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1-00-1121 

FOURTH DIVISION
APRIL 18, 2002

 
JUSTICE HARTMAN delivered the modified opinion of the court:

Plaintiffs Fane Lozman and Blue Water Partners, Inc. (BlueWater) appeal the circuit court's denial of their motion to vacatea stay of discovery and the grant of a section 2-615 (735 ILCS 5/2-615 (West 2000) (section 2-615)) motion to dismiss brought bydefendants Archipelago, L.L.C. and Archipelago Holdings, L.L.C.(collectively, Archipelago). Plaintiffs assert they pledsufficient facts in the dismissed counts of their complaint tostate a cause of action against Archipelago and that the courtcommitted reversible error by denying their motion to vacate thestay of discovery. The issues raised on appeal include whether (1)the court erred by granting Archipelago's section 2-615 motion todismiss; and (2) the court abused its discretion by denyingplaintiffs' motion to vacate the stay of discovery.

On August 9, 1999, plaintiffs filed their initial complaintfor damages and injunctive, declaratory and other equitable relief,alleging, inter alia, usurpation of corporate opportunity andbreach of joint venture. Certain defendants, including Gerald D.Putnam, Terra Nova Trading, L.L.C. (Terra Nova), Stuart Townsendand Marrgwen Townsend (collectively, the Townsends), TownsendAnalytics, Ltd. (Townsend Analytics) and Chicago Trading &Arbitrage, L.L.C. (CTA), moved to dismiss plaintiffs' complaintpursuant to sections 2-615 and 2-619 (735 ILCS 5/2-619 (West 2000)(section 2-619)) of the Code of Civil Procedure (735 ILCS 5/1-101et seq. (West 2000) (Code)). Archipelago, in a separate motion,moved to dismiss plaintiffs' action under sections 2-613 (735 ILCS5/2-613 (West 2000) (section 2-613)) and 2-615 of the Code. Also,certain defendants and Archipelago separately moved for aprotective order staying discovery. The circuit court granteddefendants' motions to dismiss, stayed discovery as to alldefendants and granted plaintiffs leave to file an amendedcomplaint.

On December 6, 1999, plaintiffs filed their 22-count, revised amended complaint (hereinafter "amended complaint")⁽¹⁾ and, shortlythereafter, moved to vacate the stay of discovery. Pertinent tothe instant appeal, in count XIV, plaintiffs sought recission,cancellation and reformation of a partial release signed by Lozmanand Putnam on October 9, 1995, which released Putnam and Terra Novafrom liability, but not Archipelago. Plaintiffs alleged that thepartial release was procured by means of constructive fraud andbreach of fiduciary duty. Plaintiffs pled that such a partialrelease between fiduciaries is presumed to be fraudulent. Inaddition to that presumption, according to plaintiffs, Putnamprocured the partial release by not disclosing breaches offiduciary duties which arose out of his status as an officer ofBlue Water and joint venture partner of Lozman. Plaintiffsasserted that as a direct and proximate result of defendants'nondisclosure of material facts and Putnam's receipt of money inhis fiduciary capacities that he failed to disclose, Lozman'ssignature on the partial release and his writing of the word "void"on the April 17, 1995 agreement regarding futures and futuresoptions commissions should be rescinded and cancelled. Certaindefendants and Archipelago each moved to dismiss plaintiffs'amended complaint pursuant to sections 2-615 and 2-619 of the Code.

After lengthy argument on the motions, the circuit court madethe following oral findings as to: (1) counts I and II, plaintiffspled sufficient facts to survive the motions to dismiss, notingthat plaintiffs alleged more than mere usurpation of suggestedideas; (2) counts III and IV, for similar reasons as to the firsttwo counts, enough facts were pled to survive the motions todismiss; (3) counts V and VI, dismissed with prejudice; (4) countsVII and VIII, dismissed with prejudice; (5) counts IX and X,dismissed with prejudice because Archipelago did not exist at thetime plaintiffs terminated their relationship with Putnam, theTownsends, Townsend Analytics and Terra Nova; (6) counts XI andXII, Archipelago and CTA were dismissed with prejudice becauseplaintiffs failed to plead facts demonstrating that they were partof any joint venture, but the court denied the motion as to theremaining defendants; (7) count XIII, dismissed with prejudice; (8)count XIV, sufficient facts were pled to allow the recission countto remain, specifically noting that plaintiffs alleged the releasewas fraudulently obtained; (9) counts XV and XVI, dismissed withprejudice because plaintiffs lacked standing under the statute;(10) count XVII, dismissed with prejudice because plaintiffs lackedstanding under the statute; (11) count XVIII and XIX, deniedbecause plaintiffs have pled various facts showing agreements thatthe parties entered into from which they have yet to receiverevenues; (12) count XX, denied because plaintiffs pled sufficientfacts illustrating agreements between the parties to transferownership; (13) count XXI, all defendants were dismissed withprejudice because an independent cause of action for breach of dutydid not exist; and (14) count XXII, Archipelago and CTA weredismissed because Illinois case law supported Archipelago'scontention that a corporation cannot conspire with its own agents,but denied the motion as to the remaining defendants.

