SECOND DIVISION

									July 22, 2003

No. 1-01-2125

CHRIS LINKER, RICHARD HUGHES, JAMES W.

CARSON, JOHN CHANEY, JAY FLANAGAN, and

DONALD JONES, individually and on behalf of

all others similarly situated, 

		Plaintiffs-Appellants,

				v.

ALLSTATE INSURANCE COMPANY, an Illinois

corporation, and THE AGENT TRANSITION

SEVERANCE PLAN, 

		Defendants-Appellees.	

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Appeal from the 

Circuit Court of

Cook County.

Honorable

Lester D. Foreman, 

Judge Presiding.

	JUSTICE BURKE delivered the opinion of the court:

	Plaintiffs Chris Linker, Richard Hughes, and the law firms representing

them (the Attorneys) filed this appeal from orders of the circuit court denying

their request for attorney fees under the common fund doctrine, denying their

request for a preliminary injunction to escrow certain funds for fees, denying

their motion to reconsider denial of their request for fees and request for

escrow, and denying their motion to compel discovery.1

	Plaintiffs James Carson, John Chaney, Jay Flanagan, and Donald Jones

(plaintiffs) appeal from an order of the circuit court granting defendants

Allstate Insurance Company's and The Agent Transition Severance Plan's2 motion to dismiss plaintiffs' putative class action complaint that alleged causes of action for breach of contract and common law fraud.

	For the reasons set forth below, we affirm in part, reverse in part, and

remand for further proceedings.

	STATEMENT OF FACTS

	Plaintiffs were employed by defendant, as employees, rather than

independent contractors, under various forms of employment contracts, including

R830, R1500, and a "General Agent" contract, as agents who sold insurance

policies.3  Plaintiffs retired, some early, or terminated their employment with defendant prior to November 1, 1999.  Plaintiffs filed the instant class action

against defendant seeking damages for breach of contract (count I) and common law

fraud (count II), contending that defendant coerced them and others similarly

situated to retire from, terminate their employment, or convert to independent

contractor status, at a time when defendant knew, but failed to disclose to them

that, within a short period of time, it would offer lucrative severance benefits

and conversion incentives to individuals who remained employed with defendant.4   	According to plaintiffs' complaint, defendant conceived a new business plan, as early as December 1998, whereby defendant's customers would purchase

policies of insurance through independent contractors, call centers, or the

Internet.  As part of this plan, defendant would eliminate all of its employee-

agents, such as plaintiffs.  Plaintiffs alleged that to effectuate this plan,

defendant pressured or intimidated as many employees as possible to retire,

terminate their employment contracts, or convert to independent contractor status

so as to prevent them from being eligible for the benefits of the program it would soon announce.  According to plaintiffs' complaint, defendant held meetings

with its agency managers as early as July 1999, and advised them of the

incentives that were going to be offered to employees later that year. 

Plaintiffs further alleged that many of the employees, prior to retiring,

terminating their employment, or converting to independent contractor status,

inquired of the agency managers or human resource representatives as to whether

they could sell their books of business or whether any other changes were under

consideration.  Most plaintiffs were told that no changes were being considered

or known of, including being allowed to sell their books of business.

	On November 10, 1999, after many employees had terminated their employment

with defendant, defendant officially announced its new business plan and offered

a severance plan and conversion incentives under its "Agent Transition Severance

Plan" (Plan) to those employee-agents remaining with the company.  Pursuant to

the Plan, all employee employment contracts would terminate no later than June

30, 2000.  For those employees who terminated their contracts, retired, or

converted to independent contractor status between December 1, 1999, and June 30,

2000, the following options were offered.  First, an employee could convert to

independent contractor status under defendant's R3100S contract with certain

other bonuses being given.  Second, an employee could retire or terminate his or

her relationship with defendant and either sell his or her books of business or

select a severance program.  Two severance plans were offered.  The first was the

base plan in which employees would receive 1 week of pay for each full year of

service with defendant, up to 13 weeks, to be paid in 6 monthly installments. 

The second was the enhanced severance plan in which employees would receive 1

year's pay, to be paid in 24 monthly installments.  

	On January 11 and 14, 2000, plaintiffs' attorneys sent a demand letter to defendant, seeking the same benefits offered under the Plan for plaintiffs since

the severance plan and conversion incentives were under consideration at the time plaintiffs had retired or left defendant's employ.  Having received no response

from defendant, plaintiffs filed their original class action complaint on April

20.  The proposed class included all employee-agents who terminated their

employment with defendant, in whatever manner, after December 1, 1998, and who

were not offered benefits under the Plan.  On May 15, defendant amended its Plan

to include employees who had retired or terminated their employment subsequent

to June 1, 1999.  On May 18, defendant sent a letter to Linker, among others

presumably, informing him of the amendment.  Linker was advised that if he

desired to receive the benefits, he was required to return a signed release to

defendant by July 31.

	On May 31, plaintiffs filed an emergency motion to compel defendant to

provide the names of putative class members with whom defendant had been

communicating in connection with the class action and with whom it had made

settlement offers, and to permit plaintiffs' attorneys to initiate discovery so

that they could properly advise their retained clients and other putative class

members.  In their motion, plaintiffs alleged that after the class action had

been filed, but before the class was certified, defendant made attempts to settle

with putative class members, including Linker and Hughes, without communicating

with counsel.  The trial court denied the motion on June 1.  Thereafter,

defendant filed a motion to dismiss the class action complaint.  In the latter

part of July, Linker and Hughes accepted defendant's settlement offer and both

signed releases.

