SECOND DIVISION

FEBRUARY 2, 1999

1-98-1277

JUSTICE COUSINS delivered the opinion of the court:

On August 21, 1997, plaintiff, Matthew A. Hurd, filed his complaint at law alleging breach of contract and breach of fiduciary duty by defendant, Wildman, Harrold, Allen & Dixon. On October 27, 1997, defendant filed its motion to dismiss plaintiff's complaint, with prejudice, pursuant to sections 2-615, 2-619(a)(6) and 2-619(a)(9) of the Illinois Code of Civil Procedure (735 ILCS 5/2-615, 2-619(a)(6), (a)(9) (West 1996)) (Code). Following hearings on the motion, the trial court found that plaintiff was not an "employee" pursuant to the Illinois Wage Payment and Collection Act (820 ILCS 115/1 et seq. (West 1996)) (Act). On March 18, 1998, plaintiff filed a motion to reconsider. Thereafter, on April 6, 1998, the court granted defendant's motion to dismiss, with prejudice, pursuant to sections 2-619 (a)(6) and 2-619(a)(9) of the Code (735 ILCS 5/2-619(a)(6), (a)(9) (West 1996)), and denied plaintiff's motion to reconsider. On appeal, plaintiff contends that the trial court erred in dismissing his complaint in that: (1) plaintiff was an "employee" as defined by the Act, thereby entitling him to separation benefits under the partnership agreement; (2) the release was executed under duress and was, therefore, unenforceable; (3) there was no additional consideration to support the general release and separation agreement between the parties; and (4) the court failed to consider the breach of fiduciary duties by defendant.

BACKGROUND

Plaintiff is an attorney licensed to practice law in the State of Illinois. Following graduation from law school in 1985, plaintiff became employed at the law firm of Wildman, Harrold, Allen & Dixon (the firm), a general partnership governed by a written partnership agreement and engaged in the general practice of law. Thereafter, in 1992, plaintiff became a nonequity partner of the firm in its Chicago office.

On or about November 3, 1994, after returning from his honeymoon, plaintiff, without consulting independent counsel, signed a general release and separation agreement (release) drafted by John Eisel, a partner and chairman of the management committee. The release provided, in pertinent part:

"13. In consideration of the Firm's promises under this Separation Agreement, [plaintiff], individually, and for your successors, assigns, heirs, and agents, and each and all of them, hereby unconditionally and forever release, acquit, and discharge the Firm, its partners, employees, agents, and attorneys from any and all claims, demands, liabilities, and causes of action of every kind, nature and description whatsoever which arise out of its/his/her/their conduct of the practice of law or the business of the Firm, whether known or unknown, or suspected to exist, which [plaintiff] ever had or may now have against the Firm, or any of the released causes of action arising from your partnership in the Firm, the Partnership Agreement, or any federal, state, or local laws or regulations, including but not limited to the Age Discrimination in Employment Act and law pertaining to breach of contract or wrongful discharge."

On August 21, 1997, almost three years following plaintiff's execution of the release, plaintiff filed his complaint at law. Count I alleged that the firm breached article VII.Q. of the partnership agreement, regarding involuntary withdrawal or death of partners, and sought $270,000 in separation benefits. Article VII. Q provided:

"If a partner's separation results from his or her involuntary withdrawal or death, the firm shall pay to the separated partner *** a sum equal to twice his or her Base Amount. Payment shall be made in one hundred twenty (120) equal monthly installments, commencing on the last day of the month in which separation occurred."

Count II of plaintiff's complaint contended that the firm breached its fiduciary duties to him by participating in numerous activities, including an unlawful withholding of plaintiff's last paycheck, "until such time that [plaintiff] was coerced into signing a purported release document in violation of the Wage Payment and Collection Act, 820 ILCS 115/9."

On October 28, 1997, the firm filed its motion to dismiss plaintiff's complaint at law, with prejudice, pursuant to sections 2-615, 2-619(a)(6) and 2-619(a)(9) of the Code (735 ILCS 5/2-615, 2-619(a)(6), (a)(9) (West 1996)). The firm contended that article II.G. of the firm's partnership agreement demonstrated that plaintiff was not entitled to separation payments. The firm further contended: (1) plaintiff's separation agreement contained a release that clearly and unambiguously released the claims brought by plaintiff in counts I and II of his complaint; (2) plaintiff failed to plead facts sufficient to allege fraud, illegality or self-dealing to support a claim for breach of fiduciary duty; and (3) there were insufficient facts alleged to justify a request for punitive damages.

