FOURTH DIVISION
March 29, 2007
No. 1-06-1813
CHARLES ROBINSON, )
) Appeal from
Plaintiff-Appellee, ) the Circuit Court
) of Cook County.
)
v. )
)
PATRICK J. RYAN, Individually and as agent of Cohn, )
Lambert, Ryan, Schneider and Gray, Ltd., an Illinois)
Corporation, COHN, LAMBERT, RYAN, SCHNEIDER )
AND GRAY, LTD., an Illinois Corporation, ) Honorable
) Jennifer Duncan-Brice,
Defendants ) Judge Presiding.
)
(North American Elite Insurance Company, )
)
Intervenor-Appellant). )
PRESIDING JUSTICE QUINN delivered the opinion of the court:
North American Elite Insurance Company (North American) appeals from an order of the
circuit court of Cook County denying its petition seeking relief from a judgment entered in favor
of plaintiff Charles Robinson, pursuant to section 2-1401 of the Code of Civil Procedure (Code)
(735 ILCS 5/2-1401 (West 2002)). On appeal, North American contends that the circuit court
abused its discretion by denying its petition where North American asserted a meritorious
defense to the validity of the judgment and exercised due diligence in presenting its defense. For
the following reasons, we reverse.
1-06-1813
I. Background
On February 6, 2003, plaintiff filed a complaint against defendants Patrick J. Ryan, and
the law firm of Cohn, Lambert, Ryan Schneider & Gray, Ltd (Cohn Lambert). According to the
complaint, on June 14, 1996, plaintiff sustained injuries while performing work as a plumber.
Plaintiff retained defendants to represent him in a worker’s compensation claim for the injuries
he sustained. The complaint alleged that defendants failed to file a complaint for damages
against third parties, other than plaintiff’s employer, within the applicable statute of limitations
period and failed to advise plaintiff that he had a claim against third parties. Defendants
answered plaintiff’s complaint and denied negligence and injury to plaintiff.
On July 7, 2005, Circuit Court Judge Richard J. Elrod held a pretrial conference. At the
conclusion of the pretrial conference, R. Connor Heist, attorney for defendants, drafted an order
that was entered by Judge Elrod dismissing plaintiff’s claims with prejudice and reflecting a
commitment by defendants to settle the case for $825,000. The order stated that “[d]efendants
agree to a settlement offer of $825,000 and [p]laintiff agrees to accept a settlement payment of
$825,000 upon resolution of an internal accounting issue with the insurance company.” The
order also provided that the court would retain jurisdiction and directed the parties to appear on
July 26, 2005, to “execute settlement documents and resolve lien issues.”
On July 26, 2005, the parties appeared and the circuit court entered an order finding that
“all liens have been resolved” and that the court’s July 7, 2005, order remained in effect. The
court ordered defendants to pay the agreed-upon settlement amount of $825,000, as reflected in
the July 7, 2005, order, on or before August 9, 2005. This order was entered over plaintiff’s
-2-
1-06-1813
objection, as settlement documents and payment were due on July 26, 2005. The court also
retained jurisdiction to enforce payment.
On August 5, 2005, defendants retained new counsel, who filed a motion to appear as
additional counsel and a verified petition to vacate the orders entered on July 7, 2005, and July
26, 2005. In the motion to vacate, defendants asserted that they had learned that their insurance
company, North American, had refused to settle the claim with plaintiff and had directed
defendants’ previous attorney R. Connor Heist not to enter into a settlement agreement.
Defendants maintained that they did not execute any settlement documents in this case and
would not have agreed to any settlement without the prior approval of their insurance company,
North American. On August 10, 2005, plaintiff filed a motion for judgment requesting that the
court enter judgment against defendants in the amount of $825,000.
On August 12, 2005, Judge Elrod conducted a hearing to address these motions. At that
hearing, R. Connor Heist was granted leave to withdraw as counsel for defendants. Dominic
Saviano and the law firm of Clausen Miller, P.C., were granted leave to appear as substitute
counsel retained for defendants by North American. Jerome Crotty of the law firm Rieck and
Crotty, P.C., was permitted to appear as additional counsel, retained independently by defendants
due to potential conflicts that could arise between defendants and North American. Judge Elrod
gave both counsels representing defendants leave to file a single amended motion to reconsider
vacating the previous orders. Judge Elrod also ordered that judgment be entered in favor of
plaintiff and against defendants in the amount of $825,000, but that the execution of judgment be
stayed for 60 days.
