COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 60143 BRECKSVILLE-BROADVIEW HEIGHTS : EDUCATION ASSOCIATION, ET AL. : : Plaintiffs-appellants : : JOURNAL ENTRY -vs- : AND : OPINION BRECKSVILLE-BROADVIEW HEIGHTS : BOARD OF EDUCATION : : Defendant-appellee : DATE OF ANNOUNCEMENT : OF DECISION : MARCH 12, 1992 CHARACTER OF PROCEEDING : Civil appeal from Court of Common Pleas : Case No. 171,714 JUDGMENT : AFFIRMED DATE OF JOURNALIZATION : APPEARANCES: For plaintiffs-appellants: For defendant-appellee: RONALD G. MACALA, ESQ. MARY A. LENTZ, ESQ. Belden-Whipple Building JOHN J. REILLY, ESQ. 4150 Belden Village Street WESTON, HURD, FALLON, PAISLEY Suite 102 and HOWLEY P.O. Box 35186 2500 Terminal Tower Canton, Ohio 44735 Cleveland, Ohio 44113 - 2 - J.F. CORRIGAN, J., Plaintiffs Brecksville-Broadview Heights Education Association (hereafter referred to as the "Association") and Virginia V. Buerki appeal from the order of the trial court which entered judgment for defendant Brecksville-Broadview Heights Board of Education (hereafter referred to as the "Board") in plaintiffs' action to have a portion of the collective bargaining agreement in effect between the Association and the Board declared void. We affirm. I. On January 1, 1988, the Association and the Board entered into a collective bargaining agreement. Section 16 of this agreement established an Early Retirement Incentive Plan (hereafter referred to as the "Plan") and provided in relevant part as follows: C. Early Retirement Incentive Plan 1. Effective March 18, 1988 through March 17, 1989, an early retirement incentive plan will be effective for employees of the Board who are members of S.T.R.S. in accordance with Section 3307.35 of the Ohio Revised Code. Such plan shall be open to all employees who are members of S.T.R.S. and who are or will become eligible for retirement during the life of the plan upon purchase of service credit provided in the plan, subject to the restrictions set forth below. 1 The effective period of the plan was later extended to April 3, 1989 by subsequent agreement of the Board and Association. - 3 - *** 3. On or before April 15, 1988, employees wishing to participate in this plan must file with the treasurer the appropriate forms indicating their intent to retire. (Emphasis added.) ****. On April 15, 1988, Buerki, a certificated teacher who is subject to the terms of the collective bargaining agreement, executed a Notice of Intent to participate in the Plan, effective March 1, 1989 or July 1, 1988. Buerki subsequently withdrew this Notice, and executed a second Notice on March 1, 1989, to be effective on July 1, 1989. The Board deemed this Notice to be untimely and denied Buerki participation in the plan. Thereafter, on June 21, 1989, plaintiffs commenced this action to have Section 16(C)(3) of the collective bargaining agreement declared to be in conflict with R.C. 3307.35 and therefore void. On September 7, 1989, the Board filed a motion to dismiss and alternative motion for summary judgment in which it asserted: that the application period set forth in Section 16(C)(3) was not in conflict with R.C. 3307.35; that plaintiffs were estopped from challenging Section 16(C)(3) because the Association had approved this provision in its initial bargaining and again during subsequent negotiations; and that to the extent plaintiffs alleged a breach of contract, relevant grievance procedures had not been followed. - 4 - On June 21, 1990, the trial court granted the Board's motion and plaintiffs now appeal. II. Plaintiffs' first assignment of error states: "THE TRIAL COURT ERRED IN FAILING TO FIND THAT SECTION 16(C)(3) OF THE AGREEMENT IS VOID AND UNENFORCEABLE UNDER O.R.C. SECTION 4117.10(A), SINCE IT IS IN CONFLICT WITH O.R.C. SECTION 3307.35, IN FAILING TO AWARD BUERKI THE EQUIVALENT OF HER LOST PENSION BENEFITS, AND IN FAILING TO REFORM THE AGREEMENT." Plaintiffs' fourth assignment of error states: "THE TRIAL COURT ERRED IN FAILING TO FIND THAT SECTION 16(C)(3) OF THE AGREEMENT DOES NOT COMPLY WITH APPLICABLE LAW." In these interrelated assignments of error, plaintiffs assert that the one month application period contained within Section 16(C)(3) is void because it conflicts with the requirement of R.C. 3307.35 that retirement incentive plans made available to employees of the state teachers retirement system "remain in effect for at least one year." R.C. 3307.35 provides in relevant part: "An employer may establish a retirement incentive plan for its employees who are members of the state teachers retirement system. The plan shall provide for purchase by the employer of service credit for eligible employees who choose to participate in the plan and for