2017 IL App (1st) 163386 No. 1-16-3386 Fourth Division September 21, 2017 ______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
FIRST DISTRICT
______________________________________________________________________________
) ILLINOIS NEUROSPINE INSTITUTE, P.C., ) Appeal from the Circuit Court ) of Cook County. Plaintiff-Appellant, ) ) No. 2016 L 000391 v. ) ) The Honorable LEON CARSON, ) Patrick J. Sherlock, ) Judge Presiding. Defendant-Appellee. ) ) ______________________________________________________________________________
JUSTICE GORDON delivered the judgment of the court, with opinion. Justices McBride and Ellis concurred in the judgment and opinion.
OPINION
¶1 The instant appeal arises from the trial court’s grant of defendant Leon Carson’s section
2-1401 petition to vacate a default judgment (735 ILCS 5/2-1401 (West 2014)) entered
against him in a breach of contract lawsuit filed by plaintiff Illinois Neurospine Institute, P.C.
Plaintiff appeals, arguing that the trial court erred in granting the petition because defendant
did not allege due diligence in his petition. For the reasons that follow, we reverse.
¶2 BACKGROUND
¶3 On January 13, 2016, plaintiff filed a breach of contract complaint against defendant,
alleging that on November 28, 2011, and continuing thereafter, defendant sought medical No. 1-16-3386
care and treatment from plaintiff for injuries that defendant had suffered; the complaint did
not detail the type of injuries defendant had suffered or the cause of those injuries. The
complaint further alleges that on February 9, 2012, defendant entered into a written
agreement with plaintiff whereby defendant agreed to be financially responsible to plaintiff
for all professional medical services provided by plaintiff. The complaint alleges that
plaintiff had fully performed its obligations under the written agreement, but that, “after
applying all credits for payments made by or on behalf of [defendant],” there remained an
outstanding balance of $98,276.78. Accordingly, defendant requested judgment in its favor
for $98,276.78, plus interest and court costs.
¶4 Attached to the complaint was a document entitled “Financial Responsibility Statement,”
which provided that “For and in consideration of services rendered by [plaintiff], patient
(responsible person) hereby agrees to and guarantees payment of all charges incurred for the
account of the patient.” The financial responsibility statement contained defendant’s printed
name handwritten on the bottom of the statement on the line labeled “Patient Name” and
contained a handwritten date of February 9, 2012. There appears to be a space for an
additional name, but that space has been whited-out, so it is not clear whose name, if any,
appeared there.
¶5 According to the record on appeal, defendant was personally served with a copy of the
summons and complaint on January 27, 2016.
¶6 The matter was set for a status hearing on March 10, 2016, at which “all parties must be
represented by counsel or appear in person and must be prepared to report to the court on the
status of the case including the status of discovery.” On that date, the trial court entered an
order of default against defendant and set the matter for prove-up of damages on April 7,
No. 1-16-3386
2016. On April 7, 2016, the trial court continued the prove-up to April 15, 2016. On April 15,
2016, the trial court entered judgment in the amount of $98,276.78 plus court costs in favor
of plaintiff and against defendant.
¶7 On October 18, 2016, plaintiff filed citations to discover assets directed at both defendant
and a law firm.
¶8 On October 20, 2016, defendant, through the law firm listed in the citation to discover
assets, filed a petition to vacate the default judgment pursuant to section 2-1401 of the Code
of Civil Procedure (Code) (735 ILCS 5/2-1401 (West 2014)). The petition contained a
“factual overview” section, which provided that on December 21, 2010, defendant slipped
and fell while working at a grocery store as a merchandiser for Coca-Cola, which “caused
[defendant] to herniate a disc between L5 and S1, requiring a discectomy and fusion.” Due to
this accident, on February 1, 2011, defendant “filed a complaint[1] against his employer,
Coca-Cola[,] under the Workers’ Compensation Act [(820 ILCS 305/1 et seq. (West
2010))].” In 2012, defendant filed a third-party personal injury lawsuit against the grocery
store and two other defendants.
