                                   Illinois Official Reports

                                           Appellate Court



                             Gallaher v. Hasbrouk, 2013 IL App (1st) 122969




Appellate Court               VICTORIA GALLAHER, Plaintiff-Appellant, v. LaMAR
Caption                       HASBROUK, Director of Public Health, JOHN ABRELL, Chief
                              Administrative Law Judge of the Department of Public Health, and
                              THE DEPARTMENT OF PUBLIC HEALTH, Defendants-
                              Appellees.


District & No.                First District, Fifth Division
                              Docket No. 1-12-2969


Rule 23 Order filed           September 30, 2013
Rule 23 Order
withdrawn                     October 31, 2013
Opinion filed                 December 31, 2013


Held                          In an action filed by a paramedic and emergency medical services
(Note: This syllabus          instructor seeking to suspend and dismiss an administrative action by
constitutes no part of the    the Department of Public Health to revoke her instructor’s license, the
opinion of the court but      trial court properly found that plaintiff was not required to exhaust her
has been prepared by the      administrative remedies and it also properly entered summary
Reporter of Decisions         judgment against plaintiff after rejecting her contention that the
for the convenience of        Department was required to implement a “plan of correction” pursuant
the reader.)                  to section 3.130 of the Emergency Medical Services (EMS) Systems
                              Act to address her alleged misconduct before revoking her license,
                              since section 3.130 applies to facilities, systems, and equipment, not
                              individuals.



Decision Under                Appeal from the Circuit Court of Cook County, No. 11-CH-21745; the
Review                        Hon. Franklin U. Valderamma, Judge, presiding.
     Judgment                 Affirmed.


     Counsel on               Emily Johnson, of Hunter & Johnson P.C., of Godfrey, and Edward
     Appeal                   Clancy, of Ungaretti & Harris, LLP, of Chicago, for appellant.

                              Lisa Madigan, Attorney General, of Chicago (Michael A. Scodro,
                              Solicitor General, and Christopher M.R. Turner, Assistant Attorney
                              General, of counsel), for appellees.



     Panel                    JUSTICE McBRIDE delivered the judgment of the court, with
                              opinion.
                              Presiding Justice Gordon and Justice Palmer concurred in the
                              judgment and opinion.


                                             OPINION

¶1          Plaintiff Victoria Gallaher, a paramedic and emergency medical services instructor, sought
       injunctive relief and a declaratory judgment from the circuit court of Cook County to suspend
       and ultimately dismiss an administrative action brought by the State of Illinois to revoke her
       instructor’s license. The trial court enjoined the administrative action, but later rejected
       Gallaher’s contention that the defendant State agency was misconstruing its statutory authority
       to revoke her license without first implementing a “plan of correction” to address her alleged
       misconduct. Gallaher appeals from the trial court’s adverse ruling on cross-motions for
       summary judgment, primarily contending that a section of the Illinois Emergency Medical
       Services (EMS) Systems Act (hereinafter EMS Act) entitled “Facility, system, and equipment
       violations; Plans of Correction” (210 ILCS 50/3.130 (West 2010)), applies to individuals and
       entitled Gallaher to a plan of correction. The three defendants to this appeal are LaMar
       Hasbrouk, Director of the Department of Public Health, John Abrell, chief administrative law
       judge of the Department of Public Health, and the Department of Public Health, which we will
       refer to collectively as the Department.
¶2          Gallaher resides in Nauvoo, Illinois, a small community west-southwest of Chicago on the
       banks of the Mississippi River, across from the state of Iowa. Gallaher contends she currently
       holds “Emergency Medical Technician-Paramedic” or “EMT-P” licenses in the states of
       Illinois (210 ILCS 50/3.100, 3.50(c) (West 2012)), Iowa, and Missouri, although the
       Department counters that her Missouri EMT-P license expired on September 30, 2009. In any



                                                  -2-
     event, the credential at issue is Gallaher’s Illinois license as an “EMS Lead Instructor” (210
     ILCS 50/3.65 (West 2010)). 1
¶3       Section 3.65 of the EMS Act is entitled “EMS Lead Instructor” and consists of two parts.
     The first part, subsection (a), defines “EMS Lead Instructor” as “a person who has successfully
     completed a course of education as prescribed by the Department, and who is currently
     approved by the Department to coordinate or teach education, training and continuing
     education courses, in accordance with standards prescribed by this Act and rules adopted by
     the Department pursuant to this Act.” 210 ILCS 50/3.65(a) (West 2010).
¶4       The second part, subsection (b), specifies that the Department has “the authority and
     responsibility” to take certain actions with regard to EMS Lead Instructors. These acts include
     to dictate minimum education requirements and testing requirements for EMS Lead Instructor
     candidates, to charge fees to each EMS Lead Instructor candidate for his or her examination
     and certification and recertification, to require that courses for EMS personnel be
     “coordinated” by at least one approved EMS Lead Instructor, and to set “standards and
     procedures for awarding EMS Lead Instructor approval to persons previously approved by the
     Department to coordinate such courses.” Of particular interest here is that the final paragraphs
     of subsection (b) state that the Department also has “the authority and responsibility” to:
                 “(7) Suspend or revoke the approval of an EMS Lead Instructor, after an
             opportunity for a hearing, when findings show one or more of the following:
                      (A) The EMS Lead Instructor has failed to conduct a course in accordance with
                 the curriculum prescribed by this Act and rules adopted by the Department
                 pursuant to this Act; or
                      (B) The EMS Lead Instructor has failed to comply with protocols prescribed by
                 the Department through rules adopted pursuant to this Act.” 210 ILCS 50/3.65(b)
                 (West 2010).
¶5       Section 3.65 is the statute the Department has relied upon in its proceedings against
     Gallaher. 210 ILCS 50/3.65 (West 2010). According to the Department, Gallaher misstepped
     in 2007, first by failing to obtain a site code and system approval for EMS courses she began
     teaching at the high school in Warsaw, Illinois, and again when she was the Lead Instructor for
     an EMS conference convened in Nauvoo where a speaker taught “pediatric
     warming/re-warming methods which were not part of the National EMT Curriculum, were
     contrary to accepted standards of pre-hospital care, unaccepted by pediatric medicine and ***
     dangerous.” The Illini EMS System/Genesis Medical Center (not the Department itself)
     (hereinafter Illini EMS System), notified Gallaher of its intent to suspend her license on April
     19, 2007, but on May 21, 2007, the Illini EMS System converted the proposed suspension into
     a one-year probation with conditions, essentially that Gallaher could not teach an EMS course
     without being directly supervised by the Illini EMS System coordinator. According to the


