Nashville, TN - Breach of Contract lawyer represented appellants with suing Brett Eldredge and related for breach of contract and unjust enrichment.

Brett Eldredge is a country music singer, songwriter, and producer. From 2011 to

2018, Robert Baker managed his career. After the artist ended the management

relationship, Mr. Baker and his limited liability company sued Brett Eldredge and related

business entities for breach of contract and unjust enrichment. The complaint also included

claims for statutory and common law inducement of breach of contract against Brice

Eldredge, the artist's brother and business manager.

According to the allegations in the complaint, in 2017, Brice1 proposed changing

the compensation structure in Mr. Baker's contract. Mr. Baker rejected the proposal. But

Brice told his brother that Mr. Baker had agreed. From then on, the defendants paid

Mr. Baker less than the full amount owed under his contract.

After discovery, the defendants moved for summary judgment. Among other

things, they argued that Mr. Baker's contract was modified by mutual assent. Mr. Baker

maintained that factual disputes precluded the grant of summary judgment.

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B.

Moving for summary judgment, the defendants relied on the following undisputed

facts.3

In 2013, Brett and Mr. Baker orally agreed to a new management deal.4

As

compensation for Mr. Baker's services, Brett agreed to a 15% commission on his gross

revenue from all sources other than publishing. Either party could terminate the agreement

at will, subject to a 12-month sunset clause. The sunset clause obligated Brett to continue

paying commissions to Mr. Baker for 12 months after termination of the agreement. From



1 For clarity, we refer to the defendants, Brett Eldredge and Brice Eldredge, by their first names.

No disrespect is intended.

2

In the trial court, Mr. Baker also filed a cross motion for partial summary judgment on liability,

which was denied. On appeal, he only challenges the trial court's grant of the defendants' summary

judgment motion.

3 Some facts are undisputed only for purposes of ruling on the motion for summary judgment. See

TENN. R. CIV. P. 56.03.

4 Mr. Baker had previously managed Brett's career as an employee of Violator Nashville, an artist

management company. According to Mr. Baker, Brett's management contract with Violator Nashville

expired in 2013.

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December 2013 to March 2017, Mr. Baker was paid in accordance with the 2013

agreement.

In 2016, Brett hired Brice as his business manager. Brice "started waiving a red

flag about financial constraints heading into 2017.” He invited Mr. Baker's input on how

to reduce the artist's overall expenses. Brice and Brett also discussed renegotiating

commissions for the multiple agents who worked for the artist. In 2017, Brice and

Mr. Baker met twice to discuss proposed changes to Mr. Baker's compensation.

At their February meeting, Brice told Mr. Baker that "Brett was looking to

restructure all commission buckets” to alleviate financial pressures. And he proposed

changing Mr. Baker's commission from 15% of gross income to 15% of net operating

income. Mr. Baker rejected the proposal. As he saw it, Brett was trying to "fix the . . .

leak[ ] in net operating income all on his back.” Brice conveyed Mr. Baker's objections to

Brett.

The next month, Brice sent Mr. Baker a memo outlining a new commission structure

to take effect as of January 1, 2017. The 2017 memo provided that Brett would pay

Mr. Baker a 15% commission on net operating income plus a 5% commission on

publishing revenue and an increased percentage of SoundExchange royalties.

At Mr. Baker's request, the two men met again on April 20, 2017, to discuss his

"permanent commission structure.” Brice told Mr. Baker that "[the 2017 memo] was the

deal based on my conversations with Brett.” Mr. Baker thanked Brice for "asking Brett

for more money.” After the meeting, Brice told Brett that Mr. Baker had agreed to the new

compensation terms.

From March 2017 to September 2018, the defendants paid Mr. Baker as detailed in

the 2017 memo. The payments were deposited directly into Mr. Baker's bank account.

Mr. Baker also received monthly statements explaining how the payments were calculated.

Mr. Baker knew that the defendants were paying him under the new commission structure.

And he accepted the modified payments for 17 months.

