                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 13a0533n.06

                                           No. 12-3835
                                                                                      FILED
                          UNITED STATES COURT OF APPEALS                           May 31, 2013
                               FOR THE SIXTH CIRCUIT                         DEBORAH S. HUNT, Clerk


DONNA MARIE MANWARING,                                    )
                                                          )   ON APPEAL FROM THE
       Plaintiff-Appellant,                               )   UNITED STATES DISTRICT
                                                          )   COURT FOR THE
v.                                                        )   NORTHERN DISTRICT OF
                                                          )   OHIO
ERICK MARTINEZ; NELDA, LLC; NORTHERN                      )
OHIO RESTAURANT GROUP, LLC,                               )                       OPINION
                                                          )
       Defendants-Appellees.                              )
                                                          )
                                                          )



BEFORE: NORRIS, COOK, and McKEAGUE, Circuit Judges.

       McKEAGUE, Circuit Judge. Donna Manwaring claims that Erick Martinez breached an

agreement under which the two of them were to become co-owners in two companies created to own

and operate Denny’s Restaurant franchises. She asserts claims for breach of contract and promissory

estoppel. The district court granted summary judgment in favor of the defendants (Erick and the two

companies). It found that the alleged agreement was unenforceable because it fell within the one-

year provision of Ohio’s Statute of Frauds and was not memorialized in a sufficient writing. It

further found that Donna had not identified the detrimental reliance necessary to create a genuine

issue of material fact on her promissory estoppel claim. We vacate the district court’s grant of

summary judgment on the breach of contract claim and affirm the grant of summary judgment on

the promissory estoppel claim.
No. 12-3835
Manwaring v. Martinez et al.

                                       I. BACKGROUND

       As alleged by Donna, the pertinent facts are these:

       Donna and Erick both worked as executives for Denny’s Corporation. In 2006, Donna and

Erick began an intimate personal relationship during a business trip, although both were married to

other people at the time. A month later, Donna was promoted and began reporting directly to Erick.

       In the spring of 2007, Denny’s informed some of its executives, including Donna and Erick,

that it was developing a “franchise growth initiative” designed to shift ownership of a number of

restaurants from the company to franchisees. The plan involved laying off employees and giving

them the option of purchasing restaurants and becoming franchisees. Donna’s responsibilities at

Denny’s included rolling out the franchise growth initiative and facilitating the transition process.

Donna received a bonus for each restaurant she helped convert to a franchise.

       As a result of the franchise growth initiative, Erick was laid off in September 2007. Donna

learned that she also would eventually be laid off.

        Sometime after learning about the franchise growth initiative, Donna and Erick met in

Dallas, Texas, where Erick resided, and stayed together at a hotel. During their stay, they discussed

their post-Denny’s future. They talked about teaming up to take advantage of the franchise growth

initiative and become Denny’s franchisees. They decided to purchase restaurants in northern Ohio,

because Donna had been supervising those restaurants and was familiar with them.               They

contemplated each owning 50% of any companies they would form to own and operate the

restaurants. They contemplated sharing profits equally as equal co-owners. Due to Donna’s

continued employment with Denny’s (and the corresponding conflict of interest), they decided that

                                                -2-
No. 12-3835
Manwaring v. Martinez et al.

her name would not be listed on any franchise proposals or operating agreements until after Donna

ended her employment with Denny’s.

       Within a month of their Dallas rendezvous, Donna and Erick decided to implement their plan.

As they had discussed in Dallas, they agreed that they would each own 50% of an entity set up to

own and operate the restaurants. Erick would finance the undertaking while Donna would handle

the day-to-day operations of the restaurants. They decided to retain as much of the earnings from

the venture as possible to repay Erick’s capital contributions and other debt and further agreed that

until Erick recovered these contributions, Donna would not receive any compensation except as

necessary to cover her living expenses. Erick promised to add Donna as an equal co-owner of the

business after her employment with Denny’s ended.

       In October 2007, Donna and Erick met with an attorney to discuss forming a limited liability

company. They explained that Donna’s employment with Denny’s precluded including her name

on the operating agreement. A short time later, Donna and Erick returned to the attorney’s office and

formed NELDA, LLC.

