DENNIS DeWITT et al., Plaintiffs-Appellees, v. GEORGE C. FLEMING, a/k/a Fleming Trust, Defendant-Appellant, 357 Ill. App. 3d 571

JUSTICE WELCH delivered the opinion of the court: The defendant, George C. Fleming, also known as Fleming Trust, appeals from the judgment of the circuit court of Montgomery County in favor of the plaintiffs, Dennis and Sheila DeWitt, on their small claims complaint to recover the cost of a survey performed on a parcel of land, which the defendant had orally promised to sell to the plaintiffs but subsequently refused to sell.

On appeal, the defendant argues that the trial court erred in applying the doctrine of promissory estoppel because the doctrine of promissory estoppel cannot be used to bar the application of the statute of frauds. Because we conclude that promissory estoppel may be used as a defense but not as a cause of action, we reverse the judgment of the trial court. Although no brief has been filed on behalf of the appellees, we are able to consider this appeal on the merits pursuant to First Capitol Mortgage Corp. v. Talandis Construction Corp., 63 Ill. 2d 128 (1976).

On August 18, 2003, the plaintiffs, pro se, filed a small claims complaint against the defendant. The plaintiffs sought to recover the cost of the survey, which was $2,382.45. In the complaint, the plaintiffs alleged that the defendant had orally agreed to sell them the property, that after the survey was performed, the defendant refused to sell them the property, and that the defendant refused to pay for the survey. On September 11, 2003, the defendant filed a motion to dismiss the plaintiffs’ complaint, based upon the statute of frauds (740 ILCS 80/2 (West 2002)).

The defendant argued that the complaint was “based upon a verbal agreement to sell real estate.” On September 19, 2003, the trial court heard arguments on the motion to dismiss and took the matter under advisement. By docket entry dated September 26, 2003, the trial court denied the defendant’s motion to dismiss. The docket entry provided, in pertinent part, as follows: “Plaintiff is seeking to recover the cost of a survey, not to enforce a contract to sell real estate, the latter being clearly barred by the [s]tatute of [fjrauds.

The factual situation at this stage of the proceedings is not sufficiently clear for the purposes of a [sjection 2 — 619 [(735 ILCS 5/2 — 619 (West 2002))] motion to determine if this claim is barred by [section 2 of the Frauds Act (740 ILCS 80/2 (West 2002))]. Accordingly, the [m]otion to [d]ismiss is denied and the [s]tatute of [f]rauds shall be considered as an affirmative defense.” Following a bench trial on October 27, 2003, in which the plaintiffs presented uncontradicted testimony that the defendant had agreed to sell the land in question to the plaintiffs, the trial court took the matter under advisement.

By docket entry dated October 31, 2003, the court entered a judgment in favor of the plaintiffs and against the defendant in the sum of $2,382.45 plus costs. The docket entry provided, in pertinent part, as follows: “Plaintiff is bringing an action for the cost of a survey which he obtained to purchase a 16.7[-]acre tract from Defendant for $800 an acre. Plaintiff is not suing to enforce the oral agreement, so the action is not barred by the [s]tatute of [flrauds. There was no contract to obtain a survey, so if the Plaintiff is to prevail, he must do so on the theory of promissory estoppel.

The elements of promissory estoppel are: 1) a promise, 2) reliance on the promise which is reasonable, and 3) a detriment suffered by the party. In this case, Defendant promised to sell the tract to Plaintiff and stated that he had no objection to Tony Hard doing the survey; Plaintiff reasonably relied on that promise in obtaining the survey; and Plaintiff suffered a detriment when he had to pay for the survey but did not get to purchase the real estate.” On November 5, 2003, the defendant filed a motion to reconsider. Following a hearing on December 8, 2003, the trial court denied the motion.

The defendant filed a timely notice of appeal. On appeal, the defendant argues that the trial court erred in applying the doctrine of promissory estoppel because the doctrine of promissory estoppel cannot be used to bar the application of the statute of frauds. However, because we conclude that promissory estoppel may be used as a defense but not as a cause of action, we do not reach the defendant’s statute-of-frauds argument. As this court explained in a recent ruling, in Illinois promissory estoppel is available only as a defense (i.e., as a shield), not as a cause of action (i.e., as a sword).

In this court’s opinion in ESM Development Corp. v. Dawson, 342 Ill. App. 3d 688, 695 (2003), we stated explicitly that promissory estoppel “is not a proper vehicle for direct relief,” “cannot properly be pled as a cause of action,” “is meant to be utilized as a defensive mechanism — not as a means of attack,” and “does not form the basis for a damages claim.” Unlike our dissenting colleague, we are not convinced that the Illinois Supreme Court’s opinions in Doyle v. Holy Cross Hospital, 186 Ill. 2d 104, 110 (1999), and Quake Construction, Inc. v.

