Schwechter v. SchwechterSchwechter v. Schwechter
delivered the opinion of the court:
On Nоvember 21, 1983, judgment by confession was entered against Loren Schwechter, in the amount of $177,606.59. The judgment was entered in favor of Loren’s father and mother, Arnold and Ruth Schwechter. On February 17, 1984, Lori B. Schwechter, wife of Loren Schwechter, filed a petition to intervene pursuant to sеctions 2 — 408(a)(2) and (3), or, alternatively, pursuant to section 2 — 408(b)(2) of the Illinois Code of Civil Procedure. (Ill. Rev. Stat. 1983, ch. 110, pars. 2 — 408(a)(2), (3), and 2 — 408(b)(2).) The trial court denied that petition on May 29,1984. Lori Schwechter appeals from that denial.
As this matter is resolved by questions of law dealing with the pleаdings, we will recite only those facts necessary to an understanding of the disposition of this case.
In this court, petitioner contends that the trial court erred in denying her petition to intervene. Since the trial court did not articulate a basis for its denial of Lori Schwechtеr’s petition, we will address all of the arguments of both petitioner and plaintiffs, bearing in mind that a reviewing court will affirm a judgment upon any legal grounds which have support in the record. Schwarze v. Solo Cup Co. (1983),
Petitioner argues that she should have been granted leave to intervene as a matter of right. In determining whether to grant a petition to intervene as a matter of right, a trial court’s discretion is limited to determining timeliness, inadequacy of representation by parties already in the suit, and whether the party seeking to intervene has a sufficient interest in the suit. City of Chicago v. John Hancock Mutual Life Insurance Co. (1984),
Whether intervention is sought as a matter of right or by leave of court, the petition must be timely filed. (In re Application of County Treasurer (1983),
Petitioner first alleged in her motion to reconsider that she did not know of the suit until after judgment. She alleged that she filed her petition to intervene within 40 days after disсovering the existence of the law suit. In Avery v. Garbutt (1974),
Plaintiffs argue that even if petitioner was unaware of the suit until after judgment wаs entered, petitioner should have anticipated such a judgment. We find plaintiffs’ argument to be unpersuasive. There was nothing to put petitioner on notice that such a suit was pending or would be brought by plaintiffs. Plaintiffs’ citation to Kendrick v. Standard Oil Co. (1967),
Plaintiffs also argue that petitioner was not diligent in pursuing her petition since she failed to appear for the original hearing on her petition. In response, petitioner asserts in her reply brief that she should not be penalized for her attorney’s failure to appear, and that, in fact, she dismissed that attorney for such failure. We have found no cases where the court considered a party’s diligence on the basis of actions which occurred after the petition to intervene was filed. As a result, we conclude that timeliness is to be gauged by how diligent the petitioner was in filing the petition, not in bringing the issue to resolution, and that, therefore, under the circumstances of this case, the petitioner was diligent and the petition wаs timely filed.
In order to show inadequacy of representation such that a party may intervene as a matter of right, the interests of the present parties are to be compared to the interests of the party seeking to intervene. (City of Chicago v. John Hancock Mutual Life Insurance Co. (1984),
Finally, in considering whether petitioner had sufficient interest in the suit, section 2 — 408 of the Code of Civil Procedure (Ill. Rev. Stat. 1983, ch. 110, par. 2 — 408) requires only that a party will or may be bound by the judgment. It has beеn held to be sufficient if the party has an enforceable right or will suffer a tangible detriment (City of Chicago v. John Hancock Mutual Life Insurance Co. (1984),
A trial court cannot act to fulfill the purpose of the intervention statute unless the requirements of the statute are met. (People ex rel. Scott v. Illinois Protestant Children’s Home, Inc. (1981),
Here, we believe petitioner proved the existence of a common question of law and fact, i.e., her husband’s liability to plaintiffs on the alleged notes. This liability would substantially diminish the marital estate in the divorce proceedings and, thus, petitioner had an enforceable right in the subjeсt matter of plaintiffs’ suit against her husband. Additionally, as discussed earlier in this opinion, petitioner’s petition was timely filed as also required for permissive intervention. Thus, the trial court could not have properly denied the petition to intervene based on petitioner’s failure to fulfill any of these requirements.
Plaintiffs also advance another basis on which they assert the trial court could properly have denied the petition. They argue that petitioner
Cоnversely, petitioner contends that it was enough to file the motion to open the judgment by confession since she was only required to present her initial pleading. She argues that until the petition to intervene was granted, there was no need to present a verified аnswer to be filed with the motion. Petitioner cites no law to support this proposition. However, in Turner v. Smiley (1972),
As to plaintiffs’ second challenge regarding the noncompliance of petitioner’s affidavit, we reject outright plaintiffs’ claim that testimony given by petitioner at a deposition indicates that statements in the affidavit were not within petitioner’s persоnal knowledge. Petitioner’s testimony at the deposition established only that petitioner had no knowledge of any loans made by plaintiffs; but her testimony was not inconsistent with her statements in the affidavit regarding knowledge of plaintiffs’ gifts of money to petitioner and her husband.
Plaintiffs also argue that in her affidavit petitioner relied on a security loan document, but did not attach a certified copy, as required by Supreme Court Rule 191 (87 Ill. 2d R. 191). Failure to attach a certified copy of all papers on which the affiant relied was labeled a “tеchnical” defect in Burkett v. Finger Lake Development
Finally, we consider petitioner’s argument that she had no avenue other than intervention for protecting her rights. We do not agree with this contention. The Illinois Supreme Court in Hofmann v. Hofmann (1983),
Subsequent to the filing of the briefs in this case, petitioner filed a motion for leave to supplement the record with the September 18, 1985, opinion letter of the presiding judge in the marital dissolution proceedings. We ordered the mоtion and plaintiffs’ objection to the motion to be taken with the case. In her motion petitioner contends that the opinion letter is relevant to this appeal because the trial court specifically found that the notes used as evidence of the loans to petitioner’s husband by his parents were the subject of a scheme between the husband and his parents to dissipate the marital estate. We believe the opinion letter is relevant, but for a different reason than petitioner purports.
The apparеnt purpose of petitioner’s petition to intervene was to prevent her husband from depriving her of a fair and equitable share of the parties’ marital estate, in particular, the marital residence and
As long as another case, the dissolution proceeding, was pending which dealt with the subject matter of intervenor’s petition, thereby, рroviding petitioner with another remedy, we believe the trial court’s denial of the petition was correct. Nevertheless, pursuant to the power granted to us by Supreme Court Rule 366(aX5) (87 Ill. 2d R. 366(aX5)), we remand this cause with directions that the instant action be consolidated with the divorce proceedings for the purpose of guaranteeing petitioner’s rights in the marital estate.
In light of the above, the judgment of the circuit court of Lake County is affirmed, but remanded in accordance with this opinion. The motion ordered taken with the case is granted.
Affirmed and remanded with directions.