       Erick and Donna worked together to select restaurants, prepare franchise applications, and

obtain financing. By the end of the year, the first four Denny’s restaurants were transferred to

NELDA. During the next six months, Donna managed the operations of the NELDA franchises

while also working for Denny’s. She communicated with the restaurant managers and vendors and

made all operational decisions.

       In June 2008, Donna was laid off. She did not look for another job because of her role with

NELDA.      After her layoff, Donna received substantial severance pay.          She also received

                                                -3-
No. 12-3835
Manwaring v. Martinez et al.

unemployment benefits, which continued until February 2009. At first NELDA did not pay Donna

a salary, but Erick covered some of her living expenses, and she had access to NELDA accounts for

other personal expenses.

        Shortly after Donna was laid off, she and Erick discussed acquiring an additional restaurant

in Ohio and jointly developed a pro forma for the unit. Erick submitted the application individually

on behalf of NELDA after insisting the acquisition process would proceed more efficiently this way.

He promised to add Donna’s name to NELDA’s operating agreement as soon as the acquisition

process was complete.

        By May 2008, Donna and her husband had separated and planned to seek a divorce. Erick

continued to delay adding Donna’s name to NELDA’s operating agreement, now expressing his

concern that Donna’s husband might pursue part of her interest were she listed as an owner.

Purportedly based on similar concerns, Erick also removed Donna’s name from NELDA’s bank

account and replaced it with the name of his wife, Ana Martinez, also telling Donna that he wanted

his wife to have sufficient means to care for their daughter in the event of his death.

        Donna’s divorce was finalized in February 2009, and NELDA gave her $25,000 so she could

pay off her husband’s interest in their marital home. NELDA also began paying Donna a salary at

this time.

        In September 2009, Donna and Erick decided to acquire a new group of Denny’s restaurants

located in Flying J truck stops and, after consulting with NELDA’s accountants, decided to form a

new LLC to pursue this venture. They agreed that they would each own half of this new company.

Erick contacted their attorney and set up a meeting to form Northern Ohio Restaurant Group

                                                -4-
No. 12-3835
Manwaring v. Martinez et al.

(“NORG”), LLC. Because Donna could not make the meeting, Erick met alone with the attorney

and individually formed NORG, promising Donna that he would amend the operating agreement to

include her 50% interest and at the same time amend NELDA’s operating agreement.

       Toward the end of 2009, the parties’ professional relationship was deteriorating, although

they continued their intimate relationship. Donna had begun to suspect that Erick was lying about

a number of aspects of their professional and personal relationships, including his purported

separation from his wife. They had several heated arguments, which culminated in a three-person

telephone call in January 2010 between Donna, Erick, and Ana. During this call, Erick told Donna

she was “fired.”

       After this fallout, Erick continued to assist Donna financially from NELDA funds. But the

money dried up once Erick learned that Donna had hired an attorney to pursue legal recourse.

       In January 2011, Donna sued Erick, NELDA, and NORG in Ohio state court. The defendants

removed the case to the United States District Court for the Northern District of Ohio. By the time

the defendants filed a motion for summary judgment, two claims remained: breach of contract and

promissory estoppel. The district court granted summary judgment for the defendants on both.

Donna timely appealed.

                                         II. ANALYSIS

A. Standard of Review

       We review de novo a district court’s grant of summary judgment. Summers v. Leis, 368 F.3d

881, 885 (6th Cir. 2004). Summary judgement is proper when “the movant shows that there is no

genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.”

                                               -5-
No. 12-3835
Manwaring v. Martinez et al.

Fed. R. Civ. P. 56(a). When reviewing a grant of summary judgment, we must view the evidence

and draw all reasonable inferences in favor of the non-moving party. See Matsushita Elec. Indus.

Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).

B. The One-Year Provision of the Statute of Frauds

       The parties agree that Ohio law governs their dispute. The trickiest issue we must resolve

is whether the parties’ alleged agreement falls within the one-year provision of Ohio’s Statute of

Frauds. Under the one-year provision,

       [n]o action shall be brought whereby to charge the defendant . . . upon an agreement
       that is not to be performed within one year from the making thereof[] unless the
       agreement upon which such action is brought, or some memorandum or note thereof,
       is in writing and signed by the party to be charged therewith . . . .

Ohio Rev. Code Ann. § 1335.05.

