Vickers v. State ex rel. Opprb, 98,713. Released for Publication by Order of the Court of Civil Appeals of Oklahoma, Division No. 3.
| Decision Date | 13 May 2005 |
| Docket Number | No. 98,713. Released for Publication by Order of the Court of Civil Appeals of Oklahoma, Division No. 3.,98,713. Released for Publication by Order of the Court of Civil Appeals of Oklahoma, Division No. 3. |
| Parties | In the Matter of Earl "Jack" VICKERS, Edward A. Atkinson, Paul Annex, Donald Braswell, William H. Brown, J.C. Brumett, Robert H. Cartner, Sr., Powell H. Chick, Donald R. Cochran, Daisy Cooper, widow of Alonzo Cooper, Don F. Cravens, John R. Donnell, Wanda J. Duncan, widow of Ralph E. Duncan, Robert A. Ferguson, James A. Gicaletto, Jr., Bertha Glover, widow of Vernon L. Glover, Billie I. Harper, Douglas A. Henson, Wanda I. Hicks, widow of Marvin L. Hicks, Meredith G. Fowler Huckabee, widow of Lowell Huckabee, Billie J. Jones, James D. Kelso, Michael E. Kerpan, Jacque Lemay, widow of Burke C. Lemay, John D. Lewis, Kenneth R. Liles, Roy V. Lofton, Cletys V. Merz, widow of Otto F. Mertz, Richard A. Neal, Frances Osborne, Wanda L. Davis Brooner Payton, widow of Charles R. Brooner, Vida Peterman, widow of Billy L. Peterman, Etna Pierce, widow of Jim C. Pierce, Kenneth L. Rinehart, Delores D. Rueb, widow of Robert E. Rueb, Arthur L. Smith, Murray G. Smith, Dorothy Sollars, widow of Harvey E. Sollars, Jeffie Standridge, widow of Harvey D. Standridge, Robert W. Starr, David E. Swidler, Cecil C. Walker, Jr., George E. Watson, Helen A. Williams, widow of Charles O. Williams, Bernice Williams, widow of William L. Williams and James H. Willis, Petitioners/Appellants, v. STATE of Oklahoma, ex rel., The OKLAHOMA POLICE PENSION AND RETIREMENT BOARD, Respondents/Appellees. |
| Court | Oklahoma Supreme Court |
Appeal from the District Court of Oklahoma County, Oklahoma; Honorable Bryan C. Dixon, Judge.
AFFIRMED.
Stephen J. Merrill, Wilson H. Busby, Merrill, Gates & Busby, Tulsa, OK, for Petitioners/Appellants.
Dale R. Harris, Andrew M. Low, Victoria V. Johnson, Davis Graham & Stubbs LLP, Denver, CO, Steven K. Snyder, Wellon B. Poe, Assistant Attorneys General, Oklahoma Police Pension Retirement System, Oklahoma City, OK, for Respondent/Appellee.
Opinion by LARRY JOPLIN, Presiding Judge.
¶ 1 Petitioners/Appellants Vickers, et al. (retired police officers and surviving spouses, hereinafter Vickers or Petitioners) seek review of the district court's order affirming a denial by the Oklahoma Police Pension and Retirement Board (OPPRB or Board) of an application filed in December 2000 to further enhance pre-employment military service retirement credits. The Board found the application was not timely filed. Petitioners appealed to the district court which affirmed the Board's decision. This appeal ensued and, after a thorough review, we affirm.
¶ 2 Vickers entered active military service on July 17, 1946 and served until May 11, 1948, whereupon he entered the reserves on May 12, 1948 where he served through September 21, 1950. He again served in active duty from September 22, 1950 through August 11, 1951, at which time he was honorably discharged with a Bronze Star.
¶ 3 Vickers was a member of OPPRB and retired from the police force in 1972. In 1994, the Board agreed to enhance the retirement benefits of "eligible members" who had pre-employment wartime military service that fell within the statutory mandates of 72 O.S.1991 § 67.13a. The Board's 1994 enhancement of retirement credits was retroactive to 1988 and done pursuant to a settlement agreement reached in a case filed in 1991 by three police officers against the Board. Swindler v. State ex rel. Oklahoma Police Pension and Retirement Board, Oklahoma County District Court Case No. CJ-91-9241.1
¶ 4 In February 1994, the Swindler court ordered, pursuant to the settlement agreement, the Board to pay the agreed § 67.13a benefits to the Swindler plaintiffs and to "eligible members." The court's order defined "eligible members" as "all current [OPPRB] members who have wartime service as defined by statute who agree to be bound by the terms of this Order in writing on or before July 1, 1994." (Emphasis added). The Board was ordered to have enhanced future benefits calculated by July 1, 1994.
