Dumas, Cliff v. Infinity Broadcastin ( 2005 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 04-1133
CLIFF DUMAS,
Plaintiff-Appellant,
v.
INFINITY BROADCASTING
CORPORATION and WUSN-FM,
Defendants-Appellees.
____________
Appeal from the United States District Court for
the Northern District of Illinois, Eastern Division.
No. 03 C 4713—James F. Holderman, Judge.
____________
ARGUED SEPTEMBER 15, 2004—DECIDED AUGUST 1, 2005
____________
Before FLAUM, Chief Judge, and COFFEY and KANNE,
Circuit Judges.
COFFEY, Circuit Judge. On July 7, 2003, Cliff Dumas, a
country music radio personality, filed a diversity action in
the United States District Court for the District of
New Mexico against Infinity Broadcasting Corporation
(“Infinity”) and its Chicago affiliate, WUSN-FM (“US-99”).
In his complaint, Dumas alleged that he was entitled to
monetary damages for breach of contract and promissory
2 No. 04-1133
estoppel arising out of an unfulfilled employment agree-
ment with US-99. Shortly after the complaint was filed, the
case was transferred on Infinity’s motion to the
United States District Court for the Northern District of
Illinois. Following discovery, the defendants moved for
summary judgment pursuant to FED. R. CIV. P. 56. The
district court agreed and granted the defendants’ motion,
finding that Dumas’ claim for breach of contract was barred
by the Illinois statute of frauds and, as a result, his promis-
sory estoppel claim was untenable. We affirm.
I. BACKGROUND
Although country music is most often thought of in terms
of geographical locales such as Nashville, Tennessee and
Dallas, Texas, it seems that Canadians enjoy entertainers
such as Anne Murray, Patsy Cline and Johnny Cash just as
much as their American counterparts. Living proof of this
phenomenon is Cliff Dumas, a country music radio broad-
caster with an excess of 24 years of experience, most of it in
places such as Calgary and Toronto in Canada. Throughout
his career, Dumas has hosted a number of successful radio
programs, an example of which is the syndicated “Canadian
Country Countdown,” which was broadcast throughout
Canada. Indeed, in 1990 Dumas was honored by the
Country Music Association and presented with the “Me-
dium Market Broadcast Personality of the Year,” the first
time such an award was given to a radio host outside the
United States.
Beginning in 2000, Dumas attempted to leverage his
accomplishments in Canadian radio and began soliciting
employment in the United States market. At some point,
toward the end of April of that year, he was contacted by
Scott Aurand (a.k.a. Justin Case), the program director of
a country music radio station in Chicago, US-99. Aurand
No. 04-1133 3
expressed an interest in flying Dumas and his wife to meet
with himself and other US-99 executives regarding possible
employment opportunities. Dumas accepted Aurand’s offer,
and while in Chicago spoke with Aurand and the US-99’s
general manager, Steve Ennen, concerning a possible
opening for Dumas as host of the US-99 morning show. At
this point it became evident that although Dumas was
negotiating directly with Aurand, it was Ennen and others
in management positions at the station and Infinity that
would have the final decision-making authority as to his
hiring. Upon his return to Canada, Dumas was informed by
Aurand via e-mail that based on his salary and bonus
requests, as well as job expectations, Ennen “would not
present [the proposal] to corporate”, meaning the deal was
effectively dead.1 With the two parties far apart from a
1
In an e-mail dated May 3, 2000, Aurand outlined that the offer
that the station was willing to give Dumas was a five-year deal
with $150,000 for the first year and a $10,000 raise the following
four years. Also, the station was willing to guarantee bonuses
commensurate to performance starting at $10,000 for a fifth place
ranking in the ratings for the morning time slot and an additional
$10,000 for each step up in the ratings, with $40,000 for a first
place ranking. However, apparently Dumas was seeking “a salary
of 200 thousand [sic] plus,” with “a 100 thousand [sic] signing
bonus and 250 thousand dollar [sic] buy out [sic] plus a 100
thousand [sic] completion of contract bonus.” Dumas also stated
that while “[a] signing bonus would be great . . . I feel a buy out
[sic] is an absolute must.”
Aurand responded to Dumas’ counteroffer by stating that he
would “take it to Steve [Ennen],” but cautioned that in his opinion
they were “a long way away.” As noted above, Ennen refused to
present the deal to the station’s owners at Infinity. Indeed,
Aurand informed Dumas that Infinity “works differently” and that
the numbers Dumas was asking for might be appropriate for “a
(continued...)
