                             2014 IL App (2d) 130823
                                  No. 2-13-0823
                            Opinion filed July 23, 2014
______________________________________________________________________________

                                             IN THE

                              APPELLATE COURT OF ILLINOIS

                              SECOND DISTRICT
______________________________________________________________________________

THE VILLAGE OF VERNON HILLS,           ) Appeal from the Circuit Court
                                       ) of Lake County.
      Plaintiff and Counterdefendant-  )
      Appellant and Cross-Appellee,    )
                                       )
v.                                     ) No. 11-MR-1683
                                       )
WILLIAM J. HEELAN,                     )
                                       ) Honorable
      Defendant and Counterplaintiff-  ) Margaret J. Mullen,
      Appellee and Cross-Appellant.    ) Judge, Presiding.
______________________________________________________________________________

       JUSTICE ZENOFF delivered the judgment of the court, with opinion.
       Justice Spence concurred in the judgment and opinion.
       Justice McLaren dissented, with opinion.

                                           OPINION

¶1     The Board of Trustees of the Vernon Hills Police Pension Fund (Board) awarded a line-

of-duty disability pension (40 ILCS 5/3-114.1 (West 2010)) to defendant, police officer William

J. Heelan. Thereafter, plaintiff, the Village of Vernon Hills (Village), filed a complaint in the

trial court seeking a declaratory judgment that it was not obligated under section 10 of the Public

Safety Employee Benefits Act (Act) (820 ILCS 320/10 (West 2010)) to pay the health insurance

premiums for Heelan, his wife, and his two children. Heelan filed a counterclaim seeking a
2014 IL App (2d) 130823


declaratory judgment that the Village was obligated under the Act.1 The Village appeals from

the trial court’s declaratory judgment in Heelan’s favor; Heelan cross-appeals from the trial

court’s denial of his motion for sanctions under Illinois Supreme Court Rule 137 (eff. July 1,

2013). For the following reasons, we affirm.

¶2                                       I. BACKGROUND

¶3     In December 2009, while on patrol, Heelan, a 20-year veteran of the Village’s police

department, was dispatched to a “panic call alarm.” Upon arrival at the scene, Heelan saw an

unknown man exiting a building. As he quickly approached the man, Heelan slipped on a patch

of ice and fell on his right side at the edge of a curb. Heelan was taken by ambulance to a

hospital emergency room, where he was X-rayed, prescribed pain medication, and released. He

followed up with various physicians and underwent physical therapy. An MRI showed that

Heelan suffered a labral tear in his right hip.

¶4     Dr. Jay Levin conducted an independent medical evaluation of Heelan in connection with

a claim Heelan filed under the Workers’ Compensation Act (820 ILCS 305/1 et seq. (West

2010)). Dr. Levin opined that the December 2009 incident had aggravated Heelan’s preexisting

right hip osteoarthritis. According to Heelan, prior to the incident, he had not experienced any

pain or problems from arthritis.

¶5     During the year following the incident, the Village paid Heelan his full salary pursuant to

the Public Employee Disability Act (5 ILCS 345/1 (West 2010)). Heelan underwent a right hip

replacement in April 2010. After this surgery, Heelan returned to work on light duty for about

       1
           In his counterclaim, Heelan also sought attorney fees pursuant to the Attorneys Fees in

Wage Actions Act (705 ILCS 225/1 (West 2010)). The trial court granted the Village’s motion

for summary judgment on this claim. This order is not at issue in this appeal.



                                                  -2-
2014 IL App (2d) 130823


two months.     His right hip replacement exacerbated his left hip osteoarthritis, and Heelan

underwent a left hip replacement in September 2010. He did not return to work after this second

surgery. Heelan and the Village subsequently settled Heelan’s workers’ compensation claim in a

lump-sum agreement.

¶6     In December 2010, Heelan filed an application for a line-of-duty disability pension under

section 3-114.1 of the Illinois Pension Code (40 ILCS 5/3-114.1 (West 2010)). The Board

conducted a hearing on June 28, 2011. Pursuant to section 3-115 of the Illinois Pension Code

(40 ILCS 5/3-115 (West 2010)), the Board admitted into evidence the reports of three physicians

selected by the Board—Dr. Joseph Meis, Dr. Thomas Gleason, and Dr. Joshua Jacobs. Drs.

Meis and Jacobs each certified that Heelan was “disabled to a point that he [was] not able to

perform his duties as a police officer.” Dr. Meis identified Heelan’s hip replacements as the

conditions that disabled him, while Dr. Jacobs identified Heelan’s right and left hip osteoarthritis

as the disabling conditions. Dr. Jacobs further certified that it was “medically possible” that

Heelan’s disability resulted from an act of duty or the cumulative effects of acts of duty,

specifically identifying the December 2009 incident as the cause of Heelan’s disability. Dr.

Gleason, on the other hand, opined in his report that Heelan was not disabled to a point of being

unable to perform his police duties, “unless police procedure to incarcerate arrested persons as

required exceeds the medium level as defined by the [Illinois] Department of Labor Guidelines.”

Dr. Gleason certified that, if Heelan were disabled, it was medically possible that his disability

resulted from an act of duty or the cumulative effects of acts of duty.

¶7     The Board also heard telephone testimony from Dr. Gleason. Dr. Gleason testified that

he would not recommend that Heelan engage a 200-pound person resisting arrest or run after a

fleeing suspect. Dr. Gleason agreed on cross-examination that, if the service requirements of the



                                                -3-
2014 IL App (2d) 130823


Village police department exceeded the medium level of the Department of Labor guidelines,

Heelan was disabled.     After considering the evidence, the Board determined that Heelan

qualified for a line-of-duty disability pension and it adopted its written findings and decision on

August 24, 2011.

