Escolar Documentos
Profissional Documentos
Cultura Documentos
PATRICIA L. ARNOLD,
Plaintiff,
SAMIR ELWAY,
Defendant.
The facts of this case resemble the plot line of a zany 90s sitcom with bad ratings.
From July through December of 2013, Patricia Arnold and Samir Elway lived in a
Chicago condominium that Elway owned. During this time, Arnold (aware Elway was
trying to sell the unit) was bound to a month-to-month lease. After receiving 30 days
notice of the lease termination in November, Arnold moved out early. But then things
went haywire. Arnold started threatening Elway with legal action stemming from a
variety paltry roommate grievances. Arnold, who conceded that she willfully refused to
pay her full rent, believed Elway took over the condominium space. For instance, she
felt dehumanized that Elway rearranged some furniture. She was upset Elway had
conversations (that Arnold never cut off). Arnold expressed feigned incredulity that
Elway adjusted the thermostat, exclaiming that [t]his Egyptian gets a heat rash if the
thermostat is above 71 or 72. (Ex. 1 (Arnold Dep. Tr.), p. 49). Arnold then says Elway
committed fraud by misstating that he was re-varnishing some floors. Most of all,
Arnold was upset she moved out too soon, contending that Elway misrepresented the
closing date of the condominiums sale (which indeed occurred several weeks after
Arnold moved) and did not comply with Illinois law concerning termination of month-
to-month tenancies. The damage is still not apparent, since Arnold immediately began
living rent-free in the same building for the next several months.
For all of this trifling nonsense, Arnold wrote Elways parents (twice), prodding
them to convince your son to get some psychological support and promising to end
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his short career as a financial advisor. (Ex. 2 (Arnold Dep. Ex. 8), p. 2). When Elway
did not respond to her $2 million demand, Arnold filed suit. (Ex. 3 (Arnold Dep. Ex.
10)). At each turn, this court has dismissed Arnolds claims, even granting Elway
summary judgment on the entire Third Amended Complaint at Law. Arnold, given yet
another chance, persists in litigating. Courts, though, are not playgrounds to foist ad
hominem attacks on others or to lodge petty grievances that are part of everyday life. The
In September of 2015, Judge John Callahan dismissed the Second Amended Complaint
at Law. (Ex. 4 (9/1/15 Order)). That Order disposed of what was then Count I (a claim
for intrusion upon seclusion) with prejudice. (Id.) The court also transferred the case to
the Municipal Division on account of case value. (Ex. 5 (9/1/15 Transfer Order)).
Arnold proceeded to file a Third Amended Complaint at Law on October 20, 2015. (Ex. 6
(Third Am. Compl.)). The court granted summary judgment in Elways favor on
Arnolds remaining claims for intentional infliction of emotional distress (IIED) and
fraud. (Ex. 7 (Order of 12/22/16)). But the court allowed Arnold to file another
amended complaint. (Ex. 7). Arnold did so on January 19, 2017, reasserting her fraud
and IIED claims and adding an entirely new cause of action for conversion. (Ex. 8
(Fourth Am. Compl.)). Elway then answered. (Ex. 9 (Ans. to Fourth Am. Compl.)).
Harbor Dr., Unit #5308 in Chicago (the condominium). (Ex. 8, 1). Arnold occupied
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the condominium from June 1, 2009 until December 5, 2013. (Ex. 8, 1, 47-49). When
Arnolds lease expired in May of 2013, Elway informed her that if he renewed her lease,
he planned to raise the rent from $2,400 to $3,000 per month. (Ex. 8, 3). As an
alternative, Elway stated he would reduce Arnolds rent to $2,000 per month if Arnold
would be willing to lease the second bedroom back to Elway. (Id.) Arnold accepted
Elways offer because the reduction in rent was compelling and she enjoyed the
condominium and the building. (Ex. 8, 5). After Elway moved in, he and Arnold
signed a written month-to-month lease agreement (the Lease). (Ex. 1, pp. 35-36; Ex. 10
(Arnold Dep. Ex. 2)). Arnold signed the Lease knowing that Elway was putting the
unit on the market. (Ex. 1, p. 30). Under Paragraph 3 of the Lease, Arnolds tenancy
was month-to-month, terminable on 30 days notice. (Ex. 10, 3). The Lease further
provided: Tenants shall use the premises for residential purposes only and for no other
purpose without Landlords prior written consent. (Ex. 10, 1). Nothing in the Lease
limits the right of access by co-tenants to the entirety of the premises. (Ex. 10).
