author: JUSTICE RAKOWSKI

text:
    ALBERT BOUMENOT, Plaintiff-Appellee and Appellant, v. NORTH COMMUNITY BANK et al., Defendants-Appellees (Edward Kane, Defendant-Appellant and Appellee).
    First District (6th Division)
    Nos. 1—90—2511, 1—90—2837 cons.
    Opinion filed December 27, 1991.
    Modified on denial of rehearing April 10, 1992.

      Heldrich, Gutman & Associates, of Chicago (Gerard C. Heldrich, Jr., of counsel), for appellant.
    Wesolowski & Karcazes, Ltd., Harold I. Levine, Ltd., and James R Wognum, all of Chicago, for appellees.
   JUSTICE RAKOWSKI

delivered the opinion of the court:

The plaintiff Albert Boumenot initially brought an action to enjoin North Community Bank from selling his beneficial interest in a land trust. Plaintiff also alternatively sought subrogation from Edward Kane. Following a bench trial, the trial court entered a judgment confirming the sale of plaintiff’s beneficial interest in the land trust and granting plaintiff a right of subrogation against Edward Kane. Plaintiff appealed the judgment in favor of North Community Bank, and Edward Kane appealed the trial court’s finding that plaintiff could recover from him by way of subrogation. The two appeals were subsequently consolidated. The issues on appeal are: (1) whether the trial court erred in finding that North Community Bank held a valid security interest in trust No. 5335; (2) whether the plaintiff has a right of subrogation against Edward Kane; and (3) whether the trial court erred in failing to award Albert Boumenot a homestead exemption regarding his beneficial interest in trust No. 5335.

The property which is central to this consolidated appeal is located at 1320 N. Hoyne Avenue in Chicago, Illinois. The title to the property is held in a land trust by Lake View Trust and Savings Bank (Lake View) and is identified as trust No. 5335. The entire beneficial interest in the property was initially owned by John Boumenot, but on July 2, 1979, John Boumenot assigned 50% of the beneficial interest in the property to his brother, Albert Boumenot, as a tenant in common. The assignment of the beneficial interest was acknowledged by Lake View. On July 25, 1979, John and Albert Boumenot pledged their beneficial interest in trust No. 5335 to North Community Bank (NCB) as security for a loan of $90,000. A note and security agreement were executed, accepted by the bank and acknowledged by Lake View. Under this agreement, the secured obligations were:

“(a) [T]he indebtedness evidenced by a Promissory Note executed by Debtor to the Bank dated July 25, 1979 in the principal amount of *** ($90,000) and any extensions, renewals or refinancings thereof;
(b) any other indebtedness or liability of Debtor to the Bank whether direct or indirect, joint or several, absolute or contingent, now or hereafter existing, however created and however evidenced.”

On February 4, 1980, John Boumenot borrowed an additional $10,000 from NCB. According to the terms of the promissory note, payment was secured by “a security interest in and lien upon any property of any of the undersigned now or hereafter in the possession or control of the Bank.” On the same day, John Boumenot executed an assignment of his remaining beneficial interest in trust No. 5335 to his brother Albert. However, this assignment was not accepted by Lake View because, according to the plaintiff, the collateral assignment of this interest had not been released by NCB. On or shortly after February 7, 1980, the $90,000 loan executed in July 1979 was paid, and on February 13, 1980, Albert and John Boumenot borrowed $20,000 which was secured, in part, by the beneficial interest in trust No. 5335. Financial statements filed by both brothers in June and July of 1980 indicated that they each owned 50% beneficial interest in the property at issue.

In January 1981, John and Albert Boumenot borrowed $20,000 from NCB, which was again secured, in part, by trust No. 5335, and in April of 1981, John borrowed another $10,000 from the bank. On May 20, 1981, John Boumenot and Edward Kane borrowed $100,000 from the bank and secured the loan with a beneficial interest in several land trusts held by Lake View including trust No. 5335 and a trust deed on property at 1652 North Bell in Chicago. The loan was also personally guaranteed by Edward Kane in the amount of $55,000. At this time NCB also procured a “Power to Hypothecate” from Albert Boumenot in which he assigned his beneficial interest in trust No. 5335 as collateral for the $100,000 loan to John Boumenot. In June of 1981, John Boumenot received another loan from NCB in the amount of $10,000.

In May 1982, Lake View as trustee of trust No. 5792 (1652 North Bell Street) delivered to NCB an installment note and trust deed in the amount of $51,000 as evidence of a loan from NCB in that amount. The loan was guaranteed by John Boumenot and Edward Kane. Payment of the 1982 note was applied to reduce the balance on the 1981 $100,000 loan by $50,000. In December 1982, NCB’s collateral interest in the property identified as trust No. 4305, which had been one of the properties securing the 1979 loan and all subsequent loans to John Boumenot, was assigned back to him because, according to the bank, there was no equity in the property. In June 1985, John Boumenot assigned his beneficial interest in trust No. 5792 to Edward Kane, subject to its prior collateral assignment to NCB, and the assignment was accepted by Kane and Lake View.

On or around August 27, 1986, NCB declared the May 20, 1981, loan to be in default and immediately due and payable. At this time the outstanding balance on the loan was $46,104.72. On January 14, 1987, the parties were served with notice of the Uniform Commercial Code (UCC) (Ill. Rev. Stat. 1989, ch. 26, par. 1-101 et seq.) sale of the beneficial interest in trust No. 5335 to be held the following month. On February 18, 1987, 50% of the beneficial interest in trust No. 5335 was sold to NCB for $40,000. At the time of the sale the outstanding balances on the loans which were partially secured by this interest were:

a. loan dated February 13,1980 — $9,000.
b. loan dated May 20,1981 — $42,000.
c. loan dated June 12, 1981 — $10,000.
d. loan dated October 31,1983 — $30,900.

Although Kane paid the outstanding balance on the installment note of May 1982 regarding trust No. 5792, and NCB released its trust deed and security interest in the property, Kane was not released from his obligation regarding the loan of May 20, 1981.

Plaintiff contends that the trial court’s finding that NCB had a valid security interest in trust No. 5335 and was, therefore, entitled to sell the pledged collateral is erroneous. Plaintiff’s first argument is that NCB failed to prove an indebtedness at the time of the sale because it did not prove the exact amount outstanding. In support of his argument, plaintiff refers to the inconsistent references regarding the outstanding balance on the $100,000 loan. One of the stipulations states that NCB declared the remaining balance on the loan to be $46,104.72 as of August 27, 1986, and the trial court’s finding of fact was that as of February 18, 1987, the amount due on the loan was $42,000. Plaintiff claims that there were no documents submitted to prove the actual amount owed on this loan or any of the other loans by John Boumenot. He further claims that he is entitled to have the exact amount of the debt proven before his home is taken for such debt.

The trial court’s finding of fact No. 44 lists the loans of John Boumenot which had an outstanding balance at the time of the sale and the amount remaining on each loan. Whether the amount due on the 1981 loan was $42,000 or $46,104, the total amount of the remaining balance was about $91,000. NCB only received $40,000 from the sale of plaintiff’s beneficial interest as partial payment of the loans. In order to confirm the UCC sale, the bank’s only burden was to prove that it had a perfected security interest at the time of the sale. The trial court found that NCB had a security interest in the amount stated. The court’s finding was based on the testimony of Theresa Gomez, the vice-president in charge of loans at the time of the trial. Plaintiff presented no evidence which contradicted her testimony or the trial court’s subsequent finding.

Plaintiff further argues that because he executed the power to hypothecate in blank, it was not an effective assignment of his beneficial interest in the subject property, and the trial court’s findings to the contrary were erroneous. At the trial, plaintiff testified that the signature on the document was his signature, but he did not remember signing it, for which loan it was signed or at whose request. He also stated that he would not have signed the document in its existing form. The trial court also heard the testimony of several bank employees that it was not their practice to have documents executed in blank. Although plaintiff referred to documents in John Boumenot’s loan file which were executed in blank, the bank gave a specific explanation for their existence.

The trial court concluded that plaintiff failed to show by a preponderance of evidence that he signed the power to hypothecate in blank after hearing plaintiff’s testimony as well as that of the bank employees. There is a strong presumption in favor of the findings of the trial court, which has heard the witnesses’ testimony and observed their demeanor. (Lawter International, Inc. v. Carroll (1983), 116 Ill. App. 3d 717, 733, 451 N.E.2d 1338.) Furthermore, where the evidence is only conflicting, and the evaluation of the weight or credibility of the evidence was made by a trial judge, a reviewing court has no right to substitute its judgment for that of the trier of fact unless the evidence is so unreasonable, improbable or unsatisfactory that a different conclusion is clearly required. (Sunset Travel, Inc. v. Lovecchio (1983), 113 Ill. App. 3d 669, 678, 447 N.E.2d 891.) In this case, the trial court’s finding that plaintiff did not meet his burden of proof regarding his allegation that he executed the power to hypothecate in blank was a determination that could reasonably be made from the evidence presented. Thus this court cannot substitute its judgment for that of the trier of fact.

Plaintiff’s third argument is that the trial court’s conclusion regarding the July 25, 1979, security agreement was improper. In its “Conclusions of Law,” No. 2, the trial court found that the security agreement executed in 1979, which assigned Albert and John Boumenot’s beneficial interest in trust No. 5335 to NCB to secure a loan of $90,000, also secured future advances. The court’s finding was based on the language in the security agreement which stated:

“The obligations secured by this security agreement *** are the following: *** (b) any other indebtedness or liability of Debtor to the Bank whether direct or indirect, joint or several, absolute or contingent, now or hereafter existing, however created and however evidenced.”

