SECOND DIVISION

									May 7, 2002

No. 1-00-1291

MICHAEL D. KLEIN, 

	Plaintiff-Appellee and Cross-

Appellant,

	v.

CAREMARK INTERNATIONAL, INC.,

	Defendant-Appellant and Cross-

Appellee.		

)

)

)

)

)

)

)

)

)

)

)

Appeal from the

Circuit Court of

Cook County

96 L 13206

Honorable

James F. Henry,

Judge Presiding.

	JUSTICE McBRIDE delivered the opinion of the court:

	This appeal arises out of the termination of employee Michael Klein, plaintiff-appellee and cross-appellant from Caremark

International, Inc. (Caremark or the Company), defendant-appellant

and cross-appellee.  On November  27, 1995, Klein and Caremark

entered into a severance compensation agreement (Agreement).  The

Agreement provided Klein, who at the time was regarded as a key

executive by Caremark, certain severance benefits in the event of

a termination of Klein's employment.  The Agreement also provided

that Klein could be terminated by Caremark in the event the board

of directors of the Company determined that he was no longer a key

executive and gave him notice of such determination.  On July 12,

1996, Klein was terminated at a meeting held by Caremark

management.

	Klein filed a complaint alleging that Caremark materially breached the Agreement by terminating him while the Agreement was

still in effect.  Klein further alleged that he was entitled to the

severance benefits provided under paragraph 5(A) of the Agreement. 

Both sides filed cross-motions for summary judgment on several

issues including whether the Agreement had been materially breached

and whether Klein was entitled to severance benefits.  Several

months before the trial court ruled on the parties' cross-motions

for summary judgment, the parties stipulated that if liability were

found, Klein's damages would be $756,556.   On March 15, 2000, the trial court found that Klein's termination was a material breach of

the Agreement and that he was entitled to severance benefits in the

amount of $756,556.  The court further granted  Klein's motion for

legal fees in the amount of $182,474.75 based on paragraph 5(B)(iv)

of the Agreement.  Klein also made motions for supplemental

attorney fees, for prejudgment interest, and for attorney fees

incurred in prosecuting an appeal.  The trial court denied these

motions.

	Caremark appeals the trial court's summary judgment ruling in

favor of Klein.  Klein cross-appeals the trial court's denial of

his motions for supplemental attorney fees, prejudgment interest,

and attorney fees in connection with prosecuting an appeal.

	Eight issues are raised on review.  First, whether the trial court properly granted summary judgment in favor of Klein on the basis that Caremark materially breached the Agreement.  Second,

whether the trial court correctly ruled the Agreement provided

Klein a fixed term of employment.  Third, whether Caremark's post termination actions cured Caremark's material breach of the

Agreement.  Fourth, whether Klein was entitled to damages equal to

the severance pay scheme set forth in the Agreement.  Fifth, whether the trial court abused its discretion by awarding attorney fees to Klein based on the hourly rates of his attorneys.  Sixth,

whether the trial court properly denied Klein's motion for pre judgment interest.  Seventh, whether the trial court incorrectly

denied Klein's supplemental submission in support of legal fees. 

Eighth, whether the trial court properly denied Klein's motion for

attorney fees incurred in prosecuting an appeal.  The fifth, sixth,

seventh, and eighth issue are discussed in the non-published

portion of this opinion.  We state the following background facts.

 	On November 12, 1996, Michael Klein filed a complaint against his former employer Caremark.  Caremark is a public "spinoff" of a

division of Baxter Laboratories, which conducts business in the

health care industry.  Klein held a management position at Baxter

Laboratories and then accepted a position at Caremark upon its

creation by Baxter in 1992.  

	On July 13, 1992, Klein and Caremark executed an employment

agreement which expressly stated that Klein was an at-will employee.  On November 27, 1995, Klein and Caremark entered into

the Agreement at issue, which was a severance compensation

agreement designed to provide incentives and benefits to Klein and

other personnel deemed by Caremark to be superior managers.  On May

1, 1996, certain terms of the Agreement were amended including a

provision concerning a change of control over the Company.  Klein

and Caremark executed both the Agreement and the amendment.  Due to

allegedly poor business performance by Klein, Caremark sought to

terminate his employment.

	Paragraph 1 of the Agreement stated that Caremark would

continue to employ Klein as an executive for a specific term. 

Paragraph 2 of the Agreement provided that the term "shall be one

year commencing on December 1, 1995 and ending on November 30, 1996

and shall automatically renew for successive one year periods." 

Paragraph 2 further set forth that the Agreement would

automatically end upon the occurrence of any of the following

events:

			"(i) [Klein gave] notice to the Company

that [he] wished to terminate this Agreement

not less than 90 days after [his] notice was

given;

			(ii) [Klein died] or [received] a Notice

of Termination due to Disability;

			(iii) [Klein reached his] Retirement

Date; or

			(iv) The Board of Directors of the

Company [determined] that [Klein] was no

longer a key executive and [gave Klein] notice

of this determination except that such

determination shall not be made, and if made,

shall have no effect, after a Change in

Control."

