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MOLONEY v. CENTNER

December 27, 1989

EARLE MOLONEY and MOLONEY MANUFACTURING CORPORATION, Plaintiffs and Counterdefendants,
v.
JAMES CENTNER and MOLONEY COACHBUILDERS, INC., Defendants and Counterplaintiffs


Marvin E. Aspen, United States District Judge.


The opinion of the court was delivered by: ASPEN

MARVIN E. ASPEN, District Judge:

 The plaintiffs Earle Moloney and Moloney Manufacturing Corp. filed this multi-count action charging the defendants James Centner and Moloney Coachbuilders, Inc. with violations of § 43 of the Lanham Trademark Act, 15 U.S.C. § 1125, the Illinois Deceptive Trade Practices Act, Ill.Rev.Stat. ch. 121 1/2, § 311 et seq., the Illinois Consumer Fraud and Deceptive Business Practices Act, Ill.Rev.Stat. ch. 121 1/2, para. 261 et seq. and various common law duties. The defendants have moved for summary judgment on five of the claims and to dismiss the remaining three. For the following reasons, the motion for summary judgment is granted in part and denied in part, and the motion to dismiss is granted.

 Factual Background

 Most of the plaintiffs' claims revolve around a contract ("Purchase Agreement") entered into by the parties on September 17, 1986, in which Moloney Manufacturing agreed to sell certain of its assets to Moloney Coachbuilders and its sole shareholder Jacques Moore for $ 1.8 million. The assets included goodwill, the names "Moloney Coach Builders" and "Federal Limousine," customer lists, advertising materials, drawings, engineering reports and various listed properties used in the manufacturing of limousines. The parties additionally agreed to the following noncompetition terms:

 Purchase Agreement, para. 7.1. An exhibit attached to the Purchase Agreement further specified Moloney's retained right to manufacture limousines extended not more than twenty inches:

 
Both Buyer and Moore acknowledge and agree that Seller and Moloney are retaining the right to continue the manufacture of certain automobiles which, after redesign or customizing work, have been extended in overall length not more than 20 inches, including the EM-SERIES Cadillac (an automobile currently manufactured by Seller). In addition, both Buyer and Moore acknowledge and agree that Seller and Moloney are retaining the right to continue the manufacture of armored vehicles including armored limousines which are defined as all limousines, not extended more than 20 inches to which has been added armor or other protective or deflecting materials to any degree of protection or other necessary equipment for the purposes of securing the passengers from outside intruders or destructive forces.

 Purchase Agreement, Exhibit F at 2.

 In Counts III through V, plaintiffs allege that Centner misrepresented to a WGN-TV reporter that Moloney Coachbuilders, rather than Moloney Manufacturing, had been in the armored limousine business since 1969 and had manufactured armored limousines for the Premier of Turkey and the Communist Party Chairman of the People's Republic of China. On April 13, 1988, WGN broadcasted a report to that effect. In Counts VI through VII, plaintiffs contend that while they may have sold the name "Moloney Coachbuilders" to defendants, they did not sell rights to the registered trademark for "Moloney Coachbuilders" and its accompanying design script and styling.

 The remaining two counts of plaintiffs' complaint arise from alleged conversations between Centner and a man named Paul Danca regarding Moloney's potential employment of Danca as vice president of sales of Moloney Manufacturing. Moloney had offered Danca the vice president position in July 1987. The parties dispute whether or not Moloney and Danca entered into an enforceable oral employment contract at that time. Knowing Centner had at one time worked for Moloney, Danca had sought out Centner for his opinion on Moloney and the position. Plaintiffs allege that in July and on later dates, Centner made the following statements: that Moloney was totally irrational, irresponsible and not to be believed; that he was incompetent to operate a successful business, particularly, the armored limousine business; and that he knew very little about the construction of armored limousines. Complaint, Count I, paras. 6-7. Following his discussion with Centner, Danca turned down the job with Moloney. About one year later, however, Danca eventually did go to work for Moloney. Plaintiffs charge that these statements constituted defamation (Count I) and tortious interference with a contractual relationship (Count II).

 A. Defamation

 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. *fn1" 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 ...


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