Slick v. Reinecker

MOYLAN, J. The appellee, Mary Beth Reinecker, Esq., sued the appellant, Daniel Slick, in the Circuit Court for St. Mary’s County for breach of contract. The case was tried by the judge, sitting without a jury. The alleged contract was one involving the legal representation of the appellant by the appellee in a motor vehicle tort case. A Contract Implied in Law, But No Contract Implied in Fact There was no written contract between the parties.

The appellee attempted to prove that there was a contract implied in fact. The court found that there was not. It did find in the alternative, however, that there was a contract implied in law. On the basis of it, it made an award of $13,000 to the appellee.

This appeal is from that award. The evidence fully supports the court’s findings that 1) there was between Daniel Slick and Mary Beth Reinecker no contract for professional legal services, either express or implied in fact; but 2) there was between them an exchange of services that amounted to a contract implied in law. ³¹⁷ A Contract Implied In Fact The two terms, although they resemble each other linguistically in that each contains the word “contract,” are diametrically different in terms of the legal relationships they denote. A contract implied in fact is actually a contract. As Judge Salmon explained for this Court in Mogavero v. Silverstein, 142 Md.App. 259, 275 , 790 A.2d 43 (2002): An implied-in-fact contract is a “true contract” and “means that the parties had a contract that can be seen in their conduct rather than in an explicit set of words.” Implied-in-fact contracts are “dependent on mutual agreement or consent, and on the intention of the parties; and a meeting of the minds is required.” In Mogavero v. Silverstein, 142 Md.App. at 277 , 790 A.2d 43 , we quoted with approval from Eaton v. Engelcke Manufacturing, Inc., 37 Wash.App. 677 , 681 P.2d 1312, 1314 (1984): A true implied contract, or contract implied in fact, does not describe a legal relationship which differs from an express contract: only the mode of proof is different.

(Emphasis supplied). Vol. 1, Williston on Contracts, § 1.5, pp. 20-21, by Richard A. Lord (1990), also described an implied-in-fact contract. The term implied or inferred contract, also sometimes called an implied in fact contract, refers to that class of obligations which arises from mutual agreement and intent to promise, when the agreement and promise have simply not been expressed in words. Despite the fact that no words of promise or agreement have been used, such transactions are nevertheless true contracts, and may properly be called inferred contracts or contracts implied in fact.

(Emphasis supplied). In Mass Transit Administration v. Granite Construction Co., 57 Md.App. 766, 774 , 471 A.2d 1121 (1984), Judge Bloom defined the term. ³¹⁸ The term [implied in fact contract] only means that the parties had a contract that can be seen in their conduct rather than in an explicit set of words. In other words, the [implied in fact] contract is proved by circumstantial evidence. (Emphasis supplied).

In County Commissioners of Caroline County v. J. Roland Dashiell & Sons, Inc., 358 Md. 83, 94 , 747 A.2d 600 (2000), Judge Cathell wrote to a similar effect for the Court of Appeals. An express contract has been defined as “an actual agreement of the parties, the terms of which are openly uttered or declared at the time of making it, being stated in distinct and explicit language, either orally or in writing.” “An implied contract is an agreement which legitimately can be inferred from intention of the parties as evidenced by the circumstances and ‘the ordinary course of dealing and the common understanding of men.’ ” [S]ee Klebe v. United States, 263 U.S. 188, 192 , 44 S.Ct. 58, 59 , 68 L.Ed. 244 (1923) (“A contract implied in fact is one inferred from the circumstances or acts of the parties; but an express contract speaks for itself and leaves no place for implications.”). (Emphasis supplied). So much for a contract implied in fact.

A Contract Implied in Law By sharp contrast, what is confusingly called a contract implied in law is actually no contract at all. In Mass Transit v. Granite, 57 Md.App. at 775, 471 A.2d 1121 , Judge Bloom laid out the diametric difference between the two concepts. A quasi-contract or implied in law contract, on the other hand, involves no assent between the paHies, no “meeting of the minds. ” Instead the law implies a promise on the part of the defendant to pay a particular “debt.” Thus, “[t]he implied in law contract is indeed no contract at all, it is simply a rule of law that requires restitution to the plaintiff of something that came into defendant’s hands but belongs ³¹⁹ to the plaintiff in some sense.” It is from quasi-contract that “the common counts in general assum/psit came into use, notably the counts for money had and received, for goods sold and delivered (quantum valebat), and for work and labor done (quantum meruit).” Although quasi contract is often described as “equitable” and indeed recovery in restitution is based upon notions of justice and fairness, “this refers merely to the way in which a case should be approached, since it is clear that the action is at law and the relief given is a simple money judgment.” (Emphasis supplied). In Caroline County v. Dashiell, 358 Md. at 94-95 , 747 A.2d 600 , the Court of Appeals also took note of the difference.

