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                                                                                                            FOURTH DIVISION

                                                                                                            November 17, 2005

No. 1-05-0676

AMERITECH PUBLISHING OF ILLINOIS, INC.,               ) Appeal from the

                                                                                                ) Circuit Court of

                        Plaintiff-Appellant,                                            ) Cook County

                                                                                                )

                        v.                                                                     ) No. 03 M1-172529

                                                                                                )

KHADER HADYEH, d/b/a Motor City Auto Repair,               ) Honorable

) Clare E. McWilliams,

                        Defendant-Appellee.                                        ) Judge Presiding.

            JUSTICE GREIMAN delivered the opinion of the court:

            Ameritech Publishing Company of Illinois, Inc.(Ameritech), brought a breach of contractaction to recover money owed for advertising placed in certain Yellow Page directories forKhader Hadyeh, d/b/a Motor City Auto Repair (Hadyeh). Judgment was entered against Hadyehin the amount of $20,586.85. Thereafter, Hadyeh moved to vacate the judgment pursuant tosection 2-1401 of the Code of Civil Procedure. 735 ILCS 5/2-1401 (West 2004). The trial courtgranted the motion to vacate, and this appeal followed. We reverse.

            On November 8, 2000, Hadyeh entered into a one-year written contract with Ameritechagreeing to pay the sum of $644 per month to advertise his business, Motor City Auto Repair, inAmeritech's Chicago Consumer Yellow Page telephone directory. The contract indicated it wasfor "Motor City" and that the customer's name and title was "Khader Hadyeh."

            Thereafter, a new one-year contract was executed extending the Yellow Page advertisingto include various community directories for a monthly payment of $1,788. There, "Motor City"was designated as the advertiser and the customer's name and title were indicated as "KhaderHadyeh-Owner."

            After making some payments, Hadyeh defaulted in the payment of the sums specified inthe contract and on November 6, 2003, Ameritech filed a lawsuit to recover the sum of$20,936.85. The defendant designated in the lawsuit was Khader Hadyeh, d/b/a Motor City AutoRepair.

            No answer was ever filed by Hadyeh or Motor City Auto Repair in this matter although anappearance was filed on behalf of "Motor City Auto Repair."

            On February 11, 2004, the parties appeared at a status call and defense counsel, althoughno answer had been filed, advised plaintiff's counsel that their defense would be based on the factthat Hadyeh had sent written notice of cancellation thereby nullifying the contract of September13, 2001. The record indicates that plaintiff's counsel wrote a letter to defendant's counseladvising him that defendant sent the notice of cancellation 15 days after the close date for thedirectories that were to be published, and accordingly such cancellation was ineffective.

            At the February 11, 2004, status call, Hadyeh was given 14 days to answer or otherwiseplead. However, no pleading or answer was forthcoming. On April 2, 2004, plaintiff filed apetition seeking the entry of a default judgment setting the motion down for April 13, 2004.

At the hearing, defense counsel requested additional time and an agreed order was enteredallowing an additional 14 days for the filing of an answer. The matter was set for status on June15, 2004.

            On June 15, 2004, the answer was still not forthcoming and the case was again continuedfor status until August 24, 2004.

            On July 2, 2004, Ameritech filed its second motion for the entry of judgment by defaultsetting a hearing for July 13, 2004. Due notice having been given to counsel for Hadyeh, on July13, 2004, the trial court entered a default judgment on plaintiff's motion. Thereafter, Ameritechfiled a citation to discover assets serving Hadyeh's spouse on September 14, 2004, returnablebefore the court on September 23, 2004. It should be noted that the second paragraph of thecitation to discover assets which was served upon Hadyeh provides, "A judgment against KhaderHadyeh, d/b/a Motor City, was entered on 07/13/2004 and $21,443.75 remains unsatisfied."

            At the September 23, 2004, return date, Hadyeh appeared in court with counsel whoadvised Ameritech's attorney that he intended to file a motion to vacate the judgment, butsubmitted Hadyeh to a citation examination. In testifying as to his assets, Hadyeh disclosed thathe maintained a bank account at Bank One.