Mr. Baker never protested the change to his compensation in writing. After the

April meeting, he never voiced any objections to the new payment terms to Brice even

though the two men spoke almost daily. Nor did he speak to Brett about the changes, other

than one conversation "tangentially related” to his compensation in August 2018.

Brett terminated Mr. Baker's contract in September 2018. After the termination,

Mr. Baker contacted Brett about the sunset clause, but did not otherwise indicate that he

was being paid incorrectly. As required, Brett continued to pay Mr. Baker for 12 months

after the termination date.

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Relying primarily on his own testimony, Mr. Baker argued that genuine issues of

material fact precluded the grant of summary judgment in the defendants' favor. The

defendants admitted that Mr. Baker never expressly accepted the deal at the April meeting.

Mr. Baker went even further. He claimed that he rejected the proposed change in April

and made two counterproposals. This "put the ball in Brice's court to go talk to Brett about

the changes that I wanted to see.” He left the ball in the defendants' court for the next year

and a half. As Mr. Baker recounted, "Brett and I'd had other moments where—or other

issues that we had taken months or years to resolve. And the fact that this was taking time

wasn't a factor for me at all.”

Mr. Baker also stressed that his acceptance of the modified payment amounts was

not intended as acceptance of the proposed modification. He explained, "Well, I was going

to accept the payments. I did accept the payments. Not in acceptance of the deal. He was

paying me less than he owed me. He owed me at least that much money. And it turns out

he owed me a whole lot more.” He believed that he protested his change in pay to Brett at

least once. He also told several third parties that he was being underpaid.

C.

The trial court ruled that the 2013 contract had been modified by mutual assent. The

court reasoned that the defendants' inability to establish express assent did not preclude

summary judgment. Mutual assent may be established through course of dealing. Here,

the undisputed proof showed that, after the April meeting, Mr. Baker accepted the modified

payments consistent with the modified contract for 17 months without protest.

The factual dispute over what was said at the April meeting was, in the court's eyes,

immaterial. Mr. Baker's subsequent conduct objectively manifested his assent to the

modified compensation terms. And this unambiguous course of dealing continued for a

prolonged period. Confronted with the defendants' evidence, Mr. Baker had to come

forward with countervailing evidence, such as "constant refusal[s] to accept the

modification,” or "numerous complaints,” or "formal, official letters of disagreement.” He

did not. So the defendants were entitled to a judgment in their favor as a matter of law.

The court also dismissed Mr. Baker's remaining claims. His compensation claim

was governed by a valid contract. So Mr. Baker could not recover under an unjust

enrichment theory. As there had been no breach of contract, the claims for inducement of

breach of contract were rendered moot.

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II.

A.

Summary judgment may be granted only "if the pleadings, depositions, answers to

interrogatories, and admissions on file, together with the affidavits, if any, show that there

is no genuine issue as to any material fact and that the moving party is entitled to a judgment

as a matter of law.” TENN. R. CIV. P. 56.04. The party moving for summary judgment has

"the burden of persuading the court that no genuine and material factual issues exist and

that it is, therefore, entitled to judgment as a matter of law.” Byrd v. Hall, 847 S.W.2d 208,

211 (Tenn. 1993).

A trial court's decision on a motion for summary judgment enjoys no presumption

of correctness on appeal. Martin v. Norfolk S. Ry. Co., 271 S.W.3d 76, 84 (Tenn. 2008);

Blair v. W. Town Mall, 130 S.W.3d 761, 763 (Tenn. 2004). We review the summary

judgment decision as a question of law. Martin, 271 S.W.3d at 84; Blair, 130 S.W.3d at

763. So we review the record de novo and make a fresh determination of whether the

requirements of Rule 56 of the Tennessee Rules of Civil Procedure have been met. See

Eadie v. Complete Co., 142 S.W.3d 288, 291 (Tenn. 2004); Blair, 130 S.W.3d at 763.

