North American Brokers LLC v. Howell Public Schools

Order Michigan Supreme Court
Lansing, Michigan

June 29, 2018 Stephen J. Markman,
Chief Justice

155498 Brian K. Zahra
Bridget M. McCormack
David F. Viviano
Richard H. Bernstein
NORTH AMERICAN BROKERS, LLC, Kurtis T. Wilder
and MARK RATLIFF, Elizabeth T. Clement,
Plaintiffs-Appellees, Justices

v SC: 155498
COA: 330126
Livingston CC: 15-028669-CH
HOWELL PUBLIC SCHOOLS,
Defendant-Appellant,
and
ST. JOHN PROVIDENCE,
Defendant.
_________________________________________/

On April 12, 2018, the Court heard oral argument on the application for leave to
appeal the February 9, 2017 judgment of the Court of Appeals. On order of the Court,
the application is again considered, and it is DENIED, because we are not persuaded that
the questions presented should be reviewed by this Court.

MCCORMACK, J. (concurring).

The equitable principle of estoppel is many centuries old. Under the doctrine, a
promise that the promisor should reasonably expect to produce action or inaction from its
recipient may be binding if justice so requires. See Restatement Contracts, 2d, § 90. Its
age highlights its staying power. Over the years, it has been widely adopted, easily
applied, and narrowly tailored. I agree with the Court that we should decline an
invitation to disassemble it today.

The English Parliament adopted the first statute of frauds in 1677. Note, Statute of
Frauds—The Doctrine of Equitable Estoppel and the Statute of Frauds, 66 Mich L Rev
170, 170 (1967). The enactment of the statute was largely driven by concerns unique to
the seventeenth century. As Sir William Holdsworth explains, at that time, tangible
evidence of agreement was necessitated by the virtually unfettered discretion given to
juries. 6 Holdsworth, A History of English Law (1924), p 388. Nothing prevented juries
from receiving independent information on cases, and motions for a directed verdict were
relatively new and untested at the time. Id. Additionally, the witness testimony that
juries could hear was tightly restricted, as neither the parties to an action nor any parties
interested in the outcome of the action were considered competent witnesses. Id. Within
this framework, the statute of frauds played the important role of ensuring that juries
 2

were not provided false information regarding contracts that had never been formed. 1

From the very beginning of British jurisprudence relating to the statute of frauds,
British courts have applied equitable rules to enforce promises that induced a party to act
in reliance. Costigan, Jr., The Date and Authorship of the Statute of Frauds, 26 Harv L
Rev 329, 343 (1913). The British Court of Chancery would regularly apply these
equitable rules, particularly equitable estoppel and specific performance, “if insistence on
the letter of the statute would facilitate a fraud.” 6 Holdsworth, p 393. From its
inception, then, there was agreement that exceptions to the statute of frauds were needed
in order to prevent the statute itself from perpetuating frauds. The trend crossed the
pond. Today, promissory estoppel is employed in every variety of United States court.
See 48 ALR 2d 1069.

Michigan is no outlier. Our Legislature passed the first statute of frauds in 1838,
just after statehood, 1838 RS, pt 2, tit vi, ch 1, and before that, a statute of frauds could be
found in Michigan’s territorial laws, 1 Territorial Laws, Act of December 7, 1819, § 10, p
467. And this Court has applied the doctrine of equitable estoppel for nearly a century to
prevent the statute from becoming “an instrument of fraud.” Lyle v Munson, 213 Mich
250, 260 (1921); see also Jones v Pashby, 67 Mich 459, 462 (1887) (“[A] parol
agreement under such circumstances would act as an estoppel, if acquiesced in for years,
and the statute of frauds would not intervene to prevent the enforcement of such
estoppel.”). We have reaffirmed that principle time and time again. Brummel v
Brummel, 363 Mich 447, 452 (1961) (citing cases). So too has the Legislature. Since
1921, the Legislature has amended the statute of frauds three times and never repudiated

1
As rules of evidence developed to address many of the concerns that gave rise to the
statute of frauds, the statute came under criticism as unnecessary or dangerous. See
Epstein, Starbird & Vincent, Reliance on Oral Promises: Statute of Frauds and
Promissory Estoppel, 42 Tex Tech L Rev 913, 928 (2010) (“[The Statute of Frauds]
remained the law in England until 1954 when most of its provisions were repealed so that
it applies only to land contracts and guarantees. According to Professor John Krahmer of
Texas Tech University School of Law, England abolished the statute of frauds ‘for being
superfluous and irrelevant.’ While the statute of frauds has been virtually eliminated
from the law of contracts in England, it remains an important (albeit long unpopular) part
of the law of contracts in the United States.”); Summers, The Doctrine of Estoppel
Applied to the Statute of Frauds, 79 U Penn L Rev 440, 442 (1931) (“ ‘The special
peculiarity of . . . the Statute of Frauds is that it is in the nature of things impossible that it
ever should have any operation, except that of enabling a man to escape from the
discussion of the question whether he has or has not been guilty of a deliberate fraud by
breaking his word.’ ”), quoting Pollock & Stephens, Section Seventeen of the Statute of
Frauds, 1 L Q Rev 1 (1885).
 3

the statute’s estoppel-based exceptions. 1945 PA 261; 1974 PA 343; 1992 PA 245. 2
When the Legislature reenacts a statute, we presume it did so with an understanding of
the court’s interpretation of it. See Anzaldua v Band, 457 Mich 530, 544 (1998), citing
Lorillard v Pons, 434 US 575, 581 (1978). The doctrine has withstood the tests of time,
and legislative and judicial scrutiny.