¶8     On September 22, 2011, the Village filed its complaint seeking a declaratory judgment

that Heelan was not eligible for health insurance benefits under the Act. In its complaint, the

Village alleged that Heelan had not suffered a catastrophic injury, as required by section 10(a) of

the Act (820 ILCS 320/10(a) (West 2010)), and that Heelan’s injury had not resulted from his

response to what he reasonably believed to be an emergency, as required under section 10(b) of

the Act (820 ILCS 320/10(b) (West 2010)).         The Village acknowledged Krohe v. City of

Bloomington, 204 Ill. 2d 392 (2003), in which the court held that a catastrophic injury is

synonymous with an injury resulting in a line-of-duty disability pension, but the Village asserted

that Krohe was factually distinguishable and did not address the issues raised in the Village’s

complaint. Heelan answered the complaint and filed his counterclaim seeking a declaratory

judgment that the Village was obligated to provide the insurance benefits.

¶9     On June 4, 2012, the Village filed notices of deposition of Drs. Levin, Meis, Jacobs, and

Gleason. Heelan moved to strike the depositions, arguing that the testimony would not be

relevant to the proceedings or, alternatively, that the Village was collaterally estopped from

contesting Heelan’s injury. On August 24, 2012, the trial court granted Heelan’s motion to

strike, relying on Krohe and its progeny. The court noted that in Krohe the supreme court held

the term “catastrophic injury” in section 10(a) of the Act is a term of art meaning an injury

resulting in the award of a line-of-duty disability pension (see Krohe, 204 Ill. 2d at 400). The

court elaborated, “I know that because not only does Krohe say it, but the Nowak case [(Nowak



                                               -4-
2014 IL App (2d) 130823


v. City of Country Club Hills, 2011 IL 111838)] says it. Also, it’s an Illinois Supreme Court

case. And the Second District in the Richter case [(Richter v. Village of Oak Brook, 2011 IL

App (2d) 100114)] says Krohe says it. So if I needed any reassurance, I certainly have it in those

cases that construe Krohe.” The Village subsequently filed a motion to reconsider the court’s

ruling, which the court denied.

¶ 10   On February 26, 2013, Heelan filed a motion in limine to bar any testimony on the issue

of whether he had suffered a catastrophic injury under section 10(a) of the Act. Heelan argued

that the Village was collaterally estopped from asserting that he did not suffer a catastrophic

injury. Relying on the trial court’s August 24, 2012, order granting his motion to strike the

depositions, Heelan further contended that, under Krohe, the Village was prohibited from

denying that he suffered a catastrophic injury. The court granted the motion in limine.

¶ 11   On March 18, 2013, the matter proceeded to a bench trial. The Village conceded that

section 10(b) of the Act was satisfied, indicating that it was not contesting that, during the

December 2009 incident, Heelan was responding to what he reasonably believed to be an

emergency. In light of the court’s prohibition of testimony regarding whether Heelan suffered a

catastrophic injury under section 10(a), the Village made an offer of proof as to that issue. The

Village rested its case, and Heelan moved for a directed finding, which the court granted.

¶ 12   Heelan then presented evidence to support his counterclaim.          When Heelan began

testifying about his belief as to the emergency nature of the December 2009 incident, the Village

objected on relevance grounds in light of its concession regarding section 10(b) of the Act. The

court sustained the objection and allowed Heelan to make an offer of proof. Heelan then

testified about his application for, and the Board’s award of, a line-of-duty disability pension.

The Board’s written decision also was admitted into evidence. Heelan testified that, following



                                               -5-
2014 IL App (2d) 130823


the award of his pension, he sought from the Village health insurance benefits under the Act. He

explained that the parties agreed that, to avoid a lapse in insurance coverage during the pendency

of the litigation, the Village would continue to pay the premiums for Heelan, while Heelan

would pay the premiums for his family. When Heelan rested his case on his counterclaim, the

Village moved for a directed finding, which the court denied. The Village presented its evidence

on Heelan’s counterclaim and renewed its motion for a directed finding. The court denied the

Village’s renewed motion and found that Heelan had sustained his proofs.

¶ 13   On March 20, 2013, the trial court entered a written order in Heelan’s favor on the

Village’s complaint and on Heelan’s counterclaim.2 The court awarded Heelan benefits under

the Act, retroactive to August 24, 2011, when the Board had issued its written decision.

¶ 14   On May 24, 2013, Heelan filed a motion for sanctions against the Village pursuant to

Supreme Court Rule 137. In his motion, Heelan argued that the Village brought its suit only to

harass him and cause him unnecessary expense. According to Heelan, because the Village’s

complaint acknowledged both the Krohe decision and the fact that he had received a line-of-duty

disability pension, the Village knew that he was entitled to benefits under the Act and, therefore,

did not act in good faith in filing suit. The Village responded that it pursued this action in good

faith because it presented unique facts and arguments not previously addressed by Krohe and its

progeny. The Village also argued that it permissibly advocated for modification of existing law.

The trial court denied Heelan’s motion for sanctions, finding that the evidence indicated no bad

faith by the Village. The court further found that the Village had made it clear from the

beginning that it was seeking to change the law.

¶ 15   On July 18, 2013, the trial court entered its final judgment. The Village timely appeals,

       2
           The case continued on matters not at issue in this appeal.



                                                 -6-
2014 IL App (2d) 130823


and Heelan timely cross-appeals.        We granted the Illinois Municipal League’s motion to

intervene as amicus curiae and to file a brief in support of the Village.

¶ 16                                       II. ANALYSIS

¶ 17                                  A. The Village’s Appeal

¶ 18   The Village appeals from the trial court’s judgment that it was obligated under the Act to

provide health insurance benefits to Heelan and his family. The purpose of the Act is “to ensure

the health benefits of public safety employees who have suffered career-ending injuries.”

