                IN THE SUPREME COURT OF IOWA
                               No. 17–0791

                          Filed November 2, 2018


RONALD DWIGHT KUNDE,

      Appellant,

vs.

ESTATE OF ARTHUR D. BOWMAN and DIANE ENGELKINS,

      Appellees.


      On review from the Iowa Court of Appeals.



      Appeal from the Iowa District Court for Jackson County, Nancy S.

Tabor, Judge.



      The parties seek further review of a decision by the Iowa Court of

Appeals affirming the district court’s dismissal of the plaintiff’s unjust

enrichment and quantum meruit claims and reversing the district court’s

dismissal of the plaintiff’s promissory estoppel claim.   AFFIRMED IN
PART, REVERSED IN PART, AND REMANDED.



      D. Flint Drake and Samuel M. DeGree of Drake Law Firm, P.C.,

Dubuque, for appellant.



      Bradley T. Boffeli of Boffeli & Spannagel, P.C., Maquoketa, for

appellees.
                                     2

APPEL, Justice.

      In this case, a farmer sued his neighbor’s heirs, claiming, among

other things, that he and the decedent entered into an option contract to

purchase farmland that was subject to a written lease and upon which the

farmer made substantial improvements at his expense. In the alternative,

the farmer sought to recover under various equitable theories of

promissory estoppel, quantum meruit, and unjust enrichment.

      A jury found in favor of the plaintiff on his contract claim and

awarded damages. After the verdict, however, the district court granted

the defendants’ motion for a directed verdict on the contract claim. The

district court refused to order a new trial on the plaintiff’s alternative

equitable theories.

      On appeal, the court of appeals affirmed the directed verdict on the

contract claim but remanded the case to the district court for a trial on the

equitable claims. On remand, the district court granted the defendants’

motion for summary judgment on the equitable claims.

      On a second appeal, the court of appeals again reversed the

judgment of the district court. The court of appeals found that the claims

of unjust enrichment and quantum meruit failed as a matter of law

because the parties had express agreements governing improvements to

the leasehold and allocating the expenses of the improvements. On the

claim of promissory estoppel, however, the court of appeals concluded that

the presence of agreements related to the leasehold and improvements was

not determinative. Instead, the court of appeals reasoned that what was

required to give rise to a claim of promissory estoppel was not an

“agreement” but a “promise.” As a result, the court of appeals reversed

the district court and remanded the matter for a new trial.
                                    3

      We granted further review. For the reasons expressed below, we

affirm the district court’s dismissal of the unjust enrichment and quantum

meruit claims, but reverse the district court’s dismissal of the promissory

estoppel claim.

      I. Procedural and Factual Background.

      Viewed in the light most favorable to the plaintiff, the summary

judgment record shows the following facts.      Ronald Kunde purchased

farmland along with a residence in Jackson County in 2000. He bought

additional ground in 2007. Kunde’s farm was adjacent to a 102-acre farm

owned by Arthur Bowman.

      Kunde and Bowman were neighbors who engaged in an occasional

“hello” and brief discussion concerning farming practices. At trial, Kunde

testified that in the fall of 2007, Bowman approached Kunde and asked if

he would be willing to rent his farm. Kunde responded by asking whether

Bowman’s wife would rent or sell farmland she owned.         Bowman told

Kunde that his wife’s property had been sold but that Bowman would

consider selling his own property for $1900 per acre. Kunde testified he

told Bowman that the figure was too low and the parties agreed on a price

of $3000 per acre. Kunde told Bowman he wanted to talk with his brother

about the transaction. Bowman told Kunde that he could rent the farm in

the meantime and that he could purchase the property at his option.

      The parties discussed the possibility of improvements to Bowman’s

property. Kunde agreed to make certain improvements to the property as

part of the oral agreement that Kunde could exercise an option to purchase

the Bowman land.

      Kunde and Bowman entered into a written lease to rent the farm for

the 2008 farm year. Kunde made a list of improvements he had discussed

with Bowman, and at his request an addendum was added to the 2008
                                       4

farm lease.     The addendum stated that the improvements would be

permissive and at renter’s expense. The parties executed other leases in

2009, 2012, and 2013 under terms generally similar to those in the 2008

lease.

