{ "id": 521927, "name": "MARTA JUSZCZYK, Plaintiff-Appellant, v. ELENA FLORES, Defendant-Appellee", "name_abbreviation": "Juszczyk v. Flores", "decision_date": "2002-09-11", "docket_number": "No. 1 \u201400\u20140873", "first_page": "122", "last_page": "128", "citations": [ { "type": "official", "cite": "334 Ill. App. 3d 122" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "693 N.E.2d 1233", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1998, "opinion_index": 0 }, { "cite": "295 Ill. App. 3d 950", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 45766 ], "year": 1998, "pin_cites": [ { "page": "953" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/295/0950-01" ] }, { "cite": "357 N.E.2d 518", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1976, "pin_cites": [ { "parenthetical": "delay of three months" } ], "opinion_index": 0 }, { "cite": "65 Ill. 2d 304", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5435207 ], "year": 1976, "pin_cites": [ { "page": "312", "parenthetical": "delay of three months" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/65/0304-01" ] }, { "cite": "358 N.E.2d 1308", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1976, "pin_cites": [ { "parenthetical": "delay of slightly more than three months" } ], "opinion_index": 0 }, { "cite": "44 Ill. App. 3d 934", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2810922 ], "year": 1976, "pin_cites": [ { "page": "937", "parenthetical": "delay of slightly more than three months" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/44/0934-01" ] }, { "cite": "392 N.E.2d 741", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1979, "pin_cites": [ { "parenthetical": "delay of approximately two months" } ], "opinion_index": 0 }, { "cite": "76 Ill. App. 3d 205", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3280782 ], "year": 1979, "pin_cites": [ { "page": "208-09", "parenthetical": "delay of approximately two months" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/76/0205-01" ] }, { "cite": "25 N.E.2d 796", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1940, "opinion_index": 0 }, { "cite": "373 Ill. 180", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2529178 ], "year": 1940, "pin_cites": [ { "page": "182" } ], "opinion_index": 0, "case_paths": [ "/ill/373/0180-01" ] }, { "cite": "602 N.E.2d 717", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1998, "opinion_index": 0 }, { "cite": "295 Ill. App. 3d 485", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 45686 ], "weight": 2, "year": 1998, "pin_cites": [ { "page": "489" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/295/0485-01" ] }, { "cite": "499 N.E.2d 1381", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1986, "opinion_index": 0 }, { "cite": "114 Ill. 2d 209", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5542740 ], "weight": 2, "year": 1986, "pin_cites": [ { "page": "220-21" }, { "page": "222" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/114/0209-01" ] }, { "cite": "761 N.E.2d 299", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2001, "opinion_index": 0 }, { "cite": "326 Ill. App. 3d 569", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 1281402 ], "year": 2001, "pin_cites": [ { "page": "575" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/326/0569-01" ] }, { "cite": "736 N.E.2d 179", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2000, "opinion_index": 0 }, { "cite": "316 Ill. App. 3d 443", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 1096648 ], "year": 2000, "pin_cites": [ { "page": "457" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/316/0443-01" ] }, { "cite": "632 N.E.2d 165", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1994, "opinion_index": 0 }, { "cite": "259 Ill. App. 3d 371", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2869197 ], "year": 1994, "pin_cites": [ { "page": "373" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/259/0371-01" ] }, { "cite": "625 N.E.2d 358", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1993, "opinion_index": 0 }, { "cite": "253 Ill. App. 3d 196", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5421534 ], "year": 1993, "pin_cites": [ { "page": "201" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/253/0196-01" ] }, { "cite": "537 N.E.2d 956", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1989, "pin_cites": [ { "parenthetical": "stating that an application to vacate a judgment within 30 days of entry is a direct attack, and if made after the expiration of 30 days, it is a collateral attack" } ], "opinion_index": 0 }, { "cite": "182 Ill. App. 3d 70", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2621343 ], "year": 1989, "pin_cites": [ { "page": "73", "parenthetical": "stating that an application to vacate a judgment within 30 days of entry is a direct attack, and if made after the expiration of 30 days, it is a collateral attack" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/182/0070-01" ] }, { "cite": "164 N.E.2d 57", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1960, "opinion_index": 0 }, { "cite": "18 Ill. 2d 265", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5328451 ], "year": 1960, "pin_cites": [ { "page": "271" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/18/0265-01" ] }, { "cite": "742 N.E.2d 393", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2000, "pin_cites": [ { "parenthetical": "noting that subject-matter jurisdiction refers to a court's power to entertain and determine the general question presented by the case and to grant the particular relief requested" } ], "opinion_index": 0 }, { "cite": "318 Ill. App. 3d 369", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 279699 ], "year": 2000, "pin_cites": [ { "page": "373-74", "parenthetical": "noting that subject-matter jurisdiction refers to a court's power to entertain and determine the general question presented by the case and to grant the particular relief requested" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/318/0369-01" ] }, { "cite": "758 N.E.2d 492", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2001, "pin_cites": [ { "parenthetical": "stating that in a civil suit a trial court obtains personal jurisdiction when an action is filed and proper summons is served on defendant" } ], "opinion_index": 0 }, { "cite": "325 Ill. App. 3d 573", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 570162 ], "year": 2001, "pin_cites": [ { "page": "581", "parenthetical": "stating that in a civil suit a trial court obtains personal jurisdiction when an action is filed and proper summons is served on defendant" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/325/0573-01" ] }, { "cite": "767 N.E.2d 464", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2002, "opinion_index": 0 }, { "cite": "328 Ill. App. 3d 729", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2183320 ], "weight": 2, "year": 2002, "pin_cites": [ { "page": "731-32" }, { "page": "732" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/328/0729-01" ] }, { "cite": "711 N.E.2d 18", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1999, "opinion_index": 0 }, { "cite": "304 Ill. App. 3d 506", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 564620 ], "year": 1999, "pin_cites": [ { "page": "511" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/304/0506-01" ] }, { "cite": "759 N.E.2d 509", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2001, "opinion_index": 0 }, { "cite": "197 Ill. 2d 514", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 259086 ], "year": 2001, "pin_cites": [ { "page": "530-31" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/197/0514-01" ] }, { "cite": "692 N.E.2d 281", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1998, "opinion_index": 0 }, { "cite": "181 Ill. 2d 169", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 821398 ], "weight": 4, "year": 1998, "pin_cites": [ { "page": "174-75" }, { "page": "174" }, { "page": "175" }, { "page": "174" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/181/0169-01" ] }, { "cite": "619 N.E.2d 750", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1993, "pin_cites": [ { "parenthetical": "stating that whether a judgment is void or voidable presents a question of jurisdiction" } ], "opinion_index": 0 }, { "cite": "156 Ill. 2d 149", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 777558 ], "year": 1993, "pin_cites": [ { "page": "155", "parenthetical": "stating that whether a judgment is void or voidable presents a question of jurisdiction" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/156/0149-01" ] }, { "cite": "395 N.E.2d 549", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1979, "opinion_index": 0 }, { "cite": "77 Ill. 2d 108", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5490191 ], "year": 1979, "pin_cites": [ { "page": "112" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/77/0108-01" ] }, { "cite": "663 N.E.2d 113", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1996, "pin_cites": [ { "parenthetical": "stating that the Vortanz and Maras decisions, which hold that an order entered without notice to a party is \"void,\" are both questionable in light of Illinois Supreme Court decisions holding that only orders entered by a court lacking