       The district court concluded that the alleged agreement in this case fell within this provision

of the Statute. In reaching this conclusion, we perceive that the district court made two errors: a

factual error and a legal error. We begin with the factual error.

       1. Factual Error: Misapprehending the Alleged Agreement

       The parties disagree about the nature of the agreement Donna claims Erick breached. The

district court referred to this agreement as a “partnership agreement.” By doing so, Donna contends

that it misapprehended the agreement.

       Donna says she is not alleging that Erick breached a partnership agreement, but rather is

alleging that he breached an agreement under which she was to become a co-owner of NELDA and

NORG. In response, Erick contends that Donna “has tried to re-cast her breach of contract claim”


                                                -6-
No. 12-3835
Manwaring v. Martinez et al.

on appeal. Appellee Br. 17. He maintains that in the district court she described the agreement as

“an agreement that she was an owner of the companies,” whereas on appeal she is now describing

the agreement as “a promise that she would become an owner of the companies.” Id.

       Viewing the alleged agreement as a partnership agreement, which is apparently how the

district court viewed it, makes little sense to us. Donna could hardly have taken the position that she

was an existing partner since NELDA and NORG are LLCs, not partnerships, and it is undisputed

that Erick is their sole member. Although her deposition testimony was not entirely clear, she

appears to have alleged relatively consistently that the agreement was for her and Erick to each own

50% of the companies they would create to operate Denny’s restaurants.

       In short, we view the alleged agreement in this case as an agreement to become the future co-

owners of companies created to operate Denny’s franchises. Under this agreement, Erick was to be

listed as the initial owner and Donna was to be added as an equal co-owner later.

       2. Legal Error: Considering the Parties’ Intent

       The district court also erred legally when in the course of its Statute of Frauds analysis it

considered Donna’s intent that the parties’ business relationship would last more than one year.

       In 1995, the Ohio Supreme Court clearly and succinctly explained how to apply the one-year

provision of the Statute of Frauds:

               For over a century, the “not to be performed within one year” provision of the
       Statute of Frauds, in Ohio and elsewhere, has been given a literal and narrow
       construction. The provision applies only to agreements which, by their terms, cannot
       be fully performed within a year, and not to agreements which may possibly be
       performed within a year. Thus, where the time for performance under an agreement
       is indefinite, or is dependent upon a contingency which may or may not happen
       within a year, the agreement does not fall within the Statute of Frauds.

                                                 -7-
No. 12-3835
Manwaring v. Martinez et al.

Sherman v. Haines, 652 N.E.2d 698, 700 (Ohio 1995) (emphasis added).

        Under the approach described in Sherman, this case is easy; no term of the alleged

agreement—no matter how it is viewed— required performance to last more than one year. But

after quoting the applicable language from Sherman, the district court went on to consider “whether

the parties intended the alleged agreement to last more than one year.” R. 52, Order, PageID # 691.

The district court said that if the parties intended their agreement to last more than one year, it would

fall within the Statute. Because Donna said during her deposition that she was supposed to remain

an owner of the company “indefinitely” and for “years and years,” the district court found that “the

parties intended the partnership to last more than one year,” and concluded that the alleged

agreement fell within the Statute. Id. at 691-92.

        The district court believed that this approach was mandated by a recent decision from the

Ohio Supreme Court: Olympic Holding Co., L.L.C. v. ACE Ltd., 909 N.E.2d 93 (Ohio 2009). In

Olympic Holding the court confronted several issues arising out of an alleged joint venture

agreement between a New York title reinsurance company and several Ohio title insurance

companies. Id. at 95-96. The parties had exchanged several rounds of term sheets, but they had

never prepared or signed a final written joint venture agreement. Id. at 96-97. The main issue in the

case was “whether breaching a promise to execute an agreement equitably removes the agreement

from the statute of frauds.” Id. at 98-99. The court held that it does not. Id. at 100. It then went on

to consider whether the alleged agreement fell within the one-year provision of the Statute of

Frauds—a question that had not been resolved by the court below. Id. at 102. Its analysis of this

issue spans only four sentences.

                                                  -8-
No. 12-3835
Manwaring v. Martinez et al.

