Illinois Official Reports 

Appellate Court

Illinois Neurospine Institute, P.C. v. Carson, 2017 IL App (1st) 163386

Appellate Court 

Caption

ILLINOIS NEUROSPINE INSTITUTE, P.C., Plaintiff-Appellant, v. 

LEON CARSON, Defendant-Appellee.

District & No. First District, Fourth Division

Docket No. 1-16-3386

Filed September 21, 2017

Decision Under 

Review

Appeal from the Circuit Court of Cook County, No. 2016-L-000391, 

the Hon. Patrick J. Sherlock, Judge, presiding.

Judgment Reversed.

Counsel on

Appeal

Bernard A. Henry, of Rieck & Crotty, P.C., of Chicago, for appellant.

Harry C. Lee, of Chicago, for appellee.

Panel JUSTICE GORDON delivered the judgment of the court, with 

opinion.

Justices McBride and Ellis concurred in the judgment and opinion.
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 OPINION 

¶ 1 The instant appeal arises from the trial court’s grant of defendant Leon Carson’s section 

2-1401 petition to vacate a default judgment (735 ILCS 5/2-1401 (West 2014)) entered against 

him in a breach of contract lawsuit filed by plaintiff Illinois Neurospine Institute, P.C. Plaintiff 

appeals, arguing that the trial court erred in granting the petition because defendant did not 

allege due diligence in his petition. For the reasons that follow, we reverse. 

¶ 2 BACKGROUND 

¶ 3 On January 13, 2016, plaintiff filed a breach of contract complaint against defendant, 

alleging that on November 28, 2011, and continuing thereafter, defendant sought medical care 

and treatment from plaintiff for injuries that defendant had suffered; the complaint did not 

detail the type of injuries defendant had suffered or the cause of those injuries. The complaint 

further alleges that on February 9, 2012, defendant entered into a written agreement with 

plaintiff whereby defendant agreed to be financially responsible to plaintiff for all professional 

medical services provided by plaintiff. The complaint alleges that plaintiff had fully performed 

its obligations under the written agreement, but that, “after applying all credits for payments 

made by or on behalf of [defendant],” there remained an outstanding balance of $98,276.78. 

Accordingly, defendant requested judgment in his favor for $98,276.78, plus interest and court 

costs. 

¶ 4 Attached to the complaint was a document entitled “Financial Responsibility Statement,” 

which provided that “For and in consideration of services rendered by [plaintiff], patient 

(responsible person) hereby agrees to and guarantees payment of all charges incurred for the 

account of the patient.” The financial responsibility statement contained defendant’s printed 

name handwritten on the bottom of the statement on the line labeled “Patient Name” and 

contained a handwritten date of February 9, 2012. There appears to be a space for an additional 

name, but that space has been whited-out, so it is not clear whose name, if any, appeared there. 

¶ 5 According to the record on appeal, defendant was personally served with a copy of the 

summons and complaint on January 27, 2016. 

¶ 6 The matter was set for a status hearing on March 10, 2016, at which “all parties must be 

represented by counsel or appear in person and must be prepared to report to the court on the 

status of the case including the status of discovery.” On that date, the trial court entered an 

order of default against defendant and set the matter for prove-up of damages on April 7, 2016. 

On April 7, 2016, the trial court continued the prove-up to April 15, 2016. On April 15, 2016, 

the trial court entered judgment in the amount of $98,276.78 plus court costs in favor of 

plaintiff and against defendant. 

¶ 7 On October 18, 2016, plaintiff filed citations to discover assets directed at both defendant 

and a law firm. 

¶ 8 On October 20, 2016, defendant, through the law firm listed in the citation to discover 

assets, filed a petition to vacate the default judgment pursuant to section 2-1401 of the Code of 

Civil Procedure (Code) (735 ILCS 5/2-1401 (West 2014)). The petition contained a “factual 

overview” section, which provided that on December 21, 2010, defendant slipped and fell 

while working at a grocery store as a merchandiser for Coca-Cola, which “caused [defendant] 

to herniate a disc between L5 and S1, requiring a discectomy and fusion.” Due to this accident, 
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on February 1, 2011, defendant “filed a complaint[1]against his employer, Coca-Cola[,] under 

the Workers’ Compensation Act [(820 ILCS 305/1 et seq. (West 2010))].” In 2012, defendant 

filed a third-party personal injury lawsuit against the grocery store and two other defendants. 

