2021 IL App (1st) 200797 

FIRST DISTRICT 

SIXTH DIVISION 

April 30, 2021 

No. 1-20-0797 

TERRY ZEMAN, ) Appeal from the 

) Circuit Court of 

Plaintiff-Appellant, ) Cook County. 

) 

v. ) No. 14 CH 04173 

) 

FRANCISCO ALVAREZ DIAZ and ) 

BRADDOCK INVESTMENT GROUP, INC., ) Honorable 

) Neil H. Cohen, 

Defendants-Appellees. ) Judge Presiding. 

JUSTICE HARRIS delivered the judgment of the court, with opinion. 

Presiding Justice Mikva and Justice Oden Johnson concurred with the judgment and opinion. 

OPINION 

¶ 1 Plaintiff, Terry Zeman, filed a petition pursuant to section 2-1401 of the Code of Civil 

Procedure (Code) (735 ILCS 5/2-1401 (West 2018)), seeking to vacate the dismissal of his 

complaint for specific performance of a land sales contract. The trial court denied the petition, 

finding no meritorious defense and no diligence in filing the petition. On appeal, Zeman contends 

that the court should have granted his petition where (1) his attorney had no express or apparent 

authority to sign the settlement agreement on his behalf; (2) he did not ratify his attorney’s execution 

of the settlement agreement; and (3) he was diligent in filing his petition. For the following reasons, 

we affirm. 

¶ 2 I. JURISDICTION 

¶ 3 On June 5, 2020, the trial court entered its order denying Zeman’s section 2-1401 petition. 

Zeman filed his notice of appeal on July 1, 2020. Accordingly, this court has jurisdiction pursuant 
 

 

 

 

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to Illinois Supreme Court Rule 304(b)(3) (eff. Mar. 8, 2016), governing appeals from a judgment 

granting or denying a petition for relief under section 2-1401 of the Code. 

¶ 4 II. BACKGROUND 

¶ 5 On March 11, 2014, Zeman filed a complaint for specific performance of a contract to 

purchase real property commonly known as 1810 W. Erie Street in Chicago, Illinois. Zeman was 

the buyer, having received an assignment of defendant Braddock Investment Group, Inc.’s 

(Braddock), rights under the contract, and defendant, Francisco Alvarez Diaz, was the seller. 

Braddock subsequently filed a counterclaim for breach of contract against Zeman for failing to abide 

by the terms of the assignment. Attorney Peter Faraci filed an appearance on behalf of Zeman on 

July 26, 2018. 

¶ 6 According to Zeman, the parties began negotiations for a settlement of all their claims in late 

2018. Faraci was authorized to settle for “$372,000 all in” as indicated in an e-mail dated February 

25, 2019. On March 5, 2019, Faraci sent Zeman an e-mail with the latest counteroffer from Braddock 

and Alvarez Diaz. In response, Zeman asked Faraci about his own counteroffer whereby Zeman 

would pay $372,000 to Alvarez Diaz and $15,000 to Braddock. At the final pretrial conference on 

April 15, 2019, attorneys for Braddock and Alvarez Diaz informed the court that the claims of all 

parties have been settled. The trial court entered the following order: 

“[B]oth attorneys [for Alvarez Diaz and Braddock] reporting to the court that the claims of 

all parties have been settled, plaintiff’s counsel present by conference call and confirming 

the case’s resolution and agreement for the entry of an order dismissing all claims, it is 

hereby ordered that: all claims and counterclaims are dismissed. The trial dates of April 22, 

2019 thru April 26, 2019 are hereby stricken.” 

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¶ 7 Following the dismissal, the parties communicated through e-mail to finalize the details of 

their agreement. On April 17, 2019, Faraci sent the following to Nathan Neff, Alvarez Diaz’s 

attorney: “Please review the dismissal order I had prepared and let me know if we can convert it to 

a settlement agreement ASAP. Also need the contract that was being executed today by the sellers.” 

On April 18, 2019, Faraci sent an e-mail to Zeman and to another attorney who worked with Zeman, 

Leonard Litwin, stating “Attached please find the new contract along with the Addenda that I would 

like to attach when we return. This new clean contract gives me a second means of enforcement of 

the contract as we can simply record it if their [sic] is a default, in addition to the court’s enforcement 

as well.” Faraci asked Zeman and Litwin to “[p]lease review the documents and advise.” 

