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SECOND DIVISION
July 22, 2003

No. 1-01-2125

Plaintiffs Chris Linker, Richard Hughes, and the law firms representingthem (the Attorneys) filed this appeal from orders of the circuit court denyingtheir request for attorney fees under the common fund doctrine, denying theirrequest for a preliminary injunction to escrow certain funds for fees, denyingtheir motion to reconsider denial of their request for fees and request forescrow, 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 defendantsAllstate Insurance Company's and The Agent Transition Severance Plan's⁽²⁾ motionto dismiss plaintiffs' putative class action complaint that alleged causes ofaction for breach of contract and common law fraud.

For the reasons set forth below, we affirm in part, reverse in part, andremand for further proceedings.

Plaintiffs were employed by defendant, as employees, rather thanindependent contractors, under various forms of employment contracts, includingR830, R1500, and a "General Agent" contract, as agents who sold insurancepolicies.⁽³⁾ Plaintiffs retired, some early, or terminated their employment withdefendant prior to November 1, 1999. Plaintiffs filed the instant class actionagainst defendant seeking damages for breach of contract (count I) and common lawfraud (count II), contending that defendant coerced them and others similarlysituated to retire from, terminate their employment, or convert to independentcontractor status, at a time when defendant knew, but failed to disclose to themthat, within a short period of time, it would offer lucrative severance benefitsand conversion incentives to individuals who remained employed with defendant.⁽⁴⁾ According to plaintiffs' complaint, defendant conceived a new businessplan, as early as December 1998, whereby defendant's customers would purchasepolicies of insurance through independent contractors, call centers, or theInternet. 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 statusso as to prevent them from being eligible for the benefits of the program itwould soon announce. According to plaintiffs' complaint, defendant held meetingswith its agency managers as early as July 1999, and advised them of theincentives 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 whetherthey could sell their books of business or whether any other changes were underconsideration. Most plaintiffs were told that no changes were being consideredor known of, including being allowed to sell their books of business.

On November 10, 1999, after many employees had terminated their employmentwith defendant, defendant officially announced its new business plan and offereda severance plan and conversion incentives under its "Agent Transition SeverancePlan" (Plan) to those employee-agents remaining with the company. Pursuant tothe Plan, all employee employment contracts would terminate no later than June30, 2000. For those employees who terminated their contracts, retired, orconverted to independent contractor status between December 1, 1999, and June 30,2000, the following options were offered. First, an employee could convert toindependent contractor status under defendant's R3100S contract with certainother bonuses being given. Second, an employee could retire or terminate his orher relationship with defendant and either sell his or her books of business orselect a severance program. Two severance plans were offered. The first was thebase plan in which employees would receive 1 week of pay for each full year ofservice 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 1year's pay, to be paid in 24 monthly installments.

On January 11 and 14, 2000, plaintiffs' attorneys sent a demand letter todefendant, seeking the same benefits offered under the Plan for plaintiffs sincethe severance plan and conversion incentives were under consideration at the timeplaintiffs had retired or left defendant's employ. Having received no responsefrom defendant, plaintiffs filed their original class action complaint on April20. The proposed class included all employee-agents who terminated theiremployment with defendant, in whatever manner, after December 1, 1998, and whowere not offered benefits under the Plan. On May 15, defendant amended its Planto include employees who had retired or terminated their employment subsequentto June 1, 1999. On May 18, defendant sent a letter to Linker, among otherspresumably, informing him of the amendment. Linker was advised that if hedesired to receive the benefits, he was required to return a signed release todefendant by July 31.

On May 31, plaintiffs filed an emergency motion to compel defendant toprovide the names of putative class members with whom defendant had beencommunicating in connection with the class action and with whom it had madesettlement offers, and to permit plaintiffs' attorneys to initiate discovery sothat they could properly advise their retained clients and other putative classmembers. In their motion, plaintiffs alleged that after the class action hadbeen filed, but before the class was certified, defendant made attempts to settlewith putative class members, including Linker and Hughes, without communicatingwith counsel. The trial court denied the motion on June 1. Thereafter,defendant filed a motion to dismiss the class action complaint. In the latterpart of July, Linker and Hughes accepted defendant's settlement offer and bothsigned releases.

