1-00-1121								FOURTH DIVISION

									aApril PRIL 18, 2002

FANE LOZMAN, individually, and BLUE 	)

WATER PARTNERS, INC., an Illinois 		)

Corporation,						)	Appeal from the 

								)	Circuit Court of

		Plaintiffs-Appellants,		)	Cook County.

								)

	v.							)	

								)

GERALD D. PUTNAM, individually, TERRA	)

NOVA TRADING, L.L.C., an Illinois 		)

Limited Liability Company, STUART		)	

TOWNSEND, individually, MARRGWEN 		)

TOWNSEND, individually, TOWNSEND		)

ANALYTICS, LTD., an Illinois 			)

Corporation, CHICAGO TRADING & 		)

ARBITRAGE, L.L.C., an Illinois Limited	)

Liability Company, ARCHIPELAGO, L.L.C.,	)

an Illinois Limited Liability Company,	)	Honorable

and ARCHIPELAGO HOLDINGS, L.L.C., an	)	Dorothy K. Kinnaird,

Illinois Limited Liability Company,	)	Judge Presiding.

								)

		Defendants-Appellees.		)	

	JUSTICE HARTMAN delivered the modified opinion of the court:

	Plaintiffs Fane Lozman and Blue Water Partners, Inc. (Blue

Water) appeal the circuit court's denial of their motion to vacate

a stay of discovery and the grant of a section 2-615 (735 ILCS 5/2-

615 (West 2000) (section 2-615)) motion to dismiss brought by

defendants Archipelago, L.L.C. and Archipelago Holdings, L.L.C.

(collectively, Archipelago).  Plaintiffs assert they pled

sufficient facts in the dismissed counts of their complaint to

state a cause of action against Archipelago and that the court

committed reversible error by denying their motion to vacate the

stay of discovery.  The issues raised on appeal include whether (1)

the court erred by granting Archipelago's section 2-615 motion to

dismiss; and (2) the court abused its discretion by denying

plaintiffs' motion to vacate the stay of discovery.  

	On August 9, 1999, plaintiffs filed their initial complaint for damages and injunctive, declaratory and other equitable relief,

alleging, inter alia, usurpation of corporate opportunity and breach of joint venture.  Certain defendants, including Gerald D.

Putnam, Terra Nova Trading, L.L.C. (Terra Nova), Stuart Townsend

and Marrgwen Townsend (collectively, the Townsends), Townsend

Analytics, Ltd. (Townsend Analytics) and Chicago Trading &

Arbitrage, L.L.C. (CTA), moved to dismiss plaintiffs' complaint

pursuant to sections 2-615 and 2-619 (735 ILCS 5/2-619 (West 2000)

(section 2-619)) of the Code of Civil Procedure (735 ILCS 5/1-101 et seq. (West 2000) (Code)).  Archipelago, in a separate motion, moved to dismiss plaintiffs' action under sections 2-613 (735 ILCS

5/2-613 (West 2000) (section 2-613)) and 2-615 of the Code.  Also,

certain defendants and Archipelago separately moved for a

protective order staying discovery.  The circuit court granted

defendants' motions to dismiss, stayed discovery as to all

defendants and granted plaintiffs leave to file an amended

complaint.  

	On December 6, 1999, plaintiffs filed their 22-count, revised 

amended complaint (hereinafter "amended complaint")1 and, shortly thereafter, moved to vacate the stay of discovery.  Pertinent to

the instant appeal, in count XIV, plaintiffs sought recission,

cancellation and reformation of a partial release signed by Lozman

and Putnam on October 9, 1995, which released Putnam, Townsend Analytics and Terra Nova

from liability, but not Archipelago.  Plaintiffs alleged that the

partial release was procured by means of constructive fraud and

breach of fiduciary duty.  Plaintiffs pled that such a partial

release between fiduciaries is presumed to be fraudulent.  In addition to that presumption, according to plaintiffs, Putnam

procured the partial release by not disclosing breaches of

fiduciary duties which arose out of his status as an officer of

Blue Water and joint venture partner of Lozman.  Plaintiffs

asserted that as a direct and proximate result of defendants'

nondisclosure of material facts and Putnam's receipt of money in

his fiduciary capacities that he failed to disclose, Lozman's

signature on the partial release and his writing of the word "void"

on the April 17, 1995 agreement regarding futures and futures

options commissions should be rescinded and cancelled.  Certain

defendants and Archipelago each moved to dismiss plaintiffs'

amended complaint pursuant to sections 2-615 and 2-619 of the Code.

