McGrath v. Fahey

• Decision Date: 20 November 1987
• Docket Number: No. 86-2994,86-2994
• Citation: 117 Ill.Dec. 304,520 N.E.2d 655,163 Ill.App.3d 584
• Parties: , 117 Ill.Dec. 304 Dr. Harold F. McGRATH, Plaintiff-Appellant, v. Robert P. FAHEY and First Security Bank of Glendale Heights, n/k/a Du Page County Bank of Glendale Heights, Defendants-Appellees.
• Court: United States Appellate Court of Illinois

Page 655

520 N.E.2d 655

163 Ill.App.3d 584, 117 Ill.Dec. 304

Dr. Harold F. McGRATH, Plaintiff-Appellant, v. Robert P. FAHEY and First Security Bank of Glendale Heights, n/k/a Du Page County Bank of Glendale Heights,

Defendants-Appellees.

No. 86-2994.

Appellate Court of Illinois,

First District, Fifth Division.

Nov. 20, 1987.

William J. Harte, Jeffrey B. Whitt, of counsel, William J. Harte, Ltd., Chicago, for plaintiff-appellant.

Michael J. Gallagher, Bruce M. Wall, Susan E. Seiwert, Judith A. Schieber, of counsel, Cassiday, Schade & Gloor, Chicago, for defendants-appellees.

Justice MURRAY delivered the opinion of the court:

Plaintiff, Dr. Harold F. McGrath, appeals from an order of the circuit court of Cook County dismissing his complaint against defendants, Robert P. Fahey and First Security Bank of Glendale Heights, now known as Du Page County Bank of Glendale Heights, charging them with the infliction of emotional distress caused by defendants' intentional or reckless conduct. The only issue on appeal is the sufficiency of plaintiff's complaint. For the reasons set forth below, we reverse and remand the cause for further proceedings.

The record discloses that defendants' alleged infliction of emotional distress arose as a result of defendants' refusal to release certain funds deposited under various accounts in defendants' bank. Specifically, plaintiff alleged that the following events occurred:

1982--Plaintiff and his partner Terrace Management, Inc., entered into a real estate contract to sell certain apartment buildings owned by them to James Elliot, owner of the First Security Bank of Glendale Heights, now known as Du Page County Bank of Glendale Heights (the bank). Subsequently, the parties accused each other of fraud concerning their real estate contract and plaintiff and his partner lost approximately $4 million.

May 18, 1983--Plaintiff attempted to arrange with the bank for the transfer of ten certificates of deposit totalling over $1 million, but was told that no one with authority was available to handle the transaction.

May 19--Plaintiff spoke to Robert P. Fahey, president of the bank, concerning the transfer of the certificates. Fahey asked plaintiff's intentions concerning the certificates, then advised plaintiff they could not be withdrawn because of problems which had arisen concerning the real estate contract. Plaintiff told Fahey the certificates had no connection with the contract and were, instead, being held in trust for his children and employees. Fahey accused plaintiff of being involved in a scheme to defraud the bank in connection with the contract. Plaintiff advised Fahey he was a victim, not a participant, of any scheme and again asked, but was refused, release of the certificates.

May 20--Plaintiff called Wayne M. Kwiat, the attorney who handled the real estate contract matter, concerning the bank's refusal to release the certificates. Kwiat arranged a meeting with Robert D. Glick, the bank's attorney, for May 23.

May 23--Plaintiff, Kwiat and Glick met at Kwiat's office. Plaintiff told Glick his father had died young from a heart attack, that heart problems ran in his family and that the refusal of the bank to release the certificates was making him extremely anxious and he was concerned about the effect on his health. Glick refused to discuss the certificate matter; he said he would only discuss the real estate contract matter and, at the same time, told plaintiff he must assign to the bank his interest in certain second mortgages held in connection with the contract and, if he refused to do so, the bank would financially ruin him and his medical practice. Glick then repeated his refusal to release the certificates.

May 24--Plaintiff called and met with Edward T. Joyce of Joyce & Kubasiak, P.C., concerning the certificate matter. Joyce called Glick and told him that the bank had no legal right to hold the certificates and informed him that plaintiff was becoming physically ill over the matter; plaintiff had become ill during the meeting with Joyce. Glick again refused to release the certificates.

