Bedin v. Mueller , 2024 IL App (1st) 221000-U ( 2024 )

2024 IL App (1st) 221000-UFIFTH DIVISION
July 12, 2024
No. 1-22-1000
NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the
limited circumstances allowed under Rule 23(e)(1).
IN THE
APPELLATE COURT OF ILLINOIS
FIRST JUDICIAL DISTRICT
JANET BEDIN, Individually and as Special )
Administrator of the Estate of Dolores Bedin, Deceased, )
) Appeal from the
Plaintiff-Appellant, ) Circuit Court of
) Cook County.
v. )
) No. 13 L 13639
KYLE MUELLER, NORTHWESTERN SURGICAL )
ASSOCIATES, ELISABETH WALLNER, and ) Honorable
NORTHWESTERN MEMORIAL HOSPITAL, ) Allen Walker,
) Judge Presiding.
Defendants, )
)
(O’Connor Law Group, LLC, Appellee). )
JUSTICE MIKVA delivered the judgment of the court.
Presiding Justice Mitchell and Justice Lyle concurred in the judgment.
ORDER
¶1 Held: Order granting appellee attorney fees and costs pursuant to a theory of
quantum meruit is affirmed where the circuit court found appellee’s failure to
comply with Rule 1.5(c) of the Illinois Rules of Professional Conduct of 2010 (Ill.
R. Prof’l Conduct R. 1.5(c) (eff. Jan. 1, 2010)) is not an adequate bar to
compensation; the circuit court further did not abuse its discretion in calculating
fees or costs.
¶2 Plaintiff Janet Bedin (Ms. Bedin) appeals the decision of the circuit court awarding attorney
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fees and expenses to O’Connor Law Group, LLC (OLG), arising from the settlement of an
underlying medical malpractice case. In that case, OLG represented Ms. Bedin in her capacity as
special administrator of her mother’s estate. OLG neglected to have Ms. Bedin sign a written
retainer agreement. The circuit court awarded both fees, which totaled 30% of the total settlement,
and costs pursuant to a theory of quantum meruit. For the reasons that follow, we affirm.
¶3 I. BACKGROUND
¶4 Dolores Bedin (Dolores) died in August 2011 from pancreatic cancer. The Circuit Court of
Winnebago County appointed her daughter, Ms. Bedin, as the executor of Dolores’s estate. Ms.
Bedin has one brother, Alexander Bedin (Alexander).
¶5 Between December 2010 and August 2012, Ms. Bedin (or her mother initially) retained
three separate law firms, one after the other, to file a medical malpractice case in relation to the
diagnosis and treatment of Dolores’s illness. In each agreement, Ms. Bedin or Dolores agreed to
pay a one-third contingent fee and expenses.
¶6 In August 2012, the third firm filed a complaint in the Circuit Court of Cook County. The
complaint alleged that Kyle Mueller, M.D., Northwestern Surgical Associates, Elisabeth Wallner
M.D., and Northwestern Memorial hospital (collectively, defendants) were responsible both for
Dolores’s wrongful death and for negligence under the Illinois Survival Act (755 ILCS 5/27-6
(West 2012)).
¶7 In June 2015, the fourth firm, OLG, the appellee in this case, filed an appearance. In July,
it substituted for the previous firm.
¶8 In litigating the underlying action, OLG filed two amended complaints, partially defeated
a motion to strike portions of the second amended complaint, and defended against at least three
motions for partial summary judgment. It retained five experts, deposed over 20 witnesses, and
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participated in mediation. According to a table of litigation expenses submitted by OLG, litigation
costs totaled $90,283.90, primarily arising from expert depositions and expert retainer fees.
¶9 In October 2017, an attorney from OLG sent Ms. Bedin a letter to an address in Rockford,
Illinois. The letter begins, “Because it is so difficult to get ahold of you, and because it is almost
impossible to set a meeting with you so that you actually show up, I am notifying you of several
things.” The letter goes on, “Of course, you never paid any of my expenses which you promised
on so many occasions, but at this point, I have given up on that, so we will just work on the 1/3
contingent fee.” The letter concludes, “We also need your New York City address for client contact
purposes.”
