                                                    NO. 5-10-0128
                   NOTICE

 Decision filed 02/14/11. The text of
                                                       IN THE
 this decision may be changed or

 corrected prior to the filing of a
                                            APPELLATE COURT OF ILLINOIS
 Peti tion   for    Rehearing   or   th e

 disposition of the same.
                                                  FIFTH DISTRICT


CHARLES G. BARGMAN, NORMA J.                                        )   Appeal from the
BAUGHMAN, ELLA MAE W ILSON, as                                      )   Circuit Court of
Trustee of the Ella M ae Wilson Living Trust,                       )   Randolph County.
and WILLARD D. WILSON,                                              )
                                                                    )
             Plaintiffs,                                            )
                                                                    )
and                                                                 )
                                                                    )
JOHN F. BARGMAN,                                                    )
                                                                    )
             Plaintiff-Appellant,                                   )
                                                                    )
v.                                                                  )   No. 07-CH-42
                                                                    )
MARLIN RAY WILSON and                                               )
TERESA WILSON,                                                      )   Honorable
                                                                    )   Dennis B. Doyle,
             Defendants-Appellees.                                  )   Judge, presiding.


             JUSTICE WEXSTTEN delivered the judgment of the court, with opinion.
             Justices Goldenhersh and Donovan concurred in the judgment and opinion.

                                                    OPINION

             This action is one for the partition of land owned by the plaintiffs–John F. Bargman,

Charles G. Bargman, Norma J. Baughman, Ella Mae Wilson, as the trustee of the Ella Mae

Wilson Living Trust, and Willard D. Wilson, and the defendants–Marlin Ray Wilson and

Teresa Wilson. The parties do not dispute the partition of the land but only the award of

attorney fees pursuant to section 17-125 of the Code of Civil Procedure (the Code) (735

ILCS 5/17-125 (West 2006)). We affirm.

                                                       FACTS

             On June 25, 2007, the plaintiffs, through their attorneys, Arbeiter & Walker (attorney

                                                         1
Arbeiter), filed a complaint for the partition of real estate that they owned as tenants in

common with the defendants. Marlin was in possession of the tillable farmland on the real

estate pursuant to an oral annual farm lease. On October 9, 2007, the plaintiffs filed a

motion for a summary judgment.

       On November 21, 2007, attorney Arbeiter filed a motion to withdraw as John's

attorney of record, and the circuit court granted attorney Arbeiter's motion on December 4,

2007. On December 10, 2007, Otto J. Faulbaum (attorney Faulbaum) entered his appearance

as John's attorney.

       On February 26, 2008, the circuit court granted the plaintiffs' motion for a summary

judgment and entered an order for a partition. In the order for the partition, the court noted

that all the parties had been duly joined and were properly before the court. On April 4,

2008, the circuit court appointed a commissioner to fairly and impartially partition the

premises, and on June 12, 2008, the commissioner filed his report.

       On September 9, 2008, John, through attorney Faulbaum, filed a motion for a sale by

a licensed auctioneer, a motion to sever the mineral rights, and a motion to adjudicate the

farm tenancy rights. On October 23, 2008, the other four plaintiffs, through attorney

Arbeiter, filed a motion to adjudicate the farm tenancy rights.

       On March 11, 2009, the circuit court denied John's motion for a sale by a licensed

auctioneer but ordered that the oil and gas interests in the real estate were considered severed

from the fee title and were not subject to a sale or partition in the action. The circuit court

ordered that Marlin's farm tenancy would terminate immediately upon the harvest. The

circuit court further ordered a public sale of the property. On May 4, 2009, the sheriff of

Randolph County filed a report of sale, representing that Marlin and Teresa had purchased

the property.

       On May 5, 2009, Charles, Norma, Ella Mae, and Willard, through attorney Arbeiter,


                                               2
filed a petition for an apportionment of attorney fees and costs. Attorney Arbeiter attached

his itemization of legal services, demonstrating he had expended 77.05 hours at $150 an

hour, totaling $11,557.50, in addition to an itemization of court costs totaling $960.

       On May 6, 2009, John, through attorney Faulbaum, filed a petition for an

apportionment of attorney fees and attached an itemization of attorney fees, demonstrating

that attorney Faulbaum had expended 70.22 hours at $200 an hour, totaling $14,044 in legal

services, in addition to $30.85 in additional costs.         In an amended petition for an

apportionment of attorney fees and costs, John valued attorney Faulbaum's legal services at

$17,614 and additional costs at $30.85.

       On June 1, 2009, the defendants' attorneys, Neubauer and AuBuchon, filed a petition

for an apportionment of attorney fees. Neubauer and AuBuchon attached to its petition an

itemization of expenses and costs, the value of which was $13,425.

       After a hearing, in an order entered on June 4, 2009, the circuit court denied the

requests for an apportionment of the fees and costs of attorneys Faulbaum and Neubauer.

