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THIRD DIVISION
FILED: August 11, 2004

The plaintiffs, W.W. Vincent and Company (Vincent) and Northwest Insurance ServiceCenter, Inc. (Northwest), by Weiss Insurance Agencies, Inc., as successor in interest, appeal fromtwo orders of the circuit court which granted First Colony Life Insurance Company (First Colony)and Lincoln National Corporation's (Lincoln National) respective motions to dismiss various countsof the plaintiffs' amended and third amended complaints for failure to state causes of action. For thereasons which follow, we affirm in part, reverse in part, and remand for further proceedings.

The following general allegations of fact were set forth in each of the plaintiffs' complaints. On July 31, 1992, Northwest and Lincoln National executed a Stock Purchase Agreement (theAgreement) pursuant to the terms of which Northwest purchased all of the issued and outstandingstock of Vincent. Prior to executing the Agreement, Northwest conducted a due diligenceinvestigation and received documents from Lincoln National in order to determine the appropriatepurchase price for Vincent's stock. One of the many documents received by Northwest during thisdue diligence investigation was a General Agents Contract between Vincent and First Colony datedNovember 25, 1987. Under the General Agents Contract, Vincent had agreed to sell life insurancepolicies for First Colony in exchange for certain service fees due at the end of the tenth policy year. In April 1998, when the fees became due, First Colony made the first of four monthly payments toVincent. Following the fourth payment in July 1998, First Colony ceased paying Vincent and beganto issue service fee checks to Rick Redman under a purported assignment of the General AgentsContract from Vincent to Redman dated October 31, 1990. The assignment was not provided to theplaintiffs during the due diligence investigation or at the time the Agreement was executed.

On February 8, 2001, the plaintiffs filed a seven-count complaint against First Colony, LincolnNational, Redman and John Jensen. Following motions to dismiss filed by First Colony, LincolnNational and John Jensen pursuant to section 2-615 of the Code of Civil Procedure (the Code) (735ILCS 5/2-615 (West 2002)), the circuit court entered an order on October 30, 2001, which, interalia, struck those counts in the complaint directed against First Colony, Lincoln National and JohnJensen, and granted the plaintiffs leave to file an amended complaint.

On January 15, 2002, the plaintiffs filed an eight-count amended complaint against FirstColony, Lincoln National, Rick Redman and John Jensen. First Colony, Lincoln National and JohnJensen once again responded with section 2-615 motions to dismiss and, on May 17, 2002, thecircuit court entered an order which, inter alia, granted First Colony's motion to dismiss counts V(breach of contract), VI (a declaratory judgment as to the validity of the alleged assignment of theGeneral Agents Contract), and VII ( rescission of the assignment) of the amended complaint, struckthose counts directed against Lincoln National, and granted the plaintiffs leave to file a secondamended complaint as to Lincoln National.

On September 24, 2002, the plaintiffs filed a second amended complaint against LincolnNational, Redman and John Jensen. The plaintiffs did not reallege, incorporate by reference, or referto the previously dismissed counts against First Colony. The plaintiffs' second amended complaintwas subsequently stricken for failing to name Geraldine Jensen as the special representative of JohnJensen.

On January 2, 2003, the plaintiffs filed a third amended complaint against Lincoln National,Redman and Geraldine Jensen, as personal representative of John Jensen, deceased. The plaintiffsonce again failed to reallege, incorporate by reference, or refer to the previously dismissed countsagainst First Colony. Counts I, II, III, V and VIII of the third amended complaint set forth claimsagainst Lincoln National for breach of contract (counts I and II), fraudulent misrepresentation (countIII), fraudulent concealment (count V), and unjust enrichment (count VIII). Lincoln National fileda section 2-615 motion to dismiss counts I, II, III, V and VIII, which the circuit court granted onJanuary 14, 2003.

On June 4, 2003, the circuit court made the requisite findings under Supreme Court Rule304(a) (155 Ill. 2d R. 304(a)) that there was no just reason to delay enforcement or appeal from thatportion of the court's order of May 17, 2002, dismissing all counts of the plaintiffs' amendedcomplaint against First Colony, and that portion of the January 14, 2003, order dismissing all countsof the third amended complaint against Lincoln National. Thereafter, the plaintiffs filed the instantappeal.

First, the plaintiffs' contend that the circuit court erred in dismissing the claims against FirstColony for breach of contract, declaratory judgment and rescission as set forth in their amendedcomplaint. However, for the reasons which follow, we find that the plaintiffs have waivedconsideration of any issues relating to the dismissal of these claims.

