[Cite as Peddler's Junction, L.L.C. v. Washington Square, L.L.C., 2025-Ohio-3054.]
IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT WASHINGTON COUNTY
PEDDLER’S JUNCTION, LLC, :
Plaintiff-Appellant, : Case No. 24CA7
v. :
WASHINGTON SQUARE, LLC, : DECISION AND JUDGMENT ENTRY et al., : Defendants-Appellees. ________________________________________________________________
APPEARANCES:
Clay K. Keller, Akron, Ohio, for appellant.
Adam J. Schwendeman, Marietta, Ohio, for appellees. ________________________________________________________________ CIVIL APPEAL FROM COMMON PLEAS COURT DATE JOURNALIZED:8-21-25 ABELE, J.
{¶1} This is an appeal from a Washington County Common
Pleas Court summary judgment in favor of Washington Square, LLC
and Jetlag LLC, defendants below and appellees herein.
Peddler’s Junction, LLC, plaintiff below and appellant herein,
assigns the following errors for review:
FIRST ASSIGNMENT OF ERROR:
“THE TRIAL COURT ERRED WHEN GRANTING APPELLEE’S MOTION TO STRIKE APPELLANT’S DEMAND FOR ITS CLAIMS TO BE DECIDED BY A JURY ON ALL ISSUES TRIABLE BY A JURY.” WASHINGTON, 24CA7
SECOND ASSIGNMENT OF ERROR:
“THE TRIAL COURT ERRED WHEN GRANTING APPELLEE JETLAG, LLC’S MOTION FOR SUMMARY JUDGMENT.”
THIRD ASSIGNMENT OF ERROR:
“THE TRIAL COURT ERRED WHEN GRANTING APPELLEE WASHINGTON SQUARE LLC’S MOTION FOR SUMMARY JUDGMENT.”
{¶2} This appeal arises out of appellant’s attempt to
secure a written lease agreement with appellees for premises
located at the Belpre Shopping Center. Between 2017 and 2020,
appellant had a written lease agreement with the owner of the
shopping center, Washington Square. As the end of the lease
term approached, appellant and Washington Square began to
discuss a new lease agreement. The parties, however, were
unable to finalize a new, written agreement before the lease
expired. Appellant remained at the premises as a month-to-
month, holdover tenant with the expectation that the parties
would finalize a written lease agreement.
{¶3} In August 2020, Washington Square’s counsel, Abraham WASHINGTON, 24CA7
3 Sellers, sent appellant a proposed draft lease to review.
Shortly thereafter, appellant’s prior counsel, Adam Baker,
responded to Sellers with a 14-page letter that contained a list
of “provisions in the proposed lease that appellant was “in
disagreement with or [had] clarifications.” The letter
concluded with a statement that appellant and its counsel “were
confident that the parties will have a finished commercial lease
agreement soon.”
{¶4} The evidence is somewhat disputed as to what
transpired over the next few weeks. Appellant’s complaint
indicates that, after its prior counsel (Baker) sent the letter
to Sellers, the two attorneys had further discussions. The
complaint states: “On September 30, 2020, Sellers had
communications with Baker to review the status of the lease and
different points being finalized.” In its response to
Washington Square’s summary judgment motion, appellant submitted
evidence to support this averment. Exhibit 10 is a copy of a
September 29, 2020 email exchange between Sellers and Baker that
discussed scheduling a phone call for the next day, September WASHINGTON, 24CA7
4 30, 2020.
{¶5} However, appellant also submitted an affidavit from
Baker in which he stated that correspondence with Washington
Square ceased after he sent the letter to Sellers. Appellant
repeats this assertion in its appellate brief and states:
“Shortly following the date the [l]etter was sent, Washington
Square ceased correspondence regarding the lease, bringing
discussions to a halt.”
{¶6} Sellers, on the other hand, stated that, after he
received Baker’s letter, he and Baker had a telephone
conversation. Sellers informed Baker that Washington Square was
not going to be able to accept some of appellant’s proposed
modifications. Sellers advised Baker that he believed the
parties “were really far apart.”
{¶7} Nevertheless, the parties do not dispute that, on
October 2, 2020, Sellers notified appellant that Washington
Square would not be executing a new lease because the shopping
center was under contract to be sold. Sellers informed WASHINGTON, 24CA7
5 appellant that the new owner would address the terms of a new
lease, and until then, appellant would remain a month-to-month
tenant.
{¶8} In November 2020, Washington Square sold the shopping
center to Jetlag, which is owned by Sellers and Mark Mondo.
