2023 IL App (1st) 220599-U No. 1-22-0599 Third Division December 13, 2023
NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1).
______________________________________________________________________________
IN THE APPELLATE COURT OF ILLINOIS FIRST DISTRICT ______________________________________________________________________________
) JASON HOUSE, ) ) Plaintiff-Appellant, ) Appeal from the Circuit Court ) of Cook County. v. ) ) No. 2019 L 013759 ALI OTHMAN and SCOTT BERMAN, ) ) The Honorable Defendants ) Mary Colleen Roberts, ) Judge Presiding. (Ali Othman, ) Defendant-Appellee). ) ) ______________________________________________________________________________
PRESIDING JUSTICE REYES delivered the judgment of the court. Justices Lampkin and R. Van Tine concurred in the judgment.
ORDER
¶1 Held: The circuit court’s grant of defendant’s section 2-1401 petition is reversed where defendant was properly served via substitute service and failed to provide any evidence indicating that he had demonstrated due diligence in responding to the original lawsuit and in filing the section 2-1401 petition.
¶2 In 2019, plaintiff Jason House entered into a real estate contract with defendant Ali Othman
for the purchase of a multi-unit residential property. Defendant allegedly breached the contract, No. 1-22-0599
and plaintiff filed suit against defendant and the attorney representing defendant in the
transaction, codefendant Scott Berman (Berman). After neither defendant filed an appearance,
the circuit court ultimately entered default judgment against both defendants. Over a year later,
defendant filed a motion to vacate the default judgment pursuant to section 2-1401 of the Code
of Civil Procedure (Code) (735 ILCS 5/2-1401 (West 2020)), which the circuit court granted
over plaintiff’s objection. Plaintiff now appeals, claiming that the circuit court erred in granting
the section 2-1401 petition. For the reasons that follow, we reverse.
¶3 BACKGROUND
¶4 According to the complaint filed in the instant case, plaintiff and defendant entered into a
real estate contract in July 2019 for the sale of a four-unit residential property in Chicago;
defendant was represented by Berman in connection with the sale. Shortly before the closing,
defendant agreed to provide confirmation of the number of legal units for the property, as the
purchase price was based on the property being legally zoned as four units. At the closing,
however, defendant informed plaintiff that the property was zoned for only three units.
Consequently, the parties entered into an agreement at the closing (the escrow agreement)
which required that (1) defendant procure a zoning certificate indicating that the property was
zoned for four units, (2) defendant deposit $20,000 in escrow to Berman immediately after
receipt of the sale proceeds, (3) Berman as escrowee would pay plaintiff $1100 per month if
defendant failed to procure the zoning certificate, and (4) if defendant was unable to procure
the zoning certificate by the end of November 2019, Berman as escrowee would release the
balance of the funds held in escrow to plaintiff. Defendant, however, failed to procure the four-
unit zoning certificate and Berman failed to release the $20,000 held in escrow. As a result,
plaintiff filed a lawsuit in the circuit court of Cook County against both defendant and Berman,
2 No. 1-22-0599
alleging two counts of breach of contract against defendant (one for the real estate contract and
one for the escrow agreement) and breach of fiduciary duty against Berman.
¶5 According to an affidavit of service filed by the sheriff’s office of Cook County, defendant
was served by substitute service on January 2, 2020, “by leaving a copy of the summons and
complaint at the defendant’s usual place of abode with a family member or person residing
there, 13 years or older, and informing that person of the contents of the summons. Also, a
copy of the summons was mailed to the defendant at his or her usual place of abode on the 02
day of January 2020.” Berman was served by personal service on February 26, 2020.
¶6 Neither defendant filed an appearance and, in July 2020, plaintiff filed a motion for default.
