Opinion
Court of Appeals Case No. 22A-PL-433
08-30-2022
Michael R. BASSETT and Kathleen A. Bassett, Appellants-Plaintiffs, v. SCOTT PET PRODUCTS, INC., Harlan Pet Products, Inc., Hal P. Harlan, Hugh P. Harlan, and Doug H. Harlan, Appellees-Defendants.
Attorneys for Appellants: Libby Y. Goodknight, Christopher W. Bloomer, Scott S. Morrisson, Krieg DeVault, LLP, Indianapolis, Indiana Attorneys for Appellees: Andrew M. McNeil, Tyler J. Moorhead, David L. Swider, Bose McKinney & Evans, LLP, Indianapolis, Indiana
Attorneys for Appellants: Libby Y. Goodknight, Christopher W. Bloomer, Scott S. Morrisson, Krieg DeVault, LLP, Indianapolis, Indiana
Attorneys for Appellees: Andrew M. McNeil, Tyler J. Moorhead, David L. Swider, Bose McKinney & Evans, LLP, Indianapolis, Indiana
Riley, Judge. STATEMENT OF THE CASE
[1] Appellants/Cross-Appellees/Plaintiffs, Michael R. Bassett and Kathleen A. Bassett (collectively, the Bassetts), appeal the trial court's grant of partial summary judgment in favor of Appellees/Cross-Appellants/Defendants, Scott Pet Products, Inc., Harlan Pet Products, Inc., Hal P. Harlan, Hugh P. Harlan, and Doug H. Harlan (collectively, the Harlan Defendants), who cross-appeal the trial court's grant of partial summary judgment in favor of the Bassetts.
[2] We affirm.
ISSUE
[3] The Bassetts present this court with three issues, and the Harlan Defendants cross-appeal. We find the issues presented by the Bassetts to be dispositive, and we consolidate and restate those issues as: Whether genuine issues of material fact exist precluding summary judgment on the Bassetts’ breach of contract, declaratory judgment, and promissory estoppel claims.
FACTS AND PROCEDURAL HISTORY
[4] The following relevant facts are not in dispute. Scott Pet Products, Inc., (SPP) is an Indiana corporation created in 1975 with its principal place of business in Rockville, Indiana, that is engaged in the management, production, storage, and supply of various animal and pet products. Kathleen Bassetts’ (Kathy) father started SPP, and Kathy worked for SPP starting at the age of fifteen. Michael Bassett (Mike) began working for SPP in 1990, after he married Kathy. Prior to 1999, Mike became the president of SPP and remained in that position until March 2020.
Formerly known as T.E. Scott, Inc.
[5] Harlan Pet Products, Inc., (HPP) is an Indiana corporation created in 1999 with its principal place of business in Avon, Indiana. Hal P. Harlan, Hugh P. Harlan, and Doug H. Harlan (collectively, the Harlans) are the sole owners and shareholders of HPP. On May 14, 1999, HPP purchased SPP and became its sole owner and shareholder. After HPP acquired SPP, Mike stayed on as president, and Kathy became the customer services director and, later, the marketing director. On May 21, 1999, as part of the process of HPP acquiring SPP, Mike and SPP executed the Employment Agreement which outlined Mike's duties as president and the terms of his remuneration. The Employment Agreement contained the following relevant recitals:
WHEREAS, Employee has been previously employed by Employer and will be employed by the Employer pertaining to the Business pursuant to this Agreement.
In consideration of and as a condition of the continuation of employment of Employee by Employer and the compensation paid to Employee in connection with such employment, IT IS THEREFORE AGREED as follows:
* * *
Compensation. The Employee shall receive as remuneration for his services an annual base salary ... In the event this Agreement shall continue to be in effect after May 21, 2000, the parties agree to review the Employee's performance and compensation annually in May, at which time the compensation may be increased,
decreased, or remain the same as the parties may mutually agree.
(Appellants’ App. Vol. III, pp. 117, 118). The Employment Agreement did not contain any recitation or mention of an ownership interest in SPP for Mike. The Employment Agreement provided that it constituted the entire agreement between the parties and could only be changed by an agreement in writing.