         1
           The record indicates Gallaher was licensed for the four-year term ending February 28, 2011, and
     that she reapplied during these proceedings. We presume the Department granted her request subject to
     the outcome of its administrative action.
                                                   -3-
     Department, Gallaher taught at the Warsaw high school in violation of the local probation and
     supervision order.
¶6        On or about November 9, 2007, the Department (not the Illini EMS System) called
     Gallaher and her attorney to a meeting to ask for a “plan of correction,” purportedly to avoid
     further disciplinary measures and a formal administrative action. In December 2007, Gallaher
     submitted a proposed plan of correction which included that she obtain a site code before the
     start date of any new course and be supervised for 90 days by an EMS Lead Instructor who
     would evaluate Gallaher’s teaching.
¶7        The Department did not respond to Gallaher’s proposed plan of correction and, instead, in
     February of 2008, filed a notice of intent to suspend her teaching license based on her conduct
     at the high school. The Department alleged that Gallaher’s failure to obtain site codes and
     system approval from the local EMS medical director (210 ILCS 50/3.100 (West 1996)) was
     contrary to the protocol prescribed by the Department through its administrative rules and was
     unprofessional in violation of the EMS Act. See 77 Ill. Adm. Code 515.500(a), (b), (c) (2003);
     210 ILCS 50/3.65(b)(7), 3.50(d)(8) (West 1996). The Department further alleged that
     Gallaher’s failure to prevent the nonstandard teaching or to take any steps to correct the
     nonstandard teaching was contrary to the requirement that classes be consistent with the
     national EMT curriculum adopted by the Department and was unprofessional. 77 Ill. Adm.
     Code 515.500(d) (2003); 210 ILCS 50/3.50(d)(8), 3.65(b)(7)(A) (West 1996). In March of
     2008, Gallaher denied the Department’s allegations, refiled her plan of correction, and
     requested an administrative hearing. It was in these administrative proceedings that Gallaher
     first argued that prior to initiating a license suspension hearing pursuant to section 3.65 of the
     EMS Act, the Department had to follow the protocol set out in section 3.130 of the EMS Act.
     210 ILCS 50/3.65, 3.130 (West 1996). The version of section 3.130 that was then in effect was
     simply entitled “Violations; Plans of Correction” and stated as follows.
              “Except for emergency suspension orders, or actions initiated pursuant to Section
              3.90(b)(10) of this Act [which concerns hospitals known as trauma centers], prior to
              initiating an action for suspension, revocation, denial, nonrenewal, or imposition of a
              fine pursuant to this Act, the Department shall:
                   (a) Issue a Notice of Violation which specifies the Department’s allegations of
              noncompliance and requests a plan of correction to be submitted within 10 days after
              receipt of the Notice of Violation;
                   (b) Review and approve or reject the plan of correction. If the Department rejects
              the plan of correction, it shall send notice of the rejection and the reason for the
              rejection. The party shall have 10 days after receipt of the notice of rejection in which
              to submit a modified plan;
                   (c) Impose a plan of correction if a modified plan is not submitted in a timely
              manner or if the modified plan is rejected by the Department;
                   (d) Issue a Notice of Intent to fine, suspend, revoke, nonrenew or deny if the party
              has failed to comply with the imposed plan of correction, and provide the party with an
              opportunity to request an administrative hearing. The Notice of Intent shall be effected

