source: Caselaw Access Project

author: JUSTICE RARICK

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. JEFFREY A. STEWART, Defendant-Appellee.
    Fifth District
    Nos. 5 — 91—0101, 5 — 91—0102 cons.
    Opinion filed March 18, 1993.

      Paul H. Hillis, Jr., State’s Attorney, of Salem, and Douglas B. McKe-chan, of Trenton (Norbert J. Goetten, Stephen E. Norris, and Rebecca Sanders, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
    Daniel M. Kirwan and Janet Gandy Fowler, both of State Appellate Defender’s Office, of Mt. Vernon, for appellee.
   JUSTICE RARICK

delivered the opinion of the court:

The People of the State of Illinois appeal (134 111. 2d R. 604(a)(1)) from an order of the circuit court of Marion County, entered January 30, 1991, in Nos. 90 — CF—80 and 90 — CF—137 suppressing evidence consisting of illegal drugs and inculpatory statements. We affirm the suppression order in No. 90 — CF—137 and reverse the suppression order in No. 90 — CF—80 and remand for further proceedings.

On June 6, 1990, the circuit court of Marion County, in case No. 90 — CF—80, sentenced the defendant, Jeffrey A. Stewart, to two years’ probation following his plea of guilty to unlawful possession of cannabis and unlawful possession of a controlled substance. A little over a month later, on July 9, 1990, the defendant was charged by information with unlawful possession of a controlled substance (less than 15 grams of lysergic acid diethylamide (LSD)) in violation of section 402(b) of the Illinois Controlled Substances Act (111. Rev. Stat. 1989, ch. BG1^, par. 1402(b)) in cause No. 90 — CF—137. In addition, a petition to revoke probation in cause No. 90 — CF—80 was also filed on July 9, 1990, alleging that the defendant violated his probation by knowingly and unlawfully possessing 15 grams of a substance containing LSD.

On August 3, 1990, defendant filed in both the substantive criminal proceeding (No. 90 — CF—137) and the probation revocation proceeding (No. 90 — CF— 80) a motion to suppress evidence illegally seized, alleging that the stopping of defendant for a traffic violation did not justify a search of his person and his vehicle.

A hearing on defendant’s motion to suppress was held on November 29, 1990. The following evidence was adduced. On July 8, 1990, at approximately 7:21 a.m., Trooper Rog Stockwell of the Illinois State Police, while on general traffic patrol, stopped the defendant for speeding on Interstate 57 in Marion County, Illinois. After he approached the vehicle and asked the driver for his license, Trooper Stockwell recognized the driver (Jeffrey Stewart) from a previous traffic stop he had made earlier in the year. At that time (March 1990), he had arrested the defendant for speeding, driving with an expired license and possession of cannabis and LSD. Although defendant was driving the same car on July 8 that he was driving at the time of his previous arrest, Trooper Stockwell testified that he did not recognize it as such since it had different license plates. Requesting defendant’s driver’s license, Trooper Stockwell noticed that defendant’s hands were trembling as he handed it to him. Defendant also avoided eye contact with the trooper. Trooper Stockwell took defendant back to his squad car and proceeded to write the defendant a traffic ticket. He told defendant he was under arrest for traveling 82 miles per hour in a 65-mile-per-hour zone. As he completed his paperwork on the ticket, Trooper Stockwell asked defendant whether he had “straightened up his life.” After defendant indicated he had, Trooper Stockwell suggested that because defendant had straightened up his life, he would have no problem with a search of his car. Defendant replied that he did not want the trooper to search his car and added that he was in a hurry to go home to feed a pet. After posting $50 bond with the trooper, defendant asked if he was free to leave. Trooper Stockwell told defendant that “because of [his] actions and [the trooper’s] suspicions, he could not leave.” By “actions” the trooper was referring to defendant’s nervousness: his trembling hands, his failure to make eye contact and the stuttering in his speech. Trooper Stockwell testified that he did not remember defendant telling him he was acting nervous because he was on probation and did not want a speeding ticket.

Trooper Stockwell then called for a backup unit and a canine unit. The canine unit (Trooper Middleton) arrived 15 to 20 minutes following the call, and the dog alerted on the right passenger-side door and the trunk. Trooper Stockwell testified that during this time the defendant was very nervous and was not free to leave the scene. After the canine unit performed a walk around of the defendant’s vehicle, Troopers Stockwell and Middleton left the scene to try to obtain a search warrant, which they did the following day. Thereafter Trooper Stockwell performed the search of defendant’s vehicle, which had been impounded, and found two boxes with cannabis residue in the glove compartment and a small brown plastic bottle with cannabis seeds in the trunk.

Trooper Ledbetter of the Illinois State Police testified that on July 8, 1990, he was patrolling Marion County on Interstate 57 when he received a backup call for assistance. Upon arriving at the scene, he met Trooper Stockwell, who indicated that he had stopped the defendant and issued him a citation for speeding and that a canine unit had been contacted. Trooper Ledbetter testified that he was at the scene of the stop for approximately 20 minutes before the canine unit arrived. After the canine unit arrived, the dog alerted on the passenger door and the trunk area of defendant’s vehicle. Following this, Trooper Ledbetter stayed at the scene with the vehicle and the defendant, waiting for a tow truck to arrive. Trooper Ledbetter stated that the defendant then walked towards his vehicle. The trooper followed him to defendant’s car and observed the defendant go inside his vehicle, take a paper sack and stuff it in his back pocket. The officer asked the defendant what he had placed in his pocket, to which the defendant stated, “nothing.” The officer then removed the bag and found that it contained about 279 hits of LSD. Defendant was placed under arrest. Upon search of the defendant’s front pocket the officer also found a bottle containing a liquid substance, which tested positive for LSD. The evidence was transported to the District 12 headquarters, and the defendant was taken to the Marion County sheriff’s department. At the department the trooper interviewed the defendant after giving him his Miranda warnings, and the defendant stated that the LSD was already on the paper, as well as in the bottle.

Defendant Jeffrey A. Stewart testified that he was northbound on Interstate 57 approximately one mile north of Salem on July 8, 1990, at 7:30 a.m. when he was stopped for speeding. He stated that Trooper Stockwell wrote him a ticket for speeding. The defendant stated that the trooper asked him whether he had gotten his life straightened out and if he would mind if his car was searched. Defendant answered that he did not want his car searched. He told the trooper that he had been away on a camping trip in southern Illinois and was in a hurry to get home to feed his animals. Thereafter a canine unit was called which took approximately 20 to 25 minutes to arrive. The defendant testified that the dog walked around his vehicle twice, and it took about 5 to 10 minutes. Trooper Stockwell then left the scene to obtain a search warrant. Defendant testified that he then returned to his car to obtain his driver’s license and that Trooper Ledbetter followed him. The officer then searched the defendant, found the alleged contraband and placed defendant under arrest.

Defendant admitted that there was a brown paper bag stuffed in his back pocket. He also stated that to that point no one had attempted to search him. Defendant estimated that 20 minutes elapsed from the time of the stop until the time when the citation for speeding was issued. He testified that he was a little more nervous than usual. Defendant also testified that until the dog was brought to the scene, no one entered or attempted to search his vehicle in any way.

Trooper Jane Middleton of the Illinois State Police testified that she was called to the scene of a traffic stop involving the defendant on July 8, 1990. She testified that the dog walked around the defendant’s vehicle once at approximately 7:55 a.m. and that the walk around lasted about two minutes. The dog alerted on the defendant’s vehicle. Trooper Middleton testified that the defendant “appeared to be nervous and very slow and methodical and his speech was very slow.” She stated that she accompanied Trooper Stockwell to obtain a search warrant for defendant’s vehicle, which was done the following day. She further testified that she was present at the time of the search of defendant’s vehicle that next day when she found cannabis seeds and cannabis residue.

On January 30, 1991, the trial court entered an order allowing defendant’s motion to suppress evidence consisting of illegal drugs, statements by defendant subsequent to his arrest, and items seized in a search of defendant’s vehicle pursuant to a warrant obtained after his arrest. The State thereafter filed a notice of appeal on February 15, 1991. On August 9, 1991, this court granted the State’s motion to consolidate case No. 5 — 91—0101 (criminal proceeding) and 5 — 91— 0102 (probation revocation proceeding) under case No. 5 — 91—0101.

On appeal, the State argues that the trial court erred in granting defendant’s motion to suppress evidence in both the underlying criminal offense and the probation revocation proceeding. We turn our attention first to the substantive criminal offense. Specifically, the trial court found in pertinent part:

“1. Subsequent to a routine traffic stop of the def’t for speeding, the def’t was detained (seized), against his will, to allow a canine search of his vehicle.
2. The seizure was based upon the arresting officer’s observation that the def’t was nervous and his knowledge that, on a prior occasion the def’t had been found to be in possession of illegal drugs.
3. The officer’s observation and knowledge do not constitute probable cause to arrest nor do they amount to a reasonable articulable suspicion that the def’t was involved in criminal activity such as to justify an ‘investigatory stop,’ and said seizure was violative of deft’s 4th Amendment rights under the United States Constitution and therefore was unlawful.

* * *

WHEREFORE, IT IS HEREBY ORDERED THAT IN CAUSE 90 — CF—80 and 90-CF-137, that:
All evidence seized and obtained as a result of Defendant’s unlawful seizure, consisting of alleged illegal drugs, statements by the defendant subsequent to his arrest, and items seized in the search of defendant’s vehicle, pursuant [to] a warrant obtained after his arrest is suppressed and shall not be admitted as evidence in trial of these matters.” (Emphasis in original.)

