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"Q: [Y]ou are aware that pursuant to the agreement, you are responsible for a portion ofyour fees and costs incurred in this matter after contribution by Judd which is set forth inthe amounts and terms in detail in the Settlement Agreement?

A: Yes.

Q: And have I advised you that pursuant to Section 508 of the Illinois Marriage andDissolution of Marriage Act, you would be entitled to a hearing with respect to thereasonableness and necessity of fees and costs incurred and you are entitled to the benefitof independent counsel in those proceedings?

A: Yes, you have.

Q: And at this juncture, you are not requesting a hearing on the fees incurred on your behalfand those issues have been settled; is that correct?

A: That's correct."

[Nonpublishable material under Supreme Court Rule 23 omitted.]

C. Trial Court's Ruling

While noting the existence of some evidence regarding billing improprieties by Pretzel Stouffer,the court also noted the financial complexity of the case, the "dogged and intricate resistance" ofJudd Malkin during discovery, the difficulties in developing case strategies, and the preparationof an 111-page amended dissolution petition that was "time-consuming, clear cut, disciplined,imaginative, and successful as far as the case developed." As to Pretzel Stouffer's fees, the courtheld as follows:

"The final question as to the Pretzel fee is whether there is significant evidence of the feebeing unreasonable and therefore a ground for vacature [sic]. As to the portion of the feeinvolving Mr. White, there is such evidence."

However, while the court made certain unflattering characterizations of the evidence pertaining toWhite's conduct and personality, predicated upon the testimony of Ladden and Allen as discussedpreviously, the court made no specific finding with respect to the reasonableness of White's fees.

With respect to the fees of Devine and Simon, the court held that their failure to give Malkindetailed fee statements was sufficient to warrant vacatur. The court also found that ORBA's billswere "open to serious question" based on evidence that those bills lacked detail, that ORBAcharged Malkin for personnel training, that ORBA raised its rates without obtaining Malkin'sconsent and that ORBA's services were unreasonable and unnecessary. The court found that to betrue with respect to ORBA's original bill of $1,119,000 "but less true of the reduced amount of$760,000." The court ordered further review of the reduced amount, however, because "[t]o holdhowever that it is not true at all as to the reduced amount would be to turn over the vacature [sic]decision to those who negotiated with ORBA to reduce the bill." As to O'Connell's fee, the courtfound that there was no evidence that it was unreasonable.

With respect to the relationship between Malkin and Allen, the court found that facts regardingthat relationship were not of record at the time of the prove-up hearing. The court further found,however, that Malkin did not sustain her burden of proving undue influence as a ground forvacatur of the Pretzel Stouffer fees or any other professional and consultant fees. The court madeno findings with respect to the section 2-1401 requirement of due diligence.

On the issue of Malkin's section 508 waiver, the court found Malkin's waiver ineffective withrespect to the fees of Devine and Simon because those attorneys had not provided Malkin withbilling statements. It held the waiver to be ineffective as to the fees of ORBA and to the fees ofWilliam White of Pretzel Stouffer because of evidence of unreasonableness. The court thereuponvacated Malkin's waiver and agreement as to the fees of Devine, Simon, ORBA and PretzelStouffer and ordered that a section 508 hearing be held with respect to those fees.

DISCUSSION OF ISSUES

A. Pretzel Stouffer's Appeal

Section 2-1401 of the Code creates an exception to the general rule that a court cannot review itsown judgment after the expiration of 30 days from the date of entry. 735 ILCS 2/1401 (West1992). A party seeking vacatur under section 2-1401 of the Code must show: (1) the existence ofa meritorious defense or claim, that is, facts that would have prevented the rendition of theoriginal judgment if they had been of record when the judgment was entered; (2) due diligence inpursuing that claim or defense before judgment, that is, that the failure to discover and presentthose facts before the judgment was not the fault of the petitioner; and (3) diligence in pursuingthe claim or defense after judgment. E.g., In re Marriage of Kantar, 220 Ill. App. 3d 323, 581N.E.2d 6 (1991); In re Marriage of Travlos, 218 Ill. App. 3d 1030, 578 N.E.2d 1267 (1991); Inre Marriage of Pitulla, 141 Ill. App. 3d 956, 491 N.E.2d 90 (1986). With respect to the elementof diligence in pursuing the claim or defense prior judgment, it has been stated:

"[S]ection 2-1401 was never intended to give a litigant a new opportunity to do that whichshould have been done in an earlier proceeding. The provision was never intended torelieve a litigant of the consequences of his mistake or negligence. [Citation.]

