{ "id": 2461492, "name": "LARRY M. KLAIRMONT, Plaintiff-Appellant, v. ELMHURST RADIOLOGISTS et al., Defendants-Appellees", "name_abbreviation": "Klairmont v. Elmhurst Radiologists", "decision_date": "1990-06-27", "docket_number": "Nos. 1\u201488\u20141951, 1\u201489\u20141094 cons.", "first_page": "638", "last_page": "648", "citations": [ { "type": "official", "cite": "200 Ill. App. 3d 638" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "404 N.E.2d 554", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "83 Ill. App. 3d 747", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5553421 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/83/0747-01" ] }, { "cite": "236 N.E.2d 719", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1980, "opinion_index": 0 }, { "cite": "39 Ill. 2d 464", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2858779 ], "weight": 2, "year": 1980, "pin_cites": [ { "page": "467" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/39/0464-01" ] }, { "cite": "241 N.E.2d 129", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "99 Ill. App. 2d 112", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 5323319 ], "weight": 2, "pin_cites": [ { "page": "117" } ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/99/0112-01" ] }, { "cite": "345 N.E.2d 216", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1968, "opinion_index": 0 }, { "cite": "37 Ill. App. 3d 78", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2714044 ], "weight": 2, "year": 1968, "pin_cites": [ { "page": "80" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/37/0078-01" ] }, { "cite": "357 N.E.2d 518", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1976, "opinion_index": 0 }, { "cite": "65 Ill. 2d 304", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5435207 ], "weight": 3, "year": 1976, "pin_cites": [ { "page": "311" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/65/0304-01" ] }, { "cite": "369 N.E.2d 319", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "54 Ill. App. 3d 173", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3398655 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/54/0173-01" ] }, { "cite": "392 N.E.2d 741", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1977, "opinion_index": 0 }, { "cite": "76 Ill. App. 3d 205", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3280782 ], "year": 1977, "opinion_index": 0, "case_paths": [ "/ill-app-3d/76/0205-01" ] }, { "cite": "200 N.E.2d 912", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "51 Ill. App. 2d 192", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 5278594 ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/51/0192-01" ] }, { "cite": "270 N.E.2d 841", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "48 Ill. 2d 402", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2905004 ], "opinion_index": 0, "case_paths": [ "/ill-2d/48/0402-01" ] }, { "cite": "499 N.E.2d 1381", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1971, "opinion_index": 0 }, { "cite": "114 Ill. 2d 209", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5542740 ], "year": 1971, "opinion_index": 0, "case_paths": [ "/ill-2d/114/0209-01" ] }, { "cite": "493 N.E.2d 1119", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "143 Ill. App. 3d 791", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5666347 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/143/0791-01" ] }, { "cite": "431 N.E.2d 1077", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "103 Ill. App. 3d 607", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5480823 ], "pin_cites": [ { "page": "609" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/103/0607-01" ] }, { "cite": "494 N.E.2d 536", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1981, "opinion_index": 0 }, { "cite": "144 Ill. App. 3d 604", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3499990 ], "year": 1981, "opinion_index": 0, "case_paths": [ "/ill-app-3d/144/0604-01" ] }, { "cite": "417 N.E.2d 1297", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "84 Ill. 2d 178", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3045625 ], "opinion_index": 0, "case_paths": [ "/ill-2d/84/0178-01" ] }, { "cite": "422 N.E.2d 172", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "96 Ill. App. 3d 954", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 12144441 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/96/0954-01" ] }, { "cite": "421 N.E.2d 1078", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1981, "opinion_index": 0 }, { "cite": "97 Ill. App. 3d 139", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3107444 ], "year": 1981, "opinion_index": 0, "case_paths": [ "/ill-app-3d/97/0139-01" ] }, { "cite": "403 N.E.2d 1", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "82 Ill. App. 3d 662", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3222491 ], "weight": 