In the

United States Court of Appeals

For the Seventh Circuit

____________

No. 04-1133

CLIFF DUMAS,

Plaintiff-Appellant,

v.

INFINITY BROADCASTING

CORPORATION and WUSN-FM,

Defendants-Appellees.

____________

Appeal from the United States District Court for

the Northern District of Illinois, Eastern Division.

No. 03 C 4713—James F. Holderman, Judge.

____________

ARGUED SEPTEMBER 15, 2004—DECIDED AUGUST 1, 2005

____________

Before FLAUM, Chief Judge, and COFFEY and KANNE,

Circuit Judges.

COFFEY, Circuit Judge. On July 7, 2003, Cliff Dumas, a

country music radio personality, filed a diversity action in

the United States District Court for the District of

New Mexico against Infinity Broadcasting Corporation

(“Infinity”) and its Chicago affiliate, WUSN-FM (“US-99”).

In his complaint, Dumas alleged that he was entitled to

monetary damages for breach of contract and promissory
2 No. 04-1133

estoppel arising out of an unfulfilled employment agreement with US-99. Shortly after the complaint was filed, the

case was transferred on Infinity’s motion to the

United States District Court for the Northern District of

Illinois. Following discovery, the defendants moved for

summary judgment pursuant to FED. R. CIV. P. 56. The

district court agreed and granted the defendants’ motion,

finding that Dumas’ claim for breach of contract was barred

by the Illinois statute of frauds and, as a result, his promissory estoppel claim was untenable. We affirm.

I. BACKGROUND

Although country music is most often thought of in terms

of geographical locales such as Nashville, Tennessee and

Dallas, Texas, it seems that Canadians enjoy entertainers

such as Anne Murray, Patsy Cline and Johnny Cash just as

much as their American counterparts. Living proof of this

phenomenon is Cliff Dumas, a country music radio broadcaster with an excess of 24 years of experience, most of it in

places such as Calgary and Toronto in Canada. Throughout

his career, Dumas has hosted a number of successful radio

programs, an example of which is the syndicated “Canadian

Country Countdown,” which was broadcast throughout

Canada. Indeed, in 1990 Dumas was honored by the

Country Music Association and presented with the “Medium Market Broadcast Personality of the Year,” the first

time such an award was given to a radio host outside the

United States.

Beginning in 2000, Dumas attempted to leverage his

accomplishments in Canadian radio and began soliciting

employment in the United States market. At some point,

toward the end of April of that year, he was contacted by

Scott Aurand (a.k.a. Justin Case), the program director of

a country music radio station in Chicago, US-99. Aurand
No. 04-1133 3

1 In an e-mail dated May 3, 2000, Aurand outlined that the offer

that the station was willing to give Dumas was a five-year deal

with $150,000 for the first year and a $10,000 raise the following

four years. Also, the station was willing to guarantee bonuses

commensurate to performance starting at $10,000 for a fifth place

ranking in the ratings for the morning time slot and an additional

$10,000 for each step up in the ratings, with $40,000 for a first

place ranking. However, apparently Dumas was seeking “a salary

of 200 thousand [sic] plus,” with “a 100 thousand [sic] signing

bonus and 250 thousand dollar [sic] buy out [sic] plus a 100

thousand [sic] completion of contract bonus.” Dumas also stated

that while “[a] signing bonus would be great . . . I feel a buy out

[sic] is an absolute must.”

Aurand responded to Dumas’ counteroffer by stating that he

would “take it to Steve [Ennen],” but cautioned that in his opinion

they were “a long way away.” As noted above, Ennen refused to

present the deal to the station’s owners at Infinity. Indeed,

Aurand informed Dumas that Infinity “works differently” and that

the numbers Dumas was asking for might be appropriate for “a

(continued...)

expressed an interest in flying Dumas and his wife to meet

with himself and other US-99 executives regarding possible

employment opportunities. Dumas accepted Aurand’s offer,

and while in Chicago spoke with Aurand and the US-99’s

general manager, Steve Ennen, concerning a possible

opening for Dumas as host of the US-99 morning show. At

this point it became evident that although Dumas was

negotiating directly with Aurand, it was Ennen and others

in management positions at the station and Infinity that

would have the final decision-making authority as to his

hiring. Upon his return to Canada, Dumas was informed by

Aurand via e-mail that based on his salary and bonus

requests, as well as job expectations, Ennen “would not

present [the proposal] to corporate”, meaning the deal was

effectively dead.1

 With the two parties far apart from a
4 No. 04-1133

1 (...continued)

second contract if [he] were wildly successful,” but not as an initial

offering. In other words, it seems Dumas was overshooting the

target.

