Hooker v. Retirement Board of the Fireman's Annuity & Benefit Fund

Illinois Official Reports
Appellate Court
Hooker v. Retirement Board of the Fireman’s Annuity & Benefit Fund,
2014 IL App (1st) 131568Appellate Court DANIEL HOOKER, as Special Representative and Heir, Individually
Caption and on Behalf of All Other Persons Similarly Situated,
Plaintiffs-Appellants, v. THE RETIREMENT BOARD OF THE
FIREMAN’S ANNUITY AND BENEFIT FUND OF CHICAGO,
Defendant-Appellee.
District & No. First District, Fourth Division
Docket No. 1-13-1568
Filed May 22, 2014
Held In an action arising from a dispute concerning the retirement benefits
(Note: This syllabus due to the widow and estate of a fireman who was injured in the line of
constitutes no part of the duty, the trial court properly dismissed the claim of the estate of the
opinion of the court but fireman’s deceased widow to an increase in her annuity based on a
has been prepared by the salary increase for firemen that was included in a collective bargaining
Reporter of Decisions agreement that was ratified several months after the widow’s death,
for the convenience of since the estate’s claim was untimely filed more than 35 days after the
the reader.) Retirement Board gave notice that the final payment to the widow had
been made, and the widow’s death abated any claim by her heirs for
retroactive reimbursement of the widow’s survivor benefits based on
the new collective bargaining agreement.
Decision Under Appeal from the Circuit Court of Cook County, No. 12-CH-21995; the
Review Hon. Mary Anne Mason, Judge, presiding.
Judgment Affirmed.
Counsel on Martin O. Holland, of Evergreen Park, for appellant.
Appeal
Mary Patricia Burns, Vincent D. Pinelli, and Larisa L. Elizondo, all of
Burke, Burns & Pinelli, Ltd., of Chicago, for appellee.
Panel JUSTICE FITZGERALD SMITH delivered the judgment of the
court, with opinion.
Presiding Justice Howse and Justice Lavin concurred in the judgment
and opinion.
OPINION
¶1 In this case we are asked to determine whether a cause of action against the defendant,
the Retirement Board of the Fireman’s Annuity & Benefit Fund of Chicago (hereinafter the
Board), may be brought by an estate of a deceased former recipient of an annuity paid
pursuant to the Illinois Pension Code (Pension Code) (40 ILCS 5/6-101 et seq. (West 2008))
to benefit the estate’s heirs. We hold today that it may not and therefore affirm the judgment
of the circuit court.
¶2 I. BACKGROUND
¶3 The facts and procedural history of this cause are complex and reveal the following.
Michael Hooker (hereinafter Michael) was employed by the Chicago fire department from
April 1, 1967, to July 13, 1989. Michael was married to Elaine Hooker (hereinafter Elaine).
In 1989, Michael suffered a debilitating duty-related injury. He was subsequently awarded a
duty disability benefit by the Board pursuant to section 6-151 of the Pension Code (40 ILCS
5/6-151 (West 2000)). Michael died on December 6, 2000. Elaine then applied to the Board
for benefits and was awarded an ordinary widow’s pension (i.e., minimum annuity) pursuant
to section 6-141.1 of the Pension Code (40 ILCS 5/6-141.1 (West 2000)).
¶4 Elaine believed that pursuant to section 6-140 of the Pension Code, she was entitled to a
higher annuity for widows of firemen who died in the line of duty (40 ILCS 5/6-140 (West
2000)). She therefore filed a complaint in the circuit court on February 5, 2003, requesting
administrative review of the Board’s decision. Relying on Bertucci v. Retirement Board of the
Firemen’s Annuity & Benefit Fund, 351 Ill. App. 3d 368 (2004), on June 2, 2005, the circuit
court found that because Michael’s duty-related injury was permanent and prevented him
from ever returning to active duty, Elaine was entitled to section 6-140(a) annuity benefits
(i.e., 75% rather than 50% of her husband’s salary). See 40 ILCS 5/6-140 (West 2000). The
court ordered the Board to award the line-of duty death benefits prescribed by section
6-140(a) (40 ILCS 5/6-140 (West 2000)) and remanded the cause to the Board for a
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calculation of those benefits. On January 18, 2006, the Board awarded Elaine section
6-140(a) benefits retroactive to the date of the Bertucci decision.