¶ 9 According to the 2-1401 petition, from August 29, 2011, until May 8, 2013, defendant was 

treated by Dr. Ronald Michael, one of plaintiff’s physicians, for his injuries and, on March 24, 

2012, underwent a lumbar fusion and discectomy performed by Dr. Michael. Defendant was 

charged a total of $124,743.71 in connection with his care and treatment by plaintiff. 

¶ 10 According to the petition, on February 27, 2014, defendant’s workers’ compensation claim 

was settled for $100,000. Plaintiff and Dr. Michael, “who liened [defendant’s] workers’ 

compensation claim,”2 were paid $27,003.59 from the settlement. On January 6, 2016, Dr. 

Michael also asserted a physician’s lien in defendant’s third-party personal injury lawsuit. 

¶ 11 According to the petition, on January 13, 2016, “Dr. Michael” filed the complaint in the 

instant case for breach of contract, alleging that defendant had breached his contract “with Dr. 

Michael.”3 On April 15, 2016, the trial court entered judgment against defendant and in favor 

of plaintiff in the amount of $98,276.78, which was “seemingly the balance of the $124,743.71 

which was offset by the payment of $27,003.59 from the workers’ compensation settlement, 

plus interest and costs of filing suit.”

¶ 12 According to the petition, on October 12, 2016, defendant settled his third-party personal 

injury lawsuit for $800,000. Defendant did not believe that plaintiff or Dr. Michael were 

entitled to further reimbursement, but “in an attempt to resolve the alleged outstanding balance 

owed to [plaintiff] and Dr. Michael, offered $15,000.00 in full and final resolution of the lien,” 

which plaintiff rejected. 

¶ 13 The petition asked the trial court to vacate the April 15, 2016, judgment, claiming “(1) the 

Illinois Workers’ Compensation Act, 820 ILCS 305 § 8.2(e) expressly prohibits balance 

billing; (2) [plaintiff’s] charges far exceed the Illinois Commission’s proscribed [sic] fee 

schedule; (3) [defendant] has a good faith belief that the contract suggesting his consent to 

 

1We presume that defendant actually filed an application for adjustment of claim with the Workers’ 

Compensation Commission, as opposed to filing a “complaint” in the circuit court, because 

proceedings before the circuit court would only occur if defendant was seeking review of the 

Commission’s decision under section 19(f) of the Workers’ Compensation Act. 820 ILCS 305/19(f) 

(West 2010). 

2

It is not clear exactly what defendant is referring to by claiming that his workers’ compensation 

settlement was “liened.” Section 21 of the Workers’ Compensation Act states that “[n]o payment, 

claim, award or decision under this Act shall be assignable or subject to any lien, attachment or 

garnishment, or be held liable in any way for any lien, debt, penalty or damages.” 820 ILCS 305/21 

(West 2010). Furthermore, under the Health Care Services Lien Act, “[e]very health care professional 

and health care provider that renders any service in the treatment, care, or maintenance of an injured 

person, except services rendered under the provisions of the Workers’ Compensation Act *** shall 

have a lien upon all claims and causes of action of the injured person for the amount of the health care 

professional’s or health care provider’s reasonable charges up to the date of payment of damages to the 

injured person.” (Emphasis added.) 770 ILCS 23/10(a) (West 2010). Thus, neither plaintiff nor Dr. 

Michael would have been able to subject defendant’s workers’ compensation award to a lien.

3We note that Dr. Michael is not a party to the complaint at issue in the instant case, which lists only 

plaintiff—the corporation—as a plaintiff. However, Dr. Michael’s affidavit, discussed further below, 

indicates that he was an officer of the corporation. 
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repay [plaintiff] and Dr. Michael for professional medical services is not authentic; and (4) 

interests of equity [and] fairness require the judgment be vacated.” The petition did not claim 

that defendant had acted with due diligence in answering the complaint or in filing the petition 

but instead claimed that “ ‘[a] petition may be granted even in absence of a showing of due 

diligence where justice or good conscience require.’ ”

4

 The petition was not verified and no 

affidavit from defendant was attached to the petition. 

