No. 2-14-0337 Opinion filed March 25, 2015 ______________________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT ______________________________________________________________________________

JACK BARBA, ) Appeal from the Circuit Court ) of Du Page County. Plaintiff-Appellant and Cross-Appellee, ) ) v. ) No. 10-L-29 ) THE VILLAGE OF BENSENVILLE, ) ) Defendant-Appellee and ) Cross-Appellant ) ) Honorable (Bensenville Fire Protection District No. 2, ) Patrick J. Leston, Defendant-Appellee). ) Judge, Presiding. ______________________________________________________________________________

JUSTICE HUTCHINSON delivered the judgment of the court, with opinion. Justices Hudson and Birkett concurred in the judgment and opinion.

OPINION

¶1 Plaintiff, Jack Barba, appeals from the trial court’s order dismissing his claims for breach

of contract, granting him summary judgment for promissory estoppel but with a limited damages

award of $322 (we round all amounts to the nearest dollar or thousand dollars), and granting him

partial attorney fees against defendants, the Village of Bensenville (the Village) and Bensenville

Fire Protection District No. 2 (the District). The Village cross-appeals the $322 award as well as

the award of attorney fees. For the reasons that follow, we affirm in part, reverse in part, and

remand.

¶2 I. BACKGROUND

¶3 This case comes before us on both defendants’ motions to dismiss and Barba’s motion for

summary judgment. The determinations made by the trial court at summary judgment—namely,

that the Village made an enforceable promise to Barba and that he relied on that promise when

he retired—do not affect our review of the dismissed breach-of-contract claims. We set forth the

facts as follows.

¶4 Barba began his service as a firefighter for the Village in February 1978. Over the years,

Barba rose to the position of lieutenant and eventually became the chief of the department in

1994. After a departmental reorganization in 2005, Barba became “Chief of the Fire Prevention

Bureau” (essentially, the Village fire marshal). In this new position, Barba continued to receive

the same compensation and benefits with no limit on his accrued vacation and sick time.

Throughout his employment, Barba participated in the firefighters’ pension fund, which was

managed by the Village.

¶5 In November 2006, the citizens of Bensenville voted for a referendum to abolish the

Village fire department and to replace it with their membership in a municipal fire protection

district. This led to the creation of the District as a unit of municipal government. Following the

vote, the Village and the District began work on an intergovernmental agreement (IGA) under

which the District would absorb the Village fire department’s personnel, equipment, and

responsibilities, beginning May 1, 2007. Under the terms of the IGA and section 4-106.1(b) of

the Illinois Pension Code (the Pension Code) (40 ILCS 5/4-106.1(b) (West 2010)), on that date

the District would also assume responsibility for the management of the Village’s firefighters’

pension fund.

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¶6 With the transition in the offing, Barba, who was 52 years old and eligible for retirement

(40 ILCS 5/4-109(a) (West 2010) (age 50 or more)), told the Village manager that he intended to

retire with 30 years’ service credit toward his pension. However, at that point in 2007, he had

only 29 years of service. On February 9, 2007, Barba met with the Village manager and the

Village’s attorneys to discuss the boundaries of the new fire protection district. At some point,

one of the attorneys told Barba that his retirement would be “covered” because a provision in the

final IGA would protect his 30-year pension.

¶7 On February 16, 2007, Barba gave notice to the Village that he intended to work for

several months and then use a portion of his accrued time so that he could retire with 30 years’

credit in February 2008. On February 22, 2007, Barba was invited to attend a meeting of the

District’s board to discuss his retirement. The chief of the Village fire department, Michael

Spain, was also present. At that meeting, the attorney for the District, Karl Ottosen, informed

Barba that, if he elected to remain with the fire department after the transition, the District would

employ him, but only at a lieutenant’s rank and at a lieutenant’s salary. Barba declined, in part

because this option would negatively impact his firefighter’s pension, which would be

determined by his salary “at the date of retirement” (40 ILCS 5/4-109(a) (West 2010)). Ottosen

then recommended that, in view of Barba’s many years of loyal public service, the Village

should simply raise Barba’s salary during his final month of employment and then Barba could

retire when the District assumed operations on May 1. The raise would enable Barba to retire at

a chief’s salary with his “full 30,” including a cost-of-living increase for his final year of service

(see 40 ILCS 5/4-109.1 (West 2010)).

