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Myers v. Levy

April 27, 2004

[5] TOM MYERS, PLAINTIFF-APPELLANT,
v.
NELSON LEVY, DEFENDANT-APPELLEE.



[6] Appeal from the Circuit Court of Lake County. No. 01-L-553 Honorable John R. Goshgarian, Judge, Presiding.

[7] The opinion of the court was delivered by: Justice Byrne

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

[9]  FACTS

[10]   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. Plaintiff graduated from the school in 1966 and has lived in Lake Forest for 34 years. The complaint recites plaintiff's experience as a college athlete and high school coach. Two of defendant's sons had participated on plaintiff's football teams and graduated from the school. Defendant's third son was a student athlete at the school at the time plaintiff was removed as football coach. Plaintiff alleges that defendant's conduct was motivated by his son's competition with plaintiff's son for the team's quarterback position.

[11]   Plaintiff alleges that, on October 16, 2000, defendant communicated several written defamatory 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:

[12]  
"a. [Plaintiff] shows little or no concern for players who are injured.
[13]  
b. When a player is injured, [plaintiff] rarely, if ever calls and never visits, sends a get well card or in any other way expresses concern.
[14]  
c. [Plaintiff] lacks true concern for the young men who devote so much of themselves to his program.
[15]  
d. [Plaintiff] lacks the respect as a coach of virtually all of his players[;] *** they have no confidence in [plaintiff] as a leader or a motivator. Sadly they consider him a joke to be worked around, not with.
[16]  
e. [Plaintiff] sets a very poor example for his coaches and players.
[17]  
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.
[18]  
g. When the team loses, [plaintiff] and some of his assistants make the kids feel like they did not try hard enough.
[19]  
h. Such is sad, despicable and inexcusable treatment of the group of boys who play their hearts out and are denied the chance to win by the buffoons that direct the action.

[20]   i. [Plaintiff] and his program fail miserably.

[21]  
j. [Plaintiff sets] a poor example as a teacher, who consistently hired poor quality subordinates.
[22]  
k. [Plaintiff] cared little or nothing about the well being of his students *** [and] commanded the respect of neither his peers nor his pupils.

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

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

[25]   On November 8, 2000, defendant sent Lamberson a petition letter calling for plaintiff's dismissal as football coach. The correspondence was accompanied by a list of football parents who purportedly agreed with and signed the letter. The envelope and the bottom of each page of the list were labeled "CONFIDENTIAL TO BE VIEWED BY DR. LAMBERSON ONLY." Defendant allegedly misrepresented the number of signatures he collected and falsely reported that several parents 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 or she signed the petition. In the November 8, 2000, communication to Lamberson, defendant stated that he had spent three years lobbying Bruder and the former superintendent for plaintiff's removal as football coach. The complaint alleges that defendant's earlier public praise of plaintiff proves that he was not, in fact, dissatisfied with him.

[26]   Bruder recommended, Lamberson authorized, and the school board officially approved plaintiff'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 a consistent unhappiness, widespread discontent, with [plaintiff] as football coach for more than a decade." Defendant also stated, "I was probably the number one antagonist of an organized effort that involved hundreds of people. The thrust was not wins or losses, but rather that the kids don't respect him." On February 25, 2001, the Chicago Tribune published a third quotation in which defendant stated, "[y]ou've had an incompetent coach in place for a decade who used to be a good coach."

[27]   The record contains a letter addressed to a group of Lake Forest eighth-grade student athletes in which defendant praised plaintiff in the fall of 1997. The letter states, "Our community has a great coaching 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, not from being bombarded by constant coaching demands. [Plaintiff] builds teams of self-confident kids who 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 tribute to plaintiff in which defendant again praised plaintiff for his exceptional and compassionate coaching.

[28]   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 reckless disregard for their truth. These statements constitute libel and slander per se, and also caused or contributed to cause [plaintiff] to be removed as head varsity football coach at [the school], a position he dearly loved." Plaintiff earned an additional $7,500 annual salary at the time he was removed from the coaching position.

[29]   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 as to their truth or falsity and the false light in which plaintiff would be placed upon publication of the statements.

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

[31]   Defendant moved to dismiss the amended complaint, and the trial court denied the motion on November 1, 2001. Following the hearing, the trial court found that plaintiff is a public figure for purposes of the litigation.

[32]   Defendant subsequently filed a motion for summary judgment, in which he alleged that plaintiff could never prove that defendant acted with actual malice because 42 football parents provided defendant with statements similar to his own. Defendant argued that plaintiff's claims lack merit because the statements were true and because defendant did not act with reckless disregard as to their truth or falsity. Defendant quoted deposition testimony in which plaintiff acknowledged that defendant sincerely believed that each of the allegedly defamatory statements was true. Defendant's motion also included the deposition testimony of Bruder and Lamberson. Lamberson testified that the 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 at Lake 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 conflicts precluded him from serving as the head coach of both the football and baseball teams. At the hearing on the summary judgment motion, the parties essentially debated the truth of defendant's statements regarding plaintiff's performance as the head football coach. Plaintiff also argued that the issue of whether defendant acted with actual malice was a jury question that could not be resolved on a summary judgment motion.

[33]   The trial court granted defendant summary judgment, concluding that defendant's statements were privileged because he directed them toward the school, a governmental body. The court further concluded that defendant did not act with actual malice because he sincerely believed the veracity of the statements. Finally, the court emphasized Lamberson's testimony that defendant's petition did not influence 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 summary judgment on all three counts.

[34]   ANALYSIS

[35]   On appeal, plaintiff argues that defendant should not have been granted summary judgment because plaintiff is not a public figure and defendant abused a qualified privilege in working toward the removal of plaintiff as the football coach. Plaintiff contends that an issue of material fact exists that precluded the trial court from granting summary judgment. In all appeals from the entry of summary 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 the pleadings, affidavits, depositions, and admissions on file, when viewed in the light most favorable to the nonmoving party, show that there is no genuine issue of material fact and that the moving party is entitled to a judgment as a matter of law. 735 ILCS 5/2--1005(c) (West 2000); Bier v. Leanna Lakeside Property Ass'n, 305 Ill. App. 3d 45, 50 (1999). "Summary judgment is a drastic means of resolving litigation and should be allowed only when the right of the moving party is clear and free from doubt." Bier, 305 Ill. App. 3d at 50. "Therefore, where reasonable persons could draw divergent inferences from the undisputed material facts or where there is a dispute as to a material fact, summary judgment should be denied and the issue decided by the trier of fact." Espinoza, 165 Ill. 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 pleadings alone to raise issues of material fact. Hermes v. Fischer, 226 Ill. App. 3d 820, 824 (1992).

[36]   1. Defamation and False Light Invasion of Privacy

[37]   A statement is considered defamatory if it tends to cause such harm to the reputation of another that it lowers that person in the eyes of the community or deters third persons from associating with him. Bryson v. News America Publications, Inc., 174 Ill. 2d 77, 87 (1996). "To make out a claim for defamation, the plaintiff must set out sufficient facts to show that the defendants made a false statement concerning him, that there was an unprivileged publication to a third party with 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 actionable per se or actionable per quod. A publication is defamatory per se if it is so obviously and naturally harmful to the person to whom it refers that a showing of special damages is unnecessary and extrinsic facts are not needed to explain it. Dubinsky v. United Airlines Master Executive Council, 303 Ill. App. 3d 317, 323 (1999). A claim for ...


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