                           ILLINOIS OFFICIAL REPORTS
                                        Appellate Court




                     Allen v. Peoria Park District, 2012 IL App (3d) 110197




Appellate Court            FREDERICK V. ALLEN and WILLIAM T. FRANKLIN, Plaintiffs-
Caption                    Appellees, v. PEORIA PARK DISTRICT, a Municipal Corporation,
                           Defendant-Appellant (Gregory R. James, Jr., Contemnor-Appellant).



District & No.             Third District
                           Docket No. 3-11-0197


Filed                      April 24, 2012


Held                       Where the trial court dismissed plaintiffs’ complaint for personal injury
(Note: This syllabus       and breach of contract based on the termination of their employment but
constitutes no part of     granted them leave to file an amended complaint, the trial court’s
the opinion of the court   subsequent orders allowing discovery to proceed and holding defendant’s
but has been prepared      counsel in contempt were reversed, since plaintiffs did not file an
by the Reporter of         amended complaint, they admitted they had no evidence defendant
Decisions for the          terminated their employment for any improper reason, and the trial court
convenience of the         erred in allowing plaintiffs to conduct discovery to determine if they
reader.)
                           could discover a cause of action.


Decision Under             Appeal from the Circuit Court of Peoria County, No. 10-L-80; the Hon.
Review                     Joe R. Vespa and the Hon. David J. Dubicki, Judges, presiding.



Judgment                   Reversed and remanded.
Counsel on                 Gregory R. James and Devlin J. Schoop, both of Laner, Muchin,
Appeal                     Dombrow, Becker, Levin & Tominberg, of Chicago, and Edward F.
                           Dutton (argued), of Park District Risk Management Agency, of Lisle, for
                           appellants.

                           William Gregory (argued), of Koth & Gregory, of Bloomington, for
                           appellees.


Panel                      PRESIDING JUSTICE SCHMIDT delivered the judgment of the court,
                           with opinion.
                           Justice Wright concurred in the judgment and opinion.
                           Justice Lytton specially concurred, with opinion.




                                             OPINION

¶1           Plaintiffs-appellees, Frederick B. Allen and William T. Franklin, were seasonal
        employees of defendant-appellant Peoria Park District. They filed suit against defendant,
        alleging breach of contract and personal injury in connection with the termination of their
        employment. The trial court granted plaintiffs’ combined motions under sections 2-615 and
        2-619 of the Code of Civil Procedure (735 ILCS 5/2-615, 2-619 (West 2010)), dismissing
        all counts with leave to amend within 90 days. Plaintiffs alleged that their terminations may
        have somehow been illegal, but they had no facts to support this suspicion. They could not
        file an amended complaint without discovery first. Over defendant’s objection, the trial court
        ordered that discovery could proceed. Plaintiffs failed to file an amended complaint but did
        seek discovery from defendant. Defendant sought a protective order, arguing that it was
        improper to allow discovery while no complaint was before the court. The trial court denied
        the protective order and at lead counsel, appellant-contemnor Gregory R. James Jr.’s request,
        held him in civil contempt so that he could immediately appeal the discovery issue.
        Defendant and contemnor appeal the trial court’s order allowing discovery and the finding
        of contempt.

¶2                                              FACTS
¶3          Plaintiffs, seasonal employees, filed suit against the Peoria Park District. They made two
        claims: breach of contract and personal injury. Plaintiffs’ complaint included the following
        allegations. In December of 2008, as had happened in previous years, plaintiffs received a
        seasonal layoff. Defendant indicated to them that they would be rehired. Early in April of
        2009, plaintiffs contacted defendant about when they would begin work again. Defendant


