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Artoe v. Navajo Freight Lines

OPINION FILED OCTOBER 13, 1978.

LEE ARTOE, PLAINTIFF-APPELLANT,

v.

NAVAJO FREIGHT LINES, INC., ET AL., DEFENDANTS-APPELLEES.



APPEAL from the Circuit Court of Cook County; the Hon. DANIEL P. COMAN, Judge, presiding.

MR. JUSTICE MEJDA DELIVERED THE OPINION OF THE COURT:

Plaintiff appeals from an order entered on June 22, 1977. The order both denied the plaintiff's motion to vacate the court's order of May 26, 1977, which dismissed all remaining defendants except Lee's Towing Service and allowed Lee's Towing Service's motion for dismissal pursuant to section 48(1)(f) of the Civil Practice Act. (Ill. Rev. Stat. 1975, ch. 110, par. 48(1)(f).) The issues on appeal are whether the orders of dismissal of May 26, 1977, and June 22, 1977, were properly allowed. We affirm. The pertinent facts are as follows.

Plaintiff claims to be the owner of a building at 1241-1243 West Belmont Avenue in Chicago. There is a building to the west of plaintiff's building at 1245-1247 West Belmont Avenue and vacant land to the west of the 1245-1247 building. Plaintiff claims to own, lease or control this vacant land. He states that on May 21, 1974, he parked two of his automobiles on the vacant land and that unknown defendants had his cars ticketed. He further states that defendants falsely accused him of disturbing the peace and had him arrested. He also alleges that Lee's Towing Service removed his two cars from the vacant lot.

The next day, May 22, 1974, plaintiff filed a four-count complaint and a jury demand naming Navajo Freight Lines, Inc. (Navajo), Raymond Brown, John Frawley, police officers Kunkel, Pierce and Mannion, unknown signers of parking complaints and unknown owners of Lee's Towing Service as defendants. Count I alleged false imprisonment against all defendants. Count II alleged that Officers Mannion and Pierce and unknown signers of a traffic complaint had affixed traffic summons to plaintiff's two cars on the vacant lot without cause to believe a violation had occurred. Count III alleged trespass against Lee's Towing Service. Count IV alleged basically the same cause as count I. This complaint was stricken for failure to state a cause of action. The first amended complaint was also stricken.

In the second amended complaint, plaintiff added Monticello Realty Corporation (Monticello), Core Metal Products Co. (Core), Kaman Tool Corporation (Kaman), The American National Bank and Trust Company, as trustee (Bank), police officers K. Keeler and M. Siles, Ron Roderweiss and Thomas J. Brouder as defendants. From a memorandum attached to plaintiff's motion to vacate the order of May 26, 1977, plaintiff alleges that the Bank was the trustee for an unknown beneficiary in the building located at 1245-1247 West Belmont, immediately west of plaintiff's building. Monticello was the managing agent for this building and Brouder was an employee of Monticello. Core and Kaman were the tenants of the 1245-1247 building on May 21, 1974. As to these newly added defendants, plaintiff alleged Roderweiss, Kaman and Monticello were liable with Mannion and Pierce for falsely ticketing his cars on May 21, 1974. In addition, he alleged that Brouder, in his own behalf, and/or as agent for Monticello and/or the Bank, called defendant Siles who ticketed plaintiff's car on September 6, 1974, and defendant Keeler who ticketed plaintiff's car on September 10, 1974. Plaintiff also alleged harm to his automobile was caused by Core, Kaman, Monticello and the Bank, when they caused debris to be deposited on the car over a four-month period. Count III alleged the false imprisonment against the original defendants. Count IV alleged slander by Navajo, Brown, Frawley, Kunkel, Mannion, Pierce, Roderweiss, Core, Kaman and Monticello apparently from the events of May 21, 1974. This second amended complaint was also stricken.

A third amended complaint was filed adding two new counts for negligence and abuse of process but omitting allegations regarding the ticketing of September 6 and September 10, 1974, and the depositing of debris on plaintiff's car by defendants. The complaint also omitted Siles, Keeler, Kaman, Core and Brouder as defendants. This complaint was amended by a fourth amended complaint to cite the statutorily required service of notice to the City of Chicago. Ill. Rev. Stat. 1973, ch. 85, par. 8-102.