Richter, 2011 IL App (2d) 100114, ¶ 16. Under section 10 of the Act, injured law enforcement

officers and firefighters, and their families, are entitled to have their municipality pay their health

insurance premiums if two conditions are satisfied. 820 ILCS 320/10 (West 2010); Richter,

2011 IL App (2d) 100114, ¶ 16. Section 10(a) of the Act requires the employee to have suffered

a “catastrophic injury” or to have been killed in the line of duty. 820 ILCS 320/10(a) (West

2010); Richter, 2011 IL App (2d) 100114, ¶ 16. Section 10(b) of the Act provides in relevant

part that the employee must have been injured or killed as a result of his or her “response to what

is reasonably believed to be an emergency.” 820 ILCS 320/10(b) (West 2010); Richter, 2011 IL

App (2d) 100114, ¶ 16. In the trial court, the Village conceded that Heelan satisfied section

10(b). Thus, the issue before us is whether he satisfied section 10(a).

¶ 19   The Act does not define the term “catastrophic injury.” In 2003, our supreme court held

that the term was ambiguous. Krohe, 204 Ill. 2d at 395. The court considered the legislative

history and debates, concluding that they “could not be clearer.” Krohe, 204 Ill. 2d at 398. The

court held that the legislature intended the term “catastrophic injury” to be “synonymous with an

injury resulting in a line-of-duty disability under section 4-110 of the [Pension] Code.” Krohe,

204 Ill. 2d at 400 (referring to 40 ILCS 5/4-110 (West 2000); this section of the Pension Code



                                                 -7-
2014 IL App (2d) 130823


provides for line-of-duty disability pensions for firefighters and is similar to section 3-114.1,

which provides for police officers’ line-of-duty disability pensions); see also Nowak, 2011 IL

111838, ¶ 12 (supreme court reaffirming its holding in Krohe and applying it where a police

officer was injured). Following Krohe, this court explained in Richter:

       “Under Krohe, the pension board’s decision [to award the plaintiff-firefighter a line-of-

       duty disability pension] establishes that the plaintiff suffered a catastrophic injury, thus

       meeting the requirements of section 10(a) of [the Act]. This is not an application of

       collateral estoppel. Rather, because the legislature intended an injured firefighter or

       police officer to be eligible for benefits under section 10(a) of [the Act] whenever his or

       her injuries were sufficient to qualify for a line-of-duty pension, the pension board’s

       determination in this regard establishes as a matter of law that the firefighter or police

       officer received a catastrophic injury.” Richter, 2011 IL App (2d) 100114, ¶ 16.

The issue of whether Heelan satisfied section 10(a) of the Act by virtue of having been awarded

a line-of-duty disability pension presents a question of law, which we review de novo. See

Richter, 2011 IL App (2d) 100114, ¶¶ 14, 16.

¶ 20   In the present case, it is undisputed that the Board awarded Heelan a line-of-duty

disability pension. Therefore, it is an uncontroverted fact that he was catastrophically injured for

purposes of section 10(a) of the Act. See Krohe, 204 Ill. 2d at 400; Richter, 2011 IL App (2d)

100114, ¶ 16. In light of the Village’s concession with respect to section 10(b) of the Act, the

trial court correctly entered judgment in favor of Heelan on the Village’s complaint and on

Heelan’s counterclaim. See Pyle v. City of Granite City, 2012 IL App (5th) 110472, ¶ 20

(holding that the plaintiff-firefighter was entitled to benefits under the Act because the plaintiff




                                               -8-
2014 IL App (2d) 130823


had been awarded a line-of-duty disability pension and the parties did not dispute that his injuries

occurred as a result of his response to an emergency).

¶ 21   Nevertheless, the Village argues that Krohe, Richter, and Nowak do not control, because

the courts in those cases did not consider whether a trial court may prohibit a municipality from

engaging in discovery or presenting evidence disputing that an injury was catastrophic.

According to the Village, “much confusion” has resulted from Krohe. We disagree.

¶ 22   In Krohe, our supreme court addressed the question of whether the term “catastrophic

injury” in section 10(a) of the Act is synonymous with an injury resulting in a line-of-duty

disability pension. Krohe, 204 Ill. 2d at 394. The court’s answer to that question was an

unequivocal yes. Krohe, 204 Ill. 2d at 394, 400.

¶ 23   In Richter, this court considered the plaintiff-firefighter’s contention that, after he was

awarded a line-of-duty disability pension, “under the principle of collateral estoppel he ha[d] the

right to judgment as a matter of law” on his claim under the Act. Richter, 2011 IL App (2d)

100114, ¶ 14. We explained that the doctrine of collateral estoppel “prohibits the relitigation of

an issue actually decided in an earlier proceeding between the same parties.” Richter, 2011 IL

App (2d) 100114, ¶ 17. We then addressed section 10(a) of the Act. Relying on Krohe, we held

that the pension board’s awarding the plaintiff a line-of-duty disability pension established that

the plaintiff had suffered a catastrophic injury under section 10(a) of the Act. Richter, 2011 IL

App (2d) 100114, ¶ 16. Turning to section 10(b) of the Act, we held that the defendant-village

was collaterally estopped (by proceedings under the Workers’ Compensation Act) from

relitigating the issue of whether the plaintiff’s first shoulder injury was a contributing cause of

his disability. Richter, 2011 IL App (2d) 100114, ¶ 24.




                                               -9-
2014 IL App (2d) 130823


¶ 24   We agree with the Village that our analysis and holding in Richter regarding section

10(b) of the Act are not relevant here, because the Village conceded that element. However, we

disagree with the Village’s conclusion that our analysis and holding in Richter regarding section

10(a) was dicta. In Richter, following a bench trial, the plaintiff challenged the trial court’s

judgment with respect to his claim under the Act; thus, we necessarily had to address the

requirements of both sections of the Act.