(See also Ill. Rev. Stat. 1979, ch. 26, par. 9—204(3); National Acceptance Co. v. Exchange National Bank (1968), 101 Ill. App. 2d 396, 404, 243 N.E.2d 264.) Plaintiff argues that the assignment of the beneficial interest in the subject property was extinguished on or about February 7, 1980, when the $90,000 loan was paid. Plaintiff supports his argument by reference to the testimony of J. Michael Perlman, who was the loan officer when the loan was paid. Plaintiff cites Perlman’s statement at the trial that the failure of NCB to release the beneficial interest in trust No. 5335 when the $90,000 loan was paid was error. Plaintiff also claims that John Boumenot’s attempted assignment of his share of the beneficial interest in the land trust to Albert was evidence that John Boumenot believed that the property had been released. Plaintiff cites Ledesma v. Cannonball, Inc. (1989), 182 Ill. App. 3d 718, 538 N.E.2d 655, for the proposition that the effect of a release depends on the intent of the parties. He claims that the trial court should have concluded that it was the intent of NCB and John and Albert Boumenot that the beneficial interest be released. However, it is the intent of NCB which is significant because the bank was the only party who could effect the release. The only evidence that NCB intended such a release was the loan officer’s statement 10 years after the transaction that it had been an error not to release the interest.

What plaintiff fails to address in his argument is that the assignment of the beneficial interest in trust No. 5335 secured “future advances” which included, among others, a loan for $10,000 to John Boumenot on February 4, 1980, which was prior to the payment of the loan for $90,000. Furthermore, from the time of the 1979 security agreement until the sale of the property at issue, John or Albert Boumenot was continuously indebted to the bank, and the assignment of the property continued to secure this indebtedness. Thus, the trial court’s conclusions regarding the 1979 security agreement were supported by the evidence.

Plaintiff next argues that even if NCB had a valid interest in trust No. 5335 at the time of the May 1981 loan, the bank’s subsequent action released that interest. The subsequent action plaintiff refers to was the release by the bank of the other interests assigned to secure the $100,000 loan, which were trust Nos. 5792 and 4305 as well as a trust deed for property at 1652 North Bell Street. Plaintiff also refers to the bank’s subsequent action of modifying the terms of the note on the 1981 loan which included a written loan modification agreement.

Although plaintiff presents an extensive argument claiming that the trial court relied on the improper authority of Federal Deposit Insurance Corp. v. Hardt (C.D. Ill. 1986), 646 F. Supp. 209, and McHenry State Bank v. Y & A Trucking, Inc. (1983), 117 Ill. App. 3d 629, 454 N.E.2d 345, because these cases involved a guaranty relationship as opposed to a suretyship, he cites no authority for his position that the law is inapplicable to the instant case. Furthermore, the court in McHenry State Bank stated that, according to the Uniform Commercial Code, “a guarantor to an instrument is included within the term ‘surety’ and thus for purposes of the UCC it is ordinarily immaterial whether a person is a true surety, an absolute guarantor or a conditional guarantor.” (McHenry State Bank, 117 Ill. App. 3d at 632, citing Ill. Rev. Stat. 1981, ch. 26, par. 1—201(40).) Furthermore, the power to hypothecate provided that the bank treat the property pledged as though it belonged to John Boumenot and not Albert Boumenot. The notes executed by John Boumenot in favor of NCB which were outstanding at the time of the 1987 sale contained provisions that NCB was given discretion to make any compromise or settlement as to the collateral securing the notes. Therefore, plaintiff waived any right to consent to NCB’s exercise of this discretion. Additionally, as the trial court found in Nos. 27 and 28 in its conclusion of law:

“None of the collateral, released by North Community Bank securing the obligations subject to the February 18, 1987 Code Sale, had any equity running in favor of North Community Bank. *** [I]ts release [of the collateral] did not materially prejudice Albert Boumenot’s rights as a guarantor, and, therefore, the release of said collateral was not unreasonable.”

The trial court thus concluded that the subsequent actions of NCB did not discharge the plaintiff’s obligations. Plaintiff has failed to present any evidence or authority to show that the trial court’s findings were incorrect.

Plaintiff’s final argument is that the trial court’s judgment deprived him and his wife of their homestead rights. Throughout the time that plaintiff pledged his interest in trust No. 5335 to NCB to secure loans, Illinois did not recognize a homestead claim regarding a personal property interest in a land trust. (See Ill. Rev. Stat. 1981, ch. 52, par. 1.) However, the act was subsequently amended to include such an interest. (See Ill. Rev. Stat. 1981, ch. 52, par. 1.) However, the act was subsequently amended to include such an interest. (See Ill. Rev. Stat. 1983, ch. 110, par. 12—901.) Relying upon Bank of Illmo v. Simmons (1986), 142 Ill. App. 3d 741, 745, 492 N.E.2d 207, plaintiff’s position is that he is entitled to the benefit of the homestead statute in effect at the time of trial as opposed to the one in effect at the time of the contract. However, even assuming the propriety of Bank of Illmo (see Capitol Bank & Trust v. Fascetta (7th Cir. 1985), 77 F.2d 1077 for a contrary result), we decline to address plaintiff’s homestead issue because it was not properly raised in the trial court.

Even though plaintiff testified that he and his family resided at 1320 North Hoyne (trust No. 5335), he did not raise the issue of his entitlement to a homestead exemption at any point during the trial. Plaintiff also failed to raise this issue in either his proposed findings of fact and conclusions of law or in his response to NCB’s proposed findings of fact and conclusions of law. It was not until his motion to vacate, reconsider, or modify the trial court’s judgment order that plaintiff first asserted his right to a homestead exemption. Plaintiff filed this motion pursuant to section 2 — 1203 of the Code of Civil Procedure (Ill. Rev. Stat. 1989, ch. 110, par. 2—1203). However, it was improper for plaintiff to be silent as to this issue throughout the trial but assert his right to this exemption for the first time in a motion for reconsideration. (Mendelson v. Lillard (1980), 83 Ill. App. 3d 1088, 1096, 404 N.E.2d 964.) In First State Bank v. Leffelman (1988), 167 Ill. App. 3d 362, 521 N.E.2d 195, the court held that the assertion of a homestead claim raised for the first time in a motion for relief from judgment pursuant to section 2 — 1401 of the Code of Civil Procedure (Ill. Rev. Stat. 1985, ch. 110, par. 2—1401) was untimely and that errors properly forming the basis of this petition must not have been known to the moving party at the time of judgment. (First State Bank, 167 Ill. App. 3d at 365.) Similarly in this case, plaintiff acknowledged his awareness of his homestead claim at the trial when he argued, although incorrectly, that his testimony regarding residence was synonymous with the assertion of a homestead claim.

In his petition for rehearing plaintiff raises two arguments in support of his contention that his claim to a homestead exemption was not waived. His first argument is that he raised this issue at trial when he testified that he resided at 1320 North Hoyne. As discussed above, the plaintiff’s statement of residency is not equivalent to a claim of a homestead exemption. Plaintiff also argues that the homestead issue can properly be raised by motion after the entry of judgment. Plaintiff first claims that he was directed by the trial court to raise the issue in his motion for reconsideration. However, the statements by the trial court which plaintiff cites in support of this argument were directed to defendant Kane’s counsel in response to counsel’s request to present additional law regarding Kane’s liability to plaintiff. Because the court had already issued its findings of fact and conclusions of law, Kane’s counsel was directed to file a motion for reconsideration after the entry of judgment. However, plaintiff’s homestead issue was not a newly discovered law or fact, and the trial court’s directive to Kane’s attorney was not applicable to plaintiff’s issue.

Finally, we are unpersuaded by several cases plaintiff has cited in support of his argument. In DeMartini v. DeMartini (1940), 304 Ill. App. 165, 26 N.E.2d 167, one of the cases relied on by plaintiff, the court stated that the question of the homestead exemption became important only after the decree was entered and an attempt was made to sell the homestead real estate on execution. (DeMartini, 304 Ill. App. at 170.) However, in the case sub judice the proceeding was a confirmation of a sale which had already occurred. Therefore, it was the proceeding at which plaintiff’s homestead claim should have been raised, unlike DeMartini and the other two cases cited by plaintiff where the trial court proceeding was a money judgment and execution prior to any attempted sale of the homestead real estate. In fact, the party claiming a homestead exemption in Dixon v. Moller (1976), 42 Ill. App. 3d 688, 356 N.E.2d 599, asserted his claim after the money judgment and execution proceeding but in his answer to the plaintiff’s complaint in a subsequent proceeding for partition of the property. In Brown v. Nelson (1942), 379 Ill. 371, 41 N.E.2d 499, also a money judgment and execution proceeding, the court held that the party claiming the homestead exemption should seek redress from the court which ordered the execution rather than a court of equity.

In sum, we conclude that plaintiff’s failure to assert his homestead claim in the trial court was untimely and constitutes a waiver of this issue.

APPEAL OF EDWARD KANE

Kane’s main contention is that the trial court erred in concluding that Albert Boumenot had a right of subrogation against him. The trial court concluded that Kane was not released from his obligation on the May 1981 loan. Because plaintiff’s property was sold to pay a debt belonging to Kane, plaintiff had a right of subrogation against him. The evidence supporting the court’s conclusions was the May 1981 note and security agreement which stated that the undersigned debtors (Kane and John Boumenot) jointly and severally promised to pay to NCB $100,000.

