*1 $270,000.00 with the initial asking price of with the under- standing that the minimal acceptable price for the land is $225,000.00.” $285,000.

The Shapiro offer was for The Bridge Land offer was for $260,000. Thus, agree finding we with the of the trial court plaintiff failed to prove damages resulting a breach of contract. reasons, foregoing

For we affirm the of the circuit ruling court and award fees to attorney expenses we incurred defending its claims in this appeal.

Affirmed. McMORROW, JJ.,

LINN and concur. MICHALIK, PTASZEK, Plaintiff-Appellant, KAREN Defend- ROBERT v. ant-Appellee. (4th Division) No. 1 — 91—1151

First District 3,1992. 30, 1992. Rehearing Opinion September filed denied December JIGANTI, P.J., dissenting. *2 Sammareo, Park,

Anthony appellant. Forest for appellee. No filed brief for

JUSTICE LINN delivered the of the court: opinion Plaintiff, Ptaszek, Robert G. seeks relief an post-judgment agreed that 16, order was entered December 1986. That paternity declaration was the result Ptaszek’s action to have himself declared the natural father Erik Robert Michalik. Because the petition to vacate the 1986 order was filed more than after years entry, its Ptaszek must ground establish asserts relief from the 1986 order was fraudulently concealed 1989, 110, from him. Ill. Rev. Stat. ch. par. 1401(c). 2— vacate the The trial court petition denied the to order of pater- nity, finding that Ptaszek Michalik, failed to that Karen establish mother, Erik’s had the fact fraudulently may concealed that he biological addition, be child’s In the court found that Ptaszek, who had actively sought and maintained a father-son rela- Erik for tionship with had to years, seven failed exercise due dili- gence with respect challenging to paternity.

On appeal, urges reverse, claiming this court to that ruling court’s against weight manifest of the evidence. He also claims that the trial court erred in admit into refusing evidence the results of blood tests that following were obtained filing of his to vacate.

For follow, the reasons that we affirm.

Backgbound

Ptaszek and began May a sexual relationship June 1981. When she became of that pregnant August year, she told him she was certain that he was the father. discussed They possibility at marriage relationship time had al- ready deteriorated and it altogether baby terminated 1982. 1, was born on April thereafter, 1982. Two or three months Micha- married. From the be- to the man she later lik introduced Ptaszek Erik’s father and contributed however, Ptaszek acted as ginning, support. Erik until visitation with regular continued to enjoy 1984 Ptas- to it. March

1984, put stop tried when Michalik he was Erik’s natural zek filed a action The com- schedule. support to establish a visitation father and developed natural plaint asserted him to child, and that believed close his natural father. allega- Ptaszek’s admitted complaint answer

Michalik’s visitation, however. contested continued tion of She 1986, a mental exami- 12, seeking she filed on December pleading Ptaszek, temper, that he had an unstable alleged nation of also stated excess, their son. Her drank to and abused time, old at that more than four Erik, would have been who to see [Ptaszek].” “refuse[d] order entered into an the parties

On December set out his father. The order Ptaszek as the natural identified health insurance provide child obligation pay issue the child. The visitation custody Michalik retained while *3 by of the counseling parties evaluation and pending was reserved department. the social services in additional participated the parties

The record indicates and that the visitation issues on proceedings or court supplemental Erik. visitation with was his impeding Ptaszek believed petition, pursuant filed the pending Ptaszek August On Procedure, seeking Civil the Illinois Code of 2—1401 of to section al- entered that had been order of vacation of the after Erik’s birth seven (This earlier. was most three years declaration judicial the Ptaszek had obtained and 31 months after on a solely relying he paternity, denies fatherhood.) petition In he she stated Michalik in which conversation May 2—1401 petition, section of his support not Erik’s father. no reason he had “had stating that affidavit Ptaszek submitted an intercourse en- acts of “that earlier statements to Michalik’s doubt” conceiving a child.” in her resulted gaged by Michalik] [him to va- in the petition “fact” nonpaternity (In asserting now at again once Michalik’s statement took cate, presumably value.) face on the hearing at testimony to Ptaszek’s