¶8 Thereafter, Barba hired an attorney and, throughout April and May, Barba’s counsel

wrote letters to the Village outlining the agreement between Barba, the Village, and the District.

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The agreement was as follows. With respect to his pension, Barba’s salary during the year prior

to his retirement was $88,000. As noted, he was due for a cost-of-living increase for his final

year, which would have raised his salary to $92,000. However, because Barba was retiring with

less than 30 years of service, the multiplier for his pension formula would have been calculated

at 72.5% rather than 75% (see 40 ILCS 5/4-109(c) (West 2010)). Accordingly, to ensure that

Barba retired with his “full 30,” his salary would be raised to $96,000 on the date of his

retirement to offset the difference for the purpose of calculating his pension ($88,000 x 0.75 ≈

$96,000 x 0.725). This would result in a one-time increase of $322 to Barba’s final paycheck as

an active firefighter. In addition, the Village would pay Barba approximately $84,000 for his

accumulated vacation and sick time and would continue his insurance coverage through February

2008.

¶9 On April 30, 2007, the Village and the District executed the final IGA. Section 6 of the

IGA provided that all Village fire department personnel would become employees of the District

on May 1, with one exception:

“One sworn member of the Fire Department, Chief Jack Barba, will retire on or

before the Effective Date. The Village will adjust Chief Barba’s compensation for

pension purposes in an amount sufficient to assure that Chief Barba will enjoy a

retirement benefit equal to that which he would have enjoyed ha[d] he continued to serve

at his present rank until February[ ] 2008, which would have been his 30th year of

service. In addition, the Village will be responsible for directly compensating Chief

Barba for his accumulated sick leave and vacation time. The District and the Village

agree to jointly defend Chief Barba should the Bensenville Firefighters’ Pension Board

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challenge or otherwise deny or interfere with Chief Barba’s pension benefits determined

in accordance with the formula herein provided.”

However, section 13 of the IGA provided as follows:

“M. No Third Party Beneficiaries. The Parties agree that no claim by any person

to the status of third party beneficiary under this Agreement shall be recognized by either

Party thereto.”

Such provisions are often called “no third party beneficiary,” or NTPB, clauses.

¶ 10 Barba began using his accrued time on May 1, 2007. On May 4, he received his final

paycheck from the Village, for the last two weeks in April, but the check did not reflect a raise of

$322. In a letter to Barba dated May 25, the Village’s attorney stated that the Village did not

dispute Barba’s attorney’s rendition of the agreement. On June 27, the Village issued a “change

in status” form to raise Barba’s salary retroactively for the final pay period in April. The

Village, however, did not make an appropriation ordinance to that effect and, as a result, Barba

never received the raise. See 40 ILCS 5/4-118.1(d) (West 2010) (providing that a firefighter’s

salary must have been “established by [a] municipality appropriation ordinance” to be

pensionable).

¶ 11 When Barba applied for his pension from the District, the pension board found that,

because the Village had not made an appropriation by ordinance to retroactively increase Barba’s

pensionable salary to $96,000, his pension benefits would be determined based on his salary on

the date of his retirement, or $88,000, again at 29 years of service. The difference to Barba’s

pension was approximately $6,000 per year ($88,000 x 0.725 as opposed to $96,000 x 0.725).

Barba appealed the pension board’s decision to the trial court, which affirmed the decision on

administrative review. In April 2008, Barba’s attorney wrote the Village and the District

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regarding attorney fees incurred during the administrative proceeding, but neither the Village nor

the District responded.

¶ 12 In 2010, Barba filed a complaint in the trial court. Our review pertains to Barba’s second

amended complaint, which was filed with leave of court. Count I, a breach-of-contract claim

against the Village, was dismissed with prejudice and is not a subject of this appeal. Count II

alleged breach of contract against the Village based on Barba’s status as a third-party beneficiary

of the IGA, and count IV made the same allegations against the District. Count III alleged

promissory estoppel against the Village based on the IGA and the exchanges among Barba and

his attorney, the Village, and the District. Count V made the same allegations against the

District. The complaint sought damages equivalent to the pension benefits Barba would have

received (which Barba estimated were $324,000 if he lived to be 80; $407,000 if he lived to be

90; etc.) and attorney fees from both the administrative proceeding and the instant litigation.

