SECOND DIVI SION MARCH 31, 2010

1-08-2936 ENTERPRISE RECOVERY SYSTEMS, INC., ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) Co ok Co un ty. ) v. ) No. 06 L 7643 ) RHONDA SALMERON, ) Honorab le ) Bill Taylor, Defend ant-App ellant. ) Judge Presi ding.
PRESID ING

JUSTICE

CUNNI NGHAM de livered

the opinion of the c ourt: The defendant, Rhonda Salmeron (Salmeron), appeals from the entry of summary

judgment for the plain tiff, Ente rprise Re covery

Syst ems, I ncorpor ated (En terprise ), by

the cir cuit court of Cook County. The circuit cour t awarded Enterprise $150,000 plus unspecified costs in Enterprise’s lawsuit against Salmeron for fraud in the inducement a nd breach of her du ty of loyalty to Enterprise, her former employ

er 

### . On appea

l, Salmeron assert s that the circuit court erred when, as a sanc tion for the repeated contumacious behavior of one of her lawye

rs, the court ba

rred Salmeron from presentingany evidenc e supporting her defense or her counterclaim. Salmeron also contends that Enterprise’s pleadings did not establish the elements for frau d in the inducement, and did not establish that Salmeron owed or breached a duty of loy alty to Enterprise. Finally , Salmeron contends that t he circ

uit court e

rred in f ailing to grant her postju

dgment “ emerg ency

motion” to v acate

th e judgment against her and

dismiss the lawsuit, based on Salmeron’s alleged immunity under section1–08-2936

2

15 of the Citizen Participation Act (735 IL CS 110/15 (West 2008)). We affirm the judgment of the ci rc ui t c ou rt of

Co ok Co un ty. BACKGROUND Salmeronwas Enterprise’s genera l manager and director of operati ons from July

12, 1998 until she was f

ired on July

31, 2002. E

nterpris e is in the business of the recovery

and resolution of delinquent

student loans. En terprise a lso provides third-party ser vice on loan accounts for the United States Department of Ed

ucation (Depar

tm ent of Education). After Salmeron was fired by Enterprise, she sued Enterprise and its president, Sam Tornatore, for sexual harassment. In March of 2004, the parties settled the disput

e, with Salmeron

signing a gene ral rele ase of c laims ag ainst Enterprise and Tornatore in return for the pay ment to her of $300,000. The release stated in pertinent part that in consideration of the $300,000 payment, Salmeron foreve r discha rged a nd relea sed Enter

prise fr om: “allactions [and] *** claims *** relating in any wayto event

s
occu rring prior to and

including

the date o

f execution o

f th e Agreement

*** growing out of

or related

in any way *** to all known and unknown *** damages or consequences relating

to [Salmeron’s] employment

[ by Enterp rise ].” (Emphasis added.) The money was paid to Salmeron in installments and the fina l payment was

made on April 15, 2005.1–08-2936

1 An abbreviation of the Latin phra se, “ qui tam pro domina rege quam pro se ipso in hac parte sequitor ,” which is translated as “[one] who pursues this action on our Lor d the King’s behalf as well as his own.” Vermont A gency of Natur al Resour ces v. Un ited State s 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). 3 Less than four

months af

ter that f inal pay ment was made, Salmeron brought a qui tam 1 lawsuit in federal court against Enterprise on behalf of the federal

government and herself. Qui tam lawsuitstypicall y allege that an in dividual or entity

has defr auded the gover nment. They ar

e brought by a private individual on behalf of the government, a lthough the government may choose t o intervene in the action and carry the l itigation forward in lieu of the individual plaintiff. I n that event, th e individu

al plainti ff is entitled to ashare of any funds recovered from the wrong doer by the gover nment. Vermont A

gency of Natur al Resour ces v. Un ited State s ex rel. Stevens , 529 U.S. 765, 768-70, 146 L. Ed . 2d 836, 84 2-44, 120 S. Ct. 1858, 1860-62 (2000). In parag raph one of her qui tam lawsuit, Salmeronalleged that damages and pe nalties assessed against Enterprise, by her estimate, would amount to over $8 million. Salmeron’s complaint alleged t hat Ente rprise had submittedfalse statements, false claims, and false rec ords to the Department of Edu c ation in viol ation of the False C laim s Amen dment s Act o f 1986 (31 U. S.C. §§372 9 thro ugh 3732 (2000)). Salmeron’s complain

t also stat ed that du ring he r employ ment with E

nterpris e, she dis covere d some of these al legedl

y w rongfu l acts by Enterpr ise employees, although she never notified any one at Enterpr ise about the

wrongd oing dur ing her employ ment. Salmer on subsequently added se veral other corporations and one individual as defendants in the qui tam lawsuit


### . The qui tam lawsuit was initially dismissed because of the contumacious and d ilatory conduct1–08-2936

4

of one of Salmer

on’s lawy ers, who , over a p eriod of

three y ears, c ontinually

failed to meet discovery dead lines and f

iling deadlines, and failed to appear at sche duled status conferences. The feder al districtcourt dismissed

the lawsu it becau se of this

behavior, but then reinstated the lawsuit with the admonishmentto the lawyer in que stion that an y f urther misbehavior would have severe consequen ces. The same law ye r was lat er reve aled to ha

ve leake d, to a Web s ite spec ializing i n publishing leaked d

ocuments , a confi dential a greement e ntered

into by Enterprise and two of the other defend ant co rporat ions in th e pend ing qui tam lawsuit. T he lawy er leak ed this doc

ument in direct breach of a confidentiality agreement with the three corpor ations that wer e pa rties to the agree ment. The federal district court then dismissed Salmeron ’s qui tam lawsuit with prejudice, ascribingthe lawy

er’s be havior to Sa lmeron. T

hat dismiss al was upheld on ap peal on th e same basis. Salmeron v. Enterprise Recovery Systems, I

