{ "id": 1033935, "name": "BILL ANEST, Plaintiff-Appellee, v. DAVID AUDINO, Defendant-Appellant", "name_abbreviation": "Anest v. Audino", "decision_date": "2002-07-12", "docket_number": "No. 2-01-0599", "first_page": "468", "last_page": "480", "citations": [ { "type": "official", "cite": "332 Ill. App. 3d 468" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "246 Ill. App. 3d 435", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5387738 ], "year": 1993, "opinion_index": 0, "case_paths": [ "/ill-app-3d/246/0435-01" ] }, { "cite": "248 Ill. App. 3d 95", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2945543 ], "year": 1993, "pin_cites": [ { "page": "99" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/248/0095-01" ] }, { "cite": "268 Ill. App. 3d 677", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 381864 ], "year": 1994, "pin_cites": [ { "page": "687" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/268/0677-01" ] }, { "cite": "326 Ill. App. 3d 1036", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 1281470 ], "year": 2001, "pin_cites": [ { "page": "1042" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/326/1036-01" ] }, { "cite": "222 Ill. App. 3d 1018", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5263495 ], "year": 1991, "pin_cites": [ { "page": "1034" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/222/1018-01" ] }, { "cite": "252 Ill. App. 3d 514", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2968748 ], "year": 1993, "pin_cites": [ { "page": "529" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/252/0514-01" ] }, { "cite": "274 Ill. App. 3d 534", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 291655 ], "weight": 3, "year": 1995, "pin_cites": [ { "page": "537" }, { "page": "538" }, { "page": "538" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/274/0534-01" ] }, { "cite": "5 Fed. Appx. 287", "category": "reporters:federal", "reporter": "Fed. Appx.", "year": 2001, "opinion_index": 0 }, { "cite": "96 F. Supp. 2d 507", "category": "reporters:federal", "reporter": "F. Supp. 2d", "case_ids": [ 11514310 ], "year": 2000, "pin_cites": [ { "page": "526", "parenthetical": "assuming, without deciding, that the doctrine applies to limited liability companies" } ], "opinion_index": 0, "case_paths": [ "/f-supp-2d/96/0507-01" ] }, { "cite": "58 F.3d 1215", "category": "reporters:federal", "reporter": "F.3d", "case_ids": [ 7413312 ], "year": 1995, "pin_cites": [ { "page": "1219", "parenthetical": "\"Minority shareholders have an obligation as de facto partners in a joint venture not to do damage to the corporate interests\"" } ], "opinion_index": 0, "case_paths": [ "/f3d/58/1215-01" ] }, { "cite": "199 Ill. App. 3d 60", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2466141 ], "weight": 2, "year": 1990, "pin_cites": [ { "page": "71", "parenthetical": "50% shareholder owed fiduciary duties to fellow shareholders" }, { "page": "71" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/199/0060-01" ] }, { "cite": "111 Ill. App. 3d 751", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5438139 ], "weight": 6, "year": 1982, "pin_cites": [ { "page": "761" }, { "page": "763" }, { "page": "762" }, { "page": "765" }, { "page": "763" }, { "page": "763" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/111/0751-01" ] }, { "cite": "268 Ill. App. 3d 355", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 381863 ], "weight": 3, "year": 1994, "pin_cites": [ { "page": "364" }, { "page": "365" }, { "page": "365" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/268/0355-01" ] }, { "cite": "58 Ill. 2d 20", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2953248 ], "weight": 2, "year": 1974, "pin_cites": [ { "page": "27" }, { "page": "27" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/58/0020-01" ] }, { "cite": "321 Ill. App. 3d 151", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 132506 ], "year": 2001, "pin_cites": [ { "page": "154" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/321/0151-01" ] }, { "cite": "315 Ill. App. 3d 687", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 980657 ], "weight": 2, "year": 2000, "pin_cites": [ { "page": "690" }, { "page": "690" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/315/0687-01" ] } ], "analysis": { "cardinality": 1036, "char_count": 27832, "ocr_confidence": 0.803, "pagerank": { "raw": 1.3030376732112655e-07, "percentile": 0.622614677535254 }, "sha256": "0adbad91ac1ac26638c3ece8acb5c25aab7ca4c7731d702e4455672edb20f620", "simhash": "1:8bd011f0e24a7b50", "word_count": 4533 }, "last_updated": "2023-07-14T19:45:54.915644+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "BOWMAN and KAPALA, JJ., concur." ], "parties": [ "BILL ANEST, Plaintiff-Appellee, v. DAVID AUDINO, Defendant-Appellant." ], "opinions": [ { "text": "JUSTICE