On March 24, 2000, the circuit court entered a written ordergranting Archipelago's section 2-615 motion to dismiss counts IX-XII, XVII and XXI-XXII with prejudice, thereby renderingunnecessary consideration of Archipelago's section 2-619 motion. The order also stated that "[t]he dismissal of the Archipelagodefendants with prejudice is a final and appealable order pursuantto Supreme Court Rule 304(a)." In addition, on April 19, 2000, thecourt ordered that the March 24, 2000 order be amended, nunc protunc, to read, "[t]he dismissal of the Archipelago defendants withprejudice is a final and appealable order pursuant to Supreme CourtRule 304(a). No just reason exists for delaying either enforcementor appeal or both."

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

Plaintiff's amended notice of appeal specifies, among otherthings, that appeal is taken from the March 24, 2000 order grantingdefendants' section 2-615 motion to dismiss counts IX through XII,XVII, XXI and XXII, with the appeal being based upon the circuitcourt's Rule 304(a) finding. Notwithstanding that finding,analysis reveals that the appeal is final only as to counts XI-XII,XVII, XXI and XXII, as shown in the discussion under Part I of thisopinion, but not as to counts IX and X, as shown under Part II ofthis opinion. Separate treatment and result is justified under theprinciples of judicial economy and efficient administration ofjustice.

In counts XI and XII of their complaint, plaintiffs soughtrelief against all defendants for breach of joint venture, which isdefined as an association of two or more persons to carry out asingle enterprise for profit. Fitchie v. Yurko, 212 Ill. App. 3d216, 226, 570 N.E.2d 892 (1991). Here, the facts did not show thatplaintiffs and Archipelago were associated to carry out a singleenterprise for profit, nor did plaintiffs plead facts demonstratingthe existence of a formal or informal agreement establishing ajoint venture between themselves and Archipelago.

In count XVII, plaintiffs, citing section 12.56 of the Act,pursued a corporate oppression claim against Archipelago formonetary relief based on the conduct of the individual defendants. The supreme court in Schirmer v. Bear, 174 Ill. 2d 63, 74-75, 672N.E.2d 1171 (1996) (Schirmer) held that when a plaintiff seeksrelief under section 12.55 (805 ILCS 5/12.55 (West 2000)) of theAct by filing an action which alleges illegal, oppressive orfraudulent conduct, plaintiff must establish that defendant engagedin alleged statutory misconduct. Although here, plaintiffs pledfacts showing that Putnam and the Townsends engaged in a series ofacts and a course of conduct that prevented them from possessingand commercially enjoying opportunities, assets and benefits,plaintiffs failed to establish facts showing that Archipelagoengaged in statutory misconduct. Therefore, applying the holdingin Schirmer to section 12.56 of the Act, the circuit court properlydismissed count XVII.

Further, in count XXI, plaintiffs sought recovery against alldefendants for breach of the duty of good faith and fair dealing. In Voyles v. Sandia Mortgage, 196 Ill. 2d 288, 751 N.E.2d 1126(2001), plaintiff could not bring an independent cause of action intort for the alleged breach of an implied duty of good faith andfair dealing arising from a contract.

Recovery against all defendants for civil conspiracy in countXXII also is inactionable because plaintiffs failed to state anindependent cause of action against Archipelago for its claims. See Indeck North American Power Fund v. Norweb, P.L.C., 316 Ill.App. 3d 416, 432, 735 N.E.2d 649 (2000).

From the foregoing, the record supports the circuit court'sdismissal of counts XI, XII, XVII, XXI and XXII.

