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Marshall Law

Tubby's trial: the curious case of missing claims

By Marshall H. Tanick

Few lawsuits, especially civil litigation, attract as much attention as the recently-concluded trial involving University of Minnesota men's basketball coach Tubby Smith. The 8-day jury trial, brought by erstwhile assistant coach Jimmy Williams, yielded a breathtaking $1.25 million verdict by a Hennepin County District Court jury in late May.

The case generated enormous media attention, both locally and nationally, for several reasons: the high profile characters coupled with a stellar cast of witnesses, including Minnesota basketball legends, Kevin McHale and Jim Dutcher, as well as former member of Congress Jim Ramstad on behalf of Williams; the novelty of the subject matter; and the cross-over nature of the litigation attracting interest from sports fans, casual observers, and the general public alike.

The litigation, which dates back three years, stemmed from Williams' claim that the day after Smith was hired as the new coach at the University he offered him a $200,000 job as an assistant, which prompted Williams to immediately quit his assistant coaching position at Oklahoma State University, and put his house there on the market.

But the deal fell apart a day later when University Athletic Director Joe Matturi told Smith that he could not hire Williams. He pointed to past NCAA rules infractions in which Williams was involved on two occasions while serving as an assistant coach at the University in the 1970's- 1980's.

The jury found in favor of Williams on the only liability issue presented to it: negligent misrepresentation. The theory of the case, at that stage, was that Smith carelessly misrepresented to Williams that he had authority to make the hiring decision, when he did not, and that Williams reasonably relied upon that assurance to his detriment.

The University, whose insurer supposedly will foot the bill, accepted the verdict as a poor loser. With remarkable lack of grace, it called the verdict "unjustified" and pledged to challenge the outcome in post-trial and appellate proceedings. The school maintained that it is "not in a position to be doling out public funds to people who don't deserve them," even though the funds apparently come from their insurance carrier and Williams, at least in the eyes of the jury, was quite deserving.

In addition to the public interest, the case has some noteworthy, but overlooked jurisprudential features regarding how the case got to the jury and what was presented to it. They raise some interesting and important lessons for lawyers and other litigants.

Contract Case

The claim by Williams essentially was that Smith, acting on behalf of the University, promised him a job and did not provide it. That sounds like a basic breach of contract claim.

Alternatively, the claim could be clothed as promissory estoppel, an alternative to a breach of contract cause of action. See "Estoppel Doctrine Easy to Assert, Hard to Establish" in the March 1, 1999, edition of Minnesota Lawyer. The elements of estoppel consist of clear and definite representations made to a party, without a contract, which are reasonably relied upon to the detriment of the other party and must be enforced to avoid injustice. Grouse v. Group Health Plan, Inc., 306 N.W.2d. 414 (Minn. 1981).

But neither of these quintessential contract claims of contract breach or estoppel were tried to the jury.

Williams initially brought the suit against the University and Athletic Director Maturi, asserting 13 different claims, including breach of contract, interference with contract estoppel and equitable estoppel, defamation, violation of the Federal Civil Rights Act, 42 U.S.C., § 1983, violation of Constitutional rights, and negligent misrepresentation. The Trial Court threw out all of the claims of Summary Judgment, reasoning that because University employment decisions can only be subject to review on certiorari by the Court of Appeals within 60 days, the district court lacked jurisdiction to hear any common law claims and the § 1983 Constitutional claims did not state a legally cognizable cause of action.

The Appellate Court agreed with most of the trial court's decision in Williams v. Board of Regents of University of Minnesota, 763 N.W.2d 646 (Minn. App. 2009). Williams raised two issues on appeal: (1) whether the trial court properly dismissed the Constitutional claims; and (2) whether the trial court lacked jurisdiction over three of the common law counts of promissory estoppel, equitable estoppel, and misrepresentation.

The Appellate Court upheld the lower court's finding that the Constitutional claims lacked merit. A pair of Due Process claims based on assertion of property interest were not actionable because Williams did not use the University's grievance process. A new claim, raised for the first time on appeal, of denial of a predetermination hearing, was not adjudicated because it was "not argued and considered by the Court below." A claimed violation of Williams' liberty interest because of deprecatory statements made about him by the University was not actionable because the statements were substantially true. The Athletic Director could not be sued because he was entitled to "qualified immunity" for the §1983 claims.

The common law promissory estoppel and equitable estoppel claims also were properly dismissed based on the doctrine that certiorari is the only remedy for challenges to the "University's ultimate decision not to employ" claimant, which barred the estoppel claims. The various contract claims dismissed below were not appealed at all.

But the negligent misrepresentation claim constituted a tort that was cognizable in the district court. Unlike the estoppel claims, which required a determination that the "University's internal decision making process," the negligent misrepresentation claim would "focus" on representations made to him, his reliance, and whether he incurred harm as a result of the alleged misrepresentation." Because the University did not discharge him, no hiring decision was at issue, which removed that claim from the ambit of certiorari, allowing the district court to pass upon this tort claim on remand.

Thus, the Appellate Court overturned the trial court ruling to the extent that allowed the negligent misrepresentation claim to survive. Williams capitalized on that turn-over and proceeded to try to prevail on the negligent misrepresentation claim. Although the case may have sounded better in contract or promissory estoppel, a blended tort and contract-type claim, the negligent representation sounded good enough for the jury.

It was this issue that went to trial against Smith, the last-standing defendant. In fact, Smith was not even in the case when it began. He was not added until two years later, when he was named as a defendant in a separate suit, which was consolidated with the original case.

He became the only defendant at a trial that concerned only one claim: negligent misrepresentation. The jury found in favor of Williams on all elements of the claim and awarded him more than six times his annual lost wages.

Inducement Issue

Another issue that was missing from the case was a claim under the state law barring false statements as inducement to hiring an employee. Dating back to 1913, the rarely-invoked measure, Minn. Stat. § 181.64, makes it unlawful to "induce, influence, persuade, or engage any person ... by means of knowingly false representations."

The statute seems primarily aimed at encouraging "scabs" to take jobs during a strike or lock-out without disclosing that "such strike or lock-out did not actually exist in such employment at such place." The statute has seldom been the subject of litigation, and it is so lightly regarded that it has not generated any appellate case law.

The statute describes the prohibited conduct as "unlawful," which constitutes a misdemeanor under § 181.65. A 1986 amendment to the law also provides for civil remedies, including "all damages sustained" and reasonable attorney's fees. No claim was asserted by Williams under the statute nor any criminal prosecution brought against Smith.

Even without these claims for breach of contract, promissory estoppel, and statutory inducement, Williams managed, to mix a metaphor, to hit a home run with the $1.25 million verdict, although falling short of the grand slam $1.7 million that he asked the jury to award.

Whether the verdict will survive post-trial and appellate proceedings anticipated to be brought by the University remains to be seen. Whatever occurs, however, is likely to continue to attract significant attention by the public and raise conundrums for consideration by counsel.

Marshall H. Tanick is a senior partner of Mansfield Tanick & Cohen, P.A. He can be reached at 800-4016-194.