	On August 1, plaintiffs filed an amended complaint.  Carson, Chaney,

Flanagan, and Jones were added as representative plaintiffs.  The causes of

action remained the same.  However, The Agent Transition Severance Plan5 was added as a party defendant and a cause of action based on a violation of ERISA (count III) was alleged against it and defendant.6  On August 8, Linker, Hughes and their attorneys filed a motion for attorney fees pursuant to, inter alia, the common fund doctrine, and a motion for a preliminary injunction to escrow certain

funds for fees.  Defendants filed a memorandum in opposition to this motion.  In

addition, on September 15, defendants filed a motion to dismiss counts I and II

of plaintiffs' amended class action complaint pursuant to section 2-615 of the

Code of Civil Procedure (Code) (735 ILCS 5/2-615 (West 1998)) and a motion to

dismiss count III pursuant to section 2-619 of the Code (735 ILCS 5/2-619 (West

1998)).  With respect to count I, defendants contended that plaintiffs failed to

allege any specific contract provision that was breached and that Illinois does

not recognize an independent cause of action for breach of the implied covenant

of good faith in at-will employment contracts.  With respect to count II,

defendants contended that plaintiffs failed to plead with specificity and also

failed to plead that defendant owed a special duty to plaintiffs to disclose its

proposed Plan to its employees.  Plaintiffs thereafter responded to defendants'

motion and defendants replied.

	On November 1, a hearing was held on plaintiffs' motion for fees.  At the

hearing, plaintiffs argued that there was a "pot of approximately $10 million"

to be paid to 119 former employees.  According to counsel, they believed that

their demand letter to defendant and the filing of the class action lawsuit

prompted defendant to amend its severance plan and to offer benefits to the

additional 119 employees.  Following the hearing, the trial court denied

plaintiffs' motion for attorney fees and for a preliminary injunction.

	On November 6, following arguments by counsel, the trial court granted

defendants' motion to dismiss.  First, the trial court concluded that all

employees, including those employed under the R830 contracts, were at-will employees.  The court further concluded that there was no independent cause of

action for breach of the implied covenant of good faith.  The court dismissed

count I with prejudice because, given the facts of the case, it did not believe

that plaintiffs could cure the defects.  With respect to count II, the court

dismissed this count without prejudice, finding that plaintiffs failed to plead

with specificity and with particularity and also that they failed to plead any

special duty on the part of defendant.  Plaintiffs were given leave to file a

second amended complaint.

	On January 16, 2001, plaintiffs filed a motion to reconsider the denial of

attorney fees and preliminary injunction, relying on a recent case issued by the

Illinois Supreme Court.  On March 16, after defendants had responded to

plaintiffs' motion to reconsider, plaintiffs filed their reply to defendants'

response to their motion to reconsider, asked the court to set a hearing date on

the motion, and asked the court to compel discovery against defendant should the

court grant the motion to reconsider.  On May 14, because plaintiffs had failed

to file a second amended complaint, defendants filed a motion for entry of an

order dismissing the entire cause with prejudice.  On May 21, the trial court

denied plaintiffs' motion to reconsider, denied plaintiffs' motion to compel

discovery, and granted defendants' motion to dismiss the entire cause with

prejudice.  This appeal followed.

	ANALYSIS

	I.  Issues on Behalf of the Attorneys

	The issues with respect to the Attorneys raise questions as to the

propriety of the trial court's order denying their common fund claim, denying

their motion to escrow, denying their motion for reconsideration, and denying

their motion to compel discovery.  The Attorneys argue that our standard of

review on each of these issues is de novo because, although it is unclear from the record the specific bases for the trial court's decision on each motion, the

trial court's rulings were made without an evidentiary hearing and it made no

findings of fact.  Defendants contend that the standard of review with respect

to the request for fees is de novo, and that the standard of review with respect to the request to escrow fees and motion to compel discovery is based on an abuse

of the trial court's discretion.  Defendants do not set forth any standard for

reviewing the trial court's motion for reconsideration.

	A.  Common Fund Doctrine

	The Attorneys first contend that the trial court erred in declining to

apply the common fund doctrine in the instant case.  They rely extensively on a

recent Illinois Supreme Court decision, Morris B. Chapman & Associates, Ltd. v. Kitzman, 193 Ill. 2d 560, 739 N.E.2d 1263 (2000), in support of their contention that the common fund doctrine has been revitalized and clearly would apply in the

instant case.

	Defendants respond, in general, that Chapman is not applicable to the instant case.  They maintain that Chapman relaxed impediments to recovery of attorney fees only in certain cases and that the doctrine is still applicable

only in exceptional cases.  According to defendants, Chapman did not involve a class action and does not hold that in class actions all restrictions on the

doctrine have been lifted.  Defendants also argue that Chapman left untouched a long line of cases holding that the common fund doctrine is not applicable to

putative class actions.  Defendants also maintain that the Attorneys are

misdirecting the doctrine because they are attempting to impose it against

defendants, rather their clients--the proper parties. 

	The common fund doctrine allows an attorney "who creates, preserves, or

increases the value of a fund in which others have an ownership interest to be

reimbursed from that fund for litigation expenses incurred, including counsel fees."  Chapman, 193 Ill. 2d at 572-73.  The doctrine "rests upon the perception that persons who obtain the benefit of a lawsuit without contributing to its

costs are unjustly enriched."  Bishop v. Burgard, 198 Ill. 2d 495, 509, 764 N.E.2d 24 (2002).  The basis for the court's authority to award fees under this

doctrine is the power to do equity in a particular situation.  Sprague v. Ticonic National Bank, 307 U.S. 161, 166, 83 L. Ed. 1184, 1188, 59 S. Ct. 777, 780 (1939).  "To sustain a claim under the common fund doctrine, the attorney must

show that (1) the fund was created as the result of legal services performed by

the attorney, (2) the subrogee or claimant did not participate in the creation

of the fund, and (3) the subrogee or claimant benefitted or will benefit from the

fund that was created."  Bishop, 198 Ill. 2d at 508.  Whether the common fund doctrine applies to any particular case is a question of law which we review de novo.  See Janes ex rel. Estate of Janes v. Western States Insurance Co., No. 5- 99-0763, slip op. at 18 (August 31, 2001) (Goldenhersh, J., concurring in part

and dissenting in part).