2, "pin_cites": [ { "page": "679" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/82/0662-01" ] } ], "analysis": { "cardinality": 842, "char_count": 22819, "ocr_confidence": 0.75, "pagerank": { "raw": 7.600516832851934e-08, "percentile": 0.45004284033547903 }, "sha256": "367d2bce822ceb07269fc2cb0d47316ac0bac42c9f9e48460c8bcab17708fac4", "simhash": "1:bae7559c7f070c64", "word_count": 3746 }, "last_updated": "2023-07-14T19:01:37.473766+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "LARRY M. KLAIRMONT, Plaintiff-Appellant, v. ELMHURST RADIOLOGISTS et al., Defendants-Appellees." ], "opinions": [ { "text": "JUSTICE WHITE\ndelivered the opinion of the court:\nThe parties are before the court in two separate appeals from orders of the trial court. In 1 \u2014 88\u20141951, plaintiff Larry Klairmont contends that the trial court erred in ordering him to pay costs as a sanction for discovery violations. In 1 \u2014 89\u20141094, defendants Elmhurst Radiologist, S.C.; Physician\u2019s Service Center; and Gus Ormbrek contend that the court erred in granting plaintiff\u2019s motion to vacate an ex parte judgment entered in their favor on a counterclaim filed against plaintiff.\nFACTS\nWe will recite only those facts that are relevant to our decision.\n1974-1981: Defendants were the lessees of office space in a building located at 110 East Schiller Street in Elmhurst, Illinois. Defendants vacated the building in November 1981.\nDecember 1982: Plaintiff filed a two-count complaint against defendants alleging that they removed fixtures and caused extensive damage to the building and its electrical system. Count I of the complaint sought recovery against Elmhurst Radiologists, while count II sought recovery against \u201cGus Ormbrek d/b/a Elmhurst Radiologist/ Physicians\u2019 Service Center, Inc.\u201d The suit was filed in plaintiff\u2019s name, and the leases attached to the complaint revealed that the lessors of the property were plaintiff and the Imperial Realty Company, acting as agents for unnamed beneficiaries of a land trust.\nFebruary 1983: Defendants filed an answer denying plaintiff\u2019s allegations and alleging that the complaint failed to state a claim upon which relief could be granted. Defendants also filed a counterclaim for recovery of their $250 security deposit.\nApril 1984: Defendants filed a notice of deposition requesting the appearance of plaintiff on May 17, 1984. Defendants also filed a request for production of documents.\nIn the request, defendants sought (1) all files maintained by plaintiff concerning defendants; (2) all files concerning the leased premises; (3) all correspondence regarding defendants and the building; (4) receipts for the purchase of all items which plaintiff claimed were wrongfully removed from the premises by defendants; (5) receipts for the repair of damage caused by defendants; (6) all records for any work done to the electrical system; (7) all reports of State, local, or Federal building inspectors concerning the. premises; and (8) all documents on which plaintiff planned to rely to establish the alleged damages.\nMay 1984: Plaintiff filed objections to paragraphs (2), (3), (6), and (7) of defendants\u2019 request for production, arguing that they were too broad and sought irrelevant material. No objections were made to paragraphs (1), (4), (5), and (8); however, the documents requested in those paragraphs were not produced.\nSeptember 1986: Defendants filed a motion to compel discovery and requesting sanctions for plaintiff\u2019s failure to comply with defendants\u2019 April 1984 discovery requests. An agreed order was entered requiring plaintiff to produce before September 22 all documents sought by defendants to which no objections had been made. The order also required plaintiff to appear for his deposition \u201cno sooner than October 3, 1986 or at such other time as the parties may hereafter agree.\u201d\nOctober 1986: Defendants renewed their motion to compel alleging that plaintiff had failed to produce any documents relating to the damage that plaintiff claimed defendants caused to the building. Defendants also alleged that plaintiff\u2019s attorney had not replied to defendants\u2019 requests for a written response confirming or denying the existence of such documents.\nOn October 27 the trial court entered an order requiring plaintiff to file an affidavit of full compliance with defendants' request to produce.\nNovember 7, 1986: The affidavits of Alfred Klairmont, plaintiff\u2019s son, and Robert Roth, one of plaintiff\u2019s attorneys, were filed with the court. Alfred Klairmont stated in his affidavit that plaintiff had searched his files for those documents covered by defendants\u2019 request for production and not objected to by plaintiff and that all such documents had been turned over to his attorneys. Klairmont\u2019s affidavit also stated that he was a duly authorized agent of plaintiff, that the statements in the affidavit were based on his personal knowledge, and that he was competent to testify concerning the statements. Roth\u2019s affidavit stated that copies of all documents received from plaintiff had been turned over to defendants\u2019 attorneys.