                                                                           FOURTH DIVISION
                                                                           AUGUST 17, 2006




No. 1-05-3025


PRENAM NO. 2, INC.,                                          )     Appeal from the
                                                             )     Circuit Court of
       Plaintiff-Appellee,                           )       Cook County.
                                                             )
v.                                                           )     No. 03 CH 19349
                                                             )
THE VILLAGE OF SCHILLER PARK,                                )     Honorable
                                                             )     Thomas P. Quinn,
       Defendant-Appellant.                          )       Judge Presiding.


       JUSTICE CAMPBELL delivered the opinion of the court:

       Defendant Village of Schiller Park (the Village) appeals the circuit court order

granting plaintiff Prenam No. 2, Inc.'s 1 motion to vacate a prior court order that

dismissed plaintiff's fifth amended complaint against the Village, contending that plaintiff

failed to satisfy the requirements for relief under section 2-1401 of the Code of Civil

Procedure. 735 ILCS 5/2-1401 (West 2004) (the Code). Specifically, the Village

asserts that plaintiff failed to state new facts that were not of record and failed to

demonstrate due diligence. We reverse.




       1
           The successor plaintiff in this action is the corporate entity identified as

"Bestway Investment, Corp. and O'Hare Inn & Suites, LLC.," which is generally referred

to as "Bestway."
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       In November 2003, plaintiff filed a complaint for inverse condemnation and

injunctive relief against the Village. The circuit court dismissed the complaint and

granted plaintiff time to amend. Thereafter, plaintiff, which was initially represented by

Gary Tucker and later represented by both Tucker and the firm of Weisberg Associates,

Ltd. (Weisberg), filed a variety of pleadings, including successive amended complaints.

In turn, the Village filed multiple responsive pleadings, including successive motions to

dismiss plaintiff's various complaints.

       Ultimately, on February 22, 2005, after various pleadings from the Village and

plaintiff, the court allowed plaintiff to file a fifth amended complaint against the Village,

which sought to quiet title to real property and injunctive relief. The subject property

apparently operated as a hotel and the Village sought to acquire it for a redevelopment

project, claiming the property was blighted and unmarketable. After a hearing, where

no representative of plaintiff appeared, the court granted the Village's motion to dismiss

plaintiff's fifth complaint on May 2, 2005 (hereinafter May 2 dismissal order).

       Subsequently, plaintiff filed two unsuccessful motions to vacate the May 2

dismissal order. The first motion to vacate was filed by Weisberg on May 13, 2005, and

was denied by the court on May 19, 2005 (hereinafter May 19 denial order). The

second motion to vacate was filed by Tucker on May 23, 2005, and withdrawn on June

6, 2005.

       On June 29, 2005, plaintiff, through Tucker, filed a "petition" pursuant to section

2-1401 of the Code, seeking to vacate the court's May 2 dismissal order 2. In plaintiff's


       2
           In plaintiff's petition, plaintiff provides incorrect dates for a number of its prior



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section 2-1401 petition, plaintiff alleged that Tucker did not have notice of the hearing

on Weisberg's motion to vacate, Weisberg did not have authorization to file such a

motion, and that Weisberg had been informed that Tucker would handle any motion to

vacate the May 2 dismissal order. Plaintiff further alleged that when the court issued its

May 19 denial order, "the court did not know nor was it advised it had previously denied

[the Village's] motion to dismiss Count I (color of title) as presented by Gary Tucker."

Plaintiff asserted that the court's May 2 dismissal order "is in error and not based upon

all the facts, that, if known by the court, would have prevented entry of [the May 2

dismissal order]." Based on these assertions, plaintiff requested the court to vacate its

May 2 dismissal order.

       Plaintiff attached to its petition the affidavit of Babu Patel, who attested that he

was the president of successor plaintiff Bestway. Patel attested that he hired Weisberg

for the "sole purpose" of "compelling" the Village to issue plaintiff certain usage permits

related to the property. Patel further attested that after he learned of the court's May 2

dismissal order, he contacted Weisberg and told Weisberg that Tucker would handle the

motion to vacate the dismissal order. Patel acknowledged that Weisberg filed a motion

to vacate the May 2 dismissal order, but attested that "[a]t no time was [Weisberg]

authorized by [plaintiff] to present the motion to vacate the [May 2 dismissal order]."


filings and the court's prior orders. Based on our review of the record, our order

references accurate dates.