	In Chapman, the wife of a deceased individual retained counsel (the plaintiff in Chapman) to file a wrongful death lawsuit in Missouri.  After working on the case for three years, the plaintiff settled for $800,000 on behalf

of the deceased heirs, including the wife and the deceased's parents (the

defendants in Chapman).  Chapman, 193 Ill. 2d at 562.  Shortly before the hearing on the wife's petition to approve settlement in the wrongful death lawsuit, the

defendants retained their own attorney, who intervened in the lawsuit.  Following

a hearing, the court awarded the wife 86% of the settlement and 14% to the

defendants.  The plaintiff was awarded a one-third attorney fee out of the wife's

portion of the settlement.  Chapman, 193 Ill. 2d at 562.  Thereafter, the plaintiff filed a lawsuit against the defendants, seeking attorney fees out of

the portion of the settlement awarded to them based on the common fund doctrine.  Chapman, 193 Ill. 2d at 563.  The trial court granted the defendants' motion to dismiss the common fund claim, concluding that it was inapplicable to the case

before it.  Chapman, 193 Ill. 2d at 564.  The appellate court reversed.  Morris B. Chapman v. Kitzman, 307 Ill. App. 3d 92, 716 N.E.2d 829 (1999).

	On appeal to the supreme court, the Chapman court first determined that Illinois law with respect to the common fund doctrine, not Missouri law, applied. 

Chapman, 193 Ill. 2d at 567-72.  The Chapman court then rejected the defendants' argument that the common fund doctrine was only applicable in class actions and

insurance subrogation cases, finding that the doctrine was applicable to " 'many

types of cases covering a large range of civil litigation.'  [Citation.]" 

Chapman, 193 Ill. 2d at 573.  The Chapman court next rejected the defendants' argument that a full segregated fund must be under the court's control (Chapman, 193 Ill. 2d at 574-75), relying on Sprague.  The Chapman court concluded that "the doctrine may be applied where a fund, for all practical purposes, has been

created for the benefit of others."  Chapman, 193 Ill. 2d at 576.  The Chapman court then distinguished three cases decided by this court in which we found in

each case that the common fund doctrine was not applicable since the attorneys

in those cases did not obtain any existing or identifiable monetary award for a

class.  Chapman, 193 Ill. 2d at 576-77.  In contrast, the Chapman plaintiff had pursued the wrongful death case for three years and secured a settlement for all

heirs, including the defendants.  As a result of the plaintiff's work, the

defendants were awarded $112,000.  The Chapman court found that the settlement was a fund and that the plaintiff was entitled to attorney fees out of the fund. 

Chapman, 193 Ill. 2d at 578.  The Chapman court lastly rejected the defendants' argument that the common fund doctrine was not applicable because the fund was

not controlled by any Illinois court, holding "that the mere fact that the fund

is not within the actual control of the Illinois courts is not determinative of [the plaintiff's] claim."  Chapman, 193 Ill. 2d at 578.

	We do not find Chapman persuasive, nor controlling, in the instant case.  Chapman did not involve a class action and, therefore, does not set forth the parameters or analysis necessary when the common fund doctrine is raised in class

action lawsuits.  Moreover, Chapman is factually distinguishable.  The attorney there worked on the case for three years and actually negotiated the settlement. 

Here, the Attorneys did not negotiate any settlement with defendant.  Further,

one lump sum, whether under the control of the court or not, was received in the Chapman settlement, whereas in the instant case, there were 119 different severance packages received.  In addition, the beneficiaries of the settlement

in Chapman knew about the case before the merits were decided and were parties to the proceedings.  Here, the beneficiaries are not parties to the proceedings.7  Lastly, the attorney in Chapman sought to receive fees from the parties who benefitted from the settlement, not from the payor of the settlement as in the

instant case.

	We conclude that application of the common fund doctrine is not appropriate in this case because the Attorneys seek to recover fees from the wrong parties

(defendants) and they have not brought the proper parties before the court (the

settling employees).  The law is clear that counsel must seek fees from the

beneficiaries of counsel's services, not from the adversaries (defendants here). 

See, e.g., Chapman, 193 Ill. 2d at 576-77; Hamer v. Kirk, 64 Ill. 2d 434, 436, 356 N.E.2d 524 (1976); Rosemont Building Supply, Inc. v. Illinois Highway Trust Authority, 51 Ill. 2d 126, 128, 281 N.E.2d 338 (1972).

	[THE FOLLOWING MATERIAL IS NONPUBLISHABLE MSYRTATERIAL UNDER SUPREME COURT RULE 2323 removedREMOVED HERE]  

	Additionally, while the Attorneys acknowledge that due process concerns are raised here because the beneficiaries are not before the court, nor were they,

or have they been given notice of the Attorneys' claim for fees, the Attorneys

maintain that they were not able to give notice because only defendants knew the

names of the settling beneficiaries, defendants have opposed every effort by the

Attorneys to obtain their identities, and defendants have refused to disclose

those names.  We do not find this argument persuasive.  The Attorneys had other

procedures that they could have followed or other proceedings they could have

instituted to obtain the names of those individuals who settled with defendants

and who may have been putative class members so that the Attorneys could bring

such individuals before the court.  Specifically, the Attorneys could have filed

an equitable bill of discovery.  Although a rarely used proceeding, it is

nonetheless a recognized proceeding in Illinois.  Goodpasteur v. Fried, 183 Ill. App. 3d 491, 493, 539 N.E.2d 207 (1989).  Such a proceeding is used to "enable

a plaintiff to obtain information and prepare his cause for trial."  Guertin v. Guertin, 204 Ill. App. 3d 527, 529, 561 N.E.2d 1139 (1994).  Had the Attorneys availed themselves of this proceeding, they would have been able to ascertain the

names of the settling beneficiaries and join them to afford them the requisite

due process.  However, the Attorneys did not do so.  Rather, the Attorneys

proceeded against defendants (the adversaries).  Based on the fact that the

necessary parties were not before the court, nor were they even given notice of

the Attorneys' claim for fees, application of the common fund doctrine would not

be equitable in this case.  [THE PRECEDING MATERIAL IS NONPUBLISHABLE UNDER SUPREME COURT RULE 23]  

	Based on our finding that the common fund doctrine is inapplicable in this

case, we need not determine whether a fund was, for all practical purposes,

created.  Similarly, we need not address the Attorneys' arguments with respect

to preemption, the effect of the releases and settlements entered into and

whether they bar the Attorneys' claim for fees, nor the Attorneys' argument with

respect to the fact that application of the common fund doctrine does not require

a meritorious judgment by the court, but, rather, the underlying cause of action

must only set forth nonfrivolous claims.  Accordingly, we find that the trial

court did not err in denying application of the doctrine.

