294 Ga. 827

FINAL C OPY

S13G0655. AYERS v. PUBLIC SCH OOL EMPLOYEE S RETIREMENT

SYSTEM OF GEORGIA. NAHMIAS, Justi ce. The Public Sc hoo l Employee s Retireme nt Syste m of Ge orgia (PSE RS) filed sui t a gainst Appellant Leroy A yers to recover three

months of benefit payments to his m other, E sther Ay ers, that PSERS mistake nly ma de afte r Mrs. Ayers had die d. Appella

nt answered and

counterclaime d, and a jury ultima tely returned a $5,000 verdict in favor of Appellant. PSERS a ppeale d, and th e Court of Appeals reversed, holding that the tr ial cou r t erre d in deny ing PSERS’ s motion for a directed verdict

. See Public Sc hool Em ployee s Retireme ntSystem of Ga. v. Ayers , 319 Ga. App. 23 4 (734 SE2 d 461) (2 012). We gran ted certiorari. As expla ined bel ow, the

statute s that e stablis h Mrs. Ayers ’s contract for retire ment

benefi ts do not a

uthorize the pay ment o f monthly retirem ent benefits beyond the life of Mrs. A

yers a nd her de si gnate d joint an nuitant —

Mrs. Ayers ’s husband, Grover Ayers, who prede ceased her. Accordingly, no benefits

were payable to Appellant after Mrs. A ye rs’s death. The Court of Appea ls1 In our order g ranting certiorari, we direc ted the parties to address both the trial cou rt’ s denial of PSERS’s motion for a directed verdict and the trial court’s denial of PSERS’s motion for summary judgment. However, our holding that the trial court erred in deny

ing PSERS’s motion for a directed verdict moots any issue related

to PSERS’s summary judgment motion. See Ayers , 319 Ga. App. at 238. It should be noted, however, tha t both parties agree that this case i nvolves n o factual disputes; b ecause

the case involves only lega

l questions of statutory interpretation – and even on Appellant’s argument, only legal questions of contract interpretati on – it should not have been submitted to a jury for dec ision. 2 correctly conclud ed that

the tria l court erred in denyin g PSERS’s motion f or a directed verdict, but did

so primarily

based on analy sis of re tirem ent form s Mrs. Ayers filled out and correspond ence she exchanged with PSER S ins tead of analysis of the statuto ryscheme. We disagree with that rationale, but agree

with the result, so we affirm

the Court of Appeals’ judgment. 1 1. Esther Ayers worked fo r the Rome City School System

for almos t 30 years before re tiring as a cafete ria mana ger in 1982 at age 66. In November 1978, she signe d a “Change of Bene ficia

ries” form pre

pared by PSERS on which she des ignate d her husba nd, Grover Ayer s, as her “ First Benef iciar y” an d hertwo sons, Appella

nt and his broth er, as her “Second Beneficiary.” In March 1982, Mrs . Ayer s reques ted infor mati on on her re tirem ent bene fit pay ment options, and PSER S sent he r an expl anatio n sheet s umma rizing the thre e options set fort h in the gov erning st atutes , OCGA §§ 47-4-101 a

nd 47-4-102. Mrs. Ayers then submitted an “Applicati on for Retirement” that said: “I3

understa ndthe provi sions of

applicable law pertaining t o retirement allowances for which I may

be eli gible a

nd with thi s knowledge I her eby elect and authorize the System

to pay a llowanc es u

nder the plan I ha

ve indic ated be low.” Below that, the application listed the three plan options – the ma ximum monthly benefit, Option

A, and Option B. Mrs. Ay ers pla ced a chec kmark next to O ption A, which said: “After my dea th, a specified portion of my monthly benefit will be paid to my prima

rybeneficiary, if

living, for the remainder o f his or her life.” (Emphasis in original.) The bottom h alf of t

he form had a section lab eled “Designa tion of Beneficiary,” where Mrs. Ayers designated her husband as h er “beneficiary” and list ed Appe llant a nd his brother together as her “ second beneficiary.” (Emphasis in original.) O n May 10, 1 982, PSERS wrote Mrs. Ayers a letter s tating that her retire ment