payment by the employer of the entire cost of such service credit. A plan established under this section shall remain in effect until terminated by the employer, except that, once established, the plan must remain in effect for at least one year." (Emphasis added.) - 5 - In Finch v. Canton City School Dist. Bd. of Edn. (1991), 62 Ohio St. 3d 228, the Supreme Court considered the validity of an application period for participation in a retirement incentive plan which was shorter than one year and stated: "At issue in the case at bar is the meaning of the clause 'the plan must remain in effect for at least one year.' Appellant asserts that the clause requires a plan established under R.C. 3307.35 to be open for application for an entire year, arguing that the Board's application period fell impermissibly short of the one-year time frame. Appellees contend that the clause in question is not directed to the application period during which prospective retirees may submit the proper forms to initiate early retirement, but rather to the period from which the retiree, once qualified for early retirement, may select a starting date for his retirement. "*** "Our reading of the statute indicates that an application deadline short of the minimum one- year period during which the plan had to be in effect is consistent with the legislature's intent in permitting the establishment of retirement incentive plans for educators. As a part of the statutory framework for such early retirement programs, the legislature provided in R.C. 3307.35 that an employer could limit, on the basis of seniority, the number of its employees who would be permitted to retire early. In order to implement that provision of the statute, it is clear that some cutoff date would of necessity be permitted. Absent such a deadline, a plan with a cap on participation could result in a system in which the quota would be filled by those who were first in line with a completed application, without the critical consideration of seniority. "*** "Accordingly, we hold that the requirement in R.C. 3307.35 that a retirement incentive plan 'remain in effect for at least one year' does not preclude the establishment of an application - 6 - period for such a plan that expires less than a year after the plan is adopted." Id. at 231-232. In accordance with the foregoing, plaintiffs' first and fourth assignments of error lack merit and are overruled. III. Plaintiffs' second assignment of error states: "THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT FOR THE BOARD SINCE THERE WERE GENUINE ISSUES OF MATERIAL FACT PRECLUDING JUDGMENT IN THE BOARD'S FAVOR BASED UPON THE BOARD'S ESTOPPEL DEFENSE." Here plaintiffs claim that there are genuine issues of material fact as to whether the Association was estopped from advancing the claims raised in this action since it approved Section 16(C)(3) in its initial bargaining and again during subsequent negotiations. Plaintiffs further claim that there are genuine issues of material fact as to whether such estoppel is binding upon Buerki individually. We note that genuine issues of material fact do surround these contentions. We recognize, however, and plaintiffs concede, that the Board asserted estoppel merely as a defense to plaintiffs' causes of action seeking to have Section 16(C)(3) declared void. As the causes of action are unsustainable pursuant to Finch v. Canton City School District Bd. of Ed., supra, the existence of issues of fact surrounding the Board's defense are insufficient to preclude the entry of summary judgment for the Board. IV. - 7 - Plaintiffs' third assignment of error states: "THE TRIAL COURT ERRED BY IMPLIEDLY FINDING THAT THIS MATTER SHOULD BE SUBMITTED TO THE GRIEVANCE PROCEDURE." Within its motion to dismiss, or motion for summary judgment, the Board stated, at page 8, as follows: "[a]ssuming, arguendo, breach of contract occurred, the grievance procedure of the [collective bargaining] Agreement *** sets forth the sole agreed-upon procedure for addressing such claims." Because plaintiffs did not allege breach of contract in their complaint, and because the Board's motion was otherwise meritorious, see Finch v. Canton City School Dist. Bd. of Edn., supra, there is no basis upon which to conclude that the trial court granted the Board's motion due to plaintiffs' failure to grieve this matter. Accordingly, this assignment of error lacks support in the record and is overruled. Cf. L.A.