Myers v. Levy

Case Date: 04/27/2004
Court: 2nd District Appellate
Docket No: 2-02-1334 Rel

No. 2--02--1334

 
IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT
 


TOM MYERS,

          Plaintiff-Appellant,

v.

NELSON LEVY,

          Defendant-Appellee.

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Appeal from the Circuit Court
of Lake County


No. 01--L--553

Honorable
John R. Goshgarian,
Judge, Presiding.


JUSTICE BYRNE delivered the opinion of the court:

Plaintiff, Tom Myers, alleges that defendant, Nelson Levy, caused his termination as thevarsity football coach at Lake Forest High School (the school). On March 30, 2001, plaintiff fileda three-count amended complaint for "defamation, false light, and tortious interference withprospective economic advantage or business opportunity." The trial court granted defendantsummary judgment on each of the three counts, and plaintiff appeals. We affirm in part, reverse inpart, and remand the cause for further proceedings.

FACTS

Plaintiff's amended complaint alleges that he was fired as football coach on January 25, 2001,but continues to serve as a teacher and the head varsity baseball coach at the school. Plaintiffgraduated from the school in 1966 and has lived in Lake Forest for 34 years. The complaint recitesplaintiff's experience as a college athlete and high school coach. Two of defendant's sons hadparticipated on plaintiff's football teams and graduated from the school. Defendant's third son wasa student athlete at the school at the time plaintiff was removed as football coach. Plaintiff allegesthat defendant's conduct was motivated by his son's competition with plaintiff's son for the team'squarterback position.

Plaintiff alleges that, on October 16, 2000, defendant communicated several writtendefamatory statements to "others." The statements were contained in a letter addressed to Dr.Jonathan Lamberson, the school superintendent and principal, and Jill Bruder, the athletic director. Defendant recommended removing plaintiff as head football coach. The amended complaint alleges,and defendant concedes, that the correspondence included the following statements:

"a. [Plaintiff] shows little or no concern for players who are injured.

b. When a player is injured, [plaintiff] rarely, if ever calls and never visits, sends a getwell card or in any other way expresses concern.

c. [Plaintiff] lacks true concern for the young men who devote so much of themselvesto his program.

d. [Plaintiff] lacks the respect as a coach of virtually all of his players[;] *** they haveno confidence in [plaintiff] as a leader or a motivator. Sadly they consider him a joke to beworked around, not with.

e. [Plaintiff] sets a very poor example for his coaches and players.

f. As poor as he is as a coach and leader of coaches, much more distressing is[plaintiff's] abysmal failure to support his players.

g. When the team loses, [plaintiff] and some of his assistants make the kids feel likethey did not try hard enough.

h. Such is sad, despicable and inexcusable treatment of the group of boys who playtheir hearts out and are denied the chance to win by the buffoons that direct the action.

i. [Plaintiff] and his program fail miserably.

j. [Plaintiff sets] a poor example as a teacher, who consistently hired poor qualitysubordinates.

k. [Plaintiff] cared little or nothing about the well being of his students *** [and]commanded the respect of neither his peers nor his pupils.

l. [Plaintiff] is *** grossly unprepared.

m. [Plaintiff] fails as an educator and a leader."

On November 8, 2000, defendant sent Lamberson a petition letter calling for plaintiff'sdismissal as football coach. The correspondence was accompanied by a list of football parents whopurportedly agreed with and signed the letter. The envelope and the bottom of each page of the listwere labeled "CONFIDENTIAL TO BE VIEWED BY DR. LAMBERSON ONLY." Defendantallegedly misrepresented the number of signatures he collected and falsely reported that severalparents had signed the petition. The record contains written statements signed by six football parents,including one circuit court judge, in which each confirms that defendant falsely reported that he orshe signed the petition. In the November 8, 2000, communication to Lamberson, defendant statedthat he had spent three years lobbying Bruder and the former superintendent for plaintiff's removalas football coach. The complaint alleges that defendant's earlier public praise of plaintiff proves thathe was not, in fact, dissatisfied with him.