{¶9} In February 2021, Sellers spoke with Nathan Tanner,
appellant’s chief operating officer, who had been working with
Washington Square to secure a new lease. When Tanner asked
Sellers about obtaining a new lease, Sellers told Tanner that
Jetlag was not ready to provide a lease and that, in June 2021,
Sellers expected to be ready to discuss a new lease. Sellers
gathered that Tanner had concerns about not having a lease and
told Tanner “something to the effect” that he would “get
[appellant] a lease. Don’t worry. I’m not going to kick you
out. I’m not going to throw you out.” Sellers further informed
Tanner that appellant could remain as a month-to-month tenant
until the parties could finalize a new lease.
{¶10} Tanner recorded notes from the February 2021
conversation with Sellers and identified three key statements WASHINGTON, 24CA7
6 that Sellers made: (1) “[h]e will not kick Peddler’s Junction
out / he has ZERO plans to do such”; (2) “[h]e does NOT wish
[to] change rent – AT LEAST through 2021”; and (3) “[h]e wishes
to create a longer term lease with peddlers junction [sic].”
Tanner further recorded two qualifications to Sellers’s
statement that he wished to create a longer-term lease with
appellant: (1) “[h]e does ask to have an informal conversation
about a lease”; and (2) “[h]e also does ask for us to plan to
have that discussion – but not until June 2021. This will give
him time to continue to work on other projects for the plaza at
this point.”
{¶11} Near the end of May 2021, Tanner sent an email to
Sellers to ask about a lease. Sellers responded by asking
Tanner if they could have a telephone conversation. Tanner,
however, asked Sellers to send a written document with lease
terms that he could review. Sellers, however, advised Tanner
that he believed that the parties first should discuss rent
because if the parties could not agree to the rent terms, then
he did not see a “need to invest time in all of the other terms WASHINGTON, 24CA7
7 of the lease.” Sellers informed Tanner that, due to the “rent
terms,” he did not believe that the parties would “get to the
other terms of the lease.” Sellers stated that rent would “be
significantly different than what [appellant was] accustomed to
under the current the month-to-month tenancy.”
{¶12} Tanner responded, “As we discussed [i]n February, we
had an oral agreement on rent, at least for the short term. Has
this now changed? Please send over your proposed terms, and
general lease details in email.” Sellers indicated that “the
month-to-month rent in place currently has not changed” and
agreed to “forward proposed terms and pricing” within the next
few days.
{¶13} Sellers claimed that he subsequently dropped off a
copy of the lease at appellant’s place of business. Tanner,
however, stated that appellant did not receive a copy of the
lease. Nevertheless, after the end of May 2021, the parties did
not exchange any further communications regarding a new lease.
{¶14} By letter dated September 21, 2021, Jetlag informed
appellant that it was terminating appellant’s month-to-month WASHINGTON, 24CA7
8 tenancy and that appellant’s last day of occupancy would be
October 31, 2021. Jetlag offered to extend this deadline if
appellant needed additional time. On October 14, 2021,
appellant vacated the premises.
{¶15} Approximately 10 months later, appellant filed a
complaint against Washington Square and Jetlag that asserted
separate promissory-estoppel claims. Appellant alleged that,
after its lease had expired, Washington Square, through its
owner Victoria Higgins, “made numerous clear and unambiguous
assurances to [appellant] that Washington Square would renew
[appellant]’s lease,” including the following: (1) a June 25,
2020 message from Higgins to Tanner that stated, “It’s going to
be next week before we are ready to discuss the lease. We have
yours and a couple others we are working on”; (2) a July 3, 2020
communication from Higgins to Tanner that stated, “We got the
lease from our lawyer” who “had to go back in and change some
things . . . I will get with you as soon as possible”; (3) a
July 15, 2020 message from Higgins to Tanner that stated, “I
want to try to get the lease to look over, today or tomorrow”; WASHINGTON, 24CA7
9 and (4) a July 17, 2020 message that Higgins sent to Tanner in
which she stated that she had “jumped the gun on the lease” and
expected to have one to him “soon.” Appellant claimed that
Washington Square repeatedly assured appellant that it “would
renew the lease.”
{¶16} Appellant alleged that Sellers sent a draft lease to
its previous attorney, Baker, and that Baker followed up by
sending a letter to Sellers “negotiating specific provisions of
the new drafted lease.” Appellant further asserted that on
September 30, 2020, Sellers and Baker reviewed “the status of
the lease and different points being finalized,” and “Sellers
also indicated that he would be talking with his client for them
to finish a written response to get the lease completed.”
