McDunn v. McDunn
Key Takeaways
- 1 Under the Heirs Property Act, courts may apportion co-owner's attorney fees even where substantial defenses were raised.
- 2 Only defenses affecting parties' property interests—not technical pleading defects—qualify as 'good and substantial' under section 12.
- 3 Relevant for real estate and estate attorneys handling partition actions among co-inheriting family members under the Illinois Heirs Property Act.
Summary
Five siblings inherited a Palos Hills townhome through a Transfer on Death Instrument. Four sought partition by sale under the Illinois Uniform Partition of Heirs Property Act (755 ILCS 75/1 et seq.); the fifth, Susan McDunn, opposed the sale. The dispute was resolved when Susan purchased her siblings' interests for $160,000. The Cook County circuit court then apportioned attorney fees and costs under section 12 of the Act, ordering Susan to bear 40% of plaintiffs' $19,110 in attorney fees while awarding her only $1,500 of the $5,256.25 she sought for her own outside counsel. Susan appealed pro se, challenging the fee apportionment, the reasonableness of plaintiffs' fees, her limited fee award, denial of credits for lost profits and a tax refund, and denial of her motion to strike disparaging language from plaintiffs' filings.
The appellate court affirmed all rulings, holding that abuse of discretion is the proper standard of review under section 12's 'just and equitable' language. The court found no abuse of discretion in the 40% apportionment, noting that section 12 contains no language shielding a party from fee liability merely because she contested the action. The court further held that Susan's defenses—pointing out mislabeled parties, an uncited statute, and a scrivener's error in the property PIN—were purely technical and did not qualify as 'good and substantial defenses' under section 12, which requires defenses that actually affect the parties' interests in the property.
For practitioners, this decision clarifies that vigorous but technically-focused opposition in heirs property partition cases will not insulate a co-owner from fee apportionment, and that incomplete appellate records and Rule 341(h)(7) briefing failures will independently doom an appeal.
Key Holdings
1. Abuse of discretion is the proper standard of review for a trial court's apportionment of costs and attorney fees under section 12 of the Illinois Uniform Partition of Heirs Property Act, which directs apportionment 'as the court deems just and equitable.'
2. Section 12 of the Heirs Property Act contains no language precluding apportionment of a party's attorney fees to an opposing co-owner merely because that co-owner raised contested defenses; the court retains broad discretion to apportion fees as just and equitable.
3. A 'good and substantial defense' under section 12 must be one that potentially affects the parties' interests in the property—such as a defense disputing title or ownership shares—not a purely technical pleading defect that leaves the parties' respective interests undisturbed.
4. An appellant's failure to cite record support for claimed credits or damages, as required by Illinois Supreme Court Rule 341(h)(7), is an independent basis for the appellate court to reject those arguments without reaching the merits.