Bruder recommended, Lamberson authorized, and the school board officially approvedplaintiff's removal as head football coach on January 25, 2001. On the next day, the Chicago Sun-Times published two statements attributed to defendant. Defendant stated that "[t]here has been aconsistent unhappiness, widespread discontent, with [plaintiff] as football coach for more than adecade." Defendant also stated, "I was probably the number one antagonist of an organized effortthat involved hundreds of people. The thrust was not wins or losses, but rather that the kids don'trespect him." On February 25, 2001, the Chicago Tribune published a third quotation in whichdefendant stated, "[y]ou've had an incompetent coach in place for a decade who used to be a goodcoach."

The record contains a letter addressed to a group of Lake Forest eighth-grade student athletesin which defendant praised plaintiff in the fall of 1997. The letter states, "Our community has a greatcoaching role model in [plaintiff]. [Plaintiff] makes every kid on his team feel good about himself. He is a personal role model for character, kindness, and fairness. His players grow from within, notfrom being bombarded by constant coaching demands. [Plaintiff] builds teams of self-confident kidswho are not afraid to make a mistake. And, almost every year, [plaintiff] takes a bunch of under-sized, slow boys into the state play-offs." In early 1998, defendant wrote a fiftieth birthday tributeto plaintiff in which defendant again praised plaintiff for his exceptional and compassionate coaching.

The defamation count alleges that defendant's subsequent derogatory statements "injured[plaintiff's] reputation in the community, were false, were malicious, and made with a recklessdisregard for their truth. These statements constitute libel and slander per se, and also caused orcontributed to cause [plaintiff] to be removed as head varsity football coach at [the school], a positionhe dearly loved." Plaintiff earned an additional $7,500 annual salary at the time he was removed fromthe coaching position.

The false light invasion of privacy count alleges that defendant's newspaper quotations "placed[plaintiff] in a false light as same would be considered highly offensive by a reasonable person." Defendant allegedly had knowledge of the falsity of the statements or acted in reckless disregard asto their truth or falsity and the false light in which plaintiff would be placed upon publication of thestatements.

The count for tortious interference with prospective economic advantage alleges thatdefendant knew of and interfered with plaintiff's economic advantage or business opportunity tocontinue as head football coach. Defendant's interference allegedly caused or contributed to causeplaintiff's removal. Each of the three counts included a prayer for $50,000 in compensatory damagesand $1 million in punitive damages.

Defendant moved to dismiss the amended complaint, and the trial court denied the motion onNovember 1, 2001. Following the hearing, the trial court found that plaintiff is a public figure forpurposes of the litigation.

Defendant subsequently filed a motion for summary judgment, in which he alleged thatplaintiff could never prove that defendant acted with actual malice because 42 football parentsprovided defendant with statements similar to his own. Defendant argued that plaintiff's claims lackmerit because the statements were true and because defendant did not act with reckless disregard asto their truth or falsity. Defendant quoted deposition testimony in which plaintiff acknowledged thatdefendant sincerely believed that each of the allegedly defamatory statements was true. Defendant'smotion also included the deposition testimony of Bruder and Lamberson. Lamberson testified thatthe decision to remove plaintiff as head football coach "had nothing to do with parental pressure." Bruder similarly testified that "the failure to renew [plaintiff's] contract as the head football coach atLake Forest High School for the year 2001 had absolutely nothing to do with the activities of[defendant]." Bruder stated that plaintiff was removed because summertime scheduling conflictsprecluded him from serving as the head coach of both the football and baseball teams. At the hearingon the summary judgment motion, the parties essentially debated the truth of defendant's statementsregarding plaintiff's performance as the head football coach. Plaintiff also argued that the issue ofwhether defendant acted with actual malice was a jury question that could not be resolved on asummary judgment motion.

