No. 2-09-1003 Filed: 10-20-10

______________________________________________________________________________ IN THE AP PE LLATE COU RT OF ILLIN OIS SECOND DI STRICT

______________________________________________________________________________ HYTEL GROUP, I

NC., ) Appeal from the Circuit Court ) of Ka ne Co un ty. Plaintiff-Appellant and Cross-Appellee, ) ) v. ) No. 08--L--717 ) MICHELL

E Z. BU TLER, ) Honorab le ) Robert B. Spence, Defend ant-App ellee a

nd Cross-A

ppellant

. ) Judge , Pres idin g.

______________________________________________________________________________ JUSTICE SCHOSTOK d

elivere d the opini on of the c ourt: The pl ai nt if

f, Hyt e l Group, I

nc., file d suit ag ainst a former emp loy ee, the d efenda nt, Miche lle Butler, on December 15, 2008, alleging tha t she breached fi duciary du ties and made fraudulent misrepre sentation s. Butler filed two motions to dismiss the complaint, one based on section 2--615 of the Code of Civil Procedure (Code) (735 I LCS 5/2--615 (West 2008)) and the other premised on th e Cit izen Participation Act (Act) (735 ILCS 110/1 et seq . (West 200 8)), whic h provide s a procedure for

early- stage dismissals of certain claims and the opportunity to recover attorney

fees expended in defending against those claims. On April 30, 2009, the trial c ourt granted the motion based on the Ac t. The tr ial court later awarded Butler some, but not all, of the a ttorney fee s she requested. After its motion to reconsider was denied, H yte l appeal ed the dis missal of i ts complai

nt, and Butler c ross-ap pealed t he trial c ourt's r

efusal to award h er cer

tain of her attorney fe es. We affirm as modified.No. 2--09--1003

-2- FACTUAL AND PROCEDURAL BACKGROUND InFebruary

2008, Hytel hired B utler as comptroller for the company . On June 4, 2 008, Hytel's lender, GBC Funding, L LC, filed a verified complaint and an emerge ncy motion seeking

the appointment

of a receiver for Hy

tel. The complaint

alleged that Hy

tel was in default on several of its obligat ions under

the loan a greement, and t

hat beg inning in

January 2008 GBC F

unding had sent Hy tel seve ral notic es of def

ault. The complain t also alle ged tha

t, in May 2008, Hy tel enter ed into agree ments with GBC Funding under which GBC Funding would forbear from

exercising its right s under the loan agreement and Hy tel wo uld, among

other thin

gs, "e ngag e and ful ly c ooperat

e with

a Chief Res tructuri

ng Off icer" who was a

ccepta ble to GBC Funding. Jack Cochran was selected as the chief r

estructu rin g officer and

was reta ined as of May 21, 2008. H owever , Hy tel's pr esident, Scott Johansen, allegedly

did not cooperate with Cochran, refused to permit Cochran to contro l disburse ments, and continued to take money from the company

for his own u se. The complaint alleged that Cochran therefore resigne d on June 3, 2008. GB C Funding filed its s uit the following day. OnJune 10, 2008, Hytel fired Butler . On August 3, 2008, Butler filed a wage claim with the Illinois Department of L abor, seeking the pay ment of approximately $2,300 in final wag es. OnDecember 15, 2008, Hy tel filed a two-count complaint agains t Butler . Co unt I, titled "Breach of Fiduciary

Duty," a lleged that, as comptroller, Butler owed Hy tel a fiduciary

duty of loyalty and had a further duty

to disclose "all material informati on to managemen t." The complaint alleged that Butler breached these duties in t hat she: "had been unable" to prepa re financial state ments for the y

ear tha t ended in Decemb er 2007, and also f ailed to prepare

interim f inancia l stateme nts for any month during which she was employed; spoke with Cochran "on mul tipl eNo. 2--09--1003

-3-

occasions, including June 6, 2008," during which conversations Cochran told Butler of the status of GBC Funding 's litig ation ag ainst Hy tel and a ssured he

r that she would be kept informed; and did not advise Johansen of these conversations, or advise Hy tel's mana gem ent that GBC Funding "had promised Butler" that she c ould rema in as comp troll er in th e event that GBC Funding beg an exercising control over Hy tel through Cochran. The complaint allege d that Butler a lso breached her fiduciary duty in that

sh e deliberately

did not perform her duties (presumably , this refers to not preparing financial reports) "because of the developed

relatio nshi p wit h" GBC Fu ndin g. Imme diately

following this allegation, Hy tel alleged that Butler "wa s notcapable of performing the work as her

resume contained misrepresentations as to her competency ." Hyte l sought $1 million incompensatory da

mages for these allege d breaches of fiduciary duty and $3 million in punitive damages, along with the forfe iture and repay ment of all of the wages ever pa id to Butler. Incount I I, the fraud c laim, Hy

tel alleg ed generally

that B utler 's actions described in count Iwere done with the intent that Hy tel rely on her

and further t

hat Butler represented that she was "attemptingto prepare financial statements which would cure defaults and also allow thecompany t o obtain alternate financing." The complaint alleged that these representa tions were knowi ngl y false, "in that

at the time

she was discussing with [GBC Funding] and Jack Cochran employ ment that she wo uld be given once manage ment was replaced." The fra ud count also contained general allegations that B utler 's comm unica tion s wit h Coch ran, GB C Fund ing, and its au ditors we re "tothe detrimen t" of Hy tel, that H

yte l "rea sonably

relied on her re

present ations," and that H

yte l w a s "damaged thereby." Like count I , count II prayed f or a total of $4 million in damag es, plus in terest and costs.No. 2--09--1003

