{ "id": 4302586, "name": "ENTERPRISE RECOVERY SYSTEMS, INC., Plaintiff-Appellee, v. RHONDA SALMERON, Defendant-Appellant", "name_abbreviation": "Enterprise Recovery Systems, Inc. v. Salmeron", "decision_date": "2010-03-31", "docket_number": "No. 1\u201408\u20142936", "first_page": "65", "last_page": "83", "citations": [ { "type": "official", "cite": "401 Ill. App. 3d 65" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "473 N.E.2d 988", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1985, "pin_cites": [ { "page": "991-92" } ], "opinion_index": 0 }, { "cite": "130 Ill. App. 3d 130", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3493396 ], "year": 1985, "pin_cites": [ { "page": "134" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/130/0130-01" ] }, { "cite": "887 N.E.2d 474", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2008, "pin_cites": [ { "page": "515" } ], "opinion_index": 0 }, { "cite": "382 Ill. App. 3d 334", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 4277150 ], "year": 2008, "pin_cites": [ { "page": "376" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/382/0334-01" ] }, { "cite": "495 N.E.2d 1006", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1986, "pin_cites": [ { "page": "1011" }, { "page": "1011" } ], "opinion_index": 0 }, { "cite": "145 Ill. App. 3d 355", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3535750 ], "weight": 2, "year": 1986, "pin_cites": [ { "page": "359-60" }, { "page": "359-60" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/145/0355-01" ] }, { "cite": "910 N.E.2d 1134", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 2009, "pin_cites": [ { "page": "1158" }, { "page": "1149-50" } ], "opinion_index": 0 }, { "cite": "391 Ill. App. 3d 722", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 4285819 ], "weight": 2, "year": 2009, "pin_cites": [ { "page": "747" }, { "page": "736-37" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/391/0722-01" ] }, { "cite": "548 N.E.2d 1343", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1989, "pin_cites": [ { "page": "1347" } ], "opinion_index": 0 }, { "cite": "192 Ill. App. 3d 577", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2505615 ], "year": 1989, "pin_cites": [ { "page": "584" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/192/0577-01" ] }, { "cite": "912 N.E.2d 771", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2009, "pin_cites": [ { "page": "779-80" } ], "opinion_index": 0 }, { "cite": "393 Ill. App. 3d 591", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 4290356 ], "year": 2009, "pin_cites": [ { "page": "601" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/393/0591-01" ] }, { "cite": "607 N.E.2d 1204", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1992, "pin_cites": [ { "page": "1209" } ], "opinion_index": 0 }, { "cite": "154 Ill. 2d 90", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 4820940 ], "year": 1992, "pin_cites": [ { "page": "102" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/154/0090-01" ] }, { "cite": "862 N.E.2d 985", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2007, "pin_cites": [ { "page": "991" } ], "opinion_index": 0 }, { "cite": "224 Ill. 2d 154", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3607118 ], "year": 2007, "pin_cites": [ { "page": "163" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/224/0154-01" ] }, { "cite": "650 N.E.2d 1108", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1995, "pin_cites": [ { "page": "1115-16", "parenthetical": "no abuse of discretion by the trial court in barring the testimony of witnesses who were not disclosed in a timely fashion" } ], "opinion_index": 0 }, { "cite": "272 Ill. App. 3d 451", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 253098 ], "year": 1995, "pin_cites": [ { "page": "460-61", "parenthetical": "no abuse of discretion by the trial court in barring the testimony of witnesses who were not disclosed in a timely fashion" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/272/0451-01" ] }, { "cite": "523 N.E.2d 126", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1988, "pin_cites": [ { "page": "129", "parenthetical": "trial court did not abuse its discretion by striking the defendant's pleadings and barring his testimony because the defendant repeatedly failed to respond to interrogatories" } ], "opinion_index": 0 }, { "cite": "168 Ill. App. 3d 987", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3513681 ], "year": 1988, "pin_cites": [ { "page": "992", "parenthetical": "trial court did not abuse its discretion by striking the defendant's pleadings and barring his testimony because the defendant repeatedly failed to respond to interrogatories" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/168/0987-01" ] }, { "cite": "505 N.E.2d 694", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1987, "pin_cites": [ { "page": "698-99", "parenthetical": "no abuse of discretion in striking the defendant's pleadings and entering a default judgment against him because he failed to comply with the trial court's orders and discovery rules" } ], "opinion_index": 0 }, { "cite": "153 Ill. App. 3d 317", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3609318 ], "year": 1987, "pin_cites": [ { "page": "323-24", "parenthetical": "no abuse of discretion in striking the defendant's pleadings and entering a default judgment against him because he failed to comply with the trial court's orders and discovery rules" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/153/0317-01" ] }, { "cite": "841 N.E.2d 22", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2005, "pin_cites": [ { "page": "25" } ], "opinion_index": 0 }, { "cite": "362 Ill. App. 3d 540", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 4260821 ], "year": 2005, "pin_cites": [ { "page": "542-43" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/362/0540-01" ] }, { "cite": "579 F.3d 787", "category": "reporters:federal", "reporter": "F.3d", "case_ids": [ 4052971 ], "year": 2009, "opinion_index": 0, "case_paths": [ "/f3d/579/0787-01" ] }, { "cite": "31 U.S.C. \u00a7\u00a73729", "category": "laws:leg_statute", "reporter": "U.S.C.", "opinion_index": 0 }, { "cite": "529 U.S. 765", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 9509149 ], "weight": 6, "year": 2000, "pin_cites": [ { "page": "768-70" }, { "page": "842-44" }, { "page": "1860-62" } ], "opinion_index": 0, "case_paths": [ "/us/529/0765-01" ] }, { "cite": "295 Ill. App. 3d 801", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 45728 ], "weight": 2, "year": 1998, "pin_cites": [ { "page": "809" }, { "page": "809" } ], "opinion_index": 1, "case_paths": [ "/ill-app-3d/295/0801-01" ] }, { "cite": "79 Ill. App. 3d 143", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5607626 ], "weight": 2, "year": 1979, "pin_cites": [ { "page": "149" }, { "page": "149" } ], "opinion_index": 1, "case_paths": [ "/ill-app-3d/79/0143-01" ] }, { "cite": "145 Ill. App. 3d 151", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3536601 ], "year": 1986, "pin_cites": [ { "page": "160" } ], "opinion_index": 1, "case_paths": [ "/ill-app-3d/145/0151-01" ] }, { "cite": "368 Ill. App. 3d 353", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 4266984 ], "weight": 4, "year": 2006, "pin_cites": [ { "page": "357" }, { "page": "357" }, { "page": "356-57" }, { "page": "358" } ], "opinion_index": 1, "case_paths": [ "/ill-app-3d/368/0353-01" ] }, { "cite": "549 U.S. 457", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 