Ruf v. Ohio Pub. Emps. Retirement Sys. ( 2021 )

[Cite as Ruf v. Ohio Pub. Emps. Retirement Sys., 2021-Ohio-4389.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
Christine S. Ruf, :
Relator-Appellant, : No. 20AP-330
(C.P.C. No. 19CV-1684)
v. :
(REGULAR CALENDAR)
Ohio Public Employees Retirement :
System,
:
Respondent-Appellee.
:
D E C I S I O N
Rendered on December 14, 2021
On brief: Oberholtzer & Filious, L.P.A., and John C.
Oberholtzer, for appellant. Argued: John C. Oberholtzer.
On brief: Dave Yost, Attorney General, Isaac Molnar, and
Mary Therese J. Bridge, for appellee. Argued: Samuel A.
Peppers.
APPEAL from the Franklin County Court of Common Pleas
SADLER, J.
{¶ 1} Relator-appellant, Christine S. Ruf, appeals a judgment entered by the
Franklin County Court of Common Pleas denying appellant's request for a writ of
mandamus ordering respondent-appellee, Ohio Public Employees Retirement System
("OPERS"), to stop withholding payments from her retirement account and to refund any
monies withheld. Because appellee is statutorily required to recoup overpayments arising
from appellant's son enrollment in the incorrect OPERS health care plan, appellant is not
entitled to the requested writ and we affirm the trial court judgment.
No. 20AP-330 2
I. FACTS AND PROCEDURAL HISTORY
{¶ 2} Appellant began receiving an OPERS retirement benefit in 1999. At that
time, appellant's adult, permanently disabled son was eligible for health care coverage
through OPERS as her dependent, and appellant enrolled him in the "OPERS Health Care
Plan." (Cert. Record at 7.) Appellant does not dispute that her son was then enrolled in
Medicare, beginning in 2001. (Appellant's Brief at 8, 18; Reply Brief at 9, 15-17.)
{¶ 3} By letter dated April 4, 2014, appellee asked appellant to validate her son's
eligibility in the OPERS Health Care Plan. In response, appellant sent appellee a letter
stating that her son "is still disabled and receiving Social Security Disability benefits" and
that he had been eligible for those benefits since 2001. (Cert. Record at 44.) Appellant
attached to the letter two statements from the Social Security Administration dated
November 2008 and April 2013 showing the cash benefit her son received, and two notices
dated December 2003 and March 2012 from the Social Security Administration finding her
son's disability "continuing" and explaining that benefits recipients could work during a
"trial work period(s)" and continue to receive disability payments as well as "[c]ontinuation
of Medicare" coverage. (Cert. Record at 48-50, 53-55.) Appellant additionally attached a
page from what appears to be a 2014 notice or statement from the Social Security
Administration explaining an adjustment to her son's benefit amount. (Cert. Record at 48,
53.) The 2014 document states, in pertinent part:
How much Will I Get And When?
● Your monthly amount (before deductions) is $850.00
● The amount we deduct for Medicare medical insurance is $0.00
(If you did not have Medicare as of Nov. 14, 2013, or if someone else
pays your premium, we show $0.00.)
● The amount we deduct from your Medicare prescription drug plan is $0.00
(If you did not elect withholding as of Nov. 1, 2013, we show $0.00.)
(Cert. Record at 57.) Based on the information provided, appellee confirmed appellant's
son was eligible to continue coverage in the OPERS health care plan.
{¶ 4} Effective January 1, 2016, a change in the OPERS administrative code
required all benefit recipients and dependents to enroll in Medicare Parts A and B at the
first eligible date and provide OPERS with evidence of the Medicare enrollment within 30
days. See Ohio Adm.Code 145-4-30(G). The benefit recipient's eligibility for Medicare
disqualified him or her from receiving the OPERS Health Care Plan under Ohio Adm.Code
No. 20AP-330 3
145-4-30 but the recipient could still receive a monthly allowance through a Health
Reimbursement Arrangement ("HRA") account. Ohio Adm.Code 145-4-30(A) and (G);
Ohio Adm.Code 145-4-60(C).
{¶ 5} The 2016 OPERS health care open enrollment statement sent to appellant
directed Medicare participants to review a section explaining the HRA. The HRA section
explains that OPERS recipients and/or dependents enrolled in Medicare Parts A and B
must enroll in an individual Medicare medical plan through the OPERS "Medicare
Connector" to receive a monthly allowance from OPERS. In bold, it states, "[i]f you fail to
enroll, you will not have any group medical or prescription coverage" for the upcoming year.
(Cert. Record at 37.) In a chart describing coverage options, the document states,
[p]articipants under age 65 and not eligible for Medicare will
be enrolled in the OPERS Retiree Health Plan administered by
Medical Mutual. Eligible participants (recipient, spouse
and/or eligible children) who are enrolled in Medicare Parts A
and B, excluding re-employed retirees and their spouses, will
receive a monthly deposit into a Health Reimbursement
Arrangement (HRA) account. This will only occur upon
enrollment in a medical plan offered through the OPERS
Medicare Connector administered by OneExchange.