A "Change in Control"  is defined in the amendment to the Agreement

as "the acquisition by any individual, entity or group *** of 20%

or more of *** the then outstanding shares of common stock of the

Company."

	In paragraph 5(A), the Agreement provided that, in the event

of Klein's termination for any reason except those set forth in

Paragraph 2 (A)(i)(notice that employee wishes to terminate the

Agreement),(ii)(employee dies or receives a notice of termination

due to disability), or (iii)(employee reaches the date of

retirement), Caremark shall pay Klein his full base salary through

the date of termination, three times the sum of his annual base

salary, and an amount equal to all awards or units of participation

awarded but not paid.  Paragraph 5(B)(iv) set forth that, in the

event of Klein's termination, Caremark, "shall pay all legal fees and expenses incurred by [Klein] as a result of [his] Termination

(including all such fees and expenses, if any, incurred in

contesting or disputing [his] Termination or in seeking to obtain

or enforce any right or benefit provided by the Agreement)." 

	In his deposition, Klein testified that, on July 12, 1996, he

was instructed to attend a meeting with his superior, Diane Munson,

and Kent DeLucenay, vice president of human resources at Caremark. 

Munson and DeLucenay testified that Klein was informed that he was

going to be terminated.  Klein confirmed in an affidavit that he

was informed at the July 12, 1996, meeting that he was being

terminated effective August 6, 1996.  According to Munson, the basis for Klein's termination was his performance in executing the

Pacificare contract, which adversely impacted Caremark's medical

clinic in Oklahoma City.  Klein stated in an affidavit that after

July 12, 1996, except for a brief visit to Caremark's facility to

retrieve his personal belongings, he did not return to work for any

purpose.  On July 15, 1996, Caremark mailed a "Employment

Termination and General Release Agreement" to Klein.  The letter

explained that his employment would be terminated effective August

6, 1996, in consideration for separation pay in the amount of

$166,400 in addition to $14,080 for accrued and unused vacation

time.  The last paragraph of the letter stated the following: "If

you agree to the terms outlined in the agreement, then please sign two copies and return one of them to me by August 6, 1996. 

Otherwise, I will assume that you rejected this agreement." 

	The record indicates that Klein and DeLucenay spoke via

telephone on August 8, 1996.  In that conversation, Klein rejected

the employment termination and release agreement proposed by

Caremark.  On August 9, 1996, Klein sent a letter to DeLucenay,

which, among other things, informed DeLucenay that he would not

agree to the severance agreement noted above.	  

	On August 15, 1996, Klein was sent a letter from human

resources at Caremark informing him that, upon termination, his

life insurance coverage would stop.  The record reveals that on or

about August 21, 1996, Caremark's board of directors determined

that Klein was no longer a key executive.  On August 22, 1996,

Klein's counsel received a letter from Diane Nobles, an attorney 

and vice president of ethics and integrity at Caremark.  The letter

stated the following, in pertinent part:

			"For performance-related reasons that I

alluded to in our conversation and which I

will not detail here, the Board of Directors

at Caremark has been asked to determine that

Mr. Klein is no longer a 'key executive'

within the meaning of his Agreement.  The

formal resolution requesting that the Board

take this step was mailed yesterday.

			*** Regardless of whether a contract in

fact exists, it is our position that the Board

of Directors of Caremark retains the

unfettered right to determine that an employee

is no longer a key executive at any time prior

to Change of Control of the Company. 

Notwithstanding this argument, we have decided

to remedy what should be perceived by any

reasonable person as a mere 'technicality' or

a simple administrative foul-up.  Accordingly,

we are reinstating Mr. Klein and he will

remain employed by Caremark until August 31,

1996, which will now become the effective date

of the termination of his at-will employment.

			In our discussions, you have implied that

your client somehow is entitled to three (3)

years of compensation under his Agreement.  

Since there has not been a Change of Control

of the Company as defined by the Agreement,

you are on notice that under no circumstances

will Caremark pay your client any monies

pursuant to that provision in his Agreement." 

	On August 28, 1996, Nobles sent Klein a letter.  The letter 

informed Klein that Caremark had recently advised his counsel of its intent to revise Klein's termination date to August 31, 1996. 

Further, a check to Klein in the amount of $8,320 was enclosed, 

which represented his full gross salary from August 7, 1996, to

August 23, 1996.  The letter also indicted that a check for the pay

period between August 26, 1996, and August 31, 1996, was

forthcoming in addition to a check for all unused and accrued

vacation time.  	

	On August 30, 1996, Klein's counsel responded to this letter

by stating that, "[n]either Mr. Klein nor I ever solicited or

agreed to such reinstatement, and we reject your apparent

contention that Caremark can rehire or reinstate a former employee

unilaterally and against his will."  On the same day, Klein sent a

letter to Nobles which stated that he rejected reinstatement by the

Company and that he was returning the retroactive paycheck that had

been sent to him by Caremark.  The record reveals that Klein

returned the check for $8,320, and subsequent checks sent to him by

Caremark on September 9, 1996, and October 6, 1996.   