3553469 ], "weight": 3, "year": 2007, "pin_cites": [ { "page": "463" }, { "page": "200" }, { "page": "1403" } ], "opinion_index": 1, "case_paths": [ "/us/549/0457-01" ] }, { "cite": "03 C 3332", "category": "reporters:state", "reporter": "Cow.", "weight": 2, "opinion_index": 1 }, { "cite": "271 Ill. App. 3d 833", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 249296 ], "weight": 2, "year": 1995, "pin_cites": [ { "page": "838" }, { "page": "838" } ], "opinion_index": 1, "case_paths": [ "/ill-app-3d/271/0833-01" ] }, { "cite": "274 Ill. App. 3d 327", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 291685 ], "weight": 2, "year": 1995, "pin_cites": [ { "page": "337" }, { "page": "337" } ], "opinion_index": 1, "case_paths": [ "/ill-app-3d/274/0327-01" ] }, { "cite": "203 Ill. App. 3d 947", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2580332 ], "weight": 2, "year": 1990, "pin_cites": [ { "page": "951" }, { "page": "951" } ], "opinion_index": 1, "case_paths": [ "/ill-app-3d/203/0947-01" ] }, { "cite": "371 Ill. App. 3d 605", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 4268641 ], "year": 2007, "pin_cites": [ { "page": "614" } ], "opinion_index": 1, "case_paths": [ "/ill-app-3d/371/0605-01" ] }, { "cite": "367 Ill. App. 3d 1071", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 4265692 ], "weight": 6, "year": 2006, "pin_cites": [ { "page": "1073" }, { "page": "1074" }, { "page": "1074" }, { "page": "1073", "parenthetical": "\"general words [of release] are limited to things or persons of the same kind or class as those which are particularly mentioned\"" }, { "page": "1074" }, { "page": "1074" } ], "opinion_index": 1, "case_paths": [ "/ill-app-3d/367/1071-01" ] }, { "cite": "375 Ill. App. 3d 35", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 4272684 ], "weight": 3, "year": 2007, "pin_cites": [ { "page": "47" }, { "page": "47" }, { "page": "47" } ], "opinion_index": 1, "case_paths": [ "/ill-app-3d/375/0035-01" ] }, { "cite": "28 Ill. 2d 184", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5361115 ], "year": 1963, "pin_cites": [ { "page": "187" } ], "opinion_index": 1, "case_paths": [ "/ill-2d/28/0184-01" ] }, { "cite": "341 Ill. App. 3d 451", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5574382 ], "year": 2003, "pin_cites": [ { "page": "456" } ], "opinion_index": 1, "case_paths": [ "/ill-app-3d/341/0451-01" ] }, { "cite": "371 Ill. App. 3d 1019", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 4268371 ], "weight": 2, "year": 2007, "pin_cites": [ { "page": "1030" }, { "page": "1030-31" } ], "opinion_index": 1, "case_paths": [ "/ill-app-3d/371/1019-01" ] }, { "cite": "211 Ill. 2d 32", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 8451063 ], "weight": 2, "year": 2004, "pin_cites": [ { "page": "43" }, { "page": "43" } ], "opinion_index": 1, "case_paths": [ "/ill-2d/211/0032-01" ] }, { "cite": "145 Ill. App. 3d 355", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3535750 ], "year": 1986, "pin_cites": [ { "page": "360-61" } ], "opinion_index": 1, "case_paths": [ "/ill-app-3d/145/0355-01" ] }, { "cite": "391 Ill. App. 3d 722", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 4285819 ], "weight": 2, "year": 2009, "pin_cites": [ { "page": "747" }, { "page": "747" } ], "opinion_index": 1, "case_paths": [ "/ill-app-3d/391/0722-01" ] }, { "cite": "31 U.S.C. \u00a7\u00a73729", "category": "laws:leg_statute", "reporter": "U.S.C.", "pin_cites": [ { "page": "(a)(l)" } ], "opinion_index": 1 } ], "analysis": { "cardinality": 1493, "char_count": 46758, "ocr_confidence": 0.779, "pagerank": { "raw": 6.291886598060571e-08, "percentile": 0.38748089174310935 }, "sha256": "b93a684b86c6ff7a8450832d90ad16143d4f112ed2c8a669035c51fdd8fab646", "simhash": "1:e2bd337a6f691054", "word_count": 7466 }, "last_updated": "2023-07-14T16:03:46.574655+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "ENTERPRISE RECOVERY SYSTEMS, INC., Plaintiff-Appellee, v. RHONDA SALMERON, Defendant-Appellant." ], "opinions": [ { "text": "PRESIDING JUSTICE CUNNINGHAM\ndelivered the opinion of the court:\nThe defendant, Rhonda Salmer\u00f3n (Salmer\u00f3n), appeals from the entry of summary judgment for the plaintiff, Enterprise Recovery Systems, Incorporated (Enterprise), by the circuit court of Cook County. The circuit court awarded Enterprise $150,000 plus unspecified costs in Enterprise\u2019s lawsuit against Salmer\u00f3n for fraud in the inducement and breach of her duty of loyalty to Enterprise, her former employer. On appeal, Salmer\u00f3n asserts that the circuit court erred when, as a sanction for the repeated contumacious behavior of one of her lawyers, the court barred Salmer\u00f3n from presenting any evidence supporting her defense or her counterclaim. Salmer\u00f3n also contends that Enterprise\u2019s pleadings did not establish the elements for fraud in the inducement and did not establish that Salmer\u00f3n owed or breached a duty of loyalty to Enterprise. Finally, Salmer\u00f3n contends that the circuit court erred in failing to grant her postjudgment \u201cemergency motion\u201d to vacate the judgment against her and dismiss the lawsuit, based on Salmeron\u2019s alleged immunity under section 15 of the Citizen Participation Act (735 ILCS 110/15 (West 2008)). We affirm the judgment of the circuit court of Cook County.\nBACKGROUND\nSalmer\u00f3n was Enterprise\u2019s general manager and director of operations from July 12, 1998, until she was fired on July 31, 2002. Enterprise is in the business of the recovery and resolution of delinquent student loans. Enterprise also provides third-party service on loan accounts for the United States Department of Education (Department of Education). After Salmer\u00f3n was fired by Enterprise, she sued Enterprise and its president, Sam Tornatore, for sexual harassment. In March of 2004, the parties settled the dispute, with Salmer\u00f3n signing a general release of claims against Enterprise and Tornatore in return for the payment to her of $300,000.\nThe release stated in pertinent part that in consideration of the $300,000 payment, Salmer\u00f3n forever discharged and released Enterprise from:\n\u201call actions [and] *** claims *** relating in any way to events occurring prior to and including the date of execution of the Agreement *** growing out of or related in any way *** to all known and unknown *** damages or consequences relating to [Salmeron\u2019s] employment \\by Enterprise].\u201d (Emphasis added.)\nThe money was paid to Salmer\u00f3n in installments and the final payment was made on April 15, 2005.\nLess than four months after that final payment was made, Sal-mer\u00f3n brought a qui tarn lawsuit in federal court against Enterprise on behalf of the federal government and herself. Qui tarn lawsuits typically allege that an individual or entity has defrauded the government. They are brought by a private individual on behalf of the government, although the government may choose to intervene in the action and carry the litigation forward in lieu of the individual plaintiff. In that event, the individual plaintiff is entitled to a share of any funds recovered from the wrongdoer by the government. Vermont Agency of Natural Resources v. United States ex rel. Stevens, 529 U.S. 765, 768-70, 146 L. Ed. 2d 836, 842-44, 120 S. Ct. 1858, 1860-62 (2000). In paragraph one of her qui tarn lawsuit, Salmer\u00f3n alleged that damages and penalties assessed against Enterprise, by her estimate, would amount to over $8 million. Salmeron\u2019s complaint alleged that Enterprise had submitted false statements, false claims, and false records to the Department of Education in violation of the False Claims Amendments Act of 1986 (31 U.S.C. \u00a7\u00a73729 through 3732 (2000)). Salmeron\u2019s complaint also stated that during her employment with Enterprise, she discovered some of these allegedly wrongful acts by Enterprise employees, although she never notified anyone at Enterprise about the wrongdoing during her employment. Salmer\u00f3n subsequently added several other corporations and one individual as defendants in the qui tarn lawsuit.