                                   Illinois Official Reports

                                           Appellate Court



                             Badette v. Rodriguez, 2014 IL App (1st) 133004



Appellate Court               GERSON BADETTE, Plaintiff-Appellant, v. ALBERTANO
Caption                       RODRIGUEZ, Individually, and as Agent of Quality Building Supply
                              Company, and QUALITY BUILDING SUPPLY COMPANY,
                              Individually, Defendants-Appellees.


District & No.                First District, First Division
                              Docket No. 1-13-3004


Filed                         December 1, 2014


Held                          In an action arising from a vehicular accident in which plaintiff’s car
(Note: This syllabus          was damaged when struck by a vehicle owned by defendant company
constitutes no part of the
                              and driven by one of defendant’s employees, who was also named as a
opinion of the court but
has been prepared by the
                              defendant, the release signed by plaintiff in an earlier action involving
Reporter of Decisions         the same accident clearly released defendants from any claims based
for the convenience of        on the accident, including property damage claims, notwithstanding
the reader.)                  plaintiff’s contentions that the parties did not intend to release
                              plaintiff’s property damage claims, plaintiff showed that both parties
                              knew of plaintiff’s claim for property damage to his vehicle prior to
                              the time plaintiff executed the release, and the release contained
                              several general releases; therefore, the trial court properly dismissed
                              plaintiff’s complaint for property damage pursuant to section
                              2-619(a)(6) of the Code of Civil Procedure.



Decision Under                Appeal from the Circuit Court of Cook County, No. 2013-M1-12709;
Review                        the Hon. Cynthia Cobbs, Judge, presiding.



Judgment                      Affirmed.
     Counsel on               Law Office of Daniel E. Goodman, of Rosemont (Scott L. Spiegel, of
     Appeal                   counsel), for appellant.

                              Law Office of David A. Izzo, of Chicago (Thomas C. Wolter, of
                              counsel), for appellees.


     Panel                    JUSTICE HARRIS delivered the judgment of the court, with opinion.
                              Justices Cunningham and Connors concurred in the judgment and
                              opinion.

                                               OPINION

¶1         Plaintiff, Gerson Badette, filed a complaint sounding in negligence against defendants,
       Albertano Rodriguez and Quality Building Supply Company, seeking recovery for damages
       sustained to his car after an October 12, 2011, car accident. 1 The circuit court granted
       defendants’ motion to dismiss pursuant to section 2-619(a)(6) of the Illinois Code of Civil
       Procedure (Code) (735 ILCS 5/2-619(a)(6) (West 2012)) based on a release signed by plaintiff
       in connection with a 2012 suit plaintiff filed against defendants stemming from the same
       accident. At issue is whether the circuit court erred when it dismissed plaintiff’s complaint
       pursuant to section 2-619(a)(6) of the Code (735 ILCS 5/2-619(a)(6) (West 2012)) based on
       the release signed by plaintiff. We hold the circuit court did not err when it dismissed
       plaintiff’s complaint pursuant to section 2-619(a)(6) of the Code (735 ILCS 5/2-619(a)(6)
       (West 2012)) because the clear and unambiguous terms of the release bar the cause of action
       plaintiff raises in his complaint.

¶2                                           JURISDICTION
¶3         On August 19, 2013, the circuit court dismissed plaintiff’s complaint pursuant to section
       2-619(a)(6) of the Code. 735 ILCS 5/2-619(a)(6) (West 2012). On September 13, 2013,
       plaintiff timely appealed. Accordingly, this court has jurisdiction pursuant to Illinois Supreme
       Court Rules 301 and 303 governing appeals from final judgments entered below. Ill. S. Ct. R.
       301 (eff. Feb. 1, 1994); R. 303 (eff. May 30, 2008).

¶4                                          BACKGROUND
¶5         On May 10, 2013, plaintiff filed a complaint sounding in negligence against defendants in
       regard to an October 12, 2011, car accident which resulted in damages to plaintiff’s car.
       Plaintiff alleged defendant Albertano Rodriguez, an employee and agent of defendant Quality
       Building Supply Company, drove a company owned vehicle carelessly and negligently on
       Western Avenue in Chicago, Illinois. Near 18th Place, the Quality Building Supply Company
       vehicle driven by Rodriguez struck plaintiff’s vehicle. Plaintiff alleged defendants had a duty
             1
           Defendants at all relevant times have presented a unified defense and are represented by the
       same counsel. Plaintiff alleged Rodriguez, an employee of Quality Building Supply Company, drove
       a company owned vehicle that negligently struck his vehicle. For the most part, we will refer to
       defendants collectively to avoid confusion.