A trial court’s ruling to suppress evidence will be upheld on appeal unless it is manifestly erroneous. (People v. Janis (1990), 139 Ill. 2d 300, 565 N.E.2d 633; People v. Breeding (1991), 219 Ill. App. 3d 590, 595, 579 N.E.2d 1128, 1131.) We are especially reluctant to disturb the decision of the trial court where it is based upon the evaluation of the credibility of witnesses. People v. Barry (1990), 200 Ill. App. 3d 930, 558 N.E.2d 443; People v. Guerrieri (1990), 194 Ill. App. 3d 497, 551 N.E.2d 767.

After reviewing the record, we find that the trial court’s order suppressing the drugs obtained from the defendant and from his vehicle was not manifestly erroneous. We note at the outset that the initial stop of defendant’s vehicle was valid and was not pretextual. A traffic violation provides more than a reasonable basis for stopping a vehicle. (People v. Guerrieri (1990), 194 Ill. App. 3d 497, 501, 551 N.E.2d 767, 769; People v. Manikowski (1989), 186 Ill. App. 3d 1007, 1010-11, 542 N.E.2d 1148, 1151.) In this case, the fact that Trooper Stockwell clocked the defendant’s vehicle at 82 miles per hour in a 65-mile-per-hour zone gave the officer more than a reasonable suspicion to stop the vehicle for a violation of the law, and accordingly, the initial stop of defendant’s vehicle was proper.

After stopping defendant’s vehicle, Trooper Stockwell issued defendant a citation for speeding. Defendant’s arrest occurred at the time Trooper Stockwell advised defendant that a citation would be issued to him for speeding. (People v. Kinney (1989), 189 Ill. App. 3d 952, 955, 546 N.E.2d 238, 240.) Additionally, we note that a seizure

took place at the time of the arrest inasmuch as stopping an automobile and detaining the driver constitutes a seizure for purposes of applying the fourth amendment. (Berkemer v. McCarty (1984), 468 U.S. 420, 82 L. Ed. 2d 317, 104 S. Ct. 3138; People v. Kunath (1981), 99 Ill. App. 3d 201, 205, 425 N.E.2d 486, 489.) In Berkemer, the Supreme Court analogized the usual traffic stop to a “Terry stop” (Terry v. Ohio (1968), 392 U.S. 1, 20 L. Ed. 2d 889, 88 S. Ct. 1868) rather than a formal arrest. (Berkemer, 468 U.S. at 439, 82 L. Ed. 2d at 334, 104 S. Ct. at 3150.) Under Terry, a law enforcement officer may stop and temporarily detain an individual for the purpose of a limited investigation absent probable cause to arrest, provided the officer’s decision to stop is based on specific and articulable facts which, when combined with rational inferences drawn from those facts and the officer’s experience, reasonably warrant the investigative intrusion. (Terry, 392 U.S. at 21, 20 L. Ed. 2d at 906, 88 S. Ct. at 1880; People v. Moffitt (1985), 138 Ill. App. 3d 106, 111, 485 N.E.2d 513, 517.) While the officer need not have probable cause to arrest a person in order to conduct an “investigatory stop,” he must have an “articulable suspicion” that the person has committed or is about to commit a crime. (Terry, 392 U.S. at 30, 20 L. Ed. 2d at 911, 88 S. Ct. at 1884.) Mere hunches and unparticularized suspicions are not enough. (Terry, 392 U.S. at 22, 27, 20 L. Ed. 2d at 906, 909, 88 S. Ct. at 1880, 1883.) The investigative detention, however, must be temporary and last no longer than is necessary to effectuate the purpose of the stop. Florida v. Royer (1983), 460 U.S. 491, 500, 75 L. Ed. 2d 229, 238,103 S. Ct. 1319,1325.

Stopping an automobile for a minor traffic violation does not, by itself, justify a search of the detainee’s person or vehicle. The officer must reasonably believe he is confronting a situation more serious than a routine traffic violation. Mere suspicion or curiosity is not enough to justify a search. (People v. Penny (1989), 188 Ill. App. 3d 499, 502, 544 N.E.2d 1015, 1017; People v. Reed (1967), 37 Ill. 2d 91, 227 N.E.2d 69.) Furthermore, an officer’s authority to investigate a traffic violation may not become subterfuge to obtain other evidence based on suspicion. People v. Thomas (1979), 75 Ill. App. 3d 491, 494, 394 N.E.2d 624, 627; People v. Lichtenheld (1976), 44 Ill. App. 3d 647, 649, 358 N.E.2d 694, 696.

In the case at bar, Trooper Stockwell stopped the defendant for speeding and subsequently issued him a speeding ticket. The defendant had committed a traffic offense, and the trooper’s initial stop was clearly valid. Once the ticket was written, however, the purpose of the stop had ceased and the trooper was required to allow the defendant to leave. Instead, he expanded the parameters of the initial investigatory stop by asking the defendant about drugs, asking him if he would consent to a search of his vehicle, and finally detaining the defendant against his will until a canine unit arrived, after defendant had refused to give his consent to a search.

The trooper based his detention of the defendant on defendant’s nervousness and the fact that he had stopped defendant earlier in the year and found illegal drugs. Like the defendant in the instant case, the defendant’s hands in Penny were shaking when he handed his driver’s license to the officer. (People v. Penny (1989), 188 Ill. App. 3d 499, 503, 544 N.E.2d 1015, 1017.) However, as noted in Penny, “nervousness is not a characteristic that generally invokes reasonable suspicion, especially when one is stopped by the police for a traffic violation.” (188 Ill. App. 3d at 503, 544 N.E.2d at 1017; accord People v. Breeding (1991), 219 Ill. App. 3d 590, 601, 579 N.E.2d 1128, 1135-36; United States v. Rideau (5th Cir. 1991), 949 F.2d 718.) Putting aside the “nervousness,” the only other evidence which Trooper Stockwell possessed which supported his suspicion that defendant possessed illegal drugs was the trooper’s prior encounter with the defendant. With respect to that prior stop, the trooper testified that he believed that the defendant was on drugs, thereby providing the basis for the earlier arrest. Here there is no indication in the record that defendant was on drugs which would provoke the trooper’s suspicions. As there was no clear evidence other than defendant’s nervousness which would turn the trooper’s hunch concerning illegal drugs into an articulable suspicion to justify defendant’s further detention, Trooper Stock-well was required to allow the defendant to leave after writing the speeding citation. Additionally, it is also clear that defendant was entitled to leave after he refused to give his consent to a search of his automobile.

We find that defendant’s continued detention after the speeding ticket was issued and bond was posted was improper, and accordingly, the trial court’s order suppressing evidence obtained as a result of the illegal detention was proper and was not manifestly erroneous, and the suppression order in No. 90 — CF—137 (the underlying substantive criminal offense) must be affirmed. We now examine the facts in an effort to see if the trial court was correct in its determination that the evidence should also be suppressed in defendant’s probation revocation hearing.

In Hlinois the courts have focused on the trustworthiness of the evidence as the standard for determining its admissibility in probation revocation hearings. Accordingly, illegally seized evidence which has been suppressed in proceedings on a substantive criminal offense may be subsequently utilized, if shown to be trustworthy, in probation revocation proceedings. In People v. Dowery (1975), 62 Ill. 2d 200, 340 N.E.2d 529, the supreme court held that the exclusionary rule was not applicable to probation revocation proceedings for violations of a defendant’s fourth amendment rights against an improper search. While recognizing the fact that this evidence would normally be inadmissible, the Dowery court found it was not patently untrustworthy and should be admissible in a probation revocation proceeding because all reliable evidence should be available to the judge so that he can make a proper determination on a defendant’s continued fitness for probationary status. In reaching this conclusion, the court in Dowery stated, in pertinent part:

“The grant of probation was imposed upon defendant in the present case after the trial court’s consideration that he was not likely to commit another offense; that his rehabilitation would be advanced by probation; and, that the public interest would be served by such disposition. [Citation.] It is clear that granting or denying probation to a convicted defendant necessarily requires the balancing of the character and background of the defendant and the interests of society. [Citation.] During a revocation hearing the interests of society must be amply considered. [Citation.] Merely because there may exist a technical deficiency in police conduct, a trial court should not be forced to release a defendant and return him to a probationary status where there is patent evidence of a serious probation violation.” 62 111. 2d at 206, 340 N.E.2d at 532.

In refusing to suppress the illegally seized evidence in Dowery, the supreme court focused on the limited deterrent purposes of the judicially created exclusionary rule in fourth amendment cases. (62 Ill. 2d at 204-07, 340 N.E.2d at 531-33.) However, in People v. Peterson (1978), 74 Ill. 2d 478, 384 N.E.2d 348, the supreme court observed that considerations other than deterrence are involved in cases arising under the fifth amendment privilege against self-incrimination. (74 Ill. 2d at 484, 384 N.E.2d at 351.) As a general rule, the Peterson court found that “the sanctity of the person is more deeply offended by invasions of his mind than of his home, or even of his pockets” (74 Ill. 2d at 484, 384 N.E.2d at 351) and that there is a “fundamental difference between violations of Miranda’s prophylactic rules and violations of the rights those rules were designed to protect” (74 Ill. 2d at 485, 384 N.E.2d at 351). The court stated that the “ ‘due process’ of a probation revocation proceeding [citation] must include forbearance from the use of coerced testimony and its fruits.” (74 Ill. 2d at 485, 384 N.E.2d at 352.) Acknowledging that the conditional liberty of a probationer may be different from that of the ordinary citizen, the Peterson court found it “is not so different as to permit an individual to be taken from the sidewalk to the cell block on the basis of information wrung from his lips.” (74 Ill. 2d at 485-86, 384 N.E.2d at 352.) Therefore, if a defendant’s confession is in fact involuntary, it is not a “mere technical violation” as was the Miranda violation in Dowery, and the confession is not admissible at a probation revocation proceeding. Preceding Peterson, this court in People v. Bell (1977), 50 Ill. App. 3d 82, 365 N.E.2d 203, refused to extend the Dowery principle to fifth and sixth amendment violations, contending that an involuntary confession, unlike evidence obtained in an illegal search and seizure, is often untrustworthy and should not be admissible at a probation revocation proceeding. 50 Ill. App. 3d at 89-90, 365 N.E.2d at 209.