\nApril 10, 1987: Defendants filed a motion to dismiss plaintiff\u2019s complaint for failure to allege facts establishing plaintiff\u2019s standing to sue on behalf of the owners of the property in question.\nJune 1987: Defendants\u2019 motion to dismiss was granted. On June 29, plaintiff filed an amended complaint again suing in his own name as agent for unnamed beneficiaries of a land trust.\nJuly 1987: Defendants filed a three-count counterclaim against plaintiff seeking the return of their security deposit and alleging that plaintiff had failed to maintain the premises as required by the terms of the lease and had breached the terms of the lease by filing suit against Gus Ormbrek in his individual capacity.\nOn July 22, defendants presented a motion for sanctions alleging that plaintiff, Alfred Klairmont, and one of plaintiffs employees had repeatedly failed to appear for their depositions. In response, the trial court ordered the depositions to be taken in court on July 28, 29, and 30.\nOn July 28, plaintiff failed to appear in court for his deposition and his attorney informed the court that he had been advised that plaintiff was in California for the birth of a grandchild. The court entered an order requiring plaintiff to appear the next day to explain his absence.\nOn July 29, plaintiff again failed to appear and plaintiff\u2019s attorney presented an affidavit in which plaintiff indicated that he failed to appear the previous day because he had chosen to attend a board meeting in Highland Park. The trial court entered an order requiring plaintiff to appear before the court for his deposition on the following day and reserving defendant\u2019s right to pursue sanctions for plaintiff\u2019s failure to appear as ordered on July 28. The plaintiff and Alfred Klairmont appeared for their depositions on July 30.\nAugust 20, 1987: Defendants filed a motion to dismiss the amended complaint, a motion for judgment on the pleadings, and a motion to show cause and for sanctions. In the motion to show cause and for sanctions, defendants requested an award of attorney fees against plaintiff and his attorneys for various discovery violations, including plaintiff\u2019s failure to appear for his deposition and the filing of perjurous affidavits.\nDefendants\u2019 claim that plaintiff filed perjurous affidavits was based upon Alfred Klairmont\u2019s deposition testimony that he possessed receipts and invoices for repairs made after defendants vacated the building. Defendants pointed out that in response to its request for documents relating to plaintiff\u2019s allegations of damage, Alfred Klairmont and one of plaintiff\u2019s attorneys filed affidavits stating that all documents requested by defendants had been produced.\nIn their motion to dismiss the amended complaint, defendants again asserted that plaintiff had failed to plead his authority to bring suit in his own name.\nNovember 2, 1987: Defendants\u2019 motions for judgment on the pleadings in favor of Gus Ormbrek and for dismissal of plaintiff\u2019s complaint for failure to state a claim were granted. Plaintiff was given until November 30 to file a second amended complaint; however, plaintiff did not file a second amended complaint within the time given.\nFebruary 1988: Plaintiff filed a motion seeking leave to file a second amended complaint. This complaint, like the previous ones, was filed in plaintiff\u2019s name as agent for unnamed beneficiaries of a land trust.\nMarch 21, 1988: The trial court entered an order granting defendants\u2019 motion to show cause and for sanctions \u201cfor the reasons stated in Defendant\u2019s Motion.\u201d The court awarded defendant $2,871.70 in costs and fees to be paid by plaintiff and his attorneys.\nJune 1988: Plaintiff was denied leave to file his second amended complaint because it did not comply with the November 2 order. Plaintiff was given until June 27 to file a motion seeking leave to file a revised amended complaint. Leave to file was granted, and on July 5, 1988, a complaint naming plaintiff as the beneficiary of the land trust was filed.\nOctober 1988: On October 25, the Chicago Daily Law Bulletin listed the case in the trial call for October 26. Defendants appeared in court on October 26. Plaintiff did not appear. The trial court entered an order dismissing the complaint for want of prosecution, granting a default judgment on defendants\u2019 counterclaim, and scheduling a prove up on November 4. That same day, defendants mailed plaintiff a copy of the court\u2019s order.