¶9 According to the 2-1401 petition, from August 29, 2011, until May 8, 2013, defendant
was treated by Dr. Ronald Michael, one of plaintiff’s physicians, for his injuries and, on
March 24, 2012, underwent a lumbar fusion and discectomy performed by Dr. Michael.
Defendant was charged a total of $124,743.71 in connection with his care and treatment by
plaintiff.
1 We presume that defendant actually filed an application for adjustment of claim with the Workers’ Compensation Commission, as opposed to filing a “complaint” in the circuit court, because proceedings before the circuit court would only occur if defendant was seeking review of the Commission’s decision under section 19(f) of the Workers’ Compensation Act. 820 ILCS 305/19(f) (West 2010). 3
¶ 10 According to the petition, on February 27, 2014, defendant’s workers’ compensation
claim was settled for $100,000. Plaintiff and Dr. Michael, “who liened [defendant’s]
workers’ compensation claim,” 2 were paid $27,003.59 from the settlement. On January 6,
2016, Dr. Michael also asserted a physician’s lien in defendant’s third-party personal injury
lawsuit.
¶ 11 According to the petition, on January 13, 2016, “Dr. Michael” filed the complaint in the
instant case for breach of contract, alleging that defendant had breached his contract “with
Dr. Michael.” 3 On April 15, 2016, the trial court entered judgment against defendant and in
favor of plaintiff in the amount of $98,276.78, which was “seemingly the balance of the
$124,743.71 which was offset by the payment of $27,003.59 from the workers’
compensation settlement, plus interest and costs of filing suit.”
¶ 12 According to the petition, on October 12, 2016, defendant settled his third-party personal
injury lawsuit for $800,000. Defendant did not believe that plaintiff or Dr. Michael were
entitled to further reimbursement, but “in an attempt to resolve the alleged outstanding
balance owed to [plaintiff] and Dr. Michael, offered $15,000.00 in full and final resolution of
the lien,” which plaintiff rejected.
2 It is not clear exactly what defendant is referring to by claiming that his workers’ compensation settlement was “liened.” Section 21 of the Workers’ Compensation Act states that “[n]o payment, claim, award or decision under this Act shall be assignable or subject to any lien, attachment or garnishment, or be held liable in any way for any lien, debt, penalty or damages.” 820 ILCS 305/21 (West 2010). Furthermore, under the Health Care Services Lien Act, “[e]very health care professional and health care provider that renders any service in the treatment, care, or maintenance of an injured person, except services rendered under the provisions of the Workers’ Compensation Act *** shall have a lien upon all claims and causes of action of the injured person for the amount of the health care professional’s or health care provider’s reasonable charges up to the date of payment of damages to the injured person.” (Emphasis added.) 770 ILCS 23/10(a) (West 2010). Thus, neither plaintiff nor Dr. Michael would have been able to subject defendant’s workers’ compensation award to a lien. 3 We note that Dr. Michael is not a party to the complaint at issue in the instant case, which lists only plaintiff—the corporation—as a plaintiff. However, Dr. Michael’s affidavit, discussed further below, indicates that he was an officer of the corporation. 4
¶ 13 The petition asked the trial court to vacate the April 15, 2016, judgment, claiming “(1)
the Illinois’ Workers’ Compensation Act, 820 ILCS 305 § 8.2(e) expressly prohibits balance
billing; (2) [plaintiff’s] charges far exceed the Illinois Commission’s proscribed [sic] fee
schedule; (3) [defendant] has a good faith belief that the contract suggesting his consent to
repay [plaintiff] and Dr. Michael for professional medical services is not authentic; and (4)
interests of equity [and] fairness require the judgment be vacated.” The petition did not claim
that defendant had acted with due diligence in answering the complaint or in filing the
petition but instead claimed that “ ‘[a] petition may be granted even in absence of a showing
of due diligence where justice or good conscience require.’ ” 4 The petition was not verified
and no affidavit from defendant was attached to the petition.