¶ 13 The Village and the District filed combined motions to dismiss under section 2-619(a)(9)

of the Code of Civil Procedure (the Code) (735 ILCS 5/2-619(a)(9) (West 2010)). The motions

alleged that the NTPB clause precluded Barba’s breach-of-contract claims; that Barba could not

have reasonably relied on the representations of officials from the Village and the District; that

the proposed increase constituted an “illegal pension spike” in violation of the Pension Code,

thereby rendering any contract or agreement void as contrary to public policy; and that the

Village and the District were under no obligation to reimburse Barba for attorney fees, because

Barba hired his own attorney for the pension board proceeding.

¶ 14 Following a hearing, the trial court dismissed the third-party-beneficiary counts (counts II

and IV) on the basis of the NTPB clause, but it did not dismiss the promissory-estoppel counts.

Thereafter, the parties filed cross-motions for summary judgment on the issues of promissory

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estoppel and attorney fees. After hearing argument, the court made several rulings. First, the

court granted summary judgment in favor of the District on Barba’s promissory-estoppel claim

(count V). The court stated that, because Barba was employed by the Village, it was not

reasonable for him to rely on any representations made to him regarding his pension by the

District. Second, the court granted summary judgment in favor of Barba on his promissory-

estoppel claim against the Village (count III), but limited Barba’s damages to $322. The court

found that it was reasonable for Barba to rely on the representations made to him by the

Village’s personnel; however, the court indicated that the administrative proceeding involving

the pension board barred Barba from recovering “lost pension benefits” as damages. To do so,

according to the court, would have constituted “a second bite at the apple.” The court referenced

the claimed illegality of Barba’s “pension spike,” but found that it could avoid that issue by

limiting Barba’s damages and resolving his claims on alternative, non-contractual grounds.

Finally, the court awarded Barba attorney fees incurred during the pension board proceeding

($4,431), but ordered that the parties bear their own fees for the instant litigation.

¶ 15 Barba timely appealed and the Village timely cross-appealed.

¶ 16 II. ANALYSIS

¶ 17 On appeal, Barba contends that the trial court erred when it (1) granted defendants’

section 2-619 motions and dismissed his third-party-beneficiary claims (counts II and IV), and

(2) limited his damages for promissory estoppel to the prorated amount of his salary increase for

his last paycheck (count III). We address these issues in turn, but before doing so we note that

Barba did not in his opening appellate brief challenge the trial court’s order granting summary

judgment in favor of the District on his promissory-estoppel claim (count V). After the District

pointed this out, Barba vaguely attempted to raise the issue in his reply brief. Cf. Ill. S. Ct. R.

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(h)(7) (eff. Feb. 6, 2013) (“Points not argued are waived and shall not be raised in the reply

brief ***.”); Vancura v. Katris,

(2010) (“[A] vague allegation of error is not

‘argued’ and will not satisfy the requirements of the rule.”). We determine that Barba has

forfeited the issue and therefore affirm the trial court’s grant of summary judgment in favor of

the District on count V.

¶ 18 A. Barba’s Third-Party-Beneficiary Claims

¶ 19 As noted, the trial court granted defendants’ motions to dismiss Barba’s third-party-

beneficiary claims, counts II and IV, under section 2-619(a)(9) of the Code. Such motions admit

the legal sufficiency of the complaint, but raise defenses or other affirmative matters that defeat

the action. Patrick Engineering, Inc. v. City of Naperville,

. A complaint

should not be dismissed under section 2-619 of the Code unless it appears that no set of facts

under the pleadings can be proved that would entitle the plaintiff to recover. Incandela v.

Giannini,

(1993) (citing People ex rel. Hartigan v. Knecht Services, Inc.,

(1991)). In ruling on the motion, the trial court must take all facts

properly pleaded as true.

Our review is de novo. Patrick Engineering,

.