-3-
1-06-1813
On September 8, 2005, North American filed a motion for leave to intervene, seeking to
intervene in order to protect the insurance company’s rights with respect to whether the judgment
should be vacated. On the same date, North American also filed its petition to vacate the orders
entered on July 7, 2005, July 26, 2005, and August 12, 2005, pursuant to section 2-1401 of the
Code (735 ILCS 5/2-1401 (West 2002)). In its section 2-1401 petition, North American stated
that defendants Cohen Lambert and Ryan made a claim under the professional liability insurance
policy issued by North American regarding the suit filed by plaintiff. North American provided
defense counsel, Heist, to defendants. Les Czerepak, a senior claims manager at NAS Insurance
Group, which includes North American, was the representative for the oversight of the handling
of the suit filed by plaintiff. Aon Technical Insurance Services (ATIS) served as a third-party
administrator and handled certain legal malpractice claims for NAS Insurance Group. ATIS had
limited authority to settle claims up to an amount of $25,000. Payment of any settlement above
$25,000 was required to be approved in advance by NAS Insurance Group.
In its petition, North American also asserted that at the conclusion of the July 7, 2005,
pretrial conference, Heist drafted an order that was entered by the circuit court dismissing
plaintiff’s claims with prejudice and reflecting a commitment by defendants to settle the case for
$825,000 “upon resolution of an internal accounting issue with the insurance company.” North
American stated that Grace Leppin of ATIS attended the pretrial conference but was no longer
present when Heist drafted the order and Leppin did not see the order until after the July 26,
2005, hearing. On July 26, 2005, the circuit court ordered defendants to pay $825,000 to plaintiff
on or before August 9, 2005. North American asserted that following the July 26, 2005, hearing,
-4-
1-06-1813
Czerepak received a letter that Heist wrote to Leppin, with both circuit court orders attached, in
which Heist stated that he felt compelled to resign as counsel for Cohen Lambert. North
American stated that Czerepak immediately informed the Cohen Lambert firm’s new counsel that
NAS had not authorized settlement by payment of $825,000.
North American attached to its petition the affidavit of Les Czerepak, who attested that he
was a senior claims manager for NAS Insurance Group, which includes North American.
Czerepak stated that he was responsible for the oversight of the handling of the suit filed by
plaintiff. Czerepak attested that ATIS serves as a third-party administrator for NAS Insurance
Group handling certain legal malpractice claims. ATIS had limited authority to settle claims up
to an amount of $25,000, and settlement above that amount was to be approved in advance by
NAS Insurance Group. Czerepak attested that Leppin from ATIS informed him that she would
attend the July 7, 2005, pretrial hearing in this matter as the third-party administrator for NAS
with limited settlement authority. Czerepak was also aware that Heist would attend the July 7,
2005, hearing, as the attorney hired to represent defendant.
Czerepak attested that during the July 7, 2005, hearing, he received a telephone call from
Heist, who stated that he was with Leppin and defendant Ryan. Heist informed Czerepak that in
the course of the pretrial hearing, the circuit court had recommended settlement for $825,000.
Czerepak attested that he told Heist that NAS would not agree to settle for that amount because
$825,000 was significantly more than NAS was prepared to pay based on information it had
received about the case. Czerepak also informed Heist that the $825,000 amount exceeded his
personal authority to settle claims for NAS, and that Czerepak’s supervisor would have to review
-5-
1-06-1813
the claim and join him in approving a settlement of that size. Czerepak attested that he instructed
Heist to ask the circuit court for time for North American to review the claim information again,
and requested that Heist send him a report of the discussion and developments at the pretrial
hearing. Czerepak stated that during the telephone call, he expressly told Heist that North
American did not agree to the proposed settlement and did not authorize settlement for $825,000.
Czerepak also stated that he did not speak directly to Leppin and never gave her authority to
settle the claim for $825,000.
Czerepak attested that after the July 7, 2005, hearing, he continued to have discussions
and correspondence with Heist regarding the recommended settlement and discussed with Leppin
whether NAS should agree to the recommendation. Czerepak stated that he never saw a copy of
the July 7, 2005, order until after the July 26, 2005 hearing and was not aware of any verbal or
written statement that could be construed as an agreement by NAS to pay $825,000 to settle this
case. After the July 26, 2005, hearing, Czerepak received a copy of a letter that Heist wrote to
Leppin, attaching both circuit court orders and stating that Heist felt compelled to resign as
counsel for the Cohn Lambert firm. Czerepak attested that as soon as he understood that
someone might have believed that Heist had authority from NAS to settle this claim for
$825,000, he informed the new counsel for Cohn Lambert that NAS had not authorized
settlement by payment of $825,000.