¶ 14 On December 1, 2016, plaintiff filed a response to defendant’s section 2-1401 petition to
vacate the default judgment. The response claimed that (1) the petition was not supported by
affidavit and (2) the petition did not make a showing of due diligence in responding to the
complaint. With respect to the due diligence argument, plaintiff argued that the equitable
exception to the due diligence requirement has been applied only where the opposing party or
its counsel acted improperly and defendant “does not argue any trick or contrivance to justify
his failure to appear to assert his defenses within the time required by law.” Plaintiff noted
that defendant admitted in his petition that he had been served with the summons and
complaint and did not explain why he did not file an appearance or answer the complaint
after receiving such notice. Plaintiff further argued that defendant had made no showing that
4 Defendant purports to be quoting the Illinois Supreme Court decision of Smith v. Airoom, Inc., 114 Ill. 2d 209 (1986). However, while the proposition of law defendant cites is accurate, the language defendant “quotes” appears nowhere in the decision. Instead, the supreme court held that “[b]ecause a section 2-1401 petition is addressed to equitable powers, courts have not considered themselves strictly bound by precedent, and where justice and good conscience may require it a default judgment may be vacated even though the requirement of due diligence has not been satisfied.” Airoom, 114 Ill. 2d at 225. 5
his defenses to the complaint had only come to light since judgment had been entered.
Plaintiff also argued that defendant had offered no explanation for his delay in filing his
petition to vacate the default judgment. Finally, plaintiff challenged defendant’s defenses and
argued that defendant had failed to establish that he had a meritorious defense to the
complaint.
¶ 15 Attached to the response was the affidavit of Dr. Michael, in which he averred that
defendant executed the financial responsibility statement that was attached to the complaint,
which had been delivered to plaintiff via fax from a fax number that defendant had provided
as his fax number. Dr. Michael averred that he was the individual in charge of all medical
billing and coding of charges, that the amounts charged by plaintiff were the same rates
charged to all patients, and that defendant’s outstanding balance was $98,276.78. Dr.
Michael further averred that he “consulted with [defendant’s] attorneys in connection with
his Workers’ Compensation case and personal injury litigation” and had been advised that
plaintiff’s bills would be paid through the lien on the personal injury cause of action, as
opposed to the workers’ compensation claim. Defendant’s attorney “requested [Dr.
Michael’s] cooperation and patience in building [defendant’s] case by, among other things,
submitt[ing] [plaintiff’s] bills as evidence of [defendant’s] damages and providing deposition
testimony regarding the treatment provided to [defendant].” Accordingly, Dr. Michael did
not attempt any further collection under the Workers’ Compensation Act and “it was [his]
understanding that [defendant] had abandoned his claim for workers’ compensation recovery
as to [plaintiff’s] bills and that such claims would be paid pursuant to the Illinois Health
Services Lien Act and contract rights.” Dr. Michael averred that “[u]pon information and
belief, [defendant’s] settlement approved by the Illinois Workers’ Compensation
Commission made no provision for the payment of [plaintiff’s] bills under the Workers’
Compensation Act.”
¶ 16 On December 9, 2016, defendant filed a reply in support of his section 2-1401 petition, in
which he claimed that his “meritorious defense and diligence in bringing this Petition to
Vacate per Section 2-1401, along with the interests of equity, justice and fairness, require the
default judgment be vacated to effect substantial justice.” Defendant first argued that the
financial responsibility statement was not valid because it did not contain his signature. In
making this argument, defendant admitted that counsel for plaintiff had informed him that a
judgment in the amount of $98,276.78 had been entered in favor of plaintiff and against
defendant and had sent defendant’s counsel a copy of the default judgment and complaint. In
response to being informed of the default judgment, defendant’s counsel claimed that the
contract did not contain defendant’s signature.
