{ "id": 3442266, "name": "KENT BURGESS, Plaintiff-Appellant, v. CHICAGO SUN-TIMES, a Division of Field Enterprises, Inc., Defendant-Appellee", "name_abbreviation": "Burgess v. Chicago Sun-Times", "decision_date": "1985-03-26", "docket_number": "Nos. 83\u20142773, 84\u20140189 cons.", "first_page": "181", "last_page": "190", "citations": [ { "type": "official", "cite": "132 Ill. App. 3d 181" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "35 Ill. 2d 632", "category": "reporters:state", "reporter": "Ill. 2d", "opinion_index": 0 }, { "cite": "223 N.E.2d 318", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1967, "opinion_index": 0 }, { "cite": "78 Ill. App. 2d 402", "category": "reporters:state", "reporter": "Ill. 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App. 3d 316", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3261124 ], "year": 1948, "pin_cites": [ { "page": "325-26" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/73/0316-01" ] }, { "cite": "427 N.E.2d 829", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "101 Ill. App. 3d 75", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3083937 ], "weight": 2, "pin_cites": [ { "page": "79" }, { "page": "80-81" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/101/0075-01" ] }, { "cite": "79 Ill. 2d 624", "category": "reporters:state", "reporter": "Ill. 2d", "opinion_index": 0 }, { "cite": "393 N.E.2d 1171", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1979, "opinion_index": 0 }, { "cite": "75 Ill. App. 3d 57", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3274523 ], "year": 1979, "pin_cites": [ { "page": "63" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/75/0057-01" ] }, { "cite": "174 N.E.2d 157", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1979, "opinion_index": 0 }, { "cite": "22 Ill. 2d 73", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2791226 ], "year": 1979, "opinion_index": 0, "case_paths": [ "/ill-2d/22/0073-01" ] }, { "cite": "96 Ill. 2d 552", "category": "reporters:state", "reporter": "Ill. 2d", "opinion_index": 0 }, { "cite": "447 N.E.2d 1016", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1983, "opinion_index": 0 }, { "cite": "113 Ill. App. 3d 745", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3626218 ], "weight": 2, "year": 1983, "pin_cites": [ { "page": "752" }, { "page": "754" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/113/0745-01" ] }, { "cite": "431 N.E.2d 1175", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "103 Ill. App. 3d 740", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5482296 ], "pin_cites": [ { "page": "745-46" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/103/0740-01" ] }, { "cite": "466 N.E.2d 1137", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "126 Ill. App. 3d 157", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3598184 ], "pin_cites": [ { "page": "165" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/126/0157-01" ] }, { "cite": "360 N.E.2d 765", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1984, "opinion_index": 0 }, { "cite": "66 Ill. 2d 85", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5463121 ], "weight": 2, "year": 1984, "pin_cites": [ { "page": "89-90" }, { "page": "90" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/66/0085-01" ] }, { "cite": "70 Ill. B.J. 164", "category": "journals:journal", "reporter": "Ill. B.J.", "year": 1981, "pin_cites": [ { "page": "166" } ], "opinion_index": 0 }, { "cite": "186 Mont. 1", "category": "reporters:state", "reporter": "Mont.", "case_ids": [ 2568627 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/mont/186/0001-01" ] }, { "cite": "137 Vt. 562", "category": "reporters:state", "reporter": "Vt.", "case_ids": [ 4715921 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/vt/137/0562-01" ] }, { "cite": "473 N.E.2d 935", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "105 Ill. 2d 158", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3141983 ], "pin_cites": [ { "page": "161" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/105/0158-01" ] }, { "cite": "105 Ill. 2d 143", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3141727 ], "weight": 3, "pin_cites": [ { "page": "149" }, { "page": "152" }, { "page": "150" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/105/0143-01" ] }, { "cite": "421 N.E.2d 876", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "85 Ill. 2d 124", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5469094 ], "weight": 4, "pin_cites": [ { "page": "133" }, { "page": "134" }, { "page": "134" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/85/0124-01" ] }, { "cite": "384 