Stevens v. Village of Oak Brook

ILLINOIS OFFICIAL REPORTS
Appellate Court

Stevens v. Village of Oak Brook, 2013 IL App (2d) 120456

Appellate Court ANTHONY J. STEVENS, Plaintiff-Appellee, v. THE VILLAGE OF
Caption OAK BROOK, Defendant-Appellant (Illinois Municipal Retirement
Fund, James W. Craig, in His Capacity as Village President, James
Carson, Jeffrey Kennedy, Kathryn Manofsky, Moin Saiyed, Robert
Sanford, Gerald Wolin, in Their Capacity as Village Trustees, David
Niemeyer, in his capacity as Village Manager, and Eileen Donahue, in
Her Capacity as Authorized Agent of the Village to IMRF, Defendants).

District & No. Second District
Docket No. 2-12-0456

Filed May 9, 2013

Held In an action arising from plaintiff’s employment with defendant village,
(Note: This syllabus first as a part-time building inspector and later as a full-time inspector,
constitutes no part of the trial court properly entered a writ of mandamus ordering the village
the opinion of the court to sign a form enabling plaintiff to receive credit toward his pension for
but has been prepared the part-time work, even though he did not participate in the Illinois
by the Reporter of Municipal Retirement Fund during that time due to the village
Decisions for the administrator’s information that plaintiff was not eligible to participate,
convenience of the since plaintiff had a clear right pursuant to the Pension Code to receive
reader.)
a credit for his part-time years of service and the village had a clear duty
to take the steps necessary for plaintiff to receive his full pension.

Decision Under Appeal from the Circuit Court of Du Page County, No. 09-MR-670; the
Review Hon. Terence M. Sheen, Judge, presiding.

Judgment Affirmed.
Counsel on Keri-Lyn J. Krafthefer, of Ancel Glink Diamond Bush DiCianni &
Appeal Krafthefer, PC, of Warrenville, and David L. Ader, of Ancel Glink
Diamond Bush DiCianni & Krafthefer, PC, of Chicago, for appellant.

Richard J. Tarulis, of Brooks, Tarulis & Tibble, LLC, of Naperville, for
appellee.

Panel JUSTICE SCHOSTOK delivered the judgment of the court, with opinion.
Justices McLaren and Zenoff concurred in the judgment and opinion.

OPINION

¶1 The plaintiff, Anthony J. Stevens, worked as a part-time building inspector for the
defendant, the Village of Oak Brook (the Village), from 1980 to 2000. During that time, he
did not participate in the Illinois Municipal Retirement Fund (IMRF or the pension program)
(40 ILCS 5/7-101 et seq. (West 2010)) because the Village’s administrator informed him that
he was not eligible to participate. From 2000 to 2008, he worked as a full-time building
inspector and did participate in the IMRF. Prior to retiring, he requested that the proper
Village official complete the form that would enable him to receive credit toward his pension
for the part-time work he did between 1980 and 2000. The Village official refused to sign
the necessary form. Four months after retiring, the plaintiff filed a complaint against the
Village, asking that the proper Village official sign the necessary form. The trial court
subsequently granted the plaintiff’s motion for summary judgment and entered a writ of
mandamus, ordering that the Village have the necessary form signed. The Village appeals
from that order. We affirm.

¶2 BACKGROUND
¶3 On April 28, 2009, the plaintiff filed a complaint for declaratory judgment and
mandamus. The plaintiff alleged that the Village hired him as a part-time building inspector
in February 1980. He worked approximately 1,040 hours per year. Although the Village was
a participating employer in the IMRF, it failed to enroll him in the pension program. The
Village never paid the employer contributions to the IMRF for his period of employment
from 1980 to 2000. In April 2000, the Village hired the plaintiff as a full-time building
inspector. At that time, the Village enrolled the plaintiff in the IMRF.
¶4 Prior to his retirement from the Village, plaintiff applied for IMRF benefits. Upon
applying, he learned that he should have been enrolled in the IMRF in 1980. He then
completed IMRF Form 6.05, which provides for omitted service credit verification.