***

*** Specifically, to set aside a judgment based on newly discovered evidence, it is quitesettled that the evidence must be such as could not reasonably have been discovered at thetime of or prior to the entry of the judgment. [Citations.]" Travlos, 218 Ill. App. 3d at 1035,578 N.E.2d at 1271-72.

If the allegations of a section 2-1401 petition are factually challenged by the respondent, thoseallegations must be proved by the petitioner at a full and fair evidentiary hearing. The petitionerhas the burden of proving those allegations by a preponderance of the evidence. Smith v. Airoom,Inc., 114 Ill. 2d 209, 499 N.E.2d 1381 (1986). The granting of a section 2-1401 petition is withinthe sound discretion of the trial court; and a court of review will disturb the trial court's rulingonly if the trial court clearly abused its discretion. E.g., Klein v. La Salle National Bank, 155 Ill.2d 201, 613 N.E.2d 737 (1993); In re Marriage of Delk, 281 Ill. App. 3d 303, 666 N.E.2d 683(1996).

In the instant case, Pretzel Stouffer challenged the allegations of Malkin's section 2-1401petition; and at the conclusion of the evidentiary hearing the court granted section 2-1401 relief.On appeal, Pretzel Stouffer first argues that Malkin was not entitled to section 2-1401 reliefbecause she did not establish a meritorious defense. It contends that Malkin presented no factsthat if known by the trial court at the time of entry of the judgment of dissolution of marriagewould have prevented entry of the fee portion of that judgment. Pretzel Stouffer argues that theevidence at the section 2-1401 hearing showed that Malkin agreed to the fee awards and waivedher right to a fee hearing at the prove-up hearing. As to the waiver, Pretzel Stouffer argues thatthe evidence showed that Malkin's waiver was given freely and intelligently and that Malkin hadbeen advised of her right to a hearing on fees, that Malkin was competent to waive that right, andthat Malkin made an informed decision to forego her right to obtain independent counsel on theissue of fees. We agree.

A section 2-1401 petition can be the proper means by which to set aside a fee agreement betweenan attorney and client entered into during the attorney-client relationship when that agreement isthe product of undue influence. It is presumed that the attorney exercised undue influence wherea transaction is entered into between an attorney and his client during the existence of thatrelationship and where the attorney benefits from the transaction. In re Marriage of Pagano, 181Ill. App. 3d 547, 558, 537 N.E.2d 398, 405 (1989) (Pagano I). The burden of proof with respectto that presumption was explained in Pagano I as follows:

"Although the burden of persuasion is upon contestant [sic] (the client) to establish undueinfluence [citation], the burden is upon the attorney to come forward with clear andconvincing evidence that such contract was fair, equitable, just, and did not come aboutfrom undue influence. [Citations.] It must also be shown that the client had a fullunderstanding of the facts and their legal consequences. [Citation.] In the absence of clearand convincing evidence to rebut the presumption, the presumption of undue influenceprevails. [Citation.] However, where clear and convincing proof is presented, thepresumption vanishes [citation], and it is then for the trier of fact to determine whetherthere actually was undue influence [citation]. Pagano, 181 Ill. App. 3d at 558, 537 N.E.2dat 405.

Accord In re Marriage of Pagano, 154 Ill. 2d 174, 607 N.E.2d 1242 (1992) (Pagano II); Klaskinv. Klepak, 126 Ill. 2d 376, 534 N.E.2d 971 (1989); Franciscan Sisters Health Care Corp. v.Dean, 95 Ill. 2d 452, 448 N.E.2d 872 (1983).

In Pagano I, the court reversed the dismissal of a section 2-1401 petition seeking vacatur of twoagreed orders awarding attorney fees based in part upon a finding that the petition allegedsufficient facts to support the presumption of undue influence. The trial court had dismissed thepetition finding that it failed to allege due diligence. On review, the appellate court took allwell-pleaded facts in the petition as true and found that the petition alleged sufficient facts of duediligence. It also found that the petitioner had a meritorious defense based upon allegations thatsupported the presumption of undue influence. (The petition alleged, among other things, that thepetitioner signed orders on the eve of trial agreeing to pay attorney fees under threat that herattorneys would not continue to represent her.) Based only upon the allegations in the petition,the court found that the section 2-1401 petition should have been granted and remanded thematter for a hearing on attorney fees pursuant to section 508 of the Illinois Marriage andDissolution of Marriage Act (Ill. Rev. Stat. 1987, ch. 40, par. 508). (At the evidentiary hearingheld after vacatur and remand, the trial court found that the attorney had not engaged in undueinfluence and had not breached his fiduciary duty. The court also reduced the fees sought by theattorney. The finding of lack of undue influence and breach of fiduciary duty was affirmed onappeal. Pagano, 154 Ill. 2d 174, 607 N.E.2d 1242.)

