Enterprise Recovery Systems, Inc. v. Salmeron

PRESIDING JUSTICE CUNNINGHAM

delivered the opinion of the court:

The defendant, Rhonda Salmerón (Salmerón), appeals from the entry of summary judgment for the plaintiff, Enterprise Recovery Systems, Incorporated (Enterprise), by the circuit court of Cook County. The circuit court awarded Enterprise $150,000 plus unspecified costs in Enterprise’s lawsuit against Salmerón for fraud in the inducement and breach of her duty of loyalty to Enterprise, her former employer. On appeal, Salmerón asserts that the circuit court erred when, as a sanction for the repeated contumacious behavior of one of her lawyers, the court barred Salmerón from presenting any evidence supporting her defense or her counterclaim. Salmerón also contends that Enterprise’s pleadings did not establish the elements for fraud in the inducement and did not establish that Salmerón owed or breached a duty of loyalty to Enterprise. Finally, Salmerón contends that the circuit court erred in failing to grant her postjudgment “emergency motion” to vacate the judgment against her and dismiss the lawsuit, based on Salmeron’s alleged immunity under section 15 of the Citizen Participation Act (735 ILCS 110/15 (West 2008)). We affirm the judgment of the circuit court of Cook County.

BACKGROUND

Salmerón was Enterprise’s general manager and director of operations from July 12, 1998, until she was fired on July 31, 2002. Enterprise is in the business of the recovery and resolution of delinquent student loans. Enterprise also provides third-party service on loan accounts for the United States Department of Education (Department of Education). After Salmerón was fired by Enterprise, she sued Enterprise and its president, Sam Tornatore, for sexual harassment. In March of 2004, the parties settled the dispute, with Salmerón signing a general release of claims against Enterprise and Tornatore in return for the payment to her of $300,000.

The release stated in pertinent part that in consideration of the $300,000 payment, Salmerón forever discharged and released Enterprise from:

“all actions [and] *** claims *** relating in any way to events occurring prior to and including the date of execution of the Agreement *** growing out of or related in any way *** to all known and unknown *** damages or consequences relating to [Salmeron’s] employment \by Enterprise].” (Emphasis added.)

The money was paid to Salmerón in installments and the final payment was made on April 15, 2005.

Less than four months after that final payment was made, Salmerón brought a qui tarn¹ lawsuit in federal court against Enterprise on behalf of the federal government and herself. Qui tarn lawsuits typically allege that an individual or entity has defrauded the government. They are brought by a private individual on behalf of the government, although the government may choose to intervene in the action and carry the litigation forward in lieu of the individual plaintiff. In that event, the individual plaintiff is entitled to a share of any funds recovered from the wrongdoer by the government. Vermont Agency of Natural Resources v. United States ex rel. Stevens, 529 U.S. 765, 768-70, 146 L. Ed. 2d 836, 842-44, 120 S. Ct. 1858, 1860-62 (2000). In paragraph one of her qui tarn lawsuit, Salmerón alleged that damages and penalties assessed against Enterprise, by her estimate, would amount to over $8 million. Salmeron’s complaint alleged that Enterprise had submitted false statements, false claims, and false records to the Department of Education in violation of the False Claims Amendments Act of 1986 (31 U.S.C. §§3729 through 3732 (2000)). Salmeron’s complaint also stated that during her employment with Enterprise, she discovered some of these allegedly wrongful acts by Enterprise employees, although she never notified anyone at Enterprise about the wrongdoing during her employment. Salmerón subsequently added several other corporations and one individual as defendants in the qui tarn lawsuit.