            No motion to vacate being filed, Ameritech served Bank One with a citation on January 5,2005, and an answer was filed indicating that it was holding the sum of $10,974.34.

            Thereafter on February 2, 2005, more than six months after the entry of the defaultjudgment, and more than four months after the citation proceedings, Hadyeh filed his motionpursuant to the provisions of section 2-1401 of the Code of Civil Procedure to vacate thejudgment of July 13, 2004.

            In the petition to vacate the judgment pursuant to section 2-1401, Hadyeh acknowledgedthat he had been served with summons and complaint in the matter, an appearance had been filed,but no answer had ever been filed. He further stated that he did not "personally know that ajudgment was entered against him *** (his counsel did not inform him of this fact)". He alsoacknowledged that he was served with a citation to discover assets, but that he was "unaware ofthe significance of this document." Hadyeh then stated that at the time of the citation hearing, hiscounsel showed Ameritech's counsel documents indicating that Motor City Auto Repair was anIllinois corporation and not a sole proprietorship and that Ameritech's counsel said he would notproceed with the matter if a motion to vacate was filed and "would not object to judgment beingvacated." Hadyeh then further acknowledged that no motion to vacate was ever filed.

            He concluded that he had relied on his counsel to "competently and diligently representhim in court, but in fact he has not done so, requiring Mr. Hadyeh to retain other counsel." Counsel on appeal was not his initial counsel in the trial court.

            After receivingAmeritech's response, the trial court granted Hadyeh's motion to vacate thejudgment of July 13, 2005.

            Section 2-1401 of the Code of Civil Procedure provides a comprehensive statutoryprocedure by which final judgments may be vacated, even after 30 days from the entry thereof. However, to be entitled to such relief, the petitioner must affirmatively set forth specific factualallegations supporting each of the following elements: (1) the existence of meritorious defense orclaim; (2) due diligence presenting this defense or claim to the circuit court in the original action;and (3) due diligence in filing the section 2-1401 petition seeking relief. Smith v. Airoom, Inc.,114 Ill. 2d 209, 220-21 (1986); Beauchamp v. Zimmerman, 359 Ill. App. 3d 143, 147-48 (2005); Elder v. Bryant, 324 Ill. App. 3d 526, 529 (2001). A party petitioning the court to vacate adefault judgment must show that, through no fault or negligence of his own, error of fact orexistence of a valid defense was not made to appear to the trial court in the initial proceedings. European Tanspa, Inc. v. Shrader, 242 Ill. App. 3d 103, 107 (1993); Frandsen v. Anderson, 108Ill. App. 2d 194, 202 (1969).

            In the case at bar, at no time did Hadyeh file an answer. The requirement that a petition tovacate allege a meritorious defense is designed to insure the defendant, having had one chance incourt which he disdained, does not have a second chance without some support for his position. City of Milford v. Illinois Commerce Comm’n, 34 Ill. App. 3d 293, 297 (1975). Ordinarily, aparty seeking relief from a judgment must have acted with diligence in the original proceedingsand relief is usually unavailable where such party negligently failed to assert a defense or makefacts known to the court prior to the entry of judgment. In re Marriage of Johnson, 339 Ill. App.3d 237, 241 (2003).

            Such a petition seeking relief from judgment must have a reasonable excuse for failing toexercise due diligence and to act within an appropriate time, and must show that through no faultor negligence on the part of the petitioner, the existence of a valid defense was not made known to the trial court and that the petitioner had a reasonable excuse for failing to take such actionwithin the applicable time limits. American Ambassador Casualty Co. v. Jackson, 295 Ill. App. 3d485, 489-90 (1998); Bank of Ravenswood v. Domino's Pizza, Inc., 269 Ill. App. 3d 714, 726(1995).

            Generally, relief is unavailable where a party negligently failed to assert a defense prior tothe entry of judgment. In re Marriage of Johnson, 339 Ill. App. 3d 237 at 241.