On August 1, plaintiffs filed an amended complaint. Carson, Chaney,Flanagan, and Jones were added as representative plaintiffs. The causes ofaction remained the same. However, The Agent Transition Severance Plan⁽⁵⁾ wasadded 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, Hughesand their attorneys filed a motion for attorney fees pursuant to, inter alia, thecommon fund doctrine, and a motion for a preliminary injunction to escrow certainfunds for fees. Defendants filed a memorandum in opposition to this motion. Inaddition, on September 15, defendants filed a motion to dismiss counts I and IIof plaintiffs' amended class action complaint pursuant to section 2-615 of theCode of Civil Procedure (Code) (735 ILCS 5/2-615 (West 1998)) and a motion todismiss count III pursuant to section 2-619 of the Code (735 ILCS 5/2-619 (West1998)). With respect to count I, defendants contended that plaintiffs failed toallege any specific contract provision that was breached and that Illinois doesnot recognize an independent cause of action for breach of the implied covenantof good faith in at-will employment contracts. With respect to count II,defendants contended that plaintiffs failed to plead with specificity and alsofailed to plead that defendant owed a special duty to plaintiffs to disclose itsproposed 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 thehearing, plaintiffs argued that there was a "pot of approximately $10 million"to be paid to 119 former employees. According to counsel, they believed thattheir demand letter to defendant and the filing of the class action lawsuitprompted defendant to amend its severance plan and to offer benefits to theadditional 119 employees. Following the hearing, the trial court deniedplaintiffs' motion for attorney fees and for a preliminary injunction.

On November 6, following arguments by counsel, the trial court granteddefendants' motion to dismiss. First, the trial court concluded that allemployees, including those employed under the R830 contracts, were at-willemployees. The court further concluded that there was no independent cause ofaction for breach of the implied covenant of good faith. The court dismissedcount I with prejudice because, given the facts of the case, it did not believethat plaintiffs could cure the defects. With respect to count II, the courtdismissed this count without prejudice, finding that plaintiffs failed to pleadwith specificity and with particularity and also that they failed to plead anyspecial duty on the part of defendant. Plaintiffs were given leave to file asecond amended complaint.

On January 16, 2001, plaintiffs filed a motion to reconsider the denial ofattorney fees and preliminary injunction, relying on a recent case issued by theIllinois Supreme Court. On March 16, after defendants had responded toplaintiffs' motion to reconsider, plaintiffs filed their reply to defendants'response to their motion to reconsider, asked the court to set a hearing date onthe motion, and asked the court to compel discovery against defendant should thecourt grant the motion to reconsider. On May 14, because plaintiffs had failedto file a second amended complaint, defendants filed a motion for entry of anorder dismissing the entire cause with prejudice. On May 21, the trial courtdenied plaintiffs' motion to reconsider, denied plaintiffs' motion to compeldiscovery, and granted defendants' motion to dismiss the entire cause withprejudice. This appeal followed.

The issues with respect to the Attorneys raise questions as to thepropriety of the trial court's order denying their common fund claim, denyingtheir motion to escrow, denying their motion for reconsideration, and denyingtheir motion to compel discovery. The Attorneys argue that our standard ofreview on each of these issues is de novo because, although it is unclear fromthe record the specific bases for the trial court's decision on each motion, thetrial court's rulings were made without an evidentiary hearing and it made nofindings of fact. Defendants contend that the standard of review with respectto the request for fees is de novo, and that the standard of review with respectto the request to escrow fees and motion to compel discovery is based on an abuseof the trial court's discretion. Defendants do not set forth any standard forreviewing the trial court's motion for reconsideration.

The Attorneys first contend that the trial court erred in declining toapply the common fund doctrine in the instant case. They rely extensively on arecent 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 contentionthat the common fund doctrine has been revitalized and clearly would apply in theinstant case.

Defendants respond, in general, that Chapman is not applicable to theinstant case. They maintain that Chapman relaxed impediments to recovery ofattorney fees only in certain cases and that the doctrine is still applicableonly in exceptional cases. According to defendants, Chapman did not involve aclass action and does not hold that in class actions all restrictions on thedoctrine have been lifted. Defendants also argue that Chapman left untouched along line of cases holding that the common fund doctrine is not applicable toputative class actions. Defendants also maintain that the Attorneys aremisdirecting the doctrine because they are attempting to impose it againstdefendants, rather their clients--the proper parties.

