Barbara Lucinda Sawyer v. Melbourne Mills Jr ( 2009 )


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  •                                            AS MODIFIED : NOVEMBER 2, 2009
    RENDERED : AUGUST 27, 2009
    TO BE PUBLISHED
    ,SUyrkMr          Courf of ~i
    2007-SC-000296-DG
    BARBARA LUCINDA SAWYER                                                APPELLA
    ON REVIEW FROM COURT OF APPEALS
    V.                    CASE NO. 2006-CA-000697-MR
    FAYETTE CIRCUIT COURT NO . 2003-CI-01679
    MELBOURNE MILLS, JR.                                                   APPELLEE
    OPINION OF THE COURT BY JUSTICE NOBLE
    AFFIRMING
    Appellant Barbara Lucinda Sawyer appeals a decision affirming the
    circuit court's judgment notwithstanding the verdict ("JNOV") in favor of
    Appellee Melbourne Mills, Jr., in a dispute over the validity of an alleged oral
    agreement. Because the oral agreement violated the Statute of Frauds, lacked
    consideration, and could not have induced Sawyer's action, it was
    unenforceable, and the decision of the Court of Appeals is affirmed.
    I. Background
    Mills met Appellant Sawyer and her husband in 1991 . In 1994, Sawyer
    requested that Mills become involved in already-pending class action litigation
    involving breast implants, and she solicited some women she knew as clients .
    Mills promised to give her a bonus if he ever had a big "payday" with one of his
    class actions, and she continued to research potential products liability claims .
    Between 1994 and 2001, she assisted Mills in marketing his law practice,
    researching potential class action lawsuits, and in performing work as a
    contract employee for relatively brief periods of time, for which she was paid.
    Her employment ended on March 31, 2002 .
    In 1997, the prescription drugs Fenfluramine and Phentermine
    (commonly known as "Fen-Phen") were receiving national media attention due
    to the possibility they were causing heart valve damage . Sawyer claims that
    she recommended Mills pursue a class action against Fen-Phen's
    manufacturer, and the drugs were recalled soon after Mills began to advertise
    for Fen-Phen clients . Mills received an overwhelming response from his
    advertising campaign and ultimately had about 2600 clients (about 400 of
    whom were from Kentucky) that he signed up on a contingency fee basis.
    Sawyer assisted with clerical work in processing the claims .
    On May 1, 2001, a settlement for millions of dollars was reached between
    Fen-Phen's manufacturer and Mills's clients . After receiving his initial portion
    of the substantial attorney's fees on June 20, 2001, Mills made bonus
    payments to all of his employees. Six long-term employees received a $100,000
    bonus, one paralegal who Mills thought was instrumental to the Fen-Phen
    litigation's success received more than a $1,000,000 bonus, and an attorney
    received an initial $1,000,000 bonus (and a more substantial additional bonus
    later) . Hourly employees such as Sawyer received a bonus equal to two weeks'
    wages. Sawyer's bonus was $1,300. Over the years, Mills had mentioned to
    Sawyer that he would reward her with a large bonus when he hit a "payday" in
    the class action cases, and the Sawyers were disappointed in the $1,300
    bonus . I
    On June 25, 2001, the Sawyers invited Mills to their art studio and
    secretly tape-recorded their conversation . Mills admitted that the voices on the
    recording were his and the Sawyers'. Sawyer and her husband suggested to
    Mills that he pay her a substantial bonus due to her encouragement of Mills to
    pursue class actions. After a lengthy discussion, the Sawyers suggested that
    Mills pay Sawyer a $1,065,000 bonus, consisting of $1,000,000 plus the value
    of a luxury car ($65,000), and Mills agreed . Mills discussed how and when the
    payments would be made.
    Mills refused to make a lump sum payment even though he had the
    financial ability to do so ; instead he agreed to make the payments in
    installments of $10,000 per month . They would also be hidden from his office
    employees (Sawyer claimed Mills did not wish to make the other employees
    jealous) .2 Mills also agreed to pay for an attorney to draft a written agreement
    to memorialize their understanding, and he spoke to the Sawyers' attorney,
    1 Previously, Sawyer was paid more than $150,000 through an advertising agency set
    up by her and through which the Mills Law Office placed its advertising .