***
Note:
***
● In order to receive a monthly HRA deposit, a participant must
be enrolled in Medicare Parts A and B and enroll in an
individual medical plan through OneExchange.
(Cert. Record at 38.) The document also noted that appellee's records showed that
appellant would soon turn 65 and be eligible for Medicare Parts A and B, and that upon that
occurrence she "must enroll in Medicare Parts A and B and select an individual medical
plan through OPERS Medicare Connector in order to receive a monthly HRA allowance
from OPERS" and that failure to do so would result in not having any group medical or
pharmacy coverage available through OPERS. (Cert. Record at 38.)
{¶ 6} A 2017 OPERS health care open enrollment statement showed appellant had
enrolled in an HRA, but her son had not; he continued to be enrolled in a group health care
plan through Medical Mutual. The document again states, "Participants not-yet-eligible for
Medicare will be enrolled in the OPERS Retiree Health Plan administered by Medical
No. 20AP-330 4
Mutual. Participants enrolled in Medicare Parts A and B * * * will receive a monthly deposit
into an HRA. Enrollment in a medical plan * * * is required to receive an HRA allowance."
(Cert. Record at 34.) The document further notes that a person enrolled in Medicare Parts
A and B and enrolled in the corresponding OPERS medical plan and receiving an HRA
allowance "will not be eligible for the OPERS group medical pharmacy/plan." (Cert. Record
at 34.)
{¶ 7} A 2018 OPERS health care open enrollment statement again showed
appellant enrolled in an HRA and her son enrolled with Medical Mutual. The statement
includes the same description of coverage as the 2017 statement, noted above.
{¶ 8} By letter dated May 15, 2018, appellee asserted it had received information
that appellant's son is eligible to participate in the Medicare program. Appellee required
appellant to provide appellee certain information, including a Social Security
Administration statement with her son's Medicare approval date and effective dates of
coverage, to avoid termination of appellant's son's medical enrollment. Appellant provided
appellee with a 2018 Social Security Administration statement that showed her son was
eligible for Medicare beginning March 2001.
{¶ 9} Based on the documentation appellant provided, appellee determined that
appellant had failed to notify appellee of her son's enrollment in Medicare within 30 days
of receiving coverage as required by OPERS rules. Appellee terminated appellant's group
medical coverage, including enrolled dependents. The letter stated that such a termination
would be "effective June 1, 2016." (Cert. Record at 18-19.) Due to the coverage termination,
appellee determined that it overpaid prescription claims in the amount of $30,938.86 and
appellant overpaid health care premiums in the amount of $4,934.72, for a net remaining
balance of $26,004.14 owed to appellee. According to the letter, appellant could repay the
amount by check, or appellee would begin deducting monthly amounts from appellant's
retirement benefits.
{¶ 10} Appellant, through counsel, replied by letter asserting she notified appellee
in 2014 about her son, and, if appellee did not place him in the correct plan, that error
should be "placed upon" appellee. (Cert. Record at 16.) Appellee replied to appellant that,
in 2016, pursuant to administrative rules, her son was no longer eligible to participate in
the OPERS Health Care Plan since he was eligible for Medicare Parts A and B, and she was
No. 20AP-330 5
required to enroll him in a health care plan through the OPERS Connector to be eligible to
receive a monthly HRA allowance. Appellee further explained that it was required by
statute to recover the resulting overpayment from her retirement benefits. Appellee sent
appellant notices outlining the change in her benefits.
{¶ 11} Appellant filed an initial complaint against appellee on February 26, 2019
seeking declaratory and injunctive relief. Appellee moved to dismiss the complaint, and, in
response, appellant filed an amended complaint on April 25, 2019 adding claims for
mandamus and monetary relief. In her mandamus claim, appellant asserted:
In 2014, Defendant had a duty to inform the Plaintiff that she
was to enroll in and provide the Defendant with evidence of the
Child's Medicare coverage after she sent them documentation
that supported her Child's disability, Social Security Disability
Benefits, and Medicare medical insurance.
Defendant had a duty to instruct Plaintiff that the Child was to
be placed on a correct plan for Medicare.
***
WHEREFORE, the Plaintiff prays that * * * a writ of mandamus
be issued directing the Defendant to stop withholding
payments and to refund any monies withheld.
(Am. Compl. at 3-4.)
{¶ 12} Appellee moved to dismiss the amended complaint. The trial court dismissed
appellant's claims for injunctive, declaratory, and monetary relief and preserved the
mandamus claim.
{¶ 13} On September 3, 2019, the parties filed a joint motion for a briefing schedule
requesting the trial court update the schedule to reflect that only the mandamus claim
remained. The memorandum in support explained that mandamus cases are decided
based upon the administrative record, and that if the motion was granted, appellee would
"file the certified record within twenty-one days thereafter[.]" (Sept. 3, 2019 Joint Mot.
at 2.) Based on the joint motion, the trial court amended the case schedule to include an
October 18, 2019 deadline for filing the certified administrative record and initial
November briefing deadlines.