¶5 On August 28, 2006, Elaine filed a motion to amend her February 5, 2003, complaint. In
September 2006, the circuit court granted Elaine leave to file a three-count amended
complaint. In count I of her complaint, Elaine sought administrative review of the Board’s
decision on remand, alleging that she was entitled to benefits retroactive to the date of her
husband’s death, rather than the date of the Bertucci decision. Count II sought certification of
the class of all widows similarly situated to Elaine. In count III, Elaine raised a new issue,
alleging that the calculation of her widow’s annuity pursuant to section 6-140(a) (40 ILCS
5/6-140(a) (West 2000)) had to include a type of fireman’s compensation known as duty
availability pay (hereinafter DAP). Elaine acknowledged that DAP was not in existence at
the time her husband worked as a fireman and that her husband did not receive such
compensation while employed by the Chicago fire department. She nevertheless argued that
the Board was required to include DAP in the calculation of the annuities which she had
received pursuant to section 6-140(a) of the Pension Code (40 ILCS 5/6-140(a) (West 2000)).
Count III also sought certification of the class of all widows who were receiving section
6-140(a) annuities but had not had DAP included in the determination of their benefits.
¶6 The circuit court stayed proceedings on Elaine’s amended complaint. Thereafter, on
December 20, 2007, the circuit court vacated the Board’s decision from the original order on
remand, and directed the Board to pay Elaine benefits retroactive to the date of Michael’s
death, rather than as the Board had done to the Bertucci decision. The Board appealed the
circuit court’s decision but the appellate court affirmed the circuit court’s order. See Hooker
v. Retirement Board of the Firemen’s Annuity & Benefit Fund, 391 Ill. App. 3d 129 (2009)
(Hooker I). On April 28, 2009, the Board complied with the appellate court’s decision and
awarded Elaine benefits retroactive to the death of her husband, as well as prejudgment and
postjudgment interest.
¶7 Proceedings then went forward on Elaine’s amended complaint. On May 26, 2010, the
circuit court dismissed counts I and II of Elaine’s claim as moot. The court held that because
Elaine had been paid benefits retroactive to the date of Michael’s death, as well as interest,
that count I of her complaint had been fully resolved. As to the requested class certification
in count II, the court held that because the claim had been resolved in Elaine’s favor, she was
no longer the proper party to adequately protect the interests of the class she purported to
represent, and the class action had to be dismissed.
¶8 Elaine died on September 20, 2010. The record is unclear, but it appears that at this point
in the proceedings, Elaine’s son, and heir, Daniel Hooker, the plaintiff in the cause at bar,
was substituted as special representative, and the case proceeded solely on count III of
Elaine’s amended complaint. The parties filed cross-motions for summary judgment.
Following a hearing, on May 25, 2011, the court denied Elaine’s motion for summary
judgment and granted the motion in favor of the Board concluding that Elaine was not
entitled to have her widow’s annuity adjusted for DAP. The court also declined to certify the
class of potential widows with the same DAP claim.
¶9 On September 15, 2011, the plaintiff appealed the circuit court’s decision as to count III.
On May 9, 2012, this appellate court reversed the circuit court’s decision, finding that
pursuant to section 6-111(i) of the Pension Code (40 ILCS 5/6-111(i) (West 2008)), the
Board was required to include the DAP in the calculation of Elaine’s section 6-140(a)
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widow’s annuity (40 ILCS 5/6-140(a) (West 2008)), even if the DAP had never been
received by her husband while working as a Chicago fireman. See Hooker v. Retirement
Board of the Firemen’s Annuity & Benefit Fund, 2012 IL App (1st) 111625, ¶¶ 13-21 (Hooker
II). This appellate court also concluded that class certification was appropriate. Hooker II,
2012 IL App (1st) 111625, ¶¶ 23-33.
¶ 10 In addition, shortly after Elaine’s death, on November 29, 2010, the Board sent one of
Elaine’s heirs, Walter Hooker, a letter and a check for $4,003, representing the last pro rata
annuity due to Elaine before her death. In its letter, the Board notified the heir that this was
the Board’s final payment and that if he wished to dispute this final payment, he had 35 days
within which to seek administrative review.
¶ 11 Thereafter, on February 9, 2011, the Chicago city council ratified a new collective
bargaining agreement between the City of Chicago and the Chicago Fire Fighters Union,
Local No. 2, according certain salary increases to firefighters retroactive to July 1, 2007.