The circuit court granted plaintiff’s motion in October 2020, and continued the matter for
prove-up on damages. On December 16, 2020, the circuit court entered judgment in favor of
plaintiff and against defendant in the amount of $154,000 plus attorney fees, for a total
judgment of $157,617.52. The circuit court also entered judgment in favor of plaintiff and
against Berman in the amount of $20,000, in addition to $5000 in punitive damages, for a total
judgment of $25,000. Plaintiff issued multiple citations to discover assets with respect to both
defendants between April and August 2021 but was unsuccessful in serving them. Plaintiff
ultimately served defendant by posting the citation to his door, as well as mailing it, in October
2021. In November 2021, the circuit court entered a rule to show cause as to defendant’s
noncompliance with the citation.
¶7 In January 2022, defendant filed an appearance, as well as a section 2-1401 petition for
relief from judgment. In his petition, defendant claimed that the circuit court “[i]nexplicably”
awarded plaintiff a judgment of nearly $158,000, which plaintiff could never have recovered
based on the allegations of the complaint and, therefore, defendant was entitled to vacate the
3 No. 1-22-0599
default judgment. Specifically, defendant contended that the entry of judgment against him
was improper where the failure to provide a four-unit zoning certificate was not a breach of
either the real estate contract or the escrow agreement and, even if it was, plaintiff waived such
a breach where he proceeded to close on the property despite the absence of the zoning
certificate. Defendant further claimed that he exercised his best efforts to obtain a four-unit
zoning certificate, so there was no intentional or material breach of the escrow agreement.
Finally, defendant argued in the alternative that he had substantially performed under the real
estate contract and, in any event, plaintiff would be limited to $20,000 in damages. Defendant
also contended that, since these defects were apparent on the face of the complaint, he was not
required to show diligence in bringing his petition. To the extent that the court found otherwise,
however, defendant claimed that he had shown diligence, as he did not become aware of the
matter until a default judgment had been entered against him and an alias citation to discover
assets had been posted.
¶8 In response, plaintiff filed a motion to dismiss defendant’s section 2-1401 petition,
contending that defendant had failed to demonstrate due diligence, as the petition was not based
on an error of law on the face of the record but instead was based on “ordinary, factual
defenses.” Plaintiff noted that defendant did not contest that he was properly served by
substitute service but merely claimed “for reasons left unexplained” that he did not receive a
copy of the summons or complaint and remained unaware of the lawsuit for over 18 months
after he had been served. Plaintiff further noted that Berman, defendant’s codefendant, had
been personally served and continued to represent defendant in real estate transactions after
the date of service and claimed that “[d]efendant wants this court to simply assume and accept
that he was diligent, without even explicitly denying the obvious that his attorney must have
4 No. 1-22-0599
discussed the fact a lawsuit had been filed against both of them and was proceeding to default
and judgment not just once but multiple times in the months the case remained pending.”
Finally, plaintiff pointed out that while defendant claimed he had not become aware of the
lawsuit until the alias citation was posted in October 2021, he had, in fact, signed for the copy
of the alias citation sent by certified mail in September 2021.
¶9 After considering the parties’ arguments, the circuit court entered an order granting
defendant’s section 2-1401 petition. First, the court found that defendant’s petition was
“substantively a motion to quash,” as defendant alleged that he had not been made aware of
the proceedings against him. The circuit court found that the affidavit of service filed by the
sheriff’s office was “not conclusive of service” on defendant, as “there is no indication that the
Complaint was later mailed to [defendant’s] residence as required to effectuate service.” The
court accordingly found that defendant had “stated a valid basis to quash service and to vacate
the default judgment against him.”