The court determined as follows: "[N]either John *** nor Marlin *** and Teresa ***

interposed any good and substantial defense to the allegations and request for relief in the

partition action; therefore, only the attorney's fees of [attorney] Arbeiter in the amount of

$11,557.50 and the costs he incurred in the amount of $960.60 *** shall be allowed."

       On June 16, 2009, John, through attorney Faulbaum, filed a motion to reconsider,

attaching an affidavit executed by attorney Arbeiter. In his affidavit, attorney Arbeiter stated

that since attorney Faulbaum had entered his appearance in December 2007, he had worked

closely with him in addressing many legal issues integral to the litigation and had

coordinated with attorney Faulbaum all the activities on behalf of the other four plaintiffs.

Attorney Arbeiter stated that on many occasions, attorney Faulbaum took the lead in

preparing pleadings or other documents necessary to advance the partition action. Attorney


                                               3
Arbeiter stated that at the outset of the representation, he and attorney Faulbaum had

determined that their clients' objectives were fully aligned and that their respective legal

work would mutually benefit the clients. Attorney Arbeiter stated that he had reviewed

pleadings and documents that attorney Faulbaum had prepared and that he had determined

that, in almost every instance, his work properly asserted the identical position of all the

plaintiffs and, therefore, the work stood for all the plaintiffs. Attorney Arbeiter stated that

had attorney Faulbaum not taken the lead and provided those services, his own charges for

professional services would have been significantly greater.

       On February 16, 2010, the circuit court denied John's motion to reconsider. On

March 16, 2010, John filed a timely notice of appeal.

                                          ANALYSIS

       John argues that because he was joined with the other plaintiffs when the petition was

filed and because his attorney, along with the other plaintiffs' attorney, acted for the benefit

of all the parties in the partition action, the circuit court improperly denied his request to

apportion the fees flowing from his attorney's representation to all the parties pursuant to

section 17-125 of the Code (735 ILCS 5/17-125 (West 2006)).

       In a partition action, the defendants, as well as the plaintiffs, benefit from the division

of the property. Bailey v. Bailey, 150 Ill. App. 3d 81, 88 (1986). Accordingly, Illinois

authorizes, pursuant to statute, an award of attorney fees based upon the premise that the

plaintiffs' attorney acts for all the parties having an interest in the property subject to

partition. Clayton v. Bradford National Bank, 250 Ill. App. 3d 775, 777 (1993); Lane v.

Budiselich, 17 Ill. App. 3d 914, 916 (1974).

       Specifically, section 17-125 of the Code provides as follows:

       "In all proceedings for the partition of real estate, when the rights and interests of all

       the parties in interest are properly set forth in the complaint, the court shall apportion


                                                4
          the costs among the parties in interest in the action, including the necessary expense

          of procuring such evidence of title to the real estate as is usual and customary for

          making sales of real estate, and a reasonable fee for plaintiff's attorney, so that each

          party shall pay his or her equitable portion thereof, unless the defendants, or some of

          them, interpose a good and substantial defense to the complaint. In such case the

          party or parties making such substantial defense shall recover their costs against the

          plaintiff according to justice and equity." 735 ILCS 5/17-125 (West 2006).

          Attorney fees may be awarded to the party whose attorney first sets forth the rights

and interests of all the parties. Cf. Clayton, 250 Ill. App. 3d at 783 (the counterplaintiff was

entitled to an apportionment of attorney fees for being the first party to properly set forth the

rights and interests of the parties in the property to be partitioned); see also Herrman v.

Golden, 93 Ill. App. 3d 937, 939-40 (1981). To establish a right to an apportionment of

attorney fees, the "plaintiff owes defendant a duty to establish the right to partition, to join

all necessary parties as defendants, and to set forth the interests of all parties properly."

Clayton, 250 Ill. App. 3d at 777.

          Where the complaint fairly and honestly represents the interests of all the parties and

those interests are properly set forth, there is no necessity for the defendant to employ

counsel to protect his interest in the land, although he may elect to do so and pay his own

counsel. Bailey, 150 Ill. App. 3d at 88; Lane, 17 Ill. App. 3d at 916. "The existence of

personal animosity or other differences as between the parties and difficulties with reference

to the appointment of a receiver or an accounting or other collateral issues does not translate

to an adversary proceeding." Lane, 17 Ill. App. 3d at 916-17. Where it is not necessary for

the defendants, or any of them, to employ additional counsel to protect their interests in the

land, an award of the plaintiff's attorney fees is appropriate. See Clayton, 250 Ill. App. 3d

at 777.


                                                 5
       "When the rights and interests of all parties in interest are not properly set forth in the

complaint or where defendants interpose a good and substantial defense to the complaint,

thereby necessitating their employment of counsel, apportionment of plaintiff's attorney fees

is not appropriate." Clayton, 250 Ill. App. 3d at 777. "Where defendants interpose a

substantial defense in good faith, it is sufficient to preclude apportionment of plaintiff's

attorney fees, even if that defense is not sustained in either the trial court or the reviewing

court." Clayton, 250 Ill. App. 3d at 777. "The allowance of attorney fees as apportioned

costs is largely a matter resting in the discretion of the trial court." Clayton, 250 Ill. App.