4 No. 04-1133
compromise on monetary and other issues2 concerning the
employment opportunity, negotiations broke down without
Infinity ever making an official job offer and Dumas began
pursuing other opportunities.
Shortly thereafter, Dumas was contacted by Citadel
Communications Corporation, another broadcasting com-
pany, about hosting a morning show on a station they
owned in Albuquerque, New Mexico. An interview was ar-
ranged and a few days later Dumas accepted the position,
officially taking over the morning program at KRST and
moving his family to New Mexico at the end of May 2000.
Approximately a year and a half passed without any
further negotiation or contact between Dumas and the man-
agement of US-99. This changed in December of 2001,
however, when Dumas and Aurand began communicating
once again. Initially, the conversations between the two
were friendly interactions about how each party was faring
as well as about a small debt that Dumas owed Aurand
during his Chicago visit in 2000. However, beginning in
February of 2002, the two men once again began discussing
the possibility of Dumas hosting a radio program at US-99.
In a series of e-mails exchanged between Dumas and
Aurand beginning on or about February 22, 2002, Dumas
related his intention to leave his job at KRST (Albuquerque)
and informed him that he had sold his house in order that
he might be ready to move when “the right opportunity”
presented itself. Aurand responded by telling Dumas that
he should keep in touch.
1
(...continued)
second contract if [he] were wildly successful,” but not as an initial
offering. In other words, it seems Dumas was overshooting the
target.
2
Dumas stated that he “kind of felt that” if he were to accept
employment at US-99 he would be “jumping into a sinking ship.”
Dumas Depo. at 56.
No. 04-1133 5
Allegedly, over the next month-and-a-half, a number of
phone calls ensued between the two, culminating in an
April 8, 2002 e-mail in which Aurand asked Dumas to
identify what salary range he would consider accepting for
an opportunity to host the morning show at US-99,3 with
the choices ranging from $125,000 to $250,000. Dumas re-
plied that “something in the 175 to 225 range seems right.”
Aurand replied with an e-mail dated April 29, 2002
wherein he informed Dumas that “[i]t is important that we
start talking ‘real’ opportunity . . . [t]here may be ‘real’
opportunity [at the station for you] . . . I’m going to need
a regular influx of tape.”4 In addition, the e-mail sets out
numerous other talking points that need to be discussed,
such as: (a) whether or not Dumas’ personality and radio
demeanor would fit in at the station; (b) who would join
him, if anyone, on the air; (c) whether Dumas intended to
stay with the station for an extended period of time; (d)
whether Dumas could work effectively as a leader; and (e)
whether Dumas and US-99 could compromise on the issue
3
The full text of the e-mail, with the subject line “what are we
looking at” reads:
Cliff,
So give me an idea of where you’re [sic] heads [sic] at.
1. 125 to 175
2. 175 to 225
3. 225 to 250
4. not going to happen.
Justin Case
4
When Aurand asks Dumas for a “regular influx of tape” he is
asking that Dumas send him tape recordings of his show at KRST
so that Aurand and US-99 management can get a feel for his
personality and the manner in which he conducts himself on the
air.
6 No. 04-1133
of salary.5 Dumas claims that, following this e-mail, he and
Aurand had a number of subsequent telephone conver-
sations regarding the philosophy (i.e., the age, gender and
income bracket of the targeted audience) of the proposed
morning show, the time frame of Dumas’ potential employ-
ment as well as the financial terms of the potential agree-
ment. Indeed, Dumas alleges that all the components of a
contract were in place such as salary ($175,000 to start),
start date (August 4, 2002) and contract length (5 years
with an option for 5 more) and that the contract was orally
consummated via telephone on May 20, 2002.
On May 20, Aurand informed Dumas via e-mail that, be-
cause the morning show at US-99 had dropped to 16th in
the most recent ratings, the station was “moving forward
with [their] plans to bring [him] in.” Aurand outlined a for-
mula for the morning show and informed Dumas in plain
terms that his goal was to move the show up in the ratings.
With the help of the right new morning host, Aurand
believed he would be able to move the show from where it
presently was in the ratings to the top 8 among all radio
formats in the Chicago market.6
5
As to the money issue, Aurand writes in the April 29 e-mail
that: “I think we can compromise here. There may be a window.
