## I L L I N O I S 

## O F F I C I A L 

## RE P O R T S Appellate Court

Miller v. Harris , 2013 IL App (2d) 120512

Appellate Court Caption WI L L I AM M I L L ER and MAXI NE MI L L ER, Individually and Der ivatively on Be half of Claimsco Interna tional, Inc., as Shareholde rs

a n d Ri ghtf u l D ir e c to r s , Plaintiffs-Appellants, v. MI CHAEL HARRI S and KENNET H HOXI E, Def endants (John Ver ch o ta and Miller Ver chota, Inc., De fenda

nts-Appellee s).

District & N o. Second District Docke t No. 2-12-0512

Filed Fe bruar y 21, 2013

Held (Not e: Thi s syl lab us

con st i t ute s no par t of the opi nio n of the cour t but has bee n pre

par ed by the Repo r t er of D e c i s i o n s f

o r t h e

c o n v e n i e n c e o

f t h e

rea der

. ) The count of plaintiffs’ complaint alleg ing a brea ch of fiduciar y duty by their acc ountant and his firm was improperly dismiss ed for failing to state

a claim on which relief could be g rante d, n otwithstanding defe ndant’s contention that he f

ollowed the contr act unde r which he was e mploy ed, since the brea ch of duty

claim was not ba sed on the contra ct but, r ather
, was based on defe ndant’s duties of honesty and loy alty in connec tion with doing acc ounting for plai n t i ff and his wife individually and the business plaintiff started, and the complaint adequately all eg ed those duties exis ted and that they wer e brea ched by defe ndant’s participation in the takeove r of the busine ss.

Dec ision Under Review Appea l from the Circuit Court of L ake County
, No. 07-CH-2803; the Hon. Mitchell L . Hoffma n, J udg e, pre siding.

J udg ment Reverse d and re manded.Counsel on

Appea l Thomas W. Gooch I I I
, of Gauthier & Gooch, of Wauconda, for appellants.

Robert Marc Chemers, Richard M. Waris, and Donald P

. E ck l er, all of Pretzel & Stouffe r, Chrtd., of Chicag o, for a ppellees.

Panel J USTI CE SCHOSTOK delive r e d th e ju d gme n t of the court, with opinion.
J ustices McL are n and Z enoff concur red in the judg ment and opinion.

OP INION

¶ 1 The plaintiffs, Wil l i am an d M ax i n e M i l l er , wh o we re two of the founder s and share holders of the closely held corpor ati o n Claimsco International, Inc., filed this action
ag ainst the ot her shareholde rs, t he defenda nts Michae l Har

ris and Kenneth Hox ie, and the

acc ountant who worked for all of t hem, t he def endants John Verchota

and his firm, Miller Ver chota, Inc. (collec tively ref err ed to as Ver chota)

. At issue in this appea l is count I I of the fourth amende d complaint, which alleg ed that Ver chota brea ched his fiduciar y duty toward the pl aintiffs. (The rema ining defenda nts settled with the pl aintiffs, and the claims ag ainst them are not at issue here .) The trial court dismiss ed count I I under section 2-615 of the Code of Civil Procedur e (Code) (735 I L CS 5/2-615 (West 2010)) o n the g round that it failed to state a claim upon which relief could be g rante d. The plaintiffs appea led. We reve rse and

rema nd.

¶ 2 BA CKGROUND ¶ 3 T h e fo l l o wi n g facts are drawn from the alleg ations of the fourth amende d complaint (complaint) which, for purposes of a motion pursuant to section 2-615 of the Code, we must take as true. Khan v. Deutsche Bank AG
, 2012 I L 112219, ¶ 47 (“I n revie wing the sufficie ncy of a complaint, we a cce pt as true a ll well-pleade d fac ts in the complaint and all rea sonable infere nces that may

be dra wn there from.”)