More recently, this Court affirmed promissory estoppel in Opdyke Investment Co v
Norris Grain Co, 413 Mich 354 (1982). There we declined to adopt “narrow and rigid
rules for compliance with the statute of frauds.” Id. at 367. Instead, we unanimously
held that “recovery based on a noncontractual promise falls outside the scope of the
statute of frauds” and that the plaintiff’s claim of promissory estoppel required the denial
of the defendant’s summary disposition motion. Id. at 370. This conclusion was
necessary to “avoid the arbitrary and unjust results required by an overly mechanistic
application of the rule.” Id. at 365. 3

We have considerable company. Three-fifths of the states apply promissory
estoppel in some fashion despite the statute of frauds. 4 And only a handful of states have

2
The 1992 revision added a section that the Court of Appeals has interpreted to prevent
promissory estoppel from applying to suits against financial institutions. See Crown
Tech Park v D&N Bank, FSB, 242 Mich App 538, 550 (2000).
3
And the Chief Justice has recognized another equitable doctrine, partial performance, as
creating an exception to the statute of frauds. Vittiglio v Vittiglio, 493 Mich 936, 936-937
(2013) (MARKMAN, J., concurring) (“[I]t is ultimately correct that plaintiff is bound by
the settlement . . . [because] defendant gave plaintiff a check for $1.2 million in reliance
on the settlement agreement, which was sufficient partial performance to take the oral
settlement out of the statute of frauds and render it enforceable.”).
4
Kiernan v Creech, 268 P3d 312, 316 (Alas, 2012); Mullins v Southern Pacific Transp
Co, 174 Ariz 540, 542 (1992); Ralston Purina Co v McCollum, 271 Ark 840, 844 (1981);
Garcia v World Savings, FSB, 183 Cal App 4th 1031, 1040 n 10 (2010); Kiely v St
Germain, 670 P2d 764, 769 (Colo, 1983); Taylor v Jones, unpublished memorandum
opinion of the Delaware Court of Chancery, issued December 17, 2002 (Case No. 1498-
K); Tauber v Dist of Columbia, 511 A2d 23, 27 (DC App, 1986); 20/20 Vision Ctr, Inc v
Hudgens, 256 Ga 129, 135 (1986); McIntosh v Murphy, 52 Haw 29, 35 (1970); Brown v
Branch, 758 NE2d 48, 52 (Ind, 2001); Kolkman v Roth, 656 NW2d 148, 153 (Iowa,
2003); Bittel v Farm Credit Servs of Central Kansas, 265 Kan 651, 659 (1998); Snyder v
Snyder, 79 Md App 448 (1989); Barrie-Chivian v Lepler, 87 Mass App Ct 683, 685
(2015); Del Hayes & Sons, Inc v Mitchell, 304 Minn 275, 285 (1975); Alpark Distrib, Inc
v Poole, 95 Nev 605, 608 (1979); Eavenson v Lewis Means, Inc, 105 NM 161 (1986),
overruled on other grounds by Strata Prod Co v Mercury Exploration Co, 121 NM 622,
627-628 (1996); In re Hennel Estate, 29 NY3d 487, 494 (2017); Home Elec Co of Lenoir,
 4

explicitly forbidden the use of promissory estoppel as an exception to the statute of
frauds. The dissent’s canvass of the several states makes the case that abandoning
promissory estoppel remains a distinctly minority position.

And even the cases the dissent cites do not uniformly support its position. The
dissent cites Tiffany Inc v WMK Transit Mix, Inc, 16 Ariz App 415, 421 (1972), for the
proposition that promissory estoppel would nullify the statute of frauds. Tiffany is an
intermediate court decision from Arizona, but the Arizona Supreme Court has held
promissory estoppel may be applied to defeat the statute of frauds where “there is a
second promise not to rely on the statute.” Mullins v Southern Pacific Transp Co, 174
Ariz 540, 542 (1992). The cases the dissent cites from Maine and Washington are also
unhelpful: Stearns v Emery-Waterhouse Co, 596 A 2d 72 (Me, 1991) and Greaves v Med
Imaging Sys, Inc, 124 Wash 2d 389 (1994). Although each case is evidence that
promissory estoppel is not an immutable exception to the statute of frauds in those
jurisdictions, neither has done away with the doctrine altogether (as the dissent would
have us do here). Harvey v Dow, 962 A2d 322, 327 (Me, 2008) (applying promissory to
an agreement to transfer land); Klinke v Famous Recipe Fried Chicken, Inc, 94 Wash 2d
255, 260 (1980) (applying promissory estoppel to restaurant franchise agreement). If
there is any wisdom to be found in majorities, we should not rush to abandon promissory
estoppel.

And then there’s stare decisis. 5 We don’t overrule precedent lightly. Our test for
determining whether to overrule Opdyke has us consider these factors: (1) “whether the
earlier decision was wrongly decided,” (2) “whether the decision at issue defies practical
workability,” (3) “whether reliance interests would work an undue hardship,” and (4)

Inc v Hall & Underdown Heating & Air Conditioning Co, 86 NC App 540, 543 (1987),
aff’d 322 NC 107 (1988); Knorr v Norberg, 872 NW2d 323, 326 (ND, 2015); Olympic
Holding Co, LLC v ACE Ltd, 122 Ohio St 3d 89, 96 (2009); Lacy v Wozencraft, 188 Okla
19 (1940); Potter v Hatter Farms, Inc, 56 Or App 254, 262 (1982); Brochu v Santis, 939
A2d 449, 453 (RI, 2008); Durkee v Van Well, 654 NW2d 807, 815 (SD, 2002), overruled
in part on other grounds by Mundhenke v Holm, 787 NW2d 302, 306-307 (2010); Shedd
v Gaylord Entertainment Co, 118 SW3d 695, 699-700 (Tenn App, 2003); “Moore”
Burger, Inc v Phillips Petroleum Co, 492 SW2d 934, 937-938 (1972); Stangl v Ernst
Home Ctr, Inc, 948 P2d 356, 365-366 (Utah App, 1997); T… v T…, 216 Va 867, 873
(1976); Hoover v Moran, 222 W Va 112, 119 (2008); Klinke v Famous Recipe Fried
Chicken, Inc, 94 Wash 2d 255, 259-260 (1980); McLellan v Charly, 313 Wis 2d 623, 653
(2008); B & W Glass, Inc v Weather Shield Mfg, Inc, 829 P2d 809, 816-817 (Wy, 1992).
5
“Stare decisis,” the Latin phrase that means “to stand by the decided matters,” is, of
course, our shorthand for the principle that guides our branch of government: that we
should respect our earlier decisions.
 5

“whether changes in the law or facts no longer justify the questioned decision.”
Robinson v Detroit, 462 Mich 439, 464 (2000) (cleaned up).