¶ 14 On December 1, 2016, plaintiff filed a response to defendant’s section 2-1401 petition to 

vacate the default judgment. The response claimed that (1) the petition was not supported by 

affidavit and (2) the petition did not make a showing of due diligence in responding to the 

complaint. With respect to the due diligence argument, plaintiff argued that the equitable 

exception to the due diligence requirement has been applied only where the opposing party or 

its counsel acted improperly and defendant “does not argue any trick or contrivance to justify 

his failure to appear to assert his defenses within the time required by law.” Plaintiff noted that 

defendant admitted in his petition that he had been served with the summons and complaint 

and did not explain why he did not file an appearance or answer the complaint after receiving 

such notice. Plaintiff further argued that defendant had made no showing that his defenses to 

the complaint had only come to light since judgment had been entered. Plaintiff also argued 

that defendant had offered no explanation for his delay in filing his petition to vacate the 

default judgment. Finally, plaintiff challenged defendant’s defenses and argued that defendant 

had failed to establish that he had a meritorious defense to the complaint. 

¶ 15 Attached to the response was the affidavit of Dr. Michael, in which he averred that 

defendant executed the financial responsibility statement that was attached to the complaint, 

which had been delivered to plaintiff via fax from a fax number that defendant had provided as 

his fax number. Dr. Michael averred that he was the individual in charge of all medical billing 

and coding of charges, that the amounts charged by plaintiff were the same rates charged to all 

patients, and that defendant’s outstanding balance was $98,276.78. Dr. Michael further averred 

that he “consulted with [defendant’s] attorneys in connection with his Workers’ Compensation 

case and personal injury litigation” and had been advised that plaintiff’s bills would be paid 

through the lien on the personal injury cause of action, as opposed to the workers’ 

compensation claim. Defendant’s attorney “requested [Dr. Michael’s] cooperation and 

patience in building [defendant’s] case by, among other things, submitt[ing] [plaintiff’s] bills 

as evidence of [defendant’s] damages and providing deposition testimony regarding the 

treatment provided to [defendant].” Accordingly, Dr. Michael did not attempt any further 

collection under the Workers’ Compensation Act and “it was [his] understanding that 

[defendant] had abandoned his claim for workers’ compensation recovery as to [plaintiff’s] 

bills and that such claims would be paid pursuant to the Illinois Health Services Lien Act and 

contract rights.” Dr. Michael averred that “[u]pon information and belief, [defendant’s] 

 

4Defendant purports to be quoting the Illinois Supreme Court decision of Smith v. Airoom, Inc., 114 

Ill. 2d 209 (1986). However, while the proposition of law defendant cites is accurate, the language 

defendant “quotes” appears nowhere in the decision. Instead, the supreme court held that “[b]ecause a 

section 2-1401 petition is addressed to equitable powers, courts have not considered themselves strictly 

bound by precedent, and where justice and good conscience may require it a default judgment may be 

vacated even though the requirement of due diligence has not been satisfied.” Airoom, 114 Ill. 2d at 

225. 
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settlement approved by the Illinois Workers’ Compensation Commission made no provision 

for the payment of [plaintiff’s] bills under the Workers’ Compensation Act.”

¶ 16 On December 9, 2016, defendant filed a reply in support of his section 2-1401 petition, in 

which he claimed that his “meritorious defense and diligence in bringing this Petition to 

Vacate per Section 2-1401, along with the interests of equity, justice and fairness, require the 

default judgment be vacated to effect substantial justice.” Defendant first argued that the 

financial responsibility statement was not valid because it did not contain his signature. In 

making this argument, defendant admitted that counsel for plaintiff had informed him that a 

judgment in the amount of $98,276.78 had been entered in favor of plaintiff and against 

defendant and had sent defendant’s counsel a copy of the default judgment and complaint. In 

response to being informed of the default judgment, defendant’s counsel claimed that the 

contract did not contain defendant’s signature.