                                                 -4-
                by certified mail or by personal service, shall set forth the particular reasons for the
                proposed action, and shall provide the party with 15 days in which to request a
                hearing.” 210 ILCS 50/3.130 (West 1996).
¶8          Gallaher moved for summary judgment in the administrative proceedings, arguing that
       license revocation was premature because the Department had not followed the plan of
       correction procedure set out in section 3.130 and its companion Administrative Code, title 77,
       section 515.160, which adds detail to the statute. 77 Ill. Adm. Code 515.160, amended at 20 Ill.
       Reg. 11602 (eff. Apr. 15, 1997). Gallaher reiterated that she was also disputing the allegations
       that she violated the suspension order. On September 8, 2010, the assistant chief administrative
       law judge (ALJ) assigned to the matter recommended that the agency accept Gallaher’s
       argument that section 515.160 was controlling and entitled her to a plan of correction, but also
       conclude that Gallaher’s motion for summary judgment should be denied because there were
       questions of fact as to whether Gallaher ignored the suspension order. The ALJ further
       recommended that the Department’s notice of intent be dismissed “with leave to re-file under
       77 Ill. Adm. Code 515.160.” On September 17, 2010, the director of the Department issued an
       order adopting the ALJ’s recommended disposition of the action.
¶9          Also in 2010, the Illinois legislature amended section 3.130 of the EMS Act by changing
       its title from “Violations; Plans of Correction” to the more specific, “Facility, system, and
       equipment violations; Plans of Correction.” Pub. Act 96-1469 (eff. Jan. 1, 2011). Also, where
       the prior version of the law stated, “Except for emergency suspension orders, or actions
       initiated pursuant to Section 3.90(b)(10) of this Act [which concerns hospitals known as
       trauma centers] prior to initiating an action” (210 ILCS 50/3.130 (West 1996)) the amended
       version stated, “Except for emergency suspension orders, or actions initiated pursuant to
       Sections 3.117(a), 3.117(b), and 3.90(b)(10) of this Act, prior to initiating an action ***.”
       (Emphasis added.) 210 ILCS 50/3.130 (West 2010). The three statutory sections were
       references to facilities known as “Primary Stroke Centers” (210 ILCS 50/3.117(a) (West
       2010)), “Emergent Stroke Ready Hospitals” (210 ILCS 50/3.117(b) (West 2010)), and
       “Trauma Centers” (210 ILCS 50/3.90 (West 2010)).
¶ 10        To implement this amendment, the Department amended the companion Administrative
       Code section, title 77, section 515.160(a) (hereinafter EMS Code), “to clarify that plans of
       correction apply only to violations of the Act regarding facilities, systems, and equipment.” 35
       Ill. Reg. 15280, 15286.
¶ 11        Then, on March 30, 2011, the Department served Gallaher with a notice of violation and
       intent to revoke her Lead Instructor’s approval in accordance with section 3.65(b)(7) of the
       amended statute. 210 ILCS 50/3.65(b)(7) (West 2010). Like the 2008 notice of intent, the 2011
       notice of intent alleged Gallaher taught at the high school without obtaining site codes and
       Department approval as required by the EMS Code. The 2011 notice of intent also referred to
       the nonstandard pediatric techniques that were taught under Gallaher’s supervision at the
       Nauvoo EMS conference.
¶ 12        Gallaher moved to dismiss the 2011 proceedings, once again arguing that a plan of
       correction was a prerequisite, but this time the argument was unsuccessful and the ALJ
       indicated Gallaher needed to comply with the Department’s requests for discovery in the
                                                     -5-
       administrative action. Gallaher filed a motion to reconsider, which the ALJ denied, specifically
       rejecting Gallaher’s contention that res judicata barred the Department from relitigating the
       relevance of a plan of correction, and pointing out that (1) the ALJ in the 2008 matter clearly
       recommended that the Department be given leave to refile, (2) the Director issued a final order
       which accepted this recommendation, and (3) the Department had refiled. The ALJ also
       specified that the Department’s discovery requests “were proper” and that the documents
       should be produced.
¶ 13       At this juncture, Gallaher filed for declaratory and injunctive relief in the circuit court,
       alleging that the administrative action should be enjoined for three reasons. In count I, she
       contended the action was contrary to section 3.130 of the EMS Act. In count II, she alleged the
       action was contrary to title 77, sections 515.160 and 515.700, of the EMS Code for instituting
       revocation actions. 77 Ill. Adm. Code 515.160, amended at 20 Ill. Reg. 11602 (eff. Apr. 15,
       1997); 77 Ill. Adm. Code 515.700 (2003). In count III, Gallaher alleged the Director’s “FINAL
       ORDER” in 2010 triggered the doctrine of collateral estoppel and precluded any further action
       by the Department. Gallaher also sought a declaratory judgment stating these three
       conclusions. In addition to her complaint, Gallaher filed a motion for a preliminary injunction
       to prohibit the Department from pursuing the 2011 administrative action or compelling her to
       comply with its discovery requests.
¶ 14       The Department filed a combined response to Gallaher’s motion for injunctive relief and
       motion to dismiss her complaint on grounds that she failed to exhaust her administrative
       remedies and could not succeed on the merits of her pleading. The circuit court rejected the
       argument for dismissal, finding that Gallaher was not required to exhaust her administrative
       remedies before pursuing judicial relief because “agency expertise is not involved” and it
       would be futile for her to exhaust her administrative remedies. The circuit court, however, also
       denied Gallaher’s motion for an injunction, because Gallaher did not show that she would
       suffer irreparable harm.
¶ 15       The circuit court also ruled in the Department’s favor when the parties filed cross-motions
       for summary judgment on Gallaher’s complaint. With regard to count I, the court held that
       section 3.130 of the EMS Act applies only to disciplinary actions against EMS systems and
       facilities and for violations of equipment standards, and thus, section 3.130 does not require the
       Department to implement a plan of correction against a lead instructor for his or her personal
       violation of section 3.65. The court reached the same conclusions about title 77, section
       515.160, of the companion Administrative Code, as it was pled in count II. As for count III, the
       court found collateral estoppel was not triggered by the Director’s 2010 administrative order
       dismissing the 2008 notice of intent with leave to refile, because the Director’s decision was
       not a final judgment on the merits. This appeal followed.
¶ 16       Gallaher opens her appeal with her collateral estoppel and res judicata arguments