\nThe qui tarn lawsuit was initially dismissed because of the contumacious and dilatory conduct of one of Salmeron\u2019s lawyers, who, over a period of three years, continually failed to meet discovery deadlines and filing deadlines, and failed to appear at scheduled status conferences. The federal district court dismissed the lawsuit because of this behavior, but then reinstated the lawsuit with the admonishment to the lawyer in question that any further misbehavior would have severe consequences. The same lawyer was later revealed to have leaked, to a Web site specializing in publishing leaked documents, a confidential agreement entered into by Enterprise and two of the other defendant corporations in the pending qui tarn lawsuit. The lawyer leaked this document in direct breach of a confidentiality agreement with the three corporations that were parties to the agreement. The federal district court then dismissed Salmeron\u2019s qui tarn lawsuit with prejudice, ascribing the lawyer\u2019s behavior to Salmer\u00f3n. That dismissal was upheld on appeal on the same basis. Salmeron v. Enterprise Recovery Systems, Inc., 579 F.3d 787 (7th Cir. 2009). In its opinion, the United States Court of Appeals for the Seventh Circuit also rejected Salmeron\u2019s claim that the dismissal would harm the interests of the federal government. The federal court of appeals noted that the federal government chose not to intervene in the qui tam lawsuit, despite its statutory right to do so. Salmer\u00f3n, 579 F.2d at 797-98. It is noteworthy that the federal government regularly intervenes in meritorious qui tam lawsuits.\nIn the qui tam lawsuit, Enterprise had filed a cross-claim against Salmer\u00f3n for fraud in the inducement and breach of fiduciary duty. It also asserted an affirmative defense based on the release signed by Salmer\u00f3n when she settled her sexual harassment lawsuit against Enterprise and Tornatore. The federal district court found that this defense was not \u201ca predicate for dismissal\u201d of Salmeron\u2019s lawsuit. However, two additional events occurred. First, at the federal district court\u2019s suggestion, Enterprise withdrew its cross-claim against Sal-mer\u00f3n and instead filed this lawsuit in the circuit court of Cook County, making the same allegations against Salmer\u00f3n as previously made in the federal case. Second, Salmeron\u2019s qui tam lawsuit was dismissed with prejudice.\nThe instant lawsuit now on appeal before us was filed by Enterprise on July 20, 2006. In the lawsuit, Enterprise alleged that Salmer\u00f3n had committed fraud in the inducement against Enterprise and had breached her duty of loyalty to Enterprise. Enterprise alleged that Salmer\u00f3n committed fraud by signing a general release of liability while knowing that she had uncovered evidence which purportedly showed that Enterprise had defrauded the Department of Education and which she planned to use as one basis for filing a qui tam lawsuit against Enterprise in federal court. Enterprise alleged that Salmer\u00f3n had breached a duty of loyalty which she owed to Enterprise by failing to disclose to Enterprise the evidence of fraud that some Enterprise employees had defrauded the Department of Education.\nSalmer\u00f3n filed a five-count counterclaim against Enterprise in the circuit court lawsuit. During the course of pretrial activities in the lawsuit, Salmer\u00f3n was sanctioned because of contumacious behavior by her trial lawyer. This is the same lawyer who represented Salmer\u00f3n in the qui tam lawsuit, in which his misconduct also resulted in sanctions against Salmer\u00f3n. The lawyer and his law firm represented Salmer\u00f3n in the circuit court lawsuit filed against her by Enterprise and, initially, on appeal before this court. It was the behavior of this lawyer, as the case progressed in the circuit court of Cook County, which prompted the trial court to bar Salmer\u00f3n from presenting any evidence in support of her defense or her counterclaim. That lawyer repeatedly failed to answer Enterprise\u2019s discovery requests, including requests for admission, even when ordered to do so by the trial court. The lawyer also failed to appear at several hearings scheduled by the trial court. As a consequence of these cumulative actions in violation of the court\u2019s orders, and pursuant to Supreme Court Rule 219 (134 Ill. 2d R. 219), the trial court barred Salmer\u00f3n from presenting any evidence in support of her defense or her counterclaim. Enterprise then moved for summary judgment on both counts of its complaint. Enterprise\u2019s motion for summary judgment was supported by an affidavit of Enterprise\u2019s president, Sam Tornatore. In his affidavit, Tornatore stated that in the qui tam lawsuit, Salmer\u00f3n had produced Enterprise company log reports purporting to document her claim that certain employees of Enterprise were engaged in a pattern or practice of falsifying billing to the Department of Education by claiming telephone calls and skip trace activities which had not occurred. Tornatore\u2019s affidavit stated that these log reports were the property of Enterprise and must have been stolen by Salmer\u00f3n while she was employed by Enterprise. Copies of the reports were attached as exhibits to Enterprise\u2019s motion for summary judgment. Tornatore also stated that by failing to alert him to these alleged activities by Enterprise employees, Salmer\u00f3n deprived Enterprise of the opportunity to stop the alleged improper activities. Tornatore further asserted that in making the full payment of $300,000 to Salmer\u00f3n, Enterprise and he had relied on Salmeron\u2019s representations in the release which she signed.\nAs additional support for its summary judgment motion, Enterprise appended as an exhibit its requests for admission, which Salmer\u00f3n had never answered. As Salmer\u00f3n concedes on appeal, the failure to answer requests for admission meant that all factual statements in the requests were deemed to be admitted by Salmeron. 134 Ill. 2d R. 216; Robbins v. Allstate Insurance Co., 362 Ill. App. 3d 540, 542-43, 841 N.E.2d 22, 25 (2005). Thus, Salmer\u00f3n admitted the following facts. Before signing the release in settlement of the sexual harassment lawsuit against Enterprise and Tornatore, Salmer\u00f3n believed, and told her lawyer, that Enterprise was submitting false claims, false statements, and false records to the Department of Education. Before signing the release, Salmer\u00f3n gathered documentation from Enterprise to support this belief and provided her lawyer with that documentation. When she signed the release, Salmer\u00f3n did not intend to release all claims arising from her employment with Enterprise, as the release stated she was doing. She knew that she would be bringing a qui tam lawsuit against Enterprise. After receiving the final payment required by the release, Salmer\u00f3n contacted the Department of Education about her belief that Enterprise was submitting false claims, false statements, and false records. During her employment with Enterprise, Salmer\u00f3n never notified Enterprise\u2019s president, Sam Tornatore, about her belief that certain employees of Enterprise were submitting false claims, false statements and false records to the Department of Education.