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2018 IL App (1st) 171077 

No. 1-17-1077 

SECOND DIVISION 

June 26, 2018 

IN THE
 

APPELLATE COURT OF ILLINOIS
 

FIRST JUDICIAL DISTRICT
 

RICHARD MACHNICKI, KATHY ) Appeal from the Circuit Court 

MACHNICKI, and ZBIGNIEW KUROWSKI, ) of Cook County. 

) 

Plaintiffs, ) 

) No. 12 CH 32792 

v. ) 

)
 

MARIUSZ KUROWSKI and UNKNOWN ) The Honorable
 

OWNERS, ) James P. Flannery,
 

) Judge Presiding. 

Defendants ) 

)
 

(Richard Machnicki and Zbigniew Kurowski, )
 

Plaintiffs and Counterdefendants-Appellants; )
 

Mariusz Kurowski, Individually and on Behalf of )
 

Kurowski Sausage Shop & Rich’s Bakery, Inc., )
 

Counterplaintiff-Appellee). )
 

JUSTICE PUCINSKI delivered the judgment of the court, with opinion. 

Justices Hyman and Walker concurred in the judgment and opinion. 

OPINION 

¶ 1 Plaintiffs-counterdefendants, Richard Machnicki and Zbigniew Kurowski (collectively, 

plaintiffs), appeal from the trial court’s order directing them to pay $339,000 in attorney fees and 

expenses to defendant-counterplaintiff, Mariusz Kurowski (defendant) pursuant to section 

12.60(j) of the Business Corporation Act of 1983 (Corporation Act) (805 ILCS 5/12.60(j) (West 

2016)). Plaintiffs contend on appeal that, in violation of the plain language of section 12.60(j), 
 

 

 

 

 

 

 

 

 

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the trial court considered alleged acts by plaintiffs that occurred outside of the litigation when 

awarding said fees and expenses to defendant. For the reasons that follow, we disagree that 

reversible error occurred and affirm the trial court’s judgment. 

¶ 2 BACKGROUND 

¶ 3 The facts relevant to the present dispute are essentially undisputed by the parties. In 1998, 

the parties opened a Polish delicatessen and bakery called Kurowski Sausage Shop & Rich’s 

Bakery, Inc. (Kurowski’s) in Chicago’s “Avondale” neighborhood. Claiming a change in the 

local demographic, plaintiffs later opened a new delicatessen and bakery—Pulaski Polish Deli & 

Bakery—in Chicago’s “Dunning” neighborhood but did not invite defendant to join them in the 

new venture. In August 2012, plaintiffs filed a complaint for the partition of the real property 

(property) out of which Kurowski’s was operated and that was jointly owned by the parties and 

Kathy Machnicki as individuals but was not an asset of the corporation. 

¶ 4 In October 2012, defendant filed a counterclaim in response. His third amended 

counterclaim contained six counts: count I alleged breach of fiduciary duty, count II alleged 

breach of contract, count III alleged violation of the Illinois Trade Secrets Act (765 ILCS 1065/1 

et seq. (West 2012)), count IV alleged violation of the Uniform Deceptive Trade Practices Act 

(815 ILCS 510/1 et seq. (West 2012)), count V alleged tortious interference with a business 

expectancy, and count VI alleged unjust enrichment. Counts I and II sought relief for plaintiffs’ 

alleged breaches under section 12.56 of the Corporation Act. 

¶ 5 Following the confirmation of the court-ordered sale of the property, the matter was 

transferred from the chancery division to the law division of the circuit court for a jury trial on 

defendant’s counterclaim. The jury found in favor of defendant and against plaintiffs and 

rendered an advisory verdict on counts II and V. In addition to following the jury’s advice on 

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counts II and V, the trial court also entered judgment on count I pursuant to section 12.56 of the 

Corporation Act. In sum, the trial court entered judgment in favor of defendant and against 

plaintiffs as follows: (1) plaintiffs were to purchase defendant’s shares in Kurowski’s for the sum 

of $152,272 plus $17,980.61 in prejudgment interest, (2) additional joint and several 

compensatory damages against both plaintiffs in the amount of $18,618.90, (3) punitive damages 

against Richard Machnicki in the amount of $15,454.54, and (4) punitive damages against 

Zbigniew Kurowski in the amount of $8,181.81. Defendant voluntarily dismissed count VI 

without prejudice, and counts III and IV were dismissed by the trial court prior to trial. 