In the instant case, Malkin's petition alleged the existence of two meritorious defenses, that heragreement to pay the fees was the result of undue influence and that the fees she agreed to paywere excessive. Pretzel Stouffer disputed Malkin's allegations, and the trial court conducted asection 2-1401 evidentiary hearing. Based upon the testimony put forth at that hearing, the trialcourt concluded that Pretzel Stouffer did not exert undue influence upon Malkin when it obtainedher agreement to pay the fees she is now contesting. The trial court found that before Malkinagreed to the payment of those fees she had been aware of the fees as they were incurred; that thefees resulted from the rendering of substantial services to Malkin that greatly benefitted her; thatMalkin had received an explanation of her section 508 rights on more than one occasion; thatMalkin was an intelligent, capable adult who generally managed her own affairs and whooperated a business in the art field; and that Malkin approved the overall marital settlementagreement and the fees provision therein on several occasions during the negotiation process. Thecourt also found that Malkin testified at the section 2-1401 hearing that the answers she gave atthe prove-up hearing regarding her section 508 waiver were truthful. The court weighed theevidence and assessed the credibility of the witnesses; and we must treat its finding of lack ofundue influence with deference. The trial court was in the best position to make thatdetermination; and we cannot say that the trial court's finding in this regard was an abuse ofdiscretion. See Pagano, 154 Ill. 2d at 187, 607 N.E.2d at 1248. In affirming the trial court'sfinding of lack of undue influence, we cannot invoke the friendship between an attorney andclient, even where feigned or exaggerated, as a substitute for coercion or undue influence. Whilea certain degree of professional distance between an attorney and client is desired, we cannotagree that the impropriety of even a feigned and exaggerated friendship compels a finding ofundue influence as a matter of law in the face of an expressed finding to the contrary by the trialcourt.

Malkin argues that even if she failed to prove undue influence she is entitled to section 2-1401relief because she established that the fee portion of the judgment was excessive. Initially, wedisagree with Malkin's contention that she established excessive fees. As will be discussed ingreater detail below, all that can be gleaned from the trial court's order relative to the section2-1401 proceedings is that the evidence presented by Malkin created a question as to thereasonableness of the fees of ORBA and William White of Pretzel Stouffer. With respect to thefees of Devine and Simon, the court expressed no finding as to reasonableness. Rather, it vacatedthe portion of the judgment relative to their fees based solely on the fact that they had notsubmitted billing statements to Malkin.

Malkin cites Pagano I and In re Marriage of Kantar, 220 Ill. App. 3d 323, 581 N.E.2d 6 (1991)wherein allegations of excessive fees and/or billing irregularities supported the grant of section2-1401 relief. We find the facts in Kantar and Pagano I to be sufficiently distinguishable fromthe facts in the instant case so as to require a different result. In Kantar, the section 2-1401petitioner sought to vacate a judgment incorporating her agreement to pay attorney fees and tovitiate her waiver of the section 508 hearing based upon allegations concerning various acts ofattorney misconduct in the procurement of her agreement and waiver. The trial court grantedsummary judgment to the attorney on the basis of lack of due diligence. The appellate courtreversed. While alleged excessive billing served as a basis for section 2-1401 relief in Kantar, itdid not purport to be the sole and independent basis for that relief. Other allegations consideredby the court and/or set forth in the petition included fraudulent billing entries, the lack of ameaningful examination of the attorneys' fee statement by the client before agreement andwaiver; the failure of the attorneys to respond to the client's request to discuss the accuracy andlegitimacy of their fee request; and the obtaining of the client's agreement and waiver bycoercion, undue influence, misrepresentation and intimidation and while the client was underextreme duress as a result of her sexual relationship with one of her attorneys.

