Hytel Group, Inc. v. Butler

Opinion

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

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT ______________________________________________________________________________

HYTEL GROUP, INC., ) Appeal from the Circuit Court ) of Kane County. Plaintiff-Appellant and Cross-Appellee, ) ) v. ) No. 08--L--717 ) MICHELLE Z. BUTLER, ) Honorable ) Robert B. Spence, Defendant-Appellee and Cross-Appellant.) Judge, Presiding. ______________________________________________________________________________

JUSTICE SCHOSTOK delivered the opinion of the court:

The plaintiff, Hytel Group, Inc., filed suit against a former employee, the defendant, Michelle

Butler, on December 15, 2008, alleging that she breached fiduciary duties and made fraudulent

misrepresentations. Butler filed two motions to dismiss the complaint, one based on section 2--615

of the Code of Civil Procedure (Code) (735 ILCS 5/2--615 (West 2008)) and the other premised on

the Citizen Participation Act (Act) (735 ILCS 110/1 et seq. (West 2008)), which provides 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 court granted the motion

based on the Act. The trial court later awarded Butler some, but not all, of the attorney fees she

requested. After its motion to reconsider was denied, Hytel appealed the dismissal of its complaint,

and Butler cross-appealed the trial court's refusal to award her certain of her attorney fees. We affirm

as modified. No. 2--09--1003

FACTUAL AND PROCEDURAL BACKGROUND

In February 2008, Hytel hired Butler as comptroller for the company. On June 4, 2008,

Hytel's lender, GBC Funding, LLC, filed a verified complaint and an emergency motion seeking the

appointment of a receiver for Hytel. The complaint alleged that Hytel was in default on several of

its obligations under the loan agreement, and that beginning in January 2008 GBC Funding had sent

Hytel several notices of default. The complaint also alleged that, in May 2008, Hytel entered into

agreements with GBC Funding under which GBC Funding would forbear from exercising its rights

under the loan agreement and Hytel would, among other things, "engage and fully cooperate with

a Chief Restructuring Officer" who was acceptable to GBC Funding. Jack Cochran was selected as

the chief restructuring officer and was retained as of May 21, 2008. However, Hytel's president,

Scott Johansen, allegedly did not cooperate with Cochran, refused to permit Cochran to control

disbursements, and continued to take money from the company for his own use. The complaint

alleged that Cochran therefore resigned on June 3, 2008. GBC Funding filed its suit the following

day.

On June 10, 2008, Hytel fired Butler. On August 3, 2008, Butler filed a wage claim with the

Illinois Department of Labor, seeking the payment of approximately $2,300 in final wages.

On December 15, 2008, Hytel filed a two-count complaint against Butler. Count I, titled

"Breach of Fiduciary Duty," alleged that, as comptroller, Butler owed Hytel a fiduciary duty of

loyalty and had a further duty to disclose "all material information to management." The complaint

alleged that Butler breached these duties in that she: "had been unable" to prepare financial

statements for the year that ended in December 2007, and also failed to prepare interim financial

statements for any month during which she was employed; spoke with Cochran "on multiple

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occasions, including June 6, 2008," during which conversations Cochran told Butler of the status of

GBC Funding's litigation against Hytel and assured her that she would be kept informed; and did not

advise Johansen of these conversations, or advise Hytel's management that GBC Funding "had

promised Butler" that she could remain as comptroller in the event that GBC Funding began

exercising control over Hytel through Cochran. The complaint alleged that Butler also breached her

fiduciary duty in that she deliberately did not perform her duties (presumably, this refers to not

preparing financial reports) "because of the developed relationship with" GBC Funding.

Immediately following this allegation, Hytel alleged that Butler "was not capable of performing the

work as her resume contained misrepresentations as to her competency." Hytel sought $1 million

in compensatory damages for these alleged breaches of fiduciary duty and $3 million in punitive

damages, along with the forfeiture and repayment of all of the wages ever paid to Butler.

In count II, the fraud claim, Hytel alleged generally that Butler's actions described in count

I were done with the intent that Hytel rely on her and further that Butler represented that she was

"attempting to prepare financial statements which would cure defaults and also allow the company

to obtain alternate financing." The complaint alleged that these representations were knowingly

false, "in that at the time she was discussing with [GBC Funding] and Jack Cochran employment that

she would be given once management was replaced." The fraud count also contained general

allegations that Butler's communications with Cochran, GBC Funding, and its auditors were "to the

detriment" of Hytel, that Hytel "reasonably relied on her representations," and that Hytel was

"damaged thereby." Like count I, count II prayed for a total of $4 million in damages, plus interest

and costs.