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     told them that they were terminated. Defendant told Allen that he was terminated for
     improper use of park district equipment, which occurred on June 10, 2008. Franklin was told
     that his termination was due to budget constraints and the incident which occurred on June
     10, 2008. On April 21, 2009, defendant informed the Illinois Municipal Retirement Fund that
     plaintiffs had resigned.
¶4       Plaintiffs alleged that the incident from June 10 was resolved on June 11, without
     termination. They further claim that between the date of their layoff and April of 2009, they
     could not have violated any of defendant’s policies contained in the employee manual, as
     they were not working for defendant during that time. Therefore, they claim that their
     termination by defendant was contrary to defendant’s policies as outlined in the employee
     manual. Plaintiffs’ complaint also stated that their termination may have been illegal for
     other unknown reasons, but admitted that they did not have proof of any such illegality. They
     hoped to obtain proof during discovery.
¶5       Defendant filed a motion to dismiss both counts. Defendant argued that the complaint
     should be dismissed with prejudice pursuant to section 2-615 as the employee manual stated
     they were at-will employees with no contractual right to employment; therefore, they failed
     to state a claim upon which relief can be granted. The employee manual states in relevant
     part:
              “You are employed with the Peoria Park District on an at-will basis, and nothing
         contained in this policy manual is intended to provide or guarantee you with employment
         for any specific period of time. As an at-will employee of the Park District you are free
         to terminate your employment at any time, with or without cause or notice, and the Park
         District retains the same right. None of the policies or procedures contained in this policy
         manual are intended by reason of their publication to confer any right or privileges upon
         you, or to entitle you to remain employed by the District.
              This at-will employment relationship can only be modified by a written contract
         signed by the employee and approved by the Board of Trustees.
                                              ***
              THIS PERSONNEL POLICY MANUAL IS NOT AN EMPLOYMENT
         CONTRACT. NOTHING CONTAINED IN THIS MANUAL OR ANY WRITTEN OR
         ORAL STATEMENT CONTRADICTING, MODIFYING, INTERPRETING,
         EXPLAINING OR CLARIFYING ANY PROVISION OF THE MANUAL IS
         INTENDED TO CREATE OR SHALL CREATE ANY EXPRESS OR IMPLIED
         CONTRACTUAL OBLIGATIONS THAT ARE BINDING UPON EITHER THE PARK
         DISTRICT OR YOU. *** THIS AT-WILL EMPLOYMENT RELATIONSHIP CAN
         ONLY BE MODIFIED BY A WRITTEN CONTRACT ***.”
¶6       Defendant also argued that the complaint should be dismissed with prejudice pursuant
     to section 2-619 as the claims were barred by the Local Governmental and Governmental
     Employees Tort Immunity Act (745 ILCS 10/1-101 to 10-101 (West 2010)); the complaint
     was filed more than one year after plaintiffs were terminated. The trial court granted
     defendant’s motion on July 13, 2010. The trial court’s order dismissed both counts, granted
     plaintiffs 90 days to file an amended complaint, and stated the parties were allowed to

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       proceed with discovery. The order did not state the grounds upon which the court granted the
       motion.
¶7         Plaintiffs have never filed an amended complaint. On August 23, plaintiffs served
       interrogatories and a request to produce on defendant. On August 27, defendant filed a
       motion for a protective order, arguing that plaintiffs had no right to discovery since no
       complaint was on file with the court. The trial court denied the protective order. Defendant’s
       lead counsel then requested the trial court hold him in contempt so that he could appeal the
       order of discovery. The trial court held lead counsel in civil contempt and fined him $25.
       This appeal followed.

¶8                                            ANALYSIS
¶9          A court order that does not dispose of an entire proceeding, which finds a person in
       contempt of court and imposes a monetary fine, is appealable without the need for the trial
       court to make a special finding. Ill. S. Ct. R. 304(b)(5) (eff. Feb. 26, 2010). “Review of the
       contempt finding necessarily requires review of the order upon which it is based.” Norskog
       v. Pfiel, 197 Ill. 2d 60, 69 (2001). A discovery order is generally “reviewed for a manifest
       abuse of discretion.” Id. at 70. But where the question to be decided is one of law, our review
       is de novo. Id. at 71. The question we must decide in this appeal is whether a trial court can
       order discovery when there is no complaint on file. This is a question of law, which we
       review de novo.
¶ 10        Plaintiffs rely on Illinois Supreme Court Rule 201(d), which says that prior to the point
       that “all defendants have appeared or are required to appear,” no discovery shall be initiated
       without leave of the court. Ill. S. Ct. R. 201(d) (eff. July 1, 2002). They argue that since they
       initiated discovery after the point at which defendant had appeared, it was proper. While Rule
       201(d) states that discovery cannot be initiated without leave of the court prior to the
       appearance, or time for appearance, of all defendants, that does not mean that there cannot
       be other limitations to the initiation of discovery. For example, Supreme Court Rule
       201(b)(1) states, “[e]xcept as provided in these rules, a party may obtain by discovery full
       disclosure regarding any matter relevant to the subject matter involved in the pending
       action.” Ill. S. Ct. R. 201(b)(1) (eff. July 1, 2002). Our supreme court has stated that “Rule
       201(b)(1) is founded on the basic premise that the objective of discovery is the ‘expeditious
       and final determination of controversies in accordance with the substantive rights of the
       parties.’ [Citation.] Thus, discovery should only be utilized to ‘illuminate the actual issues
       in the case.’ [Citation.]” (Emphasis added.) Owen v. Mann, 105 Ill. 2d 525, 530 (1985). The
       Owen court recognized that with no complaint on file, the trial court could not determine
       whether the discovery request was “relevant to any issue in the case.” Id. It held that it is
       improper for the trial court to order discovery with no complaint on file. Id.
¶ 11        Plaintiffs seek to avoid the holding in Owen by citing to appellate court cases that held
       that in the circumstances of those cases, it was improper to dismiss the complaint for a
       failure to plead sufficient facts. Those cases are simply not on point. The only issues before
       this court are the finding of contempt and, as required to address the contempt finding, the
       propriety of the discovery order. Whether or not the trial court properly dismissed the


