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SIXTH DIVISION
March 18, 2005

JUSTICE McNULTY delivered the opinion of the court:

The parties to the instant appeal ask us to determinewhether a fee agreement between attorneys and their clientsurvived the client's death, allowing the executor of theclient's estate the benefit of the agreement's cost-controlprovisions. We hold that the conduct of the parties demonstratesa clear intent to continue the agreement, and we affirm the orderdenying the attorneys' request for a declaration that theagreement terminated with the client's death.

Robert Kohlenbrener, a founder and long-time shareholder ofNorth Suburban Clinic, Ltd., a closely held medical corporation,was involuntarily ousted from the corporation's ownership ranksafter his retirement from the practice of medicine. Kohlenbrenerwas told by North Suburban representatives that his shares in thecorporation were worthless, but North Suburban paid $30,000 forthe shares to forestall any dispute regarding the action. Shortly thereafter, the corporation was sold in its entirety in atransaction which paid North Suburban's other owners more than $1million each for their shares in the enterprise.

Kohlenbrener contacted Ronald Adelman, an attorney andfamily friend, to discuss the possibility of litigation againstNorth Suburban and several of his former partners. Adelmanreferred her to another attorney, Loren Mallon, of the firmTishler & Wald; Mallon agreed to represent her. In June 1996,Mallon addressed to Kohlenbrener and his wife, BiancaKohlenbrener, a proposed representation agreement which includedthe fee arrangement suggested by the attorneys to govern theircompensation for representation in the North Suburban litigation. The letter proposed compensation in the form of a combination ofcontingent and noncontingent fees: Kohlenbrener would pay theattorneys' hourly rates up to a $25,000 cap and would also paycontingent bonuses ranging from 20% to 30% of any recovery,depending on the point in the litigation process at which theNorth Suburban defendants made payment. The fee arrangementproposed by the letter credited the hourly fees Kohlenbrener paidagainst the total sum providing the basis for the calculation ofthe contingency bonus payment. Mallon's letter elaborated,"Although we cannot guarantee any result whatsoever, we do think- - based on our experience and on the facts you have provided tous - - that you have an excellent case. This is the reason thatwe are willing to risk an investment of our time in the form of apartial contingency once the $25,000 in non-contingentcompensation has been paid." The agreement was signed by Mallonand both Kohlenbreners, and purported to have been copied toAdelman, but did not include Adelman as a signatory. Kohlenbrener ultimately paid $25,000 in hourly fees to Tishler &Wald.

Mallon represented Kohlenbrener in litigation against theNorth Suburban defendants which was initially unsuccessful: thetrial court dismissed one of Kohlenbrener's counts against thedefendants and found in the defendants' favor on the remainingclaims. In contemplation of an appeal of the trial court'saction, Mallon and Adelman entered into an agreement withKohlenbrener which governed the fees to be paid for appellaterepresentation. The May 1999 agreement, which took the form of aletter from Adelman to Robert Kohlenbrener, and was signed byAdelman, Kohlenbrener, and Mallon, provided that Adelman andMallon, who by this time had launched a solo practice, wouldrepresent Kohlenbrener for the appeal and specified that theattorneys would charge an hourly fee of $250 and that fees andcosts for the appeal "will be capped at $30,000.00." Theagreement also explained the limitations of the cap: "The$30,000.00 cap applies only to this appeal to the First DistrictAppellate Court. If there is any further appeal to the Illinoisand/or U.S. Supreme Courts, then hourly fee billing will resume,subject to negotiation of a new cap."

The agreement further specified circumstances upon which acontingent fee would be payable to the attorneys: "[If] any courtof review either awards damages to you or remands your case for anew trial, then the contingent fee shall be applicable, in whichevent Loren and I shall be jointly entitled to one third (33.33%)of any damages awarded to you after you been [sic] credited forall hourly attorneys' fees paid in this matter to Tishler & Waldat the trial level and to Loren and me for this appeal."(Emphasis in original.) Kohlenbrener ultimately paid $30,000 tothe attorneys for hourly fees relating to the appeal.

The attorneys' appellate representation of Kohlenbrenerproved successful: in June 2000, this court reversed the trialcourt's dismissal of one of Kohlenbrener's claims against theNorth Suburban defendants; reversed the findings in favor of thedefendants on two other claims, and remanded for trial.

Robert Kohlenbrener passed away in March 2001. His widow,Bianca Kohlenbrener, became executor of his estate. The partiesagree that Mrs. Kohlenbrener expressed to the attorneys herdesire to utilize their services to continue the litigationagainst the North Suburban defendants. The parties further agreethat no additional discussions regarding the terms of therepresentation took place and that they entered into no specificwritten or oral agreement regarding the terms of representationand compensation.

Mrs. Kohlenbrener, as executor of her husband's estate, wassubstituted as the plaintiff in the litigation against the NorthSuburban defendants. In October 2002, following three days oftrial presentation, Mrs. Kohlenbrener and the defendants agreedto settle her claims for a payment of $100,000.

Mallon subsequently sent to Mrs. Kohlenbrener a proposedsettlement approval document which authorized the attorneys todismiss her action with prejudice in exchange for the $100,000payment. The document sought her approval of a division of the$100,000 payment, which granted $33,333.33 in "ContingentAttorneys' Fees" to Mallon and Adelman. In a telephonediscussion of the settlement process, Mrs. Kohlenbrener asked theattorneys why their proposed division of the settlement proceedshad not credited the hourly fees previously paid by her husband,and requested a copy of the 1999 contingent fee agreement. Shortly thereafter, Loren Mallon passed away; his interests havesince been represented by Roberta Mallon, the executor of hisestate.

