dissenting:
I 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 — 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 — 1401 relief. The grant of such relief is addressed to the trial court’s 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., “[t]he petition [for section 2 — 1401 relief must be supported by affidavit or other appropriate showing as to matters not of record.” (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 1401(b).) Here, defendant claims that the trial court abused its discretion in allowing plaintiff’s petition to vacate once the supporting affidavits were stricken. I agree that reinstatement of plaintiff’s claim was improper for the following reasons. Section 2 — 1401 of the Illinois Code of Civil Procedure provides for relief from judgments and “must be supported by affidavit or other appropriate showing as to matters not of record.” (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 1401(b).) My review of plaintiff’s 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’s motion for sanctions, and failure of plaintiff’s 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’s original counsel attached as exhibits to plaintiff’s petition to vacate also fail to set forth circumstances to support plaintiff’s petition sufficient to vacate the dismissal without the affidavits. I further note that plaintiff has not cross-appealed the trial court’s order striking the affidavits. Thus, I believe the only alternative is to reverse the trial court’s order granting plaintiff’s 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 — 1401 petition.
Moreover, I also note that the trial court specifically found negligence and a lack of diligence on the part of plaintiff’s original and substitute counsel in prosecuting plaintiff’s claim and such a finding warrants denial of plaintiff’s 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 — 1401 operate to relieve a litigant of the consequences of an attorney’s neglect in the matter. Kaput v. Hoey (1988), 124 Ill. 2d 370, 530 N.E.2d 230.
Accordingly, I respectfully dissent and would reverse the judgment of the circuit court.