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WPI 301A.01 Promissory Estoppel

6A WAPRAC WPI 301A.01Washington Practice Series TMWashington Pattern Jury Instructions--Civil

6A Wash. Prac., Wash. Pattern Jury Instr. Civ. WPI 301A.01 (7th ed.)
Washington Practice Series TM
Washington Pattern Jury Instructions--Civil
April 2022 Update
Washington State Supreme Court Committee on Jury Instructions
Part XIII. Contracts
Chapter 301A. Equitable Alternatives—Promissory Estoppel and Quasi Contract
WPI 301A.01 Promissory Estoppel
Promissory estoppel means that a person will be prevented (estopped) from denying liability for breaching his or her promise, when another person reasonably relied upon that promise and justice requires that the promise be enforced.
(Name of promisee)claims promissory estoppel and has the burden of proving, by a preponderance of the evidence, each of the following:
(1) That(name of promisor)made a promise [of] [to](specify promise claimed);
(2) That(name of promisor)should reasonably have expected that promise to cause(name of promisee or claimant)to change position [by(specify action or forbearance)];
(3) That(name of promisee or claimant)actually did change position; [and]
(4) That when(name of promisee or claimant)changed position, [he] [she] [it] was relying on the promise of(name of promisor), and was justified in doing so [; and]
[(5) That injustice can be avoided only if the promise is enforced].
The WPI Committee believes that because of the equitable nature of promissory estoppel, the issue will generally be decided by the court. However, if the issue is submitted to the jury it will generally be appropriate to devise specific factual questions for the jury to accompany this instruction. Whether an estoppel results from the established facts will then be a question for determination by the court, based on the jury's factual determinations. See the Comment. This instruction is included for use at the discretion of the trial court.
Item 5 is included in the instruction for completeness, but the court may wish to reserve this issue separately, in which case the item should be omitted from the instruction.
For equitable estoppel as a defense to a claim of breach, use WPI 302.06 (Excuse of Performance—Estoppel).
If promissory estoppel is asserted as an alternative to a finding of contract based on consideration, the instruction should be modified to clarify the alternatives for the jury.
Use this instruction with WPI 21.01 (Meaning of Burden of Proof—Preponderance of the Evidence).
Role of the jury. The Washington State Supreme Court has not decided whether promissory estoppel is an appropriate issue to submit to a jury. However, in Kim v. Dean, 133 Wn.App. 338, 135 P.3d 978 (2006), the Court of Appeals analyzed this issue and held that there was no right to jury trial on a promissory estoppel claim based on the facts of the case before it. In Kim, the court found that a former employee had no right to a jury trial of his promissory estoppel action against a former employer over alleged promises that the employee would receive a portion of the proceeds when the employer's company was sold, because the claim was purely equitable notwithstanding the employee's request for money damages. The court reasoned that the claim was solely equitable because it was based on good faith reliance unsupported by consideration (historically an equitable cause of action) and because it did not present a quantifiable measure of damages but rather required the jury to balance the equities in arriving at a damage award.
In general, when an action is purely equitable in nature, there is no right to a jury trial, but where a case involves both legal and equitable issues, a court has wide discretion to submit some, all, or none of the legal issues to a jury. Brown v. Safeway Stores, Inc., 94 Wn.2d 359, 617 P.2d 704 (1980). The history of the right to jury trial and the factors a court is to consider when determining whether the case is primarily equitable in nature or an action at law are discussed in two cases: Brown v. Safeway Stores, Inc., 94 Wn.2d 359, 368, 617 P.2d 704 (1980), and State ex rel. Department of Ecology v. Anderson, 94 Wn.2d 727, 620 P.2d 76 (1980). In making this determination, the court has great discretion, the exercise of which will not be disturbed except for clear abuse of discretion. Brown, 94 Wn.2d at 368; see also Shepler Constr., Inc. v. Leonard, 175 Wn.App. 239, 306 P.3d 988 (2013) (doubt should be resolved in favor of a jury trial because of the Constitutional right).
Several Washington appellate opinions have considered issues involving jury instructions on promissory estoppel without addressing the issue of whether they presented equitable issues not properly submitted to the jury. E.g., Wright v. Miller, 93 Wn.App. 189, 201, 963 P.2d 934 (1998) (insufficient evidence of unequivocal promise to submit to jury); Havens v. C & D Plastics, Inc., 68 Wn.App. 159, 842 P.2d 975 (1992) (insufficient evidence to submit to jury), reversed in part on other grounds, 124 Wn.2d 158, 876 P.2d 435 (1994); Farm Crop Energy, Inc. v. Old Nat'l Bank of Wash., 38 Wn.App. 50, 685 P.2d 1097 (1984), reversed on other grounds, 109 Wn.2d 923, 750 P.2d 231 (1988) (Supreme Court noting that an instruction based on the Restatement (Second) of Contracts § 90(1) would have been “preferable” to the one used by the trial court); see also Clipse v. Com. Driver Servs., Inc., 189 Wn.App. 776, 795–97, 358 P.3d 464 (2015) (trial court improperly submitted promissory estoppel theory to jury when plaintiff failed to present evidence of a clear and definite promise giving rise to promissory estoppel).
