*1 YATES, NORTHBROOK, Plaintiff-Appellee, SUSAN v. BARNABY’S OF Inn, Inc., Barnaby’s Bally’s Tomfoolery, Family Defendant-Appel a/k/a a/k/a
lant. (1st Division) First District No. 1 - 89-2449 29, July Opinion filed 1991.
Condon, Roche, (Francis Leyhane Mary III and Chicago J. Cook & Manczak, counsel), appellant. Rose C. for Cantwell, Stephen Cantwell, Chicago (Peter A. F. Cantwell & Boulton, Gaido, counsel), appellee. and Peter A. of the court: opinion delivered
JUSTICE O’CONNOR April dismissed on action was personal injury Plaintiff’s to comply when failed plaintiff from en- appeals Defendant now (107 219(c).) Ill. 2d R. discovery. amended section order granting of the trial court’s try 1401) 1401 petition its discre- that the trial court abused contends dismissal. Defendant tion because plaintiffs petition unsupported competent affida- vits and failed to demonstrate due diligence.
In February plaintiff filed a lawsuit against alleg- defendant ing personal injuries when she and fell in defendant’s slipped restau- rant. In April interrogatories defendant filed and a request production. In October filed a motion for sanctions plaintiff because had failed respond discovery requests. March *2 1988, plaintiff’s original granted attorney leave to withdraw as plaintiff’s counsel and substitute counsel appeared. Defendant’s mo- tion for sanctions was entertained ex parte April 1988 and the court entered a dismissal with prejudice.
In July plaintiff filed a to vacate the dismissal pur- suant to section 2—1401 of the Illinois Code of Civil Procedure. 1401.) Defendant then moved to dis- miss the petition and the attached These motions were con- time, tinued from time to and in March 1989 an order was entered striking plaintiff’s petition and all three supporting affidavits. Plain- tiff filed an amended on petition March 1989. In response, defend- ant again filed motion to strike the affidavits attached to the At petition. the hearing August 8, 1989, on the affidavits at- tached to plaintiff’s amended petition stricken, were but court plaintiff’s reinstated case despite finding negligence and a lack of diligence plaintiff’s part in prosecution of her claim. Defendant appeals from entry that portion of the order reinstating plaintiff’s case.
In prosecution of this appeal, defendant also moves to strike plain- facts, tiff’s statement of contending that this portion plaintiff’s re- sponsive brief is replete argumentative assertions that are not relevant to the appeal. No response motion, was filed to this and we took this motion with the case. While we agree that plaintiff’s recita- tion of the facts includes court, matters not before this rather than strike the entire section we deny motion but shall ignore those matters factual or otherwise not on appeal here.
Defendant claims that the trial court abused its discretion in allowing plaintiff’s petition to vacate once the supporting affidavits were stricken. Section 2—1401 of the Illinois Code of Civil Procedure provides for relief from judgments and “must be affida supported by vit or other appropriate showing Rev. Stat. 1401(b).) Our of plaintiff’s vacate indicates that it is based totally on circum
stances which occurred outside the record: lack of cooperation be tween original and substitute counsel for plaintiff, confusion regard- and failure of on defendant’s
ing to locate and review substitute counsel plaintiff’s not competent this information is Although of the dismissal. affidavits of the individuals without the evidence counsel counsel to plaintiff’s letters They vacate. plaintiff’s petition attached as exhibits of were also va- support plaintiff’s sufficient set forth circumstances These letters indicate the affidavits. cate the dismissal without counsel. original and substitute plaintiff’s lack of cooperation between and a lack of negligence court specifically counsel in original and substitute that the claim, may require and fairness justice has diligence requirement the due though be vacated even judgment 733, 740, Walker (Resto 66 Ill. not been met. case, trial court that fairness we with the this the dismissal order. mandates vacation of Affirmed.
CAMPBELL, J., concurs. MANNING, dissenting: PRESIDING JUSTICE *3 I that under certain agree I respectfully must dissent. significant the basis for circumstances, may the fairness doctrine be 1401, I do not believe that an to section vacating pursuant order 2— mandates such a result. Fairness is the matrix here presented factual mandates relaxation of rules and a doctrine that often fundamental However, unhappy particular because one is of law. principles do not losing litigant operate to a sympathetic result or is otherwise section 2—1401 relief. The of granting grant reasons improper discretion. The trial court is to the trial court’s such relief addressed the orders in of new infor- light to correct errors or review is allowed the ruling information been available received, that had such mation i.e., very specific requirements, There are would have been different. by affida- supported 2—1401 must be petition section “[t]he [for relief not of showing as appropriate vit or other claims that Here, 1401(b).) Rev. Stat. petition in allowing plaintiff’s discretion the trial court abused its that rein- I were stricken. once the affidavits supporting following reasons. for the improper claim was statement of plaintiff’s Procedure provides Code of Civil of the Illinois Section 2—1401 affidavit or other by be supported and “must judgments relief from
131 appropriate showing as to matters not of record.” of 1401(b).)My peti- review tion to that it on circumstances totally pur- vacate indicates is based the of involved which oc- portedly specific knowledge person(s) within curred and pleadings: cooperation outside the lack of between plaintiff, regarding substitute counsel for confusion the sanctions, of plaintiff’s defendant’s motion for and failure substitute counsel to locate and of the dis- I missal. believe this information is evidence without the incompetent of the supporting leaving peti- affidavits individuals thus the tion alone and insufficient. Letters incomplete counsel to plaintiff’s original counsel attached as to plaintiff’s exhibits vacate also fail to set forth circumstances to support plain- tiff’s sufficient to vacate the dismissal without the affidavits. I further note that plaintiff has not the court’s or- cross-appealed der striking Thus, I affidavits. believe the alternative is to only reverse the trial court’s order granting plaintiff’s vacate the dismissal. Once the trial court striking entered the order the affidavits, there were insufficient facts before court in support the section 2—1401petition.
Moreover, I also note that the trial court specifically negli- gence and a lack diligence plaintiff’s original and substitute counsel in claim finding and such a warrants denial of plaintiff’s petition to vacate with or sup- without porting Airoom, (Smith v. (1986), Inc. 114 Ill. 2d 499 N.E.2d A 1381.) petitioner must specific assert facts existence of due in prosecution of his or her claim in and bringing petition to vacate. A party assume that may simply his or her attorney doing is in everything necessary litiga- conduct of tion. (Welfelt v. Schultz Transit Co. Ill. Nor does section 2—1401 operate litigant relieve a
the consequences of an
attorney’s neglect
Kaput
the matter.
Hoey (1988),
124 Ill. 2d
Accordingly, respectfully dissent and would reverse the judg- ment of the circuit court.