The common fund doctrine allows an attorney "who creates, preserves, orincreases the value of a fund in which others have an ownership interest to bereimbursed from that fund for litigation expenses incurred, including counselfees." Chapman, 193 Ill. 2d at 572-73. The doctrine "rests upon the perceptionthat persons who obtain the benefit of a lawsuit without contributing to itscosts are unjustly enriched." Bishop v. Burgard, 198 Ill. 2d 495, 509, 764N.E.2d 24 (2002). The basis for the court's authority to award fees under thisdoctrine is the power to do equity in a particular situation. Sprague v. TiconicNational 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 mustshow that (1) the fund was created as the result of legal services performed bythe attorney, (2) the subrogee or claimant did not participate in the creationof the fund, and (3) the subrogee or claimant benefitted or will benefit from thefund that was created." Bishop, 198 Ill. 2d at 508. Whether the common funddoctrine applies to any particular case is a question of law which we review denovo. 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 partand dissenting in part).

In Chapman, the wife of a deceased individual retained counsel (theplaintiff in Chapman) to file a wrongful death lawsuit in Missouri. Afterworking on the case for three years, the plaintiff settled for $800,000 on behalfof the deceased heirs, including the wife and the deceased's parents (thedefendants in Chapman). Chapman, 193 Ill. 2d at 562. Shortly before the hearingon the wife's petition to approve settlement in the wrongful death lawsuit, thedefendants retained their own attorney, who intervened in the lawsuit. Followinga hearing, the court awarded the wife 86% of the settlement and 14% to thedefendants. The plaintiff was awarded a one-third attorney fee out of the wife'sportion of the settlement. Chapman, 193 Ill. 2d at 562. Thereafter, theplaintiff filed a lawsuit against the defendants, seeking attorney fees out ofthe 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 todismiss the common fund claim, concluding that it was inapplicable to the casebefore it. Chapman, 193 Ill. 2d at 564. The appellate court reversed. MorrisB. 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 thatIllinois 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 andinsurance subrogation cases, finding that the doctrine was applicable to " 'manytypes 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 beencreated for the benefit of others." Chapman, 193 Ill. 2d at 576. The Chapmancourt then distinguished three cases decided by this court in which we found ineach case that the common fund doctrine was not applicable since the attorneysin those cases did not obtain any existing or identifiable monetary award for aclass. Chapman, 193 Ill. 2d at 576-77. In contrast, the Chapman plaintiff hadpursued the wrongful death case for three years and secured a settlement for allheirs, including the defendants. As a result of the plaintiff's work, thedefendants were awarded $112,000. The Chapman court found that the settlementwas 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 wasnot controlled by any Illinois court, holding "that the mere fact that the fundis 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 theparameters or analysis necessary when the common fund doctrine is raised in classaction lawsuits. Moreover, Chapman is factually distinguishable. The attorneythere 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 theChapman settlement, whereas in the instant case, there were 119 differentseverance packages received. In addition, the beneficiaries of the settlementin Chapman knew about the case before the merits were decided and were partiesto the proceedings. Here, the beneficiaries are not parties to the proceedings.⁽⁷⁾ Lastly, the attorney in Chapman sought to receive fees from the parties whobenefitted from the settlement, not from the payor of the settlement as in theinstant case.

We conclude that application of the common fund doctrine is not appropriatein 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 (thesettling employees). The law is clear that counsel must seek fees from thebeneficiaries 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 TrustAuthority, 51 Ill. 2d 126, 128, 281 N.E.2d 338 (1972).

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Based on our finding that the common fund doctrine is inapplicable in thiscase, we need not determine whether a fund was, for all practical purposes,created. Similarly, we need not address the Attorneys' arguments with respectto preemption, the effect of the releases and settlements entered into andwhether they bar the Attorneys' claim for fees, nor the Attorneys' argument withrespect to the fact that application of the common fund doctrine does not requirea meritorious judgment by the court, but, rather, the underlying cause of actionmust only set forth nonfrivolous claims. Accordingly, we find that the trialcourt did not err in denying application of the doctrine.

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Because we have concluded above that the common fund doctrine was notapplicable under the circumstances presented here, the Attorneys' argumentsregarding the issues of discovery and a preliminary injunction need not beaddressed since they are moot.