         The leases were prepared by an attorney for Bowman. The leases

contained provisions related to improvements by the lessee. Paragraph 4

provided that all commercial fertilizer and other inputs and expenses were

to be paid 100% by the tenant. Paragraph 14 related to new improvements

and provided that all buildings, fences, and improvements that may be

erected by the tenant constitute additional rent and shall inure to the real

estate and become property of the landlord and that expenses incurred

without landlord consent were the responsibility of the tenant. Paragraph

21 provided that changes in lease terms could only be made in writing.

         During the period of time when Kunde leased the Bowman property,

he made substantial improvements to the land.           He banked expensive

fertilizer in the soil, excavated and leveled the property, installed drain tile,

engaged in general cleanup, repaired and installed fences, and created and

redirected waterways. Kunde’s work also converted twenty-three acres of

nontillable acres to tillable acres.

         Kunde asserted that he incurred $52,000 in cost for his labor,

equipment use, and materials in making the improvements. He claimed

that when he discussed the improvements with Bowman, Bowman told

him that Kunde could do whatever he wanted since the farm would be his.

Kunde claimed he made the improvements in reliance on Bowman’s

promise that he would be able to buy the farm. Several witnesses at trial

testified that improvements adding tillable acres to farm property would

typically be the responsibility of the landlord.
                                       5

       In 2010, Kunde attempted to exercise his option to purchase the

Bowman farm. Kunde was told by Bowman’s daughter, Diane Engelkins,

that she had discovered a third-party right of first refusal on the farm.

After Kunde was told of the right of first refusal, Bowman told Kunde, “I

feel like I lied to you.”

       In August 2013, Bowman was placed in a nursing home, suffering

from dementia. Kunde was served with a notice of termination of the farm

tenancy. In November, Engelkins informed Kunde that the farm was being

placed for sale at a public auction due to the fact that it was Bowman’s

only asset and he needed it to be sold in order to meet Title XIX

requirements. The farm was ultimately sold.

       Kunde brought an action in district court against the defendants.

He claimed that the defendants breached an option contract to sell him

the agricultural land.      Alternatively, Kunde alleged equitable causes of

action, including promissory estoppel, unjust enrichment, and quantum

meruit. The case proceeded to jury trial, with the jury rendering a verdict

in favor of Kunde on his contract claim and awarding damages of $52,000.

       After the verdict was rendered, the district court granted a motion

for directed verdict on the grounds that there was insufficient evidence to

prove the existence of a contract.      The district court denied plaintiff’s

motion to reconsider, motion to amend and enlarge findings, and motion

for a new trial on Kunde’s equitable actions. Plaintiff appealed.

       The court of appeals affirmed the ruling of the district court that

Kunde failed to offer substantial evidence to support the jury’s finding that

Kunde and Bowman reached an agreement on all the essential terms of an

option contract. The court of appeals, however, reversed the decision of

the district court denying Kunde’s request for a new trial on his equitable
                                     6

claims. The court of appeals remanded the case to the district court for

further proceedings on the equitable claims.

      On remand, the defendants filed a motion for summary judgment

on the remaining equitable claims. The district court granted the motion.

Plaintiff again appealed.

      The court of appeals affirmed the district court grant of summary

judgment on the equitable claims of unjust enrichment and quantum

meruit. The court of appeals reversed the district court grant of summary

judgment on the promissory estoppel claim.

      We granted further review.

      II. Standard of Review.

      The standard of review for district court rulings on summary

judgment is for correction of errors of law. Mason v. Vision Iowa Bd., 700

N.W.2d 349, 353 (Iowa 2005).       Evidence is viewed in the light most

favorable to the party opposing summary judgment. Murtha v. Cahalan,

745 N.W.2d 711, 713–14 (Iowa 2008).

      III. Discussion.

      A. Introduction.      This appeal presents questions regarding the

relationship between the equitable doctrines of unjust enrichment,

quantum meruit, and promissory estoppel when there is a contract

between the parties governing the same subject matter.