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 However, the Village’s authorized IMRF agent refused to sign that form to authorize the
plaintiff to receive his omitted credit.
¶5 In the plaintiff’s complaint for declaratory judgment and mandamus, the plaintiff sought
IMRF credit for his 20 years of service as a part-time building inspector. The plaintiff alleged
that the Village was obligated to sign IMRF Form 6.05 because it had a duty in 1980 to
enroll him in the IMRF. The plaintiff further alleged that there was no authority or procedure
for the Village to exclude him from participating in the IMRF. The plaintiff therefore
requested that the trial court enter a writ of mandamus requiring the proper Village official
to sign IMRF Form 6.05. The plaintiff also claimed that the Village had violated his equal
protection rights under the fourteenth amendment to the United States Constitution (U.S.
Const., amend. XIV) because it had enrolled other part-time building inspectors in the IMRF
but not him.
¶6 On October 8, 2009, the plaintiff filed a motion for summary judgment. On April 5,
2010, the trial court (Judge Kenneth Popejoy) denied the plaintiff’s motion. The trial court
found that there were outstanding factual issues that precluded entry of summary judgment
in the plaintiff’s favor.
¶7 On June 21, 2010, the plaintiff filed a first amended complaint for declaratory judgment
and mandamus. On July 26, 2010, the Village filed its answer and raised eight affirmative
defenses. The Village asserted that the plaintiff was not eligible for service credit from 1980
to 2000 because he had not elected to participate in the pension program. The Village further
alleged that the plaintiff’s request for retroactive service credit was untimely because he
should have requested enrollment in the IMRF in 1980. Alternatively, the Village argued
that, if the plaintiff was entitled to retroactive service credit, the Illinois Pension Code (40
ILCS 5/1-101 et seq. (West 2010)) (the Pension Code) provided that he was entitled to no
more than 50 months of credit. On March 21, 2011, the Village filed an amended answer and
raised an additional 10 affirmative defenses.
¶8 On October 3, 2011, the plaintiff filed a motion for summary judgment on his amended
complaint. On December 13, 2011, following a hearing, the trial court (Judge Terence Sheen)
granted the plaintiff’s motion for summary judgment.1 The trial court explained that, under
the plain and ordinary language of the Pension Code, the plaintiff’s participation in the IMRF
was mandatory for those years he worked more than 600 hours per year for the Village;
therefore, the Village was required to enroll him in the pension program. Because the
plaintiff’s participation in the IMRF was mandatory, the 50-month retroactive service credit
limitation did not apply to the plaintiff because that provision applied only to people who
could voluntarily decide to participate in the IMRF. The trial court further found that,
because it was not clear in 1980 and 1981 that the Village anticipated that the plaintiff would
work more than 600 hours per year, he was not entitled to retroactive credit for those two
years. However, he was entitled to credit from 1982 to 2000. Because the plaintiff was
entitled to credit, the trial court determined that a writ of mandamus was appropriate because
the Village’s authorized IMRF agent had a nondiscretionary duty to sign Form 6.05.

1
The case was reassigned from Judge Popejoy to Judge Sheen at the beginning of 2011.

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¶9 In its ruling, the trial court denied the plaintiff’s equal protection claim. The trial court
found that the facts did not clearly establish that the Village had discriminated against the
plaintiff. The trial court also rejected the Village’s claim that the plaintiff’s action was barred
by the statute of limitations and the doctrine of laches. The trial court found that it did not
have to decide whether a 5-year statute of limitations (applicable to unwritten contracts) or
a 10-year statute of limitations (applicable to written contracts) applied, because the plaintiff
had filed his lawsuit approximately one year after being denied his omitted service credit.
The doctrine of laches did not apply because the plaintiff did not unreasonably delay bringing
his lawsuit.
¶ 10 On December 21, 2011, the plaintiff filed a motion to reconsider. The plaintiff argued
that the trial court should have ordered that he receive 20 years of retroactive service credit
rather than just 18 years. He also argued that the trial court erred in denying his equal
protection claim. On April 2, 2012, following a hearing, the trial court denied the plaintiff’s
motion to reconsider. The plaintiff thereafter filed a timely notice of appeal and the Village
filed a timely notice of cross-appeal.
¶ 11 On June 20, 2012, after the plaintiff failed to comply with this court’s order to file his
appellant’s brief in a timely fashion, we ordered that his case be dismissed. The result of our
order was that the Village, which had previously been the cross-appellant, became the
appellant and the plaintiff became the appellee.