[6] From 1999 to 2020, two things happened periodically but consistently: (1) Mike and the Harlans engaged in negotiations, both orally and in writing, regarding Mike acquiring a form of ownership interest in SPP, and (2) the Harlans, Mike, and others engaged in efforts to find a buyer for SPP. Regarding Mike's ownership interest, the parties initially discussed him receiving a 20% interest, but after 2008, Mike's putative interest was always discussed as being 15%. These negotiations would periodically become more pointed or intense, only to eventually die out. From 2000 to 2020, Mike's annual base salary increased from $125,000 to $200,000. In addition, during that same time frame, Mike received an annual bonus of 1% of the sales of pressed-pork products and 5% of SPP's net profit. Mike's annual bonus increased significantly over the term of his SPP employment and in 2019 was in excess of $400,000.
[7] In 2008, a Harlan-controlled entity purchased a small chain of retail pet supply stores, Pet Products Superstores (PPS), from the Bassetts. On October 27, 2008, the Bassetts offered to reduce Mike's ownership interest in SPP from 20% to 15%, which they felt would "far exceed any value that could be placed on the three [PPS] stores." (Appellants’ App. Vol. III, p. 152). As part of the PPS deal, the parties contemplated that the Bassetts would take out a $200,000 loan (PPS Loan) from SPP to finance PPS's accounts receivable, that the PPS Loan would be secured by "Mike and Kathy's [SPP] shares", and that the "parties have agreed that your future ownership that is now being formalized in [SPP] will be 15%." (Appellants’ App. Vol. III, pp. 154, 155). On December 17, 2008, the Bassetts executed a promissory note for the PPS Loan that provided that the loan "will be secured by a pledge of certain stock of HPP or [SPP] now or hereafter held by Bassett pursuant to a certain Collateral Assignment and Pledge of Stock to be executed by Bassett in favor of [SPP]." (Appellants’ App. Vol. III, p. 160). The Collateral Assignment and Pledge of Stock (Collateral Stock Assignment) provided that, as security for the PPS Loan, Mike pledged his shares "of common stock of [HPP]." (Appellants’ App. Vol. III, p. 161). Spaces on the Collateral Stock Assignment for the HPP stock certificate numbers were not filled in, and, although the Bassetts executed the document, SPP did not. As per the parties’ agreement, the PPS Loan was fully repaid through the withholding of Mike's SPP bonuses and commissions until the loan was eventually extinguished.
[8] On March 18, 2020, Mike had a verbal confrontation with an SPP employee. On March 20, 2020, in an email under Hal Harlans’ signature, SPP terminated Mike and Kathy, effective immediately. The primary rationale presented in the email for Mike's and Kathy's termination was Mike's conduct two days before. In an April 20, 2020, email, SPP and the Harlans notified the Bassetts that Mike had no enforceable ownership interest in SPP. The Harlans still own SPP.
[9] On June 29, 2020, the Bassetts filed their Complaint against the Harlan Defendants, alleging, among other things, breach of contract for failing to honor the agreement that Mike had a 15% equity interest in SPP and promissory estoppel based on the Bassetts’ reliance on the Harlans’ promises that Mike had a 15% equity interest in SPP. The Bassetts subsequently amended their Complaint to add a request for declaratory judgment that Mike had a 15% equity interest in SPP that would entitle him to 15% of the net proceeds in the event that SPP was sold.
The Bassetts originally raised a claim of defamation/slander against Nathan Peters, the SPP employee involved in the March 18, 2020, verbal confrontation with Mike. The Bassetts subsequently dismissed those claims and Peters from their lawsuit.
[10] On August 28, 2020, the Harlan Defendants answered the Complaint, generally denying the Bassetts’ allegations, specifically denying that any agreement to provide Mike a 15% equity interest existed and raising the defenses of the statute of limitations and the statute of frauds, among others. The Harlan Defendants also brought ten counterclaims, including theft, fraud, breach of contract, and tortious interference based on allegations of financial misconduct and self-dealing on the Bassetts’ part while employed by SPP and for allegedly interfering with customer and supplier relationships after the Bassetts were terminated. The parties exchanged discovery, and Mike, Kathy, Hal Harlan, and others were deposed. At his deposition, Mike testified that discussions regarding his ownership interest did not start until 2000, after HPP had acquired SPP and after he had signed his Employment Agreement. Mike also confirmed that he had not passed up any other specific employment opportunities while employed by SPP.