The general rule is that evidence obtained in technical violation of constitutional rights can be introduced at a probation revocation hearing, if that evidence is shown to be probative and trustworthy. (People v. Redmond (1980), 85 Ill. App. 3d 599, 603, 407 N.E.2d 132, 135.) An exception to this rule, which has bearing on the instant case, is in cases of police harassment. After finding that the fourth amendment “exclusionary rule” was not applicable to probation revocation hearings, the supreme court in Dowery made reference to the suggestion of the Federal courts that the rule might apply where police harassment of probationers is shown. One of the Federal cases cited by the Dowery court was United States v. Winsett (9th Cir. 1975), 518 F.2d 51. In a footnote the ninth circuit reasoned:

“[W]hen the police at the moment of search know that a suspect is a probationer, they may have a significant incentive to carry out an illegal search even though knowing that evidence would be inadmissible in any criminal proceeding. The police have nothing to risk: If the motion to suppress in the criminal proceedings were denied, defendant would stand convicted of a new crime; and if the motion were granted, the defendant would still find himself behind bars due to revocation of probation. Thus, in such circumstances, extension of the exclusionary rule to the probation revocation proceedings may be necessary to effectuate Fourth Amendment safeguards.” 518 F.2d at 54 n.5.

In People v. Knight (1978), 58 Ill. App. 3d 651, 374 N.E.2d 1045, which involved a probation revocation proceeding, the defendant in a motion to suppress certain evidence (a television set) alleged that it had been obtained as the result of police harassment of the defendant’s wife, threats to search defendant’s apartment without a warrant, an attempt to coerce defendant’s wife to give consent for the search, and the actual search of the apartment without consent which resulted in the seizure of a stolen television set. The appellate court in Knight concluded that this was the type of harassment contemplated by Bowery and that this harassment, if demonstrated, would be sufficient to justify suppression. The court held that the defendant was entitled to have an evidentiary hearing on his motion and, since no hearing was held, the cause must be remanded to the trial court for such a hearing. 58 Ill. App. 3d at 655-56, 374 N.E.2d at 1049.

Our supreme court did not agree with this conclusion. In People v. Knight (1979), 75 Ill. 2d 291, 388 N.E.2d 414, the supreme court stated that it need not decide the question left undecided by Bowery— ‘‘whether the type of ‘police harassment’ described in Winsett would justify entertaining suppression motions in revocation proceedings — for the facts here do not establish the ‘police harassment of probationers’ referred to in those cases.” (75 Ill. 2d at 299, 388 N.E.2d at 418.) The evidence at the revocation proceedings in Knight disclosed that an arresting officer was acquainted with the defendant during the period of his probation, but the court noted:

“[T]here was no evidence that he [the arresting officer] knew defendant was a probationer. Nor did defendant’s motion make any reference to the officer’s prior knowledge of him or his status. Without that essential allegation and proof, the sole basis for considering whether police harassment of probationers justifies extension of the exclusionary rule to probation revocation proceedings never arises.” (75 Ill. 2d at 299, 388 N.E.2d at 418.)

Accordingly, for a probationer to bring himself within the parameters of the exception to the general inapplicability of the exclusionary rule in revocation proceedings, he must, in a motion to suppress, allege and prove not only the illegality of the search and seizure but also that it was the result of police harassment. (People v. Watson (1979), 69 Ill. App. 3d 497, 500, 387 N.E.2d 849, 851.) However, despite harassing behavior by the police, a defendant will be unsuccessful in his attempt to suppress illegally seized evidence in a probation revocation proceeding unless he can allege and prove that the conduct complained of was performed by an officer who knew the defendant was a probationer. People v. Knight (1979), 75 Ill. 2d 291, 388 N.E.2d 414.

Turning to the case at bar, the defendant in his motion to suppress stated:

“5. The Exclusionary Rule must be applied to Jeffrey A. Stewart’s probation revocation proceedings because there was police harassment involved in the detention and search of Jeffrey A. Stewart.”

In referring to the actions of the officer in its order, the trial court stated:

“4. The officer knew or had reason to know that the defendant was on probation at the time the unlawful search and seizure were conducted.
5. Policy and principle dictate that the exclusionary rule should be applicable on these facts to the probation revocation proceedings therein.”

Trooper Stockwell testified that when he stopped the defendant for speeding at 82 miles per hour in a 65-mile-per-hour zone, he proceeded just as he would have in any routine traffic stop. He got out of his vehicle, approached defendant’s vehicle and asked the defendant for his license. As he approached the defendant’s vehicle, he recognized the defendant as a person he had stopped earlier in the year for speeding. Trooper Stockwell did not recognize the defendant’s car as being the same one he had stopped on that prior occasion because the license plates were different. At the prior stop defendant was driving on an expired driver’s license, and Trooper Stockwell had, pursuant to a search warrant, found cannabis and LSD in the defendant’s vehicle. Defendant testified that when the trooper approached him the first thing he said to him was that he believed he knew the defendant. The trooper then asked the defendant if he would rather sit in his own vehicle or sit in the trooper’s vehicle. The trooper testified that the defendant chose to accompany him back to his vehicle. While the defendant was in the trooper’s vehicle, Trooper Stockwell, in reference to defendant’s prior drug use, asked the defendant if he had straightened out his life. Trooper Stockwell also asked if the defendant would allow him to search the defendant’s vehicle. The defendant refused the trooper’s request. Defendant indicated that he was in a hurry to get home and asked if he could leave. Trooper Stockwell informed the defendant, after he had been ticketed and had posted $50 bond, that he was not free to leave because the defendant’s nervous actions had made the trooper suspicious. The trooper observed the defendant’s hands trembling, his stuttering and his avoidance of eye contact when the trooper talked to the defendant.

When asked if he knew what had happened as a result of the charges arising from the prior stop, Trooper Stockwell testified that he had been told defendant received three years’ probation and a fine. With respect to the present stop, however, Trooper Stockwell testified he did not recall that the defendant was on probation and did not remember that fact until he discussed it with the assistant State’s Attorney on the day following the defendant’s arrest. Conversely, the defendant testified that while the trooper was writing the speeding ticket, he asked defendant what had happened as a result of the prior case. Defendant stated that he told the trooper that he had received a couple of years of probation and a fine and was required to do some public service. After the trooper ticketed the defendant, he called for a canine unit. According to the defendant, the trooper told him that if the dog did not “hit on the car,” indicating a presence of drugs, he would be free to go.

Are the facts in this case sufficient to support the trial court’s determination that the illegal drugs seized from defendant’s person and vehicle should be suppressed in defendant’s probation revocation hearing? As we have previously noted, the exclusionary rule does not operate to make evidence suppressed at trial on an underlying substantive offense inadmissible at a probation revocation hearing (People v. Dowery (1975), 62 Ill. 2d 200, 340 N.E.2d 529), except in limited circumstances such as police harassment of a known probationer (People v. Knight (1979), 75 Ill. 2d 291, 388 N.E.2d 414). However, neither Dowery nor Knight addresses the issue of what constitutes police harassment of a probationer so as to require the operation of the exclusionary rule at a probation revocation hearing, and we have not found any Illinois cases which have examined this precise issue.

In the instant case, unlike Knight, there is evidence which, when viewed in the light most favorable to the defendant, indicates that Trooper Stockwell was informed at some point after the traffic stop for speeding that the defendant was a probationer. The trial court’s finding of fact pertaining to police harassment was that Trooper Stockwell knew or had reason to know that the defendant was on probation. The question becomes whether the officer’s mere knowledge that the defendant was on probation should, without more, constitute police harassment. More precisely, we frame the issue as follows: In the presence of an illegal search and seizure, is it sufficient to allege and prove mere knowledge of a probationer’s status in order to establish the “police harassment” referred to in Dowery and Knight which will trigger the protection of the exclusionary rule in a probation revocation hearing? We hold that it is not.

Mere knowledge of defendant’s probationary status was the basis of defendant’s allegation of police harassment in his suppression motion and the basis for the trial court’s finding of police harassment. We believe that Trooper Stockwell’s mere knowledge that the defendant was on probation should not, without more, constitute police harassment. Nor do we find that the reasoning in Winsett (the genesis of the “police harassment” exception in Illinois) requires such a result. In Winsett the ninth circuit was referring to the situation in which knowledge that a defendant is on probation provides the incentive to conduct an illegal search and seizure. (United States v. Winsett (9th Cir. 1975), 518 F.2d 51, 54 n.5.) This is not the situation we face in the instant case. Here there is no nexus between Trooper Stockwell’s knowledge that defendant was on probation and his actions toward the defendant. The trooper did not stop the defendant because he recognized the defendant’s car or knew he was on probation but because defendant was traveling 82 miles per hour in a 65-miIes-per-hour zone. The trooper did not detain the defendant after he had issued a speeding ticket because he knew defendant was a probationer but because defendant behaved nervously, refused to make eye contact and was visibly shaking and stuttering, which raised suspicions in Trooper Stockwell that defendant might be carrying drugs in his car. Trooper Stockwell’s request to search defendant’s car and his call for a canine unit were based upon defendant’s behavior, not his knowledge that defendant was on probation. Additionally, Trooper Stockwell had observed the defendant’s behavior on a prior occasion when the defendant had been stopped for speeding and had been carrying cannabis and LSD, and he could note the similarities in the defendant’s behavior on the two occasions.

