Background
Five siblings inherited a townhome in Palos Hills, Illinois, from their late mother Evelyn McDunn through a Transfer on Death Instrument. Four siblings sought to sell the property, but defendant Susan McDunn — an attorney and former circuit court judge appearing pro se — refused to consent. In February 2022, the four plaintiffs filed a partition action under the Uniform Partition of Heirs Property Act (755 ILCS 75/1 et seq.).
The litigation proceeded through multiple motions, including challenges to the complaint’s failure to name all siblings as parties, a motion for summary judgment based on an incorrect property index number, and disputes over property valuation. The trial court determined the property’s fair market value and gave defendant an opportunity to buy out the plaintiffs’ interests. After initially missing her buyout deadline, defendant tendered $160,000 to acquire the other siblings’ shares.
Following the buyout, the parties disputed the proper apportionment of attorney fees and expenses under section 12 of the Heirs Property Act. The trial court found defendant liable for 40% of plaintiffs’ attorney fees but awarded her credits, resulting in a net obligation of $2,753.43 to plaintiffs. Defendant appealed the fee apportionment, the denial of her motion to reconsider, and the denial of her motion to strike portions of plaintiffs’ submissions.
The Court’s Holding
The First District affirmed in all respects. The court found no abuse of discretion in the trial court’s apportionment of fees and expenses under section 12 of the Heirs Property Act. The appellate court noted that the trial court had properly considered the totality of circumstances, including defendant’s role in prolonging the litigation through successive procedural challenges, her delayed compliance with the buyout deadline, and the overall equities of the situation.
The court also rejected defendant’s argument that she was entitled to recover her own attorney consultation fees under section 12’s “good and substantial defense” provision. While defendant had raised procedural deficiencies (such as the misidentification of parties and the incorrect PIN), the court found these did not constitute the kind of substantive defense contemplated by the statute that would shift fees in defendant’s favor. The court further found the motion to strike was either moot or not an abuse of discretion.
Key Takeaways
- Under the Uniform Partition of Heirs Property Act, section 12’s fee-shifting provision requires a “good and substantial defense” to the underlying partition claim — purely procedural challenges to complaint form do not qualify.
- Trial courts retain broad discretion in apportioning fees in partition actions, and appellate courts will not disturb these decisions absent clear abuse.
- A party who delays resolution of a partition action through successive procedural motions may be assessed a greater share of the opposing parties’ attorney fees.
Why It Matters
This opinion provides guidance on the fee-apportionment framework under the Heirs Property Act, which Illinois adopted to protect families holding inherited real property as tenants in common. The decision makes clear that while a co-tenant has the right to resist partition, mounting purely procedural challenges that delay resolution without substantively addressing the merits may result in an unfavorable fee allocation. For practitioners handling partition disputes involving family-owned property, the case underscores the importance of raising substantive defenses — not just technical pleading objections — to preserve fee-shifting rights under section 12.