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Milijana Vlastelica, Individually and As v. Jeffrey W. Brend and Levin and Brend

August 8, 2011

MILIJANA VLASTELICA, INDIVIDUALLY AND AS
THE NEXT FRIEND OF KRISTIAN N. CHEHAIBER, PLAINTIFFS-APPELLANTS,
v.
JEFFREY W. BREND AND LEVIN AND BREND, P.C.,
DEFENDANTS-APPELLEES.



Appeal from Circuit Court of Cook County. No. 10 L 001908 Honorable Kathy M. Flanagan, Judge Presiding.

The opinion of the court was delivered by: Justice Rochford

JUSTICE ROCHFORD delivered the judgment of the court, with opinion. Presiding Justice Hall and Justice Lampkin concur in the judgment and the opinion.

OPINION

¶ 1 Plaintiffs, Milijana Vlastelica (Milijana), individually and as next friend of her minor son, Kristian N. Chehaiber (Kristian), filed a three-count complaint against the child representative appointed in the underlying divorce action, Jeffrey W. Brend (Brend), and Brend's private law firm Levin and Brend, P.C. (collectively referred to as defendants). The complaint alleged: (1) legal malpractice; (2) intentional breach of fiduciary duty; and (3) intentional interference with Milijana's custody rights. The circuit court granted defendants' motion to dismiss pursuant to section 2--619 of the Code of Civil Procedure (735 ILCS 5/2--9(West 2010)), finding that defendants were absolutely immune from civil liability for Brend's work performed as child representative. Plaintiffs filed a motion to reconsider, which the circuit court denied. Plaintiffs appeal. We affirm.

¶ 2 In May 2000, Manheir Chehaiber (Manheir) filed a petition for dissolution of marriage to Milijana. In May 2002, the parties entered into a marital settlement agreement that was incorporated into a judgment for dissolution of marriage (the dissolution judgment). The dissolution judgment reserved various issues, including custody of their minor son, Kristian, child support, and visitation rights. The circuit court subsequently awarded custody of Kristian to Milijana; however, visitation and certain other issues not addressed by the dissolution judgment remained open.

¶ 3 In connection with these open issues, the circuit court appointed Brend as child representative for Kristian in September 2003. After Brend's appointment, Milijana filed a motion for substitution of judges. In that motion, Milijana accused the court of being prejudiced against her and of deliberately ignoring the basic principles of law. Milijana also accused Brend of improper and fraudulent conduct. The circuit court denied the motion and imposed sanctions against Milijana, finding there was no evidence supporting the allegations that Brend had engaged in fraudulent conduct. Milijana appealed. We affirmed the sanctions. See In re Marriage of Chehaiber, No. 2-- 07-- 0117 (2008) (unpublished order under Supreme Court Rule 23). Milijana also filed two separate motions to discharge Brend. In her first motion, Milijana alleged that Brend was biased against her as evidenced by: (1) his recommending a visitation schedule favoring Manheir; (2) his telling her that previous orders regarding custody and other matters could be modified; (3) his "screaming in [her] face" that he would "come after" her if she told the circuit court of her belief that Manheir was violating court orders; and (4) his filing a motion in limine to bar her from testifying at a hearing regarding visitation. The circuit court denied this motion.

¶ 4 In her second motion, Milijana alleged that Brend improperly attempted to influence Dr. Doris Van Byssum, a psychologist whom the circuit court appointed to evaluate custody and visitation in this case. Milijana again sought Brend's discharge as child representative. The circuit court denied this motion too. Milijana appealed. We affirmed. See In re Marriage of Chehaiber, Nos. 2--08--0375, 2--08--1030 cons. (2009) (unpublished order under Supreme Court Rule 23).

¶ 5 Brend remained Kristian's child representative until March 27, 2008, when Milijana's and Manheir's dissolution of marriage was fully adjudicated and became final.

¶ 6 On February 11, 2010, plaintiffs filed their three-count complaint against defendants. Counts I and II were brought by Milijana as next friend of Kristian. Count I was for legal malpractice, while count II was for intentional breach of fiduciary duty. Count III was brought by Milijana individually and was for intentional interference with her custody rights.

¶ 7 Count I's claim for legal malpractice alleged that Brend met with Milijana at her house on November 5, 2003, and "wanted to do everything all over as if the parties never had a custody trial." Brend insisted on discussing the issues of Kristian's school, religious upbringing, and custody, all of which had been resolved by the court; however, Brend refused to discuss certain issues that had not yet been decided, such as visitation rights, child support, division of holidays and vacation time. Brend also refused to discuss the subjects of Manheir's alleged anti-Semitism and he disregarded derogatory comments Manheir made about Milijana in Kristian's presence. Plaintiffs alleged that on November 12, 2003, Brend met with both Milijana and Manheir and tried to convince Milijana that the non-custodial parent, Manheir, had the right to raise Kristian as a Muslim. When Milijana told Brend that Manheir repeatedly violated court orders and she needed to bring it to the circuit court's attention, Brend screamed, "Oh no you will not do that. I will not allow you to do that. And if you do that I will personally come after you."

¶ 8 Plaintiffs alleged that Brend's refusal to discuss pending issues, and his insistence on discussing the "non-issues," entangled plaintiffs in "stressful and unnecessary litigation for an additional five years."

¶ 9 Plaintiffs further alleged that Brend committed legal malpractice when he contacted Milijana by phone prior to January 9, 2004, and attempted to "bully" her into agreeing that Manheir should be given physical custody of Kristian and that her visitation should be limited to four hours per week and every other weekend. Plaintiffs contended that Brend was "de facto, re-deciding the custody award entirely on his own, without any basis in law or fact, without any hearing whatsoever," and contrary to Kristian's best interests.

¶ 10 Plaintiffs also alleged that Brend committed legal malpractice by: advocating that the parties should maintain the parenting schedule as agreed upon in 2002, as if the custody trial of 2003 never even took place; and filing numerous pleadings designed to prevent Milijana from having an evidentiary hearing on the issue of Manheir's visitations and by seeking to bar Milijana from testifying thereto.

ΒΆ 11 Plaintiffs alleged that on August 3, 2006, the circuit court ordered the parties to undergo a second custody trial and appointed Dr. Van Byssum as the "custody evaluator." Milijana filed a motion to reconsider or for a finding under Supreme Court Rule 308(a) (eff. Feb. 26, 2010) and a motion to stay the custody evaluation. Plaintiffs alleged that Brend committed legal malpractice by failing to file a response to Milijana's motions or appear at various hearings. Plaintiffs contended that but for Brend's ...


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