applic ation ha d b een receive d; that under the Option A benefit paym ent plan that she had chosen, her 29 years and four mon ths of serv ice entitled her to “$18 4.88 per m onth for yo ur

lifeti me” ; and tha

t “[a] fter y our death, your primary benefici ary, Grover Ay ers, w ill rec eive 100 % of your retire ment

allowance for his lif

etim e.” T he lett er did not

menti on Mrs. A

yers’s

sons. In closing, the le tter said, “If y ou have a ny questions, or if the re are any4

changes which y ou wish to make in y our retireme nt, ple ase notify us immediately.” A postsc ript informed Mrs. Ayers that “[t]he amoun t contribu ted byyou into the plan prior to yo ur retirement was $43 2.00.” Mrs. Ayers reti red effec tive July 1, 1982 , and began receivin g monthly b enefi ts payments, t he amount of which gradual ly increase d over the year s. On March 31, 1999, Mrs. Ay ers died. Her husb and had predeceased h er in 1991, as had Appe llant’s brother in 19 95. Unaware of Mrs . Aye rs’s dea th, PSERS continued making elec tronic deposits to a bank account that she held jointly with Appellan t in April, May, and June1999. The deposits for these three months t otaled $1,064.9 1, which Appellant withdrew and used for his mothe r’s burial a

nd to settle her f

inance s. On No vember 3, 1 999, Appe llant submitted an “Applicatio n for Beneficiary’s Allowance,” which PSERS denied. In a series of le tt ers over the nex t several years, PSERS d emanded that Appella nt imm ediate ly ret

urn the $1, 064.91, but

he never did. On August 11, 2004, PSERS sued Appellant in Fulton County StateCourt to recover on an ope n acc ou nt, for b reac h of contract, a nd for mon ey ha d and

rece ived. The co mplaint sought da mage s plus pre - and

post-judgm ent interest and costs. On Septem

ber 16, 2004, Ap pe llant a nswere d and coun

tercl aime d.2 In closing arg ument, PSERS asked the jury to return a ver dict in its favor for

$1,064.91 in principal plus $656. 74 in

prejudgment interest, and Appellant asked the jury to award him $46,314 for 124 months of missed benefit payments plus $12,587.32 in inter est, f or a total of $58,901.32. The jury initially

returned a verdict finding for Ap pellant “ in the amount of legal fees with no repayme nt of benefits,” but the trial court sent the jury ba ck to deliberate with a new verdict form and an admonition that the verdict was not in proper form and that the jury had hea

rd no evidence or testimony a s to lega

l fees. 5 After PSERS moved fo r summary judgment on t he counterclai ms, Ap pellan t dismissed allof them except count s for breach of contract and costs. The tri al court denied PSERS’s summ ary judgment motion in Janua ry 2009, a nd the c ase procee ded to tri al in Aug ust 2009. At the cl ose of the

evidenc e, PSER S moved for a directed verdict, wh ich the trial c ourt denie d. Thejury then returne d a verdi ct for A ppella nt, aw arding him $5 ,000 in dam ages on h is brea ch of con tract counter claim , and the

court entered judgment on that verdict. 2 The Court of Appeals grante d PSERS’s applic ation

for discretiona

ry appe al, se e OCG

A § 5 -6-3 5 (a) (6) (req uiring an applic ation

to appe al a money jud

gment of $10,000 or l ess), a

nd rever sed. See Ayers , 319 Ga. App. at 24 3, n. 1, 238. The cou rt review ed th e PSERS forms that Mrs. Ayers fille d out and her correspondence with PSERS and concluded that these d ocuments plain ly indic ated th at Mrs. Ayers ’s retire me nt benefits wouldend

upon her a

nd her husba

nd’s dea th. The court the reforeheld tha

t the3 See also Ga. Const. of 1983, Art. II I, Sec. X, Pars. I -II

(expres sly authorizing the expenditure of public funds not only “for the pur

pose of paying

benefits and other

costs of retirement and pensionsystems fo r public officers and employ ees and their beneficiaries,” but also “f or the purpo se of increasing benefits being pa id pursuant to any retire

ment or pension system wholly or partially supported fr

om public funds”). 6 trial court erred in denying PSERS’s m otion for a dir ecte d v erdict. See id. at 238. 2. Appella