Over the course of their co-tenancy, Arnold and Elway allegedly disputed over the
following: access to common spaces; use of the television; thermostat settings; Arnolds
use of the premises for her personal business purposes; an ironing board; the length of
their conversations; arrangement of the furniture; and window blind usage. (Ex. 8,
13-61). During the entire term of the Lease, Arnold willfully refused to pay Elway the
On September 21, 2013, Arnold gave Elway notice under the Lease of her intent to
vacate the premises and terminate her tenancy, only to later withdraw it. (Ex. 1, pp. 32-
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34; Ex. 8, 27; Ex. 11 (Arnold Dep. Ex. 1)). Shortly thereafter, in October of 2013, Elway
told Arnold that his nephew was interested in buying the condominium. (Ex. 9, 28).
On November 10, 2013, to effectuate the sale, Elway served upon Arnold a 30-day
notice of termination of the Lease tenancy, which granted Arnold 36 days to December
16 to vacate the condominium. (Ex. 1, pp. 66-68; Ex. 9, 30; Ex. 12 (Arnold Dep. Ex. 3)).
December 16, to which Arnold agreed. (Ex. 8, 32). According to Arnold, Elway
wanted the earlier move-out date because of a scheduled sale closing that ultimately
did not occur until February of 2014. (Ex. 1, pp. 67-70, 147). Arnold had to reschedule
the movers, but did not incur any additional moving cost. (Ex. 1, pp. 94-99).
Around this time, Elway allegedly agreed to give Arnold a tenant recommendation
to a real estate agent named Frost concerning a separate unit in the same building. (Ex.
1, pp. 78-80; Ex. 9, 37). Frost apparently requested that Arnold produce bank records
for review. (Ex. 1, pp. 79-80; Ex. 8, 41). Arnold, without any evidence, believes this
was Elways fault. (Ex. 1, pp. 77-82). However, in March of 2014, Elway (after Arnold
filed suit and threatened to ruin him financially) provided a glowing recommendation
to Arnolds current landlord, describing Arnold as a wonderful tenant, paid her rent of
time, very clean. (Ex. 1, pp. 82-83). Arnold left the premises on December 5, 2013. (Ex.
8, 47). Elway then told Arnold he would take her plants across the hall so a neighbor
could take care of them temporarily. (Ex. 9, 50). The plants were in the hallway, with
no caretaker, for about 12 to 15 hours. (Ex. 1, pp. 87-90). Arnold threatened Elway with
legal action over his handling of the plants. (Ex. 1, pp. 92-93).
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After moving out, Arnold sent Elway and his extended family a series of letters
against Elway which will kill your career in the financial services industry. (Ex. 1, pp.
116-17; Ex. 2; Ex. 13 (Arnold Dep. Ex. 7); Ex. 14 (Arnold Dep. Ex. 10)). Arnold lived with
a neighbor named Rainey, for approximately three months, paying no rent during this
period. (Ex. 1, pp. 99-100; Ex. 15 (Arnold Interrogs.), p. 4). As a result of the alleged
actions of Elway, Arnold claimed she was depressed, lost approximately 12 pounds,
and incurred hair loss. (Ex. 1, pp. 100-06). Arnold admitted she sought no treatment
IV. ARGUMENT
Elway can obtain summary judgment if he either: (1) disproves Arnolds case by
establishes that Arnold lacks sufficient evidence to prove an essential element of her
claim. Williams v. Covenant Medical Center, 316 Ill. App. 3d 682, 688-89 (4th Dist. 2000).
The latter method is called a Celotex-type motion and is appropriate if the record
indicates the plaintiff has had an extensive opportunity to establish her claim. Id.
For Arnold to establish a triable issue on her IIED claim, she must show that: (1)
Elways conduct was extreme and outrageous; (2) her emotional distress was severe;
and (3) Elway knew severe emotional distress was certain or substantially certain to
result from his conduct. Johnson v. K mart Corp., 311 Ill. App. 3d 573, 580 (1st Dist. 2000).
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Just as the court correctly found that summary judgment was appropriate on Arnolds
IIED claim, it should do so again on the same allegations and the same evidence.