The North Suburban defendants delivered the settlementpayment to the clerk of the court and the claims against themwere dismissed; at the same time, the trial court retainedjurisdiction to adjudicate the fee dispute between Mrs.Kohlenbrener and her attorneys. The attorneys recommended thatthe trial court initially determine whether the 1999 feeagreement survived; they suggested that if the agreement did notgovern their compensation, they were entitled to quantum meruitcompensation and that they would submit billing records insupport of their fee claim. The court agreed, and the attorneysthen sought a declaratory judgment that the agreement terminatedwith the death of Robert Kohlenbrener. The trial court deniedthe attorneys' declaratory judgment motion, and this appealfollowed.

The attorneys contend that because an attorney-clientrelationship generally terminates upon the death of the client(Clay v. Huntley, 338 Ill. App. 3d 68, 76 (2003)), their feearrangement with Robert Kohlenbrener did not survive his passing. In addition, they cite the well-settled principle that in theevent of an early termination of a contingency-basedrepresentation, an attorney is entitled to be compensated for thereasonable value of his services. Rhoades v. Norfolk & WesternRy. Co., 78 Ill. 2d 217, 230 (1979). In asserting a right toreasonable compensation, which they assert to be an unspecifiedamount not limited by the payment credits contained in the 1996and 1999 agreements, the attorneys argue that they undertook therepresentation of Mrs. Kohlenbrener as a completely new client,without regard to the prior contingent fee agreements signed byher husband. In our view, the record demonstrates otherwise.

The attorneys' treatment of their representation of Mrs.Kohlenbrener as a contingency matter is definitively demonstratedby the label they used in the proposed disbursement approvalagreement to describe the funds to be paid directly to them.Mallon's document acknowledged $100,000 in "Adjusted GrossSettlement Proceeds," identified "Contingent Attorneys Fees" of"33.33% (1/3 of adjusted gross recovery)," listed the attorneys'respective shares as $19,666.67 for Mallon and $13,666.66 for Adelman, and identified $66,666.67 as "Net Settlement Proceeds ToClient."

Seeking to avoid the impact of this language, the attorneysclaim that the contingent fee label in the approval document wasmerely "mistakenly used," and that the proposed fee was actuallythe amount they believed at the time to be "a fair and reasonablefee in quantum meruit." Since acceptance of thischaracterization would require the conclusion that the proposalof compensation of precisely one-third of Mrs. Kohlenbrener'srecovery was entirely unrelated to any prior contingencyarrangement, and was instead based upon some estimate of thevalue of the work provided by the attorneys, it would perhaps be anticipated that some explanation of the $33,333.33 figure'sderivation would have been presented to Mrs. Kohlenbrener andprovided to the trial court as evidence of the attorneys' conductof the representation as if no contingency agreement existed. The record before us, however, offers no such explanation. Therecord does not suggest that the attorneys made anycontemporaneous attempt to communicate to Mrs. Kohlenbrener theirexpenditure of time or resources in the course of herrepresentation. In contrast, the record clearly establishes thatduring the period of representation which allowed the attorneysto charge Robert Kohlenbrener their hourly fees before reachingthe caps imposed by the 1996 and 1999 fee agreements, theyprovided advance estimates of anticipated expenditures, advisedKohlenbrener that he would be billed regularly, and collectedpayments for their hourly fee billings up to the cap amountsestablished by the two agreements. Since the attorneys expressedno intent to treat the 1999 contingency agreement as terminated,presented no evidence of conduct consistent with their priorpractice under hourly fee arrangements, identified their duecompensation as a contingency fee payment, asked for the sumwhich would have been payable under the contingency feeagreement, and identified no other basis for the calculation ofthat sum, we are not persuaded that they had any intent otherthan to apply the terms of the 1999 agreement to Mrs.Kohlenbrener.

Mrs. Kohlenbrener filed an affidavit which asserted that theattorneys never advised her that the fee agreement they hadsigned with her husband ended at the time of his death and thatshe "always assumed, and acted on the assumption, that theAttorneys would continue to handle the litigation and would do soon the basis of the fee agreement reached with Robert."

It is thus apparent that the parties conducted themselves asif the attorneys' representation of Mrs. Kohlenbrener would begoverned by the terms established by their agreement with herhusband. The fact that this agreement was not reduced to writingdoes not negate its validity; under such circumstances, Illinoislaw recognizes the formation of an implied contract. "A contractimplied in fact is one in which a contractual duty is imposed bya promissory expression which may be inferred from the facts andcircumstances and the expressions on the part of the promisorwhich show an intention to be bound." Estate of Jesmer v.Rohlev, 241 Ill. App. 3d 798, 803 (1993). An implied-in-factcontract may be found by examination of the acts of the partieseven in the absence of any express statement of specificagreement regarding the details of the contractual relationship. Jesmer, 241 Ill. App. 3d at 804, Century 21 Castles by King, Ltd.v. First National Bank of Western Springs, 170 Ill. App. 3d 544,548-49 (1988).

We believe that the record demonstrates the existence of animplied-in-fact contract between Mrs, Kohlenbrener and theattorneys to extend the terms of her husband's agreement to therepresentation they provided for her. We accordingly affirm thetrial court's denial of the attorneys' requested declaration thatthe 1999 fee agreement was inapplicable.

Affirmed.

FITZGERALD SMITH, P.J., and TULLY, J., concur.