¶ 6 Thereafter, defendant filed a petition for attorney fees and expenses pursuant to section 

12.60(j) of the Corporation Act. In it, defendant argued that he was entitled to an award of 

attorney fees and expenses because plaintiffs had engaged in actions that were arbitrary, 

vexatious, and not in good faith when they attempted to squeeze him out of Kurowski’s for less 

than fair market value, misused Kurowski’s funds, and engaged in misconduct during discovery. 

Defendant also argued that by ordering the sale of defendant’s shares in Kurowski’s pursuant to 

section 12.56, the trial court must necessarily have found that plaintiffs committed shareholder 

oppression, wasted corporate assets, or otherwise breached their fiduciary duties, and that such 

findings justified an award of attorney fees and expenses under section 12.60(j). 

¶ 7 Among other things, plaintiffs argued in response that the arbitrary, vexatious, or not in 

good faith actions that would justify an award of attorney fees and expenses under section 

12.60(j) must take place within the litigation at issue and, because the actions relied upon by 

defendant occurred primarily outside of the litigation, they could not serve as a basis for an 

award. In addition, plaintiffs argued that the fees and expenses sought by defendant were 

unreasonable because some of the fees sought were not associated with claims subject to section 

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12.60(j) or were not a direct result of the allegedly arbitrary, vexatious, or bad faith actions of 

plaintiffs. 

¶ 8 Following a hearing on the matter, the trial court issued an order denying defendant’s fee 

petition. In the order, relying on the case of Abreu v. Unica Industrial Sales, Inc., 224 Ill. App. 

3d 439 (1991), the trial court held that the actions alleged by defendant did not fall within the 

scope of section 12.60(j) because they did not occur within the subject litigation. 

¶ 9 Defendant filed a motion to reconsider, arguing that Abreu did not govern because it dealt 

with a fee provision of the Corporation Act that was no longer in existence and that contained 

different language than section 12.60(j). Defendant also argued that plaintiffs did commit 

arbitrary, vexatious, and not in good faith acts within the scope of the litigation. The trial court 

granted defendant’s motion to reconsider and entered two separate orders in that regard. In the 

first order, the trial court apparently agreed with defendant’s argument that the alleged 

misconduct did not need to occur during the legal proceedings to be considered under section 

12.60(j), stating that it would “consider actions related which were vexatious (not in good 

faith).” The trial court also stated, “This trial court does not find in presiding over the law 

division jury case illegality, vexatious, otherwise arbitrary conduct in bad faith in this 

proceeding. This court cannot verify the resistance by [plaintiffs] & non-compliance re: 

discovery.” The trial court ended the order by stating that it would review the billing statements 

submitted by defendant to arrive at an appropriate amount. In the second order, entered the same 

day, the trial court stated that it had reviewed all 93 pages of billing statements submitted by 

defendant and having taken “thoughtful consideration of the history of the LLC meeting, and the 

partition suit and the actions concerning discovery according to the interpretation of 

[defendant],” it awarded defendant attorney fees and expenses in the amount of $339,000. 

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¶ 10 Plaintiffs filed a motion to alter or amend the trial court’s award to defendant, again 

arguing that an award of attorney fees and expenses for the conduct alleged by defendant was not 

supported by section 12.60(j) and that the amount awarded was excessive. Following a hearing 

on the matter, the trial court denied plaintiffs’ motion. 

¶ 11 Plaintiffs then instituted this appeal. 