    Additionally, when Sawyer and her husband told Mills they were about to be evicted
    from the building where their art studio was located, Mills wired her $100,000 so
    they could buy the building . Finally, the Sawyers often accompanied Mills on
    vacations at his expense .
    2 Though Sawyer describes the complicated manner in which Mills attempted to keep
    the payments he made hidden from his employees, the details are not relevant to the
    disposition of this case.
    Mark Moseley, on the phone and confirmed he had agreed to pay a bonus to
    Sawyer . However, Mills later refused to sign any written agreement.
    Mills made his first payment of $10,000 to Sawyer the day of the
    meeting, and he eventually made a series of payments of $10,000 each, and
    one of $15,000, totaling $65,000 . Mills also made a one-time payment of
    $100,000 on October, 3, 2001 . The last payment was paid on February 7,
    2002, and Mills informed Sawyer in March that he was terminating her
    employment at the end of the month . He had paid her a total amount of
    165,000 . It was undisputed that Sawyer had completed her performance that
    might justify any bonus prior to the June 25 conversation between the parties,
    and also that she continued to work for Mills after the agreement .
    Prior to trial, Mills moved for summary judgment, arguing that
    enforcement of the agreement was barred by Kentucky's Statute of Frauds and
    raising lack of consideration as a defense . The trial court denied the motion.
    After a four-day trial, the jury returned a verdict for Sawyer and awarded
    her $900,000, and a trial verdict and judgment was entered . In response to
    two interrogatories, the jury answered that it was satisfied from the evidence
    that the parties reached an understanding and agreement as to the bonus at
    issue, and that the understanding and agreement could have been fully
    performed within one year of its making.
    Mills moved the trial court for a JNOV, and it was granted . The court
    specifically explained that it
    had previously addressed its concerns that this Statute of Frauds
    barred the claims of Cindy against Mel in this case . However, out
    of an abundance of precaution, in order to allow Cindy to present
    her full evidence at trial before a jury, the Court Overruled Mel's
    Motion for Summary Judgment on this issue in an Opinion and
    Order entered December 1, 2005.
    After hearing Sawyer's full evidence at trial, however, the trial court found that
    the Statute of Frauds did in fact bar her claims and it granted Mills's JNOV
    motion . The Court of Appeals affirmed the trial court's ruling, and this Court
    granted discretionary review .
    II. Analysis
    A. The June 25, 2001 Oral Agreement
    1 . Application of the Statute of Frauds Where the Agreement's Terms and
    the Parties' Intentions Demonstrate It Could Not Be Completed Within
    One Year
    Assuming there was a contract in this case, the Statute of Frauds applies
    and bars its enforcement. Kentucky's Statute of Frauds provides in pertinent
    part,
    No action shall be brought to charge any person . . . [ulpon any
    agreement that is not to be performed within one year from the
    making thereof . . . unless the promise, contract, agreement,
    representation, assurance, or ratification, or some memorandum
    or note thereof, be in writing and signed by the party to be charged
    therewith, or by his authorized agent . . . .
    KRS 371 .010(7) . "In construing the Statute of Frauds, the general rule is that,
    if a contract may be performed within a year from the making of it, the
    inhibition of the Statute does not apply, although its performance may have
    extended over a greater period of time." Williamson v. Stafford, 
    301 Ky. 59
    ,
    190 S .W.2d 859, 860 (1945) . However, "there is a well-recognized exception" to
    the general rule, "and that is that when it was contemplated by the parties that
    the contract would not, and could not, be performed within the year, even
    though it was possible of performance within that time, it comes within the
    inhibition of the Statute ." Id . (emphasis added) . This Court "must look to the
    evidence to determine whether the contracts in question fall within the rule or
    the exception ." Id . at 861 .
    The Statute of Frauds "refers to a contract which, by its terms, is not to
    be performed within a year, and which, from its stipulations, is not capable of
    being performed within a year." Nickell v. Johnson, 162 Ky . 520, 172 S .W.