personal or subject-matter jurisdiction are \"void\"" } ], "opinion_index": 0 }, { "cite": "278 Ill. App. 3d 597", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 1156762 ], "year": 1996, "pin_cites": [ { "page": "602" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/278/0597-01" ] }, { "cite": "467 N.E.2d 599", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1984, "opinion_index": 0 }, { "cite": "126 Ill. App. 3d 876", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3597860 ], "year": 1984, "opinion_index": 0, "case_paths": [ "/ill-app-3d/126/0876-01" ] }, { "cite": "534 N.E.2d 625", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1989, "opinion_index": 0 }, { "cite": "179 Ill. App. 3d 584", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2609561 ], "year": 1989, "pin_cites": [ { "page": "589-90" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/179/0584-01" ] }, { "cite": "642 N.E.2d 834", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1994, "opinion_index": 0 }, { "cite": "267 Ill. App. 3d 908", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 333156 ], "weight": 3, "year": 1994, "pin_cites": [ { "page": "914" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/267/0908-01" ] } ], "analysis": { "cardinality": 764, "char_count": 16222, "ocr_confidence": 0.757, "pagerank": { "raw": 9.464442497273101e-08, "percentile": 0.5175469689545606 }, "sha256": "8169c1269b1d5ea7f4f47ad9df2c0e57cb65595b00e6fdb2bc63b0562b78bb26", "simhash": "1:2bb8699edcd58ce7", "word_count": 2679 }, "last_updated": "2023-07-14T19:16:41.005109+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "MARTA JUSZCZYK, Plaintiff-Appellant, v. ELENA FLORES, Defendant-Appellee." ], "opinions": [ { "text": "PRESIDING JUSTICE HALL\ndelivered the opinion of the court:\nThis action arose from a t'wo-car accident. On July 13, 1998, plaintiff Marta Juszczyk filed a negligence action against defendant Elena Flores to recover for injuries and damages she sustained in a two-car collision that occurred on August 10, 1997, at the intersection of Humboldt Boulevard and Augusta Boulevard in Chicago, Illinois. On April 8, 1999, defendant was served with an alias summons and complaint.\nOn May 19, 1999, a notice of arbitration hearing was mailed from the Arbitration Center , setting the arbitration hearing for August 3, 1999. On June 1, 1999, the trial court granted defendant\u2019s motion to vacate any and all defaults and for leave to file an appearance, answer, and jury demand. On June 2, 1999, the law firm of Thomas L. Burde-lik & Associates filed an appearance on behalf of defendant along with interrogatories, a notice to produce, and a request for production. The firm also filed an answer on behalf of defendant, in which defendant admitted negligence but denied that the negligence was a direct or proximate cause of plaintiffs injuries or damages.\nOn June 28, 1999, plaintiffs counsel sent defendant\u2019s counsel evidentiary documents for the August 3, 1999, arbitration hearing pursuant to Illinois Supreme Court Rule 90(c). 145 Ill. 2d R. 90(c). The Rule 90(c) material did not indicate the date the arbitration hearing would be held. On August 3, 1999, the arbitration hearing was conducted. Plaintiff and her counsel both appeared at the arbitration hearing and participated in the hearing. However, neither defendant nor her counsel was present at the arbitration hearing. The arbitration panel subsequently awarded plaintiff $20,000, plus costs. On September 16, 1999, the trial court entered judgment on the arbitration award.\nOn October 22, 1999, plaintiff filed a motion for award of costs. On November 15, 1999, a hearing was held on plaintiffs motion for costs. Defense counsel appeared at the hearing and argued the motion. The trial court subsequently ruled that plaintiff was entitled to $520 as costs, pursuant to the judgment on the arbitration award. On December 16, 1999, plaintiffs counsel sent a letter to defense counsel seeking payment of the arbitration award and costs. On December 27, 1999, plaintiffs counsel faxed a copy of the arbitration award to defense counsel.\nOn January 4, 2000, defendant filed a petition to vacate the arbitration judgment pursuant to section 2 \u2014 1401 of the Illinois Code of Civil Procedure (Code) (735 ILCS 5/2 \u2014 1401 (West 1998)), on the ground that defendant never received notice of the arbitration hearing or the September 16, 1999, judgment order. On February 9, 2000, a hearing was held on defendant\u2019s petition. The trial court granted defendant\u2019s section 2 \u2014 1401 petition, finding that under Ratkovich v. Hamilton, 267 Ill. App. 3d 908, 642 N.E.2d 834 (1994), the arbitration judgment was void and subject to vacatur because defendant did not receive 60 days\u2019 written notice of the arbitration hearing as required by Supreme Court Rule 88 (134 Ill. 2d R. 88). On appeal, plaintiff contends that the trial court erred in granting defendant\u2019s section 2 \u2014 1401 petition. For the reasons that follow, we reverse and remand.