[11] On July 8, 2021, the Harlan Defendants filed their motion for partial summary judgment, memorandum in support, and designation of evidence, seeking summary judgment on, among other claims, the Bassetts’ breach of contract, declaratory judgment, and promissory estoppel claims. On August 9, 2021, the Bassetts filed their brief in opposition to partial summary judgment, memorandum in support, and designation of evidence. On August 25, 2021, the Harlan Defendants filed their Reply, and on September 20, 2021, they filed a supplemental designation of evidence in support of partial summary judgment. On September 20, 2021, the trial court held a hearing on the Harlan Defendants’ summary judgment motion.
[12] On November 4, 2021, the trial court issued its detailed summary judgment. After entering sixty-five findings on the undisputed facts, the trial court denied the Harlan Defendants summary judgment on their defenses, concluding that the Bassetts’ breach of contract, promissory estoppel, and declaratory judgment claims were brought within the applicable two-year statute of limitations and that genuine issues of material fact existed as to whether the Bassetts’ breach of contract claim was barred by the statute of frauds. However, the trial court granted the Harlan Defendants summary judgment on the merits of the Bassetts’ breach of contract claim, concluding that, although the parties had agreed on many of the essential terms of Mike's ownership interest in SPP, the ownership agreement failed for lack of consideration. The trial court reasoned that Mike's
agreement to continue his role as [p]resident of SPP was merely an extension of his then-existing obligations he was already performing that was not expressly conditioned on securing equity in SPP. The undisputed facts also show that Mike provided no other independent consideration in exchange to secure the equity in SPP.
(Appellants’ App. Vol. II, pp. 46-47). The trial court also relied on Mike's deposition testimony that he had neither been offered nor pursued any other outside employment or business opportunity while employed at SPP in concluding that there was no genuine issue of material fact that Mike did not provide any consideration by forbearing such opportunities. In sum, the trial court found that the Harlans’ offer of an equity interest to Mike was "the kind of gratuitous promise that cannot be enforced under a contract claim when revoked[.]" (Appellants’ App. Vol. II, p. 49).
[13] The trial court also rejected the Bassetts’ alternative argument that the Harlan Defendants were bound by the terms of the ownership agreement because they had used his SPP interest as collateral for the PPS Loan. The trial court reasoned that Mike could not use property as collateral that he did not own, the Collateral Stock Assignment had not been signed by the Harlan Defendants, and that "the document memorializes at most an intention to provide equity in the future and another gratuitous promise to satisfy any remaining debt obligation from the PPS sale through the future equity distribution." (Appellants’ App. Vol. II, p. 51). Based on the fact that it found that no enforceable contract existed due to lack of consideration, the trial court granted summary judgment to the Harlan Defendants on the Bassetts’ request for declaratory judgment.
[14] The trial court also granted summary judgment to the Harlan Defendants on the Bassetts’ promissory estoppel claim, concluding that it failed as a matter of law due to a lack of evidence that the Harlan Defendants’ promises to Mike had induced any reasonable reliance of a definite and substantial nature on Mike's part. Relying again on Mike's deposition testimony that he did not forbear any specific business or employment opportunities while employed at SPP, the trial court reasoned that there was no evidence, and, therefore, no genuine issue of material fact, that Mike had detrimentally relied on the Harlans’ promises sufficient to support his claim of promissory estoppel.
[15] On November 12, 2021, the Bassetts filed a motion to reconsider the grant of partial summary judgment, focusing on the trial court's conclusions regarding the lack of consideration for the ownership interest agreement as it pertained to their breach of contract and declaratory judgment claims. On November 19, 2021, the Harlan Defendants filed their response, and on January 7, 2022, the Bassetts filed a reply. On January 20, 2022, the trial court held a hearing on the Bassetts’ motion to reconsider. On February 18, 2022, the trial court issued an order denying the Bassetts’ motion to reconsider, and in a separate order entered at the Bassetts’ unopposed request, it amended its summary judgment to render it a final, appealable judgment.
The transcripts of the summary judgment and motion to reconsider hearings are not part of the record on appeal.