	After lengthy argument on the motions, the circuit court made

the following oral findings as to: (1) counts I and II, plaintiffs

pled sufficient facts to survive the motions to dismiss, noting

that plaintiffs alleged more than mere usurpation of suggested

ideas; (2) counts III and IV, for similar reasons as to the first

two counts, enough facts were pled to survive the motions to

dismiss; (3) counts V and VI, dismissed with prejudice; (4) counts

VII and VIII, dismissed with prejudice; (5) counts IX and X,

dismissed with prejudice because Archipelago did not exist at the

time plaintiffs terminated their relationship with Putnam, the

Townsends, Townsend Analytics and Terra Nova; (6) counts XI and

XII, Archipelago and CTA were dismissed with prejudice because

plaintiffs failed to plead facts demonstrating that they were part of any joint venture, but the court denied the motion as to the

remaining defendants; (7) count XIII, dismissed with prejudice; (8)

count XIV, sufficient facts were pled to allow the recission count

to remain, specifically noting that plaintiffs alleged the release

was fraudulently obtained; (9) counts XV and XVI, dismissed with

prejudice because plaintiffs lacked standing under the statute;

(10) count XVII, dismissed with prejudice because plaintiffs lacked

standing under the statute; (11) count XVIII and XIX, denied

because plaintiffs have pled various facts showing agreements that

the parties entered into from which they have yet to receive

revenues; (12) count XX, denied because plaintiffs pled sufficient

facts illustrating agreements between the parties to transfer

ownership; (13) count XXI, all defendants were dismissed with

prejudice because an independent cause of action for breach of duty

did not exist; and (14) count XXII, Archipelago and CTA were

dismissed because Illinois case law supported Archipelago's

contention that a corporation cannot conspire with its own agents,

but denied the motion as to the remaining defendants.  	

	On March 24, 2000, the circuit court entered a written order

granting Archipelago's section 2-615 motion to dismiss counts IX-

XII, XVII and XXI-XXII with prejudice, thereby rendering

unnecessary consideration of Archipelago's section 2-619 motion. 

The order also stated that "[t]he dismissal of the Archipelago

defendants with prejudice is a final and appealable order pursuant

to Supreme Court Rule 304(a)."  In addition, on April 19, 2000, the court ordered that the March 24, 2000 order be amended, nunc pro tunc, to read, "[t]he dismissal of the Archipelago defendants with prejudice is a final and appealable order pursuant to Supreme Court

Rule 304(a).  No just reason exists for delaying either enforcement

or appeal or both."  

	The court also denied plaintiffs' motion to vacate the stay of discovery.  Plaintiffs filed a timely notice of appeal. 

	Plaintiff's amended notice of appeal specifies, among other

things, that appeal is taken from the March 24, 2000 order granting

defendants' section 2-615 motion to dismiss counts IX through XII,

XVII, XXI and XXII, with the appeal being based upon the circuit

court's Rule 304(a) finding.  Notwithstanding that finding,

analysis reveals that the appeal is final only as to counts XI-XII,

XVII, XXI and XXII, as shown in the discussion under Part I of this

opinion, but not as to counts IX and X, as shown under Part II of

this opinion.  Separate treatment and result is justified under the

principles of judicial economy and efficient administration of

justice.

	I

	In counts XI and XII of their complaint, plaintiffs sought relief against all defendants for breach of joint venture, which is defined as an association of two or more persons to carry out a

single enterprise for profit.  Fitchie v. Yurko, 212 Ill. App. 3d 216, 226, 570 N.E.2d 892 (1991).  Here, the facts did not show that

plaintiffs and Archipelago were associated to carry out a single enterprise for profit, nor did plaintiffs plead facts demonstrating

the existence of a formal or informal agreement establishing a

joint venture between themselves and Archipelago.  

	In count XVII, plaintiffs, citing section 12.56 of the Act,

pursued a corporate oppression claim against Archipelago for

monetary relief based on the conduct of the individual defendants. 