¶ 12 ANALYSIS 

¶ 13 On appeal, plaintiffs argue that in determining whether a party is entitled to an award of 

attorney fees and expenses under section 12.60(j) of the Corporation Act, the trial court may only 

consider vexatious, arbitrary, or otherwise not in good faith acts that occurred within the section 

12.56 litigation, i.e., the offender’s actions must be some kind of procedural or litigation 

misconduct. Thus, according to plaintiffs, the trial court erred in awarding defendant attorney 

fees and expenses based on actions that took place outside of the 12.56 litigation. In addition, 

plaintiffs argue that the trial court abused its discretion in the amount of fees and expenses it 

awarded, because some of the awarded fees and expenses were associated with claims that were 

not subject to section 12.60(j) or were not the direct result of the arbitrary, vexatious, or not in 

good faith actions. We conclude that neither of these contentions warrants reversal. 

¶ 14 Conduct to Be Considered 

¶ 15 Plaintiffs’ first contention—that the allegedly vexatious, arbitrary, or otherwise not in 

good faith actions must occur within the litigation to justify attorney fees and expenses under 

section 12.60(j) of the Corporation Act—requires us to construe the language of section 12.60(j). 

Such questions of statutory interpretation are subject to a de novo standard of review. People ex 

rel. Madigan v. Illinois Commerce Comm’n, 231 Ill. 2d 370, 377 (2008). We note that this is a 

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matter of first impression, and there are no other cases interpreting the language of section 

12.60(j). 

¶ 16 The primary goal in statutory construction is to ascertain the intent of the legislature. The 

best indicator of this intent is the language of the statute, which must be given its plain and 

ordinary meaning. People ex rel. Madigan v. Bertrand, 2012 IL App (1st) 111419, ¶ 20. In 

interpreting a statute, we must view the statute as a whole, making sure not to read any of its 

language in isolation. Board of Education of Woodland Community Consolidated School District 

50 v. Illinois State Charter School Comm’n, 2016 IL App (1st) 151372, ¶ 38. We must avoid any 

interpretation that would render any portion of the statute superfluous, meaningless, or void. 

Sylvester v. Industrial Comm’n, 197 Ill. 2d 225, 232 (2001). Just as we may not read out any 

portion of the statute, we may not alter the plain meaning of a statute’s language by reading into 

it exceptions, limitations, or conditions not expressed by the legislature. Board of Education, 

2016 IL App (1st) 151372, ¶¶ 34, 38. 

¶ 17 Section 12.60(j) of the Corporation Act provides as follows: 

“If the court finds that a party to any proceeding under Section 12.50, 12.55, or 12.56 

acted arbitrarily, vexatiously, or otherwise not in good faith, it may award one or more 

other parties their reasonable expenses, including counsel fees and the expenses of 

appraisers or other experts, incurred in the proceeding.” 805 ILCS 5/12.60(j) (West 

2016). 

Based on the plain language of this provision, we conclude that there is no requirement that the 

arbitrary, vexatious, or otherwise not in good faith actions take place within the litigation. 

Rather, the plain language of section 12.60(j) identifies three elements that must be satisfied 

before an award of attorney fees and expenses may be made: (1) the party against whom the fees 

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are sought must be a party to a proceeding under section 12.50, 12.55, or 12.56 of the 

Corporation Act; (2) that party must have engaged in actions that were arbitrary, vexatious, or 

otherwise not in good faith; and (3) the fees and expenses sought must have been incurred in the 

section 12.50, 12.55, or 12.56 proceeding. Plaintiffs point to no language that supports a 

requirement the alleged actions take place within the proceeding, and we can find no language in 

section 12.60(j) that imposes any requirements other than those identified above. To impose, as 

plaintiffs argue we should, the additional requirement that the acts forming the basis of the award 

occur within the litigation would be to read into section 12.60(j) a requirement that was not 

included by the legislature. This we cannot do. Board of Education, 2016 IL App (1st) 151372, 

¶ 38. 