CALLUM\ndelivered the opinion of the court:\nPlaintiff, Bill Anest, sued defendant, David Audino, for breach of a note and enforcement of a guaranty. Audino filed a counterclaim, alleging, inter alia, breach of fiduciary duty (count VI) and tortious interference with business expectancy (count VII). The trial court entered judgment for Anest on his claim and awarded him $130,000 in damages, $47,041 in attorney fees, and $1,634 in costs. Audino appeals the award of attorney fees, and we affirm on that issue. On Audino\u2019s counterclaim, Anest moved for a directed finding at the close of Audi-no\u2019s case in chief. The court granted Anest\u2019s motion, and Audino now appeals that ruling. We reverse the directed finding on Audino\u2019s counterclaim and remand the cause.\nIn 1995, Anest lent $80,000 to Intergroup Financial Corporation, Inc. (Intergroup). In exchange, Intergroup executed a note in favor of Anest. The five shareholders of Intergroup, one of whom was Audino, executed a guaranty on the note. In September 1997, Anest sued Intergroup and the guarantors for breach of the note and enforcement of the guaranty. In January 1998, Anest obtained a default judgment against Audino. Anest subsequently levied against Audino\u2019s interest in another company, Precision Pour, L.L.C. (Precision Pour), and, in February 1999, purchased the interest at a sheriffs sale. On July 27, the trial court vacated the default judgment for want of service.\nPrecision Pour sold a product called the BLM 2000, a beer line cleaning device that replaces the manual cleaning of beverage lines with continuous radio waves. Precision Pour was the exclusive distributor of the device in the United States in 1997 and 1998 and was a nonexclusive sales agent in 1999.\nBefore Anest acquired an interest in the company, the members of Precision Pour were Audino, Leon Teichner, and William Schilling. Membership interests in Precision Pour were held as follows: Audino held a 23.33% interest; Teichner, 43.3%; and Schilling, 33.3%. The operating agreement of Precision Pour defines a membership interest as a right to participate in the profits and losses of the entity, in addition to the right to vote on, or consent to, management decisions. A membership interest is distinguished from an economic interest, which affords the holder merely a right to the profits and losses of the company.\nAfter Anest acquired Audino\u2019s interest in Precision Pour, the following actions were taken on behalf of the company. On June 18, An-est, Teichner, and Schilling executed a \u201cResolution of Precision Pour, L.L.C.\u201d that stated as follows. Schilling and Teichner converted their accrued, but unpaid, salaries into capital. Accordingly, their interests in the entity increased to 41% and 54% respectively, and Anest\u2019s (formerly Audino\u2019s) interest was diluted to 5%. The resolution described Anest\u2019s interest as an economic interest.\nOn July 13, Anest, Teichner, and Schilling executed a \u201cMemorandum of Understanding\u201d that amended the operating agreement as follows. Precision Pour was insolvent and desired additional capital. An-est was willing to purchase membership units in the company and to lend it money. Thus, Anest bought an 18.3% membership interest from the entity and an additional 1.67% membership interest from Schilling. He also lent Precision Pour $59,166.67. Teichner and Schilling permitted Anest to convert his 5% economic interest (the diluted interest that was formerly Audino\u2019s) into a membership interest. In sum, the document states that Anest held a 25% membership interest in Precision Pour. In addition to the monetary transactions, the resolution altered the management structure of Precision Pour in that the company changed from a manager-managed limited liability company to a mem&er-managed limited liability company. The memorandum also stated that the parties agreed to permit Schilling to transfer up to 6.77% of his interest to Anest and to permit Anest to transfer up to one-half of his interest to Mitchell Iseberg, his attorney.\nOn July 14, Schilling and Teichner executed an \u201cAmendment to Memorandum of Understanding.\u201d The resolution contains a provision entitled \u201cCompany Obligation to Repurchase,\u201d which states that, if a court voids the sheriff\u2019s sale or otherwise returns Audino\u2019s original interest in Precision Pour, and if the dilution of Audino\u2019s interest is also invalidated, then the company (1) will repurchase the interest that Anest purchased from Precision Pour and (2) repay the loan from Anest. The resolution also contains a provision entitled \u201cAnest Right to Purchase,\u201d which states that, if Audino reacquires his \u201c5% diluted interest,\u201d Schilling will convey to Anest a 5% interest in the company for $4,286.33. Moreover, if Anest subsequently reacquires his diluted interest by court order, Anest will reconvey the interest to Schilling for the same consideration.