Similarly, as in Kantar, section 2-1401 relief was granted in Pagano I based upon the petitioner'sallegations that her agreement to pay attorney fees resulted from undue influence by her attorneyand that the fees charged were excessive. (As noted above, since the appeal in Pagano I wastaken from dismissal of the petition on a pleading motion, the court was required to take as trueall well-pleaded facts including allegations to support the presumption of undue influence.)While there is some language in Pagano I suggesting that section 2-1401 relief would have beengranted even if the only attorney misconduct alleged to have occurred was the ethical misconductof charging excessive fees (see 107 Ill. 2d R. 2-106 now at 134 Ill. 2d R. 1.5), in any event such aresult would not extend or control the facts and circumstances presented here. In Pagano I, theexcessiveness of the attorney fees was patently evident from the face of the section 2-1401petition. That pleading alleged that the petitioner agreed to the entry of two orders whichprovided for the combined payment of $50,000 for attorney fees while the attorney's own petitionfor fees, filed subsequent to the entry of those orders, showed fees for services rendered totallingonly $37,034.15. There could be no dispute that the agreed orders allowed for fees in excess ofthose earned, and no evidentiary hearing was necessary to establish the meritorious defense ofexcessive fees. Under such circumstances the court in Pagano I, in a super-added discussion,suggested that, as a matter of public policy, a waiver of a section 508 hearing should not beeffective to condone what is in fact a breach of ethics by the attorney in attempting to recoverexcessive fees. Pagano, 181 Ill. App. 3d at 562, 537 N.E.2d at 407-08 (stating, "as a matter ofpublic policy, an attorney should not be able to retain a fee that is excessive"). We see merit inthe ethical concern reflected in Pagano I. It would be troubling for a court to be compelled to aidan attorney in his or her effort to recover fees which were patently in breach of an attorney'sethical duties, notwithstanding an earlier waiver of a fee hearing by the client.

However, when the client has waived the right to a section 508 hearing, that client's ability toseek vacatur of a judgment for fees would be far more tenuous when the allegation of excessivefees is not patently apparent and when there is nothing more than a request for an investigatoryhearing on that question, a hearing which was already waived. Under such circumstances, asecond opportunity for a hearing should not become available unless the waiver of the firsthearing was obtained through undue influence, fraud, or other manipulative conduct in breach ofthe attorney's fiduciary duties. This position is consistent with our supreme court's position inPagano II wherein the court held that a party can agree to the payment of fees and waive his orher right to a section 508 hearing. See Pagano, 154 Ill. 2d at 184, 607 N.E.2d at 1247 (decliningto hold that the fee hearing provision of section 508 may never be waived and looking to theattorney's exertion of undue influence upon the client or other breach of fiduciary duties). It alsois consistent with the court's acknowledgement in Pagano I that "a client may waive her right to ahearing under section 508." Pagano, 181 Ill. App. 3d at 561, 537 N.E.2d at 407.

Whereas in Pagano I the section 2-1401 petition on its face conclusively established that the feeswere excessive, in the instant case the excessiveness of the fees could not be established withoutan evidentiary hearing on that issue. Thus, even if we were to construe the holding in Pagano I tovitiate a hearing waiver on the ground of excessive fees independent of the presence of undueinfluence, which as discussed above was presumed to be present in Pagano I, it would not impactupon the facts in this case. To allow Malkin or any other petitioner the opportunity to presentevidence of reasonableness during section 2-1401 proceedings would in effect vitiate all section508 waivers, no matter how obtained, and make all judgments for fees obtained without section508 hearings nonfinal and subject to post-judgment hearing. As noted, such a result would beinconsistent with Pagano II (see Pagano, 154 Ill. 2d at 184, 607 N.E.2d at 1247 (declining tohold that fee hearing provision of section 508 may never be waived)) and Pagano I as well (seePagano, 181 Ill. App. 3d at 561-62, 537 N.E.2d at 407 ("a client may waive her right to a hearingunder section 508")).

It makes little sense to say that the court in a section 2-1401 proceeding can or should allowinquiry and testimony to ascertain whether a mere, conclusory allegation of excessive fee can beproven after the client has knowingly and deliberately waived the opportunity provided bysection 508 to reach that issue before judgment and where the client has not shown that thewaiver of the section 508 hearing was obtained by fraud, undue influence, coercion, or otherbreach of fiduciary duties by the attorney. See Pagano, 181 Ill. App. 3d at 559, 537 N.E.2d at405 citing Thompson v. Thompson, 91 Ill. App. 3d 943, 945, 415 N.E.2d 28 (1980) (section2-1401 petitions are the proper means for setting aside consent judgments obtained by fraud orcoercion). When the client has not alleged facts showing that the agreement to pay fees and thecorresponding waiver of the right to a hearing on those fees was the result of fraud, coercion,undue influence or other breach of fiduciary duties, and when the client has not alleged factswherein the excessive fee is patently apparent, the client should not be able to utilize a section2-1401 hearing as a fishing expedition to explore the possibility of excessive fees. To allow suchan inquiry would create an anomaly in that the court would be providing the relief to which thesection 2-1401 petitioner would be entitled if he or she prevailed in the section 2-1401proceeding. The court, in effect, would be proceeding to a section 508 hearing to determinewhether the fees were reasonable as a prerequisite to determining whether the petitioner isentitled to section 2-1401 relief which would only then entitle him to a section 508 hearing.