. ¶ 4 Wil liam Miller was an insurance cla i m s ad j u s ter who worke d throug hout his life for

numerous independe nt insurance companies. Miller operated his claims adjusting business primarily in Toronto, Canada
, but he beca me interested in expanding his business to include

a simil ar company in the United States. About this time he met Michae l Har ris, and the two eventua lly decide d to form a new company , Claimsco Internatio n al
, I n c. , to operate i n the United States. Miller’s Canadian business provided almost $100,000 to co mm e n c e o peration of the new company

. Shortly afte r Claimsco beg an doing business, Har ris and Miller enter ed into a share holders’ ag ree ment (the 1990 Ag ree ment). Under that ag ree ment, Miller would

-2-act a s chairma n of the c ompany

and would own 1,000 of the 1,250 share s of the c ompany ; Har ris would act a s president and own 125 share s. (The r emaining125 share s were owned by Thomas Miles, who is not releva nt to this case .) ¶ 5 In 1990, Claimsco (ac ting throug h Miller) hired Ver chota as its tax acc ountant to ha ndle

nece ssary g overnme nt filings and rela ted duties. The complaint all ege s t h at Ver chota was reta ined under an oral ag ree ment, the terms of which included the proviso that, in perf orming

acc ounting duties for

Claimsco, he would follow the ter ms of the 1990 Ag ree ment. ¶ 6 I n 1 9 9 2
, Miller and his wife, Maxi ne, hired Ver chota to do th ei r o wn t ax -r el at ed

acc ounting. Ag ain, the complaint alleg es that Ver chota was reta ined via an or al ag ree ment under wh ich Verchota “ag ree d to use hi s best eff orts to minimi ze taxation” to the M illers. The c omplaint also alleg es that an implied term of the contra ct was that Ve rchota “agree d,

as part of the duties any acc ountant would owe, to avoid any ty pe of conflict with any other clients and further to avoid favor ing any other client over the Millers.” The complaint asser ts that the Millers “subseque ntly ” lear ned that Ver chota had con t inued to perf orm tax

acc ounting for Claimsco afte r 1992 and, upon information and beli ef
, t h at he also did
persona l acc ounting work for Har ris and perha

ps Hoxi e (a minority share holder who beca me vice pr esident of Claimsco betwe en late 2001 a nd ear ly 2002). ¶ 7 The complaint asser ts that Ver chota owed the Millers a duty of loy alty that require d him “to rema in fre e of any conflict with other clients and to fol low” the Millers’ instructions
reg arding the share holders’ ag ree ments to be applied when doing his acc ounting for Claimsco “or, alternatively
, *** to withdraw from continued repr esent a ti o n a s th e acc ountant of all parties, including Claimsco, Har ris, and [t he] Millers.” The complaint also asser ts that Ver chota’ s duty of loy alty require d him to disclose to the Millers any confl i ct s t h at might develop with other

clients. ¶ 8 In 2001, Miller transfe rre d 500 of his 1,000 Claimsco sha res to his wife as part of their
estate planning

. The 1990 Ag ree ment provided that any share holder could transfe r share s to

a spouse or child so long as the transfe ree ag ree d in writing to be bound by the 1 9 9 0 Ag ree ment. ¶ 9 In September 2002, approximately 10 y ear s afte r the Millers first hired Ver chota as their
persona l acc ountant, Har ris asked Miller to attend a Claimsco business meeting

. The complai n t al l ege s that, unbeknownst to Miller, the purpose of the meeting was to seize control of Claimsco. At dinner the first night, Miller, Har ri s , and Hoxi e wer e joined by a lawy er, a friend of Har

ris’s with whom H arr is and Hoxi e had be en consulting , alleg edly to assist them in seizing control of Claimsco. The lawy er “coe rcive ly informed” Miller that the lawy er and Ver chota had deter mined that Miller wa s p er s onally liable to Claimsco for a “g reat deal of money ,” that the money would have to be repa id or else Claimsco and Miller would owe the Interna l Revenue Service (I RS) a lot of money , and that the lawyer and Har ris would “see to Wil li am ’s financ ial and persona l downfa ll” unless Miller acc epted the proposition about to be made. The proposition included the demand that Miller immediately

surre nder contr o l o f C l aimsco to Har ris throug h the execution of a new share holders’
ag ree ment (2002 Ag ree ment), under which Har ris would own the majority of the share s and Hoxi e’s sha

res would be incre ased.

