*1 armed inject the offense of permitted prosecutor it ror when evidence, where the of all the robbery into the trial after the close charged with that offense. defendant was never conviction and remand reversing Because are the defendant’s we that it trial, reach the defendant’s contention ing for a new we do not jury on the lesser the trial court to refuse to instruct was error for retrial, involuntary manslaughter. upon If this issue arises offense of guided principles regard trial court shall be the well-articulated instruction, ing involuntary manslaughter People an as outlined Young, 618 N.E.2d above, For the set forth the defendant’s convic- reasons we reverse for a degree tion and sentence for first murder and remand this case new trial.
Reversed and remanded. KARNEZIS, JJ.,
THEIS concur. SYSTEMS, INC., Plaintiff-Appellee, ENTERPRISE RECOVERY v. RHONDA SALMERON,Defendant-Appellant. (2nd Division)
First District 1 — 08—2936 No.
Opinion Rehearing May filed March denied 2010 .
THEIS, J., dissenting part. (John Moran, Jr., counsel), Group Despres, Moran Law Thomas of Geoghegan, (Jorge Sanchez, counsel), Chicago, Schwartz & Ltd. of both of for appellant. (Matthew LLC,
Connelly, McGivney, Chicago Connelly Roberts & P Carter, counsel), appellee. Garrett C. for opinion
PRESIDING JUSTICE CUNNINGHAM delivered the the court: defendant, (Salmerón), appeals Rhonda Salmerón from the
entry summary judgment plaintiff, Enterprise Recovery for the Systems, Incorporated (Enterprise), by the circuit court of Cook $150,000 plus unspeci- County. The circuit court awarded Enterprise’s fied costs in Salmerón for fraud in the lawsuit duty loyalty Enterprise, inducement breach of her her former employer. appeal, On the circuit Salmerón asserts court erred when, repeated as a sanction for the contumacious behavior of one of lawyers, the court barred presenting any Salmerón from evidence supporting her defense or her counterclaim. Salmerón also contends that Enterprise’s pleadings did not establish the elements for fraud the inducement and did not establish that Salmerón owed or breached Enterprise. Finally, Salmerón contends that failing circuit court erred in grant postjudgment “emergency judgment against lawsuit, motion” to vacate the her and dismiss the based on immunity under section 15 of the Citizen (735 (West 2008)). Participation Act ILCS judg- We affirm the 110/15 ment of the circuit court County. of Cook
BACKGROUND Enterprise’s general Salmerón was manager and opera- director of July 12, 1998, tions from until she July was fired on inis recovery business of the and resolution of delinquent student loans. provides also third-party service on loan accounts for the United States Department of Education Education). (Department of After Salmerón was fired *3 she sued and president, its Tornatore, Sam for sexual 2004, harassment. In March of parties the settled dispute, with Salmerón signing general a release of against Enterprise claims Tornatore in return payment $300,000. for the to her of
The release in pertinent part stated that in consideration of the $300,000 payment, Salmerón discharged forever and released Enterprise from: *** *** “all [and] actions relating any way claims in to events oc-
curring prior including to and Agree- the date execution the *** *** ment growing any out way or related in to all known and *** damages unknown consequences relating to [Salmeron’s] added.) employment\byEnterprise].” (Emphasis money The paid was in Salmerón installments and pay- the final 15, ment made April was on
Less than four months after payment made, that final Sal- brought merón a qui tarn1 lawsuit in against Enterprise federal court on behalf government Qui of the federal and herself. tarn lawsuits 1An phrase, “qui pro abbreviationofthe Latin regequampro tam domina ipso parte sequitor,” se in hac pursues “[one] whichis translated as who this action King’s on our Lord the Agency behalf as well his as own.”Vermont entity govern has defrauded the allege that an individual or
typically govern brought by private individual on behalf of They ment. ment, are in government may choose to intervene the action although the plaintiff. In carry litigation forward lieu of the individual event, any a share of funds plaintiff that the individual is entitled to wrongdoer by government. Agency Vermont recovered from the Stevens, 529 U.S. 768- Natural Resources v. United States ex rel. 836, 842-44, In L. Ed. 2d 120 S. Ct. 1860-62 lawsuit, damages qui one of her tarn paragraph estimate, penalties against Enterprise, by assessed her would alleged that complaint amount to over million. Salmeron’s $8 statements, claims, false and false Enterprise had submitted false of Education in violation of the False Department records to the (31 through §§3729 Amendments Act U.S.C. Claims (2000)). complaint during employment also stated that wrongful acts allegedly she discovered some of these with employees, although anyone she never notified at during employment. Salmerón wrongdoing about the as subsequently corporations added several other and one individual qui defendants tarn lawsuit. initially dismissed because of the qui
The
tarn lawsuit was
who,
lawyers,
dilatory
contumacious and
conduct of one of Salmeron’s
years, continually
discovery
failed to meet
period
over a
of three
deadlines,
status
filing
appear
deadlines and
and failed to
at scheduled
dismissed the
conferences. The federal district court
lawsuit because
behavior,
the admonish
of this
but then reinstated
lawsuit with
lawyer
question
ment to the
further misbehavior would
consequences.