Appellant claimed that it relied on “Washington Square’s
continued promises that it would renew [appellant]’s lease” and
that appellant suffered injury by being “forced to remain in a
month-to-month tenancy,” without “the protection which would
have otherwise been provided under an executed, written lease.” WASHINGTON, 24CA7
10 {¶17} Appellant alleged that, after Washington Square sold
the property to Jetlag, Tanner contacted Sellers to ask about a
new, written lease. Appellant asserted that on February 12,
2021, Tanner and Sellers had a phone conference during which
“Sellers made numerous clear and unambiguous assurances
regarding a new written lease between Peddler’s and Jetlag,”
including the following: (1) “Jetlag would negotiate a new
lease, but not until June 2021 since Jetlag had more pressing
obligations”; (2) “Jetlag would not kick Peddler’s from the
[p]roperty and had zero plans to do so”; and (3) “Jetlag would
not increase Peddler’s rent at least through 2021.” Appellant
claimed that it “reasonably relied on Sellers’ clear and
unambiguous assurances that Jetlag would not oust Peddler’s from
the [p]remises and that Jetlag would enter into a new lease with
[appellant].”
{¶18} Appellant claimed that each appellee “made clear and
unambiguous promise[s]” to appellant: (1) Washington Square
promised to renew the lease; and (2) Jetlag promised to “execute
a new written lease.” Appellant averred that (1) it reasonably WASHINGTON, 24CA7
11 relied on each appellee’s promise, (2) each appellee knew or
should have known that it relied on the promises, and (3)
appellant suffered damages as a result.
{¶19} Washington Square and Jetlag later filed separate
summary judgment motions. Jetlag asserted that (1) it had not
promised to sign a new lease, (2) appellant’s “reliance on any
purported promise” that Jetlag made to enter into a future lease
“was unreasonable as a matter of law,” (3) the statute of frauds
barred appellant’s claim, and (4) “enforcement of the purported
promise [was] not necessary to prevent an injustice.”
{¶20} Washington Square argued that it provided a proposed
lease to appellant, and appellant responded with a written list
of items to negotiate. Washington Square thus contended that it
fulfilled its promise to provide appellant with a new, written
lease. Washington Square further asserted that (1) any reliance
appellant placed on its promise to renew a lease “based upon
unknown terms was unreasonable as a matter of law,” (2) the
statute of frauds barred appellant’s claim, and (3) “enforcement
of the purported promise [was] not necessary to prevent an WASHINGTON, 24CA7
12 injustice.”
{¶21} In response, appellant asserted that the evidence
showed that both appellees consistently represented “that a new
lease would eventually be signed” and that these representations
constituted “a clear promise.” Both appellees “expressly
indicated” that each “would provide a lease agreement so that
[appellant] could remain” a tenant at the shopping center.
Appellant stated that it “relied on those promises by remaining
a month-to-month tenant . . . with the understanding that its
lease would be renewed in the near future.” Appellant alleged
that Jetlag, through its representative, Sellers, made
“fraudulent and misleading” representations.
{¶22} On March 8, 2024, the trial court entered summary
judgment in appellees’ favor. The court found that no genuine
issues of material fact remained to be determined at trial
regarding whether Washington Square agreed to execute a new,
written lease with appellant. The court concluded that the
evidence failed to establish any genuine issue of material fact
as to whether Washington Square made a clear and unambiguous WASHINGTON, 24CA7
13 promise. The court further found that any reliance appellant
placed on Washington Square’s statements of future intent or
desire to enter into a lease was unreasonable as a matter of
law. The court stated that the parties were sophisticated and
that the lease was “a complex business transaction.”
{¶23} The court also determined that the statute of frauds
barred appellant’s claim. The court stated that the subject
matter of the alleged agreement, a lease of real property,
required a writing. The court recognized that promissory
estoppel is a recognized exception, but concluded that no
genuine issues of material fact remained as to whether there was
a misrepresentation that the statute of fraud’s requirements had
been complied with or a promise to make a memorandum of the
agreement.
{¶24} The trial court likewise found that no genuine issues
of material fact remained regarding appellant’s promissory-
estoppel claim against Jetlag. The court stated that the
evidence failed to show the existence of a genuine issue of
material fact as to whether Jetlag made an unambiguous promise WASHINGTON, 24CA7
14 to either execute a new, written lease, or to continue
appellant’s tenancy for any definite or indefinite period of
time. The court also determined that any reliance appellant
placed on Jetlag’s alleged promises was unreasonable as a matter
of law. The court also found that the statute of frauds barred
appellant’s claim.
{¶25} The court thus entered summary judgment in appellees’
favor. This appeal followed.
I
{¶26} For ease of discussion, we first consider appellant’s
second and third assignments of error. Additionally, because
the two assignments of error raise similar issues, we have
combined them for purposes of review.
{¶27} In its second and third assignments of error,
appellant challenges the trial court’s decision to enter summary
judgment in appellees’ favor. In its second assignment of
error, appellant argues that the trial court incorrectly entered
summary judgment in Jetlag’s favor. Appellant contends that
genuine issues of material fact remain regarding each element WASHINGTON, 24CA7
15 required to establish its promissory-estoppel claim. Appellant
states that the court’s finding that “there was no unambiguous
promise by Jetlag, LLC to either execute a new written lease
with [appellant] or to not kick [appellant] out (terminate its
tenancy) for any definite or even indefinite period of time” “is
directly contrary to the deposition testimony and affidavits in
the record.”