{¶ 14} Appellee filed a certified record of the administrative proceedings on
October 16, 2019. About a week later, appellant moved to supplement the record with three
exhibits. Appellee supplemented the certified record on November 5, 2019, and appellant
No. 20AP-330 6
withdrew her motion to supplement. Upon the agreement of the parties, the trial court
extended the briefing deadlines to December and a non-oral hearing date to January 2,
2020.
{¶ 15} On December 3, 2019, appellant filed a brief asserting R.C. 2731.06 required
a "peremptory mandamus or an alternative writ." (Dec. 3, 2019 Brief at 1.) Within it,
appellant argued that appellee "accrued no overpayment from respondent"; appellant
"sufficiently notified [appellee] of her son's enrollment in Medicare" in 2014; and appellant
"did not have a statutory duty to enroll in medical coverage through the OPERS connector."
(Capitalization adjusted.) (Dec. 3, 2019 Brief at 4-5.)
{¶ 16} The same day, appellant filed a motion to supplement the record with her
own affidavit. Appellee objected to appellant's motion and also filed a separate brief in
opposition to the merits of appellant's request for mandamus. In its brief in opposition,
appellee argued that appellant could not be entitled to a writ of mandamus to compel
appellee to repay the amounts that appellee was required, by statute and its rules, to recoup,
and that appellant failed to demonstrate the requirements of mandamus were met.
{¶ 17} Appellant filed a reply, noting she would "not add any factual allegations" in
her brief and "the certified record reflect[s] all the factual information necessary for [the
trial court] to render a decision in this case." (Dec. 30, 2019 Reply at 2.) Appellant then
argued that she had "satisfied her burden of informing OPERS with all relevant information
necessary for OPERS to select the appropriate plan for [her son] at their discretion," that
appellee "fails to point to any statute or duty that compels [appellant] to disenroll her son
in one plan and reenroll him in another," and that appellee "failed to notify [appellant] that
her son was required to change plans." (Reply at 3-4.) Finally, appellant argued, "in the
alternative, [the trial court] can also render a decision in [appellant]'s favor, based on
constitutional grounds" since appellee's "conduct in repeatedly failing to sufficiently notify
the Petitioner of her son's lapse in eligibility in their medical plan and then retroactively
applying a recoupment without sufficient warning constitutes a violation of procedural due
process." (Reply at 4.)
{¶ 18} Appellee moved to strike appellant's constitutional due process argument
since appellant had not raised this argument in the amended complaint or her opening brief
and instead improperly raised this argument for the first time in her reply brief. Appellant
No. 20AP-330 7
replied contending the reply brief "merely reframes th[e] notice argument within a
constitutional lens to rebut the arguments raised in [appellee's] Brief." (Jan. 9, 2019 Obj.
to Mot. to Strike at 3.)
{¶ 19} On February 4, 2020, the parties filed a "joint motion to vacate remaining
schedule," including future scheduled pretrial and trial dates. (Feb. 4, 2020 Joint Mot.
at 2.) The parties again asserted that "mandamus cases are decided based on the
administrative record," and the administrative record of this case had been submitted.
(Feb. 4, 2020 Joint Mot. at 2.) Therefore, the parties stated that the trial court "has all the
requisite information needed to render a decision on [appellant's] sole remaining claim."
(Feb. 4, 2020 Joint Mot. at 2.) The trial court thereafter vacated the original case schedule,
including the scheduled pre-trial and trial dates.
{¶ 20} On May 7, 2020, the trial court issued a decision and judgment entry denying
appellant's motion to supplement the record with her personal affidavit and denying
appellant's application for a writ of mandamus. In doing so, the trial court found appellant
essentially asserted that appellee abused its discretion in finding appellant accrued an
overpayment since, in her view, appellee had sufficient notice of her son's Medicare
enrollment and such notice required appellee to "unilaterally enroll" her son in the proper
plan. (Decision & Entry at 7.) The trial court concluded that that appellant failed to
demonstrate both that appellee denied her a clear legal right and that appellee had a clear
legal duty to perform as appellant requested.
{¶ 21} Appellant filed a timely appeal.
II. ASSIGNMENTS OF ERROR
{¶ 22} Appellant submits five assignments of error for our review:
1. The trial court erred, as a matter of law, because it abused
its discretion when it denied Appellant’s application for a
writ of mandamus.
2. The trial court erred, as a matter of law, when it denied
Appellant’s writ because in doing so, the court denied
Appellant constitutional due process under the law and in
the proceeding as outlined by Ohio Admin. Code 145-2-23.
3. The trial court erred, as a matter of fact, in denying
Appellant’s application for a writ of mandamus when it
determined that Appellant did not notify Appellee that her
son was on Medicare.
No. 20AP-330 8
4. The trial court erred, as a matter of law, in failing to give the
Appellant reasonable written notice of the intent to offer the
Certified Record into evidence and the Appellant a fair
opportunity to object to the Certified Record.
5. The trial court erred, as a matter of law, when it denied
Appellant's Motion to Supplement the Record with an
Affidavit.
