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Shehade v. Gerson

OPINION FILED OCTOBER 23, 1986.

FRYDA SHEHADE, PLAINTIFF-APPELLANT,

v.

DAVID M. GERSON, DEFENDANT-APPELLEE.



Appeal from the Circuit Court of Cook County; the Hon. Alan E. Morrill, Judge, presiding. PRESIDING JUSTICE LINN DELIVERED THE OPINION OF THE COURT:

Plaintiff, Fryda Shehade (Fryda), brings this appeal seeking reversal of the trial court's order dismissing two counts of her three-count complaint. In her complaint Fryda alleges that defendant, David Gerson (Gerson), an attorney, committed legal malpractice. The trial court dismissed the two counts after it ruled that, even if Gerson breached the standard of care by failing to petition the trial court for a particular court order, nevertheless, his failure to request that order could not be considered to be the proximate cause of Fryda's claimed injury.

On appeal Fryda claims that the trial court erred in finding that Gerson's negligence could not be the proximate cause of her injury.

We reverse in part and affirm in part.

BACKGROUND

This matter is before us following the trial court's ruling that two counts of Fryda's second amended complaint fail to state a cause of action under Illinois law. Accordingly, we must accept as true all of the well-pleaded allegations of Fryda's complaint and must draw all reasonable inferences in her favor. Cook v. Askew (1975), 34 Ill. App.3d 1055, 341 N.E.2d 13.

Count II of Fryda's second amended complaint reveals that she was once married to Mesbah Shehade and that the couple had one child, Kaled Shehade, during their marriage. In October 1982 Fryda and Mesbah separated and Fryda filed an action seeking the dissolution of the marriage. The dissolution of marriage action instituted by Fryda involved the division of marital property, the custody of Kaled, and the provision for child support and maintenance. Pursuant to Fryda's request, she was given custody of Kaled pending the outcome of the dissolution of marriage proceeding. Although Fryda was given custody of Kaled, Mesbah retained the right to have periodic visitation with the minor child.

In February 1983 Fryda and her initial attorney agreed to terminate their relationship. Soon thereafter, Fryda employed Gerson to represent her in the pending dissolution of marriage proceeding. Fryda paid Gerson a fee, and, on February 10, 1983, Gerson filed his appearance as Fryda's attorney. Also on February 10, Fryda informed Gerson that Mesbah was a man of violent temper who had threatened to kidnap Kaled and remove him from the United States.

On July 21, 1983, Gerson arranged to have G. Wallace Roth appointed as the attorney to represent Kaled's interests. Gerson, however, failed to inform Roth that he was appointed as the child's attorney.

Later that same month Mesbah had visitation with Kaled. Mesbah wilfully refused to return the child to Fryda. Fryda contacted Gerson and asked Gerson to obtain an order barring and prohibiting Mesbah from having unsupervised visitation with Kaled. Although Gerson was able to obtain the safe return of Kaled, he failed to petition the trial court for an order barring Mesbah from unsupervised visitation with Kaled.

On August 3, 1983, Mesbah had visitation with Kaled. The visitation was unsupervised, and Mesbah again refused to return the child to Fryda. Fryda immediately contacted Gerson. Fryda told Gerson that she feared Mesbah was in the process of kidnaping Kaled, and she asked Gerson to take the appropriate legal action to ensure that Mesbah could not fulfill his threat to remove Kaled from the United States. Gerson failed to respond to Fryda's request.

On August 10, 1983, Mesbah abducted Kaled and removed him to Jordan.

Fryda claims that, as a result of Gerson's failure to act, she has been deprived of the actual custody of the child, has been deprived of every benefit of motherhood, and has no practical way to regain custody of the child in light of Jordan's Islamic law (which recognizes no custodial right on behalf of the mother). In addition, Fryda asserts that she will incur great legal expenses as she attempts to recover Kaled through international legal channels.

Count III of Fryda's second amended complaint is on behalf of Kaled. Fryda realleges the facts set forth above and claims that Gerson's failure to notify Roth resulted in Kaled being taken from the United States against his will. Fryda further asserts that Kaled has been deprived of his mother ...


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