ntcontends th at the Court of Appeals erred in h olding th at PSERS was entitl ed to a directed verd ict. We disagree. (a) It is w ell se ttled und er Geo rgia la w that a statute or ordina

nc e establ ishing a retirement plan for a government emplo yee b ecom es a pa

rt of her contract of employment as soon as: (1) she performs service s while the statute

or ordinance is in eff

ect; a nd (2) she c ontribute s at any timeany amount toward the benefi ts she is to rece ive. Se e With ers v. Register , 246 Ga . 158, 159 ( 269 SE2d 431) (1980); Bender v. Anglin , 207 Ga. 108, 112-1 13 (60 SE2d 756 ) (1950). B ecaus e the ri ght to rec eive such benefits is contractual in nature , the Contract Clause

o f the Ge orgia Co nstitutio n precl udes theapplic ation of subseque ntlaws if the effec t is to reduce rather tha n in creas e the benefits payable. See Ga. Const. of 19 83, Art. I, Sec. I, Par. X (“No . . . la ws imp airing the obligation of contract . . . shall be passed.” ); Withers , 246 Ga . at 159. 34 Our review of the evolution of the PSERS Act indicates, and Appellant does not dispute, that the provi sions of th e Act relied on in this o pinion have not changed over time in a way that affec ts Appella

nt’s clai ms. 7 Although the right s of Mrs. Ayers and those claim ing thro u gh her, such

as Appellant, are c ontractual i n natu re, thi s case does not involve a

n ordinary insurance contract. PSERS was crea ted and is controlled by statute. See Public School Emplo yees Retirement S ystem Act (“PS ERS Ac t”), G a. L. 1969, p. 998, §§ 1-26 (codi fied as am end ed at O CGA §§ 47- 4-1 to 47-4-12 1). 4 As a result, the PSERS Act itself

supplied t he terms of the writt en contract between PS ERS and Mrs. Ay ers. See Alv erson v. Employees’ Reti rement System of Ga. , 272 Ga. App. 3 89, 392 (613 S E2d 119) (200 5) (“[T] he plaintiffs a re parties to a written contract establis hed by the Code pr ovision s in effect when th ey performed services and cont ributed toward their r etirement benefits.”). See also Strickla ndv. City

of Alban y , 270 Ga . 31, 31 (5 04 SE2d 66 6) (1998) (holding th at the ci ty’s pe nsion plan

“crea ted by t he govern ing ordina

nces f orm[ed] a contrac t betwe en the C ity and its em ployee s”). PSERS has no authority

to var y the ter ms of the contract betwe en public school employees and the State of Georgia that is exp ressed in the P SERS Act. See OCGA § § 47-4-26 (“The [P SERS] b oard shall ha ve autho rity to e xpend the8

funds [provided

for in this chapter] in a ccorda nce wi th this c hapter. ”), 47-4 -102 (a) (“The benefit sha

ll be paid in a ccordance with the term s of such op tion elected[ b y the e mploy ee]. ”). Se e also Strickla nd , 270 Ga. at 31-32 (rej ecting reliance on the city’s employee handbo ok to vary the ter ms of the pensio n plan createdby ordinan ce, e xp laining t hat “[a ] court

cannot, under the

guise of statutor yconstruc tion, e ither revise or enlarg e upon those

clea r provisions of the [p]lan”). As this Court explain ed long ago, t he rule is that the paym ent of be nefits on the death of a [public emplo yee] depends upon the terms of the law providing the right for such be

nefits, and neither the [publ ic em

ployee ], nor

those c laim ing under [ her], have any rights ex cept th ose conf

erred by the sta tutes . . . gove rning the pension fun ds. Burks v. Bd. of Trustees of Firemen’s Pension Fund of Atlanta , 214 Ga . 251, 254 (104 SE2d 225) (1958). A ccord Sams v. Elder , 145 Ga . App. 222, 223 (243 SE2d 644) (1978). Thus, A