2 Dumas stated that he “kind of felt that” if he were to accept

employment at US-99 he would be “jumping into a sinking ship.”

Dumas Depo. at 56.

compromise on monetary and other issues2 concerning the

employment opportunity, negotiations broke down without

Infinity ever making an official job offer and Dumas began

pursuing other opportunities.

Shortly thereafter, Dumas was contacted by Citadel

Communications Corporation, another broadcasting company, about hosting a morning show on a station they

owned in Albuquerque, New Mexico. An interview was arranged and a few days later Dumas accepted the position,

officially taking over the morning program at KRST and

moving his family to New Mexico at the end of May 2000.

Approximately a year and a half passed without any

further negotiation or contact between Dumas and the management of US-99. This changed in December of 2001,

however, when Dumas and Aurand began communicating

once again. Initially, the conversations between the two

were friendly interactions about how each party was faring

as well as about a small debt that Dumas owed Aurand

during his Chicago visit in 2000. However, beginning in

February of 2002, the two men once again began discussing

the possibility of Dumas hosting a radio program at US-99.

In a series of e-mails exchanged between Dumas and

Aurand beginning on or about February 22, 2002, Dumas

related his intention to leave his job at KRST (Albuquerque)

and informed him that he had sold his house in order that

he might be ready to move when “the right opportunity”

presented itself. Aurand responded by telling Dumas that

he should keep in touch.
No. 04-1133 5

3 The full text of the e-mail, with the subject line “what are we

looking at” reads:

Cliff,

So give me an idea of where you’re [sic] heads [sic] at.

1. 125 to 175

2. 175 to 225

3. 225 to 250

4. not going to happen.

Justin Case

4 When Aurand asks Dumas for a “regular influx of tape” he is

asking that Dumas send him tape recordings of his show at KRST

so that Aurand and US-99 management can get a feel for his

personality and the manner in which he conducts himself on the

air.

Allegedly, over the next month-and-a-half, a number of

phone calls ensued between the two, culminating in an

April 8, 2002 e-mail in which Aurand asked Dumas to

identify what salary range he would consider accepting for

an opportunity to host the morning show at US-99,3

 with

the choices ranging from $125,000 to $250,000. Dumas replied that “something in the 175 to 225 range seems right.”

Aurand replied with an e-mail dated April 29, 2002

wherein he informed Dumas that “[i]t is important that we

start talking ‘real’ opportunity . . . [t]here may be ‘real’

opportunity [at the station for you] . . . I’m going to need

a regular influx of tape.”4

 In addition, the e-mail sets out

numerous other talking points that need to be discussed,

such as: (a) whether or not Dumas’ personality and radio

demeanor would fit in at the station; (b) who would join

him, if anyone, on the air; (c) whether Dumas intended to

stay with the station for an extended period of time; (d)

whether Dumas could work effectively as a leader; and (e)

whether Dumas and US-99 could compromise on the issue
6 No. 04-1133

5 As to the money issue, Aurand writes in the April 29 e-mail

that: “I think we can compromise here. There may be a window.

You need to be willing to prove yourself to some extent . . . and we

need to be able to pay a little more than we are comfortable with.

If you can get us into scoring position . . . we can all make a little

dough.”

6 In pertinent part the e-mail states: “Trend [i.e., ratings] came

out today-down-morning show 16th 25-54. This is not acceptable.

We are moving forward with our plans to bring you in. Here is our

formula for the AM show. How does this strike you. We will likely

reduce it to TWO players—CLIFF & TRISH. (no producer at

beginning) [with the format being] 1) Warm & Friendly [sic] 2)

Music Focused (at start) [sic] 3) Brief & Topical [sic] 4) positive

(continued...)

of salary.5 Dumas claims that, following this e-mail, he and

Aurand had a number of subsequent telephone conversations regarding the philosophy (i.e., the age, gender and

income bracket of the targeted audience) of the proposed

morning show, the time frame of Dumas’ potential employment as well as the financial terms of the potential agreement. Indeed, Dumas alleges that all the components of a

contract were in place such as salary ($175,000 to start),

start date (August 4, 2002) and contract length (5 years

with an option for 5 more) and that the contract was orally

consummated via telephone on May 20, 2002.