In the instant case, it is clear that the claim of excessive fees was not patent from the face of thesection 2-1401 petition as that petition consisted of the mere conclusory allegation of excessivefees. Consequently, there should be no right to any hearing on that issue if the pre-judgmentwaiver of the section 508 hearing was free of fraud, intimidation, coercion, undue influence orother breach of the attorneys' fiduciary duties. See Pagano, 154 Ill. 2d 174, 607 N.E.2d 1242(attorney overcame the presumption of undue influence with evidence that the client understoodthe agreed orders for fees that she signed, understood that she was ultimately responsible forpayment of the fees in the absence of a court order directing her former husband to pay, was notin need of independent advice, and had extensively reviewed her file and the time sheetscontained therein). Here, as discussed above, the evidence at the section 2-1401 hearing showedthat there was no undue influence or other breach of fiduciary duties by Malkin's attorneys. Theevidence also showed that the petitioner deliberately and knowingly waived her right to a section508 hearing. The evidence in that regard indicated that at the time she waived her right to asection 508 hearing Malkin was aware of the fees incurred on her behalf by Pretzel Stouffer aswell as by the other professionals retained by Pretzel Stouffer on her behalf. Malkin testified thatshe approved the overall marital settlement agreement and the fees provision included therein onseveral occasions during the negotiation process after eliciting the advice of her counsel, heraccountants and her adult children. Malkin testified that she routinely had been given periodicstatements from Pretzel Stouffer and that Pretzel Stouffer sent her statements from ORBA.Malkin never questioned the contents of those bills. The evidence also showed that in lateJanuary or February 1994, approximately one month prior to the prove-up, Malkin received a177-page bill from Pretzel Stouffer, containing 1165 entries, covering a five-month period, andtotalling approximately $400,000 and that she received a final 34-page statement on March 14,1994, nine days before the prove-up, containing 185 entries for work performed as far back as1991 and totalling approximately $32,000. Again there was no testimony by Malkin or any otherwitness that Malkin questioned those bills, sought explanation or reduction or requestedadditional time to review their contents.

The evidence also showed that, prior to the prove-up and the giving of her section 508 waiver,Malkin received explanations of her section 508 rights on more than one occasion; she wasadvised that she was entitled to a hearing with respect to the reasonableness and necessity of feesand costs incurred; and she understood she was entitled to the benefit of independent counsel.The record shows that Malkin testified at the prove-up hearing as to her knowledge of herobligation to pay a portion of her fees and costs as well as to her knowledge of her section 508rights and indicated that she chose not to exercise those rights. At the section 2-1401 hearing,Malkin stated that her testimony at the prove-up was truthful. Finally, as the trial court found,Malkin was an intelligent, capable adult who generally managed her own affairs and whooperated a business in the art field.⁽⁵⁾

The fact that Malkin's waiver was freely and deliberately given and with knowledge of her rightsand obligations distinguishes this case from the cases cited by Malkin. In In re Marriage ofPitulla, 141 Ill. App. 3d 956, 491 N.E.2d 90 (1986), the petitioner approved the revisedsettlement agreement which included a provision for the payment of her attorney's fees. At thetime she signed the agreement, the petitioner had not been given an itemized bill from herattorney, despite her request for one, and allegedly had been advised by her attorney that thejudgment for dissolution of marriage would not be entered until she paid his fees. After paymentof the fees and entry of judgment, the petitioner filed a section 2-1401 petition. The court grantedsection 2-1401 relief finding the petitioner had not waived her right to a hearing on fees bysigning the marital settlement agreement and failing to object to the fees or request a section 508hearing. Unlike in the instant case, there was no evidence that the petitioner had knowledge ofher right to a hearing on fees so as to make her waiver a knowing one. It does not appear from thedecision in that case that the petitioner was questioned at a prove-up hearing regarding herknowledge of her rights or her desire to waive a section 508 hearing. Also, unlike in the instantcase, the petitioner had not been provided with an itemized statement from her attorney regardinghis fees, despite her request for one, and there was evidence that petitioner's agreement to pay thefees was coerced by her attorney's statement that the judgment for dissolution of marriage wouldnot be entered unless she paid his fees in full. See also In re Marriage of Bennett, 131 Ill. App.3d 1050, 476 N.E.2d 1297 (1985) (in section 2-1401 proceedings, court found no waiver ofhearing where petitioner had not been advised prior to hearing of attorney's intention to seekentry of order of fees and where petitioner was promised a statement of account but was notgiven that statement).