¶ 10 The circuit court additionally found that defendant’s petition satisfied all the requirements
to be entitled to relief under section 2-1401 of the Code. While the court “disagree[d]” with
defendant’s contention that he was not required to establish due diligence, the circuit court
nevertheless found that defendant had demonstrated due diligence in both responding to the
claims against him and in filing his section 2-1401 petition. The circuit court noted that
defendant alleged that he became aware of the matter in October 2021, and filed the instant
petition four months after that discovery. While the court observed that such a delay could
“normally” show a lack of due diligence, in this case, “the Court is inclined to be lenient given
that many are still adjusting to the COVID-19 pandemic” and consequently found that the four-
month delay was not unreasonable. The circuit court further found that defendant had asserted
5 No. 1-22-0599
a meritorious defense to plaintiff’s claims, as defendant had alleged that plaintiff’s recovery
exceeded the amount permitted under the contract. Finally, the court found that “as the Court
prefers to adjudicate cases on the merits, the Court at its discretion sees no reason to deny
[defendant’s] Section 2-1401 Petition.” Accordingly, the circuit court granted defendant’s
section 2-1401 petition to vacate the default judgment and denied plaintiff’s motion to dismiss
the petition. Plaintiff timely filed a notice of appeal, and this appeal follows.
¶ 11 ANALYSIS
¶ 12 On appeal, plaintiff contends that the circuit court erred in granting defendant’s section 2-
1401 petition where (1) defendant was properly served and (2) defendant failed to establish
due diligence in filing his petition. Plaintiff further argues that, before the circuit court granted
the petition, it should have conducted an evidentiary hearing, as plaintiff was challenging the
facts alleged in the petition.
¶ 13 Section 2-1401 of the Code “provides a comprehensive statutory procedure by which final
orders, judgments, and decrees may be vacated ‘after 30 days from the entry thereof.’ ” Smith
v. Airoom, Inc., 114 Ill. 2d 209, 220 (1986) (quoting Ill. Rev. Stat. 1983, ch. 110, ¶ 2-1401(a)).
A section 2-1401 petition can present either a factual or legal challenge to a final judgment or
order. Warren County Soil & Water Conservation District v. Walters, 2015 IL 117783, ¶ 31.
“Although a section 2-1401 petition is ordinarily used to bring facts to the attention of the trial
court which, if known at the time of judgment, would have precluded its entry [citation], a
section 2-1401 petition may also be used to challenge a purportedly defective judgment for
legal reasons [citation].” Paul v. Gerald Adelman & Associates, Ltd., 223 Ill. 2d 85, 94 (2006).
The nature of the challenge presented in a section 2-1401 petition is “critical,” as it dictates the
proper standard of review on appeal. Warren County, 2015 IL 117783, ¶ 31.
6 No. 1-22-0599
¶ 14 Where the petition raises a factual challenge, the petitioner must affirmatively set forth
specific factual allegations demonstrating (1) the existence of a meritorious defense or claim,
(2) due diligence in presenting the defense or claim to the circuit court in the original action,
and (3) due diligence in filing the section 2-1401 petition. Airoom, 114 Ill. 2d at 220-21. “The
quantum of proof necessary to sustain a section 2-1401 petition is a preponderance of the
evidence.” Airoom, 114 Ill. 2d at 221. “Whether a section 2-1401 petition should be granted
lies within the sound discretion of the circuit court, depending upon the facts and equities
presented.” Airoom, 114 Ill. 2d at 221.
¶ 15 By contrast, where a section 2-1401 petition raises a purely legal challenge to a judgment,
review of the petition is de novo. Warren County, 2015 IL 117783, ¶ 47. Moreover, if the
petition is based on an allegation that the underlying judgment is void, the “general rules”
pertaining to section 2-1401 petitions do not apply. Sarkissian v. Chicago Board of Education,
201 Ill. 2d 95, 104 (2002). Instead, our supreme court has explained that “[p]etitions brought
on voidness grounds need not be brought within the two-year time limitation. Further, the
allegation that the judgment or order is void substitutes for and negates the need to allege a
meritorious defense and due diligence.” Sarkissian, 201 Ill. 2d at 104; see also Warren County,
2015 IL 117783, ¶ 48.
¶ 16 Validity of Service
¶ 17 In this case, plaintiff’s first contention of error is his claim that the circuit court incorrectly
found that defendant was not properly served. Our supreme court has found that a section 2-
1401 petition challenging service represents a purely legal challenge on voidness grounds, as
defective service of process deprives the circuit court of personal jurisdiction over the
7 No. 1-22-0599
defendant. See Sarkissian, 201 Ill. 2d at 105; Warren County, 2015 IL 117783, ¶ 48.