The qui tarn lawsuit was initially dismissed because of the contumacious and dilatory conduct of one of Salmeron’s lawyers, who, over a period of three years, continually failed to meet discovery deadlines and filing deadlines, and failed to appear at scheduled status conferences. The federal district court dismissed the lawsuit because of this behavior, but then reinstated the lawsuit with the admonishment to the lawyer in question that any further misbehavior would have severe consequences. The same lawyer was later revealed to have leaked, to a Web site specializing in publishing leaked documents, a confidential agreement entered into by Enterprise and two of the other defendant corporations in the pending qui tarn lawsuit. The lawyer leaked this document in direct breach of a confidentiality agreement with the three corporations that were parties to the agreement. The federal district court then dismissed Salmeron’s qui tarn lawsuit with prejudice, ascribing the lawyer’s behavior to Salmerón. That dismissal was upheld on appeal on the same basis. Salmeron v. Enterprise Recovery Systems, Inc., 579 F.3d 787 (7th Cir. 2009). In its opinion, the United States Court of Appeals for the Seventh Circuit also rejected Salmeron’s claim that the dismissal would harm the interests of the federal government. The federal court of appeals noted that the federal government chose not to intervene in the qui tam lawsuit, despite its statutory right to do so. Salmerón, 579 F.2d at 797-98. It is noteworthy that the federal government regularly intervenes in meritorious qui tam lawsuits.

In the qui tam lawsuit, Enterprise had filed a cross-claim against Salmerón for fraud in the inducement and breach of fiduciary duty. It also asserted an affirmative defense based on the release signed by Salmerón when she settled her sexual harassment lawsuit against Enterprise and Tornatore. The federal district court found that this defense was not “a predicate for dismissal” of Salmeron’s lawsuit. However, two additional events occurred. First, at the federal district court’s suggestion, Enterprise withdrew its cross-claim against Salmerón and instead filed this lawsuit in the circuit court of Cook County, making the same allegations against Salmerón as previously made in the federal case. Second, Salmeron’s qui tam lawsuit was dismissed with prejudice.²

The instant lawsuit now on appeal before us was filed by Enterprise on July 20, 2006. In the lawsuit, Enterprise alleged that Salmerón had committed fraud in the inducement against Enterprise and had breached her duty of loyalty to Enterprise. Enterprise alleged that Salmerón committed fraud by signing a general release of liability while knowing that she had uncovered evidence which purportedly showed that Enterprise had defrauded the Department of Education and which she planned to use as one basis for filing a qui tam lawsuit against Enterprise in federal court. Enterprise alleged that Salmerón had breached a duty of loyalty which she owed to Enterprise by failing to disclose to Enterprise the evidence of fraud that some Enterprise employees had defrauded the Department of Education.

Salmerón filed a five-count counterclaim against Enterprise in the circuit court lawsuit. During the course of pretrial activities in the lawsuit, Salmerón was sanctioned because of contumacious behavior by her trial lawyer. This is the same lawyer who represented Salmerón in the qui tam lawsuit, in which his misconduct also resulted in sanctions against Salmerón. The lawyer and his law firm represented Salmerón in the circuit court lawsuit filed against her by Enterprise and, initially, on appeal before this court.³ It was the behavior of this lawyer, as the case progressed in the circuit court of Cook County, which prompted the trial court to bar Salmerón from presenting any evidence in support of her defense or her counterclaim. That lawyer repeatedly failed to answer Enterprise’s discovery requests, including requests for admission, even when ordered to do so by the trial court. The lawyer also failed to appear at several hearings scheduled by the trial court. As a consequence of these cumulative actions in violation of the court’s orders, and pursuant to Supreme Court Rule 219 (134 Ill. 2d R. 219), the trial court barred Salmerón from presenting any evidence in support of her defense or her counterclaim. Enterprise then moved for summary judgment on both counts of its complaint. Enterprise’s motion for summary judgment was supported by an affidavit of Enterprise’s president, Sam Tornatore. In his affidavit, Tornatore stated that in the qui tam lawsuit, Salmerón had produced Enterprise company log reports purporting to document her claim that certain employees of Enterprise were engaged in a pattern or practice of falsifying billing to the Department of Education by claiming telephone calls and skip trace activities which had not occurred. Tornatore’s affidavit stated that these log reports were the property of Enterprise and must have been stolen by Salmerón while she was employed by Enterprise. Copies of the reports were attached as exhibits to Enterprise’s motion for summary judgment. Tornatore also stated that by failing to alert him to these alleged activities by Enterprise employees, Salmerón deprived Enterprise of the opportunity to stop the alleged improper activities. Tornatore further asserted that in making the full payment of $300,000 to Salmerón, Enterprise and he had relied on Salmeron’s representations in the release which she signed.