¶ 12 ANALYSIS
¶ 13 The Village’s first contention on appeal is that the trial court erred in its interpretation
of section 7-137 of the Pension Code (40 ILCS 5/7-137 (West 2010)) and article XIII, section
5, of the Illinois Constitution (Ill. Const. 1970, art. XIII, § 5). The Village insists that,
contrary to what the trial court determined, it was not mandatory that a government
employee, like the plaintiff, participate in the IMRF. Rather, the plaintiff could participate
only if he voluntarily chose to do so and to make the requisite contributions to that program.
¶ 14 The Village’s argument requires us to interpret parts of both the Pension Code and the
Illinois Constitution. The primary purpose of statutory construction is to determine and give
effect to the legislature’s intent, while presuming that the legislature did not intend to create
absurd, inconvenient, or unjust results. In re B.L.S., 202 Ill. 2d 510, 514-15 (2002). The best
indication of the legislature’s intent is the language of the statute. In re Marriage of
Lindman, 356 Ill. App. 3d 462, 466 (2005). If the language of the statute is clear, there is no
need to resort to other aids of statutory construction. Id. The legislature’s use of the word
“shall” is generally regarded as indicating a mandatory, and not merely a directory, intent.
Schultz v. Performance Lighting, Inc., 2013 IL App (2d) 120405, ¶ 13. Further, we note that
we interpret the Illinois Constitution the same way as we would a statute. See People v.
Tisler, 103 Ill. 2d 226, 254 (1984) (Ward, J., concurring) (“[A] court, in interpreting a
constitution, is to ascertain and give effect to the intent of the framers of it and the citizens
who have adopted it.”).
¶ 15 Section 7-137 of the Pension Code provides in pertinent part:
“Participating and covered employees.

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 (a) The persons described in this paragraph (a) shall be included within and be
subject to this Article and eligible to benefits from this fund, beginning upon the dates
hereinafter specified:
1. Except as to the employees specifically excluded under the provisions of this
Article, all persons who are employees of any municipality (or instrumentality
thereof) or participating instrumentality on the effective date of participation of the
municipality or participating instrumentality beginning upon such effective date.
***
(b) The following described persons shall not be considered participating employees
eligible for benefits from this fund, but shall be included within and be subject to this
Article (each of the descriptions is not exclusive but is cumulative):
1. Any person who occupies an office or is employed in a position normally
requiring performance of duty during less than 600 hours a year for a municipality
(including all instrumentalities thereof) or a participating instrumentality. ***
2. Any person who holds elective office unless he has elected while in that office
in a written notice on file with the board to become a participating employee;
3. Any person working for a city hospital unless any such person, while in active
employment, has elected in a written notice on file with the board to become a
participating employee and notification thereof is received by the board[.]” 40 ILCS
5/7-137 (West 2010).
¶ 16 The plain language of section 7-137 of the Pension Code provides that it “shall” apply
to all municipal employees, except for a few exceptions that are not applicable here. This
language clearly indicates that the plaintiff was eligible for pension benefits because he was
working for the Village as a municipal employee.
¶ 17 We note that our interpretation is consistent with how the IMRF has interpreted section
7-137 of the Pension Code. Although the IMRF is not an administrative agency and does not
have formal regulations promulgated under the Illinois Administrative Code, its board of
trustees (Board) has authority to make “administrative decisions on participation and
coverage, which are necessary for carrying out the intent of this fund in accordance with the
provisions of this Article.” 40 ILCS 5/7-200 (West 2010). The Board has adopted the
“Authorized Agent’s Manual,” which it uses to provide guidance to IMRF employers such
as the Village. The Authorized Agent’s Manual therefore constitutes the IMRF’s
“administrative rules.” Administrative rules interpreting a statute can be used by the court
as guides, but are binding on the court only to the degree that they follow the statute. Illinois
RSA No. 3, Inc. v. Department of Central Management Services, 348 Ill. App. 3d 72, 77
(2004).
¶ 18 Section 3.65 of the IMRF Authorized Agent’s Manual states:
“Participation in IMRF is not optional for employees who meet the annual hourly
standard. Exceptions to the participation requirement exist for the following positions:
1. 3.65 E. Elected Officials
2. 3.65 F. Paid Members of Elected Governing Body

