Phillips V Irons 5s2l1l

FOR EDUCATIONAL USE ONLY Not Reported in N.E.2d, 2005 WL 4694579 (Ill.App. 1 Dist.) (Cite as: 2005 WL 4694579 (Ill.App. 1 Dist.))

Only the Westlaw citation is currently available. Appellate Court of Illinois, First District, Third Division. Richard PHILLIPS, M.D., Plaintiff-Appellant, v. Sharon IRONS, M.D., Defendant-Appellee. No. 1-03-2992. Feb. 22, 2005. Appeal from the Circuit Court of Cook County. No. 01 L 14237, Honorable Kathy M. Flanagan, Judge Presiding. ORDER *1 Plaintiff, Richard Phillips, appeals from the circuit court's dismissal of his complaint filed against defendant, Sharon Irons, in response to a parentage action brought previously by defendant against plaintiff. On appeal, plaintiff contends the court erred in dismissing his claims pursuant to section 2-615 of the Illinois Code of Civil Procedure. 735 ILCS 5/2-615 (2004). On May 23, 2003, plaintiff filed a threecount third amended complaint against defendant, seeking damages for (1) intentional infliction of emotional distress (IIED) (count I), (2) fraudulent misrepresentation (count II), and (3) conversion (count III). Plaintiff's complaint provides the following allegations. He and defendant began dating in January of 1999, prior to which time defendant informed plaintiff that she was divorced, her prior marriage having occurred one year earlier, and it was a “terrible mistake.” In a short period of time, plaintiff and defendant became engaged to be married. During their relationship, the parties discussed the possibility of having children only after they married. Plaintiff informed defendant he did not wish to have children prior to marriage, and intended to use a condom if and when they engaged in sexual intercourse. Defendant understood and agreed. During the entire course of their relationship, the parties engaged in intimate sexual acts three times, with two of those times occurring on the same date.

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Vaginal penetration never occurred; the parties engaged only in acts of oral sex. Defendant told plaintiff she did not want to have sexual intercourse due to her menses. On or around February 19, 1999, and March 19, 1999, defendant “intentionally engaged in oral sex with [plaintiff] so that she could harvest [his] semen and artificially inseminate herself,” and “did artificially inseminate herself.” Plaintiff's complaint alleged further that in May of 1999, defendant confessed to plaintiff that she still was married to her former husband, Dr. Adebowale Adeleye. She told plaintiff she planned to get a divorce, and showed him a “Petition for Dissolution of Marriage,” which was filed on May 20, 1999. In the petition, defendant swore she was not pregnant. The parties' relationship terminated in May of 1999, upon plaintiff learning defendant was not divorced. On November 21, 2000, defendant filed a “Petition to Establish Paternity and Other Relief” against plaintiff, claiming she and plaintiff had a sexual relationship eight to ten months before the birth of defendant's daughter, Serena, on December 1, 1999. DNA tests have confirmed plaintiff FN1 is Serena's biological father. Plaintiff's complaint asserted he had no knowledge of defendant's pregnancy nor the birth of the child until receiving defendant's petition to establish paternity. He also claimed defendant continued to live with Adeleye during her pregnancy, after which defendant led Adeleye and the public to believe Serena is Adeleye's daughter, as evinced by Adeleye's name on Serena's birth certificate. Plaintiff contends Serena still does not know he is her biological father. FN1. At the time this case was before the circuit court, and as of the filing of plaintiff's original brief, plaintiff's paternity had not been established. Although the parties agree that plaintiff is Serena's biological father, no documentation is provided in the record on appeal. *2 Following the filing of plaintiff's initial

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FOR EDUCATIONAL USE ONLY Not Reported in N.E.2d, 2005 WL 4694579 (Ill.App. 1 Dist.) (Cite as: 2005 WL 4694579 (Ill.App. 1 Dist.))