¶ 5 In April 1994, the Board sent members with qualifying military service a memo, a copy of the Swindler court order and a "Release and Settlement Agreement" to sign so to become eligible to receive enhanced pension checks by July 1, 1994. Vickers signed the Release and Settlement Agreement, becoming an "eligible member" under the Swindler decision.
¶ 6 The April 1994 Release signed by Vickers acknowledges that he was granted enhanced retirement credits based upon one (1) year and five (5) months of pre-employment military service, with his retroactive benefits calculated to be $2,476.96. When Vickers signed this Release, he agreed to accept the benefits as calculated and to forego further litigation regarding § 67.13a benefits. Nevertheless, he and other retired officers filed an application before the Board in December 2000 requesting additional § 67.13a benefits. The Board denied the application as time barred and the district court affirmed the denial.
¶ 7 Petitioners contend that fraudulent conduct tolled the statute of limitations or, in the alternative, that the application was timely filed and, thirdly, that the application should be heard because of constitutional violations. The Board denies fraud and that a basis exists for an equitable tolling of the statute of limitations; contends Petitioners were on notice of facts in 1994 that triggered the running of the statute of limitations and that the time gap between 1994 and 2000 exceeded any applicable statute of limitations period; and further, that the allegation of constitutional violations, as well as being time-barred, was not raised before the Board and thus may not be raised on appeal.
¶ 8 Under the Oklahoma Administrative Procedures Act, factual findings will be reviewed on appeal to determine if the Board's decision is supported by substantial evidence based upon the record as a whole and are not clearly erroneous. 75 O.S.1963 § 322; Kline v. State, ex rel. Oklahoma Water Resources Bd., 1988 OK 18, 759 P.2d 210, 214; City of Hugo v. State ex rel. Public Employees Relations Board, 1994 OK 134, ¶ 22, 886 P.2d 485, 495. Questions pertaining to the statute of limitations involve issues of law and are reviewed de novo. City of Tulsa v. State ex rel. Public Employees Relations Bd., 1998 OK 92, ¶ 13, 967 P.2d 1214, 1219.
¶ 9 The basis on which Petitioners contend they are entitled to pursue a claim for additional § 67.13a benefits despite the Swindler Release and Settlement Agreement is primarily based upon an argument that the 1994 Swindler Release was procured through fraud. As such, Petitioners contend the Release should not be used to trigger the statute of limitations, or in the alternative, that the fraud invokes an equitable tolling of the statute of limitations. In making such allegations of fraud, Petitioners rely upon the content of many documents forwarded to them that arose from the Swindler litigation.
¶ 10 Petitioners say the Swindler documents contained misrepresentations, including that (1) the settlement fully covered past due retirement credits when in fact retroactive payments were limited to three years prior to the initiation of the Swindler claims (1988), although many officers had retired much earlier than 1988; (2) officers had to sign the Release in order to receive § 67.13a enhanced retirement benefits; (3) pre-employment military service of each police officer qualified for enhanced credits had been individually adjudicated by the court; and (4) the amount of enhanced credits granted to each officer had been individually reviewed and approved by the court. These alleged misrepresentations are argued to constitute: (1) actual fraud and intentional deception; (2) constructive fraud, based upon negligent misrepresentations; and/or (3) extrinsic fraud through breach of fiduciary duties.
¶ 11 While the Swindler litigation was pending in 1992, the Board sent its members a military service history survey inquiring whether members had served in the Armed Forces during certain military events. From such data, the number of OPPRB members eligible for enhanced retirement credits and the financial impact of such could be ascertained.
¶ 12 In 1994, a settlement agreement was reached between the parties in the Swindler litigation. The district court entered its order reflecting and enforcing the settlement agreement. The substance of the Swindler settlement agreement and order was: (1) OPPRB was subject to § 67.13a; (2) OPPRB would enhance retirement benefits for eligible members by July 1994; and (3) OPPRB would retroactively enhance retirement benefits paid since September 1988, three years prior to when the Swindler plaintiffs made a claim for such benefits.
¶ 13 After settlement between the parties, non-party members of OPPRB received documents including (1) the Swindler court order; (2) a four page letter from the Swindler plaintiffs' law firm; (3) memos from OPPRB regarding the Swindler court order and another copy of the military history survey to be completed if the member had not already done so; and (4) memos from OPPRB regarding the evaluation of military survey data and members eligibility for enhanced benefits under the Swindler settlement agreement and order.
¶ 14 The February 1994 Swindler court order addressed the three year limit on liability for retroactive benefits:
1. On September 26, 1991, Plaintiffs-Petitioners . . . filed applications with the Police Pension & Retirement Board for retirement credit for pre-employment wartime military service. . . .
. . .
7. The Court further finds that under 12 O.S. § 95 (Second), which provides that an action upon a liability created by statute must be brought within three years, Plaintiffs' recovery is limited to the additional retirement benefits which have accrued since September 26, 1988, plus the additional benefits which will accrue...
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