[16] The Bassetts now appeal, and the Harlan Defendants cross-appeal.
DISCUSSION AND DECISION
I. Standard of Review
[17] The Bassetts appeal the trial court's grant of partial summary judgment in favor of the Harlan Defendants. Summary judgment is appropriate if the designated evidence "shows that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Ind. Trial Rule 56(C). We review both the grant or denial of summary judgment de novo and apply the same standard as the trial court. Kerr v. City of South Bend , 48 N.E.3d 348, 352 (Ind. Ct. App. 2015). The party moving for summary judgment bears the initial burden of making a prima facie showing that there are no genuine issues of material fact and that it is entitled to judgment as a matter of law. Sargent v. State , 27 N.E.3d 729, 731 (Ind. 2015). "Summary judgment is improper if the movant fails to carry its burden, but if it succeeds, then the nonmoving party must come forward with evidence establishing the existence of a genuine issue of material fact." Id. at 731-32. "All disputed facts and doubts as to the existence of material facts must be resolved in favor of the [nonmoving] party." Kerr , 48 N.E.3d at 352. If the facts are undisputed, we determine the law applicable to those facts and whether the trial court correctly applied it. King v. Ebrens , 804 N.E.2d 821, 825 (Ind. Ct. App. 2004). "The question of whether a certain or undisputed set of facts establishes a contract is one of law for the trial court." Buschman v. ADS Corp. , 782 N.E.2d 423, 428 (Ind. Ct. App. 2003). The trial court's grant of summary judgment is cloaked in a presumption of validity. Looney v. Nestle Waters N. Am., Inc. , 187 N.E.3d 867, 872 (Ind. Ct. App. 2022), trans. denied.
[18] Here, the trial court entered detailed findings of fact and conclusions thereon. In conducting our de novo review of a summary judgment, we are not bound by the trial court's findings and conclusions. New v. T3 Invs. Corp. , 55 N.E.3d 870, 876 (Ind. Ct. App. 2016), trans. denied. Rather, the trial court's findings and conclusions provide valuable insight into the rationales behind the judgment and facilitate our review. Interstate Cold Storage, Inc. v. General Motors Corp. , 720 N.E.2d 727, 730 (Ind. Ct. App. 1999), trans. denied. We may affirm a grant of summary judgment based on any theory supported by the designated materials. Id.
II. Contract Formation
[19] The Bassetts challenge the trial court's conclusion that the parties did not enter into an enforceable contract. More specifically, the Bassetts argue that summary judgment was not warranted because consideration existed to support the parties’ ownership interest agreement. The Bassetts also argue that the trial court erred when it determined that no partial performance by the parties rendered the ownership interest agreement enforceable. We address these contentions in turn.
A. Consideration
[20] The elements of a valid contract are offer, acceptance, consideration, and a meeting of the minds of the parties who are entering the contract. Barrand v. Martin , 120 N.E.3d 565, 572 (Ind. Ct. App. 2019), trans. denied. "Consideration consists of a bargained-for exchange." B-Dry Owners Ass'n v. B-Dry Sys., Inc. , 636 N.E.2d 161, 163 (Ind. Ct. App. 1994), trans. denied. To constitute sufficient consideration to create a contract, a benefit must accrue to the promisor, or a detriment must accrue to the promisee. Id. In addition, any modification of a contract requires all of the requisite elements of a contract. AM Gen. LLC v. Armour , 46 N.E.3d 436, 443 (Ind. 2015). Pursuant to common law contract principles, a written agreement may be modified if there is consideration to support the modification. DiMizio v. Romo , 756 N.E.2d 1018, 1022 (Ind. Ct. App. 2001), trans. denied ; AM Gen. LLC , 46 N.E.3d at 443. As a general matter, past consideration does not support a new obligation or promise. Jackson v. Luellen Farms, Inc. , 877 N.E.2d 848, 858 (Ind. Ct. App. 2007). [21] In Hinkel v. Sataria Distribution & Packaging, Inc. , 920 N.E.2d 766, 767-68 (Ind. Ct. App. 2010), Hinkel and the owner of Sataria entered into discussions regarding Hinkel working for Sataria. To induce Hinkel and calm his reservations about leaving Hinkel's current employment, Sataria's owner promised to pay Hinkel's salary and insurance for one year if Hinkel was involuntarily terminated from Sataria. Id. at 768. Hinkel agreed and thereafter executed a written employment contract that outlined his pay and benefits but did not mention