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On February 17, 2009, Butler 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 ILCS

5/2--615 (West 2008)) and argued that, even taking the allegations of the complaint as true, they

failed to state a cause of action for breach of fiduciary duty or for fraud. Butler also argued that,

although Hytel's claims were based in part upon the filing of GBC Funding's receivership action,

Hytel failed to attach the relevant pleadings to its complaint. Butler then attached various pleadings

and motions from that case that was mentioned by Hytel 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 contradicted the allegations

of Hytel's complaint, showing that she did not cause Hytel's default because Hytel was in default

before she was even hired.

Butler's second motion was based upon the Act, and it argued that Hytel's suit against her was

in retaliation for her wage claim. In support, Butler attached her own affidavit, in which she averred

that she had made repeated attempts to obtain her last paycheck but had been turned away by

Johansen; that eventually she had told him that if she did not receive her pay she would have to file

a wage claim with the Department of Labor; and that Johansen told her that if she did that, he would

"sue [her] a--, honey." Hytel filed responses to both motions, arguing among other things that the

complaint properly alleged the claims therein and that a "purely private" dispute such as Butler's

wage claim was not within the scope of the Act, and attaching an affidavit from Johansen denying

that he and Butler ever discussed her wage claim or that he made the alleged statement. The motions

were fully briefed and on April 16, 2009, the trial court heard oral argument on the motions.

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On April 30, 2009, the trial court issued a written decision in which it found that, under the

plain language of the Act, the Act applied to Butler's wage claim. The trial court further found that

Hytel had not met the burden of proving, by clear and convincing evidence, that Butler's acts were

not immunized from liability by the Act. However, the trial court went on to consider the merits of

Hytel's complaint, reasoning that a determination of whether Hytel had stated a viable claim against

Butler would be an independent indicium of whether its suit was brought for an improper purpose

under the Act. The trial court found that Butler did not have a fiduciary relationship with Hytel but

rather an employee-employer relationship, and thus the complaint failed to state a cause of action

for breach of fiduciary duty. The trial court further found that, even if Butler's representations

regarding her competency to prepare financial reports and perform other financial oversight tasks

were false, the complaint did not sufficiently allege the remaining elements of fraud. Finally, the

court found that the complaint as a whole did not allege any facts supporting the $4 million in

damages requested. The court concluded by dismissing the complaint pursuant to the Act and

continuing the case for status and for the filing of a motion for attorney fees.

On May 14, 2009, Butler filed a motion for attorney fees, seeking $38,233.50. On the same

date, Hytel filed a motion to reconsider, in which it argued that Butler's wage claim was not protected

conduct under the Act and that it had adequately pled its claims for breach of fiduciary duty and

fraud. In its motion to reconsider, Hytel 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 facts that would

entitle it to recover, and it asked that the court grant it 28 days in which to file an amended

complaint. Hytel did not attach any amended complaint to its brief, nor did it indicate in what

manner it proposed to amend its complaint. A few days later, Butler filed a motion seeking "an

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express order of dismissal of the complaint, with prejudice," pursuant 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 (beyond those imposed under the Act) pursuant

to Supreme Court Rule 137 (155 Ill. 2d R. 137), on the ground that the entire action was frivolous.

Each party filed written responses to the other's motions.

On July 10, 2009, the trial court heard argument on the motions and then ruled. The trial

court denied Hytel's motion to reconsider and Butler'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 section 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 section 2--615 would be with

prejudice only as to count I (the claim for breach of fiduciary duty), while the dismissal of count II

(the fraud claim) would be without prejudice. As to attorney fees, 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 motions to dismiss, "granting that there may be some overlap." Butler refiled her motion for

fees, subtracting over $14,000 in fees incurred solely in connection with the section 2--615 motion

but also including a roughly equivalent amount of fees incurred since the date of the earlier motion

for fees. Hytel responded, objecting that the reduced fees still were not reasonable and that no new

fees should be permitted. On August 20, 2009, the trial court disallowed $4,306 of the requested

fees because they had been incurred in preparing and presenting the two motions for fees, but it

granted the remainder of the fees requested ($34,998.27), finding that the attorney's time spent and

hourly rates were reasonable. Hytel 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 Act

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allowed her to recover the attorney fees incurred in preparing her section 2--615 motion to dismiss

and the motions for fees.

ANALYSIS

The Appeal

We begin by addressing the issues raised in Hytel's appeal. Hytel first argues that the trial

court erred in holding that Butler's act of filing a wage claim with the Department of Labor was

protected under the Act. As this is an issue of statutory interpretation, and additionally involves the

review of a dismissal, our review is de novo. Lee v. John Deere Insurance Co., 208 Ill. 2d 38, 43

(2003).