-3-¶ 10 The complaint alleg es that no consideration was g iven for the 20 0 2 Agr ee m en t

. T h e

complaint acknow ledg es that, at the same time he sig ned the 2002 Ag ree ment, Miller also signed a second ag ree ment (Executive Ag ree ment) under which he would continue as an

em p l o y ee of Claimsco (the chair man) for five y ear s and would rec eive a $75,000 an n u al salary
, the use of a car , and insurance

. Howeve r, the complaint also alleg es that none of the benef its g rante d to Miller under the Ex ecutive Agree ment “ca n truly serve as consideration,” beca use Miller alre ady “had the rig ht to t h es e ad v an tag es as a majority share holder” of Claimsco. The complaint states that Miller wa s relucta nt to ex ecute these two a g ree ments, but he was “fur

ther coer ced and pressure d” by the lawy er, who told him that his transfe r of 500 share s to his wife was “illeg al” and “would g et him in further trouble.” Acc ording ly
, “at the insistence” of the lawy er and the “conside rable badg ering ” from the lawyer and Har ris, Miller signe d the t wo agr eeme nts and also sig ned his wife’ s name to them. The complaint states, however, that the M illers “maintain that all Shareholde r Agre ements s u b s eq uent t o *** 1990 wer e void for want of consideration and the only valid Shareholde r Ag ree ment is” the 1990 Ag ree ment. ¶ 11 The complaint all ege s t h at , af t er the 2002 Ag ree ment was signe d, Har ris and Hoxie, “assisted by Ver chota, *** beg an a course of conduct to eliminate t h e M i l l ers from any involvement in Claimsco *** and eliminate them from any corpor ate participation” as was t h ei r rig ht as share holders. The complaint alleg es that this course of action included: conducting corpor ate dire ctors’ me eting s and shar eholder s’ meeting s without noti ce to the Millers; canc elling (without notice) the cre dit car ds held by M ax i n e M i ller since 1990; chang ing the corpor ate health insurance prog ram “in such a way as to deprive [t he Millers] of their health insurance ”; notifying M axine Miller about the termination of her health insurance benef

its in a manner t hat negatively aff ecte d her “opportunity to conver t or t ake
any action to maintain” those benef its; repor ting distributions to Har

ris, Hoxi e, and the Millers, despite the fac t that the Millers rec eived no distributions while Har ris and Hoxi e did;

cre ating K-1 statements showing those n o nexis tent distributions and repor ting those distributions to the I RS, while withholding issuance of tax re porting forms and K-1s to the Millers; a nd adjusting Claimsco’s rec ords and acc ounts to ref lect that the Millers owed the
corpor ation a substantia l debt and rec eived distributions that in fac t the Millers never

rec eived, thereby

g ener ating an income tax liability for the Millers. The M illers asser t that they asked H a

r r is a n d Ver chota for financ ial information relating to Claimsco’s activities “on

numerous occ asions,” but these r equests we re ig nored or ref used. ¶ 12 The complaint alleg es that afte r 2002, contra ry to Ve rc h o t a’ s d u t y o f loy alty to the Millers and his duty not to put the interests of others ahea d of the Millers’ interests, Ver chota followed Har

ris’s instructions to adjust Claimsco’s books and rec ords so as to maxi miz e the Millers’ financ ial liabiliti es, falsely ref lect income to them without actua lly transfe rring that income, and unfairly disadvantag e them compar ed to the other share holders. The 2002 and 2005 tax returns that Ver chota prepa red for t he Mi llers were based on this false reporting
, althoug h they did not rea liz e it or g ive permission, and Ver chota did not explain the Millers’
tax returns to them. In addition, Ver chota failed to rec og nize the conflict of interest betwee n the Millers and his other clients, and failed to withdraw from repr esenting other clients with interests adv er s e to the Millers’. Finally
, afte r Har ris unilatera lly terminated the 2002

