Hite vs. Glazer Steel

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IN THE COURT OF APPEALS OF TENNESSEE AT KNOXVILLE FILED April 01, 1999 Cecil Crowson, Jr. Appellate C ourt Clerk ARTHUR J. HITE, Plaintiff-A ppellant, v. GLAZER STEEL CORPORATION and BRADFORD A. GLAZER, Defendants-Appellees. ) C/A NO. 03A01-9808-CV-00256 ) ) KNOX CIRCU IT ) ) HON. WHEELER A. ROSENBALM, ) JUDGE ) ) AFFIRMED ) AND ) 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 selfpublication 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 at4 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. 5

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