lawyer
have severe
The same
was later revealed to have
documents,
leaked,
publishing
leaked
specializing
to a Web site
by Enterprise
entered into
and two of the
agreement
confidential
corporations
pending
other defendant
lawsuit.
lawyer
confidentiality agree
leaked this document in direct breach of a
corporations
parties
agreement.
ment
the three
that were
to the
with
The federal district court then dismissed Salmeron’s
tarn lawsuit
ascribing
That
prejudice,
lawyer’s
behavior to Salmerón.
upheld
appeal
on the same basis. Salmeron v.
dismissal was
2009).
(7th
Inc.,
F.3d
Cir.
Enterprise Recovery Systems,
*4
Circuit
Appeals
the United States Court of
for the Seventh
opinion,
harm the
claim that
the dismissal would
rejected
also
Salmeron’s
noted
government.
appeals
the federal
The federal court
interests of
n.1,
Stevens,
529 U.S.
v. United States ex rel.
Natural Resources
n.1,
1858, 1860 n.1
L. Ed. 2d
120 S. Ct.
in
tam
qui
to intervene
government
that
the federal
chose not
Salmerón,
In the tam had filed a cross-claim qui fiduciary duty. in It Salmerón for fraud the inducement and breach of by signed also asserted an affirmative defense based on the release against Salmerón she settled her sexual harassment lawsuit when Enterprise and Tornatore. The federal district court found that this predicate defense was not “a for dismissal” of Salmeron’s lawsuit. However, First, two additional events occurred. at the federal district suggestion, Enterprise against court’s withdrew its cross-claim Sal- merón and instead filed this in the circuit lawsuit court of Cook County, making allegations against the same previously Salmerón as Second, made in the federal case. tam lawsuit was prejudice.2 dismissed with
The instant appeal by lawsuit now on before us was filed July lawsuit, on Enterprise alleged Salmerón had committed fraud in the against Enterprise inducement duty had breached her loyalty Enterprise. Enterprise alleged by Salmerón committed fraud signing general liability a release of knowing while that she had uncovered evidence purportedly showed that Enterprise had defrauded Department of Education planned which she to use filing qui as one basis for tam lawsuit against Enterprise in federal court. Enterprise alleged that Salmerón had breached Enterprise by which she owed to failing to disclose Enterprise evidence of fraud that some employees had Department defrauded the of Education.
Salmerón filed a against five-count counterclaim Enterprise in the circuit court During pretrial lawsuit. the course of activities lawsuit, Salmerón was sanctioned because of contumacious behavior lawyer. her trial This is the lawyer represented same who lawsuit, tam in which his misconduct also resulted sanc- against tions Salmerón. The lawyer represented and his law firm Salmerón in the circuit court lawsuit filed
and, initially, appeal before this court.3 It was the behavior of this lawyer, progressed County, as the case in the circuit court of Cook judicata by any estoppel
2No issue of res or collateral was raised parties respect to the effect federal dismissal on claims or cross-claims the state lawsuit.
