{
  "id": 3541487,
  "name": "GERHARDT MOHR et al., Plaintiffs-Appellants, v. GARY PRIDEMORE et al., Defendants-Appellees",
  "name_abbreviation": "Mohr v. Pridemore",
  "decision_date": "1986-12-23",
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  "last_updated": "2023-07-14T16:55:10.892091+00:00",
  "provenance": {
    "date_added": "2019-08-29",
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  "casebody": {
    "judges": [],
    "parties": [
      "GERHARDT MOHR et al., Plaintiffs-Appellants, v. GARY PRIDEMORE et al., Defendants-Appellees."
    ],
    "opinions": [
      {
        "text": "JUSTICE McCULLOUGH\ndelivered the opinion of the court:\nThe plaintiffs filed a petition for relief from final judgment pursuant to section 2 \u2014 1401 of the Code of Civil Procedure (Ill. Rev. Stat. 1985, ch. 110, par. 2 \u2014 1401). The defendants filed a motion to dismiss the petition for relief from final judgment, and after a hearing on the defendants\u2019 motion to dismiss, the trial court held that the order of December 17, 1984, dismissing the cause with prejudice following the settlement agreement and stipulation for dismissal was a final judgment for purposes of a petition for relief from final judgment. The trial court denied the plaintiffs\u2019 petition, granted the defendants\u2019 motion, and the plaintiffs filed a timely notice of appeal on May 20, 1986.\nThe plaintiffs filed a complaint and petition for temporary restraining order or preliminary injunction on August 16, 1982. The complaint alleged in substance: battery, trespass, and intentional infliction of emotional distress. A temporary restraining order was issued which was followed by a mutual preliminary injunction. A settlement agreement was then entered into between the parties, and a \u201cStipulation of Dismissal\u201d was filed which stated that the \u201cabove cause of action is to all counts dismissed with prejudice as to the defendants, cause of action settled, all costs paid.\u201d On December 17, 1984, the trial court entered an order stating that \u201cthe above cause of action to the defendants Gary Pridemore and Nedra Pridemore, be and it is hereby dismissed with prejudice, and in bar of action, cause of action settled, all costs paid, and plaintiffs shall go hence without day.\u201d\nThe plaintiffs, in their section 2 \u2014 1401 petition, alleged that the settlement agreement between the parties contained a covenant \u201cto terminate all further controversy between the parties.\u201d (Emphasis added.) It further alleged specific conduct on the part of the defendants in that on \u201cJuly 25-30 and August 1, 1985,\u201d defendants falsely reported to the Illinois Departments of Health and Labor and the EPA that plaintiffs were in violation of numerous regulations of the agencies, that on July 27, 1985, the defendant at 7 a.m. boarded a helicopter, circled plaintiffs\u2019 house creating tremendous noise, awakening and frightening plaintiffs, harassed the plaintiffs, and fraudulently entered into the settlement with the plaintiffs. It is noted that plaintiffs do not allege or suggest a willingness to return the $11,250 paid by defendants for the release. The petition does not have attached to it any settlement agreement entered into between the parties. The defendants filed a motion to dismiss the petition and attached an exhibit entitled \u201cRelease of All Claims,\u201d signed by the plaintiffs, which in part provides to \u201crelease and forever discharge\u201d the defendants from any \u201ccauses of action arising from any act or occurrence up to the present time, and particularly on account of all personal injury, disability, property damage, loss or damages of any kind sustained or that we may hereinafter sustain in consequence of an incident that occurred on or about July 8, 1982.\u201d The release further stated that \u201csaid payment and settlement and compromise is made to terminate further controversy respecting all claims for damages that we have heretofore asserted, or that we or our personal representatives might hereafter assert because of said accident.\u201d It should be noted that this release was signed only by the plaintiffs in consideration of $11,250 paid by defendants.\nTwo elements must be alleged in any petition under section 2 \u2014 1401: first, that the petitioner had a valid claim and, second, that petitioner exercised due diligence in moving to vacate the judgment. (M. L. C. Corp., Inc. v. Pallas (1978), 59 Ill. App. 3d 504, 375 N.E.2d 560.) Likewise, the purpose of a petition for relief from a judgment is to present to the trial court new matters of fact not appearing in the record, which, if known to the court when judgment was rendered, would have prevented its rendition. 59 Ill. App. 3d 504, 375 N.E.2d 560.\nThe plaintiff\u2019s citation to Prendergast v. Rush-Presbyterian St. Luke\u2019s Medical Center (1979), 78 Ill. App. 3d 538, 397 N.E.2d 432, is inapposite. In Prendergast, the defendant made certain representations which were the basis for the plaintiff\u2019s voluntary dismissal. The representations were made a part of the court\u2019s order of dismissal. The plaintiff\u2019s section 72 motion attacked the representations made in the consent dismissal order. In the instant cause, it is apparent from reviewing the stipulation for dismissal, release by plaintiffs, and order of dismissal that there is nothing to show either that the defendants have violated the court order or that the plaintiffs asserted any fraud in the procurement of the order of the trial court.\nA section 2 \u2014 1401 petition invokes the equitable powers of the court as justice and fairness require. Elfman v. Evanston Bus Co. (1963), 27 Ill. 2d 609, 190 N.E.2d 348.\nThe supreme court in Russell v. Klein (1974), 58 Ill. 2d 220, 225, 317 N.E.2d 556, 559, in determining the purpose of a section 72 (now 2\u2014 1401) petition, stated that \u201cthe remedy contemplated by section 72 is available for relief based on matters which antedate the rendition of the judgment and not those which arise subsequent to its rendition.\u201d\nAs argued by the defendants, a section 2 \u2014 1401 petition is not intended to relieve a party from the consequences of his own mistake or negligence. Brockmeyer v. Duncan (1960), 18 Ill. 2d 502, 165 N.E.2d 294.\nIt is clear that the agreement released the defendants from claims and injuries arising out of the incident occurring on July 8, 1982. There is nothing in this record, in the stipulation for dismissal, the release of claims filed by the plaintiffs and signed by them, or the order of the court on the stipulation for dismissal which gives any credence to the plaintiffs\u2019 argument that there was fraud involved in the settlement of this case. The trial court was correct in dismissing the petition of the plaintiffs.\nFor the above reasons, we affirm the trial court.\nAffirmed.\nGREEN and WEBBER, JJ., concur.",
        "type": "majority",
        "author": "JUSTICE McCULLOUGH"
      }
    ],
    "attorneys": [
      "Robert I. Auler, of Urbana, for appellants.",
      "Curtis A. Anderson and Claudia Smith Anderson, both of Acton, Meyer, Smith, Miller & Anderson, of Danville, for appellees."
    ],
    "corrections": "",
    "head_matter": "GERHARDT MOHR et al., Plaintiffs-Appellants, v. GARY PRIDEMORE et al., Defendants-Appellees.\nFourth District\nNo. 4-86-0356\nOpinion filed December 23, 1986.\nRobert I. Auler, of Urbana, for appellants.\nCurtis A. Anderson and Claudia Smith Anderson, both of Acton, Meyer, Smith, Miller & Anderson, of Danville, for appellees."
  },
  "file_name": "0341-01",
  "first_page_order": 363,
  "last_page_order": 366
}