-4-Ag ree ment and Ex ecutive Ag ree ment in Marc h 2007, and he and Hoxi e executed a new

purported share holders’ agree ment t h at completely eliminated the Millers’ share s and participation in C laimsco, Ver chota withdre w from serving as t he Mi llers’ accounta nt and continued as the acc ountant for Claimsco and Har ris. The complaint asser

ts that from 2002

onwar d Ver chota used the confide ntial information he had obtained from the Millers to act to their detriment. The complaint alleg es that th e M i l l ers sustained damag es of more than $50,000 throug h substantially highe r t axes, “liabilities to the Unit ed S tates Treasury ,” and the costs of hiringother a ccounta nts to straighte n out their financ ial matters. ¶ 13 Ver chota filed a motion to dismiss count I I of the co m p l ai n t , t h e M i l lers’ claim for brea ch of fiduciar

y duty
, u n d er section 2-615 of the Code. Ver chota argued that the alleg ations of the complaint failed to state a claim for brea ch of fiduciar y duty

. On J anuar

y 25, 2011, afte r briefing and a hear ing, the t ri al court g rante d the motion. That ruling eff ectively dismiss ed Ver chota from the case , as count I I was the only claim ag ainst him. The trial court did not make any finding pursuant to I llinois Supreme Court Rule 304(a) (ef f. Fe b. 26
, 2 0 1 0 ) i n connec tion with the ruling

. The trial court denied the Millers’ motion to

rec onsider on Marc h 8, 2011. There afte r, the Millers settled with the other defe ndants, and the rema ining counts of the complaint wer e dismiss ed pursuant to a settlement ag ree ment on April 2, 2012. The Millers filed a timely notice of a

ppeal.

¶ 14 ANALYSI S ¶ 15 The sole question befor e us on appea l is whether the trial court err ed in dismiss ing c ount I I for failure to state a claim. The Millers argue that the complaint adequa tely states a claim for brea ch of fiduciar

y duty by Ver chota, while Ver chota main t ai n s that it does not, for various re asons. ¶ 16 A motion to dismiss brought under section 2-615 of the Code attacks the sufficie ncy of the complaint, on t he basis that, eve n assuming the alleg ations of the complaint to be true, the complaint does not state a cause of action that would entitle the plaintiff t o relief

. 735 I L CS 5/2-615 (West 2010); Kolegas v. Heftel Broadcasting Corp.
, 154 I ll. 2d 1, 8 (1992). W e re v i ew d

e novo the gra

nt of such a mot ion. Khan
, 2012 I L 112219, ¶ 47. As we noted

ear lier, in revie wing the sufficie ncy of a complaint, we must acc ept as true all well-plea ded fac ts and any rea sonable inferenc es t hat can be drawn from t h o s e facts, and we must view the allegations of t he complaint in the light most favor able to the pl aintiff. Id. “A cause of action should not be dismiss ed unless it is clea rly appar ent that no set of fac ts can be proved” consistent with the alleg ations that would entitle the plaintiff to rec over. Id. ¶ 17 We beg in by addre ssing the issue of whether and how to consider the various agree ments that the Millers attache d to their complaint: the 1990 Ag ree ment, the 2002 Ag ree ment, and the Ex ecutive Ag ree ment. Ver chota corr ectly points out that documents attache d as exhibi ts to a complaint become part of the complaint. Burton v. Airborne Express, Inc.
, 367 I ll. App. 3d 1 0 2 6
, 1034 (2006). Ver chota arg ues from this that the terms of the 2002 Ag ree ment “contr ol ove r” any contra dictory alleg ations in the complaint and doom the cause of action beca use it is undisputed that Ver chota followed the 2002 Agree ment in per forming his

acc ounting duties for

Claimsco.

-5-¶ 18 This arg ument misap p re hends the nature of the Millers’ claim, which is for brea ch of fiduciar y duty
, not brea ch of contra ct. The supreme court addre ssed this distinction in Khan
, 2012 I L 112219, a case that simil arly involved a section 2-615 motion to dismiss a claim for brea ch of fiduciar

y duty

. There
, the plaintiffs wer e investors who claimed to have relied upon the defe ndants’ advic e in making investments. The plaintiffs alleg ed, among other things, that the defe ndants had brea ched their fiduciar y d u t y t o war d the plaintiffs by improperly advising them reg arding prosp ec t i v e investments, improperly telling the plaintiffs that the investments w ere leg al and wer e adequa tely supported by leg al opinions, a nd failing to te ll the plaintiffs that some of t h e d efe ndants and other participa nts had undisclosed