Finally, significant to our analysis is the definition of a quasi-contract. Black’s Law Dictionary, [6th ed.1990] at 324 defines it as a [Ifegal fiction invented, by common law courts to permit recovery by contractual remedy in cases where, in fact, there is no contract, but where circumstances are such that justice warrants a recovery as though there had been a promise. It is not based on intention or consent of the parties, but is founded on considerations of justice and equity, and on [the] doctrine of unjust enrichment. It is not in fact a contract, but an obligation which the law creates in absence of any agreement, when and because the acts of the parties or others have placed in the possession of one person money, or its equivalent, under such circumstances that in equity and good conscience he ought not to retain it.

(Emphasis supplied). In Dashiell, 358 Md. at 95 n. 6, 747 A.2d 600 , Judge Cathell juxtaposed the two legal relationships. Historically, there were two types of implied contracts: contract implied by fact and contract implied by law. They have distinct meanings.

An implied by fact contract is “inferred from conduct of parties and arises where plaintiff, without being requested to do so, renders services under ³²⁰ circumstances indicating that he expects to be paid therefor, and defendant, knowing such circumstances, avails himself of benefit of those services.” A contract implied by law is now what commonly is called quasi-contract. (Emphasis supplied). The Restatement (Second) of Contracts, § 4 (1981), also describes the quasi-contract or implied-in-law contract. Quasi-contracts have often been called implied contracts or contracts implied in law; but, unlike true contracts, quasi-contracts are not based on the apparent intention of the parties to undertake the performances in question, nor are they promises.

They are obligations created by law for reasons of justice. (Emphasis supplied). It may seem incongruously Orwellian to the modem mind to refer to something that is truly not a contract at all as a “contract implied in law.” Why not describe the legal obligation in terms of what it is, rather than as something it emphatically is not? 1 Dobbs Law of Remedies (2d ed.1993), § 4.2(1), p. 571, has explained why, historically, it was necessary to resort to the linguistic fiction in order to make a desired remedy available. The more significant stream of restitution derived from the writ of assumpsit....

Assumpsit was the common law form of action by which contract claims were redressed. Sometimes the contract would be express, sometimes implied by the parties’ actions, but in either event a genuine contract. However, the as-sumpsit action also came to be used when the parties had no contract at all, so long as the plaintiff could convince the court that he ought to recover something from the defendant as a matter of justice or good conscience. The connection to assumpsit is obscure to modern minds.

The common law forced the plaintiff to sue under one of a limited number of forms of action or writs. Assumpsit was a good choice, but to make it work it was necessary for judges to relate the claim to some kind of contract, promise ³²¹ or undertaking. The common law judges were up to the task. They simply said that, although the defendant had promised nothing, if justice called for relief, then the law would imply a promise and then hold him liable on that implied promise.

Courts explained liability in assumpsit by saying that the defendant was liable on an implied contract. Because the term “implied contract” might be confused with the idea of an implied in fact contract, judges sometimes use the term “implied in law contract” instead, tacitly recognizing that this kind of claim had nothing to do with a genuine contract. Another term for the implied in law contract is quasi-contract. So restitutionary claims of the kind involved in the second stream is still often referred to as claims for assumpsit, or claims based on implied in law or quasi-contracts.

(Emphasis supplied). The fiction has served its purpose, but it does require us to keep our wits about us when talking Newspeak. When dealing with a “contract” that is not a contract, steer meticulously clear of contract law! The Evidentiary Background When we reach the issue of computing the appropriate remedy, we shall return to the caselaw bearing on contracts implied in law.

For the moment, we shall turn to the evidence supporting the court’s findings as to the nature of the relationship between Daniel Slick and Mary Beth Reinecker in this case. On July 30, 1999, Slick was injured in an automobile accident. There was no question but that the liability rested exclusively on the other motorist, who was uninsured. Initially, Slick filed his PIP (personal injury protection) claim with the Maryland Automobile Insurance Fund (MAIF) and received the maximum allowable recovery from it of $20,000.