{¶28} In its third assignment of error, appellant asserts
that the trial court erred by entering summary judgment in
Washington Square’s favor. Appellant contends that genuine
issues of material fact remain as to whether (1) Washington
Square fulfilled its promises to execute a new written lease and
(2) appellant reasonably relied on Washington Square’s promises.
A
{¶29} Appellate courts conduct a de novo review of trial
court summary judgment decisions. E.g., Tera, L.L.C. v. Rice
Drilling D, L.L.C., 2024-Ohio-1945, ¶ 10, citing Grafton v. Ohio
Edison Co., 77 Ohio St.3d 102, 105 (1996). Accordingly, an
appellate court need not defer to a trial court’s decision, but WASHINGTON, 24CA7
16 instead must independently review the record to determine if
summary judgment is appropriate. Grafton, 77 Ohio St.3d at 105.
Civ.R. 56(C) provides in relevant part:
Summary judgment shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, written admissions, affidavits, transcripts of evidence, and written stipulations of fact, if any, timely filed in the action, show 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. No evidence or stipulation may be considered except as stated in this rule. A summary judgment shall not be rendered unless it appears from the evidence or stipulation, and only from the evidence or stipulation, that reasonable minds can come to but one conclusion and that conclusion is adverse to the party against whom the motion for summary judgment is made, that party being entitled to have the evidence or stipulation construed most strongly in the party’s favor.
{¶30} Therefore, pursuant to Civ.R. 56 a trial court may not
award summary judgment unless the evidence demonstrates that (1)
no genuine issue as to any material fact remains to be
litigated, (2) the moving party is entitled to judgment as a
matter of law, and (3) after viewing the evidence most strongly
in favor of the nonmoving party, reasonable minds can come to
but one conclusion, and that conclusion is adverse to the WASHINGTON, 24CA7
17 nonmoving party. E.g., State ex rel. Whittaker v. Lucas Cty.
Prosecutor’s Office, 2021-Ohio-1241, ¶ 8; Temple v. Wean United,
Inc., 50 Ohio St.2d 317, 327 (1977).
B
{¶31} Promissory estoppel is an equitable doctrine designed
to remedy the harm that a promisee suffers by reasonably and
detrimentally relying on a promisor’s clear and unambiguous
promise. See Karnes v. Doctors Hosp., 51 Ohio St.3d 139, 142
(1990) (promissory estoppel “is not a contractual theory but a
quasi-contractual or equitable doctrine designed to prevent the
harm resulting from the reasonable and detrimental reliance of
an employee upon the false representations of his employer.”).
The promissory-estoppel doctrine provides as follows: “‘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.’” Hortman v. Miamisburg, 2006-Ohio-4251, ¶ 23, quoting
Restatement of the Law 2d, Contracts, § 90 (1981); see also Ed WASHINGTON, 24CA7
18 Schory & Sons, Inc. v. Soc. Natl. Bank, 75 Ohio St.3d 433, 439
(1996). The doctrine “‘comes into play where the requisites of
contract are not met, yet the promise should be enforced to
avoid injustice.’” Olympic Holding Co. v. ACE Ltd., 2009-Ohio-
2057, ¶ 39, quoting Doe v. Univision Television Group, Inc., 717
So.2d 63, 65 (Fla.App.1998).
{¶32} A successful promissory-estoppel claim requires the
promisee to establish the following elements: (1) the promisor
made a clear and unambiguous promise; (2) the promisee
reasonably and foreseeably relied on the promise; and (3) the
promisee detrimentally relied on the promise, i.e., the party
relying on the promise must have been injured. See, e.g.,
Restatement of the Law 2d, Contracts, § 90 (1981); Doe v.
Adkins, 110 Ohio App.3d 427, 437 (4th Dist. 1996) (promissory
estoppel requires a clear and unambiguous promise, the
promisee’s reasonable and foreseeable reliance on the promise,
and injury resulting from the reliance); Black’s Law Dictionary
(12th ed. 2024) (“detrimental reliance” means “[r]eliance by one
party on the acts or representations of another, causing a WASHINGTON, 24CA7
19 worsening of the first party’s position”); 4 Williston on
Contracts § 8:6 (4th ed.) (enforcing “the promise must be
necessary to avoid an injustice, presumably caused by the
promisee’s reliance on the promise and the concomitant change in
the promisee’s position, that would result if the promise were
not enforced”).