III. STANDARD OF REVIEW
{¶ 23} "Mandamus is the appropriate remedy to challenge a decision by OPERS,
because there is no statutory right to appeal." State ex rel. Domhoff v. Ohio Pub. Emp.
Retirement Sys. Bd., 140 Ohio St.3d 284, 2014-Ohio-3688, ¶ 12. "To prevail in this
mandamus case, appellants must establish a clear legal right to the requested relief, a clear
legal duty on the part of OPERS to provide that relief, and the lack of an adequate remedy
in the ordinary course of the law." Id. at ¶ 13. "Appellants must prove that they are entitled
to the writ by clear and convincing evidence." Id.
{¶ 24} To show that they are entitled to the requested writ, appellants must
demonstrate that OPERS abused its discretion. Id. at ¶ 14; State ex rel. Sales v. Ohio Pub.
Emp. Retirement Bd., 156 Ohio St.3d 433, 2019-Ohio-1568, ¶ 14. In the context of a
mandamus action, OPERS abused its discretion if it entered an order that was not
supported by some evidence. State ex rel. Powell v. Ohio Pub. Emp. Retirement Sys.,
___Ohio St.3d___, 2021-Ohio-4030, ¶ 12. See, e.g., Hamby v. Ohio Pub. Emp.
Retirement Sys., 10th Dist. No. 08AP-298, 2008-Ohio-5068, ¶ 15 (explaining that to
determine whether appellant has a clear legal right to a writ of mandamus, the court must
determine whether the retirement system abused its discretion by entering a decision that
is not supported by "some evidence.").
{¶ 25} An appellate court is tasked with reviewing the decision of the trial court to
determine if it abused its discretion in denying the writ. State ex rel. Ewart v. State
Teachers Retirement Sys. Bd. of Ohio, 10th Dist. No. 20AP-21, 2020-Ohio-4147, ¶ 26, citing
State ex rel. Altman-Bates v. Pub. Emp. Retirement Bd., 148 Ohio St.3d 21, 2016-Ohio-
3100, ¶ 23.
IV. ANALYSIS
{¶ 26} For clarity of analysis, we will first address appellant's fourth and fifth
assignments of error concerning record issues before considering appellant's first, second,
No. 20AP-330 9
and third assignments of error addressing issues of errors of fact and law in the trial court
decision and her constitutional due process argument. Having reviewed appellant's
claimed errors, the certified record, and applicable law, we find the trial court did not abuse
its discretion in denying appellant's requested writ of mandamus.
A. The Certified Record (Fourth and Fifth Assignments of Error)
{¶ 27} In her fourth assignment of error, appellant contends the trial court erred, as
a matter of law, in failing to give appellant reasonable written notice of the intent to offer
the Certified Record into evidence and a fair opportunity to object to the Certified Record
as required under Evid. R. 902(11). We disagree.
{¶ 28} Evid.R. 902(11) states that "[e]xtrinsic evidence of authenticity as a condition
precedent to admissibility is not required" with respect to "[c]ertified [d]omestic [r]ecords
of a [r]egularly [c]onducted [a]ctivity." Under this rule, "[b]efore the trial or hearing, the
proponent must give an adverse party reasonable written notice of the intent to offer the
record - and must make the record and certification available for inspection - so that the
party has a fair opportunity to challenge them." Evid.R. 902(11).
{¶ 29} Appellant has not provided any legal authority applying Evid.R. 902(11) with
respect to a certified record for purposes of a mandamus action, and appellee counters that
under R.C. 145.27(E), signed copies of public employee retirement system records "shall be
received as true copies of the system's records in any court or before any officer of this
state." Regardless, the record shows appellee did provide reasonable written notice of the
intent to offer the record and made the record available for inspection, and appellant had a
fair opportunity to challenge the record. The parties filed a joint motion requesting an
updated schedule wherein appellee discussed filing the certified record, and the trial court
updated the record to include a new filing date for the certified record. Appellant moved to
supplement the record, which resulted in appellee adding the requested documents to the
certified record. Finally, appellant affirmatively stated to the trial court, "the certified
record reflect[s] all the factual information necessary for [the trial court] to render a
decision in this case" and also agreed the trial court "has all the requisite information
needed to render a decision on [appellant's] sole remaining claim." (Reply at 2; Feb. 4,
2020 Joint Mot. at 2.) For the reasons above, we find appellant's assertion that appellee
No. 20AP-330 10
failed to give appellant reasonable written notice of the intent to offer the certified record
into evidence and a fair opportunity to object to the record to lack merit.
{¶ 30} Accordingly, appellant's fourth assignment of error is overruled.
{¶ 31} In her fifth assignment of error, appellant contends the trial court erred by
denying her motion to supplement the record with her personal affidavit. Appellant does
not dispute appellee's assertion that mandamus cases are to be decided on the
administrative record, and that in determining whether OPERS abused its discretion a
reviewing court should be limited to the evidence that was presented to OPERS. However,
she argues exclusion of the affidavit was in error here since the affidavit "is based entirely
on the administrative record"—"[n]one of the factual evidence incorporated in the
[a]ffidavit was beyond the scope of the materials contained in the [c]ertified [r]ecord"— and
the facts and evidence on which it is based were all "presented to OPERS before [they] made
the determination." (Appellant's Brief at 23-24.)