Accordingly, we review the circuit court’s grant of defendant’s petition on this basis de novo.
¶ 18 As noted, defendant was served in the instant lawsuit through substitute service. Section 2-
203 of the Code governs service on individuals and provides, in relevant part, that an individual
may be served “by leaving a copy [of the summons] at the defendant’s usual place of abode,
with some person of the family or a person residing there, of the age of 13 years or upwards,
and informing that person of the contents of the summons, provided the officer or other person
making service shall also send a copy of the summons in a sealed envelope with postage fully
prepaid, addressed to the defendant at his or her usual place of abode.” 735 ILCS 5/2-203(a)(2)
(West 2018).
¶ 19 Here, the affidavit of service filed by the sheriff’s office averred that the deputy sheriff (1)
left a copy of the summons and complaint with a white male identified as “Safine Othman,”
approximately aged 48, at “the defendant’s usual place of abode” at 5:20 p.m. on January 2,
2020, and (2) mailed a copy of the summons on the same date to the same address. This
affidavit serves as prima facie evidence of service with respect to the above facts, which were
within the personal knowledge of the officer making the return, and “can only be set aside by
clear and satisfactory evidence.” Nibco, Inc. v. Johnson, 98 Ill. 2d 166, 172 (1983).
Importantly, defendant did not claim before the circuit court—and does not now claim—that
the sheriff’s office visited the incorrect address or that the individual served was not “some
person of the family or a person residing there, of the age of 13 years or upwards.” 735 ILCS
5/2-203(a)(2) (West 2018). Accordingly, defendant was properly served, and the circuit court
therefore had personal jurisdiction over him. See In re J.B., 2018 IL App (1st) 173096, ¶ 32 (a
court may obtain jurisdiction over a defendant through substitute service).
8 No. 1-22-0599
¶ 20 While we acknowledge that the circuit court found otherwise, we cannot agree with its
conclusion. In its order, the circuit court found that “there is no indication that the Complaint
was later mailed to [defendant’s] residence as required to effectuate service.” The affidavit of
service, however, provides that in addition to leaving a copy of the summons and complaint at
defendant’s “usual place of abode,” “a copy of the summons was mailed to the defendant at
his or her usual place of abode on the 02 day of January 2020.” Section 2-203(a) of the Code
provides that “[t]he certificate of the officer or affidavit of the person that he or she has sent
the copy in pursuance of this Section is evidence that he or she has done so.” 735 ILCS 5/2-
203(a) (West 2018). We therefore presume that the deputy sheriff, in fact, mailed a copy of the
summons to the address listed on the affidavit of service (which, again, defendant does not
claim is an incorrect address). See Alvarez v. Feiler, 174 Ill. App. 3d 320, 324-25 (1988)
(finding that an affidavit of service which provided that “ ‘a copy of the summons was mailed
to the defendant at the above address’ ” complied with the requirements of section 2-203(a)).
¶ 21 To the extent that the circuit court’s conclusion was based on the fact that the affidavit
indicates that a copy of the summons was mailed to defendant’s address, not the summons and
complaint, we note that section 2-203(a)(2) requires only the mailing of the summons, not the
complaint, in order to effectuate service. See 735 ILCS 5/2-203(a)(2) (West 2018) (substitute
service on an individual includes the requirement that “the officer or other person making
service shall also send a copy of the summons in a sealed envelope with postage fully prepaid,
addressed to the defendant at his or her usual place of abode” (emphasis added)).
Consequently, we find no error in the affidavit of service and must disagree with the circuit
court’s conclusion that “defects appear on the face of the Sheriff’s Affidavit” which provide a
basis to vacate the default judgment against defendant.