As the brief tour of the statute’s history, our relevant jurisprudence and that of our
sister states demonstrates, Opdyke was correctly decided. Confronted with this same
problem over the years and across jurisdictions, courts have repeatedly permitted parties
to rely on promissory estoppel to enforce noncontractual promises in the right
circumstances. This is unsurprising, as the doctrine exemplifies practical workability by
setting out a straightforward legal rule for courts to follow. The Court of Appeals
opinion in this case proves the point: for all its grousing about the result, the panel had no
trouble reaching it. 6

To overrule Opdyke and reject equitable exceptions to the statute of frauds would
contravene core principles of stare decisis. Stability in the law is usually preferred, as it
prevents arbitrary discretion by courts. McCormick v Carrier, 487 Mich 180, 210 (2010).
Considerations in favor of stability are strongest in “cases involving property and contract
rights, where reliance interests are involved . . . .” Payne v Tennessee, 501 US 808, 828
(1991). And overruling a 35-year-old unanimous opinion would be especially
noteworthy. See Garner et al, The Law of Judicial Precedent (St Paul: Thomson/West,
2016), p 182 (“When everyone sitting on a case agrees on the outcome of an issue or
case, the panel speaks with one voice. The decision carries the full weight of the panel’s
authority. . . . Other things being equal, courts will usually consider a precedent that
speaks for a unanimous court as more authoritative than one that speaks for a split
panel.”).

But there’s more. To abandon all equitable exceptions to the statute of frauds, as
the dissent advocates, implicates not only Opdyke, but also more than a century of our
Court’s precedent (not to mention centuries of English common law before that). While
the dissent believes that this result is warranted by the plain language of the text and by
principles of judicial restraint, in fact overruling, in one fell swoop, centuries of well-
settled precedent tilts in the other direction. “[T]he longer a rule has continued, the more
thoroughly has it inevitably become interwoven with the business and property interests
of the community at large; and, therefore, the more disastrous must be a change,

6
Writing in support of the defendants, Michigan Realtors argues that Opdyke undermines
good business practices, and the dissent is persuaded that this should feature in our
consideration. We are in no position to gainsay these policy arguments, but they are
more properly directed towards the Capitol Building, not the Hall of Justice. The
Legislature has amended the Statute of Frauds to clarify the application of promissory
estoppel for certain industries. See Crown Technology Park v D&N Bank, 242 Mich App
538, 549 (2000) (interpreting MCL 566.132(2)). It can do so for this industry if it
chooses to.
 6

especially a sudden change.” Wells, A Treatise on the Doctrines of Res Judicata and
Stare Decisis (1878), pp 544-545. The dissent has this characterization backwards; the
majority’s decision today is compelled by principles of stability and judicial modesty. 7

The rule has not, moreover, declared open season on contracts. As an equitable
doctrine, courts retain the discretion to strictly enforce the statute of frauds. Countless
decisions have done just that. E.g. Hazime v Martin Oil Co of Ind, 792 F Supp 1067 (ED
Mich, 1992); Marrero v McDonnell Douglas Capital Corp, 200 Mich App 438, 441-443
(1993); Lovely v Dierkes, 132 Mich App 485, 489-490 (1984). We have also limited the
doctrine—such as requiring the promise to be “clear and definite”—to ensure it is not
abused. State Bank of Standish v Curry, 442 Mich 76, 85 (1993). Contrary to the claims
of the dissent, the reliance interests cut squarely in favor of maintaining our precedents.
Citizens, businesses, and lawyers naturally will rely on any doctrine that has endured a
century or more, particularly after it was clarified by Opdyke. 8 And that is especially true
where the Legislature has never amended the statute of frauds to eliminate the exception.

While it may be correct that very few people have ever entered an agreement with
the expectation of having it violated and later judicially enforced by promissory estoppel,

7
If it is a retreat from textualism, as the dissent asserts, to recognize that in certain
instances—this case being an obvious example—the doctrine of stare decisis operates as
a pragmatic exception to dogmatic textualism, at least I have the comfort of knowing that
I am in good company. See Scalia, A Matter of Interpretation: Federal Courts and the
Law, pp 138-139 (Princeton: Princeton University Press, 1997) (“Originalism, like any
other theory of interpretation put into practice in an ongoing system of law, must
accommodate the doctrine of stare decisis; it cannot remake the world anew. It is of no
more consequence at this point whether the Alien and Sedition Acts of 1798 were in
accord with the original understanding of the First Amendment than it is whether
Marbury v. Madison was decided correctly.”); Scalia & Garner, Reading Law: The
Interpretation of Legal Texts (St. Paul: Thomson/West, 2012), pp 413-414 (asserting that
“[s]tare decisis . . . is not a part of textualism. It is an exception to textualism . . . born
not of logic but of necessity. Courts cannot consider anew every previously decided
question that comes before them. Stare decisis has been a part of our law from time
immemorial, and we must bow to it. All we categorically propose here is that, when a
governing precedent deserving of stare decisis effect does not dictate a contrary
disposition, judges ought to use proper methods of textual interpretation. If they will do
that, then over time the law will be more certain, and the rule of law more secure.”).
8
Promissory estoppel has also gained widespread acceptance in learned treatises. E.g.,
Restatement Contracts, 2d, § 90; 4 Williston, Contracts (4th ed), § 8:4; 4 Am Jur 2d,
Proof of Facts, § 641; 3 Williston & Jaeger, A Treatise on the Law of Contracts (3d ed),
§ 533A.
 7

this view misses the point. Very few people have ever driven a car with the expectation
of triggering their airbags, but the presence of the safety device allows them peace of
mind and mitigates injuries from the unexpected crash. Just so, promissory estoppel
allows parties to trust each other in matters where trust is essential and permits limited
recovery where a party has acted in bad faith. See Curry, 442 Mich at 83-84. And,
finally, the dissent makes no claim that any changes in the law justify overturning
Opdyke. But this is not surprising because there have been no relevant changes to the law
since Opdyke was decided, which underscores the ongoing vitality of the decision.