    938, 938 (1915) ; see also Lively v. Elkhorn Coal Co . , 101 F.Supp . 1014, 1016-
    17 (E.D . Ky. 1952) ("[W]here it is obvious from all surrounding facts and
    circumstances that it was not within the contemplation of the parties or within
    reason that it would be performed within a year the statute applies .") The
    appropriate inquiry thus is whether under the evidence of a particular case the
    parties contemplated that the contract at issue would be performed within a
    year, and if, by its terms, it could be. It is irrelevant whether performance
    would be possible under different terms. A contrary rule-that if it is possible
    to perform a contract within a year even though such completion is not
    contemplated by the parties-would eviscerate the Statute of Frauds'
    requirement that agreements not to be performed within one year be in writing .
    Under well-settled precedent, this Court must determine whether Sawyer
    and Mills contemplated that their oral contract would be, or could be under its
    terms, performed within a year, even though Mills acknowledged that he could
    have paid the entire amount at the time of the negotiations . Williamson, 190
    S .W .2d at 860 .
    This case involves the trial court's grant of a JNOV motion.
    Upon review of the Order Granting JNOV, we must examine the
    trial court's decision under the clearly erroneous standard . . . .
    That is to say, we must review all the evidence presented to the
    jury and must uphold the trial court's decision if after all the
    evidence is construed most favorably to the verdict winner, a
    finding in his favor would not be made by a reasonable [person] .
    Moore v . Environmental Constr. Corp. , 147 S .W.3d 13, 16 (Ky. 2004) (internal
    citation and quotation marks omitted) . For the purpose of the JNOV motion,
    the trial court properly considered the evidence in the light most favorable to
    Sawyer, the verdict winner and party opposing the JNOV motion, accepting
    many of the disputed facts as true. Among other things, the trial court
    accepted the following as true :
    (5) That in the June 25, 2001 conversation between Mel,
    Cindy, and Cindy's husband, Steve Sawyer (hereinafter "Steve"),
    the figure of One Million Dollars ($1,000,000 .00) was first proposed
    by Cindy and Steve as a lump sum payment. Mel clearly balked at
    that figure as a lump sum payment. Quickly, Steve Sawyer, with
    Cindy's encouragement and agreement, suggested that a total
    payment of One Million Dollars ($1,000,000 .00) plus the cost of a
    new luxury car to be paid over ten (10) years at Ten Thousand
    Dollars ($10,000 .00) per month until paid would be acceptable to
    them . This was the undisputed sworn testimony of Cindy, Steve,
    and their attorney Mark Mosely [sic] at trial. The Court, in
    accordance with the above JNOV standard, accepts that testimony
    without qualification. Further, that testimony was accepted by the
    jury in this case as reflected by the jury verdict when "Yes" was
    checked in response to Interrogatory No. 1 which specifically found
    that Cindy and Mel had each understood and agreed that Mel
    would pay Cindy a bonus in the amount of One Million Dollars and
    the value of a new car costing Sixty Five Thousand Dollars for
    services performed by Cindy for the benefit of Mel per Jury
    Instruction No . 1 .
    Based on the undisputed fact that Mills "clearly balked" at an agreement where
    he would have to make a one-million-dollar lump sum payment, such a
    payment was not a part of the oral agreement.
    Instead, Mills orally agreed to make a $1,065,000 payment "over ten (10)
    years at Ten Thousand Dollars ($10,000.00) per month until paid ." The trial
    court noted that this understanding was also reflected in Sawyer's Answer to
    Interrogatory No . 8 in which she stated in her Amended Answer in part, "The
    bonus was to be paid in monthly installments of $10,000.00 and on the first of
    each month ." Attorney Mark Moseley's written draft agreement, which Mills
    never signed, recognized that the total amount would be paid out over 107
    months, with the last month's payment being $5,000 .
    In Kentucky Utilities Co . v . Hurst, 
    207 Ky. 448
    , 269 S .W . 525 (1925), the
    Court concluded that the agreement's terms and parties' intentions determine
    whether a contract could be completed within one year so as to avoid the
    Statute of Frauds. Specifically, the Court concluded the lower
    court should have sustained defendant's motion for a peremptory
    instruction, upon the ground that the alleged special contract for
    the furnishing of the water, and upon which the action is based,
    was verbal, and was one which, under the circumstances and the
    contemplation of the parties at the time, was not to be performed
    within one year from the time of its making, and was therefore
    inhibited by . . . the statute of frauds .
