Plaintiff, Dealer Management Systems, Inc., appeals from an order of the circuit court of LakeCounty 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 AutomotiveGroup, Inc. We affirm.

Plaintiff filed a two-count complaint on June 5, 2002. Count I alleged that in 2000, defendantissued a purchase order to plaintiff for "computer programs and other services." A copy of thepurchase order attached to the complaint shows that plaintiff agreed to provide defendant with an"Accounting Information Management" system consisting of various separately priced softwarecomponents. The price of the individual components totaled $24,000, but plaintiff agreed to providethem 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 followinglanguage:

"Software changes to AIM System to provid [sic] the same or better function as comparedwith current system. Develop a MRP subsystem to meet manufaturing [sic] needs[.] Alsoincludes data file conversion progr [sic] from our current system and load prgrams [sic] in theAIM system. Also includes user training and support for 1 year.

                                                                                             @ [$]15000.00

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 pricefor the software. Count II sought recovery in quantum meruit for other computer programs thatplaintiff allegedly wrote for defendant.

On July 10, 2002, defendant moved to dismiss count I pursuant to section 2--619(a)(7) of theCode 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, inpertinent part:

"[A] contract for the sale of goods for the price of $500 or more is not enforceableby way of action or defense unless there is some writing sufficient to indicate that a contractfor sale has been made between the parties and signed by the party against whom enforcementis 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. Defendantsubsequently moved to strike count II on the basis that plaintiff failed to file and serve a bill ofparticulars 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 andseek leave to reinstate count II. The court also gave plaintiff 21 days to respond to the motion todismiss 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 withprejudice.

On March 15, 2004, plaintiff filed a petition to vacate the dismissal of the complaint. Plaintiffalleged that due to illness, its attorney neglected to respond to the motion to dismiss. Plaintiff furtheralleged that because of a recordkeeping error, its attorney did not learn of the dismissal until February2004. Plaintiff set the petition for a hearing on April 6, 2004. Defendant neither answered thepetition nor moved to strike it, but on April 6, 2004, the trial court entered an order denying thepetition. This appeal followed.

To obtain relief under section 2--1401, a litigant "must affirmatively set forth specific factualallegations supporting each of the following elements: (1) the existence of a meritorious defense orclaim; (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 sounddiscretion of the trial court depending on the facts and equities presented, and a reviewing court willnot 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 establishgrounds for relief under section 2--1401. Plaintiff contends that because defendant did not answerthe petition or move to strike it, its allegations must be taken as true, and the only question presentedis 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 partyis entitled to notice that it must answer or otherwise respond to a section 2--1401 petition within 30days after service of the petition. Here, the petition was filed on March 15, 2004, along with a noticeof "motion" indicating that the petition would be heard 22 days later on April 6, 2004. The recorddoes not indicate when the petition was served; thus we cannot determine if defendant's answer wasnot yet due on the hearing date. Moreover, the notice of "motion" did not advise defendant that itwas required to file an answer to the petition. Under these circumstances, plaintiff must be deemedto 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 allegationsmust 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 trialcourt's ruling. It is possible that the trial court concluded that the petition was legally insufficient, butit is also possible that the court gave plaintiff the opportunity to prove its case and found the proofwanting. It is well established that "an appellant has the burden to present a sufficiently completerecord of the proceedings at trial to support a claim of error, and in the absence of such a record onappeal, it will be presumed that the order entered by the trial court was in conformity with law andhad a sufficient factual basis." Foutch v. O'Bryant, 99 Ill. 2d 389, 391-92 (1984).

We need not rest our decision entirely on the inadequacy of the record, however. Even if wewere to accept plaintiff's argument that the only issue before us is the legal sufficiency of the petition,we would resolve that issue against plaintiff. We conclude that the petition fails to satisfy the firstrequirement for relief under section 2--1401: the existence of a meritorious defense or claim. In itsappellate brief, plaintiff addresses only the dismissal of its breach of contract claim. As previouslydiscussed, defendant moved for dismissal on the basis that the contract did not comply with theUCC's statute of frauds for the sale of goods. Plaintiff contends that it has a meritorious claimbecause the underlying contract was not for a sale of goods subject to the statute of frauds. According to plaintiff, the contract was wholly or predominantly for the provision of services and thusnot subject to the statute of frauds. We disagree.

Before proceeding, we note that plaintiff's petition did not offer any new facts bearing on theapplicability of the statute of frauds. Rather, in its petition plaintiff essentially seeks to raise an errorof law. There is conflicting authority on whether a section 2--1401 petition may be predicated onlegal error. Compare Universal Outdoor, Inc. v. City of Des Plaines, 236 Ill. App. 3d 75, 81 (1992)("[A] petition under section 2--1401 is not appropriate for review of errors of law"), withHoopingarner v. Peric, 28 Ill. App. 3d 53, 57 (1975) (a section 2--1401 petition "is proper for thecorrection of errors of law apparent on the face of the record"). For purposes of our analysis, we willassume, without deciding, that an error of law may be raised in a section 2--1401 petition.