       regarding the Director’s 2010 order. She next argues she was entitled to a plan of correction
       either because section 3.130 of the EMS Act has always applied to individuals and its newly
       revised title even refers to individuals because people are part of the EMS “system” (210 ILCS
       50/3.130 (West 2010); Pub. Act 96-514, § 10 (eff. Jan. 1, 2010); Pub. Act 96-1469, § 5 (eff.
       Jan. 1, 2011)), or because the revised version of title 77, section 515.160, of the EMS Code
                                                   -6-
       addresses disciplinary actions against individuals, where the body of the administrative code
       refers to “System participants” (77 Ill. Adm. Code 515.160(e), amended at 20 Ill. Reg. 11602
       (eff. Apr. 15, 1997); Pub. Act 96-1469 (eff. Jan. 1, 2011)). In the event we do not find these
       first two arguments persuasive, Gallaher has a third: the Department was not entitled to
       summary judgment where she argued in her cross-motion that charges against her lack merit.
       Gallaher says that the circuit court should have addressed this additional argument, but for no
       apparent reason never reached it. The Department responds that the court’s only error was
       deciding Gallaher did not need to exhaust her administrative remedies.
¶ 17        We first address the Department’s exhaustion of remedies argument, because it could be
       dispositive of the appeal. The Department contends we may affirm the summary judgment
       ruling in its favor on grounds that Gallaher failed to exhaust her administrative remedies. We
       know that the Department presented exhaustion and other arguments in its cross-motion for
       summary judgment, but it was the other arguments that were persuasive to the circuit court.
       The Department is relying on the principle that an appellee “may urge any point in support of
       the judgment on appeal,” even if that point was not argued in the circuit court, so long as the
       factual basis for that point was before the circuit court. (Internal quotation marks omitted.)
       Beahringer v. Page, 204 Ill. 2d 363, 370, 789 N.E.2d 1216, 1222 (2003). Another relevant
       principle is that we can affirm on any basis in the record, whether or not the trial court relied on
       that basis or the court’s reasoning was correct. Board of Education of Marquardt School
       District No. 15 v. Regional Board of School Trustees, 2012 IL App (2d) 110360, ¶ 16, 969
       N.E.2d 431; Benson v. Stafford, 407 Ill. App. 3d 902, 912, 941 N.E.2d 386, 397 (2010). In
       other words, our role is to review the court’s judgment, not its specific reasoning leading up to
       that decision. Gallaher counters that she did not discuss exhaustion in her opening brief and
       that we should disregard it because it appears in the Department’s response brief rather than
       through a cross-appeal. She erroneously relies on Burrgess v. Industrial Comm’n, 169 Ill. App.
       3d 670, 523 N.E.2d 1029 (1988), and Lagen v. Balcor Co., 274 Ill. App. 3d 11, 653 N.E.2d 968
       (1995), which merely indicate that if an appellee wants an appellate court to review additional
       decisions, the appellee must preserve those issues by filing its own appeal or cross-appeal. This
       concept is irrelevant because the Department is not asking us to revisit the adverse decision on
       its motion to dismiss; the Department is reiterating an argument, albeit an unsuccessful one,
       found in its motion for summary judgment and urging us to reject Gallaher’s appeal on that
       basis. Gallaher could have anticipated this argument and she should have addressed it in her
       opening brief. Accordingly, we proceed to the merits of this exhaustion argument.
¶ 18        The general rule is that a party that disagrees with an agency’s administrative action cannot
       seek judicial review, including through actions for injunctive and declaratory relief, without
       first pursuing all of the administrative remedies available to him or her. Castaneda v. Illinois
       Human Rights Comm’n, 132 Ill. 2d 304, 308, 547 N.E.2d 437, 439 (1989) (indicating
       employment discrimination plaintiff must pursue rehearing from an en banc panel of the
       Human Rights Commission in order to exhaust administrative remedies and obtain final order
       reviewable in the circuit court); Dock Club, Inc. v. Illinois Liquor Control Comm’n, 83 Ill.
       App. 3d 1034, 1037, 404 N.E.2d 1050, 1053 (1980) (determining Springfield tavern cited for
       reducing drink prices for certain patrons on “ladies nights” could not maintain action for
                                                    -7-
       injunction and declaratory judgment due to “well-settled law in this State that where
       administrative remedies are available, they must be exhausted before one can seek judicial
       review”); Beahringer, 204 Ill. 2d 363, 789 N.E.2d 1216 (Statesville inmate whose paints and
       other art materials were confiscated was expected to exhaust written grievance process prior to
       filing complaint for injunctive and declaratory relief); Illinois Bell Telephone Co. v. Allphin,
       60 Ill. 2d 350, 358, 326 N.E.2d 737, 742 (1975) (indicating the exhaustion doctrine is a basic
       and long-standing principle of administrative law and is a counterpart to the procedural rule
       that appellate review is generally limited to final judgments of the trial court).
                     “Exhaustion of administrative remedies serves two main purposes: first, it protects
                administrative agency authority in that it gives an agency an opportunity to correct its
                own mistakes *** and it discourages disregard of the agency’s procedures, and second,
                it promotes efficiency in that claims generally can be resolved much more quickly and
                economically in proceedings before an agency than in litigation in court. The doctrine
                helps protect agency processes from impairment by avoidable interruptions *** and
                conserves valuable judicial time by avoiding piecemeal appeals. The requirement that a
                plaintiff exhaust administrative remedies as a prerequisite to filing suit allows the
                administrative agency the opportunity to consider the facts of the case before it, use its
                expertise, and allow the aggrieved party to obtain relief without the need for judicial
                review. [Citation.]” 1 Ill. L. and Prac., Administrative Law and Procedures § 16
                (2013).
¶ 19        We hold that Gallaher was not required to exhaust her administrative remedies because she
       came within an exception by challenging the agency’s authority to proceed with the pending
       license revocation action under a statute or administrative rule. When an agency’s statutory
       authority to promulgate a rule and exercise jurisdiction is in issue, then no questions of fact are
       involved and the agency’s expertise is not needed for statutory construction. Landfill, Inc. v.
       Pollution Control Board, 74 Ill. 2d 541, 550, 387 N.E.2d 258, 261 (1978) (circuit court
