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30 August 2000

JUSTICE LYTTON delivered the opinion of the court:
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Plaintiffs George and Margaret Collins (Collins') filed suitto recover unpaid rent from their former tenants, Michael Hurst andCombined Health Services, P.C (Hurst). The circuit court awarded$7,040.06 damages, but denied Collins' request for attorney feesand late payment charges. Collins' appeal. We reverse and remand.

Collins', as lessors, and Hurst, as lessee, entered into alease agreement for commercial property. Paragraph 20 of theagreement provided that "Lessees shall be responsible for any orall attorney fees such be incurred during the term of thisagreement if such fees are incurred as a result of acts oromissions done by Lessee." Paragraph 22 stated that "[a]ny amountnot paid when due Lessor under this Lease shall incur a servicecharge of two percent (2%) for that month for any payment made pastthe 10th of the month when due ***."

Hurst failed to pay rent for the months of August throughDecember 1997. Collins' filed suit to recover unpaid rent andinterest. The attorney representing Collins' agreed to work on acontingent fee of one third of any recovery.

After a bench trial, the circuit court awarded Collins'damages for unpaid rent in the amount of $7,040.06. The court alsodetermined that the contingent fee agreement, as between Collins'and the attorney representing Collins', was reasonable and orderedHurst to pay attorney fees equaling one third of the damage award. The court did not award late payment charges. Upon motion forreconsideration, the circuit court vacated the attorney fee award.

Collins' argue that because the contingent fee agreement withtheir attorney was reasonable, Hurst should pay fees totaling onethird of the judgment. Hurst responds that attorney fees should bepaid from the judgment awarded for back rent; thus, any separateattorney fee award is inappropriate.

The general rule is that parties in a lawsuit are responsiblefor their own attorney fees. Myers v. Popp Enterprises, 216 Ill.App. 3d 830, 838, 576 N.E.2d 452, 457 (1991). However, a court mayaward attorney fees if they are expressly authorized by statute orby agreement of the parties. In re Marriage of Magnuson, 156 Ill.App. 3d 691, 700, 510 N.E.2d 437, 443 (1987). Only those feeswhich are reasonable will be allowed. LaHood v. Couri, 236 Ill.App. 3d 641, 648, 603 N.E.2d 1165, 1170 (1992). To determine areasonable fee award, a court must consider: (1) the skill andstanding of the attorney employed, (2) the nature of the cause, (3)the novelty and difficulty of the questions, (4) the amount andimportance of the subject matter, (5) the degree of responsibilityin the management of the cause, (6) the time and labor required,(7) the usual and customary charges in the community, and (8) thebenefits resulting to the client. Ashby v. Price, 112 Ill. App. 3d114, 116, 445 N.E.2d 438, 444 (1983). A court should also considerthe nature of the attorney fee agreement between the successfullitigant and his or her attorney. Blankenship v. DialistInternational Corp., 209 Ill. App. 3d 920, 927, 568 N.E.2d 503, 507(1991). An attorney fee award is within the discretion of thecircuit court and will not be disturbed unless it amounts to anabuse of discretion. LaHood, 236 Ill. App. 3d at 648, 603 N.E.2dat 1170.

In this case, the parties entered a written lease agreementwhich contained a specific provision for the recovery of attorneyfees. The agreement required Hurst to pay fees resulting from hisdefault on rental payments. Based on the circuit court's findingof a default, Hurst is liable for attorney fees.

Hurst's argument that Collins' attorney fees should be paidsolely from the judgment awarded for back rent is without merit. As stated, the lease executed by the parties specifically requiresHurst to pay attorney fees resulting from a default. The languageagreed to by the parties can only be construed as requiring aseparate attorney fee award; the circuit court's failure to entera separate award was an abuse of discretion. See Fitzwilliam v.1220 Iroquois Venture, 233 Ill. App. 3d 221, 234-235, 598 N.E.2d1003, 1012 (1992).

On the other hand, an attorney fee award cannot be basedsolely on an amount necessary to satisfy a contingent fee agreementexisting between an attorney and a client. Though the circuitcourt found the contingent fee agreement between Collins' and theirattorney reasonable, Hurst was not a party to that agreement. Furthermore, the agreement between Collins' and Hurst did notprovide for the payment of attorney fees based on a contingent fee.While the court may consider the existence of a contingent feeagreement, it is only one factor of many to be examined. SeeBlankenship, 209 Ill. App. 3d at 927, 568 N.E.2d at 507. Where acontract allows fees to be paid to the other party, the fee must bereasonable regardless of any other agreement between litigants andtheir attorneys. See Keller v. State Farm Insurance Co., 180 Ill.App. 3d 539, 557, 536 N.E.2d 194, 205 (1989).

In sum, the attorney fee provision contained in the leasebetween Collins' and Hurst should be enforced. However, thecontingent fee agreement between Collins' and their attorney maynot be applied to Hurst without consideration of whether that feeamounts to a reasonable award in light of the well establishedfactors cited in Ashby. Ashby, 112 Ill. App. 3d at 116, 445 N.E.2dat 444. Therefore, on remand, the circuit court is directed todetermine a reasonable attorney fee award based on a considerationof the factors enumerated in Ashby. See also Johns v. Klecan, 198Ill. App. 3d 1013, 1021, 556 N.E.2d 689, 694 (1990).

We next consider the circuit court's failure to award a latefee. Collins' argue that based on the written lease agreement,Hurst must pay interest from the tenth day of each month when dueto the date of judgment. Hurst responds that Collins' have waivedthis issue by failing to raise it at trial or in a post-trialmotion.

Initially, we reject Hurst's contention that the present issuewas not preserved for appeal. Although there is no record of thetrial court proceedings, the circuit court ruled on the issue,indicating that it was raised.

On the merits, our principle objective is to effectuate theparties' intentions as expressed in their written contract. Illinois Valley Asphalt, Inc. v. La Salle National Bank, 54 Ill.App. 3d 317, 319-320, 369 N.E.2d 525, 528 (1977). Where contractlanguage is clear and unambiguous, the parties' intent must beascertained from the contract itself. Sigma Companies, Inc. v.Regas, 255 Ill. App. 3d 857, 861, 627 N.E.2d 256, 260 (1993). Construction of contract language involves a question of law.Illinois Valley Asphalt, 54 Ill. App. 3d at 319-20, 369 N.E.2d at528.

A lease may provide that if rent is not paid on or within agiven number of days from the due date, a late charge can be addedto the rent. See 16 Ill. Jur. Property