Although the facts taken in the light most favorable to the defendant show that after issuing the speeding ticket the trooper knew the defendant was on probation, we find no facts in the record which demonstrate police harassment because of that fact. Regardless of whether the trooper’s suspicions were reasonable, the record shows that the trooper’s knowledge that the defendant was on probation did not provide an incentive to conduct the search and seizure. Though defendant testified that he had informed the trooper that he was on probation, he did not testify that Trooper Stockwell threatened him or behaved in a coercive manner because of that fact.

Defendant would have us hold that the trooper’s mere knowledge of his probationary status, acquired after the trooper had legitimately stopped him for speeding, is the determinative factor which will trigger application of the exclusionary rule in his probation revocation proceeding under the limited police harassment exception. We recognize that there could be cases in which the police might take advantage of an individual’s status as a probationer and use a traffic stop as a pretext to conduct a search for drugs. That is the scenario upon which the oft-quoted language in Winsett was based. Such is not the case here. We fail to see why the outcome of this case should hinge on the fortuitous fact that the State trooper who stopped defendant for speeding was the same trooper who had previously stopped defendant for speeding and was thus instrumental in instigating the process which resulted in defendant being placed on probation for drug charges. If another trooper, who was unaware defendant had been placed on probation, engaged in the same activity as Trooper Stock-well in the instant case, under Dowery and Knight the seized evidence would clearly be admissible in a probation revocation proceeding. Moreover, if Trooper Stockwell knew the defendant had been convicted on prior drug charges but was not aware of the sentence defendant had received (or perhaps thought defendant was still awaiting sentencing), the seized evidence would likewise clearly be admissible. To find that the result changes when (with all other factors being the same) Trooper Stockwell is informed defendant is on probation seems incongruous to us. We are not faced with the situation where Trooper Stockwell, knowing defendant was on probation, spotted his car and followed him, waiting for a minor traffic violation to occur to use as a pretext to stop the defendant and subsequently search his vehicle. This is not a situation where a police officer engages in a war-rantless search of a defendant’s vehicle. Instead, based on defendant’s nervousness a canine unit was called, and after the dog “alerted” on the vehicle a search warrant was obtained. There was no physical coercion or threatening behavior by the trooper. The only “harassing” behavior alleged and shown by the defendant in this case was the trooper’s knowledge defendant was on probation.

We find that the trial court’s finding of police harassment based on Trooper Stockwell’s knowledge alone and its conclusion of law that “[p]olicy and principle dictate that the exclusionary rule should be applicable on these facts to the probation revocation proceedings therein” are both erroneous. We find that based oii the facts presented in this case, no police harassment took place. We accordingly reverse the trial court’s suppression order in No. 90 — CF—80 (the probation revocation proceeding) and remand for further proceedings consistent with this opinion.

In summary, the trial court’s order in the criminal case (No. 90— CF — 137, appeal No. 5 — 91—0101) is affirmed, and the trial court’s order in the probation revocation case (No. 90 — CF—80, appeal No. 5— 91 — 0102) is reversed; both causes are remanded for further proceedings consistent with this opinion.

No. 5 — 91—0101, Affirmed and remanded.

No. 5 — 91—0102, Reversed and remanded.

GOLDENHERSH and LEWIS, JJ., concur.


author: PRESIDING JUSTICE GORDON

text:
    INTERNATIONAL INSURANCE COMPANY, Plaintiff-Appellee, v. SARGENT AND LUNDY, Defendant-Appellant.
    First District (5th Division)
    No. 1 — 90—2222
    Opinion filed January 22, 1993.

      William Goldberg, Robert Neiman, and Aaron Horowitz, all of Holleb & Coff, and William J. Harte, of William J. Harte, Ltd., both of Chicago, for appellant.
    Edward Ruberry, Jeffrey Goldwater, Bryan Schumann, and Anthony Madormo, all of Bollinger, Ruberry & Garvey, of Chicago, for appellee.
   PRESIDING JUSTICE GORDON

delivered the opinion of the court.

This appeal involves a dispute between International Insurance Co. (International) and Sargent & Lundy (S&L) arising out of the settlement of an underlying case regarding the design and construction of the Zimmer Nuclear Power Station in Cincinnati, Ohio. The trial court denied S&L’s motion to strike two counts of International’s complaint which sought rescission and restitution of monies paid by International as part of the settlement. The court also granted International’s motion to strike 9 of S&L’s 10 affirmative defenses to those counts. We granted S&L’s application for leave to appeal, pursuant to Supreme Court Rule 308. (134 Ill. 2d R. 308.) For the reasons set forth below, we reverse and remand.

Facts

S&L is a partnership which provides architectural and consulting engineering services to public utilities in connection with the design and construction of power plants. In July 1982, S&L submitted applications for insurance to Gibraltar Casualty Company and International. In its applications, S&L represented that it was unaware of “any circumstance occurrence or condition resulting in accident or injury to person or persons, damage to property including loss of use thereof, any unresolved job controversy or complaint *** which may result in the making or assertion of a claim” against it. In November 1982, International issued to S&L an excess insurance policy, providing coverage in the amount of $45 million. The policy period was from July 1, 1982, through July 1, 1983, and was extended by endorsement to July 1, 1984. Primary coverage, in the amount of $5 million, was provided by Gibraltar Casualty Company. Gibraltar is not a party to this appeal.

Prior to the inception of the primary and excess policies, S&L had entered into a contract with three Ohio utility companies (hereinafter referred to as the CCD companies) to provide architectural and engineering services associated with the construction of the William H. Zimmer Nuclear Power Station in Moscow, Ohio. The CCD companies subsequently filed an action (hereinafter referred to as the Zimmer action) for breach of contract against S&L in connection with S&L’s work on the Zimmer project. The CCD companies sought approximately $400 million in damages from S&L in the Zimmer action. S&L filed a counterclaim against the CCD companies, seeking $12,681,110.28 for unpaid fees and professional services rendered to the CCD companies.

On November 2, 1987, a handwritten settlement agreement was drafted for the purpose of settling the Zimmer action. Under the terms of the agreement, Gibraltar was to pay $4,714,182 and International was to pay $22,966,928 to the CCD companies. Contemporaneously, the CCD companies were to pay $12,681,110.28 to S&L on S&L’s counterclaim, and S&L was to waive its claim to $6.5 million in interest. The CCD companies and S&L were then to dismiss with prejudice the Zimmer action. By its terms, the agreement was to become effective upon its signature by all parties.

While S&L, Gibraltar and the CCD companies signed the November 2 agreement, International refused to do so. International did, however, enter into an agreement with S&L on November 11, 1987, for the settlement of the Zimmer action. In the November 11 agreement, International agreed to pay to the CCD companies $10,285,818. S&L agreed to pay $12,681,110.28 to the CCD companies and to waive its claim to $6.5 million in interest. The agreement also provided that “SARGENT & LUNDY and INTERNATIONAL INSURANCE COMPANY reserve the right to file an action for the sole purpose of determining S&L’s right to reimbursement of the [$12,681,110.28]” which S&L had agreed to pay to the CCD companies. S&L and International “agreefd] to make no other claim other than for a determination of S&L’s right to reimbursement of [$12,681,110.28].”

On November 12, 1987, International filed a complaint against S&L seeking a declaration of its duty to reimburse S&L for the $12.7 million which S&L had paid to the CCD companies under the November 11 agreement. In this complaint International contended that the $12.7 million was not within the scope of coverage provided by its policy and, as a result, it had no duty to reimburse S&L for its payment to the CCD companies. S&L filed an answer and a counterclaim to International’s complaint.

On December 5, 1988, International brought another action against S&L, hereinafter referred to as the Kentucky Utilities litigation. In that action, International contested its obligation to indemnify S&L in an underlying suit brought against it by Kentucky Utilities. The underlying suit, filed in 1984, stemmed from a 1976 project in which Kentucky Utilities had retained S&L to do engineering, design and management work on a power station owned by Kentucky Utilities. In the underlying suit, Kentucky Utilities sought damages of over $5.9 million.

In its December 5, 1988, complaint, International alleged that problems with the station arose in 1981, and that S&L was requested by Kentucky Utilities in 1981 to investigate the cause of the problems. The complaint further alleged that S&L had notice of these problems and of potential claims against it as a result of these problems prior to 1982 ydien it applied for insurance to International, but failed to disclose those potential claims in its application. According to International’s complaint, S&L first gave International notice of the underlying Kentucky Utilities suit on September 4, 1984.

According to its brief filed in this appeal, before July 1982 when it applied for insurance with International, S&L had determined that the “bottom line” cause of the damage to the Kentucky Utilities power plant was S&L’s own design errors, but S&L failed to disclose this to International in its 1982 application. In addition, S&L made false statements to Kentucky Utilities in an effort to conceal its own responsibility and to mislead Kentucky Utilities to bring suit against three other contractors involved in the project. In early 1988, S&L’s codefendants in the underlying Kentucky Utilities suit filed cross-claims against S&L, charging it with injurious falsehood for these alleged misrepresentations. On December 19, 1988, a jury awarded the codefendants $500,000 on their claims. The judgment was reversed on appeal, however, the court holding that S&L’s statements were absolutely privileged as communications made preliminary to seriously considered judicial proceedings. General Electric Co. v. Sargent & Lundy (6th Cir. 1990), 916 F.2d 1119.

In count I of its Kentucky Utilities complaint, International sought rescission of its insurance policy with S&L, based upon S&L’s failure to disclose the knowledge it had of the problems with the Kentucky plant when it applied for the policy in 1982. Counts II through V related to coverage issues regarding the underlying Kentucky Utilities suit. In count VI, however, International sought restitution of the $10.3 million it had paid in the Zimmer settlement.

