In this breach of contract action, plaintiff appeals the trial court’s grant of summary disposition to defendant McDonnell Douglas Capital Corporation (mdcc) pursuant to MCR 2.116(C) (7) (statute of frauds) and 2.116(C)(10). We affirm.
Plaintiff was employed as a salesman at Burroughs Corporation in Mexico in 1986 when he *440 learned of an opening at First National Capital (fnc). In 1987, he met with an agent of fnc, Thomas Husband, and discussed the possibilities of employment and fnc’s opening of a branch office in Puerto Rico. Plaintiff resigned from Burroughs, moved to Michigan, and began working for fnc in April 1987. Plaintiff’s family, which had been living in Mexico, relocated to Puerto Rico, where plaintiff’s mother-in-law lived. (This move was made at Burroughs’ expense by prearrangement with plaintiff.)
In September 1987, believing that the compensation was not what he had been promised, plaintiff met with Husband, who outlined a three-year compensation plan and suggested that plaintiff move his family to Michigan. No written record of this meeting or the compensation arrangements was ever made. Plaintiff’s family joined him in Michigan in December 1987.
Mdcc took over fnc, restructured the corporation, and eliminated plaintiff’s position in February 1989. Plaintiff was not offered a position with mdcc. He sued mdcc and its president in June 1990, alleging breach of contract, promissory and equitable estoppel, intentional infliction of emotional distress, and misrepresentation. The trial court granted mdcc’s motion for summary disposition of all counts and sua sponte dismissed the claims against mdcc’s president as well. On appeal, plaintiff does not challenge the decision to dismiss mdcc’s president or the dismissal of the claim of intentional infliction of emotional distress.
The standard of review under MCR 2.116(C)(7) requires us to accept all plaintiff’s well-pleaded allegations as true and to construe them most favorably to the plaintiff.
Beauregard-Bezou v Pierce,
A motion for summary disposition under MCR 2.116 (C)(10) tests the factual support for a claim. A court must consider the pleadings, affidavits, depositions, admissions, and other documentary evidence available to it and grant summary disposition if there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law.
AFL-CIO v Civil Service Comm,
Defendant argued below that plaintiffs claims are barred by the statute of frauds, MCL 566.132(a); MSA 26.922(a), which requires that "[a]n agreement that, by its terms, is not to be performed within 1 year from the making thereof’ be in writing and signed by the party to be charged if it is to be enforced. We agree.
A contract, including an employment contract, that is not capable of being performed within one year is within the statute.
Schipani v Ford Motor Co,
Plaintiffs claim of promissory estoppel also fails.
The elements of equitable or promissory estoppel are (1) 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 produced reliance or forbearance of that nature; and (4) in circumstances such that the promise must be enforced if injustice is to be avoided. [Schipani, supra at 612-613.]
The doctrine of promissory estoppel is cautiously applied.
State Bank of Standish v Curry,
Plaintiff has inverted the sequence of events necessary to establish promissory estoppel. His resignation from Burroughs and the decision to move his family to Puerto Rico
preceded,
by at least six months, the meeting at which the alleged promise of a three-year contract was made. Plain
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tiff cannot have relied on the purported promise of employment through 1990 when he took these actions. In addition, resignation from one position to assume another and relocation of family would be customary and necessary incidents of changing jobs rather than consideration to support a promissory estoppel claim.
Cunningham v 4-D Tool Co,
The only "promise” made to plaintiff before he resigned from Burroughs as to length of employment was that he "would be taken care of.” This is hardly a "definite and clear” promise. Plaintiff also claims he was promised a location in Puerto Rico, but he admits that this was his own interpretation of the conversation, not a statement by Husband. As for the other alleged "promises” (that he would earn $90,000 a year and have the title of vice president), because plaintiff did not meet one hundred percent of his sales quota, he did not fully perform his duties. Moreover, we cannot identify any damages plaintiff is alleged to have suffered from the lack of a title.
Plaintiff also argues that promissory estoppel applies to continuing his employment with defendant after the December 1987 meeting. A prior relationship between the parties alone, however, cannot support a claim of promissory estoppel; see State Bank of Standish, supra at 621. Plaintiff claims that he forsook other employment to remain with fnc in 1987, but he has not produced any evidence that would raise a question of fact regarding this issue. The doctrine of estoppel should be applied only where the facts are unquestionable and the wrong to be prevented undoubted. Kamalnath, supra at 552. Plaintiff’s claims based on promissory estoppel were properly dismissed.
Plaintiff’s claim of "equitable estoppel” also fails. Equitable estoppel is usually invoked as a
*444
defense; it is not a cause of action in itself and provides no remedy such as damages.
Hoye v Westfield Ins Co,
Plaintiff also claimed misrepresentation. An action for fraudulent misrepresentation must be predicated upon a statement of past or existing fact.
Kamalnath, supra
at 554, citing
Hi-Way Motor Co v Int'l Harvester Co,
Plaintiff hopes to avoid the "present fact” rule by alleging that Husband induced him to join fnc by making statements about the company’s intentions that Husband knew at the time were false; see
Rutan v Straehly,
Affirmed.