There are times when courts must overturn precedent. But, in my view, those
occasions should be rare and the case for doing so compelling. This is plainly not one of
those cases.

Even if doctrine had grown stale, this case would be a poor vehicle to upend it. I
largely agree with the dissent’s view of the facts, but one key point is missing: the
defendant chose not to produce any evidence to support its position regarding summary
disposition. Instead of giving the trial court facts from which it could have determined
that the plaintiff’s claim of promissory estoppel was not supported, it decided instead to
ask the court to hold the doctrine inapplicable, an impossible request of any court but this
one.

This strategic decision should have prevented the trial court from granting the
defendant’s motion for summary disposition under MCR 2.116(C)(8). In ruling on the
motion, the trial court must accept all well-pled factual allegations as true in the light
most favorable to the nonmoving party, and it may only grant the motion if the claims are
so clearly unenforceable as a matter of law that no factual development could possibly
justify recovery. Maiden v Rozwood, 461 Mich 109, 119 (1999). At this stage, the court
may only consider the pleadings. Id. at 119-120. The “existence and scope of the
promise are questions of fact . . . .” Curry, 442 Mich at 84. The question for the trial
court was, “Was there sufficient evidence, which, if believed by the trier of fact, would
support a finding of estoppel sufficient to circumvent the statute of frauds?” Conel Dev,
Inc v River Rouge Savings Bank, 84 Mich App 415, 423 (1978).

The plaintiffs claim that the defendant promised them they would be paid a
broker’s commission for their role in matching the defendant with a buyer. They
submitted a photo of the defendant’s sign that read “Brokers Protected” and alleged that
this text is understood in their industry as a promise to pay a brokerage fee. The
defendant made no counter allegations and submitted nothing to rebut the plaintiffs’
claims. Perhaps if the defendant had submitted evidence in support of summary
disposition, the trial could have properly concluded that there was no “clear and definite”
promise, and thus, promissory estoppel was inapposite. But because it did not, the trial
court was obligated to follow Opdyke and was not in a position to make the new rule of
law the dissent would want this Court to make. And the Court of Appeals was correct to
 8

reverse the trial court’s grant of the defendant’s motion on this record.

What’s more, the procedural history of this case makes it a poor candidate to
announce a watershed ruling. It is interlocutory, and discovery has not taken place, so
there is still room for factual development. If we were to make the robust doctrinal move
the dissent would have us make, this would be a startling case in which to do so.

For all these reasons, the Court is correct to deny leave on this case.

VIVIANO, J., joins the statement of MCCORMACK, J.

ZAHRA, J. (dissenting).

The issue in this case is straightforward. MCL 566.132(1)(e) plainly provides that
an agreement, promise, or contract to pay a commission for or upon the sale of an interest
in real estate promise is void unless that agreement, contract, or promise is in writing and
signed by the party to be charged with the agreement, contract, or promise. Despite this
legislative directive, this Court has sanctioned the enforcement of an unwritten promise
to pay a commission for or upon the sale of an interest in real estate. Because the law
clearly provides that this promise is void, it is not enforceable. Accordingly, I dissent. I
would overrule this Court’s decision in Opdyke Investment Co v Norris Grain Co 9 and
apply the plain language of MCL 566.132(1)(e).

I. BASIC FACTS AND PROCEDURAL HISTORY

Plaintiffs are real estate brokers who seek compensation for their efforts in
procuring the sale of real property from defendant Howell Public Schools to defendant St.
John Hospital. According to plaintiffs’ complaint, Howell Public Schools offered for sale
real property through a sign stating that the sale was “broker protected.” The complaint
alleges that this sign “explicitly promised [p]laintiffs that [Howell Public Schools] would
honor the earned broker fee for delivering to [Howell Public Schools] a buyer.” Plaintiffs
allege that they relied on this promise by expending considerable effort to broker a sale of
the property to St. John. According to the complaint, plaintiffs contacted an associate
superintendent of Howell Public Schools and informed him they had a “client” interested
in viewing their listed properties. Later, plaintiffs met with this associate superintendent
at one of Howell Public Schools’ properties, the Latson School Property, and toured the
site. Afterwards, plaintiffs sent St. John a “Letter of Intent” to sign and return. St. John
did not return the document. Plaintiffs also sent the associate superintendent a
“Confidentiality, Commission & Broker Protection Agreement.” This document was
likewise not returned, apparently and according to plaintiffs’ complaint, because

9
Opdyke Investment Co v Norris Grain Co, 413 Mich 354 (1982).
 9

plaintiffs sought an 8% commission for the sale. Plaintiffs allege in their complaint that
“[u]pon information and belief, sometime in, or around, early April 2014, one of the
Defendants caused Thomas A. Duke Company, a commercial real estate company, to
fashion a purchase agreement for the sale of the Latson School Property from Howell
[Public] Schools to St. John.” Plaintiffs’ complaint further alleges that defendants
learned in late April 2014 of plaintiffs’ efforts to broker a sale between them. Plaintiffs
allege that “a few months later, on July 7, 2014, Howell [Public] Schools entered into a
purchase agreement with St. John for the Latson School Property.”

In lieu of an answer, defendants filed a motion for summary disposition, arguing
that plaintiffs’ complaint must be dismissed under MCL 566.132, commonly known as
the statute of frauds. The statute of frauds requires certain types of agreements to be in
writing and signed by the party against whom it will be enforced. This expressly includes
“[a]n agreement, promise, or contract to pay a commission for or upon the sale of an
interest in real estate.” MCL 566.132(1)(e). Plaintiffs countered that the statute of frauds
did not apply because plaintiffs pleaded a theory of promissory estoppel, which is a
judicially created exception to the statute of frauds. The circuit court granted defendants’
motion and dismissed the case. 10

The Court of Appeals reversed, reluctantly holding that “[r]egardless of the
wisdom of using a judicially created exception to a statute, we must apply it.” 11 Relying
entirely on this Court’s decision in Opdyke, the panel stated that “[t]he Michigan
Supreme Court created and has upheld the [promissory estoppel] exception” and
acknowledged that it “is bound to follow decisions of our Supreme Court.” 12 The panel
urged this Court to grant leave to address the issue presented in this case, opining that
“[t]he judicially created doctrine of promissory estoppel, as applied to the facts of this
case, subsumes the statute of frauds and makes the statute of frauds irrelevant.” 13

Howell Public Schools appealed in this Court. We ordered argument on the
application and requested that the parties file supplemental briefs on the question whether
promissory estoppel is an exception to the statute of frauds.