{¶ 32} Considering the arguments and the affidavit at hand, we find appellant did
not demonstrate she was prejudiced by the exclusion of an affidavit that merely restated
evidence already in the certified record. See Seley v. G. D. Searle & Co., 67 Ohio St.2d 192,
210 (1981) ("error does not support reversal of a judgment unless such error is prejudicial");
Civ.R. 61; App.R. 12(D). We note appellant in her reply brief attempts to assert "not
everything referenced in the [a]ffidavit * * * was made part of the [c]ertified [r]ecord."
(Reply at 20.) However, she fails to provide any legal support corresponding with this new
position, and we decline to craft an argument on her behalf. See J.W. v. D.W., 10th Dist.
No. 19AP-52, 2019-Ohio-4018, ¶ 55; App.R. 16(A)(7); State v. Smith, 9th Dist. No.
15AP0001n, 2017-Ohio-359, ¶ 22 (noting that it is not the duty of an appellate court to
create an argument on an appellant's behalf).
{¶ 33} Accordingly, appellant's fifth assignments of error is overruled.
B. Error of Fact (Third Assignment of Error)
{¶ 34} In her third assignment of error, appellant contends the trial court erred, as
a matter of fact, in denying the writ when it determined appellant did not notify appellee
that her son was on Medicare. For the following reasons, we disagree.
{¶ 35} "OPERS * * * offers its retirees health insurance, R.C. 145.58(B), including
medical, prescription-drug, vision, and dental plans." Sherman v. Ohio Pub. Emp.
No. 20AP-330 11
Retirement Sys., 163 Ohio St.3d 258, 2020-Ohio-4960, ¶ 2. The OPERS board is required
to adopt rules establishing eligibility for any group health insurance coverage provided for
retirees, and eligibility determinations "shall be made in accordance with the rules."
R.C. 145.58(A). The administrative rules established by OPERS set up health care plans
based on whether the benefit recipient is "pre-medicare" or "medicare-eligible." See Ohio
Adm.Code 145-4-30 & 145-4-60.
{¶ 36} As the name implies, the pre-Medicare plan is only available to eligible
recipients and dependents "who are not yet eligible for coverage under Medicare." Ohio
Adm.Code 145-4-30(A). The administrative code mandates that "all enrolled benefit
recipients and dependents shall enroll in medicare parts A and B at the benefit recipient or
eligible dependents first eligible date." Ohio Adm.Code 145-4-30(G)(1). Enrollees in
Medicare are required to provide OPERS with notice of the coverage: "[a] benefit recipient
or dependent approved for early medicare coverage shall enroll in and provide the
retirement system with evidence of the medicare coverage not later than thirty days after
the recipient is notified of coverage by the centers for medicare and medicaid services."
Ohio Adm.Code 145-4-30(G)(2). Medicare-eligible benefit recipients and dependents are
provided access to a monthly allowance through an HRA account. Ohio Adm.Code 145-4-
60(C).
{¶ 37} Here, it is undisputed that appellant's son is an eligible dependent for OPERS
health care coverage generally under the definition provided in the administrative rules.
See Ohio Adm.Code 145-4-09(B). It is also undisputed in this case that appellant's son has
been enrolled in Medicare since 2001, and, after the administrative rule changes in 2016,
became ineligible for the OPERS pre-Medicare group health care plan and instead should
have been enrolled in the Medicare-eligible HRA. With this assignment of error, appellant
essentially argues that she did properly notify OPERS under Ohio Adm.Code 145-4-
30(G)(2), and therefore OPERS should have enrolled him in the correct plan and should
correspondingly absorb the loss from their own error.
{¶ 38} Initially, we note that appellant provides no authority in support of her clear
right to retain the benefit of the error she asserts here. To the contrary, R.C. 145.563(B)
states:
If any person who is a member, former member, contributor,
former contributor, retirant, beneficiary, or alternate payee
No. 20AP-330 12
* * * is paid any benefit or payment by the public employees
retirement system, including any payment made to a third
party on the person's behalf, to which the person is not entitled,
the benefit or payment shall be repaid to the retirement system
by the person or third party. * * * If the person or third party
fails to make the repayment, the retirement system shall
withhold the amount or a portion of the amount due from any
benefit or payment due the person or the person's beneficiary
under this chapter, or may collect the amount in any other
manner provided by law.
(Emphasis added.) In other words, a benefit recipient is statutorily obligated to repay
OPERS for any payment or benefit to which he or she "is not entitled," and OPERS is
statutorily obligated to recoup those overpayments. See R.C. 145.563(B). Therefore,
appellant's contention that she gave OPERS proper notice would not justify a writ of
mandamus ordering OPERS "to stop withholding payments and to refund any monies
withheld" since her son was enrolled in the wrong health care plan and was not entitled to
those benefits or payments. (Am. Compl. at 4.)
