{ "id": 3466228, "name": "NICHOLAS G. DASSION et al., Plaintiffs-Appellants, v. WILLIAM E. HOMAN et al., Defendants-Appellees", "name_abbreviation": "Dassion v. Homan", "decision_date": "1987-09-24", "docket_number": "No. 2\u201486\u20141176", "first_page": "141", "last_page": "146", "citations": [ { "type": "official", "cite": "161 Ill. App. 3d 141" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "99 Ill. App. 3d 1062", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3102050 ], "pin_cites": [ { "page": "1067-68" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/99/1062-01" ] }, { "cite": "114 Ill. App. 3d 835", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3591286 ], "weight": 2, "pin_cites": [ { "page": "838" }, { "page": "838" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/114/0835-01" ] }, { "cite": "88 Ill. App. 3d 1015", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3172401 ], "year": 1983, "pin_cites": [ { "page": "1022-23" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/88/1015-01" ] }, { "cite": "80 Ill. App. 3d 638", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3230848 ], "pin_cites": [ { "page": "643" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/80/0638-01" ] }, { "cite": "46 Ill. App. 3d 667", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2971859 ], "pin_cites": [ { "page": "673" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/46/0667-01" ] }, { "cite": "114 Ill. 2d 209", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5542740 ], "weight": 3, "pin_cites": [ { "page": "220-21" }, { "page": "225" }, { "page": "227" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/114/0209-01" ] }, { "cite": "138 Ill. App. 3d 507", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 8499232 ], "pin_cites": [ { "page": "510" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/138/0507-01" ] }, { "cite": "152 Ill. App. 3d 253", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3575161 ], "year": 1985, "pin_cites": [ { "page": "257" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/152/0253-01" ] }, { "cite": "105 Ill. 2d 201", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3141430 ], "weight": 2, "pin_cites": [ { "page": "210" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/105/0201-01" ] } ], "analysis": { "cardinality": 548, "char_count": 11555, "ocr_confidence": 0.77, "pagerank": { "raw": 1.4138163850519014e-07, "percentile": 0.6475002982799384 }, "sha256": "ee8c5ef973e29e4b61183e1b5c25e37468100b4d7a3e64cc3a627730dc828928", "simhash": "1:8f3e539d49a44465", "word_count": 1790 }, "last_updated": "2023-07-14T16:27:58.396413+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "NICHOLAS G. DASSION et al., Plaintiffs-Appellants, v. WILLIAM E. HOMAN et al., Defendants-Appellees." ], "opinions": [ { "text": "JUSTICE INGLIS\ndelivered the opinion of the court:\nPlaintiffs, Nicholas G. Dassion and Deborah A. Dassion (Das-sions), appeal from an order of the circuit court denying their petition for post-judgment relief brought against defendants, William E. Homan, Lucille J. Homan, Wanda Luka, Century 21, and Brady Real Estate, a/k/a Century Citadel, pursuant to section 2 \u2014 1401 of the Code of Civil Procedure (Code) (Ill. Rev. Stat. 1985, ch. 110, par. 2\u2014 1401), which sought relief from an order of voluntary dismissal without prejudice entered pursuant to section 2 \u2014 1009 of the Code (Ill. Rev. Stat. 1985, ch. 110, par. 2 \u2014 1009). On appeal, plaintiffs contend that the circuit court abused its discretion in denying plaintiffs\u2019 petition for post-judgment relief by failing to consider fraudulent representations their former and original attorney in the case (original attorney) made to them.\nOn May 8, 1977, plaintiffs purchased from defendants a residential lot located in West Chicago, Illinois. On February 26, 1982, plaintiffs filed a complaint in the circuit court of Du Page County alleging that defendants made fraudulent representations concerning the contamination of the property by radioactive waste in order to procure its sale.\nOn April 6, 1984, three days before trial, the circuit court granted defendants\u2019 motion in limine to restrict plaintiffs from introducing medical testimony or seeking medical damages due to plaintiffs\u2019 failure to comply with a discovery order. On the day set for trial, April 9, 1984, the circuit court granted plaintiffs\u2019 motion for voluntary dismissal without prejudice pursuant to section 2 \u2014 1009 of the Code.\nOn April 19, 1985, plaintiffs refiled their complaint. This filing was untimely under section 13 \u2014 217 of the Code (Ill. Rev. Stat. 1985, ch. 110, par. 13 \u2014 217), which requires that commencement of an action after voluntary dismissal be within one year from the date of dismissal. Thereafter, plaintiffs\u2019 original attorney withdrew from the case, and plaintiffs retained their current counsel, who obtained a voluntary dismissal of the newly filed complaint. On April 8, 1986, one day before expiration of the two-year statutory time period for filing section 2 \u2014 1401 motions, plaintiffs petitioned the circuit court for post-judgment relief from the order granting voluntary dismissal without prejudice entered on April 9,1984.