complaint, defendant successfully moved to dismiss under section 2-615. Plaintiff ultimately filed a third amended complaint, which was dismissed with prejudice, the circuit court finding each count “continues to lack sufficient facts” necessary to state a cause of action. Plaintiff timely appeals. The question presented by a section 2-615 motion to dismiss is whether sufficient facts have been pled in the complaint which, if proved, would entitle plaintiff to relief. RBC Mortgage Co. v. National Union Fire Insurance Co., 349 Ill.App.3d 706, 711, 812 N.E.2d 728 (2004). All well-pleaded facts in the complaint and all reasonable inferences drawn therefrom are taken as true, and are construed in the light most favorable to plaintiff. Feltmeier v. Feltmeier, 207 Ill.2d 263, 267, 798 N.E.2d 795 (2003) (Feltmeier ). A complaint is susceptible to dismissal under section 2-615 only when it clearly appears that no set of facts could be proved under the pleadings that would entitle plaintiff to relief, and where the circuit court can determine the relative rights of the parties solely from the pleadings. RBC, 349 Ill.App.3d at 711. To state a cause of action adequately, the claim must be sufficient both legally and factually, setting forth a legally recognized claim as its basis, as well as pleading facts which are cognizable legally. RBC, 349 Ill.App.3d at 711. A complaint dismissed under section 2-615 requires the reviewing court to apply a de novo standard of review. Vitro v. Mihelcic, 209 Ill.2d 76, 81, 806 N.E.2d 632 (2004). I Plaintiff argues the circuit court erred in dismissing count I of his complaint for intentional infliction of emotional distress. He claims defendant's conduct was “extreme and outrageous,” when she lied about being unable to engage in intercourse or to conceive due to her menses and agreed to prevent conception of children prior to marriage, but then intentionally engaged in oral sex so she could harvest his semen to artificially FN2 inseminate herself. Plaintiff asserts defendant falsely claimed not to be pregnant in her petition for dissolution, yet in her response to plaintiff's “Demand for Bill of Particulars” in the pending

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paternity suit, defendant informed the circuit court she “began to suspect that [she] was pregFN3 nant during the week of April 5, 1999.” FN2. Although the legal issues involved are dissimilar from those presented in the case sub judice, there are at least two cases dealing with self-insemination. In Jhordan C. v. Mary K., 179 Cal.App.3d 386 (Cal.Ct.App.1986), an unmarried woman artificially inseminated herself at home with the semen of a known donor and gave birth to a child she intended to raise tly with a close woman friend. The donor filed an action to establish paternity and visitation rights. With regard to the mother's ability to inseminate herself, the Court of Appeal of California stated “[i]t is true that nothing inherent in artificial insemination requires the involvement of a physician. Artificial insemination is, as demonstrated here, a simple procedure easily performed by a woman in her own home.” Jhordan C., 179 Cal.App.3d at 393-94. In State v. Frisard, 694 So.2d 1032 (La.Ct.App.1997), the child's mother filed a paternity suit against the father, who denied having sexual intercourse with the mother, to whom he was not married. He alleged she, a nursing assistant, performed oral sex on him in a hospital, made him wear a condom, and used his sperm to inseminate herself in a nearby bathroom with a “red looking bulb with a glass tube.” Frisard, 694 So.2d at 1035. In addition to DNA results and plaintiff's affidavit, in which she stated she had sexual intercourse with defendant and did not have intercourse with any other man 30 days before or after the date of conception, the Court of Appeal of Louisiana explained that defendant's “testimony showed that he had some sort of sexual with plaintiff around the time frame of alleged conception, although he denied that they had sexual inter-

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FOR EDUCATIONAL USE ONLY Not Reported in N.E.2d, 2005 WL 4694579 (Ill.App. 1 Dist.) (Cite as: 2005 WL 4694579 (Ill.App. 1 Dist.))

course.” 1035-36.

