noting that documents not expressly identified in Civ.R. 56(C) “ ‘may be introduced as proper evidentiary material if incorporated by reference in a properly framed affidavit’ ”
How later courts described this case
- noting that documents not expressly identified in Civ.R. 56(C) “ ‘may be introduced as proper evidentiary material if incorporated by reference in a properly framed affidavit’ ”
Written by the judges who cited it.
The opinion
Tyack, Judge,
dissenting.
I respectfully dissent.
On June 8, 1998, Jill Buzzard filed an action in the Court of Common Pleas for Franklin County, Ohio, seeking either a writ of mandamus or an injunction. She filed the lawsuit both individually and as executor of the estate of David B. Buzzard, her late husband. She was attempting to compel the Public Employees Retirement System of Ohio (“PERS”) • to accept her modified application for retirement benefits.
David B. Buzzard had been a professor at Cincinnati State Technical and Community College when suspicions arose that he had been embezzling funds. On October 22,1997, the college fired him.
Because David had contributed to PERS for a significant period of time, he was entitled to benefits. He had a range of options available to him and chose the option (Plan A) that provided a joint survivorship annuity, providing for the payment of an annuity to him as long as he lived and payment of fifty percent of the annuity to his wife Jill. He did not choose the option (Plan D), which would have provided one hundred percent of an annuity to his wife.
David executed the paperwork selecting Plan A on October 27, 1997. Eight days later he was dead, having committed suicide. He had yet to receive his first check from PERS.
Jill Buzzard was appointed executor of David’s estate and attempted to change the options from Plan A to Plan D. PERS refused. Hence, the lawsuit was filed.
The trial court granted summary judgment for PERS. The majority of this panel affirms that judgment. I am not convinced that the facts and law dictate that result.
No doubt exists that had David Buzzard been thinking clearly he could have chosen Plan D for the benefit of his wife. No doubt exists that had he been thinking clearly he could have modified his option of choice right up to the moment of his death because the statutes governing the PERS allow a member to change options prior to benefits actually being received. The question to be resolved is what PERS can do in those situations where a member places himself or herself (or is placed) in a radically different position after initially choosing an option.
What happens when a member is rendered comatose before the first benefit check arrives? Can a guardian modify the option to cause the benefit to conform
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to what the member would have desired had the member been able to choose? What happens when a member, horribly depressed at the unforeseen changes in life, commits suicide? Can a beloved surviving spouse make the change in options the member would have wanted? I believe the answer to these questions is “yes.”
Central to this lawsuit is the interpretation of R.C. 145.46. R.C. 145.46(A) provides that a plan of payment becomes effective only if approved by the Public Employees Retirement Board. R.C. 145.46(G) states:
“A retirant’s receipt of the first month’s retirement allowance constitutes the retirant’s final acceptance of the plan of payment and may be changed only as provided in this chapter.”
Both of these sections make it clear the payment options are not fixed as of the time the member/retirant executes an application for retirement.
Under the facts of this case, the retirant never received the first month’s retirement allowance, so final acceptance of the plan of payment never occurred. Because final acceptance never occurred, I believe that the plan of payment can be changed.
PERS defends its refusal to allow Jill Buzzard to change the payment option from Plan A to Plan D based upon Ohio Adm.Code 145-15-01 (A), which reads:
“If a member has filed an application for retirement pursuant to section 145.32, 145.33, 145.331,145.34,145.37 or 145.46 of the Revised Code and his death occurs subsequent to the effective retirement benefit date, the beneficiary and benefit payable shall be determined by the plan of payment and beneficiary designated by the member on the application for retirement benefits.”
I believe that Ohio Adm.Code 145-15-01(A) conflicts with R.C. 145.46 because it redefines “final acceptance” from the date of receipt of benefits to the date of death of the member. Ohio Adm.Code 145-15-01(A) also appears to ignore the import of R.C. 145.46(A) that a plan of payment shall be effective only upon approval by the board.
I would construe R.C. 145.46(G) to mean that acceptance of the first month’s retirement allowance by the member or the member’s duly appointed legal representative (guardian, executor or administrator) constitutes final acceptance of the plan of payment on behalf of the member. However, until such final acceptance has occurred, the payment plan can be modified by the member or member’s duly appointed legal representative — subject to acceptance by the Public Employees Retirement Board under R.C. 145.46(A).
In short, I would find that Jill Buzzard had the power to do what she attempted to do and that PERS had the legal duty to accept her modified
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application for retirement in regard to David Buzzard’s account. I, therefore, would grant her the relief she seeks. Because the majority of this panel does not do so, I respectfully dissent.