BUZZARD, Executor, Appellant, v. PUBLIC EMPLOYEES RETIREMENT SYSTEM OF OHIO, Appellee, 139 Ohio App. 3d 632

Petree, Judge. On June 8,1998, plaintiff, Jill Buzzard, executor of the estate of David Buzzard, filed a complaint for a mandatory injunction, or, in the alternative, for a writ of mandamus against defendant, Public Employees Retirement System of Ohio. On March 15, 1999, defendant filed a motion for

summary judgment. Defendant’s motion was granted by the trial court on June 15, 1999. The facts of this action were set forth by the trial court as follows: “David B. Buzzard * * * plaintiffs husband, was an employee of Cincinnati State Technical and Community College and was a member of PERS. Following allegations of theft, however Buzzard’s employment with the College was terminated. His last day of work was October 22,1997. “Buzzard filed an application for age and service retirement benefits with PERS on October 28, 1997.

On the application form, Buzzard requested, from among five choices, a retirement plan designated ‘Plan A.’ The provisions of Plan A were as follows: “A joint survivorship annuity providing for the payment of an annuity to me as long as I live and thereafter one-half (50 percent) of such annuity to my spouse if he/she survives me for as long as he/she lives. (When Plan A is selected, your spouse must sign the SPOUSES STATEMENT in the following AFFIDAVIT section.) (If you would like a percentage other than 50, see PLAN C or D below). “ * * * The form which sets forth the various retirement Plans further specifies that the member may change his or her selection, or beneficiary, at any time prior to receiving the first benefit payment.

Buzzard selected Plan A and designated plaintiff as his beneficiary. [Footnote omitted.] Plaintiff signed the Spouse’s Statement as required by the language of Plan A. “Buzzard committed suicide on November 4, 1997. On November 18, 1997, defendant informed plaintiff that she had been designated as Buzzard’s beneficiary and would begin receiving benefits pursuant to Plan A. “Plaintiff subsequently contacted PERS and attempted to change the retirement plan under which she would be receiving benefits.

Plaintiff contended that because neither she nor decedent had yet cashed any benefits checks, she should be able to change the retirement plan in order to receive a greater percentage of the annuity to which decedent was entitled or, indeed, the entire amount. PERS refused to allow plaintiff to change the retirement plan, however, stating that only the member who selected the retirement plan was eligible to change said plan, regardless of whether checks issued under a particular plan had been cashed or not.

Plaintiff subsequently initiated the instant action.” As noted, the trial court granted the defendant’s motion for

summary judgment. Plaintiff now appeals raising the following two assignments of error: “[I.] The trial court erred in granting

summary judgment for the Defendant and holding that the decedent possessed the requisite mental capacity at the time he completed his application of benefits under the Public Employees Retirement System, R.C. 145.01 et seq.” “[II.] The trial court erred in granting

summary judgment for the Defendant and holding that the executrix of the decedent’s estate could not elect to change the payment option the decedent had selected on his application for benefits from the Public Employees Retirement System, where the executrix sought to make such a change before the decedent had received or cashed his first benefit warrant.” A Civ.R. 56 motion for

summary judgment is a procedural device designed to terminate litigation where a resolution of factual disputes is unnecessary. When presented with an appeal from either the grant or disallowance of a motion for

summary judgment, this court applies the same standard applied by the trial court and considers the motion as if it had been presented to this court for the first time. Grafton v. Ohio Edison Co. (1996), 77 Ohio St.3d 102, 671 N.E.2d 241. Under both the federal and Ohio rules of civil procedure, in order to obtain

summary judgment, a party must establish (1) that there is no genuine issue as to any material fact, (2) that reasonable minds can come to but one conclusion, which is adverse to the nonmoving party, and, thus (3) that the party is entitled to judgment as a matter of law. Harless v. Willis Day Warehousing (1978), 54 Ohio St.2d 64, 8 O.O.3d 73, 375 N.E.2d 46. A party moving for

summary judgment must establish the lack of a genuine issue of material fact concerning each of the elements of his or her opponent’s case. Civ.R. 56(C). See, also, Dresher v. Burt (1996), 75 Ohio St.3d 280, 292, 662 N.E.2d 264, 265. In order to carry this burden, the Ohio Supreme Court has explained that, “the movant must be able to point to evidentiary materials, of the type listed in Civ.R. 56(