nc. , 579 F.3d

787 (7th Cir. 2009). In its opinion, the United States Court of Appeals for the Seventh Circuit also rejected Salmeron’s claim that the dismi ssal would harm the interests of the federal gove rnment. The federal court of appea ls noted that the federal government chose not to intervene in the qui tam lawsuit, despite its statutory right to do so. Salmeron , 579 F. 2d at 797-9 8. I t is noteworthy that the f

ederal gover nment re gularl

y intervenes in meritorious qui tam lawsuits. In the qui tam lawsuit, Enterprise had filed a cross-claim against Salmeron for fra ud in the inducement

and breach of fiduciary

duty. I t also asserted an

affirma tive def ense bas ed on the r

elease signed by Salmeron when she

settled h er sexual harassment la wsuit against Enterprise and Tornatore. The federal district

court fo und that th

is defen se was not “a predicate for dismissal” of Salmeron’s lawsuit. Howeve

r, two ad ditional e vents occ urred. F irst, at the federal district court’s sugge stion,1–08-2936

2 No issue of res judic ata or collateral estoppel was rais ed by

any of the pa rties with respec t to the ef

fect of the fede ral dismis sal on any

claims or cross-c laims in the

State law suit. 5 Enterpr ise withdrew

its cross- claim ag ainst Salme ron and in ste ad f

iled this la

wsuit in the

circuit court of Cook County, maki ng the same allegations against Salmeron as pr eviously made in the federa l case. Se cond, Sal

meron’s qui tam lawsuit was dismissed with prejudice. 2 The instant lawsuit now on appeal before us was filed by Enter prise on July 20, 2006. In the lawsuit, Enterpr

ise alleg ed that Sa

lmeron ha d committe d fraud i

n the induc ement ag ainst Ente rprise and had breached her duty

of loyalty

to Enterprise. En terpr ise alleged that Salmeron committed fraud by signing

a general release

of liability while knowing that she ha d uncovered evidence which purporte dly

showed that Enterprise had def rauded t he Department of Education and which she planned to us e as on e basi s for f ilin g a qui tam law suit aga inst Enter prise in f ederal court. Enterpr ise alleged that Salmeron had breache d a d uty of loy

alty which she owe d to Enterprise by failing to disclose to Enterprise the evidence of fraud that some Enterprise employ ees had defrauded the Department of Education. Salmeronfiled a f

ive-cou nt counte rclaim a gainst E nterpris e in the circuit court lawsuit. But during the course of pretrial activities in the lawsuit, Salmeron was sanctioned because of contumacious behavior

by h er trial

lawy er. This i s the same

lawyer w ho represented Salmeron

in the qui tam lawsuit, in which his misconduct also resulted in sanctions against Salmeron. The lawyer and his law firm represented Salmeron in the c ircuit court lawsuit filed against her by1–08-2936

3 During the cour se of this a

ppeal, w e gran

ted the mo tion of the

lawy er and hi s law fir

m to withdraw from rep resentin g Salmer on on appe al.

6 Enterpr ise an d, in it ia ll y, on appea l before this cour t. 3 It was the beha

vior of th is lawy er, as th e case progressed

in the cir cuit court of Cook County, which prompted the trial court to bar Salmeron from presentingany evidenc e in support of her defense or her counte rclaim. That lawyer repeatedly failed to answer Enterprise’s discovery re quests, including requests for admission, even when ordere d to do so by the trial court. The lawy

er alsofailed to

appear at several hearing s scheduled by the tria l court. As a consequence of these cumulative ac tions in violation of the court’s orders, and pursuant to Supreme C ourt Rule

219 (134 Ill. 2d R. 219), the trial court barre d Salmeron from presenting any eviden ce in support of her defense or her counterc laim. Enterprise then moved for summary judgment on both counts of its com

plaint. Enterprise’s motion for summary judgment was supported by an affi davit of E

nterpris e’s pre sident, Sa

m Tornatore. I

n his affidavit, Tornatore stated that in the qui tam lawsuit, Salmeron had produced Enterprise company log reports purporting to document her claim that certain employe es of Enterprise were eng aged in a pattern or practice of falsify

ing billing to the Department of Education by claiming telephone calls and skip trace activities which had not occurred. Tornatore’s affidavit stated that these log r eports were the prope

rty of Enter prise an d must have been stol en by

Salmeron

while she

was emp loy ed by Enterpr ise. Copies of the reports were attached as exhibits to Enterprise’s motion for summary judgme nt. Tornatore also stated tha t by failing to alert him to these alleged activities by Enterprise e

mployees, Salmeron

deprive d Enterpr

ise of the oppor tunity to stop the alleged improper activities. Tornatore f urther asserted that in making the full payment of $300,000 to Salmeron, Enter prise and he had relied on Salmeron’s1–08-2936

7

representations in the release which she sig ned. As additional support for its summary judgme ntmotion, Enterpr

ise appe nded as a n exhibit its request s for admission, which Salmeron had never answer ed. As Sal

meron concedes on appea l, the failure

to answe r reque sts for ad

mission mea

nt that all f actual s tate ments in the requests were deemed to be admitted by Salmeron. 134 I ll. 2dR. 216; Robbins v. Allstate Insurance Co. , 362 I ll. App. 3d 540, 542-43, 841 N.E.2d 22, 25 (2005). Th us, Salmer on admitte d the follo wing fa cts. Before signing the release in settlemen t of the sexual harassment lawsuit against Enterprise and Tornatore, Salmeron believed, and told her lawyer , that Ente

rprise w as submitti

ng fals e claims, false statemen ts, and fals e recor

ds to the Department of Education. Before signing the re lease, Salmeron gathered documentation from Enterprise to support this belie f and provided her lawy er with that documentation. When she signed the release, Salmeron did not intend to release all claims arising fromher employment with Enterpr ise, as the release stated she wasdoing. Sh e knew th at she wo uld be bringi ng a qui tam lawsuit against Enterprise. After rec eiving the final pay ment required

by the releas e, Sal meron contacted the Department of Educa tion about her belief that Enterprise was submitting false c laims, fa lse state ments, an d false r ecords. During

her empl oym ent w i th Enterprise, Salmeronnever not if

ied Enter prise’s p residen t, Sam Tornatore, a

bout her b elief tha

t certai n emp loyees

of Enterprise were submitting false claims, false statements and false recor ds to th e Department of Education. Salmerondid not respond t o Enterpr ise’s moti on for sum

mary judgmen t, despite a briefing schedule ordered by

the trial court. On May 1, 2008, the trial court granted Enterprise’s motion for summary ju dgment on both counts of its complaint: fraud in the inducement and breach o f1–08-2936