\nNovember 1988: Plaintiff failed to appear for the November 4 prove up. The court entered judgment in favor of defendants and awarded damages on defendants\u2019 counterclaim in the amount of $65,919.80.\nOn November 22, plaintiff filed a motion to vacate the dismissal for want of prosecution entered on October 26.\nDecember 1988: On December 21, in their response in opposition to plaintiff\u2019s motion to vacate, defendants argued that the motion sought to vacate only the October 26 order dismissing the complaint for want of prosecution, not the November 4 judgment; that the November 4 judgment fully adjudicated the issues raised by the complaint; and that, therefore, the motion to vacate should be denied because recovery on the complaint was barred under the principles of collateral estoppel and res judicata.\nOn December 28, plaintiff filed a motion to vacate the November 4 judgment. Plaintiff\u2019s motion stated that his counsel appeared in another previously set matter on the morning of November 4 and that he had a \u201cgood and justiciable defense\u201d to the counterclaim.\nFebruary 1989: Plaintiff filed a \u201csupplement\u201d to his motions. Attached to the supplement was a \u201cdocket print-out\u201d of the case, indicating that on October 20 the case was placed on the assignment call for October 26; that on October 24, the case was reset for November 21; and that on October 26 the dismissal for want of prosecution and the default judgment were entered. Plaintiff argued that the printout demonstrated that the case should not have been on the trial call for October 26; that, due to the October 24 order, plaintiff was not required to appear in court on October 26; and that the dismissal for want of prosecution and default judgment should not have been entered.\nMarch 1989: The trial court entered an order granting plaintiff\u2019s motions and vacating the October 26 order and the November 4 judgment.\nAPPEAL NO. 1-88-1951\nIn his appeal from the order granting defendants\u2019 request for sanctions and awarding attorney fees of $2,871.70, plaintiff claims that the award of fees was improper. Plaintiff has not cited any cases in support of this claim; instead, his brief consists of a lengthy recitation of what he contends are examples of defendants\u2019 improper conduct. However, it is plaintiff\u2019s conduct, not that of defendant, that is at issue, and we find that plaintiff\u2019s conduct warranted the imposition of sanctions.\nIn their motion to show cause and for sanctions, defendants sought sanctions pursuant to both Supreme Court Rule 219 (107 Ill. 2d R. 219) and section 2 \u2014 611 of the Code of Civil Procedure (Ill. Rev. Stat. 1985, ch. 110, par. 2 \u2014 611).\nSupreme Court Rule 219(c) provides that a court may order a party or his attorney to pay the reasonable expenses, including attorney fees, incurred as a result of the party\u2019s failure to comply with the discovery rules (107 Ill. 2d Rules 201 through 222) or with any order entered under the rules. Sanctions are to be imposed under Rule 219 only when a party\u2019s noncompliance is unreasonable. (Servbest Foods, Inc. v. Emessee Industries, Inc. (1980), 82 Ill. App. 3d 662, 403 N.E.2d 1.) In determining whether the noncompliance is unreasonable, the standard is whether the offending party\u2019s conduct is characterized by a deliberate and pronounced disregard for the rules and the court. Servbest, 82 Ill. App. 3d at 679.\nSection 2 \u2014 611 provides that untrue statements, made without reasonable cause, shall subject the party pleading them to the payment of reasonable expenses, actually incurred by the other party by reason of the untrue pleading, together with a reasonable attorney fee.\nUnder both Rule 219 and section 2 \u2014 611, the award of sanctions is within the discretion of the trial court (Whirlpool Corp. v. Bank of Naperville (1981), 97 Ill. App. 3d 139, 421 N.E.2d 1078; Wach v. Martin Varnish Co. (1981), 96 Ill. App. 3d 954, 422 N.E.2d 172) and such an award should not be disturbed absent an abuse of discretion (Pole Realty Co. v. Sorrells (1981), 84 Ill. 2d 178, 417 N.E.2d 1297).\nIn granting defendants\u2019 motion, the trial court did not specify whether its award was pursuant to section 2 \u2014 611 or Rule 219. The court\u2019s order stated only that the award was granted for the reasons stated in the defendants\u2019 motion for sanctions.\nAmong the reasons stated in defendants\u2019 motion was plaintiff\u2019s repeated failure to appear for his deposition. Defendants pointed out that plaintiff failed to appear on five separate occasions for scheduled depositions; that in response to plaintiff\u2019s failure to appear, the court entered orders requiring plaintiff\u2019s deposition to be taken in court; and that plaintiff failed to appear in court on July 28 or 29 in violation of the court\u2019s order requiring his appearance.