3During appeal, granted lawyer the course of this we the motion of the representing and his firm appeal. law to withdraw from Salmerón on *5 prompted the trial to presenting any court bar Salmerón from in support lawyer evidence of her defense or her counterclaim. That repeatedly Enterprise’s discovery requests, failed to answer including admission, requests for by even when ordered to do so the trial court. lawyer appear hearings by also failed to at several scheduled the consequence trial court. As a of these cumulative actions in violation (134 orders, pursuant Supreme court’s and to Court Rule 219 219), Ill. 2d R. the trial presenting any court barred Salmerón from in support evidence of her defense or her Enterprise counterclaim. then summary judgment moved for on both complaint. counts of its Enterprise’s summary judgment supported motion for by was an af Enterprise’s president, fidavit of affidavit, Sam Tornatore. In his Tor lawsuit, natore stated that in the qui produced tam Salmerón had Enterprise company log reports purporting to document her claim that certain employees Enterprise engaged pattern were in a practice falsifying billing Department by to the of Education claim ing telephone skip calls and trace which had activities not occurred. Tornatore’s log reports property affidavit stated that these were the Enterprise and must have been by stolen Salmerón while she was employed by Enterprise. Copies reports of the were attached as Enterprise’s summary judgment. exhibits to motion for Tornatore also by failing stated that him alleged by to alert to these activities Enterprise employees, deprived Salmerón Enterprise op portunity stop to improper activities. Tornatore further as making $300,000 Salmerón, serted that payment the full to Enterprise and he had relied representations on Salmeron’s signed. release which she support motion,
As additional for its summary judgment Enter prise appended an requests admission, as exhibit its for which Sal merón had never answered. As Salmerón concedes on appeal, the requests failure to answer for admission meant that all factual state ments in the requests by were deemed to be admitted Salmeron. 134 216; Co., Ill. 2d R. Robbins Allstate Insurance 542-43, Thus, 841 N.E.2d Salmerón admitted the follow ing signing facts. Before release settlement of the sexual harass against Enterprise Tornatore, believed, ment lawsuit Salmerón lawyer, claims, submitting told her was false false statements, Department and false records of Education. Before release, signing gathered Salmerón from documentation support belief and provided lawyer this with that documenta release, signed tion. When she Salmerón did not intend to release arising all claims her employment Enterprise, with as the release doing. bringing stated she was that she would tam She knew be against Enterprise. receiving payment required lawsuit After the final release, Department Salmerón contacted the of Education about claims, submitting her belief that false false state- ments, During employment false records. Enterprise’s Tornatore, president, never notified Sam about
her belief that certain employees Enterprise submitting were false claims, false Department statements and false records to the of Educa- tion. respond Enterprise’s summary
Salmerón did not motion for judgment, despite a briefing schedule ordered the trial court. On May the trial granted Enterprise’s summary court motion for judgment complaint: on both counts of its fraud in the inducement *6 and breach of Enterprise. prove-up Salmeron’s to A hearing 2, 2008, was held on June damages, to determine and the trial $150,000 court awarded in damages, plus unspecified costs. Salmerón has transcript not included a that in hearing the record appeal 19, 2008, to this September court. On Salmerón filed an “emergency in motion” the trial court to dismiss the circuit court lawsuit, asserting for the first time that the Citizen Participation Act (735 (West 2008)) ILCS granted immunity her liability from for 110/15 filing tam lawsuit asserting and also that immunity extended to the lawsuit filed by Enterprise in the circuit court County. of Cook The trial court denied that motion. On September 25, 2008, the trial court entered a final appealable and order on the summary judgment entered in favor of Enterprise. On granted date the court also Enterprise’s motion to dismiss all of remaining counts of Salmeron’s counterclaim. On appeal to this court, Salmerón sought has not to overturn the dismissal of her counterclaim but rather focuses on the court’s imposition of sanctions against her entry and its of summary judgment for Enterprise. Sal- merón timely appeal filed a in this court from the judgment of the circuit County. court of Cook
ANALYSIS We first consider whether the trial court erred in the sanctions imposed it on Salmerón for the lawyer. imposi conduct of her trial The tion of sanctions is a matter left primarily to the discretion of the trial court, only upon and a showing of clear abuse of that discretion will the trial court’s appeal. decision be overturned on Illinois case law great power placed documents the in a trial court’s hands to enforce authority respect to by party contumacious behavior or the party’s lawyer. Carter, 323-24, Lavaja 317, v. 3d (1987) (no 694, N.E.2d striking 698-99 abuse of in discretion judgment against him pleadings entering and a default defendant’s discovery orders and comply because he failed to with the trial court’s rules); Gluszek, Ill. 523 N.E.2d Marriage re (1988) (trial 126, by striking did discretion court not abuse its barring testimony because the defendant pleadings defendant’s his interrogatories); Smith v. Black & repeatedly respond failed to (U.S.), Inc., 451, 460-61, 1108, 650 N.E.2d Decker (1995) (no barring in by 1115-16 abuse of discretion the trial court fashion). in testimony timely were not disclosed witnesses who lawyer repeatedly trial The record establishes Salmeron’s respond explanation Enterprise’s requests failed to for without admission, discovery requests respond for when ordered to even answer, object, request did an by lawyer the trial court. The not respond any Enterprise’s requests. of time to extension also, lawyer explanation, appear hearings failed to for without Enterprise argues, by scheduled the trial court. As these actions lawyer prevented Enterprise preparing Salmeron’s trial for and court, properly prosecuting appeal its lawsuit. On to this any satisfactory explanation briefs have failed to disclose for noted, type of lawyer. behavior of her trial As we have this same conduct, lawyer, this same resulted the dismissal of Salmeron’s the broad discretion afforded qui tarn lawsuit federal court. Given courts, ruling trial to trial we find no abuse of discretion court’s in her defense or presenting that barred Salmerón from evidence support of her counterclaim. Turning entry summary judgment in favor of to the 224 Ill. 2d Bagent Blessing, our review is de novo. Upon pleadings, examination of the 862 N.E.2d *7 exists, admissions, if fact then depositions, question no of material judgment the is entitled to as a we must determine whether movant Co., Corp. Liberty Marine Mutual Insurance matter of law. Outboard (1992); 90, 102, 1204, City Ill. 2d Gaston v. 607 N.E.2d (2009). 771, Danville, N.E.2d 779-80 case, sufficiently alleged Enterprise this the trial court found that had The elements of that Salmerón committed fraud in the inducement. fact, made representation a false of material with tort are: falsity, and made with the knowledge representation’s or belief of that acting, purpose inducing party another to act or to refrain to its reasonably upon representation relies the party where the other Associates, Old Oak Brook Invest detriment. Phil Dressler & Inc. v. 548 N.E.2d Corp., ment in the inducement committed fraud Enterprise alleged that Salmerón against release of all her claims by entering purported into a Enterprise employment Tornatore which arose out of with time, Enterprise. gathered At the same she knew that she had informa- against Enterprise support planned qui tion tam lawsuit federal court. She held this information in confidence and did not reaching agreement Enterprise mention it until after a settlement with receiving payment pursu- Tornatore. Four months after the final agreement, ant the to settlement which included a release of all future against claims qui Salmerón did indeed file a tam lawsuit against Enterprise.