You need to be willing to prove yourself to some extent . . . and we
need to be able to pay a little more than we are comfortable with.
If you can get us into scoring position . . . we can all make a little
dough.”
6
In pertinent part the e-mail states: “Trend [i.e., ratings] came
out today-down-morning show 16th 25-54. This is not acceptable.
We are moving forward with our plans to bring you in. Here is our
formula for the AM show. How does this strike you. We will likely
reduce it to TWO players—CLIFF & TRISH. (no producer at
beginning) [with the format being] 1) Warm & Friendly [sic] 2)
Music Focused (at start) [sic] 3) Brief & Topical [sic] 4) positive
(continued...)
No. 04-1133 7
Despite Aurand’s enthusiasm for Dumas in late May, the
record reflects that Dumas was having a problem obtaining
the necessary release before negotiating with any interested
parties from KRST.7 Indeed, on June 4, 2002, Aurand
advised Dumas in writing that: “We can’t do anything
without a release . . . [v]erbal does not count for our legal
team . . . [b]est of luck securing the paper work.” Dumas
responded by writing that he was “just waiting for the . . .
paper work” from management and informed Aurand that
he had advised KRST that June 21, 2002 would be his last
day at that station. Apparently Aurand was surprised at
this turn of events and wrote back the next day stating:
“You are leaving—as in done? Do you have the option of
staying? You said you were just getting a waiver to look at
opportunities. Hope you did not burn a bridge.” Shortly
thereafter Dumas did obtain a written release from his
contract on June 6, 2002, which he in turn forwarded to
Aurand, and tendered his resignation to KRST effective
June 24, 2002. Dumas claims that shortly after receiving
the June 4 e-mail he contacted Aurand on the telephone
and was assured that once Infinity’s lawyers received the
written release document Dumas’ employment would be
assured, but admits that Aurand also told him that he
should contact Eric Logan (Aurand’s supervisor), who had
recently been hired as the operations manager at US-99
and would have to “sign off” on the hiring of Dumas.
On June 13, 2002, Dumas took Aurand’s advice and sent
an e-mail to Logan introducing himself and stating that he
looked “forward to talking . . . about what [he could] bring
6
(...continued)
[sic] a) Love the city [sic] b) Love the listener [sic] c) Love the
music [sic] The goal for the show is to be in the (TOP 8) 25-54 all
formats.”
7
The parent company of US-99, Infinity, required a release from
KRST before carrying on any further negotiations with Dumas.
8 No. 04-1133
to the station and the company.” In the same e-mail, Dumas
informed Logan that he had been released from his contract
“to pursue this opportunity,” and reminded Logan of the
“discussions [he and Aurand] had about taking over the
morning show in August.” The remainder of the e-mail to
Logan contains a protracted recitation of Dumas’ qualifi-
cations for the morning host position and closes with a
reference to the fact that Aurand was aware of his merits as
a performer including the tapes that he had previously
forwarded to Aurand up to that “point in the negotiations.”
Although Logan was in transit at the time, he set up an
appointment to talk with Dumas in the near future. The
two eventually did talk and Dumas recalls being reassured
that “everything was moving forward.”
Over the next few weeks Dumas continued to send Logan
e-mails espousing his qualifications in an attempt to con-
vince Logan that he was the right person for the job. For
example, on June 28, 2002, Dumas sent Logan a follow-up
e-mail with a list of references for him to peruse while “con-
sidering [his] options.” Then, on July 12, 2002, Dumas’ tone
turned a bit more anxious and he pleaded with Logan to tell
him whether the “pending deal was going to fly,” while
letting him know that he had waited “for close to a month
for a decision to be made.” Nonetheless, Dumas made clear
that he had “a couple of other opportunities in Toronto, op-
portunities I want to take.” The situation became consider-
ably more tempestuous on July 23, however, when Dumas
challenged Logan to “come up with a financial arrangement
to help me out of this mess we’ve got ourselves into,” and
offered that his “lawyer [had] copies of everything.” At this
point US-99 executives stopped returning Dumas’ phone
calls and e-mails, and Dumas became aware that his
chances of being employed with the company had been
eclipsed.