¶ 10 On October 31, 2017, the case was assigned to Judge Allen Price Walker. Judge Walker’s
award of fees and costs became enmeshed in the parties’ settlement of the medical malpractice
claims, so we set out these events together
¶ 11 On December 27, 2017, the parties participated in a mediation. Following the mediation,
defendants offered to settle the malpractice case for $550,000. OLG agreed to this amount on Ms.
Bedin’s behalf via email, though she was not part of the email thread. It then sent notice of its
attorney’s lien to Dr. Mueller’s and Dr. Wallner’s insurer’s attorney.
¶ 12 On January 22, 2018, OLG sent Ms. Bedin an email advising her to set up a trust to protect
funds from the settlement that would be distributed to Ms. Bedin’s brother, Alexander, who,
according to the email, was disabled and would, absent a trust, lose much of the proceeds to
Medicare. In the email, OLG also asked Ms. Bedin to “[c]all [OLG] to discuss all this sometime
TODAY.” Ms. Bedin responded saying she would call in 30 minutes.
¶ 13 Near the end of the workday, OLG emailed Ms. Bedin again saying,
“Jan, I haven’t heard from you as promised. I don’t know what your intentions are.
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*** And, so we are clear, if you are balking at my fees, I need to know that also. If I charge
you by the hour, which I can do, the fees would be greater than the reduced amount I am
proposing.”
¶ 14 After the workday, Ms. Bedin responded saying she would call in 15 minutes. In its brief,
OLG states that Ms. Bedin did not call.
¶ 15 On January 24, 2018, individual defendant Elisabeth Wallner, M.D., filed a motion to
enforce the previously agreed settlement and obtain dismissal.
¶ 16 At the hearing to review the reported settlement, Judge Walker considered both Dr.
Wallner’s motion and a separate motion, filed by OLG, titled “Plaintiff’s Petition To Approve
Wrongful Death Settlement and Proposed Distribution.” The motion included a request for fees
and costs. There is no transcript in the record of this hearing, but in its brief, OLG represents that
it orally advised the circuit court that Ms. Bedin objected to the payment of expenses and that she
wanted to consult another attorney. The circuit court continued the matter.
¶ 17 On January 29, 2018, Judge Walker dismissed the case with prejudice in light of the
settlement. According to OLG’s brief, the court also contacted OLG and told it to remove a few
minor expenses from a list of costs. OLG then submitted an amended petition with the requested
expenses removed. OLG also added language to the amended petition noting that Ms. Bedin “will
no longer cooperate in final resolution, [and OLG therefore] requests [the] Court to approve
settlement and proposed distribution as set forth.” OLG further stated that it agreed with Ms. Bedin
to reduce its contingent award from one-third to 30%.
¶ 18 On January 31, the circuit court granted an order approving the settlement and finding that
OLG and Ms. Bedin “entered into an agreement” for a 30% contingent fee in the amount of
$165,000. The court also approved the distribution of $90,283.90 for fair and reasonable expenses.
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It retained jurisdiction for purposes of enforcing the settlement and adjudicating any liens. Lastly,
the settlement was made subject to approval of the probate division of the Circuit Court of
Winnebago County.
¶ 19 A hearing for status on the execution of the settlement release and enforcement was
continued three times until it was finally held on March 23, 2018. According to the transcript of
that hearing, Ms. Bedin arrived late. Before her arrival, an OLG attorney stated, “Judge, I feel
awful that we’re wasting the Court’s time I apologize to counsel here, as well. And if we continue
this until Monday, [Ms. Bedin] might not be on time *** again. So I just want to put that out there.”
¶ 20 The court delayed the hearing until Ms. Bedin arrived. When the hearing began, Ms. Bedin
expressed concern over whether the settlement would release defendants from liability in a
separate action. She also stated that she was concerned about “the distribution of fees and
expenses.” She requested a continuance to have time to consult with a separate attorney. The court
admonished Ms. Bedin, stating that she already had time to consult a separate attorney during the
previous continuances.