¶ 8 Later that day, Neff e-mailed Faraci: “I’ve take [sic] a run at a settlement agreement. Please 

let me know what you think.” Neff also contacted attorney Mila Novak, who was conducting the 

closing of the purchase. He informed her that 

“the essential terms are $372,000—notably NOT the $372,500 that [Alvarez Diaz] had been 

insisted on in a year 2014 settlement proposal. Zeman’s payment of the $372,000 to [Alvarez 

Diaz] and the $15,000 to Braddock is to made [sic] at or before the May 17, 2019 Closing. 

Given this specific time and location—the Settlement Agreement supersedes one paragraph 

of the Rider #8 which had permitted the parties to Close on a non-descript mutually 

convenient date and time. That’s not the case here. *** I’m told that the Closing is set to 

proceed on May 17th *** however I don’t know whether you and [Faraci] have agreed on a 

specific time for that. Please keep me posted on any developments.” 

A couple of hours later, Faraci informed Novak that “I am waiting for [Zeman’s] review of the 

contract, but we can set the closing for any time 12 or after.” 

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¶ 9 Faraci and Robert Haney, attorney for Braddock, reviewed Neff’s draft of the settlement 

agreement and each made some changes. After Haney submitted his changes, Faraci e-mailed Haney 

and Neff: “Acceptable to Zeman. Let us know Nate.” On April 19, 2019, Neff told Faraci: 

“I believe that the Settlement Agreement can be executed by the parties, perhaps in short 

order. *** I think you have or are confirming that the Settlement Agreement and Mutual 

Release document that I forwarded yesterday is acceptable to Mr. Zeman. Braddock has 

confirmed it. I’ll forward to [Alvarez Diaz] for his review and signature.” 

Neff also “attached an updated version of the settlement agreement, after edits by all counsel.” 

¶ 10 On May 2, 2019, Neff e-mailed Faraci: 

“I appreciate that we’re settled. We’ve exchanged a written agreement that you and Mr. 

Haney have both confirmed as acceptable to your clients. My client has signed it and I have 

provided you with a copy of same. Another copy is attached. You’ve confirmed the case as 

settled to Judge Cohen, who then dismissed the case pursuant to same. And then Mila Novak 

and [Alvarez Diaz] have moved forward in reliance of all of it—with the preparation of a 

land sales contract—that has been signed by Mr. Zeman—and the scheduling of a Closing 

for May 17th, the date set in the written settlement agreement exchanged. For whatever 

reasons, however, I have not yet received a copy of the settlement agreement signed by Mr. 

Zeman. Your e-mail below expressed some confidence that we’d have it last week.” 

Faraci responded, “I have signed a copy as the authorized agent. It took forever to get the contract 

signed and I will get his signature, but this should suffice for now.” Haney informed Neff that he 

“spoke with Peter Faraci just now and advised him that his signature is not sufficient and that 

Braddock may have to take further action if we do not promptly receive the settlement agreement 

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executed by Zeman.” Neff, however, assured Haney that “Mr. Faraci is counsel for Mr. Zeman, and 

authorized by Mr. Zeman to act in his stead.” 

¶ 11 On May 6, 2019, Novak sent the following e-mail to Faraci: 

“Please let this email also serve as notice that the City of Chicago just posted the attached 

violation notice of lead hazards found in the property. Attached is also the revised lead 

disclosure form updated accordingly. Paragraph 22a) of the Contract shall also be deemed 

modified to reflect that the parties have received actual notice of this violation notice of lead 

hazards found in the property that has not been corrected. Since Mr. Zeman is taking this 

property in as-is condition, I presume this will not impact the scheduled closing on 5/17/19.” 

¶ 12 On May 16, 2019, one day before the scheduled closing date, Faraci e-mailed Zeman: “I’m 

hoping to get some direction from you by the end of the business day. If I do not hear from you I 

will send a letter formally requesting an extension of the due diligence and closing dates for at 

minimum one week unless I hear otherwise from you.” Zeman responded, “As you know this all 

was discovered Tuesday at the walk through.” He asked for “14-30 days” in order “to review the 

docs” and “investigate the lead remediation & lead poisoning to the little girl.” His e-mail continued: 

“Where are the docs that you referred to; 

Where is the mutual release? 

Where is the assignment of the lease and hold harmless doc? 