On July 7, 2003, Dumas brought suit against US-99's
parent corporation, Infinity, claiming that he was entitled
No. 04-1133 9
to damages for breach of contract and promissory estoppel
based on his dealings with US-99. Although the legal action
was originally filed in the United States District Court for
the District of New Mexico, the case was subsequently
transferred for trial to the Northern District of Illinois and,
after discovery, Infinity moved for summary judgment. The
district court granted Infinity’s motion, finding that both of
Dumas’ claims were controlled by Illinois law. Furthermore,
the court found that both of Dumas’ claims failed as a
matter of law because of his failure to produce sufficient
documentary evidence establishing the existence of a written
contract or agreement, as required by the Illinois statute of
frauds, between himself and Infinity. We affirm.
II. DISCUSSION
We review a district court’s grant of summary judgment
de novo, and will view all the facts and draw all reasonable
inferences therefrom in favor of the non-movant, Dumas.
Hardy v. Univ. of Ill. at Chicago, 328 F.3d 361, 364 (7th Cir.
2003); Architectural Metal Systems, Inc. v. Consolidated
Systems, Inc., 58 F.3d 1227, 1228 (7th Cir. 1995). Summary
judgment is proper only in cases where “there is no genuine
issue as to any material fact and the moving party is
entitled to judgment as a matter of law.” FED. R. CIV. P.
56(c); Smith v. Ball State Univ., 295 F.3d 763, 767 (7th Cir.
2002).
On appeal Dumas does not challenge the district court’s
finding that Illinois law controls nor does he challenge the
court’s determination that his breach of contract claim is
barred by the Illinois statute of frauds, which requires that
any “promise or agreement” that cannot be performed
within one year be documented in writing. Accordingly, the
only issue we are presented with on appeal is whether, as
a matter of law, Dumas has presented sufficient evidence to
establish a viable claim for promissory estoppel and what,
if any, application the statute of frauds has upon this claim.
10 No. 04-1133
Dumas presents this court with what can only be classi-
fied as a most confusing and convoluted argument. At the
outset, Dumas admits that he has no quarrel with the
district court’s determination that his breach of contract
claim is barred by Illinois’ statute of frauds because any
alleged contract between US-99 and himself could not be
established with the paucity of written evidence (e-mails)
presented to the district court. See 740 ILCS 80/1. Also,
Dumas readily concedes, as he must, that “his promissory
estoppel claim is [also] within the [scope of the] Illinois
statute of frauds.” Appellant’s Brief at 15; see Fischer v.
First Chicago Capital Markets, Inc., 195 F.3d 279, 284 (7th
Cir. 1999) (“Under Illinois law, the statute of frauds is
applicable to a promise claimed to be enforceable by virtue
of the doctrine of promissory estoppel.”); McInerney v.
Charter Golf, Inc., 176 Ill. 2d 482, 492, 223 Ill. Dec. 911, 916,
680 N.E.2d 1347, 1352 (Ill. 1997).8 Nonetheless, Dumas
claims that he can prevail, as a matter of law, on his
promissory estoppel claim by employing documentary
evidence, which he concedes falls short of satisfying the
Illinois statute of frauds for contract purposes, to establish
that Infinity made an unambiguous promise to employ him
under a promissory estoppel theory.
8
It should be noted that under Illinois law a claim for equitable
estoppel, unlike promissory estoppel, is not subject to the re-
quirements of the statute of frauds. See Dickens v. Quincy College
Corp., 245 Ill.App.3d 1055, 1062, 185 Ill. Dec. 822, 826, 615 N.E.2d
381, 385 (Ill. App. Ct. 1993) (citing Cohn v. Checker Motors Corp.,
233 Ill.App.3d 839, 845-46 (Ill. App. Ct. 1992)), accord Ozier v.
Haines, 411 Ill. 160, 165, 103 N.E.2d 485, 488 (Ill. 1952). However,
at no point in the proceedings either in this court or in the trial
court did Dumas advance a claim based on equitable estoppel
grounds. Thus, we will not consider whether the outcome of this
case would be altered by the introduction of a claim for equitable
estoppel.
