FOURTH DIVISION
February 3, 2005

JUSTICE THEIS delivered the opinion of the court:

Plaintiff Michael Jordan sought a declaratory judgment that a contract asserted bydefendant Karla Knafel was extortionate and void against public policy. Knafel filed acounterclaim, alleging that Jordan owed her $5 million for breach of a confidential settlementagreement. The trial court dismissed the complaint and counterclaim, finding that Jordan failed toallege an actual controversy and that Knafel's alleged contract was unenforceable. Subsequently,Knafel's motion for leave to amend her counterclaim was denied.

On appeal, Knafel contends that the trial court erred in holding that the contract wasunenforceable as extortionate and that it violated public policy. Jordan cross-appeals, contendingthat the trial court erred in dismissing his declaratory judgment action where there was an actualdisagreement between the parties as to their respective legal obligations. For the followingreasons, we affirm in part, reverse in part, and remand for further proceedings.

BACKGROUND

On October 23, 2002, Jordan filed a complaint for a declaratory judgment and injunctiverelief against Knafel, a woman with whom he had an intimate relationship. Therein, he allegedthat Knafel, through her attorneys, was attempting to extort money from Jordan by threatening topublicly expose their relationship unless Jordan paid Knafel $5 million. He further alleged thatKnafel had previously extorted $250,000 from him under threat of publicly exposing theirrelationship. Jordan denied that he agreed to pay Knafel $5 million pursuant to a purportedsecond agreement and sought a declaratory judgment that her demand for payment wasunenforceable because (i) extortionate agreements violate public policy; (ii) there would be noconsideration to support any such agreement due to Knafel's existing obligation not to publiclyexpose their relationship; (iii) any such agreement would violate the statute of frauds becausethere is no agreement in writing; and (iv) any such agreement would be barred by the statute oflimitations. Additionally, Jordan sought an order enjoining Knafel, and any other persons actingon her behalf, from engaging in further efforts to extort money from him.

Knafel responded to the complaint by filing a verified answer and affirmative defensesdenying the material allegations of the complaint. Therein, she admitted that Jordan paid her$250,000, but stated that it was for her mental pain and anguish arising from their romanticrelationship. In addition, Knafel filed a verified counterclaim asserting theories of breach ofcontract and anticipatory breach of contract based on Jordan's alleged breach of his promise topay Knafel $5 million "when he retired from professional basketball in exchange for her agreementnot to file a paternity suit against him and for her agreement to keep their romantic involvementpublicly confidential." The following relevant facts were alleged in the verified counterclaim.

In the spring of 1989, Knafel was performing in a band at a hotel in Indianapolis, Indiana. The Chicago Bulls were in town to play the Indiana Pacers. After her performance, Knafel wasintroduced to Jordan over the telephone by Eddie Rush, a National Basketball Associationreferee, who had approached Knafel at the hotel. Knafel declined an invitation from Jordan tomeet him at the Indianapolis airport and continued to decline his invitations to meet during thespring and summer of 1989. Nevertheless, Jordan and Knafel continued long-distance telephoneconversations during that time.

On September 2, 1989, Jordan married his wife, Juanita. In December 1989, Knafeltraveled to Chicago to meet Jordan, where they had unprotected sex. Thereafter, in November1990, Knafel stayed with Jordan in Phoenix, Arizona, where they again had unprotected sex.

In early 1991, Knafel learned that she was pregnant. She believed the baby was Jordan's, but keptsilent about the pregnancy for some time. The Bulls were on their way to their first NBAchampionship. Jordan's product endorsements were earning him large sums of money. Knafelalleged that as a result, Jordan was "troubled" when she told him she was pregnant with his childin the spring of 1991. He was worried about destroying his public image, which he and his agenthad carefully cultivated, and was concerned about the loss of future endorsements. Knafel furtheralleged that Jordan demanded that she abort the baby, but because of her personal beliefs, sherefused.

According to Knafel, in the spring of 1991, Jordan offered, and urged Knafel to accept, hisproposed settlement agreement to resolve their problems. Jordan offered to pay her "$5 millionwhen he retired from professional basketball in return for her agreement not to file a paternity suitagainst him in a court of law and for her agreement to keep their romantic involvement publiclyconfidential." Knafel accepted Jordan's offer. In consideration for his promise to pay her, sheagreed to forbear filing a public paternity action against him and agreed to keep their romanticrelationship confidential.