A different issue is presented with respect to theappealability of the dismissal of counts IX and X. Althoughneither party contests this court's jurisdiction to hear thisappeal, the consent of the parties does not confer jurisdiction. Therefore, this court raises the jurisdictional issue sua sponte. Ferguson v. Riverside Medical Center, 111 Ill. 2d 436, 440, 490N.E.2d 1252 (1986); Archer Daniels Midland Co. v. Barth, 103 Ill.2d 536, 539, 470 N.E.2d 290 (1984); Vijuk Bindery Equipment, Inc.v. Transconex, Inc., 171 Ill. App. 3d 408, 409, 525 N.E.2d 593(1988).

Supreme Court Rule 304(a) (155 Ill. 2d R. 304(a) (Rule304(a))) provides that if multiple parties or claims for relief areinvolved in an action, a party may appeal a final judgment as toone or more, but fewer than all the claims only if the circuitcourt has made an express written finding that there is no justreason to delay enforcement or appeal of its order. The supremecourt has held that a claim includes any right, liability or matterraised in an action. Marsh v. Evangelical Covenant Church ofHinsdale, 138 Ill. 2d 458, 465, 563 N.E.2d 459 (1990) (Marsh). Ifa judgment does not resolve every right, liability or matterraised, it must contain an express finding that there is no justreason for delaying an appeal. Marsh, 138 Ill. 2d at 465. Thepurpose of Rule 304(a) is to discourage piecemeal appeals in theabsence of a just reason and to remove the uncertainty whichexisted when a final judgment was entered on fewer than all thematters in controversy. Marsh, 138 Ill. 2d at 465.

An order which includes language stating that it was enteredpursuant to Rule 304(a) nevertheless may not be appealable unlessit is a final judgment. Viirre v. Zayre Stores, Inc., 212 Ill.App. 3d 505, 511, 571 N.E.2d 209 (1991) (Viirre); cf. Boonstra v.City of Chicago, 214 Ill. App. 3d 379, 385, 574 N.E.2d 689 (1991)(Boonstra) (finding that "[w]here a dismissal is based upon adetermination that the complaint is not sufficient to state a causeof action, the order is final and appealable by its nature," andthat "an order of dismissal for failure to state a cause of actionwhich is not followed by a request to amend is a final, appealableorder and does not require a specific declaration by the plaintiffthat he wishes to stand on the complaint").⁽²⁾ Accordingly, aninitial determination must be made as to whether the circuitcourt's Rule 304(a) finding was final and appealable.

An order is "final" if it terminates the litigation betweenthe parties on the merits or disposes of the rights of the partieseither on the entire controversy or a definite and separate partthereof. Susman v. Price, 230 Ill. App. 3d 639, 641, 594 N.E.2d1332 (1992) (Susman); Village of Niles v. Szczesny, 13 Ill. 2d 45,48, 147 N.E.2d 371 (1958). The circuit court may enter an orderwith the necessary Rule 304(a) language, however, the reviewingcourt is not precluded from making an independent assessment of thenature of the order. Bachewicz v. American National Bank and TrustCo. of Chicago, 75 Ill. App. 3d 252, 258, 393 N.E.2d 652 (1979). A key factor in determining the finality of an order appealed frompursuant to Rule 304(a) is whether the bases for recovery under thecounts that were dismissed are different from those in theremaining counts. Coryell v. Village of La Grange, 245 Ill. App.3d 1, 5-6, 614 N.E.2d 148 (1993). In addition, the reviewing courtmay analyze the precise nature of the conflict remaining betweenthe parties and the effect that the judgment in question will haveon that conflict. Hildebrand v. Topping, 240 Ill. App. 3d 104,108, 608 N.E.2d 119 (1992) (Hildebrand).

In Hildebrand, plaintiff filed a petition for an accountingarising out of two partnerships with defendant. The circuit courtruled in favor of plaintiff on his complaint and against defendanton his counterclaim. The circuit court retained jurisdiction tooversee the final winding up of partnership affairs, finalaccounting and sale of property belonging to one of the formerpartnerships. On appeal, defendant asserted that the appellatecourt lacked jurisdiction pursuant to Rule 304(a) because thecircuit court order was not final and appealable, although thenecessary language was present in the order. The Hildebrand courtfound that the order was not final and appealable because it wasintertwined with the final accounting still pending in the lowercourt and further ruled that the case could not be resolved withouta full examination of the partnership accounts. 240 Ill. App. 3dat 108.