-4-

On Fe bruary 17, 2009, B utler filed two motions to dismiss the complaint, each arguing a different basis for dismissal. The first motion was based upon section 2--615 of the Code ( 735 I LCS 5/2--615 (West 2008 )) and argued that, even taking the allegations of the c omplaint as true, they failed to st at e a ca us e o f a ct io n f or br ea ch of

fi du ci ar y dut y or

for fra ud. Butle r also ar gued th at, altho ugh Hytel' s claims were based in part upon the filing of GB C Funding's receivership ac tion, Hytel failed to attach the relevant plead ings t o its compl aint. Butle r then attac hed va rious plead ings and motions fr

om that case tha t was mentioned by Hy tel in its complaint against her (the initial complaint and emergency

motion for appointment of a receiver, filed June 4, 2008; and a motion for order of replevin, filed July 24, 2008). Butler argued that these filings contradic ted the allegations of Hytel' s complaint, sho wing tha t she did no t cause H

yte l's def ault bec ause Hy

tel was in default before she was even hired. Butle r's second

motion was based upon the Act, and it argued that Hy tel's suit against her was inretaliation for her wage c laim. In su pport, B utler att

ached h er own affidavit , in which she averred th at sh e h ad ma de re pe at ed at te mp ts to ob ta in he r l as t p ayc he ck bu t h ad be en tu rn ed aw ay b y Johansen; that

eventually she

had told hi

m that if sh e did not r

eceive her pay she would

have to f ile

a wage claim with the Department of Labor; and that Johansen to ld her tha

t if she did

that, he would "sue [ her] a --, ho ney." Hytel fi led res ponse s to b oth m otio ns, ar guing am ong ot her th ings that the complaint pr operl y alleged t he clai ms th erein a nd th at a "pu rely priv ate" di sput e such as But ler's wage claim was not

within the scope of the Act, and attaching an aff idavit from Johansen denying that he and Butler ever discussed her wage claim or that he made the alleged statement. The motions were fu lly briefed

and on Apr

il 16, 2009, the trial

court he ard ora

l argument on the

motions.No. 2--09--1003

-5-

OnApril 30, 2009, the trial court issu

ed a writ ten deci sion in whic

h it found that, under the plain language of the Act, the Act applied t o Butler's wage c laim. The trial court further found that Hytel had not met the burden of provi ng, by clear

and convincing evidence, that Butler 's acts were notimmunized from liability by the Act. However, the trial court went on to consider the merits of Hytel's complain

t, reasoning tha

t a determination of whether Hy tel had stated

a viable claim ag ainst Butler would be an independent indicium of whether its suit was brought for an improp er purpo se under the Act. The trial court found that Butl er did not

have a f iduciar y r elationsh ip with Hytel but rath er an em ployee-e

mployer rela

tionship, and thus the complaint failed to state a cause of action for breach of fiduciar

y duty . The trial court further found that, even if Butler 's representations regarding her competen cy to prep are financial reports and perfor m other financial oversight tasks

were false, the compla

int did not su

fficien tly a ll ege the rem aining elements of fraud. Finally , the court found tha

t the comp laint as a

whole did

not alleg e any

facts su pporting the $4 milli o n in damages request

ed. The c ourt conc lu ded by dismissing the complaint pursuant to the Act and continuing the case for status and for the filing of a motion for attorney

fees. OnMay 14, 2009, Butler

filed a motion for attor

ney fees, se eking $ 38,233.50 . On the sa me date, Hytel filed a motion to rec onsider, in which it argued that Butler' s wage claim was not protected conduct under the Act and

that i t had adequately

pled its claims for breach of fiduciary duty and fr aud. In its mo tion to reconsider, Hyte l also noted that dismissals pursuant to section 2--615 are usually without prejudice, unless it is apparent that the plaintiff can prove no set of fact s that woul d entitle it to recover, and

it asked that the co

urt gra nt it 28 day

s in which t

o f ile an amended complain t. Hy tel did not a

ttach an y a mended c omplaint to

its brief, no r did it indicate in what

manner it proposed to amend its complaint. A few day s later, Butler filed a mot ion seeking "anNo. 2--09--1003

-6-

express order of dismissal of the complaint, with prejudice, " pursua nt to section 2--615, as an alternative basis for

dismissal in the event that the dismissal under the Act was later invalidated on appeal. Butler

also sought to recover attorney fees (bey ond those imposed under

the Act) pursuant to Supreme Court Rule 137 (155 Ill. 2d R. 137), onthe gro

und that th e entire

action wa s frivolou s. Each party

filed written responses to the other's motions. OnJuly 1 0, 2009, th e trial c ourt hea rd arg ument o n the motion s and then ruled. The trial court denied Hytel' s motion to reconsider and Butle r's motion for Rule 137 sanctions. The trial court granted Butler's motion

for a ruling on

her motion to dismiss pursuant to section 2--615, and ruled that sectio n 2- -615 provided an alternate ground for dismissal of the complaint (in addition to the dismissal under the Act). However, it held that the dismissal under se ction 2-- 615 would b e with prejudice only as to count I (the claim for

breach of fiduc iary

duty ), while th e di sm is sal of c oun t II (the fraud claim) would be without prejudice. Asto attorney fe es, the trial court ordered Butler to refile her motion for attorney

fees pursuant to the Act, distinguishing between the time spent

on each of her motion s to dismiss, "granting that there ma y be some overlap." Butler refiled he r motion for fees, subtrac ting ove

r $14,000 infees incurred solely

in connection with the section 2--615 motion butalso including a roughly equivalent amount of fees incurred since the da te of the earlier motion for fees. Hy tel responded, objecting that the reduced f ees still were not reasonable and that no new fees should be p ermitted . On Aug ust 20, 200 9, the tria

l court dis a llowed $4,30 6 of the requested fees because

they had bee n incurr ed in pre paring and pres enting t

he tw o motions for fees, bu t it granted the remainder of the fees requested ( $34,998.27), finding that the attorney' s time spent and hourly rates we re rea sonable. Hy

tel filed a timely notice of appeal, appealing from the trial court 's orders of April 30, July 10, and August 20, 2009 . Butler cross -appealed, arguing

that the ActNo. 2--09--1003

-7-

allowed her to re cover the attorney fees inc urred in prepar ing her section 2 --615 mot

