{
  "id": 8498393,
  "name": "SUSAN YATES, Plaintiff-Appellee, v. BARNABY'S OF NORTHBROOK, a/k/a Barnaby's Family Inn, a/k/a Bally's Tomfoolery, Inc., Defendant-Appellant",
  "name_abbreviation": "Yates v. Barnaby's of Northbrook",
  "decision_date": "1991-07-29",
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  "casebody": {
    "judges": [
      "CAMPBELL, J., concurs."
    ],
    "parties": [
      "SUSAN YATES, Plaintiff-Appellee, v. BARNABY\u2019S OF NORTHBROOK, a/k/a Barnaby\u2019s Family Inn, a/k/a Bally\u2019s Tomfoolery, Inc., Defendant-Appellant."
    ],
    "opinions": [
      {
        "text": "JUSTICE O\u2019CONNOR\ndelivered the opinion of the court:\nPlaintiff\u2019s personal injury action was dismissed on April 8, 1988, on defendant\u2019s motion for sanctions when plaintiff failed to comply with discovery. (107 Ill. 2d R. 219(c).) Defendant now appeals from entry of the trial court\u2019s order granting plaintiff\u2019s amended section 2\u2014 1401 petition (Ill. Rev. Stat. 1987, ch. 110, par. 2 \u2014 1401) to vacate the dismissal. Defendant contends that the trial court abused its discretion because plaintiffs petition was unsupported by competent affidavits and failed to demonstrate due diligence.\nIn February 1987, plaintiff filed a lawsuit against defendant alleging personal injuries when she slipped and fell in defendant\u2019s restaurant. In April 1987, defendant filed interrogatories and a request for production. In October 1987, defendant filed a motion for sanctions because plaintiff had failed to respond to discovery requests. In March 1988, plaintiff\u2019s original attorney was granted leave to withdraw as plaintiff\u2019s counsel and substitute counsel appeared. Defendant\u2019s motion for sanctions was entertained ex parte in April 1988 and the court entered a dismissal with prejudice.\nIn July 1988, plaintiff filed a petition to vacate the dismissal pursuant to section 2 \u2014 1401 of the Illinois Code of Civil Procedure. (Ill. Rev. Stat. 1987, ch. 110, par. 2 \u2014 1401.) Defendant then moved to dismiss the petition and the attached affidavits. These motions were continued from time to time, and in March 1989 an order was entered striking plaintiff\u2019s petition and all three supporting affidavits. Plaintiff filed an amended petition on March 31, 1989. In response, defendant again filed a motion to strike the affidavits attached to the amended petition. At the hearing on August 8, 1989, the affidavits attached to plaintiff\u2019s amended petition were stricken, but the trial court reinstated plaintiff\u2019s case despite finding negligence and a lack of diligence on plaintiff\u2019s part in prosecution of her claim. Defendant appeals from entry of that portion of the order reinstating plaintiff\u2019s case.\nIn prosecution of this appeal, defendant also moves to strike plaintiff\u2019s statement of facts, contending that this portion of plaintiff\u2019s responsive brief is replete with argumentative assertions that are not relevant to the appeal. No response was filed to this motion, and we took this motion with the case. While we agree that plaintiff\u2019s recitation of the facts includes matters not before this court, rather than strike the entire section we deny defendant\u2019s motion but shall ignore those matters factual or otherwise not on appeal here.\nDefendant claims that the trial court abused its discretion in allowing plaintiff\u2019s petition to vacate once the supporting affidavits were stricken. Section 2 \u2014 1401 of the Illinois Code of Civil Procedure provides for relief from judgments and \u201cmust be supported by affidavit or other appropriate showing as to matters not of record.\u201d (Ill. Rev. Stat. 1987, ch. 110, par. 2 \u2014 1401(b).) Our review of plaintiff\u2019s amended petition to vacate indicates that it is based totally on circumstances which occurred outside the record: lack of cooperation between original and substitute counsel for plaintiff, confusion regarding the hearing on defendant\u2019s motion for sanctions and failure of plaintiff\u2019s substitute counsel to locate and review the court file before learning of the dismissal. Although this information is not competent evidence without the supporting affidavits of the individuals involved, letters written by substitute counsel to plaintiff\u2019s original counsel were also attached as exhibits of plaintiff\u2019s petition to vacate. They set forth circumstances sufficient to support plaintiff\u2019s petition to vacate the dismissal without the affidavits. These letters indicate the lack of cooperation between plaintiff\u2019s original and substitute counsel.\nAlthough the trial court specifically found negligence and a lack of diligence on the part of plaintiff\u2019s original and substitute counsel in prosecuting plaintiff\u2019s claim, justice and fairness may require that the judgment be vacated even though the due diligence requirement has not been met. (Resto v. Walker (1978), 66 Ill. App. 3d 733, 740, 383 N.E.2d 1361.) In this case, we agree with the trial court that fairness mandates vacation of the dismissal order.\nAffirmed.\nCAMPBELL, J., concurs.",