¶ 25   In Nowak, the supreme court considered the issue of when a municipality’s obligation

attaches under the Act. Nowak, 2011 IL 111838, ¶ 9. The court also clearly reaffirmed its

holding in Krohe—that the term “catastrophic injury” as used in section 10(a) of the Act is

synonymous with an injury resulting in the award of a line-of-duty disability pension. Nowak,

2011 IL 111838, ¶ 12; see also Gaffney v. Board of Trustees of the Orland Fire Protection

District, 2012 IL 110012, ¶¶ 54-55 (reaffirming its holding in Krohe while addressing section

10(b)’s requirement that the injury occurred in response to what was reasonably believed to be

an emergency). Indeed, the court in Nowak equated the determination of a catastrophic injury

with the determination of eligibility for a line-of-duty disability pension. Nowak, 2011 IL

111838, ¶ 29 (“[A]n employer’s obligation to pay the entire health insurance premium for an

injured officer and his family attaches on the date that it is determined that the officer’s injury is

‘catastrophic’—that is, on the date it is determined that the injured officer is permanently

disabled and therefore eligible for a line-of-duty disability pension.”).

¶ 26   Krohe, Richter, and Nowak control the instant appeal. Although these cases did not

address a municipality’s right to conduct discovery or present evidence on the issue of whether

the claimant’s injury was catastrophic, they unambiguously established that the award of a line-

of-duty disability pension means that the claimant suffered a catastrophic injury within the



                                                - 10 -
2014 IL App (2d) 130823


meaning of section 10(a) of the Act. Accordingly, where it is uncontroverted that a line-of-duty

disability pension has been awarded, section 10(a) is satisfied, and there is no need to engage in

discovery or present evidence regarding the claimant’s injury.

¶ 27   We emphasize that Krohe and its progeny are not rooted in the doctrine of collateral

estoppel. See Richter, 2011 IL App (2d) 100114, ¶ 16 (explaining the holding of Krohe, we said

that “[t]his is not an application of collateral estoppel”). Although the parties here argued

collateral estoppel in the trial court, Heelan now concedes that the doctrine does not apply. Nor

did the trial court base its decision on collateral estoppel. Since August 24, 2012, when the trial

court granted Heelan’s motion to strike the depositions, the court appropriately relied on the

holding from Krohe—that the term “catastrophic injury” is a term of art meaning an injury

resulting in the award of a line-of-duty disability pension.

¶ 28   The Village nonetheless maintains that it was entitled to litigate the nature, extent, and

causes of Heelan’s injuries, insisting that Heelan’s preexisting osteoarthritis was not work

related. Within its argument that collateral estoppel does not apply, the Village asserts that “the

pension board hearing did not follow the rules of evidence” and that “the facts of this case

require further medical testimony.” By criticizing the Board proceeding and seeking to introduce

evidence regarding Heelan’s injuries, the Village is in essence arguing that the Board’s decision

that Heelan qualified for a line-of-duty disability pension was erroneous. Despite the collateral-

estoppel label that the Village attaches to its argument, we discern a collateral attack on the

Board’s decision.

¶ 29   “A collateral attack on a judgment is an attempt to impeach that judgment in an action

other than that in which it was rendered.” (Internal quotation marks omitted.) Apollo Real

Estate Investment Fund, IV, L.P. v. Gelber, 403 Ill. App. 3d 179, 188 (2010). Describing the



                                               - 11 -
2014 IL App (2d) 130823


well-established collateral-attack doctrine, our supreme court explained that, once a court of

competent jurisdiction renders a judgment, it is not open to contradiction or impeachment in any

collateral proceeding. Malone v. Cosentino, 99 Ill. 2d 29, 32 (1983). “Once a court with proper

jurisdiction has entered a final judgment, that judgment can only be attacked on direct appeal, or

in one of the traditional collateral proceedings now defined by statute.” Malone, 99 Ill. 2d at 32-

33 (noting that the statutory collateral proceedings were habeas corpus proceedings,

postconviction proceedings, and section 2-1401 proceedings under the Code of Civil Procedure).

The collateral-attack doctrine applies to administrative agency decisions as well as to trial court

judgments. Board of Education of the City of Chicago v. Board of Trustees of the Public Schools

Teachers’ Pension & Retirement Fund of Chicago, 395 Ill. App. 3d 735, 740 (2009) (“[A]n

agency decision which is merely voidable, as opposed to void, is not subject to collateral

attack.”).

¶ 30    Here, because the Village does not challenge the Board’s statutory authority to render its

decision,3 any attempt to dispute the sufficiency of the Board’s proceeding, its factual findings,

or its ultimate award of Heelan’s pension would be an impermissible collateral attack on the

board’s decision. See Wabash County v. Illinois Municipal Retirement Fund, 408 Ill. App. 3d

924, 930 (2011) (“An agency decision that is erroneous and voidable is not subject to a collateral

attack, whereas an agency’s decision made without statutory authority is void and subject to a

collateral attack.” (citing Board of Education of the City of Chicago, 395 Ill. App. 3d at 740));

        3
            An administrative agency decision rendered without statutory authority is analogous to

a trial court order entered without subject matter jurisdiction. Board of Education of the City of

Chicago, 395 Ill. App. 3d at 740. Such a decision would be void and subject to collateral attack

in any court, at any time. Wabash County, 408 Ill. App. 3d at 930.



                                               - 12 -
2014 IL App (2d) 130823


Apollo Real Estate Investment Fund, 403 Ill. App. 3d at 188-89 (recognizing the defendants’

purported attempt to defend against collateral estoppel as a collateral attack on the foreign

judgment at issue, the court held that, because the defendants did not question the foreign court’s

jurisdiction, they were precluded from collaterally attacking the foreign judgment).

¶ 31   Nevertheless, the Village urges that its due process rights were violated when the trial

court prohibited it from conducting discovery and presenting evidence on the nature, extent, and

causes of Heelan’s injuries. The Village argues that, because it was neither a party nor in privity

with a party in the Board proceeding, it was denied the “opportunity to litigate anything.” In

support of its position, the Village cites authority cautioning against “the indiscriminate

application of offensive collateral estoppel” (Herzog v. Lexington Township, 167 Ill. 2d 288, 295

(1995)).