8

Salmeron’s duty

of loy alty to Enterprise. A prove-up hearing wa s held on June 2, 2008, to determine damage s, and the trial cou rt awarde d Enterpr

ise $150,0 00 in dama

ges, plu s unspeci fied cos ts. Salmeronhas not included a transcript of that hearing in the re c ord on appeal to this court. On September

19, 2008, Salmeron filed an “emergency motion” in the tria

l court to d

ismiss the circ

uit court lawsuit, asserting for the first time that the Citizen Participa tion Act ( 735 I LCS 110

/15 (West 2008)) granted her immunity from liability for filing the qui tam lawsuit and also asserting that her immunity extended t

o the laws uit filed a gainst her by E nt er pr is e i n t he ci rc ui t c ou rt of Co ok Co un ty. The trial court de nied that motion. On September 25, 2008, the trial court entered a final and appeala ble order on the summary judgment entered in favor of Enterprise . On that date the court also granted Enterprise’s motion to dis miss all of the rema ining co unts of Salmer

on’s coun terclai m. Onappeal to this court, Salmeron has not sought to overturn the dismissal of her counterclaim but rather focuses on the court’s imposition o f sanctions aga inst her a nd its entry of summary

judgment for Enterpr ise. Salme

ron filed a timely appeal i n this court from the judgment of the circuit court of Cook County. ANA LYSIS We first consider whether the trial court erred in the sanctions it imposed on Salmeron for the conduct of her trial lawy er. The imposition of sanctions is a matter left primari ly to th e discretion of the trial court, and only upon a showing of clear abuse of that discre tion will the trial court’s decision

be overt urned on appeal. Illinois case

law docume nts the great power placed in a trial court’s hands to enforce its authority with respect to contumacious behavior by a party or

the party’s lawyer. Lavaja v. Carter , 153 Ill. App. 3d 317, 323-24, 505 N.E.2d 694, 698-99 (1987) (no1–08-2936

9

abuseof discr

etion in str

iking the defenda nt’s plea dings an d enteri ng a de fault judg

ment ag ainst him because he failed to co m ply

with the tr

ial cour t’s orde rs and dis covery

rules); In re Marriag e of Gluszek , 168 Ill. App. 3d 987, 992, 523 N.E.2d 126, 129 (1988) ( trial cou rt did not a

buse its discretionby striking the de fenda nt’s pleadings and barring his testimony because the defendant repeat edly failed to respond t o interro gatori es); Smith

v. Black & Decker (U.S.), I nc. , 272 Ill. App. 3d 451 , 460-61, 650 N.E.2 d 1108, 111 5-16 (199 5) (no ab use of dis cretion

by t he trial court i n barring the testimony

of witnesses who were not disclosed in a timely fashion). The rec ord esta

blishes tha

t Salmeron ’s trial la

wy er repe atedly

and witho

ut explana

tio n faile d to respond t

o Enterpr ise’s re quests for discovery and requests for admission, even when ordere d to respond by the trial court. T

he lawyerdid not answer, obj ect, or r equest a n extension

of time to respond to any of Enter prise’s r equests. The lawye

r also, without explanation, failed to appear for hearin gs scheduled

by the trial court. As Ente rprise argues, these actionsby Salmeron’s trial lawy er prevented Enterpr ise from prepari

ng for a nd prope rly prosecu ting its la wsuit. On a

ppeal to t his court, Salmeron ’s brief

s have fa iled to disclose any satisfac tory explanation for the behavior of her tr ial lawyer. A s we have noted, this same ty pe of conduct, by

this same lawyer, r

esulted in th e dismissal of Salmeron’s qui tam lawsuit in federa l court. G iven the broad disc retion a fforde d to trial courts, we find no abuse of discretion in the trial court’s ruling that barred Salmeron from presenting any evidenc e in her defense or in support of her counter claim. Turning to the entry of summary judgment in favor

of Ente rprise, our revi ew is de novo. Bagent v. Blessing , 224 Ill. 2d 154, 163, 862 N.E.2d 985, 991 (2007). Upon examination of the pleading s, depositions, an d admiss ions, if no question of material fact exists, then we must determine1–08-2936

10

whet her the movant is entitled to judgment as a matter of law. Outboard Marine Corp. v. Liber t y Mutual Insurance Co. , 154 Ill. 2d 90, 102, 607 N.E.2d 1204, 1209 ( 1992); Gas ton v. City of Danville , 393 Ill. App. 3d 591, 601, 912 N.E .2d 771, 779-80 (2009). In this case, the tria l court found th at En te rp ri se ha d s uf

fi ci en tl y all eged that Salmeron committed fraud in the inducement. The elements of that tort are: a false representa tion of material fact, made w ith knowledge or belief of that re pr es en ta ti on ’s fa ls it y, and made with the purpose of inducing another party to act or to refra in fromac ti ng , w he re th e o th er pa rt y re as on ab ly r elies upon the representation to its detriment. Phil Dressler & Associates, Inc
. v . Old Oak Brook Inve stment Corp. , 192 Ill. App. 3d 577, 584, 548 N.E.2d 1343, 1347 (1989). Enterprise alleged that Salmeron committed fraud in the induce ment by enteringinto a pur