	In his complaint, Klein claimed that Caremark materially

breached the Agreement by terminating him while the Agreement was

still in effect.  The complaint further alleged that on September

5, 1996, Caremark merged with the subsidiary of

MedParters/Mulliken, Inc.  This merger constituted a "Change in

Control" under the agreement according to Klein.  Thus, Klein

claimed that he was entitled to certain benefits under the paragraph 5(A) Agreement which amounted to $835,000 plus payment of

his legal fees and expenses.   	

	In its brief, Caremark alleges that it decided to terminate

Klein based on his lack of business judgment in connection with a

managed care contract Klein had executed on Caremark's behalf with

Pacificare.  Caremark further claims that, in an effort to spare

Klein the embarrassment of a "for cause" termination, the Company

offered Klein the option of executing a mutual agreement which

would terminate his employment in exchange for a payment of

$166,400 which amounted to his annual salary, other benefits, and

a release of all claims.  Caremark contends that Klein was advised

to consult with an attorney and respond to the proposal by August

6, 1996.  Caremark further claims that the Company prepared Klein's

termination papers in advance and marked them with a note which

stated, "SEV SET UP BUT HOLD," "KEY MONDAY 8/5 EFF 8/6."  Assuming

Klein accepted the offer, Caremark asserts that these termination

papers were set to be processed.

	As noted above, the record reveals that Klein rejected this

offer in a telephone conversation with DeLucenay on August 8, 1996. 

Caremark claims that because Klein's rejection was not communicated

to the Company prior to August 5, 1996, the human resources

coordinator made an inadvertent "clerical error" and processed the

termination paperwork.

	Attorneys for Klein then notified the Company that he was demanding benefits under the Agreement because he had been

terminated on August 6, 1996, prior to a finding by the Board that

he was no longer a key executive.  As we observed above, the

Agreement provided that it would automatically  terminate in the

event that the board of directors determined that Klein was no

longer a key executive and gave him notice of that determination. 

The term of Klein's employment extended to November 30, 1996, under

the Agreement.  The record also indicates that a "Change of

Control" occurred on September 5, 1996, when Caremark merged with

MedPartners/Mullikan, Inc.  Thus, Klein claims that he was

terminated prior to any determination by the Caremark board that he

was no longer a key executive and notice thereof.  According to

Klein, such action was a material breach of the Agreement.   

	Caremark contends that, "in an abundance of caution," Caremark

reinstated Klein until August 31, 1996, to remedy what was "at

most" an administrative foul-up that led to the premature

processing of Klein's termination.  Caremark further contends that

the determination that Klein was no longer a key executive was

fully executed on or before August 30, 1996, and that Klein's

employment termination and cancellation of the Agreement occurred

prior to the change of control over the Company on September 5,

1996.

	The parties filed cross-motions for summary judgment which,

among other things, sought a finding that Klein either was or was not entitled to benefits under Paragraph 5 of the Agreement.  In a

preliminary order on October 15, 1999, the trial court ruled in

favor of Klein on the grounds that the Agreement, "created a fixed-

term of employment of one year, and that Caremark's "termination of

[Klein] constitute[d] a material breach of Paragraph 2 of the ***

Agreement."

	On March 15, 2000, the trial court entered a final order that

affirmed Klein's entitlement to severance benefits under the

Agreement in the amount of $756,556.  The court further granted

Klein's motion for legal fees and expenses pursuant to paragraph

5(B)(iv) of the agreement.  Specifically, the court awarded Klein

attorney fees "(at 100% of the standard hourly rates through

October 15, 1999) and expenses in the total amount of $182,474.75."

	On December 6, 1999, plaintiff filed a supplemental motion for

attorney fees in the amount of $12,368 incurred by Klein for his

counsel's "preparation of the extensive and detailed fee petition." 

The trial court denied Klein's supplemental motion for attorney

fees in its order of March 15, 2000.  The trial court also denied

Klein's motion for statutory prejudgment interest and motion for

prejudgment interest under the Agreement.  Finally, the trial court

denied Klein's request for attorney fees and expenses incurred in

prosecuting an appeal.  Caremark appeals the summary judgment

ruling and Klein cross-appeals the trial court's denial of his

motions for prejudgment interest, supplemental motion for attorney fees, and motion for attorney fees incurred in prosecuting an appeal.	

	We first consider whether the trial court properly granted

summary judgment in favor of Klein on the basis that Caremark

materially breached the Agreement.  On reviewing a motion for

summary judgment, our standard of review is de novo.  Ragan v. Columbia Mutual Insurance Co., 183 Ill. 2d 342, 349, 701 N.E.2d 493 (1998).  Summary judgment is proper where the pleadings,

depositions, and admissions on file, together with the affidavits,

if any, "show that there is no genuine issue as to any material

fact and that the moving party is entitled to judgment as a matter

of law."  Jones v. Chicago HMO Ltd. of Illinois, 191 Ill. 2d 278, 291, 730 N.E.2d 1119 (2000).