	B.  Discovery and Preliminary Injunction

	[THE FOLLOWING MATERIAL IS NONPUBLISHABLE MATERIAL UNDER SUPREME COURT RULE 2323 removREMOVED HERE]

	The Attorneys next contend that the trial court should have compelled

discovery on the "catalyst" issue, e.g., whether their January 2000 demand letters to defendant and the filing of their original class action lawsuit caused

defendant to amend the Plan and offer benefits to additional employees.  The

Attorneys also contend that the trial court erred in denying their request for

a preliminary injunction to escrow certain funds for fees.  [THE PRECEDING MATERIAL IS NONPUBLISHABLE UNDER SUPREME COURT RULE 23]

	Because we have concluded above that the common fund doctrine was not applicable under the circumstances presented here, the Attorneys' arguments

regarding the issues of discovery and a preliminary injunction need not be

addressed since they are moot.

	II.  Appeal Issues on Behalf of Individual Plaintiffs

	Plaintiffs contend that the trial court erred in dismissing their amended

complaint (complaint) for breach of contract and common law fraud against

defendants pursuant to section 2-615 of the Code.  A motion to dismiss pursuant

to section 2-615 of the Code challenges the legal sufficiency of a plaintiff's

complaint.  Joseph v. Chicago Transit Authority, 306 Ill. App. 3d 927, 930, 715 N.E.2d 733 (1999).  When reviewing the sufficiency of a complaint, the court must

accept as true all well-pleaded facts and all reasonable inferences that can be

drawn from those facts.  Bryson v. News America Publications, Inc., 174 Ill. 2d 77, 86, 672 N.E.2d 1207 (1996).  It is the court's duty to determine, considering

the allegations of the complaint in the light most favorable to the plaintiffs,

whether the allegations are sufficient to state a cause of action upon which relief may be granted.  Board of Directors of Bloomfield Club Recreation Ass'n v. Hoffman Group, Inc., 186 Ill. 2d 419, 424, 712 N.E.2d 330 (1999).  The complaint should not be dismissed unless it is clear that the plaintiffs could

prove no set of facts that would entitle them to relief.  Bryson, 174 Ill. 2d at 86-87.  We review the trial court's decision on a motion to dismiss de novo.  Neade v. Portes, 193 Ill. 2d 433, 439, 739 N.E.2d 496 (2000).

	A.  Breach of Contract Claim

	Plaintiffs contend that the trial court erred in dismissing count I of

their complaint because they set forth four bases for breach of contract.  In

general, defendants respond that none of the theories advanced by plaintiffs are

viable because of the express at-will language in the employment contracts. 

Defendants also argue that plaintiffs failed to reference any specific contract

provision in support of any of their arguments. 

	First, plaintiffs argue that they set forth sufficient allegations that

defendant breached the termination provisions of the employment contract because

defendant engaged in concerted efforts to drive out employees before announcing

its new plan rather than terminating the employees for cause.  In this regard,

plaintiffs maintain that the trial court erred in holding that they were at-will

employees.  While plaintiffs concede that the R1500 employment contracts are at

will, they maintain that the R830 employment contract allows termination only for

cause and is not an at-will contract.  Although noting that there is a split of

authority in the Seventh Circuit federal court8 as to whether the R830 contracts require cause, plaintiffs argue that the better interpretation of the contract

is that it does require cause.  Otherwise, according to plaintiffs, the review

procedure provided for in the contract would be meaningless.  Plaintiffs further argue that the R830 contract, unlike the R1500 contract, does not use at-will

language and should be construed against defendant, the drafter, who clearly knew

how to draft an at-will contract.

	Defendants contend that both employment contracts are at will. 

Specifically, the R830 contract does not contain any specific term of employment

and provides that the contract can be terminated by either party upon written

notice.  According to defendant, its termination rights are only limited when an

employee is dismissed for unsatisfactory performance.

	Plaintiffs counter that the R830 contract contains no at-will language,

such as dismissal at will, or for any or no reason.  According to plaintiffs,

every employee was guaranteed a review procedure prior to termination, which

procedure is contrary to a finding that the contract allowed for termination at

will or without cause.

	Section XI of the R830 contract, with the amendments incorporated,

provides:

		"[1]  This agreement will automatically terminate upon

your death.  Either you or Allstate have the right to

terminate this agreement upon mailing to the other, at

his or its last known address, written notice of

termination.  *** 

		[2]  The Company will not terminate your employment

because of unsatisfactory work unless you have been

notified that your work is unsatisfactory and that your

job is in jeopardy and unless you have been given a

reasonable opportunity to bring your performance up to

satisfactory standards.

		[3]  The term 'unsatisfactory work' relates to the

quality of performance.  Notification that your job is in jeopardy is not required in the event of termination

of employment for a criminal act or an act of

dishonesty, such as, by way of example but not limited

to, the following:  embezzlement, *** fraud or

misrepresentation of material fact, or forgery.  Such

notification is also not required in the event of

termination of employment resulting from the violation

of a provision of Section II of PART FOUR of your

agreement [agreement not to work for or represent anyone

else while working for Allstate].

		[4]  If this agreement is terminated by the Company, you

have the right to a review by the Agent Review Board as

set forth in the Agents Procedure Manual, unless such

termination was in accordance with the provisions of a

Career Foundation Agreement Amendment held by you.