¶ 17 Defendant also addressed plaintiff’s arguments concerning due diligence, arguing that “the 

issue of diligence in defending the underlying suit is the last element considered by Illinois 

Courts of Appeal, including the Illinois Supreme Court, when determining if the petitioner’s 

motion for vacatur should be granted.” Defendant claimed that “[h]ere, principals [sic] of 

equity, justice and good conscious [sic] require the default judgment be vacated even though 

[defendant] admittedly did not take action when receiving summons and the Complaint. When 

the Complaint was filed, in January of 2016, [defendant] was consumed with his third party 

personal injury lawsuit, and believed [plaintiff’s] medical bills had been satisfied because 

[plaintiff] chose to receive immediate repayment from [defendant’s] worker’ compensation 

award two years prior.” Defendant claimed that he “fully became aware [plaintiff] was 

continuing [to] pursue satisfaction of outstanding payment” at the time of the settlement of his 

personal injury lawsuit on October 5, 2016. At that point, “[defendant] realized [plaintiff] was 

demanding repayment of nearly $100,000.00 and he reviewed the Contract at issue.” 

Defendant claimed that “[i]mmediately after appreciating the fraudulent nature of the Contract 

and [plaintiff’s] decision to ignore well-established Illinois law,” defendant filed his section 

2-1401 petition 15 days later. 

¶ 18 Finally, defendant addressed the claims made by plaintiff as to the existence of a 

meritorious defense. In addressing these claims, defendant also argued that an affidavit was not 

required, because he provided “considerable new evidence brought to light after the entry of 

the default judgment,” which included “(a) the realization that the Contract was not signed and 

that [plaintiff] cannot produce a signed version of said Contract, (b) the realization that 

[plaintiff] would be illegally balanced [sic] billing by recovering from [defendant’s] third party 

personal injury lawsuit after recovering from workers’ compensation proceeds, and (c) the 

realization [that plaintiff’s] charges are over 64% more than that proscribed [sic] by the 

Commission’s fee schedule.” Defendant also argued that Dr. Michael had made numerous 

false statements in his affidavit, including his claims that he had spoken with defendant’s 

counsel. 

¶ 19 Attached to the reply was an e-mail chain between plaintiff’s counsel and defendant’s 

counsel, which contains an e-mail dated October 5, 2016, from plaintiff’s counsel stating: 

“Here is the agreement, default order and the judgment order.” Also attached to the reply was 

defendant’s affidavit, in which defendant averred that “[p]rior to January 13, 2016, I had never 

seen the Financial Responsibility Statement, nor did I agree to its terms.” Defendant further 

averred that his handwriting did not appear on the financial responsibility statement, nor did 
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his signature, and he “never entered into any written or oral agreement with the Plaintiff to pay 

for medical services above the cost approved by worker’s compensation schedules.”

¶ 20 Finally, attached to the reply was the affidavit of defendant’s counsel, Thomas Murphy, 

who averred that he represented defendant in his third-party personal injury lawsuit. Murphy 

averred that “[p]rior to settlement of the third party personal injury lawsuit, [he] made repeated 

efforts to get in touch with [defendant’s] treater,” Dr. Michael. However, “[e]ach time [he] 

called the office, [he] was denied the ability to speak with Dr. Michael and [he] was not given 

the opportunity to leave a message, or schedule a phone conference with the doctor. Moreover, 

[he] never received a call-back from the doctor.” Murphy averred that he “was not even able to 

briefly discuss [defendant’s] medical conditions and treatment prior to Dr. Michael’s 

discovery deposition in the underlying third party personal injury case, as is common with 

plaintiff’s medical treaters prior to their discovery deposition in a personal injury case.” 

Finally, Murphy averred that “[o]n information and belief, of the $100,000.00 workers’ 

compensation settlement proceeds, [plaintiff] and Dr. Michael received $27,003.59 in 

repayment for medical services rendered to [defendant].”

¶ 21 On December 21, 2016, the trial court entered an order granting defendant’s section 2-1401 

petition to vacate the default judgment. This appeal follows. 