Salmeron’s admissions signed agree- establish that she the release Enterprise Furthermore, ment with honoring with no intention of it. she had in possession, at the agreement, time of the settlement documentation purportedly billing established fraudulent practices by Enterprise employees. signed agreement She the release knowing that shortly bring she would against tam lawsuit Enterprise in facts, federal court. Under these we find that Enter- prise’s complaint sufficiently alleged facts supporting fraud in the inducement. By signing release, the Salmerón knowingly misrepre- sented that she any would not make future claims which were related to her employment with Enterprise. Specifically, as noted, we have previously agreement stated that it covered: *** *** “all [and] actions claims relating any way to events oc- curring prior to and including date Agree- execution the *** *** ment growing out any way or related in to all known and *** damages unknown or consequences relating [Salmeron’s] to added.) employment\byEnterprise.” (Emphasis This $300,000 induced pay Salmerón in reasonable reli- ance on her agreement release from all future claims related employment to her Enterprise. with disagree
We
parties
assertion that the
did not intend that
this
possible
release cover
future
tam
by
actions
Salmerón. We
disagree
also
only
that the release
applied to future actions or claims
by
arising
allegations
out of her
of sexual harassment related
employment. Any
to her
pure
other conclusion is
speculation, which is
contradicted
language
broad
of the release itself. The release
lists a
possible
number of
specifically
actions which are
covered
release, many of which relate to Salmeron’s claim of sexual harass-
ment. But the specific language
states,
begin-
of the release also
at the
ning of
listing
included,
of claims for relief which are
claims are listed
in any way limiting
“without
generality”
broad terms of the release. The clear terms of the release state that it
***
***
***
applies to “all
[and]
actions
relating
any way
claims
employment
[Salmeron’s]
[by Enterprise].”
The more natural
*8
possible
language
construction of this broad
and the list of
actions is
Enterprise
bringing any
that
to
Salmerón from
future
wished
foreclose
Indeed,
arising
employment.
action
it
out of her
as established
admissions,
gathered
qui
Salmeron’s
she
the information for the
complaint
employed by Enterprise.
tam
while she
For these
was
reasons,
language
applies
find that
the broad
of the release
to
we
subsequent filing
qui
complaint.
Salmeron’s
of a
tam
court, Enterprise
alleged
in
that
complaint
the circuit
also
duty
loyalty
Enterprise by failing
Salmerón breached her
of
to
to
employee in
position
disclose to
while she was an
a
of
trust,
allegedly
the fraud that she had
uncovered. Such a breach is
person
fiduciary duty
party
established
a
a
to a
when
breaches
duty
proximate
injury
that
in a manner which is the
cause of
to the
party
duty
that
is
Alpha
Wagner,
to whom
owed.
School Bus Co. v.
(2009).
Enterprise alleged
Ill.
910 N.E.2d
activity
that Salmerón failed
to
the fraudulent
Enterprise
to disclose
allegedly
working
Enterprise
she
for
in order to
discovered while
bringing
against Enterprise,
enrich herself
later
a
tam lawsuit
having given Enterprise
opportunity
rectify
without ever
to
team,
problem.
high-level
Enterprise’s management
As a
member of
loyalty.
a
Enterprise
duty
duty
Salmerón owed
Enterprise
singular duty
acting
much more than a
to
was
preserve
corporate
res for the benefit of the shareholders. We note
may
indirectly
that
arguably
disclosure of the
fraud
have
perspective by enabling
benefitted
from an ethical
it to
corrupt
company.
remove
elements from its
Salmerón also owed
improperly profit
profit
a
not to
or seek to
from the
knowledge
acquired
position
company,
she
while in a
of trust at the
the detriment
company.
competition
Salmeron’s actions were
Enterprise’s
Specifically,
it
conflict with
interests.