¶ 32   The “[r]equirements of due process are met by conducting an orderly proceeding in

which a party receives adequate notice and an opportunity to be heard.” Reichert v. Court of

Claims of State of Illinois, 203 Ill. 2d 257, 261 (2003). We review the Village’s due process

argument de novo. People v. K.S., 387 Ill. App. 3d 570, 573 (2008) (explaining that, while a trial

court’s decision to limit discovery is generally reviewed for an abuse of discretion, an alleged

denial of due process is reviewed de novo).

¶ 33   We reiterate: neither the trial court’s judgment nor our decision affirming it is based on

collateral estoppel. Given that our supreme court construed the phrase “catastrophic injury” as

an injury resulting in a line-of-duty disability pension,4 the Village’s due process argument is

       4
           In its attempt to distinguish Krohe, the Village cites the appellate court decision in

Krohe (Krohe v. City of Bloomington, 329 Ill. App. 3d 1133, 1143 (2002) (Steigmann, J.,

dissenting)), without mentioning that it is citing the dissent, for the proposition that the trial court



                                                 - 13 -
2014 IL App (2d) 130823


unavailing. As explained above, where, as here, it is undisputed that an officer was awarded a

line-of-duty disability pension, section 10(a) is satisfied. Richter, 2011 IL App (2d) 100114,

¶ 16 (holding that the pension board’s decision awarding a line-of-duty disability pension

established that the firefighter suffered a catastrophic injury under section 10(a)). Therefore, the

factual issues raised by the Village—the nature, extent, and causes of Heelan’s injuries, as well

as any preexisting osteoarthritis—were not relevant. Nothing remained to be litigated under

section 10(a).

¶ 34   The Village also urges us not to follow Krohe, arguing that the “supreme court

misinterpreted the legislative intent behind” the Act. The Village further maintains that the court

in Krohe failed to appreciate the significance of the Act’s language requiring “a catastrophic

injury” by not considering whether the injury must result from a single occurrence. Regardless

of any error or deficiency the Village perceives in Krohe’s reasoning, we are bound by decisions

of our supreme court.       See Pyle, 2012 IL App (5th) 110472, ¶¶ 19-20 (rejecting the

municipality’s arguments that Krohe’s definition of “catastrophic injury” did not comport with

the commonly understood meaning, that Krohe’s reliance on legislative hearings was improper,

and that Krohe was bad law for public policy reasons).

¶ 35                                   B. Heelan’s Cross-Appeal




in Krohe did not consider the nature and extent of the plaintiff-firefighter’s injury. But that is the

point—the supreme court held in Krohe that section 10(a)’s “catastrophic injury” requirement is

satisfied if a claimant was awarded a line-of-duty disability pension. Thus, the nature and extent

of a claimant’s injuries are not relevant to a trial court’s determination of whether section 10(a) is

satisfied in a declaratory judgment action.



                                                - 14 -
2014 IL App (2d) 130823


¶ 36   Heelan contends that the trial court abused its discretion in denying his motion for Rule

137 sanctions. In relevant part, Rule 137 provides that an attorney filing a pleading or a motion

must certify that, to the best of his or her knowledge, information, and belief, formed after

reasonable inquiry, the pleading or motion “is well grounded in fact and is warranted by existing

law or a good-faith argument for the extension, modification, or reversal of existing law, and that

it is not interposed for any improper purpose, such as to harass or to cause unnecessary delay or

needless increase in the cost of litigation.” Ill. S. Ct. R. 137 (eff. July 1, 2013). “The purpose of

the rule is to penalize attorneys and parties who abuse the judicial process by filing frivolous or

false matters without a basis in law or fact or for purposes of harassment.” In re Marriage of

Petrik, 2012 IL App (2d) 110495, ¶ 33. “A trial court’s decision whether to impose sanctions is

entitled to significant deference, and we will not disturb the trial court’s decision absent an abuse

of discretion.” Petrik, 2012 IL App (2d) 110495, ¶ 33. “A trial court abuses its discretion where

no reasonable person would take the view adopted by the trial court.” (Internal quotation marks

omitted.) Petrik, 2012 IL App (2d) 110495, ¶ 19.

¶ 37   Specifically, Heelan maintains that the Village’s complaint, its response to Heelan’s

motion to strike the depositions, and its motion to reconsider the order striking the depositions

were not warranted by a good-faith argument to extend, modify, or reverse existing law, but were

instead brought to harass him and needlessly increase litigation costs. Heelan emphasizes that

the Village acknowledged Krohe in its complaint. He also notes that he repeatedly brought

Gaffney, Nowak, and Richter to the Village’s attention during the pendency of the proceedings.

As evidence of the Village’s “candid display of *** disregard” for precedent, Heelan quotes the

Village’s attorney, from a December 2012 motion hearing: “We don’t agree with the Krohe

decision, the rationale or its applicability to the present situation.” Heelan additionally urges



                                               - 15 -
2014 IL App (2d) 130823


that, given the trial court’s and this court’s lack of authority to overturn the supreme court’s

decision in Krohe, the Village could not have been acting in good faith to seek modification or

reversal of the law.

¶ 38   The trial court found no evidence of bad faith by the Village and observed that the

Village had made it clear from the beginning that it was seeking to change the law. Despite

Heelan’s argument to the contrary, the Village’s acknowledgment of Krohe throughout this

litigation supports the court’s finding. The quote above was excerpted from the following

statement by the Village’s attorney: “I mean, it’s not a surprise. We don’t agree with the Krohe

decision, the rationale or its applicability to the present situation. We made that point; you made

your ruling. We respect that, we understand it. But the only way you get those rulings changed

is by challenging them in an appropriate forum. We’ve come here to do that.” The court

responded to counsel by stating, “I guess they have the right to do that.” Heelan’s attorney said,

“Certainly, they do, Your Honor. I would concede that.” That the court could not have

overruled Krohe does not change the fact that it might have found that Krohe was distinguishable

or inapposite to the due process and collateral estoppel issues raised by the Village.