\nOn September 14, the trial court vacated the sheriff\u2019s sale, ordering that Audino\u2019s interest in Precision Pour \u201cis restored as if said Sheriffs Sale(s) had never taken place.\u201d\nA Precision Pour consent dated September 15 lists Audino as a 5% membership interest holder in the company and lists Anest as a 20% holder. A company consent dated September 16 sets forth the membership distribution on that date as follows: Teichner, 43V3 units; Schilling, 262/s units; Iseberg, 12V2 units; Anest, I2V2 units; and Audino, 5 units.\nOn October 29, the office of Ronald Panter, Precision Pour\u2019s attorney, faxed a notice of an \u201cemergency meeting\u201d of Precision Pour to Audino\u2019s attorney, John Miller. The notice stated that the purpose of the meeting was \u201cto discuss changing the business relationship of the company from a nonexclusive distributor to an importer and the ramifications thereof.\u201d It stated that the meeting would be held on November 1. Section 7.3 of the operating agreement of Precision Pour states that at least five days\u2019 notice must be provided to members before a membership meeting. Section 7.4 of the agreement permits a waiver of the notice requirement only with unanimous member consent. The agreement does not address facsimile notice.\nOn November 1, Anest, Teichner, Schilling, Iseberg, Panter, \u00e1nd one of Panter\u2019s associates attended the emergency meeting of Precision Pour. Teichner testified that during the meeting a call was made to Miller\u2019s office and Miller stated that Audino would not attend the meeting. Teichner and Anest testified that during the meeting the parties discussed an offer from BLM International, Limited, the holder of the patent for the BLM 2000, for a five-year exclusive distributorship agreement. Teichner testified that the offer had to be acted upon no later than November 1 and that Anest was aware of this deadline.\nTeichner testified that BLM International was concerned about Precision Pour\u2019s financial ability and requested a letter of credit to guarantee the purchase of a certain number of units of the BLM 2000. Teichner stated that in October 1999 Precision Pour was insolvent. He testified that Iseberg relayed the following financial information about Precision Pour during the meeting. The company had depleted the loan from Anest. It had current payables of $40,000 and needed additional working capital in the amount of $60,000 to continue business. Teichner testified that a vote was taken during the meeting as to whether the members would contribute to the company their proportionate shares of a $100,000 capital contribution and the funds to secure an $850,000 letter of credit in order to obtain the exclusive distributorship offer. The members voted against making any such contributions.\nAfter the emergency meeting of Precision Pour, Teichner testified that another meeting took place among Anest, Teichner, and Schilling, at which they agreed to exercise the exclusive distributorship offer. Thus, on December 9, BLM Technologies, L.L.C. (BLM Technologies), was formed. The members of BLM Technologies and their percentage interests are as follows: Anest, 40%; Iseberg, 10%; Schilling, 25%; and Teichner, 25%. Anest was the company\u2019s manager, and he testified that he put up the necessary funds to secure the letter of credit required for BLM Technologies to become the exclusive distributor of the BLM 2000 in the United States and Canada.\nAudino testified that his original position with Precision Pour was to secure financing for the company. He stated that he had raised slightly under $1 billion for various entities from 1988 through 2000 and that he secured a letter of credit for one of Precision Pour\u2019s clients to purchase BLM 2000 devices from the company. Audino stated that he was not asked to raise any funds for Precision Pour during the fall of 1999.\nJames Donoval, an accountant and attorney, testified that he was hired by Audino to obtain regulatory approvals for the use of the BLM 2000 in Illinois. He stated that the first part of the two-step process was accomplished in that the applicable regulation was changed. However, he testified that the second step \u2014 approval of the BLM 2000 by a state liquor commission \u2014 was not completed. Audino testified that Schilling worked with Coors Brewing Company (Coors) to begin Coors\u2019 testing of the BLM 2000 for its draft beer facilities. Teichner testified that Coors notified Precision Pour on May 3, 1999, that it had completed the initial testing of the BLM 2000 at its own cost but that Coors did not complete its testing until March 9, 2000.