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 Circ uit 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. Mulle n, Appellee and Cross-Appellant. ) Judge, Presiding.

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

OPINION ¶ 1 The Board of Trustees of the Vernon Hills Police Pe nsion Fund (Board) awarded a lineof-duty disability pension (40 ILCS 5/3-114.1 (West 2010)) to defendant, police officer William J. Heelan. Thereafter, plaintiff, the Village of V ernon 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 a2014 IL App (2d) 130823

- 2 -

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 Il linois 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-yea r 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 appr oached 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, pres cribed pain medication, and released. He followed up with various physicians and underwent p hysical therapy. An MRI showed that Heelan suffered a labral tear in his right hip. ¶ 4 Dr. Jay Levin conducted an independent medical eval uation of Heelan in connection with a claim Heelan filed under the Workers’ Compensatio n Act (820 ILCS 305/1 et seq . (West 2010)). Dr. Levin opined that the December 2009 in cident had aggravated Heelan’s preexisting right hip osteoarthritis. According to Heelan, pri or 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 (W est 2010)). Heelan underwent a right hip replacement in April 2010. After this surgery, Hee lan returned to work on light duty for about

1 In his counterclaim, Heelan also sought attorney f ees 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.2014 IL App (2d) 130823

- 3 -

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 settl ed 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 IL CS 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 i nto evidence the reports of three physicians selected by the Board—Dr. Joseph Meis, Dr. Thomas G leason, and Dr. Joshua Jacobs. Drs.

Meis and Jacobs each certified that Heelan was “dis abled 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 iden tified Heelan’s right and left hip osteoarthritis as the disabling conditions. Dr. Jacobs further ce rtified 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 th at 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 effe cts of acts of duty. ¶ 7 The Board also heard telephone testimony from Dr. G leason. Dr. Gleason testified that he would not recommend that Heelan engage a 200-pou nd person resisting arrest or run after a fleeing suspect. Dr. Gleason agreed on cross-exami nation that, if the service requirements of the2014 IL App (2d) 130823

- 4 -

Village police department exceeded the medium level of the Department of Labor guidelines, Heelan was disabled. After considering the evidenc e, 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 compla int seeking a declaratory judgment that Heelan was not eligible for health insurance b enefits under the Act. In its complaint, the Village alleged that Heelan had not suffered a cata strophic 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 em ergency, as required under section 10(b) of the Act (820 ILCS 320/10(b) (West 2010)). The Vill age acknowledged Krohe v. City of Bloomington , 204 Ill. 2d 392 (2003), in which the court held t hat a catastrophic injury is synonymous with an injury resulting in a line-of-du ty 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 depos ition of Drs. Levin, Meis, Jacobs, and Gleason. Heelan moved to strike the depositions, a rguing 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, th e 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 doe s Krohe say it, but the Nowak case [( Nowak2014 IL App (2d) 130823

- 5 -

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 certai nly have it in those

cases that construe Krohe .” The Village subsequently filed a motion to reco nsider 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 un der section 10(a) of the Act. Heelan argued that the Village was collaterally estopped from ass erting that he did not suffer a catastrophic injury. Relying on the trial court’s August 24, 20 12, 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. Th e 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 wh at 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 Villag e made an offer of proof as to that issue. The Village rested its case, and Heelan moved for a dir ected finding, which the court granted. ¶ 12 Heelan then presented evidence to support his count erclaim. When Heelan began testifying about his belief as to the emergency nat ure of the December 2009 incident, the Village objected on relevance grounds in light of its conce ssion 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, following2014 IL App (2d) 130823

- 6 -

the award of his pension, he sought from the Villag e 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 pa y 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 cou rt 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 writte n 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 B oard had issued its written decision. ¶ 14 On May 24, 2013, Heelan filed a motion for sanction s against the Village pursuant to Supreme Court Rule 137. In his motion, Heelan argu ed that the Village brought its suit only to harass him and cause him unnecessary expense. Acco rding 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 en titled to benefits under the Act and, therefore, did not act in good faith in filing suit. The Vill age responded that it pursued this action in good faith because it presented unique facts and argumen ts not previously addressed by Krohe and its progeny. The Village also argued that it permissib ly advocated for modification of existing law.