Plaintiffs contend that the trial court erred in dismissing their amendedcomplaint (complaint) for breach of contract and common law fraud againstdefendants pursuant to section 2-615 of the Code. A motion to dismiss pursuantto section 2-615 of the Code challenges the legal sufficiency of a plaintiff'scomplaint. Joseph v. Chicago Transit Authority, 306 Ill. App. 3d 927, 930, 715N.E.2d 733 (1999). When reviewing the sufficiency of a complaint, the court mustaccept as true all well-pleaded facts and all reasonable inferences that can bedrawn from those facts. Bryson v. News America Publications, Inc., 174 Ill. 2d77, 86, 672 N.E.2d 1207 (1996). It is the court's duty to determine, consideringthe allegations of the complaint in the light most favorable to the plaintiffs,whether the allegations are sufficient to state a cause of action upon whichrelief may be granted. Board of Directors of Bloomfield Club Recreation Ass'nv. Hoffman Group, Inc., 186 Ill. 2d 419, 424, 712 N.E.2d 330 (1999). Thecomplaint should not be dismissed unless it is clear that the plaintiffs couldprove no set of facts that would entitle them to relief. Bryson, 174 Ill. 2d at86-87. 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).

Plaintiffs contend that the trial court erred in dismissing count I oftheir complaint because they set forth four bases for breach of contract. Ingeneral, defendants respond that none of the theories advanced by plaintiffs areviable because of the express at-will language in the employment contracts. Defendants also argue that plaintiffs failed to reference any specific contractprovision in support of any of their arguments.

First, plaintiffs argue that they set forth sufficient allegations thatdefendant breached the termination provisions of the employment contract becausedefendant engaged in concerted efforts to drive out employees before announcingits 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-willemployees. While plaintiffs concede that the R1500 employment contracts are atwill, they maintain that the R830 employment contract allows termination only forcause and is not an at-will contract. Although noting that there is a split ofauthority in the Seventh Circuit federal court⁽⁸⁾ as to whether the R830 contractsrequire cause, plaintiffs argue that the better interpretation of the contractis that it does require cause. Otherwise, according to plaintiffs, the reviewprocedure provided for in the contract would be meaningless. Plaintiffs furtherargue that the R830 contract, unlike the R1500 contract, does not use at-willlanguage and should be construed against defendant, the drafter, who clearly knewhow 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 employmentand provides that the contract can be terminated by either party upon writtennotice. According to defendant, its termination rights are only limited when anemployee 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, whichprocedure is contrary to a finding that the contract allowed for termination atwill or without cause.

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

"[1] This agreement will automatically terminate uponyour death. Either you or Allstate have the right toterminate this agreement upon mailing to the other, athis or its last known address, written notice oftermination. ***

[2] The Company will not terminate your employmentbecause of unsatisfactory work unless you have beennotified that your work is unsatisfactory and that yourjob is in jeopardy and unless you have been given areasonable opportunity to bring your performance up tosatisfactory standards.

[3] The term 'unsatisfactory work' relates to thequality of performance. Notification that your job isin jeopardy is not required in the event of terminationof employment for a criminal act or an act ofdishonesty, such as, by way of example but not limitedto, the following: embezzlement, *** fraud ormisrepresentation of material fact, or forgery. Suchnotification is also not required in the event oftermination of employment resulting from the violationof a provision of Section II of PART FOUR of youragreement [agreement not to work for or represent anyoneelse while working for Allstate].

[4] If this agreement is terminated by the Company, youhave the right to a review by the Agent Review Board asset forth in the Agents Procedure Manual, unless suchtermination was in accordance with the provisions of aCareer Foundation Agreement Amendment held by you.

[5] In no event shall an employee be released for anyreason without the following review and approvalprocedure 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 lessthan ten years service, additional review andapproval by the Zone Personnel Manager and theZone Vice President are required.

(3) For employees with more than ten years service,review and approval in the Home Office by thePersonnel Vice President are required in additionto the above."

Five federal cases have construed the language of the R830 contract. Fourhave concluded that defendant does not need cause, with the exception ofdismissal for unsatisfactory performance, in order to dismiss an employee. SeeKaniff 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. AllstateInsurance Co., No. 87-6101 (11th Cir. November 7, 1988) (unpublished order); Szotv. Allstate Insurance Co., 161 F. Supp. 2d 596 (D. Md. 2001). One court hasconcluded 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 respectto at-will employment, stating:

"Illinois follows the rule that 'an employmentrelationship without a fixed duration is terminable atwill by either party.' [Citations.] In order toovercome that presumption, we must find evidence in thecontract that shows that the parties intended to requireAllstate to prove good cause for Hudson'stermination.⁽¹⁰⁾ The language 'must contain a premiseclear enough that an employee would reasonably believethat an offer had been made.' [Citations.]" Hudson, 93F.3d at 299.