the promised one-year pay and insurance severance. Id. After Hinkel signed the employment agreement, Sataria's owner re-iterated his severance promises. Id. Hinkel was later terminated, but Sataria only paid him six weeks of severance. Id. Hinkel sued to enforce the oral severance agreement under theories of breach of contract and promissory estoppel. Id. The trial court granted Sataria summary judgment, and Hinkel appealed, arguing that, as it related to the severance promises made after he executed the written employment agreement, he had provided consideration for the oral modification by continuing to work for Sataria and by not voluntarily resigning from his employment. Id. at 770. In affirming the trial court, we observed that, although a written agreement may be modified by a subsequent oral agreement if consideration supports the modification, Hinkel had not provided additional consideration in exchange for the promise. Id. Addressing Hinkel's appellate arguments regarding his continuing to work and not voluntarily resigning, the Hinkel court concluded that
Hinkel had assumed those duties and employment obligations as consideration for the original agreement. Any subsequent promise by [Sataria's owner] respecting severance was not supported by an independent, bargained-for exchange. Accordingly, [Sataria's owner's] alleged oral promises could not have constituted valid modifications of Hinkel's employment contract.
Id. at 770-71 (cleaned up).
[22] The Hinkel court cited our previous decision in Buschman v. ADS Corporation , 782 N.E.2d 423, 430 (Ind. Ct. App. 2003), wherein we reached a similar result. Prior to being employed, Buschman had negotiated for severance pay in lieu of guaranteed commissions, but Bushman executed an employment agreement that did not include those terms. Id. at 426-27. Once terminated and deprived of his severance, Buschman sued, and summary judgment was entered in favor of ADS. Id. at 427. On appeal, Buschman argued that the severance term was enforceable and was supported by consideration because he had worked for ADS. Id. at 430. In upholding the trial court's summary judgment, this court concluded that, even if ADS had orally agreed to the severance package after Bushman signed the employment agreement, Bushman had not provided any additional consideration necessary for the oral modification of the written contract because "Buschman's work at ADS was the consideration for ADS’ offer embodied in the [employment agreement] and is not new consideration." Id.
[23] In light of Hinkel and Buschman , we conclude that the Bassetts’ argument that Mike's continued employment at SPP provided consideration for the Harlans’ promises of an ownership interest fails as a matter of law. The Harlan Defendants designated Mike's Employment Agreement, which provided the terms of his compensation, did not mention any ownership interest for Mike, and provided that it constituted the entire agreement between the parties. Mike has never contested the validity of the Employment Agreement. Mike's own deposition testimony established that there was no agreement on his ownership interest when he signed the Employment Agreement. Mike's continued and future employment was the consideration for the Employment Agreement. Mike's continued employment at SPP could not, therefore, supply the necessary consideration to render enforceable any promises by the Harlans which could have modified the written Employment Agreement.
[24] Nevertheless, the Bassetts draw our attention to evidence that the Harlans wanted Mike to have a personal investment in the company in order to incentivize his performance, that he provided continuity of management and leadership through his continued presence at SPP, that the Harlans needed Mike at SPP due to their supposed inexperience with SPP's products, that the Harlans desired to keep their involvement with animal testing from SPP's clients by keeping the Bassetts as the face of the company, and that SPP's revenue increased during Mike's service, all of which the Bassetts contend constituted benefits to the Harlan Defendants that supported the ownership agreement. However, these were all benefits that were known and contemplated by the parties when they entered into the Employment Agreement and which directly flowed from the duties and obligations that Mike assumed as president of SPP under the Employment Agreement. Those benefits did not supply any new form of consideration to support a modification of the Employment Agreement.