\nANALYSIS\nI. Trial Court\u2019s Application of Ratkovich\nIn Ratkovich v. Hamilton, 267 Ill. App. 3d 908, 642 N.E.2d 834 (1994), a defendant was permitted to intervene in the case after Supreme Court Rule 88 notices of the arbitration hearing were sent to the original parties, but none issued to the intervening defendant, who subsequently failed to appear. The Ratkovich court, applying both Supreme Court Rule 88 (134 Ill. 2d R. 88) and Supreme Court Rule 91(a) (145 Ill. 2d R. 91(a)), held that where a party fails to receive 60 days\u2019 written notice of an arbitration hearing, any awards that issue are void. Ratkovich, 267 Ill. App. 3d at 914. In reaching this decision, the Ratkovich court analogized to the holding in Vortanz v. Elmhurst Memorial Hospital, 179 Ill. App. 3d 584, 589-90, 534 N.E.2d 625 (1989), which held that a trial court\u2019s order dismissing a plaintiffs complaint with prejudice was void, because plaintiff had received no notice that defendants would be presenting a motion to dismiss.\nHowever, Vortanz and the appellate court decision that Vortanz relied on for its holding regarding void judgments (Maras v. Bertholdt, 126 Ill. App. 3d 876, 467 N.E.2d 599 (1984)) have both been called into question. See Mortimer v. River Oaks Toyota, Inc., 278 Ill. App. 3d 597, 602, 663 N.E.2d 113 (1996) (stating that the Vortanz and Maras decisions, which hold that an order entered without notice to a party is \u201cvoid,\u201d are both questionable in light of Illinois Supreme Court decisions holding that only orders entered by a court lacking personal or subject-matter jurisdiction are \u201cvoid\u201d). Both Illinois Appellate and Supreme Court case law have consistently held that a judgment or order is void where it is entered by a court or agency lacking personal jurisdiction, subject-matter jurisdiction, or the inherent power to enter the particular judgment or order, or where the judgment or order is procured by fraud. See, e.g., Johnston v. City of Bloomington, 77 Ill. 2d 108, 112, 395 N.E.2d 549 (1979); People v. Davis, 156 Ill. 2d 149, 155, 619 N.E.2d 750 (1993) (stating that whether a judgment is void or voidable presents a question of jurisdiction); In re Marriage of Mitchell, 181 Ill. 2d 169, 174-75, 692 N.E.2d 281 (1998); Steinbrecher v. Steinbrecher, 197 Ill. 2d 514, 530-31, 759 N.E.2d 509 (2001); Siddens v. Industrial Comm\u2019n, 304 Ill. App. 3d 506, 511, 711 N.E.2d 18 (1999); LaSalle National Trust, N.A. v. Lamet, 328 Ill. App. 3d 729, 731-32, 767 N.E.2d 464 (2002).\nBased on the reasoning applied in City of Bloomington, Davis, In re Marriage of Mitchell, Steinbrecher, Siddens and LaSalle National Trust, the arbitration judgment in the instant case was not void, since the trial court had personal jurisdiction over defendant and subject-matter jurisdiction, where defendant was served with a summons and complaint. See People v. Rainey, 325 Ill. App. 3d 573, 581, 758 N.E.2d 492 (2001) (stating that in a civil suit a trial court obtains personal jurisdiction when an action is filed and proper summons is served on defendant); CPM Productions, Inc. v. Mobb Deep, Inc., 318 Ill. App. 3d 369, 373-74, 742 N.E.2d 393 (2000) (noting that subject-matter jurisdiction refers to a court\u2019s power to entertain and determine the general question presented by the case and to grant the particular relief requested). In the present case, the arbitration judgment was voidable, not void. A voidable judgment is a judgment entered erroneously by a court having jurisdiction. In re Marriage of Mitchell, 181 Ill. 2d at 174; LaSalle National Trust, 328 Ill. App. 3d at 732.\nHere, the trial court had jurisdiction over the parties and over the mandatory arbitration. In exercising this jurisdiction, however, the trial court entered a judgment on the arbitration award that was in error, because defendant had failed to receive 60 days\u2019 written notice of the arbitration hearing as required by Supreme Court Rule 88. The trial court\u2019s error in entering the judgment, however, did not divest the court of the jurisdiction or authority to enter the judgment on the arbitration award. In re Marriage of Mitchell, 181 Ill. 2d at 175. Therefore, the trial court\u2019s judgment on the arbitration award was voidable rather than void. Accordingly, we decline to adopt the holding in Ratkovich and instead conclude that where a party fails to receive 60 days\u2019 written notice of an arbitration hearing as required by Supreme Court Rule 88, any awards that issue are voidable.