In Kantar, 220 Ill. App. 3d 323, 581 N.E.2d 6, also cited by Malkin, the petitioner expresslywaived her right to a section 508 hearing at a prove-up hearing. At that hearing the petitionerindicated her understanding of her obligation to pay the fees of her attorney, her knowledge as tothe amount of those fees, her prior receipt and review of an itemized statement regarding thosefees, her understanding of her right to a hearing on those fees, and her belief that the fees werereasonable. However, the facts elicited during summary judgment proceedings on petitioner'ssection 2-1401 petition also showed that the petitioner's expressed waiver was obtained as aresult of egregiously manipulative conduct by her attorneys. The petitioner alleged that heragreement to pay the fees of her attorney (and, presumably, her waiver) were procured by undueinfluence, coercion, misrepresentation and intimidation by her attorneys. The petitioner alleged,among other things, that her attorneys threatened to withdraw if she did not acquiesce and signthe settlement agreement, that she was told she could not get divorced unless she agreed to paythe fees of her attorneys, that the billing statement was handed to her ten minutes prior to theprove-up hearing, and that she requested but was denied a discussion with her attorneys regardingthe accuracy and legitimacy of the fee request. Finally, and most egregious, the petitioner allegedthat she had been seduced by one of her attorneys, that she had engaged in sexual relations withthat attorney on 20 occasions and that, as a result of that relationship, she was under extremeduress at the time of the prove-up hearing. Clearly, these facts showed that the petitioner's waiverin Kantar, while expressly given in open court, was vitiated because it was obtained underduress, undue influence, and coercion.

Our interpretation of Pagano I, Pagano II, Pitulla and Kantar leads us to conclude that a section2-1401 petitioner should not be allowed to negate the effect of a waiver of a section 508 hearingbased upon the mere allegation of an excessive fee. Rather, the contention of excessive fees mustbe accompanied by allegation and proof that the pre-judgment agreement to pay those fees andthe co-existent waiver of a section 508 hearing on reasonableness of those fees resulted fromimproper conduct by the petitioner's attorney. Conduct, such as fraud, undue influence orcoercion, would defeat the waiver by showing that the waiver was not obtained voluntarily orwith knowledge and understanding of the obligations and rights involved. Absent such conduct,the waiver will prevent vacatur of the fee judgment and remandment for a section 508 hearingunless the section 2-1401 allegation of excessive fees is evident from the section 2-1401pleadings and submissions and without the holding of an evidentiary hearing on that issue. Here,as discussed above, Malkin did not establish that her agreement regarding the payment of fees orher waiver of a section 508 hearing on the reasonableness of those fees were the result of undueinfluence, fraud, coercion, intimidation or any other breach of fiduciary duties. Moreover,Malkin's allegation of excessive fees did not overcome her waiver because that allegation wasbare, conclusory and unsupported absent the holding of an evidentiary hearing onreasonableness.⁽⁶⁾

As an additional reason why the trial court erred in granting section 2-1401 relief, PretzelStouffer argues that Malkin did not establish pre-judgment due diligence in that she did not provethat her failure to discover or present facts regarding the excessiveness of the fees before entry ofjudgment was not her fault. See Kantar, 220 Ill. App. 3d 323, 581 N.E.2d 6; Travlos, 218 Ill.App. 3d 1030, 578 N.E.2d 1267; Pitulla, 141 Ill. App. 3d 956, 491 N.E.2d 90. (Pretzel Stouffermakes no argument regarding Malkin's post-judgment due diligence as it conceded in its answerto Malkin's section 2-1401 petition that Malkin was diligent in filing her petition one year afterthe judgment was entered.) In view of our holding that Malkin failed to establish a meritoriousdefense, we need not reach the issue of diligence. However, even if Malkin had established ameritorious defense to the fee judgment, we would agree that Malkin did not establishpre-judgment due diligence.⁽⁷⁾