The UCC's statute of frauds for the sale of goods appears in Article 2, which applies to"transactions in goods." 810 ILCS 5/2--102 (West 2002). "Goods" is defined, in pertinent part, as"all things, including specially manufactured goods, which are moveable at the time of identificationto the contract for sale." 810 ILCS 5/2--105(1) (West 2002). A sampling of decisions from variousjurisdictions shows that courts have generally recognized that computer software qualifies as a"good" for purposes of the UCC. See, e.g., Micro Data Base Systems, Inc. v. Dharma Systems, Inc.,148 F.3d 649, 654 (7th Cir. 1998) (applying New Hampshire law); Advent Systems Ltd. v. UnisysCorp., 925 F.2d 670, 675-76 (3d Cir. 1991) (applying Pennsylvania law); ePresence, Inc. v. EvolveSoftware, Inc., 190 F. Supp. 2d 159, 163 (D. Mass. 2002) (applying California law); NewcourtFinancial USA, Inc. v. FT Mortgage Cos., 161 F. Supp. 2d 894, 897 (N.D. Ill. 2001) (applyingIllinois law); Dahlmann v. Sulcus Hospitality Technologies, Corp., 63 F. Supp. 2d 772, 775 (E.D.Mich. 1999) (applying Michigan law); Architectronics, Inc. v. Control Systems, Inc., 935 F. Supp.425, 432 (S.D.N.Y. 1996) (applying New York law); Olcott International & Co., v. Micro Data BaseSystems, Inc., 793 N.E.2d 1063, 1071 (Ind. App. 2003). However, whether a particular transactioninvolving computer software constitutes a "transaction in goods" depends on various considerations. Most courts would probably agree that an ordinary sale of "off-the-rack" software is a transactionin goods. See, e.g. Olcott International & Co., 793 N.E.2d at 1071 (Article 2 of UCC applied tocontract for purchase of "pre-existing, standardized" software). In contrast, a transactionpredominantly involving the intellectual property rights to the software is outside the scope of Article2. See Architectronics, Inc., 935 F. Supp. at 432.

Some courts have concluded that a contract to develop entirely new software is one for servicesrather than goods. Pearl Investments, LLC v. Standard I/O, Inc., 257 F. Supp. 2d 326, 353 (D. Me.2003) (developer's agreement to create software "from scratch (concept to realization) for which it wouldbe paid on a time and materials basis" was a contract for services); see also Micro-Managers, Inc. v.Gregory, 147 Wis. 2d 500, 505-07, 434 N.W.2d 97, 100 (App. 1988). But see Dharma Systems, Inc.,148 F.3d at 654 ("we can think of no reason why the UCC is not suitable to govern disputes arising fromthe sale of custom software"); Downriver Internists v. Harris Corp., 929 F.2d 1147, 1151 (6th Cir. 1991)(noting decisions holding that contracts for software package development are for goods, not services). On the other hand, a contract that calls for the modification or customization of existing software may stillbe a transaction in goods. See Dharma Systems, Inc., 148 F.3d at 654 (Article 2 applied to agreementto adapt proprietary software); Advent Systems Ltd., 925 F.2d at 675 ("The fact that some programs maybe tailored for specific purposes need not alter their status as 'goods' because the [UCC] definition includes'specially manufactured goods' ").

Contracts for the sale of software often also involve the provision of services. "Where thereis a mixed contract for goods and services, there is a 'transaction in goods' only if the contract ispredominantly for goods and incidentally for services." Brandt v. Boston Scientific Corp., 204 Ill.2d 640, 645 (2003). Article 2 applies to software transactions where the services provided "are notsubstantially different from those generally accompanying package sales of computer systemsconsisting of hardware and software." Advent Systems Ltd., 925 F.2d at 676. Such ancillary servicesinclude installation, training, and technical support. Dahlmann, 63 F. Supp. 2d at 775. Comparingthe relative costs of materials and labor may be helpful in the analysis, but is not dispositive. AdventSystems Ltd., 925 F.2d at 676; accord ePresence, Inc., 190 F. Supp. 2d at 163 ("As the Agreement'sprice terms make plain, the software programs themselves were the essence of the Agreement").

Finally, although the statute of frauds applies only to contracts for the "sale" of goods,the labels used by the parties to describe a transaction are not controlling. Thus, a transactionthat nominally involves a mere license to use software will be considered a sale under the UCCif it " 'involves a single payment giving the buyer an unlimited period in which it has a right topossession.' " Softman Products Co., LLC v. Adobe Systems Inc., 171 F. Supp. 2d 1075, 1086(C.D. Cal. 2001), quoting R. Nimmer, The Law of Computer Technology