Civil Procedure: When defendant dies, then claim must be revived, or else the claim dies too

Failure to revive a cause of action when the defendant dies is fatal to the claim if not accomplished timely.  Plaintiff's attempt to color this as a fiction and assert the claim against the insurance company as the real party in interest, fell on deaf ears at the Court of Appeals.

 1045.  ATTORNEY FEES.  CONTRACT VS. QUANTUM MERUIT UPON VOLUNTARY WITHDRAWING.
BRADLEY (SAM), ET AL.
VS.
ESTATE OF HERMAN LESTER
OPINION VACATING AND REMANDING
ACREE (PRESIDING JUDGE)
DIXON (CONCURS) AND LAMBERT (CONCURS)
2009-CA-002157-MR
TO BE PUBLISHED
FLOYD

ACREE, JUDGE: Appellants appeal the Floyd Circuit Court’s order awarding attorney fees to the Appellee, the Estate of Herman Lester. Specifically, the question presented is whether an attorney who withdraws from representation is entitled to recover his fee pursuant to the original contingency fee agreement, or limited to recovery on a quantum meruit basis. Upon the facts before us, we find quantum meruit is the proper calculation of fees. Therefore, we vacate the order of the Floyd Circuit Court and remand for additional proceedings.