C) that a court is to consider in rendering

summary judgment.” Id. In determining whether a genuine question of material fact exists, a court is always obligated to view the evidence presented in the light most favorable to the nonmoving party. Temple v. Wean (1977), 50 Ohio St.2d 317, 4 O.O.3d 466, 364 N.E.2d 267. However, provided the moving party has satisfied the three-part inquiry set forth above, the nonmoving party is not permitted to rest upon the allegations or denials contained in his or her pleading, but must come forth with specific facts showing the existence of a genuine issue for trial. Civ.R. 56(E); Wing v.

Anchor Media, Ltd. (1991), 59 Ohio St.3d 108, 111, 570 N.E.2d 1095, 1099, following Celotex v. Catrett (1986), 477 U.S. 817, 106 S.Ct. 2548, 91 L.Ed.2d 265. Having applied the relevant law to the facts of this case, we conclude that

summary judgment in favor of the defendant was appropriate. After a careful review of the record, this court has been unable to find any admissible evidence that would raise a genuine issue of material fact concerning whether the decedent lacked the capacity to contract at the time he made the election to receive his retirement payout. It is well settled that in the context of a motion for

summary judgment, both the moving and nonmoving party, if necessary, must direct the court’s attention to evidentiary materials of the type listed in Civ.R. 56. Civ.R. 56(

C) sets forth a limited list of material that may be considered when ruling upon a motion for

summary judgment. Spier v. Am. Univ. of the Caribbean (1981), 3 Ohio App.3d 28, 3 OBR 29, 443 N.E.2d 1021. Specifically, as provided by Civ.R. 56(C),

summary judgment is appropriate only when it may be determined from “the pleadings, depositions, answers to interrogatories, written admissions, affidavits, transcripts of evidence, and written stipulations of fact, if any * * * that there is no genuine issue as to any material fact.” Although it may at first appear that Civ.R. 56(

C) sets forth an exclusive list of material that may be considered, in the event that a document is not one of the listed types, it may be introduced as proper evidentiary material if incorporated by reference in a properly framed affidavit. Martin v. Central Ohio Transit Auth. (1990), 70 Ohio App.3d 83, 89, 590 N.E.2d 411, 415; Biskupich v. Westbay Manor Nursing Home (1986), 33 Ohio App.3d 220, 515 N.E.2d 632. The Biskupich court explained: “The proper procedure for introducing evidentiary matter not specifically authorized by Civ.R. 56(

C) is to incorporate it by reference in a properly framed affidavit pursuant to Civ.R. 56(E). See, e.g., State ex rel. Corrigan v. Seminatore (1981) 66 Ohio St.2d 459, 467 [20 O.O.3d 388, 393, 423 N.E.2d 105, 111], * * * (‘The requirement of Civ.R. 56(

E) that sworn or certified copies of all papers referred to in the affidavit be attached is satisfied by attaching the papers to the affidavit, coupled with a statement therein that such copies are true copies and reproductions.’)” Id. at 222, 515 N.E.2d at 634. In this case, plaintiff failed to submit any evidence of the type specifically listed in Civ.R. 56(

C) in response to the defendant’s properly supported motion for

summary judgment. Plaintiff also failed to properly incorporate the evidentiary material that was actually submitted in response to the defendant’s motion. Below, and now on appeal, plaintiff relies upon two letters that were typed and allegedly signed by her late husband. While plaintiff maintains these letters raise an issue of fact as to the decedent’s capacity to contract at the time he made the election to receive his retirement benefits, no weight can be given to these letters as they have not been authenticated, are not a type of documentary evidence enumerated in Civ.R. 56(C), nor have they been properly incorporated into the record by way of affidavit. Again, Civ.R. 56(

C) clearly provides that “[n]o evidence or stipulation may be considered except as stated in this rule.” An individual who has not been adjudicated as mentally incompetent in a court of law is presumed to be in fact competent. Davis v. Marshall (Aug. 9, 1994), Franklin App. No. 94APE02-158, unreported, 1994 WL 425169. In this case, absent evidence showing that the decedent was adjudicated incompetent or admissible evidence raising a genuine issue of fact as to the decedent’s competency, we find that

summary judgment in the defendant’s favor was appropriate. Accordingly, plaintiffs first assignment of error is not well taken. In her second assignment of error, plaintiff argues that the trial court erred when it concluded that she was not able to change the payment option selected by her husband prior to his death.