            Hadyeh has suggested in his petition that his counsel did not file an answer and that hiscounsel did not inform him as to the entry of a judgment. A litigant, however, cannot generallyobtain relief in regards to the rights of an opponent because of the failure of his counsel to keephim abreast of matters or to advise him appropriately. Mt. Zion State Bank & Trust v. Weaver,226 Ill. App. 3d 783, 788 (1992).

            Nor is a litigant relieved of the consequences of his own mistakes or the mistakes ornegligence of his trial counsel, and he is generally bound by the negligence of his legal counselwhich resulted in the entry of a default judgment. American Reserve Corp. v. Holland, 80 Ill.App. 3d 638, 643-44 (1980). Although a party is generally bound by the negligence of his legalcounsel, a court may refuse to impute such negligence to the client who seeks to vacate a defaultjudgment when mitigating circumstances are present. Eastman Kodak Co. v. Guasti, 68 Ill. App.3d 484, 487-88 (1979); Department of Public Works & Buildings v. O'Hare International Bank,44 Ill. App. 3d 934, 938 (1976).

            However, Hadyeh's section 2-1401 petition does not set forth any "mitigatingcircumstances" that would allow a court to refuse to impute the negligence of counsel to Hadyeh.

            Relaxation of the due diligence requirement thereby entitling a defendant to a motion tovacate a judgment is justified only under extraordinary circumstances. All-Steel Employees CreditUnion v. Singh, 345 Ill. App. 3d 1005, 1008 (2004).

            Standards applicable to claims of ineffective assistance of counsel do not apply to apetitioner's claims of ineffective assistance of counsel in connection with a judgment under theCode of Civil Procedure, as they might in criminal proceedings. People v. Pinkonsly, 207 Ill. 2d555, 567-68 (2003).

            In determining whether the petitioner's lack of diligence will result of an excusablemistake, for the purpose of a motion to vacate under section 2-1401 motion, the court is toconsider all the circumstances surrounding the entry of the judgment including the litigant'sconduct. Community 1st Credit Union v. Boswell, 302 Ill. App. 3d 739, 744 (1999).

            Hadyeh is correct in the observation that Illinois courts, in examining the totality of thecircumstances, have inquired as to the justice and fairness of the vacation of the judgment eventhough the due diligence standard has not been met. This is particularly the case when thepetition to vacate is based upon circumstances that occurred outside the record.

            Hadyeh cites three cases where judgment was vacated notwithstanding lack of due

diligence on the part of the moving party. In Yates v. Barnaby's of Northbrook, 218 Ill. App. 3d128 (1991), plaintiff failed to respond to various discovery requests, and, upon hearingdefendant's motion for sanctions ex parte, the trial court dismissed plaintiff's complaint withprejudice. However, the section 2-1401 petition, filed with supporting affidavits, indicated thatthere was a lack of cooperation between Yates' first and second attorneys, the new attorneyreceiving no cooperation from original counsel. Additionally, there appeared to be confusionregarding the time of hearing on defendant's motion for sanctions and the inability of the newcounsel to locate and review court files relating to the dismissal. Yates, 218 Ill. App. 3d at 129-30.

            Hadyeh also cites Zee Jay, Inc. v. Illinois Insurance Guaranty Fund, 194 Ill. App. 3d 1098(1990), where plaintiff's complaint was dismissed with prejudice for failure to comply withdiscovery requests. However, it appeared that such failure was due in part to the fact thatplaintiff's principal operating officer had died prior to the time for response to discovery and thatplaintiff's counsel had failed to advise the court of such passing. Zee Jay, Inc., 194 Ill. App. 3d at1104.