\nAudino\u2019s counterclaim alleged, inter alia, a breach of Anest\u2019s fiduciary duty to Audino (count VI) and tortious interference with Audino\u2019s business expectancy (count VII).\nIn count VI, Audino argued that members of a limited liability company are like shareholders in a close corporation and partners in a partnership in that each owes fiduciary duties to the entity and to each other. He argued that, because he and Anest were both members of Precision Pour on November 1, Anest owed a fiduciary duty to Audino and that Anest breached this duty. He asserted that the BLM 2000 represented a corporate opportunity of Precision Pour and that Anest breached his fiduciary duty to Audino when the opportunity was not presented to Audino due to the untimely notice and the failure to disclose the purpose of the meeting accurately in the notice. Audino also argued that Anest was foreclosed from exploiting the opportunity \u2014 forming BLM Technologies and accepting the offer-regardless of the financial condition of Precision Pour.\nIn count VII, Audino argued that the breach served as the basis for a tortious-interference-with-business-expectancy claim in that he had a valid expectancy in the BLM 2000; that Anest knew of the device; and that Anest\u2019s leading role in forming and financing BLM Technologies was a violation of his fiduciary duty to Audino and constituted a diversion of Audino\u2019s business opportunity.\nAudino argued that he lost out on any increase in the value of his membership interest in Precision Pour. Audino requested a constructive trust over Anest\u2019s interest, an accounting, and compensatory and punitive damages.\nOn November 21, 2000, the trial court granted Anest\u2019s motion for a directed finding on counts I through V of Audino\u2019s counterclaim and on Audino\u2019s request in counts VI and VII for a rescission of the exclusive distributorship held by BLM Technologies and for a return of \u201cassets improperly transferred from Precision Pour.\u201d Counts I through V and the requests for a rescission and a return of assets in counts VI and VII are not at issue in this appeal.\nOn December 19, 2000, the trial court granted Anest\u2019s motion for a directed finding on counts VI and VII. In ruling on the fiduciary duty count, the court held that, because Anest did not have control over the daily operations of Precision Pour or otherwise have management-like responsibilities, Anest did not owe Audino any fiduciary duty. The court also held that there was no misdirection of corporate assets because Precision Pour did not have the financial ability to act upon the business opportunity. The court stated that, even if Anest owed a fiduciary duty to Audino, such duty was not breached because Precision Pour was unable to act upon the offer on November 1. With respect to the tortious interference count, the court ruled that neither Audino nor Precision Pour had a valid business expectancy in the offer of an exclusive distributorship because the company was unable to realize that expectancy. The court also stated that monetary damages were not established.\nWith respect to Anest\u2019s original claim for breach of a note and enforcement of a guaranty, the court granted judgment in favor of An-est, awarding him $130,000 in damages, $47,041 in attorney fees, and $1,634 in costs.\nAudino now appeals the trial court\u2019s (1) grant of Anest\u2019s motion for a directed finding on counts VI (breach of fiduciary duty to Audino) and VII (tortious interference with business expectancy) of Audino\u2019s counterclaim; and (2) award of attorney fees to Anest.\nI. Fiduciary Duty and Tortious Interference Counts\nWe address first the trial court\u2019s grant of Anest\u2019s motion for a directed finding.\nWhen considering a motion for a directed finding in a bench trial, a trial court determines whether the plaintiff has made out a prima facie case and then weighs the evidence, including that which favors the defendant. Orbeta v. Gomez, 315 Ill. App. 3d 687, 690 (2000). A reviewing court will not reverse a trial court\u2019s determination of a motion for a directed finding unless it is contrary to the manifest weight of the evidence. Orbeta, 315 Ill. App. 3d at 690. A trial court\u2019s judgment is against the manifest weight of the evidence only when an opposite conclusion is apparent or when its findings appear to be unreasonable, arbitrary, or not based on the evidence. Judgment Services Corp. v. Sullivan, 321 Ill. App. 3d 151, 154 (2001).