¶ 18 Although we conclude that the language of section 12.60(j) could not be any more clear, 

we note that our reading of section 12.60(j) is also supported by the legislature’s amendments to 

the Corporation Act in 1995. Prior to 1995, section 12.55(h) of the Corporation Act read as 

follows: 

“If the court determines that any party in an action commenced under Section 12.50 has 

acted arbitrarily, vexatiously, or not in good faith in such action or in connection with 

any alternative relief provided in this Section, the court may, in its discretion, award 

attorneys’ fees and other reasonable expenses to the other parties to the action who have 

been affected adversely thereby.” (Emphasis added.) 805 ILCS 5/12.55(h) (West 1994). 

In 1995, the legislature removed section 12.55(h) and enacted section 12.60(j), which expanded 

the application of the provision to actions brought under sections 12.50, 12.55, and 12.56. Pub. 

Act 89-169 (eff. July 19, 1995). In addition, the legislature removed the language that required 

the arbitrary, vexatious, or not in good faith actions to be “in such action or in connection with 

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any alternative relief provided in this Section.” By removing this language that very specifically 

limited an award of fees to situations where the arbitrary, vexatious, or not in good faith actions 

occurred in the section 12.50 action or in connection with some alternative relief under section 

12.55 and replacing it with a provision that did not contain any such limiting language, the 

legislature expressed an intent to remove that limitation from future fee awards. See Borden 

Chemicals & Plastics, L.P. v. Zehnder, 312 Ill. App. 3d 35, 46 (2000) (stating that under the 

“legislative intent” approach, “it is presumed that the legislature intends to effect a change in the 

law when it enacts a statutory amendment”). Certainly, had the legislature intended fees be 

awarded only if the arbitrary, vexatious, or not in good faith actions occurred within the action, it 

would have left the limiting language in section 12.60. In fact, it would have been less work for 

the legislature to simply leave it. Thus, again, the removal of the specific, limiting language can 

only represent an intent by the legislature to remove that limitation. 

¶ 19 Plaintiffs argue that the language of the former section 12.55(h) and the current section 

12.60(j) are “near identical” and that the removal of the language limiting fee awards to 

situations where the bad acts occurred within the section 12.55 litigation was irrelevant because 

the placement of the fee provision in section 12.60—a section entitled “Practice in actions under 

Section 12.50, 12.55, and 12.56”—necessarily limits the fee awards to situations where the 

alleged conduct occurred within the proceedings. Along this same line, plaintiffs argue that if the 

legislature intended to allow an award of fees based on actions unrelated to the procedural aspect 

of the proceedings, it would have included a provision for attorney fees in the remedies sections 

of each section 12.50, 12.55, and 12.56. We disagree with plaintiffs’ logic. 

¶ 20	 First, the language of sections 12.55(h) and 12.60(j) is not nearly identical; they differ in 

several important respects. The most important respect, of course, is the fact that the language of 

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section 12.55(h) very specifically limited fee awards to situations where the arbitrary, vexatious, 

and otherwise not in good faith actions occurred “in such action [under section 12.55] or in 

connection with any alternative relief provided in this Section.” Section 12.60(j) contains no 

such language or any language even remotely close in meaning. 

¶ 21 This brings us to the second reason that we disagree with plaintiffs’ logic. Where the 

legislature had previously demonstrated a clear ability to narrowly limit the actions on which a 

fee award could be based, absent any indication to the contrary, there can be no conclusion other 

than that the removal of such limiting language was also intended to remove the limitation. 

Plaintiffs’ contention that the placement of section 12.60(j) in a section dedicated to practice 

somehow reimposes the limitation the legislature had just removed is nonsensical. Initially, we 

note that although the title of a statute can provide some interpretive guidance, where the 

language of the statute contradicts the title, the statutory language controls. Mahoney v. 