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       original complaint is not before us, but plaintiffs admitted in the trial court and in this court
       that they could not file an amended complaint, as they had no facts to support a cause of
       action.
¶ 12        We recognize that there are limited circumstances where discovery is allowed prior to
       the filing of a complaint. Rule 224 allows someone who has been injured, but needs to
       identify who may be liable for damages, to file an independent action seeking a court order
       allowing limited discovery. Beale v. EdgeMark Financial Corp., 279 Ill. App. 3d 242 (1996).
       Plaintiffs took no such action in this case, nor could they. Plaintiffs in this case seek
       discovery to determine whether a wrong occurred, not who committed a known wrong.
¶ 13        Without citation to authority, plaintiffs argue that defendant’s request for a protective
       order was not timely filed, as it was filed more than 30 days after the trial court entered the
       order dismissing plaintiffs’ complaint. Supreme Court Rule 341(h)(7) requires appellate
       briefs to contain “[a]rgument, which shall contain the contentions of the appellant and the
       reasons therefor, with citation of the authorities and the pages of the record relied on.” Ill.
       S. Ct. R. 341(h)(7) (eff. July 1, 2008). Additionally, “[p]oints not argued are waived and
       shall not be raised in the reply brief, in oral argument, or on petition for rehearing.” Id.; In
       re Marriage of Johnson, 2011 IL App (1st) 102826, ¶ 25. Plaintiffs forfeited this argument
       by failing to include citation to relevant authority.
¶ 14        We hold that the trial court erred in allowing plaintiffs to conduct discovery to determine
       if they could discover a cause of action. Plaintiffs admit that perhaps discovery will disclose
       facts to support some cause of action against defendant. In essence, the plaintiffs argue that
       they should be able to file a faulty complaint and then use that as a basis to conduct discovery
       to see if, perhaps, defendant did something tortious. We think not. In Illinois, it is not only
       improper to file a complaint without a factual basis, it is, as a matter of law, sanctionable.
       Ashley v. Scott, 266 Ill. App. 3d 302, 305-06 (1994). Plaintiffs have never filed an amended
       complaint and have admitted that they can plead no facts to support an amended complaint.
       Since the trial court’s discovery ruling was improper, the contempt order is reversed.
       Norskog v. Pfiel, 314 Ill. App. 3d 877, 881 (2000). Plaintiffs’ complaint and defendant’s
       employee handbook, which plaintiffs attached to their complaint, establish that plaintiffs
       were, as a matter of law, at-will employees subject to termination for any reason other than
       an improper reason. See Shearson Lehman Brothers, Inc. v. Hedrich, 266 Ill. App. 3d 24, 30
       (1994). Plaintiffs admit that they have no evidence that defendant terminated their
       employment for any legally improper reason. We think the cases relied upon by the plaintiffs,
       and discussed in the special concurrence, are inapposite. In fact, Yuretich even acknowledges
       that “fishing expeditions” are a recognized form of litigation abuse. Yuretich v. Sole, 259 Ill.
       App. 3d 311, 316-17 (1994).