Consequently, on August 10, 2011, the plaintiff sent a letter to the Board demanding that the
Board pay the heirs of Elaine’s estate retroactive widow annuity benefits based upon the new
collective bargaining agreement.
¶ 12 While the Hooker II appeal was pending, on September 23, 2011, the Board responded to
plaintiff’s letter, stating that the annuity to a widow is a lifetime benefit that abates at death
and that, therefore, Elaine’s heirs were without legal recourse as to the retroactive salary
increases in the February 2011 collective bargaining agreement. On November 22, 2011, the
Board reiterated its position in a letter issued to Elaine’s heir, Walter Hooker, stating that it
did not owe Elaine’s estate any retroactive annuity benefits.
¶ 13 In response, the plaintiff filed a motion with the appellate court asking that as part of the
pending Hooker II appeal the court also decide whether Elaine’s death abated her entitlement
to section 6-140 benefits (40 ILCS 5/6-140 (West 2008)). In that motion, the plaintiff
contended that this issue was central to the appeal because the Board had essentially advised
the plaintiff that even if successful in its appeal for retroactive DAP benefits, the Board
would deny those benefits to the heirs of the estate because Elaine died on September 10,
2010. The plaintiff urged the court to decide this issue so as to avoid any future piecemeal
litigation. The appellate court granted the plaintiff’s motion and took the motion “as part of
the case on appeal.” However, in deciding Hooker II, the court then entirely skirted the
abatement issue and instead addressed the merits of the DAP adjustment claim. In explaining
its reasons for not addressing abatement, the court stated in full:
“Elaine died on September 20, 2010. Elaine’s attorney asks us to decide whether
her death abates her entitlement to section 6-140 retroactive benefits. The Board
contends that we lack jurisdiction to decide the issue because the trial court never
considered the issue. [Citation.]
‘[A] reviewing court has a duty to consider its jurisdiction sua sponte.’ [Citation.]
This court lacks jurisdiction to decide an appeal if the parties no longer face an actual
controversy, as when events make it impossible for this court to render effective relief
to the appealing party. [Citation.] This court has jurisdiction to consider whether
Elaine’s death makes her appeal moot. However, neither party has suggested that her
death moots the appeal, and we see no reason to believe that her death would make
her appeal moot. We will not extend our review of our jurisdiction to review an issue
that the trial court never addressed, where the issue does not appear to moot the
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appeal, and where neither party argues that the issue moots the appeal. If the Board
fails to pay Elaine’s estate the benefits it withheld from Elaine while she lived, the
statutory process for challenging the Board’s refusal to pay benefits it owes should
suffice.” Hooker II, 2012 IL App (1st) 111625, ¶¶ 35-36.
¶ 14 After our appellate court decided Hooker II, on June 14, 2012, without addressing the
abatement issue, the plaintiff filed the instant two-count complaint in the circuit court
seeking: (1) administrative review of the Board’s November 22, 2011, letter, denying
retroactive annuity benefits to Elaine’s heirs pursuant to the February 2011 collective
bargaining agreement; and (2) declaratory judgment regarding the plaintiff’s entitlement to
widow’s benefits accruing pursuant to the February 2011 collective bargaining agreement, as
well as the certification of a class of similarly situated estates. The Board filed a motion to
dismiss pursuant to section 2-619.1 of the Illinois Code of Civil Procedure (Code) (735 ILCS
5/2-619.1 (West 2008)), arguing, inter alia, that: (1) the heirs of Elaine’s estate had no
standing to bring an action for retroactive annuity payments, since any benefits owed to
Elaine abated at her death; (2) the circuit court was without subject matter jurisdiction to
consider the plaintiff’s request for administrative review since the cause of action was not
filed within the 35-day filing limitation mandated under the Illinois Administrative Review
Law (735 ILCS 5/3-102 (West 2008)); and (3) certification of the class action was improper.