       Although Sherman was the last time the Ohio Supreme Court had applied the one-year

provision and contains the court’s clearest explanation of that provision, in Olympic Holding the

court did not mention Sherman. Instead the court cited two cases—an opinion from the Northern

District of Ohio and an unreported opinion from an Ohio Court of Appeals—for the proposition that

“[w]hen parties to an alleged agreement did not intend the agreement to be performed in less than

a year, the statute of frauds renders that agreement unenforceable.” Id. The court concluded that

since “the parties envisioned that the proposed joint venture agreement would last five years,” it fell

within the Statute of Frauds. Id.

       The Ohio Supreme Court’s language in Olympic Holding is problematic. By indicating that

courts should consider the parties’ intent, the court’s opinion in Olympic Holding appears to conflict

with its opinion in Sherman, where the court emphasized that the one year provision is construed

narrowly and “applies only to agreements which, by their terms, cannot be fully performed within

a year.” Sherman, 652 N.E.2d at 700. However, in our view the conflict is only superficial, as we

will explain below.

       To appreciate the problem with the court’s language in Olympic Holding, we think it is

instructive to consider in some detail a venerable United States Supreme Court case the court cited

in Sherman. In Warner v. Texas & Pacific Railway Company, the Supreme Court applied the one-

year provision of Texas’s Statute of Frauds, which was essentially identical to Ohio’s. 164 U.S. 418,

420 (1896).

       Warner was a lumberman who entered into an oral contract with a railroad. Id. at 419. He

had located the perfect spot for a sawmill, but it was three miles from the nearest railway. Id. The

                                                 -9-
No. 12-3835
Manwaring v. Martinez et al.

railroad agreed that if Warner graded the ground and laid the railroad ties, it would lay the rails to

extend a “switch” to his sawmill and would maintain the switch as long as he needed it. Id. Warner

graded the ground and laid the ties, the railroad laid the rails, and for many years Warner shipped

his lumber via the switch. Id. Warner testified that he expected to operate the sawmill for more than

a year and indeed intended to remain there for the rest of his life. Id. at 419-20. He told the

railroad’s agent that there was enough timber in the vicinity to keep his sawmill busy for thirty years.

Id. at 420.

        After thirteen years the railroad destroyed the switch. Id. at 419. Warner sued for breach of

contract. Id. at 418. The Fifth Circuit held that the parties’ oral agreement was within the one-year

provision of Texas’s Statute of Frauds and was unenforceable. Id. at 420.

        The Supreme Court reversed. It spent several pages discussing cases both from England and

the United States that had construed the one-year provision. Id. at 421-33. It then applied the

principles gleaned from those cases and concluded that the agreement to maintain the switch did not

fall within the one-year provision since its terms did not require it to last longer than a year and the

contract could have terminated within a year if Warner had died or otherwise stopped needing the

switch within that time. Id. at 434-35. The parties’ intent that the contract continue for more than

a year and the likelihood that it would do so were irrelevant because the parties “made no stipulation

which, in terms, or by reasonable inference, required that result.” Id. at 434 (emphasis added).

According to the Supreme Court, when applying the one-year provision “[t]he question is not what

that probable, or expected, or actual performance of the contract was, but whether the contract,



                                                 - 10 -
No. 12-3835
Manwaring v. Martinez et al.

according to the reasonable interpretation of its terms, required that it should not be performed

within the year.” Id. (emphasis added).

       Under Sherman and Warner, the alleged agreement in this case—even as it was construed

by the district court—falls outside the one-year provision of the Statute of Frauds. Donna’s intent

as to the duration of the business relationship is irrelevant. No term of the alleged agreement

required that any aspect of performance extend beyond a year. Just as Warner could have stopped

needing the switch within one year, the parties here could have dissolved the companies or Donna

could have sold her interest within one year, rendering the contract fully performed within that time.