\nSalmer\u00f3n did not respond to Enterprise\u2019s motion for summary judgment, despite a briefing schedule ordered by the trial court. On May 1, 2008, the trial court granted Enterprise\u2019s motion for summary judgment on both counts of its complaint: fraud in the inducement and breach of Salmeron\u2019s duty of loyalty to Enterprise. A prove-up hearing was held on June 2, 2008, to determine damages, and the trial court awarded Enterprise $150,000 in damages, plus unspecified costs. Salmer\u00f3n has not included a transcript of that hearing in the record on appeal to this court. On September 19, 2008, Salmer\u00f3n filed an \u201cemergency motion\u201d in the trial court to dismiss the circuit court lawsuit, asserting for the first time that the Citizen Participation Act (735 ILCS 110/15 (West 2008)) granted her immunity from liability for filing the qui tam lawsuit and also asserting that her immunity extended to the lawsuit filed against her by Enterprise in the circuit court of Cook County. The trial court denied that motion. On September 25, 2008, the trial court entered a final and appealable order on the summary judgment entered in favor of Enterprise. On that date the court also granted Enterprise\u2019s motion to dismiss all of the remaining counts of Salmeron\u2019s counterclaim. On appeal to this court, Salmer\u00f3n has not sought to overturn the dismissal of her counterclaim but rather focuses on the court\u2019s imposition of sanctions against her and its entry of summary judgment for Enterprise. Sal-mer\u00f3n filed a timely appeal in this court from the judgment of the circuit court of Cook County.\nANALYSIS\nWe first consider whether the trial court erred in the sanctions it imposed on Salmer\u00f3n for the conduct of her trial lawyer. The imposition of sanctions is a matter left primarily to the discretion of the trial court, and only upon a showing of clear abuse of that discretion will the trial court\u2019s decision be overturned on appeal. Illinois case law documents the great power placed in a trial court\u2019s hands to enforce its authority with respect to contumacious behavior by a party or the party\u2019s lawyer. Lavaja v. Carter, 153 Ill. App. 3d 317, 323-24, 505 N.E.2d 694, 698-99 (1987) (no abuse of discretion in striking the defendant\u2019s pleadings and entering a default judgment against him because he failed to comply with the trial court\u2019s orders and discovery rules); In re Marriage of Gluszek, 168 Ill. App. 3d 987, 992, 523 N.E.2d 126, 129 (1988) (trial court did not abuse its discretion by striking the defendant\u2019s pleadings and barring his testimony because the defendant repeatedly failed to respond to interrogatories); Smith v. Black & Decker (U.S.), Inc., 272 Ill. App. 3d 451, 460-61, 650 N.E.2d 1108, 1115-16 (1995) (no abuse of discretion by the trial court in barring the testimony of witnesses who were not disclosed in a timely fashion).\nThe record establishes that Salmeron\u2019s trial lawyer repeatedly and without explanation failed to respond to Enterprise\u2019s requests for discovery and requests for admission, even when ordered to respond by the trial court. The lawyer did not answer, object, or request an extension of time to respond to any of Enterprise\u2019s requests. The lawyer also, without explanation, failed to appear for hearings scheduled by the trial court. As Enterprise argues, these actions by Salmeron\u2019s trial lawyer prevented Enterprise from preparing for and properly prosecuting its lawsuit. On appeal to this court, Salmeron\u2019s briefs have failed to disclose any satisfactory explanation for the behavior of her trial lawyer. As we have noted, this same type of conduct, by this same lawyer, resulted in the dismissal of Salmeron\u2019s qui tarn lawsuit in federal court. Given the broad discretion afforded to trial courts, we find no abuse of discretion in the trial court\u2019s ruling that barred Salmer\u00f3n from presenting any evidence in her defense or in support of her counterclaim.\nTurning to the entry of summary judgment in favor of Enterprise, our review is de novo. Bagent v. Blessing, 224 Ill. 2d 154, 163, 862 N.E.2d 985, 991 (2007). Upon examination of the pleadings, depositions, and admissions, if no question of material fact exists, then we must determine whether the movant is entitled to judgment as a matter of law. Outboard Marine Corp. v. Liberty Mutual Insurance Co., 154 Ill. 2d 90, 102, 607 N.E.2d 1204, 1209 (1992); Gaston v. City of Danville, 393 Ill. App. 3d 591, 601, 912 N.E.2d 771, 779-80 (2009). In this case, the trial court found that Enterprise had sufficiently alleged that Salmer\u00f3n committed fraud in the inducement. The elements of that tort are: a false representation of material fact, made with knowledge or belief of that representation\u2019s falsity, and made with the purpose of inducing another party to act or to refrain from acting, where the other party reasonably relies upon the representation to its detriment. Phil Dressler & Associates, Inc. v. Old Oak Brook Investment Corp., 192 Ill. App. 3d 577, 584, 548 N.E.2d 1343, 1347 (1989). Enterprise alleged that Salmer\u00f3n committed fraud in the inducement by entering into a purported release of all her claims against Enterprise and Tornatore which arose out of her employment with Enterprise. At the same time, she knew that she had gathered information against Enterprise in support of a planned qui tam lawsuit in federal court. She held this information in confidence and did not mention it until after reaching a settlement agreement with Enterprise and Tornatore. Four months after receiving the final payment pursuant to the settlement agreement, which included a release of all future claims against Enterprise, Salmer\u00f3n did indeed file a qui tam lawsuit against Enterprise.\nSalmeron\u2019s admissions establish that she signed the release agreement with Enterprise with no intention of honoring it. Furthermore, she had in her possession, at the time of the settlement agreement, documentation which purportedly established fraudulent billing practices by Enterprise employees. She signed the release agreement knowing that she would shortly bring a qui tam lawsuit against Enterprise in federal court. Under these facts, we find that Enterprise\u2019s complaint sufficiently alleged facts supporting fraud in the inducement. By signing the release, Salmer\u00f3n knowingly misrepresented that she would not make any future claims against Enterprise which were related to her employment with Enterprise. Specifically, as we have previously noted, the agreement stated that it covered:\n\u201call actions [and] *** claims *** relating in any way to events occurring prior to and including the date of execution of the Agreement *** growing out of or related in any way *** to all known and unknown *** damages or consequences relating to [Salmeron\u2019s] employment \\by Enterprise.\u201d (Emphasis added.)\nThis induced Enterprise to pay Salmer\u00f3n $300,000 in reasonable reliance on her agreement to release Enterprise from all future claims related to her employment with Enterprise.