On May 20, Aurand informed Dumas via e-mail that, because the morning show at US-99 had dropped to 16th in

the most recent ratings, the station was “moving forward

with [their] plans to bring [him] in.” Aurand outlined a formula for the morning show and informed Dumas in plain

terms that his goal was to move the show up in the ratings.

With the help of the right new morning host, Aurand

believed he would be able to move the show from where it

presently was in the ratings to the top 8 among all radio

formats in the Chicago market.6
No. 04-1133 7

6 (...continued)

[sic] a) Love the city [sic] b) Love the listener [sic] c) Love the

music [sic] The goal for the show is to be in the (TOP 8) 25-54 all

formats.”

7 The parent company of US-99, Infinity, required a release from

KRST before carrying on any further negotiations with Dumas.

Despite Aurand’s enthusiasm for Dumas in late May, the

record reflects that Dumas was having a problem obtaining

the necessary release before negotiating with any interested

parties from KRST.7

 Indeed, on June 4, 2002, Aurand

advised Dumas in writing that: “We can’t do anything

without a release . . . [v]erbal does not count for our legal

team . . . [b]est of luck securing the paper work.” Dumas

responded by writing that he was “just waiting for the . . .

paper work” from management and informed Aurand that

he had advised KRST that June 21, 2002 would be his last

day at that station. Apparently Aurand was surprised at

this turn of events and wrote back the next day stating:

“You are leaving—as in done? Do you have the option of

staying? You said you were just getting a waiver to look at

opportunities. Hope you did not burn a bridge.” Shortly

thereafter Dumas did obtain a written release from his

contract on June 6, 2002, which he in turn forwarded to

Aurand, and tendered his resignation to KRST effective

June 24, 2002. Dumas claims that shortly after receiving

the June 4 e-mail he contacted Aurand on the telephone

and was assured that once Infinity’s lawyers received the

written release document Dumas’ employment would be

assured, but admits that Aurand also told him that he

should contact Eric Logan (Aurand’s supervisor), who had

recently been hired as the operations manager at US-99

and would have to “sign off” on the hiring of Dumas.

On June 13, 2002, Dumas took Aurand’s advice and sent

an e-mail to Logan introducing himself and stating that he

looked “forward to talking . . . about what [he could] bring
8 No. 04-1133

to the station and the company.” In the same e-mail, Dumas

informed Logan that he had been released from his contract

“to pursue this opportunity,” and reminded Logan of the

“discussions [he and Aurand] had about taking over the

morning show in August.” The remainder of the e-mail to

Logan contains a protracted recitation of Dumas’ qualifications for the morning host position and closes with a

reference to the fact that Aurand was aware of his merits as

a performer including the tapes that he had previously

forwarded to Aurand up to that “point in the negotiations.”

Although Logan was in transit at the time, he set up an

appointment to talk with Dumas in the near future. The

two eventually did talk and Dumas recalls being reassured

that “everything was moving forward.”

Over the next few weeks Dumas continued to send Logan

e-mails espousing his qualifications in an attempt to convince Logan that he was the right person for the job. For

example, on June 28, 2002, Dumas sent Logan a follow-up

e-mail with a list of references for him to peruse while “considering [his] options.” Then, on July 12, 2002, Dumas’ tone

turned a bit more anxious and he pleaded with Logan to tell

him whether the “pending deal was going to fly,” while

letting him know that he had waited “for close to a month

for a decision to be made.” Nonetheless, Dumas made clear

that he had “a couple of other opportunities in Toronto, opportunities I want to take.” The situation became considerably more tempestuous on July 23, however, when Dumas

challenged Logan to “come up with a financial arrangement

to help me out of this mess we’ve got ourselves into,” and

offered that his “lawyer [had] copies of everything.” At this

point US-99 executives stopped returning Dumas’ phone

calls and e-mails, and Dumas became aware that his

chances of being employed with the company had been

eclipsed.