\nAnother reason stated in defendants\u2019 motion was plaintiff\u2019s filing of a false affidavit stating that all materials sought by defendants\u2019 request for production had been turned over to defendant. Defendants noted that after plaintiff was ordered to respond to those portions of the request to produce to which no objections had been made, he failed to produce the documents relating to damages and repairs sought in paragraphs (5) and (8) of the request; that in response to defendants\u2019 renewed request for such documents plaintiff filed an affidavit stating that all requested documents had been produced; and that, subsequently, plaintiff revealed that he possessed documents relating to damages and repairs.\nIn In re Application of Cook County Collector (1986), 144 Ill. App. 3d 604, 494 N.E.2d 536, this court held that a section 2\u2014611 award may be based on untrue statements made in an affidavit and that an award made in such circumstances comports with the language and intent of the statute. In Tennicott v. Chicago Transit Authority (1981), 103 Ill. App. 3d 607, 609, 431 N.E.2d 1077, we held that a defendant\u2019s conduct in failing to respond fully to plaintiff\u2019s request to produce \u201cdid not fall within the realm of the expected spirit of the rules of discovery\u201d and, therefore, it was proper for the trial court to impose sanctions under Rule 219(c). In Nehring v. First National Bank (1986), 143 Ill. App. 3d 791, 493 N.E.2d 1119, the appellate court held that a plaintiff\u2019s conduct in refusing to produce documents and repeatedly failing to appear for his deposition warranted the imposition of sanctions, pursuant to Rule 219(c).\nIn the present case, we find that, in light of plaintiff\u2019s conduct in repeatedly failing to appear for his deposition, in failing to respond fully to defendants\u2019 request to produce, and in filing an affidavit falsely stating that all requested and unobjected-to documents had been produced, the trial court\u2019s award of sanctions was justified. Accordingly, we affirm the trial court\u2019s award of $2,871.70 in costs and fees to be paid by plaintiff and his attorneys.\nAPPEAL NO. 1-89-1094\nIn their appeal from the order granting plaintiff\u2019s motion to vacate the November 4 judgment, defendants argue that the trial court\u2019s action amounted to an abuse of discretion. Defendants contend that the motion to vacate the November 4 judgment must be treated as a section 2 \u2014 1401 petition and that, as such, it fails to establish that plaintiff is entitled to relief pursuant to section 2 \u2014 1401.\nRelief from judgments may be obtained under sections 2\u2014 1301 and 2 \u2014 1401 of the Code of Civil Procedure. (Ill. Rev. Stat. 1987, ch. 110, pars. 2 \u2014 1301, 2 \u2014 1401.) Section 2 \u2014 1301 provides that an order or judgment may be vacated by a court upon a motion of a party filed within 30 days of the entry of the judgment. Section 2\u2014 1401 sets forth the procedures under which relief from an order or judgment may be obtained after 30 days from the entry thereof. A section 2 \u2014 1401 petition, unlike a section 2 \u2014 1301 petition, must set forth specific factual allegations demonstrating that the petitioner has a meritorious defense or claim and that the petitioner acted with due diligence. Smith v. Airoom, Inc. (1986), 114 Ill. 2d 209, 499 N.E.2d 1381; People ex rel. Reid v. Adkins (1971), 48 Ill. 2d 402, 270 N.E.2d 841.\nIn the present case, an order dismissing plaintiff\u2019s action for want of prosecution was entered on October 26, and on November 4, an ex parte judgment was entered on defendants\u2019 counterclaim. On November 22, within 30 days of both the dismissal order and the ex parte judgment, plaintiff filed a motion to vacate the court order of October 26. This motion made no mention of the court\u2019s November 4 judgment. On December 28, plaintiff filed a motion to vacate the November 4 judgment.\nIn his appeal, plaintiff argues that his second motion should not be considered a section 2 \u2014 1401 motion because his first motion, filed within 30 days of the ex parte judgment, sought to vacate the November 4 judgment by implication and gave the court continuing jurisdiction over the case.\nWhile it is true that a motion may pray for more than one type of relief and that the character of a motion should be determined from its content (see Dross v. Farrell-Birmingham, Co. (1964), 51 Ill. App. 2d 192, 200 N.E.2d 912), it is clear that plaintiff\u2019s first motion was addressed to and sought relief from only the October 26 order of dismissal. It is also clear that the granting of relief from the October 26 dismissal would not require, of necessity, that the ex parte judgment be vacated, and, therefore, we must disagree with plaintiffs contention that his motion implicitly sought such relief.