No. 04-1133 11
The Illinois Supreme Court has delineated a four-part
test to determine whether a claim premised on promissory
estoppel grounds may succeed, which requires a plaintiff to
prove that “(1) defendants made an unambiguous promise
to plaintiff, (2) plaintiff relied on such promise, (3) plaintiff’s
reliance was expected and foreseeable by defendants, and
(4) plaintiff relied on the promise to its detriment.” Quake
Constr., Inc. v. American Airlines, Inc., 141 Ill. 2d 281, 309-
10, 152 Ill. Dec. 308, 322, 565 N.E.2d 990, 1004 (Ill. 1990)
(quoting Yardley v. Yardley, 137 Ill.App.3d 747, 754, 92
Ill. Dec. 142, 484 N.E.2d 873 (Ill. App. Ct. 1985)); see Bank
of Marion v. Robert “Chick” Fritz, Inc., 57 Ill. 2d 120, 124,
311 N.E.2d 138, 140 (Ill. 1974). As we have noted in the
past, however, “[p]romissory estoppel is not a doctrine
designed to give a party . . . a second bite at the apple in the
event that it fails to prove a breach of contract.” See All-
Tech Telecom, Inc. v. Amway Corp., 174 F.3d 862, 869-70
(7th Cir. 1999) (quoting Walker v. KFC Corp., 728 F.2d
1215, 1220 (9th Cir. 1984)). Under Illinois law, a claim for
promissory estoppel will only succeed where all the other
elements of a contract exist, but consideration is lacking.
See Bank of Marion, 57 Ill. 2d at 124. In such an instance
“[a]lthough there may be absent a bargained-for consider-
ation, a person who makes a promise may nonetheless be
bound by its terms.” Id.; see Prentice v. UDC Advisory
Services, Inc., 271 Ill.App.3d 505, 512, 207 Ill. Dec. 690, 695,
648 N.E.2d 146, 151 (Ill. App. Ct. 1995); People v. Raymond,
202 Ill.App.3d 704, 708, 147 Ill. Dec. 878, 881, 560 N.E.2d
26, 29 (Ill. App. Ct. 1990); Moore v. Illinois Bell Telephone
Co., 155 Ill.App.3d 781, 785-86, 108 Ill. Dec. 358, 360, 508
N.E.2d 519, 521 (Ill. App. Ct. 1987). This is consistent with
the history of the doctrine of promissory estoppel, that it is
a common law equitable device wherein a contract may be
implied where none is found to exist, i.e., for lack of consid-
eration. See Dickens, 245 Ill.App.3d at 1062. Thus, the
doctrine of promissory estoppel is applicable only under
certain narrow circumstances to serve “as substitute for
12 No. 04-1133
consideration or an exception to its ordinary requirement.”
Bank of Marion, 57 Ill. 2d at 124. It necessarily follows that
where there is “no issue of consideration, there is no gap in
the remedial system for promissory estoppel to fill.” All-
Tech Telecom, Inc., 174 F.3d at 869; see also Destron, Inc. v.
Continental Illinois National Bank & Trust Co., 59 B.R.
240, 245 (Bankr. N.D. Ill. 1986) (“Promissory estoppel does
not establish a contract, but is merely a substitute for
consideration.”).
Also, the Illinois statue of frauds—which Dumas agrees
is applicable—precludes the enforcement of any promise to
employ that cannot be performed within one calender year
“unless the promise or agreement upon which such action
shall be brought, or some memorandum or note thereof,
shall be in writing, and signed by the party to be charged
therewith, or some other person thereunto by him lawfully
authorized.” 740 ILCS 80/1. The statute of frauds’ writing
requirement “is not [intended] to enable parties ‘to repudi-
ate contracts that have in fact been made; it is only to pre-
vent the fraudulent enforcement of asserted contracts that
were not made.’ ” Rose v. Mavrakis, 343 Ill.App.3d 1086,
1097, 278 Ill. Dec. 751, 760, 799 N.E.2d 469, 478 (Ill. App.
Ct. 2003) (quoting Haas v. Cravatta, 71 Ill.App.3d 325, 328-
29, 27 Ill. Dec. 414, 389 N.E.2d 226 (Ill. App. Ct. 1979)).
Thus, in order to succeed on his claim of promissory
estoppel, Dumas must—as a threshold matter—present to
the court written evidence of an “unambiguous promise”
which, but for the existence of bargained-for consideration,
would constitute an enforceable contractual agreement
under Illinois law—something which he has failed to accom-
plish.
In the ordinary course of litigation of this nature it is
commonplace for the plaintiff, after having been unsuccess-
ful in producing written documentation of an alleged oral
contract as required by the statute of frauds, to seek to
recover under the alternate theory of promissory estoppel.