At about this time, plaintiff claims he purchased the beneficial interest in the building at 1245-1247 West Belmont from the Bank and felt that any question of liability on the part of the Bank, Monticello or Brouder was moot. On January 6, 1976, he signed a sealed instrument releasing the Bank, Monticello and Brouder from all liability in this cause of action. A stipulated order of dismissal with prejudice, incorporating this release, was entered February 5, 1976, dismissing the released parties and Core and Kaman, the tenants of the purchased property.

Plaintiff later withdrew his fourth amended complaint and filed a fifth amended complaint which was stricken as to form. A sixth amended complaint was filed containing six counts and alleged causes of action against the remaining defendants for false imprisonment, malicious prosecution, abuse of process, trespass, negligence and slander, all based on the events of May 21, 1974. All defendants filed answers to this complaint except Roderweiss who moved to be dismissed pursuant to section 48(1)(f) of the Civil Practice Act. (Ill. Rev. Stat. 1975, ch. 110, par. 48(1)(f).) Roderweiss based his motion on the ground that all defendants in this action had been named as joint tortfeasors and that the release of the Bank, Monticello, and Brouder by plaintiff on January 6, 1976, released all joint tortfeasors. The other defendants except Lee's Towing Service moved to withdraw their answers and joined in Roderweiss' motion for dismissal. Plaintiff filed an answer to this motion contending that all defendants were not joint tortfeasors but were liable for their separate and independent acts. After responses by all parties and a hearing, an order dismissing with prejudice all defendants except Lee's Towing Service was entered on May 26, 1977. A motion by plaintiff to vacate this order of dismissal and a concurrent motion by Lee's Towing Service for its dismissal based on the release were heard. Plaintiff's motion to vacate the order of May 26 was denied, and Lee's Towing Service's motion for dismissal with prejudice was allowed. The trial court found the release to be a general release which discharged all defendants alleged to have been joint tortfeasors. Plaintiff then brought a timely appeal.

OPINION

• 1 At the outset we note one defendant, Ron Roderweiss, has not filed a brief in this appeal. This does not require automatic reversal of the trial court's order of his dismissal, however. As indicated in First Capitol Mortgage Corp. v. Talandis Construction Corp. (1976), 63 Ill.2d 128, 345 N.E.2d 493, where the record is simple and the claimed errors are such that an appellee's brief is unnecessary, a court of review should decide the merits of the appeal. This is especially true here since all the issues on appeal are adequately briefed by the other defendants-appellees. In view of this we proceed to determine the merits of the appeal for all parties.

• 2 The plaintiff does not challenge the validity of the release executed by him on January 6, 1976. The release was under seal and recited that it was made "for and in consideration of good and valuable considerations." A release for a consideration is conclusively presumed to be given in full satisfaction of the injury. (Witek v. Leisure Technology Midwest, Inc. (1976), 39 Ill. App.3d 637, 640; 350 N.E.2d 242, 245.) "A release, in essence, is the abandoning of a claim to the person against whom the claim exists and where the release is executed with knowledge of its meaning, causes of action covered by the release are barred." (Ogren v. Graves (1976), 39 Ill. App.3d 620, 622, 350 N.E.2d 249, 251.) Since plaintiff does not make any claim of fraud or invalidity as to the release, the question is what causes of action did he release.

The pertinent portion of the instrument reads:

"* * * Lee Artoe hereby releases and forever discharges The American National Bank and Trust Company of Chicago, Trust No. 27391, Monticello Realty Corporation, an Illinois corporation, and Thomas Brouder, * * * from all manner of actions, cause, and causes of action, suits, debts, sums of money, accounts, reckonings, bonds, bills, specialties, covenants, controversies, agreements, promises, variances, trespasses, damages, judgments, executions, claims and demands, whatsoever, in law or in equity, and particularly, without limiting the generality of the foregoing, all claims made by Lee Artoe in that certain law suit known as Lee Artoe vs. Navajo Freight Lines, et al., Case No. 74 L 8001, in the Circuit Court of Cook County * * *."

What is included in "all manner of actions, cause, and causes of action"? In the case of Pierog v. H.F. Karl Contractors, Inc. (1976), 39 Ill. App.3d 1057, 351 N.E.2d 249, the court defined cause of action for purposes of res judicata. That definition would be applicable to the question of what is precluded by a release since the inquiry in both cases is what elements or actions are barred in a ...


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