\nA. Existence of Fiduciary Duty\nCounts VI and VII are both premised on the existence of a fiduciary duty and a breach thereof. Audino argues that Anest owed him a fiduciary duty as a fellow member of Precision Pour. He cites for the first time on appeal section 15 \u2014 3 of the Limited Liability Company Act (the Act) (805 ILCS 180/15 \u2014 3 (West 2000)), which states that members in a member-managed limited liability company owe to each other the fiduciary duties of loyalty and care. We note that section 15 \u2014 3 applies to all limited liability companies as of January 1, 2000. 805 ILCS 180/55 \u2014 15(b) (West 2000). The Act was amended effective January 1, 1998, to include the fiduciary duties described above. Pub. Act 90 \u2014 424, eff. January 1, 1998 (1997 amendments). Before January 1, 2000, an entity in existence on January 1, 1998, was required to elect to be governed by the 1997 amendments to the Act. 805 ILCS 180/55 \u2014 15(a) (West 2000). Thus, during the relevant period here, there was no direct statutory basis to assert the existence of fiduciary duties between members of limited liability companies.\nBecause Audino has presented no evidence that Precision Pour elected to be governed by the amended Act, we address the fiduciary duty issue by reference to the Act as it existed prior to amendment.\nPrior to amendment, section 10 \u2014 10 of the Act, entitled \u201cLiability of members and managers,\u201d stated as follows:\n\u201c(a) A member of a limited liability company shall be personally liable for any act, debt, obligation, or liability of the limited liability company or another member or manager to the extent that a shareholder of an Illinois business corporation is liable in analogous circumstances under Illinois law.\n(b) A manager of a limited liability company shall be personally liable for any act, debt, obligation, or liability of the limited liability company or another manager or member to the extent that a director of an Illinois business corporation is liable in analogous circumstances under Illinois law.\u201d 805 ILCS 180/10 \u2014 10(a) (West 1996) (amended by Pub. Act 90 \u2014 424, eff. January 1, 1998).\nThis provision instructs us to review the law of corporations to determine whether there existed any fiduciary duties between the parties in this cause.\nIndividuals who control corporations owe a fiduciary duty to their corporations and their shareholders. Kerrigan v. Unity Savings Ass\u2019n, 58 Ill. 2d 20, 27 (1974); Levy v. Markal Sales Corp., 268 Ill. App. 3d 355, 364 (1994); Graham v. Mimms, 111 Ill. App. 3d 751, 761 (1982). Directors and officers of a corporation have a duty \u201c \u2018to deal openly and honestly\u2019 with each other [citation], and to \u2018exercise the utmost good faith and honesty in all dealings and transactions\u2019 ***. [Citation.]\u201d Levy, 268 Ill. App. 3d at 365.\nShareholders in a close corporation owe to each other fiduciary duties similar to those of partners in a partnership. Hagshenas v. Gaylord, 199 Ill. App. 3d 60, 71 (1990) (50% shareholder owed fiduciary duties to fellow shareholders). They owe a duty of loyalty to the corporation and to other shareholders. Hagshenas, 199 Ill. App. 3d at 71. Minority shareholders may owe a duty of loyalty to a close corporation under certain circumstances. Rexford Rand Corp. v. Ancel, 58 F.3d 1215, 1219 (7th Cir. 1995) (\u201cMinority shareholders have an obligation as de facto partners in a joint venture not to do damage to the corporate interests\u201d).\nAs set forth in the September 16 Precision Pour consent, Anest held a 121/a% membership interest in the company and was a creditor of the company. Though Anest held a minority interest, Precision Pour was a member-managed entity effective as of July 13, 1999. Thus, An-est was more than a minority shareholder; he had management responsibilities in the company. His role in the entity was, like that of his fellow members, akin to that of an officer or director in a corporation. Officers and directors in a corporation owe fiduciary duties to shareholders and to the corporation. Kerrigan, 58 Ill. 2d at 27; see also 805 ILCS 180/10 \u2014 10(b) (West 1996) (amended by Pub. Act 90\u2014 424, eff. January 1, 1998). We hold that it was against the manifest weight of the evidence for the trial court to conclude at the directed finding stage that Anest did not owe any fiduciary duty to Audino.\nB. Breach of Fiduciary Duty\nHaving found a prima facie case that Anest owed a fiduciary duty to Audino, we must next determine whether he breached that duty.\nAudino argues that Anest breached his fiduciary duty to him by usurping the corporate opportunity presented by BLM International\u2014 the exclusive distributorship offer. Audino argues first that the opportunity was developed with Precision Pour\u2019s assets and, thus, could not be appropriated by Anest, even if the company lacked the financial capacity to take advantage of the opportunity. He argues second that the opportunity was not properly tendered to Precision Pour, as the subject of the meeting was not disclosed to him and the meeting itself was called with improper notice.