The trial court granted defendant summary judgment, concluding that defendant's statementswere privileged because he directed them toward the school, a governmental body. The court furtherconcluded that defendant did not act with actual malice because he sincerely believed the veracity ofthe statements. Finally, the court emphasized Lamberson's testimony that defendant's petition did notinfluence the decision to remove plaintiff as coach. Plaintiff appeals from the November 1, 2001,finding that he is a public figure and from the November 18, 2002, order granting defendant summaryjudgment on all three counts.

ANALYSIS

On appeal, plaintiff argues that defendant should not have been granted summary judgmentbecause plaintiff is not a public figure and defendant abused a qualified privilege in working towardthe removal of plaintiff as the football coach. Plaintiff contends that an issue of material fact existsthat precluded the trial court from granting summary judgment. In all appeals from the entry ofsummary judgment, we conduct a de novo review of the evidence in the record. Espinoza v. Elgin,Joliet & Eastern Ry. Co., 165 Ill. 2d 107, 113 (1995). Summary judgment is appropriate where thepleadings, affidavits, depositions, and admissions on file, when viewed in the light most favorable tothe nonmoving party, show that there is no genuine issue of material fact and that the moving partyis entitled to a judgment as a matter of law. 735 ILCS 5/2--1005(c) (West 2000); Bier v. LeannaLakeside Property Ass'n, 305 Ill. App. 3d 45, 50 (1999). "Summary judgment is a drastic means ofresolving litigation and should be allowed only when the right of the moving party is clear and freefrom doubt." Bier, 305 Ill. App. 3d at 50. "Therefore, where reasonable persons could drawdivergent inferences from the undisputed material facts or where there is a dispute as to a materialfact, summary judgment should be denied and the issue decided by the trier of fact." Espinoza, 165Ill. 2d at 114. If a party moving for summary judgment introduces facts which, if not contradicted,would entitle him to a judgment as a matter of law, the opposing party may not rely on his pleadingsalone to raise issues of material fact. Hermes v. Fischer, 226 Ill. App. 3d 820, 824 (1992).

1. Defamation and False Light Invasion of Privacy

A statement is considered defamatory if it tends to cause such harm to the reputation ofanother that it lowers that person in the eyes of the community or deters third persons fromassociating with him. Bryson v. News America Publications, Inc., 174 Ill. 2d 77, 87 (1996). "Tomake out a claim for defamation, the plaintiff must set out sufficient facts to show that the defendantsmade a false statement concerning him, that there was an unprivileged publication to a third partywith fault by the defendant, which caused damage to the plaintiff." (Emphasis added.) Krasinski v.United Parcel Service, Inc., 124 Ill. 2d 483, 490 (1988). Defamatory statements may be actionableper se or actionable per quod. A publication is defamatory per se if it is so obviously and naturallyharmful to the person to whom it refers that a showing of special damages is unnecessary andextrinsic facts are not needed to explain it. Dubinsky v. United Airlines Master Executive Council,303 Ill. App. 3d 317, 323 (1999). A claim for defamation per quod requires the plaintiff to allegeboth extrinsic facts to establish that the statement is defamatory and special damages withparticularity. Dubinsky, 303 Ill. App. 3d at 323. Plaintiff argues that defendant's statements weredefamatory per se.

Illinois courts have recognized four categories of statements that are considered defamatoryper se: (1) words that impute the commission of a crime; (2) words that impute infection with aloathsome communicable disease; (3) words that impute an inability to perform or a want of integrityin the discharge of duties of office or employment; or (4) words that prejudice a party, or impute lackof ability, in his or her trade, profession, or business. Dubinsky, 303 Ill. App. 3d at 323. Defendantdoes not dispute that his statements fall under the third and fourth categories of statements that aredefamatory per se; however, he contends that they were conditionally privileged.

In Kuwik v. Starmark Star Marketing & Administration, Inc., 156 Ill. 2d 16, 27 (1993), oursupreme court adopted the Restatement (Second) of Torts approach to determine whether a qualifiedprivilege applies in a given defamation case. Gist v. Macon County Sheriff's Department, 284 Ill.App. 3d 367, 372 (1996), citing Restatement (Second) of Torts