    Id . at 526 .
    Subsequent to Hurst, the Court was again confronted with a similar
    issue and it reaffirmed its position . The Court quoted the appellee's testimony
    and concluded "[c]learly, the evidence for both parties shows that it was not
    contemplated by either of them that the contract was to be performed, or could
    be performed, within a year." Williamson , 190 S.W.2d at 861 . The only
    testimony offered by the appellees in that case was that if the agreement had
    been completed, "the parties contemplated that it would require several years
    to perform under it ." 
    Id. Consistent with
    Hurst and Williamson , the trial court in this case was
    not clearly erroneous in finding that Mills never agreed to a lump sum payment
    payable within one year. Mills never signed a writing consistent with the oral
    discussions of the parties. The agreement's terms and the parties' intentions
    demonstrate this agreement could not be completed within one year, and thus
    the trial court was correct that as a matter of law the June 25 oral agreement
    between Sawyer and Mills failed the writing requirement of the Statute of
    Frauds, and was unenforceable under the statute . As the trial court observed,
    "[i]f the Statute of Frauds, codified at KRS 371 .010(7), does not apply to the
    undisputed testimony in the case at bar, it would be hard to imagine any case
    where it would apply."
    2 . Completed Performance and Past Consideration
    Sawyer claims the agreement is nonetheless enforceable because she
    completed her performance, taking the agreement outside the operation of the
    Statute of Frauds, as a completed executory contract. However, because
    Sawyer concedes she had completed her performance prior to the June 25,
    2001 oral agreement, it was supported only by past performance, which is no
    consideration at all, and thus, under this argument, there was not a binding
    contract.
    Sawyer cites Pitcher v. Sadler, 276 Ky . 450, 124 S .W .2d 475, 479 (1939),
    for the proposition that completed performance by one party removes an
    agreement from the Statute of Frauds : "[A] contract is no longer executory, and
    [the Statute of Frauds] has no application thereto, where it has been fully
    performed upon one side and the other party by its terms has a longer time
    than one year in which to perform his part thereof." The Court of Appeals
    correctly noted, however, that Sawyer did not perform any obligations pursuant
    to this agreement.
    "[I]t is a general rule that past consideration is insufficient to support a
    promise." 17A Am . Jur. 2d Contracts § 152 (2009) . Simply put, Sawyer's
    claim that her completed performance takes her agreement outside of the
    operation of the Statute of Frauds fails, because the fact that her performance
    was done prior to the offer Mills made on June 25 means there was no
    consideration for the promise Mills made on that date .
    In Greenup v. Wilhoite, 212 Ky . 465, 279 S .W . 665, 666 (1926), the
    Court described a similar situation and the applicable law as follows:
    Appellants insist that the services for which appellee claims
    compensation had all been performed before the making of the
    contract sued on, and the consideration for the contract having all
    passed, the contract has failed for want of a supporting
    consideration . They insist that a past consideration which is some
    act of forbearance in time past by which a man has benefited,
    without thereby incurring any liability, is not sufficient to support
    an executory contract, and this is ordinarily true.
    Id . In that case, however, the agreement was upheld because part of the
    consideration-in the form of services-was not yet given at the time the
    parties entered into the agreement, which further underscores that the
    agreement and consideration must be dependent on each other. Id .
    ("Manifestly the parties to the contract contemplated that the appellee Mrs .
    Wilhoite was to receive compensation, not only for services which she had
    performed up to the time of the making of the contract, but for all services
    which she was to perform for Miller Wilhoite, Sr., during the remainder of his
    life .") .
    Though Sawyer also contends that she continued to work for Mills after
    the agreement regarding her prior performance was made on June 25, she did
    in fact receive other multiple substantial payments from Mills after the
    agreement for that work. It therefore cannot also be used as the consideration
    going forward from the June 25th agreement.