Industrial Comm’n, 218 Ill. 2d 358, 372-73 (2006). Here, as discussed, the language of section 

12.60(j) is clear and, to the extent that the title of section 12.60 contradicts it, the language of 

subsection (j) prevails. Moreover, we think the placement of section 12.60(j) is easily explained 

by the fact that the legislature intended to set out the manner (i.e., method of practice) by which a 

party could obtain a fee award and by the fact that the legislature intended to expand the 

availability of fee awards to litigants in section 12.50, 12.55, and 12.56 matters and section 12.60 

governs practice in all through of those sections. We decline plaintiffs’ invitation to conclude 

that the legislature chose to replace very specific limiting language with a vague section title in 

hopes that litigants and trial courts would somehow understand that the title of the section was to 

serve as a limitation on fee awards. 

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¶ 22 Given that we disagree with plaintiffs’ contention that there is no substantive difference 

between the prior section 12.55(h) and the current section 12.60(j), we also disagree that legal 

authorities interpreting or providing guidance on section 12.55(h) have any relevance to how 

section 12.60(j) is to be applied. More specifically, plaintiffs’ reliance on Abreu is misplaced. In 

Abreu, the appellate court reversed the trial court’s award of attorney fees under section 12.55(h) 

because “it did not properly base its award of attorney fees upon defendants’ actions within the 

course of the litigation process itself (‘in such action’).” 224 Ill. App. 3d at 451. In so holding, 

the Abreu court relied on the specific language of section 12.55(h)—the very language that was 

abandoned by the legislature when it enacted section 12.60(j). See id. (“The language of section 

12.55(h) reveals that the authority to award fees is limited to situations in which the court 

determines that a party in a case commenced under section 12.50 has acted arbitrarily, 

vexatiously or not in good faith ‘in such action.’ ”). Moreover, the legislature’s removal of the 

specific language relied on by the Abreu court—even after the Abreu decision was issued— 

further indicates a conscious decision by the legislature to remove the limitation. See Benhart v. 

Rockford Park District, 218 Ill. App. 3d 554, 558 (1991) (“[I]t is presumed that the legislature 

intended to change the existing law when amending a statute that has been the subject of judicial 

interpretation.”). 

¶ 23 Finally, plaintiffs argue that section 12.60(j) is “not dissimilar” from other attorney fees 

provisions, such as Illinois Supreme Court Rule 137 (eff. July 1, 2013), which permits a trial 

court to impose sanctions, including attorney fees, on a party who signs a pleading or other 

document in violation of Rule 137. Plaintiffs point out that to obtain sanctions under Rule 137, a 

party must demonstrate that their opponent made false allegations without cause and the trial 

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court’s decision must be based on the circumstances of the case. According to plaintiffs, these 

standards were not met in the present case. This argument fails for obvious reasons. 

¶ 24 First, plaintiffs make no attempt to explain their very vague and nondescriptive phrase, 

“not dissimilar.” They also do not provide any argument or authority for the proposition that 

when a statute is “not dissimilar” from a supreme court rule, a party seeking relief under the 

statute must also meet the standard under the rule, nor do they provide any authority for the 

proposition that “not dissimilar” statutes and rules have some bearing on the interpretation of the 

other. For these reasons, plaintiffs have waived this contention. See Ill. S. Ct. R. 341(h)(7) (eff. 

Nov. 1, 2017) (providing that an appellant’s brief must contain “[a]rgument, which shall contain 

the contentions of the appellant and the reasons therefor, with citation of the authorities and the 

pages of the record relied on”); CE Design, Ltd. v. Speedway Crane, LLC, 2015 IL App (1st) 

132572, ¶ 18 (“The failure to provide an argument and to cite to facts and authority, in violation 

of Rule 341, results in the party forfeiting consideration of the issue.”). Waiver aside, however, 

as discussed above, the language of section 12.60(j) is plain and unambiguous. Thus, there is no 

need for us to consider outside sources to determine the standard defendant was required to meet, 

regardless of whether those outside sources are “not dissimilar.” See NAB Bank v. LaSalle Bank, 

N.A., 2013 IL App (1st) 121147, ¶ 10 (“When the statutory language is clear and unambiguous, 

we apply its plain and ordinary meaning without looking to outside sources for aid.”). 