According not his son Erik was told that he was first petition, section 2—1401 on when Michalik and asked Ptaszek he May telephoned why her hit His testimony vague, mistreated her. this is point related an or apparently May 30 conversation to incident argument two in which Ptaszek had hit Michalik. day before She to ask her the why up” way called “beat her and treated Ptaszek, did. time told him Erik According first she was not son. response vacate, her to the Michalik stated that

at the time of Erik’s Ptaszek had “no reason to believe conception exclusive sexual of Karen Michalik” and partner that he had notice or of the knowledge surrounding circumstances paternity at time birth and at the time his action to did not at hearing. She testify

At into hearing, attempted introduce evidence pursuant blood tests and child taken parties request had Ptaszek had clarify paternity. sent results of the tests to Mi- chalik a request to admit facts and genuineness documents. She did file response The trial thereto. court ruled that results of evidence, blood tests would not into however, be admitted grounds relevance. court noted that Ptaszek filed his sec- tion 2—1401 petition alleging fraudulent concealment before such tests were taken and that was not based on the results of the tests.

Ptaszek admitted that he seeking reduction his child in a payments separate action. The court then asked Ptaszek a series questions relating to circumstances parties’ 1981 sexual liaison. Ptaszek said that he had believed Michalik when she told him en- she gaged in sexual relations with else anyone during their affair. Ptas- conceded, however, zek response the court’s final question, that “when a lady engaging in sex with different men period conception, doesn’t know really who either.”

The court ruled that did not a find- presented justify ing concealment, noting fraudulent that Ptaszek had repre- been sented counsel in the proceedings had instituted *4 1984, years two after Erik’s birth. court also remarked that that was aware Michalik six had married within months af- ter Erik’s birth. Ptaszek’s action did until paternity not conclude 1986, and waited more than two after before he at- that tacked judgment a sought tests, and based tele- solely blood phone conversation that which Michalik stated he was not Erik’s 76 trial court denied Ptaszek’s section 2—1401 Accordingly,

petition agreed to set aside the 1986 declaration of paternity. Opinion ignores passage

Ptaszek’s brief own conduct and the time this court aside final urging judgment paternity to set a that of res pursued. ignores In so actively doing principles judicata and that in similar sit- estoppel applied Illinois courts changing parent- uations to from their minds prevent persons about Marriage In re Emerson 712, (See (1983), App. hood. 3d (and therein) (divorced 450 987 cases cited father would N.E.2d from after he had married a stopped denying pregnant knowledge woman of the circumstances and had to the that set out his and judgment parental rights obliga- dissolution brief, not file an does af- tions).) appellee but this Corp. Ta- Capitol Mortgage First v. of the case. disposition fect our 128, Corp. (1976), landis Construction 493. 63 Ill. 2d 345 N.E.2d is, course, A section a collateral attack a final 2—1401 To appeal reopen rather than a direct from merits. a final judgment after 30 within a must judgment days years, litigant establish action; or the original that he has a meritorious claim defense to he ex action; due claim or defense in diligence presenting ercised 2—1401 diligence bringing peti he has exercised due section Airoom, Inc. 209, 499 (E.g., Smith v. 114 Ill. 2d N.E.2d (1986), tion. achieving the aim 1381.) Although applied just the statute a result, give the section 2—1401 “was never a liti intended done in an gant a new do that which should have been opportunity earlier never to relieve a liti proceeding. provision was intended In re Marriage gant consequences negligence.” of the of his mistake 1267, 1271. N.E.2d of Travlos moreover, showing After the of two even a passage years, due or defense insufficient to win diligence and a meritorious claim Instead, litigant additionally must judgment. vacation him, fraudulently concealed from in or grounds for relief were 110, 2— (Ill. par. der Stat. ch. period. to toll limitation Rev. In re Emerson 1401(c); Emerson, cannot party simply the court noted N.E.2d good on false premised assert that facts judgment exists; he could have been discov defense must show diligence. ered at or and that he exercised due prior judgment case, challenge had the to either or ver- opportunity the outset. chose to claim he was ify deliberately He *5 in original his Certainly, sought Erik’s father. could have blood tests however, had he desired. wanted in paternity proceeding, What his admittedly close two-year-old continue his re- Now, (after struggles visitation), over son. later continued of himself and seeks to be relieved burdens fatherhood. verses of of 2—1401 no dry petition, the elements a section analysis one asks what Erik thinks about the 10-year-old apparently disposable might nature of himself his fatherhood. That the child even blame for not, course, here, it father’s decision to disown him is the issue give pause should to the adults in his life. certainly paternity This is not a in which a father putative challenges case fashion and is freed from after timely legal obligation finding Indeed, is not in is- biological Ptaszek’s was never sue, certainly viewpoint, eight years. Although ap- not from his it that Michalik and pears dated for few months and never considered seriously marriage, Ptaszek embraced role father the beginning. helped He pay baby’s expenses, signed medical birth, certificate live contributed support, to Erik’s and visited him. He initiated the action for declaration of to safe- guard that not relationship, because Michalik denied that he was the fa- fact, ther. In she admitted the allegations complaint. his paternity allegations fraud case slim. Ptaszek exceedingly states, essence, that he believed Michalik’s statement that he was Erik’s father back in 1981 but now he believes her 1989 statement he is not really Erik’s father after all. How she could have been certain of either set representations is left unexplained, which undercuts theory fraud substantially. opinion, our the blood tests in the pending case were properly