¶ 21 OLG then articulated its position that the complaint was filed on behalf of Dolores’s estate,
of which Ms. Bedin was only an administrator and agent of the court. As such, and considering
Ms. Bedin’s brother who stood to benefit, the court had authority to act in the best interest of the
estate and enforce the settlement whether Ms. Bedin signed the release or not. Ms. Bedin asserted
that concern for her brother was the reason that she wanted time to consult with an attorney.
¶ 22 At that hearing, OLG conceded that it did not have a written agreement with Ms. Bedin. It
argued that it was instead “essentially [a] third-party beneficiary” of the agreements between Ms.
Bedin and the previous firms. Ms. Bedin protested, asserting that she did not know that the costs
had reached over $90,000. OLG contended that it had sent Ms. Bedin numerous emails and oral
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communications keeping her informed of the costs.
¶ 23 During the hearing, the court allowed Ms. Bedin to call Darlene Soderberg, an attorney
who, over the phone, represented to the court that she was licensed to practice law in Illinois. The
court explained the background of the dispute between OLG and Ms. Bedin and told Ms.
Soderberg that, in the absence of an agreement, reasonable fees could still accrue to OLG based
on quantum meruit. The court added that it did not believe the fees would be “substantially
different” based on quantum meruit rather than a written agreement. The two would “come out to
be pretty close.” The court did not, therefore, see a reason it would not sign the release on behalf
of Dolores’s estate.
¶ 24 The transcript records that a conversation between Ms. Bedin and Ms. Soderberg was had
off record, after which the court asked Ms. Bedin if she was going to sign the release. Ms. Bedin
did not respond affirmatively. At that point, the court announced that it would sign the release on
behalf of the estate.
¶ 25 On March 28, 2018, Ms. Bedin filed an unsigned pro se “Emergency Motion In Opposition
To The Proposed Distribution ***” and a separate “Emergency Motion In Opposition To The Full
Release ***.” In these, Ms. Bedin argued that costs should be deducted from OLG’s fees. She
stated “[T]he only dispute that exists between Janet Bedin and Attorney O’Connor is in regard to
whether expenses are to be paid out of the contingency fee of $165,000.” She further argued that
the settlement contained multiple inaccuracies including that the release asserted that it was signed
on behalf of Ms. Bedin.
¶ 26 The circuit court denied both of Ms. Bedin’s motions. It instead directed the parties to
revise the release to add language specifying that the court would sign pursuant to Will v.
Northwestern University, 378 Ill. App. 3d 280 (2007), a case in which we affirmed the circuit
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court’s actions preventing a plaintiff from rejecting a settlement in a wrongful death suit that
benefited the estate.
¶ 27 On April 6, 2018, OLG filed a motion titled “Plaintiff’s Motion To Execute Settlement
Release And Enforce Settlement.” In the motion, OLG stated that it “believe[d] that Janet Bedin
[would] never execute the Settlement Release,” she was “simply not capable of making reasoned
decisions about this litigation,” and the interests of Alexander and Ms. Bedin were “at odds at this
point.”
¶ 28 On April 9, 2018, the circuit court, defendants, and OLG executed the settlement. On April
25, 2018, the probate court in Winnebago County approved the settlement. It later entered an order
directing distribution of funds to OLG for partial reimbursement of litigation expenses
(Distribution Order).
¶ 29 Ms. Bedin filed a motion in Winnebago County to reconsider the Distribution Order. Ms.
Bedin also filed a motion in the Circuit Court of Cook County to reconsider the court’s April 9
order approving execution of the settlement agreement. She argued in that motion that OLG should
receive roughly half of the original amount of calculated expenses, $45,000, as reimbursement for
costs, in addition to its $165,000 contingent fee. The Cook County circuit court denied the motion.
¶ 30 On June 4, 2018, OLG filed a motion in Cook County to enforce an attorney’s lien. It
sought an order directing defendants to issue three checks—one to Ms. Bedin, one to Dolores’s
estate, and one to OLG directly. The circuit court granted the motion.