On July 7, 2003, Dumas brought suit against US-99's

parent corporation, Infinity, claiming that he was entitled
No. 04-1133 9

to damages for breach of contract and promissory estoppel

based on his dealings with US-99. Although the legal action

was originally filed in the United States District Court for

the District of New Mexico, the case was subsequently

transferred for trial to the Northern District of Illinois and,

after discovery, Infinity moved for summary judgment. The

district court granted Infinity’s motion, finding that both of

Dumas’ claims were controlled by Illinois law. Furthermore,

the court found that both of Dumas’ claims failed as a

matter of law because of his failure to produce sufficient

documentary evidence establishing the existence of a written

contract or agreement, as required by the Illinois statute of

frauds, between himself and Infinity. We affirm.

II. DISCUSSION

We review a district court’s grant of summary judgment

de novo, and will view all the facts and draw all reasonable

inferences therefrom in favor of the non-movant, Dumas.

Hardy v. Univ. of Ill. at Chicago, 328 F.3d 361, 364 (7th Cir.

2003); Architectural Metal Systems, Inc. v. Consolidated

Systems, Inc., 58 F.3d 1227, 1228 (7th Cir. 1995). Summary

judgment is proper only in cases where “there is no genuine

issue as to any material fact and the moving party is

entitled to judgment as a matter of law.” FED. R. CIV. P.

56(c); Smith v. Ball State Univ., 295 F.3d 763, 767 (7th Cir.

2002).

On appeal Dumas does not challenge the district court’s

finding that Illinois law controls nor does he challenge the

court’s determination that his breach of contract claim is

barred by the Illinois statute of frauds, which requires that

any “promise or agreement” that cannot be performed

within one year be documented in writing. Accordingly, the

only issue we are presented with on appeal is whether, as

a matter of law, Dumas has presented sufficient evidence to

establish a viable claim for promissory estoppel and what,

if any, application the statute of frauds has upon this claim.
10 No. 04-1133

8 It should be noted that under Illinois law a claim for equitable

estoppel, unlike promissory estoppel, is not subject to the requirements of the statute of frauds. See Dickens v. Quincy College

Corp., 245 Ill.App.3d 1055, 1062, 185 Ill.Dec. 822, 826, 615 N.E.2d

381, 385 (Ill. App. Ct. 1993) (citing Cohn v. Checker Motors Corp.,

233 Ill.App.3d 839, 845-46 (Ill. App. Ct. 1992)), accord Ozier v.

Haines, 411 Ill. 160, 165, 103 N.E.2d 485, 488 (Ill. 1952). However,

at no point in the proceedings either in this court or in the trial

court did Dumas advance a claim based on equitable estoppel

grounds. Thus, we will not consider whether the outcome of this

case would be altered by the introduction of a claim for equitable

estoppel.

Dumas presents this court with what can only be classified as a most confusing and convoluted argument. At the

outset, Dumas admits that he has no quarrel with the

district court’s determination that his breach of contract

claim is barred by Illinois’ statute of frauds because any

alleged contract between US-99 and himself could not be

established with the paucity of written evidence (e-mails)

presented to the district court. See 740 ILCS 80/1. Also,

Dumas readily concedes, as he must, that “his promissory

estoppel claim is [also] within the [scope of the] Illinois

statute of frauds.” Appellant’s Brief at 15; see Fischer v.

First Chicago Capital Markets, Inc., 195 F.3d 279, 284 (7th

Cir. 1999) (“Under Illinois law, the statute of frauds is

applicable to a promise claimed to be enforceable by virtue

of the doctrine of promissory estoppel.”); McInerney v.

Charter Golf, Inc., 176 Ill.2d 482, 492, 223 Ill.Dec. 911, 916,

680 N.E.2d 1347, 1352 (Ill. 1997).8

 Nonetheless, Dumas

claims that he can prevail, as a matter of law, on his

promissory estoppel claim by employing documentary

evidence, which he concedes falls short of satisfying the

Illinois statute of frauds for contract purposes, to establish

that Infinity made an unambiguous promise to employ him

under a promissory estoppel theory.
No. 04-1133 11

The Illinois Supreme Court has delineated a four-part

test to determine whether a claim premised on promissory

estoppel grounds may succeed, which requires a plaintiff to

prove that “(1) defendants made an unambiguous promise

to plaintiff, (2) plaintiff relied on such promise, (3) plaintiff’s

reliance was expected and foreseeable by defendants, and

(4) plaintiff relied on the promise to its detriment.” Quake

Constr., Inc. v. American Airlines, Inc., 141 Ill.2d 281, 309-

10, 152 Ill.Dec. 308, 322, 565 N.E.2d 990, 1004 (Ill. 1990)