In Palatine National Bank v. Charles W. Greengard Associates,Inc., 119 Ill. App. 3d 376, 456 N.E.2d 635 (1983) (Palatine),plaintiff sought to appeal from count IV of its complaint fromwhich the circuit court struck certain claims for damages. CountsI-III of its complaint claimed negligence and the fourth countsounded in contract. Defendant contended that the court's orderwas not final because it did not fully dispose of the contractaction, although the court made findings required by Rule 304(a). The Palatine court dismissed the appeal as to the circuit court'sorder regarding count IV, finding that had plaintiff sought toappeal only from the dismissal of the portions of the allegationsof count IV, it could not do so properly because the order left thecause of action still pending and undecided under that theory ofrecovery. 119 Ill. App. 3d at 381.

In the instant case, similar to the above-discussed cases, thecircuit court's dismissal of counts IX and X involving Archipelagodid not dispose of the parties' rights on a definite part of thelitigation, namely, Archipelago's putative liability, because countXIV, the pending recission count, was not dismissed, the courthaving denied defendants' motion to do so. A review of thepleadings from that count is necessary to determine whether thecourt's Rule 304(a) finding was entered improvidently due to a lackof finality of the judgment.

The instant pleadings show that the disputed October 9, 1995agreement from which plaintiffs seek recission did not releaseArchipelago as a party since Archipelago did not exist in name atthat time. One of the signatories of the agreement, Putnam, was afiduciary of Blue Water as its former president. In the recissioncount, plaintiffs allege Putnam procured the partial release bymeans of constructive fraud and breach of fiduciary duty. As partof the partial release agreement, Lozman voided his rights tofutures and futures options commissions generated for customeraccounts initiated through Scanshift or Townsend software, whichsoftware plaintiffs claim is utilized currently by Archipelago. Plaintiffs also pled that Archipelago, as an alter ego of TerraNova, was in the same line of business as Blue Water becauseArchipelago was formed and is now operated by Putnam and the Townsends.

A complaint need only contain a plain and concise statement ofplaintiff's cause of action; it is unnecessary for the complaint toset forth evidence that plaintiff intends to introduce at trial. Rodgers v. Whitley, 282 Ill. App. 3d 741, 749, 668 N.E.2d 1023(1996) (Rodgers). Pleadings in the complaint are to be liberallyconstrued "with a view toward doing substantial justice between theparties." 735 ILCS 5/2-603(c) (West 2000). A cause of actionshould not be dismissed on the pleadings unless it clearly appearsthat no set of facts can be proved under the pleadings which wouldentitle plaintiff to recover. Davis v. Temple, 284 Ill. App. 3d983, 989, 673 N.E.2d 737 (1996).

Further, a plaintiff is not required to plead facts withprecision when the information needed to plead those facts iswithin the knowledge and control of defendant rather than plaintiff(Bryson v. News America Publications, 174 Ill. 2d 77, 110, 672N.E.2d 1207 (1996) (Bryson); Stap v. Chicago Aces Tennis Team,Inc., 63 Ill. App. 3d 23, 29-30, 379 N.E.2d 1298 (1978) (Stap)). Those cases are pertinent here because the circuit court granteddefendants' motions to stay discovery until after resolution of themotions to dismiss and, thereafter, denied plaintiffs' motion tovacate the stay of discovery. It follows that where defendantshave most of the relevant information in their possession, theyhave no need to rely primarily on facts stated in plaintiffs'complaint to formulate an answer and responsive motions since theyare aware of and can determine easily the specific details forthemselves. Bryson, 174 Ill. 2d at 110; Stap, 63 Ill. App. 3d at28-30. In cases such as this one, plaintiffs can state thematerial facts with less specificity than normally would berequired and the pleading will not be considered to be bad insubstance if it reasonably informs defendants of the nature of theclaim they must meet. Bryson, 174 Ill. 2d at 111; ChampaignNational Bank v. Illinois Power Co., 125 Ill. App. 3d 424, 428, 465N.E.2d 1016 (1984).

Accepting the factual allegations contained in plaintiffs'pleadings as true and considering them in a light most favorable toplaintiffs (Rodgers, 282 Ill. App. 3d at 746), sufficient factshave been pled to show, allegedly, the line of business from BlueWater to Archipelago, with Putnam as the fiduciary link in commonfor all the corporations that were formed until the eventualcreation of Archipelago. Plaintiffs having pled a connectionbetween Archipelago and the October 9, 1995 release raisesArchipelago's potential liability through Putnam's actions andArchipelago's usage of Scanshift and Townsend software, therebymaking the determination of Archipelago's conceivable liability intertwined with and inseparable from the resolution of therecission count.

