Black v. Black , 2024 IL App (1st) 221667 ( 2024 )

2024 IL App (1st) 221667SIXTH DIVISION
February 9 , 2024
No. 1-22-1667
IN THE
APPELLATE COURT OF ILLINOIS
FIRST DISTRICT
BERNARD BLACK and SAMUEL BLACK, as) Appeal from the Circuit Court
Trustees of the Trust for the Benefit of the Issue ) of Cook County.
of Renata Black, )
)
Plaintiffs-Appellants, )
)
v. ) No. 2021 CH 02952
)
DAVID H. BLACK, BENJAMIN H. BLACK, ) The Honorable
SAMUEL H. BLACK, SARAH H. BLACK, ) Michael T. Mullen,
REBEKAH H. BLACK, DANIEL L. BLACK, ) Judge, presiding.
JACOB L. BLACK, and BERNARD BLACK, as)
Beneficiaries of the Trust for the Benefit of the )
Issue of Renata Black, )
)
Defendants. )
)
(Jeanette Goodwin, as Court-Appointed )
Successor Conservator for Joanne Black, and )
Anthony Dain as Trustee for the Supplemental )
Needs Trust for the Benefit of Joanne Black, )
dated December 19, 1997, )
Intervenors-Appellees). )
PRESIDING JUSTICE ODEN JOHNSON delivered the judgment of the court,
with opinion.
Justices Hyman and Tailor concurred in the judgment and opinion.
OPINION
No. 1-22-1667
¶1 The underlying controversy in this case concerns a family dispute over the estate of
Renata Black 1 , who is the mother of plaintiff Bernard Black and the grandmother of plaintiff
Samuel Black. This dispute has generated a number of other cases, including several in our
state. Various family members are fighting over Renata’s estate and over the money in trusts
that she established.
¶2 However, the principal issue in this appeal concerns the much more limited question of
when the intervenors and their attorney first learned of the judgment previously entered in this
case. This prior judgment was a summary judgment for plaintiffs, entered on October 4, 2021.
Seven months later, on May 27, 2022, the intervenors filed their petition, pursuant to section
2-1401 of the Code of Civil Procedure (Code) (735 ILCS 5/2-1401 (West 2022)), seeking to
vacate the October 4, 2021, judgment.
¶3 On October 14, 2022, the same trial judge—who had previously issued the summary
judgment order—held an evidentiary hearing regarding the intervenors’ petition. The judge
observed that it was “undisputed that there was no effort to alert the proposed intervenors to
the existence of this case at any time prior to October 4th, 2021,” which was the date that
summary judgment had been entered. Plaintiffs argued that the intervenors had notice on
November 2, 2021, as well as on December 29, 2021, while the intervenors asserted that they
first learned of this case on March 2, 2022. After hearing the attorneys for both sides testify as
witnesses, the trial court found that “the proposed intervenors did not have actual [n]otice of
the existence of this case, nor the judgment in this case, until March 2nd, 2022.” After making
this factual finding, the trial court asked if the parties wanted a further evidentiary hearing on
1
Since a number of people involved in this dispute share the last name of “Black,” we will
mention them once with their full names and refer to them thereafter by their first names.
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No. 1-22-1667
the issue of whether the intervenors were necessary parties, and neither side did. The court then
found that the intervenors were necessary parties and vacated the prior judgment. Plaintiffs
filed a notice of appeal 2 on November 3, 2022, and this appeal followed. For the following
reasons, we affirm.
¶4 BACKGROUND
¶5 I. The Complaint
¶6 On June 17, 2021, plaintiffs filed a complaint for declaratory judgment and other relief,
that made the following factual allegations:
¶7 Bernard and Joanne Black are siblings and the only children of Renata. During most of
her life, Joanne has suffered from severe mental illness. In 1997, Renata’s will provided for
her estate to be divided between two trusts, with two-thirds of her estate going to a
“Supplemental Needs Trust” (SNT) for Joanne’s benefit and one-third going to the “Issue
Trust” for the benefit of Bernard and his children. Bernard was named executor.