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     to exercise ordinary care and caution in operating the vehicle to avoid damages to other
     vehicles on the road. As a direct and proximate result of defendants’ negligent and careless
     actions, defendants’ vehicle struck plaintiff’s vehicle. In the resulting collision, plaintiff’s
     vehicle “was damaged beyond repair.” Plaintiff asked for damages “in an amount less than ***
     $30,000.”
¶6       On May 13, 2013, defendants filed a motion to dismiss plaintiff’s complaint pursuant to
     section 2-619(a)(6) of the Code. 735 ILCS 5/2-619(a)(6) (West 2012). Defendants alleged that
     plaintiff had agreed to a release of the cause of action pursuant to a 2012 complaint plaintiff
     had filed against defendants under case number 12 L 731. Defendants argued the 2012
     complaint stemmed from the same accident that occurred on Western Avenue on October 12,
     2011. Defendants pointed out that plaintiff had been represented by counsel in the 2012
     complaint and that the clear language of the release dismissed all of plaintiff’s claims against
     defendants.
¶7       As an exhibit to their motion to dismiss, defendants attached a copy of the release. The
     release, which is titled “Release of All Claims” and references plaintiff as “I” and defendants
     as “You,” contained the following clause:
             “In consideration for the payment referenced below, I release and give up any and all
             claims and rights which I may have against you. This releases all claims, including
             those of which I am not aware and those not mentioned in this Release. This Release
             applies to claims resulting from anything which has happened up to now. I specifically
             release the following claims:
                     Any and all claims for monies for damages arising from personal injuries,
                 medical and hospital expenses, lost income, and derivative claims, or any other
                 rights I now have or may hereafter have by reason of or arising from an incident
                 which occurred on or about 10/12/2011 and which incident was the subject of an
                 action in the Circuit Court of Cook County, Illinois, bearing Docket Number 12 L
                 731, which action has been or will be dismissed with prejudice.
                     It is expressly understood and agreed that the acceptance of the said amount is
                 in full accord and satisfaction and in compromise of all disputed claims and that the
                 payment thereof is not an admission of liability, but is made for the purpose of
                 terminating all disputes and litigation between these parties.”
     In reference to payments plaintiff received, the release indicated that plaintiff had been paid
     $16,000 and that plaintiff agreed “not to seek anything further including any other payment.”
     The release also stated plaintiff was “bound by this Release” and that plaintiff “understood and
     agree[d] to the terms of [the] Release.” Plaintiff signed the release on September 26, 2012.
¶8       Plaintiff responded to defendants’ motion to dismiss on July 22, 2013, arguing that the
     terms of the release he signed were ambiguous. Therefore, plaintiff argued that parol evidence,
     in addition to further discovery,2 was needed to determine the parties’ intent. As exhibits to its
     response, plaintiff attached the following documents that pertained to the release he signed in

         2
          In addition to responding to defendants’ motion to dismiss, plaintiff also attempted to conduct
     further discovery through a motion to strike the circuit court’s briefing schedule and hearing date for
     the motion to dismiss. The circuit court denied plaintiff’s motion, and plaintiff does not challenge that
     order before this court. See Ill. S. Ct. R. 341(h)(7) (eff. Feb. 6, 2013) (“Points not argued are waived
     and shall not be raised in the reply brief, in oral argument, or on petition for rehearing.”).