On December 1, 1997, plaintiff filed his response to defendant's motion to dismiss accompanied by his affidavit attesting to the allegations contained in the complaint. On December 15, 1997, the firm filed its reply in support of its motion to dismiss.

On February 20, 1998, after hearing argument, the trial court allowed plaintiff the opportunity to file an amended affidavit setting forth facts that would satisfy his burden of showing economic duress by clear and convincing evidence in order to invalidate the release. The court further found that plaintiff was "not an employee pursuant to the Wage Payment and Collection Act, 820 ILCS 11/1 et seq. and that Plaintiff's defense to the release based on this Act is stricken."

On March 13, 1998, plaintiff filed his amended affidavit. On March 18, 1998, plaintiff filed his motion to reconsider the portion of the February 20, 1998, order finding that plaintiff was not an "employee" pursuant to the Act.

On April 6, 1998, the trial court granted defendant's motion to dismiss pursuant to sections 2-619(a)(6) and 2-619(a)(9) of the Code (735 ILCS 5/2-619(a)(6), (a)(9) (West 1996)) and dismissed the case with prejudice. The trial court further denied plaintiff's motion to reconsider. Plaintiff appeals.

We affirm.

OPINION

I

At the outset, we note that a release such as the one involved in the case at bar is the abandonment of a claim to the person against whom the claim exists and is a contract to be construed under traditional contract law. Simmons v. Blauw, 263 Ill. App. 3d 829, 832, 635 N.E.2d 601, 603 (1994). The intentions of the parties to the contract must be determined from the instrument itself. Farm Credit Bank v. Whitlock, 144 Ill. 2d 440, 447, 581 N.E.2d 664, 667 (1991). Where no ambiguity exists, construction of the instrument is a matter of law. Gavery v. McMahon & Elliott, 283 Ill. App. 3d 484, 487, 670 N.E.2d 822, 824 (1996).

We believe the release in this case is clear and unambiguous. Similarly, other courts have found that comparable language was clear and unambiguous where the releases recited that all claims known and unknown were barred. See Constant v. Continental Telephone Co. of Illinois, 745 F. Supp. 1345, 1380 (C.D. Ill. 1990); Lohman v. Morris, 146 Ill. App. 3d 457, 461, 497 N.E.2d 143, 146 (1986); Pilon v. University of Minnesota, 710 F.2d 466, 467 (8th Cir. 1983). As such, where a written agreement is clear and explicit, a court must enforce the agreement as written without the assistance of parol evidence or any extrinsic aids. Rakowski v. Lucente, 104 Ill. 2d 317, 323, 472 N.E.2d 791, 794 (1984). Once the defendant establishes the existence of a release, legal and binding on its face, the burden shifts to the plaintiff to prove it invalid by clear and convincing evidence. McComb v. Seestadt, 93 Ill. App. 3d 705, 706, 417 N.E.2d 705, 707 (1981).

Plaintiff contends that the trial court erred in dismissing his complaint and finding that plaintiff was not an "employee" within the meaning of the Illinois Wage Payment and Collection Act (820 ILCS 115/1 et seq. (West 1996)). Section 9 of the Act provides:

"In a case of a dispute over wages, the employer shall pay, without condition and within the time set by this Act, all wages or parts thereof, conceded by him to be due, leaving to the employee all remedies to which he may otherwise be entitled as to any balance claimed. The acceptance by an employee of a disputed paycheck shall not constitute a release as to the balance of his claim and any release or restrictive endorsement required by an employer as a condition to payment shall be a violation of this Act and shall be void." 820 ILCS 115/9 (West 1996).

Plaintiff argues that, based on the language of the Act, the aforementioned release is void as a matter of law and is therefore unenforceable. The firm, however, contends that the Act is inapplicable to plaintiff as a partner in a partnership.

In our view, plaintiff's reliance on the Act is misplaced. Plaintiff insists that the separation benefits he asserts he is entitled to are wages, as any compensation can be considered wages, and, as such, any releases entered into between him and the firm are void pursuant to the Act. However, article II.G. of the partnership agreement renders him ineligible to receive separation benefits, even absent the release, as the agreement states that a "non-equity partner will be treated the same as an equity partner for all tax and benefit purposes except Separation Benefits under this agreement." (Emphasis added.)

Notwithstanding the language of the agreement, plaintiff relies on Simpson v. Ernst & Young, 100 F.3d 436 (6th Cir. 1996), to support his position that a partner should be delineated an employee under the Act. In Simpson, the Sixth Circuit Court of Appeals held that a partner of a major accounting firm would be considered an employee for purposes of the Age Discrimination in Employment Act (29 U.S.C.