arr ang ements for fee -splitting or fee -shar ing. Id. ¶ 48. In their motion to dismiss for failure
to state a claim, the defe ndants noted that the plaintiffs had signe d docume n t s containing disclaimers and rele ases during the cours e o f ma k in g th e investments. (These disclaimers and

re l ea s es stated that the defe ndants wer e not acting as fiduciar ies with respe ct to the investments, that the plaintiffs had sufficie nt k n owledg e and experience to evaluate the investm en t s , an d that the plaintiffs wer e not rely ing on the defe ndants’ advice or views.) Attaching copies of these documents to the ir motion to dismiss
, the defe ndants argued that the documents contra dicted the alleg ations of the complaint, and so the complaint could not stand. The tria l court agree d and dismissed the complaint. ¶ 19 On revie w, the appellate court reje cted this argument, holding that the documents did not control over the contra

ry alleg ations in the complaint for sever al rea sons. First, the appellate
court noted that the documents had not been attache d to the com p l ai n t i t self, only to the motion to dismiss

. Even if the documents had been attache d to the complaint, howeve r, “the documents could only trump the alleg ations in the complaint if the complaint wer e founded

on the documents. ” Id

. ¶ 52. But fiduciar y duties arise as a matter of law from the relationship betwee n the parties, not from documents. Id. (citing Armstrong v. Guigler
, 174 I ll. 2d 281, 287 (1996))

. A claim for brea ch of fiduciar y duty is not “founde d on” a contra ct,

even if the parties’ relationsh i p t h at g ives rise to the fiduciar y duty is based on a contra ct. Rather, “[a] fiduciar

y duty is founded upon the substa n ti v e p r in ciples of ag ency , contra ct, and equity .” Id. (citing Armstrong
, 174 I ll. 2d at 293-94). Thus, as the plaintiffs’ claim for brea ch of fiduciar

y duty was not founded on contra ctual documents such as those put forwa rd by the defe ndants, those documents did not control over the alleg ations of the complaint. Id. ¶ 53. Instead, “the appellate court declare d that it would take all of the well-plea ded facts of the complaint as true e ven if the disclaimer in the *** documents appe are d to contradic t those fac tual alleg ations.” Id. The supreme court approve d this ruling in its own decision. Id. ¶ 54. ¶ 20 Applying the same princ iple here , we hold that the a g ree ments attache d to the Millers’ complaint (including the 2002 Ag ree ment) do not “cont ro l o v er” or negate t he allegations of the complaint beca

use the Millers’ claim for brea ch of fiduciar y duty is not founded upon those ag ree ments. Rather, the claim is founded upon the asser tion that Ver chota stood in such

a rela tionship to the Millers that he owed them a fiduciar y duty
, which encompa ssed duties of loy alty and honesty

. The Millers alleg e that that relationship arose out of Ver chota’ s oral
ag ree ment wi t h them to serve as their persona l tax acc ountant, and also out of the oral
ag ree ment with Claimsco (the majority share holders of which wer e the Millers) to serve as its accounta

nt. Neither the 2002 Ag ree ment nor any of the other ag ree ments contradic ts or

-6-o therwise overc omes these alleg ations. Reg ardle ss of whether the 2002 Ag ree ment wa s v a li d

o r invalid, or whether as Claimsco’s acc ountant Ver chota had a duty to follow t h e 2 0 0 2 Ag ree ment (issues that are inappropriate for resolution in the context of a section 2-615 motion), the Millers alleg e that Ver chota never theless owed them fiduciar y duties of honesty and loy alty