¶ 22 ANALYSIS 

¶ 23 On appeal, plaintiff argues that the trial court erred in granting defendant’s section 2-1401 

petition to vacate the default judgment against him because defendant’s petition was 

insufficient as a matter of law due to defendant’s failure to show due diligence and his failure 

to attach a supporting affidavit to his petition. We have jurisdiction to consider the instant 

appeal pursuant to Illinois Supreme Court Rule 304(b)(3) (eff. Feb. 26, 2010), which provides 

that “[a] judgment or order granting or denying any of the relief prayed in a petition under 

section 2-1401 of the Code of Civil Procedure” is immediately appealable. See S.C. Vaughan 

Oil Co. v. Caldwell, Troutt & Alexander, 181 Ill. 2d 489, 496-97 (1998) (“when a circuit court 

grants relief on a section 2-1401 petition, as the trial court did here, the appellate court has 

jurisdiction to review that decision under Rule 304(b)(3)”).

¶ 24 Section 2-1401 “provides a comprehensive statutory procedure by which final orders, 

judgments, and decrees may be vacated ‘after 30 days from the entry thereof.’ ” Airoom, 114 

Ill. 2d at 220 (quoting Ill. Rev. Stat. 1983, ch. 110, ¶ 2-1401(a)). “[A] section 2-1401 petition 

can present either a factual or legal challenge to a final judgment or order. *** [T]he nature of 

the challenge presented in a section 2-1401 petition is critical because it dictates the proper 

standard of review on appeal.” Warren County Soil & Water Conservation District v. Walters, 

2015 IL 117783, ¶ 31. 

¶ 25 Plaintiff suggests that, since the trial court granted the petition in the instant case on the 

pleadings alone, de novo review is appropriate. However, our supreme court has noted that the 

de novo review of a section 2-1401 petition is limited to the “specific niche” of section 2-1401 

petitions “presenting a purely legal claim challenging a final judgment or order as void.” 

Warren County, 2015 IL 117783, ¶ 49. In the case at bar, by contrast, defendant raises a factual 

challenge to the default judgment, namely, that under the factual circumstances of the case, 

plaintiff was not entitled to relief. Where the petition raises a factual challenge, “[t]o be entitled 

to relief under section 2-1401, the petitioner must affirmatively set forth specific factual 

allegations supporting each of the following elements: (1) the existence of a meritorious 
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defense or claim; (2) due diligence in presenting this defense or claim to the circuit court in the 

original action; and (3) due diligence in filing the section 2-1401 petition for relief.” Airoom, 

114 Ill. 2d at 220-21. “The quantum of proof necessary to sustain a section 2-1401 petition is a 

preponderance of the evidence.” Airoom, 114 Ill. 2d at 221. 

¶ 26 “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.” Airoom, 114 Ill. 2d at 221. 

“In reviewing discretionary rulings by the trial court, an appeals court must look to the criteria 

on which the trial court should rely to determine if the trial court abused its discretion.” 

(Internal quotation marks omitted.) Paul v. Gerald Adelman & Associates, Ltd., 223 Ill. 2d 85, 

99 (2006). “ ‘[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 People v. Ortega, 209 Ill. 2d 354, 360 (2004)). 

¶ 27 In the case at bar, the issue we must consider is whether defendant satisfied section 

2-1401’s requirement of due diligence. As noted, to prevail on a section 2-1401 petition, the 

petitioner must affirmatively set forth specific factual allegations supporting both the 

petitioner’s “due diligence in presenting [a meritorious] defense or claim to the circuit court in 

the original action; and *** due diligence in filing the section 2-1401 petition for relief.” 

Airoom, 114 Ill. 2d at 220-21. “No bright-line rule exists for judging whether a petitioner has 

acted diligently. 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. 

¶ 28 Defendant makes a brief argument concerning his diligence in presenting his defense to the 

trial court and in his filing of the section 2-1401 petition. However, the bulk of his argument, 

both on appeal and before the trial court below, focuses on his assertion that he did not need to 

establish diligence because “[a] section 2-1401 petition *** invokes the equitable powers of 

the trial court, such that the court is not strictly bound by precedent and, where justice and good 

conscience require it, a default judgment may be vacated even though the requirement of 

diligence has not been satisfied.” Defendant claims that the default judgment here should be 

vacated because it falls within this equitable exception. 