Ms. Reinecker was a neighbor and a social friend of Slick and his family. She is an attorney and, at the time of Slick’s accident, had been doing personal injury work in Maryland ³²² and the District of Columbia for about three years. Although there was some brief and informal conversation between Slick and Ms. Reinecker about his initial filing of his PIP claim with MAIF, Ms. Reinecker agrees that Slick acted on his own behalf in pursuing his initial claim against MAIF. In her trial testimony, she recounted her knowledge of what Slick had done vis-a-vis MAIF.

Q And what ultimately happened to the liability claim? A As to MAIF? Q Yes, as to MAIF. A He had the discussions with MAIF and he resolved the matter.

Q And that was resolved by? A By Mr. Slick, Dan. Q Okay. And what was the — how was it resolved?

AI believe he negotiated with them and he received their policy limits. (Emphasis supplied). Once having resolved his claim against MAIF, Slick undertook to pursue his Underinsured Motorist claim against his own carrier, State Farm Insurance Company. The policy limit was $100,000 minus the amount recovered from MAIF for a remaining policy limit of $80,000.

It was with respect to Slick’s ultimate recovery of $80,000 from State Farm that the present controversy arose. The issue is that of what role, if any, Ms. Reinecker played in obtaining that $80,000 recovery. From July 30, 1999 Through Late July or Early August, 2000 The most confusing aspect of this case stems from the fact that Ms. Reinecker seizes every evidentiary factoid bearing on what she may have done for Slick or even said to Slick from the occurrence of the accident on July 30, 1999, and the offer by State Farm of $80,000 on October 10, 2001, and tosses them into a single evidentiary pot, which she then stirs vigorously. ³²³ The problem is that each evidentiary fragment needs to be sorted out and placed into one of two very distinct receptacles. One category is for those things that occurred while Ms. Reinecker was still Slick’s neighbor, essentially through the mid-summer of 2000.

The second category is for those events that happened after Ms. Reinecker 1) moved away to New Jersey in June or July of 2000 and 2) then, several weeks later, had a telephone communication with Slick, which she places as having occurred in late July or early August. The critical distinction between the two time periods is that nothing that happened prior to that late-summer telephone call either 1) is dispositive on the nature of the relationship between Slick and Ms. Reinecker after the telephone call or 2) has any bearing on the remedy, if any, to which Ms. Reinecker might be entitled for services rendered after that call. Ms. Reinecker does not allege that she represented Slick prior to that mid-summer telephone call. Q Okay.

Now, exactly, can you give me an exact date when your representation of Mr. Slick began? A The exact date, no, I cannot. All I can tell you is the exact phone call. Q Okay.

Can you give me a month? A I believe it was in late July. Q Late July of what year? A Of 2000.

Q July of 2000? A Two thousand, after I moved. (Emphasis supplied). Everything that happened prior to that time constituted only the gratuitous advice of a friend and neighbor.

Ms. Reinecker’s suggestion to Slick was that he did not actually need a lawyer and that she could “walk him through the whole process” so that he could, in effect, handle his claim himself. Q You advised Mr. Slick at the time of the — shortly after the accident, to actually not retain an attorney. A Absolutely. ³²⁴ Q In fact, you told him that you would walk him through the whole process. AI told him I would.

Dan was a neighbor whose family was going through hard times. They had potentially serious injuries. I told him I would take care of him. I would help him through it free, no big deal.

We were friends. Q And he helped you also, correct? A Yes, he helped my family, yes, when we needed it, yes, as we helped his family when he needed it. Q In fact, he did work for you also, isn’t that correct?

A He helped do some electrical work and my husband, I think, helped him do something on his deck one day. Q But he did do work for you? A Yes. And that is why I mean I didn’t think of it tit for tat.

This was something that I thought I could help him with. (Emphasis supplied). It was during that first year that Slick made contact with MAIF and that MAIF tendered him its policy limits of $20,000. Although the actual delivery of the check was delayed by some weeks, pending the adjustment of a medical lien held by Health Care Recoveries, all negotiations with MAIF had been concluded by the late spring of 2000.

Indeed, Ms. Reinecker acknowledged that Slick had handled his case with MAIF directly, “He had the discussions with MAIF and he resolved the matter.” As to what that resolution consisted of, she stated, “I believe he negotiated with them and he received their policy limits.” It is also clear that it was during that first year that Slick himself wrote to State Farm directly to put it on notice of “a possible underinsured motorist (UIM) claim.” On the very day after the accident, he spoke with his State Farm agent and got the name of Pamela Izquierdo, the ultimate claims processor. Within several days, Slick and Ms. Izquierdo were ³²⁵ in person-to-person telephone contact. On December 8, 1999, Slick sent her formal notice of his possible UIM claim. Dear Pam: As you are aware, I was involved in an automobile accident on the above referenced date.