¶ 25 By our interpretation of section 12.60(j), we do not intend to express any opinion on the 

wisdom of a fee provision that permits the recovery of fees and expenses based on the opposing 

party’s actions outside of the litigation. Rather, we simply interpret the words of the statute as 

written by the legislature to identify the legislature’s intent. Here, the plain language of section 

12.60(j) does not limit fee awards to situations where the offending party acted arbitrarily, 

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vexatiously, or not in good faith within the section 12.56 litigation. Moreover, the legislature’s 

conscious removal of such a limitation from the predecessor to section 12.60(j) reinforces our 

interpretation that no such limitation was intended. If such a limitation is, in fact, desired by the 

legislature, it is the legislature’s duty to amend section 12.60(j) to clearly reflect that intention; 

we cannot do it for the legislature. Based on our conclusion that the plain language of section 

12.60(j) does not limit fee awards to those situations where the allegedly arbitrary, vexatious, or 

not in good faith acts took place within the litigation, we find no error in the trial court’s 

consideration of plaintiffs’ actions outside of defendant’s section 12.56 claim. 

¶ 26 Specific Findings 

¶ 27 Although the parties do not raise it in their briefs, we pause to address an issue that was 

discussed during oral arguments. Section 12.60(j) allows for an award of reasonable attorney 

fees and expenses “[i]f the court finds that a party to any proceeding under Section 12.50, 12.55, 

or 12.56 acted arbitrarily, vexatiously, or otherwise not in good faith.” It is our opinion that the 

italicized language clearly requires the trial court to make a specific finding of the offending 

party’s arbitrary, vexatious, or otherwise not in good faith actions. 

¶ 28 Here, it is questionable whether the trial court made a specific finding that plaintiffs’ 

engaged in arbitrary, vexatious, or otherwise not in good faith behavior—either within or outside 

the scope of the litigation. In the trial court’s first order on defendant’s motion to reconsider, the 

trial court specifically stated that it did not “find in presiding over the law division jury case 

illegality, vexatious, otherwise arbitrary conduct in bad faith in this proceeding.” Nevertheless, in 

the second order on defendant’s motion to reconsider, entered the same day as the first order, the 

trial court awarded defendant attorney fees and expenses after “thoughtful consideration of the 

history of the LLC meeting, and the partition suit and the actions concerning discovery according 

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to the interpretation of [defendant].” It is unclear whether the trial court’s thoughtful 

consideration lead it to conclude that “the history of the LLC meeting, and the partition suit and 

the actions concerning discovery” constituted arbitrary, vexatious, or otherwise not in good faith 

acts. 

¶ 29 In any case, we need not determine whether these arguably contradictory orders contain a 

sufficient finding of arbitrary, vexatious, or otherwise not in good faith actions on the part of 

plaintiff, as plaintiff has taken no issue with the sufficiency of the trial court’s findings, thereby 

forfeiting any claim of error in this respect. See Ill. S. Ct. R. 341(h)(7) (eff. Nov. 1, 2017) 

(providing that an appellant’s brief must contain “[a]rgument, which shall contain the 

contentions of the appellant and the reasons therefor, with citation of the authorities and the 

pages of the record relied on”); CE Design, Ltd., 2015 IL App (1st) 132572, ¶ 18 (“The failure to 

provide an argument and to cite to facts and authority, in violation of Rule 341, results in the 

party forfeiting consideration of the issue.”). 

¶ 30 Amount of Award 

¶ 31 Plaintiffs next argue that the trial court abused its discretion in the amount of fees and 

expenses that it awarded to defendant. Specifically, plaintiffs contend that the trial court erred in 

awarding fees that were not incurred within defendant’s section 12.56 action and fees that were 

not a direct result of plaintiffs’ arbitrary, vexatious, or not good faith actions. We conclude that 

although the trial court, as discussed above, was permitted to consider plaintiffs’ actions outside 

of the section 12.56 claim when determining whether to award attorney fees and expenses, the 

amount of the attorney fees and expenses awarded could not exceed those incurred in the section 

12.56 action. Despite generally arguing that the trial court awarded defendant fees and expenses 

that were incurred outside of the section 12.56 claim, we conclude that plaintiffs have failed to 

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present a sufficient record or sufficient argument to justify a determination that the trial court 

abused its discretion. 

