Summary Judgment on Counts I through V
Defendants mount two challenges to plaintiffs' defamation claims. First, defendants contend that the alleged comments by Centner were nonactionable statements of opinion. We disagree. If a statement of opinion or an idea is in effect partly factual, in that it implies defamatory facts as its basis, the statement may be actionable unless all facts supporting the opinion are disclosed. O'Donnell v. Field Enterprises, Inc., 145 Ill.App.3d 1032, 491 N.E.2d 1212, 1218, 96 Ill. Dec. 752 (1st Dist. 1986); Howell v. Blecharczyck, 119 Ill.App.3d 987, 457 N.E.2d 494, 499, 75 Ill. Dec. 500 (1st Dist. 1983). Undoubtedly, one could interpret Centner's statements as merely his opinion of Moloney and his professional abilities.
However, it is likely that one could view his statements as implying undisclosed defamatory facts upon which the opinion was based. For example, Centner's purported comment that Moloney is not to be believed suggests that Moloney had lied to Centner or others on more than one occasion. We cannot ignore this possibility and accordingly cannot hold the statements nonactionable as a matter of law.
Defendants next contend that Centner's alleged comments are not actionable under a theory of defamation per se because they are capable of an innocent construction. Defendants rely on a series of cases in which the courts found statements such as that plaintiff was a lousy agent, a liar, dishonorable or deluded as nonactionable because they could not reasonably be considered to have posed a serious threat to the plaintiff's reputation. Byars v. Kolodziej, 48 Ill.App.3d 1015, 363 N.E.2d 628, 6 Ill. Dec. 814 (4th Dist. 1977); Valentine v. North American Co., 16 Ill.App.3d 277, 305 N.E.2d 746, aff'd., 60 Ill.2d 168, 328 N.E.2d 265 (1974); Delis v. Sepsis, 9 Ill.App.3d 217, 292 N.E.2d 138 (1st Dist. 1972); Wade v. Sterling Gazette Co., 56 Ill.App.2d 101, 205 N.E.2d 44 (3d Dist. 1965). It appears that the courts' analyses in those decisions hinged on whether the statements in the context made could be construed as branding the plaintiff a liar in general terms or that the plaintiff is unworthy of belief in any circumstance. Here, the context appears materially different in that one could construe the allegations as statements that Moloney could not be believed under any circumstances. If so, then the decisions defendants offer may not preclude plaintiffs from proceeding under a theory of defamation per se.
B. Tortious Interference With Contract
Plaintiffs charge that by his statements Centner intentionally caused Danca to reject employment with Moloney and thus Centner tortiously interfered with Moloney's contractual relations. Under Illinois law, the essential elements of the tort of intentional interference with contractual relations are (1) the existence of a valid and enforceable contract; (2) the defendant's knowledge of the existing contract; (3) an intentional and malicious inducement of the breach; (4) the subsequent breach by the third person due to the defendant's wrongful conduct; and (5) damage to the plaintiff. Doyle v. Shlensky, 120 Ill.App.3d 807, 458 N.E.2d 1120, 76 Ill. Dec. 466 (1st Dist. 1983). Defendants claim that at the very least the plaintiffs have failed to establish the first two elements.
Although it appears that the evidence strongly supports the defendants' position regarding the first element,
we need not decide whether a valid and enforceable contract actually existed, since the plaintiffs have clearly failed to satisfy element two. Even if there were a contract, the plaintiffs have not offered any proper evidence that Centner knew of any contract between Danca and Moloney, as opposed to merely an outstanding offer, when he made the statements. Centner affirmatively denies that he had such knowledge. The plaintiffs elicited no statement or deposition testimony from Danca to the effect that Danca informed Centner that a contract already existed. In fact, all Danca says in his statement is that he told Centner about a job offer. The only evidence to the contrary is very equivocal testimony by Moloney that he learned from Danca that Centner knew of the existence of the contract. Moloney Dep. at 103-05. Even if we construe the equivocal nature of Moloney's testimony in his favor, it nevertheless constitutes inadmissible hearsay because it is offered for the truth of the contents of Danca's statement and does not appear to fall within any of the hearsay exceptions. See Fed.R.Evid. 801, 802. Such hearsay testimony is as inadmissible on summary judgment as it would be at trial. Colan v. Cutler-Hammer, Inc., 812 F.2d 357 (7th Cir. 1987), cert. denied, 484 U.S. 820, 108 S. Ct. 79, 98 L. Ed. 2d 42 (1987). Accordingly, we grant summary judgment in favor of the defendants on Count II.