10
Plaintiffs and St. John reached a settlement and St. John was dismissed from the case.
11
North American Brokers v Howell Pub Sch, unpublished per curiam opinion of the
Court of Appeals, issued February 9, 2017 (Docket No 330126), p 3. Indeed, the panel
“acknowledge[d] that [its] opinion reaches the correct result under our present legal
framework,” yet stated, “it is the wrong result.” Id. at 3 n 2.
12
North American Brokers, unpub op at 3 (quotation marks and citation omitted).
13
Id. at 3 n 2.
 10

II. ANALYSIS

MCL 566.132(1) expressly provides in relevant part:

In the following cases an agreement, contract, or promise is void
unless that agreement, contract, or promise, or a note or memorandum of
the agreement, contract, or promise is in writing and signed with an
authorized signature by the party to be charged with the agreement,
contract, or promise:

* * *

(e) An agreement, promise, or contract to pay a commission for or
upon the sale of an interest in real estate.

There is no dispute that the plain language of MCL 566.132 renders “void”
Howell Public Schools’ alleged “promise . . . to pay a commission for or upon the sale of
an interest in land” because there is no “writing” that is “signed with an authorized
signature by” Howell Public Schools. In fact, plaintiffs admit that Howell Public Schools
flat-out refused to sign their proposed agreement. The text of MCL 566.132 is clear and
definite; unless there is a writing signed with an authorized signature by the party to be
charged, the promise is void. The Legislature did not provide for any exceptions to this
rule. Thus, the statute of frauds should apply in this case.

Like the Court of Appeals panel in this case, I have previously been in a position
to “reluctantly agree” that the statute of frauds can be circumvented through judicially
created exceptions “[r]ather than deferring to the Legislature to address through the
legislative amendment process any perceived inequity in the statute of frauds . . . .” 14 In
doing so, “Michigan courts have by judicial fiat created gaping holes in the statute of
frauds that are inconsistent with the express language of the statute and the policy
supporting it[.]” 15 Now, as a Justice of the Michigan Supreme Court, I continue to
repudiate any judicially created doctrine that has “developed to avoid the arbitrary and
unjust results required by an overly mechanistic application of the [statute of frauds].”16
It bears repeating that

14
Kelly-Stehney & Assoc, Inc v MacDonald’s Indus Prod, Inc, 254 Mich App 608, 613-
615 (2003), vacated on other grounds 469 Mich 1046 (2004).
15
Id. at 615.
16
Opdyke, 413 Mich at 365.
 11

[a]llowing judge-made doctrines such as estoppel to override and preclude
the application of legislatively created laws such as the statute of frauds “is
contrary to well-founded principles of statutory construction and is
inconsistent with traditional notions of the separation of powers between
the judicial and legislative branches of government.”[17]

The concurrence states that we ought not reverse Opdyke under principles of stare
decisis. Indeed, this Court is generally reluctant to overturn precedent. It is often argued
that the Court should be particularly careful overturning statutory precedent that the
Legislature is in a position to clarify on its own through new legislation. Nonetheless,
this Court has recognized that “legislative acquiescence . . . is an exceptionally poor
indicator of legislative intent.” 18 Further, this Court has also made clear that egregious
departures from the plain language of the text ought to be addressed sooner than later,
explaining:

[I]t is to the words of the statute itself that a citizen first looks for guidance
in directing his actions. This is the essence of the rule of law: to know in
advance what the rules of society are. Thus, if the words of the statute are
clear, the actor should be able to expect . . . that they will be carried out by
all in society, including the courts. In fact, should a court confound those
legitimate citizen expectations by misreading or misconstruing a statute, it
is that court itself that has disrupted the reliance interest. When that
happens, a subsequent court, rather than holding to the distorted reading
because of the doctrine of stare decisis, should overrule the earlier court’s
misconstruction. The reason for this is that the court in distorting the
statute was engaged in a form of judicial usurpation that runs counter to the
bedrock principle of American constitutionalism, i.e., that the lawmaking
power is reposed in the people as reflected in the work of the Legislature,
and, absent a constitutional violation, the courts have no legitimacy in
overruling or nullifying the people’s representatives. Moreover, not only
does such a compromising by a court of the citizen’s ability to rely on a
statute have no constitutional warrant, it can gain no higher pedigree as
later courts repeat the error. [Robinson v Detroit, 462 Mich 439, 467-468
(2000).]

In such cases, where the result of a decision effectively “usurp[s]” or “nullif[ies]”
the “legislative function,” this Court is obligated to correct that decision, regardless

17
Kelly-Stehney, 254 Mich App at 615-616, quoting Crown Technology Park v D & N
Bank, FSB, 242 Mich App 538, 548 n 4, (2000), citing Scalia, A Matter of Interpretation:
Federal Courts and the Law (New Jersey: Princeton University Press, 1997), pp 14-29.
18
McCahan v Brennan, 492 Mich 730, 749 (2012).
 12

whether the Legislature has “ ‘acquiesced’ in the decisions of the Court to which it has
not responded . . . .” 19 In my view, Opdyke, which was apparently “developed to avoid
the arbitrary and unjust results required by an overly mechanistic application of the
[statute of frauds],” 20 is an ideal candidate for reversal. This Court in Opdyke not only
usurped the Legislature’s power but simultaneously amended the statute of frauds by
judicial fiat to frustrate the express intentions of the Legislature, 21 i.e., to render void
certain agreements, contracts, or promises unless in writing and signed.

In determining whether to overrule a prior case, this Court first considers whether
the earlier case was wrongly decided. 22 Opdyke disregarded the language of MCL
566.132 and deviated from this Court’s pattern of cases interpreting it. 23 The Court
stated that “[s]ince the statute of frauds only applies to certain ‘contracts’, recovery based
on a noncontractual promise falls outside the scope of the statute of frauds.” 24 Yet MCL
566.132(1)(e) expressly applies not just to contracts but also, explicitly, to
“promise[s].” 25 And assuming the goal of the statute of frauds is to protect against fraud
and perjury for transactions that the Legislature deemed so significant as to require that
the transaction be memorialized in writing, the doctrine of promissory estoppel adds
nothing to advance this purpose. As demonstrated in this case, Howell Public Schools
has done nothing legally, or even morally, wrong, yet it is now subject to potential
liability because plaintiffs have claimed that they relied on a promise. And Howell
Public Schools was not even aware of plaintiffs’ reliance. Further, even though Howell
Public Schools expressly refused to execute a contract with plaintiffs, this Court has
essentially imposed the obligation of that contract upon Howell Public Schools.

As cogently explained by amicus curiae Michigan Realtors (amicus), Opdyke
undermines the good business practices of more than 28,000 appraisers, brokers, and

19
Collier & DeRosier, Understanding The Overrulings: A Response To Robert Sedler, 56
Wayne L Rev 1761, 1777-1778 (2010).
20
Opdyke, 413 Mich at 365.
21
Rowland v Washtenaw Co Rd Comm, 477 Mich 197, 213 (2007).
22
Robinson, 462 Mich 439, 463-468.
23
MCL 566.132 has been amended and renumbered since Opdyke was decided, but the
changes have no bearing on this analysis. See 1974 PA 343 and 1992 PA 245.
24
Opdyke, 413 Mich at 370.
25
The version of the provision in effect when Opdyke was decided, MCL 566.132(e),
also applied to a “promise.” See 1974 PA 343.
 13

salespersons licensed under Michigan law, who are “consistently taught that there is no
entitlement to a commission based upon agreements or promises that are not in writing
and are not signed by the party to be charged.” The members of amicus are clearly
significant stakeholders to this aspect of Michigan law, as they are involved in hundreds
of real estate transactions each day. This Court should not dismiss amicus’s concern that
“[t]he application of promissory estoppel to circumvent the statute of frauds creates an
exception to an otherwise clear rule and fosters uncertainty and ambiguity in what are
currently fairly ‘cut and dried’ transactions.” In particular, amicus highlights that “[t]he
application of promissory estoppel to the . . . statute of frauds potentially subjects sellers
of residential real estate in Michigan to claims for more than one commission.” Members
of amicus are not seeking special treatment, but are only requesting that Michigan courts
faithfully apply the plain language of the statute of frauds in all cases. Sustaining this
Court’s decision in Opdyke will only continue to undermine the “practical workability” of
amicus’s good business practices and result in unnecessary and costly litigation. 26 Thus,
I am convinced that Opdyke was wrongly decided.

The notion that promissory estoppel is barred by a legislative directive that
particular contracts must be in writing is not radical. Indeed, several out-of-state
jurisdictions have enforced the statute of frauds and rejected judicially created exceptions
to it for the same reason. Stearns v Emery-Waterhouse Co 27 (stating that the application
of promissory estoppel “contravenes the policy of the Statute to prevent fraud”); Greaves
v Med Imaging Sys, Inc 28 (“We have consistently declined to adopt [the application of
promissory estoppel to avoid the statute of frauds], although we have considered it in
several prior cases.”); Morsinkhoff v DeLuxe Laundry & Dry Cleaning Co 29 (“To allow
recovery on the theory of promissory estoppel would abrogate the purpose and intent of

26
I strongly disagree with the concurrence that amicus has presented policy arguments
that “are more properly directed towards the Capitol Building, not the Hall of Justice.”
The only policy that Howell Public Schools and amicus seek is to apply is that which the
Legislature has already written in the statute of frauds. The problem is not that the
Legislature has failed to act; it is that this Court refuses to apply the law by giving plain
and ordinary meaning to the legislative mandate that “[a]n agreement, promise, or
contract to pay a commission for or upon the sale of an interest in real estate” “must be in
writing.” MCL 566.132(1)(e). And to suggest that these arguments are better directed
towards the same body that wrote this clear and unambiguous directive is truly puzzling,
given this Court’s refusal to apply the statute of frauds as currently written.
27
Stearns v Emery-Waterhouse Co, 596 A2d 72, 74-75 (Me, 1991).
28
Greaves v Med Imaging Sys, Inc, 124 Wash 2d 389 (1994).
29
Morsinkhoff v DeLuxe Laundry & Dry Cleaning Co, 344 SW2d 639, 644 (Mo App,
1961).
 14

the legislature in enacting the Statute of Frauds and would nullify its fundamental
requirements.”); Tiffany Inc v WMK Transit Mix, Inc 30 (Allowing a claim for promissory
estoppel would mean “the Statute of Frauds would no longer have any effect.”); Sinclair
v Sullivan Chevrolet Co 31 (“Where, however, a case is clearly within the Statute of
Frauds, promissory estoppel is inapplicable, for the net effect would be to repeal the
Statute completely.”); Austin v Cash 32 (“ ‘[W]here a case is clearly within the statute of
frauds, promissory estoppel is inapplicable, for the net effect would be to repeal the
statute completely. . . . [T]he moral wrong of refusing to be bound by an agreement
because it does not comply with the statute of frauds, does not of itself authorize the
application of the doctrine of estoppel, because the breach of a promise which the law
does not regard as binding is not a fraud.’ ”); Anderson Const Co, Inc v Lyon Metal Prod,
Inc 33 (“[T]his Court, contrary to the course pursued by some others, has uniformly held
that it is without power to engraft exceptions on the statute, and must enforce it as
written. . . . To hold otherwise would destroy the purpose of the statute to prevent frauds
and perjuries.”); Bethune v City of Mountain Brook 34 (“[I]t is well settled in Alabama that
an executory agreement which is void under the statute of frauds cannot be made
effectual by estoppel merely because it has been acted on by the promisee, and has not
been performed by the promisor.”); see also Lovely v Dierkes 35 (“It would seem
inconsistent to claim detrimental reliance on an oral contract while acknowledging the
importance of a written contract.”)

