Pavlik v. Kornhaber, No. 1-00-1586.

CourtUnited States Appellate Court of Illinois
Citation761 N.E.2d 175,326 Ill. App.3d 731,260 Ill.Dec. 331
Docket NumberNo. 1-00-1586.
PartiesJennifer PAVLIK, Plaintiff-Appellant, v. Bruce KORNHABER, PhD. individually and in his capacity as President and CEO of Kornhaber, Manka & Associates, Ltd., d/b/a Community Counseling Associates; and Kornhaber, Manka & Associates, Ltd., d/b/a Community Counseling Associates, Defendants-Appellees.
Decision Date20 November 2001

761 N.E.2d 175
326 Ill.
App.3d 731
260 Ill.Dec.
331

Jennifer PAVLIK, Plaintiff-Appellant,
v.
Bruce KORNHABER, PhD. individually and in his capacity as President and CEO of Kornhaber, Manka & Associates, Ltd., d/b/a Community Counseling Associates; and Kornhaber, Manka & Associates, Ltd., d/b/a Community Counseling Associates, Defendants-Appellees

No. 1-00-1586.

Appellate Court of Illinois, First District, Second Division.

November 20, 2001.


761 N.E.2d 178
Sandra G. Nye, Law Offices of Nye & Associates, Ltd., Chicago, for Appellants

Sandra Young, D. Timothy McVey, Michael D. Sanders, Purcell & Wardrope, Chtd., Chicago, for Appellees.

Justice GORDON delivered the opinion of the court:

Plaintiff Jennifer Pavlik appeals from the circuit court's dismissal of her complaint against defendants Bruce Kornhaber and Community Counseling Associates (CCA) under section 2-619 of the Code of Civil Procedure (735 ILCS 5/2-619 (West 1996)). The circuit court held that because Pavlik alleged only personal injuries, her negligence, intentional infliction of emotional distress, nuisance, fraud, and breach of fiduciary duty counts were all barred by the two-year statute of limitations set out in section 13-202 of the Code of Civil Procedure (735 ILCS 5/13-202 (West 1996)). In this appeal, Pavlik argues that the residual 5 year limitations period (735 ILCS 5/13-205 (West 1996)) applies to her nuisance, fraud, and breach of fiduciary duty counts and that defendant perpetrated actionable conduct against her within the two-year limitations period for the negligence and intentional infliction of

761 N.E.2d 179
emotional distress counts. For the reasons stated below, we reverse the circuit court's holding on the intentional infliction of emotional distress counts, and affirm the court's dismissal of the negligence, nuisance, fraud, and breach of fiduciary duty counts

BACKGROUND

Defendant Bruce Kornhaber is a principal and professional staff member of Kornhaber, Manka & Associates, Ltd., doing business as Community Counseling Associates (CCA), a company that contracts with counselors, therapists and licensed professionals to provide mental health services to the public. According to Kornhaber's affidavit, attached to his section 2-619 motion to dismiss, he is not a medical doctor, nor is he a clinical psychologist, nor a social worker. Kornhaber has a Ph.D. in counseling and psychology, is certified by the National Board of Certified Counselors, and works as a therapist. The parties do not dispute that in 1982, Kornhaber undertook two therapy sessions with Pavlik, then a teenager, through CCA. In June of 1994, Pavlik was hired by CCA as a therapist in her first professional position after receiving her Master's of Social Work. Pavlik's mother was also employed at CCA at this time.

Pavlik brought suit against both Kornhaber and CCA on November 1, 1996. As amended, the complaint alleges a total of nine counts, the first five against Kornhaber individually and the last four against CCA. Count I alleges negligence by Kornhaber in conducting therapy with Pavlik during 1994. Count II claims nuisance arising out of Kornhaber's alleged misrepresentation of himself as a psychologist and clinical psychologist in violation of the Clinical Psychologist Licensing Act (225 ILCS 15/1 et seq. (West 1996)). Count III alleges that Kornhaber committed fraud by this misrepresentation of his credentials; count IV alleges breach of fiduciary duty and count V sounds in intentional infliction of emotional distress. Counts VI and VII allege both respondeat superior and direct corporate negligence against CCA. Count VIII alleges direct nuisance by CCA and count IX alleges direct intentional infliction of emotional distress.

In the common facts section of her complaint, Pavlik states that as a requirement of her employment as a fledgling therapist with CCA, she received both professional supervision and counseling from Kornhaber. During the course of this dual relationship, Pavlik alleges that Kornhaber initiated a campaign of egregious and offensive sexual overtures and used his position as a therapist and employer in an attempt to get her to submit to his desires. Pavlik's complaint alleges that as a result of Kornhaber's behavior she became confused, anxious, and depressed, that her self-esteem plummeted, that her trust in the psychotherapeutic process was impaired, that her career development was impeded, and that her general psychological condition worsened. By her complaint, Pavlik sought money damages to compensate for these harms.