C. Unfair Competition Claims
Counts III through V hinge on the plaintiffs' allegation that the defendants told WGN-TV that they have been in the armored limousine business since 1969 and had built a 46-inch armored limousine for the Prime Minister of Turkey and two 34-inch armored limousines for Deng Xiaoping. On a television broadcast about the defendant Moloney Coachbuilders, which contained an interview with Centner, WGN showed two photographs depicting these limousines while a voice-over by a reporter stated that "Moloney has provided this armored limousine to the Prime Minister of Turkey and these to China's Premier." The plaintiffs contend that the alleged statements and unauthorized use of the photos violated the Purchase Agreement. The plaintiffs maintain that under the Agreement they, and not the defendants, remained the entity that has been in business since 1969, and that they alone may continue to claim that they built the armored limousines for the foreign leaders. Complaint, Counts III-V, paras. 5 & 6. Thus, the plaintiffs argue that the acts and statements of the defendants were an attempt to confuse customers about the histories of Moloney Manufacturing Corporation and Moloney Coachbuilders and constituted unfair and deceptive competition with the plaintiffs. The plaintiffs' claims fail for two reasons.
First, the plaintiffs have offered no evidence, and Centner denies, that any defendant ever claimed to have armored or produced the limousines at issue. WGN in its report may have suggested it, but there is no evidence that the allegedly deceptive information making up the challenged portion of the report was the product of false statements made by the defendants, and there is no evidence indicating the source of the photographs used in the report. Further, the plaintiffs' attempt to challenge Centner's credibility is inappropriate in opposing summary judgment. They must present evidence to contradict Centner. The plaintiff's contend that a trier of fact may be able to infer from the WGN report, along with Centner's interview with WGN's reporter, that Centner did in fact state or imply that his company manufactured those or similar limousines and that it was Centner who provided the photos to WGN: "WGN Television did not get its information in a vacuum -- it must have come from defendants." Plaintiffs' Memorandum at 13. We believe that, without more, such an inference is too tenuous to defeat summary judgment.
Second, even assuming the report directly quoted Centner as claiming that Moloney Coachbuilders had a corporate history going back to 1969 and had manufactured the limousines, the defendants purchased the right to make that claim under the Purchase Agreement. Therefore, there was no misrepresentation and no confusion regarding the defendants' capabilities for manufacturing armored limousines that have been extended 20 inches or more.
The two provisions of the Agreement quoted above apply -- the noncompetition provisions in para. 7.1 and Exhibit F to the Agreement. Also applicable is para. 1.1 which provides for the purchase of specific assets, including the goodwill of the plaintiffs' company.
The plaintiffs point out that although they agreed that they would not compete with the defendants by manufacturing limousines from cars that had been extended greater than 20 inches, the Agreement does not prevent them from armouring any vehicle of any size, including limousines manufactured in excess of 20 inches by someone else. They further note that the sale did not include any of the machinery that was instrumental in producing armored vehicles of any type. Moloney Dep. at 119. The plaintiffs rely on these facts to argue that the sale to the defendants did not include the right to claim a corporate history going back to 1969 and to take credit for having built the armored limousines. The essence of the plaintiffs' argument is that, since under the Purchase Agreement they sold only that portion of their business relating to the manufacture of limousines, they did not sell any of the business having to do with the process of armouring vehicles. And although the plaintiffs concede that nothing in the Agreement prevents the defendants from armouring cars of any size, in direct competition with the plaintiffs, the plaintiffs maintain that they alone retained the right to take credit for the established history of manufacturing armored limousines.
At the very least, the plaintiffs have overstated their case. Even assuming that the plaintiffs retained the right to claim a corporate history of armouring vehicles of any size by holding on to the business and assets relating to providing that service, they clearly gave up the right to claim a corporate history of manufacturing limousines, whether armored or not, that had been extended greater than 20 inches. By the plaintiffs' own logic, because the defendants purchased all of the business having to do with manufacturing limousines extended in excess of twenty inches, the defendants therefore purchased the exclusive right under the Agreement to take credit for having manufactured the limousines for the foreign leaders, since it is undisputed that those limousines were extended greater than 20 inches. Thus, according to the plaintiffs' analysis, the defendants would only be liable for misrepresenting a history of armouring, not manufacturing, limousines.
Nevertheless, the plaintiffs' analysis completely falls short because it fails to take into account the fact that, under para. 1.1, in addition to selling various assets used in the manufacturing of limousines, the plaintiffs sold the goodwill of their former business -- the business of manufacturing and armouring limousines.
The sale of goodwill by definition includes the right to rely on the established reputation and history of a business. Indeed, Moloney testified that
Belmont Coach Builders is permanently set in the business. They have a pretty good arena of customers that are going to come to them just through what we built. That is what Moore bought. He is going to have walk-ins for -- he could go on momentum for a few years, as he has done.
Moloney Dep. at 182.
In line with their argument above, the plaintiffs assert that the sale of goodwill was limited under the Agreement only to that portion of the business relating to the manufacture of limousines. The Agreement, however, makes no such limitation. In fact, the provisions of the Agreement that specify the assets to be sold, fairly clearly indicate that no such limitation was even intended. Paragraph 1.1 of the Purchase Agreement provides that:
Subject to the terms and conditions hereof, Seller agrees to sell to Buyer, and Buyer agrees to purchase from Seller, certain assets of the Business as a going concern as specified in this agreement free from all liabilities and encumbrances. The assets of the business shall include all of the various tangible properties and assets used in the manufacturing of limousines as more fully set forth in Exhibit A and, in addition, the following assets: