At the initial presentation of the Plaintiff's motion to reconsider on October 22, 2007, the Court entered and continued the motion until November 8, 2007. The motion seeks reconsideration of the grant of summary judgment on the counts for breach of the Defendants' promise to provide "free tutoring as needed," and the count for spoliation of evidence. The Plaintiff argues that the Court erred by failing to apply the doctrine of anticipatory repudiation, and that the Court should review the Defendants' privilege log to determine whether there is admissible evidence. The Court stated it would preliminarily review the motion, then determine whether to set a briefing schedule. The Court remarked that it would hear at trial the evidence regarding spoliation of evidence, and determine whether to instruct the jury that Plaintiff is entitled to an instruction that the evidence supports an inference in favor of the Plaintiff. Also set for hearing on November 8 is the damages report of Plaintiff's expert.
On September 14th the court rendered the following decisions on defendant's motion for summary judgement:
Summary judgement denied on counts I, VII & X.
Summary judgement granted on counts II, IV, V, VI, VII, IX.
Counts I and II allege, respectively, breach of express and of
implied contract, due to violations of University regulations, and
Plaintiff's rights to freedom of inquiry, as set forth in the University
manual and handbook. Freedom of inquiry, one of the most highly
protected freedoms in an academic community, is the freedom to
inquire without penalty or retribution. Counts IV and V allege
breach of express and implied contracts for financial aid
(especially free tutoring). Counts VII and VIII reallege
these breaches of contract with refinements based on discovery to
date. Count IX for spoliation of evidence was added for breach of
duty to preserve evidence by destroying thousands of potentially
relevant documents. Count VI alleges detrimental reliance on the
promises of the University. Count X is for tortious interference
Plaintiff filed a motion to reset the trial for the week of October 24, 2007. It was originally scheduled for the week of September 24, 2007. The judge has continued the motion to set a trial date until October 10th at which time the court will rule on defendants' motion to strike expert report on damages. The court had previously ruled on September 5, 2007 that, with respect to the damages arising from defendant's tortious interference with contract, expert testimony as to career damages will be limited to plaintiff's lost income in his first year of employment, had defendants awarded his Ph.D..
Rulings on counts IV and V, which involve breach of contract for financial aid (especially free tutoring), warrant explanation. Defendant originally promised the Plaintiff "free tutoring as needed." Subsequently, however, the University imposed limits on the tutoring budget, based on false pretenses. The second-year budget, which was based on tutoring at $60/hour, and not the $100/hour rate he had paid tutors in the first year, allowed for only 60% of the first-year expenditures. Plaintiff could not secure the needed tutoring at the billing rates necessitated by his reduced budget. The Court ruled that the University did not breach its obligations even though the University made it clear in advance that it would pay no more than the reduced budget amounts it had forced on Plaintiff. The Court ruled that Plaintiff could not establish a breach because he did not spend all the available funds, then ask the University for more, because the refusal to provide tutoring as needed at that point would be a breach of the contract. At the reduced rates, plaintiff was unable to obtain tutoring in some classes and not able to entice the best tutors in others. Due to the fact that in some classes he was unable to obtain tutoring, his expenditures were greatly reduced. Nonetheless, plaintiff attempted to learn the materials without a tutor and in the time allotted ended up just short of the academic requirements for advancing to candidacy. If plaintiff had made one letter grade higher in any of six courses, he would have met the 2003-04 academic requirements for advancement. Plaintiff contends that the inability to obtain a tutor in some classes and the inability to retain the best tutors in others adversely affected him. The court has ruled that since plaintiff did not exceed the budget the question of whether his tutoring as needed promise was breached is not as a matter of law suitable for evaluation by a trier of fact.
The additional affirmative defense is rendered moot by the ruling on "free tutoring" in Counts IV and V. Motions regarding clarification of damages continue. Defendants have until Sept. 19 to file their motion to strike the expert report. On Sept. 19, Defendants served a letter objecting to the expert report; on Sept. 26, Plaintiff filed his response. The motion will be heard on Oct. 10, at which time the court will clarify the application of its ruling on the measure of damages. The trial has been suspended until such damages are resolved. A new pretrial calendar will be set on October 10th. However, it appears that the plaintiff's motion to reconsider will not be filed in time for defendant to respond so the calendar could be extended for several weeks.
The court has determined plaintiff's entitlement to attorneys' fees and costs due to the belated production of the 1200 documents. The magnitude of the award is at issue in the fee petition and a refiled petition is awaited. The pending fee petition continues to be set the over indefinitely (since June 5th) with instructions to concentrate on getting the case ready for trial.
The court continues to reserve ruling on defendants' petition for duplicate costs arising
from the plaintiff's 2nd amended complaint.
In his suit against the University, three claims are now at issue.
Vernón is represented by Elaine Siegel (ELAINE K.B. SIEGEL & ASSOC., P..C., 39 South
LaSalle Street, Suite 617, Chicago, Illinois 60603, (312) 236-8088,
Vernón, a kukkiwon certified black belt, is one of Chicago's
most prominent non-projectile weapons practitioners and most popular
beach personalities. He often performs using the nickname "Tony the
Tiger". You may have seen him perform July 3rd in the Wilmette
Parks District Independence Day Celebration. Plaintiff notes the imminent release of his "Summer 2006 Highlights" video, which will include some 50 video clips from the last year. He was the 1st
middleweight collegiate athlete to deadlift 600 lbs. without using
steroids. His father, Dr. Carlos Vernón (1937-2003), was the
1957 Athlete of the Year for the Republic of Panama and is the
greatest sprinter in Latin American history. He ran a 10.2 when the
world record was 10.1.
Donations to his legal fund by check and money order, at
Vernón Legal Fund, 1507 E. 53rd. St. - #608, Chicago, IL
60615 are welcomed. Donations by credit card and electronic payment
can be made via free paypal accounts (from www.paypal.com) to
firstname.lastname@example.org or email@example.com.