ported r elease of all her claims against Enterprise and Torna tore which arose out of her employment with Enterpr ise. At the same time, she knew that she had gathered information agains tEnterprise in support of a planned qui tam lawsuit in federal court. She hel d th is informat io n in confid

ence an d did not me

ntion it unti l after r

eaching a settlem ent agr

eement w ith Enterpr ise and Tornatore. Four months after rec eiving the final payment pursuant to the settlement agree ment, which inc luded a r

elease of all future c laims ag ainst Ente rprise, Salmeron

did indee d file
a qui tam lawsuit against Enterprise. Salmeron’s admissions establish that she signed the release agr eement with Enter

prise wit h
no intention o f honoring it. Furthermore, she had in her posse ssion, at the time of the settlemen t agree ment, document

ation whic

h purport edly established fraudulent billing practices by E nterpris e employ ees. She sign ed the re lease a greeme nt kn owing that she would shortly bring a qui tam lawsuit agains t Enterpr

ise in federa l court. U

nder the se facts, we find that Enterprise’s complaint1–08-2936

11

sufficie ntly al l eged facts supporting fra ud in the inducement. By signing the release, Salmeron knowing ly

misrepresented that

she would not make any

future claims against Enterprise which we re related to her employment with Enterprise. Spec ifically, as we have previously note d, the agreement stated that it covered: “all actions [and] *** claims *** relating in any wayto 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 r

elating to [Salmeron’s] employment

[ by Enterp rise ].” (Emphasis added.) This induced Enterprise to pay Salmeron $300,000 in reasonable reliance on her a greement to relea se Enterprise from all future claims related to her e mployment with Enterprise. We disagree with any

assertion that the parties did not intend that this rele ase cove

r possible future qui tam actions by Sa lmeron. We

also disagree that the release only applied to future actions
or claims by Salmeron

arising out of her allegations of sexual har

assment r elated to her empl oyment. Any other conclusion is pure speculation, which is contradicted by the broad language of

the releas e itself. The releas e lists a number of possible actions which are specifica lly covered by

the release, many of which relate to Salmer on’s claim of sexual harassment. But the specific languag e of the releas e also states, at the beginning of the listing of cla ims for relief which are included, that the claims are listed “without in any w ay limiting the g enerality” of the broad terms of the release. The clear terms of t he rele ase state that it applies to “all actions [and] *** claims ***relating in any way
*** to [Salmeron’s] employ ment [ by Enterprise].” The more natural construction of this broad1–08-2936

12

langua ge and the list of possibl e action s i s that Enterprise wished to foreclose Salmeron from bringing anyfuture action against it arising out of her e mpl oyment. I

ndeed, as established by Salmeron’ s admissions , she gathered the information for the qui tam complaint while she was employed by

Enterprise. For these reasons, we find that the broad lang uage of the release applies to Salmeron’s subsequent filing of a qui tam complaint
. Inits compla

int in the c ircuit co

urt, Enterprise also alleged that Salmeron brea ched her duty of loy alty to Enterprise by

failing to disclose

to Enterprise, while she was an employe e in a position of trust, the fraud

that she had allegedly

uncovered. Such a br

each is e stablishe d when a p erson wit h
a fiducia ry duty to a party br

eaches that duty

in a manner w

hich is the

proximate c ause of i

njury 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 Salmeronfailed to disclose to Enterprise the fraudulent

activity she

allege dly discover ed while w

orking f or Enter prise in order

to enrich hersel f b y later bringing a qui tam lawsuit against Enterprise, without ever having g iven En terprise

th e opportuni ty to rectif y th e proble

m. As a hig

h-level member o f Enterp

rise’s ma nageme nt team, Salmeronowed Ente

rprise a duty of loy alty . Salmero n’s duty

of loy alty to Enterpris e was m

uch
more than a singular duty of actingto preserve the corporate res for the b enefit o f the sha reholde rs. We note that disclosure of the alleged fraud arg uably may

have indirectly be

nefitted Enterprise from
anethical p erspec tive by

enabling it to remove corrupt elements from its compan

y. Sa lmeron a lso owed Enterprise a duty

not to improperly profit or see k to profit fromthe knowledge she acquired while in a position of trust at the company, to the detriment of the company. Salmeron’ s actions1–08-2936

13

were in competition and conflict with Enterpri se’s intere sts. Specifically, it was in Enterprise ’s interest to root out

fraud a nd corru ption with in th e c om pa ny. On the oth er hand, it was in Salmeron’s interest

not to stop the corrup t activities until she was able to gather sufficient informationin order

to bring a qui tam lawsuit against Enterprise. There is no doubt that she could persona lly profit by sharing in the pro ceeds of

a su ccessful pros ecution of that lawsuit. It was
reasona ble for Ente

rprise to expect that Salmeronwould not e xploit her ma

nageme nt position w

ithin the company for

her own personal benefit . Enterpr ise reasonably

expected that Salmeron would not do anything

to hinder the corp oration in

its business operations. Alpha School Bus Co. , 391 Ill. App. 3d at 736-37 , 910 N.E. 2d at 1149 -50; Comedy Cottage, I nc. v. Berk , 145 Ill. App. 3d 355, 359-60, 495 N.E.2d 1006, 1011 (1986). We agree that Salmeron’s position of a uthority and trust at Enterprise, s erving as its general manager a nd director of operations, imposed upon her a duty of loy alty to Enterprise. That duty include d the requirement that she not seek t o profit at the expens e of the corporation. Comed y Cottage , 145 Ill. App. 3d at 359-60, 495 N.E.2d at 1011. The fact that Enterprise’s corporate by-laws do not enumerate the duties owed to Enterprise by Salmeron doe s not negate the duty of loy alty which Salmeron

owed to Enterprise. She clearly breached that duty

when,
as her own admission e stablish es, she li ed to Ente rprise in signing the general re lease in

order to induce a significant settlement pay ment knowing at

the time that she had

no intention of honoring it. Further, she failed to give Enterpr ise the opportun it y to

act ag ainst the e

mploy ees alle gedly engaging in violation of the False Claims Act by fa iling to inform Enterprise of the fraud she h a d supposedly uncovere d. Under the facts of this case, unlike the dissent, we decline to follow the federal d istrict1–08-2936