¶ 29 Our supreme court has noted that “[o]ne of the guiding principles *** in the administration 

of section 2-1401 relief is that the petition invokes the equitable powers of the circuit court, 

which should prevent enforcement of a default judgment when it would be unfair, unjust, or 

unconscionable.” Airoom, 114 Ill. 2d at 225. “Because a section 2-1401 petition is addressed to 

equitable powers, courts have not considered themselves strictly bound by precedent, and 

where justice and good conscience may require it[,] a default judgment may be vacated even 

though the requirement of due diligence has not been satisfied.” Airoom, 114 Ill. 2d at 225. 

¶ 30 “Relaxation of the due diligence requirement thereby entitling a defendant to a motion to 

vacate a judgment is justified only under extraordinary circumstances.” Ameritech Publishing 

of Illinois, Inc. v. Hadyeh, 362 Ill. App. 3d 56, 60 (2005) (citing All-Steel Employees Credit 

Union v. Singh, 345 Ill. App. 3d 1005, 1008 (2004)); Gonzalez v. Profile Sanding Equipment, 

Inc., 333 Ill. App. 3d 680, 686 (2002). “Although it is true that some decisions have relaxed or 

even excused the due diligence requirements, courts have only done so in the extraordinary 

circumstances where it is necessary to prevent an unjust entry of default judgment [citation], or 

where there is unconscionable conduct by the opposing party that would require that the due 

diligence requirement be relaxed [citation].” (Emphasis in original.) Gonzalez, 333 Ill. App. 3d 
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at 689. “[I]n each case there was evidence of fraudulent conduct by the plaintiff in procuring or 

concealing the judgment, or other unusual circumstances which made enforcement of the 

judgment unjust.” European Tanspa, Inc. v. Shrader, 242 Ill. App. 3d 103, 108 (1993). Our 

supreme court has cautioned that, “[w]hile a liberal construction must be given to the petition 

to prevent an unjust result [citation], ‘the ambit of section [2-1401] relief must not be 

overbroadened to such an extent that principles of equity and an ordered concept of justice are 

diluted’ [citation].” Airoom, 114 Ill. 2d at 227 (quoting Lammert v. Lammert Industries, Inc., 

46 Ill. App. 3d 667, 676-77 (1977)). 

¶ 31 In the case at bar, we cannot find that defendant has presented the type of extraordinary 

circumstances that warrant relaxation of the due diligence requirement. All of defendant’s 

arguments are based on his allegedly meritorious defenses raised in the petition: (1) that 

plaintiff had been paid under defendant’s workers’ compensation settlement, (2) that plaintiff 

was seeking charges in excess of those permitted under the Workers’ Compensation Act, and 

(3) that defendant contested the authenticity of the contract on which plaintiff’s breach of 

contract claim relied. In other words, defendant essentially argues that because he has raised 

meritorious defenses, “equity, justice and good conscience clearly supported vacating the 

default judgment, notwithstanding any issue concerning due diligence.” However, defendant’s 

position would strip the due diligence requirement of any meaning because a meritorious 

defense is a requirement of a section 2-1401 petition. The mere assertion of a meritorious 

defense, without more, does not warrant relaxation of the due diligence requirement. 

Acceptance of defendant’s argument would result in section 2-1401 relief being 

“ ‘overbroadened to such an extent that principles of equity and an ordered concept of justice 

are diluted’ [citation].” Airoom, 114 Ill. 2d at 227 (quoting Lammert, 46 Ill. App. 3d at 

676-77). 

¶ 32 We note that none of the cases defendant cites in support of his argument concerning 

relaxation of the due diligence requirement is analogous to the situation present in the case at 

bar because they concern conduct of the plaintiff or the plaintiff’s counsel in procuring an 

inequitable judgment. For instance, in Halle v. Robertson, 219 Ill. App. 3d 564, 570 (1991), the 

due diligence requirement was relaxed where (1) the plaintiff’s counsel failed to inform the 

trial court that there had been prior discussions with defense counsel and that defense counsel 

was in court on the date that the default was entered; (2) there were problems with the prove-up 

hearing, including the incorrect recitation of evidence and a request for damages for which the 

plaintiff had already received compensation; and (3) the plaintiff failed to follow procedural 

rules, such as properly notifying the defendant of the entry of the default judgment in a timely 

manner or placing a garnishment summons for service in a timely manner. Similarly, in 