N.E.2d 353", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "74 Ill. 2d 172", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2994390 ], "weight": 2, "pin_cites": [ { "page": "181-82" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/74/0172-01" ] } ], "analysis": { "cardinality": 1001, "char_count": 21225, "ocr_confidence": 0.759, "pagerank": { "raw": 2.1657276234501346e-07, "percentile": 0.7704441455853218 }, "sha256": "6d6c9d931ec9195bd5a92bd0887fb0078563d78a0be413bb6c71fe3d8def0469", "simhash": "1:3e1a79adec6ecec6", "word_count": 3399 }, "last_updated": "2023-07-14T22:48:37.184543+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "KENT BURGESS, Plaintiff-Appellant, v. CHICAGO SUN-TIMES, a Division of Field Enterprises, Inc., Defendant-Appellee." ], "opinions": [ { "text": "JUSTICE BILANDIC\ndelivered the opinion of the court:\nPlaintiff, Kent Burgess, instituted the present action alleging retaliatory discharge, breach of an implied covenant of fair dealing, and intentional infliction of emotional distress on the part of his former employer, defendant Chicago Sun-Times. The trial court dismissed plaintiff\u2019s complaint with prejudice, and subsequently denied his motion for reconsideration and for relief from judgment. Plaintiff now contests the propriety of these orders, seeking reversal only of the dispositions as to the retaliatory discharge and emotional distress claims.\nPlaintiff was employed by the defendant as a driver for the purpose of delivering newspapers to retail vendors for sale to the public. The plaintiff and his fellow drivers were covered by a collective bargaining agreement with the defendant. The agreement expressly authorized the defendant to designate the delivery routes of its employees.\nOn July 6, 1982, plaintiff, during the course of his employment, claimed to have been assaulted by an unknown third party. Plaintiff\u2019s requested reassignment to another route was denied by the defendant.\nOn July 13, 1982, plaintiff, during the course of his employment, claimed to have been the victim of an armed robbery. Again plaintiff\u2019s requested reassignment to another route was denied by the defendant.\nThe record reveals that plaintiff did not make any claim under the Workers\u2019 Compensation Act (Ill. Rev. Stat. 1981, ch. 48, par. 138.1 et seq.) and did not, individually or through his collective bargaining agent, institute any grievance action pursuant to the collective bargaining agreement. Instead, plaintiff chose not to return to work on the same route, claiming he suffered from severe stress and anxiety. When plaintiff persisted in his request for reassignment to another route and refused to return to the route assigned, he was discharged by defendant.\nOn March 2, 1983, plaintiff filed a three-count complaint against defendant claiming retaliatory discharge, breach of an implied covenant of fair dealing, and intentional infliction of emotional distress. On May 13, 1983, defendant filed a motion to dismiss with prejudice. The trial court ordered briefs to be filed and set the matter for September 15, 1983. Briefs were filed on time by both parties, but plaintiff\u2019s attorney did not appear on September 15, 1983, due to a clerical error of his office in scheduling cases. The court delayed its proceedings for about an hour. Attorneys for the defendant appeared on time and returned an hour later as requested by the court. Although not required to do so, defendant\u2019s attorney did not attempt to reach opposing counsel or his office to notify him of the court\u2019s short delay. The court noted that the hearing date was set by agreement of the parties and proceeded to decide the motion on the written briefs that were on file. An order was entered dismissing plaintiff\u2019s complaint with prejudice.\nFollowing a hearing on October 19, 1983, with both counsel present, the trial court denied plaintiff\u2019s motion to vacate and reconsider. On November 10, 1983, plaintiff filed a motion for relief from judgment pursuant to section 2 \u2014 1401 of the Illinois Code of Civil Procedure. (Ill. Rev. Stat. 1983, ch. 110, par. 2 \u2014 1401.) This motion was denied on December 19, 1983, after which plaintiff filed a timely notice of appeal. Plaintiff does not contest the dismissal of count II dealing with breach of an implied covenant of fair dealing.\nI\nThe first question for resolution is whether count I of plaintiff\u2019s complaint was properly dismissed for failure to state a cause of action for retaliatory discharge.