. Thus, to the extent that we consider the 2002 Ag ree ment in evaluating the sufficie ncy of the complaint, we find that it does not dictate that the claim for brea ch of fiduciar y duty must fail. ¶ 21 We there fore turn to the issue of whether the complaint sufficie ntly pleads such a cla im. In Khan
, the supreme court noted the strict limit ations upon the matter s t hat a court may consider in ruling on a section 2-615 motion to dismiss a claim for brea ch of fiduciar y duty : “[W ]e are not deter

mining whether a fiduciar y relationship actua lly exis ted betwee n the *** defe ndants and plaintiffs. *** We deter mine only whether the well-plea ded fac tual alleg ations of the complaint adequately alleg ed that a fiduciar y relationship exis ted and

was brea ched by the *** defe ndants. In making this deter mination, we are limit ed to the fac tual alleg ations of the complaint and rea sonable infere nces drawn there from. We may not consider e x trane ous matters.” Id. ¶ 49.
A claim for brea ch of fiduciar y duty must alleg e two elements: a fiduciar y relationship, and a bre ac h of t he duti es i mposed as a matter of law as a result of t hat relationship. Id. ¶¶ 49, 52. “A fiduciar

y relationship may arise as a matter of law from the exis tence of a particula r relationship, such as an attorney -cl i en t or principal-a g ent relationship” ( Gonzalzles v. American Express Credit Corp.
, 315 I ll. App. 3d 199, 210 (2000))
, or come about when “one party repose s trust and confide nce in another
, who there by g ains a resulting influence and a superiority over the subservient party” ( Khan
, 2012 I L 112219, ¶ 58). Ex amining the complaint in Khan
, the supreme court held that the alleg ations there adequately stated such a cla im. ¶ 22 We come to a simil ar conclusion here

. The Millers alleg e that they hired Ver chota to a ct

as their persona l acc ountant, which included draf ting and filing their tax-related documents and providing them with tax advice

. They there fore provided him with confide ntial financ ial information and trusted him to minimi ze their tax liabiliti es, a duty that Ver chota undertook

as part o f their oral ag ree ment with him. These alleg ations are sufficie nt to alleg e the exis tence of a fiduciar

y relationship. A fiduciar

y relationship car

ries with it “the duty of *** candor
, rec titude, car e, loy alty
, and g ood faith.” Burdett v. Miller
, 957 F.2d 1375, 1381 (7th Cir. 1992). An ag ent must not place h i m self in a position which is adver se to that of his principal during the exis tence of the ag ency

. County of Cook v. Barrett
, 36 I ll. App. 3d 623, 628 (1975). F urther, “the law strictly require s from an ag ent honesty and loy alt y t o the interests of the principal. This duty prohibits an ag ent from not only acquir ing persona l interests adver se to those of the principal, but also fr o m dealing independe ntly of the interests of the principal to the a g ent’s per sonal g ain in the subject matter of the a g ency . [C itation.]
An ag ent, thus, must keep the prin ci p al i n formed on all matters of which he has knowledg e that perta in to the subject matter of the ag ency

. The ag ent brea ches this duty
not only when he ac t s ad verse ly to the principal’s interest, but also when he conce als

-7-fac ts that involve the p ri n ci p al’s advanta g e.” Beaton & Associates, Ltd. v. Joslyn Manufacturing & Supply Co.
, 159 I ll. App. 3d 834, 842-43 (1987), supersede d by statute

on other grounds per Royal Impe rial Group, Inc. v. Joseph Blumberg & Associates, Inc.
, 240 I ll. App. 3d 360, 365 (1992). ¶ 23 The complaint adequa tely alleg es that Ve rchota brea ched his fiduciar

y duty toward the Millers. Specifica lly
, th e c o mplaint alleg es that, beg inning in 2002, Ver chota: assisted Har ris and Hoxi e in g aining control of Claimsco to the detriment of the Millers; place d the interests of other clients (Ha

rris and perha

ps Hoxi e and Claimsco) ahea d of t h eirs in making distributions from Claimsco; failed to honor his ag ree ment with the Millers to use the 1990 Ag ree ment in structuring Claimsco’s financ ial ac co u n ts and rec ords; used the Millers’
persona l financ ial information to harm them; failed to inform the Millers about any of this; and aff irmatively acte d to keep financ ial inf o rm ati on about Claimsco and nece ssary taxrelated documents from the Millers. The Millers also alleg e that Ver chota’ s conduct cause d them damag es of more than $50,000. I t might be that, at trial, the Millers are unable to prove