\nWe disagree with any assertion that the parties did not intend that this release cover possible future qui tam actions by Salmer\u00f3n. We also disagree that the release only applied to future actions or claims by Salmer\u00f3n arising out of her allegations of sexual harassment related to her employment. Any other conclusion is pure speculation, which is contradicted by the broad language of the release itself. The release lists a number of possible actions which are specifically covered by the release, many of which relate to Salmeron\u2019s claim of sexual harassment. But the specific language of the release also states, at the beginning of the listing of claims for relief which are included, that the claims are listed \u201cwithout in any way limiting the generality\u201d of the broad terms of the release. The clear terms of the release state that it applies to \u201call actions [and] *** claims *** relating in any way *** to [Salmeron\u2019s] employment [by Enterprise].\u201d The more natural construction of this broad language and the list of possible actions is that Enterprise wished to foreclose Salmer\u00f3n from bringing any future action against it arising out of her employment. Indeed, as established by Salmeron\u2019s admissions, she gathered the information for the qui tam complaint while she was employed by Enterprise. For these reasons, we find that the broad language of the release applies to Salmeron\u2019s subsequent filing of a qui tam complaint.\nIn its complaint in the circuit court, Enterprise also alleged that Salmer\u00f3n breached her duty of loyalty to Enterprise by failing to disclose to Enterprise, while she was an employee in a position of trust, the fraud that she had allegedly uncovered. Such a breach is established when a person with a fiduciary duty to a party breaches that duty in a manner which is the proximate cause of injury to the party to whom that duty is owed. Alpha School Bus Co. v. Wagner, 391 Ill. App. 3d 722, 747, 910 N.E.2d 1134, 1158 (2009). Enterprise alleged that Salmer\u00f3n failed to disclose to Enterprise the fraudulent activity she allegedly discovered while working for Enterprise in order to enrich herself by later bringing a qui tam lawsuit against Enterprise, without ever having given Enterprise the opportunity to rectify the problem. As a high-level member of Enterprise\u2019s management team, Salmer\u00f3n owed Enterprise a duty of loyalty. Salmeron\u2019s duty of loyalty to Enterprise was much more than a singular duty of acting to preserve the corporate res for the benefit of the shareholders. We note that disclosure of the alleged fraud arguably may have indirectly benefitted Enterprise from an ethical perspective by enabling it to remove corrupt elements from its company. Salmer\u00f3n also owed Enterprise a duty not to improperly profit or seek to profit from the knowledge she acquired while in a position of trust at the company, to the detriment of the company. Salmeron\u2019s actions were in competition and conflict with Enterprise\u2019s interests. Specifically, it was in Enterprise\u2019s interest to root out fraud and corruption within the company. On the other hand, it was in Salmeron\u2019s interest not to stop the corrupt activities until she was able to gather sufficient information in order to bring a qui tam lawsuit against Enterprise. There is no doubt that she could personally profit by sharing in the proceeds of a successful prosecution of that lawsuit. It was reasonable for Enterprise to expect that Salmer\u00f3n would not exploit her management position within the company for her own personal benefit. Enterprise reasonably expected that Salmer\u00f3n would not do anything to hinder the corporation in its business operations. Alpha School Bus Co., 391 Ill. App. 3d at 736-37, 910 N.E.2d at 1149-50; Comedy Cottage, Inc. v. Berk, 145 Ill. App. 3d 355, 359-60, 495 N.E.2d 1006, 1011 (1986).\nWe agree that Salmeron\u2019s position of authority and trust at Enterprise, serving as its general manager and director of operations, imposed upon her a duty of loyalty to Enterprise. That duty included the requirement that she not seek to profit at the expense of the corporation. Comedy Cottage, 145 Ill. App. 3d at 359-60, 495 N.E.2d at 1011. The fact that Enterprise\u2019s corporate bylaws do not enumerate the duties owed to Enterprise by Salmer\u00f3n does not negate the duty of loyalty which Salmer\u00f3n owed to Enterprise. She clearly breached that duty when, as her own admission establishes, she lied to Enterprise in signing the general release in order to induce a significant settlement payment knowing at the time that she had no intention of honoring it. Further, she failed to give Enterprise the opportunity to act against the employees allegedly engaging in violation of the False Claims Act by failing to inform Enterprise of the fraud she had supposedly uncovered.\nUnder the facts of this case, unlike the dissent, we decline to follow the federal district court\u2019s nonbinding suggestion that the release agreement signed between Salmer\u00f3n and Enterprise did not apply to Salmeron\u2019s filing of a qui tarn lawsuit. The plain language of the release stated that Salmer\u00f3n would release Enterprise from all claims relating to her employment with Enterprise. As the general manager and director of operations for Enterprise, it is evident that Salmeron\u2019s employment put her in a position to uncover the alleged fraud. It is also undisputed that the qui tarn lawsuit which she brought in federal court, alleging that employees of Enterprise had committed fraud against the Department of Education, was based upon information which she learned while working for Enterprise in her management capacity. It was Salmeron\u2019s duty to reveal such alleged fraud to Enterprise. She also had a duty to refrain from seeking to personally benefit by her nondisclosure of the activity which clearly put the company at risk. However, we do not imply nor suggest that an employee who files a qui tarn action instead of informing their employer of alleged fraud within the company commits a breach of their duty of loyalty. The unique facts of this case, measured against applicable case law informs our analysis. Thus, our holding is based upon the unique facts of this case. Accordingly, we hold that the trial court did not err in granting summary judgment for Enterprise on both counts of its complaint.\nIn an \u201cemergency motion\u201d filed in the circuit court of Cook County on September 19, 2008, after the entry of summary judgment for Enterprise, Salmer\u00f3n sought dismissal of Enterprise\u2019s lawsuit on the basis that it was brought in violation of section 15 of the Citizen Participation Act (the Act), which became effective in August 2007. 735 ILCS 110/15 (West 2008). Thus the Act was in effect for over one year before Salmer\u00f3n cited it as the basis for her motion to dismiss Enterprise\u2019s lawsuit, after the trial court had ruled against her. Salmer\u00f3n presented no valid reason for failing to raise this defense during the lengthy pendency of the case in the circuit court, before judgment was entered. Ordinarily, affirmative defenses must be set forth in the answer or reply to a complaint. 