Kane argues that he was only liable for $55,000 because he executed a personal guaranty on the loan which was limited to that amount. He further argues that his liability was reduced when the loan was modified and that he subsequently paid off the reduced amount. However, the execution of a guaranty by a maker does not change his primary obligation. (American National Bank v. Warner (1984), 127 Ill. App. 3d 203, 207, 468 N.E.2d 184; Rock Island Bank & Trust Co. v. Stauduhar (1978), 59 Ill. App. 3d 892, 901, 375 N.E.2d 1383.) Further, none of the documents related to the loan modification indicate that the scope of Kane’s liability was reduced. The president of NCB also testified that Kane had not cleared up his loan with the bank, and Kane himself acknowledged that he had never been given a release on the $100,000 loan. Therefore, the trial court’s conclusion that Kane was still obligated for the payment of the May 1981 loan was supported by the evidence, and its conclusion that plaintiff had a right of subrogation against Kane was proper. See In re Estate of Hammond (1986), 141 Ill. App. 3d 963, 967, 491 N.E.2d 84.

Accordingly, the judgment of the circuit court is affirmed.

Affirmed.

McNAMARA and LaPORTA, JJ., concur.


source: Caselaw Access Project

author: JUSTICE LaPORTA

license: Public Domain

text:
    SUSAN E. LOGGANS AND ASSOCIATES, Petitioner-Appellant, v. ESTATE OF MARVIN MAGID, Deceased, Respondent-Appellee.
    First District (6th Division)
    No. 1—90—2164
    Opinion filed January 17, 1992.
    Rehearing denied March 18, 1992.

      Esposito & Heuel, of Chicago (Terence M. Heuel, Paul R. Karasik, and Bruce A. Slivnick, of counsel), for appellant.

      Kenneth C. Miller, Ltd., of Chicago (Kenneth C. Miller, of counsel), for appellee.
   JUSTICE LaPORTA

delivered the opinion of the court:

This dispute involves the division of attorney fees. Susan E. Loggans & Associates was hired by the executor of Marvin Magid’s estate after Magid was killed in a helicopter crash on March 29, 1987. The Loggans firm was hired on a one-third contingency basis to prosecute the estate’s claim for damages arising out of the helicopter crash. The Loggans firm was eventually fired, and Kenneth C. Miller was hired to pursue the suit. The case was settled for $3.9 million, and the trial court approved $1.3 million in attorney fees. The Loggans firm filed a fee petition, seeking a portion of the $1.3 million in addition to the $33,333.33 it had already been paid by the estate for an earlier settlement with one defendant. The trial court denied the petition for additional fees. Loggans appeals.

On appeal we consider: (1) whether the trial court committed reversible error in making numerous evidentiary rulings during the course of the hearing which prejudiced the petitioner by unduly restricting its ability to prove its entitlement to reasonable attorney fees; (2) whether the trial court’s refusal to award the petitioner any fees whatsoever beyond the amount previously earned under its contingency fee contract was an abuse of the trial court’s discretion; and (3) whether this court should reverse or modify the decision in Johns v. Klecan (1990), 198 Ill. App. 3d 1013, 556 N.E.2d 689, to allow for a comparison/apportionment evaluation of the attorney fees portion of the client’s recovery in appropriate circumstances.

Marvin Magid was killed in a helicopter crash in Hawaii on March 29, 1987. The executor of the estate, Jerome Magid, hired Susan E. Loggans & Associates (hereinafter Loggans or the firm) to file a wrongful death suit against the owners of the Hawaii helicopter company and certain other Hawaii companies. The estate and Loggans signed a contract for Loggans to be paid on a contingency fee basis of one-third of any monies recovered.

A 15-count complaint was filed April 2, 1987, against Kona Helicopters Inc., Kona Village F & B Corporation and Bell Helicopters Textron in the circuit court of Cook County. Twelve counts in the complaint were filed on behalf of Magid’s estate and its beneficiaries. Three counts sought loss of services for Lettuce Entertain You Enterprises, Inc., JAO Inc., and Gabe’s Place Inc., corporations for which Magid was a shareholder and performed services.

Defendants removed the case to Federal court based on diversity of citizenship. Defendants then filed a motion to dismiss for lack of personal jurisdiction. Loggans was given leave and filed a 29-count amended complaint in Federal court here. The complaint added two additional defendants, Kona Operating Partnership, d/b/a Kona Village Resort, and Associated Inns & Restaurants Company of America, d/b/a Kona Village Resort. The amended complaint also sought damages for Magid’s wife, Marie, who sustained injuries in the helicopter crash.

The Federal court granted defendant’s motion to dismiss for lack of personal jurisdiction in February of 1988. Six months later, on August 1, 1988, Loggans filed a complaint in the United States District Court in Hawaii. On August 3 Loggans was fired and Kenneth Miller was hired by the executor of the estate and Marie Magid. Loggans remained the attorney for Lettuce Entertain You Enterprises, Inc., JAO Inc., Gabe’s Place and two other passengers in the helicopter. The record is silent as to the status of the litigation on behalf of these remaining plaintiffs.

On December 21, 1989, Miller settled the case for $3.9 million on behalf of estate and $600,000 for Marie Magid. Loggans sought a portion of the one-third share, $1.3 million, that represented fees to the attorney for the estate. The trial court ordered that $650,000 of the $1.3 million be set aside in an interest-bearing account until the fee dispute involving Loggans was resolved.

The trial court conducted a hearing to determine whether Loggans was entitled to fees from the estate beyond the $33,333.33 it had received out of a $100,000 settlement with Bell Helicopters Tex-tron. Two former Loggans associates, Mary Sweeney and Michael Bledsoe, and the firm’s sole owner, Susan E. Loggans, testified about time spent and the work they did on the case.

Bledsoe testified that he worked at Loggans for five months in 1987 and during that time he spent an entire day preparing a draft of the original complaint and spent time preparing a motion to spread Magid’s death of record, a summons of service and an emergency protective order and in reviewing and revising pleadings according to Loggans’ directions.

Sweeney testified that after fees became an issue in the case and under Loggans’ order she prepared a summary of the time spent on the case by all people in the Loggans office. She testified that the time sheet was a thorough and accurate account of the work done on behalf of all plaintiffs, which included the estate and four other plaintiffs. She testified that she personally spent seven hours reviewing the file the day she was assigned the case, June 15, 1987. She testified that she did substantial work on the case over the next few weeks, including preparing an amended complaint and other pleadings, appearing in court, researching issues as to damages and investigating the plane crash.

Loggans testified that she worked with Hawaii officials and aviation officials to get details of the crash investigation and arranged to have Magid’s body returned to Chicago. She testified that she helped prepare the original complaint and protective order and did research on the pleadings to determine whether there was a good-faith basis for filing the lawsuit in Cook County. She testified she made phone calls on the case and periodically made a complete review of the file and prepared a list of things “to do” on the case.

Loggans testified that she had a diary, now unavailable, of hours she worked on the case and had used that diary to add her time to the time log already prepared by Sweeney. She stated that her individual time sheet information was lost when her company computer malfunctioned but that she could determine the hours she worked by “editing” out the time estimates prepared by Sweeney from the time sheet that included Sweeney’s hours and the hours she had prepared and fed into the computer. The trial court refused to permit her during her testimony to do the editing she requested.

After hearing the rest of the testimony, the trial court denied Loggans’ request for additional fees. In an 18-page ruling, the trial court noted that Loggans was unable to produce any time records shortly after being fired when asked to do so by the estate’s new attorney. The court noted that Sweeney constructed a time log which she told the court was a “time estimate” of all the work performed by the firm on the estate’s behalf. The court stated that “the only individual capable of testifying in this court’s opinion as to the actual time spent for the awarding of fees in quantum meruit in response to this petition for fees would be the witness attorney Sweeney.”

“In Loggans[’] petition for fees (Exhibit D) a statement of Loggans time log was filed. From the examination of witness Sweeney who had prepared petitioner’s Exhibit No. 3, when questioned as to why there were variations in the logs stated that when she accurately prepared the proper log and submitted the same to Loggans, she was informed that Loggans believed that the amount of time that Sweeney had accounted for was ‘inadequate.’ When questioned further as to what was meant by the word inadequate, witness Sweeney could not understand what Loggans meant by that, however, Sweeney’s testimony before this court was that the summary of time was accurate based on a reconstruction that she was able to do from the entire file. The only inadequacy that Sweeney could possibly be aware of is to what extent Loggans might have engaged in activities after the Magid file was taken away from Sweeney.”

The court reviewed Loggans’ testimony, noting that Loggans had no independent recollection of time spent but had offered evidence that her time was at one time recorded on her diary now unavailable.

The court reasoned: “After hearing all the testimony of both witnesses as far as the time logs are concerned this court finds that the total hours spent on the Magid file from the date of hiring by the executor until the time of discharge directly attributable to this estate would be 181 hours. 181 hours times $200 is $36,200. This, however, was for work representing 5 plaintiffs. The petitioner has already received $33,333.33 which was the result of the Vs settlement of the $100,000 in the Bell Helicopter settlement in the U.S. District Court. It is the opinion of the court that although on a quantum meruit basis Loggans’ firm was overpaid, but as long as the contingency contract provided for a receipt of one-third of whatever there was received from the settlement that Loggans[’] firm is entitled to the full $33,333.33 already paid.”

