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FIRST DIVISION
November 3, 2003

No. 1-01-3994

JUSTICE McNULTY delivered the opinion of the court:

Illinois courts began working on the divorce of Daniel andMelinda Schweihs in 1989. This case is further litigationrelated to that divorce. Following several appeals in thedivorce proceeding and related litigation, Melinda brought thislawsuit charging her divorce attorneys with malpractice. She hadattempted to appeal from an order awarding attorney fees to bepaid from the marital estate to her husband's attorneys. Thiscourt dismissed the appeal because Melinda's attorneys did notfile a timely notice of appeal.

The trial court granted Melinda's attorneys summaryjudgment, finding that Melinda would not have won any relief evenif her attorneys had filed a timely notice of appeal. Melindanow appeals again. This time we have jurisdiction.

We agree with the trial court that Melinda would not havewon on appeal, and we affirm the judgment against Melinda on herclaims for the fees the marital estate paid to Daniel'sattorneys. But we find that Melinda has presented sufficientevidence to create a material issue of fact as to whether theattorneys breached their contract with her, and whether thatbreach entitles her to a refund of the fees she paid them for theappeal they failed to timely file. Therefore we affirm thejudgment in part, reverse in part, and remand for yet furtherproceedings.

In 1988 two directors of Disciplined Investment Advisors(DIA) voted to terminate DIA's employment of Daniel, ashareholder of DIA. DIA then sued to enjoin Daniel from tellingDIA's clients that he represented DIA. Daniel countersued thedirectors for breach of their fiduciary duties to shareholders of DIA.

Daniel petitioned for divorce from Melinda in 1989. Headmitted that the marital estate included his counterclaimagainst the directors of DIA. In the course of the divorcelitigation, the parties contested numerous issues concerningtemporary child support, maintenance, and the disposition ofmarital assets. On January 3, 1990, the court entered an ordermemorializing the agreed resolution of a number of these issues. The order included the following provision:

"The presently outstanding attorney fees to bepaid in connection with Daniel's Disciplined InvestmentAdvisors litigation (DIA) including all contingencyfees shall not exceed 33 % of the ultimate recoveryby settlement or trial. Should Daniel volunteer feepayments in excess of 33 % the trial court hereinshall have jurisdiction to determine the allocationthereof in the division of marital property."

On July 17, 1990, Daniel signed an agreement with the lawfirm of Spence, Moriarity & Schuster (SMS), in which SMS agreedto represent Daniel in his lawsuit against the directors of DIAin exchange for "40% of the gross amount received." The letteragreement explained:

"The above fees apply to any and all amounts recoveredfor me, including amounts recovered for the value of mystock in the company. By 'gross amount,' I mean thatsum received before any expenses that have beenadvanced by you have been deducted from the amountreceived."

Melinda moved to compel Daniel to settle the lawsuit and usethe settlement funds to support his children. Daniel, throughSMS, opposed the motion. In 1994, after the parties exhaustedall other assets including the marital home, the court orderedDaniel to sell his cause of action against the directors of DIA,in effect ordering Daniel to settle the case. The directors hadoffered $4.7 million to be paid over 10 years. The court orderedacceptance of that offer.

SMS petitioned for an award of 40% of the settlement amountas their attorney fees under the contract with Daniel. Anattorney representing the children of Daniel and Melinda alsopetitioned for fees, as did a law firm that initially representedDaniel in the DIA litigation. Following hearings the trial courtfound the present value of the settlement to be $3,950,000.

The judge held:

"Dan Schweihs individually did not have theauthority to bind the marital estate to the 40-percentcontingent fee contract. And this agreement isunenforceable. The contingent fee agreement of up toone-third of the gross amount received is enforceable."

Attorneys later asked for clarification of whether the judgemeant that the contingent fee contract was entirely unenforceable"[a]gainst anyone." The court answered that Daniel "could notbind the marital estate," but "[o]bviously, he could bindhimself."

From the marital estate the court awarded the petitioningattorneys fees totaling one-third of the present value of thesettlement, allocating $128,232.92 to the attorney for thechildren, $67,054.63 to the previously discharged law firm, and$1,171,379.16 to SMS.

James Rubens, of the law firm of Davis, Friedman, Zavett,Kane & MacRae (Davis), had represented Melinda throughout thedivorce litigation. Melinda asked Rubens to appeal the award offees to SMS. Rubens filed a notice of appeal and several briefsin the appellate court. Davis charged Melinda about $26,000 fortaking the appeal. In 1997, we dismissed the appeal for lack ofjurisdiction because the notice of appeal was not timely filed.