ppella nt’s rel iance

on the re tirem ent

forms that Mrs

. Ayers filled o ut and

the cor responde nce she

excha nged wit h PSERS in 1982 is misplaced, and theCourt

of Appeals’ ana lysis fo cused on those e xtra-sta tutory materials, even if correct — wh ich it may well be — was unnecessary. (b) We turn

our attentio n, therefore, to the relevant terms o f the PSERS Act. OCGA

§ 47-4-101 es tablishe s the ba sic re tirem ent bene fit for m embe rs of9

PSERS. Subsection (a) au thor izes r etire ment a fter a minim um of ten yea

rs of creditable service. Subsection (c) sa ys that a PSERS mem

ber who retires on

her delayedr etirement date (M rs. Ay ers ret

ired at 66 instead of 65) “shall rec eive

a monthly retirem ent benefit, p aym ent of wh ich sha ll com menc e on [her] delayedeffec tive da

te of re tirem ent

and whic h shall be

paya ble on the first day of each mont h there aft er during [her] lifetime .” The amount of the monthly retire ment

benefit is a dollar figure m ultiplie d by the nu mber o f yea rs of creditable servic e. See

OCGA § 47-4-1 02 (c). An em ployee rece ives the maxim um possiblemonthly

bene fit under OC GA § 47-4-1 01, but thos e payments end when the employee dies; there is no provision fo r ongoing paym ents to a

ny other person. OCGA§ 47-4-1 02 is titled “Optional retire ment benefits.” Sub section (a) allows a PSERS mem

ber to e lect, at any

time prior to re tirem ent, a

“joi n t and survivor option” or a “period certain and life optio n,” i nstead o f the higher monthly paym ents for t

he employee’s lifetime alone und er OCGA § 47-4-101. Subsections (c) and

(d) of OC GA § 47-4-1 02 expl ain the se two option s as follows: (c) Option

A, the joint

and surviv or option, shall c onsist of a10

decreased retirement benefit which shall be pay able to the member for life a nd shall c ontinue a fter his death t o t he surviving jo int annuita ntin the same amount

or in such smal ler amount as he may designate. The e lecti on of this option shall be null and void if either the member

or his joint

annuita ntdies be fore his n ormal

retire ment date. (d) Option B, the per iod cer tain an dlife option, sh all con sist of a decrease d retir em ent bene fit com menc ing on the d ate of retire ment

and pay able on the firs t day of each month dur

ing th e lifeti me of the member, provid edth at if the mem ber dies prior to havingreceived the elected number o f guar an teed monthly retire ment

paym ents, s uch r emaining guarante ed payments shall continue to his design ated beneficiary. It is undisputed that Mrs. Ayers e lected Op tion A. Option A auth orizes PSERS to pay a “decre ased [monthly] re tirement benefi t” structured as a “joint” annuity. If the designated “joint annuitant” dies be fore the

emplo yee retire s, no

one else takes his place. Instea d, the employ ee’s e lecti on of Option A becomes

“ null and void, ” there

by allo wing theemplo yee t o rece ive her full ret irem ent benefit under OC GA § 47-4-1 0 1. If both the em ployee and her chosen join

t annuita ntsurvive beyo nd the e mployee ’s norma l retirement d ate, Option A guarantees lifeti me m onthly pa yme nts to the

emplo yee a

nd to “the s urviving joint annuitant.” If the jo int annui tant is not “surv iving” — t

hat is, if the j oint annuita ntdoes not

survive after the retired employee’s death — no fur ther11

paym ents are due unde

r Option A , whic h is the “j oint and surviv or option.” OCGA§ 47-4-2 (12) defin es “j oint annui tant” i n the sing

ular, a s “ the person designa

ted to re ceive

benefi ts paya

ble on the

de ath of a me mber, as provided in Option A” (emph asis added), a nd Option A

make s no provisio n for multiple and succe ssive joint annuitants. Moreover, subsec tion (b) of OCGA § 47-4-10 2 specifies that “ [t]he amount of any o ptional retir ement benefit set f orth in this Code se ction sha ll be the actua rial e quivale nt of the a

mount of benefit that would otherw ise be p ayabl e to the mem ber under Code Se ction 47-4-10 1.” Appella

nt conce des in his brief that “[g]ive n the na ture of t he payments under Option A, it would [be] actuari ally impossible to properly pr ice