Enterprise’s
corruption
out fraud and
interest
to root
within
hand,
stop
not to
company. On the other
it was
Salmeron’s interest
until
informa
corrupt
gather
activities
she was able to
sufficient
bring
against Enterprise.
tion in order to
tam lawsuit
There is
sharing
personally profit by
proceeds
no doubt
she could
prosecution
lawsuit.
It was reasonable for
successful
expect
exploit
manage
that Salmerón would not
position
company
personal
for her own
benefit.
ment
within
Enterprise reasonably expected
anything
that Salmerón would not do
operations. Alpha
School Bus
corporation
to hinder the
its business
736-37,
1149-50; Comedy Cot
Co.,
910 N.E.2d at
Berk,
355, 359-60,
tage,
Inc. v.
495 N.E.2d
agree
position
authority
We
that Salmeron’s
and trust at
Enterprise, serving
general manager
operations,
as its
and director of
*9
imposed upon
duty
her a
That
included
loyalty Enterprise.
duty
to
requirement
the
that she not
profit
expense
seek to
at the
corporation. Comedy Cottage,
359-60,
Ill. App.
Under the case, facts of this dissent, unlike the we decline to fol- low the federal district nonbinding suggestion court’s that the release agreement signed between Salmerón and Enterprise apply did not filing qui Salmeron’s of a plain lawsuit. The language of the release stated that Salmerón would release from all claims relating to her employment Enterprise. general As the manager operations director of for Enterprise, it is evident that Salmeron’s employment put her in a position alleged to uncover the fraud. It is also undisputed that tarn lawsuit which she brought in federal court, alleging that employees had committed fraud against the Department Education, was based upon information which she learned working while for Enterprise in her management capacity. It was duty alleged reveal such fraud to Enterprise. She also had a to refrain from seeking to personally benefit her nondisclosure of activity clearly put company However, at risk. imply we do not suggest nor that an employee who files a tarn action instead of informing their employer fraud company within the commits a breach of their duty of loyalty. The unique case, facts of this against measured applicable case law informs analysis. Thus, our holding our is based upon the unique facts of this Accordingly, case. we hold that the trial court did not err in granting summary judgment for Enterprise on both counts of complaint. “emergency an motion” filed the circuit court of Cook
County September 19, 2008, entry after the of summary judgment for Enterprise, sought Salmerón Enterprise’s dismissal of lawsuit on the basis that brought it was in violation of section 15 of the Citizen (the Participation Act), Act which became August effective in (West 2008). 735 ILCS Thus the Act inwas effect for over one 110/15 to dismiss it as the basis for her motion year before Salmerón cited lawsuit, against trial court had ruled her. Sal Enterprise’s after failing this defense dur presented no valid reason for to raise merón court, judg in the circuit ing lengthy pendency of the case before must set forth in Ordinarily, affirmative defenses be ment was entered. (West 2006). complaint. ILCS reply the answer or to a 5/2-—613 being by surprise, taken requirement prevent plaintiff is to This defense is timely fails to file an affirmative and a defendant who Sales, Inc. v. Construc deemed to have forfeited that defense. Cordeck 474, Inc., Systems, 887 N.E.2d tion (2008); Schak, 473 N.E.2d Spagat v. not in effect upon by The Act relied Salmerón was 991-92 against in the circuit court Enterprise filed its lawsuit when 2007, year after the instant in 2006. The Act became effective immunity did was filed. Yet Salmerón not seek to invoke lawsuit fact, judgment claims. In she waited until after the Act which she now concluded in the trial court was entered her and case was Accordingly, defense. she has forfeited raising before the affirmative *10 Furthermore, already by barred the trial she had been defense. For these presenting any defense to the lawsuit. court’s order from reasons, denying trial court did not err we hold that the Enterprise’s lawsuit. postjudgment motion to dismiss County is affirmed. judgment The of the circuit court of Cook Affirmed.