The trial court denied Heelan’s motion for sanction s, 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.2014 IL App (2d) 130823

- 7 -

and Heelan timely cross-appeals. We granted the Il linois 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 healt h insurance premiums if two conditions are satisfied. 820 ILCS 320/10 (West 2010); Richter , 2011 IL App (2d) 100114, ¶ 16. Section 10(a) of th e Act requires the employee to have suffered a “catastrophic injury” or to have been killed in t he 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 ki lled as a result of his or her “response to what is reasonably believed to be an emergency.” 820 IL CS 320/10(b) (West 2010); Richter , 2011 IL App (2d) 100114, ¶ 16. In the trial court, the Vil lage conceded that Heelan satisfied section 10(b). Thus, the issue before us is whether he sat isfied section 10(a). ¶ 19 The Act does not define the term “catastrophic inju ry.” In 2003, our supreme court held that the term was ambiguous. Krohe , 204 Ill. 2d at 395. The court considered the leg islative history and debates, concluding that they “could no t 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 (W est 2000); this section of the Pension Code2014 IL App (2d) 130823

- 8 -

provides for line-of-duty disability pensions for f irefighters and is similar to section 3-114.1, which provides for police officers’ line-of-duty di sability 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 plaint iff-firefighter a line-ofduty disability pension] establishes that the plain tiff suffered a catastrophic injury, thus meeting the requirements of section 10(a) of [the A ct]. This is not an application of collateral estoppel. Rather, because the legislatu re intended an injured firefighter or police officer to be eligible for benefits under se ction 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 matte r 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 questi on 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 Boar d awarded Heelan a line-of-duty disability pension. Therefore, it is an uncontrove rted 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 entitle d to benefits under the Act because the plaintiff2014 IL App (2d) 130823

- 9 -

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 emergenc y). ¶ 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 disput ing that an injury was catastrophic. According to the Village, “much confusion” has resu lted from Krohe . We disagree. ¶ 22 In Krohe , our supreme court addressed the question of wheth er the term “catastrophic injury” in section 10(a) of the Act is synonymous w ith an injury resulting in a line-of-duty disability pension. Krohe , 204 Ill. 2d at 394. The court’s answer to that q uestion 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 t he 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 co llateral 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 1 0(a) of the Act. Relying on Krohe , we held that the pension board’s awarding the plaintiff a l ine-of-duty disability pension established that the plaintiff had suffered a catastrophic injury un der 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 f irst shoulder injury was a contributing cause of his disability. Richter , 2011 IL App (2d) 100114, ¶ 24.2014 IL App (2d) 130823

- 10 -

¶ 24 We agree with the Village that our analysis and hol ding 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 ana lysis 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; t hus, 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 reaf firmed its holding in Krohe —that the term “catastrophic injury” as used in sec tion 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 Pro tection

District , 2012 IL 110012, ¶¶ 54-55 (reaffirming its holding in Krohe while addressing section 10(b)’s requirement that the injury occurred in res ponse 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 th e 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 determine d 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 unambi guously established that the award of a lineof-duty disability pension means that the claimant suffered a catastrophic injury within the2014 IL App (2d) 130823

- 11 -

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 claiman t’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 hol ding of Krohe , we said that “[t]his is not an application of collateral es toppel”). 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 deposit ions, the court appropriately relied on the holding from Krohe —that the term “catastrophic injury” is a term of a rt meaning an injury resulting in the award of a line-of-duty disability pension. ¶ 28 The Village nonetheless maintains that it was entit led 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 estop pel does not apply, the Village asserts that “the pension board hearing did not follow the rules of e vidence” 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 i s in essence arguing that the Board’s decision that Heelan qualified for a line-of-duty disabilitypension was erroneous. Despite the collateralestoppel label that the Village attaches to its arg ument, 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.” (Intern al quotation marks omitted.) Apollo Real Estate Investment Fund, IV, L.P. v. Gelber , 403 Ill. App. 3d 179, 188 (2010). Describing the2014 IL App (2d) 130823