Likewise, our caselaw supports the conclusion that the statute of frauds cannot be
circumvented by a promissory estoppel claim. See, e.g., Collin v Kittelberger 36 (applying
prospectively from effective date of the statute of frauds, any contract for commissions
on order of realty must be in writing, but did not affect a contract existing when it took
effect); Paul v Graham 37 (holding that “[i]n order to give the act the effect which the
30
Tiffany Inc v WMK Transit Mix, Inc, 16 Ariz App 415, 421 (1972).
31
Sinclair v Sullivan Chevrolet Co, 45 Ill App 2d 10, 17 (1964).
32
Austin v Cash, 274 Mont 54, 62 (1995), quoting Schwedes v Romain, 179 Mont 466,
472 (1978).
33
Anderson Const Co, Inc v Lyon Metal Prod, Inc, 370 So 2d 935, 937 (Miss, 1979)
(quotation marks and citation omitted).
34
Bethune v City of Mountain Brook, 293 Ala 89, 93 (1974).
35
Lovely v Dierkes, 132 Mich App 485, 492 n 1 (1984) (PETERSON, J., dissenting).
36
Collin v Kittelberger, 193 Mich 133 (1916).
37
Paul v Graham, 193 Mich 447, 451 (1916).
 15

Legislature evidently intended it should have, . . . no recovery can be had under this
section [of the statute of frauds] unless the agreement therefor is in writing; McGavock v
Ducharme 38 (holding that the statute of frauds rendered absolutely void an oral promise
to pay 3% commission on the sale of a property); Slocum v Smith 39 (holding that the
provision of the statute of frauds related to promises to pay commissions extended to
agreements to purchase as well as agreements to sell, and determining that plaintiff was
not entitled to recovery under a quantum meruit claim based on an oral promise in
violation of the statute of frauds); Smith v Starke 40 (holding that oral agreement to find a
purchaser for a farm in exchange for commission was void under the statute of frauds,
and plaintiff was not permitted recovery under quantum meruit); Aetna Mtg Co v
Dembs 41 (holding that the statute of frauds required that an agreement for commission for
obtaining mortgage on land be reduced to a signed writing and an oral agreement for
commission was not valid). Historically, this Court has consistently construed this
particular provision of the statute of frauds to prevent oral promises and claims for
equitable remedies from circumventing the statute’s writing requirement. Accordingly,
the natural conclusion is that Opdyke is an aberration. 42

38
McGavock v Ducharme, 192 Mich 98 (1916).
39
Slocum v Smith, 195 Mich 281 (1917).
40
Smith v Starke, 196 Mich 311 (1917).
41
Aetna Mtg Co v Dembs, 13 Mich App 686 (1968).
42
It is passing strange that the concurrence would quote Justice Antonin Scalia to place
the question whether Opdyke should be overruled on equal footing with the questions
“whether the Alien and Sedition Acts of 1798 were in accord with the original
understanding of the First Amendment . . . [and] whether Marbury v. Madison was
decided correctly.” As Justice Scalia noted in his more recent book with Bryan Garner,
Reading Law: The Interpretation of Legal Texts:

We do not propose that all the decisions made, and doctrines adopted, in
the past half-century or so of unrestrained constitutional improvisation be
set aside—only those that fail to meet the criteria for stare decisis. These
include consideration of (1) whether harm will be caused to those who
justifiably relied on the decision, (2) how clear it is that the decision was
textually and historically wrong, (3) whether the decision has been
generally accepted by society, and (4) whether the decision permanently
places courts in the position of making policy calls appropriate for elected
officials. [Scalia & Garner, Reading Law: The Interpretation of Legal
Texts (St. Paul: Thomson/West, 2012), p 412 (citations omitted)].
 16

To determine whether a case that was wrongly decided should be overruled, the
Court must “examine reliance interests,” specifically:

whether the prior decision defies “practical workability”; whether the prior
decision has become so embedded, so fundamental to everyone’s
expectations that to change it would produce not just readjustments, but
practical real-world dislocations; whether changes in the law or facts no
longer justify the prior decision; and whether the prior decision misread or
misconstrued a statute.[43]

Suffice to say that very few people have ever sought to enter an agreement, contract, or
promise expecting to enforce the agreement, contract, or promise based on an equitable
exception to the statute of frauds. And for those who have done so, they would
necessarily be precluded from asserting an equitable claim because they would in effect
have “unclean hands.” Thus, overruling Opdyke would not unsettle a single person’s
legitimate expectations. 44

Opdyke is not only inconsistent with Michigan caselaw that suggests the statute of frauds
cannot be circumvented by a promissory estoppel, see notes 28 through 32 of this
statement, it has on at least three occasions been criticized in the Court of Appeals. See,
e.g., Lovely, 132 Mich App at 491-496 (PETERSON, J., dissenting); Kelly-Stehney &
Assoc, Inc, 254 Mich App at 613-615; and North American Brokers, unpub op at 3, the
opinion of the Court of Appeals in the instant case. Thus Opdyke hardly qualifies, in the
vein of Marbury v Madison, 5 US (1 Cranch) 137 (1803), as “generally accepted by
society.” Moreover, Opdyke is textually wrong, and permanently leaves this Court and
lower courts in the position of determining on a case-by-case basis which of the many
competing policy interests presented deserves exception from application of the plain
language of the statute of frauds.