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       The Village filed a response to plaintiff's section 2-1401 petition, alleging primarily

that plaintiff failed to meet the requirements for relief under section 2-1401 of the Code.

Specifically, the Village asserted that plaintiff failed to allege new facts that were not

already contained in the record and failed to demonstrate due diligence in presenting

the defense.

       In reply, plaintiff asserted that the petition met the requirements of section 2-

1401. Specifically, plaintiff stated that it demonstrated a meritorious defense or claim in

that the fifth complaint contained a quiet title claim, which was the same type of claim

contained in a prior complaint which had survived the Village's motion to dismiss.

Plaintiff further stated that it exercised due diligence in filing its section 2-1401 petition

and filing its fifth complaint. Plaintiff also claimed that "[t]hrough a misunderstanding

and/or the misdocketing by [p]laintiff's counsel, no attorney appeared for [p]laintiff at the

May 2, 2005, hearing, resulting in [the circuit] court's order dismissing the entire action."

       In August 2005, the circuit court granted plaintiff's section 2-1401 petition. The

court stated that it agreed with plaintiff's argument that the court would not have

dismissed the fifth complaint had it known that a claim to quiet title had previously

survived one of the Village's prior motion to dismiss. The court found, in pertinent part,

as follows:

                      "Plaintiff exercised due diligence in originally

               attempting to vacate [the May 2 dismissal order] by filing a

               timely motion to vacate. Due diligence was exercised in pre-

               senting this '2-1401 petition. Plaintiff has shown a




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              meritorious claim because its claim to quiet title has already

              survived a motion to dismiss. Also, this court would not have

              dismissed plaintiff's complaint *** if plaintiff had appeared

              and informed the court that a similar motion had previously

              been denied. Accordingly, plaintiff's '2-1401 petition is

              granted and the [dismissal] order of 5/2/05 is vacated."

       On appeal, the Village contends that the circuit court erred in granting plaintiff's

section 2-1401 petition to vacate the court's May 2 dismissal order because plaintiff

failed to satisfy the requirements for relief. Specifically, the Village asserts that plaintiff

failed to state new facts that were not of record and failed to demonstrate due diligence.

       Section 2-1401 of the Code details a statutory procedure which allows final

judgments to be vacated. Ameritech Publishing of Illinois, Inc. v. Hadyeh, 362 Ill. App.

3d 56, 59 (2005). The purpose of a section 2-1401 petition is to make the circuit court

aware of facts not appearing in the record which, if known to the court at the time of

judgment, would have prevented the court's entry of judgment. Beauchamp v.

Zimmerman, 359 Ill. App. 3d 143, 147 (2005). In order to receive relief under section 2-

1401, a petition must affirmatively allege specific facts to support each of the following

elements: (1) the existence of a meritorious defense or claim; (2) due diligence

presenting this defense or claim to the circuit court in the original action; and (3) due

diligence in filing the section 2-1401 petition seeking relief. Ameritech, 362 Ill. App. 3d

at 59, citing Smith v. Airoom, Inc., 114 Ill. 2d 209, 220-21 (1986). The petition must also

be supported by affidavit or other appropriate showing as to matters not of record. 735




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1-05-3025


ILCS 5/2-1401(b) (West 2004). A circuit court has discretion to rule upon a section 2-

1401 petition, which depends upon the facts and equities presented. Smith, 114 Ill. 2d

at 221. Therefore, a reviewing court may disturb the circuit court's ruling on a section 2-

1401 petition only if it finds that the circuit court abused its discretion. Smith, 114 Ill. 2d

at 221.

       In addition, because section 2-1401 is not intended to relieve a litigant of the

consequences of his mistake or negligence, a litigant must establish that his failure to

defend against the underlying legal action was the result of an excusable mistake and

that he acted reasonably under the circumstances, as opposed to negligently, when the

litigant failed to initially resist the judgment. Smith, 114 Ill. 2d at 222. Accordingly, a

litigant is generally not entitled to relief under section 2-1401 "where [that litigant]

negligently failed to assert a defense or make facts known to the court prior to the entry

of judgment." Ameritech, 362 Ill. App. 3d at 59.