735 ILCS 5/2- \u2014 613 (West 2006). This requirement is to prevent a plaintiff from being taken by surprise, and a defendant who fails to timely file an affirmative defense is deemed to have forfeited that defense. Cordeck Sales, Inc. v. Construction Systems, Inc., 382 Ill. App. 3d 334, 376, 887 N.E.2d 474, 515 (2008); Spagat v. Schak, 130 Ill. App. 3d 130, 134, 473 N.E.2d 988, 991-92 (1985). The Act relied upon by Salmer\u00f3n was not in effect when Enterprise filed its lawsuit against Salmer\u00f3n in the circuit court in 2006. The Act became effective in 2007, a year after the instant lawsuit was filed. Yet Salmer\u00f3n did not seek to invoke the immunity of the Act which she now claims. In fact, she waited until after judgment was entered against her and the case was concluded in the trial court before raising the affirmative defense. Accordingly, she has forfeited that defense. Furthermore, she had already been barred by the trial court\u2019s order from presenting any defense to the lawsuit. For these reasons, we hold that the trial court did not err in denying Salmeron\u2019s postjudgment motion to dismiss Enterprise\u2019s lawsuit.\nThe judgment of the circuit court of Cook County is affirmed.\nAffirmed.\nHOFFMAN, J., concurs.\nAn abbreviation of the Latin phrase, \u201cqui tam pro domina rege quam pro se ipso in hac parte sequitor,\u201d which is translated as \u201c[one] who pursues this action on our Lord the King\u2019s behalf as well as his own.\u201d Vermont Agency of Natural Resources v. United States ex rel. Stevens, 529 U.S. 765, 768 n.1, 146 L. Ed. 2d 836, 843 n.1, 120 S. Ct. 1858, 1860 n.1 (2000).\nNo issue of res judicata or collateral estoppel was raised by any of the parties with respect to the effect of the federal dismissal on any claims or cross-claims in the state lawsuit.\nDuring the course of this appeal, we granted the motion of the lawyer and his law firm to withdraw from representing Salmer\u00f3n on appeal.", "type": "majority", "author": "PRESIDING JUSTICE CUNNINGHAM" }, { "text": "JUSTICE THEIS,\ndissenting in part:\nI respectfully disagree with the majority\u2019s opinion affirming summary judgment for Enterprise. First, I do not believe that Enterprise produced sufficient evidence to establish as a matter of law that Sal-mer\u00f3n fraudulently induced it to sign the release. Additionally, Enterprise cannot maintain its claim that Salmer\u00f3n breached her fiduciary duty. Therefore, I dissent.\nSummary judgment is a drastic means of disposing of litigation and should not be granted unless the movant\u2019s right to judgment is clear and free from doubt. Adams v. Northern Illinois Gas Co., 211 Ill. 2d 32, 43 (2004). In determining whether summary judgment is appropriate, we must construe the evidence strictly against the movant and liberally in favor of the nonmoving party. Adams, 211 Ill. 2d at 43.\nFirst, Enterprise contended that it was entitled to summary judgment on its claim for fraud in the inducement. Fraud in the inducement of a contract is a defect which renders a contract voidable at the election of the innocent party. Tower Investors, LLC v. 111 East Chestnut Consultants, Inc., 371 Ill. App. 3d 1019, 1030 (2007). In order for a misrepresentation to constitute fraud that would permit a court to set aside a contract, the party seeking to do so must establish that there was \u201c \u2018 \u201ca representation in the form *** of a material fact, made for the purpose of inducing a party to act; it must be false and known by the party making it to be false, or not actually believed by him, on reasonable grounds, to be true; and the party to whom it is made must be ignorant of its falsity, must reasonably believe it to be true, must act thereon to his damage, and in so acting must rely on the truth of the statement.\u201d \u2019 \u201d Tower Investors, 371 Ill. App. 3d at 1030-31, quoting James v. Lifeline Mobile Medics, 341 Ill. App. 3d 451, 456 (2003), quoting Wilkinson v. Appleton, 28 Ill. 2d 184, 187 (1963). The defendant\u2019s knowledge of the falsity of the statement, or his deliberate concealment with the intent to deceive, is an essential element of a common law fraud claim. Fox v. Heimann, 375 Ill. App. 3d 35, 47 (2007). The plaintiff must prove such fraud claims by clear and convincing evidence. Fox, 375 Ill. App. 3d at 47.\nEnterprise contended that Salmer\u00f3n falsely represented that she would release all claims against Enterprise, while knowing that she intended to file the qui tarn action against it. Enterprise submitted Tornatore\u2019s affidavit in support, in which he stated that Salmer\u00f3n agreed to release Enterprise and Tornatore from \u201cany and all actions *** of whatsoever nature, growing out of or related in any way to any and all known and unknown[,] foreseen and unforeseen damages or consequences relating to her employment,\u201d which language is taken directly from the release. Implicit in Enterprise\u2019s argument is the premise that the release bars the filing of a qui tarn lawsuit. To evaluate that claim, we must examine the scope of the release.\nA release is a contract whereby a party relinquishes a claim to the person against whom the claim exists. Farmers Automobile Insurance Ass\u2019n v. Kraemer, 367 Ill. App. 3d 1071, 1073 (2006). Accordingly, a release is subject to the rules governing the construction of contracts. Fuller Family Holdings, LLC v. Northern Trust Co., 371 Ill. App. 3d 605, 614 (2007). Construction of a release is a question of law. Fuller Family Holdings, 371 Ill. App. 3d at 614.\nThe intention of the parties controls the scope and effect of a release, and this intent is discerned from the express language of the release as well as the circumstances of its execution. Fuller Family Holdings, 371 Ill. App. 3d at 614; Kraemer, 367 Ill. App. 3d at 1074. The release must spell out the intention of the parties with great particularity and must be strictly construed against the benefitting party. Fuller Family Holdings, 371 Ill. App. 3d at 614. Where the terms of a release are clear and explicit, the court must enforce them as written. Fuller Family Holdings, 371 Ill. App. 3d at 614. However, the release will not be construed to include claims not within the contemplation of the parties at the time the agreement was executed. Kraemer, 367 Ill. App. 3d at 1074.\nWhere a release contains words of general release in addition to recitals of specific claims, the words of general release are limited to the particular claim to which reference is made. Carona v. Illinois Central Gulf R.R. Co., 203 Ill. App. 3d 947, 951 (1990); Fuller Family Holdings, 371 Ill. App. 3d at 614. That is, we must give effect to a more specific clause and qualify or reject a more general clause as the specific clause makes necessary. American Federation of State, County & Municipal Employees v. State Labor Relations Board, 274 Ill. App. 3d 327, 337 (1995); Kraemer, 367 Ill. App. 3d at 1073 (\u201cgeneral words [of release] are limited to things or persons of the same kind or class as those which are particularly mentioned\u201d). In any event, no language of a release, \u201cno matter how all-encompassing,\u201d will prevent a reviewing court from inquiring into the circumstances surrounding the execution of the release to ascertain whether it accurately reflected the parties\u2019 intention. Kraemer, 367 Ill. App. 3d at 1074, citing Carlile v. Snap-on Tools, 271 Ill. App. 3d 833, 838 (1995).