Where an amended pleading is complete in itself, and does not reallege, incorporate byreference, or refer to the claims and supporting facts set forth in a prior complaint, the prior pleadingceases to be part of the record for most purposes, being in effect abandoned and withdrawn. FoxcroftTownhome Owners Association v. Hoffman Rosner Corp., 96 Ill. 2d 150, 154, 449 N.E.2d 125(1983). A party who files an amended pleading waives any objection to the circuit court's ruling ona former complaint. Boatmen's National Bank v. Direct Lines, Inc., 167 Ill. 2d 88, 99, 656 N.E.2d1101 (1995); Foxcroft, 96 Ill. 2d at 153, 449 N.E.2d 125. In order to preserve for review thedismissal of claims contained in a prior complaint, a plaintiff must either stand on the dismissed countsand challenge the ruling at the appellate level prior to filing an amended complaint, or reallege thedismissed counts in subsequent complaints. Doe v. Roe, 289 Ill. App. 3d 116, 120, 681 N.E.2d 640(1997).

Here, the plaintiffs' second and third amended complaints failed to reallege, incorporate, orrefer to the claims against First Colony for breach of contract, declaratory judgment or rescission setforth in their amended complaint. Therefore, we must treat as waived all issues pertaining to thedismissal of counts V, VI and VII of the plaintiffs' amended complaint.

Next, we shall address the dismissal of counts I, II, III, V and VIII of the plaintiffs' third, andfinal, amended complaint. A motion to dismiss brought pursuant to section 2-615 of the Code attacksthe legal sufficiency of a complaint based on defects apparent on the face of the complaint. Vitro v.Mihelcic, 209 Ill. 2d 76, 81, 806 N.E.2d 632 (2004). In ruling on a section 2-615 motion, a courtmust accept as true all well-pled facts in the complaint and draw all reasonable inferences therefromin favor of the nonmoving party. Vitro, 209 Ill. 2d at 81, 806 N.E.2d 632; Hanna v. City of Chicago,331 Ill. App. 3d 295, 303, 771 N.E.2d 13 (2002). The critical question on appeal is whether theallegations of the complaint, when viewed in the light most favorable to the plaintiff, are sufficientto state a cause of action upon which relief can be granted. Borowiec v. Gateway 2000, Inc., 209Ill. 2d 376, 382, 808 N.E.2d 957 (2004). A cause of action should be dismissed pursuant to a section2-615 motion only if it is clearly apparent that no set of facts can be proven which will entitle theplaintiff to recovery. Borowiec, 209 Ill. 2d at 382, 808 N.E.2d 957. Our review of a dismissalpursuant to section 2-615 is de novo, and we may affirm upon any grounds for which a factual basisexists in the record. Colmar, Ltd. v. Fremantlemedia North America, Inc., 344 Ill. App. 3d 977, 994,801 N.E.2d 1017 (2003).

Initially, we note that, as Lincoln National argues, the plaintiffs have waived any argumenton appeal concerning the propriety of the circuit court's dismissal of count VIII of their third amendedcomplaint. Although the plaintiffs' brief contains a general allegation that "each count [of the thirdamended complaint] states a viable cause of action," the plaintiffs failed to present any argument, orcite to any authority, relating specifically to count VIII. Accordingly, the plaintiffs have forfeited forpurposes of review any consideration of the propriety of the circuit court's dismissal of count VIIIof their third amended complaint. See Official Reports Advance Sheet No. 21 (October 17, 2001),R. 341(e)(7), eff. October 1, 2001; Lake Point Tower Garage Ass'n v. Property Tax Appeal Board,346 Ill. App. 3d 389, 397, 804 N.E.2d 717 (2004).

Before addressing the sufficiency of the plaintiffs' allegations as set forth in counts I and II ofthe third amended complaint, we must first address Lincoln National's argument that the integrationclause of the Agreement precludes the plaintiffs from ever stating a cause of action for breach ofcontract because the General Agents Contract is not specifically referred to in the Agreement.