Arnolds IIED claim fails for the most basic reason: she has not produced evidence
standard is exacting, meant to ferret out legal actions that stem from minor annoyances.
In Public Finance Corp. v. Davis, 66 Ill. 2d 86 (1976), the Supreme Court of Illinois ensured
that plaintiffs would have to clear a high threshold of proof, holding an IIED claim must
be premised on conduct that is so extreme and outrageous that it goes beyond all
But Arnolds list of picayune complaints falls far short of this standard. Indeed, if the
court finds that any of them are legally outrageous, then it would sanction the
widespread use of the IIED tort for everyday minor annoyances that people must
endure just by being a part of a society. Arnolds IIED claim centers on the following:
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Elway allegedly misrepresented the closing date of
the condominiums sale, which ultimately occurred not in
December but rather in February. (Ex. 1, p. 147).
Elway allegedly spoke with real estate agent Frost
and may have said something to Frost that caused her to
request bank records from Arnold before leasing her a new
unit. (Ex. 1, pp. 77-80).
Elway moved a chair and TV trays to a space in front
of the bay window, conduct Arnold described as
dehumanizing. (Ex. 1, pp. 63-65).
After Arnold moved out, Elway left Arnolds plants
in the hallway outside the condominium for several hours
before Arnolds former neighbor retrieved them. None of the
plants died from being left in the hallway, but they perished
later when the neighbor overwatered them. (Ex. 1, pp. 87-
91).
worst, Elway annoyed Arnold in the way virtually all roommates annoy one another.
Turning down a thermostat, leaving trays by a window, moving plants, and engaging
in long abstruse conversations does not constitute conduct so outside the bounds of a
terminate her month-to-month lease. Even if Elway was incorrect about the lease
termination date, that mistake only would hamper his ability to pursue an eviction
proceeding. Arnold moved out, on her own, 11 days before the notice date. (Ex. 8, 47;
Ex. 12). Being wrong about the law (allegedly) does not mean one engaged in
outrageous conduct. See Zoretic v. Darge, 832 F.3d 639, 645 (7th Cir. 2016) (affirming
grant of summary judgment on IIED claim following wrongful eviction of tenant and
noting property manager and landlord only received poor advice concerning eviction).
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Nowhere does Arnold even suggest Elway knew that the planned December 16 move
date (when Arnold had earlier gave her own notice to vacate) was substantially certain
to cause Arnold any emotional distress. Johnson, 311 Ill. App. 3d at 580.
The case of Farnor v. Irmco Corp.. 73 Ill. App. 3d 851 (1st Dist. 1979), illustrates the
patent deficiencies in Arnolds IIED claim. There, a tenant sought to terminate her lease
early and wanted to use the building freight elevator to move her belongings. Id. at 853.
After the building manager refused to allow the tenant to use the elevator until the
plaintiff paid three months rent, the tenant obtained an injunction against the landlord
concerning her use of the freight elevator. Id. at 854. The First District found the
landlords conduct was not sufficiently extreme and outrageous to support an IIED
claim, even though the lease did not permit the landlord to confiscate her property or
refuse to allow her elevator access. Id. at 856. This case is far less egregious than the
facts in Farnor because, at worst, Arnold can show only that Elway incorrectly applied
Arnold comes nowhere near establishing that she incurred emotional distress.
Under Public Finance, an IIED claim is not viable unless the plaintiff suffers severe
emotional distress. Public Finance, 66 Ill. 2d at 90. Citing Prossers Law of Torts, the Court
in Public Finance stated that fright, horror, grief, shame, humiliation, worry are not
actionable. Id. The Court further stated that the law intervenes only where the distress
inflicted is so severe that no reasonable [person] could be expected to endure it. Id.
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No evidence would allow a reasonable fact-finder to determine that Arnold incurred
severe emotional distress from her interactions with Elway. Instead, this case involves
the very type of neurotic overreactions to trivial hurts that caution against a flippant,
indiscriminate use of the emotional distress claim. Knierim v. Izzo, 22 Ill. 2d 63, 85 (1961).
emotionally disabled by being pushed out of a home she wanted to leave just
months before. (Ex. 1, p. 101; Ex. 11). Arnold, though, admitted this conclusion
stemmed not from a physicians diagnosis, but rather her own subjective belief about
when she was down. (Id.) Arnold also claims she is on blood-pressure medication,
but admitted she was on that same medication before getting into a one-sided
roommate imbroglio with Elway. (Ex. 1, pp. 104-05). Without ever getting on a scale,
Arnold claims to have lost 12 pounds and blames this on Elway too. (Ex. 1, pp. 105-06).