       properly exercised jurisdiction over question of Pollution Control Board’s authority to create
       rule authorizing third parties to initiate permit-revocation proceedings); Emerald Casino, Inc.
       v. Illinois Gaming Board, 346 Ill. App. 3d 18, 24, 803 N.E.2d 914, 919 (2003) (“All we have to
       do in this appeal is read the statute for legislative intent. We know how to do that.”).
       Determining the scope of any agency’s power and authority is a judicial function, rather than a
       question for the agency to answer itself. Emerald Casino, 346 Ill. App. 3d 18, 803 N.E.2d 914
       (casino not required to exhaust administrative remedies where it challenged whether statute
       conveyed discretion or mandated that Gaming Board approve casino’s application for license
       renewal and relocation); On-Line Financial Services, Inc. v. Department of Human Rights, 228
       Ill. App. 3d 99, 103, 592 N.E.2d 509, 511 (1992) (employer not required to exhaust
       administrative remedies where it challenged whether Department of Human Rights had
       authority to file an employment discrimination complaint after the 300-day filing period
       specified by statute); County of Knox ex rel. Masterson v. The Highlands, L.L.C., 188 Ill. 2d
       546, 723 N.E.2d 256 (2000) (question of whether county zoning board of appeals had authority
       to cancel construction permit for large scale hog confinement facility, where enabling
       legislation expressly denied zoning authority over land used for agricultural purposes, came
                                                    -8-
       within exception to exhaustion doctrine); Office of the Lake County State’s Attorney v. Illinois
       Human Rights Comm’n, 200 Ill. App. 3d 151, 156, 558 N.E.2d 668 (1990) (and cases cited
       therein) (Lake County State’s Attorney was not required to first exhaust administrative
       remedies before Illinois Human Rights Commission where he disputed its authority to hear
       discrimination charge when he was not an “employer” or “person” and an assistant State’s
       Attorney was not an “employee” within the meaning of the Illinois Human Rights Act). “An
       administrative agency is different from a court because an agency only has the authorization
       given to it by the legislature through the statutes.” Business & Professional People for the
       Public Interest v. Illinois Commerce Comm’n, 136 Ill. 2d 192, 243, 555 N.E.2d 693, 716
       (1989). An administrative agency has no general or common law powers. Alvarado v.
       Industrial Comm’n, 216 Ill. 2d 547, 553, 837 N.E.2d 909, 914 (2005). Its powers are strictly
       limited to the powers specified by the legislature. Alvarado, 216 Ill. 2d at 553, 837 N.E.2d 909.
       Judicial determination of this question of law as to Gallaher will affect the jurisdiction of the
       administrative agency in all cases. Accordingly, the circuit court had jurisdiction to hear counts
       I and II of Gallaher’s action for injunctive and declaratory relief. Furthermore, the assertion of
       the collateral estoppel doctrine in count III with regard to the first administrative proceedings
       brought that count within an exception to the exhaustion doctrine, because it presented a legal
       issue rather than a factual question, which is an issue within the scope of the court’s expertise,
       rather than the Department’s. Village of Maywood Board of Fire & Police Commissioners v.
       Department of Human Rights, 296 Ill. App. 3d 570, 578, 695 N.E.2d 873, 879 (1998)
       (exhaustion not required where village board of fire and police sought declaratory judgment
       that sovereign immunity deprived Department of Human Rights and Human Rights
       Commission of authority to investigate allegation of employment discrimination and that res
       judicata deprived agencies of authority to address a second action about the same issue).
       Although the precedent Gallaher relies upon concerns res judicata, we hold that the concepts
       of res judicata and collateral estoppel are sufficiently similar for the precedent to apply here.
¶ 20       For these reasons, we conclude that the Department’s exhaustion of remedies argument
       does not dispose of the appeal and we proceed to Gallaher’s arguments, beginning with the
       contention that the doctrines of res judicata or collateral estoppel barred the Department from
       bringing a second administrative action which included the issue of whether the plan of
       correction procedures in section 3.130 of the EMS Act and title 77, section 515.160, of the
       companion Administrative Code are applicable to a lead instructor.
¶ 21       Res judicata, or claim preclusion, refers to the preclusive effect that a final judgment on the
       merits has on the parties, in that it forecloses litigation of any claim that was, or could have
       been, raised in an earlier suit between the parties or their privies. River Park, Inc. v. City of
       Highland Park, 184 Ill. 2d 290, 302, 703 N.E.2d 883, 889 (1998); Rein v. David A. Noyes &
       Co., 172 Ill. 2d 325, 334, 665 N.E.2d 1199, 1204 (1996). Thus, when the doctrine is applied, a
       party is prevented from splitting his or her claims into multiple actions. Rein, 172 Ill. 2d at 339,
       665 N.E.2d at 1206. Collateral estoppel, or issue preclusion, is much narrower in that it
       prevents relitigation of issues of law or fact that have previously been litigated and decided in
       an action that resulted in a final judgment on the merits involving the same parties or their
       privies. Du Page Forklift Service, Inc. v. Material Handling Services, Inc., 195 Ill. 2d 71, 77,
                                                    -9-
       744 N.E.2d 845, 849 (2001) (rejecting argument that collateral estoppel should apply only to
       fact determinations); Schratzmeier v. Mahoney, 246 Ill. App. 3d 871, 875, 617 N.E.2d 65, 66
       (1993) (collateral estoppel precludes the relitigation of any matter); Dowrick v. Village of
       Downers Grove, 362 Ill. App. 3d 512, 515-16, 840 N.E.2d 785, 789-90 (2005). In other words,
       under collateral estoppel, the final judgment in the first suit acts as a bar only to the points or
       questions that were actually litigated and determined, rather than to matters that might have
       been litigated and determined but were not. LaSalle Bank National Ass’n v. Village of Bull
       Valley, 355 Ill. App. 3d 629, 635, 826 N.E.2d 449, 456 (2005). The doctrines of res judicata
       and collateral estoppel serve the same purposes of promoting judicial economy and preventing
       repetitive litigation. Hayes v. State Teacher Certification Board, 359 Ill. App. 3d 1153, 1161,
       835 N.E.2d 146, 154 (2005). Both doctrines are applicable to the decisions of administrative
       agencies, as long as the agency was acting in an adjudicatory, judicial or quasi-judicial
       capacity and the disputed issue is identical to the issue presented in the new claim.
       Schratzmeier, 246 Ill. App. 3d at 875, 617 N.E.2d at 68.
¶ 22       We find that Gallaher waived any reliance on the doctrine of res judicata by failing to
       plead it in her complaint. Rivera v. Arana, 322 Ill. App. 3d 641, 651-52, 749 N.E.2d 434, 443
       (2001) (plaintiff’s failure to plead a legal issue results in waiver).