While the ability to change the payment option selected by the decedent would clearly benefit the plaintiff, there is simply no support for the plaintiffs assertion that a beneficiary or executor of an estate is allowed to change the payment option selected by a member of the defendant’s retirement system. In State ex rel. Horvath v. State Teachers Retirement Bd. (1998), 83 Ohio St.3d 67, 697 N.E.2d 644, the Ohio Supreme Court explained that the nature and extent of a member’s property rights in the defendant’s retirement system are determined solely by the statutes and regulations that govern that system.

The election of a payout plan for a retirement account with the defendant is governed by R.C. 145.46. That

section allows members of the defendant’s system to choose the plan of payment for the receipt of their benefits. A “member” of the defendant’s system is defined as “any public employee, other than a public employee excluded or exempted from membership in the retirement system.” R.C. 145.01(B). A “beneficiary,” however, is defined as “the estate or a person or persons who, as the result of the death of a member, contributor, or retirant, qualify for or are receiving some right or benefit under this chapter.” R.C. 145.01(G).

While R.C. 145.46 allows a member to change the plan of payment under certain circumstances, it does not allow a beneficiary or executor to change a member’s selection. Indeed, Ohio Adm.Code 145-15-01(

A) provides that: “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.” As set forth in plaintiffs complaint, the decedent’s last date of employment was October 22, 1997. On October 28, 1997, the decedent filed his application for retirement benefits with the defendant. Pursuant to R.C. 145.32, the decedent’s retirement was then effective on November 1, 1997. On November 4, 1997, the decedent died. Therefore, Ohio Adm.Code 145-15-01(

A) is directly applicable to the situation at hand. Under Ohio law, “[mjandamus is a writ, issued in the name of the state to an inferior tribunal, a corporation, board, or person, commanding the performance of

an act which the law specially enjoins as a duty resulting from an office, trust, or station.” R.C. 2731.01. As set forth in State ex rel. Hattie v. Goldhardt (1994), 69 Ohio St.3d 123, 630 N.E.2d 696, in order to obtain a writ of mandamus, the party seeking the writ must demonstrate (1) that he or she has a clear legal right to the relief requested, (2) that the party to whom the writ will be issued has a clear legal duty to grant or provide the relief requested, and (3) that he or she has no adequate remedy at law by which to obtain or enforce the claimed right. Id. at 125, 630 N.E.2d at 698.

Similarly, to be entitled to the extraordinary equitable remedy of a mandatory injunction, the moving party must establish that a vested right has been abridged, infringed upon, or eliminated. State ex rel. Pressley v. Indus. Comm. (1967), 11 Ohio St.2d 141, 40 O.O.2d 141, 228 N.E.2d 631. That party must also show by clear and convincing evidence that immediate and irreparable harm will result if the injunction is not granted, and that no adequate alternative remedy at law exists. Lemley v. Stevenson (1995), 104 Ohio App.3d 126, 136, 661 N.E.2d 237, 244.

Irreparable injury is one for which there is no plain, adequate, and complete remedy at law, and for which money damages would be impossible, difficult, or incomplete. Cleveland v. Cleveland Elec. Illum. Co. (1996), 115 Ohio App.3d 1, 12, 684 N.E.2d 343, 350. Plaintiff has not come forward with evidence that shows she has a clear legal right to the relief requested, or that the defendant has a clear legal duty to provide that relief. As such, she has not demonstrated her entitlement to a writ of mandamus.

Plaintiff also has not demonstrated that a vested right has been abridged, nor has she come forward with clear and convincing evidence that immediate and irreparable harm will result if an injunction is not issued. Accordingly, plaintiff has also failed to demonstrate that she is entitled to a mandatory injunction. Therefore, plaintiffs second assignment of error is not well taken. For the foregoing reasons, both of plaintiffs assignments of error are overruled, and the judgment of the Franklin County Court of Common Pleas is affirmed. Judgment affirmed. Peggy Bryant, J., concurs. Tyack, J., dissents.