      There are two distinct questions. The first question is whether the

plaintiff may bring a claim for the cost of improvements to the property

based on implied contract in the face of an express contract which

allocated the cost of improvements. The second question is whether the

plaintiff may seek to bring a claim of promissory estoppel under the facts

and circumstances of this case.
                                           7

      B. Quantum          Meruit     and    Unjust     Enrichment       to   Recover

Uncompensated Costs of Improvements. The first question we address

is whether Kunde may bring claims for unjust enrichment or quantum

meruit related to improvements made to the farmland when the parties

entered into a contractual relationship specifically allocating the costs of

improvements on the property. The district court concluded that in light

of the existence of a contract covering the same subject matter, Kunde

could not bring these equitable claims.

      On appeal, Kunde concedes that an express contract and an implied

contract cannot coexist with respect to the same subject matter. Chariton

Feed & Grain, Inc. v. Harder, 369 N.W.2d 777, 791 (Iowa 1985). Kunde

maintains, however, that there may be an implied contract on a point not

covered by an express agreement so long as it is a point not “fully covered

by an express contract and in direct conflict therewith.” Smith v. Stowell,

256 Iowa 165, 174, 125 N.W.2d 795, 800 (1964). Kunde takes issue with

the district court’s conclusion that the subject matter was “Bowman’s farm

and the relationship, rights, and obligations that Kunde had with it.”

According to Kunde, because the farm leases do not obligate Kunde to

make the improvements listed in the addendum, there is no express

contract provision governing such improvements.

      Bowman 1 agrees with the general principles outlined by Kunde, but

disagrees with Kunde regarding their application in this case. Bowman

focuses on the express terms of the written contracts between the parties.

Bowman points out that the express agreements specifically allocated

100% of the input costs and expenses to Kunde. Further, Bowman notes

that the leases specifically stated that any new improvements “erected or


      1Estate   of Arthur D. Bowman and Diane Engelkins will be collectively referred to
as Bowman.
                                     8

established upon the Real Estate during the term of the Lease” would be

considered “additional rent and shall inure to the Real Estate, becoming

the property” of Bowman. Further, Bowman observes, the lease provided

that no expense could be incurred by or on account of Bowman without

his written authorization.   Because of these specific lease provisions,

Bowman argues that the express terms of the farm leases prevent Kunde

from recovering under the implied contract theories of quantum meruit

and unjust enrichment.

       We agree with Bowman. Kunde’s unjust enrichment and quantum

meruit claims focus on a right to recover the cost of improvements. The

doctrines of unjust enrichment and quantum meruit are based upon the

concept of implied contract. Chariton Feed & Grain, 369 N.W.2d at 791.

We have held that “[a]n express contract and an implied contract cannot

coexist with respect to the same subject matter.” Legg v. W. Bank, 873

N.W.2d 763, 771 (Iowa 2016) (quoting Chariton Feed & Grain, 369 N.W.2d

at 791). While it has been held that implied contract theories may coexist

with written contracts, the cases involve situations where recovery was

sought for matters not covered or agreed upon in the contract, see Nepstad

Custom Homes Co. v. Krull, 527 N.W.2d 402, 407 (Iowa Ct. App. 1994)

(stating that a builder may recover for extras not covered by contract), or

where a contract does not address a particular term that the facts and

circumstances suggest should be supplied by implication, see Carlson v.

Maughmer, 168 N.W.2d 802, 803 (Iowa 1969) (stating that, in employment

contracts, reasonable compensation is implied when contract is silent on

amount of compensation).

      Here, the parties entered into an express written agreement related

to   the   farmland   improvements   and   allocated   the   costs   of   any

improvements.    The existence of an express contract on these matters
                                      9

prevents Kunde from circumventing their agreement by seeking to use

theories of unjust enrichment and quantum meruit to recover for

improvements to which he was plainly not entitled under the terms of the

contract. Legg, 873 N.W.2d at 771; Chariton Feed & Grain, 369 N.W.2d at

791.   As a result, the district court did not err in granting summary

judgment to Bowman on these claims.