Melinda filed this lawsuit for malpractice in 1999. Shealleged that the appellate court would have reduced or eliminatedfees for SMS if Rubens had filed a timely notice of appeal. Shesought damages to reflect the reduction in fees the appellatecourt would have ordered, and she sought a refund of fees paid toDavis for the appeal.

Rubens and Davis supported their motion for summary judgmentwith the appellate briefs filed before we dismissed the appeal in1997. The trial court agreed with Rubens and Davis that none ofthe arguments raised in the briefs would have succeeded even ifRubens had filed a timely notice of appeal. The court noted that

Melinda would have incurred all the fees she paid, and she wouldhave obtained no better result, if the appeal had been timelyfiled. Thus, the court held that Melinda "did not incur the$26,000 in alleged damages because of [the] failure to timelyfile the appeal." The court granted Rubens and Davis summaryjudgment on all claims for relief.

We review the summary judgment de novo. Travelers InsuranceCo. v. Eljer Manufacturing, Inc., 197 Ill. 2d 278, 292 (2001).

Melinda argues first that if Rubens had timely filed thenotice of appeal, the marital estate would not have paid any feesto SMS because Rule 1.5(d) of the Rules of Professional Conductforbids contingent fee contracts in dissolution proceedings. 134Ill. 2d R. 1.5(d)(1). The rule provides that no lawyer shallcollect

"any fee in a domestic relations matter, thepayment or amount of which is contingent upon thesecuring of a dissolution of marriage or upon theamount of maintenance or support, or propertysettlement in lieu thereof; provided, however, that theprohibition set forth in Rule 1.5(d)(1) shall notextend to representation in matters subsequent to finaljudgments in such cases[.]" 134 Ill. 2d R. 1.5(d)(1).

The rule on its face does not preclude contingent feecontracts in all cases bearing some relation to dissolutionproceedings. In re Marriage of Wright, 89 Ill. 2d 498, 501(1982). For example, courts have enforced contingent feecontracts for collection of unpaid child support and maintenance,even though the court entered the order to be enforced as part ofa proceeding for dissolution of marriage. Fletcher v. Fletcher,227 Ill. App. 3d 194, 198 (1992). And our supreme court enforceda contract providing that the wife's attorney would recover feesfrom the wife's share of proceeds from separate litigationagainst the husband. Wright, 89 Ill. 2d at 501.

In Licciardi v. Collins, 180 Ill. App. 3d 1051 (1989), anattorney collected a contingent fee he earned by obtaining amodification of property distribution ordered in a dissolutionproceeding. The client later sued for return of the fee ongrounds that the contingent fee contract violated the predecessorof Rule 1.5(d). The trial court ordered the attorney to returnthe contingent fee. The appellate court agreed with the attorneythat our supreme court designed the rule "to prevent theencouragement of divorce and the hindrance of reconciliationwhich could result if attorneys were given financial interests inproperty settlements." Licciardi, 180 Ill. App. 3d at 1061. Thecourt held that the policy

"is best served by prohibiting attorneys from acquiringcontingent financial interests in all domesticrelations cases involving the division of maritalproperty between either spouses or former spouses. That is, we believe the public policy behind the ruleso important that, as long as an attorney's servicesare employed with respect to the division of maritalproperty, the rule bars contingent fees therefor." Licciardi, 180 Ill. App. 3d at 1061.

The appellate court affirmed the order requiring the attorney toreturn the contingent fee.

Here, SMS did not work on the distribution of property inthe dissolution proceeding. The distribution of marital assetsordered in the dissolution proceeding had no effect on the amountof the contingent fee or the financial interests of SMS. If SMSachieved a better result for its client, the result wouldincrease the amount available for distribution to Melinda as wellas Daniel. SMS did not work to alter or influence thedistribution of assets in the dissolution action. Melindaeffectively acknowledged that a contingent fee contract might beappropriate for Daniel's lawsuit against DIA directors when sheagreed to the order permitting an award of up to 33 % of theultimate recovery in that lawsuit.

We agree with Rubens and Davis that the contingent fee heredoes not offend public policy. It is like a contingent fee forrepresentation in a case involving an automobile accident, wherethe client happens to be in the process of marital dissolutionand the lawsuit is an asset of the marital estate. Since successin the litigation concerning the accident increases the totalavailable for distribution to the parties to the divorce, withoutaffecting the distribution of the property between the parties(see In re Marriage of Burt, 144 Ill. App. 3d 177 (1986); In reMarriage of Pace, 278 Ill. App. 3d 932, 935-36 (1996)), acontingent fee for representation in the tort litigation does notoffend public policy. Because the litigation between Daniel andDIA did not affect the division of marital property, a contingentfee for representation in that litigation does not violate Rule1.5(d)(1). See Licciardi, 180 Ill. App. 3d at 1061; Wright, 89 Ill. 2d at 501. The appellate court would not have grantedMelinda relief on the basis of public policy, even if Rubens hadfiled a timely notice of appeal.