& D. v. Bd. of Commrs. (1981), 67 Ohio St. 2d 384, 388. V. Plaintiffs' fifth assignment of error states: "THE TRIAL COURT ERRED TO THE EXTENT THAT IT MAY HAVE CONSIDERED AFFIDAVITS SUBMITTED BY THE BOARD AFTER THE DATE SET FOR HEARING ON THE BOARD'S MOTION FOR SUMMARY JUDGMENT." Plaintiffs next assert that since the board filed its motion on September 7, 1989, the motion should have been heard on October 7, 1989, pursuant to Loc. R. 11(I) of the Court of Common Pleas of Cuyahoga County, General Division, and that the trial - 8 - court acted improperly if it considered documents filed by the Board after this deadline. It is well established that courts are to decide actual controversies between parties legitimately affected by specific facts and to refrain from giving opinions on abstract propositions. Fortner v. Thomas (1970), 22 Ohio St. 2d 13, 14. It is also well established that in the absence of evidence to the contrary, a presumption of validity attends the trial court's action. Volodkevich v. Volodkevich (1988), 48 Ohio App. 3d 313, 314. Moreover, Loc. R. 11(I) contemplates a hearing on the motion "within thirty (30) days after service of the motion," (emphasis added) and this does not establish a clearly defined terminal date for the service and filing of materials connected with the motion. Cf. 1 Baldwin Ohio Civil Practice (1988), 342, Section T 25.04. Rather, materials may be filed at any time prior to the date on which the motion is actually heard. See Faulkner v. Mayfield Village (Feb. 11, 1988), Cuyahoga App. 54242, unreported. Cf. State v. Licsak (1974), 41 Ohio App. 2d 165, 169-170. Accordingly, there is no basis for concluding that October 7, 1989 was the latest date upon which materials could be filed, and there is no basis for concluding that the trial court erred in this connection. VI. Plaintiffs' sixth assignment of error states: - 9 - "THE TRIAL COURT ERRED TO THE EXTENT THAT IT MAY HAVE REFUSED TO CONSIDER FACTS DEEMED TO HAVE BEEN ADMITTED BY THE BOARD." Here plaintiffs assert that the trial court may have erred in refusing to consider facts deemed admitted due to the Board's failure to respond to plaintiffs' request for admissions. Civ. R. 36(A) provides in relevant part as follows: "*** "Each matter of which an admission is requested shall be separately set forth. The matter is admitted unless, within a period designated in the request, not less than twenty-eight days after service thereof or within such shorter or longer time as the court may allow, the party to whom the request is directed serves upon the party requesting the admission a written answer or objection addressed to the matter, signed by the party or by his attorney." (Emphasis added.) Thus a failure to respond amounts to an admission of the matters presented. 1 Baldwin's Ohio Civil Practice, supra, at 289, T. 23.10. In this case, however, defendant filed two motions to stay discovery. Accordingly, this court will not presume that the trial court acted incorrectly in connection with the request for admissions. Rather, we will presume that the trial court impliedly granted defendant's motions. Solon v. Solon Baptist Temple (1982), 8 Ohio App. 3d 347, 351. Plaintiff's sixth assignment of error is overruled. VII. Plaintiffs' seventh assignment of error states: - 10 - "THE TRIAL COURT ERRED TO THE EXTENT THAT IT ENTERED JUDGMENT BASED UPON FACTS ON WHICH APPELLANTS SOUGHT DISCOVERY." Within this assignment of error, plaintiffs claim that the court erred in awarding summary judgment to the Board because the Board did not respond to various requests for discovery and this precluded plaintiffs from fully litigating the action. As an initial matter, we note that plaintiffs at no time moved to compel discovery and at no time moved for a continuance in order to obtain discovery pursuant to Civ. R. 56(F). Moreover, the crucial fact, i.e., whether Buerki met the April 15, 1988 deadline for giving Notice of Intent to participate in the Plan is undisputed, as the parties agree that Buerki did not meet this deadline, and plaintiffs have failed to demonstrate how other issues raised in discovery are in any way material to this central and controlling fact. Plaintiffs' seventh assignment of error is overruled. Judgment affirmed. - 11 - It is ordered that appellee recover of appellant their costs herein taxed. The Court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this Court directing the Court of Common Pleas 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. NAHRA, P.J., and *ECONOMUS, J., CONCUR. (*Judge Peter Economus, Mahoning County Common Pleas Court, Sitting by Assignment.) JUDGE JOHN F. CORRIGAN N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announcement of decision (see Rule 26). Ten (10) days from the date hereof, this document will be stamped to indicate journalization, at which time it will become the judgment and order of the court and time period for review will begin to run. .