	In its reply brief, Caremark raises four genuine issues of material fact in support of its position that summary judgment

should not have been granted in Klein's favor: (1) Klein's

"catastrophic" performance in negotiating the Pacificare contract;

(2) whether Klein's termination on August 6, 1996, was the result

of a clerical error; (3) whether Caremark materially breached the

Agreement; and (4) whether the breach, if any, was cured by

Caremark.  

	We find the first question is not relevant to whether Caremark

breached the Agreement because Caremark's reasons for terminating

Klein have nothing to do with the question of whether he was terminated pursuant to the provisions in the Agreement.  Likewise,

the fact that Klein was terminated on August 6, 1996, due to an

alleged clerical error by Caremark is not relevant to whether he

was properly terminated under the  Agreement.  Our primary function

in reviewing the summary judgment question is whether there is any

genuine issue of material fact that Caremark materially breached

the Agreement.  We will also fully address the question of whether

Caremark cured the breach in our discussion of the third question

on appeal.   

	Having reviewed the record de novo, we conclude that Caremark breached the Agreement by terminating Klein prior to a

determination by the Company's board of directors that he was no

longer a key executive.  Further, there is no question that the

breach was material because Caremark deprived him of the severance

benefits he was entitled to in the event that he was terminated

outside of the terms of the Agreement.  Here, Klein was not

terminated in accordance with the procedure established in

paragraph 2(A)(iv) of the Agreement.  In an attempt to correct the

error, the record demonstrates that Caremark unilaterally

reinstated Klein until the board of directors could determine that

he was no longer a key executive under paragraph 2(A)(iv).  Klein,

however, rejected such reinstatement.  The Agreement was effective

until November 30, 1996, under paragraph 2(A).  Thus, the Agreement

between Klein and the Company was enforceable until November 30, 1996.  Until that term expired, and prior to a change in control,

Caremark could, within the terms of the Agreement, only terminate

Klein by having its board of directors determine that he was no

longer a key executive and by providing him notice thereof. 

Caremark failed to follow the Agreement and by doing so materially

breached its terms. 

	The evidence proffered by Caremark does not raise a question

of fact that Caremark materially breached the Agreement.  In

essence, Caremark claims that Klein's termination by the Caremark

management on August 6, 1996, was inadvertent or the result of an

administrative error.  In the alternative, Caremark attempts to

demonstrate that it complied with the terms of the Agreement by

securing Klein's termination by the board of directors on August

21, 1996.  

	One stated purpose of the Agreement was to confer special

severance benefits to Caremark's "vital management group."  One

other purpose of the Agreement was to give Klein certain benefits

in the event of a  termination.  In our view, Klein's termination

by Caremark management was a material breach of the Agreement

because the termination occurred before the board of directors

decided that he was no longer a key executive.

	Further, paragraph 2(A)(iv)required that Klein be notified of

the board's determination that he was no longer a key executive. 

Although disputed by Caremark, the record reveals that Klein was never actually notified by the Caremark board that he was no longer

a key executive.  The record demonstrates that Klein was first

notified of Caremark's formal request to the Caremark board seeking

a determination that he was no longer a key executive in Nobles'

letter dated August 22, 1996.  We note that at time the letter was

dated, it was uncertain whether the Caremark board had even made a

determination that Klein was no longer a key executive.  The letter

indicates that Caremark was requesting that the board of directors

take this step.  Further, this notice, which did not even originate

from the Caremark board, was dated 16 days after Klein was

terminated by Caremark management.  Caremark's failure to provide

Klein with notice from the board of directors indicating a

determination that he was no longer a key executive amounted to a

material breach of paragraph 2(A)(iv) of the Agreement.  Even if

Klein received notice from the board, there is no question that

Klein's termination occurred before the board's decision was

effectuated.  From our review of the entire record, we conclude

that Caremark materially breached the Agreement and that the trial

court did not err in granting summary judgment in favor of Klein.

	We next address whether the trial court correctly ruled that

the Agreement provided Klein with a fixed term of employment. 

Construction of a contract is a question of law that is reviewed de novo.  Amalgamated Bank of Chicago v. Kalmus & Associates, Inc., 318 Ill. App. 3d 648, 655, 741 N.E.2d 1078 (2000)

	Caremark argues that Klein has failed to prove a material

breach of paragraph 2 of the Agreement as a matter of law on the

ground that Klein was not employed for a fixed term under the

Agreement.  Caremark suggests that the Agreement's term is not

fixed because the board of directors could terminate him at any

time under paragraph 2(A)(iv).  We note, however, that the

Agreement expressly provides a term of December 1, 1995, to

November 30, 1996.  While we agree that Klein could have been

terminated during that period, the salient question in this case is

whether Caremark followed the procedure set forth in paragraph

2(A)(iv) for doing so.  We are not persuaded by Caremark's claim

that because the Agreement was subject to termination at any time,

the termination here was not a material breach. 