*** 

Furthermore, I NEVER asked/pushed to settle & not go to trial. Where did you get this 

understanding from? 

Where is the settlement agreement that you speak of? Please forward I’ve never seen a copy. 

*** 

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PLEASE send me everything you have ASAP and cc Leonard [Litwin].” 

On May 16, 2019, Faraci responded: “Here are the docs that I have in my possession.” There were 

five attachments to the e-mail, including the settlement agreement. 

¶ 13 Later that day, Faraci e-mailed Zeman and Litwin: 

“Per [Zeman’s] text now, I will request an extension of time to close for a few days. I fully 

expect their response to be the same as it was with [Litwin], which is that we are in breach 

as of 1 o’clock tomorrow for failure to show up, and they will declare the contract null and 

void. *** 

Upon their assertion, I will record the contract on Monday. At that point, I will compile a 

final bill for submission and will await your direction as to who will be moving forward to 

represent you in future litigation/negotiation.” 

The next morning, Zeman responded, “My text never said that. *** I suggest we schedule closing 

for the week of June 3. I’m unavailable next week due to being out of town for the long Memorial 

Day weekend.” In another e-mail, he wrote: “Also, where is the settlement agreement. I don’t 

believe that I’ve ever seen it. Please forward to both Leonard and I ASAP.” 

¶ 14 Later that morning, on May 17, 2019, Faraci answered, “Attached are all the documents 

requested. You and I have had several conversations regarding the settlement, the dismissal and the 

subsequent contract executed consistent with the settlement agreement.” He attached four 

documents, including the settlement agreement. About one hour later, Faraci sent another e-mail to 

Zeman and copied Litman: 

“Just sent you a text. Let me know soon if I am telling them that we are not attending [the 

closing] owing to their failure to provide reasonable accommodations for this newly 

discovered issue or not. If I do not hear from you by 11, I will do so to protect your interests. 

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Quick question, is [Litman] actually participating in this conversation as counsel as well? 

Reason I’m asking is that I have had not a single response to any of these several emails 

back and forth.” 

Litwin responded, “[Zeman] has spoken to me on numerous occasions about this issue and I have 

seen all the emails and documents. I agree with closing today as I believe [Zeman] is protected as 

the child’s lead issue predates [Zeman] purchasing the property. I have recommended he close, give 

30 day notices to the tenants effective 6-30-19 and then proceed as he sees fit to rehab the property 

and re rent it out.” 

¶ 15 Zeman did not appear for the scheduled closing on May 17, 2019. However, he continued 

efforts to purchase the property under the contract, but he and Alvarez Diaz could not agree to new 

terms. In June, Faraci informed Zeman that he would be withdrawing as counsel due to health issues. 

Defendants had also filed motions to enforce the settlement agreement, which were continued to 

July 9, 2019. In that order, the court stated that any failure to appear by Zeman or through new 

counsel “shall be considered an acquiescence to the two pending motions by defendants which are 

entered and continued to July 9, 2019.” 

¶ 16 On July 9, 2019, when neither Zeman nor new counsel made an appearance, the trial court 

entered a default judgment against Zeman and granted the motions to enforce. On July 10, 2019, 

Zeman’s new counsel filed an appearance and a motion to vacate the default judgment pursuant to 

section 2-1301 of the Code (735 ILCS 5/2-1301 (West 2018)). The court granted the motion to 

vacate on July 17, 2019. 

¶ 17 On August 1, 2019, Zeman filed his section 2-1401 petition. An amended motion seeking to 

vacate the dismissal order of April 15, 2019, vacate the settlement agreement, and reinstate the case 

was filed on August 12, 2019, with Zeman’s affidavit attached. In it, he stated that on April 12, 

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2019, he, Alvarez Diaz, and Braddock agreed to the following settlement terms: sales price of 

$372,000; additional $15,000 from Zeman to Braddock; “As is, no more inspections;” no attorney 

review; Alvarez Diaz’s wife as co-owner; updated title commitment; and “Same terms as in 

reinstatement letter of 8/9.” Zeman stated that he “did not approve of any additional settlement terms 

related to this lawsuit.” He further stated that although he signed a contract to purchase real estate, 

“Faraci did not discuss any other terms for a settlement agreement with me.” He acknowledged that 

Faraci forwarded “email correspondence dated May 16-17 that purportedly had attached a copy of 

a settlement agreement” and that he had an unsigned copy of a settlement agreement in his 

possession. However, he did not recall reviewing a settlement agreement in May 2019 and stated 

that he did not recall seeing the settlement agreement until his new counsel presented it to him in 

mid-July 2019. 