¶ 17 Defendant also addressed plaintiff’s arguments concerning due diligence, arguing that
“the issue of diligence in defending the underlying suit is the last element considered by
Illinois Courts of Appeal, including the Illinois Supreme Court, when determining if the
petitioner’s motion for vacatur should be granted.” Defendant claimed that “[h]ere, principals
[sic] of equity, justice and good conscious [sic] require the default judgment be vacated even
though [defendant] admittedly did not take action when receiving summons and the
Complaint. When the Complaint was filed, in January of 2016, [defendant] was consumed
with his third party personal injury lawsuit, and believed [plaintiff’s] medical bills had been
satisfied because [plaintiff] chose to receive immediate repayment from [defendant’s]
worker’ compensation award two years prior.” Defendant claimed that he “fully became
aware [plaintiff] was continuing [to] pursue satisfaction of outstanding payment” at the time
of the settlement of his personal injury lawsuit on October 5, 2016. At that point,
“[defendant] realized [plaintiff] was demanding repayment of nearly $100,000.00 and he
reviewed the Contract at issue.” Defendant claimed that “[i]mmediately after appreciating the
fraudulent nature of the Contract and [plaintiff’s] decision to ignore well-established Illinois
law,” defendant filed his section 2-1401 petition 15 days later.
¶ 18 Finally, defendant addressed the claims made by plaintiff as to the existence of a
meritorious defense. In addressing these claims, defendant also argued that an affidavit was
not required, because he provided “considerable new evidence brought to light after the entry
of the default judgment,” which included “(a) the realization that the Contract was not signed
and that [plaintiff] cannot produce a signed version of said Contract, (b) the realization that
[plaintiff] would be illegally balanced [sic] billing by recovering from [defendant’s] third
party personal injury lawsuit after recovering from workers’ compensation proceeds, and (c)
the realization [that plaintiff’s] charges are over 64% more than that proscribed [sic] by the
Commission’s fee schedule.” Defendant also argued that Dr. Michael had made numerous
false statements in his affidavit, including his claims that he had spoken with defendant’s
counsel.
¶ 19 Attached to the reply was an e-mail chain between plaintiff’s counsel and defendant’s
counsel, which contains an e-mail dated October 5, 2016, from plaintiff’s counsel stating:
“Here is the agreement, default order and the judgment order.” Also attached to the reply was
defendant’s affidavit, in which defendant averred that “[p]rior to January 13, 2016, I had
never seen the Financial Responsibility Statement, nor did I agree to its terms.” Defendant
further averred that his handwriting did not appear on the financial responsibility statement,
nor did his signature, and he “never entered into any written or oral agreement with the
Plaintiff to pay for medical services above the cost approved by worker’s compensation
schedules.”
¶ 20 Finally, attached to the reply was the affidavit of defendant’s counsel, Thomas Murphy,
who averred that he represented defendant in his third-party personal injury lawsuit. Murphy
averred that “[p]rior to settlement of the third party personal injury lawsuit, [he] made
repeated efforts to get in touch with [defendant’s] treater,” Dr. Michael. However, “[e]ach
time [he] called the office, [he] was denied the ability to speak with Dr. Michael and [he] was
not given the opportunity to leave a message, or schedule a phone conference with the
doctor. Moreover, [he] never received a call-back from the doctor.” Murphy averred that he
“was not even able to briefly discuss [defendant’s] medical conditions and treatment prior to
Dr. Michael’s discovery deposition in the underlying third party personal injury case, as is
common with plaintiff’s medical treaters prior to their discovery deposition in a personal
injury case.” Finally, Murphy averred that “[o]n information and belief, of the $100,000.00
workers’ compensation settlement proceeds, [plaintiff] and Dr. Michael received $27,003.59
in repayment for medical services rendered to [defendant].”
¶ 21 On December 21, 2016, the trial court entered an order granting defendant’s section 2
1401 petition to vacate the default judgment. This appeal follows.