HOFFMAN, J., concurs. THEIS, dissenting part: JUSTICE affirming sum- disagree majority’s opinion I respectfully First, Enterprise. I do not believe that mary judgment for that Sal- to establish as a matter of law produced sufficient evidence Additionally, sign it to the release. fraudulently merón induced breached her cannot maintain its claim that Salmerón Therefore, duty. I dissent. fiduciary disposing litigation
Summary judgment is a drastic means of right judgment is granted unless the movant’s and should not be Co., 211 Ill. v. Northern Illinois Gas clear and free from doubt. Adams (2004). summary judgment ap is 32, determining In whether 2d 43 the movant strictly against must construe the evidence propriate, we Adams, 2d at 43. 211 Ill. nonmoving party. of the liberally favor summary judg- First, that it was entitled to Enterprise contended in the induce- inducement. Fraud for fraud ment on its claim
77 ment of a contract is a defect which renders a contract voidable at the Investors, party. election of the innocent Tower LLC v. East (2007). Consultants, Inc., 1019, Chestnut 371 Ill. 3d order for a misrepresentation to constitute fraud permit that would contract, court to set aside a the party seeking to do so must establish “ ‘ *** that there representation fact, “a in the form of a material made for purpose inducing act; a party to it must be false and by party false, known making it to be or not actually believed him, true; on grounds, reasonable to be and the party to whom it is ignorant made must be falsity, of its must reasonably believe it to be true, must act damage, thereon to his and in acting rely so must ’ ” the truth Investors, of the statement.” Tower Ill. App. 1030-31, quoting Medics, James v. Mobile 341 App. Lifeline (2003), (1963). quoting Wilkinson v. Appleton, 28 Ill. 2d The knowledge defendant’s falsity statement, of the or his deliberate deceive, concealment with the intent to is an essential ele ment of a common law fraud Heimann, claim. Fox v. 375 Ill. App. 3d (2007). 35, 47 plaintiff prove must such fraud claims clear and convincing Fox, evidence. 375 Ill. 3d at 47.
Enterprise contended that falsely represented that she would release all against claims Enterprise, while knowing that she intended to file the action it. Enterprise submitted Tornatore’s affidavit in support, in which he stated that Salmerón agreed to release Enterprise and Tornatore from “any and all actions *** nature, of whatsoever growing out of or related in any way and all unknown[,] known and foreseen and damages unforeseen consequences relating to employment,” which language is taken directly from the Implicit release. in Enterprise’s argument is the premise that the release filing bars the of a tarn lawsuit. To evalu- claim, ate that examine we must scope of the release.
A release is a contract whereby party relinquishes a claim to the person against whom the claim exists. Farmers Automobile Insurance Kraemer, Ass’n v. Accordingly, a *11 subject release is to the governing rules the construction of contracts. Family Fuller Holdings, LLC Co., v. Northern Trust App. 371 Ill. 3d (2007). 605, 614 Construction of a release is question of law. Fuller Family Holdings, App. 371 Ill. 3d at 614.
The parties intention of the scope controls the and effect of a release, and this intent is express discerned from the language of the release as well as the Family circumstances of its execution. Fuller Holdings, 614; 371 Ill. App. Kraemer, App. 367 Ill. 3d at 1074. The spell release must out the intention the parties great particularity and must strictly be construed benefitting the
78 the Holdings, App. 371 Ill. 3d at 614. Where party. Family Fuller the must enforce them explicit, a release are clear and court terms of However, Family Holdings, App. 371 Ill. 3d at 614. as written. Fuller the to include claims not within the release will not be construed agreement the was executed. contemplation parties of the at the time Kraemer, App. Ill. 3d at 1074. general release in addition to
Where a release contains words claims, general the release are limited to specific recitals of words made. Carona v. Illinois particular the claim to which reference is 947, (1990); Co., Family Fuller App. Central 203 Ill. 3d Gulf R.R. is, give must effect to a Holdings, App. 371 Ill. 3d at 614. That we qualify reject general or a more clause as the specific more clause State, County specific necessary. clause makes American Federation of Board, App. Ill. v. State Labor Relations Municipal Employees & (1995); Kraemer, (“general 367 Ill. 3d at 1073 words 3d the same kind or class things persons [of release] are limited to or mentioned”). event, any language no particularly as those which are release, all-encompassing,” prevent a review of a “no matter how will surrounding the ing inquiring court from into the circumstances accurately the release to ascertain whether it reflected execution of Kraemer, citing at Carlile parties’ the intention. Tools, Snap-on case, following language the majority In this focuses on release: fully discharge each parties hereby “The and forever and release *** *** *** relating in any [and] and all actions claims
other any way occurring prior including the date of to events *** any Agreement growing out of or related execution of the *** *** damages consequences way known and unknown or to all employment [by Enterprise].” relating [Salmeron’s] concludes, analysis, majority tacitly with no employment” “related to be sufficiently [Salmeron’s] claim was by the release. barred
However, the release continues: foregoing any way limiting generality
“[W]ithout any relief include claims for language, Salmeron’s release shall ***; Rights Title VII of the Civil Act of 1964 causes action under ***; the Family [FMLA] Leave Act of 1993 and Medical ***; Act [ADA] Act the Rehabilitation Americans with Disabilities ***; ***; Age Rights Enforcement Statutes of 1973 the Civil ***; Discrimination the Older Workers Employment [ADEA] Act ***; Act of 1938 Fair Labor Standards Benefit Protection Act ***; Hu- ***; [NLRA] Act the Illinois Labor Relations National federal, state, ***; or local statute Rights other man Act *12 *** in dealing any respect employment, in discrimination and with *** addition, wrongful brought on basis claims contract, agreement discharge, breach of an oral or written or defamation, contract, misrepresentation, interference with ***, or negligent intentional or infliction of emotional distress sexual harassment.” The release that it intended to resolve “the issues also states was *** concerning parties employment
between the
***
[Enterprise]
resolving
potential
and
all
claims
for
claims and/or
fully
sexual
and
as
set
in Sal-
harassment
discrimination more
forth
complaint
Enterprise Recovery
meron’s
filed in Rhonda Salmerón v.