       Commentators have recognized that considering the parties’ intent when applying the Statute

of Frauds is “not in accord with the trend of authority” and “should not be approved.” 4-19 Corbin

on Contracts § 19.3 (2012); see also Richard A. Lord, Williston on Contracts § 24:1 (4th ed. 2013)

(describing this approach as “contrary to the great weight of authority”). We recognize that some

Ohio Courts of Appeals have apparently adopted the intent approach. See Lingo v. Ohio Cent. R.R.,

2006 WL 1230679, at *11 (Ohio Ct. App. 2006); Mills v. Mills, 127 N.E.2d 222, 223-24 (Ohio Ct.

App. 1952). We cannot disregard these cases, but we believe that the Ohio Supreme Court would

not follow their approach. See West v. American Tel. & Tel. Co., 311 U.S. 223, 237 (1940) (“Where

an intermediate appellate state court rests its considered judgment upon the rule of law which it

announces, that is datum for ascertaining state law which is not to be disregarded by a federal court

unless it is convinced by other persuasive data that the highest court of the state would decide

otherwise.”). These cases are inconsistent with Sherman and not in keeping with the generally

accepted approach to the Statute of Frauds.

                                                - 11 -
No. 12-3835
Manwaring v. Martinez et al.

       Unlike the district court, we do not read Olympic Holding as directing us to depart from the

majority approach to the Statute of Frauds. It seems incredible that in merely four sentences and

with no explanation, the Ohio Supreme Court would depart from the standard approach to the Statute

of Frauds, an approach it had earlier approved in Sherman. Furthermore, although in Olympic

Holding the court cited two cases that considered the parties’ intent, Olympic Holding is easily

distinguished from those cases and reconciled with Sherman and Warner. In Olympic Holding, one

of the agreement’s terms was that the joint venture would last for five years. The agreement was a

contract that by its terms could not be performed within a year. As such, it of course fell within the

Statute. The court’s reference to the parties’ intent is best interpreted to mean their intent that was

expressed as a term of their oral contract. Olympic Holding does not require us to depart from the

approach clearly explained in Sherman.

       In sum, the district court committed both a factual error and a legal error in its application

of the one-year provision of the Statute of Frauds. It erred factually when it construed the alleged

agreement as a partnership agreement rather than as an agreement to become co-owners in future

companies. It erred legally when it considered Donna’s intent to determine whether the agreement

fell within the one-year provision of the Statute of Frauds. Because the alleged agreement to become

co-owners did not by its terms require any aspect of performance to last beyond a year, it is not

within the Statute of Frauds.

C. Certainty

       Invoking the rule that this Court can affirm based on any ground supported by the record,

Erick contends that the alleged agreement is not enforceable “because there was no meeting of the

                                                - 12 -
No. 12-3835
Manwaring v. Martinez et al.

minds between the parties as to the essential terms of an agreement.” Appellee Br. 22-23. Because

the district court found the alleged agreement unenforceable under the Statute of Frauds, it did not

reach this issue. Although he discusses Ohio’s “meeting of the minds” requirement at length, the

thrust of Erick’s argument appears to be directed toward what he believes is a lack of definiteness

in the alleged agreement. His basic contention is that in her deposition Donna did not identify

enough specific terms to constitute an enforceable agreement. He identifies a whole litany of what

he believes are important terms that she left out. In response, Donna points out that Erick’s brief

completely ignores the contractual terms she identified in her affidavit.

       For an agreement to be enforceable, its terms must be “definite and certain.” See Episcopal

Ret. Homes, Inc. v. Ohio Dep’t of Indus. Relations, 575 N.E.2d 134, 137 (Ohio 1991). “The terms

of a contract are reasonably certain if they provide a basis for determining the existence of a breach

and for giving an appropriate remedy.” Restatement (Second) of Contracts § 33 (1981). In her

affidavit, Donna alleged that she and Erick agreed to each own half of a company they would set up

to operate Denny’s franchises. Erick was to provide the capital and she was to handle the operations.

Until Erick recouped his capital contributions and the company paid down its loans, Donna would

only receive enough money for living expenses. Then they would share equally in the profits.

Donna would be added to the company’s operating agreement after Denny’s terminated her

employment. R. 45-1, Affidavit, PageID # 334-335, 352.

       Although Erick is correct that Donna did not identify all the terms that could be included in

a formal partnership agreement, she is alleging that he breached an agreement to be co-owners in a

future company, not that he breached an existing partnership agreement. She identified the

                                                - 13 -
No. 12-3835
Manwaring v. Martinez et al.

agreement’s terms with sufficient certainty to determine whether Erick breached the agreement and

to select an appropriate remedy. The alleged agreement is not unenforceable on the ground of

indefiniteness.