Please consider this letter as notice of a possible underinsured motorist (UIM) claim. Please continue to direct all future contacts with me, as I intend to handle this matter without retaining an attorney. Additionally, please confirm receipt of this correspondence in writing. If you have any questions, comments or concerns regarding this matter, please do not hesitate to contact me.

Very truly yours, /s/ Dan (Emphasis supplied). Actually, Slick had already received a claim number and a letter from Cherrie Hawkins, a claims processor who at times assisted Pamela Izquierdo in processing the PIP portion of his claim. Ms. Hawkins gave him detailed descriptions of the various medical bills and expenses and proofs of loss of income that he would have to submit. There was an extensive file of exchanged correspondence and FAX messages between Slick and both Cherrie Hawkins and Pamela Izquierdo during September, October, November, and early December of 1999.

On December 14, 1999, Slick received formal acknowledgment of his possible UIM claim. Re: Claim Number: 20-5139-693 Date of Loss: July 30, 1999 Insured: Daniel G. Slick Dear Mr. Slick: This is to acknowledge your letter dated December 8, 1999 which stated that you may have a possible UIM claim. Please forward all future correspondence to my attention. ³²⁶ Sincerely, Pam de Jesus [later Izquierdo] Senior Claim Representative It was still during the gratuitous phase of Ms. Reinecker’s assistance to Slick that she herself first contacted State Farm on May 25, 2000. Significantly, she referred to her role not as one in which she was representing Slick but as one in which she was “assisting Mr. Slick in the handling of his claim.” Please be advised that I am assisting Mr. Slick in the handling of his claim.

As you may be aware, MAIF has offered their policy limits with regard to the liability claim against their insured, Mr. Brian Mayle. At this time I am requesting that you waive subrogation in accordance with § 19-511 of the Insurance Article of the Annotated Code of Maryland. (Emphasis supplied). The subject matter of the letter was the waiving of subrogation by State Farm so that Slick could finalize his MAIF claim.

It is clear that by the late summer of 2000, all of Slick’s claims against MAIF had been successfully concluded and that State Farm was fully apprised of his imminent UIM claim against it. He was already in extensive communication with two of its claims representatives. Whatever informal and gratuitous advice Ms. Reinecker may have given to Slick during this initial period, nothing that occurred through the late summer of 2000 could serve as the basis for any claim by her for compensation for professional services rendered. A Changed Interpersonal Relationship The nature of the relationship between Slick and Ms. Rei-necker changed dramatically, however, during the summer of 2000.

Ms. Reinecker’s marriage broke up. The closest aspect of the pre-breakup social relationship had actually been the friendship between Slick and Ms. Reinecker’s ex-husband. In June or July of that year, Ms. Reinecker’s husband left her with two young children. Ms. Reinecker consequently left Maryland and moved to New Jersey. ³²⁷ Some weeks after the move, Ms. Reinecker, through her mother in Philadelphia, received a letter from State Farm concerning Slick’s case.

It was in the course of the telephone call in which she passed that communication on to Slick that the nature of the relationship between the two of them changed. On direct examination, she described that phone call. Q And when you say you had a discussion with Dan about the status of his case, what was the nature of that discussion? This is after you moved out of state?

A This was after I moved out of State. Actually, his wife was on first, and then Dan got on the phone. I vividly remember sitting in the dining room. His wife said, first, she realized the circumstances had changed.

They wanted to hire me and that they would pay me. Dan gets on the phone subsequently and reiterates the same thing, that they needed my services and they wanted me to continue on. I had no interest. I had my own problems to deal with at the time.

(Emphasis supplied). On cross-examination, Ms. Reinecker elaborated on that change in the relationship. Q But that all changed? A When I moved.

Q Okay. And why did that change? A I left Maryland with a two month old baby and a four year old. My marriage was over.

I didn’t care. I had no time for anything. I didn’t want to be involved in anything. I stopped.

I had my own problems, my own family to worry about. It was a phone call, which I did not initiate the conversation. It was Dan and his wife said — T am sorry— first time I talked to them since the separation, “I am sorry I know things have changed, we will pay you. We want you to work with this.

