Cunningham v. Retirement Bd. Firemen's Ann.

• Decision Date: 23 April 2009
• Docket Number: No. 1-07-3561.,1-07-3561.
• Citation: 907 N.E.2d 463
• Parties: Sheila CUNNINGHAM, Lyn Deneen, Marilyn Cronin, Rita Jo Coyne, Nancy Williams, Rose Platt, Dorothy Ormond, Marquerite Walsh, Rosemary Poland, Mary Gomolka and Marilyn Lauer, Plaintiffs-Appellees, v. The RETIREMENT BOARD OF the FIREMEN'S ANNUITY AND BENEFIT FUND OF CHICAGO, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

907 N.E.2d 463

Sheila CUNNINGHAM, Lyn Deneen, Marilyn Cronin, Rita Jo Coyne, Nancy Williams, Rose Platt, Dorothy Ormond, Marquerite Walsh, Rosemary Poland, Mary Gomolka and Marilyn Lauer, Plaintiffs-Appellees, v. The RETIREMENT BOARD OF the FIREMEN'S ANNUITY AND BENEFIT FUND OF CHICAGO, Defendant-Appellant.

No. 1-07-3561.

Appellate Court of Illinois, First District, Fourth Division.

April 23, 2009.

Burke Burns & Pinelli, Ltd. (Vincent D. Pinelli, Esq., Blanca R. Dominguez, Esq., of counsel), Chicago, IL, for Defendant-Appellant.

Martin O. Holland (Martin O. Holland, of counsel), Chicago, IL, for Plaintiff-Appellee.

Justice NEVILLE delivered the opinion of the court:

In this case, the plaintiffs, Mrs. Sheila Cunningham, Mrs. Lyn Deneen, Mrs. Marilyn Cronin, Mrs. Rita Jo Coyne, Mrs. Nancy Williams, Mrs. Rose Platt, Mrs. Dorothy Ormond, Mrs. Marquerite Walsh, Mrs. Rosemary Poland, Mrs. Mary Gomolka, and Mrs. Marilyn Lauer (widows, collectively), are the widows of several deceased firemen, and they filed claims with the Retirement Board of the Firemen's Annuity and Benefit Fund of Chicago (Board), the defendant in this case. The Board granted the widows' claims and awarded each widow a widow's minimum annuity pursuant to section 6-141.1 of the Pension Code. 40 ILCS 5/6-141.1 (West 2000). The widows filed a complaint for administrative review in the circuit court and requested that a widow's duty death annuity be paid pursuant to section 6-140 of the Pension Code. 40 ILCS 5/6-140 (West 2000). The circuit court remanded Mrs. Cunningham's, Mrs. Deneen's, and Mrs. Cronin's cases to the Board and stayed the cases of the remaining widows. On remand, the Board awarded the widows a widow's duty death annuity pursuant to section 6-140 of the Pension Code retroactive from the date of this court's opinion in Bertucci v. Retirement Board of the Firemen's Annuity & Benefit Fund of Chicago, 351 Ill.App.3d 368, 286 Ill.Dec. 328, 813 N.E.2d 1021 (2004). The widows filed a motion in the circuit court to recalculate the Board's award and requested prejudgment interest. On December 20, 2007, the circuit court vacated the Board's decision after remand and directed the Board to pay plaintiffs Cunningham, Deneen and Cronin a widow's duty death benefit pursuant to section 6-140 of the Pension Code retroactive from the date of the death of each woman's husband. 40 ILCS 5/6-140 (West 2000). The circuit court also ordered the Board to pay the plaintiffs prejudgment and postjudgment interest on the amounts due to each of them.

The Board appeals from the circuit court's order and presents the following issue for this court to review: (1) whether the circuit court lacked jurisdiction to vacate the Board's decision following remand of the cases because the circuit court's June 2, 2005, order was a final disposition in which the circuit court did not specifically retain jurisdiction; (2) whether the circuit court erred when it awarded a widow's duty death annuity pursuant to section 6-140 of the Pension Code; (3) whether the circuit court erred when it awarded prejudgment interest; and (4) whether the circuit court erred when it awarded postjudgment interest at an interest rate of 9% instead of an interest rate of 6% applicable to governmental entities. For the following reasons, we find (1) that the circuit court retained jurisdiction over the plaintiffs' administrative review action because the circuit court's remand order was not a final order, (2) that the Bertucci decision was intended to be applied both prospectively and retroactively, (3) that the plaintiffs were entitled to prejudgment interest, and (4) that the plaintiffs were entitled to postjudgment interest at the rate of 9%, therefore, we affirm.

BACKGROUND

On July 17, 2003, the widows filed a complaint seeking administrative review of the Board's decisions that granted each widow a minimum annuity pursuant to section 6-141.1 of the Pension Code. 40 ILCS 5/6-141.1 (West 2000).¹ Each widow sought a duty death annuity from the date of their respective husbands' deaths pursuant to section 6-140 of the Pension Code. 40 ILCS 5/6-140 (West 2000).² The complaint alleged that the widows were denied the opportunity to present evidence at a hearing to show that the were entitled to a duty death annuity. By agreement of the parties, the widows' cases were continued to give this court the opportunity to issue rulings in two cases that involved issues similar to those presented here. See Barry v. Retirement Board of the Firemen's Annuity & Benefit Fund of Chicago, 357 Ill.App.3d 749, 293 Ill.Dec. 740, 828 N.E.2d 1238 (2005); 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). The two cases, Barry and Bertucci, have since been decided by this court.

