{ "id": 3644389, "name": "FRYDA SHEHADE, Plaintiff-Appellant, v. DAVID M. GERSON, Defendant-Appellee", "name_abbreviation": "Shehade v. Gerson", "decision_date": "1986-10-23", "docket_number": "No. 85\u20141333", "first_page": "1026", "last_page": "1032", "citations": [ { "type": "official", "cite": "148 Ill. App. 3d 1026" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "298 N.E.2d 719", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "11 Ill. App. 3d 625", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2935603 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/11/0625-01" ] }, { "cite": "361 N.E.2d 311", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "46 Ill. App. 3d 764", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2975702 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/46/0764-01" ] }, { "cite": "402 N.E.2d 805", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1977, "opinion_index": 0 }, { "cite": "82 Ill. App. 3d 113", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3223908 ], "year": 1977, "opinion_index": 0, "case_paths": [ "/ill-app-3d/82/0113-01" ] }, { "cite": "443 N.E.2d 36", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1980, "opinion_index": 0 }, { "cite": "110 Ill. App. 3d 800", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2995781 ], "year": 1980, "opinion_index": 0, "case_paths": [ "/ill-app-3d/110/0800-01" ] }, { "cite": "117 N.E.2d 74", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "2 Ill. 2d 74", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 12121670 ], "opinion_index": 0, "case_paths": [ "/ill-2d/2/0074-01" ] }, { "cite": "384 N.E.2d 100", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "66 Ill. App. 3d 676", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3319382 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/66/0676-01" ] }, { "cite": "427 N.E.2d 374", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "100 Ill. App. 3d 767", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5500261 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/100/0767-01" ] }, { "cite": "370 N.E.2d 303", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1981, "opinion_index": 0 }, { "cite": "54 Ill. App. 3d 1013", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3403337 ], "year": 1981, "opinion_index": 0, "case_paths": [ "/ill-app-3d/54/1013-01" ] }, { "cite": "440 N.E.2d 448", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "109 Ill. App. 3d 311", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5448324 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/109/0311-01" ] }, { "cite": "341 N.E.2d 13", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "opinion_index": 0 }, { "cite": "34 Ill. App. 3d 1055", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2963974 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ill-app-3d/34/1055-01" ] } ], "analysis": { "cardinality": 642, "char_count": 13827, "ocr_confidence": 0.77, "pagerank": { "raw": 7.566081012465133e-08, "percentile": 0.44870338000400795 }, "sha256": "91bbf0a9f297b79ccf5a1e658a2303b09a931db8bc72647fd6750776c65c410d", "simhash": "1:b3de58ecebcb2dad", "word_count": 2303 }, "last_updated": "2023-07-14T16:17:24.109479+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "FRYDA SHEHADE, Plaintiff-Appellant, v. DAVID M. GERSON, Defendant-Appellee." ], "opinions": [ { "text": "PRESIDING JUSTICE LINN\ndelivered the opinion of the court:\nPlaintiff, Fryda Shehade (Fryda), brings this appeal seeking reversal of the trial court\u2019s order dismissing two counts of her three-count complaint. In her complaint Fryda alleges that defendant, David Ger-son (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\u2019s claimed injury.\nOn appeal Fryda claims that the trial court erred in finding that Gerson\u2019s negligence could not be the proximate cause of her injury.\nWe reverse in part and affirm in part.\nBackground\nThis matter is before us following the trial court\u2019s ruling that two counts of Fryda\u2019s 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\u2019s complaint and must draw all reasonable inferences in her favor. Cook v. Askew (1975), 34 Ill. App. 3d 1055, 341 N.E.2d 13.\nCount II of Fryda\u2019s 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\u2019s 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.\nIn 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 appear-anee as Fryda\u2019s 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.\nOn July 21, 1983, Gerson arranged to have G. Wallace Roth appointed as the attorney to represent Kaled\u2019s interests. Gerson, however, failed to inform Roth that he was appointed as the child\u2019s attorney.\nLater 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.\nOn 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 Mes-bah could not fulfill his threat to remove Kaled from the United States. Gerson failed to respond to Fryda\u2019s request.\nOn August 10, 1983, Mesbah abducted Kaled and removed him to Jordan.\nFryda claims that, as a result of Gerson\u2019s 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\u2019s 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.