¶ 23       Regardless, we also find that neither res judicata nor collateral estoppel precludes the
       second administrative action because the 2010 administrative order was not a final judgment
       on the merits. The precedent cited above indicates that res judicata and collateral estoppel are
       triggered only by final judgments on the merits. A final judgment is a determination of the
       issues presented which ascertains and fixes absolutely and finally the rights of the parties.
       Hernandez v. Pritikin, 2012 IL 113054, ¶ 47, 981 N.E.2d 981. However, here, the Director’s
       2010 order incorporates the ALJ’s recommended findings in their entirety, including her
       conclusions that (1) Gallaher’s motion for summary judgment on the Department’s action
       should be denied and (2) the Department’s action should be dismissed but with “leave to
       re-file.” The rejection of Gallaher’s motion for summary judgment plainly indicates that the
       merits of the Department’s action remained unresolved. The Director’s 2010 order concluded
       only a preliminary, procedural matter (Gallaher’s right to a plan of correction under the law
       and administrative code sections then in effect) and left open the substantive issue of whether
       Gallaher should lose her teaching credentials. The dismissal with leave to refile is an additional
       indication that the 2010 ruling was not meant to conclude the ultimate question of whether
       Gallaher’s teaching credentials should be revoked. See, e.g., Hernandez, 2012 IL 113054,
       ¶ 47, 981 N.E.2d 981 (dismissal with leave to file an amended complaint did not absolutely
       and finally settle parties’ rights and so was not a final judgment supporting application of res
       judicata); Domingo v. Guarino, 402 Ill. App. 3d 690, 932 N.E.2d 50 (2010) (two prior
       dismissals did not trigger res judicata so as to bar refiling); Quintas v. Asset Management
       Group, Inc., 395 Ill. App. 3d 324, 330, 917 N.E.2d 100, 104-05 (2009) (voluntary dismissal
       with leave to refile did not preclude a second action). In other words, the Director’s 2010 order
       did not absolutely and finally fix the rights of the parties with regard to the Department’s
       claim. The 2010 order expresses the Director’s intention that the first administrative action was
       not a final judgment on the merits of the disciplinary action and the Department would be able
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       to proceed with its case at some point in the future. Thus, it was not a final judgment for
       purposes of res judicata or collateral estoppel.
¶ 24       Gallaher emphasizes the 2010 order is captioned “FINAL ORDER,” and states “This is a
       final administrative decision within the provisions of the Emergency Medical Services System
       Act and the Administrative Review Law.” The title and phrase are boilerplate language from
       section 3-103 of the Administrative Review Law (735 ILCS 5/3-103 (West 2008)) which is
       used to notify parties that the limitations period to commence an administrative review action
       has begun. Sherman West Court v. Arnold, 407 Ill. App. 3d 748, 944 N.E.2d 467 (2011)
       (boilerplate language reciting that the agency’s Director adopted hearing officer’s findings and
       the order was a final administrative decision within meaning of Nursing Home Care Act and
       Administrative Review Law did not settle question of whether order was actually a final
       administrative decision within meaning of those statutes, question was whether the order
       terminated all proceedings before the administrative agency). This language does not resolve
       whether an order is a final order for purposes of judicial review or purposes of res judicata or
       collateral estoppel. Sherman West Court, 407 Ill. App. 3d 748, 944 N.E.2d 467. It is well
       established that it is the substance of an order, not its form, that matters. Sherman West Court,
       407 Ill. App. 3d 748, 944 N.E.2d 467 (citing, e.g., In re A Minor, 127 Ill. 2d 247, 260, 537
       N.E.2d 292 (1989) (“An apple calling itself an orange remains an apple.”); see also generally
       Marsh v. Evangelical Covenant Church, 138 Ill. 2d 458, 563 N.E.2d 459 (1990) (discussing
       finality of orders for purposes of appeal)). The substance of this order indicates the Director
       resolved only a preliminary, procedural matter and expected the parties to return to address the
       merits once the Department was ready to refile. The substance of the order indicates the order
       cannot be construed as a final judgment order for purposes of res judicata or collateral
       estoppel. See Quintas, 395 Ill. App. 3d at 334, 917 N.E.2d at 104-05 (where trial judge clearly
       and unmistakably granted leave to refile, plaintiff’s subsequent suit was not barred by res
       judicata).
¶ 25       The collateral estoppel argument also fails because the order addressed a procedural
       question, rather than disposing of a “separate branch” of the controversy between the parties.
       In Wilson, for instance, the court held that an order which resolved whether doctors were actual
       agents of a hospital in a medical negligence action did not resolve a separate branch of the
       controversy between the parties. Wilson v. Edward Hospital, 2012 IL 112898, ¶¶ 19-26, 981
       N.E.2d 971. The question of actual or apparent agency was merely part of the duty analysis in
       a case where the plaintiffs sought to hold the hospital liable for the doctors’ alleged negligence,
       and resolving this partial issue did not resolve the much larger questions of whether there was
       a duty, breach of duty, proximate cause, and damages. Wilson, 2012 IL 112898, ¶ 24, 981
       N.E.2d 971. Thus, Wilson stands for the proposition that a “separate branch” of the controversy
       between the parties means a whole count or separate and distinct cause of action, not merely
       some of the allegations.
¶ 26       Furthermore, even if we accepted Gallaher’s erroneous contention that the 2010 order
       could be construed as a final judgment order for purposes of collateral estoppel because it
       resolved a discrete issue (relevance of the plan of correction procedures), we would find no
       collateral estoppel under the current facts because the doctrine extends only to the facts and
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       conditions that existed when the original judgment order was entered. Consiglio v. Department
       of Financial & Professional Regulation, 2013 IL App (1st) 121142, ¶ 44, 988 N.E.2d 1020.
       The statute and the corresponding administrative code have been amended since 2008. When a
       law is changed between two causes of action on the same subject matter, there is no danger of
       repetitive litigation and the change in law renders the doctrines of res judicata or collateral
       estoppel inapplicable. Consiglio, 2013 IL App (1st) 121142, ¶¶ 44-46, 988 N.E.2d 1020
       (indicating there was no res judicata effect when Department’s original orders in license
       revocation proceeding were based on law as it existed at the time; current revocation orders