D. Promissory Estoppel

       Donna asserted a claim for promissory estoppel in addition to her claim for breach of

contract. “The doctrine of promissory estoppel comes into play where the requisites of contract are

not met, yet the promise should be enforced to avoid injustice.” Olympic Holding, 909 N.E.2d at

100 (quotation omitted). “To be successful on a claim of promissory estoppel, the party claiming

the estoppel must have relied on conduct of an adversary in such a manner as to change his position

for the worse and that reliance must have been reasonable in that the party claiming estoppel did not

know and could not have known that its adversary’s conduct was misleading.” Id. at 101 (quotations

omitted). If Donna loses on her breach of contract claim, she seeks to recover on her promissory

estoppel claim.

       The district court found that Donna failed to produce evidence showing that she detrimentally

relied on Erick’s promise to make her a co-owner of NELDA and NORG. On appeal, Donna points

to four ways in which she believes she can show detrimental reliance. We address them each in turn.

       1. Contribution of Bonuses to NELDA

       Donna contends that she detrimentally relied on Erick’s promises by contributing to NELDA

approximately $18,000 in bonuses she received for her work during Denny’s franchise growth

initiative. These bonuses were deposited into Donna’s bank account, which Erick controlled. In her

affidavit (which was prepared after Erick filed his motion for summary judgment) Donna said both

                                               - 14 -
No. 12-3835
Manwaring v. Martinez et al.

that “upon information and belief, I believe that these bonuses were contributed to Nelda” and that

“[i]n fact, I contributed my FGI bonuses” to NELDA. R. 45-1, Affidavit, PageID # 334, 351. The

district court refused to consider these statements, finding that they directly contradicted statements

she made during her deposition.

       Donna contends that the district court erred in not considering the statements in her affidavit

as evidence of detrimental reliance. We review for an abuse of discretion a district court’s decision

to strike statements in a post-summary-judgment-motion affidavit for being contradictory to an

earlier deposition. Aerel, S.R.L. v. PCC Airfoils, L.L.C., 448 F.3d 899, 906 (6th Cir. 2006). “A

directly contradictory affidavit should be stricken unless the party opposing summary judgment

provides a persuasive justification for the contradiction.” Id. at 908.

       The district court correctly found that Donna’s affidavit contradicted her deposition. During

her deposition she said that her bonuses “were to be contributed to NELDA.” R. 46, Deposition,

PageID # 499. But she then admitted that she had “no idea” if she contributed all her bonuses to

NELDA; had no knowledge if any of the bonuses were used for NELDA expenses or obligations;

had no reason to believe that any of the bonuses were spent for NELDA purposes; had not seen

anything that would indicate that any of the bonuses were spent for NELDA purposes; and was not

aware of any documents that would demonstrate that the bonuses were contributed to NELDA. Id.

at # 499-500. She also said that she could not testify that she made any financial investments in

NELDA. Id. at 501.

       Donna feebly asserts that it was not directly contradictory for her to say in her deposition that

she did not know whether any of her bonuses went to NELDA and then later maintain that her

                                                - 15 -
No. 12-3835
Manwaring v. Martinez et al.

bonuses were contributed to NELDA. Apparently she believes a direct contradiction would exist

only if she had explicitly said in her deposition that her bonuses were not contributed to NELDA.

But even assuming that a direct contradiction did not exist, a district court can also disregard a

statement in an affidavit if “the court determines that the affidavit constitutes an attempt to create

a sham fact issue.” Aerel, S.R.L, 448 F.3d at 908 (quotation omitted). Since Donna has not even

attempted to explain what additional information she acquired post-deposition that caused her to

believe her bonuses went to NELDA, the district court was within its discretion in disregarding these

statements. Donna cannot rely on the bonuses as evidence that she detrimentally relied on Erick’s

promises.

       2. Work for NELDA Before Layoff

       Donna argues that the work she performed for NELDA before she was laid off by Denny’s

shows detrimental reliance on Erick’s promises. The district court found that this work did not

constitute detrimental reliance because Denny’s was paying her to perform this work and was even

giving her bonuses for transferring the restaurants to franchisees. Donna contends that the district

court misunderstood her argument on this point. She points to a statement in her deposition that her

work for NELDA “went beyond” her responsibilities at Denny’s. See R. 46, Deposition, PageID #

476. She also points to statements in her affidavit which indicate that she worked hard for NELDA

for six months after the transition to franchises was complete. See R. 45-1, Affidavit, PageID # 337-

38.