In July 1991, Knafel's child was born. Jordan paid certain hospital bills and medical costsand paid Knafel $250,000 for "her mental pain and anguish arising from her relationship withhim." Knafel did not file a paternity suit against Jordan and she kept their relationshipconfidential. In October 1993, Jordan announced his retirement from the Bulls. However, inMarch of 1995, he returned to the NBA again to play for the Bulls. Knafel had not contactedJordan to demand her payment of the $5 million amount which he had allegedly promised her in1991. In September 1998, Knafel approached Jordan while he was vacationing in Las Vegas. During their conversation, Knafel reminded Jordan of his obligation to pay her the money undertheir agreement. Knafel alleged that Jordan reaffirmed his agreement to pay her the $5 million. Afew months later, Jordan retired from professional basketball again.

Two years later, Knafel's counsel contacted Jordan's counsel to resolve their contractdispute. Jordan denied that he had promised to pay Knafel $5 million. Knafel's counterclaimsought $5 million for breach of contract. Additionally, at the time Knafel filed her counterclaim, itwas alleged that Jordan was playing basketball for the Washington Wizards. Accordingly, shealso alleged an anticipatory breach of their 1991 contract and 1998 reaffirmation.

Thereafter, Jordan filed a hybrid motion for judgment on the pleadings, which wasdirected to his complaint, and a motion to dismiss Knafel's counterclaim pursuant to section 2-615 of the Illinois Code of Civil Procedure (the Code) (735 ILCS 5/2-615 (West 2002)). Therein, Jordan argued that the alleged agreement was unenforceable because it violated publicpolicy or, in the alternative, that it was induced by fraud or mutual mistake of fact regarding thepaternity of her child. The trial court initially struck the allegations raised in the motion forjudgment on the pleadings that went beyond those pled in the declaratory judgment complaint,and struck the exhibits attached to Knafel's response brief. The court further declined to proceedwith a hearing on the combined motions, and by agreement of the parties, proceeded to hear themotion for judgment on the pleadings. Jordan was then granted leave to file a separate motion todismiss the counterclaim. Thereafter, Jordan filed his motion to dismiss the counterclaim pursuantto section 2-615 of the Code. He argued that the alleged agreement was unenforceable because(1) it was contrary to public policy; (2) it was fraudulently induced; and (3) if not fraudulentlyinduced, it was based on a mutual mistake of fact as to paternity.

After a separate hearing on both motions, the trial court dismissed Jordan's complaint fordeclaratory judgment and denied his motion for judgment on the pleadings. The court found thatJordan failed to allege an actual controversy and that issuing a declaratory judgment on ahypothetical contract would constitute the rendering of an advisory opinion. The trial courtfurther dismissed the counterclaim, finding the agreement to be extortionate and against publicpolicy. Knafel subsequently filed a motion for leave to amend her verified counterclaims. Therein, she added a count for promissory and equitable estoppel and common law fraud. Hermotion for leave to amend her verified counterclaims was denied.

ANALYSIS

Knafel initially contends that the trial court erred in dismissing her counterclaim andfinding the alleged $5 million contract unenforceable as extortionate and against public policy. This issue comes before this court on a motion to dismiss the counterclaim pursuant to section 2-615 of the Code (735 ILCS 5/2-615 (West 2002)). A section 2-615 motion attacks thesufficiency of the counterclaim and raises the question of whether the allegations, when viewed inthe light most favorable to the plaintiff, are sufficient to state a cause of action upon which reliefcan be granted. 735 ILCS 5/2-615 (West 2002); Wallace v. Smyth, 203 Ill. 2d 441, 447, 786N.E.2d 980, 984 (2002). Further, the trial court should dismiss the cause of action only if it isclearly apparent that no set of facts can be proven which will entitle the plaintiff to recovery. Canel v. Topinka, 212 Ill. 2d 311, 317, 818 N.E.2d 311, 317 (2004). All well-pleaded facts aretaken as true and all reasonable inferences that can be drawn from those facts are drawn in favorof the plaintiff. Bryson v. News America Publications, Inc., 174 Ill. 2d 77, 86, 672 N.E.2d 1207,1213 (1996).