¶ 22 ANALYSIS
¶ 23 On appeal, plaintiff argues that the trial court erred in granting defendant’s section 2
1401 petition to vacate the default judgment against him because defendant’s petition was
insufficient as a matter of law due to defendant’s failure to show due diligence and his failure
to attach a supporting affidavit to his petition. We have jurisdiction to consider the instant
appeal pursuant to Illinois Supreme Court Rule 304(b)(3) (eff. Feb. 26, 2010), which
provides that “[a] judgment or order granting or denying any of the relief prayed in a petition
under section 2-1401 of the Code of Civil Procedure” is immediately appealable. See S.C.
Vaughan Oil Co. v. Caldwell, Troutt & Alexander, 181 Ill. 2d 489, 496-97 (1998) (“when a
circuit court grants relief on a section 2-1401 petition, as the trial court did here, the appellate
court has jurisdiction to review that decision under Rule 304(b)(3)”).
¶ 24 Section 2-1401 “provides a comprehensive statutory procedure by which final orders,
judgments, and decrees may be vacated ‘after 30 days from the entry thereof.’ ” Airoom, 114
Ill. 2d at 220 (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. *** [T]he nature
of the challenge presented in a section 2-1401 petition is critical because it dictates the proper
standard of review on appeal.” Warren County Soil & Water Conservation District v.
Walters, 2015 IL 117783, ¶ 31.
¶ 25 Plaintiff suggests that, since the trial court granted the petition in the instant case on the
pleadings alone, de novo review is appropriate. However, our supreme court has noted that
the de novo review of a 2-1401 petition is limited to the “specific niche” of section 2-1401
petitions “presenting a purely legal claim challenging a final judgment or order as void.”
Warren County, 2015 IL 117783, ¶ 49. In the case at bar, by contrast, defendant raises a
factual challenge to the default judgment, namely, that under the factual circumstances of the
case, plaintiff was not entitled to relief. Where the petition raises a factual challenge, “[t]o be
entitled to relief under section 2-1401, the petitioner must affirmatively set forth specific
factual allegations supporting each of the following elements: (1) the existence of a
meritorious defense or claim; (2) due diligence in presenting this defense or claim to the
circuit court in the original action; and (3) due diligence in filing the section 2-1401 petition
for relief.” 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.
¶ 26 “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. “In reviewing discretionary rulings by the trial court, an appeals court must look to the
criteria on which the trial court should rely to determine if the trial court abused its
discretion.” (Internal quotation marks omitted.) Paul v. Gerald Adelman & Associates, Ltd.,
223 Ill. 2d 85, 99 (2006). “ ‘[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)).
¶ 27 In the case at bar, the issue we must consider is whether defendant satisfied section 2
1401’s requirement of due diligence. As noted, to prevail on a section 2-1401 petition, the
petitioner must affirmatively set forth specific factual allegations supporting both the
petitioner’s “due diligence in presenting [a meritorious] defense or claim to the circuit court
in the original action; and *** due diligence in filing the section 2-1401 petition for relief.”
Airoom, 114 Ill. 2d at 220-21. “No bright-line rule exists for judging whether a petitioner has
acted diligently. Rather, due diligence is judged by the reasonableness of the petitioner’s
conduct under all of the circumstances.” Paul, 223 Ill. 2d at 99-100.
¶ 28 Defendant makes a brief argument concerning his diligence in presenting his defense to
the trial court and in his filing of the section 2-1401 petition. However, the bulk of his
argument, both on appeal and before the trial court below, focuses on his assertion that he did
not need to establish diligence because “[a] section 2-1401 petition *** invokes the equitable
powers of the trial court, such that the court is not strictly bound by precedent and, where
justice and good conscience require it, a default judgment may be vacated even though the
requirement of diligence has not been satisfied.” Defendant claims that the default judgment
here should be vacated because it falls within this equitable exception.