The Act became law in August 2007. Section 5 of the Act provides some background on the

impetus behind the Act:

"Pursuant to the fundamental philosophy of the American constitutional form of

government, it is declared to be the public policy of the State of Illinois that the constitutional

rights of citizens and organizations to be involved and participate freely in the process of

government must be encouraged and safeguarded with great diligence. The information,

reports, opinions, claims, arguments, and other expressions provided by citizens are vital to

effective law enforcement, the operation of government, the making of public policy and

decisions, and 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 rights

of petition, speech, association, and government participation.

Civil actions for money damages have been filed against citizens and organizations

of this State as a result of their valid exercise of their constitutional rights to petition, speak

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freely, associate freely, and otherwise participate in and communicate with government.

There has been a disturbing increase in lawsuits termed 'Strategic Lawsuits Against Public

Participation' in government or 'SLAPPs' as they are popularly called.

The threat of SLAPPs significantly chills and diminishes citizen participation in

government, voluntary public service, and the exercise of these important constitutional

rights. This abuse of the judicial process can and has been used as a means of intimidating,

harassing, or punishing citizens and organizations for involving themselves in public affairs."

735 ILCS 110/5 (West 2008).

The Act is one of many anti-SLAPP statutes enacted by states in the last several years. The

archetypal SLAPP arises out of a scenario in which a group of citizens voices to government officials

its objections to a project by a developer, who then sues the group of citizens for defamation,

intentional interference with economic interest, or some similar cause of action, alleging

extraordinarily high damages. The purpose of the lawsuit is not necessarily to prevail on the claim

(the lawsuit may well be meritless) but to silence the citizens through the threat of damages and

litigation expenses. E. Madiar & T. Sheahan, Illinois' New Anti-SLAPP Statute, 96 Ill. B.J. 620

(December 2008). However, the Act (like most other anti-SLAPP statutes) is written broadly enough

to apply to the exercise of the constitutional rights of speech and petition outside of the archetypal

scenario. See 96 Ill. B.J. at 621.

The Act is designed to permit the summary dismissal of a SLAPP and the recovery of some

of the attorney fees and costs incurred as a result of defending against a SLAPP. As an initial matter,

the Act immunizes from liability all "[a]cts in furtherance of the constitutional rights to petition,

speech, association, and participation in government," unless those acts were "not genuinely aimed

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at procuring favorable government action, result, or outcome." 735 ILCS 110/15 (West 2008). The

Act permits anyone who is defending against a claim in a judicial proceeding to file a "motion to

dispose of [the] claim *** on the grounds that the claim is based on, relates to, or is in response to

any act *** of the moving party in furtherance of the moving party's rights of petition, speech,

association, or to otherwise participate in government." 735 ILCS 110/15 (West 2008). Upon the

filing of such a motion, discovery is stayed except in very limited circumstances, and the court must

hear and decide the motion within 90 days. 735 ILCS 110/20(a), (b) (West 2008). The court must

grant the motion and dismiss the claim unless the nonmovant "has produced clear and convincing

evidence that the acts of the moving party are not immunized from, or are not in furtherance of acts

immunized from, liability by this Act." 735 ILCS 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 ILCS 110/25 (West 2008).

Hytel argues that the legislature did not intend the Act to cover persons filing "private" claims

such as Butler's wage claim, but only those persons who exercise their rights of free speech and

petition in connection with an issue of public concern. Hytel 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 of persons to file lawsuits for injury and the constitutional rights of persons to

petition, speak freely, associate freely, and otherwise participate in government; to protect

and encourage public participation in government to the maximum extent permitted by law;

to establish an efficient process for identification and adjudication of SLAPPs; and to

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

Hytel argues that this section demonstrates that the Act is concerned only with citizen participation

in governmental decisionmaking. 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 characterizes as a purely private

dispute.

In construing a statute, our task is to "ascertain and give effect to the legislature's intent."

Lieb v. Judges' Retirement System, 314 Ill. App. 3d 87, 92 (2000). The best indicator of the

legislature's intent is the plain language of the statute. Lee, 208 Ill. 2d at 43. "When the statute's

language is clear, it will be given effect without resort to other aids of statutory construction." Lee,

208 Ill. 2d at 43. Here, the language of the Act does not restrict its application to those situations

in which the person seeking its shelter exercised his or her rights of free speech and petition 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 *** regardless of intent or purpose." (Emphasis added.) 735 ILCS

110/15 (West 2008). Moreover, section 5 of the Act specifically lists "claims" as a protected type

of communication with the government. 735 ILCS 110/5 (West 2008) ("The information, reports,

opinions, claims, arguments, and other expressions provided by citizens are vital to *** the operation

of government *** and the continuation of representative democracy"). Finally, section 30(b) of the

Act commands that the Act is to "be construed liberally to effectuate its purposes and intent fully."