9 No. 1-22-0599
¶ 22 We are similarly unpersuaded by defendant’s contention that his affidavit, which he
attached to his section 2-1401 petition, provides a basis for finding that he was not validly
served. Defendant is correct that facts which are not within a process server’s personal
knowledge may be denied in an affidavit by the defendant and, if such an affidavit is not
rebutted, “that part of the affidavit attacking those recitals in the return which are beyond the
personal knowledge of the officer would be taken as true.” Nibco, 98 Ill. 2d at 173; Abbington
Trace Condominium Ass’n v. McKeller, 2016 IL App (2d) 150913, ¶ 12. In this case, however,
defendant’s affidavit does not challenge any of the facts contained in the affidavit of service.
Instead, the only allegations in his affidavit concerning service—and the sole contention raised
in his section 2-1401 petition on the matter—were that he did not receive a copy of the
summons and complaint, and did not become aware of the existence of the lawsuit until after
the default judgment had been entered against him. Defendant was not served through personal
service, however, but through substitute service, which is “service on a defendant that involves
service on another person.” In re J.B., 2018 IL App (1st) 173096, ¶ 32. Of course, statutes
permitting substitute service presuppose a relationship between the defendant and the person
accepting the service such that the defendant will be apprised of the service. See Mid-America
Federal Savings & Loan Ass’n v. Kosiewicz, 170 Ill. App. 3d 316, 327 (1988). The fact
remains, however, that section 2-203 sets forth several ways in which service on an individual
may be made, and defendant was properly served in accordance with the terms of the statute,
despite his assertions as to when he obtained actual knowledge of the lawsuit. Consequently,
there was no basis for granting the section 2-1401 petition due to defective service.
10 No. 1-22-0599
¶ 23 Merits of Petition
¶ 24 While we have determined that defendant’s claims regarding service did not constitute a
basis for granting his section 2-1401 petition, the circuit court’s order in the instant case also
found that the petition should be granted based on its merits. Thus, if we agree with the circuit
court’s conclusion as to this issue, we will affirm the circuit court’s grant of defendant’s section
2-1401 petition. See Ray Dancer, Inc. v. DMC Corp., 230 Ill. App. 3d 40, 50 (1992) (we may
affirm on any basis appearing in the record).
¶ 25 As an initial matter, the parties disagree as to the proper standards to be applied in
consideration of defendant’s claims. Plaintiff argues that the Airoom standards apply, requiring
defendant to demonstrate (1) the existence of a meritorious defense or claim, (2) due diligence
in presenting the defense or claim to the circuit court in the original action, and (3) due
diligence in filing the section 2-1401 petition. Airoom, 114 Ill. 2d at 220-21. By contrast,
defendant contends that, since his challenge is based on legal errors apparent from the face of
the complaint, he was not required to show diligence. See Aurora Loan Services, LLC v. Pajor,
2012 IL App (2d) 110899, ¶ 19.
¶ 26 Defendant’s position is based on his claim that his petition was in the nature of a bill of
review, which does not require a showing of diligence. As noted, section 2-1401 petitions
encompass both factual challenges and legal challenges to underlying judgments. See Warren
County, 2015 IL 117783, ¶ 31; Paul, 223 Ill. 2d at 94. One type of legal challenge available
under section 2-1401 is one which is in the nature of a bill of review. Pajor, 2012 IL App (2d)
110899, ¶ 15. Our supreme court has explained that, prior to the enactment of section 2-1401
and its predecessor, bills of review were available “for the purpose of obtaining relief from
decrees for error apparent upon the face of the record.” Collins v. Collins, 14 Ill. 2d 178, 183
11 No. 1-22-0599
(1958). Such a remedy was available “only for an error of law apparent on the record,” such
as where the decree was contrary to a rule of law or statutory provision. Id. More recently, our
colleagues in the Second District have suggested that the proper test to apply in considering
bill-of-review-based section 2-1401 petitions is determining whether “the trial court’s ruling
was legally inconsistent with the undisputed facts.” Pajor, 2012 IL App (2d) 110899, ¶ 21; see
also Hanson v. De Kalb County State’s Attorney’s Office, 391 Ill. App. 3d 902, 911 (2009). As
a purely legal challenge, no showing of diligence is required (Pajor, 2012 IL App (2d) 110899,
¶ 19; Harris Bank, N.A. v. Harris, 2015 IL App (1st) 133017, ¶ 59), and our review is de novo
(Pajor, 2012 IL App (2d) 110899, ¶ 21; Warren County, 2015 IL 117783, ¶ 47).