The supreme court in Schirmer v. Bear, 174 Ill. 2d 63, 74-75, 672 N.E.2d 1171 (1996) (Schirmer) held that when a plaintiff seeks relief under section 12.55 (805 ILCS 5/12.55 (West 2000)) of the

Act by filing an action which alleges illegal, oppressive or

fraudulent conduct, plaintiff must establish that defendant engaged

in alleged statutory misconduct.  Although here, plaintiffs pled

facts showing that Putnam and the Townsends engaged in a series of

acts and a course of conduct that prevented them from possessing

and commercially enjoying opportunities, assets and benefits,

plaintiffs failed to establish facts showing that Archipelago

engaged in statutory misconduct.  Therefore, applying the holding

in Schirmer to section 12.56 of the Act, the circuit court properly dismissed count XVII.

	Further, in count XXI, plaintiffs sought recovery against all defendants for breach of the duty of good faith and fair dealing. 

In Voyles v. Sandia Mortgage, 196 Ill. 2d 288, 751 N.E.2d 1126 (2001), plaintiff could not bring an independent cause of action in

tort for the alleged breach of an implied duty of good faith and

fair dealing arising from a contract.

	Recovery against all defendants for civil conspiracy in count

XXII also is inactionable because plaintiffs failed to state an

independent cause of action against Archipelago for its claims. 

See Indeck North American Power Fund v. Norweb, P.L.C., 316 Ill. App. 3d 416, 432, 735 N.E.2d 649 (2000).

	From the foregoing, the record supports the circuit court's

dismissal of counts XI, XII, XVII, XXI and XXII.

	II

	A different issue is presented with respect to the

appealability of the dismissal of counts IX and X.  Although

neither party contests this court's jurisdiction to hear this

appeal, the consent of the parties does not confer jurisdiction. 

Therefore, this court raises the jurisdictional issue sua sponte.  Ferguson v. Riverside Medical Center, 111 Ill. 2d 436, 440, 490 N.E.2d 1252 (1986); Archer Daniels Midland Co. v. Barth, 103 Ill. 2d 536, 539, 470 N.E.2d 290 (1984); Vijuk Bindery Equipment, Inc. v. Transconex, Inc., 171 Ill. App. 3d 408, 409, 525 N.E.2d 593 (1988).

	Supreme Court Rule 304(a) (155 Ill. 2d R. 304(a) (Rule 304(a))) provides that if multiple parties or claims for relief are

involved in an action, a party may appeal a final judgment as to

one or more, but fewer than all the claims only if the circuit

court has made an express written finding that there is no just

reason to delay enforcement or appeal of its order.  The supreme

court has held that a claim includes any right, liability or matter raised in an action.  Marsh v. Evangelical Covenant Church of Hinsdale, 138 Ill. 2d 458, 465, 563 N.E.2d 459 (1990) (Marsh).  If a judgment does not resolve every right, liability or matter

raised, it must contain an express finding that there is no just

reason for delaying an appeal.  Marsh, 138 Ill. 2d at 465.  The purpose of Rule 304(a) is to discourage piecemeal appeals in the

absence of a just reason and to remove the uncertainty which

existed when a final judgment was entered on fewer than all the

matters in controversy.  Marsh, 138 Ill. 2d at 465.

	An order which includes language stating that it was entered

pursuant to Rule 304(a) nevertheless may not be appealable unless

it is a final judgment.  Viirre v. Zayre Stores, Inc., 212 Ill. App. 3d 505, 511, 571 N.E.2d 209 (1991) (Viirre); cf. Boonstra v. City of Chicago, 214 Ill. App. 3d 379, 385, 574 N.E.2d 689 (1991) (Boonstra) (finding that "[w]here a dismissal is based upon a determination that the complaint is not sufficient to state a cause

of action, the order is final and appealable by its nature," and

that "an order of dismissal for failure to state a cause of action

which is not followed by a request to amend is a final, appealable

order and does not require a specific declaration by the plaintiff

that he wishes to stand on the complaint").2  Accordingly, an initial determination must be made as to whether the circuit court's Rule 304(a) finding was final and appealable.