Malkin argues, in reliance on Pagano I, that she was not required to establish due diligence. Wedisagree. Pagano I did relax the due diligence requirement when a section 2-1401 petition allegesattorney impropriety. Pagano, 181 Ill. App. 3d at 557, 537 N.E.2d at 404, citing FranciscanSisters Health Care Corp. v. Dean, 95 Ill. 2d 452, 448 N.E.2d 872 (1983). As stated in Pagano I,a section 2-1401 petition is addressed to the equitable powers of the court; and the requirement ofdue diligence can be relaxed where justice and good conscience require it (Pagano, 181 Ill. App.3d at 556, 537 N.E.2d at 403, citing Smith v. Airoom, Inc., 114 Ill. 2d 209, 499 N.E.2d 1381) or"'where it is clear from all the circumstances that a party has procured an unconscionableadvantage through extraordinary use of a court process'" (Pagano, 181 Ill. App. 3d at 556, 537N.E.2d at 403, quoting Hiram Walker Distributing Co. v. Williams, 99 Ill. App. 3d 878, 881, 426N.E.2d 8, 10 (1981). In Pagano I, although post-judgment due diligence was found to exist, thecourt nevertheless stated in dictum that there were sufficient allegations of attorney improprietyto excuse any lack of diligence. Pagano, 181 Ill. App. 3d at 557, 537 N.E.2d at 404. Thoseallegations, which were taken as true on review of the dismissal order, included coercion by theattorney in threatening withdrawal if the petitioner did not sign the agreed order for fees as wellas the failure of the attorney to provide the petitioner with itemized statements, the lack of aretainer agreement, and the lack of disclosure of the attorney's hourly rates. In addition, the courtrelied upon the presumption of undue influence.

We find insufficient circumstances to warrant the relaxation of the due diligence requirementhere. As discussed above, the presumption of undue influence was rebutted to the satisfaction ofthe trial judge at the section 2-1401 hearing. Furthermore, the evidence at the section 2-1401hearing showed that Malkin had ample time, opportunity and resources to question the fees shewas charged. Malkin testified that she received copies of bills from Pretzel Stouffer but that shefiled them away and did not review them. Malkin did not question Pretzel Stouffer's bills relatingto its fees or ORBA's fees despite having received a communication from Judd Malkin's expert,six months before the prove-up, questioning those fees. In the months of negotiationsimmediately prior to consummation of the marital settlement agreement, Malkin received copiesof statements showing the fees for all of the professionals that had rendered services on herbehalf. She reviewed the calculations in the marital settlement agreement and consulted with herprofessional advisors, including Allen, Ladden, White, Schaffer, and her adult children prior tothe prove-up but did not question the fee computations or seek further explanation. In lateJanuary or February 1994, approximately one month prior to the prove-up, Malkin received a177-page bill from Pretzel Stouffer; and on March 14, 1994, nine days before the prove-up, shereceived a 34-page final statement. She again did not raise any questions or objections to thesestatements.

There can be no question that the fee issues raised in Malkin's section 2-1401 petition and at thehearing on that petition existed prior to entry of the dissolution of marriage judgment and couldhave been raised by her prior to that time had she sought to do so. She chose instead to sign themarital settlement agreement that called for the payment of the fees enumerated therein. She alsochose at the prove-up hearing to acknowledge and assent to those fees. She declined theopportunity to have the court review the reasonableness and necessity of the fees or to haveindependent counsel represent her on that issue. Thus, we cannot say that the facts presented herewarrant a relaxation of the due diligence requirement of section 2-1401. See In re Marriage ofBroday, 256 Ill. App. 3d 699, 703, 628 N.E.2d 790, 795 (1993) (a party cannot be "relieved ofthe consequences of her own lack of diligence in failing to discover *** information relevant tothe divorce proceeding"); Travlos, 218 Ill. App. 3d 1030, 578 N.E.2d 1267 (1991) (finding lackof due diligence where party did not avail himself of information available to him); In reMarriage of Halas, 173 Ill. App. 3d 218, 223, 527 N.E.2d 474, 478 (1988) ("[c]onsistent withstrong judicial policy favoring final judgments *** a section 2-1401 petition is not to be used as adevice to *** put into issue matters which have previously been or could have beenadjudicated").

As its final argument on appeal, Pretzel Stouffer argues that there was no evidence showing thatits fees were in fact unreasonable. In view of our holding that the fee awards should not havebeen vacated, we need not reach this issue. However, even if we were to reach it, the court madeno dispositive finding that Pretzel Stouffer's fees were in fact unreasonable. As discussed above,the court's order shows that, at best, it found there to be a question regarding White's fees. In thatregard the court stated:

"The final question as to the Pretzel fee is whether there is significant evidence of the feebeing unreasonable and therefore a ground for vacature [sic]. As to the portion of the feeinvolving Mr. White, there is such evidence."