	Caremark also claims that Klein's contract was not for a fixed

term because he could be terminated at-will under his original

employment agreement.  The fact that Klein's original employment

agreement was an at-will employment contact does not impact the

validity of the Agreement in this case.  In effect, the Agreement

trumps Klein's at-will employment status because the Agreement's

terms are sufficiently definite.  "Employment contracts in Illinois

are presumed to be at-will and are terminable by either party; this

rule, of course, is one of construction which may be overcome by

showing that the parties agreed otherwise."  McInerney v. Charter Golf, Inc., 176 Ill. 2d 482, 485, 680 N.E.2d 1347 (1997).  Here, the Agreement was a contract because there was an offer,

acceptance, and sufficiently definite terms between the parties.  Academy Chicago Publishers v. Cheever, 144 Ill. 2d 24, 29, 578 N.E.2d 981 (1991); Hirsch v. Feuer, 299 Ill. App. 3d. 1076, 1081- 82, 702 N.E.2d 265 (1998).  The language in paragraph 1 of the

Agreement provided, "[e]xcept as specifically changed by this

Agreement all terms and conditions of your current Employment

Agreement with the Company shall remain in full force and effect."

Immediately following this language in paragraph 2, the Agreement

provided that the term of employment "shall be the one year period

commencing on December 1, 1995 and ending on November 30, 1996." 

Therefore, contrary to Caremark's claim, the Agreement was for a

fixed term. 

	Caremark relies upon Ridgeview Construction Co. v. American National Bank & Co. of Chicago, 205 Ill. App. 3d 1045, 1051, 563 N.E.2d 986 (1990), and In re Estate of Szorek, 194 Ill. App. 3d 750, 756, 551 N.E.2d 697 (1990), for the proposition that the

Agreement incorporated the terms of Klein's employment agreement

including the at-will provision.  Thus, according to Caremark, the

at-will provision was part of the Agreement and Klein could be

terminated at Caremark's will.  These cases, however, do not

support Caremark's claim because they do not involve employment

contracts or at-will employment.

	Caremark also relies upon Bishop v. Lakeland Animal Hospital, P.C., 268 Ill. App. 3d 114, 117, 644 N.E.2d 33 (1994).  In Bishop, the appellate court held that the trial court did not err in

dismissing count II of Bishop's complaint on the basis that her

employment contract as a doctor of veterinary medicine with

Lakeland Hospital was not a fixed term contract.  The employment

contract stated that Bishop would be employed on July 1, 1992, for

a term of one year, "or until employment was terminated under Paragraph 7." (Emphasis added).  Bishop, 268 Ill. App. 3d at 117.   Paragraph 7 allowed either party to terminate the contract with or

without cause.  The appellate court found that the plain language

of the contract demonstrated that both parties anticipated the

possibility of early termination without cause.  Since Bishop was

given the requisite 60 days notice, the appellate court found that

the trial court did not err in dismissing this count from her

complaint.  Bishop, 268 Ill. App. 3d at 117.

	Bishop is distinguishable from this case because the term provision expressly anticipated an early termination as set forth

in paragraph 7 of that agreement.  While we agree that the Caremark

Board could have terminated Klein at any time upon a determination

that he was not a key executive, the board failed to do so prior to

Klein's termination by Caremark management.  Therefore, the

contract in Bishop is distinguishable from the Agreement in the instant case.

	Based on the above discussion and the language of the Agreement quoted above, we conclude that the trial court correctly

ruled that the Agreement provided Klein a fixed term of employment. 

	We next consider whether Caremark's post termination actions

cured Caremark's material breach of the Agreement.  Caremark claims that the breach was de minimis and not material because the Company took corrective action by reinstating Klein prior to the change of

control on September 5, 1996.  Thus, according to Caremark, time

existed for the board of directors to make the requisite

determination prior to the change in control, and the breach, if

any, was immaterial.  In support of its position, Caremark relies

upon Pacini v. Regopoulos, 281 Ill. App. 3d 274, 279, 665 N.E.2d 493 (1996), Rogers v. Balsley, 240 Ill. App. 3d 1005, 1011, 608 N.E.2d 1288 (1993), Intervisual Communications, Inc. v. Volkert, 975 F. Supp. 1092 (N.D. Ill. 1997), and the Restatement of

Contracts (Second) §241 (1981).