       After reviewing the record in this case, we find that plaintiff's specific factual

allegations in his section 2-1401 petition were insufficient to entitle plaintiff to relief.

First, contrary to the purpose of section 2-1401, plaintiff based its defense on a matter

that was apparent from the record. See Beauchamp, 359 Ill. App. 3d at 147 (purpose of

section 2-1401 petition is to make the trial court aware of facts not appearing in the

record). Here, plaintiff solely relied upon one of the circuit court's previous orders,

which pertained to plaintiff's prior complaint to quiet title and denied the Village's motion

to dismiss that complaint. Moreover, plaintiff's prior pleadings, including the previous

claim to quiet title, were no longer properly before the court because plaintiff effectively




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1-05-3025


abandoned those prior pleadings by filing the fifth amended complaint without

incorporating or referring to the prior pleadings. Pappas v. Pella Corp., 363 Ill. App. 3d

795, 801 (2006), citing Foxcroft Townhome Owners Ass'n v. Hoffman Rosner Corp., 96

Ill. 2d 150, 153-54 (1983). Thus, where plaintiff asserted its meritorious defense based

upon issues which were apparent from the record and were no longer at issue due to

plaintiff's subsequent pleadings, we cannot find that plaintiff sufficiently alleged a

meritorious defense under section 2-1401.

       Second, plaintiff failed to plead sufficient facts to establish that it acted diligently

in bringing the particular defense to the circuit court's attention. Most significantly, as

both the circuit court and plaintiff recognized, the primary reason that the court was not

aware of its prior order on plaintiff's previous pleadings was because plaintiff failed to

appear at the hearing and inform the court.

       According to plaintiff, the reason it did not appear at the hearing was due to a

"misunderstanding" or "misdocketing" by its legal counsel. However, a litigant is

ordinarily bound by the negligence of his legal counsel. Ameritech, 362 Ill. App. 3d at

60. Additionally, although a circuit court may decline to impute counsel's negligence to

a litigant in the existence of mitigating circumstances, this court has observed that

relaxation of the due diligence requirement under section 2-1401 is "justified only under

extraordinary circumstances." Ameritech, 362 Ill. App. 3d at 60. Here, plaintiff's section

2-1401 petition does not allege, nor does the record contain, any mitigating

circumstances that would reasonably justify the relaxation of the due diligence require-

ments, or otherwise establish that plaintiff's failure to attend the hearing on the motion to




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1-05-3025


dismiss was due to anything other than the negligence of plaintiff or its counsel. See

Smith, 114 Ill. 2d at 224-25 (concluding "[w]hen all of the circumstances of this case are

viewed in their entirety, there is no doubt that [the litigant's] dilemma is the result of its

own negligence and indifference to or disregard of the circuit court's process.")

       Accordingly, where plaintiff failed to show a meritorious defense and failed to

show that it exercised due diligence in bringing this matter to the attention of the trial

court, we conclude that plaintiff failed to plead sufficient specific factual allegations to

entitle plaintiff to relief under section 2-1401 of the Code. Therefore, we find that the

trial court abused its discretion in granting plaintiff's section 2-1401 petition to vacate the

May 2 dismissal order. See Ameritech, 362 Ill. App. 3d at 64 (reversing the trial court's

order granting a litigant's section 2-1401 petition where, in pertinent part, the litigant

failed to show due diligence and a meritorious defense).

       We are not persuaded by plaintiff's argument that the trial court "merely"

corrected an error it had made when it granted plaintiff's section 2-1401 petition.

Notably, regardless of any alleged error committed by the circuit court in this case,

plaintiff was still required to provide sufficient allegations to entitle it to relief under

section 2-1401 of the Code. Further, plaintiff's reference to this court's decisions

involving the revestment doctrine is misplaced because that doctrine is not relevant to

the issues presented in this case. See, e.g., Allstate Insurance Co. v. Anderson, 329 Ill.

App. 3d 93, 96 (2002) (discussing the revestment doctrine).

       For the foregoing reasons, we reverse the judgment of the circuit court and

remand to reinstate the judgment in favor of the Village.




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     Reversed and remanded.

     QUINN, P.J., and GREIMAN, J., concur.




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