¶ 29 Our supreme court has noted that “[o]ne of the guiding principles *** in the
administration of section 2-1401 relief is that the petition invokes the equitable powers of the
circuit court, which should prevent enforcement of a default judgment when it would be
unfair, unjust, or unconscionable.” Airoom, 114 Ill. 2d at 225. “Because a section 2-1401
petition is addressed to equitable powers, courts have not considered themselves strictly
bound by precedent, and where justice and good conscience may require it[,] a default
judgment may be vacated even though the requirement of due diligence has not been
satisfied.” Airoom, 114 Ill. 2d at 225.
¶ 30 “Relaxation of the due diligence requirement thereby entitling a defendant to a motion to
vacate a judgment is justified only under extraordinary circumstances.” Ameritech Publishing
of Illinois, Inc. v. Hadyeh, 362 Ill. App. 3d 56, 60 (2005) (citing All-Steel Employees Credit
Union v. Singh, 345 Ill. App. 3d 1005, 1008 (2004)); Gonzalez v. Profile Sanding Equipment,
Inc., 333 Ill. App. 3d 680, 686 (2002). “Although it is true that some decisions have relaxed
or even excused the due diligence requirements, courts have only done so in the
extraordinary circumstances where it is necessary to prevent an unjust entry of default
judgment [citation], or where there is unconscionable conduct by the opposing party that
would require that the due diligence requirement be relaxed [citation].” (Emphasis in
original.) Gonzalez, 333 Ill. App. 3d at 689. “[I]n each case there was evidence of fraudulent
conduct by the plaintiff in procuring or concealing the judgment, or other unusual
circumstances which made enforcement of the judgment unjust.” European Tanspa, Inc. v.
Shrader, 242 Ill. App. 3d 103, 108 (1993). Our supreme court has cautioned that, “[w]hile a
liberal construction must be given to the petition to prevent an unjust result [citation], ‘the
ambit of section [2-1401] relief must not be overbroadened to such an extent that principles
of equity and an ordered concept of justice are diluted’ [citation].” Airoom, 114 Ill. 2d at 227
(quoting Lammert v. Lammert Industries, Inc., 46 Ill. App. 3d 667, 676-77 (1977)).
¶ 31 In the case at bar, we cannot find that defendant has presented the type of extraordinary
circumstances that warrant relaxation of the due diligence requirement. All of defendant’s
arguments are based on his allegedly meritorious defenses raised in the petition: (1) that
plaintiff had been paid under defendant’s workers’ compensation settlement, (2) that plaintiff
was seeking charges in excess of those permitted under the Workers’ Compensation Act, and
(3) that defendant contested the authenticity of the contract on which plaintiff’s breach of
contract claim relied. In other words, defendant essentially argues that because he has raised
meritorious defenses, “equity, justice and good conscience clearly supported vacating the
default judgment, notwithstanding any issue concerning due diligence.” However,
defendant’s position would strip the due diligence requirement of any meaning because a
meritorious defense is a requirement of a section 2-1401 petition. The mere assertion of a
meritorious defense, without more, does not warrant relaxation of the due diligence
requirement. Acceptance of defendant’s argument would result in section 2-1401 relief being
“ ‘overbroadened to such an extent that principles of equity and an ordered concept of justice
are diluted’ [citation].” Airoom, 114 Ill. 2d at 227 (quoting Lammert , 46 Ill. App. 3d at 676
77).
¶ 32 We note that none of the cases defendant cites in support of his argument concerning
relaxation of the due diligence requirement is analogous to the situation present in the case at
bar because they concern conduct of the plaintiff or the plaintiff’s counsel in procuring an
inequitable judgment. For instance, in Halle v. Robertson, 219 Ill. App. 3d 564, 570 (1991),
the due diligence requirement was relaxed where (1) the plaintiff’s counsel failed to inform
the trial court that there had been prior discussions with defense counsel and that defense
counsel was in court on the date that the default was entered; (2) there were problems with
the prove-up hearing, including the incorrect recitation of evidence and a request for damages
for which the plaintiff had already received compensation; and (3) the plaintiff failed to
follow procedural rules, such as properly notifying the defendant of the entry of the default
judgment in a timely manner or placing a garnishment summons for service in a timely
manner. Similarly, in Bonanza International, Inc. v. Mar-Fil, Inc., 128 Ill. App. 3d 714, 719
20 (1984), the appellate court found that equitable considerations required that the default
judgment be vacated even in the absence of due diligence where the defendant’s defense,
“[i]f *** vindicated at trial,” would call the conduct of the plaintiff into question because the
plaintiff had presented an affidavit concerning the amount of damages at the prove-up
hearing that would have been proven to be inaccurate. The Bonanza International court
further found that the plaintiff’s delay of more than 30 days after the entry of the default
judgment before commencing citation proceedings “although not enough in itself to render a
default judgment unfair or unconscionable, has been held to cast a cloud on the proceedings.”