	Neither the authority relied upon by Caremark nor the

Restatement alters our conclusion that Klein's termination by

Caremark management was a material breach of the Agreement.  Pacini established the principle of de minimis non curat lex, which means that if a party's failure to perform causes only slight harm, there

has been no breach of duty.  Pacini, 281 Ill. App. 3d at 279.  Here, the harm suffered by Klein was not slight because he was

terminated by Caremark outside the procedure for termination set

forth in paragraph 2(A)(iv) of the Agreement.  As a result, Klein lost a benefit of the Agreement, which was to protect him from

termination by anyone other than the Caremark board of directors

and to provide him significant severance benefits in the event of

a failure to follow the termination procedure outlined in the

Agreement.

	We observe that Intervisual Communications, a federal district court case, stands for the proposition that a breach is only

material when the contract would not have been made without the

requisite performance.  Intervisual Communications, 975 F. Supp. at 1100.  In Rogers, cited above, the appellate court stated that "[w]hether a breach is material, thereby discharging the other

party's duty to perform, is an issue to be determined based on the

inherent justice of the matter."  Rogers, 240 Ill. App. 3d at 1011.  In addition to section 241 of the Restatement (Second) of

Contracts, set forth above in relevant part, Caremark cites Intervisual Communications and Rogers for the proposition that it would be inequitable to confer the benefits of the Agreement to

Klein on the basis of a clerical error. 

	Contrary to Caremark's claim, the record shows that Klein was

not terminated because of a clerical error, but because Caremark

management (and not the board) decided that he would be terminated. 

It is undisputed that on July 12, 1996, Caremark management

informed Klein that his termination was effective August 6, 1996. 

It is also undisputed that at no time before August 6, 1996, did the board determine that Klein was no longer a key executive. 

Caremark cannot escape the fact that it failed to follow the

procedure established in paragraph 2(A)(iv) of its own Agreement,

requiring a determination by the board of directors that Klein was

no longer a key executive and providing him notice thereof. 

	Next, Caremark claims that the fact that Klein's attorneys

would not accept his reinstatement does not entitle him to summary

judgment.  Rather, by reinstating Klein, Caremark claims that it

cured any breach that may have existed.  Caremark cites no

controlling authority for this premise, but relies upon Arrow Master, Inc. v. Unique Forming, Ltd., 12 F.3d 709 (7th Cir. 1993).  A reading of the Arrow Master, a Seventh Circuit case, reveals that the principle of curing an alleged breach of contract is not even

discussed.  Accordingly, this argument is waived under Supreme

Court Rule 341(e)(7), which requires an appellant to provide

citations to relevant authority supporting arguments advanced on

appeal.  177 Ill. 2d R. 341(e)(7); McCarthy v. Denkovski, 301 Ill. App. 3d 69, 74, 703 N.E.2d 408 (1998).  Specifically, " '[a]

reviewing court is entitled to have issues clearly defined with

pertinent authority cited and coherent arguments presented;

arguments inadequately presented on appeal are waived.'" Denkovski, 301 Ill. App. 3d at 75.  We therefore reject the argument on the

basis of waiver.  

	Caremark also claims that the Company timely terminated Klein under paragraph 2(A)(iv) of the Agreement.  According to Caremark,

under a golden-parachute-type agreement, a plaintiff cannot assert

a breach if his right to benefits is contingent on a change in

control and such right is extinguished prior to the change in

control.  In support of the argument, Caremark relies on Palda v. General Dynamics Corp., 47 F.3d 872, 874-75 (7th Cir. 1995), and Wilde v. First Federal Savings & Loan Ass'n of Wilmette, 134 Ill. App. 3d 722, 730-31, 480 N.E.2d 1236 (1985). 

	First, we note that Palda does not stand for the proposition that Caremark suggests it does.  In fact, Caremark's

characterization of the case is somewhat misleading.  Palda, while possessing similar facts, dealt with the issue of whether the

federal district court erred in dismissing both counts of Palda's

first amended complaint.  The Seventh Circuit found that the

district court had properly dismissed the complaint because

plaintiff failed to state a claim for breach of contract based on

the definition of a change of control in that agreement.  Palda, 47 F.3d at 874.

	Wilde is similarly unpersuasive.  While it is factually similar to the instant case, Wilde also involved the dismissal of a complaint.  The appellate court held that the trial court

properly dismissed the complaint because the plaintiff's employment

contract, which conferred severance benefits, had expired by

operation of law.  Under the facts in that case, the board had to approve employment contracts of the type relied upon by plaintiff. 

Defendant's affidavit in Wilde averred that the contract had never been approved by the board.  As a result, the appellate court held

the contract expired by operation of law and found that the trial

court had not erred by dismissing the complaint.  Wilde, 134 Ill. App. 3d at 730-31.  Thus, we determine that Caremark's authority

for the proposition that it properly terminated Klein under

paragraph 2(A)(iv) is unpersuasive.

	We now address whether Klein was entitled to the damages

enumerated in paragraph 5(A) of the Agreement.  Caremark claims

that even if a material breach of paragraph 2 of the Agreement

occurred, the trial court improperly held that Klein was entitled

to the post-change-in-control benefits established under paragraph

5(A).  

