2014 IL App (1st) 131568 No. 1-13-1568 Opinion Filed May 22, 2014
IN THE
APPELLATE COURT OF ILLINOIS
FIRST DISTRICT
DANIEL HOOKER, as Special Representative and ) Appeal from the Circuit Court Heir, Individually and on Behalf of All Other Persons ) of Cook County, Illinois, Similarly Situated, ) County Department, Chancery Plaintiffs-Appellants, ) Division. ) v. ) No. 12 CH 21995 ) THE RETIREMENT BOARD OF THE FIREMAN'S ) The Honorable ANNUITY AND BENEFIT FUND OF CHICAGO, ) Mary Anne Mason, Defendant-Appellee. ) Judge Presiding. )
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. No. 13-1568
¶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 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
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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.
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¶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 widows
annuity adjusted for DAP. The court also declined to certify the class of potential widow's 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) 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.
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¶ 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
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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 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
6 No. 13-1568
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
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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 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
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¶ 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
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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 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).
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¶ 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
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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.]
*** 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." (Emphasis 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 of Cook County, 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
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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 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
14 No. 13-1568
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)).
¶ 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 does not list this type of action. Reynolds, 2013 IL App (1st)
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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 (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
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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.
¶ 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
17 No. 13-1568
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
18 No. 13-1568
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.