    Sawyer also relies upon Fisher v . Long, 
    294 Ky. 751
    , 172 S .W.2d 545
    (1943), for the proposition that a contract that is unenforceable because a term
    is not yet decided becomes enforceable if an agreement on the term is ever
    reached, that is, once the blank is filled in by the parties. Fisher, however, is
    distinguishable because the parties in that case had already reached a written
    agreement with valid consideration and mutual obligations, and all that
    remained was to make a simple mathematical calculation. 
    Id. at 547
    ("Here
    there was a meeting of the minds . . . This was the essential agreement. . . . It
    took no expert accountant to ``adjust this difference in cash ."') . Fisher is simply
    inapposite .
    Finally, Sawyer objects to Mills's attempt "to obfuscate this issue with
    circular logic," arguing that if Sawyer had completed her performance at the
    time the bonus amount was filled in (as she concedes), there was no
    consideration and the contract was unenforceable, but if she had not
    completed performance at the time the bonus was filled in, the contract had to
    be in writing to be enforceable. This is not obfuscation . That Sawyer loses for
    two independent reasons does not undermine the logic, or make it circular.
    Consequently, the JNOV granted by the circuit court was appropriate .
    3. The Audio Tape Recording of the Parties' Conversation and Cancelled
    Signed Checks as a Basis for Satisfying the Statute of Frauds' Writing
    Requirement
    Sawyer also claims that the audio tape of Mills's voice and cancelled
    signed checks provide the basis for satisfying the Statute of Frauds' writing
    requirement under the federal Electronic Signatures in Global and National
    Commerce Act ("E-SIGN") and Calloway v. Calloway, 707 S .W .2d 789 (Ky. App.
    1986) .
    She first claims that the Statute of Frauds' writing requirement is
    preempted by 15 U.S .C. § 7001(a), which provides,
    Notwithstanding any statute, regulation, or other rule of law . . .
    with respect to any transaction in or affecting interstate or foreign
    commerce--
    (1) a signature, contract, or other record relating to such
    transaction may not be denied legal effect, validity, or
    enforceability solely because it is in electronic form; and
    12
    (2) a contract relating to such transaction may not be denied
    legal effect, validity, or enforceability solely because an
    electronic signature or electronic record was used in its
    formation.
    However, under 15 U.S .C . § 7001 (a) (1), the oral agreement is not being denied
    "legal effect, validity, or enforceability solely because it is in electronic form ."
    (Emphasis added.) The oral agreement is being denied legal effect because it
    fails the writing requirement of the Statute of Frauds and under E-SIGN there
    is not an electronic signature . Therefore, contrary to Sawyer's assertions, the
    Statute of Frauds' writing requirement is not preempted by E-SIGN in this
    case.
    Under E-SIGN, "``electronic' means relating to technology having
    electrical, digital, magnetic, wireless, optical, electromagnetic, or similar
    capabilities ." Id . ~ 7006(2) . "'[E]lectronic record' means a contract or other
    record created, generated, sent, communicated, received, or stored by
    electronic means ." Id . § 7006(4) . At issue in this case is the tape recording of
    the conversation between Sawyer and Mills . Under 15 U .S .C . § 7006(2)'s broad
    definition of "electronic," the tape recording is electronic, and it is an
    "electronic record" because it was a "record created" and "stored by electronic
    means" under 15 U .S .C. § 7006(4) .
    However, contrary to Sawyer's assertions, Mills's voice does not
    constitute an electronic signature merely because it was identifiable and was
    identified at trial as being his. An electronic signature under 15 U.S.C . §
    7006(5) requires that "an electronic sound, symbol, or process, attached to or
    logically associated with a contract or other record" be "executed or adopted by
    a person with the intent to sign the record."
    There must be intent to attach or logically associate the electronic
    signature to the agreement, that is, an intent to execute the contract. That was
    impossible here, because the medium on which the alleged agreement and
    electronic signature were recorded (the audio tape) was used surreptitiously.