North American also attached to its section 2-1401 petition the affidavit of Grace Leppin,
who attested that she was an employee of ATIS. North American retained ATIS to provide
claims handling services regarding this lawsuit. On July 7, 2005, Leppin attended a pretrial
-6-
1-06-1813
hearing on this case before Judge Elrod, during which the parties discussed the potential
settlement of the case. During the pretrial hearing, Judge Elrod asked the parties whether the
sum of $825,000 would be an agreeable amount to settle this case. Leppin attested that she
advised the judge that she did not have settlement authority in that amount and that the insurer
did not have reserves high enough to cover such an amount. Leppin stated that because she did
not have authority to settle the case for the amount suggested by the judge, Heist called a
representative from North American during the pretrial hearing. Leppin attested that at no time
has any representative of North American extended authority to her or consented to settle this
case for $825,000. At Judge Elrod’s request, Leppin agreed that after the pretrial hearing she
would recommend to the insurer that the case be settled for $825,000. Leppin attested that at no
time during or after the pretrial hearing on July 7, 2005, did she agree on behalf of North
American to settle the case for $825,000, and at no time did anyone in her presence advise Judge
Elrod or plaintiff’s counsel that North American consented to settling this suit for $825,000.
Leppin also attested that she was not present when the order of July 7, 2005, was prepared or
signed and she did not receive a copy of that order or see it until sometime after the circuit court
hearing on July 26, 2005.
On September 8, 2005, Judge Elrod granted North American leave to intervene instanter.
On November 8, 2005, plaintiff filed a motion for entry of judgment against North American and
a motion to strike North American’s petition to vacate judgment pursuant to section 2-1401 of
the Code.
-7-
1-06-1813
On December 2, 2005, Judge Elrod entered an order finding that an evidentiary hearing
would be necessary to resolve plaintiff’s motions and North American’s petition and that this
might require testimony from Judge Elrod. As a result, Judge Elrod recused himself and
transferred this case for reassignment. The order also directed that enforcement of the judgment
entered against defendants on August 12, 2005, was stayed until the pending motions were
resolved.
On December 9, 2005, this case was transferred to Judge Jennifer Duncan-Brice. On
January 13, 2006, Judge Duncan-Brice set a hearing for February 3, 2006, on plaintiff’s motion
to strike North American’s petition pursuant to section 2-1401 of the Code and on plaintiff’s
motion for entry of judgment against North American.
On February 3, 2006, Judge Duncan-Brice entered an order in which the court, inter alia,
denied plaintiff’s motion to enter judgment against North American where the order of dismissal
and settlement had previously been entered against defendants. The court also denied North
American’s petition pursuant to section 2-1401 of the Code to vacate the orders entered on July
7, 2005, July 26, 2005, and August 12, 2005. In making this determination, the court found that
North American failed to present any evidence that it had a meritorious defense to the underlying
legal malpractice claim against defendants or that the amount of the settlement was unreasonable;
North America presented no evidence regarding when it decided it was not going to settle the
case for $825,000 or when that decision was communicated to their attorney; and North
American failed to establish that it moved to vacate the dismissal order in a timely and diligent
manner. On April 26, 2006, the circuit court denied North American’s motion to reconsider the
-8-
1-06-1813
denial of its petition to vacate judgment. North American now appeals.
II. Analysis
A. Standard of Review
"Section 2-1401 of the Code (735 ILCS 5/2-1401 (West 2002)) establishes a
comprehensive procedure by which final orders and judgments may be vacated or modified more
than 30 days after their entry." Paul v. Gerald Adelman & Associates, Ltd., 223 Ill. 2d 85, 94
(2006). "Although a section 2-1401 petition is ordinarily used to bring facts to the attention of
the trial court which, if known at the time of judgment, would have precluded its entry [citation]
a section 2-1401 petition may also be used to challenge a purportedly defective judgment for
legal reasons [citation]." Paul, 223 Ill. 2d at 94.