ion to dismis s and the motions for fees. ANA LYSIS The Appeal We begin by

addressing the issues raised in Hytel's a

ppeal. Hytel first argues that the trial court erred in holding that Butler's ac t of filing a wage claim with the D epartmen t of Labor was protected under the Act. As this is an issue of statutory interpre tation, and additionally involves the revi ew of a dismissa

l, our re view is de novo . Lee v. John Deere I nsurance Co. , 208 Ill. 2d 38, 43 (2003). The Act bec ame law in August 2007. Section 5 of the Act provides some background on the impetus be

hind the A ct: "Pursuant to the fundamental philosophy of the Ame rican constitutional form of gover nment, it is declared to be the public policy of the State of Illinois that the constitutional rightsof citizens and organizations to be involved and participat e freely in the process of government

must be encouraged and safe guarded with great dilig en ce. The information, reports , opinions, claims, arguments, and other expressions provided by citizens are vital to effective law enforcement, the operation of g overnment, the making of pu blic poli cy and decisi ons, an d the continuation of representative democracy . The laws, courts, and other agencies of this State must provide the utmost protection for the free exercise of these rig hts of petition, speech, association, and government par ticipation. Civil actions for money da mages have been filed against citizens and organizations of this State as a result of

their valid exercise of their constitutional rights to petition, speakNo. 2--09--1003

-8-

fr ee ly, associa

te free ly, and other

wise par ticipate in and com

municate with gov ernment
. There has been a d

isturbing increa se in

lawsuits te

rmed 'St rateg ic La wsuits Ag ainst Public Participation' in government or 'SL APPs' as they a

re popularly c alled. The threat o f SLA

PPs signif

icantly chills and

diminishes

citizen pa

rticip ation in go vernmen

t, voluntar

y pu blic serv ice, and the exerc ise of the se importa nt constitu

tiona l rights. This abuse of the judi cial p rocess can and has be en use d as a m eans o f inti midat ing, harass ing, or pun ishi ng citi zens and or ganiz ation s for i nvol ving t hemselves in public affa irs." 735 IL CS 110/5 (West 2008). The Act is one

of many anti-SL APP statute s enacte d by

states in t he last several years. The archety pal SLAPP arises out of a scenario in which a g roup of citizen s voices t

o gover nment off icials its objections to a project by a developer, w

ho then sue s the group of citizens for defamation, intentional interference w ith econo mic interest, or some similar cause of action, alleging extraord inarily high damages. The purpose of the lawsuit is not necessarily to pre vail onthe claim (the lawsuit may well be mer itless) but to silence the citizens through the threat of damage s a nd litigationexpenses. E. Madiar & T. Sheahan, Illinois' Ne w Anti-SL

APP Statute , 96 Ill. B.J. 620 (December

2008). However, the Act (like m ost o ther an ti-S LAPP st atute s) is w ritt en bro adly enou gh to apply to the exercise of the constitutional rights of

speech and petition outside of the archety

pal scenario. See 96 Ill. B .J. at 621. The Act is designed to permit the summary dismissal of a SL APP and the rec overy

of some of the attorney f

ees and costs

incurre d as a re sult

of defending against a SL APP. As an initial matter, the Act immunizes from liability all "[a]cts in fu rther ance of the constitutional rights to petition, speech, associa

tion, and p articipa

tion in governmen

t," unle ss those acts were "not genuinely

aimedNo. 2--09--1003

-9-

at procuring favorable g overnment action, result, or outcome." 735 I LCS 110/15 (West 2008). The Act permits anyone who is def ending against a claim in a judicial proce edi ng to file a " motion to dispose of [the] claim *** on the g

rounds tha

t the clai m is based

on, rela tes to, or is in respo

nse to any act *** of the moving party in furtherance of the moving party 's rights of pet i tion, speech, association, or to otherwise participate in government." 735 IL CS 110/15 (West 2008). Upon the filing of such a

motion, disc overy

is stayed except in very

limited cir

cumstanc es, and the court m ust hear and dec ide the mo tion within 90 days. 735 I

LCS 110 /20(a), (b) (West

2008). The court m

ust grant t he motion a

nd dismissthe claim unless the nonmovant "has produced clear and c onvincing evidence that the acts of the moving party are not i mmunized fr

om, or are n

ot in furtherance

of acts immunized from, liability by this Act." 735 IL CS 110/20(c) (West 2008). If the motion is successful and the case is dismissed, the court must award the moving party reasonable attorney

fees and costs "incurred in connection with the motion." 735 I LCS 110/25 (West 2008). Hytel argue s that the l egisla

ture did not intend the Act to c over per sons filing

"priva te" cla ims suchas Butler's wage

claim, but only thos e persons who exercise their rights of free speec h and petition in connection with an issue of public concern. Hy

tel points to section 5 of the Act, which outlines the Act's purpose:

"It is in the public interest and it is the purpose of this Act to strike a balance between the rights o f person s to file la wsuits for

injury and the c onstitutional righ ts of per sons to petition, speak fr

eely , associa

te free ly, and other

wise par ticipate in gove rnment; to protect and encoura ge publ ic partic ipation in governme nt to the maximum extent permitted by law; to establish an efficient process for identification and a d judicatio n of SL

APPs; and toNo. 2--09--1003

-10-

provide for attorney's fees and costs to prevailing movants." 735 IL CS 110/5 (West 2008).