¶ 27 In this case, we cannot find that defendant’s section 2-1401 petition was in the nature of a
bill of review but instead agree with the circuit court that it was a fact-dependent challenge
subject to the Airoom requirements. Defendant’s petition essentially alleged that plaintiff failed
to state a claim for breach of contract, based on the allegations of the complaint and the exhibits
attached thereto. This is not the kind of claim in which courts have found bills of review to be
appropriate; all of the cases cited by defendant before the circuit court and on appeal involve
situations in which the undisputed facts established the judgment entered by the lower court
was in direct contravention of a statute. See Pajor, 2012 IL App (2d) 110899, ¶ 22 (mortgagee
failed to strictly comply with statutory requirements of a complaint to foreclose); Hanson, 391
Ill. App. 3d at 911 (convicted felon was barred from obtaining firearm owner’s identification
card); Collins, 14 Ill. 2d at 183-84 (statutory period of “habitual drunkenness” was impossible
based on length of marriage). See also Van Dam v. Van Dam, 21 Ill. 2d 212, 217-18 (1961)
(noting that the error in Collins “was not the result of mistaken judgment, but rather was the
granting of relief contrary to, and in direct violation of[,] statutory enactment”). Defendant has
12 No. 1-22-0599
cited no cases in which a bill-of-review-type analysis has been applied in the context of
challenging a simple breach of contract action.
¶ 28 Moreover, here, the facts are not undisputed. Defendant points to facts which are alleged
in the complaint but are arguably not supported by the exhibits to the complaint, contending
that they show that plaintiff cannot succeed on his breach of contract claim. While defendant
is correct that, for instance, the real estate contract attached to the complaint does not expressly
mention four units, that does not necessarily mean that the parties’ agreement did not include
such a term. Neither the real estate contract nor the escrow agreement contains an integration
clause, so it is possible that prior communications could have established additional consistent
terms of the agreement, especially where the real estate contract is altogether silent as to the
number of units contained in the building and where the escrow agreement specifically
references a four-unit zoning certificate. See J&B Steel Contractors, Inc. v. C. Iber & Sons,
Inc., 162 Ill. 2d 265, 275 (1994) (where contract was silent as to completion date,
circumstances including the absence of an integration clause demonstrated that the contract
did not represent entire agreement of the parties). Indeed, defendant himself established that
the contract attached to the complaint did not represent the entire agreement between the
parties—as an exhibit to his section 2-1401 petition, he attached written modifications to the
contract which were agreed to during the attorney review period. Defendant also raised a
number of factual defenses to plaintiff’s claims, including waiver and his alleged exercise of
his “best efforts” to obtain four-unit zoning, and also challenged the circuit court’s damages
calculation, which occurred only after a prove-up hearing and therefore necessarily requires
the consideration of facts outside the four corners of the complaint itself. See Illinois
Neurospine Institute, P.C. v. Carson, 2017 IL App (1st) 163386, ¶ 33 (a default judgment
13 No. 1-22-0599
requires both a finding of liability and an assessment of damages). These defenses further
highlight the factual issues at play in resolving plaintiff’s claims.
¶ 29 “[T]he issues of whether a contract existed, the parties’ intent in forming it, and its terms
are all questions of fact to be determined by the trier of fact.” Prignano v. Prignano, 405 Ill.