an insurance pol icy where the potenti al beneficiaries have dra stica lly diff erent life expec tancie s.” In

sum, O ption A a

uthorize s retirement

benefi t paym ents for the life of t

he em ployee and thelife of h er designated, single, surviving j oint annuitant. And Appellant does not claim, nor could he cr edibly do s o on this record, that in electing Option A, Mrs. Ayers intended to na me him rather than his father, her husband, as he r joint annuitant. Option B, by contrast, auth orizes PSERS to pay a “decreased [monthly] retire ment

bene f it” for a specified number of month s chosen by the emplo yee12

prior to her retirement, with that full nu mber of payments guarant eed . I f the retired employee dies prio r to receiving all o f the payments, Option B requires PSERS to ma

ke the remaining pay

ments to the e mploy ee’s “d esign ated beneficiary.” No spec ial provi sion is m ade in O ption B f or the de ath of a designated benefi ciary

prior to the

emplo yee’ s normal retirement d ate, beca use

none is need e d. Fi rst, th e retir ed emplo yee woul d stil l receiv e the same guaranteed nu mber

of month ly pay

ments , whic h is the op tion that she elec ted. Sec ond, the employee is allowed to n ame more than one beneficiary, with her estate as the residual benef iciar y. Thu s, OCG

A § 47-4-2 (3) defi n es “beneficiary” to allow

plural be nefit re cipien

ts – “the l iving pers on or persons who are e ntitled

to rece ive any

benefi ts upon thedeath o f a m embe r and who

were de si gnated by the member by written notic e to the board” (em phasis added), and

adds that “[i]f the per son or pers ons so des ignated are not l iving at the time of the death o f the m embe r, the b enefic iary sh all be the est ate of t he member.” No actuarial prob lems are created , becau se the a mount of the monthly payments is base d on the num ber of paym ents se lecte d, rega

rdless of wheth er the emp loyee or one or more ben eficiar ies recei ve them. Appella ntparses the retire ment f orms Mr s. Ayers fille d out and th e13

correspond ence she exchanged with PSERS in a

n attem pt to show

that they were confusing; he asserts that the documents ther efore created a contract for a hybrid retire ment

benefit opti on that combined the lifetime benefits t o a person ot her than the retired employee el ement of Optio n A with the abi lity to name multiple beneficiaries elem ent of

Option B. As exp lained above, however, th ose extrastatutor ydocuments could not, as a matter of law, vary the te rms of t

he retire ment

contract betwe en Mrs. Ayers and the State establish ed by the PSERS Act, and PSERS was no t legally authori zed to give an employee t he hybrid option that Appellant postulates. Indeed, even if PSERS or its officials had made errors in administering its retirement plan with re spect to Mrs. Aye rs, it wouldnot be estopp edfrom co rrecti ng any d eviati ons f rom the s tatuto ry scheme upon discovery. See Tate v. Teachers Retirement System of Ga. , 257 Ga. 365 , 366 (359 SE2d 649 ) (1987) (“It is well sett led that ‘Powers of all pub lic offi cers

are define d by

law and all person s must take notice thereo f. Thepublic m ay not be estoppe d by the acts of any off icer do ne in the exercise of an unco nferred power. ’” (ci tation om

itted))

. (c) For these reasons, App ellant was not entitled to the thre e mont hs of retire ment

benefit payments that P SER S mista kenly pa id afte r Mrs. A

yers’s14

deathinto the joint bank account that Appe llant shared with his mothe r, or to the additional monthly

paym ents for w

hich hecounter

claimed. Th

us, the trial c ourt erred in denying PSERS ’s motion fo r a directed verdic t in its fa vor on PSER S’s compl aint and Appe llant’s cou

ntercla ims; the Court of Appeals properly reversed ruling; and we affirm the Court of Appeals’ judgment. Judgme nt affir

med. All the

Justice s concur .

Decid ed Marc h 17, 2014. Certio rari to t

he Court of Appeals of Ge orgia – 319 Ga. A pp. 234. Hernan, Taylor & Lee, Jerome Lee , for appellant. Stokes, Laza

rus & Ca rmic hael, Thoma s V. Ke ough , for appellee.