An equitable issue may be submitted to a jury for resolution of factual questions, although its verdict will be advisory only unless both parties consent to be bound. State ex rel. Dep't of Ecology v. Anderson, 94 Wn.2d 727, 620 P.2d 76 (1980); Alpine Industs., Inc. v. Gohl, 30 Wn.App. 750, 637 P.2d 998 (1981). For example, in C & K Engineering Contractors v. Amber Steel Co., 23 Cal.3d 1, 587 P.2d 1136, 151 Cal.Rptr. 323 (Cal. 1978), the trial court denied defendant's request for a jury trial but empaneled an advisory jury to consider the issue of plaintiff's reasonable reliance on defendant's promise.
Elements of promissory estoppel. With regard to element (5), “if justice can be avoided only by enforcement of the promise,” the Restatement (Second) of Contracts § 90 cmt. b (1981), notes that satisfaction of this requirement:
may depend on the reasonableness of the promisee's reliance, on its definite and substantial character in relation to the remedy sought, on the formality with which the promise is made, on the extent to which the deterrent and channeling functions of form are met by the commercial setting or otherwise, and on the extent to which such other policies as the enforcement of bargains and the prevention of unjust enrichment are relevant.
See R. S. Bennett & Co., Inc. v. Econ. Mech. Industs., Inc., 606 F.2d 182, 186 (7th Cir. 1979) (in summary judgment context, avoiding injustice a matter of law, while satisfaction of other elements a question of fact). Compare with Kaiser Steel Corp. v. Frank Coluccio Constr. Co., 785 F.2d 656 (9th Cir. 1986) (upholding instruction requiring jury to determine whether injustice could be avoided only by an award of damages, when specific enforcement not possible).
The Restatement (Second) of Contracts § 90(1) (1981) provides:
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 created for breach may be limited as justice requires.
In analyzing the application of section 90, the Washington courts have established five requirements for recovery in promissory estoppel: “(1) a promise which (2) the promisor should reasonably expect to cause the promisee to change position and (3) which does cause the promisee to change position (4) justifiably relying on the promise, in such a manner that (5) injustice can be avoided only by enforcement of the promise.” King v. Riveland, 125 Wn.2d 500, 506, 886 P.2d 160 (1994); see also Corbit v. J. I. Case Co., 70 Wn.2d 522, 538, 424 P.2d 290 (1967); Sloma v. Wash. State Dep't of Ret. Sys. 12 Wn.App.2d 602, 459 P.3d 396, review denied 195 Wn.2d 1028 (2020); Corey v. Pierce Cnty. 154 Wn.App. 752, 768, 225 P.3d 367 (2010); Shaw v. Hous. Auth. of City of Walla Walla, 75 Wn.App. 755, 761, 880 P.2d 1006 (1994).
Promissory estoppel makes “a promise binding, under certain circumstances, without consideration in the usual sense of something bargained for and given in exchange. If the promisee's performance was requested at the time the promisor made his promise and that performance was bargained for, the doctrine is inapplicable.” Greaves v. Med. Imaging Sys., Inc., 124 Wn.2d 389, 398, 879 P.2d 276 (1994) (quoting Klinke v. Famous Recipe Fried Chicken, Inc., 94 Wn.2d 255, 261 n.4, 616 P.2d 644 (1980) (citations omitted)).
The Washington Supreme Court also held that promissory estoppel is similar to estoppel by silence in that “in either case the party who is estopped has in effect stood by and, in violation of his duty in equity and good conscience to warn another of the real facts, permitted the latter to take some action detrimental to his own interest.” In such an instance, it is “not necessary that the one estopped receive some benefit or consideration from the particular transaction,” nor is it necessary that he be “guilty of some actual overt act of fraud.” Central Heat, Inc. v. Daily Olympian, Inc., 74 Wn.2d 126, 133, 443 P.2d 544 (1968).
There can be no promissory estoppel in the absence of a promise. Corbit, 70 Wn.2d at 538. See WPI 301.02 (Promise Defined). There is also no promissory estoppel without evidence of reliance. Shaw, 75 Wn.App. 755. On the other hand, neither consideration for the promise, nor mutual assent, is required. Havens, 124 Wn.2d at 173.