See McInerney, 176 Ill. 2d at 492. In such a case, since the
No. 04-1133 13
statute of frauds applies with equal force under either a
breach of contract or promissory estoppel theory under
Illinois law, it is unnecessary for the courts to undertake a
separate promissory estoppel analysis, for the statute of
frauds per se cannot be satisfied. See Fischer, 195 F.3d at
283-84. The only substantive difference between that
scenario and the situation before us, is Dumas’ additional
claim that, although the documents he submitted to the
district court (admittedly) failed to satisfy the elements of
an enforceable contract, they might conceivably constitute
an unambiguous promise to employ. We agree with the
reasoning employed by the district court and are of the
opinion that it is unnecessary for a court, once satisfied that
the statute of frauds could not be satisfied concerning a
breach of contract claim, to undertake a separate analysis
of whether or not an “unambiguous promise” exists for
promissory estoppel purposes, for the outcome would be the
same in either instance.
The district court properly determined, and Dumas
agrees, that the documentary evidence he presented in the
form of e-mails falls short of establishing the essential ele-
ments of a contract, e.g., offer, acceptance and a meeting of
the minds. Thus, the Illinois statute of frauds’ requirement
that documentary evidence of a “promise or agreement” be
produced could not be satisfied. See 740 ILCS 80/1. The ab-
sence of the essential elements of a contract also effectively
foreclosed any legitimate promissory estoppel argument
that he may have had, for as we have explained, Illinois law
requires that, but for consideration, all other elements of a
contractual agreement exist in conjunction with such a
claim. See Bank of Marion, 57 Ill. 2d at 124; Prentice, 271
Ill.App.3d at 512; Raymond, 202 Ill.App.3d at 708; Moore,
155 Ill.App.3d at 785-86.9 In addition, by failing to establish
9
Also, it should be noted that although a lack of consideration is
the only reason that courts generally will award damages on the
(continued...)
14 No. 04-1133
a valid agreement or promise sufficient to satisfy the
statute of frauds while proceeding under a breach of con-
tract theory, he likewise, on the record before us, has been
unsuccessful in establishing a promise—much less an
“unambiguous” promise—under the doctrine of promissory
estoppel. See Moore, 155 Ill.App.3d at 785-86. It is only logi-
cal to conclude that, where a plaintiff is unable to establish
a written “promise or agreement” sufficient to satisfy the
statute of frauds under the traditional requirements of
contract law, he will also per se be unable to demonstrate
the existence of an “unambiguous promise” for promissory
estoppel purposes, for the promissory estoppel standard is
more rigorous. Quake Constr., Inc., 141 Ill. 2d at 309-10; see
9
(...continued)
basis of promissory estoppel, Dumas has not alleged that con-
sideration was lacking. Under Illinois law, “[c]onsideration con-
sists of some detriment to the offeror, some benefit to the offeree,
or some bargained-for exchange between them.” Doyle v. Holy
Cross Hosp., 186 Ill. 2d 104, 112, 237 Ill. Dec. 100, 105, 708 N.E.2d
1140, 1145 (Ill. 1999) (citing Lipkin v. Koren, 392 Ill. 400, 406, 64
N.E.2d 890 (Ill. 1946)). And, “[a]ny act or promise which is of
benefit to one party or disadvantage to the other is a sufficient
consideration to support a contract.” Id. (quoting Steinberg v.
Chicago Medical School, 69 Ill. 2d 320, 330, 13 Ill. Dec. 699, 371
N.E.2d 634 (Ill. 1977)). Indeed, the contract that Dumas alleged
did encompass a “bargained-for” exchange in that Dumas claimed
that he would be paid certain amounts of money ($175,000 to
start) for hosting the morning show at US-99 over a five-year
period, with the mutual option to continue his employment for
another five years. See supra p. 6. The fact that consideration
likely existed effectively extinguished any promissory estoppel
claim that Dumas may have had. See Bank of Marion, 57 Ill. 2d at
124; All-Tech Telecom, Inc., 174 F.3d at 869; Destron, Inc., 59 B.R.
at 245. As this court has noted, to allow the doctrine of promissory
estoppel to be invoked where consideration exists, “becomes a
gratuitous duplication or, worse, circumvention of carefully
designed rules of contract law.” All-Tech Telecom, Inc., 174 F.3d
at 869.