- 12 -

well-established collateral-attack doctrine, our su preme court explained that, once a court of competent jurisdiction renders a judgment, it is no t open to contradiction or impeachment in any collateral proceeding. Malone v. Cosentino , 99 Ill. 2d 29, 32 (1983). “Once a court with pro per jurisdiction has entered a final judgment, that jud gment can only be attacked on direct appeal, or in one of the traditional collateral proceedings no w defined by statute.” Malone , 99 Ill. 2d at 32- 33 (noting that the statutory collateral proceeding s were habeas corpus proceedings, postconviction proceedings, and section 2-1401 proc eedings under the Code of Civil Procedure). The collateral-attack doctrine applies to administr ative 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 oppose d to void, is not subject to collateral attack.”). ¶ 30 Here, because the Village does not challenge the Bo ard’s statutory authority to render its decision, 3 any attempt to dispute the sufficiency of the Boar d’s proceeding, its factual findings,

or its ultimate award of Heelan’s pension would be an impe rmissible 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 errone ous and voidable is not subject to a collateral attack, whereas an agency’s decision made without s tatutory 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 b e void and subject to collateral attack in any court, at any time. Wabash County , 408 Ill. App. 3d at 930.2014 IL App (2d) 130823

- 13 -

Apollo Real Estate Investment Fund , 403 Ill. App. 3d at 188-89 (recognizing the defenda nts’ purported attempt to defend against collateral esto ppel 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 proces s rights were violated when the trial court prohibited it from conducting discovery and p resenting evidence on the nature, extent, and causes of Heelan’s injuries. The Village argues th at, 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 authorit y 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 condu cting an orderly proceeding in which a party receives adequate notice and an oppor tunity to be heard.” Reichert v. Court of Claims of State of Illinois , 203 Ill. 2d 257, 261 (2003). We review the Villa ge’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 re viewed for an abuse of discretion, an alleged denial of due process is reviewed de novo ). ¶ 33 We reiterate: neither the trial court’s judgment no r 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 pe nsion, 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 cou rt2014 IL App (2d) 130823

- 14 -

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 s atisfied. Richter , 2011 IL App (2d) 100114, ¶ 16 (holding that the pension board’s decision awa rding a line-of-duty disability pension established that the firefighter suffered a catastr ophic injury under section 10(a)). Therefore, the factual issues raised by the Village—the nature, ex tent, 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 A ct. 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 comp ort 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 plai ntiff-firefighter’s injury. But that is the point—the supreme court held in Krohe that section 10(a)’s “catastrophic injury” require ment 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 tria l court’s determination of whether section 10(a) is satisfied in a declaratory judgment action.2014 IL App (2d) 130823

- 15 -

¶ 36 Heelan contends that the trial court abused its dis cretion 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 knowle dge, 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, mod ification, 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 o f the rule is to penalize attorneys and parties who a buse 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 ab uses 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 c omplaint, 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 exte nd, modify, or reverse existing law, but were instead brought to harass him and needlessly increa se litigation costs. Heelan emphasizes that the Village acknowledged Krohe in its complaint. He also notes that he repeatedl y 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 hea ring: “We don’t agree with the Krohe decision, the rationale or its applicability to the present situation.” Heelan additionally urges2014 IL App (2d) 130823

- 16 -

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 fa ith to seek modification or

reversal of the law. ¶ 38 The trial court found no evidence of bad faith by t he Village and observed that the Village had made it clear from the beginning that i t was seeking to change the law. Despite Heelan’s argument to the contrary, the Village’s ac knowledgment 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. B ut 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 t hat.” 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 est oppel 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 go od faith to distinguish Krohe and to articulate its disagreement with Krohe ’s holding. Additionally, the Illinois Municipal L eague filed an amicus brief in support of the Village’s position, on pub lic policy grounds. We cannot say that no reasonable person would take the view a dopted by the trial court, namely, that the Village brought its action in an effort to change e xisting law and did not act in bad faith. Accordingly, the trial court did not abuse its disc retion in denying Heelan’s motion for Rule 1372014 IL App (2d) 130823