some or even al l of these alleg ations. At this point, howeve r, we must take all of these alleg ations as true. Khan
, 2012 I L 112219, ¶ 47. Take n as true, the alleg ations state a claim for brea ch of fiduciar

y duty

. We there fore reve rse the trial court’s dismiss al of count I I of the complaint. ¶ 24 Ver chota raises a varie ty of arguments ag ainst this outcome, but all of them lack mer it. Ver chota first argues that the Millers “aba ndoned” their contention that the 2002 Ag ree ment is invalid for lack of consideration or beca use it wa s the product of coer cion and dur ess, in that the complaint does not contain any alleg ations relating to this contention. Howeve r, this is simply incorre ct. Paragraphs 28 and 29 of the complaint all ege n o consideration, and
para g raphs 27, 32, and 33 alleg e coer cion and duress. Simi larly
, Ver chota’ s asser tion that the complaint does not alleg e that he and the Millers orally ag ree d that he would follow the 1990 Ag ree ment is incorre ct. (Para g raph 59 so a lleg es.) ¶ 25 Other arguments raised by Ver chota g o far beyond the four corne rs of the complaint and thus are not appropr iate for resolution here

. For instance, Ver chota argues that the 2002 Ag ree ment was valid
, co n trary to the M illers’ contentions that it lacke d consideration and

was the product of coer ci o n an d duress. Ver chota also argues that, even if the 2002 Ag ree ment was unenfor cea ble initially
, the Millers ratified it by acc epting the benef its of the Ex ecutive Agree m ent. Howeve r, these are substantive arguments direc ted to the merits of the complaint, rathe r than arguments that point out some defic iency in the pleading

. As such,

we cannot consider them here

. See Khan
, 2012 I L 112219, ¶¶ 55-56 (cour t must re strict its consideration to the alleg ations of the complaint; moreover , wher e key fac ts r elating to the

cause of ac t i o n ar e disputed, the resolution of the issues should be defe rre d until afte r “discove ry and the development of a proper evidentiar y rec ord,” and thus it would be inappropriate t o conver

t a section 2-615 m otion to a section 2-619 m o t i o n o r a motion for
summary judgme nt). In a simil ar vein, Ver cho t a argues that we should find the Millers’ contentions about the purported invalidity of the 2002 Ag ree ment forf eited b ecause the Millers did not cite case law about considera tion or coer cion in their appellate brief, but this
argument is misguided in that substantive issues such as the validity of the 2002 Ag ree ment

are not before us in this appeal.

-8-¶ 26 Ver ch o t a al so raises arguments that must fail beca use they do not relate to the claim

asser ted here, which is a claim for breac h of fiduciary duty

. For instance, Ve rc h ota argues that he had no duty to advise t h e M i l lers reg arding the validity or invalidity of the 2002 Ag ree ment beca

use he is an acc ountant, not a lawy er. Howeve r, the Millers have not claimed that Ver chota ha d any such duty

. Rather, they asser t that he had the duty

either to c ontinue following the 1990 Agree ment (which they assumed he was doing) or to tell them that he was following the 2002 Ag ree ment. Moreove r, they asser t that Ver chota should have rec og nized that following the 2002 Ag ree ment would requir e h i m t o p l ace the interests of Har ris and Hoxi e over the interests of the Millers and that this c onflict of interest require d him to stop providing acc ounting service s not only to the Millers but also to Har ris and Claimsco. These alleg ations are unaff

ecte d by the validity

or invalidity

of the 2002 Agree ment. ¶ 27 Simi larly
, Ver chota argues t hat he had no leg ally enfor cea ble contractual obli g ation to ignor e the 2002 Ag ree ment, beca use any such obligation would run counter to his profe ssional duties and would g et hi m i n t roubl e under the I llinois Public Acc ounting Act (225 I L CS 450/20.01(a)( 14) (West 2010)). Ag ain, howeve r, this argument treats the Millers’ claim as one for brea ch of contra ct, which it is not. Ver chota has not identified any case law
sug g esting that the I llinois Public Acc ounting Act excuses an acc ountant from his fiduciar y duties. ¶ 28 Ve rc hota also arg ues t hat t he allegations relating to his oral retention ag ree ments wi t h the Millers and Claimsco are not pleade d with adequate s p ec i fi city

