Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

09/17/96 G. RAYMOND GAVERY v. MCMAHON & ELLIOTT

September 17, 1996

G. RAYMOND GAVERY, PLAINTIFF-APPELLANT,
v.
MCMAHON & ELLIOTT, DEFENDANT-APPELLEE, AND ROOKS, PITTS & POUST, AND DAVID J. PRITCHARD, DEFENDANTS.



Appeal from the Circuit Court of Cook County. Honorable Kathy M. Flanagan, Judge Presiding.

Released for Publication October 22, 1996.

Presiding Justice Hartman delivered the opinion of the court: Scariano and DiVITO, JJ., concur.

The opinion of the court was delivered by: Hartman

PRESIDING JUSTICE HARTMAN delivered the opinion of the court:

Plaintiff G. Raymond Gavery appeals from the circuit court's order granting defendant McMahon & Elliott's motion to dismiss based upon a release claiming error in the court's failure to find that the release excluded Gavery's instant claim against defendant and was unsupported by consideration. Only defendant McMahon & Elliott is involved in this appeal.

On April 5, 1989, Gavery, a physician, entered into an asset purchase agreement (Purchase Agreement) and a non-competition agreement (collectively Agreements) with Primary Care Family Center (PCFC) in which PCFC purchased his medical practice and Gavery agreed not to compete with PCFC in exchange for 10% of PCFC's gross cash revenue over a 10-year period. Gavery was represented by McMahon & Elliott (hereinafter defendant), a law firm, in connection with the Agreements.

In March of 1990, a dispute arose between PCFC and Gavery regarding whether certain credits were to be applied against the purchase price. Gavery was then represented by Rooks, Pitts & Poust in relation to this dispute. Defendant refused to cooperate with Rooks, Pitts & Poust unless Gavery released defendant from any claims he might have against it.

Rooks, Pitts & Poust advised Gavery he might have "certain claims" against defendant for failing to counsel him properly regarding the draft of the Purchase Agreement. According to Gavery, the only claim discussed with defendant was the claim relating to the credits and neither Rooks, Pitts & Poust nor defendant advised Gavery that he "might have a claim against [defendant] for the failure to properly structure the sale to comply with The Illinois Medical Practice Act." In order to secure defendant's cooperation, Gavery executed a release.

In May of 1993, PCFC filed an action for declaratory relief, seeking to void the non-competition agreement as violative of the Medical Practice Act of 1987 (the Act). 225 ILCS 60/1 et seq. (West 1992). Due to the conflict between the non-competition agreement and the Act, Gavery had to settle his claim.

Gavery thereafter filed this action, contending: (1) defendant and Rooks, Pitts & Poust breached their contracts for legal services in failing to advise him properly about the validity of the non-competition agreement; and (2) defendant and Rooks, Pitts & Poust were negligent in failing to advise him that the non-competition agreement may be in violation of the Act. Gavery subsequently filed an amended complaint adding another count of negligence against Rooks, Pitts & Poust for failing to inform him of the full extent of his claims against defendant. Defendant subsequently filed a section 2-619 motion (735 ILCS 5/2-619 (West 1994) (section 2-619)) to dismiss Gavery's amended complaint, arguing the release barred the claims. Gavery's response to the motion, supported by his affidavit, claimed that he knew about only one claim against defendant, which related to the dispute with PCFC regarding whether credits were to be applied against the purchase price. The circuit court granted defendant's motion to dismiss, noting that the release was very specific and unambiguous. Gavery appeals.

I

Gavery initially contends the circuit court erred in granting defendant's motion to dismiss because the release does not apply to claims not contemplated by the parties.

Section 2-619 provides a mechanism to dispose of issues of law or easily proved issues of fact. Glassie v. Papergraphics, Inc., 248 Ill. App. 3d 621, 624, 618 N.E.2d 885, 188 Ill. Dec. 315 (1993). A dismissal on the pleadings is warranted only where it is clearly apparent that no set of facts can be proved which would entitle plaintiff to recover. Wood v. Village of Grayslake, 229 Ill. App. 3d 343, 593 N.E.2d 132, 170 Ill. Dec. 590 (1992). A motion brought under this section admits all well pleaded facts. Geick v. Kay, 236 Ill. App. 3d 868, 873, 603 N.E.2d 121, 177 Ill. Dec. 340 (1992).

Releases are governed by contract law; accordingly, the intention of the parties to a release must be determined from the instrument itself, and construction of the instrument, where no ambiguity exists is a matter of law. Farm Credit Bank v. Whitlock, 144 Ill. 2d 440, 447, 581 N.E.2d 664, 163 Ill. Dec. 510 (1991) (Whitlock). The construction of an ambiguous release is a question of fact ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.