¶ 18 The trial court held an evidentiary hearing on the matter in which Zeman, Litwin, and Faraci 

testified. Faraci testified that he had discussed with Zeman in the weeks before May 2, 2019, that 

there would be a written settlement agreement. Faraci’s belief that he was authorized to negotiate a 

settlement agreement was “based upon the fact that I had been representing him in this matter. 

We’ve had several conversations regarding the sum and substance of what that settlement agreement 

would be.” He also made Zeman aware that his complaint would be dismissed and that the settlement 

agreement would contain additional terms such as releases. When asked why he thought the 

settlement agreement was in Zeman’s best interest, Faraci replied, “[b]ecause it provided us with a 

time frame for which the seller should perform. It was a contract at the original asking price, not 

taking into consideration an increase in valuation, and it provided us with a reduced assignment 

fee.” Faraci acknowledged that he did not receive express authority from Zeman to sign the 

settlement agreement, but he believed he had the authority based upon his involvement in the matter. 

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¶ 19 Zeman testified that he never gave express authority to Faraci to execute the settlement 

agreement and he would never enter an agreement with the terms set forth therein. He agreed to and 

signed only the land sales contract. He further denied that Faraci kept him apprised of the settlement 

negotiations or the discussion of its terms. He acknowledged that after becoming aware of the 

settlement agreement, he did not fire Faraci but instead directed him to record the land sales contract, 

which was done. Also, Zeman acknowledged that during this time, he took vacations to Hawaii and 

other countries before he acquired new counsel in July 2019. 

¶ 20 After oral argument, the court denied the petition. Relying on Condon & Cook, L.L.C. v. 

Mavrakis, 2016 IL App (1st) 151923, the court found that Zeman failed to present a meritorious 

defense and he lacked diligence in filing the section 2-1401 petition. The trial court explained: 

“I’m sorry to say that I find Mr. Zeman to be—to lack any credibility at all in this matter. I 

find that he plays angles. And that’s fine, as I said before, he’s entitled to. But when I have 

to determine credibility about what he knew, I take a look at what he said he knew, and what 

he—how he acted. He said a number of things in terms of what he knew, much of which is 

contradictory. And then there’s the actions that Mr. Haney referred to, and Mr. Neff, about 

if you really care, if you’re really diligent, you wouldn’t go off to Barcelona and Morocco 

and wherever he wanted to go while this was pending. You would be attending to business. 

And if you were relying upon Mr. Litwin to attend to your business, well then that’s the 

proof in the pudding. And Mr. Faraci, before he left, also proof in the pudding, which both 

of them told him to go through with it, that he was really flirting with danger. 

In a real sense, I find that Mr. Zeman was told exactly what could happen to him. He 

just didn’t do it because he’s a better negotiator than everybody else. But in this case, he had 

someone who is pulling for him and who not only had a sense of actual authority, but at least 

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apparent authority, per the Condon case. And certainly someone who was relied upon by 

Mr. Zeman and the other side as having that authority. 

No one has mentioned the fact that part of apparent authority, as mentioned by 

Justice Gordon in the Condon case, is what third parties think. *** An apparent agent is one 

who, whether authorized or not, reasonably appears to third persons to be authorized to act, 

and as a result of the acts of that person, does act. And they’re relied upon. That’s exactly 

what happened. 

Further, I find that Mr. Zeman, by his actions, ratified these apparent authority 

actions of Mr. Faraci *** [and] per the arguments of Mr. Haney with regards to the dismissal 

of the counterclaim, [received] benefits he got that he wouldn’t have gotten otherwise from 

the settlement agreement.” 

The court found Faraci credible when he testified that he thought he had express authority to execute 

the settlement agreement on behalf of Zeman, but he did not actually have it. In so testifying, Faraci 

“put himself on the line by admitting that. I give that a whole lot of credibility.” The court continued: 

“At the same time, Mr. Faraci *** told Mr. Zeman exactly about the settlement agreement 

and discussed the terms and they talked about it. We can understand why Mr. Faraci thought 

he had the authority, why he acted as if he had the authority, even if he didn’t. *** 

In other words, we can understand why everybody relied upon Mr. Zeman doing the 

right thing for the right reason. And I can understand why it wasn’t done after listening to 

Mr. Zeman.” 