\nThus, we are required to determine whether plaintiff\u2019s petition was sufficient for purposes of section 2 \u2014 1401 and whether the trial court acted within its discretion when it vacated the November 4 judgment. As we stated above, a section 2 \u2014 1401 petition must set forth allegations demonstrating a meritorious defense and that the petitioner acted with due diligence in resisting entry of the judgment. We find that plaintiff failed to meet this second requirement.\nTo establish due diligence, a petitioner must show that his failure to appear was a result of excusable mistake and that under the circumstances he acted reasonably and not negligently when he failed to resist the judgment. Westphall v. Trailers, Campers, Campgrounds, Inc. (1979), 76 Ill. App. 3d 205, 392 N.E.2d 741; Summit Electric Co. v. Mayrent (1977), 54 Ill. App. 3d 173, 369 N.E.2d 319.\nPlaintiff has argued in the lower court and before this court that he was not negligent when he failed to appear on October 26, because an order was entered on October 24 continuing the case to November 21 and that the matter was placed on the October 26 trial call due to a computer error. However, plaintiff has never argued that he was aware of or relied on the October 24 order continuing the case. More importantly, plaintiff has made no claim that he was unaware of the November 4 hearing and he has not denied defendants\u2019 claim that they informed plaintiff of the November 4 hearing by notice mailed October 26. Plaintiff\u2019s only excuse for his failure to appear on November 4 is the unsubstantiated statement contained in his petition that \u201cduring the morning of November 4, 1988 Plaintiff\u2019s counsel appeared in another previously set matter.\u201d This allegation is insufficient to establish due diligence. See Diacou v. Palos State Bank (1976), 65 Ill. 2d 304, 357 N.E.2d 518; Salvati v. Pekin Lincoln Mercury, Inc. (1976), 37 Ill. App. 3d 78, 345 N.E.2d 216; Elliot Construction Corp. v. Zahn (1968), 99 Ill. App. 2d 112, 241 N.E.2d 129.\nThe fact that a plaintiff\u2019s attorney was engaged in another matter on the date of a hearing does not excuse plaintiff or his attorney from either informing the court of the conflict or having someone else appear in his stead. (Salvati, 37 Ill. App. 3d at 80; Elliot, 99 Ill. App. 2d at 117.) Section 2 \u2014 1401 does not afford a litigant a remedy whereby he may be relieved of the consequences of his own mistake or the negligence of his trial counsel. Diacou v. Palos State Bank, 65 Ill. 2d 304, 357 N.E.2d 518; Esczuk v. Chicago Transit Authority (1968), 39 Ill. 2d 464, 236 N.E.2d 719; Stallworth v. Thomas (1980), 83 Ill. App. 3d 747, 404 N.E.2d 554.\nIn Esczuk, a complaint was dismissed after both plaintiff and defendant failed to appear at a pretrial hearing. In affirming the dismissal, the supreme court held that plaintiff\u2019s claim that she did not know of the hearing was insufficient to establish due diligence. (Esczuk, 39 Ill. 2d at 467.) In Diacou, the supreme court pointed out that the plaintiffs\u2019 petition contained no allegation that plaintiffs or their counsel lacked knowledge of the trial date and held that by failing to allege that they were unaware of the trial, plaintiffs had failed to make even the minimal showing found insufficient in Esczuk. Diacou, 65 Ill. 2d at 311.\nIn the case before us, plaintiff has not denied that he was aware of the November 4 hearing and has offered no excuse for his failure to seek a continuance or to advise the court that he would be unable to appear on that date. Thus, as in Diacou, plaintiff has failed to make the minimal showing necessary to establish due diligence, and, therefore, it was error for the court to grant the motion to vacate the November 4 judgment.\nCONCLUSION\nIn appeal 1 \u2014 88\u20141951, the order of the trial awarding sanctions to defendants is affirmed. In appeal 1 \u2014 89\u20141094, the order granting plaintiff\u2019s motion to vacate the ex parte judgment entered November 4, 1988, is reversed.\nNo. 1 \u2014 88\u20141951, Affirmed.\nNo. 1 \u2014 89\u20141094, Reversed.\nCERDA, P.J., and FREEMAN, J., concur.", "type": "majority", "author": "JUSTICE WHITE" } ], "attorneys": [ "Charles E. Adler, of Adler & Adler, of Chicago, for appellant.", "William C. Meyers and Stephen L. Tyma, both of McDermott, Will & Emery, of Chicago, for appellees." ], "corrections": "", "head_matter": "LARRY M. KLAIRMONT, Plaintiff-Appellant, v. ELMHURST RADIOLOGISTS et al., Defendants-Appellees.\nFirst District (3rd Division)\nNos. 1\u201488\u20141951, 1\u201489\u20141094 cons.\nOpinion filed June 27, 1990.\nCharles E. Adler, of Adler & Adler, of Chicago, for appellant.\nWilliam C. Meyers and Stephen L. Tyma, both of McDermott, Will & Emery, of Chicago, for appellees." }, "file_name": "0638-01", "first_page_order": 660, "last_page_order": 670 }