"In order to receive relief under section 2-1401, a petition must affirmatively allege
specific facts to support each of the following elements: (1) the existence of a meritorious
defense or claim; (2) due diligence presenting this defense or claim to the circuit court in the
original action; and (3) due diligence in filing the section 2-1401 petition seeking relief." Prenam
No. 2, Inc. v. Village of Schiller Park, 367 Ill. App. 3d 62, 65 (2006); Paul, 223 Ill. 2d at 94. The
petition must also be “supported by affidavit or other appropriate showing as to matters not of
record.” 735 ILCS 5/2-1401(b) (West 2002); Prenam No. 2, Inc., 367 Ill. App. 3d at 65.
Whether a section 2-1401 petition should be granted lies within the sound discretion of
the circuit court, depending upon the facts and equities presented, and a reviewing court will only
reverse the circuit court upon abuse of that discretion. Paul, 223 Ill. 2d at 95; Prenam No. 2, Inc.,
367 Ill. App. 3d at 65. In reviewing discretionary rulings by the trial court, an appeals court
-9-
1-06-1813
“ ‘ "must look to the criteria on which the trial court should rely to determine if the trial court
abused its discretion." ’ ” Paul, 223 Ill. 2d at 99, quoting People v. Ortega, 209 Ill. 2d 354, 360
(2004), quoting Boatmen’s National Bank of Belleville v. Martin, 155 Ill. 2d 305, 314 (1993).
“‘[A] trial court abuses its discretion if it fails to apply the proper criteria when it weighs the
facts,’ and a reviewing court ‘must consider both the legal adequacy of [the] way the trial court
reached its result as well as whether the result is within the bounds of reason.’” Paul, 223 Ill. 2d
at 99, quoting Ortega, 209 Ill. 2d at 360.
B. Meritorious Defense
North American contends that the circuit court erred in denying its section 2-1401
petition where North American met the requirements of section 2-1401. North American first
argues that it set forth a meritorious defense to the entry of the circuit court’s orders on July 7
and July 26, 2005 and the entry of judgment against defendants, where defense counsel lacked
the authority to enter into a settlement agreement for $825,000. North American asserts that the
the circuit court’s finding that North American failed to set out a meritorious defense to the
underlying case was an improper interpretation of section 2-1401.
Our supreme court recently addressed the section 2-1401 requirement that a petitioner set
forth a meritorious defense or claim, in Paul v. Gerald Adelman & Associates, Ltd., 223 Ill. 2d
85 (2006). In Paul, the plaintiff, as joint trustee for a pension fund, filed petitions in the circuit
court of Cook County seeking relief from judgment pursuant to section 2-1401 of the Code. The
plaintiff sought to vacate two orders dismissing her causes of action for want of prosecution
(DWP) against several defendants who provided administrative, actuarial, insurance, and other
-10-
1-06-1813
services to the joint pension plan. The circuit court granted plaintiff’s petitions, thus reinstating
her cases. This court affirmed and our supreme court affirmed in part and vacated in part the
judgment of this court.
In Paul, our supreme court determined that plaintiff’s petitions and supporting
documents, which outlined the history of the litigation, her efforts to advance the cases, the
delays attributable to the trustee in her bankruptcy proceeding, the difficulty in obtaining her
litigation files, and related matters, adequately established her “meritorious claim” for relief from
the dismissal orders. In so finding, the court noted that issues relating to plaintiff’s ability to
establish standing to sue defendants, the existence of damages, the existence of a contract and
fiduciary duty with defendants, and an exception to federal preemption under ERISA all
concerned the merits of the underlying cases. The court held as follows:
“In ruling on plaintiff’s section 2-1401 petitions, however, it was not the trial
court’s responsibility to determine the merits of the underlying causes of action.
[Citation.] The central facts which plaintiff was required to plead and prove in
connection with her petitions are not those facts which would establish her
entitlement to damages in the underlying actions, but those facts which would
establish her entitlement to have the DWP orders vacated.” Paul, 223 Ill. 2d at
107.
Accordingly, our supreme court vacated the portion of this court’s order addressing defendant’s
arguments regarding federal preemption under ERISA and damages. The court also determined
that the plaintiff acted with due diligence in petitioning for relief from the DWP orders and in
-11-
1-06-1813
prosecuting her claims against defendants. Paul, 223 Ill. 2d at 99-106.
In this case, the circuit court found that “North American has not presented any evidence
in its attached affidavits that it has any meritorious defense to the underlying legal malpractice
claim against defendants or that the amount of the settlement was unreasonable.” Based on this
finding, the circuit court concluded that North American failed to set forth a meritorious defense
pursuant to section 2-1401. Pursuant to our supreme court’s holding in Paul, we find that these
issues were not germane to the section 2-1401 proceeding and should not have been considered
by the circuit court. Since a trial court abuses its discretion if it fails to apply the proper criteria
when it weighs the facts (Paul, 223 Ill. 2d at 99), we reverse the circuit court’s determination that
North American failed to set forth a meritorious defense pursuant to section 2-1401.