excluded as immaterial to the issue of fraudulent concealment. Neither Michalik nor Ptaszek previously had the benefit such tests and both parties apparently or at long believed least accept Ptaszek was Erik’s father. Even if the tests blood are assumed accurate and on the issue biological reliable bur paternity, Ptaszek’s den of proof the three-year judg vacate old paternity ment Rather, simply he is the father all. show after burden was to clear and convincing evidence Michalik knew he not the father fact, misled him about intentionally upon which he relied to his E.g., detriment. In re Marriage Bashwiner 107 Ill. (1982), 3d 438 N.E.2d 490 cases App. (and therein); cited accord In re Marriage Travlos 1030, 1037, 578 N.E.2d 1267. failed to sufficient evidence that find that Ptaszek adduce

We the biological or should have known he was not actually knew lied it. if Michalik failed to disclose deliberately father and about Even the time relations with other men engaged that she had sexual sought pater could clarification of his conception, of Erik’s (See time the child was In re nal status at the born. alone is not fraudu (silence 527 N.E.2d 474 necessarily the issue of fraudulent concealment is lent concealment and parties’ diligence requirement).) in the context of the due analyzed married another man within affair casual and Michalik short-lived *6 standing, Instead of his baby’s questioning paternal months of the birth. regarded to assure that would be possible Ptaszek did everything him from did to seek nothing prevent all as his natural son. Michalik before, during, either paternity, tests or other assurances ing blood rely to on Michalik’s willingness or 1984 suit. Ptasek’s paternity after his affirmatively not mean she he was the father does statements that Accord paternity. the true facts of his ascertaining him from stopped on her right rely he had a to he to we find that failed ingly, of which he light of the facts particularly alleged misrepresentations, Travelos, 3d at notice. See In re had actual conceal fraudulent regarding ex-wife’s (divorced theory 1038 husband’s did not avail himself failed husband ment of accounts where bank him). to knowledge open means of that Michalik alleged fraud was testimony