Several factors must be considered to determine what fee is properly due to an attorney fired by a client. A contract between the parties provides guidelines, but in all cases, contingent or hourly fee cases, only those fees which are reasonable charges for reasonable services will be allowed. (Kaiser v. MEPC American Properties, Inc. (1987), 164 Ill. App. 3d 978, 983, 518 N.E.2d 424.) The determination of the reasonableness of the fees is left to the sound discretion of the trial judge and will not be reversed absent an abuse of discretion. Kaiser, 164 Ill. App. 3d at 983-84.

The Kaiser case involved the fee dispute of two parties who signed an hourly fee contract. The court stated that in such cases the attorney seeking fees must present detailed records maintained during the course of the firm’s work that contain facts and computation upon which the charges are based. The fee petition must specify the services performed, by whom they were performed, the time expended and the hourly rate charged. Kaiser, 164 Ill. App. 3d at 984.

When a contingency fee contract is signed and the lawyer involved is fired, such as occurred here, the attorney is entitled to recovery on a quantum meruit theory for the reasonable value of his services performed up to the time of his discharge. Rhoades v. Nor folk & Western Ry. Co. (1979), 78 Ill. 2d 217, 399 N.E.2d 969; In re Estate of Murphy (1978), 56 Ill. App. 3d 1037, 1040, 372 N.E.2d 878.

In Johns v. Klecan (1990), 198 Ill. App. 3d 1013, 556 N.E.2d 689, this court distinguished between the records and proof that must be produced in a contingency fee contract case and the records and proof required in an hourly fee case such as existed in Kaiser. The court in Johns stated:

“We see no reason why *** the policy considerations which justify limiting the recovery of legal fees after discharge to a quantum meruit recovery also necessarily support or require extending to contingency fee cases the rule established in Kaiser that no recovery of reasonable hourly fees is allowed pursuant to a contract unless the attorneys present detailed time records. The only policy consideration which, arguably, does so is the concern for the possibility of excessive fees. However, we believe that trial courts can adequately guard against that possibility without requiring that contingent fee attorneys account for the time they spend on a case with the same specificity and exactitude of hourly fee attorneys.
*** Since the time and labor required is but one factor in the quantum meruit equation, we do not believe that the failure to account for the time spent on a case in exacting detail should, alone, preclude any recovery of fees. At most, that failure militates in favor of a reduced fee.” Johns, 198 Ill. App. 3d at 1019.

Other factors to be considered are the attorney’s skill and standing, the nature of the cause, the novelty and difficulty of the subject matter, the degree of responsibility in managing the cause, the usual and customary charge in the community and the benefits resulting to the client. Johns, 198 Ill. App. 3d at 1019.

The trial court’s finding will not be disturbed unless it is against the manifest weight of the evidence, because the trier of fact, especially where the testimony is in conflict, is in the best position to observe the conduct of the witnesses and weigh the evidence. Schulenburg v. Signatrol, Inc. (1967), 37 Ill. 2d 352, 356, 226 N.E.2d 624.

First we consider whether the trial court committed reversible error in its evidentiary rulings during the course of the hearing which prejudiced the petitioner by unduly restricting its ability to prove its entitlement to reasonable attorney fees.

Loggans offers evidence of four instances in the fee petition hearing where it contends the trial court ruled improperly, thereby limiting the firm’s opportunity to explain the amount of time it spent on the Magid case. First, the trial court granted the estate’s motion to strike portions of Bledsoe’s testimony because Bledsoe could not testify to the exact amount of time he spent preparing various pleadings on the case. The trial judge sustained an objection as to Bledsoe’s inexactness, stating: “The objection is sustained. I am not trying to circumvent any attorney[s] from getting paid for their work, but in order to find out how much they are entitled to, I have to know what they did, how much time they spent and on what they did it.”

Bledsoe testified without objection to time he spent on some court appearances and drafting other documents. Other times the court struck his testimony because it was not specific enough. During Bledsoe’s testimony, the court asked Bledsoe if he was guessing at the time estimates he was giving. Bledsoe answered that he had no independent memory and was guessing based on his notes. The court noted, “These are all guesstimates, okay.”

We do not find Bledsoe’s testimony was unduly restricted. He was permitted to testify generally about the work he performed including the pleadings he filed despite a clear indication from him that he was providing only “guesstimates.”

Loggans alleges a second error occurred when the court refused to hear testimony from the counsel for several of the Hawaii defendants, Donald Sime, who allegedly would have testified that he made a settlement offer of $2.2 million that was rejected by the estate. The court refused to permit the testimony, stating it found an offer of settlement had no probative value to the fee petition. Loggans contended that evidence of the settlement provided the court with proof that the estate benefited from the firm’s work despite cross-examination of Bledsoe which seemed to indicate some pleadings he filed and arguments he pursued may have damaged the estate’s case. The firm argues that the offer is proof the defendants had acknowledged their liability by the time Miller took over the case and that his only task was seeking an enhancement of the amount.

The estate urges that the trial court had adequate evidence before it and an error in the exclusion or admission of evidence does not warrant reversal when no prejudice results because other evidence supports the results reached. (Cole v. Guy (1989), 183 Ill. App. 3d 768, 539 N.E.2d 436.) Where the result is supported by other evidence in the case, the claim of erroneous evidentiary rulings will not warrant reversal. Atkins v. Thapedi (1988), 166 Ill. App. 3d 471, 519 N.E.2d 1073.

The estate also cites In re Estate of Murphy (1978), 56 Ill. App. 3d 1037, 1040, 372 N.E.2d 878, for the proposition that rejected settlement offers cannot be used as the basis to determine a fee for a fired attorney. In Murphy, a fired law firm, hired on a 25% contingent fee, tried to collect a fee based on 25% of a $4,000 offer made to but then rejected by the client. The appellate court reversed the $1,000 award of attorney fees and held that quantum meruit and not the contingent fee contract should be the basis for the firm’s compensation. Murphy, 56 Ill. App. 3d at 1040.

The estate is correct that the Murphy case prohibits fee determinations based on rejected settlement offers. But the Johns case specifically indicates that a fee determination based on quantum meruit also must consider the benefits resulting to the client. The record establishes that shortly after he was hired Miller acknowledged to the trial judge that a $2.2 million offer had been rejected by plaintiffs. Though Loggans should have been given an opportunity to show that this $2.2 million offer through Sime’s testimony was evidence of a benefit to the client, we find that this evidence was before the court by Miller’s acknowledgement already when the court ruled and therefore the error was harmless.

The third error cited by Loggans involved the testimony of the firm’s sole owner, Susan Loggans. The firm contends Loggans should have been permitted to use a document prepared by Sweeney to refresh her recollection as to the amount of time she, Loggans, spent on various projects during the course of litigation. Loggans testified that she asked Sweeney to prepare a composite of all the time spent on the case by everyone in the firm after fees became an issue. Sweeney testified that she prepared the document by reviewing the file and estimating the hours spent on the case based on her memory. Sweeney testified that the document included all work done on the case with the possible exception of time Loggans might have spent on the case after Sweeney stopped working on the file.

Loggans then testified that she prepared her own personal time summary and had that summary merged with Sweeney’s time summary on the company computer. She testified that problems with her office computer resulted in the loss of her personal time log and that, therefore, she needed to compare Sweeney’s time summary with the merged time summary to determine which entries on the merged document represented the time she worked.

The trial court refused to permit Loggans to compare the two sheets, indicating that the parties had entered into a stipulation from the onset that Loggans could use only the merged time summary which merged together her hours and the log of hours prepared by Sweeney.

Under evidentiary rules, Loggans should have been able to use anything to refresh her recollection. A witness may testify by referring to a memorandum, even though it may not be admitted or admissible into evidence, by stating the facts that he then recalls and need not have personally prepared the memorandum. People v. DeMario (1969), 112 Ill. App. 2d 175, 251 N.E.2d 267, cert denied (1970), 397 U.S. 1057, 25 L. Ed. 2d 675, 90 S. Ct. 1404.

We find this error by the trial court harmless, however. Loggans was able to testify to various projects she participated in, research she performed, calls she made and file reviews she did. Her estimate of her hours along with the hours compiled by Sweeney were combined in exhibit D attached to the fee petition. The trial court had the merged time summary statement of the firm’s work on the case before it even if Loggans was not able to testify to each individual entry.

Finally, the firm argues that the court erred when it struck Loggans’ testimony that she spent “approximately” four to five hours a day on research during a four-day period in April 1987. The trial court sustained an objection made by the estate’s counsel because the testimony as to time was not specific enough and ordered the firm’s attorney to move on to another line of questioning.

The firm argues that in rejecting Loggans’ testimony as to the time she spent on the case, the trial court improperly required Loggans and her associates to be too specific as to time, place and subject matter. Loggans contends that this limitation was improper under the standard established in Johns v. Klecan and resulted in the court obtaining an insufficient amount of evidence on the type of work done by the firm. The firm contends that the trial court’s refusal to accept clearly relevant evidence is reversible error which mandates a new hearing. McCaffrey v. Illinois Central Gulf R.R. Co. (1979), 71 Ill. App. 3d 42, 49, 388 N.E.2d 1062.

We find the court’s ruling appropriate with regard to Loggans’ approximations. In his ruling the trial judge noted that Loggans testified she had no independent recollection of the time spent. The court did permit Loggans to testify that she did research and worked with her staff. While it is true that the trial court struck great portions of Loggans’ testimony, the record indicates that the court permitted testimony that went beyond the exact time and subject matter of work performed whenever Loggans’ counsel laid the proper foundation.