       Even assuming that Donna’s work for NELDA went beyond her responsibilities at Denny’s,

the record indicates that she benefitted from it. She stated in her deposition that Erick began giving

                                                - 16 -
No. 12-3835
Manwaring v. Martinez et al.

her money from NELDA’s accounts before she was laid off by Denny’s. R. 46, Deposition, PageID

# 510. She could draw money from NELDA’s accounts whenever she needed it. She had debit

cards, check books, the ability to transfer funds. In short, she had “all the access in the world” to

NELDA’s accounts. Id. at 509. She evidently used NELDA funds to pay for personal expenses.

Id. at 510. NELDA funds financed her and Erick’s vacations and gambling excursions. Id. All

these benefits flowing from her association with NELDA necessarily prevent Donna from showing

that her reliance on Erick’s promises before her layoff was detrimental.

       3. Work for NELDA After Layoff

       Donna further maintains that her work for NELDA after she was laid off by Denny’s

constitutes detrimental reliance. The district court found that she could not show a “‘sufficiently

definite’ and ‘substantial’ detriment during this time.” R. 52, Order, PageID # 694. It pointed to her

severance package from Denny’s, her unemployment benefits, and the money she received from

NELDA to support this conclusion.

        It was not proper for the district court to take into account either Donna’s severance package

or her unemployment benefits. She would have received these regardless of her work for NELDA.

Therefore, we will consider only the money she received from NELDA to ascertain whether she can

show that her reliance on Erick’s promises after her layoff was detrimental.

       Donna was laid off in June 2008. Although she had unlimited access to NELDA’s bank

accounts, she received no salary from NELDA until March 2009. At that time Erick established a

salary for her that was officially stated as $110,000, but which Donna says was actually only

$40,000. Also around this time, NELDA paid Donna $25,000 so she could pay off her husband’s

                                                - 17 -
No. 12-3835
Manwaring v. Martinez et al.

interest in their marital home. NELDA leased a Lexus for her to drive. Erick paid her landscaper

in 2010. Donna’s affidavit says that she received a total of $102,648.40 from NELDA in 2009 and

$5,1751 in 2010. R. 45-1, Affidavit, PageID # 353.

       Because of the substantial compensation and other perks Donna received, the district court

was correct to conclude that she has not produced evidence of detrimental reliance after being laid

off from Denny’s. Any reliance was to her benefit, not to her detriment.

       4. Failure to Seek Other Employment

       Donna contends that she detrimentally relied on Erick’s promises by not seeking other

employment or business opportunities. The district court concluded that “the mere failure to seek

other employment is not sufficient to establish detrimental reliance.” R. 52, Order, PageID # 694

(citing Wing v. Anchor Media, Ltd. of Texas, 570 N.E.2d 1095, 1099 (Ohio 1991) (at-will

employee’s turning down other job opportunities in reliance on a promised opportunity to purchase

equity in the company “[did] not present a jury question of substantial detrimental reliance”)); see

also Lake v. Wolff Bros. Supply, Inc., 1993 WL 462866, at *6-7 (Ohio Ct. App. 1993) (at-will

employee could not show detrimental reliance when he did not assert that he turned down other

employment opportunities in reliance on an alleged promise of a specific employment term). Donna

suggests no authority to the contrary.




       1
         Earlier in her affidavit she says that Erick sent her $8,000 in NELDA funds after he “fired”
her in January 2010. Id. at PageID # 350.

                                               - 18 -
No. 12-3835
Manwaring v. Martinez et al.

       In sum, the record indicates that Donna relied on Erick’s promises, but the reliance was

beneficial, not detrimental. We therefore affirm the district court’s grant of summary judgment on

Donna’s promissory estoppel claim.

                                       V. CONCLUSION

       We VACATE the district court’s grant of summary judgment on Donna’s breach of contract

claim. We AFFIRM the district court’s grant of summary judgment on Donna’s promissory

estoppel claim. Because we are vacating the district court’s grant of summary judgment on Donna’s

breach of contract claim, we VACATE the district court’s order granting costs to Erick for expenses

relating to Donna’s depositions.




                                              - 19 -