App. 3d 801, 810 (2010). Similarly, whether a material breach of a contract has occurred is a
question of fact. Direct Auto Insurance Co. v. O’Neal, 2022 IL App (1st) 211568, ¶ 15. It may
well be the case that plaintiff’s complaint, as presently drafted, contains deficiencies—that is
not the question before us, however. As noted, a bill of review is meant for “an error of law
apparent on the record” (Collins, 14 Ill. 2d at 183), where “the trial court’s ruling was legally
inconsistent with the undisputed facts” (Pajor, 2012 IL App (2d) 110899, ¶ 21). We cannot
say that is the case here and, accordingly, agree with the circuit court that defendant’s petition
raises a fact-based challenge, in which he was required to establish diligence. See Harris Bank,
2015 IL App (1st) 133017, ¶ 60 (finding that section 2-1401 petition did not raise a purely
legal error where the plaintiff presented fact-dependent challenges to the circuit court’s
judgment).
¶ 30 As noted, where a section 2-1401 petition raises a fact-dependent challenge, the petitioner
is required to allege facts establishing (1) the existence of a meritorious defense or claim,
(2) due diligence in presenting the defense or claim to the circuit court in the original action,
and (3) due diligence in filing the section 2-1401 petition. Airoom, 114 Ill. 2d at 220-21. In this
case, plaintiff challenges only the circuit court’s finding as to defendant’s diligence,
contending that defendant failed to establish his diligence or that, at a minimum, the circuit
court should have held an evidentiary hearing before granting defendant’s petition.
14 No. 1-22-0599
¶ 31 First, we cannot find that an evidentiary hearing was required in the instant case. Where
the facts alleged in a section 2-1401 petition are challenged by the respondent, a “full and fair
evidentiary hearing must be held.” Id. at 223. Here, however, plaintiff did not “challenge” the
facts alleged in the petition (see id.), but instead filed a section 2-615 motion to dismiss the
petition as insufficiently pled. A section 2-1401 petition constitutes a separate and independent
action from the original proceeding. Warren County, 2015 IL 117783, ¶ 31. Accordingly,
proceedings under section 2-1401 are subject to “the usual rules of civil practice.” People v.
Vincent, 226 Ill. 2d 1, 8 (2007). As with any pleading, where it fails to state a cause of action
or shows on its face that the petitioner is not entitled to relief, it is subject to a motion to
dismiss. Ostendorf v. International Harvester Co., 89 Ill. 2d 273, 279-80 (1982); La Rabida
Children’s Hospital & Research Center v. Harrison, 263 Ill. App. 3d 790, 796 (1994).
¶ 32 In this case, plaintiff’s motion to dismiss contended that defendant had failed to allege
sufficient facts to establish diligence. To the extent that plaintiff’s motion challenged the
veracity of defendant’s facts, it did so through unsupported skepticism and by pointing to an
envelope containing an alias citation to discover assets which defendant signed for on
September 13, 2021. Other than that, plaintiff did not attach any exhibits or otherwise challenge
any of defendant’s allegations as to the date he obtained actual knowledge of the lawsuit, or
his allegations as to his course of conduct after receiving such actual knowledge. 1 Thus, we
cannot find that plaintiff’s limited challenge to defendant’s factual allegations required an
evidentiary hearing.
1 While plaintiff did attach exhibits to his motion to dismiss the section 2-1401 petition, they consisted of the proof of substitute service, the various notices of motions and alias citations to discover assets which plaintiff’s counsel had mailed to defendant’s address, and several warranty deeds which Berman appears to have prepared on defendant’s behalf. 15 No. 1-22-0599
¶ 33 Even in the absence of an evidentiary hearing, however, we agree with plaintiff that
defendant’s allegations failed to establish diligence in responding to the lawsuit and in filing
his section 2-1401 petition. Whether a section 2-1401 petition should be granted “lies within
the sound discretion of the circuit court, depending upon the facts and equities presented.”