But, as set forth in the "Background Facts" section of this opinion, the court based that finding ontestimony by Pretzel attorneys, Allen and Ladden, which, while personally unflattering, did notspecifically refer to White's billing practices or the reasonableness of his charges. It would appearthat the court intended that the actual determination of unreasonableness of White's fees be madeat the section 508 hearing to be held on remand.⁽⁸⁾

B. Malkin's Cross-Appeal

In her cross-appeal, Malkin argues that the trial court erred in failing to vacate the fee award of$163,000 to Marjorie O'Connell, the divorce tax specialist, hired by Pretzel Stouffer on Malkin'sbehalf. Malkin contends that O'Connell's services were unnecessary and that her fees wereunreasonable. In view of our holding that Malkin did not establish the necessary elements for asection 2-1401 vacatur of the fee award, we need not discuss this issue further.

For the foregoing reasons, the order of the Circuit Court of Cook County vacating the portion ofjudgment for dissolution of marriage entered on March 23, 1994 is reversed.

Reversed.

CAHILL AND LEAVITT, JJ., concur.

Footnotes

1. Wherever it appears in this opinion, the name "Malkin" will refer to Jeanne Malkin. JuddMalkin will be referred to by use of his full name.

2. Judd Malkin filed an application to intervene in the section 2-1401 proceedings (see 735 ILCS5/2-408 (West 1994)), alleging that he paid approximately 90% of Jeanne Malkin's fees andcontending that he should share in any recovery she obtained. The trial court entered theapplication but continued the matter until resolution of the section 2-1401 proceeding.

3. We note that the only respondent to Malkin's section 2-1401 petition was Pretzel Stouffer.None of the other professionals who were awarded fees pursuant to the marital settlementagreement incorporated into the dissolution of marriage judgment were named as parties to thesection 2-1401 action. A year after filing her petition, Malkin filed a motion to join Ostrow,Reisin, Berk & Abrams, Ltd. (ORBA) as a necessary party under section 2-405 of the Code ofCivil Procedure (735 ILCS 5/2-405 (West 1994)). Malkin argued that her petition to vacate alsosought vacatur of the fees and costs awarded to ORBA. That motion was denied as beingpremature.

4. In order to comply with appellate court opinion page limitations specified by amendedSupreme Court Rule 23 (155 Ill. 2d R. 23) and Supreme Court Administrative Order MR No.10343, we must delete the section of the "Background Facts" dealing with the evidence at thesection 2-1401 hearing regarding the billing practices of Pretzel Stouffer and the otherprofessionals retained by Pretzel Stouffer on Malkin's behalf. We believe the elimination of thesefacts, on balance, is the least disruptive to the integrity and understanding of this opinion. For afull and detailed discussion of the facts relevant to the instant appeal, see the full opinion,including the nonpublishable Rule 23 material, in Malkin v. Malkin, Docket No. 1-96-3893.

5. Malkin argues that when she waived her right to a fee hearing she did so in response to aquestion as to whether she was waiving those rights "at this juncture" only. She contends in herbrief that she did not waive her right to a "final fee hearing." We disagree with Malkin's overlynarrow interpretation of her waiver. Malkin's waiver was given at the prove-up hearing followingMalkin's execution of the marital settlement agreement. The purpose of the prove-up hearing wasto bring finality to the dissolution proceedings and to allow for the entry of a judgment fordissolution of marriage. It would be nonsensical to think that Malkin believed that the matter offees, which was included in the marital settlement agreement, would somehow be left open forlater review.

6. While not raised by the parties to this appeal, we note that the trial court vacated the portion ofthe judgment awarding fees to attorneys Devine and Simon solely for the reason that thoseattorneys had failed to provide detailed statements of their services. That reason is not a properbasis for granting section 2-1401 relief. See Pagano, 181 Ill. App. 3d at 555, 537 N.E.2d at 403("the lack of a petition for attorney fees was procedural and, standing alone, not a basis forgranting a section 2-1401 petition").

7. As discussed above, the trial court made no finding in its lengthy order regarding the diligenceelement to Malkin's section 2-1401 petition.

8. The court made similar generalized findings with respect to ORBA's bills. In that regard, thecourt noted that evidence had been presented as to the unnecessary and unreasonable servicesprovided by ORBA. It found that the contention of unreasonableness was "clearly true of theinitial ORBA statement of $1,119,000," stating further that it was "less true of the reducedamount of $760,000" that had been negotiated by Pretzel Stouffer. The court nevertheless orderedthat a hearing be held on the reasonableness of the $760,000 fee, finding that to hold otherwise"would be to turn over the vacature [sic] decision to those who negotiated with ORBA to reducethe bill."