Traditional principles of contract interpretation require a court, when construing a contract,to ascertain and give effect to the intent of the parties. Eichengreen v. Rollins, Inc., 325 Ill. App. 3d517, 521, 757 N.E.2d 952 (2001). A written contract is presumed to speak the intention of theparties who signed it, and their intentions must be determined from the language used. Air Safety,Inc. v. Teachers Realty Corp., 185 Ill. 2d 457, 462, 706 N.E.2d 882 (1999), quoting Western IllinoisOil Co. v. Thompson, 26 Ill. 2d 287, 291, 186 N.E.2d 285 (1962). The parole evidence rulegenerally precludes evidence of understandings not reflected in the contract, reached before or at thetime of its execution, which would vary or modify it terms. Eichengreen, 325 Ill. App. 3d at 521, 757N.E.2d 952. Further, a court will not consider parole evidence of prior negotiations to create an"extrinsic ambiguity" where the parties to a contract have included an integration clause. Air Safety,Inc., 185 Ill. 2d at 464-65, 706 NE.2d 882.

In the instant matter, the Agreement, which was attached to the third amended complaint,states that Lincoln National's intention was to sell all of the outstanding capital stock of Vincent toNorthwest "pursuant to the terms and conditions set forth in [the] Agreement." Among thesenumerous terms and conditions, the Agreement refers to an attached disclosure schedule and detailedfinancial statement, the later of which was intended to "present fairly" the assets and liabilities ofVincent as of June 30, 1992. In addition to these attachments, the Agreement also contains anintegration clause, which states:

"This Agreement, together with the Contracts executed and delivered pursuanthereto, supercedes all prior discussions and agreements between the parties withrespect to the subject matter of this Agreement, and this Agreement, includingdocuments, certificates and contracts executed and delivered pursuant hereto,contains the sole and entire agreement between the parties hereto with respect to thesubject matter hereof." Examining these terms, it is apparent that the parties intended for the subject matter of theAgreement to include not only those assets and liabilities listed in the attached financial and disclosurestatements, but also those "documents, certificates and contracts executed and delivered" with theAgreement. In counts I and II of the third amended complaint, the plaintiffs allege that the GeneralAgents Contract was delivered at the time of execution. Based on this allegation, taken as true forpurposes of the motion to dismiss, the General Agents Contract would be a "document" as reflectedin the integration clause of the Agreement, and its inclusion as an asset of Vincent's would not varyor modify the terms of the Agreement. Accordingly, we find that the integration clause does notpreclude the plaintiffs from stating a cause of action for breach of contract based upon the assertionthat the General Agents Contract was represented to be an asset of Vincent's under the Agreement.

In reaching this decision, we note that Lincoln National's reliance upon Air Safety, Inc., 185Ill. 2d 457, 706 N.E.2d 882, and Benedict v. Federal Kemper Life Insurance Co., 325 Ill. App. 3d820, 759 N.E.2d 23 (2001), is misplaced. In both Air Safety, Inc. and Benedict, the integrationclauses at issue, while similar to the clause here, did not contain any language specifying that thesubject matter of the writing also included documents, certificates and contracts executed anddelivered pursuant thereto. The presence of this additional language not only distinguishes the instantintegration clause from those in Air Safety, Inc. and Benedict but, as discussed above, reflects theparties understanding that the subject matter of the Agreement included documents, certificates andcontracts not specifically referred to therein.

Turning now to the allegations contained in count I of the plaintiffs' third amended complaint,we find that the plaintiffs sufficiently stated a cause of action for breach of contract. In order to pleada cause of action for breach of contract, a plaintiff must allege: (1) the existence of a valid andenforceable contract; (2) substantial performance by the plaintiff; (3) a breach by the defendant; and(4) resultant damages. Gonzalzles v. American Express Credit Corp., 315 Ill. App. 3d 199, 206, 733N.E.2d 345 (2000). Only a duty imposed by the terms of a contract can give rise to a breach. Gallagher Corp. v. Russ, 309 Ill. App. 3d 192, 199, 721 N.E.2d 605 (1999).

In count I of their third amended complaint, the plaintiffs allege that Lincoln National offeredto sell the Vincent stock to Northwest and that Northwest accepted this offer. The plaintiffs furtherallege that during the due diligence investigation, and at the time of execution, Lincoln Nationaldelivered a copy of the General Agents Contract and represented that it was one of Vincent's assetsincluded as part of the subject matter of the Agreement. Northwest then fully performed theircontractual obligations by paying the agreed upon purchase price for the Vincent stock. Accordingto the plaintiffs, the breach occurred when Lincoln National conveyed the stock and the GeneralAgents Contract was no longer an asset of Vincent's. Damages, which the plaintiffs place in excessof $90,000, apparently consist of a diminution in the value of Vincent's stock due to the loss ofservice fees expected under the terms of the General Agents Contract. We find that these allegationsproperly state a cause of action for breach of contract. Therefore, the circuit court erred in dismissingcount I of the plaintiffs' third amended complaint.