As additional support for its summary judgment motion, Enterprise appended as an exhibit its requests for admission, which Salmerón had never answered. As Salmerón concedes on appeal, the failure to answer requests for admission meant that all factual statements in the requests were deemed to be admitted by Salmeron. 134 Ill. 2d R. 216; Robbins v. Allstate Insurance Co., 362 Ill. App. 3d 540, 542-43, 841 N.E.2d 22, 25 (2005). Thus, Salmerón admitted the following facts. Before signing the release in settlement of the sexual harassment lawsuit against Enterprise and Tornatore, Salmerón believed, and told her lawyer, that Enterprise was submitting false claims, false statements, and false records to the Department of Education. Before signing the release, Salmerón gathered documentation from Enterprise to support this belief and provided her lawyer with that documentation. When she signed the release, Salmerón did not intend to release all claims arising from her employment with Enterprise, as the release stated she was doing. She knew that she would be bringing a qui tam lawsuit against Enterprise. After receiving the final payment required by the release, Salmerón contacted the Department of Education about her belief that Enterprise was submitting false claims, false statements, and false records. During her employment with Enterprise, Salmerón never notified Enterprise’s president, Sam Tornatore, about her belief that certain employees of Enterprise were submitting false claims, false statements and false records to the Department of Education.

Salmerón did not respond to Enterprise’s motion for summary judgment, despite a briefing schedule ordered by the trial court. On May 1, 2008, the trial court granted Enterprise’s motion for summary judgment on both counts of its complaint: fraud in the inducement and breach of Salmeron’s duty of loyalty to Enterprise. A prove-up hearing was held on June 2, 2008, to determine damages, and the trial court awarded Enterprise $150,000 in damages, plus unspecified costs. Salmerón has not included a transcript of that hearing in the record on appeal to this court. On September 19, 2008, Salmerón filed an “emergency motion” in the trial court to dismiss the circuit court lawsuit, asserting for the first time that the Citizen Participation Act (735 ILCS 110/15 (West 2008)) granted her immunity from liability for filing the qui tam lawsuit and also asserting that her immunity extended to the lawsuit filed against her by Enterprise in the circuit court of Cook County. The trial court denied that motion. On September 25, 2008, the trial court entered a final and appealable order on the summary judgment entered in favor of Enterprise. On that date the court also granted Enterprise’s motion to dismiss all of the remaining counts of Salmeron’s counterclaim. On appeal to this court, Salmerón has not sought to overturn the dismissal of her counterclaim but rather focuses on the court’s imposition of sanctions against her and its entry of summary judgment for Enterprise. Salmerón filed a timely appeal in this court from the judgment of the circuit court of Cook County.

ANALYSIS

We first consider whether the trial court erred in the sanctions it imposed on Salmerón for the conduct of her trial lawyer. The imposition of sanctions is a matter left primarily to the discretion of the trial court, and only upon a showing of clear abuse of that discretion will the trial court’s decision be overturned on appeal. Illinois case law documents 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) (no abuse of discretion in striking the defendant’s pleadings and entering a default judgment against him because he failed to comply with the trial court’s orders and discovery rules); In re Marriage of Gluszek, 168 Ill. App. 3d 987, 992, 523 N.E.2d 126, 129 (1988) (trial court did not abuse its discretion by striking the defendant’s pleadings and barring his testimony because the defendant repeatedly failed to respond to interrogatories); Smith v. Black & Decker (U.S.), Inc., 272 Ill. App. 3d 451, 460-61, 650 N.E.2d 1108, 1115-16 (1995) (no abuse of discretion by the trial court in barring the testimony of witnesses who were not disclosed in a timely fashion).