		[5]  In no event shall an employee be released for any

reason without the following review and approval

procedure having been adhered to:

		(1)	For employees with less than four years service, review and approval by the Regional Manager.

		(2) 	For employees with more than four years, but less than ten years service, additional review and

approval by the Zone Personnel Manager and the

Zone Vice President are required.

		(3)	For employees with more than ten years service, review and approval in the Home Office by the

Personnel Vice President are required in addition

to the above."

	Five federal cases have construed the language of the R830 contract.  Four

have concluded that defendant does not need cause, with the exception of

dismissal for unsatisfactory performance, in order to dismiss an employee.  See Kaniff v. Allstate Insurance Co., 121 F.3d 258 (7th Cir. 1997); Hudson v. Allstate Insurance Co., 93 F.3d 296 (7th Cir. 1996); Gonzalez v. Allstate Insurance Co., No. 87-6101 (11th Cir. November 7, 1988) (unpublished order); Szot v. Allstate Insurance Co., 161 F. Supp. 2d 596 (D. Md. 2001).  One court has concluded that Allstate must have cause to dismiss any employee.  Morales v. Allstate Insurance Co., No. C-95-02308 (N.D. Cal. October 13, 1995).9

	In Hudson, the court first set forth Illinois' general rules with respect to at-will employment, stating:

		"Illinois follows the rule that 'an employment

relationship without a fixed duration is terminable at

will by either party.'  [Citations.]  In order to

overcome that presumption, we must find evidence in the

contract that shows that the parties intended to require

Allstate to prove good cause for  Hudson's

termination.10  The language 'must contain a premise clear enough that an employee would reasonably believe

that an offer had been made.'  [Citations.]"  Hudson, 93 F.3d at 299.

The Hudson court then noted that the R830 contract had elements of both at will and "a limited promise of greater protection."  Hudson, 93 F.3d at 299.  However, the Hudson court concluded that there was nothing in the R830 contract that limited Allstate from terminating any employee "for any reason at all" except for

unsatisfactory performance.  Hudson, 93 F.3d at 300.  Specifically, the Hudson court stated:

		"The fact that the agreement goes out of its way to

specify that notice is not required if the basis of

termination is a criminal or dishonest act (as opposed

to any myriad of other reasons that do not amount to

'unsatisfactory work,' but are neither criminal nor

dishonest) cannot be transformed into a general rule

requiring Allstate to demonstrate that its reason for

termination qualified as 'good cause' in all cases." 

Hudson, 93 F.3d at 300.

Kaniff, another Seventh Circuit case, simply followed Hudson (Kaniff, 121 F.3d at 266) and Szot found Hudson more persuasive than Morales and chose to follow Hudson (Szot, 161 F. Supp.2d at 602).

	Conversely, the Morales court first quoted section XI and concluded:

		"This provision indicates that Allstate may not

terminate an employee for any reason, at any time. 

There must be unsatisfactory work, notice and

opportunity to cure.  Hence, good cause is required to

terminate an employee."  Morales, slip op. at ___.

With respect to the review procedures, the Morales court stated that "[a]lthough defendant's counsel argued that the review was only a procedure, such procedures

are meaningless if the reviewing process is a rubber stamp--one must believe that the process protects an employee from a wrongful discharge."  Morales, slip op. at ___.  With respect to the amendment of the contract, the Morales court stated:

			"This language does not cause the agreement to

revert to an at will contract.  The addendum only

provides that for certain types of particularly bad

employee conduct (criminal acts, dishonesty), the

employer is not required to give [the] employee notice

or an opportunity to change.  Contrary to Allstate's

position, the language does not mean that Allstate need

not have good cause for discharge.  It simply means that

if Allstate has good cause, for certain types of

behavior, it need not give the employee an opportunity

to improve or change."  Morales, slip op. at ___.

	We do not find Hudson persuasive nor controlling.  When the Hudson court quoted the contract language, it merged the first and second paragraphs into one

paragraph.  Then, although stating that it was bound by the plain language of the

contract, the court nonetheless ignored certain plain language in the contract. 

Specifically, the court ignored paragraph four.  Although the court did mention

this provision in passing, it never addressed nor analyzed its affect on the

entire contract.  The court also entirely ignored paragraph five in its analysis. 

Moreover, although Allstate in Hudson argued that procedural requirements such as notice and a review procedure prior to termination do not turn the agreement

into a contract for cause, the court failed to address this contention.  It

should be noted that the cases relied upon by Allstate in Hudson to support this contention (Mitchell v. Jewel Food Stores, 142 Ill. 2d 152, 568 N.E.2d 827 (1990); Duldulao v. Saint Mary of Nazareth Hospital Center, 115 Ill. 2d 482, 505 N.E.2d 314 (1987)) in fact directly contradict it.  Both cases held that procedural requirements set forth in a company manual, where the manual is found

to constitute a binding contract between the parties, must be complied with prior

to a proper termination of an employee.11  See Ahlgren v. Blue Goose Supermarket, Inc., 266 Ill. App. 3d 154, 161, 639 N.E.2d 922 (1994) (stating that "articulated procedures are a fundamental and necessary part of an employment contract which

provides for an employee's discharge or dismissal only upon just cause"). 

Moreover, Hudson did not address the issue of good faith or a requirement that Allstate not act with bad faith in all circumstances.  In Hudson, the terminated employee admitted to acting dishonestly.  Thus, Hudson does not negate the fact that there may be a requirement that a defendant cannot act in bad faith even for

terminations other than unsatisfactory work.  The Hudson court simply did not address this issue.  As discussed below, defendant must do something more, in

terminating an employee, other than saying, "There's the door, go."  Accordingly,

we do not accept Hudson's ultimate conclusion that cause is not needed to terminate an employee with respect to the contract in the instant case.