{¶33} The threshold issue in a promissory estoppel case is
the existence of a clear and unambiguous promise from the
promisor to the promisee. See McCroskey v. State, 8 Ohio St.3d
29, 30 (1983) (“in order for [the plaintiff’s] claim to succeed
the threshold element of a promise must be met”); Bd. of Cty.
Commrs. of Wood Cty. v. Toledo, 1993 WL 372243, *5 (6th Dist.
Sept. 24, 1993) (“Absent a promise, there can be no promissory
estoppel, nor can there be any other type of contract express or
implied”). A promise is defined as “‘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.’” Stull v. Combustion Engineering, Inc., 72 Ohio
App.3d 553, 557 (3d Dist. 1991), quoting Restatement of the Law, WASHINGTON, 24CA7
20 Contracts 2d, § 2(1) (1981). A clear and unambiguous promise is
one that is “definite in the sense of being clearly a promise
and not just a statement of intentions.” Garwood Packaging,
Inc. v. Allen & Co., Inc. 378 F.3d 698, 702 (7th Cir. 2004).
The promise must communicate clear terms that the promisor
reasonably would expect to induce reliance. See McCroskey v.
State, 8 Ohio St.3d 29, 30 (1983) (the promisor must have made a
promise to the promisee “which should have reasonably been
expected to induce action”); Zelina v. Hillyer, 2005-Ohio-5803,
¶ 19 (9th Dist.) (“The promissory estoppel doctrine requires an
actual reliance to one’s detriment on a clear and unambiguous
promise that would be objectively reasonable and foreseeable to
rely upon.”).
{¶34} Thus, “vague or ambiguous references” do not suffice
to establish the element of a clear and unambiguous promise.
Hitchcock Dev. Co. v. Husted, 2009-Ohio-4459, ¶ 24 (12th Dist.);
Middleton v. United Church of Christ Board, 483 F. Supp.3d 489,
504 (N.D. Ohio 2020) (“Ohio courts have made clear that
promissory estoppel requires ‘specific promises’ and that WASHINGTON, 24CA7
21 ‘nebulous representations’ will not do.”). Instead, when “an
alleged promise is sufficiently vague or ambiguous that the
parties do not have a clear understanding that a commitment has
been made and, specifically, what that commitment is or
requires, there is no promise to be enforced under the doctrine
of promissory estoppel.” Zapata Real Estate, L.L.C. v. Monty
Realty, Ltd., 2014-Ohio-5550, ¶ 40 (8th Dist.) (trial court
properly entered summary judgment in promissory-estoppel case
when the promise that lender agreed “to ‘work with’ a borrower
to ‘restructure’ a loan” was “ambiguous on its face”); see Garb–
Ko, Inc. v. Benderson, 2013–Ohio–1249, ¶ 20 (10th Dist.)
(plaintiff’s complaint failed to state a claim for promissory
estoppel when defendants allegedly represented in correspondence
that plaintiff had “renewal options” but did not set forth a
promise that plaintiff had an option to renew, “much less ‘a
clear, unambiguous promise”’). Consequently, “the promise of a
generic future agreement with many missing terms” is
insufficient to serve as the basis for a promissory-estoppel WASHINGTON, 24CA7
22 claim. Arett v. Gardens Alive Farms LLC, 2022 WL 1024626, *4
(6th Cir. Apr. 6, 2022).
{¶35} Additionally, promissory estoppel ordinarily cannot be
based on “preliminary negotiations subject to formal approval
and acceptance.” McCroskey, 8 Ohio St.3d at 31; see also Keil
v. Glacier Park, Inc., 188 Mont. 455, 462–63 (1980) (promissory
estoppel “cannot be based on preliminary negotiations and
discussions or an agreement to negotiate the terms of a
contract”). In McCroskey, for example, the court determined
that “the collapse of negotiations for the construction and
lease of office space,” id. at 29, did not give rise to a valid
promissory-estoppel claim when it was based on promises
contained in a letter of intent and a proposed lease that the
parties never finalized. In that case, the Ohio Department of
Administrative Services contacted McCroskey (a developer) and
other developers to survey interest in constructing a special-
purpose building and leasing the building to the State.
McCroskey subsequently developed a plan, and he later remained
as the sole developer interested in the project. WASHINGTON, 24CA7
23 {¶36} McCroskey and the State subsequently “tentatively
agreed on a price per square foot the [S]tate would pay if it
leased the proposed space and on the duration of the lease.”
Id. Shortly thereafter, the State sent McCroskey a letter of
intent along with proposed lease agreements. A couple of weeks
later, however, the State orally informed McCroskey that the
State had decided not to proceed with the proposed agreements.
{¶37} McCroskey subsequently filed a complaint and alleged,
in part, that “he was entitled to be compensated for his actual
losses under the doctrine of promissory estoppel as the [S]tate
had induced him to undertake certain actions based upon its
promises.” Id. at 30.