Sweeney was able to freely testify about the time she spent on the case and even the time other workers spent on the case once Loggans’ counsel laid the foundation to establish that she had worked on the case, reviewed the file and then put together an estimated time log based on the file contents. The trial court did strike testimony that involved some estimates and guesstimates and restricted some testimony to actual recall of the days, hours and work done. But this occurred only after both Loggans and Bledsoe testified that they had no independent recollection generally of dates and hours spent on the case.

In contingent fee cases, attorneys might not keep time records in as detailed a manner as those who must bill by the hour. Here, the court permitted Loggans to put forth a reconstruction of hours as prepared by Sweeney and permitted Sweeney to testify about work done on the case. The court also permitted Loggans and Bledsoe to testify despite their lack of recollection about specific time worked. All three were able to testify to specific tasks on which they recalled working.

We find that the trial court properly relied on the standard articulated in Johns v. Klecan. The court should have permitted the firm to offer evidence that a $2.2 million offer was made but rejected by the estate while Loggans was its counsel, but failure to permit such testimony was harmless error where the successor counsel acknowledged the rejected offer in open court. The court committed harmless error when it refused to permit Loggans to look at the document she requested to refresh her recollection. The court did not unduly restrict Bledsoe’s and Loggans’ testimony after they indicated they had no independent recall of time spent on the case. We conclude that the trial court did not commit reversible error in its evidentiary rulings during the course of the hearing which prejudiced the petitioner by unduly restricting its ability to prove its entitlement to reasonable attorney fees.

Next we consider whether the trial court’s refusal to award the petitioner any fees whatsoever beyond the amount previously earned under its contingency fee contract was an abuse of the trial court’s discretion.

Loggans contends that the trial court failed to follow the dictates of Johns v. Klecan when it considered only evidence of the firm’s time and services involved. The firm contends that other factors should have been considered such as the attorney’s skill and standing, the nature of the cause, the novelty and difficulty of the subject matter, the degree of responsibility in managing the cause, the usual and customary charge in the community and the benefits resulting to the client. Johns, 198 Ill. App. 3d at 1019.

The firm argues that the trial court failed to consider much of Loggans’ and Bledsoe’s testimony, that Loggans herself had handled more than 100 plane crashes and was chairperson for a number of bar association groups related to aviation law, that the firm accepted the case on a contingent fee basis, the complexity of the case, and the firm’s work that benefited the estate, including obtaining an offer of $2.2 million from a group of Hawaii defendants.

The firm also argues, in its reply brief, that the $33,333.33 settlement paid during the contingent contract period as a result of the Bell Helicopters Textron settlement was a separate transaction for which the firm was rightfully paid. Loggans argues that the portion of the contract with regard to Bell Helicopter was completed at that time and is not at issue here. The firm argues that it has the right to collect additional fees on a quantum meruit basis based on work it performed with regard to the action pending against other defendants. To award nothing, the firm argues, would result in Loggans being paid nothing on its quantum meruit claim.

We reject this last-minute suggestion that the $33,333.33 payment should be considered a separate and distinct benefit of the contingency contract and should not have been considered by the trial judge. Not only is this a belated argument by the firm raised for the first time on appeal and therefore waived, but it is not supported by case law and does not reflect that the settlement was reached in July 1988, just a short time before Loggans was fired. In addition, the record provides insufficient evidence to separate work between this defendant and the others to apportion the work among her clients.

In the firm’s petition for fees, Loggans suggested three different methods of calculating fees all of which would resulted in fees due of at least $603,300. The three methods were: first, quantum meruit, where the firm would be paid $603,300; second, a pro rata apportionment between Loggans and Miller for $833,000 to Loggans based on the actual amount recovered, the work done and a comparison of services to the ultimate recovery; and third, a “fee ratio” calculation that would pay the firm a fee of $17 million based on a formula that took into consideration a purported $2.5 million offer to plaintiffs and how much Miller earned compared to how much the plaintiffs were actually paid. The latter two methods were not pursued on appeal.

The firm contended that using the quantum meruit method, based on 502.75 hours logged by the firm, the court should permit payment to Loggans of $603,300, a figure which we note works out to $1,200 per hour. Loggans derived this figure from what it referred to as the firm’s “real effective hourly rate of return.”

Finally, Loggans argues that nothing in the record indicates that the successor attorney, Kenneth Miller, had to correct any defective work done by the Loggans firm. Loggans contends that this fact goes to the quantum meruit question of whether the firm’s work benefitted the client.

The estate disputes all of the firm’s contentions, most specifically with regard to the Loggans firm’s skill and whether the estate benefited from its representation. The trial court specifically found the estate did not receive any benefit outside of a possible benefit from the settlement with Bell Helicopters Textron. The estate identified several actions taken by the firm which the court found to be detrimental to the estate’s interests. Among them are the firm’s improper attempt to litigate in Illinois when the proper venue was Hawaii; improperly identifying defendants and plaintiffs; the Bell settlement, which under Hawaii law could have permitted other defendants to shift responsibility to the settled defendant; the attempt to appoint a guardian ad litem to evaluate a nonexistent settlement offer; and the filing of a court document that disclosed a settlement offer which implied plaintiff’s willingness to accept the offer.

The estate argues that the court recognized that the firm failed to take “even one liability deposition” and did not obtain records on the repair and maintenance of the helicopter involved in the crash. The estate further disputed the firm’s contention that it had superior “skill and standing” in the legal community and had performed work on complex legal issues.

The estate argues that the trial court had the duty to weigh the credibility of the witnesses, Loggans, Sweeney and Bledsoe, and weigh the value of the time logs prepared “after the fact.” It argues that the accuracy of entries in the time logs was put into question when comparing the Sweeney time log with the merged time log including Loggans’ additional hours. The estate specifically identified two-hour time blocks logged only as “total review of file” which appear nearly every week from April 1987 through late 1988. An entry even exists on August 4, 1987, the day after the stipulated date of discharge. As an example, the estate notes that the time log indicated four, two-hour reviews of the file in March of 1988 at a time when the only file activity was five letters either written or received.

The estate argues that the trial court also was aware that the “after-the-fact time” logs were not made available to the estate on request but only appeared at the time of the fee petition hearing. The estate argues that the court found incredible Loggans’ contention that she had used various personal diaries and records to compute her time, including a computer generated list, all of which were subsequently unavailable.

The estate urges that it is not the job of the reviewing court to reweigh the evidence. (Zaderaka v. Illinois Human Rights Comm’n (1989), 131 Ill. 2d 172, 545 N.E.2d 684.) The trial court’s finding will not be disturbed unless it is against the manifest weight of the evidence (Schulenburg, 37 Ill. 2d at 356).

We find the trial court had substantial relevant information before it and reviewed that information under the standards established in Johns v. Klecan. The firm acknowledges that Loggans testified as to her skill and standing in the community and her usual fees. The court heard evidence on the extent to which each party believed the firm’s work benefited the client. Loggans presented no evidence of the usual and customary charge in the community or evidence of research the firm did on novel or difficult subject matters. The trial judge clearly explained his reasons for finding inadequacies with the work the firm did for the estate. Though the trial judge erred in not accepting evidence about the $2.2 million rejected settlement offer, we do not find that action to be reversible error in light of the trial court’s other findings of inadequacy on the part of the Loggans firm. We hold that the trial court’s ruling was not against the manifest weight of the evidence.

Finally, Loggans urges this court to “modify” the court’s holding in Johns v. Klecan and establish a new method to determine what fees should be paid to a fired attorney who contracted with a client on a contingent fee basis. The firm contends that fees should be apportioned by comparing the percentage of work done by the fired attorney with the percentage of work done by the successor attorney. Loggans then advocates that the percentages then should be applied to the total attorney fees earned and paid out accordingly to the respective attorneys.

The firm argues that this method gives proper consideration to the “contingent nature of the fee involved.” The firm argues that this would eliminate a potential problem under quantum meruit where a fired attorney has put in so many hours that his payment due actually exceeds the amount of the contingent fee which the client would have had to pay. The firm contends that the trial court was in error when it failed to compare work done by Loggans with work done by Miller.

In support of its argument, Loggans cites a California case, Cazares v. Saenz (1989), 208 Cal. App. 3d 279, 256 Cal. Rptr. 209, where the court apportioned fees between two law firms involved in a case. One firm handled the case from start to finish and at one point had brought the second firm in to help. When a lead partner in the second firm joined the bench and had to withdraw from the case, the first firm refused further help from other members of the judge’s firm and finished the work itself. The trial court awarded the judge’s former firm half the fees. The appeals court determined the appropriate fees by deciding what percent of the work each firm did and then applying that fraction to the total contingent fee paid. The court reasoned that a fractional approach to determining fees permitted each firm to be paid its pro rata share of the contract price.

Loggans argues that this court should rely on the Cazares case, which the firm contends “presents a compelling rationale for the ‘comparison/apportionment’ approach rejected by the court in Johns.”

The estate notes initially that the trial court considered this argument from the firm and then rejected it. The estate also argues that Loggans failed to introduce evidence of the amount of work Miller performed as compared to the work Loggans performed at the fee petition hearing. The firm now contends the trial court ignored such evidence.

We note that the trial court rejected the apportionment theory and stated that even if such a theory was applied here to determine the fees, the firm would not be entitled to more fees than it had already been paid.