3d at 784.

       In the present case, the parties do not dispute that the circuit court properly awarded

fees to attorney Arbeiter, the plaintiffs' attorney who filed the complaint for the partition,

accurately and sufficiently establishing the right to a partition, joining all the necessary

parties and setting forth the parties' rights and interests in the action, and who fairly and

honestly represented the interests of all the parties seeking the partition. See Clayton, 250

Ill. App. 3d at 777; Bailey, 150 Ill. App. 3d at 88; Herrman, 93 Ill. App. 3d at 940. The

award of attorney Arbeiter's fees was appropriate because it was unnecessary for the

defendants to employ counsel to protect their interests in the land. Cf. Clayton, 250 Ill. App.

3d at 782 (because the plaintiff failed to set forth the defendant's right to the reconveyance

of a portion of the premises, it was necessary for the defendant to employ counsel, and an

apportionment of the plaintiff's attorney fees was not appropriate).

       Attorney Arbeiter filed the petition for the partition and a motion for a summary

judgment before he filed a motion to withdraw as John's attorney. When attorney Arbeiter

withdrew as John's counsel, John's posture became similar to that of the defendants', i.e.,

attorney Arbeiter, as the plaintiffs' attorney, acted for John, who remained a party having an

interest in the property subject to partition. See Clayton, 250 Ill. App. 3d at 777; Lane, 17


                                                6
Ill. App. 3d at 916 (the plaintiff's attorney acts for all the parties having interest in the

property subject to a partition). After John secured attorney Faulbaum as counsel, he did not

file any pleadings prior to the circuit court's decision to grant a summary judgment on the

partition action. Although John was certainly within his rights to employ additional counsel,

his decision to do so would not have justified a refusal by the circuit court to apportion

attorney Arbeiter's fees. See Lane, 17 Ill. App. 3d at 916. Nor would his decision alone

have justified the apportionment of the fees of attorney Faulbaum, whom John at no time

asserted any necessary basis for his decision to retain. Indeed, attorney Arbeiter stated in his

affidavit that at the outset of attorney Faulbaum's representation of John, he and attorney

Faulbaum determined that their clients' objectives were fully aligned, and John acknowledges

that the defendants admitted the allegations of the complaint and did not interpose a defense

to the partition action. Because it was unnecessary for John to employ additional counsel

to protect his interests in the partition action (see Clayton, 250 Ill. App. 3d at 777), we

cannot say that the circuit court's decision to deny John's request to apportion the fees of his

retained counsel was an abuse of discretion. See Clayton, 250 Ill. App. 3d at 784.

       In sum, where the plaintiffs' attorney files a petition for a partition properly setting

forth the rights and interests of the parties and fairly and honestly represents the interests of

all the parties, there is no necessity for the defendants or for one of the plaintiffs to

subsequently employ separate counsel. If, notwithstanding the lack of a necessity for it, the

defendants, or a plaintiff, should decide to employ separate counsel, we see no hardship in

the requirement that they pay the counsel so employed by them, in addition to their

proportion of the fee of the attorney who filed the sufficient petition for a partition and fairly

and honestly represented the interests of all the parties seeking the partition.

                                        CONCLUSION

       For the foregoing reasons, we affirm the judgment of the circuit court of Randolph


                                                7
County.



      Affirmed.




                  8
                                           NO. 5-10-0128

                                              IN THE

                                APPELLATE COURT OF ILLINOIS

                                  FIFTH DISTRICT
___________________________________________________________________________________

      CHARLES G. BARGMAN, NORMA J.                )     Appeal from the
      BAUGHMAN, ELLA MAE W ILSON, as              )     Circuit Court of
      Trustee of the Ella M ae Wilson Living Trust,
                                                  )     Randolph County.
      and WILLARD D. WILSON,                      )
                                                  )
           Plaintiffs,                            )
                                                  )
      and                                         )
                                                  )
      JOHN F. BARGMAN,                            )
                                                  )
           Plaintiff-Appellant,                   )
                                                  )
      v.                                          )     No. 07-CH-42
                                                  )
      MARLIN RAY WILSON and                       )
      TERESA WILSON,                              )     Honorable
                                                  )     Dennis B. Doyle,
           Defendants-Appellees.                  )     Judge, presiding.
___________________________________________________________________________________

Opinion Filed:        February 14, 2011
___________________________________________________________________________________

Justices:          Honorable James M. Wexstten, J.

                 Honorable Richard P. Goldenhersh, J., and
                 Honorable James K. Donovan, J.,
                 Concur
___________________________________________________________________________________

Attorney         Richard W. Thompson, 120 West Main Street, Suite 116, Belleville, IL 62220-
for              0380
Appellant
___________________________________________________________________________________

Attorney         Julie Keehner Katz, Cannady & Katz, P.C., 1931 W est Main Street, Belleville, IL
for              62226
Appellees
___________________________________________________________________________________