¶8 The bulk of Renata’s assets consisted of several investment accounts with Vanguard
that, at the time of Renata’s death in 2012, were worth approximately $3 million. The
complaint states that, “[s]hortly after Renata’s death, it was discovered that shortly before she
died, the ‘payable on death’ (‘POD’) beneficiary designation on her principal Vanguard
accounts was changed to make Joanne the beneficiary of 95% of these accounts, with the
remaining 5% going to Bernard’s five older children *** (the ‘POD Designations’).” 3
2
The notice of appeal states that the trial court’s order occurred on October 17, 2022. Several days
after the trial court’s oral pronouncement from the bench, it issued a short written order on October 17,
2022. The oral pronouncement is the controlling order of the court. See In re Mar. S., 2023 IL App (1st)
231349, ¶ 37.
3
The complaint uses the word “shortly,” without alleging when, and the phrase “it was
discovered,” without alleging who discovered.
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¶9 If effective, the POD change would convey 95% of the funds directly to Joanne, leaving
both the SNT and the Issue Trust with a small fraction of the money. Bernard and other
unnamed family members decided that “the most effective way to protect Joanne against
Joanne’s own incapacity and mental issues” and “to implement Renata’s long-standing estate
plan” was for all the POD beneficiaries “to disclaim their entitlement to receive the Vanguard
account proceeds so that the assets of those accounts could pass through Renata’s estate.” To
further this plan, Bernard petitioned the Denver Probate Court in Colorado, where Joanne was
then residing, to be appointed Joanne’s conservator, and that was done in December 2012. As
conservator, Bernard disclaimed Joanne’s interest in Renata’s Vanguard accounts. The
complaint stated that “Bernard required” his five older children to execute their own
disclaimers, which they did. After the disclaimers were executed, the Vanguard assets went
into Renata’s estate, and her estate was distributed according to her will, with two-thirds going
to the SNT and one-third going to the Issue Trust.
¶ 10 In 2017, the Denver Probate Court appointed Jeanette Goodwin as successor
conservator of Joanne. The complaint alleges that this occurred despite the fact that Joanne
moved to New York and was deemed competent in 2016 by a New York court.
¶ 11 The complaint stated that the point of this lawsuit was to guard against the actions
“threatened” by the people who are now the intervenors in this appeal. The complaint alleged
that “various persons, including [intervenor] Anthony Dain, a relative of the Black family and
a former trustee of the Issue Trust, [intervenor] Goodwin, and Joanne’s court-appointed
counsel, have threatened to take actions to try to have the [Denver Probate Court] declare
[Bernard’s] Disclaimer invalid so that Goodwin can, among other things, try to claw back
assets from the Issue Trust to place them under her control.” As a result, the one-count
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complaint sought a declaratory judgment that the disclaimer executed by Bernard was valid
and irrevocable. 4
¶ 12 II. Summary Judgment
¶ 13 On September 10, 2021, plaintiffs filed both a motion to default all the defendants that
they had named in the case and a motion for summary judgment. The default motion stated
that “[t]he 60-day period for responding to the complaint ha[d] passed for all defendants and
none ha[d] appeared or responded to the complaint.” No response to plaintiffs’ motions appears
in the appellate record. On October 4, 2021, the trial court entered a short one-paragraph
written order granting plaintiffs’ motion for summary judgment against all the then-named
defendants and stating that the disclaimer executed by Bernard on behalf of Joanne was “valid
and irrevocable.” The order noted that the motion for default was withdrawn. The order stated
that it was a final order and directed plaintiffs’ counsel, Earl S. Grayson, to “provide a copy of
this Order to all parties.”
¶ 14 III. The Intervenors’ Petitions
¶ 15 Eight months later, on May 27, 2022, the intervenors, by their counsel Peter Stasiewicz,
filed petitions to intervene and to vacate. The petition to intervene sought leave to intervene as
a matter of right, pursuant to section 2-408(a) (735 ILCS 5/2-408(a) (West 2022)) or, in the
alternative, by permission, pursuant to section 2-408(b)(2) (735 ILCS 5/2-408(b)(2) (West
2022)). The petition to intervene alleged that the intervenors were necessary parties and that
the petition was timely filed because the intervenors first “discover[ed] the existence of this
case” on March 2, 2022. Similarly, the petition to vacate, which was filed pursuant to section
4
The complaint was signed by attorney Brad Grayson, one of the witnesses who would later
testify at the evidentiary hearing from which this appeal was taken.