¶ 15 After hearing arguments by the parties, on April 25, 2013, the circuit court granted the
Board’s motion to dismiss. The court found that count I of the plaintiff’s claim seeking
administrative review of the Board’s November 22, 2011, letter was not properly before the
court pursuant to the Administrative Review Law (735 ILCS 5/3-102 (West 2008)) since the
Board never made an adjudicative decision after an administrative hearing and there was no
administrative record for the court to review. As to count II, the declaratory judgment action,
the court found that Elaine’s heirs were not entitled to any retroactive benefits pursuant to the
collective bargaining agreement that was entered into by the firefighter’s union after Elaine’s
death. Accordingly, the court held that class certification of any similarly situated heirs was
also inappropriate. In doing so, the court explained:
“[A]t the time of her death, Elaine Hooker had no claim based on the terms of the
later-ratified [collective bargaining agreement.] Despite the fact that the [collective
bargaining agreement] accorded retroactive benefits to firefighters, which benefits
translate into higher pension payouts to survivors, Elaine Hooker’s entitlement to
survivor’s benefits abated at her death. [Citation.] As a matter of law, the [collective
bargaining agreement] ratified in February 2011 cannot give rise to a claim for
benefits that did not exist as of the date of Elaine Hookers’ death.”
The plaintiff appealed the circuit court’s decision on October 13, 2013.
¶ 16 In the meantime, the Board appealed the Hooker II decision to our supreme court. On
December 19, 2013, our supreme court reversed the judgment of the appellate court in
Hooker II, finding that the calculation of duty death annuity benefits awarded to city
firefighters’ widows, like Elaine, should not include DAP, where the firefighters had not
received the DAP benefit while working as firemen. Hooker v. Retirement Board of the
Firemen’s Annuity & Benefit Fund, 2013 IL 114811, ¶¶ 16-24 (Hooker III). The court also
found that because the plaintiff did not have a valid cause of action under count I, it
“necessarily follow[ed] that class certification [was] inappropriate.” Hooker III, 2013 IL
114811, ¶ 24. In addition, the court declined the plaintiff’s invitation on cross-appeal to
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address for the first time whether the February 2011 collective bargaining agreement between
the City of Chicago and the firefighter’s union was to be applied to the final determination of
Elaine’s benefits, even though that agreement was not ratified until after her death. Hooker
III, 2013 IL 114811, ¶ 27. The court explained that this cause of action was pending in a
separate lawsuit before this appellate court and, therefore, declined to address the issue
before we did. See Hooker III, 2013 IL 114811, ¶ 27.
¶ 17 Accordingly, we must now determine whether Elaine’s entitlement to any survivor’s
benefits under the February 2011 collective bargaining agreement abated at her death.
¶ 18 II. ANALYSIS
¶ 19 Before we begin our analysis, however, we must first resolve two threshold issues: the
applicable standard of review and the court’s subject matter jurisdiction over the plaintiff’s
claim. We begin with the standard of review.
¶ 20 A. Standard of Review
¶ 21 On appeal, the parties dispute the standard of review, with the Board arguing that the
standard is clearly erroneous, and the plaintiff seeking de novo review. Contrary to the
Board’s contention, as shall be more fully elaborated below, in the instant case, we are not
reviewing an administrative proceeding so as to trigger the clearly erroneous standard of
review. Rather, we are asked to evaluate the circuit court’s grant of the Board’s combined
section 2-619.1 motion to dismiss (735 ILCS 5/2-619.1 (West 2008)) on the basis of: (1) the
circuit court’s lack of subject matter jurisdiction; and (2) the proper interpretation of the
Pension Code (40 ILCS 5/6-140 (West 2008)) as to defining whether a survivor spouse’s
annuity benefits abate at that spouse’s death. It is well established that “the standard of
review this court applies when reviewing a circuit court’s dismissal of a complaint is de
novo.” Reynolds v. Retirement Board of the Firemen’s Annuity & Benefit Fund, 2013 IL App
(1st) 120052, ¶ 21. In reviewing the grant or denial of a motion to dismiss, we view the
allegations in the plaintiff’s complaint in the light most favorable to the plaintiff. Beahringer
v. Page, 204 Ill. 2d 363, 369 (2003). Where it appears from the record that no set of facts
could be proven which would entitle the plaintiff to relief, dismissal must be affirmed.
Beahringer, 204 Ill. 2d at 369. In the present case, the material facts are not in dispute, and
the resolution of the case depends purely on the legal question of the proper interpretation of
the statutory provisions governing subject matter jurisdiction pursuant to the Administrative
Review Law (735 ILCS 5/3-102 (West 2008)), as well as those governing annuity benefits
for widows of firefighters under the Pension Code (40 ILCS 5/6-140 (West 2008)).