¶ 20 Before we address the merits, the District alleges that Barba abandoned his third-party-

beneficiary claims by failing to reallege those counts “verbatim” in his second amended

complaint and by “substantially altering” the factual allegations supporting those claims. The

District further claims that a “summary affirmance” on these counts is in order. The Village

does not join the District in making this argument and rightly so. The District cites no authority,

and we are aware of none, requiring plaintiffs to reallege their claims “verbatim” to avoid

abandoning them, and in this case, though not verbatim, those claims were sufficiently realleged

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and incorporated. Cf. 735 ILCS 5/2-616(c) (West 2010). As for the contention that the claims

were “substantially alter[ed],” the District failed to raise this objection in the trial court, and on

appeal it fails to explain why it deems the amendments to the complaint “substantial[ ].”

Accordingly, the District has forfeited this argument, both by failing to raise it below (Village of

Lake Villa v. Stokovich,

(2004)) and by failing to develop it on appeal (Wolfe

v. Menard, Inc.,

(2006)). At any rate, we have examined the

complaints and find no variance that would have precluded the trial court from granting Barba

leave to amend. A “summary affirmance” is thus unwarranted.

¶ 21 Turning to the merits, Barba contends that the trial court erred in granting defendants’

motions to dismiss, because section 6 of the IGA clearly provided that he was an intended third-

party beneficiary of it. In the trial court, defendants claimed and the court found that the IGA

was ambiguous and that the NTPB clause in section 13(M) negated Barba’s status as a third-

party beneficiary. “The well-established rule in Illinois is that if a contract is entered into for the

direct benefit of a third person, the third person may sue for a breach of the contract in his or her

own name, even though the third person is a stranger to the contract and the consideration.”

Olson v. Etheridge,

(1997). “The promise does not have to be for the sole

benefit of the third party as long as it is for [the third party’s] direct or substantial benefit.”

Advanced Concepts Chicago, Inc. v. CDW Corp.,

(2010). The issue

here turns then on whether the Village and the District entered into the IGA for, among other

things, Barba’s direct benefit. We determine that they did.

¶ 22 In contract interpretation, there is a strong presumption against the conferring of benefits

to noncontracting third parties. F.H. Paschen/S.N. Nielsen, Inc. v. Burnham Station, L.L.C.,

(2007). “ ‘In order to overcome that presumption, the implication that the

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contract applies to third parties must be so strong as to be practically an express declaration.’

[Citations.]”

Thus, we examine the language of the IGA to determine whether Barba was an

intended beneficiary of it or merely an incidental one. Section 6 of the IGA provides, “The

Village will adjust Chief Barba’s compensation for pension purposes in an amount sufficient to

assure that Chief Barba will enjoy a retirement benefit equal to that which he would have

enjoyed ha[d] he continued to serve at his present rank until February[ ] 2008, which would have

been his 30th year of service.” (Emphasis added.) We find that the IGA was clear and

unequivocal and that Barba was a third-party beneficiary of it. Accordingly, once Barba retired,

his rights under the IGA vested (Olson,

) and this suit became ripe.

¶ 23 The Village, however, claims that the IGA was ambiguous because it did not explicitly

state that the Village would make a line-item appropriation to increase Barba’s salary. In

addition, the Village argues that Barba’s suit is premised only on a “one-time payment” of $322

and that his losses were thus no greater than that amount. But in our view, the Village has

misrepresented the provisions of the IGA and Barba’s claims. It is not as though the Village was

required to select from among a number of options to make Barba’s salary increase pensionable.

Under the Pension Code, the only way to make the salary increase count toward Barba’s pension

was for the Village to establish the increase through a municipal appropriation ordinance. See 40

ILCS 5/4-118.1(d) (West 2010); 50 Ill. Adm. Code 4402.30 (1996); see also Smith v. Board of

Trustees of the Westchester Police Pension Board,

(2010) (finding

that a final-year increase in former police chief’s salary was not pensionable absent an ordinance

that provided for his salary increase; affirming pension board). In theory, the Village could have

made the appropriation at any time, before or after Barba’s retirement. See 50 Ill. Adm. Code

4402.50(a) (1996) (when made by appropriation, “retroactive pay increases” are pensionable).

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¶ 24 In sum, when the Village failed to make any appropriation for Barba’s salary increase,

the Village precluded the pension board from including the salary increase in its computation of

Barba’s pension. See Smith,

. The IGA stated that the Village “will

adjust” Barba’s compensation for pension purposes and, in context, there was only one

reasonable interpretation of that phrase: i.e., that the Village would raise Barba’s pensionable

salary by means of an appropriation ordinance. Since it is difficult to imagine how the IGA

could have been clearer, we reject the Village’s claim that the IGA was ambiguous.