In the present case, Jordan does not assert that Knafel failed to properly plead theelements of the claims asserted in her counterclaims. Rather, Jordan asserts that the contract isunenforceable because it is against public policy. That argument appears on the face of thepleadings and is therefore "peculiarly within the area of confluence between section 2-615 and 2-619(a)(9)." Illinois Graphics Co. v. Nickum, 159 Ill. 2d 469, 486, 639 N.E.2d 1282, 1290(1994). Accordingly, we may review Jordan's motion pursuant to section 2-615(a), and ourreview is de novo. Wallace, 203 Ill. 2d at 447, 786 N.E.2d at 984.

We must begin our analysis with the premise that Illinois public policy strongly favorsfreedom to contract, and courts will not declare a contract illegal unless it expressly contravenesthe law or a known public policy of this state. H&M Commercial Driver Leasing, Inc. v. FoxValley Containers, Inc., 209 Ill. 2d 52, 57, 805 N.E.2d 1177, 1180 (2004). Public policy is thelegal principle that no one may lawfully do that which has the tendency to injure the welfare of thepublic. O'Hara v. Ahlgren, Blumenfeld & Kempster, 127 Ill. 2d 333, 341, 537 N.E.2d 730(1989). Thus, agreements are not void as against public policy unless they are " 'clearly contrary to what the constitution, the statutes or thedecisions of the courts have declared to be the public policy orunless they [are] manifestly injurious to the public welfare.' " H&MCommercial Driver Leasing, Inc., 209 Ill. 2d at 57, 805 N.E.2d at1180, quoting Schumann-Heink v. Folsom, 328 Ill. 321, 330, 159N.E. 250, 254 (1927).

The question of whether a contract is injurious to the public welfare is ultimately a conclusion oflaw (Rome v. Upton, 271 Ill. App. 3d 517, 520, 648 N.E.2d 1085, 1087-88 (1995)), and turnson the particular facts and circumstances of each case (O'Hara, 127 Ill. 2d at 341-42, 537 N.E.2dat 734).

In arguing that the alleged contract is unenforceable, Jordan asks this court to adopt apublic policy in Illinois that all contracts involving the payment of money in exchange for silenceare inherently extortionate. In contrast, Knafel argues that the trial court's ruling that the contractis extortionate would render all valid settlement agreements that incorporate a term ofconfidentiality to be against public policy. We make neither ruling today, but, rather, consider thelaw as it applies to the facts and circumstances presented by this case under the proceduralposture before us.

Not all contracts for silence violate public policy. Rather, there is a presumption ofvalidity and enforceability attaching to settlement agreements which include confidentialityprovisions. Fidelity Financial Services, Inc. v. Hicks, 267 Ill. App. 3d 887, 892, 642 N.E.2d 759,762 (1994) (confidentiality clauses are common attributes of settlement agreements). Confidentiality agreements have often been utilized in various settings to protect the disclosure ofvaluable information. See, e.g., Coady v. Harpo, Inc., 308 Ill. App. 3d 153, 719 N.E.2d 244(1999) (confidentiality agreement restricting ability of former senior associate producer for well-known television talk show to disseminate confidential information she obtained while in theemploy of the show's maker was reasonable and enforceable). However, we also recognize thatthere are contracts for silence that are unenforceable. For example, they may suppressinformation about harmful products or information about public safety, they may conceal criminalconduct, or they may constitute extortion or blackmail. See generally, Garfield, Promises ofSilence: Contract Law and Freedom of Speech, 83 Cornell L. Rev. 261 (1998).