\nIn this case, the majority focuses on the following language in the release:\n\u201cThe parties hereby fully and forever discharge and release each other *** from any and all actions [and] *** claims *** relating in any way to events occurring prior to and including the date of execution of the Agreement *** growing out of or related in any way *** to all known and unknown *** damages or consequences relating to [Salmeron\u2019s] employment [by Enterprise].\u201d\nThe majority tacitly concludes, with no analysis, that the qui tarn claim was sufficiently \u201crelated to [Salmeron\u2019s] employment\u201d to be barred by the release.\nHowever, the release continues:\n\u201c[W]ithout in any way limiting the generality of the foregoing language, Salmeron\u2019s release shall include any claims for relief or causes of action under Title VII of the Civil Rights Act of 1964 ***; the Family and Medical Leave Act of 1993 [FMLA] ***; the Americans with Disabilities Act [ADA] ***; the Rehabilitation Act of 1973 ***; the Civil Rights Enforcement Statutes ***; the Age Discrimination in Employment Act [ADEA] ***; the Older Workers Benefit Protection Act ***; the Fair Labor Standards Act of 1938 ***; the National Labor Relations Act [NLRA] ***; the Illinois Human Rights Act ***; and any other federal, state, or local statute *** dealing in any respect with discrimination in employment, and in addition, from any claims *** brought on the basis of wrongful discharge, breach of an oral or written agreement or contract, misrepresentation, defamation, interference with contract, intentional or negligent infliction of emotional distress ***, or sexual harassment.\u201d\nThe release also states that it was intended to resolve \u201cthe issues between the parties *** concerning Salmeron\u2019s employment with [Enterprise] and resolving all claims and/or potential claims *** for sexual harassment and discrimination as more fully set forth in Sal-meron\u2019s complaint filed in Rhonda Salmer\u00f3n v. Enterprise Recovery System, Inc. and Sam Tornatore, case number 03 C 3332.\u201d\nApplying the aforementioned principles of contract construction, I do not believe that the parties intended to include the qui tarn claim within the scope of this release and, therefore, Salmer\u00f3n was not barred from filing her qui tarn claim. Although the release purports to bar \u201cany and all actions *** of whatsoever nature, growing out of or *** relating to her employment,\u201d such broad language, \u201cno matter how all-encompassing,\u201d cannot bar claims that were not within the contemplation of the parties at the time the release was drafted. See Kraemer, 367 Ill. App. 3d at 1074; Carlile, 271 Ill. App. 3d at 838. This broad language must be circumscribed by the specific causes of action enumerated in the release. See American Federation of State, County & Municipal Employees, 274 Ill. App. 3d at 337. Those causes of action \u2014 including actions under Title VII, FMLA, ADA, ADEA, civil rights enforcement statutes, the Illinois Human Rights Act, and actions \u201cdealing in any respect with discrimination in employment\u201d under the common law \u2014 concern the type of harassment and employment discrimination claims that were the subject matter of Salmeron\u2019s then-pending sexual harassment lawsuit that gave rise to this release. See Carona, 203 Ill. App. 3d at 951. The release specifically prohibits Salmer\u00f3n from bringing such harassment and employment discrimination causes of action, which is consistent with the parties\u2019 stated intention that the release resolved \u201call claims and/or potential claims *** for sexual harassment and discrimination as more fully set forth in Rhonda Salmeron v. Enterprise Recovery System, Inc. and Sam Tornatore, case number 03 C 3332.\u201d\nAlthough Salmer\u00f3n apparently learned of the activities underlying her qui tarn claim while she was employed at Enterprise, that claim cannot be said to be \u201crelated to her employment\u201d in the context of the release as the parties originally intended. As discussed, the release seeks waiver of any statutory or common law harassment or employment discrimination claims Salmer\u00f3n may have. The qui tarn claim derives from Enterprise\u2019s alleged violation of the federal False Claims Act, which imposes civil liability on those who knowingly defraud the federal government by presenting and receiving payment for false or fraudulent claims. 31 U.S.C. \u00a73729(a)(l) (2006); see also Rockwell International Corp. v. United States, 549 U.S. 457, 463, 167 L. Ed. 2d 190, 200, 127 S. Ct. 1397, 1403 (2007). The nature of the qui tarn claim is unrelated to employment discrimination and harassment and cannot be construed to come within the scope of the release. See Fuller Family Holdings, 371 Ill. App. 3d at 615.\nTherefore, because Salmer\u00f3n was not prohibited from bringing the qui tarn claim under the terms of the release, she could not have made the misrepresentation asserted by Enterprise in this case. Salmer\u00f3n\u2019s admissions do indeed establish that she was gathering documentation in support of the qui tarn claim before she signed the release and that she \u201cdid not intend to release the [qui tarn] claim.\u201d However, those admissions are not inconsistent with the language of the release, in which the parties only intended for Salmer\u00f3n to relinquish any pending and future harassment or employment discrimination claims against Enterprise and Tornatore. Thus, Salmer\u00f3n could reasonably have believed that she could pursue her qui tarn without violating the terms of the release and did not knowingly make the claimed false statement. See Tower Investors, 371 Ill. App. 3d at 1030-31. Therefore, I believe that Enterprise has failed to meet its burden to establish by clear and convincing evidence that Salmer\u00f3n fraudulently induced it to enter into the release and summary judgment was inappropriate. See Fox, 375 Ill. App. 3d at 47; Tower Investors, 371 Ill. App. 3d at 1030-31.\nIn addition, I do not believe that Enterprise is entitled to summary judgment on its breach of fiduciary duty claim. To prevail on a breach of fiduciary duty claim, a plaintiff must establish: (1) a fiduciary duty on the part of the defendant; (2) the defendant\u2019s breach of that duty; (3) an injury; and (4) proximate cause between the breach and the injury. Alpha School Bus Co. v. Wagner, 391 Ill. App. 3d 722, 747 (2009). I do not believe that Enterprise has established Salmer\u00f3n\u2019s fiduciary duty, nor has it demonstrated that it suffered any injury.\nIn its complaint, Enterprise alleged that Salmer\u00f3n was \u201can employee and/or corporate officer\u201d of Enterprise and, as such, she owed Enterprise a fiduciary duty of loyalty. However, it has not demonstrated that Salmer\u00f3n violated any duty of loyalty as an employee or that she owed Enterprise a fiduciary duty as an officer of the corporation.\nEmployees and corporate officers are held to different standards with respect to their fiduciary duties to a corporation. Cooper Linse Hallman Capital Management, Inc. v. Hallman, 368 Ill. App. 3d 353, 357 (2006). An employee\u2019s duty to a company generally resembles a principal-agency relationship. Corroon & Black of Illinois, Inc. v. Magner, 145 Ill. App. 3d 151, 160 (1986). An employee\u2019s duty of loyalty most frequently arises in the context of the employee\u2019s duty to not compete with the employer while still employed by it. See, e.g., Hallman, 368 Ill. App. 3d at 357; Wagner, 391 Ill. App. 3d at 747. In such cases, an employee may plan, form, and outfit a rival company in the same industry as the employer while employed, so long as he does not engage in competition until after his resignation. Hallman, 368 Ill. App. 3d at 356-57.