	An order is "final" if it terminates the litigation between

the parties on the merits or disposes of the rights of the parties

either on the entire controversy or a definite and separate part

thereof.  Susman v. Price, 230 Ill. App. 3d 639, 641, 594 N.E.2d 1332 (1992) (Susman); Village of Niles v. Szczesny, 13 Ill. 2d 45, 48, 147 N.E.2d 371 (1958).  The circuit court may enter an order

with the necessary Rule 304(a) language, however, the reviewing

court is not precluded from making an independent assessment of the

nature of the order.  Bachewicz v. American National Bank and Trust Co. of Chicago, 75 Ill. App. 3d 252, 258, 393 N.E.2d 652 (1979).  A key factor in determining the finality of an order appealed from

pursuant to Rule 304(a) is whether the bases for recovery under the

counts that were dismissed are different from those in the

remaining counts.  Coryell v. Village of La Grange, 245 Ill. App. 3d 1, 5-6, 614 N.E.2d 148 (1993).  In addition, the reviewing court

may analyze the precise nature of the conflict remaining between

the parties and the effect that the judgment in question will have

on that conflict.  Hildebrand v. Topping, 240 Ill. App. 3d 104, 108, 608 N.E.2d 119 (1992) (Hildebrand).

	In Hildebrand, plaintiff filed a petition for an accounting arising out of two partnerships with defendant.  The circuit court

ruled in favor of plaintiff on his complaint and against defendant

on his counterclaim.  The circuit court retained jurisdiction to

oversee the final winding up of partnership affairs, final accounting and sale of property belonging to one of the former

partnerships.  On appeal, defendant asserted that the appellate

court lacked jurisdiction pursuant to Rule 304(a) because the

circuit court order was not final and appealable, although the

necessary language was present in the order.  The Hildebrand court found that the order was not final and appealable because it was

intertwined with the final accounting still pending in the lower

court and further ruled that the case could not be resolved without

a full examination of the partnership accounts.  240 Ill. App. 3d

at 108.

	In Palatine National Bank v. Charles W. Greengard Associates, Inc., 119 Ill. App. 3d 376, 456 N.E.2d 635 (1983) (Palatine), plaintiff sought to appeal from count IV of its complaint from

which the circuit court struck certain claims for damages.  Counts

I-III of its complaint claimed negligence and the fourth count

sounded in contract.  Defendant contended that the court's order

was not final because it did not fully dispose of the contract

action, although the court made findings required by Rule 304(a). 

The Palatine court dismissed the appeal as to the circuit court's order regarding count IV, finding that had plaintiff sought to

appeal only from the dismissal of the portions of the allegations

of count IV, it could not do so properly because the order left the

cause of action still pending and undecided under that theory of

recovery.  119 Ill. App. 3d at 381.

	In the instant case, similar to the above-discussed cases, the circuit court's dismissal of counts IX and X involving Archipelago

did not dispose of the parties' rights on a definite part of the

litigation, namely, Archipelago's putative liability, because count

XIV, the pending recission count, was not dismissed, the court

having denied defendants' motion to do so.  A review of the

pleadings from that count is necessary to determine whether the

court's Rule 304(a) finding was entered improvidently due to a lack

of finality of the judgment.

	The instant pleadings show that the disputed October 9, 1995 agreement from which plaintiffs seek recission did not release

Archipelago as a party since Archipelago did not exist in name at

that time.  One of the signatories of the agreement, Putnam, was a fiduciary of Blue Water as its former president.  In the recission

count, plaintiffs allege Putnam procured the partial release by means of constructive fraud and breach of fiduciary duty.  As part of the partial release agreement, Lozman voided his rights to

futures and futures options commissions generated for customer

accounts initiated through Scanshift or Townsend software, which software plaintiffs claim is utilized currently by Archipelago. 

Plaintiffs also pled that Archipelago, as an alter ego of Terra

Nova, was in the same line of business as Blue Water because

Archipelago was formed and is now operated by Putnam and the

Townsends.

	A complaint need only contain a plain and concise statement of plaintiff's cause of action; it is unnecessary for the complaint to set forth evidence that plaintiff intends to introduce at trial. 

Rodgers v. Whitley, 282 Ill. App. 3d 741, 749, 668 N.E.2d 1023 (1996) (Rodgers).  Pleadings in the complaint are to be liberally construed "with a view toward doing substantial justice between the

parties."  735 ILCS 5/2-603(c) (West 2000).  A cause of action

should not be dismissed on the pleadings unless it clearly appears

that no set of facts can be proved under the pleadings which would

entitle plaintiff to recover.  Davis v. Temple, 284 Ill. App. 3d 983, 989, 673 N.E.2d 737 (1996).

