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04/29/88 David Horowitz, v. Rick Baker Et Al.

April 29, 1988

DAVID HOROWITZ, PLAINTIFF-APPELLANT

v.

RICK BAKER ET AL., DEFENDANTS-APPELLEES



APPELLATE COURT OF ILLINOIS, THIRD DISTRICT

523 N.E.2d 179, 168 Ill. App. 3d 603, 119 Ill. Dec. 711 1988.IL.640

Appeal from the Circuit Court of Peoria County; the Hon. Richard E. Eagleton, Judge, presiding.

APPELLATE Judges:

JUSTICE SCOTT delivered the opinion of the court. HEIPLE and BARRY, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE SCOTT

This cause comes on appeal from the trial court's dismissal of plaintiff's second amended two-count complaint alleging libel based upon an article written by defendant Rick Baker and published by defendant The Peoria Journal Star, Inc. The trial court ruled that the statements complained of by plaintiff were statements of opinion, not fact, and that plaintiff's second amended complaint failed to allege sufficient facts to establish that the statements complained of were false.

The procedural issue before the court is whether the trial court erred in dismissing plaintiff's second amended complaint with prejudice.

Plaintiff alleged that he was in the business of comparing product performance with its advertisements and advising the consumer of those goods the results of his comparison; further, that he has a nationally syndicated television show, newspaper column and was nationally known as a person of good name and repute, personally and in his profession, and was held in high esteem by and among his contemporaries, acquaintances and the general public.

Plaintiff stated that prior to October 26, 1984, defendant Rick Baker (Baker) composed and wrote an article (the article) for publication in The Peoria Journal Star which was published by PJS on October 26, 1984. We will not go into detail as to the contents of the article as it is printed in full in the appendix of this opinion. For the most part, the article criticizes the subject matter of plaintiff's own consumer programs and his method of presentation on those programs. The article, however, also speaks rather harshly of a transaction wherein plaintiff purchased some bricks from the City of Peoria with the assistance of the former mayor, Richard Carver. Plaintiff contends that the article complained of is false and defamatory in that it implies that plaintiff unlawfully obtained bricks from the City of Peoria at a price cheaper than did any other prospective purchaser of these bricks from the city.

In particular, plaintiff's second amended complaint contains the following allegations:

"5. The statements in said articles which were false and defamatory were:

(a) That Richard Carver planned to secretly and cheaply sell public bricks to the plaintiff, David Horowitz, and in so doing grant Horowitz a benefit not available to others; said statement was false and defamatory in that the sale of the bricks to the plaintiff by the City of Peoria was not done 'secretly' as the sale was discussed in an article appearing in the Peoria Journal Star on Wednesday, October 24, 1984. A true and correct copy of that article is attached hereto. The article was false and defamatory because the City of Peoria did not sell the bricks to the plaintiff 'cheaply' as the plaintiff paid the identical purchase price as other purchasers of the bricks.

(b) That Carver and Horowitz had a 'cozy little deal with old bricks left over from downtown development,' thereby accusing plaintiff of wrongfully or unlawfully bidding on and receiving public property or receiving the property at a lower price than others. Said statement was false and defamatory in that sale of the bricks had been previously reported in the Peoria Journal Star and plaintiff paid the same amount for the bricks as other purchasers.

(c) That Carver and Horowitz 'were trying to pull a fast one,' accusing the plaintiff of wrongfully or unlawfully bidding on or receiving public property or receiving the property at a lower price than others. Said statement was false and defamatory in that plaintiff paid ...


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