                 IN THE COURT OF APPEALS OF TENNESSEE
                                                                               FILED
                                    AT KNOXVILLE                              April 01, 1999

                                                                            Cecil Crowson, Jr.
                                                                           Appellate C ourt
                                                                               Clerk

ARTHUR J. HITE,                             ) C/A NO. 03A01-9808-CV-00256
                                            )
       Plaintiff-A ppellant,                ) KNOX CIRCU IT
                                            )
v.                                          ) HON. WHEELER A. ROSENBALM,
                                            ) JUDGE
GLAZER STEEL CORPORATION                    )
and BRADFORD A. GLAZER,                     ) AFFIRMED
                                            ) AND
       Defendants-Appellees.                ) REMANDED




JERROLD L. BECKER, and SAMUEL W. BROWN, BECKER, THOMFORDE,
BRO WN & KNIG HT, P.C ., Knoxville , for Plaintiff-A ppellant.

BERNAR D E. BERNSTEIN , BERNSTEIN, STAIR & McADAM S, Knoxville, for
Defendants-Appellees.




                                      O P I N IO N


                                                           Franks, J.


              The Trial Judge, responding to defendants’ motion to dismiss, dismissed

the plaintiff’s cause of action alleging unjust enrichment, defamation, and estoppel

against Glazer Steel and interference with a prospective economic advantage against

Bradford Glazer, and plaintiff has appealed.

              Plaintiff was Executive Vice-President and General Manager of Glazer

Steel and the estate of Jerome S. Glazer owned 100% of the common stock of Glazer

Steel. Plaintiff wrote to Alfred H. Moses, executor of the estate, and offered

plaintiff’s services in finding a buyer for Glazer Steel. Moses and plaintiff exchanged

commu nications an d plaintiff state d at one po int that he had a potential bu yer ready to

buy. The parties never reached a final agreement concerning compensation and
plaintiff informed Moses that the opportunity had been lost. Glazer Steel terminated

plaintiff on Ap ril 29, 19 97.

               The Tria l Court’s ord er recites that its de cision upo n the motio n to

dismiss was based upon plaintiff’s response to the motion and affidavit filed by

defendants, memoranda presented by the defendants, exhibits presented with the

pleadings, and arguments of counsel. Where a trial court considers matters outside the

pleadings on a motion to dismiss for failure to state a claim, the motion is treated as a

motion for sum mary jud gmen t. Hixson v. Stickley, 493 S .W.2d 471 (T enn. 19 73).

               Plaintiff contends that he is entitled to a finder’s fee based on unjust

enrichment. “Unjust enrichment is a quasi-contractual theory or is a contract

implied-in-law in which a court may impose a contractual obligation where one does

not exis t.” Whitehaven Community Baptist Church v. Holloway, 973 S.W.2d 592, 596

(Tenn. 1998) (citing Paschall's Inc. v. Dozier,407 S .W.2d 150, 15 4-55 (T enn. 19 66)).

Courts w ill impose a c ontractual o bligation un der an un just enrichm ent theory wh en:

(1) there is no contract between the parties or a contract has become unenforceable or

invalid; and (2) the defendant will be unjustly enriched absent a quasi-contractual

obligation. Id.

               The Co mplaint do es not allege that Glazer Steel entered a sales contra ct,

or otherw ise profited b y plaintiff’s effo rts to secure a buyer. The C omplaint m erely

states that Glazer Steel had been in contact with the potential buyer. Since Glazer

Steel had yet to receive any benefit from the plaintiff’s efforts, the trial court did not

err on this issue.

               The plaintiff also contends that Glazer Steel should be estopped from

denying plaintiff severance pay and a reasonable finder’s fee. The elements of

equitable estoppel are set forth in Callahan v. Town of Middleton, 292 S.W.2d 501,

508 ( Tenn.A pp. 1954):


                                              2
                   The esse ntial elemen ts of an equ itable estopp el as related to th e party
                   estopped are said to be (1) Conduct which amounts to a false
                   representatio n or conc ealment o f material fa cts, or, at least, wh ich is
                   calculated to convey the impression that the facts are otherwise than,
                   and incon sistent with, tho se which the party subse quently attemp ts to
                   assert; (2) Intention, or at least expectation that such conduct shall be
                   acted upon by the other party; (3) Knowledge, actual or constructive of
                   the real facts. As related to the party claiming the estoppel they are (1)
                   Lack of knowledge and of the means of knowledge of the truth as to the
                   facts in que stion; (2) Re liance upo n the cond uct of the p arty estopped;
                   and (3) A ction based thereon of such a ch aracter as to c hange his
                   position prejudicially[.](citation omitted).