    Mills did not know he was being recorded when he went to the Sawyers' art
    studio . Thus, Mills's identifiable voice on the tape, even if construed as an
    electronic signature, was procured without Mills's knowledge or intent, and
    would be tantamount to a forgery which cannot be used to demonstrate a valid
    contract. Cf. E . L . Strobin, Annotation, Procuring Signature by Fraud as
    Forgery, 11 A .L .R .3d 1074, § 5 (1967 8, Supp . 2009) ("[W]here a genuine
    signature to an instrument is procured by some trick or device without intent
    on the part of the party signing to execute such an instrument, the attitude of
    the courts has been that the signature thereto will be treated in law as a
    forgery .) . The statute contemplates more than a mere verbal assent recorded in
    secret; it requires the electronic equivalent of a signature, that is, an electronic
    sound, symbol, or process solemnizing the agreement and evidencing an intent
    to enter into it.
    That the recording was not intended to be a signature is further
    supported by the fact that the parties evidenced some intent to draft and sign a
    written contract to memorialize their understanding, which Mills refused to
    sign. Clearly then, Mills did not have any intent to "execute" or "adopt" the
    conversation that took place, and he did not "sign the record" memorializing it
    that was drafted by Sawyer's attorney. Sawyer's claim that E-SIGN provides a
    basis for satisfying the Statute of Frauds in this case fails.
    Sawyer next claims that Calloway, 707 S .W.2d 789, controls the outcome
    in this case because the tape recording cannot be barred by the Statute of
    Frauds . Calloway , which involved an oral statement recorded by a court
    reporter, is distinguishable for many reasons . In that case, the husband
    explicitly agreed to a settlement agreement under oath, and the court relied on
    an estoppel theory "in light of the peculiar circumstances of [that] case," to hold
    that a settlement agreement entered into during a judicially sanctioned
    proceeding was sufficient to satisfy the Statute of Frauds . 
    Id. at 792
    . The
    court noted, "We cannot overlook the importance of stipulations between
    litigants and the promotion of expeditious and complete justice by their
    enforcement provided no harsh or unfair contract results ." 
    Id. In sum,
    Calloway involved a unique set of facts involving a stipulation under oath at a
    deposition where the court relied on an estoppel theory, not a surreptitiously
    recorded conversation as in this case . Therefore, Calloway is easily
    distinguished .
    Finally, Sawyer claims that Mills's voice, coupled with cancelled signed
    checks, is sufficient to satisfy the Statute of Frauds. The same rationale for
    why the recording cannot be a sufficient electronic signature applies here to
    bar the recording from being a "memorandum" of the parties' agreement .
    Given the secret nature of the recording and the expressed intent to draft a
    written document, the recording cannot have been intended by Mills as the
    repository of the parties' agreement . Cf. Ellis Canning Co . v. Bernstein,
    348 F.Supp . 1212 (D . Colo . 1972) (allowing audio recording to satisfy writing
    requirement but only where parties agreed that the recording would be the
    contract) .
    As for the checks, in addition to the fact that the cancelled signed checks
    for monthly payments to Sawyer are inconsistent with her claim that the
    agreement could be completed within one year, Sawyer does not cite any law
    that signed checks satisfy the Statute of Frauds, and this Court is not
    persuaded that they do. Though some courts have held that checks can be
    used to demonstrate the existence of a contract, those checks almost invariably
    include references to the terms of the contract or a document that contains the
    terms . See, e .g. , Walter E. Heller 8s Co . v . Video Innovations, Inc . , 730 F .2d 50,
    53 (2d Cir. 1984) ("delivery of signed rental checks which contained specific
    references to the written lease, would be sufficient to satisfy the Statute of
    Frauds") ; Clark v . Larkin , 
    239 P.2d 970
    (Kan. 1952) (notation of terms on
    check) . In the one Kentucky case on the subject, the check in question
    referred to the "property" and the sale was confirmed in a letter a few days
    later. See Purtell v. Bell, 
    179 Ky. 356
    , 200 S .W. 644, 645 (1918) ("Obviously
    the check, indorsement thereon, and letter together designate and identify the
    real estate, its location, and the terms of the contract . . . ." (emphasis added)) .
    In this case, the checks, rather than evincing an agreement involving a
    quid pro quo, are just as consistent with a gratuitous bonus of the sort paid to
    Mills's other employees . Sawyer is basically claiming that two halves make a
    whole, but in this case neither side makes a "half," and thus together they do
    not make a "whole" writing sufficient to satisfy the Statute of Frauds .