\nAnest maintains that there was no evidence presented that Precision Pour\u2019s assets were used to develop the exclusive distributorship offer. He states that he was under no obligation at the November 1 meeting to provide the financing for Precision Pour to accept the offer so that Audino could participate in the new venture. Anest also maintains that the best notice practicable was given.\nWe note initially that both parties address the breach issue by citing cases examining the corporate opportunity doctrine. Although we found no cases analyzing this issue, commentators generally assume that members and managers of limited liability companies may not divert company opportunities. See S. Glover, Joint Ventures and Opportunity Doctrine Problems, 9 No. 11 Insights 9, 15 (1995) (citing sources); see also Froelich v. Erickson, 96 F. Supp. 2d 507, 526 (D. Md. 2000) (assuming, without deciding, that the doctrine applies to limited liability companies), aff\u2019d, Froelich v. Senior Campus Living, LLC, 5 Fed. Appx. 287 (4th Cir. 2001).\nThe corporate opportunity doctrine provides that a fiduciary cannot usurp a business opportunity that was developed through the use of corporate assets. Dremco, Inc. v. South Chapel Hills Gardens, Inc., 274 Ill. App. 3d 534, 537 (1995); Graham, 111 Ill. App. 3d at 763. The doctrine prohibits a corporation\u2019s fiduciary from taking advantage of business opportunities that are considered as \u201cbelonging\u201d to the entity. Levy, 268 Ill. App. 3d at 365; E.J. McKernan Co. v. Gregory, 252 Ill. App. 3d 514, 529 (1993); Graham, 111 Ill. App. 3d at 762. A corporate opportunity is defined as a \u201cproposed activity [that] is reasonably incident to the corporation\u2019s present or prospective business and *** in which the corporation has the capacity to engage.\u201d Dremco, 274 Ill. App. 3d at 538. When a corporate fiduciary wants to take advantage of a business opportunity that is within the company\u2019s line of business, the fiduciary must first disclose and tender the opportunity to the corporation before he or she takes advantage of it, notwithstanding the fiduciary\u2019s belief that the corporation is legally or financially incapable of taking advantage of the opportunity. Graham, 111 Ill. App. 3d at 765.\nThe evidence establishes that the distributorship offer was developed with Precision Pour\u2019s assets. Precision Pour was involved in many capacities in promoting the BLM 2000. Donoval testified that he was hired by Audino to obtain regulatory approval for the use of the device in Illinois and that he completed the first step in the two-step process. In 1997 and 1998, Precision Pour was the exclusive distributor of the BLM 2000 in the United States and, in 1999, was a nonexclusive sales agent. Audino testified that Schilling worked with Coors while Coors tested the device for its distributors.\nAs we described above, a corporate opportunity is one that is reasonably incident to an entity\u2019s present or prospective business and is one in which the entity can engage. Dremco, 274 Ill. App. 3d at 538. In Graham, the court stated that \u201cit is relevant to consider whether it was feasible for the corporation to take advantage of the opportunity.\u201d Graham, 111 Ill. App. 3d at 763. The court continued that, \u201c[nevertheless, the \u2018core principle\u2019 of the corporate opportunity doctrine is that a corporation\u2019s fiduciary will not be permitted to usurp a business opportunity which was developed through the use of corporate assets.\u201d Thus, when corporate assets are used to develop ah opportunity, \u201cthe fiduciary is estopped from denying that the resulting opportunity belongs to the corporation whose assets were misappropriated, even if it was not feasible for the corporation to pursue the opportunity or it had no expectancy in the project.\u201d Graham, 111 Ill. App. 3d at 763.\nHere, the trial court ruled that there was no breach of any fiduciary duty because it found that Precision Pour was financially incapable of accepting the distributorship offer. However, in light of Graham, that factor does not control. Thus, we find that the court\u2019s ruling was against the manifest weight of the evidence.\nThough the trial court did not reach the issue, we observe also that the opportunity was not properly disclosed and tendered. Here, the so-called emergency meeting was called with a notice that admittedly violated the Precision Pour operating agreement. Furthermore, we believe that a five-day notice could have been given and the opportunity properly described because the offer was still available on December 9, when BLM Technologies accepted it.