American Airlines, Inc., 141 Ill. 2d 281, 287 (1990), directly contradict our holding in ESM Development Corp. In Doyle, which was decided by the Illinois Supreme Court in 1999, the issue before the court was whether an employer could make unilateral changes to provisions in an employee handbook, in the absence of a previous reservation of the right to do so, that would operate to the disadvantage of existing employees. Doyle v. Holy Cross Hospital, 186 Ill. 2d 104, 110 (1999). The majority first considered Duldulao v.

Saint Mary of Nazareth Hospital Center, 115 Ill. 2d 482 (1987), in which the court had first recognized the enforceable effect of employee handbook provisions, and on the basis of Duldulao the majority concluded that after an employer is contractually bound to the provisions of an employee handbook, an attempted unilateral modification of its terms by the employer to an employee’s disadvantage fails for a lack of consideration. Doyle, 186 Ill. 2d at 112-13. In other words, the Doyle majority decided the issue before it on the basis of contract law principles.

Indeed, the majority declined to address at all the issue of promissory estoppel. Doyle, 186 Ill. 2d at 117. Then-Chief Justice Freeman, joined by Justice McMorrow, concurred in part with and dissented in part from the majority’s disposition. Justice Freeman agreed with the majority that a contract existed, and he agreed that the case should be decided on contract law principles. Doyle, 186 Ill. 2d at 118 (Freeman, C.J., concurring in part and dissenting in part, joined by McMorrow, J.).

However, Justice Freeman wrote that because the court had made a finding that a contract existed, he would address the issue of promissory estoppel and explicitly find that a remedy of promissory estoppel was not available to the plaintiffs under the facts of the case. Doyle, 186 Ill. 2d at 123 (Freeman, C.J., concurring in part and dissenting in part, joined by McMorrow, J.). Although our dissenting colleague cites Justice Freeman’s position as a contradiction of this court’s recent holding in ESM Development Corp. v. Dawson, 342 Ill.

App. 3d 688, 695 (2003), we believe that Justice Freeman’s position, constituting a minority position, is too remote and equivocal to be equated with a direct pronouncement from the Illinois Supreme Court that promissory estoppel clearly and explicitly exists as a proper vehicle for direct relief in Illinois. In Quake Construction, Inc. v.

American Airlines, Inc., 141 Ill. 2d 281, 287 (1990), decided nine years prior to the Doyle decision, the issue before the court was whether a letter of intent sent by one of the parties to the other was an enforceable contract giving rise to a cause of action by the latter party, who allegedly had been aggrieved by a breach of that contract. The court concluded that the letter of intent was ambiguous and that parol evidence was required to determine whether the parties intended the letter to serve as an enforceable contract. Quake Construction, Inc., 141 Ill. 2d at 309.

Having spent most of the opinion discussing the contract law principles that determined its decision (Quake Construction, Inc., 141 Ill. 2d at 287-309), the court then turned to the impact that its holding would have on each of the four counts in the plaintiffs complaint. Quake Construction, Inc., 141 Ill. 2d at 309. The second count of the complaint alleged detrimental reliance, restated by the court as promissory estoppel. Quake Construction, Inc., 141 Ill. 2d at 309.

In a scant two pages of its otherwise voluminous opinion, the court set out the elements of a claim for promissory estoppel and affirmed the appellate court’s reversal of the dismissal of the second count, pending the determination, on remand, of whether the parties intended the letter of intent to serve as an enforceable contract. Quake Construction, Inc., 141 Ill. 2d at 309-11. The court did not explicitly address the viability of a promissory estoppel claim brought by a plaintiff as a distinct cause of action.

Because the court was not asked to rule on that question, and in fact did not rule on it, we are not as persuaded as our dissenting colleague that Quake Construction, Inc. stands for the proposition that promissory estoppel is a proper vehicle for direct relief in Illinois courts.

In the absence of directly controlling authority to the contrary, we decline to abandon our decision, made just two years ago, that promissory estoppel “is not a proper vehicle for direct relief,” “cannot properly be pled as a cause of action,” “is meant to be utilized as a defensive mechanism — not as a means of attack,” and “does not form the basis for a damages claim.” ESM Development Corp. v. Dawson, 342 Ill. App. 3d 688, 695 (2003).

We believe that an explicit rule of law that promissory estoppel exists only for defensive purposes in Illinois promotes the stability and integrity of Illinois jurisprudence and provides attorneys practicing in Illinois, as well as their clients, with a clear, stable guidepost to which they may conform themselves. For the foregoing reasons, we reverse the judgment of the circuit court of Montgomery County. Reversed. KUEHN, J., concurs.