¶ 21 For the reasons enunciated by the court and set forth in defendants’ briefs, the trial court 

denied Zeman’s petition. On June 5, 2020, the court entered a written order denying the petition. 

This appeal followed. 

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¶ 22 III. ANALYSIS 

¶ 23 Section 2-1401 of the Code sets forth a statutory procedure by which final judgments may 

be vacated “after 30 days from the entry thereof.” (Internal quotation marks omitted.) Smith v. 

Airoom, Inc., 114 Ill. 2d 209, 220 (1986). A petition pursuant to section 2-1401 seeks to bring before 

the trial court facts not appearing in the record that, if known to the court at the time judgment was 

entered, would have prevented that judgment. Paul v. Gerald Adelman & Associates, Ltd., 223 Ill. 

2d 85, 94 (2006). A section 2-1401 petition must set forth specific factual allegations supporting the 

following elements: (1) a meritorious defense or claim, (2) due diligence in presenting the defense 

or claim to the court, and (3) due diligence in filing the section 2-1401 petition. Id. We review the 

trial court’s determination for abuse of discretion. Smith, 114 Ill. 2d at 221. 

¶ 24 First, Zeman contends that he has a meritorious defense because Faraci had no authority to 

execute the settlement agreement on his behalf. An attorney’s authority to represent a client in 

litigation is distinct from the authority to settle a lawsuit. Brewer v. National R.R. Passenger Corp., 

165 Ill. 2d 100, 105 (1995). In order to settle a claim, “the attorney must receive the client’s express 

authorization to do so.” Id. “Where a settlement is made out of court and is not made part of the 

judgment, the client will not be bound by the agreement without proof of express authority.” 

(Internal quotation marks omitted.) Kulchawik v. Durabla Manufacturing Co., 371 Ill. App. 3d 964, 

969 (2007). 

¶ 25 Zeman contends that the settlement agreement at hand is invalid because it was not 

negotiated in court and he did not give Faraci express authority to execute it. His own testimony at 

the evidentiary hearing, however, demonstrated that he gave Faraci the authority to settle. Zeman 

acknowledged that the parties began negotiations for a settlement of all their claims in late 2018, 

and Faraci was authorized to settle for “$372,000 all in.” When presented with the latest counteroffer 

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from Braddock and Alvarez Diaz, Zeman asked Faraci about his own counteroffer whereby Zeman 

would pay $372,000 to Alvarez Diaz and $15,000 to Braddock. In fact, the terms in the settlement 

agreement and in the new land sales contract reflected exactly what Zeman counteroffered during 

the negotiations: $372,000 to Alvarez Diaz and $15,000 to Braddock. 

¶ 26 While Zeman admits that he authorized Faraci to negotiate a new sales contract, he contends 

that he did not give Faraci the authority to negotiate a settlement. Zeman, however, was able to 

pursue a new land sales contract precisely because the parties had agreed to dismiss claims stemming 

from the original contract. As Zeman’s new counsel later acknowledged, the new contract was the 

fruit of the settlement agreement. The two agreements cannot be separated when considering the 

issue of Faraci’s authority to act in this case. 

¶ 27 Zeman further argues that, even if Faraci had the general authority to negotiate on his behalf, 

he did not have the authority to sign the settlement agreement and bind Zeman to the terms contained 

therein without his express approval. Zeman asserts that he gave no such authority and was not even 

aware of the settlement agreement until May 16 or 17, 2019. We find Sakun v. Taffer, 268 Ill. App. 

3d 343 (1994), instructive. Sakun found apparent authority to act under similar circumstances. 

¶ 28 In Sakun, the plaintiffs filed an action seeking an accounting, injunction, and other relief. On 

February 21, 1992, the court entered an agreed order that reset the matter pursuant to settlement 

negotiations. Id. at 344. A number of agreed orders followed, and on January 5, 1993, an agreed 

order was entered that “ ‘[p]ursuant to the settlement agreement appended hereto, this cause is 

dismissed.’ ” Id. at 345. Attached was a document titled “ ‘Settlement Agreement’ ” signed by each 

of the plaintiffs and purportedly signed by the defendants. Id. 