In support of her allegations, Pavlik's pleadings include at least 14 different memos, letters, and handwritten notes addressed from defendant which make various sexual suggestions, requests, and demands. An August 6, 1994, "Weekly Status Meeting" memo from Kornhaber asks Pavlik to bring an "Open Mind, Warm Heart & Heavy Breathing" to their next "FALLING IN LOVE WITH YOU MEETING." An August 14, 1994, letter with a CCA header discusses his "clitoral envy" and states that "under the terms of the contract you will be responsible to limit your orgasms to a one-to-one ratio in exchange for terms such as

761 N.E.2d 180
travel expenses, raises, vacation pay, etc." Typed undated correspondence from Kornhaber elaborates on an infatuation with her underarms and the inside of her nose. Pavlik alleged that during one face to face encounter, defendant actually stuck his tongue in her nose. In addition, Pavlik's pleadings include a large packet of explicit advertisements for "erotic phone fantasies," including pictures, allegedly sent to her by Kornhaber. Some of the notes from defendant are addressed to "Jen Pelvic." The medical affidavit attached to plaintiff's complaint as required under section 2-622 of the Code of Civil Procedure (735 ILCS 5/2-622 (West 1996)), details that numerous times throughout her employment Kornhaber required Pavlik to stay in the office after work hours and to meet him outside the office. These meetings allegedly involved unwanted sexually explicit discussions and unwelcome and offensive touching or gestures. Kornhaber allegedly subjected Pavlik to long discussions about intimate relations with his wife and explicit fantasies about Pavlik herself. Pavlik's complaint indicates that from its inception she found this behavior offensive and unacceptable

According to the complaint, this behavior continued from July 1994, until Pavlik terminated her employment at CCA on November 1, 1994. In Pavlik's answer to the bill of particulars demanded by defendants, she indicates that formal clinical supervision and psychotherapeutic counseling with Kornhaber took place two or three times per week from July 27 through October 17, 1994, at various locations including the CCA offices, restaurants, and Kornhaber's home. Pavlik further admits that October 17 was the last date of any formal psychotherapeutic counseling by Kornhaber. Based upon this statement, two years and fourteen days passed between the date of the last psychotherapeutic counseling session and Pavlik's initial filing on November 1, 1996.

Pavlik's complaint also includes a November 4, 1994, letter sent by Kornhaber to Pavlik and her mother which, while admitting "I believe I must be some, all or part of, the reason for your feeling the need to depart so abruptly," simultaneously insists that he had "been sensitive" to Pavlik's needs and "tried to accommodate you and your issues." Kornhaber went on to say, "[s]ince I have no way of knowing for sure, I will assume that my `zaniness' confrontations and unwillingness to minimize conflict in a personal relationship contributed to your decision Jennifer." The note concluded by saying: "In any event, it's clear that a short time ago that both of you felt good with me and the clinic. Suddenly over a three week period those positive feelings changed. Although, I'm not sure about how all this happened, I am sure that I have grown to care about you both." The note was signed "Sincere love." On November 8, CCA sent a letter to Pavlik indicating that she had not followed proper procedures in terminating her employment and that her payroll check would be withheld until all such procedures were followed. Pavlik's attempt to collect her past wages was unsuccessful and she subsequently pursued relief through the Illinois Department of Labor. Two years later, in November 1996, the Department of Labor issued a wage payment demand ordering defendant to pay plaintiff sums owed her. In her corrected second amended complaint, Pavlik also alleges that she had a phone conversation with Kornhaber on November 3, 1994, the contents of which were not disclosed.

Pavlik's initial complaint alleged one count each of negligence, nuisance, and fraud against Kornhaber, and one count of respondeat superior negligence, direct corporate

761 N.E.2d 181
negligence, and nuisance against CCA. The trial court dismissed this complaint in May 1998 based on defendants' challenge to plaintiff's section 2-622 affidavit. 735 ILCS 5/2-622 (West 1996). After two additional dismissals, plaintiff submitted her corrected second amended complaint, described in detail above, which is at issue in this case. Defendant filed a motion to dismiss based both on the statute of limitations, under section 2-619, and on insufficiency of the pleadings, under section 2-615. 735 ILCS 5/2-615, 2-619 (West 1996). In the order being appealed here, the trial court held that all counts of the complaint were barred by the statute of limitations and granted defendants' section 2-619 motion to dismiss with prejudice. Although the trial court entered no written opinion, the transcript of the hearing reveals that the trial judge also found that the allegations in the complaint were insufficient under section 2-615, but did not include this in the order because the section 2-619 ruling was fully dispositive. This appeal followed.

ANALYSIS

Standard of Review

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