Furthermore, the Village had no option but to bring its claim in the trial court and, if

unsuccessful, proceed up the chain of review—which is exactly what it is doing.

¶ 39   The record reveals that the Village attempted in good faith to distinguish Krohe and to

articulate its disagreement with Krohe’s holding. Additionally, the Illinois Municipal League

filed an amicus brief in support of the Village’s position, on public policy grounds. We cannot

say that no reasonable person would take the view adopted by the trial court, namely, that the

Village brought its action in an effort to change existing law and did not act in bad faith.

Accordingly, the trial court did not abuse its discretion in denying Heelan’s motion for Rule 137



                                              - 16 -
2014 IL App (2d) 130823


sanctions. See McClaughry v. Village of Antioch, 296 Ill. App. 3d 636, 645 (1998) (“A court

should not impose [Rule 137] sanctions on a party who presents objectively reasonable

arguments for his position, regardless of whether the arguments are deemed to be unpersuasive

or incorrect.”).

¶ 40                                   III. CONCLUSION

¶ 41    For the foregoing reasons, we affirm the judgment of the circuit court of Lake County.

¶ 42    Affirmed.

¶ 43    JUSTICE McLAREN, dissenting.

¶ 44    The “sole issue” in Krohe was whether the phrase “ ‘catastrophic injury’ ” is

“synonymous with an injury resulting in a line-of-duty disability.” Krohe, 204 Ill. 2d at 394.

The supreme court decided that it is. But that is all that the supreme court decided in Krohe. It

did not, as the majority claims, hold “that section 10(a)’s ‘catastrophic injury’ requirement is

satisfied if a claimant was awarded a line-of-duty disability pension.” Supra ¶ 33 n.4. Further,

nowhere did Krohe hold, as the majority does now, that a pension board’s award of a line-of-

duty disability pension is irrefutable proof of a catastrophic injury under section 10(a) of the Act

in a declaratory judgment proceeding in a trial court.

¶ 45    Yet that is the meaning and effect that the majority here ascribes to Krohe. It takes the

answer to that “sole issue” of the meaning of an ambiguous phrase and transforms it into a rule

of law affecting civil procedure, evidence, burdens of proof, and due process.

¶ 46    The majority finds that Krohe, Richter, and Nowak control this case. Supra ¶ 26. Indeed,

the first misstep onto this path of misapplying Krohe occurred in Richter, where this court stated

that, “[u]nder Krohe, the pension board’s decision established that the plaintiff suffered a

catastrophic injury, thus meeting the requirements of section 10(a) of PSEBA.” Richter, 2011 IL



                                               - 17 -
2014 IL App (2d) 130823


App (2d) 100114, ¶ 16.        The second misstep is the majority here referring to Nowak as

controlling. The parties in Nowak agreed “that plaintiff suffered a catastrophic injury in the line

of duty” and “that, in light of that injury, the City is obligated under section 10(a) to pay the

entire health insurance premium for plaintiff and his family.” Nowak, 2011 IL 111838, ¶ 9. The

“sole point of contention” of the case was when the city’s obligation under section 10 attached.

Id. Nowak is of no real guidance, let alone controlling.

¶ 47   The majority now holds, in essence, that a pension board is the de facto finder of fact as

to section 10(a) of the Act. Although the majority states that, because “it is undisputed that the

Board awarded Heelan a line-of-duty disability pension[] *** it is an uncontroverted fact that he

was catastrophically injured for purposes of section 10(a)” (supra ¶ 20), the true meaning of the

majority holding is that it is an incontrovertible fact. So long as a pension board has issued an

order granting a line-of-duty disability pension, a trial court, in a different proceeding with

different parties, has no authority to hear any evidence as it applies to determining a

“catastrophic injury” under section 10(a).       The majority holds that the trial court, in an

independent proceeding, must take judicial notice of the pension board’s finding and consider it

as irrefutable proof.

¶ 48   Due process “entitles a litigant to have all the evidence submitted to a single judge who

can see the witnesses testify and, thus weigh their testimony and judge their credibility.” Smith

v. Freeman, 232 Ill. 2d 218, 223 (2009).5 Findings of fact based on the demeanor of witnesses

should be made by the judge who observed the witnesses. Anderson v. Kohler, 376 Ill. App. 3d

714, 720 (2007).

       5
           Smith involved the issue of whether parties could agree or stipulate to allow a successor

judge to decide a case based on written evidence received by a predecessor judge.



                                                - 18 -
2014 IL App (2d) 130823


¶ 49    A litigant in a trial court is entitled to have the merits of his case decided by the trial

court. Due process is not served when findings of fact and conclusions of law of a different

tribunal, with no subject matter jurisdiction over the issue raised, in a different case in which the

litigant was not a party and in which the litigant had no right to intervene, are binding on the trial

court such that the litigant cannot contest the cause of action, demand strict proof thereof, obtain

discovery, present evidence, have the trial court determine the credibility of the witnesses and the

weight to be accorded to their testimony, and generally defend against judgment being entered

against it.

¶ 50    Our supreme court long ago stated:

        “In Atchinson, Topeka & Santa Fe Railway Com. v. Commerce Commission, supra, we

        held that the statement of one tribunal of a particular fact in a case before it is no

        evidence in another controversy upon a different issue between different parties in

        another tribunal of the particular fact stated, and that the commissioners cannot act on

        their own information but must base their findings on evidence presented in the case.”