¶ 31 On July 20, 2018, Ms. Bedin filed a notice of appeal in Cook County objecting to the
following six circuit court orders: (1) the January 31 order approving settlement; (2) the March 23
order granting motions to enforce the settlement and finding that OLG’s proposed attorney fees
and litigation expenses were reasonable; (3) the March 28 order denying Ms. Bedin’s emergency
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motions in opposition to the full release and settlement; (4) the April 9 order approving execution
of the settlement agreement; (5) the May 30 order denying Ms. Bedin’s motion to reconsider; and
(6) the June 20 order directing defendants to re-issue settlement drafts in the name of OLG and
enforce OLG’s attorney’s lien.
¶ 32 In a summary order, we dismissed Ms. Bedin’s July 20 appeal as premature on the basis
that Ms. Bedin’s motion to reconsider the Winnebago County court’s Distribution Order rendered
the Circuit Court of Cook County’s ruling—which was subject to approval by the Winnebago
County probate court—neither final nor appealable. Bedin v. Mueller, No. 1-18-1556 (2019)
(unpublished summary order under Illinois Supreme Court Rule 23(c)).
¶ 33 The probate court in Winnebago County entered a final order on June 2, 2022. Ms. Bedin
then filed a new notice of appeal.
¶ 34 II. JURISDICTION
¶ 35 Ms. Bedin appeals the circuit court’s award of fees and expenses initially entered on
January 31, 2018, and made contingent upon approval by the probate court of Winnebago County
administering Delores’s estate. The action in Winnebago County was not finalized until June 2,
2022. Ms. Bedin filed a timely notice of appeal on July 5, 2022. This court has jurisdiction over
the appeal pursuant to Illinois Supreme Court Rule 301 (eff. Feb. 1, 1994) and Rule 303 (eff. July
1, 2017), governing appeals from final judgments entered by the circuit court in civil cases.
¶ 36 III. ANALYSIS
¶ 37 On appeal, Ms. Bedin argues we should reverse the circuit court’s award of both costs and
fees because (1) no enforceable agreement exists between herself and OLG, (2) OLG is not a
third-party beneficiary of Ms. Bedin’s prior agreements with other firms, (3) the circuit court erred
in raising quantum meruit as an alternative basis to support its award, and (4) the circuit court
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failed to consider necessary factors when calculating fees based on quantum meruit.
¶ 38 OLG acknowledges that it had no written agreement with Ms. Bedin and has abandoned
its argument that it was a beneficiary of earlier written agreements. Instead, OLG argues that the
award of both fees and costs was appropriate under quantum meruit, the Attorneys Lien Act (730
ILCS 5/1 (West 2016)), and the common fund doctrine. OLG further argues that Ms. Bedin’s
concession in the circuit court that the only dispute that existed between her and the firm was “in
regard to whether expenses are to be paid out of the contingency fee of $165,000” bars her from
raising any objection as to the amount of the fee award. OLG lastly contends in its brief and in a
separate motion to dismiss that Ms. Bedin’s claims are barred by res judicata—based on the
dismissal of a case that she and her brother initiated against OLG in Cook County and objections
that she filed in the Winnebago County probate action.
¶ 39 Ms. Bedin did not file a reply brief and thus does not respond to several of these arguments.
Because we find that the circuit court neither erred in awarding fees and costs based on a theory
of quantum meruit nor abused its discretion in the amount that it calculated, we have no need to
address OLG’s remaining arguments.
¶ 40 A. Fees and Costs Were Properly Awarded on the Basis of Quantum Meruit
¶ 41 We agree with Ms. Bedin, and indeed there is no dispute, that the award of fees and costs
in this case cannot be based on an enforceable agreement between the parties. Rule 1.5(c) of the
Illinois Rules of Professional Conduct of 2010 (ethics code)—now Rule 1.5(d)(2) (Ill. R. Prof’l
Conduct R. 1.5(d)(2) (eff. July 1, 2023)—requires attorneys to reduce contingent fee agreements
to a writing “signed by the client.” Ill. R. Prof’l Conduct R. 1.5(c) (eff. Jan. 1, 2010). The rule is
“mandatory” and “contains no exception.” In re Spak, 188 Ill. 2d 53, 67 (1999).