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No. 1-22-1667
2-1401 (735 ILCS 5/2-1401 (West 2022)), alleged that the judgment was void for failure to
name necessary parties and that there was no undue delay in their filing of the petition since
they did not learn of the case until March 2, 2022. As the trial court later observed, the
timeliness dispute was over a difference of about four months, namely whether the intervenors
learned of the case on March 2, 2022, as they claimed, or four months earlier, on November 2,
2021, as plaintiffs claimed.
¶ 16 After briefing was complete, the trial court held an evidentiary hearing on October 14,
2022. It was a bifurcated proceeding, with the trial court considering first the petition to
intervene and the timeliness issue and considering second the petition to vacate and the
necessary party issue. The intervenors’ counsel, Stasiewicz, testified first, in the form of a 10-
page narrative. No counsel asked him questions to enter his direct testimony. Instead, he
testified to the timeline as he remembered it, and then opposing counsel, Grayson, received an
opportunity to cross-examine him.
¶ 17 Stasiewicz testified that, in a phone call with Grayson on November 1, 2021, the two
attorneys were discussing “numerous other cases related to the same subject matter” that they
were both involved in. At the conclusion of the call, Grayson mentioned that there were two
additional cases: one concerning a loan and “the other one was a declaratory judgment case
relating to, well, the status of a disclaimer that had been made by Bernard Black many years
ago.” However, Grayson “did not provide case captions or case numbers or really any
specifics.” When Stasiewicz got off the phone, Stasiewicz “immediately looked at the Cook
County Clerk’s electronic docket system to see if he could locate these cases and *** was
successful in locating a new loan case. But he could not find any other case “that involved any
kind of declaratory action.”
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¶ 18 Since Stasiewicz could not find the declaratory action in the court system, he e-mailed
Grayson the next morning asking for “the case numbers and the court for the case.” Grayson
had not said that the declaratory action was in Cook County or that Grayson was the counsel
on the case. Stasiewicz never received a response from Grayson. Stasiewicz also e-mailed the
counsel “for Chase asking if anybody was aware of any declaratory action.” Counsel for Chase
responded that same day and said, “that they were not aware of anything along those lines.”
¶ 19 In December 2021, Stasiewicz’s clients were “served with a separate declaratory action
relating to [another trust] *** at issue between the parties,” and Stasiewicz was asked if his
clients would provide a waiver of service of summons. When Stasiewicz received that case, he
thought “ ‘Aha, now there’s the declaratory action about the disclaimer.’ ” Stasiewicz assumed
that this was the case that Grayson had mentioned on the phone.
¶ 20 Also in December 2021, Stasiewicz received from Grayson a motion for leave to amend
another case. Stasiewicz did not review the motion right away because he received it during
the holidays, but he did review it in early January. Stasiewicz reviewed it to determine if the
relief that the other side was seeking had changed, and he found that, while “the relief sought
in the prayer for relief was written in different language,” the relief sought was “essentially the
same relief.” The “filing overall” was 133 pages, “mostly [consisting] of exhibits [Stasiewicz]
had seen many times before.” Stasiewicz was “not looking for” another prior case, “because
[he] did not believe one existed.” Although there was a reference to this case, Stasiewicz
“simply did not realize” that the case that he had signed a waiver for was “separate” from yet
another declaratory judgment case and “that there were separate actions.”
¶ 21 Stasiewicz testified that the first time that he discovered this case was in March 2022,
when the parties issued another status report in another pending case that listed each case by
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No. 1-22-1667
caption and case number. Stasiewicz reviewed the case file, talked to his client, and filed the
petitions at issue in late May 2022.
¶ 22 On cross-examination, Grayson asked whether he had told Stasiewicz during their
November 1, 2021, phone call that a judgment had been entered declaring Bernard’s disclaimer
valid and irrevocable. Stasiewicz replied: “[Y]ou certainly didn’t tell me the case number, and
I know that you didn’t tell me—you didn’t inform me of the judgment.” In that call, Stasiewicz
“believed that, you know, you might have been telling me things you just were aware of from
other—other sources.”
¶ 23 On cross-examination Stasiewicz acknowledged that, on December 29, 2021, Grayson
served him with a motion for leave to file an amended counterclaim in another case. Grayson
then read into the record paragraph 43 of the amended counterclaim, which stated:
“The Circuit Court of Cook County, Illinois, in litigation concerning the IT [Issues
Trust], has determined that [Bernard’s] Disclaimer is valid and irrevocable. A copy of
the Order declaring the Disclaimer valid and irrevocable is attached hereto as Exhibit
C.”