No. 04-1133 15
also Phillips v. Britton, 162 Ill.App.3d 774, 785-86, 114
Ill. Dec. 537, 545, 516 N.E.2d 692, 700 (Ill. App. Ct. 1987)
(holding that “[t]he promise which the Phillipses contend to
have made in this case, however, is the same as the agree-
ment underlying their claim for breach of contract, and the
evidence adduced by them with respect to each is
identical . . . [and] just as we believe that the trial court
could have found that the terms of the agreement were not
clear, definite and unequivocal, we therefore likewise
believe that it could have determined that the promise was
not unambiguous”). Thus, we are of the opinion that the
district court properly granted Infinity’s motion for “sum-
mary judgment on Dumas’s promissory estoppel claim
because [such a] claim is not available to avoid the statute
of frauds.” Dumas v. Infinity Broadcasting, Corp., No. 03-C-
4713, 2003 WL 23509644, at *10 (N.D. Ill. Dec. 18, 2003).10
10
Dumas argued in the district court that Aurand’s April 8, 2002
e-mail outlining potential salaries and his response that “some-
thing in the 175 to 225 range seems right” constituted an offer (or
promise in terms of his promissory estoppel claim) to pay Dumas
a salary no lower than $175,000. See supra p. 5; see also
Appellant’s Brief at 20 (“In view of Infinity’s offer in 2000 to start
Dumas at $150,000 and increase his salary over five years . . . a
jury could find that [Aurand] was assuring Dumas that he would
be offered a position starting at, at least, $175,000 . . . [and] recov-
ery can be had based on promissory estoppel ‘when the promise is
unambiguous on the downside but not on the upside.’ ”) (citing
Goldstick v. ICM Realty, 788 F.2d 456, 462 (7th Cir. 1986)).
Contrary to Dumas’ arguments that these e-mails constitute a
“promise or agreement” to employ, we agree with Judge
Holderman’s finding that “[n]either of these writings establish that
a salary was ever actually agreed upon . . . [and] [t]hus, these
writings cannot establish to a reasonable certainty the salary of
the alleged contract.” Dumas, 2003 WL 23509644, at *7.
Likewise, Dumas claims that an e-mail he received on May 20,
2002 from Aurand evinces a promise to employ on Infinity’s part.
See supra p. 6. However, in that e-mail Aurand simply outlines
(continued...)
16 No. 04-1133
Dumas disagrees with this conclusion and argues instead
that “sufficient documentary evidence [of a promise to
employ was] submitted to the district court . . . to satisfy
the statute of frauds for purposes of [his] promissory
estoppel claim,” Appellant’s Brief at 21, even though that
promise was “not definite enough to support a breach of
contract claim.” Appellant’s Reply Brief at 2. As support for
his argument he cites to two of this court’s opinions in
Goldstick v. ICM Realty, 788 F.2d 456 (7th Cir. 1986) and
Architectural Metal Systems, Inc. v. Consolidated Systems,
Inc., 58 F.3d 1227 (7th Cir. 1995). However, these cases are
distinguishable. In Architectural Metal Systems, Inc., the
court was not dealing with the Illinois statute of frauds, but
rather was dealing with UCC § 2-201. See Architectural
Metal Systems, Inc., 58 F.3d at 1230-31. In addition, we
concluded that a written promise, in the form of a price
quotation, existed in that case. See id. Thus, the statute of
frauds was not implicated and did not preclude or otherwise
impinge on the plaintiff’s claim of promissory estoppel. Id.
at 1231. Likewise, in Goldstick this court declined to decide
the question of whether the statute of frauds was applicable
to the plaintiff-appellant’s promissory estoppel claim due to
uncertainty in Illinois law at that time as to whether the
10
(...continued)
what the program would likely consist of if Dumas were to become
an employee. We agree with the district court that this e-mail
does not “state with a reasonable certainty” the elements of either
a promise or a valid, legally enforceable contract. See Dumas,
2003 WL 23509644, at *7.
The fact is that none of the documents Dumas presented the
court with, either on their own or taken collectively, constitute
either a legally binding contract or a “promise or agreement” to
employ Dumas. See JamSports & Entertainment, LLC v.
Paradama Productions, Inc., 336 F. Supp. 2d 824, 849-50 (N.D. Ill.
2004). Thus, just as Dumas’ breach of contract claim failed, so too
must his promissory estoppel claim, for it is barred by application
of the Illinois statute of frauds.