        Moline Consumers’ Co. v. Illinois Commerce Comm’n ex rel. Chicago, B. & Q. R.R. Co.,

        353 Ill. 119, 129 (1933).

The majority does not explain why the findings of an administrative agency can (or should) be

binding on a trial court in a separate proceeding with different parties regarding matters that the

administrative agency has no statutory authority to decide. Administrative agencies are limited

to the powers granted to them by the legislature. See Gaffney v. Board of Trustees of the Orland

Fire Protection District, 2012 IL 110012, ¶ 38 (“An administrative agency has no general or

common law powers. Alvarado v. Industrial Comm’n, 216 Ill. 2d 547, 553 (2005). Rather, an

agency’s powers are limited to those granted by the legislature and any action must be



                                                - 19 -
2014 IL App (2d) 130823


specifically authorized by statute. Alvarado, 216 Ill. 2d at 553.”). To my knowledge, there is no

authority, statutory or otherwise, that grants power to a pension board to bind a trial court. A

pension board’s decision to deny a disability pension to a claimant firefighter does not prevent a

board of commissioners from deciding that the same claimant should be discharged because of a

disability. See Dowrick v. Village of Downers Grove, 362 Ill. App. 3d 512, 521 (2005). I see no

reason why a pension board’s decision should have more power over a trial court than it does

over another administrative agency.

¶ 51   In cases of administrative review, an administrative agency’s decision is not beyond

review. Its findings and conclusions on questions of fact are deemed prima facie true and correct

but are still reviewed under the manifest-weight-of-the-evidence standard. Peacock v. Board of

Trustees of the Police Pension Fund, 395 Ill. App. 3d 644, 652 (2009).               An agency’s

interpretation of a statute, regulation, or rule connected with the agency is considered relevant

but not binding (City of St. Charles v. Illinois Labor Relations Board, 395 Ill. App. 3d 507, 509

(2009)), and its decision on a question of law is not binding but reviewed de novo (Wolin v.

Department of Financial & Professional Regulation, 2012 IL App (1st) 112113, ¶ 19). Even an

agency’s credibility determinations are not beyond review; while such a determination is to be

“afforded considerable weight,” the deference afforded “ ‘is not boundless.’ ” Kouzoukas v.

Retirement Board of the Policemen’s Annuity & Benefit Fund of the City of Chicago, 234 Ill. 2d

446, 465 (2009) (quoting Wade v. City of North Chicago Police Pension Board, 226 Ill. 2d 485,

507 (2007)). I am aware of neither authority nor rationale for validating a pension board’s award

of a pension as irrefutable proof of an element of a cause of action in a trial court proceeding

involving a different party and different issues except when it was agreed to by the parties in the

trial court. See, e.g., Gaffney, 2012 IL 110012, ¶ 54 (both plaintiffs were awarded line-of-duty



                                              - 20 -
2014 IL App (2d) 130823


disability pensions, and “[t]he defendants agree that the requirements of subsection (a) have been

met in this case.”); Nowak, 2011 IL 111838, ¶ 9 (board awarded line-of-duty disability pension

and “[t]he parties here agree that plaintiff suffered a catastrophic injury in the line of duty”).

Springborn v. Village of Sugar Grove, 2013 IL App (2d) 120861, presented an interesting

situation: although the defendants therein did “not dispute in these appeals that Springborn and

Cecala suffered ‘catastrophic injuries’ ” (id. ¶ 25), there is no mention of whether either plaintiff

was awarded a line-of-duty disability pension.6

¶ 52   The majority’s due process analysis is wholly inadequate.           The majority finds the

Village’s due process claim “unavailing” (supra ¶ 33) and states that due process requires only

“an orderly proceeding in which a party receives adequate notice and an opportunity to be heard”

(internal quotation marks omitted) (supra ¶ 32). However, the majority fails to identify any

proceeding at which the Village had notice and an opportunity to be heard regarding the

evidence of a catastrophic injury. It is this evidence upon which the Village’s liability for the

insurance premiums is based. The majority’s statement might make sense if the Village were

attempting to abrogate the pension. However, that is not the case. The Village is seeking to

avoid liability for the health insurance premiums; it is not attempting to affect the Board’s

decision.

¶ 53   The Village was not a party before the Board and had no right to be a party.                A

municipality currently does not have a right to intervene in such a case, although a pension board

       6
            At least we are told that plaintiff Springborn applied for a pension, as “his testimony

from two appearances before the Board of Trustees for the Police Pension Fund of Sugar Grove”

was attached to the parties’ cross-motions for summary judgment. Id. ¶ 7. No mention is made

of any pension application by plaintiff Cecala.



                                                - 21 -
2014 IL App (2d) 130823


has the discretion to permit such an intervention. See Williams v. Board of Trustees of the

Morton Grove Firefighters’ Pension Fund, 398 Ill. App. 3d 680, 688-89 (2010). However, a

board’s decision to deny a municipality’s request to participate in a pension hearing has been

found not to be an abuse of discretion. See Village of Stickney v. Board of Trustees of the Police

Pension Fund of the Village of Stickney, 347 Ill. App. 3d 845, 852 (2004). Unless the majority’s

opinion is overturned, it would behoove municipalities to seek to intervene in pension cases as a

matter of right in order to protect their financial interests, since a pension board’s grant of a line-

of-duty disability pension is now deemed to be irrefutable proof in any other tribunal. However,

any future attempt at intervention could create numerous problems dealing with the due process

rights of all concerned participants.7 Even when a municipality intervenes in a proceeding,

unless all evidence is presented to and issues are disposed of by the same trier of fact, the

proceeding does not comport with due process.