Stasiewicz did not dispute that the order in the case at bar, entered by the trial judge on October
4, 2021, was attached as an “Exhibit C.” As Stasiewicz recalled, the motion with all its
attachments was over a hundred pages long.
¶ 24 Next, Grayson testified, with a colleague of his asking him questions to put in his direct
testimony. Grayson testified that, because of the number of cases involving this family dispute,
he communicates with Stasiewicz “[v]ery regularly by email” with “telephone calls from time
to time.” Grayson testified that, during their phone conversation on November 1, 2021,
Grayson “mentioned to [Stasiewicz] that we had obtained a declaratory judgment finding that
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No. 1-22-1667
the disclaimer was valid and irrevocable”—thereby creating a direct credibility dispute with
Stasiewicz’s testimony. 5 Plaintiffs then admitted into evidence, without objection, an e-mail
from Stasiewicz on November 2, 2021, the day after their phone conversation. The e-mail,
which was marked as exhibit 1, stated:
“From: Peter Stasiewicz [e-mail address]
Sent: Tuesday, November 2, 2021 11:05 a.m.
To: Brad S. Grayson
Subject: Declaratory judgment
Brad,
Do you have the case number and court of the declaratory case you mentioned
yesterday regarding the disclaimers? If so, could you please pass it along.
Regards,
Pete”
¶ 25 Plaintiffs also admitted into evidence, as exhibit 2, the motion for leave to file an
amended counterclaim in another case, which had been discussed during Stasiewicz’s cross-
examination. After its admission, the trial court observed that, although the amended
counterclaim referred to a solitary exhibit C, there were actually two documents labeled
“Exhibit C” attached. The trial court noted that the exhibit C—which the court had found
first—appeared at page 98 of the 133-page document. When the court asked Grayson if this
exhibit C, at page 98, was the judgment that the court had entered, Grayson agreed: “No, it’s
not.” 6 In this other exhibit C, dated November 7, 2012, Rebekah Black acknowledged that she
5
Grayson reiterated this point later in his testimony, stating: “I did mention to him the judgment
that was entered in this case declaring the disclaimer that is at the center of a lot of this litigation valid and
irrevocable.”
6
At the evidentiary hearing, the amended counterclaim was admitted into evidence as exhibit 2,
and all the exhibits were attached to the end of the transcript. However, the exhibit 2 that appears after the
transcript in the appellate record is one page long and is a motion seeking to file the exhibit under seal.
However, the document appears elsewhere in the appellate record.
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No. 1-22-1667
had previously given Vanguard a disclaimer, that her disclaimer was irrevocable, and that she
would indemnify Vanguard if Vanguard suffered any loss as a result of its reliance on her
disclaimer. The exhibit C that is the October 4, 2021, judgment in this case appears on page
66 of the 133-page document.
¶ 26 When the trial court asked Grayson why he would file a document with multiple
exhibits labeled C attached, Grayson explained that he had attached a number of other
pleadings that, in turn, had exhibits attached to them, with letters already on them. Grayson
admitted that he did not “anticipate that there would be an Exhibit C to the complaint and then
an Exhibit C” to the counterclaim. The court responded: “I always advise attorneys to use
numbers when marking. But there are two Exhibit C’s attached, and I’m taking note of that.”
¶ 27 On cross-examination, Grayson acknowledged that he did not provide any notice to
Stasiewicz or Stasiewicz’s clients when Grayson filed this case in June 2021 or when Grayson
obtained a judgment on October 4, 2021. Grayson testified that he had looked to see if he had
responded to Stasiewicz’s November 2, 2021, e-mail, but he could not find any response. When
Stasiewicz asked if Grayson had “provide[d] any correction” when Stasiewicz “characterized
it as a declaratory case instead of a case that had already gone to judgment,” Grayson answered:
“I did not.” Grayson asserted that he had done a search on “the Cook County Clerk site” for
Bernard Black and this case came up, so he believed that Stasiewicz could have found the case
in November 2021. However, Grayson admitted that he had done his search recently and that
he did not know that the site had changed. Stasiewicz’s last question was, “Other than the fact
that you assumed I read [the amended counterclaim] and understood there was a case pending,
do you have any other basis for calling me a liar?” Grayson responded: “No.”
