# Myers v. Levy > Appellate Court of Illinois · April 27, 2004 · 348 Ill. App. 3d 906 URL: https://www.frixlaw.com/law-library/cases/9720969 ## Case - **Full name:** TOM MYERS, Plaintiff-Appellant, v. NELSON LEVY, Defendant-Appellee - **Court:** Appellate Court of Illinois - **Decided:** April 27, 2004 - **Citations:** 348 Ill. App. 3d 906; 283 Ill. Dec. 851; 808 N.E.2d 1139; 2004 Ill. App. LEXIS 430 - **Precedential status:** Published - **Opinion:** Concurring in part by O'Malley - **Judges:** Byrne, O'Malley - **Cited by:** 21 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9720969 ## Opinion text PRESIDING JUSTICE O’MALLEY, specially concurring in part and dissenting in part: I dissent on two grounds. First, the defamation and false light counts should be reinstated, not just as to defendant’s statements concerning plaintiffs competence as a coach, but also as to defendant’s statements concerning plaintiffs reputation among the parents of football players. Contrary to the majority, I believe that a reasonable jury could find that defendant did not prove the substantial truth of the latter statements. The majority reduces the issue of substantial truth to the question of whether one number forms a substantial part of another number. For the majority, the question is simply whether a jury reasonably could find that defendant’s allegation that 105 football parents and 36 football players signed the petition for removal was substantially proven with evidence that only 42 parents and 23 players signed the petition. Given the disparity between these numbers, I cannot see how a court can presume that no reasonable jury could find that defendant’s assertion was not substantially proven. Yet, in my view, this is not the real question before us. The majority has diluted plaintiffs allegations of false light invasion of privacy (hereinafter false light) and defamation. Plaintiffs claims for defamation and false light do not rest entirely on defendant’s failure to produce the signatures he claimed to have obtained. Plaintiff might have asked us simply to infer that the signatures defendant failed to produce never existed, but he does more than that. He attaches to his complaint statements from 6 of the 150 alleged signatories in which they positively deny that they signed the petition. In my view, plaintiffs claim that defendant falsely asserted that these six individuals signed the petition itself constitutes a claim for false light and defamation. Therefore, the majority could not rightfully uphold the dismissal of plaintiffs complaint unless no reasonable jury could find that defendant failed to establish the gist of his claim that these individuals signed the petition. The majority does not undertake this analysis, however, but instead diverts attention from the substance of plaintiffs allegations. What plaintiff has alleged is not simply defendant’s failure to substantiate his claim to have X number of signatures, but also defendant’s outright falsehood that he had obtained the signatures of the six individuals. Symptomatic of the majority’s erroneous approach is how it concludes its analysis: “[W]e conclude that [defendant] established the gist of his assertion that many parents did not approve of plaintiffs performance as coach.” 348 Ill. App. 3d at 921. This is an inappropriate broadening of defendant’s remarks. The basis of plaintiffs lawsuit is not that defendant asserted vaguely that “many parents did not approve of plaintiffs performance as coach,” but that defendant falsely identified specific individuals as signatories of the petition and, therefore, as having the opinion that plaintiff was a poor coach. The question is whether a jury reasonably could find that defendant established the gist of his assertion that identifies specific individuals as signatories. This is a fact question that precludes summary judgment. The majority suggests that my position “would effectively eliminate the defense of substantial truth.” (Emphasis omitted.) 348 Ill. App. 3d at 921. Far from it. I accept the defense of substantial truth. What I insist on is that our court properly recognize the allegedly defamatory remarks whose truth is at issue. Plaintiff takes issue with, inter alia, defendant’s assertion that six specific individuals named in the petition actually signed it. That assertion is itself defamatory and places plaintiff in a false light. Plaintiff controverted the assertion with attachments to. his complaint. The issue, therefore, is whether defendant can show the substantial truth of that particular, definite assertion, not of the vague assertion that many parents did not care for plaintiffs coaching. Contrary to what the majority claims, plaintiff does not recite anything approaching the latter assertion in his complaint, and to devote attention to this illusory assertion, as does the majority, diverts attention from the substance of this lawsuit. I dissent also from the affirmance of the trial court’s summary judgment on count III, which alleges tortious interference with prospective economic advantage. While I agree with the majority that “Bruder and Lamberson testified that defendant’s conduct did not affect the decision to remove plaintiff as the coach,” I do not agree that their testimony was “unequivocal and uncontroverted.” 348 Ill. App. 3d at 922. 