Appeal from the Circuit Court of Cook County. Honorable Thomas R. Chiola, judge Presiding.
The opinion of the court was delivered by: Justice Tully delivered the opinion of the court:
Plaintiff, American Ambassador Casualty Company, as subrogee of Lillie Gray (Gray), brought this action in the circuit court of Cook County against defendant, Lonnie Jackson, for breach of a bailment contract. Defendant, a used automobile dealer, owned and operated A and Z Auto Sales (A and Z) in Chicago, Illinois. The trial court entered an ex parte default Judgement against defendant, who was acting pro se, for failing to appear in court on the final scheduled trial date. Defendant filed a petition to vacate the default Judgement pursuant to section 2- 1401 of the Code of Civil Procedure (Code) (735 ILCS 5/2-1401 (West 1994)), which the trial court struck when defendant failed to appear in court on the scheduled hearing date. Defendant refiled the section 2- 1401 petition to vacate the default judgment, which the trial court denied when defendant's wife appeared in court on the scheduled hearing date and explained that defendant was out of town. It is from this judgment that defendant now appeals to this court pursuant to Supreme Court Rule 304(b)(3) (155 Ill. 2d R. 304(b)(3)).
For the reasons which follow, we affirm.
Plaintiff insured Gray's car. On June 7, 1993, Gray brought the car to defendant at A and Z on consignment for sale at an automobile auction. Defendant planned to deliver the car to Auction Way Sales (Auction Way), an auctioneer, in Alsip, Illinois. Auction Way never received or sold the car. On June 9, 1993, the federal Drug Enforcement Agency (DEA) seized the car from defendant pursuant to a valid seizure order. Gray demanded her car from Auction Way and defendant on June 21, 1993. Because neither one had the car or the proceeds from its sale, both refused to pay the value of the car to Gray. The DEA mailed a notice of seizure letter to Gray on July 2, 1993, which was returned to the DEA unclaimed. A DEA notice of seizure letter dated July 29, 1993, and addressed to A and Z, stated that Gray's car was seized in Alsip, Illinois from Lonnie Jackson. Gray reported her car as stolen to plaintiff, who settled Gray's claim for $10,300 on August 16, 1993.
Plaintiff filed a complaint against defendant for breach of a bailment contract and served defendant with summons on July 15, 1994, with a return date of August 8, 1994. Defendant did not appear in court on August 8, 1994. The trial court then continued the matter to August 22, 1994, when the trial court entered a default Judgement against defendant and set the case for prove-up on December 12, 1994. On September 7, 1994, defendant filed his pro se appearance and his petition to vacate the default judgment, which was to be heard in courtroom 1108. The trial court granted defendant's petition, in which defendant stated that he had mistakenly believed that the return date was September 8, rather than August 8. The trial court then set a hearing date for November 16, 1994. Defendant did not appear in court on November 16, 1994, and the trial court again set the case for prove- up on December 12, 1994. The trial court vacated the default judgment on December 12, 1994, and granted defendant leave to file an answer. Defendant filed his pro se answer and counter-complaint that day. Defendant's counter-complaint claimed damages from plaintiff's allegedly frivolous complaint.
On February 21, 1995, the trial court set a final trial date for May 2, 1995. Plaintiff, on April 24, 1995, filed a motion for leave to amend the complaint and to continue the trial date, which the trial court granted. On July 19, 1995, plaintiff filed an amended complaint, which joined Auction Way as an additional defendant. Auction Way filed a motion to dismiss plaintiff's amended complaint pursuant to section 2- 619 of the Code (735 ILCS 5/2-619 (West 1994)) on April 3, 1996, alleging that it never possessed Gray's car and that the DEA's seizure was not Auction Way's fault. The trial court granted the motion to dismiss with prejudice.
The trial court later set a trial date for August 7, 1996. On that day, defendant was not present in court, and the trial court entered an ex parte Judgement against him. On September 4, 1996, plaintiff filed a citation to discover assets being held by the Community Bank of Lawndale which belonged to defendant. On September 9, 1996, defendant filed a notice of his petition for relief from ex parte judgment, to be heard in courtroom 1108. The petition asserted, as a meritorious defense, that Gray's car had been seized by the DEA. On October 1, 1996, the trial court granted defendant's petition to vacate the Judgement of August 7, 1996, and set the case for trial on January 22, 1997, in courtroom 1108.
