### FILED April 01, 1999 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF APPEALS OF TENNESSEE

AT KNOXVILLE
ARTHUR J. HITE, ) C/A NO. 03A01-9808-CV-00256 ) Plaintiff-A ppellant, ) KNOX CIRCU IT ) v. ) HON . WHE ELER A. R OSEN BALM, ) JUDGE GLAZER STEE

L CORPORATI ON ) and BRADFORD A. GLAZER, ) AFFIRMED ) AND Defendants-Appellees. ) REMANDED

JERROLD L. BECKER, and S AMUEL 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 I O N Franks, J. The Trial Judge, r

esponding to defendants ’ motion to dismi ss, dismiss ed the plainti

ff’s cause of acti

on alleging unjust enrichment,defamation, and est oppel against Glazer Steel and interference with a prospective economic advantage against Bradford Glazer, and pl aintiff has appe aled.

Plaintiff was Execut

ive Vice-Preside

nt and General Manager of Glazer Steel and the est

ate of Jerome S. Glazer owned 100% of the common stock of Glazer Steel. Plai

ntiff wrote to Alfr

ed H. Moses, executor of the estate, and of

fered plaintiff’ s services i

n finding a buyer

for Glazer Steel.Moses and plaintiff exc hanged
commu nications an d plaintiff state d at one po int that he had a potential bu yer ready to buy. The parti

es never reached a fi

nal agreement concerni ng compensation and2

plaintiff i

nformed Moses that the opport unity had been l

ost. Glazer St

eel terminat

ed 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 pla intiff’s r esponse to the motion and affidavit fi led by defendants, memoranda pres ented by the def endants, exhibi

ts presented wit

h the pleadings, and ar

guments of counsel. Where a t rial court considers matt

ers outside t

he 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. Stickl ey , 493 S .W.2d 471 (T enn. 19 73). Plaintiff contends that he is entit led to a finder’s fee based on unjust enrichment. “Unjust

enrichment is a quasi-contract ual theory

or is a contrac

t implied-in- law in which a court may impose a contract

ual obligati

on where one does not exis t.” Whitehaven Community Baptist Church v. Holloway , 973 S.W.2d 592, 596 (Tenn. 1998) (cit

ing 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 t

he parties or a

contract has become unenfor ceable or invalid; and (2) the defendant wil l be unjustl

y enriched abs ent a quasi-cont ractual 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 tha t Glazer Steel ha

d been in contact wit

h the potentia

l buyer. Since Glazer Steel had yet

to receive any

benefit from the plaintiff’s efforts, t he trial cour

t did not err on this i ssue.

The plaintiff al so contends that Glazer Steel shoul

d be estopped from denying plai

ntiff severance

pay and a reasonabl

e finder’s fee. The elements of equitable est

oppel are set for

th in Callahan v. Town of Middleton , 292 S.W.2d 501, 508 ( Tenn.A pp. 1954):3 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 t

o convey the impres sion that t he facts are othe

rwise than, and incon sistent with, tho se which the party subse quently attemp ts to assert; (2) Intenti on, or at least expectation that such conduct shall be acted upon by the ot

her party;

(3) Knowledge, actual or constructi

ve of the real facts. As related t o the party

claiming the estoppel they are (1) Lack of knowledge and of the means of knowledge of the t ruth 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 or

dinarily applicable onl

y to repres entations of facts, eit her past or presen t. Consum er Credit U nion v. Hite , 801 S.W.2d 822 (Tenn.App. 1990). The Complaint does not al

lege any misr

epresentations by Glazer Stee l. The final offe

r made by Glazer condit

ioned the payment

of a finder’s fee upon Glazer’s purchase by the potentia

l buyer, but plainti

ff informed Alfred Moses that t he 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 thr

ough sale or liquidation and perfor ming his duties satisfac torily.

Although the Complaint st ates that he was conce

rned that Glazer St

eel might inappropri ately l

ink his proposed fi

nder’s fee agreement

with the severance pa

y agreement, it

does not allege any

false represe

ntations by

Glazer Steel rega

rding
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 ar

gues that Glazer St

eel defamed him in a let ter sent t o the Tennessee Department of Employ ment Security

(T.D.E.S.). In this let

ter, Glazer St

eel stated that

the appellant

was terminated for br

each of fiduciary

duties and use of corporate opport

unities for hi s own benefit. Plai ntiff clai ms this communicati on defamed him. The Trial Court did not err on this i ssue because the communicat ion4

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, t

o each other, or t

o the department,or to or by any of the agents, repr

esentatives

or employees of any

of them, which shall

have been written, s

poken, sent, del

ivered or made in connect ion 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 ar

gues, however, that

this court should apply t he doctrine of compell

ed selfpubli cation to h

is claim. Sullivan v. Bapt

ist Mem. Hosp. , 1997 WL 426981 (Ten n.App.), permission to appeal

granted April 6, 1998, r

ecognized the doctr

ine of compelled self-public ation. The Western Sect ion of the Court of Appeals he ld that “the publication e

lement required for a defamation cla im can be met if 1) the

republicati

on of the defamatory

statement is

reasonably f

oreseeable to t

he defendant, and 2) t

he plaintiff i s compelled to republ ish 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 us e this oral communication to st

ate a claim under t

he 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 c ould arguably foresee that t

he statement would be r epublished, the Complaint does not allege that

plaintiff was eve

r “compelled to r

epublish the defamatory st

atement.” Thus, t

he Complaint fails

to state a pr

esent claim under

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

The Complaint original ly all eged that Bradford Glazer was liable for tortious i nterference wit

h prospective economic advantage. Plai ntiff now concedes that t his c laim is ba rred 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-5

will emplo yment relations hip. Plaintiff c laims that he argued to th e trial court that h is Complaint could be read t o state thi s claim. The recor d before us does not ref lect any argument or other amendment, nor does the Complaint a llege any ac

tionable 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 Tr ial Court and remand wit h cost of the appeal asse ssed to app ellant.

__________________________ Herschel P. Franks, J.
CONCUR:

___________________________ Houston M. Godd ard, P.J.

(Not Partici

pating)

___________________________ Judge Don T. McM urray, J.