Taliani v. Resurreccion

2018 IL App (3d) 160327

115 N.E.3d 1245

426 Ill.Dec. 323

Steven A. TALIANI, Plaintiff-Appellant,

v.Lisa RESURRECCION, Robert Resurreccion, Robert Cofoid, and Dysart-Cofoid Funeral Home, Defendants

(Lisa Resurreccion, Robert Cofoid, and Dysart-Cofoid Funeral Home, Defendants-Appellees).

Appeal No. 3-16-0327

Appellate Court of Illinois, Third District.

Opinion filed December 3, 2018

PRESIDING JUSTICE CARTER delivered the judgment of the court, with opinion.

¶ 1 Plaintiff, Steven A. Taliani, an inmate in the Department of Corrections (DOC) serving a sentence for murder and aggravated battery with a firearm, filed a civil action against three defendants—his ex-wife, Lisa Resurreccion; a funeral home director, Robert Cofoid; and a funeral home, Dysart-Cofoid Funeral Home—claiming that defendants denied him his right to visit with the remains of his deceased 19-year-old son and, in doing so, intentionally caused him to suffer extreme emotional distress.¹ The complaint was amended three times. Defendants filed motions to strike and dismiss portions of plaintiff's third amended complaint and motions for summary judgment. After briefing and hearings on the matter, the trial court granted defendants' motions. Plaintiff appeals. We affirm the trial court's judgment.

¶ 2 FACTS

¶ 3 Plaintiff and defendant, Lisa Resurreccion, were married in 1986 and divorced in 1991. During the course of their marriage, plaintiff and Lisa had one child, Austin, who was born in 1989. Plaintiff was a good father to Austin. In 1994, however, plaintiff was convicted of first degree murder and aggravated battery with a firearm and was sentenced to prison. That was the last time that plaintiff saw Austin in person. In 1995, Lisa married Robert Resurreccion. Thereafter, Lisa, Robert, and Austin lived together in the same residence. Lisa later changed Austin's last name to Resurreccion, although Robert never adopted Austin. Plaintiff did not approve of the name change.

¶ 4 On October 29, 2008, Austin passed away at the age of 19. Although plaintiff and Austin had not seen each other since plaintiff went to prison, plaintiff had strong, warm, and affectionate feelings for Austin because he was Austin's father. Lisa had possession of Austin's remains and she or her brother, Kent Zellmer, at her direction, made funeral arrangements with defendant, Dysart-Cofoid Funeral Home. Defendant, Robert Cofoid, was one of the directors of the funeral home and was a long-time friend of Kent. Austin's body was transported to the funeral home, and pursuant to Lisa's direction, a private visitation service was scheduled for November 1, 2008, from 9 a.m. until 10:30 a.m. After the private visitation service, Austin's remains were to be buried.

¶ 5 Shortly after Austin's death, plaintiff was notified by plaintiff's mother that Austin had passed away. Upon learning of Austin's death, plaintiff told the counselor at the DOC that he wanted to visit with Austin's remains. On or about October 30, 2008, the counselor made arrangements with the Cofoid defendants (a collective reference for Cofoid individually and for the funeral home) for plaintiff to have a private visit with Austin's remains at the funeral home that would be concluded prior to the time of the private visitation service for Austin. After those arrangements were made, Lisa, her attorney, or a member of her family directed the Cofoid defendants to cancel the arrangements and to tell plaintiff that he would not be allowed to visit with Austin's remains. Pursuant to Lisa's directions, or those of her attorney or a family member, the Cofoid defendants also told the DOC counselor that if plaintiff came to the funeral home, plaintiff, and anyone who accompanied him, would be arrested for criminal trespass.

¶ 6 Plaintiff contacted his parents, and an attorney was hired for plaintiff to try to secure plaintiff's visitation with Austin's remains before Austin's remains were buried. On October 31, 2008, the attorney served a letter upon Lisa and the Cofoid defendants requesting that they allow plaintiff to have a final visit to grieve with Austin's remains prior to the burial. At no time, however, did plaintiff try to make funeral arrangements for Austin, try to change the funeral arrangements that were already in place, or try to pay for all or part of Austin's funeral. Neither Lisa nor the Cofoid defendants responded to the letter of plaintiff's attorney, and Austin's remains were buried without plaintiff being allowed a final visit.