{¶ 39} Moreover, viewed under the standard employed in mandamus cases, the
merits of appellant's notice argument fail on the record. Appellant argues that "on or about
May 5, 2014, [appellant] sent to [a]ppellee documents that supported her son's disability,
Social Security Disability Benefits, and Medicare Medical Insurance," including the date of
her son's first enrollment (2001). (Appellant's Brief at 18; Reply at 15-16.) According to
appellant, by indicating in her 2014 letter that her son was receiving disability benefits
through the Social Security Administration, it is "common knowledge in the realm of
healthcare providers that individuals collecting Social Security Disability for twenty-four
months become eligible for and are automatically enrolled in Medicare Parts A and B."
(Appellant's Reply at 15.) Appellant also asserts the 2014 letter "clearly displays" her son's
benefits with "specific dollar amounts deducted for both Medicare medical insurance and
Medicare prescription drug plans." (Reply at 15.)
{¶ 40} Appellee asserts that the documents provided by appellant in 2014, at most,
put appellee on notice that appellant's son received social security benefits generally and
never disclosed he was enrolled in Medicare Parts A and B or the date he was first eligible
to be enrolled. Appellee contends eligibility for social security benefits is not synonymous
with eligibility for Medicare Parts A and B.
No. 20AP-330 13
{¶ 41} We agree with appellee that the record contains "some evidence" to support
appellee's determination that appellant did not properly notify it of her son's enrollment in
Medicare. Powell at ¶ 12 (noting that contrary evidence is immaterial if there is some
evidence in support of the board's decision.). The only evidence appellant points to, which
is from 2014, does not specifically state her son was enrolled in Medicare, does not give a
specific enrollment date, and indicates "$0.00" in deductions for Medicare. (Cert. Record
at 44-57.) As a result, the trial court did not error in finding appellant failed to notify
OPERS of her son's enrollment in Medicare as required by Ohio Administrative Code 145-
4-30(G).
{¶ 42} Accordingly, appellant's third assignment of error is overruled.
C. Errors of Law (First Assignment of Error)
{¶ 43} In her first assignment of error, appellant contends the trial court erred as a
matter of law and abused its discretion when it denied appellant’s application for a writ of
mandamus. This assignment of error challenges two aspects of the trial court's decision:
(1) whether, without having held a hearing, the basis of the trial court decision is flawed or
unclear; and (2) whether the trial court properly held that appellant could not demonstrate
entitlement to the writ of mandamus.1
1. Basis of the court's decision/lack of hearing
{¶ 44} Appellant argues this court should find the trial court erred by denying
appellant's application "without first allowing some type of hearing to determine the
disputed facts between the parties." (Appellant's Brief at 14.) Appellant appears to believe
the hearing before the trial court was necessary to "establish whether [a]ppellee owed a
duty to [a]ppellant." (Appellant's Brief at 12.) Appellant further argues that without the
hearing, "it is difficult to determine the basis of the court's decision," which necessitates
reversal in line with State ex rel Hrelec v. City of Campbell, 146 Ohio App.3d 112 (7th Dist.
Sept. 2001). We disagree.
{¶ 45} First, appellant did not raise the issue of the necessity of a hearing to the trial
court. To the contrary, appellant affirmatively stated to the trial court, "the certified record
reflect[s] all the factual information necessary for [the trial court] to render a decision in
1 We note appellant did not directly argue this second point in her principal appellate brief. However, appellee
discussed this issue in its appellate brief, and appellant made corresponding arguments in her reply brief. In
these circumstances, we see no disadvantage to appellee and will therefore consider the issue.
No. 20AP-330 14
this case" and also agreed the trial court "has all the requisite information needed to render
a decision on [appellant's] sole remaining claim." (Reply at 2; Feb. 4, 2020 Joint Mot. at
2.) Based on the parties' joint motion, the trial court vacated the original case schedule,
including vacating the scheduled pre-trial and trial dates, and there is no record of appellant
otherwise requesting a hearing or objecting to the trial court's new case schedule.
Therefore, appellant waived any claimed error regarding the lack of a hearing and,
alternatively, invited her claimed error. See Reasoner v. City of Columbus, 10th Dist. No.
04AP-800, 2005-Ohio-468, ¶ 12 ("Appellant's failure to raise the issues in the trial court
constitutes a waiver of the error claimed."); State ex rel. Fowler v. Smith, 68 Ohio St.3d
357, 359 (1994), citing Ctr. Ridge Ganley, Inc. v. Stinn, 31 Ohio St.3d 310, 313 (1987)
("Under the invited-error doctrine, a party will not be permitted to take advantage of an
error which he himself invited or induced the trial court to make.")