\nGenerally, a voidable judgment is not subject to collateral attack. In re Marriage of Mitchell, 181 Ill. 2d at 174. A collateral attack on a judgment is an attempt to impeach the judgment in an action other than that in which the judgment was rendered. Buford v. Chief, Park District Police, 18 Ill. 2d 265, 271, 164 N.E.2d 57 (1960); Jo Jan Corp. v. Brent, 182 Ill. App. 3d 70, 73, 537 N.E.2d 956 (1989) (stating that an application to vacate a judgment within 30 days of entry is a direct attack, and if made after the expiration of 30 days, it is a collateral attack). However, a party can collaterally attack a voidable judgment by demonstrating, through a section 2 \u2014 1401 petition, that the judgment was rendered in error. In re Marriage of Stefiniw, 253 Ill. App. 3d 196, 201, 625 N.E.2d 358 (1993).\nII. Section 2 \u2014 1401 Petition\nSection 2 \u2014 1401 of the Code pertains to motions to vacate judgments brought more than 30 days from entry of the judgment. A section 2 \u2014 1401 proceeding invokes the equitable powers of the court when the exercise of such power is needed to prevent an injustice. In re Petition of Click, 259 Ill. App. 3d 371, 373, 632 N.E.2d 165 (1994). The purpose of a section 2 \u2014 1401 petition is to bring before the trial court facts that were not known at the time of judgment and that, if known, would have prevented entry of the judgment. Physicians Insurance Exchange v. Jennings, 316 Ill. App. 3d 443, 457, 736 N.E.2d 179 (2000) ; Christine A.T. v. H.T., 326 Ill. App. 3d 569, 575, 761 N.E.2d 299 (2001) .\nIn order to obtain relief under section 2 \u2014 1401 of the Code, a petitioner must show by a preponderance of the evidence: (1) the existence of a meritorious defense or claim; (2) due diligence in presenting this defense or claim; and (3) due diligence in filing the section 2 \u2014 1401 petition. Smith v. Airoom, Inc., 114 Ill. 2d 209, 220-21, 499 N.E.2d 1381 (1986); American Ambassador Casualty Co. v. Jackson, 295 Ill. App. 3d 485, 602 N.E.2d 717 (1998). The decision whether to grant or deny a section 2 \u2014 1401 petition is reserved to the sound discretion of the trial court and will not be disturbed absent an abuse of that discretion. American Ambassador, 295 Ill. App. 3d at 489.\nIn the instant case, the record indicates that the trial court\u2019s decision to grant defendant\u2019s section 2 \u2014 1401 petition was not based on the court\u2019s determination that defendant had proven the three elements of her section 2 \u2014 1401 petition but, rather, on the court\u2019s conclusion that the arbitration judgment was void under Ratkovich. However, as we have previously stated, we believe that the judgment entered on the arbitration award was voidable, not void. Consequently, we believe that the trial court erred in granting defendant\u2019s section 2 \u2014 1401 petition to vacate the arbitration judgment, because defendant failed to show due diligence in filing her section 2 \u2014 1401 petition.\nDefense counsel, in her section 2 \u2014 1401 petition and in a supporting affidavit, stated that she did not learn of the arbitration judgment until she reviewed the November 15, 1999, order sometime in December 1999. The record shows, however, that defense counsel actually received notice of the arbitration judgment on or about October 24, 1999, after receiving plaintiffs petition for costs, which referred to the arbitration judgment. On November 15, 1999, defense counsel appeared at the hearing on plaintiffs petition for costs and argued against the petition, while never raising the issue of improper notice or objecting to the arbitration judgment. The trial court subsequently ruled that plaintiff was entitled to $520 as costs. On December 16, 1999, plaintiffs counsel sent defense counsel a letter seeking payment of the arbitration award and costs. Then, on January 4, 2000, approximately 21k months after learning of the arbitration judgment, defense counsel filed her section 2 \u2014 1401 petition, arguing lack of notice of the arbitration hearing. The above chronology clearly shows that defense counsel did not pursue section 2 \u2014 1401 relief with due diligence.