On June 2, 2005, the circuit court entered an order and remanded the plaintiffs' cases (Mrs. Cunningham, Mrs. Deneen and Mrs. Cronin) to the Board for a hearing consistent with the Barry opinion. The June 2, 2005, order stayed the cases of the remaining widows. The June 2, 2005, order also set a status date before the circuit court on October 27, 2005.

On October 25, 2005, after an evidentiary hearing, the Board issued its written decision in Mrs. Deneen's case and awarded the widow a duty death annuity pursuant to section 6-140 of the Pension Code. The Board also made the widow's duty death annuity payments retroactive to the date of the Bertucci opinion. On January 26, 2006, the Board issued a written decision in Mrs. Cunningham's case pursuant to section 6-140 of the Pension Code and made the widow's duty death annuity payments retroactive to the date of the Bertucci opinion. On March 30, 2006, the Board issued a written decision on Mrs. Cronin's case pursuant to section 6-140 of the Pension Code and made the widow's duty death annuity payments retroactive to the date of the Bertucci opinion.

On August 28, 2006, Mrs. Cunningham, Mrs. Deneen, and Mrs. Cronin filed a motion to recalculate the Board's award and to award prejudgment interest. The Board moved to strike Mrs. Cunningham, Mrs. Deneen, and Mrs. Cronin's motion and argued (1) that the circuit court lacked jurisdiction to act on the motion to recalculate; and (2) that the motion to recalculate was an impermissible collateral attack on the Board's decision. On January 26, 2007, the circuit court denied the Board's motion to strike and continued the case for further proceedings.

On August 7, 2007, the circuit court denied the Board's oral motion to stay further proceedings and ordered it to answer the plaintiffs' claims. On December 20, 2007, the circuit court vacated the Board's decision after remand and directed the Board to pay Mrs. Cunningham, Mrs. Deneen, and Mrs. Cronin a widow's duty death annuity pursuant to section 6-140 of the Pension Code. The Board also made the widow's duty death annuity benefits retroactive to the date of death of each woman's husband, with prejudgment and postjudgment interest. Finally, on December 28, 2007, the Board filed its notice of appeal.

ANALYSIS

Jurisdiction

The Board argues that the circuit court lacked jurisdiction to vacate its order because the circuit court's June 2, 2005, remand order constituted a final disposition and the circuit court did not retain jurisdiction to review the Board's decisions after the remand hearings. Mrs. Cunningham, Mrs. Deneen, and Mrs. Cronin argue that the circuit court's June 2, 2005, remand order was not a final decision because, in addition to ordering a remand to the Board for a hearing, the case was set for further status before the circuit court.

Section 3-104 of the Administrative Review Law, formerly known as the Administrative Review Act,³ provides that the circuit court is vested with jurisdiction to review final administrative decisions. 735 ILCS 5/3-104 (West 2006). Section 3-104 of the Administrative Review Law also provides that "[t]he court first acquiring jurisdiction of any action to review a final administrative decision shall have and retain jurisdiction of the action until final disposition of the action." 735 ILCS 5/3-104 (West 2006). Decisions of the Board regarding a widow's entitlement to the payment of such a compensation annuity are appealable provided the order is both final and terminates the litigation between the parties. Daley v. License Appeal Comm'n, 311 Ill.App.3d 194, 200, 243 Ill. Dec. 905, 724 N.E.2d 214 (1999), citing Brooks v. Board of Fire & Police Commissioners, 181 Ill.App.3d 714, 715, 130 Ill. Dec. 377, 537 N.E.2d 444 (1989).

Section 3-111 empowers the circuit court, "where a hearing has been held by the agency, to reverse and remand the decision in whole or in part, and, in that case, to state the questions requiring further hearing or proceedings and to give such other instructions as may be proper." (Emphasis added.) 735 ILCS 5/3-111(a)(6) (West 2006). Section 3-111 also empowers the circuit court, "where a hearing has been held by the agency, to remand for the purpose of taking additional evidence when from the state of the record of the administrative agency or otherwise it shall appear that such action is just." (Emphasis added.) 735 ILCS 5/3-111(a)(7) (West 2006).

In Wilkey v. Illinois Racing Board, the supreme court held (1) where a cause is remanded for a new trial or other further proceedings involving disputed questions of law or fact, the judgment of the Appellate Court is not of a final character, and (2) the ultimate question to be decided in each case is whether the judgment fully and finally disposes of the rights of the parties to the cause so that no material controverted issue remains to be determined. Wilkey v. Illinois Racing Board, 96 Ill.2d 245, 249, 70 Ill.Dec. 496, 449 N.E.2d 843 (1983), quoting Cory Corp. v. Fitzgerald, 403 Ill. 409, 414-15, 86 N.E.2d 363 (1949). Daley v. License Appeal Comm'n, 311 Ill.App.3d 194, 200, 243 Ill.Dec. 905, 724 N.E.2d 214 ...