¶ 42 As the March 23 transcript makes clear, however, the existence of a purported agreement
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was not the final basis on which fees were awarded. Rather, the award was based on the equitable
doctrine of quantum meruit.
¶ 43 It is well established that a party may bring a quantum meruit claim where, as here, there
is no valid or enforceable contract. Seiden Law Group, P.C. v. Segal, 2021 IL App (1st)
200877, ¶ 24. The term quantum meruit “literally means ‘as much as he deserves.’ ” Much Shelist
Freed Denenberg & Ament, P.C. v. Lison, 297 Ill. App. 3d 375, 379 (1998) (citing First National
Bank v. Malpractice Research, Inc., 179 Ill. 2d 353, 365 (1997)). “In a quantum meruit action, the
measure of recovery is the reasonable value of work and material provided.” (Internal quotation
marks omitted.) Seiden, 2021 IL App (1st) 200877, ¶ 31.
¶ 44 Ms. Bedin argues the circuit court erred in finding quantum meruit provided a basis for the
award of fees and costs because OLG never made a claim for quantum meruit. Rather, the idea
was initially posed by the court. She offers no support and we have found none that suggests a
party must make a formal claim for quantum meruit to be entitled to such an award.
¶ 45 Ms. Bedin also argues that OLG is barred from such an award by its own conduct including
violating the ethics code by not obtaining a signed contingency agreement, failing to disclose the
lack of a signed agreement, and its poor treatment of Ms. Bedin as the client.
¶ 46 As Ms. Bedin points out, where the underlying contract is unenforceable as a matter of
public policy, “the plaintiff will not be aided in circumventing the contract by recovering under
the equitable theory of quantum meruit.” (Internal quotation mark omitted.) Seiden, 2021 IL App
(1st) 200877, ¶ 26. Thus, we must determine whether, in this case, OLG’s conduct precludes any
award of fees and costs based on quantum meruit.
¶ 47 There is a split of authority as to the standard of review we should apply to this question.
In Andrew W. Levenfeld & Associates, Ltd. v. O’Brien, 2023 IL App (1st) 211638, ¶ 34, appeal
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allowed, No. 129599 (Ill. Sep. 27, 2023), we held that “[w]hether a particular remedy is precluded
as a matter of law is an issue we review de novo.” In Anderson v. Anchor Organization for Health
Maintenance, 274 Ill. App. 3d 1001, 1006-07 (1995), we applied an abuse of discretion standard,
reasoning that certain factors such as an assessment of the integrity of the law firm’s actions in the
underlying suit may require increased deference. In this case, the standard of review does not affect
the outcome. Even under a de novo standard, we hold that an award based on quantum meruit is
appropriate.
¶ 48 As support for her argument that quantum meruit should not apply because of OLG’s
violation of Rule 1.5, Ms. Bedin cites Leoris v. Dicks, 150 Ill. App. 3d 350 (1986), Licciardi v.
Collins, 180 Ill. App. 3d 1051 (1989), American Home Assurance Co. v. Golomb, 239 Ill. App. 3d
37 (1992), and First National Bank of Springfield v. Malpractice Research, Inc., 179 Ill. 2d 353(1997).
¶ 49 These cases recognize that forming illegal, unethical, and unenforceable contracts may bar
a firm from obtaining attorney fees on a theory of quantum meruit. In Leoris, 150 Ill. App. 3d at
354, we held that quantum meruit was barred where a discharged attorney sought payment from a
succeeding firm based on the percentage of the final recovery rather than the value of the work
contributed. In Licciardi, 180 Ill. App. 3d at 1061, we denied an attorney compensation where the
lawyer sought to obtain a contingent financial interest in a case involving the domestic division of
marital property. In American Home Assurance Co., 293 Ill. App. 3d at 44, we denied recovery in
quantum meruit where the lawyer attempted to contract for fees exceeding statutory caps. In First
National Bank of Springfield, 179 Ill. 2d at 366, our supreme court barred recovery based on
quantum meruit for a witness finder firm that contracted to obtain a contingent fee for securing
expert witnesses in a medical malpractice case. The supreme court held that quantum meruit could
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not apply both because the company failed to show its activities conferred any benefit on the
plaintiffs and because the underlying contract was illegal. Id.¶ 50 While unethical conduct may bar recovery in quantum meruit, “[w]hether quantum meruit
recovery is barred *** depend[s] on the egregiousness of the particular conduct involved.” Much
Shelist Freed Denenberg & Ament, P.C., 297 Ill. App. 3d at 381. As we noted in American Home
Assurance Co., 239 Ill. Ap. 3d at 43-44, there is a difference between applying quantum meruit
where recovery on the original contract fails due to “unintentional” errors or “minor technical
deficiencies,” as opposed to conduct that is best described as “[not] innocent.”