\nThe burden was upon defendant to allege facts proving by a preponderance of the evidence that she exercised due diligence in seeking relief under section 2 \u2014 1401. Here, defendant fails to explain the approximately 2V2-month delay in filing her section 2 \u2014 1401 petition. This failure is glaring in light of the fact that on November 15, 1999, defense counsel appeared at the hearing on plaintiffs petition for costs and argued against the petition, but never raised the issue of improper notice regarding the arbitration.\nSection 2 \u2014 1401 relief will not be granted unless a party shows that through no fault or negligence of his or her own, the error of fact or the existence of a valid defense was not made to appear to the trial court. Airoom, Inc., 114 Ill. 2d at 222. \u201cThe court must be satisfied that the alleged new matter was not known to the petitioner and could not have been discovered, produced or used by him with the exercise of reasonable diligence upon the former trial.\u201d J.B. Inderrieden Co. v. Gill, 373 Ill. 180, 182, 25 N.E.2d 796 (1940). In the present case, defendant received notice of the arbitration judgment on or about October 24, 1999. Therefore, when defendant appeared on November 15, 1999, to contest the award of costs, defendant could have raised the issue of improper notice at that time, since this issue was either known to defendant or could have been discovered by defendant through the exercise of reasonable diligence.\nReviewing courts have upheld trial court findings of a lack of due diligence in filing a section 2 \u2014 1401 petition where the petitioner delayed for a similar period of time. See, e.g., Westphall v. Trailers, Campers, Campgrounds, Inc., 76 Ill. App. 3d 205, 208-09, 392 N.E.2d 741 (1979) (delay of approximately two months); Department of Public Works & Buildings v. O\u2019Hare International Bank, 44 Ill. App. 3d 934, 937, 358 N.E.2d 1308 (1976) (delay of slightly more than three months); Diacou v. Palos State Bank, 65 Ill. 2d 304, 312, 357 N.E.2d 518 (1976) (delay of three months). As previously stated, under the circumstances of this case, it is clear that defense counsel did not pursue section 2 \u2014 1401 relief with due diligence. Because we have determined that the trial court erred in granting, defendant\u2019s section 2 \u2014 1401 petition to vacate the arbitration judgment, we need not consider plaintiffs alternative argument that defendant consented to the judgment and waived relief under section 2 \u2014 1401 by appearing at the November 15, 1999, hearing to contest the award of costs.\nAccordingly, for the reasons set forth above, the judgment of the circuit court of Cook County is reversed and this cause remanded for further proceedings.\nReversed and remanded.\nCERDA and WOLFSON, JJ., concur.\nOn the May 19, 1999, \u201cMandatory Arbitration Notice Call Transmittal\u201d sheet, underneath defendant\u2019s name it lists \u201cNo Defendant Attorney of Record.\u201d\nSupreme Court Rule 88 states in relevant part: \u201cThe procedure for fixing the date, time and place of a hearing before a panel of arbitrators shall be prescribed by circuit rule provided that not less than 60 days\u2019 notice in writing shall be given to the parties or their attorneys of record.\u201d 134 Ill. 2d R. 88.\nSupreme Court Rule 91(a) states in relevant part: \u201cThe arbitration hearing shall proceed in the absence of any party who, after due notice, fails to be present.\u201d 145 Ill. 2d R. 91(a).\nSupreme Court Rule 86 establishes the eligibility requirements for mandatory arbitration. 155 Ill. 2d R. 86. Supreme Court Rule 86(c) provides that each individual circuit court may adopt rules governing the conduct of arbitration proceedings. 155 Ill. 2d R. 86(c). Pursuant to Rule 18.3(b) of the circuit court of Cook County, the monetary limit on damages must not exceed $30,000 exclusive of interest and costs. Cook Co. Cir. Ct. R. 18.3(b) (eff. October 2, 1995). In Cook County, all small claims are subject to mandatory arbitration. Allstate Insurance Co. v. Avelares, 295 Ill. App. 3d 950, 953, 693 N.E.2d 1233 (1998).", "type": "majority", "author": "PRESIDING JUSTICE HALL" } ], "attorneys": [ "Michael D. Mulvihill, of Cooney & Conway, of Chicago, for appellant.", "Matthew E. Luecke and Eric W Moch, both of Thomas L. Burdelik & Associates, of Chicago, for appellee." ], "corrections": "", "head_matter": "MARTA JUSZCZYK, Plaintiff-Appellant, v. ELENA FLORES, Defendant-Appellee.\nFirst District (3rd Division)\nNo. 1 \u2014 00\u20140873\nOpinion filed September 11, 2002.\nRehearing denied September 6, 2002.\nMichael D. Mulvihill, of Cooney & Conway, of Chicago, for appellant.\nMatthew E. Luecke and Eric W Moch, both of Thomas L. Burdelik & Associates, of Chicago, for appellee." }, "file_name": "0122-01", "first_page_order": 140, "last_page_order": 146 }