    4. Promissory Estoppel
    Despite the parties' dispute over whether the issue of promissory
    estoppel was properly preserved and appealed, it is clear that the trial court
    was correct in concluding there was insufficient proof to support a jury
    instruction on the issue .
    The doctrine of promissory estoppel provides as follows :
    "A promise which the promisor should reasonably expect to
    induce action or forbearance on the part of the promisee or a third
    person and which does induce such action or forbearance is
    binding if injustice can be avoided only by enforcement of the
    promise . The remedy granted for breach may be limited as justice
    requires ."
    Meade Constr. Co . v . Mansfield Commercial Elec ., Inc . , 579 S .W .2d 105, 106
    (Ky. 1979) (quoting Restatement (Second) of Contracts § 90 (Tentative Draft No.
    2, 1965)) . 3
    First, it is not clear that under Kentucky law promissory estoppel can
    defeat the Statute of Frauds . Though the headnotes for the case state
    otherwise, the Court of Appeals has recently held that a claim of promissory
    estoppel "alone is not sufficient to defeat the statute of frauds ; actual fraud
    3 Though after quoting the doctrine of promissory estoppel in Meade Constr. Co . , this
    Court noted that it did not at that time "decide whether the doctrine of promissory
    estoppel applies in this state or whether, if so, it governs this case," _id. at 106, it has
    since become clear that "the doctrine of promissory estoppel, if it can be established,
    is ``alive and well' in this Commonwealth ." McCarthy v. Louisville Cartage Co . , 796
    S .W.2d 10, 11 (Ky. App. 1990) .
    17
    must be proven ." Rivermont Inn, Inc . v . Bass Hotels 8s Resorts, Inc . , 113
    S.W .3d 636, 642 (Ky. App. 2003) . As the court then noted, the claim
    "confuses promissory estoppel with equitable estoppel, and incorrectly
    interchanges the terms . . . ." Id . Equitable estoppel requires a fraudulent
    misrepresentation as to a material fact, which has not been claimed in this
    case.
    While this Court has stated that "the statute of frauds is not a bar to a
    fraud or promissory estoppel claim based on an oral promise of indefinite
    employment," United Parcel Service Co . v. Rickert, 996 S .W.2d 464, 471 (Ky.
    1999), the statement was only dicta, as the decision turned on equitable
    estoppel (i.e., a claim of fraud) . More recently this Court stated that it is
    "incorrect[] [to] infer[] from Rickert that detrimental reliance is a bar to the
    statute of frauds . All that may be deduced from Rickert concerning the statute
    of frauds is that in a fraud or promissory estoppel action involving a promise of
    employment, it does not act as a bar ." Farmers Bank and Trust Co . of
    Georgetown, Kentucky v. Willmott Hardwoods, Inc . , 171 S .W. 3d 4, 10 (Ky.
    2005) ; see also Architectural Metal Systems, Inc. v. Consolidated Systems,
    Inc. , 58 F .3d 1227, 1231 (7th Cir. 1995) (Posner, J .) ("[T]he statute of frauds is
    applicable to a promise claimed to be enforceable by virtue of the doctrine of
    promissory estoppel." (citing First National Bank v. McBride, 642 N .E.2d 138,
    142 (Ill. 1994) ; Dickens v. Quincy College Corp . , 615 N .E.2d 381, 386 (Ill.
    1993), and relying on Illinois law)) . Willmott Hardwoods, Inc. then went on to
    hold that except in the most extreme circumstances, even equitable estoppel
    (which involves fraud) cannot defeat the statute of frauds, "lest the Court run
    afoul of judicially amending the statute in violation of separation of powers."
    
    Id. 4 But
    even assuming that promissory estoppel could allow a plaintiff to get
    around the Statute of Frauds, Sawyer cannot invoke the doctrine in this case.
    First, promissory estoppel requires "[a] promise which the promisor should
    reasonably expect to induce action or forbearance on the part of the promisee
    . . . and which does induce such action or forbearance . . . ." Meade Constr.