	Further, a plaintiff is not required to plead facts with

precision when the information needed to plead those facts is

within the knowledge and control of defendant rather than plaintiff

(Bryson v. News America Publications, 174 Ill. 2d 77, 110, 672 N.E.2d 1207 (1996) (Bryson); Stap v. Chicago Aces Tennis Team, Inc., 63 Ill. App. 3d 23, 29-30, 379 N.E.2d 1298 (1978) (Stap)).  Those cases are pertinent here because the circuit court granted

defendants' motions to stay discovery until after resolution of the

motions to dismiss and, thereafter, denied plaintiffs' motion to

vacate the stay of discovery.  It follows that where defendants

have most of the relevant information in their possession, they

have no need to rely primarily on facts stated in plaintiffs'

complaint to formulate an answer and responsive motions since they

are aware of and can determine easily the specific details for

themselves.  Bryson, 174 Ill. 2d at 110; Stap, 63 Ill. App. 3d at 28-30.  In cases such as this one, plaintiffs can state the material facts with less specificity than normally would be

required and the pleading will not be considered to be bad in

substance if it reasonably informs defendants of the nature of the

claim they must meet.  Bryson, 174 Ill. 2d at 111; Champaign National Bank v. Illinois Power Co., 125 Ill. App. 3d 424, 428, 465 N.E.2d 1016 (1984).      

	Accepting the factual allegations contained in plaintiffs' pleadings as true and considering them in a light most favorable to

plaintiffs (Rodgers, 282 Ill. App. 3d at 746), sufficient facts have been pled to show, allegedly, the line of business from Blue

Water to Archipelago, with Putnam as the fiduciary link in common

for all the corporations that were formed until the eventual

creation of Archipelago.  Plaintiffs having pled a connection between Archipelago and the October 9, 1995 release raises

Archipelago's potential liability through Putnam's actions and

Archipelago's usage of Scanshift and Townsend software, thereby

making the determination of Archipelago's conceivable liability 

intertwined with and inseparable from the resolution of the

recission count.  

	Considering Putnam as the fiduciary link between Blue Water

and Archipelago, the language in the recission count does not

evince finality as to Archipelago's possible liability.  Further,

because the pleadings show Putnam's involvement as a fiduciary for

Blue Water, Terra Nova and Archipelago, defendants reasonably were

informed of the nature of the breach of fiduciary duty and constructive fraud claims through the alleged line of business

leading to the formation of Archipelago.  Therefore, resolution of

the pending recission count is paramount because if plaintiffs were

to succeed below in rescinding the October 9, 1995 partial release, Archipelago potentially could be held liable for claims that the circuit court dismissed. 

	The bases for recovery under counts IX and X that were

dismissed could be affected by the outcome of trial as to count

XIV, for which uncertainly still exists.  The circuit court's grant

of Rule 304(a) relief as entered here is reviewed under an abuse of

discretion standard.  Schal Bovis, Inc. v. Casualty Insurance Co., 314 Ill. App. 3d 562, 570, 732 N.E.2d 1082 (1999); Susman, 230 Ill. App. 3d at 642.  To determine appealability, Illinois courts have looked to federal cases discussing the Federal Rules of Civil

Procedure, specifically Federal Rule 54(b) (Fed R. Civ. P. 54(b)

(Rule 54(b))), which has substantially similar language to Rule

304(a).  See Geier v. Hamer Enterprises, Inc., 226 Ill. App. 3d 372, 378-389, 589 N.E.2d 711 (1992) (Geier). 

	In Geier, the court considered various factors utilized by the federal courts to determine whether the certification for appeal of

a portion of a case was an abuse of discretion.  These factors

include: "'(1) the relationship between the adjudicated and

unadjudicated claims; (2) the possibility that the need for review

might or might not be mooted by future developments in the district

court; (3) the possibility that the reviewing court might be obliged to consider the same issue a second time; (4) the presence

or absence of a claim or counterclaim which could result in set-off

against the judgment sought to be made final; (5) miscellaneous

factors such as delay, economic and solvency considerations,

shortening the time of trial, frivolity of competing claims,

expense, and the like.  Depending upon the facts of the particular

case, all or some of the above factors may bear upon the propriety

of the [district] court's decision in certifying a judgment as

final under Rule 54(b).'"  Geier, 226 Ill. App. 3d at 383, quoting Allis-Chalmers Corp. v. Philadelphia Electric Co., 521 F.2d 360, 362 (3rd  Cir. 1975); cf. Carter v. City of Philadelphia, 181 F.3d 339 (3rd Cir. 1999).