The doctrine is ordinarily applicable only to representations of facts, either past or

presen t. Consum er Credit U nion v. Hite , 801 S.W.2d 822 (Tenn.App. 1990). The

Complaint does not allege any misrepresentations by Glazer Steel. The final offer

made by Glazer conditioned the payment of a finder’s fee upon Glazer’s purchase by

the potential buyer, but plaintiff informed Alfred Moses that the potential buyer was

no longer interested. Sim ilarly, the plaintiff’s se verance p ay was con ditional upo n his

remaining with the Glazer Steel through sale or liquidation and performing his duties

satisfac torily.

                   Although the Complaint states that he was concerned that Glazer Steel

might inappropriately link his proposed finder’s fee agreement with the severance pay

agreement, it does not allege any false representations by Glazer Steel regarding

severa nce pa y. Glazer Steel ter minate d plainti ff bef ore it w as liquid ated or s old.

Thus, p laintiff w as not e ntitled to severa nce pa y under th e terms of the a greem ent.

                   Plaintiff argues that Glazer Steel defamed him in a letter sent to the

Tennessee Department of Employment Security (T.D.E.S.). In this letter, Glazer Steel

stated that the appellant was terminated for breach of fiduciary duties and use of

corporate opportunities for his own benefit. Plaintiff claims this communication

defamed him.

                   The Trial Court did not err on this issue because the communication


                                                 3
between Glazer S teel and T.D .E.S. is absolu tely privileged. T .C.A. § 50 -7-701(c) s ets

forth this priv ilege:

                       All letter s, reports , comm unicatio ns, or an y other m atters,
       either oral or written, from the employer or employee or former
       employee, to each other, or to the department, or to or by any of the
       agents, representatives or employees of any of them, which shall have
       been written, spoken, sent, delivered or made in connection with the
       requireme nts and ad ministration o f this chapte r, shall be abso lutely
       privileged, an d shall not be made the subject ma tter or basis fo r any suit
       for libel or slan der in any cou rt.

Plaintiff argues, however, that this court should apply the doctrine of compelled self-

publication to his claim.

               Sullivan v. Baptist Mem. Hosp., 1997 WL 426981 (Ten n.App.),

permission to appeal granted April 6, 1998, recognized the doctrine of compelled

self-publication. The Western Section of the Court of Appeals held that “the

publication element required for a defamation claim can be met if 1) the republication

of the defamatory statement is reasonably foreseeable to the defendant, and 2) the

plaintiff is compelled to republish the defamatory communication.” Id. at *7.

                Plaintiff states that Glazer Steel orally notifie d him of th e reasons f or his

dismissal, and attempts to use this oral communication to state a claim under the

doctrin e of co mpelle d self-p ublicatio n. Assu ming, arguendo, that the Supreme C ourt

adopts this doc trine, pla intiff’s C ompla int still fails to state a claim f or defa mation .

Although Glazer Steel could arguably foresee that the statement would be republished,

the Complaint does not allege that plaintiff was ever “compelled to republish the

defamatory statement.” Thus, the Complaint fails to state a present claim under the

doctrin e of co mpelle d self-p ublicatio n.

                The Complaint originally alleged that Bradford Glazer was liable for

tortious interference with prospective economic advantage. Plaintiff now concedes

that t his claim is barred by Nelson v. M artin, 958 S.W.2d 643 (Tenn. 1997), but

contends that he has s tated a caus e of action for intention al interferenc e with his at-

                                                4
will emplo yment relations hip. Plaintiff c laims that he argued to th e trial court that h is

Complaint could be read to state this claim. The record before us does not reflect any

argument or other amendment, nor does the Complaint allege any actionable conduct

by Brad ford G lazer tha t took p lace be fore the appella nt’s term ination.

               We affirm the judgment of the Trial Court and remand with cost of the

appeal asse ssed to app ellant.




                                              __________________________
                                              Herschel P. Franks, J.


CONCUR:




___________________________
Houston M. Godd ard, P.J.




(Not Participating)
___________________________
Judge Don T. McM urray, J.




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