\nThe present case does not involve Salmeron\u2019s establishment of a rival company; Enterprise has not alleged or presented any evidence of Salmeron\u2019s prohibited competition. Rather, Enterprise has erroneously asserted that Salmeron\u2019s breach of fiduciary duty arose in her capacity as an employee. Therefore, Salmeron\u2019s duty of loyalty as an employee cannot be the basis of her liability here.\nOn the other hand, corporate officers owe a heightened fiduciary duty of loyalty to their corporate employer not to: (1) actively exploit their positions within the corporation for their own personal benefit; or (2) hinder the ability of the corporation to continue the business for which it was developed. Hallman, 368 Ill. App. 3d at 358. Here, Enterprise contended that Salmer\u00f3n breached her duty by: (1) allegedly using Enterprise\u2019s corporate assets in the form of its confidential and proprietary documents for her own benefit by submitting them in support of her qui tarn claim, in which she would stand to collect part of the monetary judgment, if successful; and (2) failing to inform Tornatore or any other corporate officer of her suspicion that Enterprise was submitting false claims, which allegedly hindered Enterprise from continuing its business of performing collection activities for the United States Department of Education. Thus, Enterprise intended to allege that Salmer\u00f3n violated her fiduciary duty as an officer of the company.\nAlthough Enterprise seeks to impose this heightened fiduciary duty upon Salmer\u00f3n, it has failed to demonstrate that that standard applies in this case. It has long been held that the directors and officers of a corporation are those entrusted with the management of corporate property for the benefit of the shareholders. Price v. State, 79 Ill. App. 3d 143, 149 (1979). The burden of pleading and proving the existence of the fiduciary relationship lies with the party seeking to establish it. Citicorp Savings of Illinois v. Rucker, 295 Ill. App. 3d 801, 809 (1998).\nIn its motion for summary judgment, Enterprise admitted that Salmer\u00f3n was \u201ctechnically not an officer or director of [Enterprise]\u201d but, rather, was a general manager. Nevertheless, it claimed that Comedy Cottage, Inc. v. Berk, 145 Ill. App. 3d 355, 360-61 (1986), imposes the same heightened fiduciary duty owed by directors and officers upon a general manager of a corporation.\nHowever, Enterprise\u2019s reliance on Comedy Cottage is entirely misplaced. The defendant in that case was vice president of the corporation as well as the general manager. The holding in that case concerned a corporate officer\u2019s liability for breaching his fiduciary duty \u2014 after resigning his corporate post but retaining a managerial position \u2014 when the offending transaction began during his tenure as a corporate officer. Comedy Cottage, 145 Ill. App. 3d at 360. The court made clear that the defendant learned of certain ongoing contract negotiations because of his \u201cconfidential position\u201d as vice president. He then \u201cused the knowledge gained as a result of his position [as vice president]\u201d to enter into an agreement in violation of his fiduciary duty to the corporation. Comedy Cottage, 145 Ill. App. 3d at 360-61. In this case, there is no allegation that Salmer\u00f3n ever served as a corporate director or officer, and Comedy Cottage does not independently expand the corporate duty of loyalty to general managers.\nNotwithstanding Enterprise\u2019s admission that Salmer\u00f3n was not a corporate officer or director, the evidence presented by Enterprise fails to establish that Salmeron\u2019s duties came within the scope of those performed by corporate officers. Corporate officers are elected by the board of directors and \u201cperform such duties in the management of the property and affairs of the corporation as may be provided in the bylaws, or as may be determined by resolution of the board of directors.\u201d 805 ILCS 5/8.50 (West 2006).\nEnterprise did not submit a copy of the bylaws or any other evidence that would establish the duties of a corporate officer. It merely alleged that Salmeron\u2019s duties included maintaining industry-specific computer software, training employees in the use of the software, and supervising employees responsible for collecting revenue. By Enterprise\u2019s own description, Salmeron\u2019s duties were limited to management of computer software and those employees who used it. It makes no assertion, and likewise offers no proof, that Salmer\u00f3n was responsible in any way to the shareholders for the management of the property of the corporation as a whole. Salmeron\u2019s duties, as enumerated by Enterprise, are insufficient to classify her as a corporate director or officer. See Price, 79 Ill. App. 3d at 149; Rucker, 295 Ill. App. 3d at 809. Thus, there is no basis upon which to impose the fiduciary duty of loyalty owed by corporate officers and directors upon Salmer\u00f3n.\nEven if Enterprise could establish that Salmer\u00f3n breached a fiduciary duty of loyalty of whatever degree, it did not demonstrate that it suffered any injury resulting from the breach. Enterprise claimed that Salmer\u00f3n misappropriated its corporate assets, in the form of documents, for her personal benefit because she would receive a portion of any judgment awarded in the qui tam lawsuit in which the documents were used. However, Enterprise failed to allege how it was thereby harmed. The False Claims Act claim filed by Salmer\u00f3n was dismissed and Enterprise was not ordered to pay any judgment. Nor did Enterprise seek to recover the de minimus value of the documents themselves.\nAdditionally, Enterprise claimed that because Salmer\u00f3n failed to inform Tornatore of the suspected fraud, it was hindered from continuing its business of performing collection activities for the United States Department of Education. However, it produced no evidence demonstrating that it lost its contract with the Department of Education, or any other client, or that it was otherwise prevented from continuing its collection business. Therefore, Enterprise has not established that it suffered any injury as a result of Salmeron\u2019s alleged breach of fiduciary duty.\nFor all of the foregoing reasons, I would reverse the circuit court\u2019s judgment and remand for further proceedings.", "type": "dissent", "author": "JUSTICE THEIS," } ], "attorneys": [ "Moran Law Group (John Thomas Moran, Jr., of counsel), and Despres, Schwartz & Geoghegan, Ltd. (Jorge Sanchez, of counsel), both of Chicago, for appellant.", "Connelly, Roberts & McGivney, LLC, of Chicago (Matthew P Connelly and Garrett C. Carter, of counsel), for appellee." ], "corrections": "", "head_matter": "ENTERPRISE RECOVERY SYSTEMS, INC., Plaintiff-Appellee, v. RHONDA SALMERON, Defendant-Appellant.\nFirst District (2nd Division)\nNo. 1\u201408\u20142936\nOpinion filed March 31, 2010.\nRehearing denied May 4, 2010.\nTHEIS, J., dissenting in part.\nMoran Law Group (John Thomas Moran, Jr., of counsel), and Despres, Schwartz & Geoghegan, Ltd. (Jorge Sanchez, of counsel), both of Chicago, for appellant.\nConnelly, Roberts & McGivney, LLC, of Chicago (Matthew P Connelly and Garrett C. Carter, of counsel), for appellee." }, "file_name": "0065-01", "first_page_order": 81, "last_page_order": 99 }