Arnold then testified that she suffered hair loss, producing a picture taken more
than two years after she moved out of Elways condominium but no medical testimony
concerning causation. (Ex. 1, pp. 103-04). Leaving no stone unturned, Arnold engaged
in Netflix therapy, claiming to have binge-watched House of Cards and Mad Men because
she just could not get it together. (Ex. 1, pp. 102, 137). Arnolds thin-skinned,
hypersensitive reaction to her roommate relationship with Elway does not meet the
severe emotional distress required to pursue an IIED claim. See Johnson, 311 Ill. App.
3d at 581 (stress insufficient); Kahn v. American Airlines, 266 Ill. App. 3d 726, 733 (1st
Dist. 1994) (recurring nightmares and fear of re-arrest is not severe distress).
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B. Count II: Conversion
new and reared its head some three years after the lawsuit started. It concerns a mirror
Elway allegedly didnt return. 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
(1985). Arnold must show: (1) her right to the mirror; (2) her right to immediate,
absolute, and unconditional possession of the mirror; (3) Elways unauthorized and
Arnolds demand for possession of the mirror. Stathis v. Geldermann, Inc., 295 Ill. App.
3d 844, 856 (1st Dist. 1998). Even by Arnolds subjective standards, the claims value is
nominal. The mirror is worth (she claims) $900. (Ex. 8, 53, 77). But as shown below,
seeing the mirror Arnold claims to have left behind in the condominium. (Ex. 17 (Elway
Interrogs.), p. 4). At least the way Arnold pleads it, her demand for the mirror was quite
dramatic. On December 8, 2013 (a few days after Arnold moved out), she
commandeered the police to make a trip back to the condominium for the mirror. (Ex. 8,
53). But despite Arnolds laundry list of petty injustices, the evidence of what
occurred around this time makes no mention of a mirror. And in this sense, Arnolds
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insufficient to establish a triable claim for conversion. Robinson v. Village of Oak Park,
The following timeline establishes that, during the relevant period, Arnold never
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It is hardly surprising that Arnolds first two complaints omit any allegation of the
supposed December 8 police visit. The Second Amended Complaint at Law is obtuse.
Arnold alleges that Elway changed the locks after she moved out, but claims that the
effect of Elways (foreseeable) decision to change of locks denied her entry to the
condominium to retrieve the mirror. (Ex. 21 (Second Am. Compl.), 41). Arnold
mentions nothing about an actual demand for the mirror, not to mention a police escort
to retrieve it. Arnolds Third Amended Complaint at Law is virtually identical, as she
claims that she went to the condominium on December 6 (not December 8). (Ex. 6,
48-49). Again, she mentions nothing about the police. (Id.) Arnolds damages evidence
is flatly inconsistent with her conversion claim. Asked repeatedly by her own counsel
about the purported damages she is claiming, Arnold never mentioned the mirror. (Ex.
1, pp. 141-44). Her interrogatory answers likewise say nothing about damages for a
converted mirror. (Ex. 15, p. 11). Given Arnolds penchant for griping over insipid
minutiae, it is implausible she consistently would omit a trip with uniformed officers to
retrieve what she now claims to be stolen property if that is in fact what happened.
The burden of proving the value of converted property rests on Arnold. Long v.
Arthur Rubloff & Co., 27 Ill. App. 3d 1013, 1025-26 (1st Dist. 1975). However, she has
submitted no pictures, receipts, or suggestions as to value. See Ruiz v. Wolf, 250 Ill. App.
3d 121, 124 (1st Dist. 1993) (noting measure of damages for conversion is the fair market
value for the use at the time and place of the conversion). She does not claim the mirror
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is peculiar, sentimental, or unique. And it is not evident that Arnold has done anything
other than guess that the mirror is worth $900. This sort of rank speculation is
insufficient to survive summary judgment. Long, 27 Ill. App. 3d at 1026 (reversing trial
converted property).