Tornatore,
System, Inc. and Sam
case number 03 C 3332.”
Applying
construction,
principles
the aforementioned
of contract
I
do not believe that the
tarn
parties
qui
intended to include the
claim
and,
scope
therefore,
within
of this release
Salmerón
not
filing
barred from
tarn
qui
Although
claim.
purports
release
to
***
“any
nature,
bar
growing
all actions
out
whatsoever
of or
*** relating
her employment,”
language,
such broad
“no matter
all-encompassing,”
how
cannot bar claims that were
within
not
contemplation
parties
at the time the release was drafted. See
Kraemer,
Carlile,
1074;
367 Ill.
271 Ill.
3d at 838. This
language
broad
must be
specific
circumscribed
causes
action
State,
enumerated
release. See
County
American Federation of
& Municipal Employees,
Although apparently underlying Salmerón learned of the activities qui tarn claim while employed she was at that claim cannot be said be employment” “related to her context discussed, release as the parties originally intended. As the release any statutory seeks waiver or or employ- common law harassment ment discrimination claims tarn may have. The claim of the federal False Claims Enterprise’s
derives from violation Act, liability knowingly defraud the imposes civil those who false government by presenting receiving payment for federal §3729(a)(l) (2006); claims. 31 U.S.C. see also Rockwell fraudulent States, L. Ed. 2d Corp. International v. United 549 U.S. Ct. The nature of the 127 S. discrimination and harassment and employment claim is unrelated *13 the the scope cannot be to come within of release. See Fuller construed Ill. at Family Holdings, App. 371 3d 615.
Therefore, bringing prohibited because Salmerón was not the release, qui tarn claim under the terms of the she could not have made misrepresentation by Enterprise in this case. Salmerón’s the asserted gathering indeed that she documentation admissions do establish was signed tarn the release and that support of the claim before she However, [qui tarn] “did intend to the claim.” those she not release release, language with the of the admissions are not inconsistent parties any pend the only relinquish intended for Salmerón to ing employment and future harassment or discrimination claims Thus, against Enterprise reasonably and Salmerón could Tornatore. violating she pursue have believed that could without knowingly of release and did not make the claimed false terms Investors, Therefore, 371 Ill. 3d at App. statement. See Tower 1030-31. Enterprise I has failed to meet its burden to establish believe that induced convincing fraudulently and that Salmerón it clear evidence summary judgment inappropriate. release was to enter into the Fox, 47; Investors, 3d App. App. Ill. 3d Tower 371 Ill. at See 375 at 1030-31. addition, I not that is to sum Enterprise do believe entitled claim. on
mary judgment fiduciary duty prevail breach of To a (1) claim, plaintiff fiduciary must establish: a fiduciary duty breach of a (2) defendant; of duty on the of the the defendant’s breach part (3) (4) between breach and duty; injury; proximate an cause App. 391 Ill. 3d 747 injury. Wagner, School Bus Co. Alpha (2009). Enterprise I has established Salmerón’s do not believe that injury. fiduciary any nor has it demonstrated that it suffered duty, “an complaint, Enterprise alleged In its that Salmerón was such, and, employee corporate Enterprise officer” of as she and/or However, of it has fiduciary duty loyalty. a not owed duty as an loyalty violated of demonstrated that Salmerón fiduciary duty an officer of employee or she owed as corporation. to different standards Employees corporate officers are held corporation. Cooper Linse respect fiduciary duties to a to their
81 Hallman, Management, App. Hallman Inc. v. 368 Ill. Capital (2006). employee’s duty company generally An resembles a Illinois, Mag & Black Inc. v. principal-agency relationship. Corroon ner, employee’s duty loyalty An frequently employee’s duty most arises in the context of the to not See, it. Hall compete employer employed e.g., with the while still man, 357; Ill. Ill. 3d at In such Wagner, cases, may form, an a rival employee plan, company and outfit long same as he industry employer employed, as while so does not Hallman, engage competition resignation. until after his App. 3d at 356-57. present case does not involve Salmeron’s establishment of a
rival company; Enterprise presented any has not or evidence Rather, prohibited competition. Salmeron’s has errone- ously asserted that fiduciary duty Salmeron’s breach of arose in her capacity Therefore, employee. as an duty loyalty as an employee cannot be the basis her liability here. hand,
On the corporate other officers heightened fiduciary owe a (1) corporate to their employer not to: actively exploit positions their corporation benefit; within the for their personal own (2) hinder ability corporation to continue the business for which it developed. Hallman, Ill. App. Here, 3d at 358. (1) Enterprise contended that Salmerón breached duty by: alleg *14 edly using Enterprise’s corporate assets in the form of its confidential and proprietary documents by for her own benefit in submitting them support claim, of in which she would stand part to collect (2) of the monetary judgment, successful; if failing and to inform Tor any natore or corporate suspicion other officer of her was submitting claims, false allegedly hindered Enterprise from continuing its business of performing collection activities for the Department United Thus, States of Education. intended to allege that fiduciary Salmerón violated her duty as an officer of the company.