\nIn Kelsay v. Motorola, Inc. (1978), 74 Ill. 2d 172, 384 N.E.2d 353, our supreme court held that, for the first time in Illinois, a cause of action should exist for employees who were discharged for filing Workers\u2019 Compensation claims. In its analysis, the court determined that the purpose of the Workers\u2019 Compensation Act (Ill. Rev. Stat. 1973, ch. 48, par. 138.1 et seq.) would be seriously undermined if employers could coerce employees to forego their statutory rights under the Act by threatening to terminate employees who sought compensation for industrial injuries. Kelsay v. Motorola, Inc. (1978), 74 Ill. 2d 172,181-82.\nIn Palmateer v. International Harvester Co. (1981), 85 Ill. 2d 124, 421 N.E.2d 876, our supreme court granted leave to appeal in order to determine the \u201ccontours\u201d of the tort of retaliatory discharge recognized in Kelsay. The employee in Palmateer was terminated for informing local law-enforcement authorities of suspected criminal activities of his co-employee, and for agreeing to assist in the investigation and trial of the co-employee if requested. In holding that the plaintiff-employee\u2019s complaint had stated a cause of action for retaliatory discharge, the court held: \u201cThe foundation of the tort of retaliatory discharge lies in the protection of public policy, and there is a clear public policy favoring investigation and prosecution of criminal offenses.\u201d (85 Ill. 2d 124, 133.) As a result, the Palmateer court concluded that in order to bring a cause of action under Illinois law, \u201c[a]ll that is required is that the employer discharge the employee in retaliation for the employee\u2019s activities, and that the discharge be in contravention of a clearly mandated public policy.\u201d 85 Ill. 2d 124,134.\nThe grounds on which count I of plaintiff\u2019s complaint was dismissed were: (1) that plaintiff did not exhaust the administrative remedies provided in the collective bargaining agreement between defendant and plaintiff\u2019s union; (2) that there are no allegations that plaintiff was discharged in retaliation for filing a Workers\u2019 Compensation claim; and (3) that no cause of action was stated due to the factual insufficiency of the allegations.\nFirst, as defendant concedes, a cause of action for retaliatory discharge is now recognized in Illinois \u201cindependent of any contract remedy the employee may have based on [a] collective-bargaining agreement.\u201d (Midgett v. Sackett-Chicago, Inc. (1984), 105 Ill. 2d 143, 149.) Plaintiff need not even plead the exhaustion of grievance procedures in order to sustain the cause of action. 105 Ill. 2d 143, 152.\nSecond, there exists no requirement in Illinois that in order to state a viable cause of action for retaliatory discharge, a plaintiff must plead that he was discharged in retaliation for filing a Workers\u2019 Compensation claim. (See Darnall v. Impact Industries, Inc. (1984), 105 Ill. 2d 158, 161, 473 N.E.2d 935.) We refuse to impose such a requirement here. As was clearly stated in Palmateer, all that is necessary is that the defendant here discharged plaintiff in retaliation for his \u201cactivities,\u201d and that such \u201cdischarge be in contravention of a clearly mandated public policy.\u201d Palmateer v. International Harvester Co. (1981), 85 Ill. 2d 124,134.\nWith respect to the third ground for dismissal, i.e., the factual insufficiency of plaintiff\u2019s allegations, we agree that the trial court\u2019s ruling was correct. There is not a single allegation in plaintiff\u2019s complaint that he intended to seek relief under the Workers\u2019 Compensation Act. Plaintiff has alleged no more than that he suffered fear and anxiety, that he contemplated medical attention, and that he was unable to return to work. In addition, there exists no allegation that defendant was informed, or in any way found out, that plaintiff was pursuing any remedy under the Workers\u2019 Compensation Act, and that defendant went ahead and discharged him because of it. As a consequence, it is evident that a \u201cclearly mandated public policy\u201d is not involved in the case at bar.\nIn Palmateer, the court noted that actions for retaliatory discharge have been denied where it was clear that only private interests were at stake, e.g., where an employee took too much sick leave (Jones v. Keogh (1979), 137 Vt. 562, 409 A.2d 581), or where he disputed his employer\u2019s internal management system (Keneally v. Orgain (1980), 186 Mont. 1, 606 P.2d 127). The present case is not one in which the public policy was clear. Plaintiff was not fired for refusing to evade jury duty, refusing to commit perjury, refusing to violate a consumer credit code, refusing to engage in price fixing, or refusing to violate any statute in general.