1 Bruder and Lamberson both testified that the decision not to retain plaintiff as head football coach was due entirely to a new bylaw of the Illinois High School Association that allows coaches of teams in sports programs that do not have summer seasons to have a maximum of 25 summer training days with each team. Bruder and Lamberson both testified that plaintiffs contract to coach football was not renewed solely because they believed he would be unable to comply with the bylaw and still effectively coach both baseball and football. While Bruder and Lamberson both were challenged extensively in their depositions on this claim, I will focus primarily on Bruder’s description of her rationale for not recommending that plaintiff be retained as football coach, because Lamberson testified that he deferred to Bruder’s judgment on that point. Bruder testified that defendant began pressing for plaintiffs termination as football coach in January 2000 and continued his efforts throughout the following summer and fall. She also testified that, although the bylaw came into effect in June 2000, she did not decide to release plaintiff as football coach until January 2001. She further testified that, in October 2000, defendant told Bruder that if plaintiff was not fired as football coach, “they” would have Bruder fired. To impeach her on these points, plaintiffs counsel showed Bruder an e-mail from defendant to one Joanne Mullen, dated October 29, 2000, in which defendant reported that Bruder had decided not to retain plaintiff as football coach. Defendant wrote, however, that he still wanted to send Bruder a petition to “provide overwhelming parental support” for plaintiff’s termination rather than some “wimpy” alternative remedy. Bruder agreed that the e-mail was sent after defendant had threatened her, but she denied that she had already made her decision to fire plaintiff when the e-mail was sent. I do not see how Bruder’s testimony can be described as “uncontroverted” given this impeachment of her claim that she did not accede to defendant’s demands. Bruder’s claim as to why plaintiff was fired was controverted in other ways as well. She testified that, when she admonished plaintiff in October 2000 that the bylaw might have the effect of barring him from coaching both football and baseball, in which case he would be forced to choose between the two, he responded that he did not wish to give up a sport, but, if forced to choose, would select baseball. Bruder testified that, throughout November and December, plaintiff continued to protest the prospect of having to select a sport and reiterated that he would select baseball if forced to choose. Bruder testified, however, that when she decided in January 2001 that plaintiff could not coach both baseball and football, she “unilaterally” decided to remove him from football, not baseball: “Q. Before you made the final decision in January 2001, okay, did you consult with — did you ask [plaintiff] at that time, the decision has been — did you tell him, lookit [sic], we — we’ve made the decision, you can only have one? Did you say it to him that way or did you just tell him you are no longer the head football coach? A. I — to the best of my recollection, I believe I said that I’d already made the decision. Q. That you had already made the decision? A. Yes. Q. Okay. But the decision you’re talking about to us today is the decision that — that he could not hold both varsity positions, correct? A. Correct. Q. Okay. My question to you is— A. Mm-hmm. Q. —in January of 2001 when you said you made [sic] decision that he could not hold both positions— A. Mm-hmm. Q. —did you offer him to now choose between either football or baseball in January 2001? A. No, I did not. Q. So at that time you unilaterally made the decision that you would — or you make a recommendation, I take [sic] — Dr. Lamberson makes the ultimate decision, according to your testimony— that it was your decision that he longer be the head varsity football coach, correct? A. That is correct. Q. So as you sit here today, you don’t know what decision he would have made in January of 2001 had you offered him one or the other, correct? A. I don’t know what — -that it [sic] would be correct, um-hum.” Thus, although plaintiff had remarked previously that he would select baseball if forced to choose between sports, Bruder did not rely on those remarks or obtain new input from plaintiff in recommending that plaintiff be removed as football coach. Why did she choose baseball for plaintiff without obtaining his input? She could not have been relying entirely on the bylaws, for they did not determine which sport of the two plaintiff should coach. Although Bruder never explicitly stated her reasons for choosing baseball for plaintiff, the following exchange is revealing: “Q. *** And after considering the issues on the side voiced by [defendant], you eventually made the decision to remove [plaintiff], correct? A. Wasn’t the only part of the decision that— Q. I know— A. —was made— Q. It wasn’t the only part, but those issues were considered, correct? A. Yes. # sf: Q. *** [I]n January of 2001, you never asked [plaintiff], which job do you want? Do you want to — in January before you made the final decision, you didn’t ask him, which job do you want, to be the head varsity football coach or the head varsity baseball coach, correct? A. That is correct. Q. You said — that is correct. And in January of 2001, after this campaign by [defendant], and after all of the issues that you considered, voiced by [defendant] as the number one antagonist, you chose not to offer [plaintiff], in January of the year 2001, to remain as head varsity football coach. You said at that time that he was no longer gonna