Ray v. Beussink & Hickam, P.C.

• Decision Date: 25 October 2018
• Docket Number: NO. 5-17-0274,5-17-0274
• Citation: 434 Ill.Dec. 860,138 N.E.3d 19,2018 IL App (5th) 170274
• Parties: Kerry RAY, Plaintiff-Appellee, v. BEUSSINK & HICKAM, P.C., and Scott Hickam, Defendants-Appellants.
• Court: United States Appellate Court of Illinois

2018 IL App (5th) 170274

138 N.E.3d 19

434 Ill.Dec. 860

Kerry RAY, Plaintiff-Appellee,

v.BEUSSINK & HICKAM, P.C., and Scott Hickam, Defendants-Appellants.

NO. 5-17-0274

Appellate Court of Illinois, Fifth District.

Opinion Filed: October 25, 2018

As corrected October 26, 2018

John S. Rendleman and Bentley J. Bender, of Feirich Mager Green Ryan, of Carbondale, for appellants.

Jonathan R. Cantrell, of Hart Cantrell LLC, of Benton, for appellee.

JUSTICE CHAPMAN delivered the judgment of the court, with opinion.

¶ 1 Kerry Ray (Ray) filed an accounting malpractice action against a firm, Beussink & Hickam, P.C., and one accountant, Scott Hickam. Ray alleged that the defendants provided him with incorrect information about his retirement benefits upon which he relied to his detriment. Two years after Ray began receiving his retirement benefits, the Anna Downstate Police Pension Fund and Board (Pension Fund or Fund) corrected a calculation error. The Pension Fund's correction resulted in Ray receiving $4000 less per year. Defendants filed a motion to dismiss, alleging that the Pension Fund had no ability to modify the benefits more than 35 days after the pension was awarded to Ray. The trial court denied the motion to dismiss, and the defendants asked the trial court to certify two questions and to stay the litigation. Pursuant to Illinois Supreme Court Rule 308 (eff. Jan. 1, 2016), the trial court granted the motion. Defendants then asked this court to grant its application for leave to appeal. We granted defendants' application on May 16, 2017. For the reasons stated in this opinion, we answer only the first of the two certified questions. Although the Pension Fund correctly detected that Ray's pension benefits were erroneously set, the benefits miscalculation is not a simple arithmetical error that can be corrected after the passage of 35 days. See 40 ILCS 5/3-144.2 (West 2014) ; Fredman Brothers Furniture Co. v. Department of Revenue , 109 Ill. 2d 202, 211, 93 Ill.Dec. 360, 486 N.E.2d 893, 896 (1985).

¶ 2 I. BACKGROUND

¶ 3 Ray was promoted to the position of Interim Chief of Police for the City of Anna on or about June 1, 2013. He served in this interim chief role until his retirement effective on March 1, 2014.

¶ 4 Scott Hickam was Ray's personal accountant, and he also served as the Pension Fund's accountant. In anticipation of his retirement, Ray consulted with Hickam about his expected retirement benefits. Based upon this consultation, Ray believed that by retiring on March 1, 2014, he would receive a pension benefit based upon his most recent and highest rate of pay. Ray alleges that in reliance upon this belief, he went forward with retirement. And, upon retirement, his pension was based upon the most recent and highest rate of pay Ray received, which was the interim police chief pay. As a result, Ray received a $4000 increase in his annual pension benefit over what he would have received if his pension benefit had been calculated on the basis of the pay he received for his previous job.

¶ 5 On April 20, 2016, the Pension Fund informed Ray that it was reducing his retirement benefit by the extra $4000 he had been receiving. The "miscalculation" was discovered by an audit performed by the Illinois Department of Insurance. In order for the Pension Fund to have based Ray's pension on the interim police chief salary, Ray would have had to have held that job for a minimum of 12 months—3 months longer than he did.

¶ 6 Ray filed a complaint against the defendants in January 2017. Ray alleged that the defendants were negligent for providing inaccurate advice about his anticipated retirement benefit for the date he proposed for retirement. The defendants filed a combined motion to dismiss pursuant to both section 2-615 and section 2-619 of the Code of Civil Procedure ( 735 ILCS 5/2-615, 2-619 (West 2014) ). The defendants argued that the Pension Fund was bound by the Illinois Administrative Code, and thus Pension Fund review of any pension award must be initiated within 35 days after the award was finalized. Therefore, defendants argued that the Pension Fund did not have jurisdiction to modify Ray's pension benefits because more than two years had passed since the award was finalized. In addition, the defendants argued that the court must dismiss Ray's complaint because he did not include the Pension Fund as a defendant and the Pension Fund was a necessary party. Finally, the defendants claimed that the causal connection between any negligence committed and Ray's alleged damages was broken by the Pension Fund's unlawful intervening act of recalculating Ray's pension benefits.

¶ 7 The trial court denied the defendants' motion to dismiss on April 21, 2017. In May 2017, the defendants asked the trial court to certify two questions of law pursuant to Rule 308. The defendants also asked the trial court to stay the underlying litigation. The trial court granted the motions on June 21, 2017, and certified two questions for appeal to this court.