\nIn this case, plaintiff was not asked to do anything illegal or improper. He was not asked to engage in any activities that were in contravention of a clearly mandated public policy. Defendant requested that plaintiff perform work which it had the right to assign to him under its collective bargaining agreement. Plaintiff\u2019s discharge resulted from his unilateral choice not to return to work for an alleged fear of a risk which he, as well as each of his fellow drivers, knowingly undertook. Plaintiff sought to have defendant assign a fellow employee, covered by the same collective bargaining agreement, to the route which he refused.\nPlaintiff had the right to bring a grievance; defendant, however, retained the right to discharge him for just cause. \u201cGenerally, if a union employee\u2019s grievance goes to arbitration and the arbitrator does not find just cause for the employee\u2019s discharge, the remedy will be simply job reinstatement and full back pay.\u201d Midgett v. Sackett-Chicago, Inc. (1984), 105 Ill. 2d 143, 150, citing Silzer, Workers\u2019 Compensation: Retaliatory Discharge of Employees Covered by a Collective Bargaining Agreement, 70 Ill. B.J. 164, 166 (1981).\nBecause the factual allegations in plaintiff\u2019s complaint are insufficient for recovery under the theory of retaliatory discharge, we hold that the trial court\u2019s dismissal of count I was proper.\nII\nNext, it is plaintiff\u2019s contention that count III of his complaint was erroneously dismissed for failure to state a cause of action for intentional infliction of emotional distress. We disagree.\nIn order to state a cause of action for this tort, facts must be alleged which establish: \u201c(1) that the conduct of the defendant was extreme and outrageous; (2) that the emotional distress suffered by plaintiff was severe; and (3) that defendant\u2019s conduct was such that defendant knew that severe emotional distress would be certain or substantially certain to result.\u201d Public Finance Corp. v. Davis (1976), 66 Ill. 2d 85, 89-90, 360 N.E.2d 765; Heying v. Simonaitis (1984), 126 Ill. App. 3d 157, 165, 466 N.E.2d 1137.\nRegarding the nature of defendant\u2019s conduct, liability exists only where such conduct has been \u201c \u2018so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency ***.\u2019\u201d (Plocar v. Dunkin\u2019 Donuts of America, Inc. (1981), 103 Ill. App. 3d 740, 745-46, 431 N.E.2d 1175, quoting Restatement (Second) of Torts sec. 46, comment d (1965).) With respect to the severity of plaintiff\u2019s distress, \u201c \u2018[t]he law intervenes only where the distress inflicted is so severe that no reasonable man could be expected to endure it. The intensity and the duration of the distress are factors to be considered in determining its severity.\u2019 \u201d Public Finance Corp. v. Davis (1976), 66 Ill. 2d 85, 90, quoting Restatement (Second) of Torts sec. 46, comment j (1965).\nIn order to determine whether a plaintiff has stated a cause of action for intentional infliction of emotional distress, a reviewing court must \u201caccept as true the allegations contained in the plaintiff\u2019s complaint.\u201d Witkowski v. St. Anne\u2019s Hospital of Chicago, Inc. (1983), 113 Ill. App. 3d 745, 752, 447 N.E.2d 1016, appeal denied (1983), 96 Ill. 2d 552.\nWhether specific conduct can be characterized as extreme and outrageous depends, of course, on the facts in each case. (Knierim v. Izzo (1961), 22 Ill. 2d 73, 174 N.E.2d 157.) \u201cA mere statement that an act was done with a certain purpose or intent, without a statement of facts showing such purpose or intent, is a conclusion of law.\u201d Tolbolt v. Allstate Insurance Co. (1979), 75 Ill. App. 3d 57, 63, 393 N.E.2d 1171, appeal denied (1979), 79 Ill. 2d 624.\nRegarding the present action, it is claimed that defendant \u201cengaged in a course of conduct toward the plaintiff which included harassment, threats and eventually unjust termination of his employment, with conscious disregard for the safety and well-being of the plaintiff.\u201d This allegation of tortious conduct is insufficient in law because it merely characterized defendant\u2019s purported behavior in conclusory language. Indeed, no specific facts are set forth in the complaint indicating what harassment or threats plaintiff was subject to, much less by whom or when they were carried out.