dissenting:
Salvador Espinoza, defendant in the underlying tort action brought by Enrique Perez, filed an amended third-party complaint seeking contribution from codefendant, Joseph Hardesty, as a joint tortfeasor. Hardesty filed a motion to dismiss alleging that he had settled with Perez and that “pursuant to Ill. Code of Civil Pro. 2 — 619 Contribution is barred and should be dismissed.” A copy of a covenant not to sue executed by Perez was attached to the motion. The trial court in its order granting the motion stated: “Based upon the record pleadings before the Court, and the arguments of all counsel, the Court concludes that as a matter of law, the settlement between Plaintiff and Joseph Hardesty was a good faith settlement.” It is from this order that Espinoza appeals.
The narrow ground upon which I dissent from the majority is that I fail to see in this record any basis whatsoever for the trial court’s conclusion here that the covenant not to sue was given in good faith. Neither the commendable objectives of the Contribution Act (Ill. Rev. Stat. 1983, ch. 70, par. 301 et seq.) nor the authorities cited by the majority require us to accept as true and affirm the critically important trial court conclusion of good faith when there is nothing in the record to support it.
The posture in which this case is before the court is important to our disposition of this appeal. Espinoza is appealing from an order which granted a motion to dismiss filed pursuant to section 2 — 619 of the Code of Civil Procedure (Ill. Rev. Stat. 1983, ch. 110, par. 2 — 619). That section allows the dismissal of an action upon any one of several specified grounds. We only consider here whether the circuit court erred in dismissing Espinoza’s amended third-party complaint for contribution pursuant to section 2 — 619.
Section 2 — 619(a), in relevant part, provides:
“Defendant may *** file a motion for dismissal *** upon any of the following grounds. If the grounds do not appear on the face of the pleading attacked the motion shall be supported by affidavit:
* * *
(9) That the claim asserted against defendant is barred by other affirmative matter avoiding the legal effect of or defeating the claim.”
In his motion to dismiss, Hardesty did not specify the subsection of 2 — 619(a) upon which he relied. He argues that the alleged release constitutes an affirmative matter avoiding the legal effect of or defeating Espinoza’s claim for contribution, citing section 2 of the Contribution Act.
Section 2 of the Act, in relevant part, provides:
“(c) When a release or covenant not to sue or not to enforce judgment is given in good faith to one or more persons liable in tort arising out of the same injury or the same wrongful death, it does not discharge any of the other tortfeasors from liability for the injury or wrongful death unless its terms so provide but it reduces the recovery on any claim against the others to the extent of any amount stated in the release or the covenant, or in the amount of the consideration actually paid for it, whichever is greater.
(d) The tortfeasor who settles with a claimant pursuant to paragraph (c) is discharged from all liability for any contribution to any other tortfeasor.” (Ill. Rev. Stat. 1983, eh. 70, pars. 302(c), (d).)
The majority admits that under section 2 of the Act, a tortfeasor who settles with a claimant is discharged from liability for any contribution to any other tortfeasor only if the settlement is made in good faith. Without good faith in settlement, the settling tortfeasor receives none of the protection against contribution demands provided in the Act. LeMaster v. Amsted Industries, Inc. (1982), 110 Ill. App. 3d 729, 734, 442 N.E.2d 1367.
The amended third-party complaint states that Hardesty’s settlement with Perez was not made in good faith. Hardesty, by his pleadings, never put good faith in issue. Hardesty’s motion to dismiss merely states that the settlement between him and plaintiff barred Espinoza’s action for contribution and says nothing about good faith. The only exhibits attached to the motion were a copy of Espinoza’s original third-party complaint for contribution and a copy of the covenant not to sue given to Hardesty by Perez. No affidavits were submitted in support of the motion. Where a complaint for contribution alleges that a settlement was not made in good faith, a section 2 — 619 motion to dismiss which merely alleges the existence of the settlement does not assert the existence of an affirmative matter avoiding the legal effect of or defeating the complaint. I would therefore hold that Hardesty’s motion to dismiss failed to assert the existence of such an affirmative matter and conclude, accordingly, that the circuit court erred in dismissing the amended third-party complaint for contribution pursuant to Hardesty’s motion under section 2 — 619 of the Code of Civil Procedure.
The majority suggests that the trial judge was in an ideal position to determine whether the settlement between Hardesty and Perez was in good faith, and that this especially true here where the judge who decided the motion to dismiss also conducted a pretrial conference. The majority says, “Espinoza had the burden to prove the settlement was not made in good faith.” It is clear that on the pleadings here he had no occasion and no opportunity to do so. Yet the trial court, without a hearing, concluded as a matter of law that there was a good faith settlement. In my opinion, the fact that the judge who ruled on the motion to dismiss also pretried the case did not justify the granting of the motion. The judge’s familiarity with the case cannot cure a fatal defect in Hardesty’s motion: the failure to assert the existence of an affirmative matter defeating Espinoza’s claims for contribution. Hardesty also suggests that there is proof of good faith in the record in the form of the pleadings and answers to interrogatories by plaintiff, which stated that his special damages were $3,888.65. It is true that the amount of special damages is relevant to the issue of good faith; however, it is only one factor to be considered. (LeMaster v. Amsted Industries, Inc. (1982), 110 Ill. App. 3d 729, 735.) Lack of good faith encompasses many kinds of behavior. Thus, the pleadings and answers to interrogatories concerning the amount of special damages, by themselves, fail to support the circuit court’s conclusion that the settlement between Hardesty and Perez was a good faith settlement as a matter of law.
For the aforementioned reasons, I would reverse the order of the circuit court dismissing the third-party complaint for contribution and remand the cause for further proceedings consistent with this opinion.