735 ILCS 110/30(b) (West 2008).

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The right to petition for redress of grievances is guaranteed by the first amendment to the

United States constitution (U.S. Const., amend. I), and it includes the right to file a claim before a

judicial or administrative body. California 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 first amendment right to petition the government for redress of grievances, and one that

extends to "all departments of the Government," including administrative agencies). Although the

right to petition overlaps in many respects with the right of free speech also guaranteed by the first

amendment, it provides additional protection for communication specifically aimed at the redress

of grievances. "By separately preserving this right, the Petition Clause helps to give persons a sense

of participation in their government, to better inform the government, and to provide the opportunity

for a peaceful settlement of disputes, advancement of the law, and correction of social problems."

C. Andrews, Motive Restrictions on Court Access: A First Amendment Challenge, 61 Ohio St. L.J.

665, 674 (2000).

We have no difficulty in concluding, as the trial court did, that Butler's wage claim filed with

the Department of Labor was an exercise of her right to petition for redress of grievances. See

California Motor Transport, 404 U.S. at 510, 30 L. Ed. 2d at 646, 92 S. Ct. at 611-12; see also 735

ILCS 110/10 (West 2008) (defining "government" to include departments and agencies of the state).

The express language of the Act protects any action taken in furtherance of a person's right to

petition, regardless of the person's possibly selfish motivation1 or the fact that the action might

1 There is one exception to this rule that the motivation for the action is irrelevant: if an action

that would otherwise be protected under the Act was "not genuinely aimed at procuring favorable

government action, result, or outcome"--that is, the actor had no reasonable expectation of success

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involve a personal claim before an administrative agency rather than testimony before a legislative

body, as in the archetypal example. 735 ILCS 110/15 (West 2008). As we have said, the language

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 "public concern" requirement. Thus, regardless of whether Butler's wage claim

raised an issue of public concern, it is within the language of the Act and was therefore intended to

be protected by the Act.2

In reaching the conclusion that the Act does not require that the actor exercised his or her

constitutional rights in connection with an issue of public concern, we are not holding that Butler's

wage claim was a purely private dispute, as Hytel claims. Although Illinois courts have held that

wage claims do not sufficiently "strike at the heart of a citizen's social rights, duties, and

responsibilities" (Palmateer v. International Harvester Co., 85 Ill. 2d 124, 130 (1981)) such that the

tort of retaliatory discharge should be expanded to encompass such claims (McGrath v. CCC

Information Services, Inc., 314 Ill. App. 3d 431, 440 (2000)), the prompt payment of wages by

employers is not a matter entirely devoid of public concern (People ex rel. Martin v. Lipkowitz, 225

Ill. App. 3d 980, 985 (1992) ("[a]n employer's denial of benefits earned by its employees burdens

the State financially and socially, *** by decreasing the tax base and potentially depleting State

in its petition or speech, but wished solely to injure the other party through 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 among anti-SLAPP

statutes. Of the 27 states (at last count) that have anti-SLAPP statutes, perhaps one-third restrict

protection to communications involving a matter of public concern.

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assistance funds")). Indeed, we presume that such public concerns underlie the decision to authorize

the Department of Labor to pursue wage claims, rather than requiring unpaid employees to pursue

their employers themselves. However, we ultimately express no opinion on whether Butler's wage

claim involves a matter of public concern because such public concern is not dispositive under the

Act.

Hytel cites California case law in support of its public concern argument, but its reliance on

that case law is misplaced. California was one of the first states to enact anti-SLAPP legislation, and

it has a comparatively well-developed body of case law in connection with its statute. For this

reason, California law may be useful in shedding light on issues arising under anti-SLAPP statutes,

including the Act. On this particular issue, however, California law is inapplicable because the

language of its anti-SLAPP statute differs from that of our Act, imposing in some instances 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) (West 2008) (if the statement was not made in a legislative,

executive, or judicial proceeding, or in connection with a matter under consideration by a legislative,

executive, or judicial body, it must involve "an issue of public interest" to be covered by the statute).