\nCount III of Fryda\u2019s second amended complaint is on behalf of Kaled. Fryda realleges the facts set forth above and claims that Ger-son\u2019s 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 and has been \u201crelegated to a life in a society alien to those of his birth.\u201d\nFollowing the trial court\u2019s dismissal of counts II and III, Fryda filed this appeal.\nOpinion\nI\nWe first address count II of Fry da\u2019s second amended complaint. It is Fryda\u2019s position that count II sufficiently alleges a cause of action for legal malpractice against Gerson.\nIn order to state a cause of action in legal malpractice, a plaintiff must allege: (1) the existence of a duty arising out of the attorney-client relationship; (2) an act or omission that constitutes a breach of that duty; and (3) a causal link between the attorney\u2019s breach of duty and the resulting injury or loss to the client. Cook v. Gould (1982), 109 Ill. App. 3d 311, 440 N.E.2d 448.\nIn the case at bar, it is evident (accepting the allegations set forth above as true) that: (1) an attorney-client relationship existed between Fryda and Gerson; (2) Gerson had a duty to protect his client\u2019s interests by seeking a court order barring Mesbah from unsupervised visitation with Kaled; and (3) Fryda suffered a resulting injury in that she no longer has custody of her son, Kaled. What is not as clear, however, is whether Gerson\u2019s failure to obtain the court order can be said to be the proximate cause of Fryda\u2019s injury.\nIn order for us to agree with the trial court that Gerson\u2019s omission to act could not be considered to be the proximate cause of Kaled\u2019s kidnaping (and Fryda\u2019s resulting injury), it is necessary for us to find that (1) as a matter of law, Gerson could not have obtained the court order requested by Fryda; and (2) as a matter of law, Fryda can prove no set of facts from which a jury could find that Gerson\u2019s negligence (in failing to petition the trial court for the order) was the proximate cause of Fryda\u2019s injury.\nAddressing first whether Gerson could have obtained a court order (had he properly petitioned for it) barring Mesbah from unsupervised visitation with Kaled, section 607(a) of the Illinois Marriage and Dissolution of Marriage Act (HI. Rev. Stat. 1983, ch. 40, par. 607(a) provides:\n\u201cSec. 607. Visitation.\n(a) A parent not granted custody of the child is entitled to reasonable visitation rights unless the court finds, after a hearing, that visitation would endanger seriously the child\u2019s physical, mental, moral or emotional health. If the custodian\u2019s street address is not identified, pursuant to Section 708, the court shall require the parties to identify reasonable alternative arrangements for visitation by a non-custodial parent, including but not limited to visitation of the minor child at the residence of another person or at a local public or private facility.\u201d\nWhile it is true that Illinois law favors liberal visitation (Frail v. Frail (1977), 54 Ill. App. 3d 1013, 370 N.E.2d 303), courts have recognized that where the welfare or the child\u2019s physical, mental, moral or emotional health is seriously endangered, supervised visitation is proper. See e.g., In re Marriage of Johnson (1981), 100 Ill. App. 3d 767, 427 N.E.2d 374.\nIn the present case Gerson\u2019s failure to petition the trial court for an order pursuant to section 607(a) resulted in the trial court never having the opportunity to consider whether Mesbah\u2019s threats and conduct posed a danger to Kaled\u2019s health and well-being sufficient to justify an order limiting Mesbah\u2019s visitation with Kaled. Nevertheless, accepting Fryda\u2019s allegations as true, we cannot find as a matter of law that a trial court would not have issued such an order. Fryda claims that Mesbah threatened to kidnap Kaled. That such an act might endanger Kaled\u2019s health is apparent, for a kidnaping, by its nature, involves the use of force. Consequently, we believe a trial court, following a hearing, could have found that Mesbah posed a threat to Kaled\u2019s health, thereby justifying an order requiring supervised visitation. That being the case, we refuse to find as a matter of law that the trial court would not have issued an order prohibiting Mesbah from having unsupervised visitation with Kaled had Gerson properly requested such from the trial court.\nWe now address whether, assuming that an order barring Mesbah from unsupervised visitation was requested for and granted, Fryda can prove a set of facts sufficient to link Gerson\u2019s negligence with Kaled\u2019s kidnaping.\nGerson maintains that, even if he breached a duty to Fryda by failing to petition the trial court for the court order, nevertheless, that omission can in no way be found to be the proximate cause of Fryda\u2019s injury. Gerson claims that Mesbah kidnapped the child, a criminal act, and that a court order barring unsupervised visitation could not have prevented such from occurring. Gerson points out that even assuming, arguendo, that he had qbtained the order, Mesbah still could have kidnapped the child \u201coff the street\u201d at any time. Thus, according to Ger-son, since the court order could not have prevented Mesbah from committing the ultimate act of kidnaping, Gerson\u2019s failure to obtain the order cannot be said to be the proximate cause of Fryda\u2019s injury.