¶ 29 On January 29, 1993, the plaintiffs filed an emergency motion for rule to show cause why 

the defendants should not be held in contempt for failure to comply with certain terms of the 

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settlement agreement. On February 22, 1993, the court found the defendants in contempt, and they 

were ordered to appear on April 5, 1993. Id. The court subsequently issued an order for the 

defendants’ attorney to appear. However, neither the attorney nor the defendants appeared at any 

court dates from January to May 1993. Id. at 346. On May 26, 1993, another law firm made an 

appearance on behalf of the defendants, and on June 15, 1993, they filed a section 2-1401 petition 

to vacate the January 5, 1993, judgment order and to declare the settlement agreement void. Id. 

¶ 30 In the petition, the defendants alleged that they did not authorize settlement of the matter 

and were unaware of the settlement. In their affidavits, they acknowledged that they knew their 

former attorney was engaged in settlement negotiations, but they did not authorize him to sign the 

settlement agreement on their behalf. Id. They did not see the settlement agreement until February 

1993, nor did they know that their attorney had signed the agreement until May 1993. Id. Their 

former attorney stated in his affidavit that he signed the settlement agreement on the defendants’ 

behalf “ ‘because of an erroneous belief that the form of Settlement Agreement I signed was 

acceptable to the Taffers. At the time I signed the Settlement Agreement, I did not have authority 

from the Taffers to agree to or sign that Agreement on their behalf.’ ” Id. at 347. 

¶ 31 Plaintiffs filed a response and attached correspondence between their attorneys and 

defendants’ attorney. In a November 25, 1992, fax from the defendants’ attorney, he stated: “ ‘Here 

is the Sakun-Taffer proposed settlement agreement. Please note the proposed changes on pages 4 & 

5. If this is acceptable, we have a deal.’ ” Id. at 348. Similarly, other correspondence indicated that 

the defendants were apprised of the negotiations and gave input to their attorney regarding the 

agreement’s terms. Id. 

¶ 32 The defendants filed responses asserting that they never authorized their attorney to settle 

the case on the terms in the draft attached to the November 25, 1992, fax. They denied knowledge 

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of or participation in any discussions indicated by the plaintiffs’ correspondence. Id. at 348-49. After 

a hearing, the trial court denied the defendants’ petition to vacate, finding that their attorney had 

apparent authority to sign the settlement agreement on their behalf. Id. at 349. 

¶ 33 In affirming the trial court’s determination, this court noted that “[t]he fact that authority to 

represent a client in litigation is separate and independent from the authority to settle a case does 

not preclude an attorney from possessing the authority for both.” Id. at 350. The nature and extent 

of any agency relationship “may be shown by circumstantial evidence, with reference to the situation 

of the parties, the property and the acts of the parties.” Id. at 351. In other words, courts will find 

that an attorney had the authority to act where “circumstances of the case constituted events and 

actions which would reasonably lead a person to believe” that the attorney was acting on behalf of 

his clients. Id. The trial court was in a “superior position to weigh the evidence concerning 

defendants’ claim.” Id. at 352. 

¶ 34 The court noted that the defendants acknowledged their attorney’s authority to enter 

settlement negotiations, which were ongoing for almost a year. They also admitted that they received 

communications and copies of the proposed settlement agreement. Accordingly, their attorney’s 

apparent authority to sign the settlement agreement on behalf of the defendants “was the logical 

implied extension of his express authority” under the circumstances of the case. Id. 

¶ 35 The circumstantial evidence shows that Faraci, like the attorney in Sakun, had apparent 

authority to execute a settlement on behalf of Zeman. Faraci participated in settlement negotiations 

starting in late 2018, with express authority from Zeman to do so. These discussions led to the April 

15, 2019, dismissal order which, according to e-mails, Faraci drafted. Zeman continued to allow 

Faraci to act on his behalf, and Faraci indicated that he kept Zeman apprised of ongoing negotiations. 

“Where a party stands by silently and lets his attorney act in his behalf in dealing with another in a 

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situation where the attorney may be presumed to have authority, the party is estopped from denying 

the agent’s apparent authority to a third person.” Kulchawik, 371 Ill. App. 3d at 971. 