The sole later, during an and then years that the child was his first told Ptaszek statements, are at necessarily, Both argument, opposite. said partner than one sexual as Michalik had more long most as opinions; to for be abso- way anyone there was no conception, period other evi- tests or without blood particularly paternity, certain of lutely There- action. original paternity sought in the party dence that neither statement knowingly false to establish a fore, Ptaszek failed we find that Metropolitan rely. (See right he had the fact on which of material 975, 978, 283 N.E.2d v. Oliver Bank & Trust Co. probabilities or expectations or which deal (statements opinion further fact).) We misrepresentations actionable generally are not because find reliance detrimental failed to establish that Ptaszek establish, not re- action was 1984 paternity of Ptaszek’s very point claim result, now Ptaszek cannot achieving After fute, took Micha- he because simply the truth finding from he prevented purposes. his own them to suit adopted at face statements value lik’s persuade do not tests of the blood results bare, unauthenticated issue three paternity reopen permitted should that Ptaszek be us been, or was, after that ultimate issue of fact should settled. have parties’ through Given the actions and intentions from 1982 blood are beside the Even if we to consider point. tests were virtually tests they results the blood at this we believe that while juncture, regarding biological of fact may paternity, tend show mutual mistake fraud. they not indicative actual

We conclude that the 1986 order was final adjudication impor- tant the child’s welfare involving issues as well as Ptaszek’s rights obligations as It is of little significance his father. now to say Ptas- might sought zek never have declaration of his own if he earlier had good known or reason to he suspect that was not Erik’s bio- may Or, father. That true. it logical may be that really care; complaint his own cited his belief he was the “natu- Erik, ral” father of who had a close relationship with the child. Ptaszek insisted a judicial declaration of the very fact now says from precluded ascertaining disproving because Michalik’s fraud. We approve birth, cannot such solecism. From the time of Erik’s Ptas- zek’s were to aims acknowledge paternity pay support, and sustain the father-child relationship visitation. He through had access all rele- vant facts except whether Michalik had other partners. sexual He chose when, question fatherhood at a time if biological paternity was concern, true he might an spared innocent child much pain. We it find illogical and that Ptaszek disturbing now insists that he was de- frauded, misled, or otherwise prevented learning the “true” facts *7 of Erik’s biological paternity.

We conclude that the trial court’s denial Ptaszek’s to va- cate the order 16,1986, of December was correct.

Affirmed.

JOHNSON, J., concurs. PRESIDING JUSTICE JIGANTI, dissenting: The majority advances three reasons to support its determination that the trial court properly plaintiff’s denied the request post-judg- First, ment relief. majority the states that there was no evidence fraudulent because, concealment on the part the defendant even though she represented under oath that the plaintiff was Erik’s natural Therefore, she could not have been certain that fact. the plain- tiff did not establish a knowingly false statement material fact on which he had the right Bank & rely. (Metropolitan Trust Co. v. Oliver Second, App. the 62.) N.E.2d majority the plaintiff diligence original that the failed to exercise due in

concludes action because he not insist a blood test did Third, separate the blood tests majority concludes Erik’s the which the as natural father were “beside plaintiff excluded the I respectfully and therefore excluded trial court. point” properly I all three opinion disagree dissent from the because majority these conclusions.

First, categorical I the representations defendant’s believe sufficient concerning parentage Erik’s very private matters Fraudulent been constitute fraudulent concealment. concealment has the dis- defined as of affirmative acts consisting designed prevent (In re ground of a cause of action or for relief. covery major- N.E.2d that she sure the ity representations states that defendant’s was opinions” and that Erik’s father were “at most plaintiff was certain” of those left representations she is could have been “[h]ow 3d at. (Emphasis original.) (238 77-78.) unexplained. The defendant have been explanation quite simple. is could really no one if in sexual intercourse with only engaging “certain” she was logical only interpretation other than the This is plaintiff. the plaintiff that she was sure repeated representations defendant’s 2—1401 hearing petition, Erik’s father. At the his section if her if she was it was child. plaintiff my testified that “I asked sure it asked whether my child ***.” When And said she sure was sexual rela- having the defendant was ever determined whether “I have her in- else, didn’t plaintiff responded, "with anyone tions if she else.” having anybody I her to see vestigated. question him indica- gave the defendant never According plaintiff, father, and trusted it that he was not Erik’s possible tion that was her. mis- the defendant made position

Supporting plaintiff’s judgment Erik’s at the time as representations parentage plaintiff her insistence action is continued father. After the blood tests one who could fact the filed father, the defendant excluded proceeding reason test. Her asking for a second blood alleged mistake.” She further first blood test “must [been] *** conceived, the Defendant that “at time the child was *8 She plaintiff].” her intercourse with and first sexual virgin [the had no con- she question, all of the time “during then stated that other tact with man.”

