                                         2018 IL App (1st) 171077
                                              No. 1-17-1077

                                                                  SECOND DIVISION
                                                                        June 26, 2018
     ______________________________________________________________________________

                                         IN THE

                             APPELLATE COURT OF ILLINOIS

                                FIRST JUDICIAL DISTRICT

     ______________________________________________________________________________


     RICHARD MACHNICKI, KATHY                        )  Appeal from the Circuit Court
     MACHNICKI, and ZBIGNIEW KUROWSKI,               )  of Cook County.
                                                     )
             Plaintiffs,                             )
                                                     )  No. 12 CH 32792
     v.                                              )
                                                     )

     MARIUSZ KUROWSKI and UNKNOWN )                     The Honorable

     OWNERS,                                         )  James P. Flannery,

                                                     )  Judge Presiding.
             Defendants                              )
                                                     )

     (Richard Machnicki and Zbigniew Kurowski, )

     Plaintiffs and Counterdefendants-Appellants; )

     Mariusz Kurowski, Individually and on Behalf of )

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

     Counterplaintiff-Appellee).                     )

     ______________________________________________________________________________

            JUSTICE PUCINSKI delivered the judgment of the court, with opinion.
            Justices Hyman and Walker concurred in the judgment and opinion.

                                                   OPINION

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

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

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

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

     2016)). Plaintiffs contend on appeal that, in violation of the plain language of section 12.60(j),
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     the trial court considered alleged acts by plaintiffs that occurred outside of the litigation when

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

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

¶2                                           BACKGROUND

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

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

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

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

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

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

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

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

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

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

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

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

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

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

     alleged breaches under section 12.56 of the Corporation Act.

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

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

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

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


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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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


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

     plaintiffs.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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


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

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

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

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

¶ 11          Plaintiffs then instituted this appeal.

¶ 12                                               ANALYSIS

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

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

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

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

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

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

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

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

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

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

¶ 14                                      Conduct to Be Considered

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

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

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

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

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




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

       12.60(j).

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

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

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

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

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

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

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

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

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

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

       2016 IL App (1st) 151372, ¶¶ 34, 38.

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

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

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

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

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

              2016).

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

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

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

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


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

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

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

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

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

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

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

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

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

       ¶ 38.

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

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

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

       follows:

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

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

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

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

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

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

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

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

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


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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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


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

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

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

       such language or any language even remotely close in meaning.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

       serve as a limitation on fee awards.




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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

       interpretation.”).

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

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

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

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

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




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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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


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

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

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

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

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

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

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

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

¶ 26                                              Specific Findings

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

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

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

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

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

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

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

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

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

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

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

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

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

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


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

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

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

       acts.

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

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

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

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

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

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

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

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

       party forfeiting consideration of the issue.”).

¶ 30                                            Amount of Award

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

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

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

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

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

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

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

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

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


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

       abused its discretion.

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

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

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

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

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

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

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

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

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

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

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

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

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

       prosecution of defendant’s section 12.56 claim.

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

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

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

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

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

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




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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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


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

       offending behavior.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

       issue.”).

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

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

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

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


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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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


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

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

       12.60(j) of the Corporation Act.

¶ 41                                          CONCLUSION

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

¶ 43          Affirmed.




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