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IN THE CIRCUIT COURT OF COOK COUNTY, ILLINOIS

MUNICIPAL DEPARTMENT, FIRST DISTRICT

PATRICIA L. ARNOLD,

Plaintiff,

v. Case No. 14 L 403

SAMIR ELWAY,

Defendant.

DEFENDANT’S MEMORANDUM OF LAW IN SUPPORT OF
MOTION FOR SUMMARY JUDGMENT
I. INTRODUCTION

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

borrowed an ironing board (once) and engaged in apparently long-winded

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 condominium’s 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 Elway’s 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 Arnold’s 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

court should, fully and finally, enter judgment in Elway’s favor.

II. PROCEDURAL HISTORY

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 Elway’s favor on

Arnold’s 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.)).

III. STATEMENT OF UNDISPUTED MATERIAL FACTS

Arnold is a former tenant and roommate of Elway at premises located at 195 N.

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

Arnold’s 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 Arnold’s rent to $2,000 per month if Arnold

would be willing to lease the second bedroom back to Elway. (Id.) Arnold accepted

Elway’s 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, Arnold’s 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 Landlord’s 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; Arnold’s

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

full amount of rent due every month. (Ex. 1, pp. 38-40).

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)).

Elway asked Arnold to vacate the condominium by December 6, instead of

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 Elway’s 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 Arnold’s 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

threatening legal action, culminating in a threat to file a $2 million dollar lawsuit

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

from a doctor for these alleged ailments. (Id.)

IV. ARGUMENT

Elway can obtain summary judgment if he either: (1) disproves Arnold’s case by

introducing evidence that, if uncontroverted, would entitle him to a judgment; or (2)

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.

Elway’s motion contains elements of both alternatives.

A. Count I: Intentional Infliction of Emotional Distress (IIED)

For Arnold to establish a triable issue on her IIED claim, she must show that: (1)

Elway’s 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 Arnold’s

IIED claim, it should do so again on the same allegations and the same evidence.

1. The conduct of which Arnold complains is not “extreme” or “outrageous.”

Arnold’s IIED claim fails for the most basic reason: she has not produced evidence

demonstrating extreme and outrageous conduct on Elway’s part. To be sure, the

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

possible bounds of decency. Id. at 90.

But Arnold’s 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. Arnold’s IIED claim centers on the following:

 Elway was “always in my front window” and
“moving [Arnold’s] furniture.” (Ex. 1, p. 33).
 Twice in five months, Elway entered Arnold’s
bedroom to turn down the thermostat and close the blinds.
(Ex. 1, pp. 49-50).
 Elway once borrowed Arnold’s ironing board without
asking. (Ex. 1, pp. 51-52).
 Elway asked Arnold not to answer the condominium
door for the purpose of hiding the co-tenancy from Elway’s
parents and sister. (Ex. 1, pp. 62-63).
 Elway said his nephew was interested in buying the
condominium and was “trying to pencil in” a mid-December
closing date. (Ex. 1, pp. 83-84; Ex. 9, ¶ 28-29; Ex. 16 (Arnold
Dep. Ex. 4)).

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 Elway allegedly “misrepresented” the closing date of
the condominium’s 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 Arnold’s plants
in the hallway outside the condominium for several hours
before Arnold’s 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).

No conduct, it seems, is too niggling or paltry for Arnold to grieve in court. At

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

civilized society as to be considered legally extreme or outrageous.

Nor is it material that Elway, as Arnold’s landlord, delivered a 30-day notice to

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 Arnold’s 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

landlord’s 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

the termination date to a month-to-month lease.

2. Arnold has not suffered any emotional distress.

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 Prosser’s 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).

Bound to a month-to-month lease, Arnold testified she was “depressed” and

“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 physician’s 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 Elway’s 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). Arnold’s 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

Unlike her previously-dismissed IIED claim, Arnold’s cause of action in Count II is

new and reared its head some three years after the lawsuit started. It concerns a mirror

Elway allegedly didn’t 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) Elway’s unauthorized and

wrongful assumption of control, dominion, or ownership of the mirror; and (4)

Arnold’s demand for possession of the mirror. Stathis v. Geldermann, Inc., 295 Ill. App.