Next, Melinda contends that the trial court lacked authorityto alter the contingent fee contract from the 40% provided in theletter agreement to the 33 % permitted by the agreed order. Ingeneral, courts will enforce contracts as written, and they willnot rewrite a contract to suit one of the parties. Klemp v.Hergott Group, Inc., 267 Ill. App. 3d 574, 581 (1994). Butcourts have a duty to guard against the collection of excessiveattorney fees, both contingent and fixed, even if a contractspecifies such excessive fees. XL Disposal Corp. v. John SextonContractors Co., 168 Ill. 2d 355, 360 (1995). Thus courts havethe authority to evaluate contingent fee contracts to ensure thatthe contracts do not result in excessive fees. In re Doyle, 144Ill. 2d 451, 463 (1991).

In re Estate of Sass, 246 Ill. App. 3d 610 (1993), showsthat the court has the power to reform a contingent fee agreementto provide for a fee the court finds reasonable. In Sass theattorney settled a wrongful death action for $250,000 and soughtto enforce the contract for a contingent fee of one-third of thesettlement. The trial court found the attorney's work did notjustify the award of $83,000 in fees. Sass, 246 Ill. App. 3d at612. The court awarded the attorney $41,666, one-sixth of thesettlement, as the appropriate fee. Sass, 246 Ill. App. 3d at613. The appellate court affirmed the award of one-half theamount called for in the contingent fee contract, finding noabuse of discretion. Sass, 246 Ill. App. 3d at 615-16.

The trial court here similarly had discretion to award feesless than the amount called for in the contract. The court foundthat it could not enforce the contingent fee contract against themarital estate because Melinda did not sign or agree to thatcontract. Instead the court found that the agreed order gaveDaniel authority to bind the estate for a contingent fee of one-third of the amount recovered, while Daniel retained the power tobind himself to a greater fee of his own choosing. Although thecourt held the contingent fee contract not fully enforceableagainst the marital estate, the court concluded that the contractbetween Daniel and SMS bound the estate to payment of acontingent fee of one-third of the amount recovered in thelitigation against the directors of DIA.

Melinda contends that the finding that the contract was notenforceable against the estate conflicts with the partialenforcement the court ordered. We see no inconsistency. Theagreed order on its face supports the finding that Melindaauthorized Daniel to bind the marital estate to payment ofcontingent and other fees totaling up to one-third of thesettlement obtained in the litigation against the DIA directors. The court appropriately held that SMS could enforce the contractto the extent of recovering its share of a one-third contingencyfee from the marital estate, while retaining the right to recoverfrom Daniel the difference between the authorized fee and the 40%fee to which Daniel agreed. Melinda would not have obtainedrelief from the appellate court based on the unenforcibility ofthe contract even if Rubens had filed a timely notice of appeal.

Next, Melinda contends that the appellate court would havereduced the fee paid to SMS because the contingent fee contractlimits the fee to the portion of the settlement allocated toDaniel. She pins the argument on the provision in the contractthat the 40% fee applies to amounts recovered by Daniel, withoutmentioning the marital estate. The issue is a matter of contractinterpretation.

We must construe the contract as a whole to give effect tothe intention of the parties. Owens v. McDermott, Will & Emery,316 Ill. App. 3d 340, 344 (2000). We discern the intention fromthe language of the contract, viewed in light of the apparentpurposes of the parties at the time they entered into thecontract. DeWitt County Public Building Comm'n v. County ofDeWitt, 128 Ill. App. 3d 11, 18 (1984).

In the letter agreement Daniel specifically hired SMS torepresent him in his suit against the directors of DIA. Thecontract provides:

"[SMS may] take whatever action may be necessary *** torecover for me the loss and damages which have beensustained by me as a result of this incident."

In this context, Daniel agreed to pay "40% of the gross amountreceived" in settlement of the DIA litigation. That gross amountqualifies as marital property for the court to distribute in thedissolution proceedings. See Pace, 278 Ill. App. 3d at 935. Asthe parties intended to arrange for SMS to obtain a maximalrecovery in the DIA litigation to compensate for all damageDaniel suffered due to the actions of DIA directors, the contractapparently calls for fees of 40% of the total recovered in thatlitigation, and not just 40% of the part of the total recoveryallocated to Daniel in the dissolution proceedings.