(quoting Yardley v. Yardley, 137 Ill.App.3d 747, 754, 92

Ill.Dec. 142, 484 N.E.2d 873 (Ill. App. Ct. 1985)); see Bank

of Marion v. Robert “Chick” Fritz, Inc., 57 Ill.2d 120, 124,

311 N.E.2d 138, 140 (Ill. 1974). As we have noted in the

past, however, “[p]romissory estoppel is not a doctrine

designed to give a party . . . a second bite at the apple in the

event that it fails to prove a breach of contract.” See AllTech Telecom, Inc. v. Amway Corp., 174 F.3d 862, 869-70

(7th Cir. 1999) (quoting Walker v. KFC Corp., 728 F.2d

1215, 1220 (9th Cir. 1984)). Under Illinois law, a claim for

promissory estoppel will only succeed where all the other

elements of a contract exist, but consideration is lacking.

See Bank of Marion, 57 Ill.2d at 124. In such an instance

“[a]lthough there may be absent a bargained-for consideration, a person who makes a promise may nonetheless be

bound by its terms.” Id.; see Prentice v. UDC Advisory

Services, Inc., 271 Ill.App.3d 505, 512, 207 Ill.Dec. 690, 695,

648 N.E.2d 146, 151 (Ill. App. Ct. 1995); People v. Raymond,

202 Ill.App.3d 704, 708, 147 Ill.Dec. 878, 881, 560 N.E.2d

26, 29 (Ill. App. Ct. 1990); Moore v. Illinois Bell Telephone

Co., 155 Ill.App.3d 781, 785-86, 108 Ill.Dec. 358, 360, 508

N.E.2d 519, 521 (Ill. App. Ct. 1987). This is consistent with

the history of the doctrine of promissory estoppel, that it is

a common law equitable device wherein a contract may be

implied where none is found to exist, i.e., for lack of consideration. See Dickens, 245 Ill.App.3d at 1062. Thus, the

doctrine of promissory estoppel is applicable only under

certain narrow circumstances to serve “as substitute for
12 No. 04-1133

consideration or an exception to its ordinary requirement.”

Bank of Marion, 57 Ill.2d at 124. It necessarily follows that

where there is “no issue of consideration, there is no gap in

the remedial system for promissory estoppel to fill.” AllTech Telecom, Inc., 174 F.3d at 869; see also Destron, Inc. v.

Continental Illinois National Bank & Trust Co., 59 B.R.

240, 245 (Bankr. N.D. Ill. 1986) (“Promissory estoppel does

not establish a contract, but is merely a substitute for

consideration.”).

Also, the Illinois statue of frauds—which Dumas agrees

is applicable—precludes the enforcement of any promise to

employ that cannot be performed within one calender year

“unless the promise or agreement upon which such action

shall be brought, or some memorandum or note thereof,

shall be in writing, and signed by the party to be charged

therewith, or some other person thereunto by him lawfully

authorized.” 740 ILCS 80/1. The statute of frauds’ writing

requirement “is not [intended] to enable parties ‘to repudiate contracts that have in fact been made; it is only to prevent the fraudulent enforcement of asserted contracts that

were not made.’ ” Rose v. Mavrakis, 343 Ill.App.3d 1086,

1097, 278 Ill.Dec. 751, 760, 799 N.E.2d 469, 478 (Ill. App.

Ct. 2003) (quoting Haas v. Cravatta, 71 Ill.App.3d 325, 328-

29, 27 Ill.Dec. 414, 389 N.E.2d 226 (Ill. App. Ct. 1979)).

Thus, in order to succeed on his claim of promissory

estoppel, Dumas must—as a threshold matter—present to

the court written evidence of an “unambiguous promise”

which, but for the existence of bargained-for consideration,

would constitute an enforceable contractual agreement

under Illinois law—something which he has failed to accomplish.

In the ordinary course of litigation of this nature it is

commonplace for the plaintiff, after having been unsuccessful in producing written documentation of an alleged oral

contract as required by the statute of frauds, to seek to

recover under the alternate theory of promissory estoppel.