       C. Promissory Estoppel to Enforce Promise of Option to

Purchase Land.      We now consider whether the district court properly

granted Bowman’s motion for summary judgment on the promissory

estoppel claim based on the alleged promise of Bowman to Kunde that he

could purchase the land at his option. In order to consider whether Kunde

could enforce the option promise on a promissory estoppel theory, we must

first consider whether the claim may be brought in light of the existence

of the farm leases or whether, like Kunde’s claim for recovery based on

unjust enrichment and quantum meruit, they are not available. If Kunde

is allowed to press his option claim based on promissory estoppel, we must

consider whether the district court correctly identified the elements of

promissory estoppel as including a requirement of a “clear and definite

oral agreement.”

       1. Relationship of promissory estoppel to agricultural leases. We first

consider whether the existence of the farm leases prevents an assertion of

promissory estoppel related to Kunde’s asserted option to purchase the

land. Bowman claims that the presence of the farm leases prevents the

assertion of promissory estoppel just as it does the claims of unjust

enrichment and quantum meruit.         Kunde responds, however, that an

option to purchase is often separate and distinct from a farm lease, that

the farm lease does not contain an integration clause, and that the

summary judgment record provided a triable claim on whether Kunde
                                    10

reasonably relied upon the promise of an option by Bowman to make

improvements on the farm at his own expense that were not recoverable

from Bowman under the express terms of the lease agreement.

      We agree with Kunde. The promissory estoppel claim is not based

solely upon an implied contractual theory that the cost of the

improvements should be borne by Bowman.          Instead, the promissory

estoppel theory in this case rests upon the notion that Kunde made the

improvements on the land that were unrecoverable under the farm lease

in reliance upon a promise of an option to purchase the land.          See

Restatement (Second) of Contracts § 90 cmt. a, at 242 (Am. Law Inst. 1981)

[hereinafter Restatement (Second)] (emphasizing role of reliance in

promissory estoppel).    While Kunde’s attempt to shift the costs of

improvements to Bowman under his unjust enrichment and quantum

meruit theories flies directly in the face of explicit contractual terms

allocating the cost of improvements, the notion that Bowman promised

Kunde an option to purchase the farmland that he improved is not

necessarily inconsistent with the terms of the lease. See Levien Leasing

Co. v. Dickey Co., 380 N.W.2d 748, 752 (Iowa Ct. App. 1985) (finding that

option to purchase is not necessarily inconsistent with written lease even

though the written lease contained an integration clause when the

evidence showed a practice of separating a lease from an option to

purchase); see also Walker v. Horine, 695 S.W.2d 572, 577 (Tex. App.

1985) (per curiam) (holding that lease and option are separate agreements

even though executed on same day because each agreement gives the

parties separate benefits as well as separate obligations); Bess v. Jensen,

782 P.2d 542, 544–45 (Utah Ct. App. 1989) (holding that lease and option

are separate agreements because executed in different documents and

supported by different consideration); Ledaura, LLC v. Gould, 237 P.3d
                                    11

914, 921–22 (Wash. Ct. App. 2010) (holding that lease and option are

separate agreements even though executed on consecutive days by the

same parties concerning the same property). Further, we note that in this

case, the farm leases did not contain an integration clause suggesting that

the leases were designed to represent the sole expression of the parties’

relationship.

      In finding for Kunde on the promissory estoppel issue, we are not

rewriting the contract. We are not shifting the cost of improvements in

light of express contractual agreements to the contrary. Instead, we are

simply holding that Kunde has raised a triable issue on the question of

whether he made his improvements at his own expense in reliance upon

the alleged promise of an option to purchase the land.

      2. Agreement vs. promise in promissory estoppel. Kunde argues that

promissory estoppel does not require proof of a “clear and definite

agreement.”     Instead, Kunde argues that promissory estoppel may be

established where a promisee reasonably relies upon a promise that does

not necessarily contain all the elements of an enforceable contract.

