Appeal from the Circuit Court of Lake County. No. 02-L-460. Honorable Terrence J. Brady, Judge, Presiding.
The opinion of the court was delivered by: Justice Callum
Plaintiff, Dealer Management Systems, Inc., appeals from an order of the circuit court of Lake County denying its petition under section 2--1401 of the Code of Civil Procedure (735 ILCS 5/2--1401 (West 2002)) to vacate the dismissal of its complaint against defendant, Design Automotive Group, Inc. We affirm.
Plaintiff filed a two-count complaint on June 5, 2002. Count I alleged that in 2000, defendant issued a purchase order to plaintiff for "computer programs and other services." A copy of the purchase order attached to the complaint shows that plaintiff agreed to provide defendant with an "Accounting Information Management" system consisting of various separately priced software components. The price of the individual components totaled $24,000, but plaintiff agreed to provide them as a package for $20,000 plus an additional $795 for an item identified as "RMCOBALRUNTIME SYSTEM FOR UNIX 16." The purchase order also contains the following language:
"Software changes to AIM System to provid [sic] the same or better function as compared with current system. Develop a MRP subsystem to meet manufaturing [sic] needs[.] Also includes data file conversion progr [sic] from our current system and load prgrams [sic] in the AIM system. Also includes user training and support for 1 year.
Includes source code license for internal use only and not for resale to anyone or company." Plaintiff alleged that defendant had breached the contract by failing to pay the $20,000 purchase price for the software. Count II sought recovery in quantum meruit for other computer programs that plaintiff allegedly wrote for defendant.
On July 10, 2002, defendant moved to dismiss count I pursuant to section 2--619(a)(7) of the Code of Civil Procedure (Code) (735 ILCS 5/2--619(a)(7) (West 2002)). Defendant argued that, because it had not signed the purchase order, the agreement was unenforceable under section 2--201(1) of the Uniform Commercial Code--Sales (UCC)--the statute of frauds--which provides, in pertinent part:
"[A] contract for the sale of goods for the price of $500 or more is not enforceable by way of action or defense unless there is some writing sufficient to indicate that a contract for sale has been made between the parties and signed by the party against whom enforcement is sought ***." 810 ILCS 5/2--201(1) (West 2000).
On that same date, defendant also filed a demand for a bill of particulars as to count II. Defendant subsequently moved to strike count II on the basis that plaintiff failed to file and serve a bill of particulars in response to the demand. See 735 ILCS 5/2--607(b) (West 2002). On August 27, 2002, the trial court granted the motion to strike, but gave plaintiff seven days to file a bill of particulars and seek leave to reinstate count II. The court also gave plaintiff 21 days to respond to the motion to dismiss count I and continued the case to October 8, 2002, for a hearing on the motion to dismiss. Plaintiff filed neither a bill of particulars nor a response to the motion to dismiss. On October 8, 2002, the court granted the motion to dismiss count I and dismissed the entire complaint with prejudice.
On March 15, 2004, plaintiff filed a petition to vacate the dismissal of the complaint. Plaintiff alleged that due to illness, its attorney neglected to respond to the motion to dismiss. Plaintiff further alleged that because of a recordkeeping error, its attorney did not learn of the dismissal until February 2004. Plaintiff set the petition for a hearing on April 6, 2004. Defendant neither answered the petition nor moved to strike it, but on April 6, 2004, the trial court entered an order denying the petition. This appeal followed.
To obtain relief under section 2--1401, a litigant "must affirmatively set forth specific factual allegations supporting each of the following elements: (1) the existence of a meritorious 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." Smith v. Airoom, Inc., 114 Ill. 2d 209, 220-21 (1986). Whether to award relief under section 2--1401 lies within the sound discretion of the trial court depending on the facts and equities presented, and a reviewing court will not disturb that decision unless it represents an abuse of discretion. Airoom, 114 Ill. 2d at 221.
Plaintiff frames the question on appeal as whether its petition was sufficient to establish grounds for relief under section 2--1401. Plaintiff contends that because defendant did not answer the petition or move to strike it, its allegations must be taken as true, and the only question presented is whether the petition was legally sufficient. See Windmon v. Banks, 31 Ill. App. 3d 870, 873 (1975). We disagree. Under Supreme Court Rules 104 and 105 (134 Ill. 2d Rs. 104, 105), a party is entitled to notice that it must answer or otherwise respond to a section 2--1401 petition within 30 days after service of the petition. Here, the petition was filed on March 15, 2004, along with a notice of "motion" indicating that the petition would be heard 22 days later on April 6, 2004. The record does not indicate when the petition was served; thus we cannot determine if defendant's answer was not yet due on the hearing date. Moreover, the notice of "motion" did not advise defendant that it was required to file an answer to the petition. Under these circumstances, plaintiff must be deemed to have waived the requirement that defendant answer or otherwise respond to the petition.
Plaintiff also argues that because the trial court "dismissed" the petition, the factual allegations must be taken as true. See Cartwright v. Goodyear Tire & Rubber Co., 279 Ill. App. 3d 874, 883 (1996). However, the trial court's order recites that the petition was "denied," not that it was "dismissed." Unfortunately, plaintiff has not supplied a report of proceedings of the April 6, 2004, hearing at which that order was entered, so we cannot be certain of the precise basis of the trial court's ruling. It is possible that the trial court concluded that the petition was legally insufficient, but it is also possible that the court gave plaintiff the opportunity to prove its case and found the proof wanting. It is well established that "an appellant has the burden to present a sufficiently complete record of the proceedings at trial to support a claim of error, ...