In Illinois, "extortion" and "blackmail" are synonymous terms. Becker v. Zellner, 292 Ill.App. 3d 116, 129, 684 N.E.2d 1378, 1388 (1997), citing People v. Mahumed, 381 Ill. 81, 84, 44N.E.2d 911 (1942). Blackmail has been defined as "[a] threatening demand made withoutjustification." Black's Law Dictionary 163 (7th ed. 1999). The gravamen of these offenses is theexercise of coercion or an improper influence. People v. Hubble, 81 Ill. App. 3d 560, 564, 401N.E.2d 1282, 1285 (1980). While Jordan does not argue that the alleged agreement isextortionate in the criminal sense, he argues that it is extortionate because the agreement involvesthe exchange of money for silence, which is inherently coercive and exploitive. He relies on thecase of In re Yao, 661 N.Y.S.2d 199, 231 A.D.2d 346 (1997), for support.

In Yao, an attorney brought a breach of contract action against Mr. Bult, a wealthyfinancial executive with whom he had a brief, intimate relationship. In his complaint, the attorneyalleged that he and Bult had entered into an enforceable oral contract pursuant to which Bultagreed to pay him $10,000 per month for life in exchange for his promise not to publicize certainembarrassing information about Bult's personal life. Bult refused to abide by such an agreementand the attorney filed the complaint. Bult moved to dismiss the complaint for failure to state acause of action upon which relief could be granted. Yao, 661 N.Y.S.2d at 200-201, 231 A.D.2dat 347-48. The trial court found the alleged oral agreement to be illegal, finding it "nothing morethan an attempt to extort money from an apparently wealthy but vulnerable individual." Yao, 661N.Y.S.2d at 201, 231 A.D.2d at 348.

Yao is distinguishable from the present case. Here, Knafel's promise is twofold. UnlikeYao, we are not examining an exchange of money for silence in a vacuum but rather must look atthe contract as a whole. Owens v. McDermitt, Will & Emory, 316 Ill. App. 3d 340, 344, 736N.E.2d 145, 150 (2000) (contracts must be interpreted as a whole rather than focusing on isolatedportions). Knafel allegedly approached Jordan with the fact that she was pregnant with his child. According to the complaint, she alleged that based upon that statement, Jordan subsequentlyapproached her with a proposed settlement agreement, and "[t]hey discussed possible resolutionsof their dilemma." If she agreed to forbear filing a paternity action and to remain silent about thedetails of their affair, he would pay her $5 million when he retired from professional basketball. Accordingly, here, there is an alleged nexus to a good-faith claim of right, a right to file apaternity action, which distinguishes this case from Yao and makes the alleged exchange one thatis not necessarily a demand without legal justification or motivated by an improper influence.

The case of Kaplan v. Kaplan, 25 Ill. 2d 181, 182 N.E.2d 706 (1962), is instructive. There, a husband and wife in the midst of a divorce entered into a property settlement agreement. Three years later, the husband filed a complaint, alleging that the agreement had been entered intoas the result of duress. He alleged that during the pendency of their separate maintenance action,his wife threatened to publicize embarrassing photographs depicting immoral behavior betweenthe husband and another woman by suing the other woman for alienation of affections. Underduress, he agreed to sign the property settlement agreement. Kaplan, 25 Ill. 2d at 183-84, 182N.E.2d at 708.

The court in Kaplan held that such a threat is not duress where the threatened action ismade in the honest belief that a good cause of action exists and does not involve some actual orthreatened abuse of process. Based on the allegations of the complaint, the wife had a cause ofaction for alienation of affections. The court found that any use of the photographs in such aproceeding, or personal embarrassment suffered by plaintiff or his friend, as a result, would be nomore than incidents of the suit. Kaplan, 25 Ill. 2d at 188, 182 N.E.2d at 710. The court also heldthat duress is not shown by subjecting someone to annoyance and vexation and that a threat ofpersonal embarrassment does not rise above annoyance and vexation. Kaplan, 25 Ill. 2d at 188,182 N.E.2d at 710.

Therein, the court also cited the case of Schumm v. Berg, 37 Cal. 2d 174, 231 P.2d 39(1951). In Schumm, the supreme court of California held that the expressed intention of themother of an illegitimate child to institute a paternity proceeding against the putative father if hedid not enter into a contract for the support of the child did not make the contract unenforceableas having been obtained by a threat to expose the affair and injure the father's reputation. Thefather, like Jordan, was a wealthy celebrity who would suffer unfavorable publicity if the paternitysuit was brought and the facts of the affair were made public. The Schumm court found that thecomplaint did not allege that the mother would injure his character if he did not enter into thecontract. Rather, it alleged that she would commence a suit, a right she clearly had. "Asufference by him of unfavorable publicity would only be an incident of the suit." Schumm, 37Cal. 2d at 185-86, 231 P.2d at 45.