	The contract here provides protections for every employee and is, therefore, not an at-will contract.  In Illinois, although an employer-employee

relationship without a fixed duration is terminable at will by either party, this

is only a rule of construction and the presumption can be overcome "by

demonstrating that the parties contracted otherwise."  Ahlgren, 266 Ill. App. 3d at 160.  This is precisely what the parties here did with respect to the R830

contract.

	The relevant contract provision, as amended, contains five paragraphs.  The

first paragraph sets forth the alleged at-will provision.  The second paragraph

relates to unsatisfactory work and the procedures that must be followed should defendant wish to terminate an employee on this basis.  The third paragraph

relates to criminal conduct, in essence, and the fact that no notice is required

prior to termination.  The examples set forth in this paragraph would constitute

material breaches of the contract in any event and, therefore, would terminate

it.  The fourth and fifth paragraphs are independent and are not limited to

either paragraph two or three. 

	Whether the first paragraph is even an at-will provision is questionable. 

The contract does not use at-will language such as "at will," "for no reason,"

or "for any reason."  Moreover, the contract requires written termination notice. 

Conversely, the R1500 contract, which is undisputedly an at-will contract,

provides that the agreement "may be terminated at will by either party." 

Additionally, notice of termination under the R1500 contract may be oral or

written.  Clearly, defendant drafted two different contracts with different

language and, thus, must have intended the contracts to set forth different terms

of employment.

	Moreover, if the R830 contract was intended to be an at-will contract,

there would be no logical or rational reason to include paragraphs two or three. 

Such provisions would be superfluous.  Likewise, if the contract was an at-will

contract, there would be no rational reason to include paragraphs four or five. 

Again, paragraph four is not limited to any particular reason for termination and

paragraph five clearly states that it applies to termination for "any reason." 

If the contract was truly at will, all defendant would have to say is, "There's

the door, you're gone."  However, the contract does not allow this.  Defendant

has provided for a review procedure; in fact, it appears that there may be two

different forms of review procedures.12  In any event, based on the fact that employees are given some sort of review for termination for "any reason," it must therefore be concluded that the contract is not an at-will contract.

	In this respect, it would seem to be logical that, because a review

procedure is provided for, implied in that protection is the fact or element that

defendant cannot act in bad faith in terminating an employee.  Thus, there must

be cause.  If defendant could terminate an employee without cause, then the

review provisions would be illusory and there would be no reason to include them

in the contract.  We cannot ignore these provisions and must give effect to all

provisions contained in the contract.  Therefore, defendant, as plaintiffs'

employer, "[h]aving announced the policy, presumably with a view to obtaining the

benefit of improved employee attitudes and behavior and improved quality of the

work force, *** may not treat its promise as illusory."  Toussaint v. Blue Cross & Blue Shield of Michigan, 408 Mich. 579, 619, 292 N.W.2d 880, 895 (1980), cited by Mitchell, 142 Ill. 2d at 171.  See also Morales, slip op. at ___ ("such procedures are meaningless if the reviewing process is a rubber stamp--one must

believe that the process protects an employee from wrongful discharge").

	In addition, defendant itself included these last four paragraphs in the

contract, although it could simply have stopped at the end of the first

paragraph.  The R830 may well then have been an at-will contract.  This is

precisely what defendant did later in the R1500 contract.  However, defendant did

not stop after the first paragraph in R830.  Instead, it added additional

protections for employees.  Because defendant drafted the contracts, they must

be strictly construed against defendant.  Therefore, since defendant clearly

utilized different language in each contract, we must construe the R830 contract

as something different than the R1500.  As the court in Mitchell stated:

		"If defendant wants to reserve sole discretion to

discharge any employee for any reason at any time,

defendant could simply say so.  Defendant would not then need to make a distinction between probationary

employees, who may be fired for any reason, and

nonprobationary employees, who could be fired only for

'just cause.' "  Mitchell, 142 Ill. 2d at 170-71.

	Based on the above, we find that the R830 contract does require cause for

termination.  It, unlike the R1500, is not an at-will contract based on the plain

language of the contract.  Accordingly, we find that the trial court erred in

concluding that the R830 contract was an at-will contract and erred in dismissing

count I on this basis.  Plaintiffs clearly alleged that defendant engaged in

conduct that could be found, by a trier of fact, to be a breach of the

termination with cause provision.

	[NONPUBLISHABLE MATERIAL UNDER SUPREME COURT RULE 2323 rmREMOVED HERE]

	Second, plaintiffs argue that defendant unilaterally changed the employment

requirements, imposing onerous new employment conditions on the employees, in

violation of the employment contracts' integration clauses without any legitimate

business purpose.  According to plaintiffs, both contracts contain integration

clauses, which defendant breached by imposing new conditions on the employees. 

Although plaintiffs concede that the R1500 contract appears to give discretion

to defendant to change conditions, plaintiffs maintain that defendant must still

have done so in good faith, which they argue defendant did not do.  Defendants

contend that plaintiffs failed to acknowledge that both of the employment

contracts expressly allow defendant to modify employment conditions.  

	Plaintiffs counter that defendant's argument that it was allowed to modify

conditions under the R830 contract is based on language that is not part of the

pleadings in this case, but, rather, was contained in an attachment to

defendants' response to their motion to dismiss.  Accordingly, plaintiffs

maintain that we cannot consider this document.  

	Initially, plaintiffs, as the parties bringing the lawsuit, have a duty to attach the entire contract, including any amendments, to their original

complaint.  However, simply because plaintiffs failed to do so, whether

inadvertent or not, does not mean they should prevail on their argument that this

court cannot look to that amendment because it was only attached to defendants'

response.  The amendments are part of the contract and, in construing a contract,

we must look to it in its entirety.