By contrast, as we have discussed, the Act includes no such restriction. Accordingly, 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 complaint--Butler's alleged breaches of fiduciary duty and

misrepresentations--were not exercises of her right to petition, nor were they protected in any other

way by the Act. Hytel asserts that this is a defense to dismissal under the Act--that "the acts of the

moving party [were] not immunized" from liability by the Act. Hytel argues that, because its lawsuit

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against Butler was not premised on her protected action of filing a wage claim, but on other actions

that are not immunized under the Act, the trial court's dismissal based on the Act was improper.

Hytel argues that if the Act can be utilized to procure the summary dismissal of any subsequent

lawsuit between parties who were once adverse to each other on an issue involving the exercise of

speech or petition rights, no matter how unrelated the subsequent lawsuit may 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 argument poses a question of interpretation involving the Act. As written, section

15 permits the filing of a motion to dismiss any claim that is alleged to be either based on or brought

in retaliation for the movant's exercise of his or her first amendment rights:

"This Act applies to any motion to dispose of a claim in a judicial proceeding on the

grounds that the claim is based on, relates to, or is in response to any act or acts of the

moving party in furtherance of the moving party's rights of petition, speech, association, or

to otherwise participate in government." (Emphasis added.) 735 ILCS 110/15 (West 2008).

Section 15 further provides that such exercises of first amendment rights are immunized by the Act,

unless they fall within a narrow exception:

"Acts in furtherance of the constitutional rights to petition, speech, association, and

participation in the government are immune from liability, regardless of intent or purpose,

except when not genuinely aimed at procuring favorable government action, result, or

outcome." 735 ILCS 110/15 (West 2008).

Because the Act allows a litigant to seek dismissal of not only those claims arising directly out of

his or her protected action (a defamation claim premised on the movant's protected speech, for

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instance), but also those claims allegedly brought "in response to" (i.e., in retaliation for) the

protected action, it appears to apply to claims that are, on their face, unrelated to the protected action.

However, the Act also permits nonmovants to raise the defense that "the acts of the moving

party" were not immunized from liability by the Act. This language is contained in section 20 of the

Act, which immediately follows section 15 and sets out the procedures to be utilized when a movant

claims that a lawsuit is subject to the Act and moves to dismiss it:

"(a) On the filing of any motion as described in Section 15, a hearing and decision

on the motion must occur within 90 days after notice of the motion is given to the

respondent.

***

(c) The court shall grant the motion and dismiss the judicial claim unless the court

finds that the responding party has produced clear and convincing evidence that the acts of

the moving party are not immunized from *** liability by this Act." 735 ILCS 110/20 (West

2008).

The question thus becomes what that phrase--"the acts of the moving party"--means.

Hytel argues that "the acts of the moving party" refers to Butler's acts that form the basis for

its complaint--namely, Butler's alleged failures to accurately describe her qualifications, prepare

financial reports, and tell Hytel's management about her conversations with GBC Funding and

Cochran--and that these acts are not immunized from liability by the Act. In Hytel's view, this

interpretation of the phrase is necessary to prevent the Act from sweeping in claims that are unrelated

to the core first amendment conduct meant to be protected by the Act merely because they are

counterclaims or were otherwise filed "in response to" the movant's claim. Hytel argues that,

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because Butler's actions as alleged in its complaint are not immunized by the Act, the trial court

should have denied the motion to dismiss brought pursuant to the Act, and the trial court's award of

attorney fees under the Act should also be vacated.

Butler counters that Hytel's approach would have the effect of reading the language

encompassing retaliatory suits ("in response to") out of the statute, because under Hytel's

interpretation a suit that was not directly based on a movant's protected actions, but that nevertheless

had clearly been brought "in response to" those actions, could never be dismissed under section 20(c)

despite being expressly identified in section 15 as an appropriate target for dismissal. Butler argues

that the Act should be construed to give meaning to all of its provisions, including the "in response

to" language, and that therefore section 20(c)'s language regarding the "acts of the moving party"

must be interpreted to refer to the movant's protected actions, rather than the acts allegedly forming

the basis of the complaint. Under this interpretation, Hytel could defeat Butler's motion to dismiss

under the Act only by producing clear and convincing evidence that Butler's action of filing a wage

claim was not in fact immunized by the statute, because it was not genuinely aimed at procuring a

favorable result from the government. As noted, Hytel neither raised nor proved this defense. Butler

asserts that the trial court was therefore correct in holding that Hytel did not establish any defense

to her motion to dismiss under the Act.