        "type": "majority",
        "author": "JUSTICE O\u2019CONNOR"
      },
      {
        "text": "PRESIDING JUSTICE MANNING,\ndissenting:\nI must respectfully dissent. Although I agree that under certain circumstances, the fairness doctrine may be the significant basis for vacating an order pursuant to section 2 \u2014 1401, I do not believe that the factual matrix here presented mandates such a result. Fairness is a fundamental doctrine that often mandates relaxation of rules and principles of law. However, because one is unhappy with a particular result or is otherwise sympathetic to a losing litigant do not operate as improper reasons for granting section 2 \u2014 1401 relief. The grant of such relief is addressed to the trial court\u2019s discretion. The trial court is allowed to correct errors or review the orders in light of new information received, that had such information been available the ruling would have been different. There are very specific requirements, i.e., \u201c[t]he petition [for section 2 \u2014 1401 relief must be supported by affidavit or other appropriate showing as to matters not of record.\u201d (Ill. Rev. Stat. 1987, ch. 110, par. 2 \u2014 1401(b).) Here, defendant claims that the trial court abused its discretion in allowing plaintiff\u2019s petition to vacate once the supporting affidavits were stricken. I agree that reinstatement of plaintiff\u2019s claim was improper for the following reasons. Section 2 \u2014 1401 of the Illinois Code of Civil Procedure provides for relief from judgments and \u201cmust be supported by affidavit or other appropriate showing as to matters not of record.\u201d (Ill. Rev. Stat. 1987, ch. 110, par. 2 \u2014 1401(b).) My review of plaintiff\u2019s amended petition to vacate indicates that it is based totally on circumstances purportedly within the specific knowledge of person(s) involved which occurred outside the pleadings: lack of cooperation between original and substitute counsel for plaintiff, confusion regarding the hearing on defendant\u2019s motion for sanctions, and failure of plaintiff\u2019s substitute counsel to locate and review the court file before learning of the dismissal. I believe this information is incompetent evidence without the supporting affidavits of the individuals involved, thus leaving the petition alone incomplete and insufficient. Letters written by substitute counsel to plaintiff\u2019s original counsel attached as exhibits to plaintiff\u2019s petition to vacate also fail to set forth circumstances to support plaintiff\u2019s petition sufficient to vacate the dismissal without the affidavits. I further note that plaintiff has not cross-appealed the trial court\u2019s order striking the affidavits. Thus, I believe the only alternative is to reverse the trial court\u2019s order granting plaintiff\u2019s amended petition to vacate the dismissal. Once the trial court entered the order striking the affidavits, there were insufficient facts before the trial court in support of the section 2 \u2014 1401 petition.\nMoreover, I also note that the trial court specifically found negligence and a lack of diligence on the part of plaintiff\u2019s original and substitute counsel in prosecuting plaintiff\u2019s claim and such a finding warrants denial of plaintiff\u2019s petition to vacate with or without supporting affidavits. (Smith v. Airoom, Inc. (1986), 114 Ill. 2d 209, 499 N.E.2d 1381.) A petitioner must assert specific facts supporting the existence of due diligence in prosecution of his or her claim and in bringing the petition to vacate. A party may not simply assume that his or her attorney is doing everything necessary in conduct of litigation. (Welfelt v. Schultz Transit Co. (1986), 144 Ill. App. 3d 767, 494 N.E.2d 699.) Nor does section 2 \u2014 1401 operate to relieve a litigant of the consequences of an attorney\u2019s neglect in the matter. Kaput v. Hoey (1988), 124 Ill. 2d 370, 530 N.E.2d 230.\nAccordingly, I respectfully dissent and would reverse the judgment of the circuit court.",
        "type": "dissent",
        "author": "PRESIDING JUSTICE MANNING,"
      }
    ],
    "attorneys": [
      "Condon, Cook & Roche, of Chicago (Francis J. Leyhane III and Mary Rose C. Manczak, of counsel), for appellant.",
      "Cantwell & Cantwell, of Chicago (Peter A. Cantwell, Stephen F. Boulton, and Peter A. Gaido, of counsel), for appellee."
    ],
    "corrections": "",
    "head_matter": "SUSAN YATES, Plaintiff-Appellee, v. BARNABY\u2019S OF NORTHBROOK, a/k/a Barnaby\u2019s Family Inn, a/k/a Bally\u2019s Tomfoolery, Inc., Defendant-Appellant.\nFirst District (1st Division)\nNo. 1-89-2449\nOpinion filed July 29, 1991.\nCondon, Cook & Roche, of Chicago (Francis J. Leyhane III and Mary Rose C. Manczak, of counsel), for appellant.\nCantwell & Cantwell, of Chicago (Peter A. Cantwell, Stephen F. Boulton, and Peter A. Gaido, of counsel), for appellee."
  },
  "file_name": "0128-01",
  "first_page_order": 150,
  "last_page_order": 153
}