See McInerney, 176 Ill.2d at 492. In such a case, since the
No. 04-1133 13

9 Also, it should be noted that although a lack of consideration is

the only reason that courts generally will award damages on the

(continued...)

statute of frauds applies with equal force under either a

breach of contract or promissory estoppel theory under

Illinois law, it is unnecessary for the courts to undertake a

separate promissory estoppel analysis, for the statute of

frauds per se cannot be satisfied. See Fischer, 195 F.3d at

283-84. The only substantive difference between that

scenario and the situation before us, is Dumas’ additional

claim that, although the documents he submitted to the

district court (admittedly) failed to satisfy the elements of

an enforceable contract, they might conceivably constitute

an unambiguous promise to employ. We agree with the

reasoning employed by the district court and are of the

opinion that it is unnecessary for a court, once satisfied that

the statute of frauds could not be satisfied concerning a

breach of contract claim, to undertake a separate analysis

of whether or not an “unambiguous promise” exists for

promissory estoppel purposes, for the outcome would be the

same in either instance.

The district court properly determined, and Dumas

agrees, that the documentary evidence he presented in the

form of e-mails falls short of establishing the essential elements of a contract, e.g., offer, acceptance and a meeting of

the minds. Thus, the Illinois statute of frauds’ requirement

that documentary evidence of a “promise or agreement” be

produced could not be satisfied. See 740 ILCS 80/1. The absence of the essential elements of a contract also effectively

foreclosed any legitimate promissory estoppel argument

that he may have had, for as we have explained, Illinois law

requires that, but for consideration, all other elements of a

contractual agreement exist in conjunction with such a

claim. See Bank of Marion, 57 Ill.2d at 124; Prentice, 271

Ill.App.3d at 512; Raymond, 202 Ill.App.3d at 708; Moore,

155 Ill.App.3d at 785-86.9

 In addition, by failing to establish
14 No. 04-1133

9 (...continued)

basis of promissory estoppel, Dumas has not alleged that consideration was lacking. Under Illinois law, “[c]onsideration consists of some detriment to the offeror, some benefit to the offeree,

or some bargained-for exchange between them.” Doyle v. Holy

Cross Hosp., 186 Ill.2d 104, 112, 237 Ill.Dec. 100, 105, 708 N.E.2d

1140, 1145 (Ill. 1999) (citing Lipkin v. Koren, 392 Ill. 400, 406, 64

N.E.2d 890 (Ill. 1946)). And, “[a]ny act or promise which is of

benefit to one party or disadvantage to the other is a sufficient

consideration to support a contract.” Id. (quoting Steinberg v.

Chicago Medical School, 69 Ill.2d 320, 330, 13 Ill.Dec. 699, 371

N.E.2d 634 (Ill. 1977)). Indeed, the contract that Dumas alleged

did encompass a “bargained-for” exchange in that Dumas claimed

that he would be paid certain amounts of money ($175,000 to

start) for hosting the morning show at US-99 over a five-year

period, with the mutual option to continue his employment for

another five years. See supra p. 6. The fact that consideration

likely existed effectively extinguished any promissory estoppel

claim that Dumas may have had. See Bank of Marion, 57 Ill.2d at

124; All-Tech Telecom, Inc., 174 F.3d at 869; Destron, Inc., 59 B.R.

at 245. As this court has noted, to allow the doctrine of promissory

estoppel to be invoked where consideration exists, “becomes a

gratuitous duplication or, worse, circumvention of carefully

designed rules of contract law.” All-Tech Telecom, Inc., 174 F.3d

at 869.

a valid agreement or promise sufficient to satisfy the

statute of frauds while proceeding under a breach of contract theory, he likewise, on the record before us, has been

unsuccessful in establishing a promise—much less an

“unambiguous” promise—under the doctrine of promissory

estoppel. See Moore, 155 Ill.App.3d at 785-86. It is only logical to conclude that, where a plaintiff is unable to establish

a written “promise or agreement” sufficient to satisfy the

statute of frauds under the traditional requirements of

contract law, he will also per se be unable to demonstrate

the existence of an “unambiguous promise” for promissory

estoppel purposes, for the promissory estoppel standard is

more rigorous. Quake Constr., Inc., 141 Ill.2d at 309-10; see
No. 04-1133 15

10 Dumas argued in the district court that Aurand’s April 8, 2002

e-mail outlining potential salaries and his response that “something in the 175 to 225 range seems right” constituted an offer (or

promise in terms of his promissory estoppel claim) to pay Dumas

a salary no lower than $175,000. See supra p. 5; see also

Appellant’s Brief at 20 (“In view of Infinity’s offer in 2000 to start

Dumas at $150,000 and increase his salary over five years . . . a

jury could find that [Aurand] was assuring Dumas that he would

be offered a position starting at, at least, $175,000 . . . [and] recovery can be had based on promissory estoppel ‘when the promise is

unambiguous on the downside but not on the upside.’ ”) (citing

Goldstick v. ICM Realty, 788 F.2d 456, 462 (7th Cir. 1986)).