	Substantively, the R830 contract contains a provision that employees must

perform all duties in accordance with defendant's rules and procedures.  Although

a copy of the rules and procedures is not present in the record, and, therefore,

we cannot ascertain whether there were any terms with respect to hours or other

employment conditions contained therein, we nonetheless note that the R830

contract, in the integration provision relied upon by plaintiffs, does state that

the contract may be amended upon agreement and signature by both parties.  See Alderman Drugs, Inc. v. Metropolitan Life Insurance Co., 161 Ill. App. 3d 783, 792, 515 N.E.2d 689 (1987) (the language of the contract expressly allowed

amendment or modification of the written contract upon an agreed writing signed

by the parties).  We must thus presume that Linker and Hughes and other employees

did in fact sign the addendum or amendment that authorized defendant to alter

employment conditions.  Accordingly, we find that the allegations relevant to

this alleged breach were insufficient to withstand a motion to dismiss because

plaintiffs could not prove any set of facts that would entitle them to relief.

	Third, plaintiffs argue that defendant's lack of uniformity in its

disclosure to employees constituted a breach of contract.  In particular,

plaintiffs maintain that defendant established a uniform employment contract

situation and, therefore, undertook a duty to provide uniform treatment of its

employees.  According to plaintiffs, instead of acting uniformly, defendant gave

a "heads up" to certain employees about the soon-to-be-made changes and failed

to notify other employees.  Alternatively, plaintiffs argue that even if defendant was not required to treat employees uniformly and, therefore, disclose

the same information to each, defendant had to make disclosures in good faith and

not capriciously in favor of certain employees only.

	Defendants contend that plaintiffs have failed to cite to any provision of

the employment contract in support of their argument.  Defendants further argue

that there is nothing in either of the employment contracts that requires

defendant to treat all employees equally, nor to disclose its future plans to

employees.

	As defendants argue, plaintiffs have failed to cite to any authority in

support of their argument.  It is plaintiffs' duty to cite relevant authority and

their failure to do so does not merit consideration of the issue on appeal. 

Obert v. Saville, 253 Ill. App. 3d 677, 682, 624 N.E.2d 928 (1993).  Accordingly, plaintiffs have waived this issue.

	Fourth, plaintiffs argue that defendant's opportunistic behavior in

coercing them to leave and in not divulging the soon-to-be-made changes

constituted a breach of contract.  Specifically, plaintiffs maintain that when

defendant knew it was going to offer lucrative severance packages, it could not

opportunistically pressure employees to change their status without telling them

about the proposed changes.  

	Defendants contend that plaintiffs' argument is without merit because their

claim is based on a breach of the implied covenant of good faith and there is no

independent cause of action for breach of an implied covenant of good faith in

an at-will employment context. 

	Illinois recognizes and implies a covenant of good faith and fair dealing

in every contract absent a specific provision or disavowal to the contrary. 

Kipnis v. Mandel Metals, Inc., 318 Ill. App. 3d 498, 506, 741 N.E.2d 1033 (2000).  " 'This principle ensures that parties do not try to take advantage of each other

in a way that could not have been contemplated at the time the contract was drafted or to do anything that will destroy the other party's right to receive

the benefit of the contract.'  [Citation.]"  Voyles v. Sandia Mortgage Corp., 196 Ill. 2d 288, 296, 751 N.E.2d 1126 (2001).  " ' "The doctrine of good faith then

requires the party vested with contractual discretion to exercise that discretion

reasonably and with proper motive, not arbitrarily, capriciously, or in a manner

inconsistent with the reasonable expectations of the parties." '   [Citations.]" 

Bass v. SMG, Inc., 328 Ill. App. 3d 492, 505, 765 N.E.2d 1079 (2002).

	The cases relied upon by the parties are not controlling because each

involves a contract terminable at will.  We have concluded that the R830 contract

requires cause.  Thus, the cases do not warrant discussion.  Because the R830

requires cause, the covenant of good faith and fair dealing is implied therein. 

Plaintiffs alleged that defendant engaged in certain opportunistic conduct, which

constitutes a breach of this covenant.  These allegations therefore were

sufficient to withstand a motion to dismiss.  Accordingly, we find that the trial

court erred in dismissing count I on this basis.  [THE PRECEDING MATERIAL IS NONPUBLISHABLE UNDER SUPREME COURT RULE 23]

	In conclusion, we find that plaintiffs set forth sufficient facts to state a cause of action for breach of contract, under at least one theory and,

therefore, we reverse the trial court's dismissal of count I of plaintiffs'

complaint.

	B.  Common Law Fraud

	Plaintiffs next contend that the trial court erred in dismissing their

common law fraud claim because they set forth sufficient allegations to sustain

this cause of action.  Defendants contend that plaintiffs' common law fraud claim

lacked the specificity required by law and, further, that defendant possessed no

duty to disclose, thereby defeating plaintiffs' cause of action. 

	1.  Express Misrepresentation

	[THE FOLLOWING MATERIAL IS NONPUBLISHABLE MATERIAL UNDER SUPREME COURT RULE 2323 reREMOVED HERE]

	Plaintiffs argue that they alleged that express misrepresentations were

made to Chaney.  According to plaintiffs, the trial court dismissed their

intentional misrepresentation claim on the basis that Chaney had released defendant from any liability.  However, plaintiffs maintain that Chaney was only

added as a representative plaintiff in the first amended complaint and has never

settled with defendant, nor signed any release.  In other words, according to

plaintiffs, the trial court confused the two different plaintiffs--Carson and

Chaney.  Plaintiffs argue that they alleged in their complaint that Chaney asked

defendant if any changes were to be made and that defendant specifically denied

that any changes were to be made. 

	Defendants argue that, while they concede one allegation of actual

misrepresentation was alleged, this allegation was insufficient because it did

not allege any false statement,13 it did not allege who the speaker was, when the conversation took place, and whether the speaker was aware of the forthcoming

changes.

	With respect to Chaney, plaintiffs alleged:

			"54.  Just prior to his retirement Chaney asked

his agency manager and territorial agency manager about

the timing of his retirement and whether there would be

any new changes or benefits in the near future and

whether he should delay his retirement.  He was told

that there were no changes planned and that he should go

ahead and retire.

			55.  Chaney later learned that another agent was

told by the same territorial agency manager in late 1998

to put off his retirement because indeed there were

changes planned that would be beneficial."