Although Enterprise impose heightened fiduciary seeks to this duty Salmerón, upon it has failed to demonstrate that that standard applies in long this case. It has been held that the directors and offi corporation cers of a are those entrusted management with the corporate property State, for the benefit of the shareholders. Price v. (1979). App. 79 Ill. 3d The pleading proving burden of fiduciary relationship existence of the lies party seeking with the Rucker, to establish it. Citicorp Savings Ill. App. Illinois 801, 809 In its summary judgment, Enterprise motion for admitted that [Enterprise]” “technically Salmerón was not an officer or director of but, rather, Nevertheless, general manager. was a it claimed that Berk, (1986), Comedy Inc. v. 145 Ill. 360-61 Cottage, imposes heightened fiduciary duty by the same owed directors and of upon general manager corporation. ficers a of a However, Enterprise’s Comedy Cottage entirely reliance on is misplaced. The defendant in that president case was vice corporation general manager. as as the in that holding well case corporate liability breaching fiduciary concerned a officer’s for his resigning corporate duty post retaining managerial his but a —after position offending began during transaction his tenure as a —when corporate Comedy Cottage, officer. 145 Ill. 3d at 360. The court ongoing made clear that the learned defendant of certain contract negotiations position” president. because of his “confidential as vice knowledge gained position [as He then “used the as a result his vice president]” agreement fiduciary to enter into an violation of his corporation. Comedy Cottage, to the 3d at 360-61. In case, allegation there a this is no Salmerón ever served as officer, corporate Comedy Cottage indepen director or does not dently expand corporate duty general managers. Notwithstanding Enterprise’s admission that a Salmerón was not director, corporate presented by Enterprise officer or the evidence fails to establish that Salmeron’s duties came the scope within of those performed by corporate Corporate officers. officers are elected “perform management board of directors and such duties of the by- property corporation may provided and affairs of the as be laws, may or as be determined resolution of the board of directors.” (West 2006). 805 ILCS 5/8.50
Enterprise did a copy bylaws not submit of the other It corporate evidence that would establish the duties of officer. merely alleged maintaining industry- that Salmeron’s duties included software, specific computer training employees in the use of the software, supervising employees responsible collecting for revenue. limited By Enterprise’s description, own Salmeron’s duties were management computer employees software and those who used it. assertion, proof, It makes no and likewise offers no that Salmerón was responsible any way management to the shareholders for the of the duties, as enumer property corporation as whole. Salmeron’s *15 direc by Enterprise, classify corporate ated are insufficient to her as a Price, 149; Rucker, 295 Ill. tor or officer. See Thus, upon impose fiduciary at 809. there is no basis upon Sal loyalty by corporate owed officers and directors merón. Enterprise if could that Salmerón breached a
Even establish fiduciary duty degree, it did not demonstrate whatever any injury resulting Enterprise it suffered from the breach. assets, misappropriated corporate claimed that Salmerón its documents, personal form of for her benefit because she receive would portion any judgment awarded in the tam lawsuit which However, allege documents were used. failed to how it thereby was harmed. The False Claims Act claim filed any judgment. was dismissed and not ordered to pay Nor did seek to recover the de minimus value of the docu- ments themselves.
Additionally, Enterprise claimed that because Salmerón failed to fraud, inform suspected Tornatore of the it was hindered from continu- ing performing its business of collection for the activities United States Department However, produced Education. it no evidence demon- strating Education, that it lost its contract Department with the client, other or that it prevented was otherwise from continuing Therefore, collection business. Enterprise has not established that it suffered any injury as a result of Salmeron’s breach of fiduciary duty.
For all foregoing reasons, I would reverse the circuit court’s judgment and remand for further proceedings. PRODUCTS, INC., al.,
KONSTANT Plaintiffs-Appellants, et v. LIBERTY al., MUTUAL FIRE INSURANCE Defendants-Appellees. COMPANY et (2nd Division) First District No. 1 — 09—0080 Opinion May 4, filed