Accordingly, de novo review is appropriate. See Beahringer, 204 Ill. 2d at 369; Reynolds,
2013 IL App (1st) 120052, ¶ 21.
¶ 22 B. Subject Matter Jurisdiction
¶ 23 We next address the circuit court’s subject matter jurisdiction to address the plaintiff’s
claim. Below, the plaintiff attempted to have the circuit court consider the abatement issue
both: (1) by seeking administrative review of the Board’s November 22, 2011, letter and (2)
by seeking a declaratory judgment that under the Pension Code the heirs of Elaine’s estate,
and all similarly situated plaintiffs, were entitled to retroactive benefits under the February
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2011 collective bargaining agreement adjusting the firefighter’s salaries retroactively to July
2007. The circuit court, however, found that it was without subject matter jurisdiction to
consider the plaintiff’s administrative review action and proceeded solely on the declaratory
judgment action. For the reasons that follow, we agree with the circuit court’s reasoning.
¶ 24 The Administrative Review Law (735 ILCS 5/3-102 (West 2008)) confers subject matter
jurisdiction on the circuit court only if the plaintiff follows the procedures in that statute for
seeking judicial review. Section 3-102 of the Administrative Review Law (735 ILCS 5/3-102
(West 2008)) explicitly provides:
“Unless review is sought of an administrative decision within the time and in the
manner herein provided, the parties to the proceeding before the administrative
agency shall be barred from obtaining judicial review of such administrative
decision.”
Our supreme court has interpreted this passage as withholding subject matter jurisdiction
from a circuit court unless “the statutorily prescribed procedures are *** strictly followed.”
Rodriguez v. Sheriff’s Merit Comm’n, 218 Ill. 2d 342, 350 (2006). See also Fredman Brothers
Furniture Co. v. Department of Revenue, 109 Ill. 2d 202, 210-11 (1985).
¶ 25 Relevant to this appeal, section 3-103 of the Administrative Review Law mandates that
any party seeking review of an administrative agency’s final decision file a complaint and
issue a summons within 35 days from the date that the final administrative decision is served
on him or her. See 735 ILCS 5/3-103 (West 2008). Our supreme court has repeatedly held
that this requirement to timely file the complaint within 35 days following notice of the
Board’s decision is purely jurisdictional and must be adhered to without exception regardless
of the harsh effects resulting from its application. See Fredman Brothers Furniture Co., 109
Ill. 2d at 210-11; see also Rodriguez, 218 Ill. 2d at 350; see also, e.g., West-Howard v.
Department of Children & Family Services, 2013 IL App (4th) 120782, ¶ 23; Russell v. Board
of Education of the City of Chicago, 379 Ill. App. 3d 38, 44 (2007). Our supreme court has
explained the rationale behind this rule:
“Subject matter jurisdiction is conferred on courts by the Constitution or by
legislative enactment. [Citation.] Article VI, section 9, of the 1970 Constitution
provides: ‘Circuit Courts shall have original jurisdiction of all justiciable matters
except when the Supreme Court has original and exclusive jurisdiction ***. Circuit
Courts shall have such power to review administrative action as provided by law.’
[Citation.] This court has held that when a court is in the exercise of special statutory
jurisdiction, that jurisdiction is limited to the language of the act conferring it and the
court has no powers from any other source. [Citation.] In the exercise of special
statutory jurisdiction, if the mode of procedure prescribed by statute is not strictly
pursued, no jurisdiction is conferred on the circuit court. [Citations.]
The Administrative Review Act was ‘an innovation and departure from the
common law, [and] the procedures it establishes must be pursued ***.’ [Citation.]
Section 2 of the Act specifically provides that any other mode of review heretofore
available shall not be employed. Section 2 also provides that unless review is sought
of an administrative decision within the time and in the manner provided therein, the
parties to the proceeding before the administrative agency shall be barred from
obtaining a judicial review. [Citation.]
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*** The provisions of that [Administrative Review Law] *** demonstrate that the
filing of the complaint for administrative review within the time period specified is a
jurisdictional requirement and that judicial review of the administrative decision is
barred if the complaint is not filed within the time specified.” (Emphases omitted.)
Fredman Brothers Furniture Co., 109 Ill. 2d at 210-11.