¶ 36 The record also shows that defendants relied on Faraci’s apparent authority to act on behalf 

of Zeman. After the April 15, 2019, dismissal order, Faraci immediately requested the drafting of a 

settlement agreement and began negotiations on a new land sales contract. Due to the parties’ 

agreement to settle, Braddock dismissed its counterclaim, and Alvarez Diaz began negotiations on 

a new land sales contract with Zeman. Zeman and Alvarez Diaz subsequently executed a new 

contract that contained terms Zeman found favorable. Notably, Neff expressed his belief that Faraci 

had the authority to act on behalf of Zeman, and even Faraci himself believed he had the authority 

to execute the settlement agreement. After placing Faraci in a situation where he may be presumed 

to have authority to act, Zeman cannot now deny Faraci’s apparent authority as to defendants. See 

id. 

¶ 37 Brewer and Blutcher v. EHS Trinity Hospital, 321 Ill. App. 3d 131 (2001), cases cited by 

Zeman, have no application here because they are not apparent authority cases. In Brewer, one of 

the terms of the settlement agreement was that the plaintiff would quit his job with the defendant. 

Brewer, 165 Ill. 2d at 103. The plaintiff’s attorney, however, stated that the issue was never 

discussed during the settlement conference and, in any case, he was not authorized to compromise 

the plaintiff’s job. Id. As a result, there could be no presumption “that plaintiff’s attorney spoke for 

plaintiff on this point.” Id. at 106. 

¶ 38 In Blutcher, the plaintiff’s attorney confessed that he had settled the case without the 

plaintiff’s authorization and kept the money. Blutcher, 321 Ill. App. 3d at 134. Not only did the 

plaintiff not sign the agreement, “he was completely unaware of ongoing settlement negotiations” 

and the executed agreement. Id. at 139. Although the defendant tried to argue apparent authority in 

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the case, the court found that the theory did not apply where “the principal’s consent to or knowing 

acquiescence in the agent’s exercise of authority [was] lacking.” Id. at 141. 

¶ 39 Unlike the plaintiffs in Brewer and Blutcher, Zeman had knowledge of and participated in 

ongoing negotiations between the parties. This is confirmed by an e-mail in which Faraci told Zeman 

that “[y]ou and I have had several conversations regarding the settlement, the dismissal and the 

subsequent contract executed consistent with the settlement agreement.” He made Zeman aware that 

the settlement agreement would contain additional terms such as releases. Faraci also thought the 

settlement agreement was in Zeman’s best interest “[b]ecause it provided us with a time frame for 

which the seller should perform. It was a contract at the original asking price, not taking into 

consideration an increase in valuation, and it provided us with a reduced assignment fee.” The 

evidence supporting Faraci’s apparent authority to act is in stark contrast to the lack of such evidence 

in Brewer and Blutcher. 

¶ 40 Furthermore, Zeman ratified Faraci’s act by not repudiating the agreement once he had 

knowledge of it and accepting the benefits that flowed therefrom. Condon, 2016 IL App (1st) 

151923, ¶ 65. “ ‘[R]atification of an unauthorized act is tantamount to an original authorization and 

confirms what was originally unauthorized.’ ” Kulchawik, 371 Ill. App. 3d at 970 (quoting Horwitz 

v. Holabird & Root, 212 Ill. 2d 1, 14 (2004)). Ratification may be inferred from the surrounding 

circumstances. Id. 

¶ 41 The trial court entered the dismissal order on April 15, 2019, and almost immediately 

thereafter Faraci began negotiations on a new land sales contract. The new contract contained 

material terms that Zeman wanted including $372,000 to Alvarez Diaz and $15,000 to Braddock. 

Furthermore, as Faraci stated in an e-mail to Zeman, “[t]his new clean contract gives me a second 

means of enforcement of the contract as we can simply record it if their [sic] is a default, in addition 

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to the court’s enforcement as well.” Faraci did in fact record the contract despite Zeman’s failure to 

close on the scheduled date. Faraci believed the new contract was beneficial to Zeman and Zeman’s 

other attorney, Litwin, agreed with Faraci after viewing “all the emails and documents.” Litwin 

recommended to Zeman that he close on the property. 

¶ 42 Zeman’s actions show that he also believed the new land sales contract was beneficial to 

him. He discovered the settlement agreement on May 16 or 17, 2019, but did not seek to void the 

agreement or vacate the April 15, 2019, dismissal order. Instead, he continued to pursue purchase 

of the property from Alvarez Diaz by negotiating new terms. Zeman accepted the benefit that the 

settlement agreement gave him, namely the ability to execute a new land sales contract, even though 

he had not signed the document. As such, Zeman ratified the settlement agreement. 