{¶38} The trial court concluded that the State was immune
from liability and dismissed the complaint. McCroskey appealed,
and the appellate court reversed and remanded the trial court’s
judgment. The appellate court determined that the record
contained sufficient evidence to conclude that McCroskey was
entitled to relief under the doctrine of promissory estoppel.
The State appealed to the Ohio Supreme Court. WASHINGTON, 24CA7
24 {¶39} The Supreme Court agreed with the State that McCroskey
had failed to establish “the sort of promise necessary to invoke
promissory estoppel.” Id. at 31. The court noted that
McCroskey had asserted that the State made promises by (1)
repeatedly informing him that it would move certain departments
from their current locations, (2) selecting him as the developer
to build the special-purpose building, (3) agreeing to the terms
of the proposed lease, and (4) mailing the letter of intent and
proposed lease to McCroskey to sign. The court stated that the
evidence showed that “the parties were engaged in the protracted
process of negotiating a future arrangement,” and that the State
had not made any promise that “should reasonably have expected
to induce reliance by McCroskey.” Id. at 31. The court
explained:
The communications between McCroskey and the [State] were in the nature of preliminary negotiations subject to formal approval and acceptance. There existed an executory arrangement, the hazards of which were open, obvious and ongoing. McCroskey pursued an opportunity for an advantageous business proposal knowing fully the risks attendant to such ventures. This pursuit required the expenditure of his own time and funds. Now that the deal has fallen through, McCroskey wants the [S]tate to absorb responsibility for the risks he undertook. Such WASHINGTON, 24CA7
25 a proposition, unaccompanied by an identifiable promise, does not rise to a right of recovery.
Id. at 31–32; see also Baird, Unlikely Resurrection: Richard
Posner, Promissory Estoppel, & the Death of Contract, 86 U. Chi.
L. Rev. 1037, 1056, fn. 25 (2019), quoting Lon L. Fuller,
Consideration and Form, 41 Colum.L.Rev. 799, 813 (1941)
(“‘Business deals can often emerge only from a converging series
of negotiations . . . . To surround with rigid legal sanctions
even the first exploratory expressions of intention would not
only introduce an unpleasant atmosphere into business
negotiations, but would actually hamper commerce.’”).
{¶40} Moreover, “[a] mere expression of future intention . .
. does not constitute a sufficiently definite promise to justify
reasonable reliance thereon.” Santoni v. Fed. Deposit Ins.
Corp., 677 F.2d 174, 179 (1st Cir. 1982), citing Granfield v.
Catholic Univ. of America, 530 F.2d 1035, 1039-40 (D.C.Cir.);
Sec. Bank & Trust Co. v. Bogard, 494 N.E.2d 965, 968–69
(Ind.App. 1986) (“the mere expression of an intention is not a
promise”); Union Mut. Life Ins. Co. v. Mowry, 96 U.S. 544, 547–
48 (1877) (“An estoppel cannot arise from a promise as to future WASHINGTON, 24CA7
26 action with respect to a right to be acquired upon an agreement
not yet made” and “has no place for application when the
statement relates to rights depending upon contracts yet to be
made, to which the person complaining is to be a party”). Thus,
for example, a statement that a bank employee informed the
plaintiff that the employee would take the plaintiff’s loan
application to the loan committee and “ought to have something”
within two or three days did not constitute a clear and
unambiguous promise. Sec. Bank & Trust, 494 N.E.2d at 969.
Instead, the first half of the statement constituted “an
expression of intention” and the second half “was a prediction,”
with neither being sufficient to establish a clear and
unambiguous promise. Id.
{¶41} In the case at bar, we agree with the trial court’s
conclusion that appellant cannot establish that either appellee
made a clear and unambiguous promise sufficient to support a
promissory estoppel claim. Instead, the evidence shows that
appellees expressed intentions to engage in lease negotiations.
Jetlag specifically told appellant that, in June 2021, it would WASHINGTON, 24CA7
27 be ready to engage in lease discussions. Jetlag did not,
however, promise that those lease discussions ultimately would
prove successful. Even if it had, that statement would be a
mere prediction, not a promise. Moreover, Jetlag did not
promise to send appellant a lease that contained terms that
appellant would find immediately acceptable. The evidence
instead demonstrates the existence of “the promise of a generic
future agreement with many missing terms,” and this type of
generic promise is insufficient to serve as the basis for a
promissory-estoppel claim. See Arett, 2022 WL 1024626, at *4
(6th Cir.).
{¶42} Washington Square likewise did not promise that it
would send appellant a lease that appellant would find
immediately acceptable. Furthermore, Washington Square
fulfilled any promise that it made to send appellant a lease.
