PBJ PROPERTIES LLC V ARBY`S INC
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STATE OF MICHIGAN
COURT OF APPEALS
PBJ PROPERTIES, L.L.C.,
UNPUBLISHED
December 26, 2000
Plaintiff-Appellee,
v
No. 213044
Wayne Circuit Court
LC No. 96-628073-CZ
ARBY’S, INC., and FORSH, INC.,
Defendants-Appellants.
Before: Markey, P.J., and Murphy and Collins, JJ.
PER CURIAM.
Following a bench trial, the circuit court entered judgment in plaintiff’s favor and ordered
defendants to rebuild a wall or other adequate barrier between the parties’ adjacent commercial
properties. Defendants appeal as of right. We affirm.
Defendants first argue that the trial court should have dismissed plaintiff’s action because
any alleged agreement to maintain a wall was not in writing and was, therefore, unenforceable
under the statute of frauds, MCL 566.108; MSA 26.908. We disagree. Plaintiff’s assertion of
promissory estoppel, resting on defendants’ oral promise, operates to avoid the statute of frauds.
McMath v Ford Motor Co, 77 Mich App 721, 725; 259 NW2d 140 (1977).
Defendants next argue that promissory estoppel does not apply because the statements
made by defendants’ representative at public hearings did not create a clear and definite
obligation on the part of defendants to maintain the wall forever. Promissory estoppel arises in
equity when (1) there is 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
produces reliance or forbearance of that nature (4) under circumstances such that the promise
must be enforced if injustice is to be avoided. Martin v East Lansing School Dist, 193 Mich App
166, 178; 483 NW2d 656 (1992); McMath, supra at 725. Promissory estoppel requires
reasonable reliance, and reliance is reasonable only if it is induced by an actual, clear, and
definite promise. State Bank of Standish v Curry, 442 Mich 76, 84-85; 500 NW2d 104 (1993);
Martin, supra. The existence and scope of the promise are questions of fact that will not be
overturned unless clearly erroneous. State Bank of Standish, supra at 84. To ascertain the
existence and scope of a promise, courts use an objective standard to analyze the words and
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actions of the transaction as well as the nature of the relationship between the parties and the
circumstances surrounding their actions. Id. at 86.
Here, the trial court did not clearly err in finding that a clear and definite promise was
made by defendants to maintain the wall in question as long as the Arby’s restaurant was still in
operation. Trial testimony showed that defendants’ representatives made representations during
public meetings of the planning commission that the existing wall would be repaired or replaced,
and maintained. Moreover, defendants should reasonably have expected to induce action of a
definite and substantial character on the part of those to whom the promise was directed. Indeed,
the evidence indicates that the reason the promise was made was so that interested parties would
withdraw their objections to defendants’ proposed site plan. Further, the subject wall was
included in the revised site plan approved by the city council and defendants continued to
maintain the wall for approximately five years after the restaurant was built.
We reject defendants’ alternative argument that plaintiff, as a subsequent purchaser of the
adjacent property, lacks standing to enforce defendants’ promise. Promissory estoppel has been
defined to include reasonable reliance by a third person:
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. [1 Restatement Contracts, 2d, § 90, p 242 (emphasis
added).]
See also 28 Am Jur 2d, Estoppel & Waiver, § 128, pp 548-549. Here, it was foreseeable that
plaintiff, a prospective subsequent buyer of the property adjacent to the Arby’s restaurant who
attended the meetings at which the promise was made, would rely on defendants’ promise.
Plaintiff’s owner, Paul Jocks, had plans to purchase the building and ultimately did so. Jocks
testified that he may have negotiated to purchase the adjacent property for a different price had he
known that the wall was not going to be maintained. Under the circumstances, the trial court did
not clearly err in concluding, as an equitable matter, that the promise must be enforced to avoid
injustice.
Affirmed.
/s/ Jane E. Markey
/s/ William B. Murphy
/s/ Jeffrey G. Collins
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