Also on December 5, 1988, Gibraltar filed an action against S&L, in which Gibraltar alleged that its policy limits had been exhausted and sought a declaration that it was not liable for any claims in the underlying Kentucky Utilities action. This action was consolidated with the December 5, 1988, Kentucky Utilities action filed by International.

A settlement was reached on December 6, 1988, in the underlying Kentucky Utilities suit between Kentucky Utilities and S&L, but was stayed pending the outcome of the coverage litigation between S&L and its insurers. S&L’s insurers refused to participate in that settlement. S&L, International and Gibraltar subsequently entered into a separate agreement in which each reserved its right to adjudicate the issue of coverage for S&L’s settlement with Kentucky Utilities. Pursuant to the settlement agreement, International dismissed the count for restitution of the $10.3 million paid in the Zimmer settlement from its complaint in the Kentucky Utilities litigation, apparently in an effort to expedite the ultimate resolution of the Kentucky Utilities coverage dispute.

On August 17, 1989, International filed a motion to consolidate the previously consolidated Kentucky Utilities actions with the Zim-mer action.

On August 27, 1989, International filed an amended complaint in the Zimmer action, adding two new claims. Count VIII sought rescission of the insurance policy with S&L, based upon allegations that prior to its execution of the 1982 insurance application, S&L was aware of “at least one circumstance” which could result in a claim against S&L, without designating whether that circumstance involved the Kentucky Utilities liability. International alleged that S&L’s failure to disclose any such circumstances in its application constituted a material misrepresentation which entitled it (International) to rescind the policy. In count IX, International sought restitution of the approximately $10.3 million it had paid to the CCD companies in conjunction with the Zimmer settlement. Essentially, this was the same restitution count previously dismissed by International in the Kentucky Utilities action. It is only these new counts which are the subject of this appeal; the other counts remain pending in the trial court. Attached as exhibits to the amended complaint were copies of the insurance policy, S&L’s application for the policy, and a copy of the November 11 agreement.

S&L moved to dismiss counts VIII and IX of the amended complaint pursuant to section 2 — 615 of the Code of Civil Procedure. (111. Rev. Stat. 1989, ch. 110, par. 2 — 615.) The grounds asserted were that the November 11 agreement prevented International from raising any claim concerning the Zimmer action other than the one explicitly reserved: a determination of International’s obligation to reimburse S&L for the $12.7 million which S&L had paid to the CCD companies. According to S&L, since International did not challenge the validity of the November 11 agreement -with respect to the $10.3 million, it was barred from bringing a claim for rescission and restitution. S&L also urged that to grant rescission of the November 11 agreement, it would be necessary to restore the parties to the status quo ante prior to the November 11 agreement, and that since International had not joined either Gibraltar or the CCD companies as parties, such restoration would be impossible.

On October 5, 1989, S&L’s motion to dismiss was denied. In so doing, the trial court stated “you cannot waive what you don’t know.” In addition, although S&L’s motion was denominated as a section 2 — 615 motion and was based entirely on the complaint with its attached exhibits, the court stated that the motion should have been brought under section 2 — 619. (111. Rev. Stat. 1989, ch. 110, par. 2— 619.) The October 5, 1989, order denying the motion states “The Court having considered Sargent & Lundy’s Motion to Dismiss both under Section 2 — 615 and Section 2 — 619 of the Illinois Code of Civil Procedure, Sargent & Lundy’s Motion to Dismiss is denied with prejudice both as to Section 2 — 615 and Section 2 — 619.”

Also on October 5, 1989, the court granted International’s motion of August 17, 1989, to consolidate the Zimmer action with the previously consolidated Kentucky Utilities actions.

S&L then filed its answer to the amended complaint and 10 affirmative defenses to the rescission and restitution counts. After the original affirmative defenses, were dismissed for lack of specificity, S&L filed amended affirmative defenses. The first amended defense was based upon International’s alleged failure to comply with provisions of the Illinois Insurance Code. (111. Rev. Stat. 1989, ch. 73, par. 613 et seq.) The second through fifth affirmative defenses asserted that International was estopped by its conduct from bringing these counts. Affirmative defense six asserted that International’s claim was barred by laches. In affirmative defense number seven, S&L alleged that International could not pursue the rescission claim because it was based upon information which International knew prior to signing the November 11 agreement. Affirmative defense eight contended that rescission and restoration were not available because International was unable to restore the status quo ante. Affirmative defense number nine alleged that International had not acted with due diligence, and number 10 accused International of being guilty of unclean hands.

International filed a section 2 — 615 motion to dismiss S&L’s amended affirmative defenses. Following briefing and a hearing, the trial court struck with prejudice affirmative defenses 2 through 10.

S&L then moved the trial court for a finding, pursuant to Illinois Supreme Court Rule 308 (134 Ill. 2d R. 308), that the order denying S&L’s motion to dismiss the rescission and restitution counts of International’s amended complaint and the order granting International’s motion to dismiss S&L’s amended affirmative defenses 2 through 10 involved questions of law as to which there are substantial grounds for differences of opinion and that an immediate appeal from those orders may materially advance the ultimate termination of the litigation. On July 24, 1990, the trial court granted S&L’s motion, and certified three questions for appeal:

“a. Whether the terms of the November 11, 1987 agreement between Sargent & Lundy and International bar International’s recission [sic] and restitution claims;
b. Whether the Court must return the parties to the status quo ante and require International to return the benefits it obtained by a change in the status quo before granting recission [sic]; and
c. Whether any of Sargent & Lundy’s Affirmative Defenses 2 through 10 allege facts which, if proven, would defeat International’s recission [sic] and restitution claims in whole or in part.”

Also on July 24, 1990, International filed a second amended complaint in the now consolidated action. The second amended complaint added a count involving claims made against S&L in a lawsuit by Wabash Valley Power Association (the Wabash Valley litigation) in connection with work S&L had done on a power plant in Indiana. In this new count, International sought a declaration that it had no obligation to indemnify S&L for any monies in the Wabash Valley litigation.

This court granted S&L’s application for leave to appeal pursuant to Rule 308(a).

Opinion

Before addressing the certified questions, it is necessary to comment on the trial court’s consideration of S&L’s motion to dismiss counts VIII and IX under both section 2 — 615 and section 2 — 619 of the Code of Civil Procedure. Although it is not entirely clear from the record why the court felt that the motion should have been brought under section 2 — 619 rather than section 2 — 615, apparently the court considered the November 11 agreement relied upon by S&L as “other affirmative matter avoiding the legal effect of or defeating the claim.” (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 619(aX9).) That agreement was attached as an exhibit to International’s amended complaint. As a result, it is considered to be part of the pleading and facts stated in the exhibit are considered as having been alleged in the complaint. (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 606 (“the exhibit constitutes a part of the pleading for all purposes”); Ford v. University of Illinois Board of Trustees (1977), 55 Ill. App. 3d 744, 371 N.E.2d 173.) Furthermore, matters contained in such exhibits which conflict with allegations of the complaint negate any contrary allegations of the complaint. (Ford v. University of Illinois Board of Trustees, 55 Ill. App. 3d 744, 371 N.E.2d 173.) The record does not reflect any additional submissions by either party, whether by affidavit or otherwise, in support of or in opposition to the motion. Consequently, we shall consider the motion as one brought under section 2 — 615 for which we may look only to the sufficiency of the pleadings.

Proceeding to the merits, the first question is whether the terms of the November 11 agreement between S&L and International bar International’s rescission and restitution claims as pleaded. As discussed below, we conclude that it does.

Where no ambiguity is present in an agreement, the intention of the parties must be ascertained from the words of the agreement and the circumstances of its execution. (Chubb v. Amax Coal Co. (1984), 125 Ill. App. 3d 682, 686, 466 N.E.2d 369; see also Touhy v. Twentieth Century-Fox Film Cory. (1979), 69 Ill. App. 3d 508, 387 N.E.2d 862.) A release is a contract whereby a party abandons a claim to the person against whom the claim exists. (Touhy v. Twentieth Century-Fox Film Cory., 69 Ill. App. 3d 508.) As a contract, the interpretation of a release is governed by contract law. (Farm Credit Bank v. Whitlock (1991), 144 Ill. 2d 440, 447, 581 N.E.2d 664.) The rights of the parties are limited to the terms expressed in the agreement. (Muryhy v. S-M Delaware, Inc. (1981), 95 Ill. App. 3d 562, 565, 420 N.E.2d 456.) A release will not be construed to release claims not within the contemplation of the parties. (Carona v. Illinois Central Gulf R.R. Co. (1990), 203 Ill. App. 3d 947, 951, 561 N.E.2d 239.) Where a release is clear and explicit, the court must enforce it as written. (Continental Illinois National Bank & Trust Co. v. Sax (1990), 199 Ill. App. 3d 685, 693, 557 N.E.2d 475.) The issue of whether a release is ambiguous is a matter of law. (Murphy v. SM Delaware, Inc., 95 Ill. App. 3d 562, 420 N.E.2d 456.) Accordingly, we look to November 11 agreement to determine whether it bars the claims brought here.

There is no ambiguity in the November 11 agreement. The “whereas” portion of the agreement makes it clear that the purpose of the agreement is the settlement of the Zimmer litigation, with the reservation of the right to challenge only the $12.7 million to be paid by S&L. The operative portion of the agreement then sets out the payments to be made to the CCD companies by International and S&L. International is to pay approximately $10.3 million, and S&L is to pay approximately $12.7 million. The agreement provides that International and S&L “reserve the right to file an action for the sole purpose of determining S&L’s right to reimbursement of the [$12.7 million]” referred to above. The agreement also states that S&L and International “agree to make no other claim other than for a determination of S&L’s right to reimbursement of [$12.7 million].”