Hytel argues that this section demonstrates that the Act is concerned only

with citizen participation ingovern menta l deci sion makin g. Thus, it argues, the Act should not be read as allowing a litigant to bring a motion to dismiss under

the Act in

response to what it char acterize s as a pur ely private dispute. Inconstruing a statut e, our tas k is to "ascertain and give eff ect to the legislature's intent." Lieb v. Judges' Retirement Sy stem , 314 Ill. App. 3d 87, 92 (2000). The best ind icator of the legisl ature's intent is the plain language of the stat u te. Lee , 208 Ill . 2d at 43. "W hen th e stat ute's langua ge is clear , it

will be given effect without resort to other aids of statuto ry construction." Lee , 208 Ill. 2d at 43. Here, the lang uage of the Act does not restrict its application to those situations inwhich the person seeking its shelter exercised his or her r ight s of free spee ch and pe tition to advance some issue of

public concern. To the contrary, the scope of the Act is expressed in broad terms, protecting "[a]cts in furtherance of the constitutional rights to petition, speech, association, and participation in government *** regar dless of in tent or pu rpose ." (Emphasis added.) 735 IL CS 110/15 (West 2008). Moreover, section 5 of the Act specifically lists "claims" as a protected ty pe of communication with the government. 735 I LCS 110 /5 (West 200 8) ("The informa tion, rep orts, opi nions, claims, arguments, and other expressions provided by citizens are vital to *** the opera tio n of government *** and the continuation of re pr es en ta ti ve de mo cr ac y") . F in al ly, section 30(b) of the Act commands that

the Act is to "be construed liberally to effectuate its purposes and intent fully ." 735 IL CS 110/30(b) (West 2008).No. 2--09--1003

1 There is one exception to this rule that the motivation for the a ction is ir releva nt: if an action that would otherwise be protected under the Act was " not gen uinely aimed at p

rocurin g favo rable government

action, r esult, or outcome" --that is , the act or had no reasona ble expectation of s

uccess -11- The right to petition for

redress of g rievances is guaranteed by the first amendment to the United States constitution (U.S. Const., amend. I), and it includes the right to filea claim before a judicial or administrative body. Cali f ornia Motor Transport Co. v. Trucking Unlimited , 404 U.S. 508, 510, 30 L. Ed. 2d 642, 646, 92 S. Ct. 609, 611-12 (1972) (the right of access to the courts is an aspect of the fir st amendme

nt right to petition the government for redress of g rievances, and

one that extends to "all

departments of the Government," including administrative agencies). Although the right to petition overlaps in many respe cts with the right of free sp eech al so guar

anteed by th e first amendme nt, it provides additional protection for communication spe cif ically aimed at t

he redr ess of grieva nces. " By separa tely preser ving this right, t he Petition

Clause he lps to giv e person s a sense of participation

in their g overnme

nt, to bette

r inform t he gove rnment, a nd to provi de the opp ortunity for a peaceful settlement

of disputes, advancement of the law, and corre ction of social problems." C. Andrews, Motive Res trictions on Court Ac cess: A F irst

Amend ment C halle nge , 61 O hio St. L .J. 665, 674 (2000). We have no difficulty in c oncluding, as the trial court did, that Butler' s wage

claim file d with th e Department of Labor was an exercise of her right to petition for redr ess of grieva

nces. Se e Californ ia Motor Transport , 404 U.S. at 510, 30 L. Ed. 2d at 646, 92 S. Ct. at 611-12; see also 735 IL CS 110/10 (We st

2008) (de fining " gover

nment" to include departments and agencies of the state). The express language of the Act prote cts any action taken in furtherance of a pers on's rig ht t o petition, regardless of the person' s possibly selfish motivation 1 or the fact that the action migh tNo. 2--09--1003

inits petition or speech, but wishe d so lely to injure the other pa rty throug

h harassment, the imposition of costs, or delay --the action is not immunized. 735 ILCS 110/15 (West 2008). Hytel has not argued that this exception applies to Butler's wage claim.

2 The lack of a "public concern" restriction in the Act is not unusual a mong an ti-SLA PP statutes. Of the 27 states (a t last coun

t) that ha ve anti -SLAPP st atutes, perhaps one-third restrict protection to communications involving a matter of public concern. -12- involve a personal claim beforean administrative agency rather than testimony be fore a legislative bo dy, as in

the archety

pal example. 735 ILCS 1 10/1 5 (Wes t 200 8). As we have said, the la nguage of the Act is

the best evidence of the legislature' s intent in enacting it. Lee , 208 Ill. 2d at 43. The Act contains no "publi c conce

rn" re quireme

nt. Thus, r

egard less of whether B utler' s wage claim raised anissue of public concern, it is within the language of the Act and w as there fore inte nded to be prote cted by

the Act. 2 Inreachi ng the c onclusion

that the A ct does not req uire that the actor exercised his or her constitutional rights in connection with an issue of public concern, we a re not hold ing th at But ler's wage claim wa s a purel

y pr ivate disp ute, as Hytel clai ms. Although Illinois courts have held that wage claims do n

ot suffic iently

"str ik e at the heart of a citizen's social rig hts, duties, and responsi bilities" ( Palmateer v. International Ha rvester Co. , 85 Ill. 2d 124, 130 (1981)) such that the tortof reta

liatory dischar ge shou ld be expan

ded to enc ompass suc

h cla ims ( McGra th v. CCC Information

Services, Inc. , 314 Ill. App. 3d 431, 440 (2000)), the prompt pay ment of wages by employers

is not a mat

ter entir ely devoid of public concern ( Peopleex rel. Ma rtin v. Lipkowitz , 225 Ill. App. 3d 980, 985 (1992) ("[a]n em pl oye r's denial of benefits earned by its employees burdens the State financially and soc i ally, *** by d ecrea sing the

tax base a

nd potenti ally

depletin g StateNo. 2--09--1003

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assistance funds")). Inde ed, we presume that such public concerns underlie the deci sion t o aut horiz e the Department of

Labor to pursue wag e claims, rather than requiring unpaid employ ees to pursue their employers themselves. However, we ult imat ely expre ss no opin ion o n whet her But ler's w age claim involves a

matter of public concern be cause

such public concern is not dispositive under the Act. Hytel

cites Cal ifornia

case la w in support of its public concern argument, but its reliance on that caselaw is misplaced. California was one of the first states to enact anti-SL APP legislation, and it has a com

parativ ely well-de veloped b ody

of case law in con

necti on with its sta

tute. For this reason, Californ

ia law ma y be useful in shedding light on i ssues ar

ising und er anti- SLAPP st

atutes, including the Act. On this particular issue, however, California law is inapplicable bec ause the langua ge of its anti -SLA PP sta tute d iffers f

rom that of

our Act, imposing

in some inst

ances a requirement

that the communication involve a public concern in order to be protected. See Cal. Civ. Proc. Code §425.16(e)(3), (e)(4) (Wes t 2008 ) (if the statement was not made in a legislative, executive, or judicia

l procee ding, or

inconnection

with a matter under consideration by a legislative, executive, or judicial body, it must involve "an issue of public intere st" to be covered by the statute). By contrast, as we have discussed, the Act includes no such re striction. Accord in gl y, we are not persuaded by