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¶ 28 After listening to arguments by both sides, the trial court made its finding on the
timeliness issue. The trial court stated that, after considering the credibility of the witnesses,
as well as all the exhibits, the trial court found, first, that “[i]t’s clearly undisputed that there
was no effort to alert the proposed intervenors to the existence of this case at any time prior”
to the entry of judgment in this case on October, 4, 2021. Further, the court found that “the
proposed intervenors did not have actual [n]otice of the existence of this case, nor the judgment
in this case, until March 2nd, 2022.” The court observed that the petition to intervene was filed
on May 27, 2022, “which was approximately three months subsequent to actual notice.” The
court then concluded that the petition “was timely filed” after receipt of notice.
¶ 29 After finding a timely filing as required by statute, the trial court granted the petition
to intervene as of right, pursuant to section 2-408(a) of the Code (735 ILCS 5/2-408(a) (West
2022)). In granting the intervention as of right, the court found that the existing parties did not
adequately represent the interest of the intervenors “due to the clearly adverse interests of the
parties.” In addition, the trial court found that, if the intervenors had failed to establish
intervention as of right, the court would have granted them a permissive intervention, pursuant
to section 2-408(b) (735 ILCS 5/2-408(b) (West 2022)).
¶ 30 After making these findings, the trial court asked the parties if they wanted an
evidentiary hearing regarding the section 2-1401 petition, and they did not. The trial court
agreed that a further evidentiary hearing was not needed. The trial court then found that the
October 4, 2021, “judgment is void for the failure to join a necessary party, here being ‘parties,’
in the plural.” The trial court found the intervenors to be necessary parties because the subject
matter of the suit was the validity of Bernard’s disclaimer, the intervenors would be affected
by any action taken by the court regarding that disclaimer, and the presence of the intervenors
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No. 1-22-1667
would allow the court to completely resolve the underlying controversy. In finding that the
intervenors were necessary parties, the trial court observed that “they are even named in the
Complaint, as having an[ ] adverse interest to the [p]laintiffs.” The court concluded that “it
would be unfair, unjust and outright unconscionable” to allow its prior judgment to stand.
¶ 31 On October 17, 2022, the trial court entered a short written order setting forth a future
schedule for the case and stating, among other things, that the petitions to intervene and to
vacate were granted for the reasons stated on the record in open court. On November 3, 2022,
plaintiffs filed a notice of appeal in which they appeal the “Order dated October 17, 2022,
granting Intervenors’ Section 2-1401 petition to vacate the judgment and request that the
Appellate Court reverse the Circuit Court’s October 17, 2022 order and reinstate the Circuit
Court’s judgment entered on October 4, 2021.” This appeal followed.
¶ 32 ANALYSIS
¶ 33 I. Jurisdiction and Standard of Review
¶ 34 Plaintiffs assert, and the intervenors do not dispute, that this court has jurisdiction to
hear this appeal pursuant to Illinois Supreme Court Rule 304(b)(3) (eff. March 8, 2016), which
permits appeals from “[a] judgment or order granting or denying any of the relief prayed in a
petition under section 2-1401 of the Code of Civil Procedure.”
¶ 35 The parties also agree that we review de novo the issue of whether the judgment was
void due to plaintiffs’ failure to join necessary parties but that we review only for an abuse of
discretion the more fact-dependent question of the intervenors’ diligence and timeliness in
filing these petitions. In support, both parties cite the Illinois Supreme Court case of Warren
County Soil & Water Conservation District v. Walters, 2015 IL 117783, ¶¶ 47-51.
¶ 36 II. Statutes at Issue
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¶ 37 The intervenors filed both a petition to vacate under section 2-1401 and a petition to
intervene under section 2-408. Section 2-1401 offers a possible route for relief from “final
orders and judgments,” when the 30-day period for taking an appeal has already passed. 735
ILCS 5/2-1401(a) (West 2022). Section 2-1401 abolished writs of error coram nobis and vobis
and bills of review and proclaimed that “[a]ll relief heretofore obtainable and the grounds for
such relief heretofore available, whether by any of the foregoing remedies or otherwise, shall
be available in every case, by proceedings” under this section. 735 ILCS 5/2-1401(a) (West
2022). A petition under section 2-1401 must be (1) filed in the same proceeding in which the
challenged order or judgment was entered, (2) supported by an affidavit or other appropriate
proof, and (3) filed no later than 2 years after the challenged order or judgment was entered.