The trial court devoted the final 5 pages of its 18-page opinion to a two-part analysis of first, whether Johns v. Klecan was applicable, and second, how much the firm would be due and owing under a comparison/apportionment analysis. The court reviewed the language in Johns and found that Johns was the appropriate precedent to follow. The Johns court stated:

“Determining the amount of total time spent on cases in performing legitimate services for the client and then multiplying that time by a reasonable hourly rate, as in Ashby, is, we believe, the best method to determine the reasonable value of a discharged attorney’s services. That approach avoids the problems inherent in the comparison/apportionment approach of cases such as Phelps v. Elgin, Joliet & Eastern Ry. Co. (1966), 70 Ill. App. 2d 89, 217 N.E.2d 519, and Baker v. Granite City (1983), 112 Ill. App. 3d 1096, 446 N.E.2d 531. It is much easier for a trial court to undertake the Ashby approach than to place a value on the perhaps widely varying services performed by attorneys vis-a-vis the client’s ultimate recovery.” Johns, 198 Ill. App. 3d at 1021.

The trial court then proceeded to explain its finding that work done by Loggans would not warrant additional fees even if a comparison/apportionment method was used. The court detailed several inadequacies it found in the Loggans firm’s services to the estate including identifying parties improperly in court documents, failing to gather evidence of the helicopter’s previous maintenance and repairs records, failure to perform any depositions, disclosing a potential settlement offer in a court document, filing the lawsuit in the wrong venue and accepting a partial settlement with a Hawaii defendant at the risk of limiting recovery from other defendants under the laws of Hawaii, the situs of the accident.

We affirm the trial court in its conclusion that even if a comparison/ apportionment method of calculation was used, Loggans would be due no more than the $33,333.33 it has already been paid. We find the Phelps decision cited in Johns is factually distinguishable and therefore inapplicable because it involved a lawyer who unsuccessfully sought fees when he was discharged the day after he was hired and had done no work for the client. (Phelps, 70 Ill. App. 2d at 96.) The court determined that the Phelps lawyer need not be paid under those facts and did not apply a theoretical comparison/apportionment analysis as Loggans would urge us to do.

The Baker v. Granite City case referred to in the Johns decision was remanded and then appealed two more times, most recently in 1989. (Baker v. City of Granite City (1989), 198 Ill. App. 3d 119, 544 N.E.2d 1310.) Both Baker II and Baker III discuss using a percentage figure, and Baker II held that “the usual and customary attorney fee in the community can be expressed as a percentage.” Baker, 189 Ill. App. 3d at 120.

Baker II describes the factual background. Plaintiff Mary Baker Davis was working for lawyer Richard Allen when she fell on a city sidewalk and received permanent injuries. Allen represented Baker in a personal injury case for three years before the two realized they had a difference of opinion on what compensation Allen was to be paid. The dispute was not resolved but Allen continued to represent Baker and two years later a jury awarded Baker $125,000. Allen then asked Baker to sign a contingent agreement where he would get 331/s% of the gross amount recovered or 40% if the money was recovered after an appeal. Baker refused to agree and wrote a letter to Allen firing him as her attorney. However, based on advice from the Illinois State Bar Association general counsel, Allen continued to represent plaintiff and filed an appellate brief on her behalf. Baker hired another lawyer who also represented her on the appeal, which she won.

At a subsequent fee hearing, the trial court ruled that Allen was entitled to compensation which could be computed either on a percentage basis or by a fixed hourly rate. The court awarded Allen 40% of plaintiff’s total recovery, i.e., 331/s% for the trial work and 62/s% for the appellate work. When the case was appealed the second time in Baker II, the appeals court held that the trial court had properly awarded attorney fees, concluding that after considering those factors necessary to determine a reasonable fee, the usual and customary attorney fee in the community can be expressed as a percentage. The court used a percentage figure of 331/3% of plaintiff’s recovery for the trial work because that was the customary fee for personal injury cases in that community, and remanded the case to the circuit court for a redetermination of Allen’s appellate court fees. Baker II, 112 Ill. App. 3d 1096.

In Baker III the court upheld an award of 5% of plaintiff’s recovery for the work her former lawyer did for her on her appeal. The court found no abuse of discretion when the trial court determined that 62/s% percent was the usual and customary appellate fee paid and that Allen should be paid 5%. Baker III, 189 Ill. App. 3d at 123.

Baker is factually distinguishable from our case. First we note that the Baker court only considered fees due Allen compared to the percentage of fees usually and customarily paid for appellate work. This is not a comparison/apportionment division of fees between two attorneys such as Loggans urges should be applied to this case. In addition, Allen represented Baker through trial and won a jury verdict of $125,000. In this case no trial was had and Loggans had settled with only one defendant at the time it was fired while the litigation still was pending.

The Loggans analysis is premised on the false perception that two law firms worked on the estate’s case and now the court must decide who is to be paid how much. We do not believe that is an accurate picture. Loggans was hired in April 1987 and settled with the Bell Helicopter defendant in July 1988. Loggans was fired by the estate on August 3, 1988. Its representation of the estate’s interest ceased 16 months before the wrongful death action in Hawaii was resolved on December 21, 1989. The record includes two letters, one dated October 6, 1988, and one November 1, 1988, where Loggans was asked to supply a log of the time it worked on the case so that the firm could be paid. Loggans responded that it could not produce such a time record and waited until more than a year later, after the case was settled, to petition for its fees in the case.

In the Cazares case relied on by Loggans, the client involved never fired any of the attorneys in the case. It was instead a matter of one firm choosing to do the bulk of the legal work and preventing the other from participating. Here, Loggans was discharged from the case. Under Johns, a fired attorney still has a right to collect a fee but the fee is based on work actually done and not on the contingent contract.

This case more closely resembles the facts in In re Estate of Murphy (1978), 56 Ill. App. 3d 1037, 1040, 372 N.E.2d 878, where a fired law firm, originally hired on a 25% contingent fee basis, tried to collect a fee based on 25% of a $4,000 offer made to but then rejected by the client. The appeals court reversed the $1,000 award of attorney fees and held that quantum meruit and not the contingent fee contract should be the basis for the firm’s compensation. Murphy, 56 Ill. App. 3d at 1040.

We believe the application of quantum meruit as articulated in Johns is the most appropriate and efficient method of determining attorney fees for a fired lawyer. The Loggans firm’s protracted arguments on appeal over who did what for the client and how it benefited the client are perhaps the best example of the difficulties inherent in a comparison/apportionment method of fee determination where a discharged attorney is replaced by a successor attorney who then takes the litigation to a successful completion. We affirm the trial court’s finding that the Johns case governs here and that application of a comparison/apportionment method of fee determination is inappropriate.

For the foregoing reasons, we affirm the ruling of the trial court awarding the Loggans firm no additional attorney fees.

Affirmed.

EGAN, P.J., and McNAMARA, J., concur.


author: JUSTICE JOHNSON

text:
    FEBE ARCEO, Plaintiff-Appellee, v. STEPHEN F. SELCKE, Director, The Department of Professional Regulation, et al., Defendants-Appellants.
    First District (4th Division)
    No. 1—90—1793
    Opinion filed February 20, 1992.
    Roland W. Burris, Attorney General, of Springfield (Rosalyn Kaplan, Solicitor General, and Jan E. Hughes, Assistant Attorney General, of Chicago, of counsel), for appellants.
    William J. Lamed, of Wilmette, for appellee.
   JUSTICE JOHNSON

delivered the opinion of the court:

Following a decision by defendants, the Department of Professional Regulation and its Director, Stephen F. Selcke, to suspend the nursing license of plaintiff, Febe Arceo, the circuit court of Cook County set aside their order. The circuit court entered its order on May 17, 1990. Defendants filed their notice of appeal on June 18,1990.

On appeal, defendants argue that the trial court erred in setting aside their decision to suspend plaintiff’s license. They contend that (1) their decision was a constitutional application of the Illinois Nursing Act (Ill. Rev. Stat. 1985, ch. 111, par. 3401 et seq.); (2) their decision is based on public safety and therefore the doctrine of estoppel is not applicable; and (3) their decision to have plaintiff repeat her nursing program was not unreasonable or arbitrary under the Act.

We affirm.

Plaintiff, Febe Arceo, earned her bachelor of science degree in nursing from Arellano University in the Philippines in May 1979. Between July 1981 and February 1986, plaintiff took and failed the nursing examination on seven occasions, in both Illinois and Wisconsin. On plaintiff’s eighth attempt, she successfully passed the Wisconsin nursing exam in July 1986 and was issued her license in August 1986.

In October 1986, plaintiff applied for her license by endorsement in Illinois on the basis of her Wisconsin registration. (Ill. Rev. Stat. 1985, ch. 111, par. 3428.) Her application was complete, including all of her NCLEX testing history — seven failures and her success in July 1986. NCLEX is an examination format that was introduced in July 1982. The nursing exam is no longer graded according to categorized topics. An examinee will receive a single grade for the entire exam.

The Department of Professional Regulation (the Department) issued plaintiff a nursing license in November 1986. Issuance of this license was in error under the Illinois statute enacted in 1981. It provided that applicants for nurse licensure could only take the national examination six times. Failure beyond that number meant that the applicant had to return to nursing school to repeat the entire program. (Ill. Rev. Stat. 1985, ch. 111, par. 3428.2.) The statute was reenacted in the Illinois Nursing Act of 1987 (Ill. Rev. Stat. 1987, ch. 111, par. 3515). The State of Illinois counts previous examination failures in all States against its applicants, not just failures of the Illinois examination.

