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Sullivan v. Fawver

APRIL 23, 1965.

VIVIEN E. SULLIVAN, EXECUTRIX OF THE LAST WILL AND TESTAMENT OF EDWARD J. SULLIVAN, DECEASED, PLAINTIFF-APPELLEE,

v.

PEARL FAWVER AND IRA FAWVER, DEFENDANTS-APPELLANTS.



Appeal from the 15th Judicial Circuit Stephenson County; the Hon. LEON A. ZICK, Judge, presiding. Judgment affirmed.

ABRAHAMSON, P.J.

This appeal is taken from judgments in favor of the executor of the Last Will and Testament of a deceased attorney against a man and wife for attorney's fees. The case was tried before a jury and the judgments were entered on the jury's verdicts.

Attorney Edward J. Sullivan, hereinafter called Sullivan, was a long-time practitioner in Stephenson County and had for many years been the family lawyer for Ira and Pearl Fawver, the appellants herein, representing them in numerous small transactions. On February 16, 1961, the Fawvers were involved in a serious automobile accident in Winnebago County and were both hospitalized. Apparently, there was little doubt that the driver of the other automobile was legally at fault. Ira Fawver was released from the hospital first and was contacted about April 5, 1961, at home by a representative of the insurance carrier insuring the driver of the other car. On the following day, Ira and his niece visited the office of Sullivan and informed him of the accident, Pearl Fawver was still in the hospital. A letter, dated April 6, 1961, was sent by Sullivan to the insurance carrier stating, in part, "This is to advise you that I have been retained by Mr. and Mrs. Ira D. Fawver of this City for the purpose of representing them in connection with the automobile accident involving a car driven by Mr. Harold Bradley of Rockford, Illinois."

Sullivan's secretary testified that the letter was dictated in the presence of Ira and his niece, but the niece denies this and Ira could not "recollect" it. Ira did direct the hospital to forward the bills to Sullivan and referred phone calls from doctors to his office. The doctor's reports and bills were assembled by Sullivan and forwarded to the insurance carrier whose adjustor, Charles S. Adams, Jr., entered into direct settlement negotiations with Sullivan.

During the period involved in this controversy, Sullivan was apparently dying of cancer. He had undergone operations in 1957 and 1960 and was incapable of speaking above a harsh whisper.

In late June 1961, Adams offered $23,000 in full settlement of the claims of Pearl Fawver, the claim based in part, on the medical bills forwarded by Sullivan. The following day Sullivan phoned Adams and informed him that there was an additional bill in the amount of $7,200, and, on that basis, new discussions took place at Sullivan's office in late July. Both Sullivan and Adams made notes as they talked showing that Pearl Fawver's approximate medical bills were $15,000; $18,000 would be considered for her pain and suffering; and $8,000 were noted as attorney's fees. Adams testified that in negotiating settlements of this kind, he customarily considered the plaintiff's attorneys fees of 25%, and included them in his offers of settlement.

Following this conference, Sullivan and Adams visited the Fawvers and Sullivan recommended to Pearl Fawver who was at home, that she accept $41,000 offered in full settlement. The Fawvers expressed their belief that the offer was far too small and the conference ended.

Sullivan returned alone on several occasions to discuss the case with the Fawvers and kept in contact with Adams. In late 1961, Sullivan went into a hospital, and with his approval, Adams contacted the Fawvers directly in an unsuccessful effort to settle it before the end of the year. Sullivan returned from the hospital and advised Adams that he would attempt to obtain a sensible counter-offer from the Fawvers after the first of the year. On February 4, 1962, Sullivan died.

On March 5, 1962, the Fawvers entered into a written agreement with an attorney, Bert Snow, providing for a contingent fee of 33 1/3% of any amount recovered in excess of $40,000 in regard to their claims. The contract provided that the Fawvers would be responsible for any attorney's fees due the estate of Sullivan. On May 9, 1962, the Fawvers received $62,316.23 in full settlement of their claims.

Subsequently, the Fawvers received statements from Sullivan's widow, as executor under his Last Will, in the amount of $10,250 for Pearl, and $594.34 for Ira for legal services rendered during his lifetime. These figures represent 25% of the offers from the insurance carrier at the date of Sullivan's death. The Fawvers refused to pay these amounts, or any amounts at all, and this suit resulted.

The parties are in agreement that there was no express contract relating to the employment of Sullivan or his compensation. While the appellants denied in their pleadings, and during the trial, that there was in fact any agreement that Sullivan was to represent them in this matter, at all, this position is absurd and not urged on appeal. Where there is no express agreement as to the question of fees between attorney and client, it is universally recognized that there is an implied contract that the attorney be entitled to reasonable compensation measured by the value of his services. Crocker v. Boening, 247 Ill. App. 466.

Appellants emphasize that an agreement for a contingent fee can never be implied, but must be a matter expressly contracted for by the attorney and the client. While there does not appear to be any Illinois cases to support their position on this point, we do not quarrel with it as a valid statement of the law. However, in the instant case it has no bearing since Sullivan's estate does not seek to recover on an implied contract for a contingent fee, but for the reasonable value of his services to the time of his death.

In determining what the reasonable value of an attorney's services are, in the absence of an express contract, it is proper for the judge or jury to consider the usual and customary fees for similar services in the same community. Louisville, N.A. & C.R. Co. v. Wallace, 136 Ill. 87, 26 N.E. 493. Nathan v. Brand, 167 Ill. 607, 47 N.E. 771. Attorneys may testify as expert witnesses as to the fees usually and customarily charged for like services within the community, and the judge or jury may properly consider their testimony in arriving at their determination. Louisville, N.A. & C.R. Co. v. Wallace, 136 Ill. 87, 26 N.E. 493. Maneaty v. Steele, 112 Ill. App. 19.

In our case, the plaintiff called four trial attorneys who practice in Stephenson County, all with wide experience and distinguished attainments. Each testified that, in their opinion, the customary and usual fee within their community for representing a client in a personal injury action would be 25% of any recovery before filing a lawsuit, and 33 1/3% thereafter, irrespective of the existence of an express contract to ...


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