            Again, in Pirman v. A&M Cartage, Inc., 285 Ill. App. 3d 993 (1996), defendant's section2-1401 petition was granted. In Pirman, defendant's petition was supported by affidavits thatclearly indicated the existence of a meritorious defense and further showed that defendant hadforwarded various summons and complaints to his insurance agent and that the agent hadforwarded the papers to the incorrect insurance company office. Further affidavits indicated thatplaintiff's attorney’s secretary had forwarded letters to defendant using an incorrect address. Pirman, 285 Ill. App. 3d at 997-99. The Pirman court observed that Illinois recognizes aninsured's good faith reliance on his insurer to satisfy the requirement of due diligence in theinterest of justice. Pirman, 285 Ill. App. 3d at 1004.

            In examining the totality of circumstances in the case at bar, we do not find a lack ofcooperation between several attorneys representing a petitioner as in Yates or the interveningdeath of a person required to respond to interrogatories as in Zee Jay or reliance on a petitioner'sinsurance company as in Pirman. Moreover, in examining Hadyeh's section 2-1401 petition, wefind that there is no statement or reason setting forth why he failed to follow the progress of hisown case before judgment was entered or why he waited from September 14, 2004, the time hewas served with citation, to February 2, 2005, the date he filed his section 2-1401 petition. Merefailure of counsel is not sufficient reason for vacation of a judgment. Sakun v. Taffer, 268 Ill.App. 3d 343, 353 (1994).

            The facts of this case indicate that Hadyeh failed to exercise the requisite due diligence inpresenting an answer or defense. Nor has he demonstrated that a manifest injustice would resultunless his burden of showing due diligence was relaxed. Hadyeh's petition does not set forth theextraordinary circumstances anticipated by Illinois cases. Gonzalez v. Profile Sanding Equipment,Inc., 333 Ill. App. 3d 680, 686 (2002).

            It should be noted that even if Hadyeh had set forth extraordinary circumstances whichwould excuse lack of due diligence, his section 2-1401 petition would still fail because of hisfailure to meet the second prong of Airoom, i.e., that there be a meritorious defense set forth inthe petition. Hadyeh's section 2-1401 petition sets forth a single paragraph relating to his allegedmeritorious defense which is as follows:

                        "9.       The Defendant Khader Hadyeh has a defense to this case in

            that he was not d/b/a Motor City Auto Repair, which is an Illinois Corporation,

            and that he did not sign any documents in an individual capacity, and

            in fact one of the documents purportedly signed by him, the 'Customer

            Receipt’ does not contain his signature, but in fact contains the signature

            of the owner of the corporation, Samir Fakhoury, who signed his signature

            over the name Khader Hadyeh-Owner".

            He does not include in his petition any attachments or affidavits that would indicate thatthe corporation was in fact in good standing in Illinois at the time of the execution of theagreement. Nor does he state the actual name of the alleged corporation in his petition. He doesnot suggest that Ameritech was aware that it was dealing with a corporate entity. As we havepreviously noted, the contract documents which were attached to plaintiff's complaint and are partof the record, indicated that "Motor City" was the name to be advertised in the directory and thatthe customer's name and title was "Khader Hadyeh" in one document and "Khader Hadyeh-owner" in the later contract.

            Nothing in either contract or, for that matter, Hadyeh's section 2-1401 petition disclosesthe actual corporate name which is alleged. Obviously, a contracting party should be able todetermine whether it is dealing with an individual owner or with a corporate entity. The existenceof a corporate entity may clearly provide an umbrella against liability for the individual who isactually the party in interest.

            When an agent of a disclosed principal executed a document and indicated next to hissignature his corporate affiliation, then, absent evidence of a contrary intent in the document, theagent would not be personally bound. Knightsbridge Realty Partners, Ltd-75 v. Pace, 101 Ill.App. 3d 49, 53 (1981). On the other hand, where a defendant individually executed a contract toprovide services for a nursing home, although he was an officer and sole shareholder of thenursing home corporation, he remained personally liable on the contract. There was no mentionin the contract of the corporate identity of the nursing home. Accordingly, the individualdefendant, where there was no reference to a corporate name, was held liable. Zella Wahnon &Associates v. Bassman, 79 Ill. App. 3d 719, 724 (1979).