In interpreting a statute, we must strive to interpret it so as to give meaning to all of its

provisions and avoid interpretations that would render any provision superfluous. Solon v. Midwest

Medical Records Ass'n, 236 Ill. 2d 433, 440-41 (2010). Reading the Act as a whole, we find that

section 20(c)'s phrase "the acts of the moving party" is an unambiguous reference to the actions

identified in section 15 as subject to the Act's protection. Section 15 explicitly includes within the

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Act's reach suits filed "in response to" petitioning activity as well as those "based on" such activity,

thereby encompassing facially unrelated but retaliatory claims. Section 15 also provides that the only

circumstance in which a petitioning activity is excluded from protection is if that activity was "not

genuinely aimed at procuring favorable government action." Similarly, the sole manner in which

a motion to dismiss may be defeated under section 20(c) is by establishing, by clear and convincing

evidence, this same defense. This interpretation is consistent with the description in section 5 of the

Act's purposes, which include preventing abusive litigation that chills the exercise of first

amendment rights: the target of such litigation may feel just as intimidated by a facially unrelated

but clearly retaliatory 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 claim filed

after a movant's initial claim could ever survive a motion to dismiss under the Act. Hytel reasons

that, because any lawsuit represents an exercise of the plaintiff's right to petition for redress 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 contains no language restricting its scope to petitions regarding a matter of public

concern, any counterclaim brought after an initial claim is filed would be considered a claim brought

"in response to" protected petitioning activity and would therefore be barred by the Act.

We reject this argument because it ignores the court's role in determining which claims were

filed "in response to" a protected first amendment activity and are therefore subject to motions to

dismiss under the Act. Although the Act protects all lawsuits as petitioning activity, not every

counterclaim or subsequent claim is brought with the retaliatory intent that makes it subject to

dismissal under the Act. Accordingly, when a lawsuit does not arise directly out of the protected

activity but instead is alleged to have been brought "in response to" the protected activity, it becomes

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vital that the trial court engage in a careful examination of the allegations of the complaint and the

surrounding facts to determine whether it is truly barred by the Act as a retaliatory suit. We believe

that this requirement will prevent the application of the Act beyond its intended scope. For instance,

suppose that a homeowner sues a builder for breach of contract and the builder files a counterclaim

for nonpayment or quantum meruit. Under the Act, even though the dispute between the parties is

private, both of these claims represent the litigants' exercise of their right to petition the government

for redress of grievances, and thus both claims are protected activity under the Act. However, that

does not mean that the claim that happens to have been filed later (in this example, the counterclaim)

may be automatically dismissed under the Act. Instead, the court must determine whether the later-

filed claim is retaliatory. If it states a potentially valid cause of action and seeks damages within the

ordinary range recoverable under the facts of the case, and there are no other facts suggesting an

intent to chill the other party's right to seek redress, then the later claim has not been brought "in

response to" the other party's exercise of first amendment rights within the meaning of the Act.

Thus, it would not be subject to a motion to dismiss under the Act. We anticipate that the vast

majority of counterclaims will lie outside the Act's coverage.

Determining the Act's application to possibly retaliatory claims must be done on a case-by-

case basis. We note that, in this case, the trial court conducted a painstaking analysis of whether

Hytel's suit was a retaliatory claim that fell within the Act or a valid claim that simply happened to

have been filed after Butler filed her wage claim. In doing so, the trial court considered whether the

complaint stated a valid claim and concluded that it did not. This was an appropriate inquiry,

because retaliatory intent may be inferred when a claim lacking merit is filed shortly after the

exercise of protected rights. See Herman v. Power Maintenance & Constructors, LLC, 388 Ill. App.

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3d 352, 364 (2009) (lack of a proper basis for action may raise the inference that true motive was

retaliatory); Hoffelt v. Department of Human 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 also considered the extraordinarily high damages sought in this case and concluded that

the complaint failed to sufficiently allege any facts to support such a high ad damnum. Again, the

trial court appropriately took into account the inference that extremely high damages that are not

supported by the facts alleged are intended to strike fear into the defendant rather than being a good-

faith estimate of the extent of the injury sustained. See M. Sobczak, SLAPPed in Illinois: The Scope

and Applicability of the Illinois Citizen Participation Act, 28 N. Ill. U. L. Rev. 559, 563 (Summer

2008) (a complaint seeking compensatory damages in the millions is one hallmark of a SLAPP).

Here, our review of the record supports the trial court's determination that Hytel's complaint fell

within the Act's description as a claim filed "in response to" Butler's wage claim. However, this

determination was based on the allegations and facts of the case at hand and therefore cannot be

applied in a blanket fashion to claims that may arise in other cases.3

Hytel next argues that, if the Act is interpreted as permitting the dismissal of its lawsuit

against Butler, the Act is unconstitutional "as an infringement on the judiciary," because it "changes

the burden of proof, changes the rules regarding when discovery can be commenced, changes the

3 Although Hytel is incorrect to fear the wholesale dismissal of all counterclaims, the scope

of the Act is unquestionably broad. See 96 Ill. B.J. at 620-21 (as written, the Act appears broader

than any other anti-SLAPP statute). We note that only one other anti-SLAPP statute contains a

similar provision including claims brought "in response to" protected activities. See Utah Code Ann.