These provisions of the November 11 agreement are clear and apparent. The parties are each to make a payment to the CCD companies in settlement of the Zimmer action. S&L is to pay $12.7 million and International is to pay $10.3 million. It is clear from the context of these provisions that the parties acknowledge two possible claims: one for S&L’s right to seek reimbursement of the $12.7 million it paid and the other for International’s right to seek reimbursement of the $10.3 million it paid. With respect to those possible claims, the agreement explicitly reserves the rights of the parties only with respect to the former and not with respect to the latter.

International contends, however, that since the agreement does not in any way limit the defenses it may raise in response to a claim by S&L for reimbursement of the $12.7 million which S&L paid, and it could assert its right to rescission of the policy in defense of such an action, it therefore is not barred from asserting that same right to recover the $10.3 million which it paid in the Zimmer settlement. While International is correct that the agreement does not make any reference to the theories available to defend against the explicitly reserved claim by S&L for reimbursement of the $12.7 million, the agreement also fails to set forth any theories which are reserved to International that it might use in a claim for reimbursement of the $10.3 million. There is no language in the agreement limiting International’s release of a claim for the $10.3 million to those claims arising under any specific theories of law. (See Murphy v. S-M Delaware, Inc., 95 Ill. App. 3d at 566 (court holds that in the absence of “language limiting the provisions of the release to those claims, demands, or cause of action which arise solely from ownership of stock,” and in light of specific reservation of claims for compensation accruing within 30 days of release date, release must be interpreted to cover claim for sales commissions accruing more than 30 days prior).) In this sense, the release is absolute. Regardless of the theory used, the claim International seeks to assert here remains a claim for reimbursement of the $10.3 million it paid. As discussed above, the language of the agreement bars any such claim by International irrespective of the theory under which such claim is brought.

International next contends, however, that, even if purportedly waived under the express language of the agreement, its rescission and restitution claims were not in the contemplation of the parties when they signed the agreement. International argues that it could not have released or waived its right to bring these claims of rescission and restitution because it was unaware of any such right when it entered into the November 11 agreement due to the fact that the right did not even exist at that time.

We agree with International that a release cannot be construed to include claims which were not within the contemplation of the parties, (iCarona v. Illinois Central GulfR.R. Co. (1990), 203 Ill. App. 3d 947, 951, 561 N.E.2d 239; Chubb v. Amax Coal Co. (1984), 125 Ill. App. 3d 682, 466 N.E.2d 369; Murphy v. S-M Delaware, Inc. (1981), 95 Ill. App. 3d 562, 420 N.E.2d 456.) “[A] release, no matter how broad its terms, will not be construed to include claims not within the contemplation of the parties.” (Chubb v. Amax Coal Co., 125 Ill. App. 3d at 686.) A release will not be held to apply to an unspecified claim if the releasing party is unaware of such claim when executing the release. (Myers v.bHealth Specialists, S.C. (1992), 225 Ill. App. 3d 68, 74, 587 N.E.2d 494, citing Farm Credit Bank v. Whitlock, 144 Ill. 2d at 447-48.) A general release will be held to apply only to claims in existence at the time the release is executed and “claims that originate subsequent to its execution are not discharged absent a clear expression of intent to that effect.” (Chubb v. Amax Coal Co., 125 Ill. App. 3d at 686.) However, the fact that a release does not specifically mention a particular type of action or that a claim is not yet in existence when a release is executed does not necessarily mean that that type of action is not released. (See Rakowski v. Lucente (1984), 104 Ill. 2d 317, 323, 472 N.E.2d 791 (fact that action in which Lucente asserted counterclaim against Rakowski had not yet been filed when Lucente executed release in favor of Rakowski did not preclude finding that counterclaim was barred by release; court finds “no basis for Lucente’s argument that the release did not include a specific type of action, that is, his right against Rakowski for contribution, because that action was not expressly enumerated”); Continental National Bank & Trust Co. v. Sax (1990), 199 Ill. App. 3d 685, 557 N.E.2d 475 (fact that no mismanagement claims had yet been filed and fact that settlement order did not specifically include trustee mismanagement claims did not exclude such claims from release under agreed settlement order).) In a broadly worded release, an attempt to list the specific types of actions covered would detract from the general scope of its release. Rakowski v. Lucente, 104 Ill. 2d 317, 472 N.E.2d 791; Continental National Bank & Trust Co. v. Sax, 199 Ill. App. 3d 685, 557 N.E.2d 475.

Here, International argues that this claim for rescission and restitution of the $10.3 million was not within the contemplation of the parties because the right did not come into existence until after the November 11 agreement. Although the alleged misrepresentations occurred in 1982, long before the Zimmer agreement was entered into, apparently International’s contention that its right to rescission did not exist until after the Zimmer agreement is that it did not become aware of those misrepresentations until after November 11, 1987. However, the fact that the right to rescission had not ripened is not dispositive. Rakowski v. Lucente, 104 Ill. 2d 317, 472 N.E.2d 791; Continental Illinois National Bank & Trust Co. v. Sax, 199 Ill. App. 3d 685, 557 N.E.2d 475.

Although International makes the argument that it could not have released this claim because it was unaware of its right to rescission and restitution on November 11, the complaint contains no allegations of this purported ignorance. Nor are there any allegations as to when International first became aware of its right or the alleged misrepresentations. The record is also devoid of any section 2 — 619 submissions by way of affidavit or other testimony which would indicate that International was without knowledge of its right to rescind when it entered into the November 11 agreement. Without such allegations, and considering the broad scope of the agreement, we cannot say that the parties did not intend to preclude the action for rescission and restitution which International seeks to assert here.

The case of Ainsworth Corp. v. Cenco, Inc. (1982), 107 Ill. App. 3d 435, 437 N.E.2d 817, appeal after remand (1987), 158 Ill. App. 3d 639, 511 N.E.2d 1149, is on point. In Ainsworth, plaintiff buyers and defendant sellers entered into an asset purchase agreement whereby plaintiffs agreed to purchase, among other assets, all inventory of a company owned by defendants. A portion of that agreement entitled “Representations and Warranties of Sellers” stated that defendants’ manufacturing processes and sterility procedures complied with all State and Federal safety laws, including those of the United States Food and Drug Administration.

Several months after the purchase, a dispute arose regarding inventory assets. The parties subsequently entered into a settlement agreement “to resolve the existing dispute.” The settlement agreement, in reference to the representations made by defendants in the asset purchase agreement, stated that plaintiffs “waive[d] any breach of any such representations, warranties or covenants, or any default under the agreement which may have occurred prior to the date of this agreement.” 107 Ill. App. 3d at 437.

Four months later, an investigation by the United States Food and Drug Administration (FDA) revealed that certain of plaintiffs’ processes and sterility procedures were in violation of FDA regulations. Plaintiffs filed suit for injunctive relief and monetary damages, alleging that defendants had fraudulently induced them to enter into the asset purchase agreement by their misrepresentation regarding compliance with Federal regulations. Defendants raised the settlement as an affirmative defense, contending that plaintiffs had waived their right to bring an action based upon the warranties and representations made in the asset purchase agreement. The trial court granted defendants’ motion for summary judgment.

The appellate court reversed, finding that summary judgment was not warranted because genuine issues of material fact remained. The court stated, “It is true that one may waive a defense of fraud by entering into a new contract; however, knowledge of the fraud at the time of signing the [second contract] is a prerequisite to such waiver.” (Emphasis in original.) (Ainsworth Corp. v. Cenco, Inc., 107 Ill. App. 3d at 440.) The question of “whether or not fraud has been waived is generally a question of fact” as is “the significance of silence or inaction after discovery of fraud.” Ainsworth Corp. v. Cenco, Inc., 107 Ill. App. 3d at 440.

Here, the question of International’s knowledge in 1987 of the alleged misrepresentations made by S&L in 1982 is key to determining whether this claim was released by the November 11 agreement. International, in its brief before this court, contends that it did not become aware of the alleged misrepresentations until some time in 1988. However, as this matter is before us on review of the trial court’s denial of a section 2 — 615 motion to dismiss, our consideration is limited to the facts alleged in the complaint. As noted above, there are no allegations in the complaint of any lack of knowledge. If, in fact, International is correct in its contention that it was unaware of its right to rescission when it signed the November 11 agreement, that fact should have been pleaded. Without such factual allegations in the complaint, and considering the clear language of the agreement, the pleadings are insufficient to avoid the preclusive effect of the November 11 agreement.

We also reject International’s contention that a finding that its claim for rescission and restitution of the $10.3 million it paid in the Zimmer settlement is barred by the November 11 agreement would mean that an insurer must rescind an insurance policy claim by claim. International’s argument is based upon S&L’s “admission” that the November 11 Zimmer agreement relates only to the Zimmer claim and has no effect on International’s right to rescind its policy as to any or all other claims under the policy. However, the fact that the policy becomes rescindable with respect to these other claims does not revoke the agreement with respect to the Zimmer claim in which the insurer gave up the right to challenge its insured’s claim for the amount of $10.3 million whether by rescission or otherwise. Conversely, although International may be barred from asserting rescission of the policy as a basis for its claim of restitution of the $10.3 million it paid in the Zimmer settlement because of the November 11 agreement, this has no effect on its rights in other cases such as the Kentucky Utilities or Wabash Valley actions. See Chubb v. Amax Coal Co. (1984), 125 Ill. App. 3d 682, 684, 466 N.E.2d 369 (release of “all claims *** or causes of action in any way connected with or arising out of [employer’s long-term disability policy]” did not bar subsequent claim under same policy which arose after the date of the release and after employee returned to work for employer).

