                                                                              FOURTH DIVISION
                                                                              June 30, 2006

No. 1-05-2828

ADAM N. STILLO,                                                      )       Appeal from the
                              )                                      Circuit Court of
        Plaintiff-Appellant,  )                                      Cook County.
                              )
v.                            )       No. 04CH20262
                              )
STATE RETIREMENT SYSTEMS, JUDGES=             )
RETIREMENT SYSTEM OF ILLINOIS and )
THE BOARD OF TRUSTEES OF THE JUDGES=          )
RETIREMENT SYSTEM OF ILLINOIS,                )    The Honorable
                              )        Martin S. Agran,
     Defendants-Appellees. )    Judge Presiding.


        JUSTICE GREIMAN delivered the opinion of the court:

        In the trial court, plaintiff Adam N. Stillo sought administrative review of a decision of defendant

the Board of Trustees of the Judges= Retirement System of Illinois (the Board) that plaintiff was not

entitled to a refund of contributions he made to the Judges= Retirement System in the amount of

$83,938.22 on the grounds that the claim was waived when plaintiff had not raised it in previous

proceedings on the same issue before the Board. On review, the circuit court upheld the Board=s decision,

holding that plaintiff=s cause of action was barred by res judicata. On appeal, plaintiff contends (1) that the

cause of action was not barred by res judicata, and (2) that he did not waive his claim for a refund.

        Plaintiff was a magistrate judge and then a circuit court judge in the circuit court of Cook County

from 1964 to 1988. During that time, he made contributions of $107,534.83 to the Judge=s

Retirement System of Illinois (the System). Between his August 1, 1988, retirement and July 31,

1994, the System paid plaintiff a total of $438,598.62 in benefits. In 1991, plaintiff was indicted

on federal felony charges of racketeering and extortion conspiracy arising from activities during his tenure as

a judge. Upon his 1994 conviction and sentencing on those charges, the System terminated his pension
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benefits pursuant to section 18-163 of the Illinois Pension Code (40 ILCS 5/18-163 (West

1994)), which requires that all benefit payments cease upon a member=s conviction and sentencing for a

felony arising out of acts committed during the performance of the member=s official duties. Plaintiff then

filed a complaint asking the circuit court to enjoin termination of his pension benefits until such time as a due

process hearing could be held. The circuit court dismissed that complaint when the Board scheduled a hearing

to consider plaintiff=s case for August 26, 1994. Following that hearing, the Board entered an order

terminating all of plaintiff=s benefits as of July 11, 1994Cthe date of his convictionCand finding that the

System had properly terminated his benefits.

        Plaintiff filed a complaint in the circuit court on October 28, 1994, seeking administrative

review of the Board=s decision. In his complaint, plaintiff alleged that his benefits should not terminate until

he exhausted his appeals of his criminal conviction and that he and his wife were entitled to a hearing before

the pension benefits could be suspended. Within that complaint, he alleged that the System owed him

$83,938.22, a figure he reached by subtracting $21,279.93Cthe amount he was paid from 1988

through 1994 from his annuityCfrom the $104,574.95 he contributed to the system. The circuit

court denied the petition for administrative review on November 24, 1997. This court affirmed. See

Stillo v. State Retirement System, 305 Ill. App. 3d 1003 (1999). Plaintiff petitioned for a

rehearing, which this court denied. The Illinois Supreme Court and the United States Supreme Court

denied plaintiff=s petitions for leave to appeal and for certiorari. See Stillo v. State Retirement Systems,

186 Ill. 2d 590 (1999); Stillo v. Illinois State Retirement System, 529 U.S. 1069,

146 L. Ed. 2d 485, 120 S. Ct. 1677 (2000).

        Subsequently, the Illinois Supreme Court issued its decision in Shields v. Judges= Retirement

System of Illinois, 204 Ill. 2d 488 (2003). In Shields, the court held that a former judge

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whose pension benefits had been terminated following a felony conviction was entitled to a full refund of all

contributions he made to the System. One month later, plaintiff wrote to the Board citing Shields and

asking for a refund of $83,938.22.

        After seeking and receiving an advisory opinion from the Office of the Attorney General, the

Board denied the request based upon plaintiff=s failure to challenge the method by which the Board calculated

the refund he may have been owed in the 1994 proceeding. The Board deemed that issue waived and

informed plaintiff of its administrative decision in a letter dated November 4, 2004.