Bonanza International, Inc. v. Mar-Fil, Inc., 128 Ill. App. 3d 714, 719-20 (1984), the appellate 

court found that equitable considerations required that the default judgment be vacated even in 

the absence of due diligence where the defendant’s defense, “[i]f *** vindicated at trial,” 

would call the conduct of the plaintiff into question because the plaintiff had presented an 

affidavit concerning the amount of damages at the prove-up hearing that would have been 

proven to be inaccurate. The Bonanza International court further found that the plaintiff’s 

delay of more than 30 days after the entry of the default judgment before commencing citation 

proceedings, “although not enough in itself to render a default judgment unfair or 

unconscionable, has been held to cast a cloud on the proceedings.” Bonanza International, 128 
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Ill. App. 3d at 720. See also Elfman v. Evanston Bus Co., 27 Ill. 2d 609, 614 (1963)5 (finding 

that “[t]he mere fact that a defendant is defaulted does not give to the plaintiff a right or claim 

to the assessment of damages unrelated to liability and, under the circumstances, here, it would 

appear that such an advantage was knowingly and intentionally taken of both defendant and 

the trial court”).

¶ 33 In the case at bar, defendant attempts to paint his situation as similar to those in the cases in 

which the due diligence requirement has been relaxed by claiming that plaintiff “failed to even 

advise the trial court of its prior receipt of payment for its treatment from [defendant’s] 

workers’ compensation settlement.” However, this is an allegation that has no basis in the 

record on appeal. Defendant is correct that plaintiff’s complaint does not specifically mention 

the $27,003.59 that he claims plaintiff received from defendant’s workers’ compensation 

settlement. It does, however, refer to “credits for payments made by or on behalf of” defendant. 

Furthermore, defendant overlooks the fact that plaintiff would have been required to prove up 

the basis for its damages at a prove-up hearing. “[A] default judgment comprises two factors: 

(1) a finding of the issues for the plaintiff; and (2) an assessment of damages.” Wilson v. 

Teloptic Cable Construction Co., 314 Ill. App. 3d 107, 112 (2000). Even where there has been 

a default order entered, the plaintiff is still required to prove up its default damages. City of 

Joliet v. Szayna, 2016 IL App (3d) 150092, ¶ 53. In the case at bar, the record indicates that 

there was a prove-up hearing set for April 7, 2016, which was continued to April 15. There is 

no report of proceedings or other record of the prove-up hearing other than the trial court’s 

entry of default judgment in the amount of $98,276.78. Thus, we have no way of knowing what 

evidence plaintiff presented as to its damages, other than our observation that plaintiff 

requested prejudgment interest in its complaint, which the trial court did not ultimately award. 

“Without an adequate record preserving the claimed error, the court of review must presume 

the circuit court’s order conforms with the law.” People v. Carter, 2015 IL 117709, ¶ 19. 

Moreover, “[t]his court presumes that a trial judge knows and follows the law unless the record 

affirmatively indicates otherwise.” In re Jonathon C.B., 2011 IL 107750, ¶ 72. In the case at 

bar, without any evidence in the record to suggest otherwise, we will not presume that plaintiff 

intentionally misled the trial court by misrepresenting any payments that it had received on 

defendant’s behalf. Accordingly, the instant situation is entirely unlike the cases defendant 

cites, in which the plaintiff had engaged in improper conduct. Consequently, we find no basis 

for relaxation of the due diligence requirement. 

¶ 34 As noted, defendant also makes a brief argument attempting to establish that he had 

exercised due diligence. However, we do not find this argument persuasive. “Due diligence 

requires the section 2-1401 petitioner to have a reasonable excuse for failing to act within the 

appropriate time.” Airoom, 114 Ill. 2d at 222. “Specifically, the petitioner must show that his 

failure to defend against the lawsuit was the result of an excusable mistake and that under the 

circumstances he acted reasonably, and not negligently, when he failed to initially resist the 

judgment.” Airoom, 114 Ill. 2d at 222. 

