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10/28/96 ERIK KOELLE v. JAN ZWIREN

October 28, 1996

ERIK KOELLE, PLAINTIFF-APPELLANT,
v.
JAN ZWIREN, DEFENDANT-APPELLEE.



Appeal from the Circuit Court of Cook County. Honorable Everette A. Braden and Honorable Thomas P. Durkin, Judges Presiding.

Released for Publication December 10, 1996.

The Honorable Justice Buckley delivered the opinion of the court. Campbell, P.j. and Wolfson, J., concurring.

The opinion of the court was delivered by: Buckley

The Honorable Justice BUCKLEY delivered the opinion of the court:

Plaintiff, Erik Koelle, brought this action against defendant, Jan Zwiren, for fraud, intentional infliction of emotional distress, and equitable relief. The trial court dismissed all counts with prejudice. Plaintiff appealed, contending that (1) the trial court erred in ruling that plaintiff was not entitled to equitable relief, (2) the trial court erred in ruling that plaintiff's fraud and intentional infliction of emotional distress claims are barred by the applicable statutes of limitations, and (3) the trial court erred in ruling that plaintiff failed to state a claim upon which relief can be granted.

Plaintiff's complaint alleges the following facts. In the early 1970's plaintiff's parents were divorced, and plaintiff lived with his mother. Defendant and plaintiff's father were romantically involved and living together. Plaintiff was 12 or 13 years old at the time and had a strong relationship with his father. He saw defendant, who was 20 years his senior, whenever he visited his father. Defendant soon came to be a maternal figure for plaintiff; she took him on family outings, exchanged cards and gifts with him on Christmas and birthdays, and often spent time alone with him. Also, plaintiff sometimes spent the night at his father's and defendant's apartment.

Plaintiff's complaint alleges that over time, defendant came to treat plaintiff like her own son, and plaintiff came to love and respect defendant as a second mother. Defendant has a forceful personality in both her personal and professional life, and she had a strong influence on plaintiff. Plaintiff and defendant frequently spoke about matters important to plaintiff, and defendant offered her advice and guidance on such issues throughout plaintiff's adolescence.

In the late 1970's defendant and plaintiff's father separated. However, plaintiff and defendant maintained their close relationship, and she continued to treat him like a son, taking him out, visiting him, and buying him clothes.

In 1983, plaintiff was 21 years old and working at a graphic arts studio and hoping to start a career in advertising. Defendant was a successful advertising executive, and plaintiff began seeking counsel from defendant not only on personal matters, but on professional matters as well. In the fall of 1983, defendant asked plaintiff to help her move her boat to a new docking point. While on the boat, defendant produced a bottle of tequila and shared it with plaintiff. She then initiated sexual activity with plaintiff, telling him that she was not able to become pregnant. Plaintiff and defendant had sexual intercourse twice that weekend.

In July 1984, defendant gave birth to a baby girl, referred to herein as Jane Roe. The girl's father was Arthur Bass, a wealthy, married man and a client of defendant's advertising agency. Defendant told Bass that he was Jane Roe's father, and eventually Bass agreed to provide financial support for the child. Bass has since died.

Plaintiff's complaint alleges that in an effort to prevent any damage to her professional reputation and career that might have resulted if her illicit affair with her agency's client had been exposed, she contrived a scheme to keep the affair a secret by telling plaintiff that he was the child's father even though she knew he was not. The complaint alleges that defendant selected plaintiff as the target of her scheme because she knew that she exercised a tremendous amount of control over him, that he had trust and confidence in her, and that he was young and inexperienced in relationships. She knew that plaintiff would believe her and that he would comply with her request not to reveal his paternity to his family and friends.

Plaintiff alleges that defendant implemented her scheme, and it worked as planned. Defendant invited plaintiff to her home and introduced him to Jane Roe. While plaintiff was holding the baby, she said "say hello to your daughter." Defendant told plaintiff that her doctor had pinned down the date of conception to their weekend on the boat. She said that Jane Roe was their "tequila baby." She also made it clear that she was not seeking any financial support from plaintiff; she only wanted him to help take care of the child and become a father figure for her. Because plaintiff trusted defendant then as he always had before, he never suspected that she might be lying.

Throughout the next eight years, plaintiff became very involved in Jane Roe's life. He baby-sat for her and took her on various outings, such as dinner, the movies, baseball games, roller blading, and bicycling. He went to her horseriding shows, piano recitals, soccer games, and parent-teacher conferences. He also went with defendant and Jane Roe on a "family vacation" to Florida. Plaintiff and Jane Roe had a loving father-daughter relationship.

Plaintiff alleges that the situation was extremely emotionally taxing for him. Even before being told he was the father, plaintiff had been struggling with the guilt of engaging in a sexual relationship with a woman twice his age whom he had always known as a maternal figure. Once he became a part of Jane Roe's life, although he enjoyed his relationship with her, he felt intense anxiety over what he perceived to be the illicit nature of his life, and for a long time, he felt ...


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