This court has previously addressed the section 2-1401 requirement that a petitioner set
forth a “meritorious defense” in the context of seeking to vacate an order of settlement. In
Blutcher v. EHS Trinity Hospital, 321 Ill. App. 3d 131 (2001), the plaintiff filed a section 2-1401
petition to vacate a settlement order that had dismissed one of the defendants in a medical
malpractice suit. The plaintiff submitted an affidavit stating that he was completely unaware of
his attorney’s negotiations to settle the medical malpractice claim against the defendant hospital
and that he was unaware of the consummated agreement. The plaintiff also submitted a
transcript of his attorney’s telephone messages to plaintiff, in which the attorney admitted that he
lacked the authority to settle the case. Under these circumstances, this court found that the
plaintiff established that his attorney lacked the express authority to settle the case and, therefore,
pursuant to section 2-1401, established a meritorious defense to the dismissal under the
-12-
1-06-1813
settlement agreement. This court explained “[s]ince plaintiff has established a meritorious
defense (by his affidavit and the transcript of the telephone messages) that his attorney did not
have authority to settle this case, that he did not consent to nor was aware of the settlement, and
that he did not sign the release, the burden of proof shifted to [the defendant hospital] to show the
validity of these documents.” Blutcher, 321 Ill. App. 3d at 140.
This court engaged in a similar analysis of the meritorious defense element for vacating a
settlement agreement and dismissal, under section 2-1401 of the Code, in Hopkins v. Holt, 194
Ill. App. 3d 788 (1990). In Hopkins, the plaintiff agreed to settle his medical malpractice claim
against the defendant doctor who had been defended by his insurance company, conditioned
upon the insurance company paying settlement funds to the plaintiff. After the plaintiff was
informed that the doctor’s insurance company was insolvent and would not pay the settlement
funds, the plaintiff filed a section 2-1401 petition to vacate the order dismissing the malpractice
action pursuant to the settlement agreement between the parties. The plaintiff alleged that he was
entitled to relief where the insurance company filed for bankruptcy and the settlement agreement
was breached. Two of the defendants argued that the plaintiff failed to allege or prove that he
had a meritorious claim against them. This court disagreed with the defendants’ argument,
noting that “[t]he facts which must be alleged in a section 2-1401 petition are not those which
form the basis for the original action but those which allegedly entitle petitioner to the relief.”
Hopkins, 194 Ill. App. 3d at 795. This court concluded that where the plaintiff alleged sufficient
facts relating to the breach of the settlement agreement that entitled him to relief from the
dismissal, the plaintiff properly set forth a meritorious claim pursuant to section 2-1401.
-13-
1-06-1813
Hopkins, 194 Ill. App. 3d at 795.
In this case, North American’s section 2-1401 petition and supporting affidavits, which
outlined the settlement negotiations before the circuit court in this case and set forth facts to
show that North American did not grant defense counsel the authority to settle the case by
payment of $825,000, also established its entitlement to relief from the dismissal and settlement
orders. In his affidavit, Czerepak stated that during the July 7, 2005, hearing, he received a
telephone call from Heist, who informed him that the circuit court had recommended settlement
for $825,000. Czerepak attested that he instructed Heist to ask the circuit court for time for
North American to review the claim information again, and requested that Heist send him a
report of the discussion and developments at the pretrial hearing. Czerepak stated that during the
telephone call, he expressly told Heist that North American did not agree to the proposed
settlement and did not authorize settlement for $825,000. Czerepak also attested that after the
July 7, 2005, hearing, he continued to have discussions and correspondence with Heist regarding
the recommended settlement and discussed with Leppin whether NAS should agree to the
recommendation. In her affidavit, Leppin stated that after the pretrial hearing she agreed to
recommend to the insurer that the case be settled for $825,000. However, Leppin attested that at
no time during or after the pretrial hearing on July 7, 2005, did she agree on behalf of North
American to settle the case for $825,000. Leppin further attested that at no time did anyone in
her presence advise Judge Elrod or plaintiff’s counsel that North American consented to settling
this suit for $825,000.
We next consider whether North American demonstrated due diligence in presenting its
-14-
1-06-1813
petition, as required by section 2-1401 of the Code.