81 Furthermore, plaintiff’s to the 1984 complaint her answer plain- the admitted oath that the paternity, establish defendant under If, tiff natural father. as the majority appears accept, was Erik’s the defendant in a sexual more than engaging was conceived, one atman the time Erik was was certainly admission no misrepresentation way knowing because she would have had the plaintiff whether the was 427,

In Bellow 40 (1976), v. Bellow 352 N.E.2d this court found fraudulent based the defendant’s mis- concealment representations as to his made by future income letter sent defendant’s to the court lawyer plaintiff’s lawyer. The found that the suggested record strongly defendant was well aware earning power and that relied plaintiff upon misrepresenta- tions to her although detriment. The court stated that settlements favor, upon agreement looked a settlement set be aside may where inequity accomplished by unfairness have been some ele- ment of coercion misrepresentation. (Bellow, App. 3d at 445- 46, 352 at 431.) my N.E.2d the case at bar are opinion, sufficient to establish fraudulent concealment.

The second conclusion reached is that the majority plaintiff diligence not exercise due in determining paternity during the original paternity diligence action. Due requires bring the party ing the section 2—1401 have a reasonable excuse for failing to act the appropriate within time. re (In Marriage 218, 224, Ill. App. 3d determining N.E.2d reason ableness, all examined, circumstances including must be conduct (Sm litigants at the time the original judgment was entered. Airoom, v. Inc. 499 N.E.2d ith 1381.) In circumstances, certain limited diligence due requirement may unfair, if the unjust waived result is Air or unconscionable. oom, 114 Ill. 2d at N.E.2d at 1388. bar,

In the case at the plaintiff defendant told before born was sure the child plaintiff’s. plaintiff signed Erik’s certificate, birth defendant allowed him to visit with Erik even after she married another man. It when the defendant threatened to cut off visitation that the filed an action to In her answer the complaint, defendant admitted the plaintiff An natural father. agreed order was then entered establishing plaintiff’s paternity. The majority order, states that before entered into the plaintiff should have insisted upon blood tests to establish that he was the father. In view, this my imposes an unwarranted burden upon *9 filed, case. At the time the suit was

plaintiff given Erik’s father had never been possibility plaintiff that the was not plaintiff’s upon failure insist raised. I do believe that diligence that he failed to exercise due blood test established categor- right rely had a original plaintiff suit. there was evidence that ical assertion that he was the father where that he was the man represented plaintiff the defendant by This is with whom she had had sexual relations. buttressed that the she still insists proceeding fact that at the time of instant had no the time in question blood test is error man. contact with other is that evidence of two by majority

The third conclusion stated not the natural father of plaintiff blood tests which show the trial by and were excluded point” properly are “beside the 3d at I One of the elements the (238 disagree. court. relief section 2 — 1401 requesting must establish plaintiff re (1988), 173 Ill. (In has meritorious defense. results, 474.) I the test 223, 527 N.E.2d believe App. 3d were admissible excluded him as plaintiff which the asserts issue. reason, has endured grace legal plaintiff little no With who is trying him as a person attack which characterizes personal he wants to be relieved burdens to disown his child because record, majority re- in the apparent support fatherhood. With no suggests bio- nature of fatherhood and “disposable” fers re- majority true concern. was not the logical plaintiff’s I find these the defendant. believing peatedly accuses plaintiff, fact that the when light attacks unfair particularly establishing a his, accepted responsibilities told the child was making payments. with the child and