\nThe plaintiffs\u2019 motion for post-judgment relief alleged, inter alia, (1) that their original attorney fraudulently induced plaintiffs to dismiss their complaint; (2) that plaintiffs had a meritorious claim; and (3) that plaintiffs acted diligently at all times in the pursuit of their claim. The circuit court held an evidentiary hearing on plaintiffs\u2019 petition.\nAt the evidentiary hearing, Mr. Dassion stated that he supplied the original attorney with medical information from several sources which supported Dassion\u2019s cause of action. Mr. Dassion further testified that their original attorney stated that he was not diligent in submitting Mr. Dassion\u2019s medical testimony to the circuit court in accordance with an agreed discovery order. After failing to get the medical evidence admitted, the original attorney told Mr. Dassion that plaintiffs\u2019 case was worthless and that the case should be dismissed and refiled. In reliance on the original attorney\u2019s representations, Mr. Dassion testified that he consented to a voluntary dismissal.\nMr. Dassion testified that following the dismissal of plaintiffs\u2019 case, he called the original attorney two or three times per month for approximately one year to determine whether plaintiffs\u2019 case had been refiled. The original attorney assured Mr. Dassion that Giampoli was properly handling plaintiffs\u2019 case. Mr. Dassion also testified he did not know the exact date on which his case was dismissed and that the original attorney never indicated to him that the refiling of his complaint was not within the statutory time period. Mr. Dassion stated, however, that the original attorney had informed him that they were near the deadline for refiling. On February 19, 1986, plaintiffs\u2019 original attorney informed plaintiffs that he was withdrawing from their case.\nThe circuit court denied plaintiffs\u2019 petition for post-judgment relief, finding that plaintiffs lacked due diligence in pursuing their cause of action. Plaintiffs then filed a timely notice of appeal.\nThe question raised in this appeal is whether the allegedly fraudulent representations plaintiffs\u2019 original attorney made to plaintiffs provide grounds for relief under section 2 \u2014 1401. Our analysis of the applicable law in conjunction with the particular facts of this case leads us to conclude that the plaintiffs have not demonstrated sufficient grounds for relief under section 2 \u2014 1401.\nSection 2 \u2014 1401 of the Code (Ill. Rev. Stat. 1985, ch. 110, par. 2 \u2014 1401) provides a means for obtaining relief from final orders, judgments and decrees after 30 days from the date of the entry thereof. A section 2 \u2014 1401 petition for post-judgment relief calls upon the equitable powers of the court, when the exercise of such power is necessary to prevent injustice. (Lubbers v. Norfolk & Western Ry. Co. (1984), 105 Ill. 2d 201, 210.) Whether post-judgment relief should be granted rests within the sound discretion of the trial court, depending upon the facts and equities presented. (Bradshaw v. Pellican (1987), 152 Ill. App. 3d 253, 257.) Upon review, the decision of the trial court will not be disturbed absent an abuse of discretion. Fabian v. Norman (1985), 138 Ill. App. 3d 507, 510.\nTo be entitled to post-judgment relief, a petitioner must demonstrate (1) the existence of a meritorious defense or claim, (2) due diligence in presenting this defense or claim to the trial court, and (3) due diligence in filing the section 2 \u2014 1401 petition. (Smith v. Airoom, Inc. (1986), 114 Ill. 2d 209, 220-21.) The quantum of proof necessary to sustain a section 2 \u2014 1401 petition is a preponderance of the evidence. (Lammert v. Lammert Industries, Inc. (1977), 46 Ill. App. 3d 667, 673.) Initially, we note that the circuit court denied plaintiffs\u2019 petition for post-judgment relief based solely on plaintiffs\u2019 lack of due diligence in pursuing their cause of action. Therefore, we need not consider whether plaintiffs\u2019 petition alleges facts establishing a meritorious claim. Our inquiry on review is directed to the question of whether the circuit court erred in finding that plaintiffs did not act with due diligence in pursuing their cause of action.\nDue diligence requires the petitioner to show that his inaction was the result of an excusable mistake and that he acted reasonably, not negligently, when he failed to pursue his cause of action. (See American Reserve Corp. v. Holland (1980), 80 Ill. App. 3d 638, 643.) The conduct of the parties shall be considered in determining the reasonableness of the petitioner\u2019s excuse. (Canton v. Chorbajian (1980), 88 Ill. App. 3d 1015, 1022-23.) The intent of section 2 \u2014 1401, however, is not to relieve parties from the consequences of their own mistakes or their attorneys\u2019 negligence. Manning v. Meier (1983), 114 Ill. App. 3d 835, 838.