	Caremark suggests that Klein is entitled to at most three

weeks' back pay from August 6, 1996, to August 31, 1996, his

revised termination date.  Caremark again claims that Klein's

entitlement to post-change-in-control severance was not vested

because he was terminated by the board of directors prior to the

change in control which occurred on September 5, 1996.  Caremark

refers to paragraph 4 of the Agreement as a "dual-trigger"

requirement where benefits are not conferred unless two conditions

are met: first, a change in control; and second, a subsequent

termination.  Caremark also contends that we must acknowledge the Agreement's limitation language set forth in paragraph 6, which

states that "[t]his Agreement shall have no effect on any

termination of your employment prior to a Change in Control."   

First, we determine that paragraph 4 of the Agreement is not

applicable because it pertains to circumstances involving a

termination following a change in control.  Here, the record

reveals that Klein was terminated by Caremark management on July

12, 1996, before a change in control.  Second, this termination did

not follow the procedure set forth in paragraph 2(A)(iv), which

required the board to determine that Klein was not a key executive

and to provide him with notice of that determination.  On August

22, 1996, Caremark attempted to reinstate Klein until August 31,

1996.  Klein rejected this reinstatement.  As pointed out above,

the change of control occurred on September 5, 1996.  Under these

facts, paragraph 4 of the Agreement is not applicable because it

governs a termination that occurs after a change in control.

	Further, we note that paragraph 5(A) states that, "[i]n the

event of your termination for any reason except those set forth in paragraphs 2(A)(i), (ii) and (iii), the Company shall pay you ***

Severance Pay." (Emphasis added.)  This language expressly provided

that Klein would get the severance benefits set forth in paragraphs

5(A)(i), (A)(ii), and (A)(iii) in the event that he was terminated

for any reason.  We agree with the trial court that the benefits

conferred in paragraph 5 were not limited to situations where Klein was terminated after a change of control.  

	We also reject Caremark's suggestion that paragraph 6 of the

Agreement, quoted above, confirmed that the benefits under

paragraph 5 would not be paid out for a termination prior to a

change of control under any circumstances.  We agree with Klein

that paragraph 6 must be read in conjunction with the other

provisions in the Agreement.  "A contract is to be construed as a

whole, giving meaning and effect to every portion thereof, if

possible, and not resorting to detached portions thereof standing

alone."  Coles-Moultrie Electric Cooperative v. City of Sullivan, 304 Ill. App. 3d 153, 159, 709 N.E.2d 249 (1999).  As we noted

above, at least one purpose of the Agreement was to provide Klein

with certain protection from termination outside of the procedure

set forth in paragraph 2(A)(iv).  Another purpose of the Agreement

was to afford Klein protection from the at-will employment status

established in his original employment agreement.  Paragraph 5(A)

stated that Klein would get the severance benefits under the

Agreement if he were terminated for any reason, except if he wanted

to terminate the Agreement, became disabled or died, or reached his

retirement date.  None of these exceptions apply.  We have already

concluded that the severance benefits provided for in paragraph 5

were not only triggered by a change in control.

	Moreover, paragraph 6, when carefully read, simply reiterates

the three conditions under which the benefits would not be paid: voluntary resignation, death or disability, or Klein's retirement. 

It does not take away termination benefits for "any reason" except

for voluntary resignation, death or disability, or retirement.  As

noted above, paragraph 6 provides that in the event of a

termination prior to a change in control, Klein "shall receive ***

those benefits to which [he] would have become entitled prior to a

change in control."  Because his termination occurred without the

board's decision, he became entitled to the benefits set forth in

paragraph 5(A). 

	After reading the provisions of the Agreement together, we

simply do not agree with Caremark that the language in paragraph 6

confirms that benefits under paragraph 5 would be paid for a

termination only after a change in control.  Such an interpretation

of paragraph 6 would frustrate the entire purpose of the Agreement

and would leave Klein in no better a position than he was under his

original at-will employment agreement.  Thus, we reject Caremark's claim that Klein was not entitled to the severance benefits under

paragraph 5(A). 

	Finally, Caremark claims that the trial court's ruling was

inconsistent with the purpose of the Agreement and confers a

"windfall" to Klein, in essence, rewarding a sub standard employee

with severance benefits based on a clerical error.  As noted above,

we find that awarding Klein severance benefits under these facts

was appropriate.  Such a result was clearly envisioned by the parties as evidenced by the formation of the Agreement. 

Unfortunately for Caremark, Klein became, in its own words, an

incompetent employee.  However, once the Agreement had been signed,

Caremark was obliged by its terms, specifically paragraph 2(A)(iv),

to terminate Klein via a determination by the board of directors

that he was no longer a key executive and to provide him with

notice of that determination.  Caremark failed to follow this

procedure.  Therefore, we agree with the trial court that, because

Caremark materially breached the Agreement, Klein was entitled to

severance benefits under paragraph 5(A).  