Were we to interpret the contingent fee contract to apply toonly the portion of the DIA settlement allocated to Daniel in thedissolution proceedings, the fee SMS recovered would depend uponthe amount the court hearing dissolution proceedings allocated toDaniel. As such, the contract would give SMS a "contingentfinancial interest[] in [a] domestic relations case[] involvingthe division of marital property." Licciardi, 180 Ill. App. 3dat 1061. Thus, under Melinda's interpretation of the feecontract, the contract appears to violate the public policyreflected in Rule 1.5(d)(1) of the Rules of Professional Conduct. 134 Ill. 2d R. 1.5(d)(1). Our supreme court directs us to prefercontract constructions that render contracts enforceable ratherthan illegal. Braye v. Archer-Daniels-Midland Co., 175 Ill. 2d201, 217 (1997).

We agree with the trial court that the contingent fee inDaniel's contract with SMS, enforceable against Daniel,establishes attorney fees of 40% of the amount recovered from thedirectors and DIA in the DIA litigation, regardless of allocationbetween parties to the dissolution proceedings. The trial courthad authority to hold the marital estate liable, under the agreedorder, for fees totaling one-third of the settlement. Thus, wefind that Melinda would have lost her appeal even if Rubens hadfiled it within the appropriate time.

Melinda also seeks a return of the fee she paid Davis topursue the appeal. She alleges in her complaint that Rubensnegligently failed to file the notice within the proper time andthereby lost Melinda's right to appeal.

Ochoa v. Maloney, 69 Ill. App. 3d 689 (1979), bears somesimilarity to this case. The plaintiff in that case paid the defendant $3,500 to appeal the criminal conviction of theplaintiff's son. The defendants filed a notice of appeal butfailed to file a timely brief. After the appellate courtdismissed the appeal, the plaintiff sued the defendants forrefund of the fees paid plus punitive damages. Although thecourt reinstated the son's appeal, the court ordered the defendants to return to theplaintiff the $3,500 she paid them.Ochoa, 69 Ill. App. 3d at 692.

Levan v. Richter, 152 Ill. App. 3d 1082 (1987), also guidesour decision. In that case the plaintiffs hired the defendant toconstruct a swimming pool and made a $1,300 down payment on thepool. The defendant completed construction and filled the poolwith water. Much of the water drained out of the pool into theground within two days. The defendant had failed to comply withcontract specifications. The pool would not hold water and couldnot be repaired. Levan, 152 Ill. App. 3d at 1086. The appellatecourt held that the defendant breached the contract by failing tosupply a pool that could hold water. The court awarded the plaintiffs damages for the breach of contract, including the costof removing the pool, the cost of restoring the site, andreimbursement of all funds the plaintiffs paid the defendant forthe pool. Levan, 152 Ill. App. 3d at 1088.

Melinda paid Davis about $26,000 in fees specifically for anappeal from the award of fees to SMS. Davis failed to file atimely appeal, thereby waiving Melinda's right to appellatereview of the fee award. Davis provided nothing of value toMelinda in exchange for her $26,000. An unfiled appeal, even ifattorneys worked long hours preparing appellate briefs, is muchlike a pool that holds no water. It does not serve the mostbasic function of that for which the client paid. Rubens andDavis apparently breached their contract to appeal from the feeaward when they failed to file a timely notice of appeal.

We recognize that Melinda phrased her complaint as one forlegal malpractice rather than breach of contract. But the tortof legal malpractice usually involves breach of an attorney'scontractual duties. Christison v. Jones, 83 Ill. App. 3d 334,338 (1980). A breach of contract claim need only restate themalpractice count, with no additional allegations. Land v.Greenwood, 133 Ill. App. 3d 537, 541 (1985). We find thatpermitting amendment of the complaint to state a cause of actionfor breach of contract would further the ends of justice. SeeWillis v. Ohio Casualty Co., 101 Ill. App. 3d 1099, 1108 (1981).

We agree with the trial court's finding that Melinda wouldnot have won her appeal from the award of fees to SMS. We affirmthe decision to dismiss claims for relief dependent uponMelinda's ability to succeed on that appeal. However, we findthat the complaint sufficiently states facts showing that Rubensand Davis breached their contract to file an appeal from theaward of fees to SMS. On a claim for breach of contract Melindaappears to be entitled to a return of fees she paid for Rubensand Davis to file an appeal. Therefore we affirm in part,reverse in part and remand for further proceedings consistentwith this opinion.

Affirmed in part and reversed in part; cause remanded.

GORDON and McBRIDE, JJ., conur.