The Hudson court then noted that the R830 contract had elements of both at willand "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 thatlimited Allstate from terminating any employee "for any reason at all" except forunsatisfactory performance. Hudson, 93 F.3d at 300. Specifically, the Hudsoncourt stated:

"The fact that the agreement goes out of its way tospecify that notice is not required if the basis oftermination is a criminal or dishonest act (as opposedto any myriad of other reasons that do not amount to'unsatisfactory work,' but are neither criminal nordishonest) cannot be transformed into a general rulerequiring Allstate to demonstrate that its reason fortermination qualified as 'good cause' in all cases." Hudson, 93 F.3d at 300.

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

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

"This provision indicates that Allstate may notterminate an employee for any reason, at any time. There must be unsatisfactory work, notice andopportunity to cure. Hence, good cause is required toterminate an employee." Morales, slip op. at ___.

With respect to the review procedures, the Morales court stated that "[a]lthoughdefendant's counsel argued that the review was only a procedure, such proceduresare meaningless if the reviewing process is a rubber stamp--one must believe thatthe 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 torevert to an at will contract. The addendum onlyprovides that for certain types of particularly bademployee conduct (criminal acts, dishonesty), theemployer is not required to give [the] employee noticeor an opportunity to change. Contrary to Allstate'sposition, the language does not mean that Allstate neednot have good cause for discharge. It simply means thatif Allstate has good cause, for certain types ofbehavior, it need not give the employee an opportunityto improve or change." Morales, slip op. at ___.

We do not find Hudson persuasive nor controlling. When the Hudson courtquoted the contract language, it merged the first and second paragraphs into oneparagraph. Then, although stating that it was bound by the plain language of thecontract, the court nonetheless ignored certain plain language in the contract. Specifically, the court ignored paragraph four. Although the court did mentionthis provision in passing, it never addressed nor analyzed its affect on theentire contract. The court also entirely ignored paragraph five in its analysis. Moreover, although Allstate in Hudson argued that procedural requirements suchas notice and a review procedure prior to termination do not turn the agreementinto a contract for cause, the court failed to address this contention. Itshould be noted that the cases relied upon by Allstate in Hudson to support thiscontention (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, 505N.E.2d 314 (1987)) in fact directly contradict it. Both cases held thatprocedural requirements set forth in a company manual, where the manual is foundto constitute a binding contract between the parties, must be complied with priorto 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 "articulatedprocedures are a fundamental and necessary part of an employment contract whichprovides for an employee's discharge or dismissal only upon just cause"). Moreover, Hudson did not address the issue of good faith or a requirement thatAllstate not act with bad faith in all circumstances. In Hudson, the terminatedemployee admitted to acting dishonestly. Thus, Hudson does not negate the factthat there may be a requirement that a defendant cannot act in bad faith even forterminations other than unsatisfactory work. The Hudson court simply did notaddress this issue. As discussed below, defendant must do something more, interminating an employee, other than saying, "There's the door, go." Accordingly,we do not accept Hudson's ultimate conclusion that cause is not needed toterminate 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-employeerelationship without a fixed duration is terminable at will by either party, thisis only a rule of construction and the presumption can be overcome "bydemonstrating that the parties contracted otherwise." Ahlgren, 266 Ill. App. 3dat 160. This is precisely what the parties here did with respect to the R830contract.

The relevant contract provision, as amended, contains five paragraphs. Thefirst paragraph sets forth the alleged at-will provision. The second paragraphrelates to unsatisfactory work and the procedures that must be followed shoulddefendant wish to terminate an employee on this basis. The third paragraphrelates to criminal conduct, in essence, and the fact that no notice is requiredprior to termination. The examples set forth in this paragraph would constitutematerial breaches of the contract in any event and, therefore, would terminateit. The fourth and fifth paragraphs are independent and are not limited toeither 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 orwritten. Clearly, defendant drafted two different contracts with differentlanguage and, thus, must have intended the contracts to set forth different termsof 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-willcontract, there would be no rational reason to include paragraphs four or five. Again, paragraph four is not limited to any particular reason for termination andparagraph 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'sthe door, you're gone." However, the contract does not allow this. Defendanthas provided for a review procedure; in fact, it appears that there may be twodifferent forms of review procedures.⁽¹²⁾ In any event, based on the fact thatemployees are given some sort of review for termination for "any reason," it musttherefore be concluded that the contract is not an at-will contract.