Thus, as alleged, Knafel's agreement to refrain from suing for paternity coupled with heragreement to remain quiet about the affair is not inherently coercive or exploitive or motivated byan improper influence. Rather, taking the facts alleged in the light most favorable to Knafel, aswe must do when reviewing a section 2-615 motion to dismiss, the agreement could be construedas a good-faith settlement of her paternity claim with a confidentiality provision which is notviolative of public policy. This court reiterated in Becker that declaring that " 'one intends to usethe courts to insist upon what he believes to be his legal rights' [is] not actionable" asintimidation, extortion or blackmail. Becker, 292 Ill. App. 3d at 129, 684 N.E.2d at 1388,quoting Enslen v. Village of Lombard, 128 Ill. App. 3d 531, 533, 470 N.E.2d 1188, 1190-91(1984).

Furthermore, we adhere to the view that the trial court should dismiss a cause of action onthe pleadings only if it is clearly apparent that no set of facts can be proven which will entitle aplaintiff to recover. Nickum, 159 Ill. 2d at 488, 639 N.E.2d at 1291. We find that whether thisparticular oral agreement was exploitive or coercive is a matter best left to the trier of fact. Knafel alleged that she told Jordan she was pregnant with his child, that he did not want thepublicity, and that he made her an offer to deal with their problem. While we agree with Jordanthat there need not be an explicit threat for a contract to be coercive or exploitive, this court hasstated that an inquiry regarding the coercive nature of the language used is a fact intensiveinquiry:

"[W]hile the issue of whether particular words have a reasonabletendency to coerce or cause apprehension is essentially an objectivedetermination, the subjective reactions of the recipients is a properfactor to consider.

'It is not the abstract meaning of words that constitute anexpression [of] a threat, but their reasonable tendency under thecircumstances to place another in fear that the threat-maker willperform the threatened act. An innocent expression may bethreatening because of the ominous circumstances in which it is made. Similarly, a statement that is literally a declaration of intentto do harm to another is not a threat if the context negatives anyreasonable apprehension that the speaker intends what he says heintends.'" People v. Peterson, 306 Ill. App. 3d 1091, 1103-04, 715N.E.2d 1221, 1227-28 (1999), quoting Landry v. Daley, 280 F.Supp. 938, 962 (N.D. Ill. 1968).

Accordingly, where these are factual determinations and credibility determinations that have yetto be resolved, we cannot make a determination on the pleadings alone that this contract isextortionate.

Jordan next maintains that the alleged agreement is unenforceable because it was eitherfraudulently induced or based upon a mutual mistake of fact. Again, we must consider theprocedural posture of the case. These arguments were made in the context of a section 2-615motion to dismiss. As stated previously, section 2-615 provides for dismissal for "defects inpleadings" where the counterclaim is "substantially insufficient in law." 735 ILCS 5/2-615 (West2002). Motions to dismiss pursuant to this section attack only the legal sufficiency of thecounterclaim. As such, a party may not raise affirmative factual defenses under a section 2-615motion, but rather, may only allege defects on the face of the counterclaim. Becker, 292 Ill. App.3d at 124, 684 N.E.2d at 1385.

Section 2-619(a)(9) of the Code allows for dismissal on the pleadings if "the claimasserted against defendant is barred by other affirmative matter avoiding the legal effect of ordefeating the claim." 735 ILCS 5/2-619(a)(9) (West 2002). It is well settled that under section2-619, any grounds for dismissal not appearing on the face of the counterclaim shall be supportedby affidavit. 735 ILCS 5/2-619(a) (West 2002). Here, both of Jordan's arguments regardingfraudulent inducement and mutual mistake of fact rely on the crucial fact of whether Jordan wasthe father of Knafel's child. While Jordan maintains that it is undisputed that he is not the father,that fact does not appear on the face of the pleadings before this court. Nor have the partiessubmitted the required affidavits to attest to the fact that Jordan is not the father of the child. Where the extrinsic facts asserted in the motion to dismiss are crucial to Jordan's arguments, yetwere not submitted via proper affidavit, Jordan's motion to dismiss, even if we were to construe itas a section 2-619(a)(9) motion, is legally insufficient. Becker, 292 Ill. App. 3d at 124, 684N.E.2d at 1385.