The record establishes that Salmeron’s trial lawyer repeatedly and without explanation failed to respond to Enterprise’s requests for discovery and requests for admission, even when ordered to respond by the trial court. The lawyer did not answer, object, or request an extension of time to respond to any of Enterprise’s requests. The lawyer also, without explanation, failed to appear for hearings scheduled by the trial court. As Enterprise argues, these actions by Salmeron’s trial lawyer prevented Enterprise from preparing for and properly prosecuting its lawsuit. On appeal to this court, Salmeron’s briefs have failed to disclose any satisfactory explanation for the behavior of her trial lawyer. As we have noted, this same type of conduct, by this same lawyer, resulted in the dismissal of Salmeron’s qui tarn lawsuit in federal court. Given the broad discretion afforded to trial courts, we find no abuse of discretion in the trial court’s ruling that barred Salmerón from presenting any evidence in her defense or in support of her counterclaim.

Turning to the entry of summary judgment in favor of Enterprise, our review is de novo. Bagent v. Blessing, 224 Ill. 2d 154, 163, 862 N.E.2d 985, 991 (2007). Upon examination of the pleadings, depositions, and admissions, if no question of material fact exists, then we must determine whether the movant is entitled to judgment as a matter of law. Outboard Marine Corp. v. Liberty Mutual Insurance Co., 154 Ill. 2d 90, 102, 607 N.E.2d 1204, 1209 (1992); Gaston v. City of Danville, 393 Ill. App. 3d 591, 601, 912 N.E.2d 771, 779-80 (2009). In this case, the trial court found that Enterprise had sufficiently alleged that Salmerón committed fraud in the inducement. The elements of that tort are: a false representation of material fact, made with knowledge or belief of that representation’s falsity, and made with the purpose of inducing another party to act or to refrain from acting, where the other party reasonably relies upon the representation to its detriment. Phil Dressler & Associates, Inc. v. Old Oak Brook Investment Corp., 192 Ill. App. 3d 577, 584, 548 N.E.2d 1343, 1347 (1989). Enterprise alleged that Salmerón committed fraud in the inducement by entering into a purported release of all her claims against Enterprise and Tornatore which arose out of her employment with Enterprise. At the same time, she knew that she had gathered information against Enterprise in support of a planned qui tam lawsuit in federal court. She held this information in confidence and did not mention it until after reaching a settlement agreement with Enterprise and Tornatore. Four months after receiving the final payment pursuant to the settlement agreement, which included a release of all future claims against Enterprise, Salmerón did indeed file a qui tam lawsuit against Enterprise.

Salmeron’s admissions establish that she signed the release agreement with Enterprise with no intention of honoring it. Furthermore, she had in her possession, at the time of the settlement agreement, documentation which purportedly established fraudulent billing practices by Enterprise employees. She signed the release agreement knowing that she would shortly bring a qui tam lawsuit against Enterprise in federal court. Under these facts, we find that Enterprise’s complaint sufficiently alleged facts supporting fraud in the inducement. By signing the release, Salmerón knowingly misrepresented that she would not make any future claims against Enterprise which were related to her employment with Enterprise. Specifically, as we have previously noted, the agreement stated that it covered:

“all actions [and] *** claims *** relating in any way to events occurring prior to and including the date of execution of the Agreement *** growing out of or related in any way *** to all known and unknown *** damages or consequences relating to [Salmeron’s] employment \by Enterprise.” (Emphasis added.)

This induced Enterprise to pay Salmerón $300,000 in reasonable reliance on her agreement to release Enterprise from all future claims related to her employment with Enterprise.