§78B--6--1403 (West 2008).

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rules regarding meritorious pleadings (Rule 137), and makes every counterclaim *** a questionable

act under the *** Act."4 Butler argues that Hytel forfeited this argument by failing to raise it in the

trial court. We agree that the record is devoid of any indication that Hytel challenged the

constitutionality of the Act below. A reviewing court will not consider arguments not presented to

the trial court. In re County Treasurer and ex officio County Collector, 373 Ill. App. 3d 679, 702

(2007). That the argument concerns the constitutionality of a statute does not make a difference.

Villareal v. Peebles, 299 Ill. App. 3d 556, 560 (1998). Moreover, even if the argument had not been

forfeited for failure to raise it below, it would be forfeited for lack of support in this court. 210 Ill.

2d R. 341(h)(7). Hytel's entire argument regarding the constitutionality of the Act comprises a page

and a half and does not identify either the "discovery rules" or the "burden of proof *** established

by the legislature" that the Act purportedly contravenes, and it does not explain why the Act violates

the separation-of-powers doctrine, if that is what Hytel is contending. "A reviewing court is entitled

to have the issues before it clearly defined and is not simply a repository in which appellants may

dump the burden of argument and research; an appellant's failure to properly present his own

arguments can amount to waiver of those claims on appeal." People v. Chatman, 357 Ill. App. 3d

695, 703 (2005). For all of these reasons, we find that Hytel has forfeited its argument that the Act

is unconstitutional.

Hytel's final argument on appeal is that the trial court erred in dismissing with prejudice

count I of its complaint, the breach of fiduciary duty claim, pursuant to section 2--615. As we have

4 After filing its notice of appeal and its opening brief, Hytel served notice of its claim of

unconstitutionality and a copy of 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 response.

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upheld the trial court's dismissal of Hytel's entire complaint under the Act, we need not reach this

argument. However, we note that even if we had not affirmed the dismissal under the Act, the result

would be unchanged. Hytel has not appealed the trial court's alternate dismissal of its complaint

under section 2--615, only the fact that the dismissal was entered with prejudice as to count I. We

conclude below that the dismissal of count I with prejudice was not an abuse of discretion and, as

Hytel chose to appeal rather than replead count II, count II remains dismissed as well. Flores v.

Palmer Marketing, Inc., 361 Ill. App. 3d 172, 179 (2005).

The trial court dismissed count I on the ground that under Illinois law an employee who is

not an officer or director of a corporation does not owe a fiduciary duty to the corporation, and thus

the complaint did not adequately plead a fiduciary relationship. Hytel does not argue that count I

should not have been dismissed at all, but rather that the dismissal should have been without

prejudice so that it could amend its complaint to remedy the deficiencies. However, Hytel did not

provide the trial court with an amended complaint that it wished to file, nor did it identify in any

other way (either to the trial court or on appeal) the amendments that it believed would cure the

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 reverse its decision absent an abuse of discretion.

Alpha School Bus Co. v. Wagner, 391 Ill. App. 3d 722, 749 (2009).

The right to amend a complaint is not absolute. Generally, a trial court should exercise its

discretion liberally 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 primary factors that a

trial court should consider in making this determination is whether the proposed amendment would

cure the defective pleading. Alpha School Bus, 391 Ill. App. 3d at 748; see also Edwards v. City of

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Henry, 385 Ill. App. 3d 1026, 1032 (2008). Where the party seeking to amend does not attach a

proposed amended pleading to its motion or otherwise specify the new allegations that it would

include, a trial court has no basis on which to consider whether the amendment would cure the

defects in the current pleading. Here, Hytel has not submitted a proposed amended pleading or

identified any new allegations that it wished to make. (Indeed, Hytel did not even 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 the legal basis for the trial court's dismissal of count I was incorrect. The sole case

Hytel cites in support of its assertion that it could successfully amend its complaint if permitted to

do so is distinguishable, as it is a federal criminal case regarding an enhancement under the

sentencing guidelines for abuse of a position of trust. United States v. Deal, 147 F.3d 562 (7th Cir.

1998). Accordingly, the trial court did not abuse its discretion in dismissing count I with prejudice.