[Non-publishable material under Supreme Court Rule 23 removed

here.] 

	m involved an indemnity clause where Baxter Travenol Laboratories, Inc. agreed, "to pay, perform and discharge and

indemnify and hold [Medcom Holding Company] harmless from and

against any loss, damage or expense (including reasonable

attorneys] fees) ... resulting from any breach by [BAXTER]."  The

Seventh Circuit found that, independent of the Interest Act, the

parties could agree to their own contract.  It recognized that the

parties in that case agreed to an indemnity clause for the purposes

of making the wronged party whole.  The Seventh Circuit found that

such an agreement would include prejudgment interest.  Medcom, 200 F.3d at 520. 

	Caremark claims that Medcom is distinguishable because it involved an indemnity clause.  We agree because the Agreement in

this case is  not analogous to the indemnity provision that existed

in Medcom.  Further, we note that Medcom is not controlling authority in this jurisdiction.  As a result, we conclude that the

trial court did not abuse its discretion by denying Klein

prejudgment interest on the severance benefits conferred under the Agreement.  

	We next address whether the trial court abused its discretion

in denying Klein's motion for supplemental attorney fees in the

amount of $12,368.  As noted above, Klein filed a supplemental

petition for attorney fees in December 1999, which was for fees

incurred by Klein in connection "with the preparation of an

extensive and detailed fee petition."  The trial court denied

Klein's motion for these fees in its order of March 15, 2000. 

	Klein's argument for supplemental fees is based on Paragraph

5(iv) of the Agreement, which, according to Klein, entitles him to,

"all legal fees."  Caremark responds by claiming that an attorney

fees provision like this one does not support an award of fees for

work done on the fee petition.  In support of this argument,

Caremark relies on Pennsylvania Truck Lines v. Solar Equity Corp., 127 F.R.D. 127, 129 (N.D. Ill. 1988). 

	In Pennsylvania Truck Lines, a federal district court found that because of the cost-shifting provision in the lease contracts

in that case, defendant was not entitled to attorney fees for work

done on a fee petition.  Pennsylvania Truck Lines,  127 F.R.D. at 129.  We are not persuaded by the decision in Pennsylvania Truck Lines.  First, the court based its holding on the cost-shifting provision which existed in the lease contracts in that case. 

Pennsylvania Truck Lines,  127 F.R.D. at 129.  Second, this federal district court decision has little, if any, precedential value.  

	We agree with Klein that paragraph 5(iv) of the Agreement

entitles him to "all legal fees" incurred by him as a result of his

termination.  This broad based language expressly includes attorney

time spent on a fee petition.  As a result, we conclude that the

trial court abused its discretion by denying Klein the supplemental

attorney fees in the amount of $12,368. 

	Last, we examine whether the trial court abused its discretion

by denying Klein's motion for attorney fees and expenses incurred in prosecuting an appeal.  As noted above, the trial court denied this

motion on the ground that such a determination would be premature. 

The record reveals that the trial court's apparent basis for

denying the motion was that it did not wish to make a ruling that

would interfere with a decision made by this court.  We say

apparently because the trial judge did not clearly articulate the

basis for the denial at the hearing.

	Klein's argument is that Paragraph 5(iv) of the Agreement

entitles him to "all fees" including those incurred for prosecuting an appeal.  Caremark responds by again relying on Pennsylvania Truck Lines, cited above.  Caremark claims that Pennsylvania Truck Lines  holds that,  " a contractual attorneys' fees provision does not

support the award of attorneys' fees on appeal."  Caremark's

position is not supported by the language in that case.  Instead, Pennsylvania Truck Lines says that "[n]o argument for interim [fees concerning an appeal] has been made, and any other fees would be

premature."  Pennsylvania Truck Lines,  127 F.R.D. at 129.  The court further stated that, "this court declines to enter an order that may need to be changed in the future."  Pennsylvania Truck Lines,  127 F.R.D. at 129. 

	As we noted above, we are not bound by the decision in

Pennsylvania Truck Lines.  Further, the facts are not similar to those in this case.  In the instant case, paragraph 5(iv) of the

Agreement entitles Klein to "all legal fees" incurred by him as a

result of his termination.  We conclude that such fees include those incurred in prosecuting this appeal.  As a result, on remand

the trial should consider the question after a petition for reasonable attorney fees has been filed.  [The preceding material is non-publishable under Supreme Court Rule 23.]   

	For the reasons set forth above, the order of March 15, 2000, granting summary judgment is affirmed; the award of attorney fees

is reversed and that portion of the order is remanded for a hearing to determine the reasonableness of those fees; the order denying

prejudgment interest is affirmed; the order denying supplemental

attorney fees is reversed and that portion of the order is remanded

for a hearing to determine the reasonableness of those supplemental

fees; the order denying fees for prosecuting this appeal is also

reversed and remanded for a further hearing upon the filing of a

petition for attorney fees. 

	Affirmed in part and reversed in part; cause remanded with

directions.

	BURKE, P.J., and CAHILL, J., concur.