The parties have argued, and we have considered, the effect of the November 11 settlement agreement under the tacit assumption that it is a release. A release is an agreement which extinguishes a cause of action. (Brady v. Prairie Material Sales, Inc. (1989), 190 Ill. App. 3d 571, 575, 546 N.E.2d 802; Ledesma v. Cannonball, Inc. (1989), 182 Ill. App. 3d 718, 724, 538 N.E.2d 655.) We note, however, that nowhere in the agreement is the word “release” found. Instead, it speaks of the “reservation” of certain rights and the “agreement” of the parties not to make other claims. Thus, the November 11 agreement might be more accurately considered a covenant not to sue rather than a release. (Compare Ledesma v. Cannonball, Inc., 182 Ill. App. 3d 718, 538 N.E.2d 655 (although instrument entitled “release” and included language that “release” was “full and final satisfaction” of plaintiff’s claim, typed-in language expressly reserving rights against defendant held to be dispositive of intent that the agreement was a covenant not to sue rather than a release), with Brady v. Prairie Material Sales, Inc., 190 Ill. App. 3d 571, 546 N.E.2d 802 (instrument which includes term “release” and not “covenant” held to be a release rather than a covenant not to sue).) As a covenant not to sue, it would “a£fect[ ] only the right to bring suit and not the underlying cause of action itself.” (Brady v. Prairie Material Sales, Inc., 190 Ill. App. 3d at 575; Ledesma v. Cannonball, Inc., 182 Ill. App. 3d at 724.) However, whether the agreement is considered to be a release or a covenant not to sue, the issue in either case is the intent of the parties to the agreement. Brady v. Prairie Material Sales, Inc., 190 Ill. App. 3d at 575 (“framing the issue as whether an instrument is a release or a covenant not to sue *** distorts the real issue, which is a determination of the intent of the parties to the agreement”); Pate v. City of Sesser (1979), 75 Ill. App. 3d 233, 239, 393 N.E.2d 1146 (“[r]ather than assigning a legal label to the instrument, we should instead focus upon and give effect to the intent of the parties”).

Accordingly, for all the above reasons, we hold that the November 11 agreement bars International’s assertion of counts VIII and IX for rescission and restitution of the $10.3 million it paid in connection with the Zimmer settlement as pleaded. We therefore answer the first certified question in the affirmative.

The second certified question for our consideration, as framed by the trial court, is “whether the Court must return the parties to the status quo ante and require International to return the benefits it obtained by a change in the status quo before granting recission [sic].” There is no dispute, however, between the parties as to whether the remedy of rescission requires that the parties be returned to the status quo ante. “[Tjnherent in the remedy of rescission is the return of the parties to their proper precontract positions. Rescission is an equitable doctrine, and a party seeking rescission must restore the other party to the status quo existing at the time the contract was made.” (Puskar v. Hughes (1989), 179 Ill. App. 3d 522, 528, 533 N.E.2d 962.) What is in dispute is precisely what International would be required to restore to S&L in order to obtain rescission here.

S&L argues that International must return the benefits it received by the Zimmer settlement. These benefits, S&L contends, include capping its potential loss at $23 million, when its policy limit was $45 million. In addition, S&L contends that International avoided the risk that, if there had been no settlement and S&L had lost at trial, International could have been liable for amounts in excess of its policy limits for bad-faith refusal to settle. S&L argues that since it is impossible for International to restore these benefits without undoing the Zimmer settlement, rescission is not available here.

International’s argument, that it need only return to S&L the premiums S&L paid under the insurance policy, is based upon its position that it is seeking only to rescind the policy and that it is not necessary to undo the November 11 agreement or the underlying Zimmer settlement between S&L, the CCD companies and Gibraltar Casualty. Moreover, International contends, the “benefits” which S&L claims International must restore are illusory, since without a valid policy in effect, capping of loss and potential liability for refusal to settle are meaningless. In addition, International urges that even if these “benefits” must be restored, its inability to do so does not bar rescission when such restoration is impossible.

As noted above, rescission of a contract generally requires that the parties be placed in their positions existing when the contract was made (.Puskar v. Hughes, 179 Ill. App. 3d 522, 533 N.E.2d 962; Luciani v. Bestor (1982), 106 Ill. App. 3d 878, 882, 436 N.E.2d 251 (“[a]s a general rule, a court sitting in equity will not decree rescission of a contract where the parties cannot be placed in the status qua ante”)] Hakala v. Illinois Dodge City Corp. (1978), 64 Ill. App. 3d 114, 120, 380 N.E.2d 1177 (“it is a general principle of the doctrine of rescission that a person demanding rescission restore the other party to the status quo existing at the time the contract was made”).) Where such restoration is impossible, however, it does not necessarily preclude granting of rescission. Restoration of the status quo ante will not be required when restoration has been rendered impossible by circumstances not the fault of the party seeking rescission, and the party opposing the rescission has obtained a benefit from the contract. (John Burns Construction Co. v. Interlake, Inc. (1982), 105 Ill.App. 3d 19, 27, 433 N.E.2d 1126 (“Where, as here, however, a party has received a benefit and restoration of the status quo has been rendered impossible by reason of circumstances not the fault of the party seeking to rescind, restoration or an offer to restore need not be made”); see also Hakala v. Illinois Dodge City Corp., 64 Ill. App. 3d at 120 (the party seeking rescission “is not required to put the other party in the same situation in which he was before the contract, where the latter has rendered it impossible by the nature of his fraud or other act, or where from the nature of the land and the purpose for which it was purchased, it is impossible to restore the status quo”).) Rescission will not be granted, however, where the actions of the party seeking rescission have “created an impediment” to the court’s ability to restore the status quo ante. Klucznik v. Nikitopoulos (1987), 152 Ill. App. 3d 323, 328, 503 N.E.2d 1147.

In the instant case, it is impossible to place International in the position it was prior to the Zimmer settlement. Without undoing both the November 11 and the November 2 agreements and reinstating the underlying Zimmer action, there is simply no way that International can be exposed to the same risks it eliminated by settling. This impossibility, however, is not attributable to International. (Cf. Klucznik v. Nikitopoulos, 152 Ill. App. 3d at 328 (plaintiffs “unnecessarily complicated]” rescission by continued occupation of defendant’s premises for several months after they became aware of grounds asserted for rescission); Luciani v. Bestor, 106 Ill. App. 3d 878, 436 N.E.2d 251 (rescission denied where plaintiff’s continued operation of defendant’s business after learning of grounds for rescission but before bringing claim made restoration of status quo ante impossible).) In addition, S&L apparently derived substantial benefit from the Zimmer settlement in its own right. The CCD companies had sought approximately $400 million in damages, an amount considerably in excess of the coverage provided in S&L’s policies with Gibraltar and International. Thus, by settling, S&L capped its liability as well as that of International and eliminated the significant additional risk that it was exposed to had the case gone to trial. Moreover, although S&L paid $12.7 million to the CCD companies in the settlement, it also received from the CCD companies $12.7 million on its counterclaim for unpaid fees and professional services. Consequently, International’s rescission claim, if properly pleaded, would not necessarily be barred on the grounds of any inability to restore the status quo ante at this stage of the proceedings!

Finally, although we have determined above that the November 11 agreement bars International’s rescission and restitution claim as pleaded, we briefly address the dismissal of S&L’s affirmative defenses which are the subject of the third certified question. We do so because of the possibility that on remand the counts at issue may be repleaded.

The facts establishing an affirmative defense must be pleaded with the same degree of specificity required by a plaintiff to establish a cause of action. (Kermeen v. City of Peoria (1978), 65 Ill. App. 3d 969, 973, 382 N.E.2d 1374 (“facts constituting an affirmative defense must be plainly set forth in the answer”).) A motion to dismiss an affirmative defense pursuant to section 2 — 615, as with all section 2 — 615 motions, admits all well-pleaded facts constituting the defense and attacks only the legal sufficiency of those facts. (Raprager v. Allstate Insurance Co. (1989), 183 Ill. App. 3d 847, 854, 539 N.E.2d 787.) Where the well-pleaded facts of an affirmative defense raise the possibility that the party asserting them will prevail, the defense should not be stricken. Raprager v. Allstate, 183 Ill. App. 3d 847, 539 N.E.2d 787; Farmer City State Bank v. Guingrich (1985), 139 Ill. App. 3d 416, 487 N.E.2d 758.

In affirmative defense number two, S&L alleges that International is estopped from asserting its rescission and restitution claims “by reason of its promise to insure Sargent & Lundy according to the terms of its policy.” S&L alleges that, in reliance on International’s promise, it “did not obtain other insurance and proceeded to defend and settle litigation against it, including the Zimmer case.” S&L further alleges that International was aware of the circumstances of the Kentucky Utilities and Wabash Valley claims in 1984, three years prior to the Zimmer settlement. S&L also alleges that it relied, to its detriment, on International’s conduct in settling the Zimmer litigation and on International’s promise that it would not seek to recover the $10.3 million it paid pursuant to the settlement.

International asserts that an estoppel may not be based solely on an insured’s reliance on a belief that it has insurance coverage. (See Old Mutual Casualty Co. v. Clark (1977), 53 Ill. App. 3d 274, 279, 368 N.E.2d 702 (“an estoppel may not be predicated on the mere fact that the [defendants] ‘were lulled into a belief’ that plaintiff would conduct all investigations and ‘defend all the litigation, pending and threatened’ ”).) The affirmative defense asserted here, however, goes beyond a mere reliance on a belief of coverage. As discussed above, when International became aware of the facts underlying its rescission claim is a pivotal question in this matter. S&L alleges International never questioned the validity of the policy while it participated in the Zimmer settlement although it was aware of its right to rescind at the time. Such conduct could conceivably form the basis of an estoppel, and as a result, dismissal of this defense was in error. See National Ben Franklin Insurance Co. v. Davidovich (1984), 123 Ill. App. 3d 88, 462 N.E.2d 696 (wherein the court found insurer estopped from denying coverage by retroactive reformation of policy because insurer had led insured to rely on the existence of coverage for over two years in resolving claim against insured).