\nC. Damages\nThe trial court found that Audino did not establish any monetary damages. In addition to monetary damages, Audino requested an accounting and a constructive trust in counts VI and VII of his counterclaim. However, the court did not address these requests in its ruling. On remand, if the court rules in Audino\u2019s favor, it should consider these alternative forms of relief.\nIn sum, on counts VI and VII of Audino\u2019s counterclaim, we reverse the trial court\u2019s grant of Anest\u2019s motion for a directed finding and remand the cause.\nII. Fee Award\nThe final issue we must decide involves the award of attorney fees on Anest\u2019s original claim for breach of the note and enforcement of the guaranty.\nWe will not vacate an award of attorney fees without a showing of an abuse of discretion by the trial court. De Fontaine v. Passalino, 222 Ill. App. 3d 1018, 1034 (1991). An abuse of discretion occurs when no reasonable person would take the trial court\u2019s view. Nasrallah v. Davilla, 326 Ill. App. 3d 1036, 1042 (2001).\nAudino argues that the trial court erred in awarding Anest attorney fees because there was no evidence presented that the fees were paid by Anest himself. Anest maintains that the bills presented to the court in his fee petition show that they were mailed to \u201cMr. An-est c/o S & S Petroleum Products\u201d and that this is not sufficient for us to infer that the company paid the bills.\nThe trial court stated that it based its ruling on language in the note, which states that Anest is entitled to attorney fees and costs that he \u201cincurred\u201d in the transaction. The court stated that neither the note nor the guaranty contained a requirement that Anest \u201cincurred and paid\u201d the fees. We agree.\nContractual provisions for attorney fees must be strictly construed, and a court must determine the intention of the parties. Tomlinson v. Dartmoor Construction Corp., 268 Ill. App. 3d 677, 687 (1994). However, where a court is able to determine the meaning of the language in a contract, the express provisions govern and no further construction or inquiry as to intent is necessary. Brzozowski v. Northern Trust Co., 248 Ill. App. 3d 95, 99 (1993).\nThe word \u201cincur\u201d means, in relevant part, \u201c[t]o become liable or subject to, to bring down upon oneself, as to incur debt.\u201d Black\u2019s Law Dictionary 768 (6th ed. 1990). We find that the contractual language is clear and that whether Anest paid the fees is irrelevant.\nAudino urges us to consider Label Printers v. Pflug, 246 Ill. App. 3d 435 (1993), where the court refused to award attorney fees that were incurred by plaintiff but paid by his employer.\nWe find Label Printers distinguishable because it involved a statute that authorized a party aggrieved by the wrongful entry of a preliminary injunction to receive the damages he suffered as a result. The court found that the defendant was not entitled to recover attorney fees, when the defendant\u2019s representation was provided as a gratuity by his employer.\nHere, the parties contracted for the payment of attorney fees \u201cincurred\u201d and, as we have already stated, the language in the contract is clear. For these reasons, we find that the court\u2019s award of attorney fees to Anest was not an abuse of its discretion.\nTo summarize, we affirm the court\u2019s award of attorney fees on An-est\u2019s original claim for breach of a note and enforcement of a guaranty. With respect to counts VI and VII of Audino\u2019s counterclaim, we reverse the court\u2019s grant of Anest\u2019s motion for a directed finding, and we remand the cause \u201cwith directions to proceed as though the motion [for a directed finding] had been denied by the trial court or waived.\u201d 155 Ill. 2d R. 366(b) (3)(iii). Thus, the judgment of the circuit court of Lake County is affirmed in part and reversed in part, and the cause is remanded with directions.\nAffirmed in part and reversed in part; cause remanded with directions.\nBOWMAN and KAPALA, JJ., concur.", "type": "majority", "author": "JUSTICE CALLUM" } ], "attorneys": [ "Theodore A. Woerthwein and John L. Miller, both of Woerthwein & Miller, of Chicago, for appellant.", "John W Quinn, of Churchill, Baumgartner & Quinn, Ltd., of Grayslake, and Mitchell M. Iseberg, of Chicago, for appellee." ], "corrections": "", "head_matter": "BILL ANEST, Plaintiff-Appellee, v. DAVID AUDINO, Defendant-Appellant.\nSecond District\nNo. 2 \u2014 01 \u2014 0599\nOpinion filed July 12, 2002.\nRehearing denied August 9, 2002.\nTheodore A. Woerthwein and John L. Miller, both of Woerthwein & Miller, of Chicago, for appellant.\nJohn W Quinn, of Churchill, Baumgartner & Quinn, Ltd., of Grayslake, and Mitchell M. Iseberg, of Chicago, for appellee." }, "file_name": "0468-01", "first_page_order": 486, "last_page_order": 498 }