ALLISON L. FARMER, ET AL. v. RENEE S. BERRY, ET AL.
No. 98119
Court of Appeals of Ohio, EIGHTH APPELLATE DISTRICT, COUNTY OF CUYAHOGA
October 25, 2012
2012-Ohio-4940
Cuyahoga County Court of Common Pleas Case No. CV-743866
Clifford C. Masch
Adam M. Fried
Brian C. Lee
Reminger Co., LPA
101 West Prospect Avenue
Suite 1400
Cleveland, Ohio 44115
ATTORNEYS FOR APPELLEES
David M. Gareau
Michael R. Gareau & Assoc. Co., LPA
23823 Lorain Road
Suite 200
North Olmsted, Ohio 44070
Richard W. Dunson
Dunson & Dunson
21851 Center Ridge Road
Suite 410
Rocky River, Ohio 44116
For Ohio Public Employees Retirement System
Mike DeWine
Ohio Attorney General
By: Matthew T. Green
Assistant Attorney General
30 East Broad Street
26th Floor
Columbus, Ohio 43215-3428
{¶1} This case presents the novel issue of who has the authority to complete, sign, and submit an application for retirement benefits under the Ohio Public Employees Retirement System (“OPERS“). Defendant-appellant Renee S. Berry (“Berry“) argues that an attorney, acting on a retirant‘s behalf, has such authority, even if the retirant has not given that attorney written permission. Plaintiffs-appellees Allison Farmer, Christopher Farmer, Brett Farmer (“the Farmers“), and OPERS (collectively “appellees“) argue that only the retirant, a person to whom the retirant has granted a written power of attorney, or a court-appointed guardian has the requisite authority. We agree with the appellees: the
{¶2} In the present case, the OPERS retirement application was not completed, signed, and submitted by a person in one of these three categories. The trial court granted summary judgment to OPERS on this basis and denied Berry‘s motion for summary judgment. We affirm the trial court‘s final judgment.
{¶3} The parties have stipulated to the facts. The Farmers are Donald Farmer‘s (“Farmer“) adult children. Berry was Donald‘s ladyfriend. The online electronic system
{¶4} The Farmers filed a complaint in the trial court against Berry and OPERS, seeking a declaratory order that Berry was not the lawful beneficiary of Donald‘s OPERS benefits.1 Berry answered and cross-claimed against OPERS. Berry sought a
{¶5} In the course of the pleadings, it was discovered that Donald did not physically complete, sign, or submit his retirement application. In response, OPERS voided the retirement application and cross-claimed against Berry to recoup the benefit payments that OPERS had already disbursed.
{¶6} Berry and OPERS submitted cross-motions for summary judgment on the validity of the retirement application and beneficiary designation. Berry attached an affidavit from Donald‘s attorney in support of her motion for summary judgment. Both the Farmers and OPERS filed motions to strike, claiming the affidavit contained inadmissible hearsay and requesting that certain paragraphs be stricken. The trial court granted the motions and struck the entire affidavit.
{¶7} The trial court denied Berry‘s motion for summary judgment and granted OPERS‘s motion for summary judgment. The trial court determined that the application was legally deficient because Donald‘s attorney was not Donald‘s legal guardian, nor did she possess a written power of attorney to act on his behalf.
{¶8} Berry filed her notice of appeal from the trial court‘s entry of final judgment, and presents three assignments of error for review.
- The trial court improperly granted the motion for summary judgment filed by defendant-appellant OPERS because, as a matter of law, the governing statutes and case law permit Donald Farmer‘s attorney to validly file and submit his retirement application and beneficiary designation with OPERS.
The trial court improperly denied the motion for summary judgment filed by appellant Berry because, as a matter of law, the governing statutes and case law permit Donald Farmer‘s attorney to validly file and submit his retirement application and beneficiary designation with OPERS. - The trial court improperly granted the motions to strike portions of the affidavit of [Donald‘s attorney] filed by OPERS and the Farmers as the affidavit did not contain inadmissible hearsay and only specific paragraphs of the affidavit were to be stricken, not the affidavit in its entirety.
{¶9} We overrule the first two assignments of error, and we need not address the third assignment of error because it is moot. Accordingly, we affirm the trial court‘s final judgment granting summary judgment for OPERS and denying summary judgment for Berry.
{¶10} We consider the first two assignments of error together as the analysis involved is the same. Summary judgment rulings are reviewed de novo. Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 105, 671 N.E.2d 241 (1996). Summary judgment is appropriate when there is no genuine issue as to any material fact; (1) the moving party is entitled to judgment as a matter of law; and (2) reasonable minds can come to but one conclusion, and that conclusion is adverse to the party against whom the motion for summary judgment is made, who is entitled to have the evidence construed most strongly in his favor.
{¶12} OPERS is a creature of statute and can only pay benefits pursuant to its governing statutes.2 Cosby v. Cosby, 96 Ohio St.3d 228, 2002-Ohio-4170, 773 N.E.2d 516, ¶ 19; Hansford v. Pub. Emps. Ret. Sys., 170 Ohio App.3d 603, 2007-Ohio-1242, 868 N.E.2d 708, ¶ 9 (10th Dist.) (“[U]nless its governing statutes grant the authority, OPERS is powerless to perform the act.“).
{¶13} Under
{¶14}
{¶15} OPERS‘s interpretation is further supported by contrasting
{¶16} Berry argues that Donald did not need to grant Donald‘s attorney a power of attorney because she was merely inputting data, signing the form, and submitting it according to his specific wishes. On this view, Donald‘s attorney was performing mere ministerial duties; she was not making decisions on Donald‘s behalf. It follows that Donald was actually the one who completed the application. While Berry‘s position is not far-fetched, we are constrained to defer to OPERS‘s reasonable interpretation of its governing statutes and administrative rules. Under OPERS‘s interpretation, explained above, when the statute and rules direct that only the member or his attorney-in-fact must complete, sign, and submit the application, this does not mean that another person can fill out this information as directed by the member.