We want you to handle this for us.” They started the conversation. At that point in time, sure, if I was getting paid — I wasn’t, at that time, to do free work. I had a lot on my plate then. Q You had a — had a lot on your plate then? ³²⁸ AI had a lot on my own personal plate, yes.

Q But you weren’t working at the time? A No, but my marriage was over, I had a two month old baby, I was looking for a job. I had a part time job that came to an end. I was trying to purchase a house.

I was living with my sister. I had a lot going on. (Emphasis supplied). Slick’s testimony, on the other hand, was that such a telephone call in which he allegedly requested Ms. Reinecker’s professional services never took place.

Q [SJhe described a phone call in July of2000 where she states that you called her in, I guess, New Jersey or Pennsylvania, and requested that she represent you. Did that phone call take place? A No. Q Did you, once you were injured, did you handle your MAIF claim yourself? A Primarily, yes.

Q And did you obtain all your medical records? A Yes. Yes, I did. Q Did you write your demand letter?

A Yes. (Emphasis supplied). On cross-examination, Slick stated that he was never at any time under any impression that Ms. Reinecker was seeking payment for her services and that the only time the subject of money came up was when he and his wife offered a gift of $5,000 to Ms. Reinecker on October 23, 2001, after State Farm had finally settled the claim. Q And you understood at that point in 1999 that she was not seeking any payment from you for handling the MAIF claim or the PIP claim, is that right?

A 7 was under the impression the whole time that she was not seeking any payments of any kind at any point. ³²⁹ Q lam just talking about October of '99, when you were talking about the gift? A Yes. Q Okay. At some point did you offer to pay her?

A We offered her a gift of $5,000. I believe it was on the 23rd of October, 2001. (Emphasis supplied). The Trial Judge’s Rulings Ms. Reinecker claimed that, with respect to her representation of Slick following her move to New Jersey, she had an express oral contract with Slick for a contingency fee of between 30% and 40% of the gross amount of the ultimate recovery, either by way of settlement or trial.

The trial judge ruled that not only was there no express contract, but that there was not even a contract implied in fact. In this case, the plaintiff contends that, although a written contract setting forth services and a contingency fee was not executed, a contract implied-in-fact exists between the plaintiff and the defendant. A contract implied-in-fact is a “true contract” and “means that the parties had a contract that can be seen in their conduct rather than in an explicit set of words.” Mass Transit Administration v. Granite Construction Co., 57 Md.App. 766, 774 , 471 A.2d 1121 (1984). A contract implied-in-fact relies on a “mutual agreement or consent, and on the intention of the parties; and a meeting of the minds is required.” 17 C.J.S. Contracts § 6(b) at 422.

In the case at hand, it is difficult to ascertain if there was a meeting of the minds between the parties as to the essential elements of the agreement. The plaintiff asserts that she was hired to handle the UIM claim that the defendant was making due to an automobile accident. Plaintiff further claims that the defendant agreed to pay her for her services and that the payment was understood to be a 30-40% contingency fee. On the other hand, the defendant states that the plaintiff volunteered her services and ³³⁰ that there was no agreed upon fee.

Even if the Court were to assume that the plaintiff was correct in contending that there was an express agreement, it would be difficult to infer what the parties intended that agreement to specifically cover. Even after the alleged agreement was made, both parties continued to actively participate in and follow up on the UIM claim. This fact makes it very difficult for the Court to infer that the parties had a meeting of the minds as to what specific services were going to be rendered in return for what specific fee. Therefore, the Court finds that a contract implied-in-fact did not exist between the parties.

(Emphasis supplied). We affirm that ruling. The court ruled in the alternative, however, that there was a contract implied in law. Reserving comment for the moment as to which professional services were encompassed within that contract implied in law, we hold that the evidence was legally sufficient to support a ruling that there was a contract implied in law, at least with respect to those services that were rendered after the late summer of 2000, and that Ms. Reinecker was no longer providing advice free of charge.

In the alternative, the plaintiff argues that a contract implied-in-law existed between the parties. A contract implied-in-law differs from a contract implied-in-fact because it requires no meeting of the minds. A contract implied-in-law is not really a contract at all, “it is simply a rule of law that requires restitution to the plaintiff of something that came into the defendant’s hands but belongs to the plaintiff in some sense.” Mogavero v. Silverstein, 142 Md.App. 259 , 790 A.2d 43 (2002). In this case, it is clear that the Plaintiff did offer some services to the Defendant and that the plaintiff did assist the defendant throughout the insurance process.