3d 844, 856 (1st Dist. 1998). Even by Arnold’s subjective standards, the claim’s value is

nominal. The mirror is worth (she claims) $900. (Ex. 8, ¶¶ 53, 77). But as shown below,

Arnold’s claim is inconsistent with her own documents and admissions.

1. Elway did not wrongfully detain a mirror.

In his Answers to Interrogatories, Elway has verified that he has no recollection of

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 Arnold’s laundry list of petty injustices, the evidence of what

occurred around this time makes no mention of a mirror. And in this sense, Arnold’s

self-serving allegation amounts to no more than a “mere scintilla” of evidence

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insufficient to establish a triable claim for conversion. Robinson v. Village of Oak Park,

2013 IL App (1st) 121220, ¶ 21.

The following timeline establishes that, during the relevant period, Arnold never

once mentioned her stolen mirror or any demands for it:

 December 5, 2013: Arnold voluntarily moves out of
the condominium. (Ex. 8, ¶ 48).
 December 6, 2013: Arnold’s attorney writes a letter to
Elway, and says Elway “was able to remove most of her
belongings, but left her plants and cleaning supplies in the
property.” (Ex. 1, pp. 120-21; Ex. 18 (Arnold Dep. Ex. 11)).
 December 7, 2013: Arnold writes a letter to Elway’s
parents and says nothing about a mirror Elway kept. (Ex.
13).
 December 8, 2013: Arnold alleges for the first time in
2017 that she went with the police to retrieve her mirror from
Elway’s condominium. (Ex. 8, ¶ 53).
 December 9, 2013: Arnold sends a second letter to
Elway’s parents, mentioning among other things Elway’s
bathroom habits, disputes over the temperature in the living
room, and varnishing of floors. Arnold says nothing about a
mirror or a visit the day before by the police. (Ex. 2).
 December 9, 2013: Arnold’s lawyer sends a second
letter to Elway and demands $2,400, but omits any mention
of the mirror or a visit by the police. (Ex. 19 (Arnold Dep. Ex.
9)).
 December 18, 2013: Arnold writes a letter to Elway,
again says nothing about a mirror or Elway’s supposed
refusal to open the door for the police. Arnold does,
however, threaten a $2 million lawsuit that will “kill your
career in the financial services industry.” (Ex. 14).
 September 8, 2015: Arnold writes a three-page letter
to Judge John Callahan, who one week earlier had dismissed
Arnold’s pending complaint, and wrongfully accused him
(to Arnold’s “dismay and horror”) of talking to a potential
witness. Arnold mentions several facts about the case,
including that Elway subjected her to “Sharia Law” and
“dictated the temperature in my living room” but omits
anything about the police or a converted mirror. (Ex. 20
(Arnold Dep. Ex. 14)).

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It is hardly surprising that Arnold’s 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 Elway’s (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. Arnold’s 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.) Arnold’s 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 Arnold’s 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.

2. Arnold has not submitted proof of damages.

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

court judgment under manifest-weight review when plaintiff speculated as to value of

converted property).

C. Count III: Common-Law Fraud

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 court’s prior grant of summary judgment in Elway’s favor, Arnold alleges the same

six pointless facts that are insufficient to sustain a favorable verdict.

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 Gainey’s 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

some feigned, unreasonable sense of indignity, those types of non-financial damages

are not recoverable in fraud actions. Cangemi v. Advocate South Suburban Hosp., 364 Ill.

App. 3d 446, 469 (1st Dist. 2006).

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 Gainey’s condominium immediately and paid

no rent for several months. (Ex. 1, pp. 99-100). By definition, Arnold has suffered no

pecuniary loss. Cangemi, 364 Ill. App. 3d at 469.

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

or commercial interests where a party suffers some pecuniary loss.”).

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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 Frost’s 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: “That’s 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 he’d 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 Elway’s

part. The plants were just fine, until a neighbor overwatered them. (Ex. 1, p. 91).

Arnold’s 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

at 469; Neurosurgery and Spine Surgery, 339 Ill. App. 3d at 186.

Watching television. Arnold last claims fraud because Elway allegedly used

Arnold’s 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 Arnold’s 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,

Clingen Callow & McLean, LLC

By: /s/ Kenneth J. Vanko
Attorney for Samir Elway

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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