    Co . , 579 S .W.2d at 106 .   Sawyer argues in this regard that she agreed to
    continue working for Mills at his request after the agreement and bypassed
    other job opportunities, in reliance upon his promise .
    But there is no reasonable basis to argue that Mills believed Sawyer
    continued working for him from June 25, 2001 through March 2003 because of
    his promise . During that time, he paid her $165,000 in line with his promise,
    and paid her as an hourly employee until he released her from employment . At
    no time has the testimony indicated that his promise to her on June 25 was
    premised on her continued employment with him. There is no indication that
    he asked her not to accept other employment . Indeed, during that nine month
    span of time, the $165,000 dollars paid to her under his promise could
    4 Even those states allowing equitable estoppel to reach the Statute of Frauds
    frequently require, for example, that "either an unconscionable injury or unjust
    enrichment would result from refusal to enforce the contract . . . ." Monarco v. Lo
    Greco, 
    220 P.2d 737
    , 741 (Cal. 1950) (Traynor, J .) . Though, as one commentator has
    noted, following the adoption of the Restatement (Second) of Contracts, some states
    required only "injustice" rather than unconscionable injury or unjust enrichment .
    See 2 Alan E. Farnsworth, Farnsworth on Contracts § 6.12, at 207-08 (3d ed. 2004) .
    19
    reasonably have led Mills to believe that she did not need the hourly
    employment, but continued working for him in hope of future benefits. He had
    no cause to "reasonably expect" action or forbearance from Sawyer. Also, at
    best, Sawyer alleges a reliance based only on her own statements ; nothing else
    in the record supports her claim that she continued working for Mills for nine
    months after his promise because of that promise. Sawyer does not make a
    supportable promissory estoppel claim.
    B. Prejudgment Interest
    Because this Court concludes the trial court did not err in granting the
    JNOV motion in Mills's favor, it is unnecessary to address the issue of
    prejudgment interest for Sawyer.
    III. Conclusion
    Because the terms of the agreement and the parties' intentions
    demonstrate it could not be completed within one year, the Statute of Frauds
    required that it be in writing, but that was never done. Additionally, since
    Sawyer concedes she completed performance before the June 25, 2001
    conversation, the agreement lacked valid consideration and could not be a
    binding contract. The audio tape recording and cancelled signed checks do not
    serve as a basis for satisfying the Statute of Frauds' writing requirement in this
    case . Finally, Sawyer does not have a claim for promissory estoppel because
    the record does not substantiate her claim that she relied on Mills's promise by
    way of a forbearance or action, and Mills could not have reasonably been
    expected to believe that she had. The JNOV entered by the trial court was
    appropriate .
    For the foregoing reasons, the Court of Appeals is affirmed .
    All sitting . All concur.
    COUNSEL FOR APPELLANT:
    Thomas W. Miller
    Michael Joseph Cox
    Miller, Griffin 8z; Marks, PSC
    271 West Short Street, Suite 600
    Lexington, Kentucky 40507
    COUNSEL FOR APPELLEE :
    William E. Johnson
    Samuel Ryan Newcomb
    Johnson, True & Guarnieri, LLP
    326 West Main Street
    Frankfort, Kentucky 40601
    ,*uyrrntr Courf of ~irufurkV
    2007-SC-000296-DG
    BARBARA LUCINDA SAWYER                                               APPELLANT
    ON REVIEW FROM COURT OF APPEALS
    V.                    CASE NO . 2006-CA-000697-MR
    FAYETTE CIRCUIT COURT NO. 2003-CI-01679
    MELBOURNE MILLS, JR.                                                  APPELLEE
    ORDER
    On the Court's own motion, the Opinion of the Court by Justice Noble
    rendered Au    st 27, 2009 shall be modified on page 20, line 8. Pages 1 and 20
    shall be substituted, as attached hereto, in lieu of pages 1 and 20 of the
    Opinion as originally rendered. Said modification does not affect the holding.
    Entered : November 2, 2009.
    

Document Info

Docket Number: 2007 SC 000296

Filed Date: 8/27/2009

Precedential Status: Precedential

Modified Date: 10/8/2015