Considering Putnam as the fiduciary link between Blue Waterand Archipelago, the language in the recission count does notevince finality as to Archipelago's possible liability. Further,because the pleadings show Putnam's involvement as a fiduciary forBlue Water, Terra Nova and Archipelago, defendants reasonably wereinformed of the nature of the breach of fiduciary duty andconstructive fraud claims through the alleged line of businessleading to the formation of Archipelago. Therefore, resolution ofthe pending recission count is paramount because if plaintiffs wereto succeed below in rescinding the October 9, 1995 partial release, Archipelago potentially could be held liable for claims that thecircuit court dismissed.

The bases for recovery under counts IX and X that weredismissed could be affected by the outcome of trial as to countXIV, for which uncertainly still exists. The circuit court's grantof Rule 304(a) relief as entered here is reviewed under an abuse ofdiscretion standard. Schal Bovis, Inc. v. Casualty Insurance Co.,314 Ill. App. 3d 562, 570, 732 N.E.2d 1082 (1999); Susman, 230 Ill.App. 3d at 642. To determine appealability, Illinois courts havelooked to federal cases discussing the Federal Rules of CivilProcedure, specifically Federal Rule 54(b) (Fed R. Civ. P. 54(b)(Rule 54(b))), which has substantially similar language to Rule304(a). See Geier v. Hamer Enterprises, Inc., 226 Ill. App. 3d372, 378-389, 589 N.E.2d 711 (1992) (Geier).

In Geier, the court considered various factors utilized by thefederal courts to determine whether the certification for appeal ofa portion of a case was an abuse of discretion. These factorsinclude: "'(1) the relationship between the adjudicated andunadjudicated claims; (2) the possibility that the need for reviewmight or might not be mooted by future developments in the districtcourt; (3) the possibility that the reviewing court might beobliged to consider the same issue a second time; (4) the presenceor absence of a claim or counterclaim which could result in set-offagainst the judgment sought to be made final; (5) miscellaneousfactors such as delay, economic and solvency considerations,shortening the time of trial, frivolity of competing claims,expense, and the like. Depending upon the facts of the particularcase, all or some of the above factors may bear upon the proprietyof the [district] court's decision in certifying a judgment asfinal under Rule 54(b).'" Geier, 226 Ill. App. 3d at 383, quotingAllis-Chalmers Corp. v. Philadelphia Electric Co., 521 F.2d 360,362 (3rd Cir. 1975); cf. Carter v. City of Philadelphia, 181 F.3d339 (3rd Cir. 1999).

The Geier court also noted the United States Supreme Court'sdecisions, which emphasize a pragmatic approach by utilizing aseverability analysis. "Where the dismissed claims 'can be decidedindependently of each other,'" in that they are not "'so inherentlyinseparable from, or closely related to' the remaining claims, thenthe [circuit] court does not abuse its discretion in certifyingthat there exists no just reason for delay of the appeal." Geier,226 Ill. App. 3d at 385, quoting Sears, Roebuck & Co. v. Mackey,351 U.S. 427, 436, 100 L. Ed. 1297, 1306, 76 S. Ct. 895, 900(1956); see also Curtiss-Wright Corp. v. General Electric Co., 446U.S. 1, 10, 64 L. Ed. 2d 1, 12-13, 100 S. Ct. 1460, 1465 (1980). If, however, there is an abundance of factual overlap between thedecided and the retained claims, they are not separate, and anappeal must be deferred until the latter are resolved. JackWalters & Sons Corp. v. Morton Building Inc., 737 F.2d 698, 702(7th Cir. 1984).

In the case sub judice, some of the adjudicated andunadjudicated claims are inseverable because, as previously noted,Archipelago's liability cannot be determined fully until resolutionof the pending recission count. Appellate review of the dismissedcounts of plaintiffs' complaint might be mooted by futuredevelopments in the circuit court if there is a ruling againstplaintiffs regarding the recission count. Also, as discussedabove, a ruling in plaintiffs' favor would create the possibilitythat Archipelago could be held liable for the claims the circuitcourt dismissed, thereby potentially obliging the reviewing courtto consider the issue of Archipelago's liability a second time. Inaddition, much factual overlap exists between the decided andretained claims. Therefore, the claims are not separate and anappeal should be deferred until the recission count is resolved.