        Plaintiff filed a complaint for administrative review of the Board=s decision on December 7,

2004, and sought a refund of $83,938.22. The circuit court issued a decision on August 3,

2005, affirming the Board=s denial of plaintiff=s request for a refund, finding that the cause of action was

barred by the doctrine of res judicata. Plaintiff filed a notice of appeal on August 29, 2005.

        On appeal, we will review an administrative agency=s decision rather than the circuit court=s

determination. Village of Oak Park v. Village of Oak Park Firefighters Pension Board, 362 Ill.

App. 3d 357, 365 (2005). Because the facts of plaintiff=s case were not in dispute before the

Board, its determination that he had waived his request for a refund involves a matter of law. Citizens

Utilities Co. of Illinois v. Centex-Winston Corp., 185 Ill. App. 3d 610, 613 (1989). An

administrative agency=s findings on a question of law are reviewed de novo. Branson v. Department of

Revenue,168 Ill. 2d 247, 254 (1995).

        First, plaintiff contends that his cause of action is not barred by the doctrine of res judicata. The

doctrine of res judicata mandates that a final judgment on the merits of a case rendered by a

court of competent jurisdiction is an absolute bar to future suits between the same parties

regarding the same Aclaim, demand or cause of action.@ Riverdale Industries Inc. v. Malloy, 307

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Ill. App. 3d 183, 185 (1999). Res judicata serves as a bar to litigation of all issues that were

actually decided and Aall issues that could have been raised and determined because they were

properly involved by the subject matter of the earlier action.@ (Emphasis added.) Riverdale

Industries, 307 Ill. App. 3d at 185. To determine whether a second suit constitutes the same

cause of action as a previous suit for res judicata purposes, we look to the Atransactional test,@

which asks whether the subsequent action arises from the same set of operative facts as the

original action. River Park Inc. v. City of Highland Park, 184 Ill. 2d 290, 309 (1998). Therefore,

in determining whether two suits are the same cause of action under res judicata, we look at the

facts that give rise to the claim for relief, not only those facts which support the decision in the

first action. River Park, 184 Ill. 2d at 309-10. A > A >[T]he assertion of different kinds or theories

of relief still constitutes a single cause of action if a single group of operative facts give rise to

the assertion of relief.= @ = @ River Park, 184 Ill. 2d at 307, quoting Rodgers v. St. Mary=s

Hospital, 149 Ill. 2d 302, 312 (1992), quoting Pfeiffer v. William Wrigley Jr. Co., 139 Ill. App.

3d 320, 323 (1985), quoting Baird & Warner, Inc. v. Addison Industrial Park, Inc., 70 Ill. App.

3d 59, 64 (1979).

        In support of his contention, plaintiff distinguishes the case at bar from Bagnola v. SmithKline

Beecham Clinical Laboratories, 333 Ill. App. 3d 711 (2002), and River Park. In Bagnola,

this court ruled that a discharged police officer=s claims against a laboratory and the city for spoliation of

evidence were barred by res judicata because the court had previously rejected the same arguments in a prior

court action dealing with a challenge to the officer=s discharge.

        In River Park, the Supreme Court of Illinois held that state law claims for tortious interference



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1-05-2828

with business expectancy, breach of implied contract, and abuse of governmental power arising from the

defendant=s failure to act on the plaintiff=s land-rezoning petition were barred by res judicata because a federal

district court and the Seventh Circuit Court of Appeals had previously dismissed the plaintiff=s 1983

(42 U.S.C. ' 1983 (1994)) claim, which also arose from the defendant=s failure to act on the

rezoning petition. In deciding River Park, the supreme court explicitly adopted the Second Restatement of

Judgments test (see Restatement (Second) of Judgments ' 24, Comment a, at 197 (1982)),

commonly known as the Atransactional test,@ for determining whether a second suit constitutes the same

cause of action for res judicata purposes. The court noted that this was a liberal standard, meant to promote

judicial economy by barring all claims and theories of relief actually brought in a prior action upon which a valid

final judgment was rendered, as well as barring all of those claims or theories that could or should have been

brought as part of that prior action. The court found in River Park that although the plaintiff asserted

different theories of relief in the subsequent state action, the case was barred because both the federal and

state claims arose from the same underlying factsCi.e., the defendant=s failure to act on the rezoning

petition.