Hytel' s reliance on California case law. Hytel next argues that Butler does not come within the protection of the Act because the actions that form

the basis

of its comp laint--B utler' s all eged breac hes of fiduciary duty and misrepresentations--werenotexercises of her right to petition, nor were they

protected in any

other way by t he Act. H

yte l asserts

that this is

a defense to dismissa

l under th e Act-- that "the

acts of the moving party [were] not immunized" from liability by the Act. Hytel arg

ues that, bec ause its la

wsuitNo. 2--09--1003

-14-

agains tButler was not premised on her protected action of filing a wage c laim, but on other actions that ar e not immuni zed under the Act, t

he trial c ourt's d

ismissal ba sed on the

Act was i

mp roper . Hytel argues that if the Act can be utilized to procure t he summary dismissal of any subsequent lawsuit between parties who were once adverse to each other on an issue involving the exercise of speech or pe ti ti on ri gh ts , n o m at te r h ow un re la te d t he su bs eq ue nt la ws ui t m ay be, the Act goes beyond what the legislature intended and could result in the dismissal of countless meritorious lawsuits and prevent the trial of any counterclaim. Hytel's argume

nt poses a question o f interpretat ion involving the Act. As written, section 15 permits th e filing

of a motion

to dismiss a

ny c laim that is

alleged to be either based on or brought in retaliation for

the movan

t's exer cise of h is or her first ame ndment rig

hts: "This Act appli es to any

motion to dispose of a claim in a judicial proceeding on the grounds t ha t the clai

m is based

on, rela tes to, or is in respon se to any act or acts of the moving party in further

ance of the moving party' s rights of petition, speech, association, or to otherwise participate in government." (Emphasis added.) 735 IL CS 110/15 (West 2008). Section15 furthe

r provide s that such exercis es of first amendme nt right s are immunized by the Act, unless they fall within a nar row exception: "Actsin furthe

rance o f the con stitutiona l rights t o petition, speech, association, and participation in the government are immune from liability, rega

rdless of intent or purpose, except when not genuinely

aimed at procuring favorable government action, result, or outcome." 735 ILCS 110/15 (West 2008). Becau se th e A ct allows a litigant to seek dismissal of not only those c laims arising directly out of his or her pr

otected action ( a defamation cla im premise d on the movant's protected speech, forNo. 2--09--1003

-15-

instance), but als o t hose claims allegedly brought "in resp onse to" ( i.e. , in retaliation for) the protected action, i t appears to apply

to claims t

hat are , on their

face, unrelated to the protected action. However, the Act

also per mits nonmova

nts to rais e the defense that "the acts of the moving pa rt y" were no t immunized f rom liabil ity by th e Act. Th is langua ge is contained i

nsection 20 of the Act, which immediately follows section 15 and se ts out the procedures to be utilized when a movant claims tha

t a lawsui t is subject to the Act and move s to dismiss it : "(a) On the filing of any

motion as described in Section 15, a hearing a nd decision

onthe motion m

ust occur within 90 da

ys a fter noti ce of the

mo tio n is given to the responde nt. *** (c) The court shall grant the motion and dismiss the j u dicial claim unless the court finds that the responding party has produc ed clear and convincing evidenc e that the acts of the moving pa

rty are not i mmunized fr

om *** liab ility

by t his Act." 735 ILCS 110

/20 (West 2008). The question thus becomes what that phrase--"the a cts of the moving party "--means. Hytel argues that "the acts of the moving party" refers to Butler's acts that for m the basis for its complaint--nam el y, Butler' s alleged failures to accura tely describe

her qualifications, prepare financial reports, and tell Hyte l 's m anagement about her conversations with GBC Funding and Cochran--and

that these acts are not immunized from liability by the A ct. In Hy

tel's vi ew, this interpretation

of the phrase i s necess ary

to prevent the Act from sweeping in claims that ar e unrelated to the core

first ame ndment conduct me ant to be pro tected by the Act merely be cause they are counter claims or were otherwise filed "in respon se to" the m ovant' s claim. H yte l argue s that,No. 2--09--1003

-16-

because Butler' s a ctions as alle ged in its complaint are not immunized by the Ac t, the trial court should have denied the motion to dismiss brought pursuant to the Act, and the trial court's a ward of attorney fe es under the Act should also be vacated. Butler count ers th at Hytel's appro ach wou ld hav e the ef fect of readin g the la nguage encompassingretalia

tory suits ("i n respons e to") o

ut of th e statute , becau se und er Hytel's interpretation

a suit that was not

directly base d on a movant's protected actions, but that nevertheless had clearly been bro ught "i n respons e to" tho se actions, could never be dismissed under section 20(c) despite being expressly

identifie d in section 15 as an appropr iate tar get for dismissal. Butler

argues that the Act should be construed t o give me aning to

all of its provisions, including the "in r esponse to" language, and that there fore section 20(c)'s lang uage regar

ding the "acts of themoving part y" must be interpreted to refer to the movant's pr otected actions, rather than the acts alleg edly forming the basis of

the complaint. Under this interpretation, Hy tel could defeat

Butler' s motion to di smiss under the Act only by

producing clear and convincing evidence that Butler's action of f iling a wage claim was not in fact

immunized by the statute, becaus e it wa s not genuin ely aimed at pro curin g a favora ble result from

the government. As noted, Hytel neither r aised nor proved this defense. Butler asserts that the trial court was theref ore cor rect in holding that Hy

tel did not e stablish a

ny d efense to her moti on to dismiss

under the Act. Ininter preti ng a sta

tute, we m

ust strive to interpr

et it so as t

o give me aning to

all of its provisions and avoid

interpre tations tha

t would re nder any provision superfl uous. Solon v. Midwest Medical Records As s'n , 236 Ill. 2d 433, 440-41 (2010). Reading the Act as a whole, we find that section20(c)'s phrase "the a cts of the moving party " is an un ambigu ous reference to the actions identified in section 15 as subject

to the Act's protection. Section 15 explicitly includes within theNo. 2--09--1003