Contrary to Dumas’ arguments that these e-mails constitute a

“promise or agreement” to employ, we agree with Judge

Holderman’s finding that “[n]either of these writings establish that

a salary was ever actually agreed upon . . . [and] [t]hus, these

writings cannot establish to a reasonable certainty the salary of

the alleged contract.” Dumas, 2003 WL 23509644, at *7.

Likewise, Dumas claims that an e-mail he received on May 20,

2002 from Aurand evinces a promise to employ on Infinity’s part.

See supra p. 6. However, in that e-mail Aurand simply outlines

(continued...)

also Phillips v. Britton, 162 Ill.App.3d 774, 785-86, 114

Ill.Dec. 537, 545, 516 N.E.2d 692, 700 (Ill. App. Ct. 1987)

(holding that “[t]he promise which the Phillipses contend to

have made in this case, however, is the same as the agreement underlying their claim for breach of contract, and the

evidence adduced by them with respect to each is

identical . . . [and] just as we believe that the trial court

could have found that the terms of the agreement were not

clear, definite and unequivocal, we therefore likewise

believe that it could have determined that the promise was

not unambiguous”). Thus, we are of the opinion that the

district court properly granted Infinity’s motion for “summary judgment on Dumas’s promissory estoppel claim

because [such a] claim is not available to avoid the statute

of frauds.” Dumas v. Infinity Broadcasting, Corp., No. 03-C4713, 2003 WL 23509644, at *10 (N.D. Ill. Dec. 18, 2003).10
16 No. 04-1133

10 (...continued)

what the program would likely consist of if Dumas were to become

an employee. We agree with the district court that this e-mail

does not “state with a reasonable certainty” the elements of either

a promise or a valid, legally enforceable contract. See Dumas,

2003 WL 23509644, at *7.

The fact is that none of the documents Dumas presented the

court with, either on their own or taken collectively, constitute

either a legally binding contract or a “promise or agreement” to

employ Dumas. See JamSports & Entertainment, LLC v.

Paradama Productions, Inc., 336 F.Supp.2d 824, 849-50 (N.D. Ill.

2004). Thus, just as Dumas’ breach of contract claim failed, so too

must his promissory estoppel claim, for it is barred by application

of the Illinois statute of frauds.

Dumas disagrees with this conclusion and argues instead

that “sufficient documentary evidence [of a promise to

employ was] submitted to the district court . . . to satisfy

the statute of frauds for purposes of [his] promissory

estoppel claim,” Appellant’s Brief at 21, even though that

promise was “not definite enough to support a breach of

contract claim.” Appellant’s Reply Brief at 2. As support for

his argument he cites to two of this court’s opinions in

Goldstick v. ICM Realty, 788 F.2d 456 (7th Cir. 1986) and

Architectural Metal Systems, Inc. v. Consolidated Systems,

Inc., 58 F.3d 1227 (7th Cir. 1995). However, these cases are

distinguishable. In Architectural Metal Systems, Inc., the

court was not dealing with the Illinois statute of frauds, but

rather was dealing with UCC § 2-201. See Architectural

Metal Systems, Inc., 58 F.3d at 1230-31. In addition, we

concluded that a written promise, in the form of a price

quotation, existed in that case. See id. Thus, the statute of

frauds was not implicated and did not preclude or otherwise

impinge on the plaintiff’s claim of promissory estoppel. Id.

at 1231. Likewise, in Goldstick this court declined to decide

the question of whether the statute of frauds was applicable

to the plaintiff-appellant’s promissory estoppel claim due to

uncertainty in Illinois law at that time as to whether the
No. 04-1133 17

promise at issue could have reasonably been completed

within one year. See Goldstick, 788 F.2d at 464-66. There is

no question that the statute of frauds applies to both of

Dumas’ claims for promissory estoppel and breach of

contract. See Bank of Marion, 57 Ill.2d at 124. And, as we

have explained, it is the application of the statute of frauds

coupled with the lack of any written promise or agreement

that defeats his promissory estoppel claim.