{¶ 46} Second, we disagree with appellant the trial court decision lacks a sound
basis. Appellant's only cited authority, Hrelec, does not support this position. In Hrelec, a
trial court refused to adopt the decision of a magistrate and, in doing so, provided "no
findings of fact or conclusions of law to support that decision." Id. at 116. The appellate
court reviewing the trial court's decision remarked,
[d]ue to the brevity of the judgment entry in this case, it is
difficult to discern the basis of the trial court's decision to deny
[relator]'s petition. This certainly gives rise to the appearance
that the trial court abused its discretion by reversing the
magistrate. Consequently, our review is limited to the
stipulations of fact which were presented to the magistrate, and
whether the magistrate correctly applied the law to those facts,
in order to determine whether the court abused its discretion
by reversing that decision.
Id. at 117. Thereafter, the appellate court found the trial court abused its discretion denying
the relator's request for a writ of mandamus based on the stipulated record.
{¶ 47} Hrelec does not discuss the necessity of a hearing at all let alone in the context
of a mandamus action challenging an OPERS health care plan determination. Instead, the
appellate court in Hrelec was satisfied in deciding the case based on the stipulated record
before the magistrate, which tends to undermine appellant's argument since that is
essentially what the trial court did in the instant case. See Id. at 118-22. Furthermore,
unlike Hrelec, it is not difficult to determine the basis of the trial court's decision here. The
No. 20AP-330 15
trial court's decision incorporated facts derived from the certified record and cited to those
facts to make legal conclusions as to why appellant is not entitled to the requested writ of
mandamus. Considering all the above, appellant's first assignment of error as it relates to
the hearing issue and the basis of the trial court's decision lacks merit.
2. Determination that appellant failed to meet the standard to issue
a writ of mandamus
{¶ 48} Appellant first contends she had a clear legal right to the requested relief in
this case since, in her view, she complied with appellee's requests for information, and
appellee still placed her son on the wrong plan, allowed him to remain on the wrong plan
for a significant amount of time, and never notified her that her son would not be covered
by the plan until a substantial amount of overpayments had already accrued. Appellant
additionally asserts that appellee had a clear legal duty to pay health insurance for her and
her son and enroll them in the correct health care plans since appellee has a "contractual
relationship" with appellant and is obligated to enroll her son in the correct health care plan
under Ohio Adm.Code 145-1-10(B). (Reply at 13-14.) Appellant further contends that
appellee is not entitled to recoup any alleged overpayment because any such overpayment
was created solely be appellee.
{¶ 49} Appellant again focuses on her view that appellee was at fault for her son
remaining on the incorrect plan,2 but she fails to address appellee's statutory obligation to
recoup "any benefit or payment" made to eligible health care recipients "to which the
person is not entitled," under R.C. 145.563. As stated by this court recently in State ex rel.
Tarrier v. Pub. Emp. Retirement Bd., 10th Dist. No. 18AP-12, 2020-Ohio-681, ¶ 37:
"it is well-established that the Ohio retirement systems, as
statutorily created entities, have no authority beyond what is
conferred to them under their governing statutes." Hansford
v. Pub. Emps. Retirement Sys., 170 Ohio App.3d 603, 2007-
Ohio-1242, ¶ 9, 868 N.E.2d 708 (10th Dist.), citing Dreger v.
Pub. Emps. Retirement Sys., 34 Ohio St.3d 17, 21, 516 N.E.2d
214 (1987); Erb v. Erb, 75 Ohio St.3d 18, 22, 661 N.E.2d 175(1996); Cosby v. Cosby, 96 Ohio St.3d 228, 232, 2002-Ohio-
4170, 773 N.E.2d 516. Thus, "unless its governing statutes
2We note the record supports the opposite view in this case. As previously discussed, some evidence supports
appellee's determination that appellant did not properly notify OPERS of her son's enrollment in Medicare as
required by the administrative rules. Additionally, the 2016, 2017, and 2018 healthcare open enrollment
statements notified appellant that Medicare recipients, such as her son, needed to take action to enroll in the
HRA and were ineligible for pre-Medicare healthcare coverage. (Cert. Record at 29-30, 34, 37-38.)
No. 20AP-330 16
grant the authority, OPERS is powerless to perform the act."
Hansford at ¶ 9.
We further emphasized that "equitable arguments are inapplicable in an action in
mandamus," and even when "the result of our decision may seem harsh, this court is
constrained by the law as it is written, not as we would like it to be applied to individuals
on an ad hoc basis." Id. at ¶ 50-51.
{¶ 50} In this case, some evidence supports appellee's determination that
appellant's dependent received health care benefits or payments to which he was not
entitled. Under these circumstances, the applicable law mandated appellee recover the
payments. See R.C. 145.563; Tarrier at ¶ 37. Considering all the above, appellant has not
established by clear and convincing evidence a clear legal right to the requested relief or a
clear legal duty on the part of OPERS to provide that relief. Domhoff at ¶ 12-13; Sales at
¶ 14; Powell at ¶ 12. Therefore, the trial court did not abuse its discretion in denying
appellant's requested writ of mandamus.
{¶ 51} Accordingly, the first assignment of error is overruled.