We view all of the evidence in the light most favorable to the nonmoving party,

including resolving all inferences to be drawn from the facts in that party's favor. See

Luther v. Compton, 5 S.W.3d 635, 639 (Tenn. 1999); Muhlheim v. Knox Cnty. Bd. of Educ.,

2 S.W.3d 927, 929 (Tenn. 1999). If the undisputed facts support only one conclusion and

that conclusion entitles the moving party to a judgment, then the trial court's grant of

summary judgment will be affirmed. See White v. Lawrence, 975 S.W.2d 525, 529 (Tenn.

1998); McCall v. Wilder, 913 S.W.2d 150, 153 (Tenn. 1995).

B.

A contract cannot be modified by the unilateral action of one party. Balderacchi v.

Ruth, 256 S.W.2d 390, 391 (Tenn. Ct. App. 1952). "There must be the same mutuality of

assent . . . as required to make a contract.” Id. We judge mutual assent using an objective

standard. Staubach Retail Servs.-Se., LLC v. H.G. Hill Realty Co., 160 S.W.3d 521, 524

(Tenn. 2005). We look to the parties' outward manifestations, not their secret intent. See

id. But we assess the parties' words and conduct in light of the surrounding circumstances.

See Higgins v. Oil, Chem. & Atomic Workers Int'l Union, Local No. 3-677, 811 S.W.2d

875, 879 (Tenn. 1991). In other words, if a reasonable onlooker, based on the parties'

objective manifestations, would conclude that both parties agreed to the modification,

mutual assent has been established. Moody Realty Co., Inc. v. Huestis, 237 S.W.3d 666,

674 (Tenn. Ct. App. 2007).

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Assent to a contract modification may be implied from the parties' course of

dealing. Lancaster v. Ferrell Paving, Inc., 397 S.W.3d 606, 611-12 (Tenn. Ct. App. 2011)

(citations omitted). But we will not infer mutual assent based on "an ambiguous course of

dealing between the parties from which diverse inferences might reasonably be drawn as

to whether the contract remained in its original form or was changed.” Balderacchi, 256

S.W.2d at 391.

The defendants bore the burden of proving that the contract was modified. See id.

at 391-92. They came forward with evidence showing that Mr. Baker objectively

manifested assent to the modification after the April meeting. Mr. Baker admitted that he

knew his commission was being calculated under the new commission structure. And he

accepted the modified payments for at least 17 months. During that time, he never objected

to the compensation changes or insisted that the defendants comply with the terms of the

2013 contract.

Faced with a properly supported motion for summary judgment, it was incumbent

on Mr. Baker to set forth specific facts in the record "establishing that there are indeed

disputed, material facts creating a genuine issue that needs to be resolved by the trier of

fact.” Byrd, 847 S.W.2d at 215. Mr. Baker maintains that he rejected Brice's proposal and

made two counter proposals at the April meeting. The defendants dispute his claim. But

this factual dispute does not preclude summary judgment. See id. at 214-15 (explaining

that not all facts are material and not all factual disputes are genuine for purposes of Rule

56). We accept Mr. Baker's testimony as true. See id. at 215. Still, his subsequent conduct

objectively signaled his assent to the modified compensation terms. Mr. Baker continued

to manage Brett's career. Brett paid him in accordance with the 2017 compensation memo.

And Mr. Baker accepted those payments without further protest. See Staubach Retail

Servs.-Se., LLC, 160 S.W.3d at 525 (noting that one party's acceptance of payment

demonstrated its acceptance of the contract terms).

Mr. Baker insists that he never intended to accept the modified compensation terms

when he accepted the payments. Yet a party's conduct may manifest assent "even though

he does not in fact assent.” RESTATEMENT (SECOND) OF CONTRACTS § 19 (AM. L. INST.

1981); see Rode Oil Co. v. Lamar Advert. Co., No. W2007-02017-COA-R3-CV, 2008 WL

4367300, at *9 (Tenn. Ct. App. Sept. 18, 2008) ("Unless the other party has reason to know

of it, contract law does not typically credit a claim that, in spite of a party's objective

manifestations of assent, it subjectively did not intend to be bound.”).