14

court’s nonbinding suggestion that the releas e agre ement sig ned betw een Salme

ron and E nterpris e did not apply to Salmeron’s filing of a qui tam lawsuit. The plain language of the r elease stated that Salmeronwould re lease

Enterprise from all claims relating to her employ ment with Enterprise. As the general manage

r and director of op eration s for Enterprise, it is evident that Salmeron’s employment

put her in a position to uncover the alleged fraud. It is also undisputed that the qui tam lawsuit which she

brough t in fede ral cour t, alleg ing th at e mployees of Enter prise had committed fraud against the Department of Education, was ba sed upon information which she lear ned while working for Ente

rprise in her mana gement capaci ty. It wa s Salmero n’s duty to reveal such alleged fraud to Enterprise. She also had a dut y to re frain from seeking to personally benefit by her nondisclosure of the activity which c learly put the compa ny at risk. Howeve

r, we do notimply nor sugge st that an employee

who files a qui tam action instead of informing their employ er of alleged fraud wi th in th e c om pa ny c om mi ts a b re ac h o f t he ir du ty o f l oya lt y. The unique facts of this case,
measure d against applicable case law infor ms our analysis. Thus, our holding is ba sed upon th e unique facts of this case. Accordingly , we hold that the trial court did not err in granting summary judgmen t for Ente rprise o n both cou

nts of its c omplaint. Inan “emergency

motion” filed in the circuit court of Cook County on September 19, 2008, after the en try of summary judgme nt for Enterprise, Salmeron sought dismissal of Enterprise’s lawsuit on the basis

that it wa s broug

ht in violation of section 15 of the Citizen Participation Act (the Act), which became effec tive in August, 2007. 735 IL CS 110/15 (West 2008). Thus the Act was ineffect for over one y

ear before Salmeron

cited it a s the basi s for her motion to dismiss Enterprise’s lawsuit, after

the trial court had ruled against her. Salmeron present ed no vali d reason

for fail ing to1–08-2936

15

raisethis defense during the lengthy pe ndency of the

case in the circuit court, before judgment was entered
. Or di na ri ly, af

fi rm at iv e d ef

en se s m us t b e s et fo rt h i n t he an sw er or re pl y to a complai nt. 735 IL CS 5/2-613 (West 2006). Th is r equirement is to prevent a plaintiff from being taken by surprise, and a

defenda nt who fa ils to timely

file an a ffirmat ive defe nse is deemed to have forfeited that defense. Cordeck Sales, Inc. v. Construction Sy stems, Inc. , 382 Ill. App . 3 d 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 on was not in eff

ect whe n Enterpr ise filed its lawsuit against Salmeron inthe circuit court in 2006. The Act became eff ective in 2007, a ye ar after the instant lawsuit was filed. Yet Salmeron

did not seek

to invoke t

he immunity

of the Act which she

now claim s. In

fact, she waited until after judgment was ente red ag ainst her

and the c ase was

conclude d in

the trial court before raising the affirmative de fense. Accordingly, she has forfeited that defense. Fur thermore, she had alre ady

been ba rred by the trial court’s order f rom pres enti ng any

defense to the lawsuit. For these reason s, we h old t hat th e tria l cour t did not er r in de nying Sal meron ’s pos t-jud gm en t motion to dis miss Enter

prise’s l awsuit. The judgment of the circuit court of Cook County is affirmed. Affirmed. HOFFMA

N, J., conc

urs. THEI S, J., dissent

ing in pa rt.1–08-2936

16

JUSTICE THEI S, dissenti

ng in pa rt: Irespec tfull y disagree w ith t he maj ority’s o pini on affi rming su mm ar y judgment for Enterprise. Fir st , I d o not believe that Ente rprise p roduced

sufficie nt eviden ce to est ablish as a matter of law that Salmeron fraudulently induced it to sign the release. Additional ly, Enterpr ise cannot ma

intain its c laim that Sa

lmeron br eached her fidu ciary duty . There fore, I

dissent. Summary judgment is a drastic means of disposing of litigation and should not be g ranted unless the movant’s right

to judgment is clear

and free from doubt. Adams v. Northern Illinois Gas Co. , 211 I ll. 2d 32, 43 (2004). I n determ ining wh ether su

mmary judgmen t is appro priate, we must construe the evide

nce stric tly a gainst t he movant

and liber all y in favor

of th e n on mo vi ng pa rt y. Adams , 211 Ill. 2d at 43. First, Enterprise contended that it was entitled to summary judgment on its claim for f raud in the in ducement. Fraud in the inducement of a contra ct is a defect which renders a cont rac t voidable at the election of the innocent party
. Tow er Inves tors, LL C v. 111 East Chestnut Consultant s, Inc. , 371 Ill. App. 3d 1019, 103 0 (2 007 ). In order f or a misre present ation to c onstitute fraud that would

permit a c ourt to set aside a contract, the party seekingto do so must establish that there was “ ‘ “a representation in the form *** of a mater ial fact, made for the purpose of inducing
a party to act; it must be false a nd knownby the

party making

it to be false, or not actually believed by him, on reasona

ble gro unds, to be

true; and the par

ty to whom it is ma

de must be

ignora nt of its fa ls it y, must reas onably

believe it to be true, must act thereon to his dama

ge, an d in so act

ing must rely on the truth of the statement.” ’ ” Tower Investors , 371 Ill. App. 3d at 1030-31, quoting James
v. Lifeline Mobile Medics , 341 Ill . App. 3d 451 , 456 ( 2003) , quot ing Wilkinson v. Appleton , 28 Ill
.1–08-2936