In September 1987, the Department notified plaintiff’s attorney that plaintiff had been licensed in error and therefore her license would be cancelled effective October 15, 1987. According to the Department, the error was caused by plaintiff having a different last name and social security number when she had previously taken and failed the Illinois exams. Plaintiff’s attorney notified the Department that plaintiff’s license could not be terminated without a statement of grounds, notice, and a hearing. The Department then sent a second letter on October 7, 1987, stating that the license was to be cancelled in eight days.

Plaintiff filed a complaint for injunctive relief in October 1987 to enjoin the Department from cancelling her license without affording her a hearing. On March 11, 1988, an administrative hearing took place. The Department ordered that plaintiff’s certificate of registration be revoked on August 17, 1988. The trial court responded to this decision in April 1989 and remanded the cause to the Department for further consideration of the penalty invoked.

In October 1989, six months after remand, attorneys for both sides were asked to submit written memoranda supporting their positions regarding the penalty to be invoked against plaintiff. The Department’s memorandum was never sent to plaintiff’s attorney. The memorandum cited a case entitled Department of Registration and Education v. Lingad-Fama, No. 87 — 2197, a case not previously mentioned in any of the Department’s briefs in the circuit court.

In December 1989, plaintiff filed a motion to amend judgment and order full reinstatement of her license. She cited the Department’s delayed response to the court’s remand order of April 1989. On January 16, 1990, the court, on its own motion, issued a rule to show cause against the Department’s nursing coordinator. The matter was continued until February 2,1990.

On January 5, 1990, the Department’s Committee on Nursing (the Committee) issued a decision recommending that revocation of plaintiff’s license was correct and consistent with legislative intent. Plaintiff filed for a rehearing of the Committee’s recommendation on February 1, 1990. On February 2, a hearing was held on plaintiff’s motion to amend judgment and on the court’s rule to show cause. No explanation was given for the Department’s delay. Plaintiff’s motion to amend judgment was denied and the Director of the Department was ordered to rule on plaintiff’s request for a rehearing by March 8, 1990.

At the end of February, the Director denied plaintiff’s motion for a rehearing and considered the Committee’s recommendation. The Director chose to suspend rather than revoke plaintiff’s license. The suspension would remain until plaintiff presented a certificate of recompletion of her professional training. A hearing followed and the circuit court set aside defendants’ decision and ordered defendants to reinstate plaintiff’s nursing license. This appeal followed.

This court gives deference to the trial court on review. An appellate court will not disturb a trial court’s findings of fact unless they are against the manifest weight of the evidence. (Hill v. Name & Addresses, Inc. (1991), 212 Ill. App. 3d 1065, 1077-78.) Defendants contend that the circuit court’s decision ignores action taken by them and allows a nursing license to issue to plaintiff, who did not meet the statutory qualifications to be a licensed nurse. “The Department’s major purpose in licensing is to prevent injury to the public by ensuring that the nursing profession is practiced with honesty and integrity and that the unskilled are excluded.” (Yu v. Clayton (1986), 147 Ill. App. 3d 350, 356; see Ill. Rev. Stat. 1985, ch. 111, pars. 3402, 3403.) Plaintiff was a licensed practitioner in the State of Wisconsin. The director of nursing at St. Francis Extended Care, plaintiff’s employer, testified that plaintiff had done an excellent job as a registered nurse and that there had been no complaints concerning her activities. Plaintiff, educated in the Philippines, had obtained a degree in graduate nursing and also a bachelor of science degree in nursing. She had also practiced two years as a clinic nurse at the Manila International Airport before coming to the United States. Given her background, the trial court found no evidence that to allow plaintiff to keep her license would be detrimental to the purpose of enforcing a license requirement.

According to defendants, the State of Hlinois has a compelling interest in protecting the public and in establishing standards for licensing practitioners. Despite the broad discretion given the State in promoting this interest, the rights of the individual must not be forgotten. The right of the individual to pursue his or her career is discussed in Coldwell Banker Residential Real Estate Services of Illinois, Inc. v. Clayton (1985), 105 Ill. 2d 389:

“It is a well-established constitutional principle that every citizen has the right to pursue a trade, occupation, business or profession. This inalienable right constitutes both a property and a liberty interest entitled to the protection of the law as guaranteed by the due process clauses of the Hlinois and Federal constitutions.” Coldwell Banker Residential Real Estate Services of Illinois, Inc., 105 Ill. 2d at 397.

The Hlinois standard is different from that of Wisconsin in terms of the penalties for failure to pass the nursing examination. The Department was able to apply the statute to justify its finding that plaintiff was not eligible for licensure by endorsement. However, the issue is the means by which it sought to enforce its findings.

First, defendants attempted to unilaterally cancel or revoke plaintiff’s license effective October 15, 1987. Then plaintiff filed for injunctive relief. An order was entered and the action was dismissed. A hearing was held and the Department’s disciplinary procedures in a case entitled Department of Registration and Education v. Cipriano Medrano, No. 86 — 261, were discussed. However, in July 1988, the Committee on Nursing recommended that plaintiff’s license be revoked. The following month, the Director of the Department decided to suspend plaintiff’s license. In response, the circuit court entered an order remanding the matter to the Department for further consideration of the penalty being imposed. The case was held by the Department for 11 months. During that period, the Committee requested both sides to submit memoranda supporting their positions. Plaintiff’s attorney never received the memorandum of the Department. Further, the Department’s memorandum cited Department of Registration and Education v. Lingad-Fama, No. 87 — 2197. The case of Lingad-Fama can be distinguished from the instant case because it involved a finding of fraud by the Department due to Lingad-Fama’s failure to provide all of her exam failures on the application. Plaintiff’s attorney had no opportunity to refute the Lingad-Fama case, as it had never been mentioned in any of the Department’s briefs in the circuit court.

“Proceedings under an administrative agency are subject to the requirements of due process of law.” (Abrahamson v. Department of Professional Regulation (1991), 210 Ill. App. 3d 354, 369.)

“In determining whether a party is entitled to due process, either substantive or procedural, he must first establish the existence of a liberty or property interest. [Citation.] To have a property interest a person must have more than a unilateral expectation of it; rather, he must have a legitimate claim of entitlement to it.” (Groenings v. City of St. Charles (1991), 215 Ill. App. 3d 295, 307.)

Given the evidence presented, the trial court found a denial of due process. We hold that its finding was not against the manifest weight of the evidence.

In submitting that granting plaintiff the license was beyond their statutory authority, defendants then contend that the doctrine of equitable estoppel cannot be invoked to reinstate her license. Their support for this contention comes from Evans v. Benjamin School District No. 25 (1985), 134 Ill. App. 3d 875. This case discusses the granting of tenure to a teacher who did not have the number of hours required to achieve tenure status under the School Code (Ill. Rev. Stat. 1985, ch. 122, par. 1—1 et seq.). The school board was without authority to grant tenure in this situation. It was held that the doctrine of estoppel could not be in-yoked to validate an ultra vires act. Defendants also cite a passage from the April 1989 decision of the circuit court:

“To allow an unlicensed person to practice the profession of nursing places those in need of medical care at great risk. Where the financial inconvenience of the plaintiff in being denied an erroneously issued nursing license is weighed against the risk to health care patients being cared for by a nurse who does not meet the licensing requirements of Illinois law, this court cannot say the department acted arbitrarily or capriciously by refusing to apply the doctrine of equitable estoppel.”

The basis for distinguishing Evans and the 1989 decision from the case at issue is plaintiff’s status as practitioner. In Evans, the teacher was seeking tenure for the first time without having it granted by another school board or at another place. More importantly, in the 1989 decision, the trial court specifically uses the phrase “an unlicensed person.” This is not an accurate description of plaintiff in the case at bar. She is a licensed practitioner in the State of Wisconsin and sought a license by endorsement in Illinois. She was issued a license and began to practice nursing in this State. The initial issuance of this license was due to an error by the Department. Testimony revealed that the subsequent removal of her license was in no way a reflection upon plaintiff’s professional capabilities. Further, the severity of the penalty in the case at bar as compared to that in the case of the Department of Registration and Education v. Medrano, No. 86—261, constitutes an arbitrary use of agency discretion.

On review, this court will give deference to the discretionary authority of an administrative agency. We will not interfere with that discretionary authority unless it is exercised in an arbitrary or capricious manner or its administrative order is against the manifest weight of the evidence. (Cotovsky v. Department of Registration & Education (1982), 110 Ill. App. 3d 417, 423.) Appellate review of agency sanctions is as follows:

“[W]hen determining whether an administrative decision is contrary to the manifest weight of the evidence, a court should consider the severity of the sanction imposed. Cartwright v. Illinois Civil Service Comm’n (1980), 80 Ill. App. 3d 787, 793, 400 N.E.2d 581, 586; Kelsey-Hayes Co. v. Howlett (1978), 64 Ill. App. 3d 14, 17, 380 N.E.2d 999, 1002. Contra Epstein v. Civil Service Comm’n (1977), 47 Ill. App. 3d 81, 84, 361 N.E.2d 782, 785.
An alternative formulation of the rule is that, when judging whether an agency sanction is arbitrary or unreasonable, manifest weight of the evidence is not the applicable standard of review, because the reasonableness of the sanction, not the correctness of the agency’s findings or reasoning, is the issue.” (Letourneau v. Department of Registration & Education (1991), 212 Ill. App. 3d 717, 731.)