\nThe main thrust of plaintiffs\u2019 argument on appeal is that in determining whether plaintiffs acted with due diligence, the circuit court failed to consider the fraudulent representations their original attorney made to plaintiffs, which resulted in the voluntary dismissal of their lawsuit. Plaintiffs assert that the original attorney\u2019s fraudulent representations were a reasonable excuse for granting section 2 \u2014 1401 relief from the order voluntarily dismissing their cause of action. Therefore, plaintiffs contend that the circuit court abused its discretion in finding that the original attorney\u2019s fraudulent representations were not a reasonable excuse for granting section 2 \u2014 1401 relief. We disagree.\nAs noted above, section 2 \u2014 1401 cannot be used to relieve parties from the consequences of their own or their attorneys\u2019 mistakes. (See Manning v. Meier (1983), 114 Ill. App. 3d 835, 838.) Therefore, plaintiffs are accountable for any deception caused by their original attorney, and it makes no difference that such fraud was perpetrated on plaintiffs as opposed to some other party or the court. Had defendants fraudulently deceived plaintiffs or the court, plaintiff would be able to demonstrate a reasonable excuse for granting section 2 \u2014 1401 relief (see Lubbers v. Norfolk & Western Ry. Co. (1984), 105 Ill. 2d 201), but no such evidence was presented to the circuit court.\nInstead, the evidence presented to the circuit court established that plaintiffs consented to the voluntary dismissal of their lawsuit after consulting with their original attorney. Plaintiffs were then advised to refile their lawsuit within one year. Plaintiffs kept in constant contact with the original attorney throughout the statutory refiling period yet failed to timely refile their lawsuit. Furthermore, plaintiffs did not file their section 2 \u2014 1401 petition until one day before the expiration of the two-year statutory period.\nAs the above sequence of events demonstrates, and as the circuit court properly found, plaintiffs did not diligently pursue their lawsuit, nor did they diligently seek post-judgment relief. In viewing the facts and circumstances of this case, it is clear that plaintiffs\u2019 dilemma was a direct result of their own negligence and the negligence of their original attorney. In our view, plaintiffs cannot divorce themselves from the conduct of their attorney when petitioning for post-judgment relief under section 2 \u2014 1401.\nAs plaintiffs correctly note, however, equitable principles may require that a judgment be set aside even though there has been a lack of due diligence by the section 2 \u2014 1401 petitioner. (See Verni v. Imperial Manor of Oak Park Condominium, Inc. (1981), 99 Ill. App. 3d 1062, 1067-68.) The section 2 \u2014 1401 petition invokes the court\u2019s equitable powers which prevent the enforcement of a judgment when it would be unfair, unjust, or unconscionable. (Smith v. Airoom, Inc. (1986), 114 Ill. 2d 209, 225.) Circumstances must exist which would compel the conclusion that the party obtaining a favorable judgment would gain an unfair, unjust, or unconscionable advantage if the judgment was not vacated. 114 Ill. 2d 209, 227.\nIn this case, we believe fairness and justice do not require that the circuit court\u2019s order granting plaintiffs\u2019 voluntary dismissal be vacated. Defendants would not gain an unfair, unjust, or unconscionable advantage if the circuit court\u2019s order was enforced. It was plaintiffs, not defendants, who failed to follow the circuit court\u2019s order concerning medical evidence, who opted to voluntarily dismiss their lawsuit, and who, finally, failed to refile their lawsuit within the one-year statutory time period. It is clear that plaintiffs would gain an unfair advantage should their section 2 \u2014 1401 petition be granted. Therefore, we conclude that circuit court did not abuse its discretion in denying plaintiffs\u2019 petition for post-judgment relief.\nAccordingly, for the reasons expressed above, we affirm the judgment of the circuit court.\nAffirmed.\nDUNN and HOPF, JJ., concur.", "type": "majority", "author": "JUSTICE INGLIS" } ], "attorneys": [ "Robert P. Sheridan, of Robert A. Clifford & Associates, of Chicago, for appellants.", "Richard A. O\u2019Leary and Jan W. Poris, both of Wheaton, for appellees." ], "corrections": "", "head_matter": "NICHOLAS G. DASSION et al., Plaintiffs-Appellants, v. WILLIAM E. HOMAN et al., Defendants-Appellees.\nSecond District\nNo. 2\u201486\u20141176\nOpinion filed September 24, 1987.\nRobert P. Sheridan, of Robert A. Clifford & Associates, of Chicago, for appellants.\nRichard A. O\u2019Leary and Jan W. Poris, both of Wheaton, for appellees." }, "file_name": "0141-01", "first_page_order": 163, "last_page_order": 168 }