Jordan essentially argues that while Knafel's verified counterclaims are silent on the issueof paternity, Knafel made judicial admissions both in memorandum of law filed with the court andat oral argument before the trial court that Jordan is not the father of her child. Jordan is correctthat a court may consider judicial admissions in the record when ruling on a motion to dismiss. Weiss v. Waterhouse Securities, Inc., 335 Ill. App. 3d 875, 882, 781 N.E.2d 1105, 1111 (2002). A judicial admission is "a deliberate, clear, unequivocal statement of a party regarding a concretefact within the party's peculiar knowledge and is conclusive upon the party making it, therebyrelieving the opposing party from presenting any evidence." Bank of Chicago v. Park NationalBank, 277 Ill. App. 3d 167, 172, 660 N.E.2d 19, 22-23 (1995). The record reflects that Knafel'scounsel only indicated that there was no allegation in the verified pleading that Jordan is thefather. However, that statement is not a judicial admission that Jordan is not the father of thischild, which would relieve the opposing party from presenting evidence of its affirmative defense. Thus, where there are insufficient facts with which to dismiss the cause on either basis asserted byJordan, we need not address the merits of these contentions under either a section 2-615 motionor section 2-619(a)(9) motion.

We next address Jordan's cross-appeal. Therein, he argues that the trial court erred indismissing his complaint for declaratory judgment. A complaint for declaratory judgment mustrecite in sufficient detail an actual and legal controversy between the parties and that the plaintiffis interested in such controversy. 735 ILCS 5/2-701 (West 2002); Beahringer v. Page, 204 Ill. 2d363, 372, 789 N.E.2d 1216, 1223 (2003). Moreover, Illinois is a fact-pleading jurisdiction. Aplaintiff must allege facts sufficient to bring his or her claim within the scope of the cause ofaction asserted. Beahringer, 204 Ill. 2d at 369, 789 N.E.2d at 1221. Our review of the dismissalis de novo. Parish v. Country Mutual Insurance Co., 351 Ill. App. 3d 693, 695, 814 N.E.2d 166,168 (2004).

We agree with the trial court that when examining the face of the pleadings, the complaintis deficient. Essentially, Jordan alleges that Knafel threatened to publicly expose theirrelationship unless Jordan paid her $5 million pursuant to a purported agreement. He denies thatthere was an agreement and seeks a declaration that any purported agreement was unenforceablebecause (i) extortionate agreements violate public policy; (ii) there would be no consideration tosupport any such agreement due to Knafel's existing obligation not to publicly expose theirrelationship; (iii) it would violate the statute of frauds; and (iv) it would be barred by the statute oflimitations. Jordan never sets out the terms of the "purported second agreement" such that any ofthe above arguments could be ruled upon by the court. Accordingly, the complaint lackssufficient facts to bring the claim within the scope of the cause of action asserted.

Nevertheless, as we previously stated, a court may consider judicial admissions in therecord on a motion to dismiss. Weiss, 335 Ill. App. 3d at 882, 781 N.E.2d at 1111. Where theterms of the agreement were set forth in detail in Knafel's verified counterclaim, there aresufficient facts before the court at this time to establish an actual controversy. Accordingly, it waserror to dismiss Jordan's complaint for declaratory judgment. However, where the same issuesare raised in the motion for judgment on the pleadings as were raised in the motion to dismiss thecounterclaim, and the procedural posture is ultimately the same, we deny the motion for judgmenton the pleadings for the same reasons as stated previously.

Accordingly, for all of the foregoing reasons, we reverse the dismissal of Jordan'scomplaint for declaratory judgment and reverse the dismissal of Knafel's counterclaim. Additionally, we affirm the dismissal of Jordan's motion for judgment on the pleadings andremand this cause to the circuit court for further proceedings.

Affirmed in part and reversed in part; cause remanded.

REID, P.J., and QUINN, J., concur.