McNulty v. McNulty, 2022 IL App (1st) 201239

Background

Feb. 27, 2020: Bill (William McNulty III) obtained an ex parte emergency order protecting his father and brother Tim against respondent Michael McNulty based on alleged threats, breaking into file cabinets, and past violence. The order limited Michael’s access to the house but allowed him to remove business equipment at a specified time.
The emergency order was extended administratively during COVID closures, briefly vacated on July 17, 2020, then reinstated after Tim filed a new emergency petition on July 27, 2020.
Aug. 17, 2020: At a video-conference hearing, with counsel present, Michael agreed in open court to a two‑year agreed plenary order of protection (expires Aug. 15, 2022); the judge read the order’s terms aloud and Michael said he had no questions. The written order did not mention mediation.
Sept. 16, 2020: Within 30 days of the agreed order, Michael (through new counsel) filed a verified motion to vacate under 735 ILCS 5/2‑1301(e), alleging his prior attorney had conditioned his agreement on the family participating in mediation (with a mediator of Michael’s choice) that would lead to vacatur and supervised contact with his father.
At the Nov. 4, 2020 hearing, the trial judge (same judge who entered the agreed order) denied the motion, relying on: (1) Michael’s in‑court assent while represented, (2) the court’s oral reading of the order (no mention of mediation), (3) opposing counsel’s denial that mediation was agreed, and (4) absence of an affidavit from Michael’s prior counsel (who allegedly refused to sign one).
Michael appealed; the appellate court reviewed the denial for abuse of discretion and affirmed, holding that the trial court’s factual credibility findings and exercise of discretion were reasonable.

Issues

Issue	Plaintiff's Argument (Bill)	Defendant's Argument (Michael)	Held
Whether the trial court abused its discretion in denying Michael’s motion to vacate the agreed plenary order under section 2‑1301(e)	The agreed order was read in open court, Michael was represented, no mediation condition was stated, and there is no affidavit proving a mediation agreement; denial proper.	Michael argued the agreement was induced by his prior attorney’s promise that the family would mediate within 30 days and vacate the order; he filed timely and seeks a hearing on the merits.	Denial affirmed: no abuse of discretion—court credited in‑court assent, representation, lack of proof of mediation condition, and considered substantial‑justice factors.
Whether the court improperly relied on unsworn statements by opposing counsel and failed to require affidavits from opposing counsel while demanding one from Michael’s prior counsel	Opposing counsel (for father/Tim) denied any mediation agreement in open court; the court reasonably credited that denial and counsel’s representations about communications with Michael’s former counsel.	Michael contended the court should not have relied on unsworn statements and should have compelled an affidavit from the other side.	Held: No error—trial court permissibly considered counsel’s in‑court representations and present counsel’s disclosure that prior counsel refused to sign a proffered affidavit; appellate court saw no abuse.
Whether there was a meeting of the minds making mediation a condition of the agreed order	Bill: No meeting of minds; all material terms were read in court and mediation was not among them.	Michael: He would not have agreed absent his counsel’s promise of mediation and vacatur.	Held: No meeting of the minds shown—Michael explicitly agreed in open court to the order’s terms without qualification; his allegations relied on his attorney’s alleged promise and lacked corroborating affidavit.

Key Cases Cited

Mann v. The Upjohn Co., 324 Ill. App. 3d 367 (2001) (what is just and proper must be determined by the facts of each case when considering vacatur)
Vivas v. The Boeing Co., 392 Ill. App. 3d 644 (2009) (standard of review for trial court discretion and appellate scope of review)