We disagree with any assertion that the parties did not intend that this release cover possible future qui tam actions by Salmerón. We also disagree that the release only applied to future actions or claims by Salmerón arising out of her allegations of sexual harassment related to her employment. Any other conclusion is pure speculation, which is contradicted by the broad language of the release itself. The release lists a number of possible actions which are specifically covered by the release, many of which relate to Salmeron’s claim of sexual harassment. But the specific language of the release also states, at the beginning of the listing of claims for relief which are included, that the claims are listed “without in any way limiting the generality” of the broad terms of the release. The clear terms of the release state that it applies to “all actions [and] *** claims *** relating in any way *** to [Salmeron’s] employment [by Enterprise].” The more natural construction of this broad language and the list of possible actions is that Enterprise wished to foreclose Salmerón from bringing any future action against it arising out of her employment. Indeed, 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 language of the release applies to Salmeron’s subsequent filing of a qui tam complaint.

In its complaint in the circuit court, Enterprise also alleged that Salmerón breached her duty of loyalty to Enterprise by failing to disclose to Enterprise, while she was an employee in a position of trust, the fraud that she had allegedly uncovered. Such a breach is established when a person with a fiduciary duty to a party breaches that duty in a manner which is the proximate cause of injury to the party to whom that duty is owed. Alpha School Bus Co. v. Wagner, 391 Ill. App. 3d 722, 747, 910 N.E.2d 1134, 1158 (2009). Enterprise alleged that Salmerón failed to disclose to Enterprise the fraudulent activity she allegedly discovered while working for Enterprise in order to enrich herself by later bringing a qui tam lawsuit against Enterprise, without ever having given Enterprise the opportunity to rectify the problem. As a high-level member of Enterprise’s management team, Salmerón owed Enterprise a duty of loyalty. Salmeron’s duty of loyalty to Enterprise was much more than a singular duty of acting to preserve the corporate res for the benefit of the shareholders. We note that disclosure of the alleged fraud arguably may have indirectly benefitted Enterprise from an ethical perspective by enabling it to remove corrupt elements from its company. Salmerón also owed Enterprise a duty not to improperly profit or seek to profit from the knowledge she acquired while in a position of trust at the company, to the detriment of the company. Salmeron’s actions were in competition and conflict with Enterprise’s interests. Specifically, it was in Enterprise’s interest to root out fraud and corruption within the company. On the other hand, it was in Salmeron’s interest not to stop the corrupt activities until she was able to gather sufficient information in order to bring a qui tam lawsuit against Enterprise. There is no doubt that she could personally profit by sharing in the proceeds of a successful prosecution of that lawsuit. It was reasonable for Enterprise to expect that Salmerón would not exploit her management position within the company for her own personal benefit. Enterprise reasonably expected that Salmerón would not do anything to hinder the corporation in its business operations. Alpha School Bus Co., 391 Ill. App. 3d at 736-37, 910 N.E.2d at 1149-50; Comedy Cottage, Inc. v. Berk, 145 Ill. App. 3d 355, 359-60, 495 N.E.2d 1006, 1011 (1986).

We agree that Salmeron’s position of authority and trust at Enterprise, serving as its general manager and director of operations, imposed upon her a duty of loyalty to Enterprise. That duty included the requirement that she not seek to profit at the expense of the corporation. Comedy Cottage, 145 Ill. App. 3d at 359-60, 495 N.E.2d at 1011. The fact that Enterprise’s corporate bylaws do not enumerate the duties owed to Enterprise by Salmerón does not negate the duty of loyalty which Salmerón owed to Enterprise. She clearly breached that duty when, as her own admission establishes, she lied to Enterprise in signing the general release in order to induce a significant settlement payment knowing at the time that she had no intention of honoring it. Further, she failed to give Enterprise the opportunity to act against the employees allegedly engaging in violation of the False Claims Act by failing to inform Enterprise of the fraud she had supposedly uncovered.

