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-Appellant, ) KNOX CIRCUIT

)

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,

BROWN & KNIGHT, P.C., Knoxville, for Plaintiff-Appellant.

BERNARD E. BERNSTEIN, BERNSTEIN, STAIR & McADAM S, Knoxville, for

Defendants-Appellees.

O P I N I O 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

communications and plaintiff stated at one point that he had a potential buyer ready to

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

plaintiff on April 29, 1997. 

The Trial Court’s order recites that its de cision upon the motion 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 summary judgment. Hixson v. Stickley, 493 S.W.2d 471 (Tenn. 1973). 

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 exist.” 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, 154-55 (Tenn. 1966)). 

Courts will impose a contractual obligation under an unjust enrichment theory when: 

(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 Complaint does not allege that Glazer Steel entered a sales contra ct,

or otherwise profited by plaintiff’s efforts to secure a buyer. The Complaint merely

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.App. 1954):
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The essential elements of an equitable estoppel as related to the party

estopped are said to be (1) Conduct which amounts to a false

representation or concealment of material fa cts, or, at least, which is

calculated to convey the impression that the facts are otherwise than,

and inconsistent with, those which the party subsequently attempts 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) Reliance upon the conduct of the party estopped; 

and (3) Action based thereon of such a character as to change his

position prejudicially[.](citation omitted).

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

present. Consumer Credit Union 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. Similarly, the plaintiff’s severance pay was conditional upon his

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

satisfactorily. 

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

severance pay. Glazer Steel terminated plaintiff before it was liquidated or sold. 

Thus, plaintiff was not entitled to severance pay under the terms of the agreement. 

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
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between Glazer Steel and T.D.E.S. is absolutely privileged. T.C.A. § 50-7-701(c) sets

forth this privilege: 

All letters, reports, communications, or any other matters, 

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

requirements and administration of this chapte r, shall be absolutely

privileged, and shall not be made the subject ma tter or basis for any suit

for libel or slander in any court.

Plaintiff argues, however, that this court should apply the doctrine of compelled selfpublication to his claim.

Sullivan v. Baptist Mem. Hosp., 1997 WL 426981 (Tenn.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 notified him of the reasons for his

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

doctrine of compelled self-publication. Assuming, arguendo, that the Supreme Court

adopts this doctrine, plaintiff’s Complaint still fails to state a claim for defamation. 

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

doctrine of compelled self-publication. 

The Complaint originally alleged that Bradford Glazer was liable for

tortious interference with prospective economic advantage. Plaintiff now concedes

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

contends that he has stated a cause of action for intentional interferenc e with his at-
5

will employment relationship. Plaintiff c laims that he argued to the trial court that his

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 Bradford Glazer tha t took place before the appellant’s termination. 

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

appeal asse ssed to appellant.

__________________________

Herschel P. Franks, J.

CONCUR:

___________________________

Houston M. Goddard, P.J.

(Not Participating)

___________________________

Judge Don T. McM urray, J.