 

5We note that this case was criticized for its application of an abuse of discretion standard of review 

in People v. Vincent, 226 Ill. 2d 1, 15 (2007). However, in Warren County, the supreme court clarified 

that an abuse of discretion standard of review for fact-based section 2-1401 petitions remains 

appropriate. Warren County, 2015 IL 117783, ¶ 52. 
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¶ 35 The record indicates that defendant was personally served with a copy of the summons and 

complaint on January 27, 2016, 14 days after the complaint was filed. According to 

defendant’s reply in support of his section 2-1401 petition, “[defendant] admittedly did not 

take action when receiving summons and the Complaint. When the Complaint was filed, in 

January of 2016, [defendant] was consumed with his third party personal injury lawsuit, and 

believed [plaintiff’s] medical bills had been satisfied because [plaintiff] chose to receive 

immediate repayment from [defendant’s] worker’ compensation award two years prior.” On 

April 15, 2016, a default judgment was entered against defendant in the amount of $98,276.78 

plus court costs. Defendant does not claim that he was unaware of this default judgment. 

According to an e-mail attached to defendant’s reply, plaintiff’s counsel sent defendant’s 

counsel a copy of the financial responsibility statement, default order, and judgment order on 

October 5, 2016. According to defendant’s section 2-1401 petition, on October 12, 2016, 

defendant settled his third-party personal injury lawsuit. Once he did so, according to his reply, 

defendant “fully became aware [plaintiff] was continuing [to] pursue satisfaction of 

outstanding payment.” At that point, “[defendant] realized [plaintiff] was demanding 

repayment of nearly $100,000.00 and he reviewed the Contract at issue.” Defendant claimed 

that “[i]mmediately after appreciating the fraudulent nature of the Contract and [plaintiff’s] 

decision to ignore well-established Illinois law,” defendant filed his section 2-1401 petition 15 

days later. 

¶ 36 We see nothing in the record on appeal to demonstrate due diligence on defendant’s part, 

either in responding to the lawsuit initially or in filing his section 2-1401 petition. Defendant 

admittedly received the complaint and chose not to respond to it because he “was consumed 

with his third party personal injury lawsuit, and believed [plaintiff’s] medical bills had been 

satisfied.” Thus, defendant “had ample opportunity to avoid the default judgment by filing 

[his] answer or appearance” (Airoom, 114 Ill. 2d at 224), but chose not to do so. It was not until 

after defendant settled his third-party personal injury lawsuit for $800,000—which allegedly 

included the use of Dr. Michael’s testimony and plaintiff’s medical bills as evidence of 

defendant’s damages—that defendant sought to vacate the default judgment under section 

2-1401. Indeed, defendant claims that it was not until after the settlement of the third-party 

personal injury lawsuit that he even reviewed the financial responsibility statement attached to 

the complaint. “ ‘Relief under section [2-1401] is available only to those who diligently pursue 

their legal defenses and remedies in court, not to those who disregard these procedures on the 

gamble that better results can be obtained through other procedures or at a cheaper cost.’ ” 

Airoom, 114 Ill. 2d at 224 (quoting Abbell v. Munfield, 76 Ill. App. 3d 384, 388 (1979)). As our 

supreme court found in Airoom, in the case at bar, “[w]hen all of the circumstances of this case 

are viewed in their entirety, there is no doubt that [defendant’s] dilemma is the result of [his] 

own negligence and indifference to or disregard of the circuit court’s process.” Airoom, 114 Ill. 

2d at 224-25. Consequently, we must find that the trial court abused its discretion in granting 

defendant’s section 2-1401 petition. See European Tanspa, 242 Ill. App. 3d at 107 (finding 

that “the court abused its discretion because defendants completely failed to establish due 

diligence”).

¶ 37 CONCLUSION 

¶ 38 Defendant failed to show due diligence in presenting his defense to plaintiff’s lawsuit or in 

filing his section 2-1401 petition, and there are no extraordinary circumstances warranting 
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relaxation of the due diligence requirement. Accordingly, the trial court abused its discretion in 

granting the section 2-1401 petition. 

¶ 39 Reversed.