-17-

Act's reach s

uits filed "in res ponse to" petitionin

g activ ity as well as those "based on" su ch ac ti vi ty, thereby encompassing facially

unrelated but retaliatory

claims. Section 15 also provides that the only circumstance in whicha petitioning activity is excluded from pr otectionis if that activity was "not genuinel y aimed a t procuring favorable g overnment action." Similarly , the sole manner in which

a motion to dismiss may

be defeated under section 20(c) is by establishing, by c lear

and convincing evidence, this same defense. This interpretation is consistent with the description in section 5 of the Act's purposes, which include preventi ng abus ive litig ation tha t chills the

exercise of first amendment

rights: t he targ et of such litig atio n may fee l just as intimidated by a facially unrelated but clearly r

etaliatory lawsuit as by

a lawsuit based more directly on the exercise of those rights. Hytel argues that, under this interpretation of the Act, no counterclaim or other c laim filed after a movant' s initial c laim could ever sur vive a mot

ion to dismiss under the Act. Hytel re asons that, because any

lawsuit represents an exercise of the plaintiff's r ight to petition for redre ss of grievances (see California Motor Transport , 404 U.S. at 510, 30 L. Ed. 2d at 646, 92 S. Ct. at 611- 12) and the Act co ntains no l angua ge res tricting

its scope to petitions regarding a matter of public concern, any

counter claim bro ught af ter an in itial cla im is filed would be considere d a claim brought "in response to" protected petitioning ac tivity and would therefore be barred by

the Act. We reject this argument because it ig nores the court's role in determining which claims wer e filed "in res ponse to" a protected first amendme

nt activ it y a

nd are therefor

e subject to motions t

o dismiss under the Act. Although the Act protects all lawsuits as petitioning a ctivity, not every counter claim or su bseque nt claim is

brough t with the r

etaliatory intent tha

t makes it s

ubject to dismissal under the

Act. Acc ordin gly , when a lawsuit does not arise directly out of the protected activity but instea d is alleg ed to have

been bro ught "i n respons e to" the protected activity, it becomesNo. 2--09--1003

-18-

vital that the trial court engage in a careful examination of the allegations of the complaint and the surrounding facts to d

etermine whether it is truly barre d by

the Act as a retaliatory

suit. We believe that this requirement will prevent the application of the Act bey

ond its intended scope. For instance, suppose that a homeowner sues a builder for breach of contract and

the builde

r files a counter claim for nonpayment or quantum me ruit . Under the Act, even though the dispute between the parties i s private, both of these claims represent the litig ants' exercise

of their right to petition the government for redress of

grieva nces, an d thus both

claims are protected activity under the Act. However, that does not mean t

hat the c laim that happens to have be en filed

later (i nthis example, the counter claim) may be automatically dismissed under the Act. Instead, the court

must determine whether the laterfiled claim is retaliatory. If it states a potentially valid cause of action

and seeks damages within the ordinary range recove rable un der the facts of the case, and ther e are no other facts sugg esting an intentt o chill the other

party 's rig ht to seek redres s, then the

later cl aim has no t been br ought " in response to" the other party

's exercise of first amendment rights within the meaning of the Ac t
. Thus, it would not be subject to a motion to dismiss u nder the Act. We an

ticipate that the v ast majority of counterc laims will lie outside the Act's coverage. Determiningthe Act's application to possibly retaliatory

claims must be done on a c as e- bycasebasis. We note that, in this case, the trial court conducted a pain staki ng analysis of whethe r Hytel's suit was a retali atory claim tha t fell with in the Act or a vali d claim tha

t simply happene d to have been filed after Butler filed her wage claim. I

n doing so, the trial court considered whether the complaint stated a valid claim and concluded that it did not. This was an appr opriate in qu ir y, because retalia tory intent may

be infer red whe n a claim l ackin g merit is filed shortly after the exercise of protected rights. See Herman v. Power Maintenance & Co nst ruc to rs, LLC , 388 Ill. App.No. 2--09--1003

3 Alth ough Hytel is incorrec t to fear the wholesale dismissal of all count erclaim s, the scope of the Act is unquestionably broad. See 96 Ill. B.J. at 620-21 (as written, the Act appears broader thanany other a

nti-SLAPP statute). We note that only one other ant i-SLA

PP sta tute cont

ains a similar provision including claims br ought " in respon se to " p rotected activities. See Utah Code Ann. §78B--6--1403 (West 2008). -19- 3d 352, 364 (2009) (lack o f a proper basis for action may raise the inference that true motive was retaliatory

); Ho ffelt v. D epartme

nt of Huma

n Rights , 367 Ill. App. 3d 628, 638 (2006) (temporal proximity between a protected activity and an adverse action may

indicate retaliatory

intent). The trial court al so conside

red the e xtraordina

rily high da mages s ought in

this case and

concluded that the co mplai nt fai led to suffi cient ly allege any fac ts to support such a high ad damnum . Again, the trial court appropriat ely

to ok into account the inference that extremely high damages that are not supported by the fac ts alleged are intended to strike fea r into the defendant rather than being agoodfaith estimate of the exte

nt of the in

jury sustaine d. See M. Sobczak, SLAPPed in Illinois: The Scope and Applicability of the I llinois Citizen Participation Act , 28 N. Ill. U. L . Rev. 559, 563 (Summer 2008) (a complaint

seeki ng c ompensatory dama ges in the millions is one hallmark of a SLAPP). Here, our review of the record supports the trial cour t's determination that Hy

tel's co mpl aint fell within the Act's description as a claim filed "in re sponse to" But l er's w age c laim. How ever, th is determi nationwas base d on the al legati ons and fa cts of the case at hand and theref ore can not b e applied i n a blanke

t fashion to claims t

hat may arise in other ca ses. 3 Hy tel nex t argue s that, if t

he Act is i

nterpre ted as pe rmitting the dismiss al of its la

wsuit agains tButler, the Act is unconstitutional "as an infringement on the judiciary ," because it "chang es the burden of proof, changes the r ules regarding wh e n discovery c an be commenced, change s theNo. 2--09--1003