¶ 15                                     CONCLUSION
¶ 16      For the foregoing reasons, the judgment of the circuit court of Peoria County is reversed,
       and the case is remanded for further proceedings consistent with this opinion.

¶ 17       Reversed and remanded.

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¶ 18       JUSTICE LYTTON, specially concurring.
¶ 19       In this case, the trial court granted defendant’s motion to dismiss without prejudice. The
       same order stated that the parties were “allowed to proceed with discovery.” I agree that the
       discovery order was error and that the case should be remanded for further proceedings. I
       write separately because I believe the trial court’s discovery order, while error here, would
       have been appropriate had the trial court entered it before dismissing the case.
¶ 20       Supreme Court Rule 201(b)(1) allows a party to obtain by discovery full disclosure
       regarding any relevant matter, even where the discovery “relates to the claim or defense of
       the party seeking disclosure.” Ill. S. Ct. R. 201(b)(1) (eff. July 1, 2002). A discovery request
       may properly be quashed where the trial court has before it sufficient information upon
       which to decide defendant’s motion to dismiss. Evers v. Edward Hospital Ass’n, 247 Ill.
       App. 3d 717, 734-35 (1993). However, a trial court should not refuse a discovery request and
       grant a motion to dismiss where it reasonably appears discovery might assist the party
       opposing the motion. Yuretich v. Sole, 259 Ill. App. 3d 311 (1994); Senese v. Climatemp,
       Inc., 222 Ill. App. 3d 302, 320 (1991) (limited discovery will cast light on unclear portions
       of complaint). Especially where the facts are exclusively within the knowledge of the
       defendant, it may be error to deny discovery before ruling on a motion to dismiss. Yuretich,
       259 Ill. App. 3d at 317; John Burns Construction Co. v. City of Chicago, 234 Ill. App. 3d
       1027 (1992); Cole Taylor Bank v. Corrigan, 230 Ill. App. 3d 122, 127 (1992).
¶ 21       In this case, plaintiffs’ complaint stated that certain information surrounding their
       employment and discharge had not yet been obtained. The missing information would have
       been contained in plaintiffs’ personnel files and was exclusively within the Peoria Park
       District’s knowledge. In light of these circumstances, the trial court’s order allowing limited
       discovery would have been an appropriate remedy so long as it did not also dismiss the
       action.
¶ 22       In Yuretich, the executor of an estate filed suit against emergency medical technicians
       (EMTs) who responded to the scene of an accident. The trial court granted the defendants’
       motion to dismiss for failure to state a cause of action. The reviewing court held that it was
       error to dismiss the case before allowing discovery on the issue of willful and wanton
       misconduct of the EMTs because the necessary facts to survive dismissal, i.e., treatment and
       care of the victim, were within the defendants’ knowledge. Yuretich, 259 Ill. App. 3d at 313.
¶ 23       In John Burns Construction Co., the trial court dismissed with prejudice a contractor’s
       complaint against the City of Chicago to recover damages for a two-month delay in the
       commencement of work. Before the trial court and on appeal, the plaintiff argued that, with
       the aid of discovery, it could “ ‘define information that will lead us to the city’s reckless
       indifference to our rights under this contract.’ ” John Burns Construction Co., 234 Ill. App.
       3d at 1033. In reversing the dismissal, the appellate court stated:
           “We agree that this case should not be decided on the basis of the single pleading before
           us at this time. The precise reasons for the two-month delay in commencement of work
           under this contract are not within plaintiff’s knowledge. Plaintiff is not required to allege
           facts with precision where the necessary information is within the defendant’s knowledge

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           and plaintiff has not had the benefit of discovery. Plaintiff must be given the opportunity
           to have the benefit of discovery and further develop the facts in this case.” John Burns
           Construction Co., 234 Ill. App. 3d at 1034.
¶ 24       Here, the precise reasons plaintiffs were terminated are not within their knowledge. At
       this juncture, plaintiffs are not required to plead those facts specific to the park district’s
       employment policy that are largely subjective and wholly within defendant’s possession to
       avoid a dismissal. Thus, under Rule 201(b)(1), the trial court could have allowed limited
       discovery and stayed the dismissal until discovery was complete. The trial court’s order
       allowing discovery was error because it ordered discovery while granting the motion to
       dismiss.




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