¶ 32 Before discussing whether the amount of the attorney fees and expenses awarded by the 

trial court constituted an abuse of discretion, we must, once again, examine the language of 

section 12.60(j) to determine what fees and expenses fall within the trial court’s discretion to 

award. According to plaintiffs, the fees and expenses must be incurred within the scope of a 

section 12.50, 12.55 or 12.56 claim, and they must be the direct result of the arbitrary, vexatious, 

or not good faith action. We agree with the former contention, but not the latter. 

¶ 33 Section 12.60(j) states that if the trial court finds that a party to a proceeding under 

section 12.50, 12.55, or 12.56 acted arbitrarily, vexatiously, or otherwise not in good faith, it 

may award other parties their “reasonable expenses, including counsel fees and the expenses of 

appraisers or other experts, incurred in the proceeding.” This language clearly limits any award 

to those fees and expenses “incurred in the proceeding,” i.e., the section 12.50, 12.55, or 12.56 

proceeding referenced earlier in the provision. Thus, as applied to the present case, the trial court 

possessed the discretion to award only those attorney fees and expenses that were incurred in the 

prosecution of defendant’s section 12.56 claim. 

¶ 34 With respect to plaintiffs second claim—that the fees and expenses must be a direct result 

of the arbitrary, vexatious, or not good faith actions—we do not find any support for such a 

proposition within the plain language of section 12.60(j). Rather, section 12.60(j) simply says 

that the trial court may award the petitioning party’s “reasonable expenses, including counsel 

fees and the expenses of appraisers or other experts.” It imposes no requirement that those 

reasonable expenses be expenses necessitated by the offending party’s actions. Thus, any 

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argument by plaintiffs that some or all of the fees and expenses awarded by the trial court in the 

present case were not a direct result of plaintiffs’ actions fails. 

¶ 35 Having determined the scope of the trial court’s discretion in awarding attorney fees and 

expenses under section 12.60(j), we turn now to whether the trial court abused its discretion in 

this case by awarding fees and expenses that were not incurred within the scope of defendant’s 

section 12.56 claim. Attached to defendant’s fee petition were 112 pages of billing records from 

his counsel, evidencing the attorney fees and expenses incurred since the beginning of August 

2012, just weeks before plaintiffs filed their partition action and just a couple of months before 

defendant filed his section 12.56 claim. Also attached to defendant’s fee petition was an affidavit 

from one of his attorneys, attesting that the total fees and expenses incurred by defendant in the 

litigation was $339,210.82. The record reveals that the trial court, on two separate occasions, 

stated that it would review the defendant’s billing records in detail. Based on those reviews, the 

trial court awarded defendant a total of $339,000 in attorney fees and expenses. 

¶ 36 We are unable to afford plaintiffs any relief from the amount of attorney fees and 

expenses awarded by the trial court, because plaintiffs’ counsel—both in the trial court and on 

appeal—failed to articulate which expenses and fees were incurred within defendant’s 12.56 

litigation and which were not. Instead, in the trial court, plaintiffs did not argue that defendant’s 

fee award should be limited to $11,093.75 in fees associated with plaintiffs’ discovery 

noncompliance until plaintiffs filed their motion to alter or amend the award of fees. Even then, 

plaintiffs only picked out those fees that they believed were a direct result of their arbitrary, 

vexatious, or not in good faith behavior, which we, as discussed above, conclude is not the 

appropriate standard. Rather, upon a finding that plaintiffs engaged in arbitrary, vexatious, or not 

in good faith behavior, defendant is entitled to an award of all reasonable fees and expenses 

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incurred in his section 12.56 action, regardless of whether they are a direct result of plaintiffs’ 

offending behavior. 