The plaintiffs next contend that the circuit court erred in dismissing count II of their thirdamended complaint which sought relief under a theory of breach of contract for Lincoln National'salleged failure to disclose the assignment of the General Agents Contract. Pursuant to the specificterms of the Agreement, which was attached to the complaint, Lincoln National was under acontinuing obligation to tender and make available all books, records and documents of Vincent. Byfailing to tender or disclose the existence of the assignment, the plaintiffs argue, Lincoln Nationalbreached the terms of the Agreement, and damaged the plaintiffs in the same manner as in count I. Once again, we find that these facts properly state a cause of action for breach of contract. Theplaintiffs have established the existence of a valid and enforceable contract, a duty imposed uponLincoln National under that contract to disclose the assignment, a breach of that duty and resultantdamages. Therefore, the circuit court likewise erred in dismissing count II of the plaintiffs' thirdamended complaint

The plaintiffs next contend that the circuit court erred in dismissing their claims for fraud asset forth in counts III and V of their third amended complaint. Lincoln National, citing Barille v.Sears Roebuck & Co., 289 Ill. App. 3d 171, 176-77, 682 N.E.2d 118 (1997), initially responds, ina manner similar to their argument in relation to counts I and II of the third amended complaint, thatthe parole evidence rule and integration clause preclude the plaintiffs from asserting a cause of actionfor fraud. For the reasons stated in rejecting Lincoln National's argument that the integration clausebars the plaintiffs' claims for breach of contract, we also reject the argument as directed against countsIII and V. Additionally, for the reasons which follow, we decline to follow Barille.

As a general rule, an integration clause will not preclude a plaintiff from relying upon extrinsicevidence in order to establish a cause of action for fraud. See Vigortone AG Products, Inc. v. PMAG Products, Inc., 316 F.3d 641, 644 (7^th Cir. 2002). Accord Lewelling v. Farmers Insurance ofColumbus, Inc., 879 F.2d 212, 216 (6^th Cir. 1989); AgriStor Leasing v. Farrow, 826 F.2d 732, 736n.6 (8^th Cir. 1987) (applying Iowa law); King v. Horizon Corp., 701 F.2d 1313, 1318 (10^th Cir. 1983)(applying Colorado law); Galmish v. Cicchini, 734 N.E.2d 782, 790 (Ohio 2000); SchlumbergerTechnology Corp. v. Swanson, 959 S.W.2d 171, 179 (Tex. 1997); Downs v. Wallace, 622 So. 2d337, 341 (Ala. 1993); Gilliland v. Elmwood Properties, 391 S.E.2d 577, 580-81 (S.C. 1990);Epperson v. Roloff, 719 P.2d 799, 802 (Nev. 1986); Brown v. Techdata Corp., Inc., 234 S.E.2d 787,792 (Ga. 1977); Bates v. Southgate, 31 N.E.2d 551, 182 (Mass. 1941). The reason behind this ruleis simple for, as explained by Judge Posner in Vigortone:

"[F]raud is a tort, and the parol evidence rule is not a doctrine of tort law and so anintegration clause does not bar a claim of fraud based on statements not contained inthe contract. Doctrine aside, all an integration clause does is limit the evidenceavailable to the parties should a dispute arise over the meaning of the contract. It hasnothing to do with whether the contract was induced *** by fraud." Vigortone, 316F.3d at 644.

In arguing against the plaintiffs' fraud claims, Lincoln National relies on Barille, which holdsthat an unambiguous integration clause may preclude a cause of action for fraud based onprecontractual misrepresentations. See Barille, 289 Ill. App. 3d at 177, 682 N.E.2d 118. Contraryto Barille is the case of Salkeld v. V.R. Business Brokers, 192 Ill. App. 3d 663, 548 N.E.2d 1151(1989). In Salkeld, the court held that the parole evidence rule "'will not be permitted to be used forthe accomplishment of fraud, or of injustice and wrong to others.'" Salkeld, 192 Ill. App. 3d at 674,548 N.E.2d 1151 quoting Miller v. Whelan, 158 Ill. 544, 42 N.E. 59 (1895). Barille andSalkeld present two competing positions. However, neither decision contains any supporting rational. In reconciling this conflict, Judge Posner found that, in the absence of any clear authority in eitherdirection, the proper approach was to follow the general rule. Vigortone, 316 F.3d at 644. Weagree, and find the general rule as set forth in Vigortone and Salkeld to be the better approach. Theparole evidence rule, as a doctrine of contract law, has no application to cases sounding in tort. Wehold, therefore, that the presence of an integration clause in the agreement does not bar the plaintiffs'actions for fraud.