      In support of his argument, Kunde cites Restatement (Second) of

Contracts, section 90, which provides,

      A promise which the promisor should reasonably expect to
      induce action or forbearance on the part of the promisee or a
      third person and which does induce such action or
      forbearance is binding if injustice can be avoided only by
      enforcement of the promise. The remedy granted for breach
      may be limited as justice requires.

Restatement (Second) § 90(1), at 242. According to Kunde, the language

of section 90 emphasizes the presence of a “promise,” not an “agreement.”

      Kunde recognizes that our Iowa caselaw sometimes suggests that

the elements of promissory estoppel include a “clear and definite oral

agreement.” See, e.g., McKee v. Isle of Capri Casinos, Inc., 864 N.W.2d 518,
                                    12

532 (Iowa 2015). Kunde argues, however, that other Iowa cases more

accurately state the elements of promissory estoppel as requiring a

“promise” rather than an “agreement.”

      On the other hand, Bowman suggests that an “agreement” is

required under our caselaw. Because the district court and the court of

appeals had previously found that no enforceable contract existed with

respect to the alleged option to purchase, Bowman reasons that

promissory estoppel is not available to Kunde.

      We begin our analysis with a brief survey of the Iowa caselaw. Our

Iowa caselaw regarding promissory estoppel has evolved over time. In the

early case of Port Huron Machinery Co. v. Wohlers, 207 Iowa 826, 221 N.W.

843 (1928), we embraced the concept of promissory estoppel advocated by

Professor Williston in the context of a unilateral contract in which the

acceptance arose not from verbal acts but from acts indicating acceptance.

Id. at 829–30, 221 N.W. at 844–45. We had no occasion in Port Huron,

however, to consider the contours or limits of the doctrine. See id.

      The modern Iowa caselaw trail on promissory estoppel continued

with Miller v. Lawlor, 245 Iowa 1144, 66 N.W.2d 267 (1954). In Miller, the

plaintiffs alleged they built a house in reliance on a promise by a

neighboring property owner that he would not build in a fashion to

obstruct the plaintiffs’ “terrific” nine-mile view from their home. Id. at

1146, 66 N.W.2d at 269. The question in Miller was whether the plaintiffs

could enforce the assurance obtained from the neighbor. See id. at 1149–

50, 66 N.W.2d at 271.

      In considering the matter, we declared that promissory estoppel “is

now a recognized species of consideration.” Id. at 1152, 66 N.W.2d at 272

(quoting Porter v. Comm’r, 60 F.2d 673, 675 (2d Cir. 1932)). We cited in

its entirety the Restatement (First) of Contracts section 90 for the
                                        13

proposition that a promise is binding if the promisor should reasonably

expect it to induce action or forbearance on the part of the promisee. Id.

at 1153, 66 N.W.2d at 273. We emphasized that such a promise is binding

even without consideration. Id.

       In Miller, the defendant asserted that an element of promissory

estoppel was a “clear and definite oral agreement.” Id. at 1154, 66 N.W.2d

at 273. Without expressly adopting this element, we concluded that the

plaintiff offered evidence of “a clear and definite oral agreement” and was

entitled to relief. Id. at 1153–56, 66 N.W.2d at 273–75.

       We reviewed the elements of promissory estoppel in Schoff v.

Combined Insurance Co. of America, 604 N.W.2d 43, 49 (Iowa 1999). From

Miller and later cases, the Schoff court at first identified three elements of

promissory estoppel as follows: “(1) a clear and definite oral agreement;

(2) proof that plaintiff acted to his detriment in reliance thereon; and (3) a

finding that the equities entitle the plaintiff to . . . relief.” Id. at 48 (quoting

Johnson v. Pattison, 185 N.W.2d 790, 795 (Iowa 1971)). But later, instead

of those three elements, the Schoff court identified four elements:

      (1) a clear and definite promise; (2) the promise was made with
      the promisor’s clear understanding that the promisee was
      seeking an assurance upon which the promisee could rely and
      without which he would not act; (3) the promisee acted to his
      substantial detriment in reasonable reliance on the promise;
      and (4) injustice can be avoided only by enforcement of the
      promise.

