Hooker v. Ret. Bd. of the Fireman's Annuity & Benefit Fund of Chi.

12 N.E.3d 735

Daniel HOOKER, as Special Representative and Heir, Individually 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.

No. 1–13–1568.

Appellate Court of Illinois, First District.

May 22, 2014.

Martin O. Holland, of Evergreen Park, for appellant.

Mary Patricia Burns, Vincent D. Pinelli, and Larisa L. Elizondo, all of Burke, Burns & Pinelli, Ltd., of Chicago, for appellee.

OPINION

Justice FITZGERALD SMITH delivered the judgment of the court, with 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, 286 Ill.Dec. 328, 813 N.E.2d 1021 (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 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, 329 Ill.Dec. 856, 907 N.E.2d 447 (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 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, 361 Ill.Dec. 704, 972 N.E.2d 189 (Hooker II ). This appellate court also concluded that class certification was appropriate. Hooker II, 2012 IL App (1st) 111625, ¶¶ 23–33, 361 Ill.Dec. 704, 972 N.E.2d 189.

¶ 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

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