¶ 43 For these reasons, we affirm the trial court’s determination that Zeman has not shown a 

meritorious defense or claim to support his section 2-1401 petition. 

¶ 44 Zeman also has not shown due diligence in filing his section 2-1401 petition. We recognize 

that “[n]o 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. However, there are two principles we may follow: “first, that a petitioner 

seeking relief from judgment must do so expeditiously; and second, that the due-diligence inquiry 

is, in the end, case specific.” Id. at 101. 

¶ 45 Here, Zeman did not seek relief expeditiously. He does not dispute that he learned of the 

settlement agreement on May 17, 2019, at the latest. Faraci also stated that he sent Zeman a copy of 

the agreement several times by that date, although Zeman asserts that he did not see a copy until 

July 2019. We note, however, that the trial court did not find Zeman to be credible. As the factfinder, 

the trial court is in the best position to determine the credibility of witnesses and the weight of their 

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No. 1-20-0797 

testimony. In re Marriage of Benjamin, 2017 IL App (1st) 161862, ¶ 26. This court will not 

substitute its judgment for that of the factfinder by reweighing the credibility of witnesses. LaSalle 

Bank, N.A. v. C/HCA Development Corp., 384 Ill. App. 3d 806, 829 (2008). 

¶ 46 Although Zeman had knowledge of the settlement agreement on May 17, 2019, he waited 

almost three months until August 1, 2019, to file his section 2-1401 petition. At no time during the 

court proceedings that took place between May 17 to August 1, 2019, did Zeman or his counsel seek 

to challenge that agreement or vacate the new land sales contract. Instead, Zeman continued to 

pursue purchase of the property from Alvarez Diaz with a new closing date. He also admittedly took 

a number of vacations out of the country during that period. 

¶ 47 Zeman argues that he was diligent given his reliance on Faraci as his attorney and the fact 

that Faraci did not advise him of his right to challenge the settlement agreement. He asks this court 

to follow Pirman v. A&M Cartage, Inc., 285 Ill. App. 3d 993 (1996), and take account of Faraci’s 

inaction when considering whether Zeman was diligent in filing his petition. Pirman, however, 

involved a suspect default judgment. The court in Pirman noted that the current trend has “been to 

relax the due diligence standard where necessary to prevent the unjust entry of default judgments 

and to effect substantial justice.” Id. at 1003. Zeman is not seeking to vacate a default judgment. 

¶ 48 Furthermore, it is apparent from the record that Zeman is someone familiar with how 

contracts work. He is an astute businessman who would not wait almost three months for his attorney 

to act if he believed his interests had been compromised. In any event, Zeman’s mere reliance on 

his attorney does not in itself affect the due diligence inquiry. Every litigant has a duty to follow the 

progress of his case and not “assume that his counsel is doing everything which is necessary and 

proper in the conduct thereof.” Sakun, 268 Ill. App. 3d at 353. Under these circumstances, we find 

that Zeman has not shown diligence in filing his section 2-1401 petition. 

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No. 1-20-0797 

¶ 49 IV. CONCLUSION 

¶ 50 For the foregoing reasons, we find that Zeman has not presented a meritorious defense to the 

dismissal, nor has he shown due diligence in filing his section 2-1401 petition. Therefore, we affirm 

the judgment of the circuit court denying the petition.1 

¶ 51 Affirmed. 

1

In his brief, Alvarez Diaz requests that this court remand the matter for determination of attorney 

fees pursuant to the settlement agreement. We decline the request as the only issue before us in this appeal 

is the trial court’s denial of Zeman’s section 2-1401 petition. 

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No. 1-20-0797 

No. 1-20-0797 

Cite as: Zeman v. Alvarez Diaz, 2021 IL App (1st) 200797 

Decision Under Review: Appeal from the Circuit Court of Cook County, No. 14-CH-04173; 

the Hon. Neil H. Cohen, Judge, presiding. 

Attorneys Julianne M. Dailey, of Horwood Marcus & Berk Chtrd., of 

for Chicago, for appellant. 

Appellant: 

Attorneys Nathan I. Neff, of Neff Law Group PC, of Chicago, for appellee 

for Francisco Alvarez Diaz. 

Appellee: 

Robert E. Haney, of Noonan & Lieberman, Ltd., of Chicago, for 

other appellee. 

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