\nStripped of conclusions, the conduct about which plaintiff complains consisted of his reassignment, despite objection, to the same delivery route on which he claims to have been assaulted and robbed in July 1982. Count III additionally alleged that defendant demanded that he take financial responsibility for the goods claimed to have been stolen from him on July 13, 1982. By virtue of this purported abuse by defendant of its position of authority over plaintiff, it is claimed that plaintiff now \u201csuffers from acute post-traumatic stress and other psychotherapeutic disorders and has been unable to rejoin the work force.\u201d Whatever the claimed motives for the obstinacy, threats or harassment alleged in the complaint, the question we must determine is \u201cwhether it could reasonably be considered extremely outrageous for an employer to intentionally subject an employee to such conduct.\u201d Milton v. Illinois Bell Telephone Co. (1981), 101 Ill. App. 3d 75, 79, 427 N.E.2d 829.\nAccepting as true the allegations set forth in plaintiff\u2019s complaint, it is clear that defendant\u2019s employment policy with respect to drivers cannot be characterized as so outrageous, so atrocious and so utterly intolerable that a person of ordinary sensibilities could not reasonably be expected to endure it. In support of a contrary conclusion, plaintiff cites and strongly relies on Milton. Such reliance, however, is misplaced. In Milton, the appellate court held that a complaint adequately stated a claim for intentional infliction of emotional distress where the plaintiff alleged, inter alia, that defendant employer ordered him to falsify certain work reports and, when plaintiff consistently refused, defendant retaliated against him by coercion and harassment. The Milton court premised its holding on the fact that by demanding plaintiff to falsify his work reports, defendant, as a public utility, was attempting to coerce plaintiff to engage in illegal conduct. (Milton v. Illinois Bell Telephone Co. (1981), 101 Ill. App. 3d 75, 80-81.) Plainly, the situation at bar cannot be viewed as parallel to Milton, for the complaint now before us is absolutely devoid of any suggestion that defendant attempted to coerce plaintiff into illegal activity. Rather, defendant merely insisted that plaintiff perform the duties he undertook as an employee-truck driver of the Chicago Sun-Times.\nIn essence, defendant\u2019s actions did not reach that extreme level of outrageousness and severity \u201cbeyond all possible bounds of decency\u201d so as to give rise to a cause of action for intentional infliction of emotional distress. \u201c[T]his cause of action is reserved for especially abusive and atrocious transgressions, and [the, appellate court] will not expand upon the supreme court\u2019s definition to cover such allegations as the instant plaintiff\u2019s, as heartless and callous as those allegations may first appear.\u201d Witkowski v. St. Anne\u2019s Hospital of Chicago, Inc. (1983), 113 Ill. App. 3d 745, 754.\nIt is our conclusion, therefore, that count III of plaintiff\u2019s complaint was properly dismissed.\nIll\nThe final issue for resolution concerns the propriety of the trial court\u2019s decision to dismiss plaintiff\u2019s complaint in the absence of his attorney, and then to subsequently deny his motions for reconsideration and relief from judgment.\nFirst, plaintiff incorrectly refers to the dismissal order as having been entered ex parte. \u201cAn ex parte order, which is clearly within the power of the court to enter, is by definition an order originally granted at the insistence and for the benefit of one party, without notice to or contestation by any person adversely interested.\u201d (American Re-Insurance Co. v. MGIC Investment Corp. (1979), 73 Ill. App. 3d 316, 325-26, 391 N.E.2d 532, citing Kimbrough v. Parker (1948), 336 Ill. App. 124, 83 N.E.2d 42.) Without question, plaintiff here was provided with notice of the September 15, 1983, hearing on defendant\u2019s motion to dismiss. Indeed, the order setting this hearing date specifically recited that, \u201cdue notice having been given, all parties agreeing thereto.\u201d Further, the proof is in the record that plaintiff contested defendant\u2019s motion by filing a nine-page memorandum in opposition on August 17, 1983. And it is reasonable to infer that due consideration was given to this document in view of the following language contained in the trial court\u2019s order of dismissal: \u201c[T]he Court being fully advised in the premises, the Court having read the briefs filed by all parties herein ***.