Defendants contend that suspending plaintiff’s license until she repeats an approved nursing program is reasonable and related to the goals of the statute. Yet the circuit court took issue with the penalty imposed in light of the case entitled Department of Education and Registration v. Cipriano Medrano, No. 86 — 261.

The differences between the Medrano case and the case at issue served only to strengthen the court’s concern that the Department was not engaged in a uniform application of the law. Medrano was accused of fraud by not listing on his nursing application the prior exams he had failed in Wisconsin. In the instant case, plaintiff filled out the application, listing all of her previous examination failures in Illinois and in Wisconsin. Medrano was applying to obtain his Illinois license by examination. There was some question as to whether he had given complete information concerning his previous failures. Plaintiff was officially licensed in Wisconsin and merely sought license by endorsement in Illinois, which she was granted. She worked for more than a year at St. Francis Extended Care Nursing facility, receiving no complaints regarding any of her professional activities.

“[I]n reviewing penalties, courts generally consider mitigating circumstances such as professional skills and good reputation.” (Graham v. Illinois Racing Board (1986), 145 Ill. App. 3d 383, 390, citing Citrano v. Department of Registration & Education (1980), 90 Ill. App. 3d 937, 940.) Medrano was allowed to continue as an Illinois registered nurse. His only penalty was a requirement that he take one review course as a part of a one-year probation. In stark contrast, plaintiff is being forced not to practice at all by having her license revoked as well as having to repeat an entire nursing program.

For the foregoing reasons, we hold that the decision of the trial court was not against the manifest weight of the evidence, and we affirm its decision to set aside the order of defendants.

Affirmed.

LINN and McMORROW, JJ., concur.


text:
    RAMCO INDUSTRIES, INC., Plaintiff-Appellant, v. BOARD OF TRUSTEES OF THE UNIVERSITY OF ILLINOIS, Defendant (Seaboard Surety Company et al., Defendants-Appellees).
    First District (4th Division)
    No. 1—91—0050
    Opinion filed February 20, 1992.
    Ialongo & Meyer, of Chicago, for appellant.
    Marc S. Lipinski, of Rudnick & Wolfe, of Chicago, for appellees.
   JUSTICE JOHNSON

delivered the opinion of the court:

Plaintiff, Rameo Industries, Inc., appeals from an order of the circuit court of Cook County granting the motion for partial summary judgment in favor of defendants Mellon-Stuart Company (Mellon-Stuart) and Seaboard Surety Company (Seaboard). The sole issue on appeal is whether the trial court erred in finding that plaintiff could not assert a mechanic’s lien pursuant to section 23 of the Mechanics Liens Act (Ill. Rev. Stat. 1987, ch. 82, par. 23) (the Act) against the Board of Trustees of the University of Illinois (the Board) in connection with a construction project.

We affirm.

In December 1986, the Board contracted with Mellon-Stuart to build a facility on the Chicago campus of the University of Illinois. Mellon-Stuart subsequently entered into a $1.15 million subcontract agreement with plaintiff to provide and install structural steel for the facility. Under the terms of the subcontract, plaintiff waived all rights to file liens in connection with the project, including any change orders or supplemental agreements for additional work. Section 7 of the subcontract, entitled “No Liens,” provides in relevant part, as follows:

“Subcontractor *** covenants and agrees that no liens for or on account of any work, labor, services, materials, equipment or other items performed or furnished for or in connection with the Work, will be filed or maintained against the Project or the premises upon which the Project is located or any fund created or money held by Owner for or on account of the Project. Subcontractor *** does hereby expressly waive, release and relinquish all rights to file or maintain such liens and further agrees that this waiver of the right to file or maintain such liens shall be an independent covenant and shall apply as well to work, labor and services performed and materials, equipment and their items furnished under any change order or supplemental agreement for extra or additional work in connection with the Project as well as to the original Work covered by this Agreement *** 77

After the project was completed, plaintiff filed a complaint alleging that Mellon-Stuart failed to pay subcontract billings and charges for additional work in the amount of over $1 million. Count I of plaintiff’s complaint sought to enforce a mechanic’s lien pursuant to section 23 of the Act (Ill. Rev. Stat. 1987, ch. 82, par. 23) against defendants. Plaintiff also asserted a breach of contract claim against Mellon-Stuart.

Mellon-Stuart filed a motion to dismiss count I on the basis that the subcontract agreement contained a “no lien” clause. Following a hearing, the motion was denied. Subsequently, plaintiff’s case was consolidated with other cases arising out of the same construction project and transferred to Judge Romie J. Palmer. Mellon-Stuart filed a motion for partial summary judgment on plaintiff’s mechanic’s lien. The court granted the motion for partial summary judgment and dismissed plaintiff’s mechanic’s lien with prejudice. The court found that plaintiff had actual notice of the “no lien” provision contained in its subcontract at the time it signed the subcontract. This appeal followed.

Plaintiff contends that the trial court erred in granting defendants’ motion for partial summary judgment. Summary judgment should be granted if the pleadings, depositions, admissions and affidavits show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. (Cincinnati Insurance Co. v. Argubright (1986), 151 Ill. App. 3d 324, 328.) Similarly, a motion for partial summary judgment should be granted where there is “no material factual dispute as to any major issue in a case, even if substantial controversy exists with respect to other issues.” Colt Construction & Development Co. v. North (1988), 168 Ill. App. 3d 913, 916.

On appeal, plaintiff contends that the trial court erred in finding that it had waived its right to assert a mechanic’s lien under section 7 of the subcontract agreement. Plaintiff further contends that since section 23 of the Act, which applies to public projects, does not give statutory approval to enforce a “no lien” contract provision against monies due the contractor, such liens in public project contracts are inapplicable. Defendants counter that based on the holdings in S.J. Groves & Sons Co. v. Midwest Steel Erection Co. (N.D. Ill. 1986), 666 F. Supp. 129, and Northbrook Supply Co. v. City of Highland Park (1963), 39 Ill. App. 2d 267, waivers of liens are enforceable in connection with public projects.

In S.J. Groves & Sons Co., the plaintiff entered into a contract with the Illinois Department of Transportation to build roads and improve bridges. The plaintiff subsequently subcontracted Midwest Steel to work on the project. A dispute arose between the parties about the amount of monies owed pursuant to the subcontract. The plaintiff filed an action against Midwest. Midwest counterclaimed alleging breach of contract and establishing a lien pursuant to section 23 of the Act. The subcontract between the parties contained a “no lien” provision similar to that in the case at bar.

The court in S.J. Groves & Sons Co. held that the subcontractor had waived its right to assert a lien on private contracts as well as public contracts. In reaching its decision, the court stated the following:

“The mechanics’ lien provisions concerning subcontractors, whether for private or public projects, are designed to ensure that subcontractors will have some recourse against the ultimate beneficiary of the subcontractors’ labors — the project owner — if the general contractor fails to meet its obligations to the subcontractor. The fact that the Illinois legislature’s understandable refusal to allow liens directly against public property necessitated paragraph 23’s specific procedures does not differentiate the protective intent behind paragraph 23 from the intent behind the provisions protecting subcontractors in private projects. Therefore, given that the Illinois courts have made it clear that subcontractors may waive statutory lien rights on private projects, the Court holds that [a party] could waive its lien under paragraph 23 as well.” S.J. Groves & Sons Co., 666 F. Supp. at 131.

Similarly, in Northbrook Supply Co. v. City of Highland Park (1963), 39 Ill. App. 2d 267, plaintiff sought to enforce a lien against public funds pursuant to section 23 of the Act. Plaintiff had entered into an agreement waiving all lien rights against all property under the statutes of Illinois. Plaintiff later sought to enforce a lien against public funds. The court held that the waiver provision was intended as a release of any and all liens which a plaintiff might have and, further, that the parties’ intentions should be given effect. (Northbrook Supply Co., 39 Ill. App. 2d at 272.) In holding that plaintiff was barred by its waiver of lien provision, the court stated, “we do not believe that [plaintiff] should be permitted to avoid the consequences of its own conduct.” Northbrook Supply Co., 39 Ill. App. 2d at 272.

We agree with the cases cited above which hold that pursuant to section 23 of the Act a subcontractor may waive statutory lien rights on public projects. The Act is intended to provide subcontractors with some recourse against the project owner if the general contractor fails to meet its obligations. Although the legislature differentiated between private projects (in section 21) and public projects (in section 23), we do not believe that the legislature intended to negate the protective intent behind section 23. Absent expressed statutory language preserving a subcontractor’s right to assert a mechanic’s lien after it has been waived in a contract, we refuse to hold that section 23 invalidates waiver of lien provisions.

In the case at bar, plaintiff knowingly waived its right to assert a lien on any and all funds or property. We agree with the trial court that plaintiff should not be permitted to raise section 23 of the Act as a defense to avoiding the consequences of its own actions. We therefore find that plaintiff’s mechanic’s lien is barred by the “no lien” provision of the subcontract and affirm the trial court’s finding granting defendants’ motion for partial summary judgment.

Having found that plaintiff’s mechanic’s lien is barred by the “no lien” provision clause of the contract agreement, we need not address plaintiff’s contention that the trial court improperly determined that the lien provision of section 21 of the Act applied to this action, which was brought pursuant to section 23.

For the foregoing reasons, we affirm the ruling of the circuit court.

Affirmed.

LINN and McMORROW, JJ., concur.