Bonanza International, 128 Ill. App. 3d at 720. See also Elfman v. Evanston Bus Co., 27 Ill.
2d 609, 614 (1963) 5 (finding that “[t]he mere fact that a defendant is defaulted does not give
5 We note that this case was criticized for its application of an abuse of discretion standard of review in People v. Vincent, 226 Ill. 2d 1, 15 (2007). However, in Warren County, the supreme court 14
to the plaintiff a right or claim to the assessment of damages unrelated to liability and, under
the circumstances, here, it would appear that such an advantage was knowingly and
intentionally taken of both defendant and the trial court”).
¶ 33 In the case at bar, defendant attempts to paint his situation as similar to those in the cases
in which the due diligence requirement has been relaxed by claiming that plaintiff “failed to
even advise the trial court of its prior receipt of payment for its treatment from [defendant’s]
workers’ compensation settlement.” However, this is an allegation that has no basis in the
record on appeal. Defendant is correct that plaintiff’s complaint does not specifically mention
the $27,003.59 that he claims plaintiff received from defendant’s workers’ compensation
settlement. It does, however, refer to “credits for payments made by or on behalf of”
defendant. Furthermore, defendant overlooks the fact that plaintiff would have been required
to prove up the basis for its damages at a prove-up hearing. “[A] default judgment comprises
two factors: (1) a finding of the issues for the plaintiff; and (2) an assessment of damages.”
Wilson v. Teloptic Cable Construction Co., 314 Ill. App. 3d 107, 112 (2000). Even where
there has been a default order entered, the plaintiff is still required to prove up its default
damages. City of Joliet v. Szayna, 2016 IL App (3d) 150092, ¶ 53. In the case at bar, the
record indicates that there was a prove-up hearing set for April 7, 2016, which was continued
to April 15. There is no report of proceedings or other record of the prove-up hearing other
than the trial court’s entry of default judgment in the amount of $98,276.78. Thus, we have
no way of knowing what evidence plaintiff presented as to its damages, other than our
observation that plaintiff requested prejudgment interest in its complaint, which the trial
court did not ultimately award. “Without an adequate record preserving the claimed error, the
clarified that an abuse of discretion standard of review for fact-based 2-1401 petitions remains appropriate. Warren County, 2015 IL 117783, ¶ 52. 15 No. 1-16-3386
court of review must presume the circuit court’s order conforms with the law.” People v.
Carter, 2015 IL 117709, ¶ 19. Moreover, “[t]his court presumes that a trial judge knows and
follows the law unless the record affirmatively indicates otherwise.” In re Jonathon C.B.,
2011 IL 107750, ¶ 72. In the case at bar, without any evidence in the record to suggest
otherwise, we will not presume that plaintiff intentionally misled the trial court by
misrepresenting any payments that it had received on defendant’s behalf. Accordingly, the
instant situation is entirely unlike the cases defendant cites, in which the plaintiff had
engaged in improper conduct. Consequently, we find no basis for relaxation of the due
diligence requirement.