S&L’s third affirmative defense alleged estoppel by reason of International’s conduct in entering into the November 11 agreement and performing that agreement by paying the $10.3 million to the CCD companies. In this defense, S&L incorporated certain paragraphs of its counterclaim against International, wherein were set forth in some detail the events in the Zimmer litigation leading up to the November 11 agreement. As discussed above in regard to the previous affirmative defense, an estoppel could arise from such conduct. (National Ben Franklin Insurance Co. v. Davidovich, 123 Ill. App. 3d 88, 462 N.E.2d 696.) Although we have concluded earlier that under the pleadings in their current state the inability of International to restore the status quo existing prior to the Zimmer settlement would not prevent International from seeking rescission based on the factors discussed above, the possibility still remains that International could be estopped from doing so. If it can be shown that S&L relied to its detriment on International’s conduct during the Zimmer action or in settling the matter, an estoppel would arise whereby International would be precluded from asserting its right. See Wald v. Chicago Shippers Association (1988), 175 Ill. App. 3d 607, 622, 529 N.E.2d 1138 (“estoppel arises through a party’s voluntary conduct whereby he is precluded from asserting his rights against another who in good faith relied on such conduct and was therefore led to change his position to his detriment”).

The fourth affirmative defense also alleges estoppel, in this instance arising from International’s failure to issue any reservation of rights letter in the Zimmer litigation. Included in this affirmative defense is a portion of a letter dated June 9, 1987, from International’s counsel to International, which stated, in part, “An excess carrier’s failure to reserve its right in a timely fashion will estop it from denying coverage where the rights of the insured have been prejudiced by the failure. Whiting v. Home Insurance Company, 516 E Supp. 642 (S.D.N.Y. 1981).” Quoting from the deposition of William Murray, International claims adjuster, S&L also alleged that “as a matter of practice, International issues reservation of rights letters as promptly as possible because it is both ‘good claim file handling’ and ‘fair to everybody involved, including the insured.’ ”

International’s response to this affirmative defense is that as an excess insurer, it had no duty to issue such a letter and therefore could not be estopped from asserting its rescission and restitution claims here by a failure to do so. In its brief before this court, International characterizes Whiting Corp. v. Home Insurance Co. (S.D.N.Y. 1981), 516 F. Supp. 643 as a “minority of one” which has been “openly criticized by other courts and various commentators,” and “the only decision that suggests that estoppel may lie against an excess carrier in a similar situation.”

It is true that the majority of cases hold that an excess insurer which has no duty to investigate coverage issues or to defend its insured will not be estopped from later asserting coverage defenses by a failure to issue a reservation of rights letter. (See, e.g., St. Paul Fire & Marine Insurance Co. v. Children’s Hospital National Medical Center (D.D.C. 1987), 670 F. Supp. 393, 402 (“duty to disclaim coverage or reserve rights is a part of the duty to defend”); Phoenix Insurance Co. v. United States Fire Insurance Co. (1987), 189 Cal. App. 3d 1511, 235 Cal. Rptr. 185; but see Whiting Corp. v. Home Insurance Co., 516 F. Supp. 643.) It is the duty to defend which gives rise to the duty to reserve rights when defense of a claim is undertaken, and without such a duty an insurer has no obligation to issue a reservation of rights letter. (St. Paul Fire & Marine Insurance Co. v. Children’s Hospital National Medical Center, 670 F. Supp. 393.) S&L alleges here, however, that International “as a matter of practice” issued reservation of rights letters. While it may be that such a course of conduct between an insurer and its insured could give rise to an estoppel if detrimentally relied upon by the insured, no allegations have been made of such a course of conduct between the parties here. Only International’s general practice is referred to. (DeGraw v. State Security Insurance Co. (1976), 40 Ill. App. 3d 26, 34, 351 N.E.2d 302 (“[ejvidence of this kind [custom and usage], if indeed an identifiable custom or business practice *** could be dispositive of *** whether a particular defendant should be estopped to deny liability”); see also Bauter v. Reding (1979), 68 Ill. App. 3d 171, 385 N.E.2d 886 (estoppel may be based on course of conduct by insurer in handling claim); Reynolds v. Guarantee Reserve Life Insurance Co. (1976), 44 Ill. App. 3d 764, 358 N.E.2d 940.) There are no allegations that S&L had ever received such a letter from International in the past. In addition, there are no allegations that S&L relied on such course of conduct to its detriment. Consequently, the fourth affirmative defense is insufficiently pleaded.

The fifth affirmative defense was simply a combination of defenses two through four. As a result, we do not address it separately.

We note that, in dismissing defenses two through five, the court stated “you haven’t shown any misrepresentations or reliance on representations; and therefore, I’m going to strike two, three, four, and five.” Estoppel, however, does not require a misrepresentation, but may be based on conduct or nonaction by an insurer upon which the insured relies to his detriment. Meier v. Aetna Life & Casualty Standard Fire Insurance Co. (1986), 149 Ill. App. 3d 932, 938, 500 N.E.2d 1096 (“[e]stoppel implies prejudicial reliance by the insured upon some conduct, act or nonaction of the insurer. [Citations.] Estoppel may be found even though the insurer intended neither to mislead, nor to relinquish its own rights”); see generally 16B J. Appleman & J. Appleman, Insurance Law & Practice §9081, at 491-96 (1981).

In affirmative defense six, S&L raises the issue of laches. S&L alleges that, prior to November 11, 1987, International knew the information upon which it now bases its rescission action, and that International unreasonably delayed bringing its rescission and restitution claims until December 5, 1988. In this defense, S&L relies on the specific allegations of affirmative defense number two as to when International learned of its right to rescission.

Laches is “such neglect or omission to assert a right, taken in conjunction with a lapse of time of the more or less duration and other circumstances causing prejudice to an adverse party, as will operate to bar relief in equity.” (Pyle v. Ferrell (1958), 12 Ill. 2d 547, 552, 147 N.E.2d 341.) Such a failure to assert a right, a lapse of time, and prejudice to S&L have been alleged here.

In dismissing this defense, the trial court stated “[tjhere is absolutely no basis for it. I’m taking in the historic background of this case.” It appears that the court was making a factual determination regarding when International learned of its right to rescission. As with any section 2 — 615 motion, however, all well-pleaded facts must be accepted as true. Raprager v. Allstate Insurance Co., 183 Ill. App. 3d 847, 539 N.E.2d 787.

The seventh affirmative defense alleged that the November 11 agreement barred International from bringing its rescission and restitution claims. Here S&L also alleged that International was aware of the information on which it based its rescission claim at the time the November 11 agreement was signed. The court dismissed this defense as well, stating, “As to International’s having information that knew prior to the signing of the November 11, 1987, agreement which you contend is a waiver, I’m going to strike that.” As with the previous affirmative defense, the court erred in making factual determinations and in not accepting pleaded facts as true.

In striking affirmative defense eight, wherein S&L alleged that International was not entitled to rescission and restitution because it did not seek to undo the Zimmer settlement or to restore all benefits it received in that settlement, the court relied on its earlier determination that it was not necessary to rescind the Zimmer settlement and that the November 11 Zimmer agreement did not bar International’s right to rescission and restitution of the $10.3 million. This issue has been previously discussed above.

In the ninth affirmative defense S&L alleged lack of due diligence by International in pursuing its rescission claim after it learned of the facts upon which the claim was based. Again S&L incorporated the specific allegations of its second affirmative defense as to when International learned of its right to rescission. Although it is somewhat unclear how this affirmative defense differs from number six alleging laches, in dismissing this defense the court again made an impermissible factual determination, stating “I contend that they found that out at a later date.”

The court also struck the tenth affirmative defense alleging unclean hands, but stated that since it would be considering all the evidence, “if I ever find that they are doing something in bad faith or with unclean hands, I will sua sponte say that their hands are dirty.” No reason was given for this dismissal. Our review of this affirmative defense, however, reveals that its allegations are totally conclusory in nature and are devoid of any specific facts supporting the conclusion that International’s conduct “has been unconscionable and tainted with bad faith.” As a result, the trial court was correct in striking this defense.

Although we have determined that most of S&L’s affirmative defenses were prematurely dismissed, we need not reverse the order of dismissal of those defenses. Since we have also concluded that as pleaded the claim for rescission and restitution against which these affirmative defenses are raised is barred by the language of the November II agreement, the question of the affirmative defenses is not yet reached at this stage of the pleading. We are also mindful of the fact that if International’s counts for rescission and restitution are properly repleaded, some of S&L’s affirmative defenses could then more appropriately be raised as denials of those repleaded allegations rather than as new affirmative matter.

In conclusion, we reverse the trial court’s order denying S&L’s motion to dismiss counts VIII and IX of International’s amended complaint, and remand this matter to the trial court for further proceedings not inconsistent with this opinion.

Reversed and remanded.

MURRAY and COUSINS, JJ., concur.

      On remand, the trial court granted summary judgment in favor of Sargent & Lundy.

       Prior to his retirement, Justice Lorenz heard the oral argument in this appeal. Following his retirement, Justice Cousins was substituted for Justice Lorenz on the panel of this appeal, and he has listened to the tape of the orals and has read the briefs and record.