\nGerson reads the proximate cause issue too broadly. A reading of Fryda\u2019s second amended complaint reveals that she is not claiming that the order (prohibiting Mesbah from having unsupervised 'visitation with Kaled), could have prevented Kaled\u2019s kidnaping per se; rather, Fryda is asserting that Gerson\u2019s failure to obtain the order provided Mesbah with the opportunity to kidnap Kaled on August 10, 1983. Absent an opportunity to visit with the child free from supervision, Fryda alleges that Kaled\u2019s kidnaping on August 10, 1983, would not have taken place.\nAs a court of review, our function is to determine whether the trial court was correct in ruling that Fryda can prove no set of facts entitling her to relief. (McCauley v. Chicago Board of Education (1978), 66 Ill. App. 3d 676, 384 N.E.2d 100.) We must keep in mind that the issue of proximate cause is generally one for the trier of fact (Ney v. Yellow Cab Co. (1954), 2 Ill. 2d 74, 117 N.E.2d 74), and that a motion to dismiss should only be granted where the plaintiff\u2019s claim fails, as a matter of law, to allege those facts upon which relief can be granted (Cook v. Askew (1975), 34 Ill. App. 3d 1055, 341 N.E.2d 13).\nApplying those standards to the case at bar, and based on the foregoing analysis, we cannot say, as a matter of law, that Gerson\u2019s failure to petition the trial court for an order barring Mesbah from unsupervised visitation with Kaled could not be found to be the proximate cause of Kaled\u2019s kidnaping and Fryda\u2019s resulting injury. Because the kidnaping took place during a period of unsupervised visitation, and because unsupervised visitation is precisely what Fryda requested Ger-son to prevent (and which the court order would have prevented), we cannot say that a jury would be unable to find a causal connection between Gerson\u2019s alleged negligence and Fryda\u2019s claimed injury. That being the case, we reverse the judgment of the trial court with regard to count II of Fryda\u2019s second amended complaint.\nII\nWith respect to count III of Fryda\u2019s complaint, however, we agree with the trial court that it must be dismissed, for it fails to state a claim upon which relief can be granted. Count III seeks relief on behalf of Kaled for the injury that Kaled allegedly suffers as a result of currently living in Jordan, as opposed to the United States.\nIt has long been the law in Illinois that damages cannot be awarded on the basis of conjecture or speculation. (Schoeneweis v. Herrin (1982), 110 Ill. App. 3d 800, 443 N.E.2d 36; DMI, Inc. v. Country Mutual Insurance Co. (1980), 82 Ill. App. 3d 113, 402 N.E.2d 805.) Where the damages in a negligence action are based on conjecture or speculation, the action must be dismissed, for recoverable damages are an essential element of every negligence action. Zapf v. Makridakis (1977), 46 Ill. App. 3d 764, 361 N.E.2d 311.\nIn the case at bar, we are compelled to find that those damages, if any, which Fryda may be awarded under count III of her second amended complaint would be speculative in nature. First, we are unable to discern how a jury could specify a monetary award to compensate Kaled for living in Jordan as opposed to the United States. Second, the key element of proof, Kaled\u2019s testimony, cannot be viewed by the jury. Thus, because Kaled is unable to testify, the jury would have to guess as to: (1) the fact that he does not want to live in Jordan; and (2) his degree of dissatisfaction with living in Jordan. Because of these infirmities, we believe that any damages which Fryda claims on behalf of Kaled cannot be proved with sufficient certainty. As a result, count III lacks an essential element, recoverable damages, and is therefore properly dismissed. Accord, Crosby v. City of Chicago (1973), 11 Ill. App. 3d 625, 298 N.E.2d 719.\nAccordingly, for the reasons set forth above, the decision of the trial court with regard to count II of Fryda\u2019s second amended complaint is reversed and is remanded for further proceedings. With respect to count III, however, the decision of the trial court is affirmed.\nAffirmed in part and reversed in part.\nJOHNSON and McMORROW, JJ., concur.", "type": "majority", "author": "PRESIDING JUSTICE LINN" } ], "attorneys": [ "Collins & Uscian, of Chicago (George B. Collins and Christopher Bar-gione, of counsel), for appellant.", "Hinshaw, Culbertson, Moelmann, Hoban & Fuller, of Chicago (D. Kendall Griffith, Robert J. Milligan, and Joshua G. Vincent, of counsel), for appellee." ], "corrections": "", "head_matter": "FRYDA SHEHADE, Plaintiff-Appellant, v. DAVID M. GERSON, Defendant-Appellee.\nFirst District (4th Division)\nNo. 85\u20141333\nOpinion filed October 23, 1986.\nCollins & Uscian, of Chicago (George B. Collins and Christopher Bar-gione, of counsel), for appellant.\nHinshaw, Culbertson, Moelmann, Hoban & Fuller, of Chicago (D. Kendall Griffith, Robert J. Milligan, and Joshua G. Vincent, of counsel), for appellee." }, "file_name": "1026-01", "first_page_order": 1048, "last_page_order": 1054 }