¶ 25 Next, in support of its position that the trial court properly dismissed Barba’s claim under

section 2-619(a)(9) of the Code, the District argues that the NTPB clause in section 13(M) of the

IGA was “fatal” to Barba’s claim. We disagree. The NTPB clause in section 13(M) was

phrased in broad, general terms. In contrast, the paragraph devoted to Barba in section 6 of the

IGA was quite specific; it referenced Barba’s retirement, his pension, his salary, his vacation and

sick time, the pension board, and the allocation of potential attorney fees. As Barba points out in

his brief, “[i]n a contract in which there are general and specific provisions relating to the same

subject, the specific provision is controlling.” Faith v. Martoccio,

(1974); see also People ex rel. Madigan v. Burge,

(under the

general/specific canon, “the specific provision is construed as an exception to the general one,”

thereby eliminating any conflict). Hence, the more specific provision related to Barba’s benefits

governs over the more general NTPB provision, rendering the latter inoperative at least against

Barba.

¶ 26 Finally, both the Village and the District devote a portion of their briefs to arguing that a

pensionable end-of-career increase in Barba’s salary would have constituted an “illegal pension

spike” under the Pension Code, thereby rendering the IGA void on public policy grounds.

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Defendants point our attention primarily to People ex rel. Campbell v. Swedeberg,

(1953), wherein we stated that it was reasonable for the legislature to adopt the anti-pension-

spiking measure at issue in that case.

. But defendants overlook that the statute at

issue in Swedeberg provided that a retiring police officer’s pension was determined by his or her

salary for “ ‘one year immediately prior to the time of his [or her] retirement.’ ”

at 123

(quoting Ill. Rev. Stat. 1951, ch. 24, ¶ 895). In contrast, the Pension Code in effect for municipal

firefighters at the time of Barba’s retirement provided that Barba’s pension would be determined

by his salary “at the date of retirement.” (Emphasis added.) 40 ILCS 5/4-109(a) (West 2010).

The legislature has since amended section 4-109(a) so that a firefighter hired after January 1,

2011, is subject to a different benefits framework, which is based on the average of the

firefighter’s highest-earning consecutive 8-year period within his or her last 10 years of service.

Pub. Act 96-1495, § 5 (eff. Jan. 1, 2011). All of this convinces us that, if the legislature had

intended to prohibit an end-of-career pension increase for municipal firefighters prior to Barba’s

retirement, it easily could have done so. See People v. Comage,

(2011)

(“The best indicator of [the legislature’s] intent is the language of the statute itself [and] if the

statute’s language is unambiguous, then it is applied as written ***.”).

¶ 27 We reiterate that Barba’s end-of-career salary increase, or any salary increase for that

matter, would have been lawfully pensionable so long as the increase was established by

municipal ordinance. 40 ILCS 5/4-118.1(d) (West 2010); see also Smith,

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33. Accordingly, defendants have failed to carry the burden of establishing that the actions

called for in the IGA were illegal under the Pension Code. See Fosler v. Midwest Care Center

II, Inc.,

(2009) (noting that an agreement is void as against public

policy only if it is clearly contrary to the law).

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¶ 28 We conclude that Barba was a third-party beneficiary of the IGA and that neither the

NTPB clause nor the Pension Code presented an obstacle to his recovery. We therefore reverse

the trial court’s dismissal of counts II and IV and remand for further proceedings.

¶ 29 B. Limitation on Damages

¶ 30 As noted, the trial court granted summary judgment in favor of Barba on his promissory-

estoppel claim against the Village, but limited his available damages award to the amount of the

retroactive salary increase, or $322. The Village cross-appeals the award.

¶ 31 Summary judgment will be granted “if the pleadings, depositions, and admissions on file,

together with the affidavits, if any, show that there is no genuine issue [of] material fact and that

the moving party is entitled to a judgment as a matter of law.” 735 ILCS 5/2-1005(c) (West

2010). The purpose of summary judgment is not to try a question of fact, but to determine if one

exists. Gilbert v. Sycamore Municipal Hospital,

(1993). We review de novo

the trial court’s summary-judgment ruling. Lake County Grading Co. v. Village of Antioch,

.