17

2d 184, 187 (1963). The defendant’s knowledge of the falsity of the state ment , or his delibe

rate concealment

with the intent to deceive, is an essential element of a common law fraud c laim. Fox
v. Heimann , 375 I ll. App. 3d 35, 47 (20 07). The

plaintiff must prove such fraud claims by clear and convincing evidence. Fox , 375 Ill. App. 3d at 47. Enterpr ise contended t

hat Salmeron

falsely repres ented tha

t she would

releas e all cla

ims agains tEnterprise, while knowing that she intended to file the qui tam action a gainst i t. Enterprise submittedTornatore’s affidavit in sup port, in which h e stated that Salme

ron ag reed to r elease Ente rprise

and To rnato re from “any and al l acti ons ** * of wh atsoe ver nat ure, gro wing o ut of o r related in any way

to any and all known a

nd unknown[,] forese en and unforeseen damage s or consequences relating

to her em

ploy ment,” wh

ich lang uage is taken dir

ectly from the release. Impli cit in Enterprise’s argument is the premise that the rele ase bars the filing of a qui tam lawsuit. To evaluate that claim, we must examine the scope of the release
. A releas e is a contr

act whe reby a party relinquishes a cla

im to the pe

rson ag ainst

whom the claim exists. Farmers Automobile Insurance Ass’n v. Kr aemer , 367 Ill. App. 3d 1071, 1073 (2006). Ac co rd in gl y, a relea se is subject to the rules governing the construction of contracts. Fuller Family Holdings, LL C v. Northern Trust Co. , 371 Ill. App. 3d 605, 614 (2007). C onstruct ion of a r elease is a question of law. Fulle r Famil y Holdin gs , 371 Ill. App. 3d at 614. The i ntention o f the par

ties contr ols the sc ope and e ffect o f a rele ase, and this intent

is discerned from the e

xpress lan

guag e of the r

elease as well as the cir cumstances of its execution. Fuller Famil y Holdin gs , 371 I ll. App. 3d at 614; Kraemer , 367 I ll. App. 3d at 1074. The rele ase must spellout the intention of

the parties w

ith gre at partic

ularity and must be

strictly construe d again st1–08-2936

18

the benefitting party
. Fuller Famil y Holdin gs , 371 Ill. App. 3d at 614. Where the terms of a

releas e
are clear and explicit, the court must enforce them as written. Fuller F amily Holdi ngs , 371 I ll. App. 3d at 614. However, the rele ase will not be cons trued toinclude claims not within the contemplation of the parties at the time the agreeme nt was executed. Kraemer , 367 Ill. App. 3d at 1074. Where a release contains words of ge neral release in addition to recitals of specific claims, the words of general relea se are limited to the particular claim to which reference is made. Carona
v. Illinois Centra

l Gulf R.R. Co. , 203 Ill. App. 3d 947, 951 (1990); Fulle r Famil y Holdin gs , 371 I ll. App. 3d at 614. That is, we must give effect to a more spec ific clause and qualify or reject a more general clause a s the spec ific cla use ma k es necessary . Am er ic an Fe de ra ti on of St at e, Co un ty & Municipal Employees v. State Labor Relations Board , 274 Ill. App. 3d 327, 337 (1995); Kraemer , 367 Ill. App. 3d at 1073 (“ge neral words [of release] are limited to things or persons of the same kind
or class as those which are particularly mentioned”). I

n any even t, no language of a re lease, “no matter how all-enc ompassing ,” will pr event a r eviewing court fr om inquirin

g into the circumstances surrounding the execu

tion of the

releas e to asce

rtain whe ther it ac curate ly r

eflecte d the par

ties’ intention. Kraemer , 367 Ill . App. 3d at 1 074, c itin g Carlile v . Snap-on Tools , 271 Ill. App. 3d 833, 838 (1995). In this case, the majority

focuses on the following languag e in the release: “The parties hereby

fu ll y and forever discharge and release each other *** fromany and all actions [a nd] *** cla

ims *** re lating 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 consequences1–08-2936

19

rela ting to [Sal mero n’s] e

mploy ment [by Enterpri se.]” The majority

tacitly conclude s, with no a

naly sis, that

the qui tam claim wa s suffici ently “relate d to [Salmeron’s] employment” to be barred by the release. Howeve r, the re lease c ontinues: “[W] ithout in any way

limiting the generality

of the foregoing lan

guage , Salmeron’s release shall include any claims for relief

or cause s of actio

n under T itle VII of the Civil Rights Act of 1964 ***; the Family and Medic al Leave Act of 1993 [FMLA]***; the Americans with Disabilities Act [ADA]***; the Rehabilitation Act of 1973 ***; the Ci vil R ights Enfor cement Stat utes * **; t he Age Discrimination in Empl oyment

A ct [ADEA]***; the Older Workers Benefit Protection Act ***; the Fair Labor StandardsAct of 19 38 ***; the National Labor Relations Act [NLRA]***; the I llinois Human Rights Act ***; and any other federal, state, or local statute *** deali

ng in an y r espect w ith discri mination in

employ ment, and

in addition, from any c laims *** brought on the basis of wrongful discharge , breach of
anoral or written agreement or contract, misrepresentation, defamation, interfer ence with contract, intentional or negligent infliction of emotional distress ***, or sexual harassment. The release also states that it was intended to resolve “the issues between the parties *** concerning Salmeron’s employ

ment with

[Enterpr ise] and re solving a

ll claims a

nd/or pote

ntial cla ims *** for sexual harassm ent and di scrimina tion as mor

e fully set forth in Salme ron’s complain t filed in Rhonda Salmeron v. Enterprise Recovery System, Inc