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 3. 3.65 I. City Hospital Employees
For all other employees, if he or she meets the requirements, enrollment in IMRF is
mandatory and cannot be excused. Part-time employees meeting these requirements must
be enrolled even though they are not entitled to other fringe benefits such as vacation
days, sick leave and hospitalization insurance.
Failure to require IMRF participation and to make contributions can result in
substantial charges for omitted member and employer contributions in the future. Even
though you fail to deduct contributions from their earnings, employees are entitled to
service credits toward their pensions and may pay for the omitted service at a later date.[2]
Your governmental unit will be responsible for the remainder of the pension cost.”
Thus, under section 3.65 of the IMRF Authorized Agent’s Manual, it is mandatory that an
IMRF employer enroll its employees in the pension program.
¶ 19 In arguing that enrollment is not mandatory under section 7-137, the Village seizes upon
the word “eligible” in section 7-137(a). The Village argues that “eligible” is a word that
designates “the right and discretion to choose.” In other terms, the Village contends that the
“employee can enroll if he or she so desires; he or she is not forced to enroll by mandate.”
We find the Village’s argument unpersuasive. First, we note that “eligible” is defined as
“having the right to do or obtain something; satisfying the appropriate conditions.” Oxford
Online Dictionary, http://oxforddictionaries.com (last visited Apr. 17, 2013). As such, the
plain language of the statute indicates that “all” municipal employees “shall” have the right
to benefits from the pension fund. There is nothing in the plain language that supports the
Village’s argument that an employee could opt out of receiving benefits. Second, even if we
were to find that the word “eligible” encompassed a certain level of discretion, we must still
consider that term in the context of the whole statutory provision. See Whelan v. County
Officers’ Electoral Board, 256 Ill. App. 3d 555, 558 (1994). Considering all of the language
together, it is apparent that all of the specified employees are to participate in the IMRF; the
employee is not given the option of forgoing participation.
¶ 20 We also reject the Village’s argument that the plaintiff’s participation cannot be
considered mandatory based on article XIII, section 5, of the Illinois Constitution. That
section provides that membership in a local government’s pension system is “an enforceable
contractual relationship, the benefits of which shall not be diminished or impaired.” Ill.
Const. 1970, art. XIII, § 5; see Board of Trustees of the Police Pension Fund v. Department
of Insurance, 210 Ill. App. 3d 949, 953 (1991). The Village argues that, based on the
foregoing provision, all public pensions are necessarily matters of contract. A contract
requires free will to make a voluntary choice. See Krilich v. American National Bank & Trust
Co. of Chicago, 334 Ill. App. 3d 563, 572 (2002) (one who has been deprived of the exercise
of free will cannot enter into a contract). Thus, under article XIII, section 5, of the Illinois
Constitution, the Village argues that one’s participation cannot be considered mandatory
because, if it were, it would deny the person the opportunity of exercising his free will as to

2
We note that payment for omitted service was not raised by the parties. Thus, no other
mention of the statutory requirement (see 40 ILCS 5/7-139(c) (West 2010)) is made herein.

