.W.2d 656 (1992).
Plaintiff has inverted the sequence of events necessary to establish promissory estoppel. His resignation from Burroughs and the decision to move his family to Puerto Rico preceded, by at least six months, the meeting at which the alleged promise of a three-year contract was made. Plaintiff cannot have relied on the purported promise of employment through 1990 when he took these actions. In addition, resignation from one position to assume another and relocation of family would be customary and necessary incidents of changing jobs rather than consideration to support a promissory estoppel claim. Cunningham v. 4-D Tool Co., 182 Mich.App. 99, 105, 451 N.W.2d 514 (1989).
The only "promise" made to plaintiff before he resigned from Burroughs as to length of employment was that he "would be taken care...
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