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In re Estate of Constantine

May 20, 1999

IN RE: ESTATE OF NICHOLAS J. CONSTANTINE, DECEASED, FRANK POLLACK AND BYRON WEIS, CLAIMANTS/THIRD-PARTY PLAINTIFFS/APPELLANTS,
v.
ESTATE OF NICHOLAS J. CONSTANTINE, RESPONDENT, AND THE LURIE COMPANY, THIRD-PARTY DEFENDANT/ APPELLEE.



Appeal from the Circuit Court of Cook County. 96 P 1535 Honorable Jeffrey A. Malak, Judge Presiding.

The opinion of the court was delivered by: Justice Wolfson

The question: When is a document entitled "Release" not a release?

Our answer: When the people who sign it intend it to be something else.

In this case, the trial court determined the "Release And Settlement Agreement" was intended by the signators to be a covenant not to sue. We agree, and we affirm the trial court's grant of summary judgment.

FACTS

This appeal centers around three leases. The Lurie Company (Lurie) is the lessor. The lessees are plaintiffs Frank Pollack and Byron Weis, partners in the law firm of Pollack and Weis, and Nicholas J. Constantine, now deceased. Though Constantine was an attorney, he was not a member of the Pollack and Weis firm.

Pollack, Weis, and Constantine, as joint and several tenants, leased Suite 2900 (lease No.1) in the American National Bank Building; Storeroom S/B 15A (lease No.2); and Storeroom 2360 (lease No.3). Leases No.1 and No.2 ran from January 1, 1993, to December 31, 2002, while lease No.3 ran from May 1, 1993, through December 31, 2002. Based on the square footage of the space occupied, Constantine was required to pay Pollack and Weis, 23.2% of the total rent due (about $1650 per month). Pollack and Weis then sent a single check to Lurie.

Constantine died on December 30, 1995. Constantine's Estate (the Estate) continued to pay Constantine's share of the rent through September 1996. However, by October 1, 1996, the Estate relinquished the leased space and stopped making rent payments to Pollack and Weis.

On October 1, 1996, Lurie, at the urging of Pollack and Weis, filed a contingent claim against the Estate. Though there had never been a default on the leases, the claim was made to settle the issue of the Estate's potential liability under the leases.

On October 2, 1996, Pollack and Weis filed their claim against the Estate, seeking the balance of Constantine's rent obligation under the lease.

On October 28, the court issued an agreed order based on a settlement reached between Lurie and the Estate. The order was amended on November 13, 1996, nunc pro tunc, and states in pertinent part: "It is hereby ordered that The Lurie Company claim in the amount of $7,500 is hereby allowed as a Class 7 claim in full satisfaction and release of the liability of the Estate of Nicholas J. Constantine, only, under the subject lease and all matters set forth in the claim, with it being specifically provided that this order does not cause the liability of Frank S. Pollack and Byron H. Weis under the lease and for matters set forth on the claim to be released."

In conjunction with this agreed order, Lurie, through its property manager, Fern Jaffe, signed a release agreement at the request of the Estate's attorney. The release agreement states:

"In consideration of the allowance of a claim against the Releasee in the sum of SEVEN THOUSAND AND 00/100 DOLLARS ($7,500), the receipt and sufficiency of which are hereby acknowledged, Releasor releases, remises, and forever discharges Releasee and its beneficiaries and representatives from any and all claims, actions, causes of action, suits, judgments, damages, debts, obligations, and demands of any nature, present and future, known or unknown, arising since the beginning of time and up to and including the date of these presents, and particularly, but without limiting this general release, on account of all rent, damages, and penalties arising out of or related to the Lease dated December 16, 1992, and all matters raised in the Probate Claim filed by Releasor and Releasee."

On March 12, 1997, Pollack and Weis amended their claim against the Estate to add a third-party claim against Lurie. In this third-party complaint, Pollack and Weis alleged the release agreement signed by Lurie, being a general release given to Constantine's Estate, acted to release Pollack and Weis, as co-obligors under the lease, from any obligation to pay Constantine's share of the rent obligation for the remainder of the lease period. Pollack and Weis requested a declaration that their obligation to pay Constantine's share had ...


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