The concurrence caricatures the dissenting position as “dogmatic textualism.” To the
contrary, the dissent merely recognizes that it is the text of the law to which the people
first look to understand their rights and responsibilities. And the “doctrine [of stare
decisis] is not, to be sure, an imprisonment of reason.” United States v Int’l Boxing Club
of NY, 348 US 236, 249 (1955) (Frankfurter, J., dissenting).
43
Rowland, 477 Mich at 215, citing Robinson, 462 Mich at 464-467.
44
The fact that a party may eventually rely on promissory estoppel or another equitable
exception after they make an oral agreement and once litigation has ensued is irrelevant
to the stare decisis analysis. In analyzing reliance interests and whether the prior decision
has become so embedded or fundamental to everyone’s expectations that to change it
would produce significant dislocations, this Court does not look to after-the-fact
awareness of the previous caselaw. See Robinson, 462 Mich at 466-467 (“Such after-the-
 17

The concurrence also suggests that Opdyke, a case decided by this Court in 1982,
ought not be reversed because it is grounded in common law principles of equities that
are centuries old. While I agree that “[t]he equitable principle of estoppel is many
centuries old,” the principle of promissory estoppel was not developed until sometime in
the twentieth century, was not embraced by the Michigan Supreme Court until 1977, 45
and was not accepted as an exception to the statute of frauds until Opdyke in 1982.
Black’s Law Dictionary (10th ed) reflects that the earliest known use of the phrase
“promissory estoppel” in English was in 1924, and scholars recognize that there was
“initial judicial reluctance to apply the doctrine after its formulation in section 90 of the
first Restatement of Contracts . . . in 1932.” 46 Unlike estoppel in general, the doctrine of
promissory estoppel stands out, as once suggested, in “that promissory estoppel had
become ‘perhaps the most radical and expansive development of this century in the law
of promissory liability.’ ” 47 Born of the legal realism movement, which espoused “[t]he
theory that law is based not on formal rules or principles but instead on judicial decisions
deriving from social interests and public policy as conceived by individual judges,” 48 the
doctrine of promissory estoppel is plainly in tension with the more recent emphasis from
this Court on the doctrine of textualism, in which “the words of a governing text are of
paramount concern and . . . what they fairly convey in their context is what the text
means” 49 “Courts that have taken a textualist approach with respect to implied terms
generally have not identified implied estoppel exceptions.” 50 Rather, a textualist approach
recognizes that where the Legislature has intended for exceptions to apply to the statute
of frauds, it has expressly provided those exceptions.

Accordingly, a textualist approach would embrace the notion that when the
Legislature intended for common law and other exceptions to apply to the statute of

fact awareness does not rise to the level of a reliance interest because to have reliance the
knowledge must be of the sort that causes a person or entity to attempt to conform his
conduct to a certain norm before the triggering event.”).
45
Huhtala v Travelers Ins Co, 401 Mich 118, 126-130 (1977).
46
Feinman, Promissory Estoppel and Judicial Method, 97 Harv L Rev 678, 678 (1984).
47
Knapp, Rescuing Reliance: The Perils Of Promissory Estoppel, 49 Hastings L J 1191,
1192 (1998) (citation omitted).
48
Black’s Law Dictionary (10th ed).
49
Id.
50
Maggs, Estoppel And Textualism, 54 Am J Comp L 167, 178 (2006).
 18

frauds for the uniform commercial code, it expressly provided those exceptions. See
MCL 440.2201(3)(a) through (c). This is reflected in Justice MARKMAN’s concurrence in
Vittiglio v Vittiglio. 51 Although Justice MCCORMACK posits that in Vittiglio “the Chief
Justice has recognized another equitable doctrine, partial performance, as creating an
exception to the statute of frauds,” there is a textual basis for applying part performance
to remove an agreement from within the statute of frauds. MCL 566.106 and MCL
566.108 were the statute of frauds provisions at issue in Vittiglio, and those provisions are
distinct from the statute of frauds provision at issue in the instant case, i.e., MCL
566.132(1)(e). MCL 566.106 provides as follows:

No estate or interest in lands, other than leases for a term not
exceeding 1 year, nor any trust or power over or concerning lands, or in any
manner relating thereto, shall hereafter be created, granted, assigned,
surrendered or declared, unless by act or operation of law, or by a deed or
conveyance in writing, subscribed by the party creating, granting,
assigning, surrendering or declaring the same, or by some person thereunto
by him lawfully authorized by writing.

And MCL 566.108 provides as follows:

Every contract for the leasing for a longer period than 1 year, or for
the sale of any lands, or any interest in lands, shall be void, unless the
contract, or some note or memorandum thereof be in writing, and signed by
the party by whom the lease or sale is to be made, or by some person
thereunto by him lawfully authorized in writing: Provided, That whenever
any lands or interest in lands shall be sold at public auction and the
auctioneer or the clerk of the auction at the time of the sale enters in a sale
book a memorandum specifying the description and price of the land sold
and the name of the purchaser, such memorandum, together with the
auction bills, catalog or written or printed notice of sale containing the
name of the person on whose account the sale is made and the terms of sale,
shall be deemed a memorandum of the contract of sale within the meaning
of this section.

51
Vittiglio v Vittiglio, 493 Mich 936 (2013) (MARKMAN, J., concurring).
 19

Although MCL 566.106 and MCL 566.108 are distinct statute of frauds provisions
from MCL 566.132, all three provisions are contained within Chapter 566 of the
Michigan Compiled Laws. And MCL 566.110 provides as follows: “Nothing in this
chapter [i.e., Chapter 566] contained shall be construed to abridge the powers of the court
of chancery to compel the specific performance of agreements, in cases of part
performance of such agreements.” That is, the Legislature has explicitly adopted a
provision to make clear that “part performance” may operate as an exception to the
statute of frauds.

That the Legislature felt the need to affirmatively specify that “part performance”
may constitute an exception to the statute of frauds reinforces the proposition that, as
actually written, the statute of frauds does not already contain equitable exceptions of the
sort read into it by the majority in acquiescing to Opdyke. Clearly, where the Legislature
believes it proper to establish an exception to the statute of frauds, it has provided for
such exception. When the history of this Court’s retreat from textually grounded
interpretations of the law is written, its erosion of the statute of frauds in such cases as
this will be writ large.

III. CONCLUSION

I would overrule this Court’s decision in Opdyke and apply the plain language of
MCL 566.132(1). Accordingly, I would reverse the opinion and order of the Court of
Appeals and remand to the circuit court to reinstate the judgment in favor of Howell
Public Schools.

MARKMAN, C.J., and WILDER, J., join the statement of ZAHRA, J.

I, Larry S. Royster, Clerk of the Michigan Supreme Court, certify that the
foregoing is a true and complete copy of the order entered at the direction of the Court.
June 29, 2018
d0626
Clerk