- 17 -

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 w ho presents objectively reasonable arguments for his position, regardless of whether t he arguments are deemed to be unpersuasive or incorrect.”). ¶ 40 III. CONCLUSION ¶ 41 For the foregoing reasons, we affirm the judgment o f the circuit court of Lake County. ¶ 42 Affirmed. ¶ 43 JUSTICE McLAREN, dissenting. ¶ 44 The “sole issue” in Krohe was whether the phrase “ ‘catastrophic injury’ ” i s “synonymous with an injury resulting in a line-of-d uty 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 boa rd’s award of a line-ofduty disability pension is irrefutable proof of a c atastrophic injury under section 10(a) of the Act in a declaratory judgment proceeding in a trial cou rt. ¶ 45 Yet that is the meaning and effect that the majorit y here ascribes to Krohe . It takes the answer to that “sole issue” of the meaning of an am biguous 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 Kroh e, the pension board’s decision established that th e plaintiff suffered a catastrophic injury, thus meeting the requirements of section 10(a) of PSEBA.” Richter , 2011 IL2014 IL App (2d) 130823

- 18 -

App (2d) 100114, ¶ 16. The second misstep is the m ajority here referring to Nowak as controlling. The parties in Nowak agreed “that plaintiff suffered a catastrophic inj ury in the line of duty” and “that, in light of that injury, the Ci ty is obligated under section 10(a) to pay the entire health insurance premium for plaintiff and h is 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 pens ion[] *** it is an uncontroverted fact that he was catastrophically injured for purposes of sectio n 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 evi dence as it applies to determining a “catastrophic injury” under section 10(a). The maj ority holds that the trial court, in an independent proceeding, must take judicial notice o f the pension board’s finding and consider it as irrefutable proof. ¶ 48 Due process “entitles a litigant to have all the ev idence 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 witness es should be made by the judge who observed the witnes ses. 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 re ceived by a predecessor judge.2014 IL App (2d) 130823

- 19 -

¶ 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 cau se of action, demand strict proof thereof, obtain discovery, present evidence, have the trial court d etermine the credibility of the witnesses and the weight to be accorded to their testimony, and gener ally defend against judgment being entered against it. ¶ 50 Our supreme court long ago stated:

“In Atchinson, Topeka & Santa Fe Railway Com. v. Commer ce Commission , supra , we held that the statement of one tribunal of a partic ular fact in a case before it is no evidence in another controversy upon a different is sue 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 e x rel. Chicago, B. & Q. R.R. Co. , 353 Ill. 119, 129 (1933). The majority does not explain why the findings of a n administrative agency can (or should) be binding on a trial court in a separate proceeding w ith 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 h as 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 be2014 IL App (2d) 130823

- 20 -

specifically authorized by statute. Alvarado , 216 Ill. 2d at 553.”). To my knowledge, there is no authority, statutory or otherwise, that grants powe r to a pension board to bind a trial court. A pension board’s decision to deny a disability pensi on 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 m ore power over a trial court than it does over another administrative agency. ¶ 51 In cases of administrative review, an administrativ e 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 co nnected with the agency is considered relevant but not binding ( City of St. Charles v. Illinois Labor Relations Boa rd , 395 Ill. App. 3d 507, 509 (2009)), and its decision on a question of law is n ot 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 affor ded “ ‘is not boundless.’ ” Kouzoukas v. Retirement Board of the Policemen’s Annuity & Benef it 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 r ationale 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 awarde d line-of-duty2014 IL App (2d) 130823

- 21 -

disability pensions, and “[t]he defendants agree th at the requirements of subsection (a) have been met in this case.”); Nowak , 2011 IL 111838, ¶ 9 (board awarded line-of-duty d isability pension and “[t]he parties here agree that plaintiff suffer ed 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 plai ntiff was awarded a line-of-duty disability pension. 6 ¶ 52 The majority’s due process analysis is wholly inade quate. 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 ad equate notice and an opportunity to be heard” (internal quotation marks omitted) (s upra ¶ 32). However, the majority fails to identify an y proceeding at which the Village had notice and an o pportunity to be heard regarding the evidence of a catastrophic injury. It is this evid ence upon which the Village’s liability for the insurance premiums is based. The majority’s statem ent 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 ha d no right to be a party. A municipality currently does not have a right to int ervene in such a case, although a pension board