            Plaintiff asserts that the case at bar is distinguishable from Bagnola because in that case a court

had already explicitly rejected the arguments raised by the plaintiff, whereas in the instant case, the court

never explicitly addressed whether the Board had properly calculated any refunds plaintiff may have been

owed. Plaintiff misapprehends both the holding in Bagnola and the requirements of the doctrine of res

judicata. In Bagnola, the court did not hold that only those arguments that the court had explicitly rejected in

prior court actions between the same parties were barred by res judicata. Rather, the court wrote,

A[e]stoppel by judgment has broad preclusive effect and issues actually raised, as well as issues that could

have been raised, in the first proceeding may not be relitigated in a subsequent proceeding.@ Bagnola, 333

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Ill. App. 3d at 717, citing Osborne v. Kelly, 207 Ill. App. 3d 488, 491 (1991). The

court further noted that the policies underlying res judicata Ainclude *** promoting judicial economy by

disposition of all claims based upon a common core of operative facts in a single action.@ Bagnola, 333

Ill. App. 3d at 718, citing Osborne, 207 Ill. App. 3d at 491. Therefore, while the Bagnola

court barred the subsequent case based on the fact that the arguments in question had already been litigated

between the parties in a prior case, it did not establish a rule that res judicata only bars those causes of

action that have already come before a court and been rejected.

        Furthermore, contrary to plaintiff=s assertion, the case at bar presents a nearly identical situation to

River Park. While plaintiff here asserts a different theory under which he seeks the return of a portion of

his pension contributions (now challenging the method of calculation of the refund, whereas previously he

contended that he was entitled to a continuation of benefits until his appeals were exhausted), the underlying

set of operative facts is identical in both cases. As the court determined in River Park, if plaintiff wanted

to challenge the method of calculation of his refund, he should have raised that issue in his 1994 appeal.

(The issue of whether plaintiff did, as he contends, actually raise that issue in the 1994 action is discussed

below.) Res judicata clearly bars the present case.

        Plaintiff=s second contention is that he did challenge the method by which the Board calculated the

amount of refunds he was owed by demanding a refund of $83,938.22 in the 1994 action and

therefore did not waive that issue. This mischaracterizes the nature of the 1994 proceedings. Before the

trial court in the earlier proceeding, plaintiff did mention that he believed $83,938.22 was Adue and

owing@ to him from his contributions to the System. Specifically, his complaint stated:

              AJ. From 1988 through 1994, the plaintiff-appellant, Adam N. Stillo, was paid

     $21,279.93 from the annuity cost of $44,182.65

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              K. Subtracting $21,279.93 from $44,182.65 results in a net balance of

     $2,902.72 available for distribution to Adam N. Stillo.

              L. Page one of the administrative agency=s opinion indicates that Adam N. Stillo

     contributed $104,574.95 to the retirement system and has been repaid $21,279.93, with

     the difference being $83,938.22, which is the amount that would be due and owing Adam N.

     Stillo; Adam N. Stillo does not owe the Judges= Retirement System of Illinois the sum of

     $4,483.43.@

         However, as defendant notes, it appears that defendant made no legal argument before the Board

or the circuit court that he was entitled to a refund of his contributions; nor did plaintiff explicitly challenge the

method by which the Board determined that it had overpaid him the amount $4,483.43. On appeal,

defendant again did not raise the issue of the amount of refund to which he was entitled, contending only that

he was Aentitled to a presuspension hearing before [his] pension benefits were suspended and *** that [his]

pension benefits should not have been terminated prior to exhaustion of [his] appeal of his criminal conviction.@

Stillo, 305 Ill. App. 3d at 1004. The simple statement that he believed $83,938.22 was

Adue and owing@ is not sufficient to preserve the issue of the method of calculation. A >Bare contentions in

the absence of argument or citation of authority do not merit consideration on appeal and are deemed waived.=

@ Schultz v. Lakewood Electric Corp., 362 Ill. App. 3d 716, 721 (2005), quoting Obert v.

Saville, 253 Ill. App. 3d 677, 682 (1993). In deciding that plaintiff was not owed any

refunds in 1994, the Board acted consistently with the way the Pension Code was construed at the time.

It did not address other methods of calculating any refunds plaintiff may have been owed because the plaintiff

did not raise the issue.

         Accordingly, we find that, in addition to plaintiff=s action being barred by the doctrine of res judicata,

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1-05-2828

the Board correctly determined that plaintiff waived his current request for a refund of his contributions to

the System by failing to address the method of calculation on administrative review or appeal of the 1994

Board decision.

        For the above-stated reasons, we affirm the judgment of the circuit court of Cook County that

upheld the decision of the Board.

        Affirmed.

        QUINN, P.J., and MURPHY, J., concur.




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