. Howeve r, althoug h a p l ai n t i ff may not preva il on a claim for brea ch of an oral contra ct unless the terms of t h e contra ct are proved with specific ity
, the exact terms of the alleg ed oral ag ree ments need not be inclu d ed i n the complaint. Telling ly
, almost all of the case s cited by Ver chota in this section of his brief deal with whether an oral contra ct was adequately proved a t t r i a l
, not whether it was sufficie ntly alleg ed. The sole exception is Abrams v. Illin o is Co l l eg e of Podiatric Medic i n e , 7 7 I l l

. App. 3d 471, 476 (1979), in which the alleg ations of an oral
contra ct wer e extremely vague, stating only that the defe ndant there told the plaintiff not to worry about the difficu l t i es he was having and “ ‘that ever y thing would be done to assist [hi m]
, including fi gu ri ng out some way to help him.’ ” Whil e we ag ree with the Abrams court’s c onclusion that those alleg ations were , as a matter of law, too vague and inde finite
to g ive rise to any oral contra ct, the same cannot be said of the alleg ations here

. In this case , the complaint alleg es that the Millers and Claims co (a ct ing throug h the Millers) reta ined Ver chota to provide profe ssional tax acc ounting service s and tax advice to them, and further provides several specifics about those oral retain er agre ements. This is sufficie nt to alleg e the exis tence and g ener al terms of the oral reta iner agree ments; further details about the exact terms of those contra cts may be obtained throug h discovery

. See Khan
, 2012 I L 112219, ¶ 47 (“A cause of action should not be dismiss ed unless it is clea rly appar ent that no set of fac ts can be proved” consistent with the alleg ations that would entitle the plaintiffs to rec over.)

. This is especially

true in view of the fact that this is an ac tion for bre ach of fiduciar y duty
, not an ac tion for bre ach of contra ct. ¶ 29 Final l y , Ve rc h o t a ar gu es t h at t h e M i l l er s cannot bring a claim for pr ofessional malprac tice, beca

use they place d themselves in a “questionable ” situation (alleg edly running
up a larg e debt to Claimsco and then signing the 2002 Ag ree men t ) an d t h en soug ht

-9-profe ssional help t o esca pe that situation. See Make la v. Roach
, 1 4 2 I l l

. App. 3d 827, 832 (1986) (cour

t w ould dismiss plaintiff’s cla im for profe ssional ma lprac tice when the matter with which plaintiff soug ht profe ssional assistance was fra udulent as a matter of law). Once again, howeve r, t his arg

ument rests on a mi sunderstanding of t he Mi llers’ claim, wh i ch i s not for profe ssional malprac tice but for brea ch of fiduciar y duty

. (A l t houg h the phrase “ac countant malprac tice” ap p ea rs i n the title of count I I
, we look to the substance of the alleg ations rathe r than the title. See W abash County, Illinois v. Illinois Municipal Retireme nt Fund
, 408 I ll. App. 3d 924, 932 (2011).) Moreove r, the alleg ations of the complaint, which
must be construed in the light most favor able t o t h e M i l l ers at this point ( Khan
, 2012 I L 112219, ¶ 47), do not support Ver chota’ s content i o n s : the Millers clea rly alleg e that they
soug ht V erc hota’s acc ounting assistance and enter ed into a fiduciar y relationship with him long befor e 2002. I t is this relationship, not the Millers’ subsequent actions, that is rele vant to their claim. Finally
, this argument, which is based on the principle of unclea n hands, is an aff irmative defe nse that rests here upon disputed fac ts (see Bucc i v. Rustin
, 227 I ll. App. 3d 779, 784 (1992))
, and thus it is not appropr iate for resolution within the strictures of a section 2-615 motion to dism iss ( Khan , 2012 I L112219, ¶¶ 55- 56).

¶ 30 CONCL USI ON ¶ 31 For all of these re as o n s , we reverse the J anuar y 25, 2011, order of the circ uit court of L ake County dismiss ing count I I of the fourth amende d complaint, and rema nd the case for further proce eding s consistent with this opi nion.

¶ 32 Reverse d and re manded.

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