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01/22/98 THOMAS P. VALENTI v. LORRAINE SWANSON AND

APPELLATE COURT OF ILLINOIS, THIRD DISTRICT


January 22, 1998

THOMAS P. VALENTI, P.C., PLAINTIFF-APPELLEE,
v.
LORRAINE SWANSON AND ARTHUR SWANSON, DEFENDANTS-APPELLANTS.

Appeal from the Circuit Court of the 18th Judicial Circuit, Du Page County, Illinois. No. 96--AR--71. Honorable Richard A. Lucas, Judge, Presiding. This Opinion Substituted for Withdrawn Opinion of January 15, 1998, Previously

Present - Honorable Michael P. Mccuskey, Presiding Justice, Honorable Kent Slater, Justice, Honorable Peg Breslin, Justice. Justice Breslin delivered the opinion of the court. Mccuskey, P.j., and Slater, J., concur.

The opinion of the court was delivered by: Breslin

Justice BRESLIN delivered the opinion of the court:

[EDITOR'S NOTE: THE TEXT WITHIN THESE SYMBOLS [O>

In this case we are asked to rule that an attorney may not recover legal fees [O>in a common law action inquantum meruit if he fails to comply with the Personal Injury Representation Agreement Act (Act), 815 ILCS 640/0.01 et seq. (West 1996). We disagree that such a holding is required by Illinois law and thus affirm the trial court's judgment.

FACTS

The facts are relatively undisputed. On October 7, 1994, Lorraine and Arthur Swanson were involved in an automobile accident. Four days later, they hired Attorney Valenti to represent them on a contingent fee basis. Valenti did not provide the Swansons with a copy of the Act. About eight months later, the contingent fee agreement was terminated at the Swansons' request. The Swansons subsequently settled their personal injury claim. Valenti then filed suit against the Swansons seeking $8,475 (28.25 hours at $300 per hour) in damages under a quantum meruit theory. Following a hearing, the trial court awarded Valenti $3,150 (14 hours at $225 per hour) plus court costs. The Swansons appeal.

BACKGROUND

In Illinois, clients may discharge their attorney at any time, with or without cause. Warner v. Basten, 118 Ill. App. 2d 419, 255 N.E.2d 72 (1969). In the past, the discharged attorney was entitled to full contract fees if the dismissal was without cause. See Town of Mt. Vernon v. Patton, 94 Ill. 65 (1879); Warner, 118 Ill. App. 2d 419, 255 N.E.2d 72; Miller v. Solomon, 49 Ill. App. 2d 156, 199 N.E.2d 660 (1964). However, awarding full contract fees to a discharged attorney encouraged the unseemly practice of "ambulance chasing." Thus, in 1971 in an effort to curb such unsavory conduct, the legislature passed the Act. It provides that any agreement for representation in a personal injury case which is made within five days of the injury may be avoided by the injured party. 815 ILCS 640/1 (West 1996). One of the requirements is that the attorney provide the clients with a copy of the Act at the time the contingent fee agreement is entered into. 810 ILCS 640/1 (West 1996).

Subsequently, in 1979 our supreme court rejected the old rule that a discharged attorney is entitled to full contract fees if the dismissal was without cause. Rhoades v. Norfolk & Western Railway Co., 78 Ill. 2d 217, 399 N.E.2d 969, 35 Ill. Dec. 680 (1979). Instead, an attorney discharged without cause may only be entitled to recovery under [O>the common lawquantum meruit. Rhoades, 78 Ill. 2d at 230, 399 N.E.2d at 975. The Swansons argue that, regardless, the Act prohibits a noncomplying attorney from recovering not only under the representation agreement, but also [O>under atheory<>

ANALYSIS

[O>"The common law is a beautiful system; containing the wisdom and experience of ages." Penny v. Little, 4 Ill. 301, 304 (1841). It will not be deemed abrogated by statute unless it clearly appears that such was the legislative intent. Chu v. Bowers, 275 Ill. App. 3d 861, 656 N.E.2d 436, 212 Ill. Dec. 113 (1995).Belfield v. Coop, 8 Ill. 2d 293, 134 N.E.2d 249 (1956). In construing a statute, it is presumed that the legislature did not intend unjust, absurd or unreasonable consequences. People v. Wireman, 181 Ill. App. 3d 385, 536 N.E.2d 1346, 130 Ill. Dec. 135 (1989). The Act Provides:

"Any person who makes an agreement with any other person to represent him in his claim for settlement of a personal injury claim within 5 days after the occurrence which gave rise to the claim may, within a 10 day period after the occurrence elect to avoid the agreement by notifying the other person in writing of the election by registered or certified mail, return receipt requested.

The person undertaking the representation of the injured party by such an agreement must, at the time of the agreement, furnish the party with whom the agreement is made [with] a copy of the agreement and the address to which the notice may be sent and a copy of this Act, and obtain written acknowledgement of receipt of such from the party represented. If he fails to do so, the 10 day period provided for in this Act does not commence to run until the agreement, address and a copy of this act are furnished." 815 ILCS 640/1 (West 1996).

It is undisputed that under the Act's plain language, the Swansons were allowed to avoid the agreement because Valenti did not provide them with a copy of it. However, the Act makes no reference to quantum meruit recovery and we can glean no intent to bar such recovery from its language.

Furthermore, we find no intent to bar quantum meruit recovery in the legislative history. The Senate floor debates regarding the Act reveal that it is intended to discourage "ambulance chasing" by giving the injured person time to consider his injuries and his options. There is no mention of quantum meruit in any discussions of the Act. Accordingly, we are unable to say that there is an express legislative intent to preclude such recovery.

Additionally, after carefully reviewing the Act and the attendant policy considerations, we are unable to say that it is necessary to read a prohibition against quantum meruit recovery into the Act to avoid absurd results. It is readily apparent that the purpose of the Act is to shield injured people who hastily enter into personal injury representation agreements without due consideration of all the relevant facts. But precluding attorneys from recovering fees for legal services provided within the first 10 days of an injury, a time period in which sound legal advice may be extremely important, would discourage attorneys from providing such services. This result would be contrary to the spirit of the Act.

The Swansons argue that allowing quantum meruit recovery would encourage attorneys to delay giving notice of the Act until such time as the attorney's potential recovery under quantum meruit makes a client's election to avoid the agreement financially punitive. Such a circumstance is not likely. There are strong financial incentives for attorneys to comply with the Act because noncompliance would limit them to quantum meruit recovery rather than full recovery. Additionally, the trial courts will carefully scrutinize such claims with the view that quantum meruit recovery is equitable in nature and is limited to the reasonable value of the services provided. That is exactly what the trial court did in this case.

HOLDING(S)

For these reasons, we hold that quantum merit recovery may be attained even though the attorney failed to comply with the requirements of the Act. Accordingly, we affirm the judgment of the circuit court of Du Page County.

Affirmed.

MCCUSKEY, P.J., and SLATER, J., concur.

19980122

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