735 ILCS 5/2-1401(b), (c) (West 2022). In the case at bar, the intervenors’ petition to vacate
met these threshold requirements, in that it was (1) filed in the same proceeding, (2) supported
by various exhibits, (3) and filed more than 30 days, but less than 2 years, after the challenged
order, as required.
¶ 38 The intervenors also filed a petition to intervene, in which they sought to intervene as
of right or, alternatively, by permission. Section 2-408(a) of the Code of Civil Procedure
governs when a party may intervene as of right:
“Upon timely application anyone shall be permitted as of right to intervene in an action:
(1) when a statute confers an unconditional right to intervene; or (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; or (3) when
the applicant is so situated as to be adversely affected by a distribution or other
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disposition of property in the custody or subject to the control or disposition of the court
or a court officer.” (Emphasis added.) 735 ILCS 5/2-408(a) (West 2022).
If they were not allowed to intervene as of right, the intervenors sought, in the alternative,
permissive intervention, which is up to the discretion of the trial court. Subsection (b) of section
408 provides, in relevant part: “Upon timely application anyone may in the discretion of the
court be permitted to intervene in an action *** when an applicant’s claim or defense and the
main action have a question of law or fact in common.” (Emphasis added.) 735 ILCS 5/2-
408(b)(2) (West 2022). Both subsections regarding intervention require a “timely application.”
735 ILCS 5/2-408(a), (b) (West 2022).
¶ 39 III. Timeliness
¶ 40 Plaintiffs argue that the trial court abused its discretion in finding that the intervenors
were timely in filing their petitions. An abuse of discretion occurs only when the trial court’s
decision is arbitrary, fanciful, or unreasonable to the degree that no reasonable person would
agree with it. Doe v. Readey, 2023 IL App (1st) 230867, ¶ 34.
¶ 41 Plaintiffs argue that the intervenors’ filing in May 2022 was unreasonable, because the
intervenors had allegedly been informed of the judgment months earlier, on both November 2,
2021, and December 29, 2021. First, plaintiffs argue that the intervenors were informed of the
judgment during a phone call on November 1, 2021, between plaintiffs’ attorney and the
intervenors’ attorney. With respect to this phone call, the trial court was faced with a
straightforward credibility dispute about whether plaintiffs’ attorney did or did not inform the
intervenors’ attorney of the judgment during this call. After listening to the testimony from
both parties to the phone call, the court resolved this dispute in favor of the intervenors. In
cases where findings of fact are dependent on the credibility of witnesses, it is particularly true
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that a reviewing court will defer to the trial court, which was able to listen to and observe the
witnesses firsthand. Soucek v. Breath of Life Professional Services, NFP, 2021 IL App (1st)
210413, ¶ 79. Given Stasiewicz’s testimony on point, we cannot find an abuse of discretion in
this factual finding.
¶ 42 Next, plaintiffs argue that, even if the call did not provide actual notice, it still provided
constructive notice, because the intervenors’ attorney knew enough to immediately conduct a
search in the court system, and that it strains credulity that he could not find it. However, the
fact that he could not find it is evidenced by the fact that he sent an e-mail the next day to
plaintiffs’ counsel asking for the case name and number. While plaintiffs’ counsel testified that
he had found the case through a similar court search, plaintiffs’ counsel admitted that he had
done the search only recently and that he was unaware that the system had changed. Again, the
trial court apparently resolved this credibility dispute in favor of the intervenors, and we cannot
find this to be an abuse of discretion in light of the supporting e-mail and testimony in the
record.
¶ 43 Second, plaintiffs argue that the intervenors were again informed of the judgment when
they were served with an over-100-page motion in another case at the end of December 2021
that referred to and attached the judgment. However, as the trial court noted, the lengthy
document stated that the judgment was attached as exhibit C, and there were two documents
labeled exhibit C attached. The phrase “looking for a needle in a haystack” comes to mind.
While plaintiffs argue that the document provided constructive notice, the intervenors’ attorney
testified that he was not reviewing a motion to amend a counterclaim in another case with the
idea that he should be looking for an additional action, because he did not know there was one.
The intervenors’ counsel testified that, when he was served with a declaratory action, he went
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“ ‘Aha, now there’s the declaratory action about the disclaimer’ ” and that he had no reason to
think that there were two separate declaratory actions about Bernard’s disclaimer.