In this respect, it would seem to be logical that, because a reviewprocedure is provided for, implied in that protection is the fact or element thatdefendant cannot act in bad faith in terminating an employee. Thus, there mustbe cause. If defendant could terminate an employee without cause, then thereview provisions would be illusory and there would be no reason to include themin the contract. We cannot ignore these provisions and must give effect to allprovisions contained in the contract. Therefore, defendant, as plaintiffs'employer, "[h]aving announced the policy, presumably with a view to obtaining thebenefit of improved employee attitudes and behavior and improved quality of thework 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), citedby Mitchell, 142 Ill. 2d at 171. See also Morales, slip op. at ___ ("suchprocedures are meaningless if the reviewing process is a rubber stamp--one mustbelieve that the process protects an employee from wrongful discharge").

In addition, defendant itself included these last four paragraphs in thecontract, although it could simply have stopped at the end of the firstparagraph. The R830 may well then have been an at-will contract. This isprecisely what defendant did later in the R1500 contract. However, defendant didnot stop after the first paragraph in R830. Instead, it added additionalprotections for employees. Because defendant drafted the contracts, they mustbe strictly construed against defendant. Therefore, since defendant clearlyutilized different language in each contract, we must construe the R830 contractas something different than the R1500. As the court in Mitchell stated:

"If defendant wants to reserve sole discretion todischarge any employee for any reason at any time,defendant could simply say so. Defendant would not thenneed to make a distinction between probationaryemployees, who may be fired for any reason, andnonprobationary 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 fortermination. It, unlike the R1500, is not an at-will contract based on the plainlanguage of the contract. Accordingly, we find that the trial court erred inconcluding that the R830 contract was an at-will contract and erred in dismissingcount I on this basis. Plaintiffs clearly alleged that defendant engaged inconduct that could be found, by a trier of fact, to be a breach of thetermination with cause provision.

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In conclusion, we find that plaintiffs set forth sufficient facts to statea 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.

Plaintiffs next contend that the trial court erred in dismissing theircommon law fraud claim because they set forth sufficient allegations to sustainthis cause of action. Defendants contend that plaintiffs' common law fraud claimlacked the specificity required by law and, further, that defendant possessed noduty to disclose, thereby defeating plaintiffs' cause of action.

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We conclude that plaintiffs' complaint failed to sufficiently allege acause of action based on express misrepresentation because the allegations werenot sufficiently specific or particular. See Hirsch v. Feuer, 299 Ill. App. 3d1076, 1085, 702 N.E.2d 265 (1998). Accordingly, the trial court did not err indismissing count II of plaintiffs' complaint on this basis.

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We conclude that plaintiff's complaint failed to sufficiently allege acause of action based on misrepresentation by concealment because the allegationswere 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 (Connickv. 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 ofplaintiffs' complaint and remand this cause for further proceedings.

For the reasons stated, we affirm in part, reverse in part, and remand thiscause to the circuit court of Cook County.

Affirmed in part; reversed in part; and remanded.

GORDON and McBRIDE, JJ., concur.

1. On February 5, 2002, we granted defendants' motion to dismiss the appealas to Linker and Hughes.

2. Although both of these entities are appellees, Allstate is the primarydefendant and when reference is made to a single defendant it is intended to meanAllstate only.

3. There is no copy of the "General Agent" contract in the record.

4. The original class action complaint was filed by Linker and Hughes. Anamended complaint was filed thereafter, adding as representative plaintiffsCarson, Chaney, Flanagan, and Jones. The general allegations in both complaintswere the same.

5. This is the entity through which the severance payments were to be made.

6. This count is not before us on appeal.

7. We can presume, however, that the beneficiaries did in fact have noticeof the class action lawsuit as the releases they were required to signspecifically referenced the case.

8. The split is not in the Seventh Circuit; rather, it is among the variouscircuits and districts of the federal courts.

9. Although plaintiffs here also cite to Turner v. Allstate Insurance Co.,902 F.2d 1208 (6th Cir. 1990), in support of their argument that the R830contract should be construed to require cause for dismissal, it has been notedthat Turner did not quote the contract language it was construing and thecontract it was construing was perhaps not the R830 contract. See Hudson, 93F.3d at 300 ("For all we can tell, the contract that Turner had signed wasdifferent from Hudson's and contained a promise not to terminate him except forgood cause"). See also Szot, 161 F. Supp. 2d at 602 n.2 (stating that it wasunclear whether the Turner court was construing the same language).

10. Hudson was terminated for dishonesty.

11. Note, in these cases, the procedures were not even set forth in thecontract of employment, as in our case, but were stated elsewhere.

12. We do not have the "Agents Procedure Manual" referenced in paragraph fourand, therefore, we cannot ascertain the exact nature of the review providedtherein.