Under the facts of this case, unlike the dissent, we decline to follow the federal district court’s nonbinding suggestion that the release agreement signed between Salmerón and Enterprise did not apply to Salmeron’s filing of a qui tarn lawsuit. The plain language of the release stated that Salmerón would release Enterprise from all claims relating to her employment with Enterprise. As the general manager and director of operations for Enterprise, it is evident that Salmeron’s employment put her in a position to uncover the alleged fraud. It is also undisputed that the qui tarn lawsuit which she brought in federal court, alleging that employees of Enterprise had committed fraud against the Department of Education, was based upon information which she learned while working for Enterprise in her management capacity. It was Salmeron’s duty to reveal such alleged fraud to Enterprise. She also had a duty to refrain from seeking to personally benefit by her nondisclosure of the activity which clearly put the company at risk. However, we do not imply nor suggest that an employee who files a qui tarn action instead of informing their employer of alleged fraud within the company commits a breach of their duty of loyalty. The unique facts of this case, measured against applicable case law informs our analysis. Thus, our holding is based upon the unique facts of this case. Accordingly, we hold that the trial court did not err in granting summary judgment for Enterprise on both counts of its complaint.

In an “emergency motion” filed in the circuit court of Cook County on September 19, 2008, after the entry of summary judgment for Enterprise, Salmerón sought dismissal of Enterprise’s lawsuit on the basis that it was brought in violation of section 15 of the Citizen Participation Act (the Act), which became effective in August 2007. 735 ILCS 110/15 (West 2008). Thus the Act was in effect for over one year before Salmerón cited it as the basis for her motion to dismiss Enterprise’s lawsuit, after the trial court had ruled against her. Salmerón presented no valid reason for failing to raise this defense during the lengthy pendency of the case in the circuit court, before judgment was entered. Ordinarily, affirmative defenses must be set forth in the answer or reply to a complaint. 735 ILCS 5/2- — 613 (West 2006). This requirement is to prevent a plaintiff from being taken by surprise, and a defendant who fails to timely file an affirmative defense is deemed to have forfeited that defense. Cordeck Sales, Inc. v. Construction Systems, Inc., 382 Ill. App. 3d 334, 376, 887 N.E.2d 474, 515 (2008); Spagat v. Schak, 130 Ill. App. 3d 130, 134, 473 N.E.2d 988, 991-92 (1985). The Act relied upon by Salmerón was not in effect when Enterprise filed its lawsuit against Salmerón in the circuit court in 2006. The Act became effective in 2007, a year after the instant lawsuit was filed. Yet Salmerón did not seek to invoke the immunity of the Act which she now claims. In fact, she waited until after judgment was entered against her and the case was concluded in the trial court before raising the affirmative defense. Accordingly, she has forfeited that defense. Furthermore, she had already been barred by the trial court’s order from presenting any defense to the lawsuit. For these reasons, we hold that the trial court did not err in denying Salmeron’s postjudgment motion to dismiss Enterprise’s lawsuit.

The judgment of the circuit court of Cook County is affirmed.

Affirmed.

HOFFMAN, J., concurs.

1 An abbreviation of the Latin phrase, “qui tam pro domina rege quam pro se ipso in hac parte sequitor,” which is translated as “[one] who pursues this action on our Lord the King’s behalf as well as his own.” Vermont Agency of Natural Resources v. United States ex rel. Stevens, 529 U.S. 765, 768 n.1, 146 L. Ed. 2d 836, 843 n.1, 120 S. Ct. 1858, 1860 n.1 (2000).

2 No issue of res judicata or collateral estoppel was raised by any of the parties with respect to the effect of the federal dismissal on any claims or cross-claims in the state lawsuit.

3 During the course of this appeal, we granted the motion of the lawyer and his law firm to withdraw from representing Salmerón on appeal.