	To state a cause of action for fraud based on intentional

misrepresentation, the plaintiff must allege facts that: "(1) the defendant made

a statement; (2) of a material nature; (3) which was untrue; and (4) was known

by the defendant to be untrue, or was made in culpable ignorance of its truth or

falsity; (5) was made for the purpose of inducing reliance by the plaintiff; (6)

was actually relied on by the plaintiff; and (7) resulted in plaintiff's injury." 

Borcherding v. Anderson Remodeling Co., Inc., 253 Ill. App. 3d 655, 661, 624 N.E.2d 887 (1993).  The allegations must be pled with "sufficient specificity,

particularity, and certainty to apprise the opposing party of what he is called

upon to answer."  Hirsch v. Feuer, 299 Ill. App. 3d 1076, 1085, 702 N.E.2d 265 (1998).

	While we agree with plaintiffs that the trial court confused the two

plaintiffs, i.e., Chaney and Carson, we nonetheless find that the trial court properly dismissed plaintiffs' express misrepresentation claim.  The allegations

of plaintiffs' complaint were not sufficiently specific or particular as required

by Illinois law.  Plaintiffs did not allege who, particularly, made the

statements, nor when, precisely, the statements were made.  Plaintiffs also did

not allege that the speakers knew that the statements were false or that they

made the statements with culpable ignorance of their truth or falsity.  Lastly,

plaintiffs did not allege that the statements were made with the intent to induce

plaintiffs to act.  Accordingly, plaintiffs' allegations were insufficient to set

forth a cause of action for express misrepresentation.  [THE PRECEDING MATERIAL IS NONPUBLISHABLE UNDER SUPREME COURT RULE 23]

	We conclude that plaintiffs' complaint failed to sufficiently allege a cause of action based on express misrepresentation because the allegations were

not sufficiently specific or particular.   See Hirsch v. Feuer, 299 Ill. App. 3d 1076, 1085, 702 N.E.2d 265 (1998).  Accordingly, the trial court did not err in

dismissing count II of plaintiffs' complaint on this basis.

	2.  Misrepresentation by Fraudulent Concealment

	[THE FOLLOWING MATERIAL IS NONPUBLISHABLE MATERIAL UNDER SUPREME COURT RULE 2323 reREMOVED HERE] 	Plaintiffs also argue that they alleged concealment on the part of

defendant because defendant had undertaken a duty not to conceal information, or,

in other words, had a duty to disclose.  According to plaintiffs, defendant

undertook a duty to speak when it selectively told some employees about the

forthcoming changes and that it then had a duty to tell all employees. 

Plaintiffs further argue that defendant engaged in acts of deception that gave

rise to a duty to speak and undertook a duty to speak based on the employment

contracts' covenant against opportunism in dealing with employees.

	Defendants argue that plaintiffs failed to allege any duty to disclose on

the part of defendant and, as a matter of law, defendant possessed no such duty

because no duty to disclose exists between an employer and an employee. 

Defendants maintain that plaintiffs are asking this court to create, for the

first time, a duty on the part of an employer to disclose all corporate decisions

and plans, which is an impossible and impractical duty to impose upon employers. 

	To state a cause of action based on fraudulent concealment, the plaintiff

must allege "that defendants concealed a material fact when they were under a

duty to disclose that fact to plaintiffs."  Hirsch, 299 Ill. App. 3d at 1086.  "There is no duty to speak absent a fiduciary or other legal relationship between

the parties."  Neptuno Treuhand-Und Verwaltungsgesellschaft Mbh v. Arbor, 295 Ill. App. 3d 567, 573, 692 N.E.2d 812 (1998).  With respect to a duty to

disclose, the court in Connick v. Suzuki Motor Co., Ltd., 174 Ill. 2d 482, 675 N.E.2d 584 (1996), stated:

		"A duty to disclose a material fact may arise out of several situations.  First, if plaintiff and defendant

are in a fiduciary or confidential relationship, then

defendant is under a duty to disclose all material

facts.  [Citations.]  Second, a duty to disclose

material facts may arise out of a situation where

plaintiff places trust and confidence in defendant,

thereby placing defendant in a position of influence and

superiority over plaintiff.  [Citations.]  This position

of superiority may arise by reason of friendship,

agency, or experience."  Connick, 174 Ill. 2d at 500.

			As with plaintiffs' express misrepresentation claim, we find that

plaintiffs did not plead misrepresentation by concealment with particularity or

specificity as required.  Most importantly, plaintiffs did not allege that

defendant was under any duty to disclose, nor the source or legal basis of any

supposed duty.  Plaintiffs did not allege a fiduciary or confidential

relationship between the parties that would impose a duty on defendant to

disclose.  In addition, plaintiffs did not allege that, by virtue of any trust

or confidence they placed in defendant, that defendant thereby was placed in a

position of influence and superiority that would impose a duty on defendant to

disclose certain matters to plaintiffs.  The lack of such allegations are fatal

to plaintiffs' claimed cause of action.  [THE PRECEDING MATERIAL IS NONPUBLISHABLE UNDER SUPREME COURT RULE 23]

	We conclude that plaintiff's complaint failed to sufficiently allege a cause of action based on misrepresentation by concealment because the allegations

were not sufficiently specific or particular (Hirsch, 299 Ill. App. 3d at 1085) and because plaintiff failed to allege any duty on the part of defendant (Connick v. Suzuki Motor Co., Ltd., 174 Ill. 2d 482, 500, 675 N.E.2d 584 (1996)).  Accordingly, the trial court did not err in dismissing count II of plaintiffs'

complaint on this basis.

	In summary, we reverse the trial court's dismissal of count I of

plaintiffs' complaint and remand this cause for further proceedings.

	CONCLUSION

	For the reasons stated, we affirm in part, reverse in part, and remand this

cause to the circuit court of Cook County.

	Affirmed in part; reversed in part; and remanded.

	GORDON and McBRIDE, JJ., concur.