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       case number 2012 L 731: plaintiff’s complaint and amended complaint; plaintiff’s answers to
       defendants’ interrogatories; the release; and the order dismissing the case with prejudice.
       Plaintiff also attached a copy of his current complaint, i.e., case number 2013 M1 12709, and
       orders filed resolving plaintiff’s attempts at conducting further discovery.
¶9         Relevant here, plaintiff’s 2012 complaint alleged defendant Albertano Rodriguez drove a
       Quality Building Supply Company vehicle into plaintiff’s lane and collided with plaintiff’s
       vehicle. The resulting “collision *** caused Plaintiff[’s] *** vehicle to be pushed off of the
       street and into a pole.” Plaintiff’s amended complaint contained similar allegations, including
       that defendants’ vehicle struck plaintiff’s vehicle. The interrogatories, dated July 13, 2012,
       included a question from defendants asking whether “any photographs [were] taken of the
       scene of the occurrence.” Plaintiff responded that his “counsel is in possession of 11
       photographs depicting the damage done to [his] vehicle as a result of the motor vehicle
       collision.”
¶ 10       Plaintiff argued that his complaint and amended complaint in case number 2012 L 731 only
       referred to his physical injuries, not damages to his property. Plaintiff also pointed out that
       defendants’ interrogatories did not seek any information as to any property damage plaintiff
       sustained in the incident or ask any questions regarding his vehicle. In addition to arguing that
       the terms of the release were ambiguous, plaintiff also argued that the release failed to make
       any reference to plaintiff’s property damage. Accordingly, plaintiff argued that his intent in
       signing the release, and the intent of the parties, was to release defendants from his bodily
       injury claims only, not any claims for damages to his vehicle.
¶ 11       It appears from the record that defendants filed a reply to plaintiff’s response to their
       motion to dismiss. The actual reply, however, is not part of the record.3
¶ 12       On August 19, 2013, the circuit court granted defendant’s motion to dismiss plaintiff’s
       complaint pursuant to section 2-619(a)(6) of the Code. 735 ILCS 5/2-619(a)(6) (West 2012).
       The circuit court reasoned that the language of the release “is clear and unambiguous and ***
       dispositive o[f] this issue.” In its written order, the circuit court similarly stated that “[t]he
       dismissal is based on the unambiguous language of the release.” On September 13, 2013,
       plaintiff filed his notice of appeal.

¶ 13                                            ANALYSIS
¶ 14       Before this court, plaintiff argues that the terms of the release are ambiguous because the
       release speaks in general terms and then subsequently itemizes specific types of claims. Due to
       this alleged ambiguity, plaintiff contends that parol evidence is necessary to determine the
       parties’ intent in agreeing to the release. Plaintiff argues that the parol evidence in this case
       shows that the parties intended the release to only apply to his bodily injuries, not to damage to
       his vehicle.
¶ 15       Defendants argue that the release must be enforced as written because its terms are clear,
       concise, and explicit. Defendants also point out that plaintiff was represented by counsel when
       he signed the release and that plaintiff’s brief before this court does not contain any allegations
       that the release had been procured by fraud, duress, mistake, or illegality. Furthermore,
           3
            Defendants’ notice of filing of its reply is included in the record but the actual reply is not in the
       record. We remind plaintiff that “[a]ny doubts which may arise from the incompleteness of the record
       will be resolved against the appellant.” Foutch v. O’Bryant, 99 Ill. 2d 389, 392 (1984).

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       defendants argue that plaintiff’s misunderstanding of the meaning of the release is a unilateral
       mistake that does not void the release.
¶ 16        A motion to dismiss pursuant to section 2-619 of the Code admits the legal sufficiency of a
       claim but asserts affirmative matter that defeats the claim. Doe v. Diocese of Dallas, 234 Ill. 2d
       393, 396 (2009). Sections 2-619(a)(1) through (a)(9) provide a list of such affirmative matter.
       735 ILCS 5/2-619(a)(1)-(9) (West 2012). Relevant here, section 2-619(a)(6) allows for the
       involuntary dismissal of a claim when “the claim set forth in the plaintiff’s pleading has been
       released.” 735 ILCS 5/2-619(a)(6) (West 2012). All facts in the pleadings, depositions, and
       affidavits found in the record may be considered upon review. Doe, 234 Ill. 2d at 396.
       Pleadings and supporting documents must be interpreted by the court in the light most
       favorable to the nonmoving party. Porter v. Decatur Memorial Hospital, 227 Ill. 2d 343, 352
       (2008). If a defendant satisfies its initial burden of presenting affirmative matter defeating a
       plaintiff’s complaint, the burden then shifts to the plaintiff to show that the asserted defense is
       unfounded or leaves unresolved issues of material fact as to an essential element. Kedzie &
       103rd Currency Exchange, Inc. v. Hodge, 156 Ill. 2d 112, 116 (1993). We review a motion to
       dismiss brought pursuant to section 2-619 of the Code de novo. Czarobski v. Lata, 227 Ill. 2d
       364, 369 (2008).
¶ 17        When reviewing a release, we apply contract law principles because a release is a contract.
       Farm Credit Bank of St. Louis v. Whitlock, 144 Ill. 2d 440, 447 (1991). Our primary objective,
       therefore, is to give effect to the parties’ intent. Gallagher v. Lenart, 226 Ill. 2d 208, 232
       (2007). “A court must initially look to the language of a contract alone, as the language, given
       its plain and ordinary meaning, is the best indication of the parties’ intent.” Id. at 233. We will
       construe the whole contract at issue, and we will not determine the intent of the parties from
       isolated provisions standing alone. Id. Clear and explicit written agreements that are
       unambiguous will be enforced as written without the assistance of extrinsic or parol evidence.
       Rakowski v. Lucente, 104 Ill. 2d 317, 323 (1984). We will only resort to extrinsic evidence to
       determine the parties’ intent where a contract is susceptible to more than one meaning.
       Gallagher, 226 Ill. 2d at 233. A self-induced or unilateral mistake is not a valid reason to set
       aside an unambiguous release. Rakowski, 104 Ill. 2d at 324.
¶ 18        After reviewing the release, we hold its terms clearly release defendants of any claim
       arising from the October 12, 2011, car accident involving plaintiff and defendants. After listing
       personal injury, medical expenses, lost income, and derivative claims, the release explicitly
       states “I specifically release the following claim[]: *** any other rights I now have or may
       hereafter have by reason of or arising from an incident which occurred on or about [October
       12,] 2011.” We cannot say that the release can be interpreted to mean anything other than the
       release of all of plaintiff’s claims against defendant arising from the October 12, 2011, car
       accident. An unambiguous release will be applied as written without the assistance of parol or
       extrinsic evidence. Rakowski, 104 Ill. 2d at 323 (“Where a written agreement is clear and
       explicit, a court must enforce the agreement as written.”); Gallagher, 226 Ill. 2d at 233 (“If the
       language of the contract is susceptible to more than one meaning, it is ambiguous.”).
       Accordingly, we hold the release plaintiff agreed to here is clear and explicit and
       unambiguously releases all claims he may have against defendants arising from the October
       12, 2011, car accident. Therefore, we will enforce the terms of the release as written, without
       looking to any extrinsic evidence.