[25] The Bassetts also rely on Tuthill Corporation v. Wolfe , 451 N.E.2d 72 (Ind. Ct. App. 1983), and Spickelmier Industries, Inc. v. Passander , 172 Ind.App. 49, 359 N.E.2d 563 (1976), as supportive of their proposition that Mike's continued and future employment constituted sufficient consideration for the ownership interest agreement. However, Tuthill is not applicable to the facts of this case because it did not involve the modification of a written global employment contract but, rather, concerned the enforcement of an oral modification to an established written incentive plan that Tuthill had participated in since the beginning of his employment. Id. at 74. Neither do we find Spickelmier to be persuasive, as the court held in that case that a promise to give an additional bonus to an employee is unenforceable for lack of consideration where there is no evidence that an employee did or gave up something which, otherwise, he was not obligated to do or forego. Spickelmier , 359 N.E.2d at 565. As we have already determined, Mike's continued employment and his voluntary refrain from resigning from SPP had already provided the consideration for the Employment Agreement.
[26] The Bassetts also contend that the trial court's "logic was flawed" when it concluded "that Mike's Employment Agreement somehow meant that his continued employment as [p]resident of [SPP] could not constitute independent consideration for the Harlan Defendants’ promise[.]" (Appellants’ Br. p. 34). In support of this argument, the Bassetts remind us that Mike's Employment Agreement was at-will, he could have left at any time, and that he was under no obligation to remain. However, these are the same arguments that the Hinkel and Buschman courts rejected in face of breach of contract claims. Accordingly, based on the Harlan Defendants’ designated evidence, we conclude that the trial court properly entered summary judgement on the Bassetts’ breach of contract and declaratory judgment claims. B. Partial Performance
The Bassetts allude once in their Brief to the fact that Mike stayed on as president of SPP after 1999 "at a reduced salary no less." (Appellants’ Br. p. 29). However, Mike's Employment Agreement provided that the parties were to meet annually to review Mike's compensation, which could be increased, decreased, or remain the same. This evidence established that Mike was not automatically entitled to an annual salary increase. Mike's citations to the record in support of his contention that he worked at a reduced salary are to the allegations in the Complaint and to deposition testimony and exhibits showing the terms of his remuneration and his actual pay, none of which creates a factual dispute that he forewent pay to which he was entitled.
[27] The Bassetts also contend that the parties’ partial performance of the ownership interest agreement rendered it enforceable, saving their breach of contract and declaratory judgment claims. Even if the ownership interest agreement failed for lack of consideration, the Bassetts contend that the fact that the parties used Mike's SPP ownership interest to secure the PPS Loan established an enforceable SPP ownership interest agreement for Mike. As the Bassetts correctly point out, Indiana courts recognize that "the parties’ performance under an agreement will amount to an unambiguous and overt admission by both parties that a contract existed." Abercrombie and Fitch Stores, Inc. v. Simon Prop. Grp. , 160 N.E.3d 1103, 1109 (Ind. Ct. App. 2020) (citing Int'l Creative Mgmt., Inc., v. D & R Entm't Co. , 670 N.E.2d 1305, 1313 (Ind. Ct. App. 1996), trans. denied ). The Harlan Defendants counter that this concept only applies to unilateral contracts and, therefore, that it is inapplicable to the instant controversy.
[28] However, even if we were to assume, without deciding, that the parties’ performance could have ratified Mike's ownership interest in SPP, we conclude that, under the theory of performance presented by the Bassetts, their claim fails as a matter of law. The Bassetts maintain that the parties secured the PPS Loan with Mike's SPP ownership interest. However, the Harlan Defendants designated the documents supporting the PPS Loan, including the Bassetts’ promissory note and the Collateral Stock Assignment. Although the promissory note provided that Mike would pledge HPP or SPP stock, the Collateral Stock Assignment which effectuated the stock pledge provided that, as security for the loan, Mike pledged his shares "of common stock of [HPP]." (Appellants’ App. Vol. III, p. 161). Mike has never contended that he has an ownership interest in HPP. In addition, the Collateral Stock Assignment was not executed by SPP, negating any inference that the Harlans performed by definitively and formally agreeing to the pledge. Because Mike met his obligations under the PPS Loan through his bonus income, there was no resort to the purported security interest advanced by the Bassetts. Accordingly, even though we must draw all inferences in favor of the Bassetts as the non-movants, the evidence designated by the Harlan Defendants showed that the parties did not even partially perform Mike's SPP ownership interest agreement, and the Bassetts failed to designate evidence of any action on the part of the Harlan Defendants that created a factual controversy on this point.
