dissenting:
The Marion County circuit court has promulgated local court rules expecting attorneys to follow them but with reckless disregard to the rules’ efficacy over the circuit court. This cause would likely not be before us today but for the circuit court not following its own rule to provide the parties with notice after a sua sponte dismissal. See 4th Judicial Cir. Ct. R. 7—3 (eff. November 16, 1984).
I respectfully dissent from the majority’s analysis. To be entitled to section 2—1401 relief (735 ILCS 5/2—1401 (West 1998)), the petitioner must show, by a preponderance of the evidence, specific factual allegations supporting (1) a meritorious claim or defense, (2) due diligence in the original action, and (3) due diligence in filing the section 2—1401 petition. Smith v. Airoom, Inc., 114 Ill. 2d 209, 220-21 (1986). To avoid unfair, unjust, or unconscionable judgments, courts may relax the due diligence requirement where justice and good conscience may require it. See, e.g., Smith, 114 Ill. 2d at 225. Indeed, the current trend in Illinois is to relax due diligence standards when necessary to effect substantial justice. See Pirman v. A&M Cartage, Inc., 285 Ill. App. 3d 993, 1003 (1996).
First, for the purposes of this appeal we need not decide whether plaintiffs alleged sufficient facts to support a meritorious claim. Nevertheless, I pause to note that the mere claim of a breach of an attorney’s loyalty to his client should not be taken lightly by the judiciary.
Next, the circuit court found that plaintiffs failed to establish due diligence in presenting their claim and in filing the section 2—1401 petition. I could not disagree more. Plaintiffs and defendant conducted a four-year battle in pleading practice from the filing of the cause in 1986 through May 1990—when, after a trial date was set, the individual defendant filed for bankruptcy protection. Furthermore, in May 1990, the First District of this court handed down its decision in Collins v. Reynard, 195 Ill. App. 3d 1067 (1990), which in effect eliminated claims of negligence for legal malpractice, thereby eviscerating much of plaintiffs’ claim. Such was the law until December 1992, when our supreme court handed down its decision in Collins v. Reynard, 154 Ill. 2d 48 (1992), which reversed the appellate court’s ruling. During that interim period, on April 22, 1991, the circuit court prematurely dismissed the action without notice to the parties, in stark contravention of its own local rule. By January 1993 plaintiffs were on constructive notice that their cause of action might be saved. On March 31, 1993 (a few weeks before the individual defendant’s bankruptcy estate was dismissed), plaintiffs received information that their cause had been dismissed. Less than two weeks later and still within the section 2—1401 limitations period, they filed a motion to reinstate on April 12, 1993. Given the facts, it seems to me that plaintiffs undoubtedly exhibited a large degree of due diligence.
I take issue with the majority’s position that the due diligence requirement may not be relaxed or even excused absent unconscionable conduct by an adversary. That is not the state of the law. See, e.g., Robinson v. Commonwealth Edison Co., 238 Ill. App. 3d 436, 443-44 (1992) (suggesting that the due diligence requirement may be relaxed to achieve a just and equitable result in a particular case), citing Resto v. Walker, 66 Ill. App. 3d 733 (1978) (granting relief based on oral misrepresentations by a court clerk), and Kalan v. Palast, 220 Ill. App. 3d 805 (1991) (granting relief where attorney neglect was due to illness or disability). In this case, any lack of diligence, from the April 1991 dismissal through the April 1993 reinstatement filing and during alleged settlement negotiations, should be excused where plaintiffs could have pursued the defendant law firm as a nonbankrupt party only under contract theories of liability.
For the foregoing reasons, I believe that the circuit court abused its discretion by not providing plaintiff section 2—1401 relief. Such a conclusion satisfies the functions of equity (see Smith, 114 Ill. 2d at 221), prevents an unfair and unjust result by giving plaintiffs their day in court in this protracted cause (see Smith, 114 Ill. 2d at 225), and ultimately fulfills the purpose of section 2—1401 by reinstating a viable cause of action (Manning v. Meier, 114 Ill. App. 3d 835, 837-38 (1983)). Therefore, I would reverse the circuit court’s decision.