	The Geier court also noted the United States Supreme Court's decisions, which emphasize a pragmatic approach by utilizing a

severability analysis.  "Where the dismissed claims 'can be decided

independently of each other,'" in that they are not "'so inherently

inseparable from, or closely related to' the remaining claims, then

the [circuit] court does not abuse its discretion in certifying

that there exists no just reason for delay of the appeal."  Geier, 226 Ill. App. 3d at 385, quoting Sears, Roebuck & Co. v. Mackey, 351 U.S. 427, 436, 100 L. Ed. 1297, 1306, 76 S. Ct. 895, 900

(1956); see also Curtiss-Wright Corp. v. General Electric Co., 446 U.S. 1, 10, 64 L. Ed. 2d 1, 12-13, 100 S. Ct. 1460, 1465 (1980). 

If, however, there is an abundance of factual overlap between the

decided and the retained claims, they are not separate, and an appeal must be deferred until the latter are resolved.  Jack Walters & Sons Corp. v. Morton Building Inc., 737 F.2d 698, 702 (7th Cir. 1984).

	In the case sub judice, some of the adjudicated and unadjudicated claims are inseverable because, as previously noted,

Archipelago's liability cannot be determined fully until resolution

of the pending recission count.  Appellate review of the dismissed

counts of plaintiffs' complaint might be mooted by future

developments in the circuit court if there is a ruling against

plaintiffs regarding the recission count.  Also, as discussed

above, a ruling in plaintiffs' favor would create the possibility

that Archipelago could be held liable for the claims the circuit

court dismissed, thereby potentially obliging the reviewing court

to consider the issue of Archipelago's liability a second time.  In

addition, much factual overlap exists between the decided and

retained claims.  Therefore, the claims are not separate and an

appeal should be deferred until the recission count is resolved.

	A ruling by this court at this early stage regarding the circuit court's findings would become the law of the case, settling

the question of Archipelago's liability on remand regardless of the

outcome of the pending recission count.  Coldwell Banker Havens, Inc. v. Renfro, 288 Ill. App. 3d 442, 448, 679 N.E.2d 1299 (1997)  (law of the case doctrine provides that once a question of law or

fact is litigated and decided, that is the end of the matter, and

the decision settles the question for all subsequent stages of a lawsuit); Zokoych v. Spalding, 84 Ill. App. 3d 661, 667, 405 N.E.2d 1220 (1980) (questions of law decided in a previous appeal are

binding on both the circuit court and the appellate court). 

Appellate jurisdiction will not be extended when a ruling on review

may affect a future determination of pending counts below.  Viirre, 212 Ill. App. 3d at 512; Brown v. K.J.S. Co., 189 Ill. App. 3d 768, 771, 545 N.E.2d 555 (1989); In re Marriage of Ryan, 188 Ill. App. 3d 679, 682, 544 N.E.2d 454 (1989). 

	Based on the foregoing, the circuit court abused its

discretion by entering a Rule 304(a) finding as to counts IX and X

because the claims against Archipelago are inseverable until the

resolution of the recission count below.

	A reviewing court has a duty to dismiss an appeal when it

cannot exercise jurisdiction.  E.M.S. Co. v. Brandt, 103 Ill. App. 2d 445, 448, 243 N.E.2d 695 (1968).  Accordingly, Although a strict

interpretation of Rule 304(a) ordinarily would compel dismissal of

all counts brought here on appeal due to a lack of appellate

jurisdiction, in the interests of judicial economy and the

efficient administration of justice, the dismissal of

counts XI, XII, XVII, XXI and XXII is affirmed; however, because the March 24, 2000 and April 19, 2000 orders dismissing counts IX

and X were not final and appealable, the Rule 304(a) findings as to

those counts were entered improvidently, and, accordingly, as to them, this

appeal is dismissed.3

	Affirmed in part; appeal dismissed in part.

	HOFFMAN, P.J., and THEIS, J., concur.