The Cross-Appeal

In her cross-appeal, Butler argues that the trial court erred in denying her any recovery for

the attorney fees she incurred in connection with (1) the preparation and presentation of her motions

for attorney fees, and (2) her motion to dismiss pursuant to section 2--615. Hytel did not file any

response to Butler's cross-appeal. However, as the issue is relatively straightforward, we may

consider Butler's argument despite the absence of a response brief, pursuant to First Capitol

Mortgage Corp. v. Talandis Construction Corp., 63 Ill. 2d 128, 133 (1976) (a reviewing court should

decide the merits of an appeal where the record 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 notes, the parties to a lawsuit must ordinarily bear their own legal expenses in the

absence of a fee-shifting statute. However, the Act contains such a fee-shifting provision, stating

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that "[t]he court shall award a moving party who prevails in a motion under this Act reasonable

attorney's fees and costs incurred in connection with the motion." 735 ILCS 110/25 (West 2008).

The trial court interpreted this provision to mean that Butler could be awarded those attorney fees

and costs associated with her motion to dismiss based on the Act, but not those incurred in preparing

either her motions for attorney fees or her motion to dismiss pursuant to section 2--615. The trial

court's decision on both points raised in the cross-appeal rested on its interpretation of the Act, and

we therefore review it de novo. Lee, 208 Ill. 2d at 43.

On several occasions, this court has held that a statute authorizing the recovery of attorney

fees also authorizes the recovery of fees incurred in preparing the motion or petition for fees. See

In re Marriage of Powers, 252 Ill. App. 3d 506, 512-13 (1993) (section 508 of the Illinois Marriage

and Dissolution of Marriage Act permitted the trial court to award the wife attorney fees incurred

in connection with her fee petition); Wayne Township Board of Auditors v. Ludwig, 154 Ill. App.

3d 899, 909-10 (1987) (where township officer was required to retain private counsel due to conflict

of interest and statute required that his fees be paid in that situation, officer could recover fees

incurred in connection with motion for fees); Rackow v. Human Rights Comm'n, 152 Ill. App. 3d

1046, 1064 (1987) (where Illinois Human Rights Act provided for the award of attorney fees to a

successful litigant, inclusion of time spent preparing motion for fees was appropriate). Nevertheless,

in each case the award of fees must be evaluated in light of the language of the statute at issue and

the overall purpose of the statute. Powers, 252 Ill. App. 3d at 513.

Here, the statute authorizes the recovery of attorney fees "incurred in connection with the

motion" to dismiss brought pursuant to the Act. 735 ILCS 110/25 (West 2008). "One of the

fundamental principles of statutory construction is to view all provisions of an enactment as a

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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 together with section 5, which lists providing for "attorney's fees and costs to prevailing

movants" as one of the purposes of the Act, and section 30(b), which commands that the Act be

construed liberally to fully effectuate its purposes and intent. 735 ILCS 110/5, 30(b) (West 2008).

In Wayne Township, we commented that, in general, refusing to award fees incurred in the

preparation of a motion that was necessary to secure the award of fees to a victorious party "would

dilute the effect of the statute by requiring successful litigants to incur additional costs to enforce

their rights." Wayne Township, 154 Ill. App. 3d at 910. We believe that, inasmuch as the Act

mandates the award of certain attorney fees and costs to a successful movant, it thereby requires the

successful movant to prepare and present a fee petition. Just as in Wayne Township, refusing to

reimburse the movant for this necessary expense would run counter to the express purpose of the

Act. Reading all of the provisions of the Act together, therefore, we believe that section 25 permits

the recovery of attorney fees incurred in preparing and presenting a motion for fees. We therefore

modify the judgment in favor of Butler to include an additional $4,306, the amount previously

identified as representing the fees that were disallowed because they were incurred during the

preparation and presentation of her motions for fees.

The attorney fees and costs associated with Butler's motion to dismiss pursuant to section

2--615 stand on a different footing, however, for they were not necessary to advance the anti-SLAPP

purposes of the Act. While it may have been commendable caution on the part of Butler and her

attorneys that led her to file a section 2--615 motion at the same time as her motion under the Act,

this was a strategic decision and not one compelled by the Act, and therefore the Act does not relieve

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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 legal expenses they may have incurred apart from those recoverable under the Act: to the

extent that a SLAPP (or any other lawsuit) is not "well grounded in fact and *** warranted by

existing law or a good-faith argument 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

needless increase in the cost of litigation," it may be subject to sanctions pursuant to Supreme Court

Rule 137 (155 Ill. 2d R. 137), which could include attorney fees and costs not covered by the Act.

The judgment of the circuit court of Kane County is affirmed as modified.

Affirmed as modified.

BOWMAN and O'MALLEY, JJ., concur.

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