¶ 8 Defendants timely filed their application for leave to appeal in this court. We granted defendants' application on September 12, 2017.

¶ 9 II. ANALYSIS

¶ 10 Illinois Supreme Court Rule 308 provides a means for parties to appeal a nonfinal order if the order "involves a question of law as to which there is substantial ground for difference of opinion and *** an immediate appeal from the order may materially advance the ultimate termination of the litigation." Ill. S. Ct. R. 308(a) (eff. Jan. 1, 2016). Here, the trial court certified the following two legal questions:

"Where a Police Pension Fund and Board make[s] a final determination in awarding a retiree a benefit, can the Police Pension Fund and Board reduce the benefit awarded to the retiree based upon a mistake as to the applicable salary two years after the pension was awarded?

Where a Police Pension Fund and Board unlawfully reduce[s] a pension award two years after the final determination of the award, can a negligence action be maintained against an accountant that advised the retiree prior to his retirement as to the amount of his retirement pension that was consistent with the final determination of the Pension Fund and Board?"

¶ 11 Our review of this issue is de novo for two reasons. First, the underlying motion denied by the trial court was based upon sections 2-615 and 2-619 of the Code of Civil Procedure, both of which mandate de novo review. Secondly, the questions certified present legal issues that are reviewed de novo.

¶ 12 In ruling upon a motion to dismiss filed pursuant to section 2-615 or 2-619 of the Code of Civil Procedure ( 735 ILCS 5/2-615, 2-619 (West 2014) ), the court must accept all well-pleaded facts in the complaint as true and draw reasonable inferences from those facts that are favorable to the plaintiff. Bryson v. News America Publications, Inc. , 174 Ill. 2d 77, 86, 220 Ill.Dec. 195, 672 N.E.2d 1207, 1213 (1996). When a defendant files a motion to dismiss pursuant to section 2-619, the defendant is admitting the legal sufficiency of the complaint but is asserting an affirmative matter that may defeat the claim. Hubble v. Bi-State Development Agency of the Illinois-Missouri Metropolitan District , 238 Ill. 2d 262, 267, 345 Ill.Dec. 44, 938 N.E.2d 483, 488 (2010) (finding that filing a claim after the applicable statute of limitations expired is an example of affirmative matter that can defeat a plaintiff's claim); Glasgow v. Associated Banc-Corp , 2012 IL App (2d) 111303, ¶ 11, 366 Ill.Dec. 692, 980 N.E.2d 785 (review of denial of a section 2-619 motion to dismiss is de novo ).

¶ 13 Questions certified pursuant to Rule 308 are reviewed on a de novo basis. Townsend v. Sears, Roebuck & Co. , 227 Ill. 2d 147, 153, 316 Ill.Dec. 505, 879 N.E.2d 893, 897 (2007) ; Spears v. Association of Illinois Electric Cooperatives , 2013 IL App (4th) 120289, ¶ 15, 369 Ill.Dec. 267, 986 N.E.2d 216.

¶ 14 The certified questions must be limited to legal issues and should not seek application of the answered legal question to the facts of the case. Rozsavolgyi v. City of Aurora , 2017 IL 121048, ¶ 21, 421 Ill.Dec. 881, 102 N.E.3d 162 (citing De Bouse v. Bayer AG , 235 Ill. 2d 544, 557, 337 Ill.Dec. 186, 922 N.E.2d 309, 317 (2009) ). The appellate court would be making an improper advisory opinion if it applied the answered legal question to the facts of the case. Id. In addition, a party may not ask the reviewing court to resolve disputed factual questions in the context of answering a certified legal question. Dowd & Dowd, Ltd. v. Gleason , 181 Ill. 2d 460, 469, 230 Ill.Dec. 229, 693 N.E.2d 358, 363-64 (1998).

¶ 15 Here, we are asked to determine a legal question that involves the following undisputed facts: (1) Ray was employed by the Anna Police Department, and for the last 9 months of his employment, he served as the interim police chief, (2) Ray retired on March 1, 2014, (3) Ray was awarded a pension benefit based upon a final decision of the Pension Fund, (4) Ray's pension benefit was based upon the higher rate of pay associated with the interim police chief position, (5) the Pension Fund's benefit determination was incorrect because the higher rate of pay would only impact the pension benefit if the employee held the position for 12 months preceding retirement, (6) neither Ray nor the Pension Fund sought judicial review of the final decision in the 35 days after the final pension decision, and (7) on April 20, 2016, the Pension Fund notified Ray that upon discovery of the incorrect pension benefit, it was reducing his benefit effective immediately. Although these specific facts are added to the analysis of the certified legal question, we are not resolving any "factual predicates." Id.

¶ 16 A. Legality of Reduction of Pension Benefits Two Years After Award

¶ 17 The first certified question requires a review of the Illinois Pension Code (40 ILCS 5/1101 et seq. (West 2014) ) and its application of Administrative Review Law ( 735...