Frisard, 694 So.2d at

FN3. Plaintiff has not included this pleading in the record on appeal. Plaintiff asserts defendant “intended to inflict emotional distress on plaintiff or knew there was a high probability that her conduct would do so.” He claims defendant, as a physician and clinical professor of internal medicine, is well versed in: the functions of the female body; the fact that the mouth is a suitable environment to house live sperm; and the art of artificial insemination. Given defendant's awareness of the circumstances, plaintiff contends defendant knew, or should have known, that filing her petition for paternity would shock him and inflict severe emotional distress. *3 Plaintiff alleges defendant “actually caused severe emotional distress,” as manifested in his nausea; inability to eat; difficulty concentrating and sleeping; feelings of being trapped in a nightmare; diminished ability to trust; and headaches. Without commenting on the veracity of plaintiff's allegations, defendant claims that even if his assertions are true, his symptoms are insufficient to an action for IIED. She argues further that a cause of action for an intentional tort cannot be based on the filing of a law suit. FN4 FN4. Defendant cites generally Gibson v. Chemical Card Services Corp., 157 Ill.App.3d 211, 510 N.E.2d 37 (1987), citing Public Finance Corp. v. Davis, 66 Ill.2d 86, 360 N.E.2d 765 (1976); however, this authority does not stand for the proposition for which it is cited by defendant. In Gibson, plaintiff alleged she incurred severe emotional distress during a criminal investigation in which she was suspected of stealing credit cards from defendant corporation. Gibson, 157 Ill.App.3d at 212. In Public Finance, defendant collectors harassed plaintiff debtor and induced her to write a bad check. Gibson, 157 Ill.App.3d at

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217. Plaintiff responds that defendant's filing of a parentage action against him “does not stand alone in provoking distress but is augmented by the realization of a more calculated, profound, personal betrayal which took place nearly [two] years before but to which he was unaware.” Three elements are needed to state a cause of action for IIED: (1) the conduct involved must be truly extreme and outrageous; (2) the actor must either intend that his or her conduct inflict severe emotional distress, or know that there is at least a high probability that it will cause severe emotional distress; and (3) the conduct must, in fact, cause severe emotional distress. Feltmeier, 207 Ill.2d at 268-69. To state an action for IIED, the complaint must be specific and detailed, beyond what is normally considered permissible in pleading a tort action. Welsh v. Commonwealth Edison Co., 306 Ill.App.3d 148, 155, 713 N.E.2d 679 (1999) (Welsh ). First, it must be determined whether plaintiff alleged sufficient facts to show defendant's “extreme and outrageous” conduct. Whether conduct is extreme and outrageous is evaluated on an objective standard based on all of the facts and circumstances. McGrath v. Fahey, 126 Ill.2d 78, 90, 533 N.E.2d 806 (1988) (McGrath ). Mere insults, indignities, threats, annoyances, petty oppressions or other trivialities do not qualify as outrageous conduct. Kolegas v. Heftel Broadcasting Corp., 154 Ill.2d 1, 20-21, 607 N.E.2d 201 (1992). Rather, the nature of defendant's conduct must be so extreme as to go beyond all possible bounds of decency, and to be regarded as intolerable in a civilized community. Kolegas, 154 Ill.2d at 21, quoting Restatement (Second) of Torts § 46, Comment d, at 73 (1965) (“recitation of the facts to an average member of the community would arouse his resentment against the actor, and lead him to exclaim, ‘Outrageous!” ’). In the case sub judice, if proved, defendant's actions would constitute “extreme and outrageous” conduct. Defendant is accused of deliberately misleading plaintiff to believe she did not want to conceive children until after marriage and

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FOR EDUCATIONAL USE ONLY Not Reported in N.E.2d, 2005 WL 4694579 (Ill.App. 1 Dist.) (Cite as: 2005 WL 4694579 (Ill.App. 1 Dist.))

could not become pregnant due to her menstrual cycle, but deceitfully engaged in sexual acts, which no reasonable person would expect could result in pregnancy, to use plaintiff's sperm in an unorthodox, unanticipated manner yeilding extreme consequences. Under these facts, it is cognizable that if an average member of the parties' community were told of these circumstances, a reasonable response could be, “outrageous!” *4 Next, it must be determined whether plaintiff alleged sufficient facts to establish defendant intended that her conduct inflict severe emotional distress, or knew there is at least a high probability that it would. In of this element, plaintiff argues that defendant used her scientific knowledge to procure his sperm to impregnate herself successfully, while plaintiff believed conception was physically impossible and against defendant's wishes. Under these circumstances, even if defendant intended to accomplish only conception and procreation, she knew there was at least a high probability that her manner of so doing would inflict severe emotional distress on plaintiff. According to plaintiff, defendant was aware of his desire to have children only after marriage. Further, plaintiff believed defendant could not become pregnant, not only due to the nature of the sexual acts, but because he believed she was infertile at the time as a result of her menstrual cycle. Months later, however, defendant informed plaintiff he fathered her child. From these facts, if proved, it may be inferred reasonably that defendant knew manipulating plaintiff into unwittingly conceiving a child out of wedlock would inflict severe emotional distress. Further, contrary to defendant's assertion, plaintiff is not claiming the act of filing the paternity suit itself caused him severe emotional distress; it was the result of defendant's actions in their entirety. Last, it must be determined whether plaintiff set forth sufficient facts to allege “severe” emotional distress. Plaintiff claims he “often finds himself nauseated and unable to eat, especially when-as a family practitioner-he treats small children who are the same age as the child he al-