¶ 51 In each of Ms. Bedin’s cited cases, the attorneys entered into illegal and unethical contracts.
Here, OLG’s ethical violation is of a different kind. The original agreement, had it been reduced
to writing, would have been enforceable. Nothing about it would have been illegal, unethical, or
unusual. There is nothing in the substance of the agreement between Ms. Bedin and OLG that
violates the rules of ethics.
¶ 52 The situation is similar to Levenfeld, 2023 IL App (1st) 211638 and Seiden, 2021 IL App
(1st) 200877. In Levenfeld, two law firms violated Rule 1.5(e) of the ethics code (Ill. R. Prof’l
Conduct R. 1.5(e) (eff. Jan. 1, 2010)) by failing to specify how the firms would split the
contingency fee (Levenfeld, 2023 IL App (1st) 211638, ¶ 1). On appeal, we held that the ethical
violation rendered the underlying retainer agreement unenforceable, but the firms were still
entitled to an award in quantum meruit. Id. ¶ 57.
¶ 53 Seiden, 2021 IL App (1st) 200877, addressed whether compensation based on
quantum meruit was appropriate where an attorney neglected to enter the number of the contingent
percentage fee owed in the underlying retainer. Id. ¶ 4. The omission violated Rule 1.5(c) of the
ethics code (id. ¶ 22) and rendered the agreement unenforceable (id. ¶ 20). The firm, however, was
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able to recover in quantum meruit because the underlying contract’s failure was more of a function
of “carelessness and sloppy contract formation” rather than the type of unethical conduct that
would foreclose compensation. Id. ¶ 28. We further noted that “courts generally find an implied
promise to pay reasonable compensation for services rendered by [an] attorney” and “an attorney
who renders professional services has a right to be compensated for such services.” (Internal
quotation marks omitted.) Id. ¶ 25.
¶ 54 Here, OLG’s conduct is akin to that of the attorneys in Levenfeld and Seiden rather than
Leoris, Licciardi, American Home Assurance Co., or First National Bank of Springfield. Like the
former cases, OLG failed to comply with Rule 1.5 of the ethics code. Both Ms. Bedin and OLG,
however, operated with the understanding that OLG would be paid for its work. In failing to reduce
this understanding to a signed written agreement that made it clear that Ms. Bedin would remain
responsible for costs incurred, OLG’s behavior violated Rule 1.5. This violation is most accurately
described as careless, not duplicitous. As both Levenfeld and Seiden make clear, a violation of this
sort does not rise to the level of misconduct that will foreclose remuneration.
¶ 55 Ms. Bedin argues that OLG engaged in duplicitous behavior by failing to fulfil its
obligation of candor to the court. But the record does not support this claim. While OLG’s initial
petition to approve settlement did state that fees were owed on the basis of an agreement between
Ms. Bedin and OLG, OLG readily conceded at the March 23 hearing, and in the only transcript
available to us on appeal, that no agreement was ever reduced to writing.