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 whether he wanted to participate.
¶ 21 We believe that the Village’s argument is based on a flawed premise. The terms of the
contractual relationship between a municipality and its employee are governed by the version
of the Pension Code in effect at the time the employee became a member of the system. Di
Falco v. Board of Trustees of the Firemen’s Pension Fund of the Wood Dale Fire Protection
District No. One, 122 Ill. 2d 22, 26 (1988). As set forth above, section 7-137 of the Pension
Code governs the relationship between the Village and the plaintiff. That section clearly
provides that it is mandatory that the plaintiff participate in the IMRF. Thus, in construing
section 7-137 of the Pension Code and article XIII, section 5, of the Illinois Constitution in
harmony, it is apparent that the contract referred to in the constitutional provision is the
contract that the employer and employee enter into when the employer agrees to hire the
employee and the employee agrees to work for the employer. Pursuant to that employment
contract, section 7-137 of the Pension Code mandates, the employee will receive pension
benefits as part of his compensation. In construing section 7-137 of the Pension Code and
article XIII, section 5, of the Illinois Constitution together, we find nothing that violates basic
contract principles.
¶ 22 The Village’s second contention on appeal is that, if the plaintiff is entitled to a pension,
he is entitled to no more than 50 months of service credit. In making this argument, the
Village relies on section 7-139(a)(7) of the Pension Code. That section provides:
“For retroactive service: Any employee who could have but did not elect to become a
participating employee, or who should have been a participant in the Municipal Public
Utilities Annuity and Benefit Fund before that fund was superseded, may receive
creditable service for the period of service not to exceed 50 months ***.” 40 ILCS 5/7-
139(a)(7) (West 2010).
¶ 23 Section 7-139(a)(7) of the Pension Code is not applicable to this case. By its plain terms,
section 7-139(a)(7) of the Pension Code applies only to individuals who could have elected,
or made a voluntary decision, to participate in the pension program. As explained above, the
plaintiff did not have discretion to participate in the pension program. Rather, under section
7-137 of the Pension Code, his participation was mandatory. As such, section 7-139(a)(1),
rather than section 7-139(a)(7), applies to this case. Section 7-139(a)(1) states in pertinent
part:
“(a) Each participating employee shall be granted credits and creditable service, for
purposes of determining the amount of any annuity or benefit to which he or a
beneficiary is entitled, as follows:
1. For prior service: Each participating employee who is an employee of a
participating municipality or participating instrumentality on the effective date shall
be granted creditable service ***[.]
If the effective date of participation for the participating municipality or
participating instrumentality is on or before January 1, 1998, creditable service shall
be granted for the entire period of prior service with that employer without any
employee contribution.” 40 ILCS 5/7-139(a)(1) (West 2010).
Thus, under the plain language of section 7-139(a)(1), the plaintiff was potentially entitled