4 After filing its notice of appeal and its opening brief, Hy tel served notice of its claim of unconstit utionality and a co py o f its brief upon the Attorney General as required

by Supreme Court Rule 19 (210 Ill. 2d R. 19). The Attorney General did not seek to intervene or file a re sponse. -20- rules regar

ding mer itorious pl eading s (Rule 137 ), and ma kes ever y c ounterc laim *** a

questiona

ble act under the *** Act." 4 Butler argues that Hy tel forfeited this argument by failing to raise it in the trial court. We agreethat the record is devoid of any indication that Hytel challeng ed the constituti onality

of the Act below. A

reviewi ng cour t will not consider arguments not present ed to the trial court. In re County Treasurer and ex officio C ounty Coll ector , 373 Ill. App. 3d 679, 702 (2007). That t he argu ment concern s the constitutionality of a statute does not make a dif ference. Villareal v. Peebles , 299 Ill. App. 3d 556, 560 (1998). Moreover, e venif the argument had

not been forfeited for failure to raise i

t below, it would be f

orfeite d for lac

k of support in

this cour t. 210 I ll. 2d R. 341(h)(7). Hyte l's entire argument regarding the const itut ional ity of th e Act co mpris es a page and a half and does not identify either the "discovery

rules" or the "burden of proof *** established by the leg islature " that the

Act purp ortedly

contravenes, and it does not explain why the Act violates the separation-of-powers doctrine, if that is what Hy tel is contending. "A reviewing court is entitled to ha ve th e i ss ue s b ef

or e i t c le ar ly d ef

in ed an d i s n ot si mp ly a re pository in which appellants may dump the burde

n of arg ument and

resear ch; an appe llant' s failure to properly present his own arguments can amount

to waiver of tho se claims on appeal." People v. Chatman , 357 Ill. App. 3d 695, 703 (2005). For all of these reasons, we find that Hytel has for

feited its argument that the Act is unconstitutional. Hytel's final ar

gument on appea

l is that the trial court erred in dismissing with prejudice count I of i ts complai

nt, the breach of fiduciary duty claim, pursuant to section 2--615. A s we haveNo. 2--09--1003

-21-

upheld the trial court' s dismissal

of Hy tel's e ntire co mplaint und

er the Ac t, we nee d not rea

ch this argume nt. However, we note that even if we had not affirmed the dismissal under the Act, t he resul t would be unchanged. Hy

tel has not appealed the trial court's alterna te dismissal of its complaint under section 2--615, only the f act that the dismissal was entered with preju

dice as to c ount I . We conclude below that the dismissal of count I with prej udice wa s not an ab use of discretion and, as Hytel chose to a

ppeal r ather than replead count II, count II remains dismissed as well. Flores v. Palmer Marketing, I

nc. , 361 Ill. App. 3d 172, 179 (2005). The trial court

dismissed count I on the ground that unde r Ill inois law a

n employ ee who is notan officer

or director of a c orporat

ion does not owe a fi duciary duty to the corporation, and thus the complaint did not adequately plea d a fiduciar

y relation ship. Hy

tel does not argu

e that co unt I should not have been dismissed at all, bu

t rather that the dismissal should have been without prejudice so that

it could amend its complaint to remedy the de ficiencies. However, Hytel did not provide the trial cour

t with an amended complaint that it wished to file, nor did it identify in a ny oth er way (e ither to the trial court or on appeal) the amendments that it believed would cur e th e failure to state a claim. The decision whether to permit the amendment of a complaint is a matter within the trial court' s discretion, and we will not r everse its decision absent an abuse of discretion. Alpha School Bus Co. v. Wagner , 391 Ill. App. 3d 722, 749 (2009). Th e r ig ht to am en d a co mp la in t i s n ot ab so lu te . G en er al ly, a trial court sho uld exerc ise its discretionliberally in favor of allowing amendments to pleadings if doing so will further the ends of justice. Alpha School Bus , 391 Ill. App. 3d at 748. However, one of the pr imary factor s that a trial court sho

uld consid

er in mak ing this d etermina tion is whe

ther the proposed amendme

nt would

cure the defective pleading. Alpha School Bus , 391 Ill. App. 3d at 748; see also Edwards v. City ofNo. 2--09--1003

-22-

Henry , 385 I ll. App. 3d

1026, 1032(2008). Where the party seeking to ame n d does not attach a proposed amended pleading to its mot ion or othe

rwise spe cify

the new a

llegat ions that it

would in clude, a trial court has no basis on which to consider whether the amendment would cur e the defect s in the cur

rent ple adin g. Here, H

yte l has not submitted a proposed amended pleading or identifie d any

new alle gations

that it wished to make. (I

ndeed, H yte l did not ev en move to amend its pleadings, but simply included a request to do so at

the end of its motion to reconsider.) Nor has Hytel shown that t he legal basis for th e tria l cour t's dismissal o f count I was incorrect. The sole c ase Hy tel cites insupport of its assertion that it could successfully a mend its compla

int if per mitted to do so is distinguishabl e, as it is a federal criminal case reg arding an enhancement under the sentencingguidelines for abuse of a position

of trust. United States v. Deal , 147 F.3d 562 (7th Cir. 1998). Accord

ingly, the tria

l court did not abuse its discretion in dismissing count I with prejudice. The Cross-Appeal Inher cro ss-appe al, Butle r argu es th at t he trial court erred in deny ing her any

recovery for the attorney fe es she incurred in connection with (1) the prepara tion and presentation of her motions for att orney fe es, and (2) her motion to dismiss pursuant to section 2--615. Hy tel did not fi le an y response to Butler's cross-appeal. Howe ver, as the issue is relatively straightforwa

rd, we may consider Butler's argument despite the a bsence of a response brief, pursuant to First Capitol Mortga ge Corp. v. Talandis ConstructionCorp. , 63 I ll. 2d 128, 1 33 (1976)(a revi ewing c ourt shoul d decide the merits of an appeal where the rec ord is simple and the claimed error

is such that a decision can be made easily

without the aid of an appellee's brief). As Butler n

otes, the parties t o a lawsu it must ordi

narily bear the ir own legal expenses in the absence of a fee-shifting statute. However , t he Ac t contains such a fee-shifting provision, statingNo. 2--09--1003