Accordingly, if a “complaint is not timely filed, no jurisdiction is conferred on the circuit
court and judicial review of the administrative order is barred.” Collinsville Community Unit
School District No. 10 v. Regional Board of School Trustees, 218 Ill. 2d 175, 182 (2006); see
also Nudell v. Forest Preserve District, 207 Ill. 2d 409, 423 (2003).
¶ 26 In the present case, it is undisputed that the Board sent a letter to Walter Hooker, an heir
of Elaine’s estate on November 29, 2010, informing him: (1) that the enclosed check was the
final payment of Elaine’s pro rata benefit pursuant to the Pension Code; and (2) that if the
heir wished to dispute the payment, he must file for administrative review within 35 days. It
is further undisputed that the Board issued a second letter to Walter Hooker on November 22,
2011, stating that Elaine’s estate was not entitled to any increase in benefits under the
February 2011 collective bargaining agreement because the annuities are payable only during
the life of the annuitant and Elaine died prior to the ratification of that collective bargaining
agreement. It is from this second letter, which he coins “the final administrative decision,”
that the plaintiff seeks administrative review. Even though, just as the circuit court, we are
not convinced that this second letter can be characterized as the Board’s “final administrative
decision,” taking, as we must, the plaintiff’s well-pleaded allegations as true, we nevertheless
find that the circuit court was without subject matter jurisdiction to consider the plaintiff’s
claim, since that claim was filed way outside of the statutorily mandated 35 days. The record
uncontrovertibly demonstrates that the plaintiff filed his claim for “administrative review” of
the Board’s decision, on June 14, 2012, exactly 205 days after the Board issued its second
letter. See Collinsville Community Unit School District No. 10, 218 Ill. 2d at 182; see also
Nudell, 207 Ill. 2d at 423. Accordingly, we find that dismissal of count I of the plaintiff’s
claim by the circuit court, and its decision to proceed with the abatement question solely on
the declaratory judgment action was proper. See 735 ILCS 5/2-619(a)(1) (West 2010)
(permitting a circuit court to dismiss a complaint if the court lacks subject matter
jurisdiction).
¶ 27 C. Abatement
¶ 28 Having disposed of the two threshold concerns we must now discuss the merits of the
plaintiff’s central contention on appeal, namely, whether a cause of action against the Board
may be brought by an estate of a deceased former recipient of an annuity paid pursuant to the
Pension Code to benefit the estate’s heirs. On appeal, the plaintiff wishes us to declare that
Elaine’s heirs have a right to the retroactive reimbursement of Elaine’s survivor benefits, as
adjusted by the February 2011 collective bargaining agreement, because Elaine’s right to
calculate those benefits did not abate at her death. The Board disagrees, contending that
Elaine’s death abated any cause of action that could be raised by Elaine’s heirs as to her
benefits, since neither the Pension Code (40 ILCS 5/6-140 (West 2008)), the Illinois Survival
Act (Survival Act) (755 ILCS 5/27-6 (West 2008)), nor the Administrative Review Law (735
ILCS 5/3-101 et seq. (West 2008)) provides for the survival of such actions. For the reasons
that follow, we agree with the Board.
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¶ 29 In Reynolds, 2013 IL App (1st) 120052, a case similar to the cause at bar, this appellate
court was already asked once to determine whether an administrator of an estate of a former,
deceased recipient of an annuity paid pursuant to the firemen’s pension fund could institute a
cause of action against the Board on behalf of the estate to benefit the estate’s heirs and
found that it could not. Just as here, in that case, the administrator of the estate of a decedent
who was receiving a firefighter’s widow’s annuity at the time of her death brought an action
against the Board alleging that the widow would have been entitled to receive higher duty
death annuity benefits and seeking to recover for the estate additional payments that the
widow would have been entitled to receive but did not receive during her lifetime. Reynolds,
2013 IL App (1st) 120052, ¶ 2. The circuit court rejected the administrator’s complaint and
ruled that any rights of the widow abated when she died. Reynolds, 2013 IL App (1st)
120052, ¶ 15. The administrator then appealed the issue to the appellate court. Reynolds,
2013 IL App (1st) 120052, ¶ 14.
¶ 30 In affirming the decision of the circuit court, we held that the right to have a widow’s
annuity benefit recalculated by the Board to obtain higher annuity payments was an
unassignable benefit that did not survive the widow’s death. Reynolds, 2013 IL App (1st)
120052, ¶¶ 23-34. In doing so, we first explained that the Pension Code explicitly prohibits
the assignment by any pensioner or annuitant of any benefit under the Code. See Reynolds,
2013 IL App (1st) 120052, ¶ 24. In doing so, we primarily relied on the plain language of
sections 2-154 and 6-213 of the Pension Code (40 ILCS 5/2-154, 6-213 (West 2010)).