¶ 37 On that note, although plaintiffs make a general argument that not all of the $339,000 

awarded could have been incurred within the scope of defendant’s section 12.56 claim, they offer 

no support—either in terms of legal authority or record evidence—of that position, other than the 

fact that there were other types of claims pending, including plaintiffs’ partition action. Plaintiffs 

fault the trial court for failing to isolate those expenses that were associated with defendant’s 

section 12.56 claim; yet, their argument on appeal suffers from the same infirmity. Other than 

conclusively stating that the trial court should have awarded defendant only $11,093.75 in fees 

associated with plaintiffs’ discovery noncompliance, plaintiffs make no attempt to identify and 

explain which charges related or did not relate to defendant’s section 12.56 claim. In addition, 

plaintiffs do not explain how they reached $11,093.75 as the proper amount or what charges they 

included in that amount. This failure to develop and support their argument is fatal to plaintiffs’ 

claim on appeal. See Ill. S. Ct. R. 341(h)(7) (eff. Nov. 1, 2017) (providing that an appellant’s 

brief must contain “[a]rgument, which shall contain the contentions of the appellant and the 

reasons therfor, with citation of the authorities and the pages of the record relied on”); CE 

Design, Ltd., 2015 IL App (1st) 132572, ¶ 18 (“The failure to provide an argument and to cite to 

facts and authority, in violation of Rule 341, results in the party forfeiting consideration of the 

issue.”). 

¶ 38 The need for further development and support of plaintiffs’ argument is especially 

apparent in situations such as this. Certainly, the existence of numerous claims other than 

defendant’s section 12.56 claim and the trial court’s award of nearly all of defendant’s attorney 

fees and expenses raise questions of whether all of the fees awarded were actually incurred in 

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pursuit of defendant’s section 12.56 claim. That being said, however, it appears from the billing 

records that defendant’s attorneys were working to prepare defendant’s claims even before the 

filing of plaintiffs’ partition action; thus, without more, there can be no division of fees based on 

when each claim was filed. In addition, given that all of the parties’ claims revolved around the 

disputes involving Kurowski’s, it is entirely possible that many of the same facts that were at 

issue in defendant’s section 12.56 claim were also at issue in the other claims. 

¶ 39 As the reviewing court, it is not our duty to review the billing records and parse out 

which expenses and hours were spent on defendant’s section 12.56 claim and which were not. 

Presumably, the trial court already did that, and plaintiffs have made no effort to identify and 

explain the specific charges that should or should not have been included in the award. Instead, 

without any further explanation, plaintiffs simply state, “If the trial court had applied Section 

12.60(j) standards to its review of the costs, it should have concluded that the only [sic] 

$11,093.75 were incurred as a result of [plaintiffs’] non-compliance in discovery.” Had 

plaintiffs’ counsel taken the time to identify and explain fees and expenses that the trial court 

awarded to defendant but that were not incurred within the scope of his section 12.56 claim, we 

might have been able to afford some relief to plaintiffs. After all, it is difficult to believe that 

nearly all of defendant’s fees and expenses were incurred within the scope of just one of the six 

claims he initially brought. That being said, if plaintiffs’ counsel is unwilling to develop or 

support their arguments for reversal, we will not do it for them. Obert v. Saville, 253 Ill. App. 3d 

677, 682 (1993) (“A reviewing court is entitled to have issues clearly defined with pertinent 

authority cited and cohesive arguments presented [citation], and it is not a repository into which 

an appellant may foist the burden of argument and research [citation]; it is neither the function 

nor the obligation of this court to act as an advocate or search the record for error.”). 

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¶ 40 Absent additional argument, evidence, and authority, we cannot conclude that the trial 

court abused its discretion in its award of attorney fees and expenses to defendant under section 

12.60(j) of the Corporation Act. 

¶ 41 CONCLUSION 

¶ 42 For the foregoing reasons, the judgment of the circuit court of Cook County is affirmed. 

¶ 43 Affirmed. 

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