D. Constitutional Due Process (Second Assignment of Error)
{¶ 52} In her second assignment of error, appellant contends the trial court erred in
denying the writ because "in doing so, the court denied [a]ppellant constitutional due
process under the law and in the proceeding as outlined by Ohio Adm.Code 145-2-23."
(Appellant's Brief at 5-6, 14.) Specifically, appellant argues that disability retirement
benefits granted by appellee are a statutorily created property interest protected by the due
process clause, and that appellee's "conduct in repeatedly failing to notify the [appellant] of
her son's lapse in eligibility in their medical plan and then retroactively applying a
recoupment without sufficient warning constitutes a violation of procedural due process."
(Appellant's Brief at 15.) Appellant further argues, for the first time in this case, that
appellee did not follow the correct notification steps under Ohio Adm.Code 145-2-23 after
(what she describes as) "terminating [a]ppellant's son's disability coverage." (Appellant's
Brief at 5-6, 17.)
{¶ 53} Appellee counters that appellant never raised the Ohio Adm.Code 145-2-23
notice issue to the trial court and only raised a general constitutional due process argument
to the trial court in a reply brief, which justified the trial court in not addressing the issue.
According to appellee, in these circumstances, this court need not address the improperly
No. 20AP-330 17
raised arguments. If this court addresses the arguments, appellee contends we should still
reject them on the merits. Specifically, appellee contends there is no "protected property"
interest in, or legal right to, being enrolled in a specific OPERS health care plan, so
"procedural due process is simply not at issue here." (Appellee's Brief at 33-34.) Appellee
further argues that even if due process is implicated, OPERS provided sufficient notice to
appellant and was required to recoup overpayments. Finally, appellee asserts that Ohio
Adm.Code 145-2-23 expressly governs termination of disability benefits under a section of
the Revised Code involving whether a member is disabled and not the statute controlling
here (R.C. 145.58, establishing health care for OPERS retirants). Appellee emphasizes that
it never questioned whether appellant's son was disabled and asserts her son continues to
receive OPERS health care coverage to this day (just, presumably, not through the "pre-
medicare" plan).
{¶ 54} We decline to consider appellant's constitutional arguments in the first
instance. Generally, a party is not permitted to raise new arguments in its reply brief, and
a court "need not address" those improperly raised issues. State ex rel. Grounds v. Hocking
Cty. Bd. of Elections, 117 Ohio St.3d 116, 2008-Ohio-566, ¶ 24. See, e.g., State v.
Quarterman, 140 Ohio St.3d 464, 2014-Ohio-4034, ¶ 18-19 (declining to address
constitutional issue raised for the first time in a reply brief).
{¶ 55} Furthermore, "[a]n appellant cannot change the theory of his case and
present new arguments for the first time on appeal." Quaye v. N. Mkt. Dev. Auth., 10th
Dist. No. 15AP-1102, 2017-Ohio-7412, ¶ 28-29. A reviewing court will generally refuse to
consider issues on appeal that were not initially raised before the trial court. State v. Awan,
22 Ohio St.3d 120, 122 (1986); Niehaus v. The Columbus Maennerchor, 10th Dist. No.
07AP-1024, 2008-Ohio-4067, ¶ 55. Along these same lines, a reviewing court "need not
address the merits" of constitutional claims improperly raised in mandamus actions. State
ex rel. Van Dyke v. Pub. Emp. Retirement Bd., 99 Ohio St.3d 430, 2003-Ohio-4123, ¶ 41-
42 (declining to address relator-appellant's argument that OPERS denied her
constitutional right to due process where the appellant did not raise these issues in her
complaint or amended complaint, and appellants did not expressly or impliedly consent to
litigation of these claims).
No. 20AP-330 18
{¶ 56} Here, as indicated by appellee, appellant did not raise the constitutional due
process argument in her amended complaint or initial brief to the trial court, but instead
raised this argument for the first time in her reply brief to the trial court. Appellee moved
to strike the late arguments, and the trial court did not consider those arguments in its
decision.3 On appeal, appellant has neither assigned the trial court's action in this regard
as error nor provided legal support demonstrating the trial court abused its discretion in
declining to review arguments raised for the first time in a reply brief. Furthermore, in this
case appellant did not raise the issue of notice under Ohio Adm.Code 145-2-23 at all to the
trial court but instead waited to raise this issue for the first time on appeal. As the
constitutional due process issue presented in this assignment of error was not properly
raised and addressed in the trial court, we decline to consider it for the first time on appeal.
Id.; Tucker v. Leadership Academy for Math, 10th Dist. No. 14AP-100, 2014-Ohio-3307,
¶ 20 (declining to consider issue raised for the first time on appeal and overruling the
assigned error on that basis.).
{¶ 57} Accordingly, appellant's second assignment of error is overruled.
V. CONCLUSION
{¶ 58} Having overruled appellant's five assignments of error, we affirm the
judgment of the Franklin County Court of Common Pleas.
Judgment affirmed.
BEATTY BLUNT and JAMISON, JJ., concur.
_____________
3 The appellate record indicates the trial court granted appellee's Jan. 7, 2020 motion to strike.