¶ 7 In July 2010, plaintiff filed a pro se civil lawsuit against Lisa and the Cofoid defendants, alleging various causes of action.² Plaintiff later hired an attorney to represent him in this case, and the attorney filed various amended complaints on plaintiff's behalf. At issue in this appeal is plaintiff's third amended complaint, which was filed in June 2012. The third amended complaint contained eight counts: count I against Lisa for intentional infliction of emotional distress, count II against the Cofoid defendants for intentional infliction of emotional distress, count III against Lisa and the Cofoid defendants for intentional infliction of emotional distress, count IV against Lisa for interference with plaintiff's right to visit with Austin's remains (right to visit), count V against the Cofoid defendants for interference with plaintiff's right to visit, count VI against Lisa and the Cofoid defendants for interference with plaintiff's right to visit, count VII against the Cofoid defendants for intentional lack of due regard or respect for the dignity of plaintiff as Austin's next of kin (lack of due regard), and count VIII against the Cofoid defendants for negligent lack of due regard.

¶ 8 Lisa and the Cofoid defendants filed a motion to strike certain paragraphs of counts I, II, III, IV, V, and VI of the third amended complaint pursuant to section 2-615 of the Code of Civil Procedure (Code) ( 735 ILCS 5/2-615 (West 2012) ). In the motion to strike, defendants claimed, primarily, that the specified paragraphs of the third amended complaint were conclusory in nature and were not supported by allegations of fact. In addition to asking that those paragraphs be stricken from the third amended complaint, Lisa and the Cofoid defendants asked the trial court to grant any other relief that it deemed to be fit and just. The Cofoid defendants also filed a section 2-615 motion to dismiss Count VII of the third amended complaint, alleging, among other things, that count VII failed to state a cause of action.³ Although not quite clear from the record, it appears that the motion to dismiss was treated as applying to count VIII as well.

¶ 9 In August 2012, a hearing was held on the motions to strike and dismiss. A transcript of that hearing has not been made part of the record in this appeal. At the conclusion of the hearing, the trial court entered an order dismissing counts I (intentional infliction of emotional distress against Lisa), IV (interference with the right to visit against Lisa), VII (intentional lack of due regard against the Cofoid defendants), and VIII (negligent lack of due regard against the Cofoid defendants) in their entirety with prejudice and striking certain paragraphs from counts II, III, V, and VI.

¶ 10 In June 2015, the Cofoid defendants filed a motion for summary judgment as to counts II (intentional infliction of emotional distress against the Cofoid defendants), III (intentional infliction of emotional distress against Lisa and the Cofoid defendants), V (interference with the right to visit against the Cofoid defendants), and VI (interference with the right to visit against Lisa and the Cofoid defendants) of plaintiff's third amended complaint, the remaining counts of the third amended complaint that applied to the Cofoid defendants. Attached to the motion were various supporting exhibits, including the deposition of plaintiff.

¶ 11 Of relevance to this appeal, in plaintiff's deposition, plaintiff testified that he had previously suffered from anxiety and depression. Plaintiff began suffering from anxiety in 1991 after Lisa left him to terminate their marriage. Plaintiff's anxiety was long-standing and occurred when triggered by certain events, such as writing letters to Austin. Plaintiff's anxiety was never medically treated. Plaintiff was first diagnosed with depression in 1994 and was prescribed medication for depression in 1994 while he was in the DOC. Plaintiff stopped taking that medication in 1996. According to plaintiff, from the time he was sentenced to prison, he tried to send Austin about one letter a week, although he only received a response letter from Austin one time. As a result of Austin's death, plaintiff suffered depression, confusion, anxiety, panic attacks, crying, loss of appetite, heartache, and stomach pains. Plaintiff did not, however, suffer any physical injuries as a result of his emotional pain and did not seek any treatment for his emotional suffering, even though he had seen a medical doctor at the DOC for other reasons. When plaintiff was asked during his deposition how his condition changed after he found out his request to visit with Austin's remains was denied, plaintiff stated:

"I mean, I was—I was grieving. When I found out I couldn't go, it was even more so because I wasn't going to be able to have an opportunity to say my good-byes in person under any circumstances, let alone, you know, the passing of a son. I think my grieving process was increased exponentially besides other feelings of being hurt and being mad at everybody involved, and it's really—it's difficult to describe, you know, what a person goes through at that time. A lot of crying. A lot of that."

Plaintiff acknowledged, however, that the symptoms he experienced after being denied a final visit with Austin were the same grief symptoms that he would have experienced from Austin's death but stated that they were made more severe because he was denied visitation. According to plai...