( Morski Associates, Inc. v. R R Resources, Inc. (1990), 198 Ill. App.3d 359.) The determination of whether to grant the petition lies in the discretion of the trial court and will not be disturbed absent an abuse of discretion. ( O'Malley v. Powell (1990), 202 Ill. App.3d 529.) Initially, this court notes that the trial court denied plaintiffs' petition for post-judgment relief based solely on plaintiffs' lack of due diligence. Therefore, this court need not address whether plaintiffs' section 2-1401 petition alleged facts establishing a meritorious claim.
"If the facts alleged in the section 2-1401 petition are not of record, the petition must be supported by affidavits, and respondent must answer the petition's allegations." O'Malley v. Powell, 202 Ill. App. 3d 529, 533 (1990). If the central facts of a section 2-1401 petition are controverted, an evidentiary hearing must be held. Ostendorf v. International Harvester Co., 89 Ill. 2d 273, 286 (1982). ¶ 28 Typically, to be entitled to relief pursuant to section 2-1401, the petitioner must set forth specific factual allegations supporting: (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).
"If the facts alleged in the section 2-1401 petition are not of record, the petition must be supported by affidavits, and respondent must answer the petition's allegations." O'Malley v. Powell, 202 Ill. App. 3d 529, 533 (1990) (citing Ostendorf v. International Harvester Co., 89 Ill. 2d 273 (1982)). "Where affidavits support the petition, the court may enter judgment if those affidavits are uncontradicted."
In considering a section 2-1401 petition, the court accepts as true all uncontradicted facts in the petition and supporting affidavits. See O'Malley v. Powell, 202 Ill. App.3d 529, 533 (1990). Where the facts are challenged by the opposing party, a full and fair evidentiary hearing must be held.
¶ 35 Ms. Terrell next argues that the circuit court failed to hold an evidentiary hearing on her section 2-1401 petition and that her petition should have been granted because she submitted an affidavit and Midland did not. However, an evidentiary hearing is only necessary on a section 2-1401 petition where a petitioner puts forward facts that are not of record that are then challenged by the respondent with "contradictory counter-affidavits." O'Malley v. Powell, 202 Ill.App.3d 529, 533 (1990). Ms. Terrell did not put forward new facts in her petition that were not of record that would, if true, have shown a meritorious defense under section 2-1401.
¶ 24 If the petition alleges facts not contained in the record, those allegations must be supported by affidavits. O'Malley v. Powell, 202 Ill. App. 3d 529, 533 (1990). "Where affidavits support the petition, the court may enter judgment if those affidavits are uncontradicted."
Moreover, the Gunlickses' section 2-1401 petition was facially deficient in that it was not supported by affidavits. See O'Malley v. Powell, 202 Ill. App. 3d 529, 533 (1990) ("If the facts alleged in a 2-1401 petition are not of record, the petition must be supported by affidavits"). ¶ 79 The underlying mortgage and note required the Gunlickses to pay the plaintiff's attorney fees if the plaintiff was required to sue them to collect the debt. The circuit court awarded the plaintiff fees for the prosecution of the case at that level.
Specifically, plaintiff must demonstrate that his failure to prosecute the suit "was the result of excusable mistake and that, under the circumstances, [he] acted reasonably and without negligence." O'Malley v. Powell, 202 Ill. App. 3d 529, 534 (1990). In determining the reasonableness of the excuse offered by the petitioner, all of the circumstances upon entry of the judgment must be considered. Ameritech Publishing of Illinois, Inc. v. Hadyeh, 362 Ill. App. 3d 56, 60 (2005).
The accuracy of these valuations was not rebutted by petitioner in a counteraffidavit, and, therefore, we accept them as true. See O'Malley v. Powell, 202 Ill.App.3d 529, 533, 147 Ill.Dec. 641, 559 N.E.2d 981 (1990) (uncontradicted facts in section 2–1401 petition and supporting affidavit must be taken as true). The pension values were calculated based on petitioner's years of service—28—as of the date of the judgment of dissolution, but given that petitioner was still working for the fire department at that time, his actual pension would be based on a higher number of years of service.
In addition, one of the guiding principles in the administration of section 2-1401 relief is that the petition invokes the equitable powers of the court, which should prevent enforcement of a judgment or dismissal of an action when it would be unfair, unjust or inequitable. See O'Malley v. Powell (1990), 202 Ill. App.3d 529, 532, 534, 559 N.E.2d 981, 984. In the present case, prior to the dismissal for want of prosecution being entered, defendants had filed a motion to dismiss pursuant to section 2-615 of the Code of Civil Procedure.