¶ 34 As noted, defendant also makes a brief argument attempting to establish that he had
exercised due diligence. However, we do not find this argument persuasive. “Due diligence
requires the section 2-1401 petitioner to have a reasonable excuse for failing to act within the
appropriate time.” Airoom, 114 Ill. 2d at 222. “Specifically, the petitioner must show that his
failure to defend against the lawsuit was the result of an excusable mistake and that under the
circumstances he acted reasonably, and not negligently, when he failed to initially resist the
judgment.” Airoom, 114 Ill. 2d at 222.
¶ 35 The record indicates that defendant was personally served with a copy of the summons
and complaint on January 27, 2016, 14 days after the complaint was filed. According to
defendant’s reply in support of his section 2-1401 petition, “[defendant] admittedly did not
take action when receiving summons and the Complaint. When the Complaint was filed, in
January of 2016, [defendant] was consumed with his third party personal injury lawsuit, and
believed [plaintiff’s] medical bills had been satisfied because [plaintiff] chose to receive
immediate repayment from [defendant’s] worker’ compensation award two years prior.” On
April 15, 2016, a default judgment was entered against defendant in the amount of
$98,276.78 plus court costs. Defendant does not claim that he was unaware of this default
judgment. According to an e-mail attached to defendant’s reply, plaintiff’s counsel sent
defendant’s counsel a copy of the financial responsibility statement, default order, and
judgment order on October 5, 2016. According to defendant’s section 2-1401 petition, on
October 12, 2016, defendant settled his third-party personal injury lawsuit. Once he did so,
according to his reply, defendant “fully became aware [plaintiff] was continuing [to] pursue
satisfaction of outstanding payment.” At that point, “[defendant] realized [plaintiff] was
demanding repayment of nearly $100,000.00 and he reviewed the Contract at issue.”
Defendant claimed that “[i]mmediately after appreciating the fraudulent nature of the
Contract and [plaintiff’s] decision to ignore well-established Illinois law,” defendant filed his
section 2-1401 petition 15 days later.
¶ 36 We see nothing in the record on appeal to demonstrate due diligence on defendant’s part,
either in responding to the lawsuit initially or in filing his section 2-1401 petition. Defendant
admittedly received the complaint and chose not to respond to it because he “was consumed
with his third party personal injury lawsuit, and believed [plaintiff’s] medical bills had been
satisfied.” Thus, defendant “had ample opportunity to avoid the default judgment by filing
[his] answer or appearance” (Airoom, 114 Ill. 2d at 224), but chose not to do so. It was not
until after defendant settled his third-party personal injury lawsuit for $800,000—which
allegedly included the use of Dr. Michael’s testimony and plaintiff’s medical bills as
evidence of defendant’s damages—that defendant sought to vacate the default judgment
under section 2-1401. Indeed, defendant claims that it was not until after the settlement of the
third-party personal injury lawsuit that he even reviewed the financial responsibility
statement attached to the complaint. “ ‘Relief under section [2-1401] is available only to
those who diligently pursue their legal defenses and remedies in court, not to those who
disregard these procedures on the gamble that better results can be obtained through other
procedures or at a cheaper cost.’ ” Airoom, 114 Ill. 2d at 224 (quoting Abbell v. Munfield, 76
Ill. App. 3d 384, 388 (1979)). As our supreme court found in Airoom, in the case at bar,
“[w]hen all of the circumstances of this case are viewed in their entirety, there is no doubt
that [defendant’s] dilemma is the result of [his] own negligence and indifference to or
disregard of the circuit court’s process.” Airoom, 114 Ill. 2d at 224-25. Consequently, we
must find that the trial court abused its discretion in granting defendant’s section 2-1401
petition. See European Tanspa, 242 Ill. App. 3d at 107 (finding that “the court abused its
discretion because defendants completely failed to establish due diligence”).
¶ 37 CONCLUSION
¶ 38 Defendant failed to show due diligence in presenting his defense to plaintiff’s lawsuit or
in filing his section 2-1401 petition, and there are no extraordinary circumstances warranting
relaxation of the due diligence requirement. Accordingly, the trial court abused its discretion
in granting the 2-1401 petition.
¶ 39 Reversed.