. and Sam Tornatore , case number 03 C 3332.”1–08-2936

20

Applying the aforementioned principles of contract construc tion, I do no t believe that the parties intended to include the qui tam claim within the scope of this release and, therefore, Salmeron
was not barred from filing her qui tam claim. Al though the relea se purpor ts to bar “ any

and all actions * ** of whatsoever nature, growing out of or *** relating to her employ ment,” such broad language, “no matte

r how all- encompa ssing,” cannot ba

r cla ims that were not within the contemplationof the parties at the time the release was dra fted. See Kraem er , 367 I ll. App. 3d at 1074; Carlile , 271 I ll. App. 3d at 838. This broad lan

guag e must be c ircumscr

ibed by the spec ific
causes of action enumerated in the release. See American Federation of State, County & Municipal Employees , 2 74 Il l. App . 3d at 3 37. Tho se c aus es o f ac ti on – in clu di ng a cti ons und er T it le V II, FMLA, ADA, ADE

A, civil r ights en forcem ent statut

es, the I llinois Huma

n Rights A ct, and

actions “dealingin any respe ct with discrimination in employment” under the c ommon law – concern the type of hara ssment and employ ment discr

imination c la ims that were the sub ject matter of Salmeron’s then-pendingsexual har

assment la

wsuit that gave rise to this release. See Carona , 203 Ill. App. 3d at 951. The r

elease specific ally

prohibits Salmeronfrom bringing such harassment and e mployment discrimination causes of action, which is consiste

nt with the part ies’ stat ed intent ion that the

releas e resolved “all claims and/or potential claims *** for sexual harassment and discrimination as more fu lly se t forth in Rhonda Sal

meron v. Enterpris e Recov ery Syst em, Inc . and Sam To rnatore , case number 03 C 3332.” Alth ough Salmeron apparently learned of the activities underlying her qui tam claim whi le she was employe d at Enter prise, th at claim c annot be s aid to be “related

to her employment” in the1–08-2936

21

cont ext of the release as the parties orig inally intended. Asdiscussed, the release seeks waiver of any statutory or common law har assment or

employment discrimination claims Salmeron may have
. The qui tam claim derives from Enterprise’s allege d violation of the federal False Claims Act, which imposes civil liability on those who knowingly defraud the feder al government by presenting and receiving payment for f

alse or fraudulent claims. 31 U.S.C. §3729(a)(1) (2006); see also Rockwell Internationa l Corp. v. United States , 549 U.S. 457, 463, 167 L. Ed. 2d 190, 200, 127 S. Ct. 13 97 , 1403 (2007). The nature of the qui tam cla im is unre lated to employment discrimination and haras smentand cannot be construed to come within the scope of the re lease. See Fulle r Famil y Holdi ngs , 371 Ill. App. 3d at 615. Therefore, because Salmeron was not prohibited from bringing the qui tam claim under the terms of the release, she could not have made the misre presentation as serted by En terprise in this
case. Salmeron’s admissions do indeed establish that she was gathering documentation in support of the qui tam claim before she signed the relea se and that she “did not intend to release the [ qui tam ] claim.” Howeve

r, those admissions are not inconsistent with the language of the re lease, in which the parties only intended for Salmeron to relinquish any pending and future harassment or employment

discrimination cla

ims aga inst Enter

prise an d Tornato

re. Thus , Salmeron could
reasona bly have believed that

she could pursue her qui tam without violating the terms of the rele ase and did not knowingly make

the claimed false statement. See Tower Investors , 371 Ill. App. 3d at 1030-31. Theref

ore, I believe that E nterprise has failed meet its burden to establish by clear and convincing evidence that Salmeron fraud ulently induced it to enter into the re lease and summary judgment was inappropriate. See Fox , 375 I ll. App. 3d at 47; Tower Investors , 371 Ill. App. 3d at1–08-2936

22

1030-31. Inaddition, I do not believethat Ente rprise is entitled t o summary judgme

nt on its breach of fiduciary duty claim. To

prevail on a brea ch of fid uciary duty claim, a plaintiff must establish: (1)
a fiduciary duty

on the part

of the defendant; (2) the defendant’s br each of that duty ; (3) an in ju ry; and (4) proximate cause between the breach a nd the injury. Alpha School Bus Co. v. Wagner , 391 Ill. App. 3d 722, 747 (2009). I do not believe that Enterprise has established Salmeron’s fiduciary du ty, no r h as it de mo ns tr at ed th at it su ff er ed an y in

ju ry. Inits compla

int, Enter pris e alleged that Salmeron was “an emp loyee and/or c orporate officer” of Enterprise and as such, she owed Enterprise a fiduciary dut

y of l oyalty . However, it has not demonstrated

that Salmeron violated any duty of loy alty as an emp loy ee or tha

t she owe d Enterpr

ise a fiduciary

duty as an offic er of the corporation. Employeesan d corpo rate of ficers a re held t o differ ent stand ards with respec t to their fiduciary duties to a corporation. Cooper L inse Hall man Capita

l Manag ement, Inc. v. Hallman , 368 Ill. App. 3d 353, 357 (2006). An employe e’ s duty to a compa

ny g eneral ly r

esemble s a princ ipalagency relationship. Corroon & Black of Illinois, I nc. v. Magner , 145 Ill. App. 3d 151, 160 (1986). Anemploy

ee’s dut y of loy alty most fr equently arise s in the context of the employee’s duty to not compete with the employer while still employ ed by i t. See, e.g. , Hallman , 368 Ill. App. 3d at 357; Wagner , 391 Ill. App. 3d at 747. I n such cases, an

employee may

plan, form, and outfit a rival company in the same

i ndustry as the em

ployer while

employ ed, so long

as he doe s not eng age in competition until after his resignation. Hallman , 368 Ill. App. 3d at 356-57. The present

casedoes not involve Salmeron’s establishment of a riva l company ; Enterpr

ise1–08-2936

23

has not alleged or presented any evidenc e of Salme

ron’s pr ohibited c ompetition . Rather, Enterpr ise has er roneously as serted that Salmeron’s breach of fiduciary duty arose in her