\u201d Since it is clear that the dispositive order in question was not entered ex parte, we must disagree with plaintiff\u2019s argument for reversal on this ground.\nSecond, it is our opinion that the denial of plaintiff\u2019s motions for reconsideration and relief from judgment was proper. Neither motion advanced a substantive basis upon which vacation of the dismissal order would have been warranted. The motion to vacate merely cited secretarial error as grounds for reconsideration. Again, the fact that counsel for plaintiff failed to appear at the time the dismissal order was entered had absolutely no bearing on the validity of such an order.\nMoreover, we note that any additional motion filed by plaintiff had to conform to the requirements of section 2 \u2014 1401 of the Illinois Code of Civil Procedure. (Ill. Rev.. Stat. 1983, ch. 110, par. 2 \u2014 1401.) Section 2 \u2014 1401 allows a litigant to petition the trial court to reconsider a final judgment if the following requisites are satisfied: (1) the existence of a meritorious claim or defense; (2) due diligence in presenting the claim or defense in the original action; (3) lack of fraud or negligence in failing to present an error of fact or a valid claim or defense to the trial court at the time the original order was entered; and (4) due diligence in filing the petition under section 2 \u2014 1401. (Halas v. Executor of Estate of Halas (1983), 112 Ill. App. 3d 940, 948, 445 N.E.2d 1264.) \u201c[N]ew matters to be brought to the court\u2019s attention in a section 2 \u2014 1401 petition are those facts not appearing on the record which, if known to the court at the time the judgment was entered, would have prevented its rendition.\u201d In re Marriage of Ohlson (1984), 126 Ill. App. 3d 374, 381, 466 N.E.2d 1280.\nThe section 2 \u2014 1401 petition did not bring to the trial court\u2019s attention any new facts not already of record. This second post-judgment motion simply expanded the arguments made in plaintiff\u2019s motion to vacate, as well as in his memorandum of law filed in opposition to defendant\u2019s motion to dismiss. Plaintiff\u2019s section 2 \u2014 1401 petition raised nothing new; it consisted of nothing but reargument. Because a petition brought under section 2 \u2014 1401 cannot be used to relitigate questions previously adjudicated (Davis v. Chicago Transit Authority (1980), 82 Ill. App. 3d 987, 989, 403 N.E.2d 615), the court below did not err in denying plaintiff\u2019s second post-judgment motion.\nIt is not until plaintiff\u2019s reply brief in this court that he questions the propriety of the trial judge\u2019s refusal to allow him the opportunity to amend his complaint. Because this issue was not properly raised in plaintiffs opening brief, we consider the merits or ramifications of such an argument as having been waived for purposes of appellate review. Unger v. Continental Assurance Co. (1984), 122 Ill. App. 3d 376, 380, 461 N.E.2d 531.\nWe noted above that on September 15, 1983, plaintiffs attorney did not appear at the scheduled hearing on defendant\u2019s motion to dismiss. The trial court delayed the hearing for an hour. During the interim, the attorney for the defendant did not attempt to reach opposing counsel. Fortunately, the matter was properly disposed of on the briefs before the court with no undue advantage. It would have been better had counsel for defendant followed Justice Burke\u2019s advice: \u201cThe court recognizes that telephones are available and that courtesy among lawyers is and should be the rule rather than the exception.\u201d Stidham v. Pappas (1966), 78 Ill. App. 2d 402, 407, 223 N.E.2d 318, appeal denied (1967), 35 Ill. 2d 632.\nFor the reasons set out herein, the judgment of the circuit court of Cook County is hereby affirmed.\nAffirmed.\nSTAMOS, P.J., and BERLIN, J., concur.", "type": "majority", "author": "JUSTICE BILANDIC" } ], "attorneys": [ "A. Denison Weaver, of Chicago, for appellant.", "Robert S. Soderstrom and James P. DeNardo, both of McKenna, Storer, Rowe, White & Farrug, of Chicago, for appellee." ], "corrections": "", "head_matter": "KENT BURGESS, Plaintiff-Appellant, v. CHICAGO SUN-TIMES, a Division of Field Enterprises, Inc., Defendant-Appellee.\nFirst District (2nd Division)\nNos. 83\u20142773, 84\u20140189 cons.\nOpinion filed March 26, 1985.\nA. Denison Weaver, of Chicago, for appellant.\nRobert S. Soderstrom and James P. DeNardo, both of McKenna, Storer, Rowe, White & Farrug, of Chicago, for appellee." }, "file_name": "0181-01", "first_page_order": 203, "last_page_order": 212 }