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 to credit for all of the work he did for the Village between 1980 and 2000.
¶ 24 The Village’s third contention on appeal is that the trial court erred in granting the
plaintiff’s motion for summary judgment. Specifically, the Village argues that summary
judgment was improper because (1) the trial court had no authority to mandate that IMRF
credits be awarded to the plaintiff, because the Village’s authorized IMRF agent was not a
party; (2) the trial court did not consider 15 of the affirmative defenses that the Village had
raised and the plaintiff had not replied to; (3) the Village raised several meritorious defenses;
and (4) factual issues remained.
¶ 25 The purpose of a motion for summary judgment is to determine whether a genuine issue
of triable fact exists (People ex rel. Barsanti v. Scarpelli, 371 Ill. App. 3d 226, 231 (2007)),
and such a motion should be granted only when “the pleadings, depositions, and admissions
on file, together with the affidavits, if any, show that there is no genuine issue as to any
material fact and that the moving party is entitled to judgment as a matter of law” (735 ILCS
5/2-1005(c) (West 2010)). An order granting summary judgment should be reversed if the
evidence shows that a genuine issue of material fact exists or if the judgment was incorrect
as a matter of law. Clausen v. Carroll, 291 Ill. App. 3d 530, 536 (1997).
¶ 26 We believe that the trial court properly entered summary judgment in the plaintiff’s
favor. As explained above, section 7-137 of the Pension Code provides that, after an
employee is hired by a municipality, the municipality must enroll the employee in the
pension program and make contributions on his behalf. The municipality should also deduct
wages from the employee’s salary as a contribution to that employee’s pension. If the
municipality fails to do so, the employee may seek a correction, to establish all of his omitted
service credit. 40 ILCS 5/7-139(a)(1) (West 2010). Here, in his complaint, the plaintiff
alleged that he had worked for the Village from 1980 to 2000 but that the Village had neither
enrolled him in the pension program nor made the requisite contributions on his behalf. The
plaintiff made an application for his omitted service credit, but the Village refused his
request. As all of these allegations are supported by the record, the plaintiff was indeed
entitled to summary judgment.
¶ 27 In so ruling, we find disingenuous the Village’s argument that the trial court could not
grant the plaintiff the relief he requested–a writ of mandamus–because the only person who
could execute the requisite form was the authorized IMRF agent, who was not a party to the
case.
¶ 28 In his first amended complaint, beyond naming the Village, the plaintiff also named the
Village president, the Village trustees, the Village manager, and Eileen Donahue, in her
capacity as the Village’s authorized IMRF agent. The Village subsequently filed a motion
to dismiss the individual defendants from the plaintiff’s complaint. The Village explained:
“If the Court grants [the plaintiff] the relief he seeks, the Village will be directed to
prepare and execute IMRF Form 6.05. Ms. Donahue, as the present IMRF Authorized
Agent, would be the specific individual to carry out this task pursuant to Section 7-135(b)
of the Pension Code, at this time. However, logically speaking, an order directed towards
the Village would also be sufficient to accomplish this purpose, so there is no need for
Ms. Donahue to be an individual party to this litigation either. The Authorized Agent

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 could change during the course of this litigation, which will require [the plaintiff] to
amend his complaint and cause further inefficiency, when an order directed to the Village
would suffice. To the extent that [the plaintiff] sues the individual Defendants to carry
out tasks that will be the Village’s responsibility, the individual Defendants should be
dismissed pursuant to section 2-619(a)(9).” (Emphasis in original.)
On October 25, 2010, following a hearing, the trial court granted the Village’s motion to
dismiss the individual defendants, including Donahue, from the plaintiff’s complaint.
¶ 29 On appeal, the Village now essentially argues that the trial court erred in dismissing
Donahue from the plaintiff’s complaint. However, as the trial court did exactly what the
Village requested, the Village cannot now complain that the trial court’s actions were
erroneous. See In re Detention of Swope, 213 Ill. 2d 210, 217 (2004) (a party cannot
complain of error that the party induced the court to make, because it would be manifestly
unfair to allow a party a second trial upon the basis of error that the party injected into the
proceedings).
¶ 30 We also reject the Village’s argument that the trial court erred in entering summary
judgment before the plaintiff had responded to its 18 affirmative defenses. The Village insists
that “[s]o long as the affirmative defenses remained, [the plaintiff’s] right to judgment could
not be absolutely clear and free from doubt.” First, we believe that implicit in the trial court’s
ruling was that it considered all of the Village’s affirmative defenses and found them to be
without merit. See In re N.B., 191 Ill. 2d 338, 345 (2000) (trial court is presumed to know
the law and apply it properly, absent an affirmative showing in the record to the contrary).
Second, in its appellant’s brief, the Village refers to only four of its affirmative
defenses–unclean hands, failure to fulfill a condition precedent, laches, and the statute of
limitations. As to the other 14 affirmative defenses, it is not the role of this court to search
the record and develop arguments on a party’s behalf.3 People v. Jacobs, 405 Ill. App. 3d
210, 218 (2010). Third, the Village cites only one case–Green v. International Insurance Co.,
238 Ill. App. 3d 929, 933 (1992)–in support of its argument regarding affirmative defenses.
However, Green does not support the plaintiff’s argument, as it includes no discussion of
affirmative defenses that have not been responded to prior to the trial court’s ruling on a
motion for summary judgment. That case, therefore, does not serve as a basis to disturb the
trial court’s ruling. See Willaby v. Bendersky, 383 Ill. App. 3d 853, 861 (2008) (appellate
court is not a depository in which a party may dump the burden of argument and research,
and therefore arguments not supported by relevant authority are forfeited). Accordingly, the
Village’s arguments as to those 14 affirmative defenses are forfeited. See id.
¶ 31 As to the four affirmative defenses that the Village does discuss in its brief, two of
them–unclean hands and failure to fulfill a condition precedent–are premised on the Village’s

