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11/20/87 Harold F. Mcgrath, v. Robert P. Fahey Et Al.

November 20, 1987

HAROLD F. MCGRATH, PLAINTIFF-APPELLANT

v.

ROBERT P. FAHEY ET AL., DEFENDANTS-APPELLEES



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FIFTH DIVISION

520 N.E.2d 655, 163 Ill. App. 3d 584, 117 Ill. Dec. 304 1987.IL.1723

Appeal from the Circuit Court of Cook County; the Hon. Thomas E. Hoffman, Judge, presiding.

APPELLATE Judges:

JUSTICE MURRAY delivered the opinion of the court. LORENZ and PINCHAM, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE MURRAY

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 defendant 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 10 certificates of deposit totaling 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 Fahey asked plaintiff's intentions concerning the certificates, then advised plaintiff they could not be withdrawn because of problems which had arisen concerning the real estate contract.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's 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 ...


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