No. 04-1133 17
promise at issue could have reasonably been completed
within one year. See Goldstick, 788 F.2d at 464-66. There is
no question that the statute of frauds applies to both of
Dumas’ claims for promissory estoppel and breach of
contract. See Bank of Marion, 57 Ill. 2d at 124. And, as we
have explained, it is the application of the statute of frauds
coupled with the lack of any written promise or agreement
that defeats his promissory estoppel claim.
This decision is consistent with Illinois case law recogniz-
ing that it is only proper to conclude that “if the statute of
frauds bars enforcement of an oral contract which cannot be
performed within one year, it also bars the courts from
using promissory estoppel to imply the existence of a
contract which cannot be performed within one year.”
Dickens, 245 Ill.App.3d at 1063 (emphasis added). The fact
that Dumas has presented a number of written documents,
in the form of e-mails, to augment what essentially is an
alleged oral contract, does not change the reality that those
documents, when viewed in their entirety, do not amount to
a written contract. At best, they represent an unenforceable
promise or agreement (even assuming a promise or agree-
ment existed) due to the operation of the statute of frauds
and cannot form the basis of any claim premised on a
theory of contract law or promissory estoppel. After all,
there was only one “promise or agreement” at issue here for
the purpose of establishing the existence of either a contract
or promissory estoppel claim—the alleged promise to
employ Dumas. This result may seem harsh, but as a
number of Illinois courts have pointed out “the moral wrong
of refusing to be bound by an agreement which is not in
compliance with the statute of frauds does not warrant the
application of the doctrine of promissory estoppel since the
breach of a promise which is not regarded as binding under
the law is not fraud.” See Dickens, 245 Ill.App.3d at 1062-63
(citing Libby-Broadway Drive-In, Inc. v. McDonald’s System,
Inc., 72 Ill.App.3d 806, 810-11, 28 Ill. Dec. 802, 805, 391
18 No. 04-1133
N.E.2d 1, 4 (Ill. App. Ct. 1979). Thus, the district court’s
uncontested determination that the essential elements of a
contract did not exist foredoomed his promissory estoppel
claim as well, and Dumas was not entitled to “a second bite
at the apple.”11 See All-Tech Telecom, Inc., 174 F.3d at 869-
70.
11
Although the Illinois Supreme Court has not decided this pre-
cise issue, as a federal court sitting in diversity we are charged
with predicting how that court would decide if presented with the
identical issue. See Taco Bell Corp. v. Continental Casualty Co.,
388 F.3d 1069, 1077 (7th Cir. 2004). We are convinced that, given
the unanimity of the Appellate Courts of Illinois’ decisions on this
issue and the nature of previous Illinois Supreme Court decisions
on the subject, the supreme court would decide as we do today and
hold that Dumas’ promissory estoppel claim is barred by the
statute of frauds. See Bank of Marion, 57 Ill. 2d at 124; Quake
Constr., Inc., 141 Ill. 2d at 309-10; Doyle, 186 Ill. 2d at 118
(Freeman, C.J., concurring in part and dissenting in part, joined
by McMorrow, J.); see also Prentice, 271 Ill.App.3d at 512;
Raymond, 202 Ill.App.3d at 708; Moore, 155 Ill.App.3d at 785-86.
Indeed, a handful of Illinois Appellate Courts have gone even
further and held that promissory estoppel “is not a proper vehicle
for direct relief,” and is only “meant to be utilized as a defensive
mechanism—not as a means of attack.” See DeWitt v. Fleming, No.
05-04-0016, 2005 WL 846083, at *3 (Ill. App. Ct. 2005) (quoting
ESM Development Corp. v. Dawson, 342 Ill.App.3d 688, 695, 277
Ill. Dec. 30, 35, 795 N.E.2d 397, 402 (Ill. App. Ct. 2003)). In DeWitt,
the Appellate Court of Illinois reasoned that “an explicit rule of
law that promissory estoppel exists only for defensive purposes in
Illinois promotes the stability and integrity of Illinois jurispru-
dence and provides attorneys practicing in Illinois, as well as their
clients, with a clear, stable guidepost to which they may conform
themselves.” Id. However, given the relatively novel nature of
these holdings and the lack of comment either by the Illinois
Supreme Court or any other Appellate Court of Illinois outside the
Fourth and Fifth Districts, we are reticent to speculate as to how
the supreme court would deal with the issue. Cf. Taco Bell Corp.,
388 F.3d at 1077.
No. 04-1133 19
III. CONCLUSION
The decision of the district court is
AFFIRMED.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—8-1-05