¶ 54   I also question the majority’s discernment of a collateral attack on the Board’s decision

granting the pension. See supra ¶ 28. A collateral attack “is an attempt to impeach or deny

effect to an order in some proceeding not provided by law for the express purpose of attacking

it.” Thomas v. Sklodowski, 303 Ill. App. 3d 1028, 1033 (1999) (citing 46 Am. Jur. 2d Judgments

§ 519 (1994)). The Village’s complaint for declaratory judgment did not seek to impeach or

deny effect to the Board’s decision; had the Village succeeded on its complaint, the decision

granting the line-of-duty disability pension would have remained intact. The only relief sought

was a declaration that the Village did not have to pay the health insurance premiums—an issue

       7
           See Williams, 398 Ill. App. 3d at 690, wherein the municipality was allowed to

intervene, but aspects of its intervention were deemed to raise a conflict of interest resulting in a

violation of due process.



                                                - 22 -
2014 IL App (2d) 130823


that the Board clearly had no statutory authority to decide, raised by a party over which the

Board had no personal jurisdiction.

¶ 55    In addition, since the Village never participated in the Board proceeding, it is difficult to

understand how the Village’s action is collateral. In attempting to define a collateral attack, the

majority quotes from Apollo Real Estate Investment Fund (see supra ¶ 29) but somehow misses

this part of the explanation:

                “Under the collateral attack doctrine, a final judgment rendered by a court of

        competent jurisdiction may only be challenged through direct appeal or procedure

        allowed by statute and remains binding on the parties until it is reversed through such a

        proceeding.” (Emphasis added.) Apollo Real Estate Investment Fund, 403 Ill. App. 3d at

        189.

The majority is correct in stating that collateral estoppel provides no basis for its decision. Supra

¶ 33. “Collateral estoppel is applicable only where the issue decided in the prior adjudication is

identical with the one presented in the suit in question, there was a final judgment on the merits

in the prior adjudication, and the party against whom estoppel is asserted was a party or in privity

with a party to the prior adjudication.” Pedersen v. Village of Hoffman Estates, 2014 IL App

(1st) 123402, ¶ 42. It is axiomatic that someone not a party or in privity with a party in a

proceeding is not bound by the judgment in that proceeding, as was determined to be the case on

similar facts in Pedersen. See id. ¶¶ 45-47. However, the majority then fails to explain how a

final judgment of the Board can be binding on the Village, a nonparty to the proceeding before

the Board that is not challenging the Board’s judgment. Without some form of privity, personal

jurisdiction, or prior involvement, it would appear that the Village’s declaratory judgment action

is a case of first impression as to the rights, duties, and liabilities at issue between the Village and



                                                 - 23 -
2014 IL App (2d) 130823


Heelan. See Lewis v. Blumenthal, 395 Ill. 588, 594 (1947) (res judicata and collateral attack

would apply only in a case where the trial court had subject matter and personal jurisdiction over

the parties and their privies).

¶ 56    The majority seems unwilling to countenance the possibility of “inconsistent verdicts.”

But that sometimes happens when different tribunals, considering (possibly) different evidence

presented by different parties, make decisions regarding different causes of action. See, e.g.,

Dowrick, 362 Ill. App. 3d at 521; Edwards v. Addison Fire Protection District Firefighters’

Pension Fund, 2013 IL App (2d) 121262, ¶ 38 (citing Dowrick and finding that it was not

“incongruous” that the claimant “could be found unfit for duty because of a latex sensitivity yet

be found ineligible for a pension based on the same physical infirmity”).            Certainly, the

legislature must have been aware of such a potentiality when it assigned to pension boards the

power to grant line-of-duty disability pensions but declined to assign to the boards the power to

order the payment of health insurance premiums under section 10 of the Act.

¶ 57    The majority’s position also leads to implications that the majority fails to acknowledge.

If “the award of a line-of-duty disability pension means that the claimant suffered a catastrophic

injury within the meaning of section 10(a) of the Act” (supra ¶ 26), the converse must also be

true: if the pension board denies an application for a line-of-duty disability pension, that denial

means that the claimant did not suffer a catastrophic injury within the meaning of section 10(a)

of the Act. Such a claimant would be precluded from presenting any evidence in the trial court

in an attempt to seek the payment of health insurance premiums under the Act, based upon a

catastrophic injury (which has not been adjudicated in any prior proceeding, especially one in

which the municipality was a party).       Such an attempt might even be deemed frivolous,

considering the telling effect that the majority ascribes to pension board decisions regarding line-



                                               - 24 -
2014 IL App (2d) 130823


of-duty disability pensions. Simply put, neither party should be precluded from contesting a

declaratory judgment claim, because the claim is the first instance of litigation between the

parties as to the issue.

¶ 58    The determination of whether an issue has been raised and considered in a prior

proceeding has been described as follows:

                           “ ‘In determining whether an issue has been raised and considered in a

                prior proceeding reference may be had to “pleadings, testimony, jury instructions,

                findings, verdicts, and any other pertinent sources of information sensibly helpful

                to the inquiry.” “Res Judicata Reexamined,” Cleary, 57 Yale Law Journal, 339,

                342. Harmon v. Auditor of Public Accounts, 123 Ill. 222.’

                This determination does not depend upon technicalities but on broad principles of

        justice, and it can apply only when the party has had his day in Court and full opportunity

        to establish his claim. Voorhees v. Chicago & A. R. Co., 208 Ill. App. 86, 95 (3rd

        Dist. 1917). The doctrine is based upon the principle that while every man is entitled to

        his day in court and full opportunity to sustain his position on the issues of fact involved,

        he is not given the right to litigate a matter twice. ‘It is of first importance both in the

        observance of private rights and the public good that a question once adjudicated by a

        court of competent jurisdiction shall be considered as finally settled and conclusive on

        the parties, subject only to proceedings in a court of review.’ Winkelman v. Winkelman,

        310 Ill. 568, 573, 142 NE 173 (1924).” Chas. Ind Co. v. Cecil B. Wood, Inc., 56 Ill.

        App. 2d 30, 38 (1965).

There is nothing in this record to suggest that the Village ever had a prior opportunity to have its

day in court. Until it does, I will continue to dissent.



                                                - 25 -
2014 IL App (2d) 130823




                          - 26 -