3
We note that the Village lists nine of its affirmative defenses in its reply brief. However,
even if the Village had discussed these defenses in detail, its failure to discuss them earlier forfeits
its right to have this court consider them. See State Farm Mutual Automobile Insurance Co. v.
Rodriguez, 2013 IL App (1st) 121388, ¶ 29 (arguments raised for the first time in reply brief are
forfeited).

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 argument that the plaintiff had the choice of whether to participate in the IMRF. However,
as the Village was obligated to enroll the plaintiff in the IMRF, that argument is without
merit. Further, the doctrine of laches, which provides that one may not be entitled to relief
if he exhibited unreasonable delay in asserting his claim (Monson v. County of Grundy,
Illinois, 394 Ill. App. 3d 1091, 1094 (2009)), is not applicable. Here, as the plaintiff complied
with section 7-139 of the Pension Code when he made his claim for omitted service credits
before he retired, the plaintiff did not exhibit an unreasonable delay in asserting his claim.
Cf. Brehm v. Sargent & Lundy, 66 Ill. App. 3d 472, 473-74 (1978) (doctrine of laches barred
plaintiff’s claim because he did not file his claim until 13 years after he had retired).
¶ 32 Furthermore, the Village’s statute-of-limitations affirmative defense is without merit. The
Village argues that the trial court erred in applying the 10-year statute of limitations
applicable to contracts. The Village contends that the appropriate period was at most five
years. The Village further contends that the applicable limitations period began to run in
1980, when the plaintiff should have realized that the Village had not enrolled him in the
IMRF. Thus, the Village insists that the plaintiff’s action is time-barred.
¶ 33 Once again, the Village raises an argument that is contrary to an argument that it raised
in the proceedings below. In its amended motion to dismiss, the Village asserted that “[t]he
statute of limitations for an action relating to pension contributions is 10 years.” The Village,
thus, cannot now complain that the trial court erred in applying a 10-year statute of
limitations. See Byer Clinic & Chiropractic, Ltd. v. State Farm Fire & Casualty Co., 2013
IL App (1st) 113038, ¶ 20 (party is judicially estopped from assuming a position in a legal
proceeding contrary to a position it held in a prior legal proceeding). Moreover, the Village’s
argument misstates the trial court’s reasoning. The trial court stated that, under either a 5-
year or a 10-year statute of limitations, the plaintiff’s action was timely. Thus, the trial court
did in fact consider the shorter limitations period that the Village now argues the trial court
should have used.
¶ 34 Further, the Village’s argument that the limitations period began to run after it failed to
enroll the plaintiff in the IMRF is contrary to the plain language of the Pension Code. Section
7-139(c) of the Pension Code provides that an employee may seek a correction to establish
the service credit to which he is entitled at any time while he is still a participating employee
in the pension program. 40 ILCS 5/7-139(c) (West 2010). Accepting the Village’s argument,
that the plaintiff had only a five-year window, ending in 1985, to challenge the failure to
enroll him in the IMRF, would render section 7-139(c) of the Pension Code meaningless.
That, of course, we decline to do. See Solon v. Midwest Medical Records Ass’n, 236 Ill. 2d
433, 440-41 (2010) (court must interpret statutes in a way that will not render any portion of
them meaningless or superfluous).
¶ 35 Here, the plaintiff sought a correction of his service credit while he was still a
participating employee. After the Village refused to honor his request, he filed a complaint
within one year. His action was therefore timely.
¶ 36 We also reject the Village’s argument that factual issues remain that preclude summary
judgment in the plaintiff’s favor. The Village points out that Judge Popejoy denied the
plaintiff’s motion for summary judgment because he found that there were outstanding