¶ 44 After reviewing the testimony and the exhibits presented to the trial court, we cannot
find that the trial court abused its discretion in finding that the intervenors did not have notice
until March 2022. Thus, we do not find persuasive plaintiffs’ timeliness arguments.
¶ 45 IV. Necessary Parties
¶ 46 Normally, a section 2-1401 “petition must set forth specific factual allegations
supporting each of the following elements: (1) the existence of a meritorious defense; (2) due
diligence in presenting this defense or claim to the circuit court in the original action; and
(3) due diligence in filing the section 2-1401 petition for relief.” Warren, 2015 IL 117783,
¶¶ 37, 51. 7 However, “a section 2-1401 petition seeking to vacate a void judgment, a purely
legal issue, does not need to establish a meritorious defense or satisfy due diligence
requirements.” Warren, 2015 IL 117783, ¶ 48.
¶ 47 The intervenors argue that the October 4, 2021, judgment was void for failure to join
necessary parties. “An order entered without jurisdiction over a necessary party will be void.”
Certain Underwriters at Lloyd’s London v. The Burlington Insurance Co., 2015 IL App (1st)
141408, ¶ 15 (citing Zurich Insurance Co. v. Baxter International, Inc., 275 Ill. App. 3d 30, 37
(1995), aff’d as modified, 173 Ill. 2d 235 (1996)). The failure to join a necessary party may be
raised at any time, by the parties or by the trial court or by the appellate court sua sponte.
Certain Underwriters, 2015 IL App (1st) 141408, ¶ 15.
7
The “quantum of proof necessary to sustain a section 2-1401 petition is a preponderance of the
evidence.” Warren, 2015 IL 117783, ¶ 37.
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¶ 48 In response, plaintiffs argue that the intervenors were not necessary parties, as the trial
court found. “ ‘A necessary party is one whose participation is required to (1) protect its
interest in the subject matter of the controversy which would be materially affected by a
judgment entered in its absence; (2) reach a decision protecting the interests of the parties
already before the court; or (3) allow the court to completely resolve the controversy.’ ”
Certain Underwriters, 2015 IL App (1st) 141408, ¶ 15 (quoting Zurich Insurance, 275 Ill.
App. 3d at 37).
¶ 49 The subject matter of the case at bar is the validity and possible revocability of
Bernard’s disclaimer. The trial court found that the intervenors’ participation was required in
order to protect their interests in a declaration about the validity, or invalidity, of the disclaimer
executed by Bernard on Joanne’s behalf. In addition, their presence would allow the court to
completely resolve the controversy. It is hard for plaintiffs to argue that the intervenors are not
needed to completely resolve the controversy, when plaintiffs themselves named them in the
complaint and explained that the intervenors were the reason for the suit in the first place. The
complaint stated that the point of the action was to guard against the actions “threatened” by
the people who later became the intervenors. The complaint alleged that “various persons,
including [intervenor] Anthony Dain, a relative of the Black family and a former trustee of the
Issue Trust, [intervenor] Goodwin, and Joanne’s court-appointed counsel, have threatened to
take actions to try to have the [Denver Probate Court] declare the Disclaimer invalid so that
Goodwin can, among other things, try to claw back assets from the Issue Trust to place them
under her control.” Toward the end of their appellate brief, plaintiffs concede, as they must,
that the intervenors might have an arguable basis if Bernard’s disclaimer “could be reversed or
invalidated”—which is the subject matter of this suit. Having examined the record, we cannot
17
No. 1-22-1667
find that the trial court erred in finding that they are necessary parties and that, therefore, the
October 4, 2021, judgment is void.
¶ 50 CONCLUSION
¶ 51 For the foregoing reasons, we cannot find that the trial judge abused his discretion in
finding that the intervenors’ petitions were timely filed or that he erred in vacating his own
prior order on the ground that necessary parties were missing.
¶ 52 Affirmed.
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No. 1-22-1667
Black v. Black, 2024 IL App (1st) 221667Decision Under Review: Appeal from the Circuit Court of Cook County, No. 2021-CH-
02952; the Hon. Michael T. Mullen, Judge, presiding.
Attorneys Brad S. Grayson, Benjamin N. Feder, and Sarah M. Freund, of
for Straus Malk & Feder LLP, of Northbrook, for appellants.
Appellant:
Attorneys Peter Stasiewicz, of Arcturus Law Firm, of Chicago, for
for appellees.
Appellee:
19