Id. at 49. The difference between the earlier and later formulations of the

elements of promissory estoppel in Schoff was two-fold. First, the later

Schoff formulation changed the phrase “clear and definite agreement” in

the first element of promissory estoppel to “clear and definite promise.”

See id. at 48–49.      Second, the later Schoff approach broke down the

reliance into two separate elements. See id.
                                    14

      These two changes in the later Schoff formulation were related. The

emphasis in the later Schoff formulation shifted away from a narrow view

of promissory estoppel as merely a substitute for consideration and toward

a doctrine that emphasized reliance. See id. Both the change in the first

element from “agreement” to “promise” and the breaking down of reliance

into two separate elements—one focusing on the promisor and the other

focusing on the promisee—reinforced promissory estoppel as a doctrine

focused on protection of reliance-type interests.

      The Schoff court’s emphasis on a promise and reliance, rather than

agreement and consideration, was repeated in Kolkman v. Roth, 656

N.W.2d 148, 156 (Iowa 2003). In Kolkman, we cited the later four-element

test for promissory estoppel stated in Schoff requiring the presence of a

“clear and definite promise” rather than a “clear and definite agreement.”

Id.   We noted that “promissory estoppel is not only a substitute for

consideration, but is also recognized as an exception to the statute of

frauds even in cases where the promise may be supported by

consideration.” Id. at 153. We declared in Kolkman that the “strict proof”

requirement in promissory estoppel cases is designed to ensure the

presence of “a promise that justifies reliance by the promisee” and that

“reliance inflicted injustice that requires enforcement of the promise.” Id.

at 156 (emphasis added). The method of analysis employed in Schoff and

Kolkman thus moved away from using promissory estoppel as a doctrine

to provide consideration in an otherwise enforceable agreement and

toward protection of reliance interests that arise from clear and definite

promises.

      Yet, in McKee, we cited the early formulation in Schoff for the

proposition that promissory estoppel required a party to prove “a clear and

definite oral agreement.” 864 N.W.2d at 532 (citing Schoff, 604 N.W.2d at
                                     15

48). In McKee, however, we rejected a promissory estoppel claim because

the plaintiff had failed to show detrimental reliance. Id.

      The issue in this case is whether promissory estoppel requires the

presence of a “clear and definite agreement” or whether it is sufficient for

a party to present evidence of a “clear and definite promise” of the type

that the promisor would understand would cause the promisee to rely

upon. We think it clear that a “clear and definite promise” is sufficient if

the other elements of promissory estoppel are met.

      First, we look to the language of Restatement (Second) of Contracts,

section 90.    We regard the use of the term “promise” rather than

“agreement” in the Restatement (Second) as a deliberate choice.           Our

approach is supported by illustration 12 under section 90, which is

strikingly similar to this case. Under illustration 12,

      A promises to make a gift of a tract of land to B, his son-in-
      law. B takes possession and lives on the land for 17 years,
      making valuable improvements. A then dispossess B, and
      specific performance is denied because the proof of the terms
      of the promise is not sufficiently clear and definite. B is
      entitled to a lien on the land for the value of the improvements,
      not exceeding their cost.

Restatement (Second) § 90 cmt. d., illus. 12, at 246; see Kaufman v. Miller,

214 Ill. App. 213, 214, 217–18 (Ill. App. Ct. 1919).

      Second, our approach is also consistent with our more recent

caselaw such as Schoff and Kolkman.          As noted above, these cases

emphasize the reliance element in promissory estoppel over the narrower

function of merely filling the void of lack of consideration in otherwise

enforceable agreements.