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legedly fathered.” He states that his continued thoughts of this child have caused him difficulty sleeping and has interfered with his professional obligations and personal activities. He feels “as if he is trapped in a terrible nightmare,” he is “burdened with feelings of betrayal,” and “his ability to trust has been greatly diminished,” which has “greatly affected his social life.” Plaintiff must allege some facts which, if true, would the conclusion that the emotional distress actually suffered as a proximate result of defendant's conduct was severe; however, merely characterizing emotional distress as severe is insufficient. Welsh, 306 Ill.App.3d at 155-56. It is the degree of emotional distress actually suffered by plaintiff which separates the actionable from the non-actionable. Welsh, 306 Ill.App.3d at 155. “The intensity and duration of the distress are factors to be considered in determining its severity.” McGrath, 126 Ill.2d at 86. Here, plaintiff has not stated merely that his distress is severe, but has illustrated with examples the effect of defendant's actions on him. As plaintiff's claim involves a physically and psychologically manipulated non-consensual pregnancy, it is cognizable that the intensity of his emotional distress is great and its duration longlasting. Despite defendant's contentions that plaintiff's symptoms are insufficient in law to an action for IIED, in “Illinois, unlike some other jurisdictions, physical injury or disability is not required to accompany, or result from, the psychic trauma.” McCaskill v. Barr, 92 Ill.App.3d 157, 159, 414 N.E.2d 1327 (1980) ( McCaskill ), citing Knierim v. Izzo, 22 Ill.2d 73, FN5 83, 174 N.E.2d 157 (1961). FN5. The court noted further, “[w]ithout any physical manifestation to be objectively observed, it is more important than ever that the [trier of fact] possess sufficient factual data in order to say that the events would lead an ordinarily reasonable person into a state of mental distress.” McCaskill, 92 Ill.App.3d at 159. *5 At this stage plaintiff is not required to

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FOR EDUCATIONAL USE ONLY Not Reported in N.E.2d, 2005 WL 4694579 (Ill.App. 1 Dist.) (Cite as: 2005 WL 4694579 (Ill.App. 1 Dist.))

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prove his case: “[a]lthough a complaint is deficient when it fails to allege the facts necessary for recovery, [ ] plaintiff is not required to set out evidence; only the ultimate facts to be proved should be alleged, not the evidentiary facts tending to prove such ultimate facts.” Chandler v. Illinois Central R.R., 207 Ill.2d 331, 348, 798 N.E.2d 724 (2003). Whether plaintiff will prevail on the elements of his claim for IIED is a quintessential question of fact to be resolved by the trier of fact. Accordingly, the circuit court erred in dismissing count I of plaintiff's complaint.

Ill.App.3d at 187. The circuit court did not err in dismissing plaintiff's claim for fraudulent misrepresentation.

II Plaintiff contends next the circuit court erred in dismissing count II of his complaint for fraudulent misrepresentation, arguing the facts presented satisfy each requisite element.

Defendant responds that where plaintiff did not loan or lease his sperm, where there was no agreement that the original deposit would be returned upon request, or where the transaction did not create a bailment, a claim for conversion cannot be sustained. She asserts that when plaintiff “delivered” his sperm to defendant it was a giftan absolute and irrevocable transfer of title to property from a donor to donee. Plaintiff's donative intent was clear, she argues, “had he notintended to deliver his sperm to [her], he would have used a condom and kept it and its contents.”

