dissenting:
I respectfully dissent from the majority’s decision to affirm the trial court’s denial of an evidentiary hearing on the defendant’s section 2 — 1401 motion. (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 1401.) The majority appears to have based its opinion on the trial court’s finding of the defendant’s lack of diligence in discovering the alleged fraud before trial. Further, the majority seems uncertain as to whether “a full-blown trial-type hearing” is always required when litigants present contradictory affidavits. 250 Ill. App. 3d at 126.
I agree that in order to preserve the finality and stability of judgments, a section 2 — 1401 motion should not be used as a vehicle for relitigating factual matters which appear in the record and have been adjudicated earlier by valid means. (See Brunswick v. Mandel (1974), 59 Ill. 2d 502, 322 N.E.2d 25; Davis v. Chicago Transit Authority (1980), 82 Ill. App. 3d 987, 403 N.E.2d 615.) However, this principle does not operate to preclude petitions where the prevailing party has engaged in fraudulent conduct which resulted in newly discovered evidence bearing on an ultimate issue in the case. Lubbers v. Norfolk & Western Ry. Co. (1984), 105 Ill. 2d 201, 473 N.E.2d 955.
As the majority notes, a petitioner seeking relief from a judgment must show that the ground asserted for relief would have prevented the entry of judgment against him had it been known at trial, and that the failure to discover or present the ground for relief was not the result of the petitioner’s own lack of diligence. (Brockmeyer v. Duncan (1960), 18 Ill. 2d 502, 165 N.E.2d 294.) However, the diligence requirement of section 2 — 1401 does not force parties who are acting in good faith to assume the possibility of fraud in answers to discovery requests and to take extraordinary steps to discover it in the limited time they have before trial. (Lubbers v. Norfolk & Western Ry. Co. (1984), 105 Ill. 2d 201, 473 N.E.2d 955; Ostendorf v. International Harvester Co. (1982), 89 Ill. 2d 273, 433 N.E.2d 253.) In other words, satisfaction of the diligence requirement does not demand that the petitioner anticipate improper conduct. Goncaves v. Saab (1989), 184 Ill. App. 3d 952, 538 N.E.2d 142.
In the instant case, the measure of damages for conversion was the fair market value of the equipment at the time of conversion. In order to meet his burden of proof on damages, Ruiz presented the court with handwritten receipts, cancelled checks, and photographs of the converted equipment. His receipts and checks totalled $48,866. The court awarded him $48,866.
Included in the defendant’s section 2 — 1401 motion, alleging perjury and fraud, were affidavits and offers of proof which challenged the veracity of Ruiz’s checks and receipts. Offers of proof are an acceptable means of informing the trial court and opposing party of the nature and substance of the evidence expected to be introduced and preserving that evidence for appellate review. People v. Sanchez (1989), 131 Ill. 2d 417, 546 N.E.2d 574; State Bank v. Thill (1986), 113 Ill. 2d 294, 497 N.E.2d 1156.
The affidavits and offers of proof created a substantial question of actual fraud. Certainly, if the checks and receipts which the court relied on to award the damages were fraudulent, as a matter of law, the relief which Ruiz received was not justified and subject to reversal.
Ruiz testified at trial that he purchased equipment from Jorge D’Arquea. As evidence of the value of this converted equipment, Ruiz tendered to the court receipts totalling $16,665 and signed by D’Arquea. Among the affidavits which were submitted to the court on the section 2 — 1401 petitions were the conflicting affidavits of Jorge D’Arquea. It is clear from his affidavits that, at the very minimum, the signature represented to the court as his signature was not his signature. Further, an offer of proof stated that Aura D’Arquea, Jorge’s wife, would testify that neither she, nor her husband, received a $16,000 payment from Ruiz. She and her husband did not have sufficient cash on hand at that time to purchase restaurant equipment for $16,000. Moreover, her testimony would state that the address on the receipt was not the D’Arquea address on the date that Ruiz represented to the court that he purchased equipment from them. They did not purchase property at that address until a year after the date on the receipt.
Ruiz also proffered cancelled checks to the court with annotations on the checks of the purchases he made. One of these checks was written to Denise Torrez in the amount of $250 and had the annotation “Microwave” written on the check. Torrez’s affidavit states that she did not sell Ruiz a microwave and the annotation “Microwave” was not on the $250 check which she received from Ruiz as repayment for a loan. Additionally, an offer of proof was presented that a bank officer would testify that after having reviewed the microfiche copies of Ruiz’s checks kept by the bank, the annotations on four other checks which were presented to the court to indicate Ruiz’s purchases were not present on the checks when they were initially processed by the bank.
As stated in Klein v. La Salle National Bank (1993), 155 Ill. 2d 201, “[i]f a disputed factual issue exists material to whether relief is justified, an evidentiary hearing is required.” (155 Ill. 2d at 205.) I believe an evidentiary hearing was required in order to determine whether the damage award was predicated upon fraudulent evidence. I do not believe the defendant was required to anticipate perjurious testimony, forged signatures on receipts, and misrepresentations made on cancelled checks. The alleged fraud perpetrated on the court strikes at the very essence of the judicial process and mandates an evidentiary hearing.