¶ 56 There are no transcripts for most of the interim court hearings. So we are not sure what
representations were made. It was Ms. Bedin’s burden to present a sufficiently complete record to
support her claim. Chicago Title & Trust Co., Trustee Under Trust No. 89-044884 v. Chicago
Tittle & Trust Co., Trustee Under Trust No. 1092636, 248 Ill. App. 3d 1065, 1075 (1993) (citing
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Foutch v. O’Bryant, 99 Ill. 2d 389, 391-92 (1984)). Thus, “any doubts which may arise from the
incompleteness of the record [are] resolved against the appellant.” Id.¶ 57 Ms. Bedin devotes significant portions of her brief describing OLG’s “belittling” attitude
toward her. She notes multiple interactions between herself and OLG, including the tone of OLG’s
October letter, its email pressuring her to accept the settlement, its colloquy with the court before
her arrival on March 23, and the fact that OLG sent multiple communications to Ms. Bedin at a
Rockford address, even though OLG had her email address and stated in one of its letters that it
understood that she lived in New York.
¶ 58 It is clear in the record that there was a serious breakdown in the attorney-client relationship
between OLG and Ms. Bedin. Nothing in OLG’s conduct, however, rises to the level of unethical
behavior that would support a conclusion that OLG does not deserve compensation for the benefit
it undoubtedly conferred on Dolores’s estate.
¶ 59 Ms. Bedin argues that, if we affirm the circuit court’s decision, we will contravene In re
Spak, 188 Ill 2d at 67. That was the case in which our supreme court held that contingent fee
agreements must be put in writing, without exception, lest a client be put in the unenviable position
of disagreeing with an attorney’s “recollection of the fee agreement” and thereby occupy a position
of unequal “bargaining power.” Id. Our decision here follows In re Spak and recognizes that the
unsigned fee agreement is not enforceable. In re Spak, however, says nothing about awarding fees
in quantum meruit where no written agreement exists. As we recognized in both Levenfeld and
Seiden, the fact that the agreement was not enforceable and violated Rule 1.5 is not a bar to an
award of fees based on quantum meruit.
¶ 60 B. Ms. Bedin Has Forfeited Any Claim that The Circuit Court’s Calculation of Fees Was
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an Abuse of Discretion
¶ 61 On appeal, Ms. Bedin argues the circuit court did not have evidence upon which to
calculate an award of fees based in quantum meruit. It instead engaged in what she describes as a
“casual valuation of services to overwhelm the objection of [Attorney Soderberg] that no
enforceable contract existed.” She contends that the burden was on OLG to prove the value of its
services based on a number of factors. See In re Estate of Callahan, 144 Ill. 2d. 32, 44 (1991)
(citing Mireles v. Indiana Harbor Belt R.R. Corp., 154 Ill. App. 3d 547, 551 (1987)) (listing
relevant factors including “the skill and standing of the attorney employed, the nature of the case
and the difficulty of the questions at issue, the amount and importance of the subject matter, the
degree of responsibility involved in the management of the case, the time and labor required, the
usual and customary fee in the community, and the benefit resulting to the client.”).
¶ 62 We review a circuit court’s calculation of attorney fees and costs for an abuse of discretion.
See DeLapaz v. SelectBuild Construction., Inc., 394 Ill. App. 3d 969, 972 (2009) (on fees);
Guerrant v. Roth, 334 Ill. App. 3d 259, 272 (2002) (on costs). “A trial court abuses its discretion
if ‘no reasonable person would take the view adopted by the trial court.’ ” DeLapaz, 394 Ill. App.
3d at 972 (citing In re Marriage of Heroy, 385 Ill. App. 3d 640, 651 (2008)).
¶ 63 We agree with OLG that Ms. Bedin has forfeited any right to contest the amount of fees
awarded by her failure to raise this issue below. As the firm notes, Ms. Bedin advised the circuit
court that the only issue between the parties was the amount of costs that OLG sought to have the
estate pay out of the settlement. It is well settled that arguments not raised in the circuit court are
forfeited on appeal. Bonner v. City of Chicago, 334 Ill. App. 3d 481, 487 (2002) (citing In re
Liquidations of Reserve Insurance Co., 122 Ill. 2d 555, 568 (1988)).