capacity as an employee. Theref

ore, Salmeron’s d

uty of loy alty as an emp loy ee cann

ot be the b asis of he

r liability here. On th e o th er ha nd , c or po ra te of fi ce rs ow e a he ig ht en ed fi du ci ar y du ty o f l oya lt y t o thei r corporate employ

er not to: (1) actively

exploit their positions within the corporation for their own personal benefit; or (2) hinder the ability of the c orporation to continue the business for which it was developed. Hallman , 368 Ill. App. 3d at 358. Here, Enter prise contended that Salmeron breached her duty by : (1) allegedly

using Enterprise’s corporate assets in the for m of its confidential and proprietar y d ocuments for her own benefit by submitting them in support of her qui tam claim, in whichshe wou ld st and to col lect par t of the monetary

judgmen t, if succ essful; a

nd (2) fa iling to informTornatore or any

other corporate officer of her suspicion that Ente rprise was submitting

false claims, which all egedly

hindere d Enterpr

ise from c ontinuing

its business of performing collection activities for the United States Department of Education. Thus, Enterprise intended to allege that Sa lm er on vi ol at ed he r f

id uc ia ry d ut y as an of

fi ce r o f t he co mp an y. Alth ough Enterpr

ise seek s to impose t

his heig htened f iduciar y du ty upon S almeron, it has failed to demonstrate that

that standard applies in this case. It has long bee n held that the directors and officers of

a corpor ation ar e those entrusted with the management of corpora te property f

or the benefit of the shareholders. Price v. State , 79 Ill. App. 3d 143, 149 (1979). The burden of pleading and proving th e existence of

the fiduc iary

relation ship lies w

ith the pa rty seeking to establi sh it. Citicorp Savings of Illinois v. Rucker , 295 Ill. App. 3d 801, 809 (1998).1–08-2936

24

Inits motion for summary judgment, Enterprise admitted that Salmeron was “technically not
anofficer or director

of [Enter prise]” bu t, rather, was a gener

al manager. Neverthele ss, it claimed that Comedy Cottage, I

nc. v. Berk , 145 I ll. App. 3d 355, 360- 61 (1986) , impose s the sam e heightened

fiduciary duty

owed by direc

tors and officers upon a gener al manager of a corpor

ation. However, Enterprise’s reliance on Comedy Cott age is entirely

misplace d. The de fendant in that case was vice president of the corporation as well as the g eneral manager. The holding in that
caseconcer

ned a co rporate

office r’s liabi lity

for bre aching

his fiduc iary

duty – after resign ing his corpora te post but retaining a managerial position – when the

offendi ng tran saction b egan d

uring hi s tenure a s a corporate officer. Comed y Cottage , 145 Ill. App. 3d at 360. The court made clear that the defendant learned

of cert ain ong oing co ntract n egotia tions bec ause of h

is “confidential position”
as vice pre sident. He

then “use d the knowledge g ained as a result of his posit

ion [a s vice

pres iden t]” to enter in to an ag reemen t in violati on of his f

iduciar y du ty to the corporation. Comed y Cottage , 145 Ill. App. 3d at 360-61. In this case, there is no allegation that Salmeron ever served as a cor porate director or officer, and Comed y Cottage does not in depende ntly expand the corpora

te duty of loy alty to general manager

s. Notwith standing Enterprise’s admission that Salmeron wa s not a corpora te officer or director , the evidence presented

by E nterpris e fails to

establish that Salmeron’s duties came within the scope of those per formed by c orporat

e offic ers. Corporate officers are elec ted by the board of

directors and “perform such dutie s in the man

ageme nt of the property

and aff airs of th e corpor

ati on as m ay be provided in the by-laws, or a s may be deter mined by resolution of the board of directo rs.” 805 I

LCS 5/8.50 (West 2006).1–08-2936

25

Enterpr ise did not

submit a co

py o f the by

-laws or any other ev idence t hat would establish the duties of a corpora

te officer. It merely

alleged that Salmeron’s duties included maintaining industry -specif ic computer software, training employe es in the use of the software, and supervising employees

responsible for collecting revenue. B y Enterprise’ s own description, Salmeron’s duties
were limited toman age men t o f co mp ut er s oft war e an d t hos e em pl oyee s wh o us ed i t. It makes no assertion, and likewise offers no proof, that Salmeron was responsible in any way to the shar

eholders for the management of

the property of

the corporation as a whole. Salmeron’s duties, as enumerate d by Enterprise, are insufficient to classify her as a corporate director or off icer. See Price , 79 Ill. App. 3d at 149, Rucker , 295 Ill. App. 3d at 809. Thus, there is no basis upon whi ch to impo se the fiduciary duty

of loyalty

owed by cor

porate officers and directors upon Salmeron. Even if Enterprise could estab lish that Salmeron breached a fiduciary duty of loy

alty of whate ver degree, it did not demonstrate that it suffered any injury resulting f

rom the bre ach
. Enterpr ise claimed that Salmeron misappro priated its corpo rate as sets, in the form of d ocuments , for her personal benefit because she would rec e ive a po rtion of any judg ment awarded in the qui tam lawsuit in which the documents were used. Howeve r, Enter prise fa iled to all ege how it

was thereby harmed. The Fal se Claims A ct claim f ile d by Salmeron was dismissed and Enter prise was not ordered to pay any

judgment. Nor did Enterprise seek to recover the de minimus value of the documents themselves. Ad di ti on al ly, Enterprise claimed that because Salmeron failed to infor m To rnatore of the suspected fraud, it was hindered from continuing its business of perfor ming collection activities for the United

States Department of Education. However, it produced no evidence demonstra ting that1–08-2936

26

it lost its contract with the Department of E ducation , or any other cl ient, or that it was o therwise prevented from continuing its collection business. Therefore, Enterprise has not established that it
su ff er ed an y in

ju ry a s a re su lt of

Sa lm er on ’s al le ge d b re ac h o f f id uc ia ry d ut y. For all of the foregoing rea sons, I would reverse the circuit court’s judgment and remand for further procee dings.