            Moreover, where an individual defendant claimed that he operated his business aspresident of a corporation and that the obligations sought to be enforced were not those of theindividual defendant but, rather, those of an employment agency, and where there was noevidence that the employment agency was a corporation or that a corporation even existed, orthat defendant had held himself out as the head of a corporation, there was no evidence to supportthe individual defendant's claim that he acted only in his capacity as a corporate official and hewas held liable. Jordan/Tamraz/Caruso/Advertising, Inc. v. Parker Career Center, 10 Ill. App. 3d247, 248 (1973).

            As we have previously indicated, the contract documents attached to Ameritech'scomplaint at no place indicated that Ameritech was dealing with a corporate entity. To thecontrary, Hadyeh was indicated as "owner" in the latter contract.

            Our legislature has provided in section 4.05 of the Business Corporation Act of 1983 that"(a) [th]e corporate name of a domestic corporation or of a foreign corporation organized,existing or subject to the provisions of this [a]ct: (1) [s]hall contain, separate and apart from anyother word or abbreviation in such name the word 'corporation’, 'company’, 'incorporated’, or'limited’, or an abbreviation of one of such words." 805 ILCS 5/4.05 (West 2004).

            In Anzalone v. Durchslag, 1 Ill. App. 3d 125 (1971), several individuals advised theplaintiff that they had recently formed a new company by the name of "General PaintingContractors Co." and that it was a division of a corporation known as "Chicago Camp Corp., Inc.(CCI)" with which plaintiff had previously done business. Billings were made to General PaintingCCI and payments made by checks bearing the name CCI. During the trial, there was evidencethat General Painting was not a corporation and was not a division of CCI. Accordingly, theindividual parties were held liable. Durchslag, concluded that "[i]n Illinois a corporation has nolegal right to use any name other than that under which it was organized, and use by a corporationof a name different from its legal corporate name is against the public policy of the state." Durschslag, 1 Ill. App. 3d at 128.

            The liability of Hadyeh is even more compelling than the liability of the individualdefendants in Durschslag. The plaintiff in Durschslag was led to believe that he was, in fact,dealing with a corporation, while Ameritech was given no such information and had no reason tobelieve that it was dealing with a corporate entity.

            Accordingly, we find that no meritorious defense has been alleged in Hadyeh's section 2-1401 petition.

            More problematic is the standard of review to be accorded the trial court's determinationin ruling upon section 2-1401 petitions. One must acknowledge that the question of whetherpetitions for relief from judgment should be granted lies within the trial court's sound discretion,depending on the facts and equities presented. The appellate court is justified in disturbing thejudgment of the trial court only where it finds that the trial court abused its discretion. Beauchamp, 359 Ill. App. 3d at 148; Gonzalez, 333 Ill. App. 3d at 686. Cf. LaSalle NationalTrust, N.A., v. Lamet, 328 Ill. App. 3d 729, 734 (2002). Moreover, a trial court cannot be saidto have abused its discretion in ruling upon a petition for relief from judgment if reasonablepersons could differ as to its decision. Johnson v. Wal-Mart Stores, Inc., 324 Ill. App. 3d 543,547 (2001).

            Similar to the instant case, the granting of a petition for relief from judgment, whilegenerally within the trial court's discretion, will be an abuse of discretion where the petition failedto set forth sufficient excuse for noncompliance. Lohja v. Checker Taxi Co., 92 Ill. App. 3d 491,495 (1980).

            In the instant case, the trial court vacated judgment entered in favor of Ameritech basedon Hadyeh's section 2-1401 petition although Hadyeh failed to show due diligence, failed to showany equitable circumstances in the record or dehors of the record and failed to show the existenceof a meritorious defense. We believe the trial court abused its discretion in vacating the judgmententered in favor of Ameritech and against Hadyeh, and we accordingly reverse the ruling of thetrial court.

            Reversed and remanded to reinstate the judgment in favor of Ameritech.

             QUINN, P.J., and MURPHY, J., concur.