This decision is consistent with Illinois case law recognizing that it is only proper to conclude that “if the statute of

frauds bars enforcement of an oral contract which cannot be

performed within one year, it also bars the courts from

using promissory estoppel to imply the existence of a

contract which cannot be performed within one year.”

Dickens, 245 Ill.App.3d at 1063 (emphasis added). The fact

that Dumas has presented a number of written documents,

in the form of e-mails, to augment what essentially is an

alleged oral contract, does not change the reality that those

documents, when viewed in their entirety, do not amount to

a written contract. At best, they represent an unenforceable

promise or agreement (even assuming a promise or agreement existed) due to the operation of the statute of frauds

and cannot form the basis of any claim premised on a

theory of contract law or promissory estoppel. After all,

there was only one “promise or agreement” at issue here for

the purpose of establishing the existence of either a contract

or promissory estoppel claim—the alleged promise to

employ Dumas. This result may seem harsh, but as a

number of Illinois courts have pointed out “the moral wrong

of refusing to be bound by an agreement which is not in

compliance with the statute of frauds does not warrant the

application of the doctrine of promissory estoppel since the

breach of a promise which is not regarded as binding under

the law is not fraud.” See Dickens, 245 Ill.App.3d at 1062-63

(citing Libby-Broadway Drive-In, Inc. v. McDonald’s System,

Inc., 72 Ill.App.3d 806, 810-11, 28 Ill.Dec. 802, 805, 391
18 No. 04-1133

11 Although the Illinois Supreme Court has not decided this precise issue, as a federal court sitting in diversity we are charged

with predicting how that court would decide if presented with the

identical issue. See Taco Bell Corp. v. Continental Casualty Co.,

388 F.3d 1069, 1077 (7th Cir. 2004). We are convinced that, given

the unanimity of the Appellate Courts of Illinois’ decisions on this

issue and the nature of previous Illinois Supreme Court decisions

on the subject, the supreme court would decide as we do today and

hold that Dumas’ promissory estoppel claim is barred by the

statute of frauds. See Bank of Marion, 57 Ill.2d at 124; Quake

Constr., Inc., 141 Ill.2d at 309-10; Doyle, 186 Ill.2d at 118

(Freeman, C.J., concurring in part and dissenting in part, joined

by McMorrow, J.); see also Prentice, 271 Ill.App.3d at 512;

Raymond, 202 Ill.App.3d at 708; Moore, 155 Ill.App.3d at 785-86.

Indeed, a handful of Illinois Appellate Courts have gone even

further and held that promissory estoppel “is not a proper vehicle

for direct relief,” and is only “meant to be utilized as a defensive

mechanism—not as a means of attack.” See DeWitt v. Fleming, No.

05-04-0016, 2005 WL 846083, at *3 (Ill. App. Ct. 2005) (quoting

ESM Development Corp. v. Dawson, 342 Ill.App.3d 688, 695, 277

Ill.Dec. 30, 35, 795 N.E.2d 397, 402 (Ill. App. Ct. 2003)). In DeWitt,

the Appellate Court of Illinois reasoned that “an explicit rule of

law that promissory estoppel exists only for defensive purposes in

Illinois promotes the stability and integrity of Illinois jurisprudence and provides attorneys practicing in Illinois, as well as their

clients, with a clear, stable guidepost to which they may conform

themselves.” Id. However, given the relatively novel nature of

these holdings and the lack of comment either by the Illinois

Supreme Court or any other Appellate Court of Illinois outside the

Fourth and Fifth Districts, we are reticent to speculate as to how

the supreme court would deal with the issue. Cf. Taco Bell Corp.,

388 F.3d at 1077.

N.E.2d 1, 4 (Ill. App. Ct. 1979). Thus, the district court’s

uncontested determination that the essential elements of a

contract did not exist foredoomed his promissory estoppel

claim as well, and Dumas was not entitled to “a second bite

at the apple.”11 See All-Tech Telecom, Inc., 174 F.3d at 869-

70.
No. 04-1133 19

III. CONCLUSION

The decision of the district court is

AFFIRMED.

A true Copy:

Teste: 

 ________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit 

USCA-02-C-0072—8-1-05