Section 2-154 states in pertinent part:
“Assignment. Except as provided in this Article, all moneys in the fund created by
this Article, and all securities and other property of the System, and all annuities and
other benefits payable under this Article, and all accumulated contributions and other
credits of participants in this system, and the right of any person to receive an annuity
or other benefit under this Article, or a refund or return of contributions, shall not be
subject to judgment, execution, garnishment, attachment or other seizure by process,
in bankruptcy or otherwise, nor to sale, pledge, mortgage or other alienation, and
shall not be assignable.” 40 ILCS 5/2-154 (West 2010).
Similarly, section 6-213 of the Pension Code mandates that “[n]o pensioner, annuitant,
applicant for a refund, disability beneficiary or other beneficiary has a right to transfer or
assign his or her pension, annuity, refund or disability benefit or any part thereof.” 40 ILCS
5/6-213 (West 2010). We held that the aforementioned language “strongly indicates” the
legislature’s intent to prevent the annuitants from assigning their rights to the proceeds of the
funds “under any circumstances, including the right to pursue possibly unpaid benefits.”
Reynolds, 2013 IL App (1st) 120052, ¶ 27.
¶ 31 In that respect, we also noted that any statutory right to pursue a civil enforcement action
or administrative review with the Board did not survive the widow’s death because the
Pension Code (i.e., the enabling statute) nowhere provides for the survival of such an action.
See Reynolds, 2013 IL App (1st) 120052, ¶ 33 (citing Froehlich v. Matz, 93 Ill. App. 3d 398,
410 (1981) (holding that shareholder’s action against promoter of unregistered securities
pursuant to Securities Act did not survive his death as the Securities Act contained no
survival provision), and In re Application of Goldberg, 32 Ill. Ct. Cl. 1068 (1979) (holding
that because crime victim’s compensatory act was silent on survival of action, claimant’s
action terminated and abated upon death of claimant)).
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¶ 32 In addition, we explained that the Survival Act (755 ILCS 5/27-6 (West 2010)), which
explicitly authorizes the survival of certain specified claims that in the absence of the
Survival Act would abate, does not list this type of action. Reynolds, 2013 IL App (1st)
120052, ¶ 33. The Survival Act prescribes the following causes of action as those that may be
maintained by a decedent’s representative, even if the enabling statute does not provide for
survival:
“In addition to the actions which survive by the common law, the following also
survive: actions of replevin, actions to recover damages for an injury to the person
(except slander and libel), actions to recover damages for an injury to real or personal
property or *** against officers for misfeasance, malfeasance, nonfeasance of
themselves or their deputies, actions for fraud or deceit, and actions provided in
Section 6-21 of ‘An Act relating to alcoholic liquors’.” 755 ILCS 5/27-6 (West 2010).
¶ 33 Finally, in Reynolds, we noted several public policy concerns with permitting such a
cause of action to proceed after the beneficiary’s death. As we explained:
“It is the duty of the Board members to ensure that public employee-retirees and
their dependents are the actual recipients of retirement income. To allow the heirs of
an annuitant’s estate to sue the Board would be tantamount to declaring that the heirs
have some surviving property interest in the decedent’s annuity. [The widow] could
neither assign her widow’s annuity nor could she have made a testamentary transfer
of her widow’s annuity to anyone. *** We cannot judicially allow for lawsuits such
as the instant case where the Illinois statute does not allow it, especially where there
is a certainty that any funds that may be recovered from the Firemen’s Pension Fund
would be diverted to support unrelated strangers to the original participant/fireman
***.” Reynolds, 2013 IL App (1st) 120052, ¶ 44.
We further elaborated:
“One of the most important public policy matters facing many state and municipal
governments today is how to assure that individuals who have spent their worklife in
public service will have adequate annuity income from funds not unlike the Firemen’s
Pension Fund to meet their needs and/or the needs of their widow(er) and children
during their retirement years. [Our] decision to enforce the legislation, as written, is
consistent with the policy considerations that the funds established are fair, effective
and, most importantly, remain financially sound and solvent in providing retirement
income to retirees, their widows/widowers and orphans, as well.” Reynolds, 2013 IL
App (1st) 120052, ¶ 32.
