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Chicago v. J. Hancock Mut. Life Ins. Co.

OPINION FILED AUGUST 17, 1984.

THE CITY OF CHICAGO, PLAINTIFF,

v.

JOHN HANCOCK MUTUAL LIFE INSURANCE COMPANY ET AL., DEFENDANTS-APPELLEES (JOAN P. WHITMER, INTERVENING PLAINTIFF-APPELLANT).



Appeal from the Circuit Court of Cook County; the Hon. Simon S. Porter, Judge, presiding.

JUSTICE LORENZ DELIVERED THE OPINION OF THE COURT:

JUSTICE LORENZ delivered the opinion of the court:

Petitioner Joan Whitmer appeals from an order denying her petition to intervene in this action for building code violations brought by the city of Chicago against owners and operators of the John Hancock Center. Petitioner challenges the trial court's finding that her interests will be adequately represented, and claims that denial of her petition was an abuse of discretion. The following facts are pertinent to our disposition.

Plaintiff city of Chicago (city) filed its complaint on July 22, 1983, and alleged that defendants, John Hancock Mutual Life Insurance Company, Sudler & Company, and Homeowners Association (hereinafter Condominium Association) failed to provide sufficient ventilation as required by the Municipal Code. Plaintiff seeks fines, injunctive relief, the appointment of a receiver and an order of demolition. Petitioner appeared at the first hearing in the case on August 16, 1983, and presented her petition to intervene along with her complaint. Petitioner alleges that she is a condominium owner in the Hancock Center and that her health, safety and property interests will be affected by the outcome of the case; she seeks declaratory and injunctive relief.

Although the city did not actively oppose the petition, the assistant corporation counsel posited at a hearing on September 13, 1983, that the city adequately represented the health and safety interests of its citizens. Defendants opposed the petition, arguing that petitioner's property interest would be adequately represented by the Condominium Association and that intervention would unduly delay proceedings. Petitioner maintained that the city would not represent her particular health and safety interest and had failed to pursue discovery. She argued that the Condominium Association could not represent her because the association denied the existence of a violation whereas she sought to have the violation corrected. Petitioner stated that she would be prepared to go to trial on the date set, October 11, 1983.

The trial court denied the petition and stated that petitioner's rights would be adequately represented by the city and by the Condominium Association. Petitioner appeals.

OPINION

• 1 Section 2-408 of the Code of Civil Procedure provides in pertinent part:

"(a) Upon timely application anyone shall be permitted as of right to intervene in an action: * * * (2) when the representation of the applicant's interest by existing parties is or may be inadequate and the applicant will or may be bound by an order or judgment in the action * * *.

(b) Upon timely application anyone may in the discretion of the court be permitted to intervene in an action: * * * (2) when an applicant's claim or defense and the main action have a question of law or fact in common." (Ill. Rev. Stat. 1983, ch. 110, pars. 2-408(a)(2), 2-408(b)(2).)

Intervention statutes are remedial in nature and should be construed liberally "to allow a person to protect an interest jeopardized by pending litigation to which he is not a party or to avoid relitigation in another suit of issues which are being litigated in a pending suit." Ill. Ann. Stat., ch. 110, par. 2-408, Joint Committee Comments, at 462 (Smith-Hurd 1983); Bredberg v. City of Wheaton (1962), 24 Ill.2d 612, 623, 182 N.E.2d 742.

• 2 Although courts> have noted generally that intervention is committed to the sound discretion of the trial court (e.g., University Square, Ltd. v. City of Chicago (1979), 73 Ill. App.3d 872, 877, 392 N.E.2d 136), we believe that intervention as of right should be distinguished from permissive intervention insofar as the exercise of discretion is concerned. The statute establishes a minimal "commonality" requirement for permissive intervention, and expressly commits the decision whether to allow intervention or not to "the discretion of the court." (Ill. Rev. Stat. 1983, ch. 110, par. 2-408(b).) With respect to intervention as of right, however, the statute directs that a person "shall be permitted as of right to intervene" upon certain conditions. (Ill. Rev. Stat. 1983, ch. 110, par. 2-408(a).) We believe that the trial court's discretion is limited to determining timeliness, inadequacy of representation and sufficiency of interest; once these threshold requirements have been met, the plain meaning of the statute directs that the petition be granted.

• 3 The instant petition was filed within weeks of the commencement of the action, at the first hearing in the matter, and was timely beyond any doubt. We find little merit in defendants' contention that allowing petitioner to intervene would delay proceedings. The trial court is given broad power under the statute to prevent intervention from hampering or delaying the litigation (see Ill. Rev. Stat. 1983, ch. 110, par. 2-408(f)), and the record indicates that petitioner undertook diligent efforts to avoid delay, such as attending depositions, filing interrogatories and expediting disposition of the petition.

• 4 Further, we reject defendants' argument that the denial of the petition was warranted because petitioner would not be bound by the final judgment in this action. Section 2-408 requires only that a party seeking to intervene "will or may be bound" (emphasis added) (Ill. Rev. Stat. 1983, ch. 110, par. 2-408(a)(2)), and it is settled that an enforceable right or tangible detriment fulfills the requirement. (See Adams v. County of Cook (1980), 86 Ill. App.3d 68, 69-72, 407 N.E.2d 1018; Ill. Ann. Stat., ch. 110, par. 2-408, Joint Committee Comments, at 463 (Smith-Hurd 1983).) In City of Chicago v. Zik (1965), 63 Ill. App.2d 445, 211 N.E.2d 545, this court reversed the denial of intervention in an action for building code violations and held that applicants' leasehold interests justified intervention as of right. By comparison, petitioner's ownership interest in the subject building is even more ...


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