May 25--Martin W. Salzman, an attorney in Glick's law firm, responded to a prior letter of Joyce that the bank needed execution and appropriate documentation and delivery of the original certificates of deposit in order to make a wire transfer of the certificates to Northern Trust Company, even though Joyce's letter had included the signatures of plaintiff and his wife authorizing release of the certificates.

Plaintiff suffered a massive heart attack and underwent open heart surgery.

Richard J. Cremieux, an attorney with the law firm of Joyce & Kubasiak, P.C., advised Glick of plaintiff's heart attack and asked for the release of the certificates. Glick stated he would not transfer the certificates not because of any documentation problem but because no transfer could take place until plaintiff assigned his second mortgages to the bank which he held in connection with the real estate contract. Glick also threatened to tie up the certificates for five years.

May 26--Joyce spoke with Salzman who agreed to transfer the certificates.

Shortly after the transfer of the certificates--The bank refused eight drafts drawn by plaintiff on a checking account owned by plaintiff and his wife, a checking account owned by Terrace, and an insured money market fund of McGrath Cousins Corporation, Inc., owned by the Josephine A. McGrath Trust. Plaintiff further alleged that these accounts had no connection with the real estate contract dispute and that one of defendants' attorneys had assured plaintiff there would be no problem with the withdrawal on any of the accounts upon which plaintiff was the signatory, except for one account relating to the real estate contract.

August--While plaintiff was home recuperating from his heart surgery, Fahey called him. Plaintiff told him he did not wish to speak to him. Fahey nonetheless called plaintiff a couple of times more. Consequently, plaintiff's attorneys called Salzman and insisted the bank call them and not plaintiff, especially in light of plaintiff's health.

August 16--The bank filed a lawsuit against plaintiff and others concerning the real estate contract dispute.

August 17--Fahey sent plaintiff a letter stating it was setting off the three accounts against the amount it claimed due in its lawsuit against plaintiff.

August 18--Cremieux messengered a response to the bank's letter to Salzman advising him of Fahey's ongoing attempt to coerce plaintiff into surrendering his second mortgages in connection with the real estate contract dispute and of the additional stress inflicted upon plaintiff by Fahey's conduct.

Based upon defendants' conduct during the entire period, plaintiff filed a complaint against defendants alleging that they intended to inflict severe emotional distress upon him "or acted recklessly in deliberate disregard of a high degree of probability that emotional distress would result" from their actions. The trial court, upon motion by defendants, dismissed plaintiff's complaint pursuant to section 2-615 of the Code of Civil Procedure for failure to state a cause of action (Ill.Rev.Stat.1985, ch. 110, par. 2-615), holding that defendants' alleged conduct did not constitute the extreme and outrageous conduct required for recovery on a theory of intentional infliction of emotional distress. This appeal followed.

It is well settled that an action should not be dismissed pursuant to section 2-615 of the Code of Civil Procedure (Ill.Rev.Stat.1985, ch. 110, par. 2-615) for failure to state a cause of action or for insufficiency at law unless no set of facts could be proved under the pleadings which would entitle a plaintiff to relief. (Iverson v. Scholl, Inc. (1985), 136 Ill.App.3d 962, 91 Ill.Dec. 407, 483 N.E.2d 893.) In addition all well pleaded facts and all reasonable inferences able to be drawn from those facts must be accepted as true (City of Chicago v. Department of Human Rights (1986), 141 Ill.App.3d 165, 95 Ill.Dec. 580, 490 N.E.2d 53) and the allegations of the complaint are to be interpreted in a light most favorable to the nonmovant (Iverson v. Scholl, Inc. (1985), 136 Ill.App.3d 962, 91 Ill.Dec. 407, 483 N.E.2d 893). The necessary elements of a cause of action for the intentional or reckless infliction of emotional distress are: (1) extreme and outrageous conduct; (2) severe emotional distress suffered by the plaintiff; (3) intent by the defendant to cause or a reckless disregard by the defendant of the probability of causing emotional distress; and, where applicable, (4) extreme and outrageous conduct which arises from an abuse of a position or relationship by a party with another who has actual or apparent authority over the other party or power to affect the other party's interests. Public Finance Corp. v. Davis (1976), 66 Ill.2d 85, 4 Ill.Dec. 652, 360 N.E.2d 765.

We briefly observe that prior to 1961 there was no such tort in Illinois as the intentional infliction of emotional distress. In 1961, our supreme court decided that peace of mind was of sufficient importance to receive protection from an intentional...