¶ 32 The trial court found that Barba could not seek damages for what it considered his “lost

pension benefits” in this case. The court incorrectly viewed Barba’s suit for his lost pension

benefits as duplicative of his administrative action against the pension board, as if barred by

collateral estoppel. But Barba sought different relief from different municipal entities in these

two fundamentally different proceedings. That is, in the administrative action, Barba sought his

full pension from the pension board and, when that proved unavailable, in this suit, he sought

equivalent damages from the Village. Barba could not have sued the pension board for lost

benefits as damages any more than he could have sought his pension directly from the Village.

See 40 ILCS 5/4-123 (West 2010) (firefighter’s pension board has exclusive authority to control

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and manage pension fund); Quinones v. City of Evanston,

(N.D. Ill. 1993)

(noting that a firefighters’ pension fund is not suable entity under Illinois law; it is merely

aggregation of assets with no provision for suing or being sued). Further, no party has alleged

any collaboration between the Village and the pension fund; thus, they were not in privity with

each other. See Pedersen v. Village of Hoffman Estates,

(citing

Demski v. Mundelein Police Pension Board,

(2005)).

¶ 33 Moreover, nothing in Illinois law precludes Barba from seeking relief from his former

employer or from the municipal entity that now manages his former employer’s pension fund.

While the Pension Code would preempt a suit by Barba against the pension board in the circuit

court (see generally Burge,

, ¶ 22), it does not preempt his suit against the

Village or the District. Cf. Forbus v. Sears Roebuck & Co.,

(11th Cir.

1994) (“the mere fact that the plaintiffs’ damages may be affected by a calculation of pension

benefits” does not trigger preemption under the Employee Retirement Income Security Act of

1974 (ERISA) (29 U.S.C § 1144 (1994)). We know of no reason, and the parties cite none, why

Barba should be precluded from seeking ordinary contract remedies—including the monetary

equivalent of the full payment of benefits, retroactive benefits, an injunction, reinstatement, or

rescission of the pension plan agreement (see generally 70 C.J.S. Pensions § 160 (2005))—in

this case.

¶ 34 We therefore affirm the trial court’s order to the extent that it granted summary judgment

to Barba on the merits of his promissory-estoppel claim, but we reverse its award of $322 and its

limitation on damages. At present, the record is unclear on the precise amount of Barba’s loss.

In the trial court, Barba provided several estimates of the difference in his pension benefits over

his life expectancy, but this prima facie evidence did not conclusively resolve the issue. See

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Marquette National Bank v. Heritage Pullman Bank & Trust Co.,

(1982) (evidence must be “clear and free from doubt” that the plaintiff suffered damages in the

amount alleged). This is a genuine issue of material fact and we remand the cause for a trial on

damages. In light of the foregoing, the Village’s cross-appeal on the award of $322 is moot.

¶ 35 C. Attorney Fees

¶ 36 Both Barba and the Village contest the trial court’s partial award of attorney fees.

“Whether and in what amount to award attorney fees is within the discretion of the trial court and

its decision will not be disturbed on review absent an abuse of that discretion.” Med+Plus Neck

& Back Pain Center, S.C. v. Noffsinger,

(2000) (citing In re Estate of

Callahan,

(1991)). “An abuse of discretion exists only where the trial

court’s decision is arbitrary, fanciful, or unreasonable, such that no reasonable person would take

the view adopted by the trial court.” People v. Ramsey,

(2010).

¶ 37 Since we are reversing and remanding, and the status of attorney fees for the instant

litigation may change, we vacate the trial court’s order that the parties bear their own costs for

this lawsuit, pending a final determination on the merits. However, we conclude that, given the

IGA’s statement regarding attorney fees, the trial court did not abuse its discretion in awarding

Barba attorney fees in connection with the pension board litigation ($4,431), and so we affirm

that portion of the judgment.

¶ 38 III. CONCLUSION

¶ 39 For the reasons stated, the dismissal of counts II and IV is reversed; summary judgment

on count III is affirmed in part and reversed in part; and summary judgment on count V is

affirmed. The award of attorney fees is affirmed in part and vacated in part. The cause is

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remanded to the circuit court of Du Page County for further proceedings consistent with this

opinion.

¶ 40 Affirmed in part, reversed in part, and vacated in part; cause remanded.

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