On January 22, 1997, the trial court entered a default judgment against defendant for failing to appear in court. The trial court's order reflected that plaintiff had been "ready for trial." On February 21, 1997, pursuant to section 1301(e) of the Code (735 ILCS 5/2-1301(e) (West 1994)), defendant filed a motion to vacate the ex parte judgment, to be heard in courtroom 1108 on February 28, 1997. Defendant stated in the motion that he did not appear in courtroom 1108 on January 22, 1997, because he was present in the hallway outside the courtroom when his case was called. The trial court struck the motion on February 28, 1997, because defendant failed to appear in court. On March 6, 1997, defendant filed a petition for relief from judgment, to be heard in courtroom 1108 on March 31, 1997. In the petition, defendant stated that on February 28, 1997, he mistakenly appeared in courtroom 1110, rather than in courtroom 1108. Defendant's wife appeared in court on March 31, 1997, and explained that defendant was out of town due to a family emergency. The trial court then denied defendant's motion. On April 28, 1997, defendant, who was represented by counsel for the first time in this matter, filed a petition to vacate the trial court's March 31, 1997, order. The motion alleged that a family emergency prevented defendant from appearing in court on March 31, 1997, and that Gray's car had been seized by the DEA. The trial court denied the petition to vacate on May 6, 1997. Defendant now appeals.
ISSUES PRESENTED FOR REVIEW
On appeal, defendant argues that the trial court abused its discretion in denying his section 2-1401 petition to vacate the judgment against him because he exercised due diligence in defending the underlying Judgement and in seeking relief from the January 22, 1997, judgment. Defendant also contends that he sufficiently pleaded a meritorious defense to the underlying action against him.
When reviewing a trial court's Disposition on a petition for section 2-1401 relief, we apply an abuse of discretion standard. Klein v. LaSalle National Bank, 155 Ill. 2d 201, 613 N.E.2d 737 (1993). Final judgments, decrees and orders may be vacated 30 days after their entry under section 2-1401 of the Code. 735 ILCS 5/2-1401 (West 1994). To obtain relief under that section, the petitioner must show by a preponderance of the evidence: (1) due diligence in defending the original action in the trial court; (2) due diligence in presenting the petition; and (3) a meritorious defense in the original action. Enclosures, Inc. v. American Pay Telephone Corp., 287 Ill. App. 3d 900, 902, 679 N.E.2d 432, 433 (1997), citing Smith v. Airoom, Inc., 114 Ill. 2d 209, 499 N.E. 2d 1381 (1986). "The trend in Illinois is to relax the due diligence standard where necessary to prevent the unjust entry of default judgments and to effect substantial Justice." Enclosures, 287 Ill. App. 3d at 902, 679 N.E.2d at 433. However, extraordinary circumstances existed in such cases relaxing the due diligence standard. Enclosures, 287 Ill. App. 3d at 902, 679 N.E.2d at 433; see Kalan v. Palast, 220 Ill. App. 3d 805, 809-12, 581 N.E. 2d 175, 178-80 (1991) (standard relaxed where, because of attorney's alcoholism, he failed to comply with discovery requests and to appear at a motion to dismiss hearing).
A section 2-1401 petitioner must have a reasonable excuse for failing to exercise due diligence in acting within the appropriate time. Smith, 114 Ill. 2d at 222, 499 N.E. 2d at 1387. The petitioner must show " 'that through no fault or negligence of his own, the error of fact or the existence of a valid defense was not made to appear to the trial court.' " Smith, 114 Ill. 2d at 222, 499 N.E. 2d at 1387, quoting Brockmeyer v. Duncan, 18 Ill. 2d 502, 505, 165 N.E.2d 294, 296 (1960). It is every litigant's duty to follow the progress of his or her case. Sakun v. Taffer, 268 Ill. App. 3d 343, 643 N.E.2d 1271 (1994). The petitioner must show that the failure to defend the action resulted from an excusable mistake and that the petition acted reasonably, not negligently, under the circumstances. Smith, 114 Ill. 2d at 222, 499 N.E. 2d at 1387. In determining the reasonableness of the petitioner's excuse, we consider all of the circumstances surrounding the entry of the Judgement being reviewed, including the litigants' conduct. Smith, 114 Ill. 2d at 222, 499 N.E. 2d at 1387; see Bielecki v. Painting Plus, Inc., 264 Ill. App. 3d 344, 354, 637 N.E.2d 1054, 1060 (1994) (a party has the right to appear pro se, but must comply with the established rules of procedure).
"A bailment is the delivery of property for some purpose upon a contract, express or implied, that after the purpose has been fulfilled, the property shall be redelivered to the bailor, or otherwise dealt with according to his directions, or kept until he reclaims it." American Ambassador Casualty Co. v. the City of Chicago, 205 Ill. App. 3d 879, 881, 563 N.E.2d 882, 884 (1990). In order to recover under a bailment theory, the plaintiff must allege: (1) an express or implied agreement to create a bailment; (2) delivery of the property in good condition; (3) the bailee's acceptance of the property; and (4) the bailee's failure to ...