       under amended statute responded to a different issue). The 2010 order could not act as
       collateral estoppel with respect to a statute it did not construe.
¶ 27       For these reasons, we reject Gallaher’s primary appellate argument that the doctrines of res
       judicata or collateral estoppel barred the second administrative action.
¶ 28       Gallaher next argues that the language of section 3.130 required the Department to apply
       its plan to correction procedures to lead instructors before initiating its disciplinary action
       against her under section 3.65. She relies solely on section 3.130, rather than any language in
       section 3.65. It is undisputed that section 3.65 expressly authorizes the Department to suspend
       or revoke licensing approval of a lead instructor when that individual has failed to adhere to the
       curriculum or protocol prescribed under the EMS Act or the administrative rules. 210 ILCS
       50/3.65(b) (West 2010). Although section 3.65(b) requires “an opportunity for a hearing,” it
       does not refer to a plan of correction or to section 3.130. See 210 ILCS 50/3.65(b) (West 2010).
¶ 29       Questions of statutory construction as well as orders granting summary judgment are
       reviewed de novo. Stern v. Wheaton-Warrenville Community Unit School District 200, 233 Ill.
       2d 396, 404, 910 N.E.2d 85, 91 (2009). Our role in interpreting a statute is to ascertain and give
       effect to the intent of the legislature. Andrews v. Kowa Printing Corp., 217 Ill. 2d 101, 106, 838
       N.E.2d 894, 898 (2005). The language of the statute, given its plain and ordinary meaning, is
       considered the best indicator of the legislature’s intent. Andrews, 217 Ill. 2d at 106, 838 N.E.2d
       at 898. We are to construe the statute as a whole, considering its words and phrases not in
       isolation but in light of other relevant provisions, and keeping in mind the subject the statute
       addresses and the legislature’s apparent objective in enacting it. Andrews, 217 Ill. 2d at 106,
       838 N.E.2d at 898.
¶ 30       Applying these principles, we begin with the title of section 3.130, which, as of January
       2011, excludes individuals by specifying that it concerns “[f]acility, system, and equipment
       violations” rather than “violations” in general. 210 ILCS 50/3.130 (West 2010); Pub. Act
       96-1469 (eff. Jan. 1, 2011). In addition, the opening sentence now refers to sections 3.117(a),
       3.117(b) and 3.90(b)(10) of the EMS Act, which concern types of facilities within the EMS
       system known as “Primary Stroke Centers,” “Emergent Stroke Ready Hospitals,” and
       “Trauma Centers,” rather than personnel. The remaining sentences and paragraphs of section
       3.130 do not refer to any entity or individual but provide for a notice of violation to be
       answered by a plan of correction and a notice of intent to fine, revoke, and so forth, to be
       answered by a plan of correction. Then, looking at the overall organization of the EMS Act,
       which consists of 66 substantive sections, we see that section 3.130 is neighbored by sections
       that define and set standards for vehicle service providers, such as ambulances and other
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       specialized medical vehicles, and other sections that define and set standards for facilities to
       meet in order to be designated as primary stroke centers, emergent stroke ready hospitals, and
       trauma centers. In contrast, section 3.65, which is the section specific to Lead Instructors, is
       neighbored by sections about other individuals, such as first responders, emergency medical
       dispatchers, trauma nurses, and emergency communications nurses. Thus, both the express
       content and the context of section 3.130 within the overall EMS Act indicate that section 3.130
       concerns facility, system, and equipment issues rather than individual medical personnel
       problems. We read section 3.130 to unambiguously apply the plan of correction procedure to
       EMS entities and equipment only and not to EMS personnel.
¶ 31        We are not persuaded by Gallaher’s contention that this construction places undue
       emphasis on the statute’s title. For one thing, we considered more than just the title of section
       3.130 before reaching this conclusion, and for another, we must give some effect to all the
       words the legislature has used. Gallaher relies on Brotherhood of R.R. Trainmen v. Baltimore
       & O.R. Co., 331 U.S. 519, 528-29 (1947), for the proposition that “headings and titles are not
       meant to take the place of the detailed provisions of the text” and “the heading of a section
       cannot limit the plain meaning of the text.” Also, “[w]here the text is complicated and prolific,
       headings and titles can do more than indicate the provisions in a most general manner; to
       attempt to refer to each specific provision would often be ungainly as well as useless.”
       Brotherhood, 331 U.S. at 528. Gallaher also quotes the statement in Illinois Bell Telephone Co.
       v. Illinois Commerce Comm’n, 362 Ill. App. 3d 652, 661, 840 N.E.2d 704, 713 (2005), that
       headings are only “organizational devices” and “case law warns against putting undue
       emphasis on [them].” We do not consider this principle helpful when construing a statute that
       is short and uncomplicated and its body, title, and context within the complete EMS Act all
       consistently indicate that the legislature intended to limit the statute’s application to entities
       and equipment. We have not used the title to disregard or override any statutory language. Our
       analysis is consistent with the indications in Brotherhood and Illinois Bell that the legislature’s
       plain words and context in which they are used are key to the proper interpretation of an
       unambiguous statute. Brotherhood, 331 U.S. at 527-29 (considering heading, paragraph, and
       surrounding paragraphs to determine proper interpretation of paragraph); Illinois Bell, 362 Ill.
       App. 3d at 659-60, 840 N.E.2d at 711 (“In statutes and other forms of discourse, people rely on
       context to tacitly limit the scope of statements that, taken in isolation, would be too broad.”).
       Neither case instructs us to disregard the title chosen by the legislature. Instead, Brotherhood
       and Illinois Bell indicate that giving inordinate emphasis to a title can distort the intended
       meaning of the statute. On the other hand, we cannot disregard a title and render some of the
       legislature’s words meaningless or superfluous. Kraft, Inc. v. Edgar, 138 Ill. 2d 178, 189, 561
       N.E.2d 656, 661 (1990) (ascertaining the meaning of a statute requires reading it as a whole,
       with all relevant parts considered, and no word or phrase rendered superfluous or
       meaningless); Picerno v. 1400 Museum Park Condominium Ass’n, 2011 IL App (1st) 103505,
       ¶ 23, 959 N.E.2d 1268 (statute’s words, clauses, and sentences are given some reasonable
       meaning and, to the extent possible, no statutory language is rendered superfluous or
       meaningless). Our role is to give effect to the legislature’s enactment. What we have done here


