Mark C. McCullough, Skaar & McCullough, The Colonnade, Suite 730, 5500 Wayzata Boulevard, Minneapolis, MN 55416 (for appellant Allan Poncin)

Thomas J. Hunziker, Dunkley, Bennett & Christensen, P.A., 701 Fourth Avenue South, Suite 700, Minneapolis, MN 55415 (for respondent Linda Fugina)

Considered and decided by Kalitowski, Presiding Judge, Norton, Judge[**], Huspeni, Judge.

Allan Poncin challenges the district court's finding that he did not reasonably rely on a promise and asserts that the promise was enforceable under the doctrine of promissory estoppel. Because the court did not err in its finding, we affirm.

Allan Poncin (Poncin) and Linda Fugina are the two children of Margaret Poncin, deceased. In January 1991, Poncin and his mother had a falling out. In April 1991, Poncin and Fugina were discussing his relationship with their mother. He asked, "Has mom cut me out of the Will yet?" She responded, "If she did that, I'd give you half anyway." Later that year, Poncin and Fugina had a falling out. In November 1991, their mother changed her will and left her entire estate to Fugina. Before the change, her will evenly split her estate between Poncin and Fugina.

In 1995, Poncin met his mother and had several discussions. Poncin asked his mother about her will during these meetings. His mother indicated she was considering changing her will to include Poncin again. She asked Poncin, who is an attorney and a certified public accountant, to draft a new will for her. Poncin declined to draft the will, and his mother did not change her November 1991 will. Poncin's and Fugina's mother died April 22, 1996. Between their estrangement in 1991 and their mother's death, Poncin and Fugina spoke only once.

Fugina probated their mother's will. Poncin filed a petition for summary assignment or distribution of their mother's estate. The district court granted summary judgment to Fugina, holding her statement was not an enforceable promise. Poncin appealed, and this court reversed the grant of summary judgment. In re Estate of Poncin, No. C6-97-1176, 1998 WL 8470 (Minn. App. Jan. 13, 1998). We held that Fugina's statement was a promise and remanded for a trial on whether Fugina's statement was an enforceable promise.

After a bench trial, the district court ruled that, although Fugina promised to divide their mother's estate with Poncin, his reliance on that promise was not reasonable. Poncin asserts the court erred and that Fugina's promise must be enforced to avoid injustice.

Findings of fact by a district court in an action tried without a jury "shall not be set aside unless clearly erroneous." Minn. R. Civ. P. 52.01. Under the doctrine of promissory estoppel

[a] promise which the promisor should reasonably expect to induce action or forbearance on the part of the promisee * * * and which does induce such action or forbearance is binding if injustice can be avoided only by enforcement of the promise.

Restatement (Second) of Contracts § 90 (1) (1981); see Cohen v. Cowles Media Co., 479 N.W.2d 387, 391 (Minn. 1992) (citing restatement provision). The doctrine of equitable estoppel, which is similar, requires (1) a promise, (2) that the promisee reasonably relied on, and (3) that the promisee will be harmed if estoppel is not applied. Hydra-Mac, Inc. v. Onan Corp., 450 N.W.2d 913, 919 (Minn. 1990). Both promissory estoppel and equitable estoppel require reasonable reliance by the promisee.

The reasonableness of reliance is a question of fact for the trier of fact. Nicollet Restoration, Inc. v. City of St. Paul, 533 N.W.2d 845, 848 (Minn. 1995). Poncin asserts "there was absolutely nothing to put him on notice" that his reliance was unreasonable. The district court, however, found:

Poncin's reliance on Fugina's promise was not reasonable. Poncin is a mature person, a CPA, and an attorney whose practice specializes in part in estate planning matters. He knew that ordinarily oral promises without consideration are unenforceable, and that promises to make a gift are common but ordinarily are not enforceable. * * * [H]e knew that his relationship with Fugina had deteriorated from "good friends" to the point where they had no contact for three and one-half years. * * * To blindly assume that Fugina would be trustworthy is unreasonable for an ordinary citizen, let alone one of Poncin's education and sophistication.

The record supports the district court's finding. Indeed, rather than relying on Fugina's promise, Poncin encouraged their mother to change her will on several occasions, including a suggestion that she "ought to split things 50/50." The record does not support Poncin's position or demonstrate that the court's finding was clearly erroneous. See Minn. R. Civ. P. 52.01.

Affirmed.

[*] Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 2. [**] Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 2.