6 At least we are told that plaintiff Springborn app lied for a pension, as “his testimony from two appearances before the Board of Trustees f or the Police Pension Fund of Sugar Grove” was attached to the parties’ cross-motions for summ ary judgment. Id . ¶ 7. No mention is made of any pension application by plaintiff Cecala.2014 IL App (2d) 130823

- 22 -

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 t o 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 Pol ice Pension Fund of the Village of Stickney , 347 Ill. App. 3d 845, 852 (2004). Unless the maj ority’s opinion is overturned, it would behoove municipalit ies to seek to intervene in pension cases as a matter of right

in order to protect their financial interests, sin ce a pension board’s grant of a lineof-duty disability pension is now deemed to be irre futable proof in any other tribunal. However, any future attempt at intervention could create num erous problems dealing with the due process rights of all concerned participants. 7 Even when a municipality intervenes in a proceedi ng, 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 de ny 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 declara tory judgment did not seek to impeach or deny effect to the Board’s decision; had the Villag e 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 dee med to raise a conflict of interest resulting in a violation of due process.2014 IL App (2d) 130823

- 23 -

that the Board clearly had no statutory authority t o decide, raised by a party over which the Board had no personal jurisdiction. ¶ 55 In addition, since the Village never participated i n 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 jud gment rendered by a court of competent jurisdiction may only be challenged throu gh 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 wher e the issue decided in the prior adjudication is identical with the one presented in the suit in que stion, there was a final judgment on the merits in the prior adjudication, and the party against wh om 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 n ot a party or in privity with a party in a proceeding is not bound by the judgment in that pro ceeding, 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 V illage, a nonparty to the proceeding before the Board that is not challenging the Board’s judgm ent. 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, dut ies, and liabilities at issue between the Village a nd2014 IL App (2d) 130823

- 24 -

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 ha d subject matter and personal jurisdiction over the parties and their privies). ¶ 56 The majority seems unwilling to countenance the pos sibility of “inconsistent verdicts.” But that sometimes happens when different tribunals , considering (possibly) different evidence presented by different parties, make decisions rega rding different causes of action. See, e.g. , Dowrick , 362 Ill. App. 3d at 521; Edwards v. Addison Fire Protection District Firefig hters’

Pension Fund , 2013 IL App (2d) 121262, ¶ 38 (citing Dowrick and finding that it was not “incongruous” that the claimant “could be found unf it 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 potentia lity 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 unde r 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 A ct” ( supra ¶ 26), the converse must also be true: if the pension board denies an application for a line-of-duty disability pensi on, 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 fro m presenting any evidence in the trial court in an attempt to seek the payment of health insuran ce 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 attem pt might even be deemed frivolous, considering the telling effect that the majority as cribes to pension board decisions regarding line-2014 IL App (2d) 130823

- 25 -

of-duty disability pensions. Simply put, neither p arty should be precluded from contesting a declaratory judgment claim, because the claim is th e first instance of litigation between the parties as to the issue. ¶ 58 The determination of whether an issue has been rais ed 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 “pleading s, testimony, jury instructions, findings, verdicts, and any other pertinent source s of information sensibly helpful to the inquiry.” “Res Judicata Reexamined,” Clea ry, 57 Yale Law Journal, 339, 342. Harmon v. Auditor of Public Accounts, 123 Il l. 222.’ This determination does not depend upon technicali ties 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 princ iple that while every man is entitled to his day in court and full opportunity to sustain h is position on the issues of fact involved, he is not given the right to litigate a matter twi ce. ‘It is of first importance both in the observance of private rights and the public good t hat a question once adjudicated by a court of competent jurisdiction shall be considere d as finally settled and conclusive on the parties, subject only to proceedings in a cour t 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 di ssent.2014 IL App (2d) 130823

- 26 -