be renewed as the head varsity football coach. Correct? A. Correct. Q. Thank you, when you said earlier that a parent can voice concerns, and you take into consideration what a parent may say about the athletic programs that — athletic high school — you take into consideration, as you did in the issues in this case, correct? A. Correct. Q. Okay. And that’s because you are responsive as a community leader or community — what did we suggest you were earlier — a community professional exercising professional judgment — it’s okay for you to take into consideration their opinion — their—not only their opinions but there [sic] — their opinions, correct? A. It’s part of my job, yes.” Bruder acknowledged not only the obvious fact that, as the athletic director of a public high school, she considers the opinions of community members in making her decisions regarding the school’s athletic programs; she also acknowledged that she considered defendant’s opinion of plaintiff in reaching her decision not to retain plaintiff as football coach. A jury reasonably could find, in light of these admissions, that defendant’s campaign against plaintiff influenced Bruder’s decision not to retain plaintiff as football coach and that her conclusory denial that defendant influenced her was self-serving and incredible. The majority recounts none of the flaws in Bruder’s account but simply notes that Bruder testified that “plaintiff was removed because summertime scheduling conflicts precluded him from serving as the head coach of both the football and baseball teams.” 348 Ill. App. 3d at 912. Lamberson’s testimony also is telling. Lamberson testified that he had several meetings with Bruder in the fall of 2000. The topic was the growing disapproval among football parents of plaintiffs coaching. Plaintiff was present at the first and last of these meetings. At the first meeting, which occurred near the end of the football season, plaintiff remarked that he was the subject of a “witch hunt” and asked whether he would be removed as football coach. Lamberson deferred to Bruder, who told plaintiff that the decision would not be made until well after the season had ended. At the next meeting, Lamberson and Bruder discussed the petition that she had recently received from defendant and other football parents. At the following meeting, Bruder told Lamberson that she “was coming to closure on the decision about whether [plaintiff] would be the head football coach for next year.” Plaintiff was present at the next meeting. Before plaintiff entered the meeting room, Bruder told Lamberson that she “felt very comfortable moving in the direction of not having [plaintiff] as head football coach so that he could dedicate fall time opportunities for the baseball program.” Bruder did not mention the possibility of retaining plaintiff for football rather than baseball. When plaintiff entered the room, Bruder told him she was “leaning in the direction of having him focus on baseball” but had not made a final decision. Afterwards, plaintiff told the press that he had been fired as football coach. Lamberson’s testimony was consistent with Bruder’s in that both indicated that Bruder decided, independently of plaintiff, not only that plaintiff would no longer coach both football and baseball but that baseball, not football, would be the sport that plaintiff would continue to coach. Neither Lamberson nor Bruder clearly indicated what led Bruder to retain plaintiff for baseball instead of football. However, as noted above, certain aspects of Bruder’s testimony suggest that she was influenced by defendant’s lobbying. I believe there is enough ambiguity in the relevant testimony to raise a fact question for the jury as to whether defendant influenced Bruder’s decision to remove plaintiff as football coach. The majority claims that “[p]laintiff has offered no evidence to impeach Bruder and Lamberson.” 348 Ill. App. 3d at 922. This is incorrect. Plaintiff offers ample evidence, citing relevant portions of the depositions to support his argument. It is the majority that provides no reason to believe that the evidence plaintiff cites does not impeach Bruder and Lamberson, as it clearly does. The majority also claims that I merely “speculate” that certain aspects of the decisional process leading to plaintiffs termination as football coach “render[ ] [Bruder’s and Lamberson’s] unequivocal testimony incredible.” 348 Ill. App. 3d at 922. The majority makes no attempt to show in what way my analysis, based squarely on the deposition testimony cited by plaintiff, is mere speculation. At any rate, I have not concluded that Bruder’s and Lamberson’s testimony is incredible but, rather, that a reasonable jury could regard it as such. Because material facts are in dispute, I believe summary judgment is inappropriate. While I disagree with this description, I would find summary judgment inappropriate even if Bruder’s and Lamberson’s testimony was flawless. Plaintiff has alleged that Bruder’s and Lamberson’s deliberations over whether to retain plaintiff as football coach under the bylaws occurred simultaneously with defendant’s defamatory campaign to remove plaintiff as incompetent. Given this context, it is error for the majority to presuppose that even uncontroverted testimony from Bruder and Lamberson would not raise a material question of fact, because it is the fact finder’s province to assess the credibility of Bruder and Lamberson. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9720969. Public record. Not legal advice.