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02/11/88 Aqua-Aerobic Systems, Inc. v. Richard B. Ravitts

February 11, 1988

AQUA-AEROBIC SYSTEMS, INC., PLAINTIFF-APPELLANT

v.

RICHARD B. RAVITTS, DEFENDANT-APPELLEE



APPELLATE COURT OF ILLINOIS, SECOND DISTRICT

520 N.E.2d 67, 166 Ill. App. 3d 168, 117 Ill. Dec. 77 1988.IL.190

Appeal from the Circuit Court of Winnebago County; the Hon. Galyn W. Moehring, Judge, presiding.

APPELLATE Judges:

JUSTICE INGLIS delivered the opinion of the court. LINDBERG, P.J., and WOODWARD, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE INGLIS

Plaintiff, Aqua-Aerobic Systems, Inc., as successor in interest to an employment agreement (Agreement) containing a restrictive covenant, appeals from the judgment of the circuit court which dismissed its complaint alleging the breach of that covenant and requesting injunctive and other relief from defendant, Richard Ravitts. On appeal, plaintiff contends that the termination agreement (Release) entered into by defendant and Richards of Rockford, Inc. (Richards), plaintiff's predecessor in interest, did not relieve defendant from the earlier restriction not to compete included in his original employment agreement with Richards. Plaintiff also contends that the trial court erred when it dismissed its complaint pursuant to section 2- 619 of the Code of Civil Procedure (Ill. Rev. Stat. 1985, ch. 110, par. 2-619) as defendant's promise not to compete was valid and enforceable by plaintiff. For the reasons set forth below we affirm.

The following facts form the basis for this appeal. On April 2, 1987, plaintiff filed a complaint against defendant wherein it alleged that: (1) on July 21, 1983, defendant and Richards entered into a written employment agreement whereby Richards, a manufacturer of aerators, mixers and clarifiers, appointed defendant as a sales agent; (2) under this agreement, defendant agreed not to compete with Richards for one year after the termination of the agreement in the sale of equipment manufactured by Richards; (3) on November 26, 1986, the parties terminated the employment agreement; (4) on November 30, 1986, plaintiff acquired substantially all the business assets of Richards, which included all the rights of Richards under the agreement; and (5) defendant attempted to sell aerators in competition with plaintiff, d/b/a Richards of Rockford, within one year after the termination of the agreement. In its complaint plaintiff requested that the court issue a preliminary injunction to restrain defendant from selling aerators until November 26, 1987, in addition to an award of contract damages.

On April 23, 1987, defendant filed a motion to dismiss pursuant to section 2-619 of the Code of Civil Procedure (Ill. Rev. Stat. 1985, ch. 110, par. 2-619) wherein he alleged that the restrictive covenant at issue was unenforceable because it was: (1) vague and unspecific; (2) geographically unbounded, and, therefore, an unnecessary restraint of trade; and (3) designed to prevent competition. The motion to dismiss also contended that the complaint failed to state a cause of action in that it failed to allege that any trade secrets or confidential information were involved, or the recitation of facts which demonstrated that the restriction was necessary for the protection of plaintiff's legitimate business interest. Finally, defendant maintained that an agreement, dated November 26, 1986, constituted a complete release of all mutual obligations under the July 21, 1983, agreement.

At the hearing held on defendant's motion to dismiss, the court allowed plaintiff to file an amended complaint. This complaint added that defendant had used confidential information of Richards acquired during his employment by Richards when he attempted to sell aerators in competition with plaintiff, d/b/a Richards of Rockford, in breach of the employment agreement. It also alleged that enforcement of the agreement is necessary to protect plaintiff's legitimate business interests.

The court held a hearing on April 23, 1987, and on May 5, 1987, the court entered an order which dismissed the complaint. Specifically, the court's order found that the agreement dated November 26, 1986, constituted a full and complete release of the parties' obligations to each other under the July 21, 1983, agreement. Plaintiff then filed a timely notice of appeal.

Plaintiff sets forth two arguments on appeal. First, plaintiff argues that under general law regarding construction of releases, the release agreement between defendant and Richards did not release defendant from his earlier promise not to compete which is included in the original employment agreement. In this regard plaintiff maintains that the release is not clearly written, and, as a result, the court should have considered parol evidence to determine the parties' intent. Indeed, it is plaintiff's position that the language of the termination agreement, on its face, cannot be construed to intend anything more than to terminate defendant's employment and, in consideration of the payment of $5,500, release Richards from any further obligations to pay defendant commissions. In its second argument, plaintiff contends that since the complaint sets forth a claim for breach of a restrictive covenant not to compete, and defendant's motion failed to raise affirmative matter with which to defeat plaintiff's claim, the court erred when it dismissed the complaint pursuant to section 2 -- 619(a)(9). As we agree with the trial court that the release constituted a release of all the parties' obligations to each other under the employment agreement, we find it unnecessary to discuss the validity of the restrictive covenant.

The release in the present case states:

"In Consideration of ($1,350.00) One-Thousand Three Hundred and Fifty Dollars for month ending November 30, 1986 and ($4,200.00) Four-Thousand Two Hundred Dollars for Fulfillment of All oblications [ sic ] of Employment past, present and future of Contract Dated July 21, 1983 between Richards of Rockford, Inc. 515 Grable St., Rockford, Ill. and Richard B. Ravitts."

The release is dated November 26, 1986, and includes the signatures of Gary Anderson, the president of Richards, and Richard B. Ravitts. The release also states: ...


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