                                                   - 13 -
       is read all parts of the statute as a harmonious whole and reached the unavoidable conclusion
       that section 3.130 is not relevant to individual lead instructors.
¶ 32        We also reject Gallaher’s contention that section 3.130 applies to her because she is part of
       the EMS system. In support she relies on the EMS Act’s definition of an “EMS System” as “an
       organization of hospitals, vehicle service providers and personnel approved by the
       Department.” (Emphasis added.) 210 ILCS 50/3.20(a) (West 2010). She contends that she is a
       member of the EMS System personnel and thus encompassed by the statute now entitled,
       “Facility, system, and equipment violations; Plans of Correction.” 210 ILCS 5/3.130 (West
       2010). Gallaher misapplies the definition. Gallaher is an individual rather than “an
       organization of hospitals, vehicles and personnel.” Gallaher is not an “EMS System.”
       Essentially she is proposing that the title of section 3.130 should be construed as “Facility,
       [hospitals, vehicles and personnel] and equipment violations, Plans of Correction,” which is
       nonsensical and violates the principle that a statute should not be construed so that it results in
       absurdity. Illinois Bell, 362 Ill. App. 3d at 661, 840 N.E.2d at 712. We construe section 3.20 to
       be a general definition and section 3.130 to be the more specific and conclude that the more
       specific provision controls the scope of the plan of correction procedure. Illinois Bell, 362 Ill.
       App. 3d at 661, 830 N.E.2d at 713.
¶ 33        Finally, we decline to reach Gallaher’s contentions, brought for the first time on appeal,
       that (1) the law is impermissibly retroactive (see Mohammad v. Department of Financial &
       Professional Regulation, 2013 IL App (1st) 122151, ¶ 14, 993 N.E.2d 90) and (2) her alleged
       conduct did not violate the statutes and administrative codes that the Department cited in its
       2011 notice of intent. Rivera, 322 Ill. App. 3d at 651-52, 749 N.E.2d at 443 (plaintiff’s failure
       to plead a legal issue results in waiver).
¶ 34        Based on our de novo review, we affirm the circuit court’s summary judgment ruling in
       favor of the administrative agency and against Gallaher.

¶ 35      Affirmed.




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