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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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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 jointly 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
contact with plaintiff around the time
frame of alleged conception, although
he denied that they had sexual inter-

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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 support 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

Page 3

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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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 support 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-

Page 4

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 support 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
support 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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(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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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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