A ruling by this court at this early stage regarding thecircuit court's findings would become the law of the case, settlingthe question of Archipelago's liability on remand regardless of theoutcome of the pending recission count. Coldwell Banker Havens,Inc. v. Renfro, 288 Ill. App. 3d 442, 448, 679 N.E.2d 1299 (1997) (law of the case doctrine provides that once a question of law orfact is litigated and decided, that is the end of the matter, andthe decision settles the question for all subsequent stages of alawsuit); Zokoych v. Spalding, 84 Ill. App. 3d 661, 667, 405 N.E.2d1220 (1980) (questions of law decided in a previous appeal arebinding on both the circuit court and the appellate court). Appellate jurisdiction will not be extended when a ruling on reviewmay affect a future determination of pending counts below. Viirre,212 Ill. App. 3d at 512; Brown v. K.J.S. Co., 189 Ill. App. 3d 768,771, 545 N.E.2d 555 (1989); In re Marriage of Ryan, 188 Ill. App.3d 679, 682, 544 N.E.2d 454 (1989).

Based on the foregoing, the circuit court abused itsdiscretion by entering a Rule 304(a) finding as to counts IX and Xbecause the claims against Archipelago are inseverable until theresolution of the recission count below.

A reviewing court has a duty to dismiss an appeal when itcannot exercise jurisdiction. E.M.S. Co. v. Brandt, 103 Ill. App.2d 445, 448, 243 N.E.2d 695 (1968). Accordingly, the dismissal ofcounts XI, XII, XVII, XXI and XXII is affirmed; however, becausethe March 24, 2000 and April 19, 2000 orders dismissing counts IXand X were not final and appealable, the Rule 304(a) findings as tothose counts were entered improvidently and, as to them, thisappeal is dismissed.⁽³⁾

Affirmed in part; appeal dismissed in part.

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

1. In their amended complaint, plaintiffs pled the followingwith respect to count: (I) injunctive relief against Putnam forusurpation of corporate opportunity; (II) an accounting,constructive trust and monetary relief against Putnam forusurpation of corporate opportunity; (III) injunctive reliefagainst Terra Nova for usurpation of corporate opportunity; (IV) anaccounting, constructive trust and monetary relief against TerraNova for usurpation of corporate opportunity; (V) injunctive reliefagainst the Townsends and Townsend Analytics for usurpation ofcorporate opportunity; (VI) an accounting, constructive trust andmonetary relief against the Townsends and Townsend Analytics forusurpation of corporate opportunity; (VII) injunctive reliefagainst CTA for usurpation of corporate opportunity; (VIII) anaccounting, constructive trust and monetary relief against CTA forusurpation of corporate opportunity; (IX) injunctive relief againstArchipelago for usurpation of corporate opportunity; (X) anaccounting, constructive trust and monetary relief againstArchipelago for usurpation of corporate opportunity; (XI)injunctive relief against all defendants for breach of jointventure; (XII) an accounting, constructive trust and monetaryrelief against all defendants for breach of joint venture; (XIII)injunctive, declaratory and other relief to quiet title regardingthe ownership and return of the programming code for Scanshift;(XIV) recission, cancellation and reformation regarding the October9, 1995 partial release; (XV) recission and cancellation based onillegal and oppressive conduct and waste of corporate assetspursuant to section 12.56 (805 ILCS 5/12.56 (West 2000) (section12.56)) of the Business Corporation Act (805 ILCS 5/1.01 et seq.(West 2000) (Act)); (XVI) damages against Putnam, Terra Nova, theTownsends and Townsend Analytics based on illegal and oppressiveconduct and waste of corporate assets under section 12.56 of theAct; (XVII) damages against CTA and Archipelago based on illegaland oppressive conduct and waste of corporate assets under section12.56 of the Act; (XVIII) damages against Putnam, Terra Nova, theTownsends and Townsend Analytics for breach of written contract;(XIX) damages against Putnam, Terra Nova, the Townsends andTownsend Analytics for breach of oral contract; (XX) specificperformance against Putnam and Terra Nova of the promise to deliverTerra Nova stock or ownership interest; (XXI) damages against alldefendants for breach of the duty of good faith and fair dealing;and (XXII) damages against all defendants for civil conspiracy.

2. Boonstra does not apply here because plaintiffs in this casefollowed an order of dismissal for failure to state a cause ofaction with a request to amend, thereafter filing their amendedcomplaint.

3. In light of this disposition, the issue relating to theasserted impropriety of the circuit court's discovery ruling neednot be addressed at this time.