Finally, we equated our concerns with those expressed by the United States Supreme Court
in Boggs v. Boggs, 520 U.S. 833 (1997), which prohibited the testamentary transfer of a
wife’s interest in her survivor’s annuity to her sons. Reynolds, 2013 IL App (1st) 120052,
¶ 46. As we stated:
“While our case involves the estate administrator’s attempted assignment of a
spouse’s potential, unawarded, partial interest in a widow’s annuity after the
annuitant’s death to all surviving heirs with this lawsuit to recover that potential
interest for their benefit, the concerns to protect the Firemen’s Pension Fund to ensure
there will always be a stream of income for surviving spouses and beneficiaries are
the same.” Reynolds, 2013 IL App (1st) 120052, ¶ 46.
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¶ 34 We continued to adhere to the rationale expounded in Reynolds. Applying the holding of
that decision to the facts of this case, we are therefore compelled to conclude that any right
Elaine had to the retroactive salary increase per the February 2011 collective bargaining
agreement abated at her death. In that respect, we reiterate that it is uncontroverted that
Elaine died on September 20, 2010, five months before the February 2011 collective
bargaining agreement was ratified. The record is clear that at no point in her lifetime did
Elaine attempt to avail herself of the benefits under this collective bargaining agreement. She
filed neither a request with the Board nor a complaint with the circuit court. Rather, this issue
was raised for the first time by Elaine’s heir and plaintiff on June 14, 2012, approximately 20
months after Elaine died and 18 months after the Board’s issuance of the final annuity
payment Elaine was entitled to during her lifetime to her other heir, Walter Hooker.
Accordingly, under the principles articulated in Reynolds, the plaintiff’s claim must fail. See
Reynolds, 2013 IL App (1st) 120052, ¶ 44.
¶ 35 The plaintiff nevertheless urges us to consider the unpublished Rule 23 order in Barry v.
Retirement Board of the Firemen’s Annuity & Benefit Fund, 391 Ill. App. 3d 1108 (2009)
(table) (unpublished order under Supreme Court Rule 23), for the proposition that an unpaid
increase in a widow’s benefit may survive the widow’s death and can be pursued by the
decedent’s estate. We first note that Illinois Supreme Court Rule 23(e) (eff. July 1, 2011)
plainly provides that an appellate court’s unpublished order “is not precedential and may not
be cited by any party.” See Talamine v. Apartment Finders, Inc., 2013 IL App (1st) 121201,
¶ 3 (“A Rule 23 order is not precedential ***.”). Nevertheless, even if the Rule 23 order cited
by the plaintiff were precedential, we would find that order inapposite. Unlike in the present
case, in Barry, the fireman’s widow herself filed for an increase in her annuity, and the
circuit court entered judgment in her favor while she was still alive. The court in Barry
therefore held that the widow’s claim was no longer a mere possible pension benefit that
could not be assigned to her heirs, but rather a judicial reality via the judgment that was
entered in her favor. See Barry v. Retirement Board of the Firemen’s Annuity & Benefit Fund,
391 Ill. App. 3d 1108 (2009) (table) (unpublished order under Supreme Court Rule 23). In
the present case, Elaine never made a claim to the Board regarding retroactive increased
annuity based upon the collective bargaining agreement; the circuit court was never
presented with this issue, and no judgment was entered in favor of Elaine on this issue while
she was still alive. Although other causes of action brought by Elaine were pending before
the appellate and supreme courts, both courts refused to address this particular issue as
improperly before them. Accordingly, Barry is inapposite.
¶ 36 Lastly, we reject the plaintiff’s attempt to circumvent the impact of abatement, by
arguing, for the first time on appeal, that his right to the retroactive payment of Elaine’s
benefits is, in fact, a contractual right protected by the Illinois Constitution. It is axiomatic
that issues not raised in the trial court are deemed waived and may not be raised for the first
time on appeal. Cambridge Engineering, Inc. v. Mercury Partners 90 BI, Inc., 378 Ill. App.
3d 437, 453 (2007). Accordingly, we find this argument waived.
¶ 37 III. CONCLUSION
¶ 38 For the aforementioned reasons, we affirm the judgment of the circuit court.
¶ 39 Affirmed.
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