The elements of a claim for fraudulent misrepresentation are: (1) a false statement of material fact; (2) known or believed to be false by the party making it; (3) intent to induce plaintiff to act; (4) action by plaintiff in justifiable reliance on the truth of the statement; and (5) damage to plaintiff resulting from such reliance. Board of Education of City of Chicago v. A. C & S. Inc., 131 Ill.2d 428, 452, 546 N.E.2d 580 (1989). Facts constituting an alleged fraudulent misrepresentation must be pleaded with specificity and particularity. Board of Education, 131 Ill.2d at 457. In this case, it is unnecessary to examine sufficiency of the facts presented in the complaint, as this claim is not of the type sustainable under the instant circumstances. The tort of fraudulent misrepresentation historically has been limited to cases involving business or financial transactions where plaintiff has suffered a pecuniary harm. Neurosurgery & Spine Surgery, S.C. v. Goldman, 339 Ill.App.3d 177, 185-86, 790 N.E.2d 925 (2003), citing W. Prosser, Torts, § 105 (4th ed.1971). Fraudulent misrepresentation is a tort distinct from the general milieu of negligent and intentional wrongs; it is an economic tort under which one may recover only monetary damages. Neurosurgery, 339 Ill.App.3d at 186. Therefore, plaintiff may not recover on allegations of physical and emotional distress. Neurosurgery, 339

III Plaintiff argues last that the circuit court erred in dismissing count III of his complaint for conversion. He asserts that defendant committed the tort when she took his “semen, sperm, and genetic material without his permission, for the purpose of conceiving a child, purportedly within the bounds of her marriage to Adeleye.”

*6 Conversion is an unauthorized act that deprives a person of his property permanently or for an indefinite time. In re Thebus, 108 Ill.2d 255, 259, 483 N.E.2d 1258 (1985). “It must be shown that the money claimed, or its equivalent, at all times belonged to [ ] plaintiff and that [ ] defendant converted it to his own use. [Citation.]” Thebus, 108 Ill.2d at 261. The elements of a claim for conversion are: (1) plaintiff's right in the property; (2) plaintiff's right to immediate, absolute, and unconditional possession of the property; (3) defendant's unauthorized and wrongful assumption of control, dominion, or ownership over the property; and (4) plaintiff's demand for possession. Stathis v. Geldermann, Inc., 295 Ill.App.3d 844, 856, 692 N.E.2d 798 (1998). In this case, no set of facts could be proved under the pleadings that would entitle plaintiff to relief for conversion, as he cannot satisfy the requisite elements. Cases from other jurisdictions have recognized the existence of a “property right” in materials derived from the human body (see e.g. Kurchener v. State Farm Fire and Casu-

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FOR EDUCATIONAL USE ONLY Not Reported in N.E.2d, 2005 WL 4694579 (Ill.App. 1 Dist.) (Cite as: 2005 WL 4694579 (Ill.App. 1 Dist.))

alty Co., 858 So.2d 1220 (Fla.Ct.App.2003); Hecht v. Superior Court, 16 Cal.App. 4th 836 (Cal.App.1993); Moore v. Regents of University of California, 51 Cal.3d 120 (Cal.1989); York v. Jones, 717 F.Supp. 421 (E.D.Va.1989)); however, plaintiff cannot show he had the “right to immediate, absolute, and unconditional possession” of his sperm. Plaintiff presumably intended, and he does not claim otherwise, that defendant discard his semen, not return it to him. “The essence of conversion is the wrongful deprivation of one who has a right to the immediate possession of the object unlawfully held.” Bender v. Consolidated Mink Ranch, Inc., 110 Ill.App.3d 207, 213, 441 N.E.2d 1315 (1982). Plaintiff is unable to satisfy the second element needed to state a claim for conversion. In light of the foregoing, the third and fourth elements of conversion need not be addressed. For the reasons set forth above, the judgment of the circuit court of Cook County is affirmed as to counts II and III, reversed as to count I, and the cause is remanded. Affirmed in part and reversed in part; cause remanded. HARTMAN, J., with HOFFMAN and SOUTH, J.J., concurring. Ill.App. 1 Dist.,2005. Phillips v. Irons Not Reported in N.E.2d, 2005 WL 4694579 (Ill.App. 1 Dist.) END OF DOCUMENT

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