Before Jetlag purchased the shopping center, Washington Square
sent appellant a lease to review. Appellant did not sign the
lease. Instead, appellant’s counsel returned the lease to
Washington Square with a 14-page list of provisions in the WASHINGTON, 24CA7
28 proposed lease that appellant was “in disagreement with or [had]
clarifications.” The letter concluded with a note that
appellant and its counsel “were confident that the parties will
have a finished commercial lease agreement soon.”
{¶43} We believe that appellant’s attempt to hold appellees
to their alleged promises is even more tenuous than the
promisee’s attempt in McCroskey. In McCroskey, the parties had
exchanged written documents outlining the proposed terms of a
lease and had tentatively agreed to terms. Yet, these facts
still were not enough to indicate that the promisor had made a
clear and unambiguous promise for purposes of promissory
estoppel. In the case sub judice, by contrast, appellant has
not produced any evidence that it had tentatively agreed to any
terms with either appellee. Thus, even if a tentative agreement
on lease terms was sufficient to establish a clear and
unambiguous promise (which, McCroskey indicates, it is not),
appellant cannot even prove the existence of a tentative
agreement. Instead, the promises that appellant alleges
appellees made—to send a lease, sign a lease, enter into a long- WASHINGTON, 24CA7
29 term lease, or execute a lease—all were statements of future
intent to engage in further negotiations regarding the terms of
a written lease. See Sec. Bank & Trust, 494 N.E.2d at 969; see
also Cent. Jersey Construction Equip. Sales, LLC v. LBX Co.,
LLC, 2023 WL 3093575, *7 (6th Cir. Apr. 26, 2023) (a promise to
“enter into a ‘new Dealer Agreement’ that included an ‘expanded
territory’ if [the plaintiff] opened a new facility” was not
definite enough to be enforced under the doctrine of promissory
estoppel); Keil v. Glacier Park, Inc., 188 Mont. 455, 464 (1980)
(“The parties here had nothing more than an agreement to agree
that was in the initial stages of the negotiation process. This
does not constitute the clear and unambiguous promise necessary
to satisfy the first element of a promissory estoppel claim.”);
Garwood Packaging, Inc. v. Allen & Co., Inc. 378 F.3d 698, 701
and 704 (7th Cir. 2004) (promise to “see that [a] deal went
through ‘come hell or high water,’” was not enforceable in
promissory estoppel; repeated statements “that the deal would go
through, that [promisor’s] commitment to invest $2 million was
unconditional, that the funding would be forthcoming, and so on” WASHINGTON, 24CA7
30 were not “real promises” but were “expressions of optimism and
determination”). Here, neither appellee made a definite promise
to send appellant a written lease with unequivocal terms that
would be acceptable to appellant. Construing the evidence most
strongly in appellant’s favor indicates, at best, that appellees
promised to engage in further negotiations regarding entering
into a new, written lease. As the above case law makes clear,
these statements of future expressions of intentions are not
sufficient to establish a clear and unambiguous promise for
purposes of promissory estoppel.
{¶44} Similarly, Jetlag’s promise that it did not have plans
to evict appellant from the premises was not a clear and
unambiguous promise to allow appellant to remain as a tenant
indefinitely, or a clear and unambiguous promise to enter into a
lease with appellant. Instead, the clear intent of Jetlag’s
statements was that the parties would discuss lease terms at a
later date, and, in the meantime, Jetlag would not ask appellant
to vacate the premises. WASHINGTON, 24CA7
31 {¶45} In his deposition, Tanner even confirmed that he
interpreted Sellers’s statements to mean that appellant “would
stay month-to-month until June, and at that time, [Sellers]
would set informal discussion when it comes to the lease,
renewal lease. He . . . had no plans on changing the terms of .
. . anything at the moment,” as it concerned appellant’s lease,
“or charging more rent or anything of that nature.” At another
point during his deposition, Tanner explained that he
interpreted Sellers’s statement to mean that it was “an oral
agreement that our current status quo situation of being . . . a
holdover tenant in our signed lease from Washington Square, that
that was continuing in . . . the holdover clause until June,
[when] he would then address the new lease.”
{¶46} Likewise, even if Jetlag’s promise not to increase
appellant’s rent through at least the end of 2021, was a clear
and unambiguous promise, it was not a clear and unambiguous
promise to enter into a new written lease agreement or to allow
appellant to remain as a tenant through the end of 2021. Tanner
even wrote in an email to Sellers that he recognized that the WASHINGTON, 24CA7
32 parties had “an oral agreement on rent, at least for the short
term.” Thus, appellant explicitly recognized the temporary
nature of Jetlag’s alleged promise. We further note that
appellant has not presented any evidence that Jetlag increased
appellant’s rent. Instead, in September 2021, Jetlag informed
appellant that it would be ending appellant’s month-to-month
tenancy.