Airoom, 114 Ill. 2d at 221. Accordingly, we will reverse the circuit court’s judgment only
where it has abused its discretion.2 Id. “ ‘[A] trial court abuses its discretion if it fails to apply
the proper criteria when it weighs the facts,’ and a reviewing court ‘must consider both the
legal adequacy of [the] way the trial court reached its result as well as whether the result is
within the bounds of reason.’ ” Paul, 223 Ill. 2d at 99 (quoting People v. Ortega, 209 Ill. 2d
354, 360 (2004)).
¶ 34 Here, the circuit court found that defendant had established due diligence, as defendant
alleged that he first became aware of the lawsuit in October 2021 and filed his petition four
months after the discovery. The court further found that while a four-month delay could
demonstrate a lack of diligence in other cases, “the Court is inclined to be lenient given that
many are still adjusting to the COVID-19 pandemic” and, accordingly, found the delay not to
be unreasonable. We cannot find, however, that the record supports the circuit court’s
conclusion and therefore must find that its decision to grant defendant’s petition constitutes an
abuse of discretion.
¶ 35 There is no bright-line rule for determining whether a petitioner has acted diligently, as
“due diligence is judged by the reasonableness of the petitioner’s conduct under all of the
2 Plaintiff contends that we should apply a de novo standard of review, as the circuit court did not conduct an evidentiary hearing. Plaintiff’s citation to Warren County in support of this point is inapposite, however, as it was discussing legal-based challenges to a judgment, not the fact-based challenges as in the case at bar. See Warren County, 2015 IL 117783, ¶ 45 (discussing Vincent, which represented a legal challenge to a judgment). 16 No. 1-22-0599
circumstances.” Id. at 99-100. However, due diligence requires the petitioner to have a
reasonable excuse for failing to act, and “does not afford a litigant a remedy whereby he may
be relieved of the consequences of his own mistake or negligence.” Airoom, 114 Ill. 2d at 222.
In this case, the circuit court relied on defendant’s allegation that he first became aware of the
lawsuit in October 2021 in finding that a four-month delay in filing the petition was not
unreasonable. As explained above, however, defendant was served, albeit through substitute
service, in January 2020. Thus, his delay was not four months but, instead, was two years after
service, and over a year after the entry of the default judgment. Defendant provided no
explanation for the delay between the date of the service and the date he allegedly first became
aware of the lawsuit, and we cannot find that his bare allegation as to the date of his actual
knowledge 3 constitutes sufficient evidence of his diligence in responding to the lawsuit. While
we recognize that the circuit court may have been inclined to be lenient, especially given the
circumstances present in the world in 2020 and 2021, defendant’s failure to provide any
evidence—or even any explanation, written or otherwise—to excuse his delay in the instant
case means that he has no “reasonable excuse for failing to act” (Airoom, 114 Ill. 2d at 222),
as required for relief under section 2-1401. We therefore must find that the circuit court abused
its discretion in finding the due diligence requirement satisfied, and accordingly reverse its
grant of defendant’s section 2-1401 petition. See Carson, 2017 IL App (1st) 163386, ¶ 36
(finding abuse of discretion where defendant failed to establish due diligence).
3 We note that attached to plaintiff’s motion to dismiss was a certified mailing receipt which indicates that defendant signed for a document on September 13, 2021. While the receipt does not indicate which document was mailed, the record shows that plaintiff’s attorney mailed a copy of an alias citation to discover assets to defendant via certified mail on September 7, 2021, and plaintiff’s motion alleges that this is the document which defendant signed for on September 13, 2021. Our analysis remains the same, however, regardless of whether defendant purportedly became aware of the lawsuit in September 2021 or October 2021. 17 No. 1-22-0599
¶ 36 CONCLUSION
¶ 37 The circuit court’s grant of defendant’s section 2-1401 petition is reversed, as defendant
was properly served by substitute service and failed to establish compliance with the
requirements for relief under section 2-1401 as set forth by our supreme court in Airoom.
¶ 38 Reversed.