{¶17} Because OPERS‘s interpretation is reasonable, we reject Berry‘s argument. If the General Assembly decides that a member may have another person input data at the member‘s direction, and then sign, and submit the application for the member, all without the written permission of the member, then the General Assembly can amend the statute to make this clear. Until then, OPERS‘s interpretation stands.
{¶18} Giving due deference to OPERS‘s interpretation of its governing rules, we similarly reject Berry‘s argument that the trial court misinterpreted and misapplied
Unless expressly authorized by the language in a power of attorney or in division (F) of this rule, guardianship of the estate shall be required and the guardian shall obtain a court order approving the initial plan selection under section 145.19 of the Revised Code, change of retirement plan, selection of a plan of payment, designation of a beneficiary, or application for and receipt of a refund if the recipient is eighteen years of age or older and suffers from a legal disability as defined in division (B), (C), or (D) of section 2131.02 of the Revised Code.
{¶19} According to OPERS, when read with the rest of the rule, it becomes obvious that this subsection applies only to a unique set of circumstances inapplicable to this case. Subsection (C) states that a recipient under the age of eighteen must have a guardian to apply for survivorship benefits. These two subsections apply to two unique sets of circumstances: subsection (B) applies where the member, contributor, retirant, or beneficiary is over eighteen and disabled, and subsection (C) applies where the member, contributor, retirant, or beneficiary is under eighteen. Both of these subsections require that the member, contributor, retirant, or beneficiary obtain a power of attorney or guardian. OPERS argues that neither of these subsections are applicable in this case.
{¶21} OPERS‘s view is that the rule, when viewed as a whole, means that if a member is over eighteen and is not legally disabled, then the member is not required to delegate his responsibilities to a third party, but if he wishes to do so, he must first execute a power of attorney. In contrast, Berry submits that the rule means that because Donald is over eighteen, he would need an attorney-in-fact only if he was disabled. Once again, we defer to OPERS‘s interpretation of its governing rules so long as the interpretation is reasonable. Because we find that OPERS has provided a reasonable interpretation of
{¶22} We easily dismiss Berry‘s contention that there is no statutory authority requiring that Donald had to complete, sign, and submit the application himself. In support of her position, Berry makes much of the fact that the statute was drafted before members were able to file applications online. We fail to see how this is relevant, because an online application still requires the member to provide the requisite
{¶23} Finally, we reject Berry‘s attempt to liken the present case to the Tenth District‘s decision in Poliseno v. Mitchell, 10th Dist. No. 09AP-1002, 2010-Ohio-2615. Berry asserts that Poliseno stands for the proposition that a third party who does not have power of attorney can file an OPERS retirement application on a member‘s behalf. Poliseno is inapposite for several reasons. First, that case did not involve a retirement application under
{¶24} Even if this case did involve the same statute, it still would not support Berry‘s argument. In Poliseno, the member had reversed the order of the beneficiary‘s name on the application and then corrected the name by crossing out the reversed names and putting them in the proper order. The member did not use a new designation form. Poliseno at ¶ 4. The member signed the form in the presence of two witnesses.
{¶25} OPERS intake staff initially rejected the form due to the alteration. The member‘s son received permission from OPERS staff to send an unaltered copy of the third page of the Beneficiary Designation. OPERS senior staff reviewed the original application that had been rejected, and ultimately approved the application based on the original, altered form signed by the member.
{¶26} The court upheld OPERS‘s decision to accept the member‘s original, altered form that was unquestionably signed and executed by the member. In contrast, in the case at bar, the application was not signed by Donald. Further, OPERS‘s decision to
{¶27} We conclude that OPERS‘s interpretation of its governing statutes and rules is not inconsistent with the language of the statutes and rules themselves, and is, therefore, reasonable. Accordingly, we defer to OPERS‘s interpretation. We conclude that OPERS acted within its discretion in determining that Donald‘s application was void because he did not physically complete, sign, and submit the application, nor did he give Donald‘s attorney written authority to do so on his behalf. We, therefore, overrule Berry‘s first two assignments of error.
{¶28} In her third assignment of error, Berry argues that the trial court erred in striking Donald‘s attorney‘s affidavit as inadmissible hearsay. Donald‘s attorney‘s affidavit averred that she was retained by Donald to assist him with his estate planning, and that she filled out, signed, and submitted the application and designation at Donald‘s request. Even if we determined that this affidavit was admissible in its entirety, we would still conclude that the application and designation were void. As discussed earlier, the statutes make clear that the application could be completed only by Donald himself or by an attorney-in-fact. The affidavit, if admissible, would only substantiate that neither of these conditions were satisfied. Accordingly, the third assignment of error is moot and we decline judgment.
{¶29} This is a difficult case, because we are left wondering whether Donald‘s final wishes are being honored with regards to who receives his retirement benefits. But
{¶30} Under the current statutory scheme, if a member wants another person to complete, sign, and submit his OPERS retirement application, he must execute a written instrument granting that person power of attorney. Otherwise, the application is void. Accordingly, we affirm the trial court‘s final judgment granting OPERS‘s motion for summary judgment and denying Berry‘s motion for summary judgment.
It is ordered that appellees recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate be sent to said court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
KENNETH A. ROCCO, JUDGE
LARRY A. JONES, SR., P.J., and
MARY EILEEN KILBANE, J., CONCUR