We will not imply assent when the record demonstrates that the disputed payments

were accepted under protest. See Balderacchi, 256 S.W.2d at 391-92 ("There was no

modification since the proof clearly shows that plaintiff protested and promptly notified

defendant that the full salary would be claimed.”). In Balderacchi v. Ruth, it was

undisputed that the employee "constantly told [his manager] that he was not being paid as

his contract stipulated.” Id. at 391. And he repeatedly insisted that his employer "pay him

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the difference in the amounts.” Id. Similarly, in Thompson v. Creswell Indus. Supply, Inc.,

936 S.W.2d 955 (Tenn. Ct. App. 1996), the proof showed that the employee "voiced

numerous complaints about the changes in the commission calculations.” Id. at 956. And

in E & A Ne. Ltd. P'ship v. Music City Rec. Distribs., Inc., No. M2005-01207-COA-R3-

CV, 2007 WL 858779, (Tenn. Ct. App. Mar. 21, 2007), the record contained multiple

letters between the parties in which the plaintiff noted the incorrect payments and urged

the defendant to remit the full amount owed. Id. at *1-2.

This record shows the opposite. After the April meeting, Mr. Baker never objected

to the changes in his commission structure. He never sent a letter, an email, or a text

message about his concerns. Nor did he broach the subject with Brice. And he could recall

only one conversation with Brett that even touched on the 2017 changes.

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He told Brett

that Brice had changed his pay. Yet he did not insist that Brett honor the terms of the 2013

contract. And he could not specifically recall telling Brett he objected to the changes.

Complaining to third parties is but a poor substitute for direct protest.

Mr. Baker also argues that we should view the parties' course of dealing through a

wider lens. Early in his career, Brett deferred payment of management commissions due

to lack of sufficient funds. According to Mr. Baker, he went almost 22 months without

pay before Brett fulfilled his contractual obligation. So his extended silence was

reasonable under the circumstances. But these events occurred before the parties entered

the 2013 contract. We do not find them relevant here.

This record does not demonstrate "an ambiguous course of dealing between the

parties from which diverse inferences might reasonably be drawn as to whether the contract

remained in its original form or was changed.” Balderacchi, 256 S.W.2d at 391. After his

initial protests, Mr. Baker gave no outward indication that he objected to the new

compensation terms. See Burton v. Warren Farmers Coop., 129 S.W.3d 513, 521 (Tenn.

Ct. App. 2002) (Mutual assent "may be manifested, in whole or in part, by the parties'

spoken words or by their actions or inactions.”). A reasonable onlooker, viewing this

evidence, could only conclude that the 2013 contract was modified by mutual assent.

Based on the undisputed facts, the defendants were entitled to a judgment as a matter

of law on the breach of contract claim and the claims for inducement of breach of contract.

We also affirm the dismissal of Mr. Baker's unjust enrichment claim. Mr. Baker claims



5 Mr. Baker maintains that he complained about his changed pay to Brett in August 2018. He

admits that the conversation was "really about working . . . or partnering with a new management

company.” In that context, he explained that other managers would require Brett "to pay 15%.” He made

it clear to Brett that Brice had changed his compensation from gross to net. And he told him, "that won't

work in another deal.” In response to Brett's comment that managers were overpaid, Mr. Baker said, "I

work really hard for my money” or "I'm worth my money” or "[s]omething along those lines.” We are not

persuaded that Mr. Baker's comments could reasonably be construed as a protest.

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that the defendants were unjustly enriched when they failed to pay him the full amount of

compensation he was owed for his management services. Unjust enrichment is not an

available theory of recovery when a valid contract exists between the parties. Whitehaven

Cmty. Baptist Church v. Holloway, 973 S.W.2d 592, 596 (Tenn. 1998).

The parties’ objective manifestations showed their mutual assent to the contract

modification. There was no breach of contract. Based on the undisputed facts, the

defendants were entitled to a judgment as a matter of law. So we affirm