III. Promissory Estoppel
[29] The Bassetts also challenge the trial court's conclusion that summary judgment was warranted on their promissory estoppel claim. The doctrine of promissory estoppel permits recovery where no contract between the parties exists. SWL, L.L.C. v. NextGear Capital, Inc. , 131 N.E.3d 746, 754 (Ind. Ct. App. 2019). Indiana adopted the doctrine of promissory estoppel from the second Restatement of Contracts. First National Bank of Logansport v. Logan Manufacturing Company, Inc. , 577 N.E.2d 949, 954 (Ind. 1991). The elements for a claim of promissory estoppel are
[a] promise which the promisor should reasonably expect to induce action or forbearance on the part of the promise or a third person which does induce 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.
Id. (emphasis added). Thus, in order to establish promissory estoppel, the party advancing the doctrine must show that the promise at issue actually induced action or forbearance. See , e.g. , Grdinich v. Plan Comm'n , 120 N.E.3d 269, 279 (Ind. Ct. App. 2019) (citing Biddle v. BAA Indianapolis, LLC , 860 N.E.2d 570, 581 (Ind. 2007), and reciting the doctrine of promissory estoppel as requiring proof that a promise induced reasonable reliance by the promisee). An employee may assert promissory estoppel against an employer where the employee demonstrates that "the employer made a promise to the employee, that the employee relied upon that promise to his detriment, and that the promise otherwise fits within the Restatement test for promissory estoppel." Hinkel , 920 N.E.2d at 771. "If the claimed reliance consists of forbearance rather than affirmative action, proof that the promise induced this forbearance requires a showing that the promisee could have acted[.]" D&G Stout, Inc. v. Bacardi Imports, Inc. , 805 F.Supp. 1434, 1447 (N.D. Ind. 1992) (applying the First National /Restatement formulation of promissory estoppel and observing that D&G had foregone an opportunity to sell to a specific willing purchaser in reliance on Bacardi's promise that D&G would remain its distributor).
[30] The Bassetts argue that there were at least genuine issues of material fact precluding summary judgment that the Harlans’ promises of an ownership interest for Mike induced forbearance or action on their part, arguing that they designated evidence that Mike chose not to seek out other employment opportunities and that they took out the PPS Loan in reliance on the Harlans’ promises. However, as to other employment opportunities, pursuant to D&G , Mike was required to show that he forwent some specific opportunity in reliance on the Harlans’ promises; simply showing that he chose to remain was not adequate. Mike's own deposition testimony, designated by the Harlan Defendants, established that he was never offered any specific opportunities that he turned down in favor of remaining at SPP, as required to show adequate forbearance to support a claim of promissory estoppel. See id. ; see also Hinkel , 920 N.E.2d at 771 (upholding summary judgment in favor of employer Sataria on Hinkel's promissory estoppel claim because he failed to show "an injury so independent and severe that injustice could only be avoided by enforcement of [Sataria's] alleged promise.").
[31] Regarding the Bassetts’ claim that they relied on the Harlans’ promises in taking out the PPS Loan, we reiterate that the Bassetts were required to show that they "relied upon that promise to [their] detriment[.]" Hinkel , 920 N.E.2d at 771. As we have previously concluded, the Harlan Defendants designated evidence that established that the purported SPP stock pledge was never executed. The evidence is undisputed that the Bassetts essentially received an unsecured loan from SPP, a loan which they required to finance PPS’ accounts receivable. The Bassetts present us with no authority for their apparent proposition that receiving an unsecured loan constitutes detrimental reliance sufficient to support a claim of promissory estoppel, and we are aware of none. Accordingly, no genuine issue of material fact remains on the Bassetts’ promissory estoppel claim.
Due to our conclusions regarding the merits of the Bassetts’ breach of contract, declaratory judgment, and promissory estoppel claims, we need not reach the Harlan Defendants’ cross-appeal issues.
CONCLUSION
[32] Based on the foregoing, we conclude that no genuine issues of material fact exist precluding summary judgment on the Bassetts’ breach of contract, declaratory judgment, and promissory estoppel claims.
[33] Affirmed.
[34] May, J. and Tavitas, J. concur