{¶47} We recognize that, ordinarily, whether a promisor made
“a clear and unambiguous promise” is a question of fact. Simon
v. Aulino, 2020-Ohio-6962, ¶ 62 (4th Dist.); see Kroll v. Close,
82 Ohio St. 190 (1910), syllabus (“Ordinarily, an issue as to
the reasonableness or unreasonableness of anything is a mixed
question of law and fact.”). When, however, “the facts are
clear and undisputed it is purely a question of law.” Kroll at
syllabus; see also Garwood Packaging, Inc. v. Allen & Co., Inc.
378 F.3d 698, 702, 705 (7th Cir. 2004) (“Ordinarily the question
whether a plaintiff reasonably understood a statement to be a
promise is a question of fact and so cannot be resolved in
summary judgment proceedings. But if it is clear that the WASHINGTON, 24CA7
33 question can be answered in only one way, there is no occasion
to submit the question to a jury,” [citations omitted]).
{¶48} In the case sub judice, construing the facts most
strongly in appellant’s favor leads to only one conclusion. As
we stated above, the evidence fails to show that appellees made
any clear and unambiguous promises that can be enforced under
the doctrine of promissory estoppel. Even if appellees’
assertions were clear expressions of future intentions, they
were not clear and unambiguous promises that can be enforced
under the doctrine of promissory estoppel.
{¶49} Because appellant cannot establish the threshold
requirement necessary to prove a promissory estoppel claim, we
need not consider whether genuine issues of material fact remain
regarding the remaining elements. See McCroskey, 8 Ohio St.3d
at 32 (declining to consider other elements when the plaintiff
failed to establish the threshold requirement of a clear and
unambiguous promise). Even if we were to assume, arguendo, that
genuine issues of material fact remain regarding whether
appellees made any clear and unambiguous promises, appellant WASHINGTON, 24CA7
34 cannot establish that it reasonably relied on those promises.
See Heinz & Assoc., Inc. v. Diamond Cellar Holdings, L.L.C.,
2012-Ohio-1422, ¶ 41 (10th Dist.) (“the exchange of emails
discussing proposed lease terms and the exchange of lease drafts
between the parties indicates the parties were working toward a
signed, written sublease,” and the plaintiff’s alleged reliance
on the defendant’s statement that he was “100 percent in” was
“unreasonable as a matter of law”); Carcorp, Incv. v. Chesrown
Oldsmobile, 2007-Ohio-380, ¶ 20 (10th Dist.) (assuming that car
dealer’s oral promise to sell dealership to plaintiff for $2.1
million was clear and definite, plaintiff could not have
reasonably relied on the promise; “the parties did not discuss,
let alone agree upon, most of the contract terms that would be
necessary to complete this complex business transaction”;
“[b]oth parties contemplated that their respective legal counsel
would be involved in the negotiation and preparation of a formal
asset purchase agreement”; and the “oral promise to sell was, at
most, a promise to pursue a formal asset purchase agreement”);
Telxon Corp. v. Smart Media of Delaware, Inc., 2005-Ohio-4931, ¶ WASHINGTON, 24CA7
35 67 (9th Dist.) (promisee’s reliance on any purported promise
became “patently unreasonable” once promisor stated that it
would “not be able to consummate a deal” and the deal “was just
never meant to be”).
{¶50} Furthermore, our determination that the evidence fails
to establish a genuine issue of material fact as to whether
appellees made a clear and unambiguous promise to appellant
obviates the need to consider the remaining arguments contained
in appellant’s second and third assignments of error.
{¶51} Accordingly, based upon the foregoing reasons, we
overrule appellant’s second and third assignments of error.
II
{¶52} In its first assignment of error, appellant asserts
that the trial court erred by striking its jury demand.
{¶53} In light of our disposition of appellant’s second and
third assignments of error, we believe that appellant’s first
assignment of error is moot. See App.R. 12(A)(1)(c). WASHINGTON, 24CA7
36 {¶54} Accordingly, based upon the foregoing reasons, we
overrule appellant’s first assignment of error and affirm the
trial court’s judgment.
JUDGMENT AFFIRMED. WASHINGTON, 24CA7
37 JUDGMENT ENTRY
It is ordered that the judgment be affirmed and that
appellees recover of appellant the costs herein taxed.
The Court finds there were reasonable grounds for this
appeal.
It is ordered that a special mandate issue out of this
Court directing the Washington County Common Pleas Court to
carry this judgment into execution.
A certified copy of this entry shall constitute that
mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
Smith, P.J. & Hess, J.: Concur in Judgment & Opinion
For the Court
BY:__________________________ Peter B. Abele, Judge
NOTICE TO COUNSEL WASHINGTON, 24CA7
Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the time period for further appeal commences from the date of filing with the clerk.