C. Due Diligence
No bright-line rule exists for judging whether a petitioner has acted diligently. Paul, 223
Ill. 2d at 99. Rather, due diligence is judged by the reasonableness of the petitioner’s conduct
under all of the circumstances. Paul, 223 Ill. 2d at 99-100, citing Smith v. Airoom, Inc., 114 Ill.
2d 209, 222 (1986). In judging the reasonableness of a petitioner’s excuse for not acting sooner,
“ ‘all of the circumstances attendant upon entry of the judgment must be considered, including
the conduct of the litigants and their attorneys.’ ” Paul, 223 Ill. 2d at 101, quoting Airoom, 114
Ill. 2d at 222.
In Paul, our supreme court addressed the diligence requirement and determined that the
plaintiff acted with due diligence in petitioning for relief six months after learning of the
dismissals of her cases. Plaintiff’s cases had been placed on the circuit court’s bankruptcy
calendar after plaintiff filed for bankruptcy protection and plaintiff assumed no action would take
place while the cases were on that calendar. Plaintiff’s attorney also had to negotiate for release
of plaintiff’s files from the attorney’s former law firm. The court stated that it “cannot fault
plaintiff or her counsel for seeking to review the history of the litigation prior to filing her
petitions and having at their disposal all that would be necessary to support and defend the
petitions.” Paul, 223 Ill. 2d at 104.
Here, we find that North American also acted in a diligent manner where it petitioned for
relief less than two months after learning of the July 7 and July 26, 2005, orders, and within 30
days of the August 12, 2005, judgment order against defendants.
-15-
1-06-1813
North American’s section 2-1401 petition and the affidavits of Czerepak and Leppin
sufficiently established that North American moved to vacate the dismissal and judgment orders
in a diligent manner. In its petition, North American outlined the settlement proceedings before
the circuit court. At the conclusion of the July 7, 2005, pretrial conference, Heist drafted an
order that was entered by the circuit court dismissing plaintiff’s claims with prejudice and
reflecting a commitment by defendants to settle the case for $825,000 “upon resolution of an
internal accounting issue with the insurance company.” In his affidavit, Czerepak attested that he
spoke with Heist during the July 7, 2005, pretrial conference and informed Heist that North
American did not agree to the proposed settlement for $825,000. In her affidavit, Leppin attested
that she attended the pretrial conference but was no longer present when Heist drafted the order
and she did not see the order until after the July 26, 2005 hearing. On July 26, 2005, the circuit
court ordered defendants to pay $825,000 to plaintiff. Cezerepak attested that after the July 26,
2005, hearing, he received a letter that Heist wrote to Leppin, with both circuit court orders
attached, in which Heist stated that he felt compelled to resign as counsel for the Cohen Lambert
firm. Cezereak specifically stated that he “never saw a copy of the July 7, 2005 order until after
the July 26, 2005 hearing.” Cezereak further attested that as soon as he understood that anyone
might have believed that attorney Heist had authority from NAS to settle this claim for $825,000,
he informed defendant’s new counsel that NAS had not authorized settlement by payment of
$825,000.
The record shows that on August 5, 2005, defendants retained new counsel who filed a
motion to appear as additional counsel and a verified petition to vacate the orders entered on July
-16-
1-06-1813
7, 2005, and July 26, 2005. On August 12, 2005, Dominic Saviano and the law firm of Clausen
Miller, P.C., were granted leave to appear as substitute counsel retained for defendants by North
American. Jerome Crotty of the law firm Rieck and Crotty, P.C., was permitted to appear as
additional counsel, retained independently by defendants due to potential conflicts that could
arise between defendants and North American. Judge Elrod gave both counsels representing
defendants leave to file a single amended motion to reconsider vacating the previous orders.
Judge Elrod also ordered that judgment be entered in favor of plaintiff and against defendants in
the amount of $825,000. Within 30 days, on September 8, 2005, North American filed a motion
for leave to intervene and its section 2-1401 petition to vacate the orders entered on July 7, 2005,
July 26, 2005, and the judgment entered on August 12, 2005. Considering these circumstances,
we conclude that North American established that it exercised due diligence in filing its section
2-1401 petition.
III. Conclusion
For the above stated reasons, we reverse the circuit court’s judgment denying North
American’s section 2-1401 petition and remand this case for further proceedings.
Reversed and remanded.
CAMPBELL and MURPHY, JJ., concur.
-17-