                                                    -5-
¶ 19       Applying the terms of the release to plaintiff’s complaint in this case shows that the circuit
       court properly dismissed plaintiff’s complaint pursuant to section 2-619(a)(6) of the Code. 735
       ILCS 5/2-619(a)(6) (West 2012). Plaintiff’s complaint sought damages from defendants
       because plaintiff’s vehicle “was damaged beyond repair” in the collision that occurred with
       defendants’ vehicle on October 12, 2011. Plaintiff alleged that the damages to his vehicle were
       proximately caused by defendants’ alleged negligence. The clear terms of the release,
       however, release all of plaintiff’s claims arising from the October 12, 2011, incident with
       defendants. Accordingly, we hold the circuit court did not err when it dismissed plaintiff’s
       complaint pursuant to section 2-619(a)(6) of the Code (725 ILCS 5/2-619(a)(6) (West 2012))
       based on the unambiguous language of the release.
¶ 20       Plaintiff argues before this court that the specific language of the release controls over the
       general provisions of the release. Even if we consider the release a general release, as plaintiff
       urges us to do, his argument fails because it is well established that a general release will be
       given effect where the parties knew of an additional claim at the time of the signing of the
       release. Whitlock, 144 Ill. 2d at 447. Our supreme court has explained:
                   “Where the releasing party was unaware of other claims, Illinois case law has
               restricted general releases to the specific claims contained in the release agreement.
               [Citation.] However, where both parties were aware of an additional claim at the time
               of signing the release, courts have given effect to the general release language of the
               agreement to release that claim as well.” Id.
       Plaintiff showed, ultimately to his detriment, that both parties knew of an additional claim, i.e.,
       damage to his vehicle, when he presented his answers to defendants’ interrogatories in
       response to defendants’ motion to dismiss. In his answers to defendants’ interrogatories, which
       predate the release he later signed, plaintiff admitted that his counsel possessed “11
       photographs depicting the damage done to [his] vehicle as a result of the motor vehicle
       collision.” Although plaintiff contends the parties did not intend the release to apply to his
       property damage claims, his pleadings in response to defendants’ motion to dismiss show that
       the parties had knowledge that plaintiff’s vehicle sustained damage. Therefore, a general
       release would apply to plaintiff’s property damage claim because both parties knew of the
       damage to his vehicle. It is undisputed that the release contains several provisions that are
       general releases, including: “I release and give up any and all claims and rights which I may
       have against you”; “This releases all claims, including those of which I am not aware and those
       not mentioned in this Release”; and “This release applies to claims resulting from anything
       which has happened up to now.” Accordingly, plaintiff’s complaint also could be properly
       dismissed pursuant to section 2-619(a)(6) of the Code based on the various general provisions
       contained in the release due to the parties’ knowledge of an additional claim, i.e., the property
       damage to plaintiff’s car, at the time of the signing of the release.

¶ 21                                       CONCLUSION
¶ 22      The judgment of the circuit court of Cook County is affirmed.

¶ 23      Affirmed.




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