¶ 64 Ms. Bedin’s conduct may also amount to an invited error. Under the invited error doctrine,
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“a party cannot complain of [an] error which that party induced the court to make or to which that
party consented.” In re Detention of Swope, 213 Ill. 2d 210, 217 (2004). In this case, Ms. Bedin’s
advised the court that there was no dispute as to the amount of fees and certainty signaled to the
circuit court that a detailed showing of the various factors that courts will consider in making a
quantum meruit award was not necessary.
¶ 65 As OLG points out, there have also been cases in which we have upheld a quantum meruit
award based on a percentage of recovery, rather than a calculation based on the factors listed in
Callahan. See Wegner v. Arnold, 305 Ill. App. 3d 689, 693 (1999); Will, 378 Ill. App. 3d at 304;
DeLapaz, 394 Ill. App. 3d at 976.
¶ 66 However, in Levenfeld, 2023 Il App (1st) 211638, ¶¶ 34-45, we held that a quantum meruit
award that was the equivalent to the contingency amount of the unenforceable agreement was
improper since it was indirectly enforcing an unlawful agreement. This case, however, is
distinguishable from Levenfeld.
¶ 67 In Levenfeld, the parties fully litigated the issue of what amount of fees should be awarded
based on quantum meruit. Id. ¶¶ 19-24. The circuit court ultimately calculated the quantum meruit
award based on the parties’ contingent fee agreement (id. ¶ 29) despite having evidence before it
on “each of the seven factors courts consider in awarding quantum meruit fees” (id.).
¶ 68 In this case, in contrast, Ms. Bedin made no arguments in the circuit court as to the amount
of fees that should be awarded. On the contrary, she advised the court that the only issue was as to
the award of costs. Thus, the circuit court had no reason to elicit the kind of evidence the court had
before it in Levenfeld and that our supreme court listed as relevant factors for an award based on
quantum meruit in Callahan.
¶ 69 We also note that the fee awarded appears reasonable based on the factors listed in
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Callahan. Indeed, Ms. Bedin makes no argument to the contrary, other than to point out that Judge
Walker had only been assigned to the case after four years of litigation and three months before it
had been set for trial. This does not, of course, suggest that Judge Walker was unaware of the
history of the case or of OLG’s work on it. The record includes detailed information as to OLG’s
efforts litigating over a roughly three-year period. As described above (see supra ¶ 8), those efforts
were extensive. The court concluded that the percentage amount was very close to the amount that
would be appropriate if the factors that are generally considered were used to calculate the fee.
¶ 70 In sum, the record fully supports the circuit court’s conclusion that this was a reasonable
fee and Ms. Bedin has forfeited any claim that OLG needed to further document the amount to
which they would be entitled in an award based on quantum meruit.
¶ 71 C. The Costs Awarded Were Not an Abuse of Discretion
¶ 72 As to the costs awarded, the circuit court had ample evidence before it. OLG represents in
its brief that the circuit court contacted the firm to request that it remove several minor expenses
from an initial list submitted as part of its petition to approve settlement. The record reflects that
OLG then removed $44.02 in expenses as part of its amended petition. The court had before it a
detailed inventory of litigation costs that began in August 2015 and extended through January
2018. During the March 23 hearing, the court stated that it “reviewed” and later “re-reviewed the
[costs] and [did] not find the[m] *** to be unreasonable in light that the bulk of them go to the
expert.” Where costs are concerned, the circuit court engaged in a thorough evidence-based
evaluation.
¶ 73 On appeal, Ms. Bedin does not list any specific costs that she contends were unreasonable
or should not have been awarded. Because Ms. Bedin does not contest any of the line items for
which OLG seeks reimbursement, we have no basis upon which to conclude that no reasonable
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person would agree with the circuit court’s calculation.
¶ 74 Because we affirm on the basis of quantum meruit, we have no need to reach OLG’s
additional theories—whether compensation is owed based on its attorney’s lien or the common
fund doctrine. We also have no need to address that this appeal is barred by res judicata.
¶ 75 IV. CONCLUSION
¶ 76 For the foregoing reasons, we affirm the circuit court’s orders granting an award of both
fees and costs to OLG as part of its order approving settlement in the underlying medical
malpractice case.
¶ 77 Affirmed.
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