Furthermore, it is clear that the defendant either accepted or acquiesced in the services and assistance given by the plaintiff.... The Court finds that the knowledge and experience of the plaintiff were both things that belonged to the plaintiff but that came into the hands of the defendant. ³³¹ Therefore, the Court finds that a contract implied-in-law does exist. (Emphasis supplied). Computing the Amount of Recovery At this point in our review, we are in full accord with the trial judge in his findings 1) that there was no implied-in-fact contract but 2) that there was an implied-in-law contract between Slick and Ms. Reinecker.

We part company, however, with respect to the reckoning of the recoveiy. The first limitation on that recovery we have already discussed, at least indirectly. It is that the only professional services that may be taken into account for recovery purposes are those that were rendered between 1) late July or early August of 2000 (for linguistic convenience, we will call it August 1, 2000) and 2) October 10, 2001, when State Farm offered to pay Slick $80,000. After finding that there was a contract implied in law, the trial court then catalogued a number of services that it believed were compensable under that theory of recovery.

The plaintiff provided to the defendant knowledge of the procedure and law involved in making a UIM claim. Specifically, the plaintiff advised the defendant how to preserve the UIM claim when the MAIF claim was finalized, she advised the defendant to obtain a permanency rating, she provided the defendant with copies of demand letters to mimic, she assisted in negotiating the claim and explained to the defendant about the statutory amount that can be deducted from a subrogation claim. We note, however, that a major part of that assistance was rendered before August 1, 2000, during the time in which Ms. Reinecker was still assisting her neighbor on a purely gratuitous basis and before that time when, she claimed, a professional relationship was created. It could not, therefore, serve as the basis for a proper recovery.

Another limitation on the calculation of the recovery is that it may not be computed on the basis of a contingent ³³² fee in a case where the theory of recovery is that of a contract implied in law. A contingent fee is a contractual arrangement and is not based either on the actual ad hoc value of the services rendered in a particular case or on the actual ad hoc settlement accruing to the client in a particular case. Although Ms. Reinecker claimed that she had a contingent fee arrangement with Slick and was entitled to $33,333.33 as “an amount equal to her customary rate of one-third contingency fee” of the total $100,000 recovery ($20,000 from MAIF plus $80,000 from State Farm), the trial judge found that there was no such contractual relationship and the evidence, we have held, supported that finding. A contract implied in law, by contrast, is simply not a contract at all.

Indeed, even in the case of an actual contract, Maryland Rule of Professional Conduct 1.5(c) prohibits the use of a contingent fee arrangement except in cases of an express contract and where the terms of the fee arrangement are detailed and set out in writing. A fee may be contingent on the outcome of the matter for which the service is rendered, except in a matter in which a contingent fee is prohibited by paragraph (d) or other law. The terms of a contingent fee agreement shall be communicated to the client in writing. The communication shall state the method by which the fee is to be determined, including the percentage or percentages that shall accrue to the lawyer in the event of settlement, trial or appeal, litigation and other expenses to be deducted from the recovery, and whether such expenses are to be deducted before or after the contingent fee is calculated.

Upon conclusion of a contingent fee matter, the lawyer shall provide the client with a written statement stating the outcome of the matter, and, if there is a recovery, showing the remittance to the client and the method of its determination. (Emphasis supplied). See also Attorney Grievance Commission v. Briscoe, 357 Md. 554, 565 , 745 A.2d 1037 (2000). ³³³ Because a contingent fee arrangement is generally something established by contract and not by proof of any particularized value in a specific case, it may not be used as a measure of recovery in a case involving a contract implied in law, because a contract implied in law is not a contract. It is an inappropriate measure, whether applying 100% of an ordinary contingent fee or, as in this case, 50% of an ordinary contingent fee.

The court, however, clearly calculated the award to Ms. Reinecker on the basis of one-half of a customary contingent fee. [T]he Court finds that the defendant gained $13,000 worth of knowledge and services of the plaintiff. This amount is based on the fact that the defendant gained about one half of the services that an attorney would normally provide to a client. If the defendant had gained all of the services an attorney would normally give, he would be required to pay restitution in the amount of those services, which would normally be 30-10%. Since the defendant only gained a,bout one half of the services, he is only required to pay one half of the normal cost of those services.

(Emphasis supplied). This, we hold, the court was not permitted to do in a case such as this, based only on an implied-in-law contract. If 100% of a contractual fee arrangement is an