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 factual issues. However, when the plaintiff later brought essentially the same motion for
summary judgment, Judge Sheen granted it. The Village argues that Judge Popejoy and
Judge Sheen reaching different decisions demonstrates that there are still factual issues in this
case.
¶ 37 Judge Popejoy’s order denying the plaintiff’s motion for summary judgment was an
interlocutory order. See In re Estate of Funk, 221 Ill. 2d 30, 85 (2006). A court has the
inherent authority to reconsider and correct its rulings, and this power extends to
interlocutory rulings as well as to final judgments. People v. Mink, 141 Ill. 2d 163, 171
(1990). Accordingly, a second trial judge has the authority to vacate the first trial judge’s
order. Id. Thus, there was nothing improper about Judge Sheen reaching a different
conclusion than Judge Popejoy as to the plaintiff’s motion for summary judgment. The fact
that he did does not indicate that there were factual issues remaining.
¶ 38 The Village also insists that an order of mandamus entails numerous factual
considerations, which makes it inappropriate relief to be granted on a motion for summary
judgment. Relying on Kenneally v. City of Chicago, 220 Ill. 485, 504 (1906), the Village
argues that the trial court was obligated to consider whether its order will create confusion
and disorder in administration, promote substantial justice, or impose adverse consequences.
Because the trial court acted in a manner “that was unmindful of these additional factual
considerations,” the Village argues, the trial court erred in granting the plaintiff’s motion for
summary judgment.
¶ 39 Mandamus relief is an extraordinary remedy to direct a public official or body to perform
a ministerial duty that does not involve the exercise of judgment or discretion. Read v.
Sheahan, 359 Ill. App. 3d 89, 97 (2005). A plaintiff requesting mandamus relief must
demonstrate a clear right to the requested relief, the defendant’s clear duty to act, and the
defendant’s clear authority to comply with the terms of the mandamus order. Hadley v. Ryan,
345 Ill. App. 3d 297, 301 (2003). Here, under the Pension Code, the plaintiff had a clear right
to receive his omitted years of service credit and the Village had a clear duty to complete the
necessary form so that the plaintiff could receive his full pension. The trial court therefore
properly granted the plaintiff mandamus relief. See Hadley, 345 Ill. App. 3d at 301.
¶ 40 We find the Village’s reliance on Kenneally to be misplaced. In that case, the plaintiff
was a Chicago police officer. He was dropped from the city payroll on March 14, 1898. On
December 19, 1904, he filed an amended petition, seeking a writ of mandamus that he be
reinstated and that he receive all of the compensation that he should have received since
March 14, 1898. The supreme court found that the plaintiff was essentially seeking
compensation for work that had been done by someone other than himself for six years.
Kenneally, 220 Ill. at 504. The supreme court found that, under these factual circumstances,
the doctrine of laches barred the plaintiff’s claim for relief. Id. at 508. In the instant case, as
discussed above, laches is not applicable. Further, in light of the plaintiff’s clear statutory
right to his full pension, there are no outstanding factual issues that precluded the trial court
from entering summary judgment in the plaintiff’s favor.
¶ 41 Finally, we note that plaintiff raises two issues regarding the propriety of the trial court’s
order. The plaintiff argues that the trial court erred in (1) awarding him 18 years of

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 retroactive service credit instead of 20 years; and (2) denying his equal protection claim.
Although the plaintiff did file an appeal, we subsequently dismissed that appeal due to his
failure to comply with our order that he file his brief in a timely fashion. After his appeal was
dismissed, the plaintiff became only the appellee to the Village’s appeal. It is well settled
that, in the absence of a cross-appeal, a reviewing court is confined to those issues raised by
the appellant and will not consider those urged by the appellee. Ruff v. Industrial Comm’n,
149 Ill. App. 3d 73, 79 (1986). Accordingly, we decline to consider the issues that the
plaintiff raises in his appellee’s brief. See id.

¶ 42 CONCLUSION
¶ 43 For the reasons stated, we affirm the judgment of the circuit court of Du Page County.

¶ 44 Affirmed.

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