      We do not think our citation in McKee undermines the thrust of our

better reasoned cases. McKee accurately cited language in Schoff which

stated that a “clear and definite agreement” was an element of promissory
                                     16

estoppel. But after citing our prior approach to promissory estoppel, the

Schoff case emphasizes reliance and promise, not agreement. 604 N.W.2d

at 48–49. After its initial citation of the elements of promissory estoppel

from our prior cases, Schoff later declares that the first element of estoppel

is one of “clear and definite promise.” Id. at 49. When read in its entirety

and in context, Schoff stands for a broader approach to promissory

estoppel than the approach in Miller.        In any event, in McKee, the

promissory estoppel claim was rejected based on a failure to demonstrate

reliance as a matter of fact. 864 N.W.2d at 532. The citation to prior law

in McKee regarding the element of a “clear and definite agreement” was not

essential to the holding of the case and has not impacted the march of our

cases away from the requirement of an agreement and toward emphasis

on reliance and promise.

      Finally, our approach has support in cases from other jurisdictions

which, though not binding, lend persuasive support to our approach. For

example, in Hoffman v. Red Owl Stores, Inc., the Wisconsin Supreme Court

noted that while promissory estoppel originally was thought to apply only

as a substitute for consideration in an otherwise enforceable contract,

promissory estoppel under Restatement (First) section 90 is often

appropriate when the parties have not mutually agreed on all the essential

terms of a proposed transaction. 133 N.W.2d 267, 275 (Wis. 1965).

      Similarly, in Vigoda v. Denver Urban Renewal Authority, 646 P.2d

900 (Colo. 1982) (en banc), the Colorado Supreme Court noted that the

purpose of promissory estoppel was to allow recovery for “those who rely

to their detriment upon promises which the promisor should have

reasonably expected to induce such reliance.” Id. at 905. The Colorado

Supreme Court emphasized that the purpose of the promissory estoppel

cause of action reflects “an attempt by the courts to keep remedies abreast
                                       17

of increased moral consciousness of honesty and fair representations in

all . . . dealings.” Id. (quoting Peoples Nat’l Bank of Little Rock v. Linebarger

Constr. Co., 240 S.W.2d 12, 16 (Ark. 1951)). The Colorado Supreme Court

concluded that in order to prevent such injustice, the Restatement section

90 “should be applied to prevent injustice where there has not been

mutual agreement by the parties on all essential terms of a contract” but

where “a promise was made which the promisor should reasonably have

expected would induce action or forbearance, and the promise in fact

induced such action or forbearance.” Id.; see, e.g., Kiely v. St. Germain,

670 P.2d 764, 767 (Colo. 1983) (en banc); Bender v. Design Store Corp.,

404 A.2d 194, 196–97 (D.C. 1979); Rosnick v. Dinsmore, 457 N.W.2d 793,

799–801 (Neb. 1990); Neiss v. Ehlers, 899 P.2d 700, 704–07 (Or. Ct. App.

1995); Farm Crop Energy, Inc. v. Old Nat’l Bank of Wash., 750 P.2d 231,

240–41 (Wash. 1988) (en banc).

      We recognize there are cases to the contrary. See, e.g., Keil v. Glacier

Park, Inc., 614 P.2d 502, 506–07 (Mont. 1980); Lohse v. Atlantic Richfield

Co., 389 N.W.2d 352, 357 (N.D. 1986); Weitzman v. Steinberg, 638 S.W.2d

171, 176 (Tex. App. 1982). Nonetheless, we find the Hoffman–Vigoda line

of cases is most consistent with the reasoning of Restatement (Second)

section 90 and our evolving caselaw.         We conclude that a “clear and

definite promise” is sufficient to give rise to a promissory estoppel claim.

      In applying the “clear and definite promise” element to the case at

hand, we believe Kunde’s claim survives summary judgment. Kunde has

offered evidence that Bowman promised him an option to purchase the

land at a price of $3000 per acre, that Bowman had reason to believe that

Kunde would rely on the promise, and that Kunde, in fact, did rely on the

promise to his detriment. The district court thus erred in granting the
                                     18

defendants’ motion for summary judgment on the promissory estoppel

claim.

         IV. Conclusion.

         For the above reasons, the district court judgment granting

summary judgment on Kunde’s unjust enrichment and quantum meruit

claims is affirmed.     The district court judgment granting summary

judgment on Kunde’s promissory claim is reversed. The case is remanded

to the district court for further proceedings.

         AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.