-23-

that "[t]he cou

rt shall a ward a moving pa

rty who prev ails in a mo tion under this Act r

easonab le attorney' s fees and costs incurred in connection with the mo tion." 73 5 ILCS 110/25 (West 2008). The trial court

interpre ted this pr

ovision to me an that B utler co uld be awarded those attorney fees and costs ass ociated

with her m

otion to dism

iss based on

the Act, but not those incurred in preparing either her motions for attorney fe es or her motion to dismiss pursuant to section 2--615. The trial court 's decision

on both poin

ts raised in the cross-appeal rested on its interpretation of the Act, and we there fore re

view it de novo . Lee , 208 Ill. 2d at 43. On several occasions, this court has held that a statute authorizingthe recovery of attorney fees also authorizes the recovery of fees incurred in preparing the motion or petition for fees. See Inre Marriage of Powers , 252 Ill. App. 3d 506, 512-13 (1993) (section 508 of the Illi nois Marri age and Dissolution of Marriag e Act permitted the trial court to award the wife attorney fees incurred inconnection with her

fee pet ition); Wayne Township Boa rd of Auditors v. Ludwig , 154 Ill. App. 3d 899, 909-10 (1987) (where township officer wa s require d to reta inprivate counsel due to conflict of interest and statute required that his fees be paid in that s ituation, officer could recover fee s incurred in connection

with motion

for fee s); Racko w v. Hu man Ri ghts C omm'n , 152 Ill. App. 3d 10 46, 1064 (1987) (where I llinois Human Rights Act provided for the award of attorney fees to a successful litigant , inclusion of time sp ent prep aring m otion for fees wa s appropr

iate). N everthe less, in each c ase the award of fees must be evaluated in lig ht of the language of the statute a tissue and the overall purpose of the statute. Powers , 252 Ill. App. 3d at 513. Here, the statute authorizes the recovery of attor ne y fees " incurred in connection with the moti on" to dismiss brought pursuant to the Act. 735 IL CS 110/25 (West 2008). " One of th e fundamental principle s of statut ory construction is to vie

w all prov

isions o f an enac tment as aNo. 2--09--1003

-24-

whole," and thus "words and phrases must be interpreted in light of other relevant provisions of the statute." J.S.A. v. M.H. , 224 Ill. 2d 182 , 197 ( 2007). Accordingly , section 25 of the Act must be read togethe r with section 5, whic

h li sts p roviding for "attorney 's fees and costs to prevailing movants" as one of the purposes of the Act, and sect ion 30(b), w hich commands that the Act be construed liberall y to fully effec tuateits purposes and intent. 735 IL CS 110/5, 30(b) (West 2008). In Way ne Townsh

ip , we com mented that, in general, refusing to award fees incurred in the preparation

of a motion tha

t was nec essary

to secur e the aw ard of f

ees to a v ictorious party "would dilute the effect of the statute by requiring successful litigants to incur additional costs to enforc e their rights." Way

ne Townsh

ip , 154 Ill. App. 3d at 910. We believe that, inasmuc h as the Act mandates the award of certain attorney fees and costs to a

successful movant, it thereby requires the

succes sful movant to prepare and present a fee petition. Just as in Way ne Townsh

ip , refusi ng to

r eimburse the movant for this necessary expense would run counter to the express purpose of th e Act. Reading all of the provisions of the Act to gether, theref

ore, we believe that sec tion 25 per

mits the recovery

of attorney f

ees incurred

in pre parin g and pr esent ing a motion for fees. We therefore modify the judg ment in fa

vor of B utler to in

clude an add itional $4, 306, the a mount pre

viously identified as repr esenting the fee s that w ere disallow ed because they were incurred during the preparation and presentation of her motions for fe es. Th e att orney fe es and costs associated with Butler's motion to dismiss pursuant to section 2--615 stand on a different footing, however, f or they wer

e not necessary

to advance the anti- SLAPP purposes of the Act. While it may have be en c ommen dable caution on the part of Butler and her at to rn eys that led her to file a section 2--615 motion at the same time as her mo tion under

the Act, this was a strategic decision and not one compelled by the Act, and therefore the Act does not relieveNo. 2--09--1003

-25-

Butler of the costs of

that decision. See also Sandholm v. Kuecker , No. 2--09--1015, slip op. at 43 (October 18, 2010). We therefore affirm the trial court' s order denying Butler attorney

fees and costs incurred in connection with her section 2--615 motion to dismiss. This limitation on the fees and costs recoverable under the Act does not leave SLAPP defendants utterly without possible remedies for the leg al expense s they

may have incur

r ed apart from those recoverable under the Act: to the extent that a SLAPP (or any other lawsuit) is not "well gro u nded in fact and *** warranted by existing law or a good-faith argume nt for the extension, modification or reversal of existing law,"

or is "interposed for any

improper

purpose, such as to harass or to cause unnecessary delay or needles s increase in the cost of litigation," it may be subject to

sanction s pursuan

t to Supreme Court Rule 137 (155 Ill. 2d

R. 137), whichcould inc lude attorney fees an d costs not

covere d by

the Act.

The judgment of the circuit court of Kane County is affirmed as modified. Affirmed as modified. BOWMAN and O'MAL

LEY, JJ., concur.