We turn now to the issue of whether the plaintiffs' set forth a sufficient claim for fraudulentmisrepresentation in count III of their third amended complaint. The elements of a claim forfraudulent misrepresentation are: (1) a false statement of material fact; (2) defendant's knowledge thatthe statement was false; (3) defendant's intent that the statement induce the plaintiff to act; (4)plaintiff's reliance upon the truth of the statement; and (5) plaintiff's damages resulting from relianceon the statement. Connick v. Suzuki Motor Co., Ltd., 174 Ill. 2d 482, 496, 675 N.E.2d 584 (1996); Miner v. Fashion Enterprises, Inc., 342 Ill. App. 3d 405, 420, 794 N.E.2d 902 (2003).

Here, the plaintiffs alleged in count III that during the due diligence investigation John Jensen,the former chairman and chief executive officer of Vincent, and an agent of Lincoln National,intentionally misrepresented to an agent of Northwest that the General Agents Contract was an assetof Vincent's. The plaintiffs further alleged that Lincoln National knew or should have known thisrepresentation to be false because the General Agents Contract had been assigned to Redman; thatthey justifiably relied upon this misrepresentation, which was made for the purpose of inducing theirpurchase of the Vincent stock; and they suffered damage in agreeing to a purchase price for Vincent'sstock in reliance upon this misrepresentation. We find that these allegations properly state a causeof action for fraudulent misrepresentation. The complaint sets forth with specificity what therepresentations were, when they were made, by whom they were made, and to whom they weremade. See Popp v. Dyslin, 149 Ill. App. 3d 956, 961, 500 N.E.2d 1039 (1986). Therefore, thecircuit court erred in dismissing count III.

Finally, in count V of their third amended complaint, the plaintiffs sought relief under a theoryof fraudulent concealment. In order to state a claim for fraudulent concealment, a plaintiff mustallege, in addition to the elements of fraud as set forth above, that the defendant concealed a materialfact when it was under a duty to disclose to the plaintiff. Connick, 174 Ill. 2d at 500, 675 N.E.2d584. The concealment of a material fact during a business transaction is actionable if "done 'with theintention to deceive under circumstances creating an opportunity and duty to speak.'" Perlman v.Time, Inc., 64 Ill. App. 3d 190, 195, 380 N.E.2d 1040 (1978), citing Lagen v. Lagen, 14 Ill. App.3d 74, 79, 302 N.E.2d 201 (1973). A statement which is technically true may nevertheless befraudulent where it omits qualifying material since a "half-truth" is sometimes more misleading thanan outright lie. Perlman, 64 Ill. App. 3d at 195, 380 N.E.2d 1040, citing St. Joseph Hospital v.Corbetta Construction Co., 21 Ill. App. 3d 925, 953, 316 N.E.2d 51 (1974).

Here, in count V of their amended complaint, the plaintiffs allege that Lincoln Nationalrepresented the General Agents Contract as an asset of Vincent's even though they were aware thatit had been previously assigned. Thus, as the plaintiffs allege, Lincoln National concealed a materialfact during a business transaction as a device to mislead the plaintiffs. By representing that Vincentwas a party to the General Agents Contract, Lincoln National not only mislead the plaintiffs, butimposed upon themselves a duty to disclose the assignment. See Perlman, 64 Ill. App. 3d 190, 195,380 N.E.2d 1040. We find that these allegations sufficiently state a cause of action for fraudulentconcealment. The complaint sets forth, in addition to the elements of fraud as discussed in relationto count III, that Lincoln National concealed a material fact when it was under a duty to disclose. Therefore, the circuit court erred in dismissing count V.

For the foregoing reasons, we affirm the circuit court's dismissal of counts V, VI and VII ofthe plaintiffs' amended complaint and count VIII of the plaintiffs' third amended complaint, reversethe circuit court's dismissal of counts I, II, III and V of the plaintiffs' third amended complaint, andremand this cause for further proceedings.

Affirmed in part, reversed in part, and remanded.

HALL and KARNEZIS, JJ., concur.