To sustain Count III for common-law fraud, Arnold must demonstrate: (1) a false
statement of material fact; (2) that Elway knew or believed was false; (3) upon which
Elway intended Arnold to act; (4) that did induce Arnold to act in justifiable reliance on
the truth of the statement; and (5) for which damages resulted from the reliance. Board
of Education of City of Chicago v. A, C, & S, Inc., 131 Ill. 2d 428, 452 (1989). Undeterred by
the courts prior grant of summary judgment in Elways favor, Arnold alleges the same
Sale date of the condominium. Arnold claims without evidence that Elway
misrepresented the closing date for his sale of the condominium. (Ex. 8, 83). Even
though the sale closed in February of 2014 and not December of 2013, it does not follow
that Elway made a false statement of fact simply because the closing date changed. (Ex.
16). Nor is this a material fact, because Arnold does not say how she suffered any
economic damages from having to move a few weeks before she contends she was
legally obligated to move. (Assuming Arnold is correct that she could have stayed until
December 31, 2013, she would have had to move by this date under the Lease.). Arnold
admitted that she paid no rent when she stayed at Gaineys condominium for several
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months. (Ex. 1, pp. 99-100; Ex. 15, p. 4). She incurred no penalty for changing the date of
the move. (Ex. 1, pp. 98-99). Even if she claims to have suffered emotionally through
are not recoverable in fraud actions. Cangemi v. Advocate South Suburban Hosp., 364 Ill.
Letter of reference. Elway did not provide Arnold a letter of reference before she
sued him. (Ex. 9, 48). However, he provided positive verbal and text-message
references for Arnold on multiple occasions, a fact Arnold conceded in her deposition.
(Id.; Ex. 1, pp. 82-83). Elway cannot be liable to Arnold for fraud because Arnold has no
evidence of how she relied on any purported false statement regarding a reference or
how she was damaged. She moved into Gaineys condominium immediately and paid
no rent for several months. (Ex. 1, pp. 99-100). By definition, Arnold has suffered no
Re-varnishing floors. Arnold next claims Elway is liable for misrepresenting that he
was re-varnishing floors in the condominium. (Ex. 8, 83). Facts showing detrimental
reliance are nowhere to be found. Any alleged misstatement about re-varnishing floors
fails every conceivable element needed to sustain the fraud claim, the most notable of
which are the lack of a commercial transaction and the lack of any financial damages.
Cangemi, 364 Ill. App. 3d at 469; Neurosurgery and Spine Surgery, S.C. v. Goldman, 339 Ill.
App. 3d 177, 186 (2d Dist. 2003) (fraud claims only apply to interferences with financial
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(Non-)statement to real estate agent. Arnold speculates that Elway gave Frost (a
real estate agent) a negative reference. (Ex. 8, 40-41). This conjecture is augmented
(apparently) by Frosts request to see bank records before showing Arnold another
condominium unit. (Ex. 1, pp. 79-80; Ex. 8, 41). But Arnold concedes that it was her
own actions that caused any damage. Once Frost asked for bank statements, Arnold
said in bellicose fashion: Thats excessive. I withdraw. (Ex. 1, p. 80). Nor has Arnold
identified any pecuniary loss resulting from this conjured misrepresentation, since she
moved immediately into a unit rent-free. Cangemi, 364 Ill. App. 3d at 469.
Delivery of plants to neighbor. According to Arnold, Elway said hed drop off some
plants across the hallway. Arnold then says Elway screwed up, leaving those plants in
the hallway for a half-day in violation of some vague safety/fire regulations. (Ex. 8,
84). Arnold, of course, discloses no injury that resulted from this banal lapse on Elways
part. The plants were just fine, until a neighbor overwatered them. (Ex. 1, p. 91).
Arnolds fraud claim fails across the board, including on the elements of reliance, lack
of a commercial transaction, and absence of financial damages. Cangemi, 364 Ill. App. 3d
Watching television. Arnold last claims fraud because Elway allegedly used
Arnolds television and did not buy her a new set. (Ex. 8, 84). Aside from the pure
inanity of advancing such an allegation, Arnold has no evidence of how she relied on
any alleged statement about a television. Nor does Arnolds damages disclosure reveal
any economic injury arising from this perceived slight. Cangemi, 364 Ill. App. 3d at 469.
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Dated: October 2, 2017
Respectfully submitted,
Kenneth J. Vanko
Clingen Callow & McLean, LLC (No. 39631)
2300 Cabot Drive, Suite 500
Lisle, Illinois 60532
(630) 871-2600
vanko@ccmlawyer.com
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