Damages. A number of courts have limited juries to an award of reliance damages upon a finding of promissory estoppel. E.g., Green v. Interstate United Mgmt. Servs. Corp., 748 F.2d 827 (3d Cir. 1984); RCM Supply Co. Inc. v. Hunter Douglas, Inc., 686 F.2d 1074 (4th Cir. 1982). The Washington Supreme Court considered the issue without resolving it in Farm Crop Energy, Inc. v. Old National Bank of Washington, 109 Wn.2d 923, 750 P.2d 231 (1988) (plaintiff limited to reliance damages on basis of “new business rule”).
Additional or alternative claims. A promisee may bring a claim for breach of contract and, in addition or in the alternative, for promissory estoppel. Farm Crop Energy, 109 Wn.2d 923; see also Flower v. T.R.A. Industries, Inc., 127 Wn.App. 13, 30–32, 111 P.3d 1192 (2005) (reversing the trial court's award of summary judgment for an employer and remanding for trial, holding that the plaintiff employee had successfully raised issues of fact about whether a contract for good cause discharge had been formed and that in the alternative plaintiff employee was entitled to pursue a claim for damages based on promissory estoppel if the contract could not be proved). To recover based on promissory estoppel in the context of what would otherwise be an employment at will, the employee must show that a promise of discharge only upon just cause was “clear and definite,” as well as one that the employer promisor would reasonably expect to cause the employee promisee to change position in reliance upon the promise. Havens, 124 Wn.2d at 173–74.
Employee handbook cases. In the context of claims based upon breach of promises contained in employee handbook cases, a claim for breach of a promise of specific treatment was recognized in Thompson v. St. Regis Paper Co., 102 Wn.2d 219, 230, 685 P.2d 1081 (1984):
Therefore, we hold that if an employer, for whatever reason, creates an atmosphere of job security and fair treatment with promises of specific treatment in specific situations and an employee is induced thereby to remain on the job and not actively seek other employment, those promises are enforceable components of the employment relationship.
(Emphasis in original.) But see Bulman v. Safeway, Inc., 144 Wn.2d 335, 27 P.3d 1172 (2001) (holding that an employee must prove reliance on a particular promise of specific treatment and not on a general atmosphere of job security).
The Thompson specific treatment claim “is not an implied or express contract claim, but is independent of a contractual analysis and instead rests on a justifiable reliance theory.” Korslund v. Dyncorp Tri-Cities Servs., Inc., 156 Wn.2d 168, 185, 125 P.3d 119 (2005) (citations omitted); see also Worley v. Providence Physician Servs. Co., 175 Wn.App. 566, 307 P.3d 759 (2013) (trial court properly dismissed wrongful discharge claim brought by nurse practitioner who failed to establish either a promise of specific treatment or a violation of public policy).
While this type of claim is often based upon a written promise, there is no requirement of a writing; Thompson specifically incorporates the Restatement definition of a “promise,” which includes both written and oral promises. Thompson, 102 Wn.2d at 230 (citing Restatement (Second) of Contracts § 2 (1981)). “A promise is a manifestation of intention to act or refrain from acting in a specified way, so made as to justify a promisee in understanding that a commitment has been made.” Restatement (Second) of Contracts § 2(1) (1981). “The word ‘promise’ is commonly and quite properly also used to refer to the complex of human relations which results from the promisor's words or acts of assurance.” Restatement (Second) of Contracts § 2 cmt. a (1981). Furthermore, the doctrine of justifiable reliance extends to oral promises, and the relevant Restatement provision provides several examples of enforceable oral promises. See Restatement (Second) of Contracts § 90 illus. 7, 16, 17 (1981).
Third party. Regarding a potential claim by a third party, as opposed to a promisee, see Restatement (Second) of Contracts § 90 cmt. c (1981), which explains: “If a promise is made to one party for the benefit of another, it is often foreseeable that the beneficiary will rely on the promise.”
Statute of frauds. The Washington Supreme Court has declined to adopt the Restatement (Second) of Contracts section 139, which applies the doctrine of promissory estoppel generally to enforce an oral promise not in compliance with the statute of frauds or RCW 19.36.010 (setting forth categories of contracts that are void if not written). Greaves v. Medical Imaging Systems, Inc., 124 Wn.2d 389, 879 P.2d 276 (1994). On the other hand, the court has held that when there is detrimental reliance, promissory estoppel may be used to enforce a contract in spite of the statute of frauds against a “party who promises, implicitly or explicitly, to make a memorandum of a contract in order to satisfy the statute of frauds, and then breaks that promise.” Klinke, 94 Wn.2d at 259 (quoting In re Estate of Nelson, 85 Wn.2d 602, 537 P.2d 765 (1975) (citing Restatement (Second) of Contracts § 178 cmt. f (1981))).
For a detailed discussion of promissory estoppel issues, see DeWolf, Allen, & Caruso, 25 Washington Practice, Contract Law and Practice ch. 6 (3d ed.).
[Current as of September 2021.]
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