Court of Appeals of Missouri, Western District, Third Division
FROM THE CIRCUIT COURT OF JACKSON COUNTY, MISSOURI THE
HONORABLE JENNIFER M. PHILLIPS, JUDGE
Before: Victor C. Howard, Presiding Judge, Lisa White
Hardwick, Judge and Gary D. Witt, Judge.
C. HOWARD, JUDGE.
Salva, Sr. appeals the summary judgment entered in favor of
the Missouri State Employees' Retirement System (MOSERS)
on MOSERS's claim for money had and received seeking to
recover retirement benefits paid to Salva under a
disqualification provision contained in article XIII, section
3.12 of the Missouri Constitution. The judgment is affirmed.
served as a member of the Missouri General Assembly from
January 2003 through December 2010. He vested in the
retirement plan on January 1, 2009, and began receiving
monthly retirement benefits in January 2011. On June 26,
2013, Salva pleaded guilty in the United States District
Court for the Western District of Missouri to one felony
count of theft of government money. In the plea agreement,
Salva admitted that from January 2003 until February 2008, he
received Social Security disability benefit payments that he
was not entitled to receive due to his work activity.
same month, MOSERS terminated Salva's retirement benefits
relying on a disqualification provision contained in article
XIII, section 3.12 of the Missouri Constitution. MOSERS
demanded that Salva repay $29, 929.20 in benefits he received
between January 2011 and June 2013. Salva asked the MOSERS
Board to review the decision to terminate his benefits and
seek repayment of benefits already received. The Board
reviewed the matter and denied Salva's appeal.
MOSERS filed an action for money had and received seeking to
recover the retirement pension benefits that it had paid to
Salva. Salva filed a counterclaim for breach of contract.
Both parties filed motions for summary judgment. The trial
court denied Salva's motion and granted MOSERS's
motion finding that MOSERS was entitled to judgment as a
matter on law on its claim for money had and received and on
Salva's claim for breach of contract. This appeal by
review of the grant of summary judgment is de novo.
Allen v. Cont'l W. Ins. Co., 436 S.W.3d 548, 551
(Mo. banc 2014). The reviewing court applies the same
criteria as the trial court in determining whether summary
judgment was proper. Id. Summary judgment is only
proper if the movant is entitled to judgment as a matter of
law and no genuine issues of material fact exist.
Id. at 551-52. Facts set forth by affidavit or
otherwise in support of a motion for summary judgment are
accepted as true unless contradicted by the non-moving
party's response to the motion. Id. at 552. On
appeal, the record is reviewed in the light most favorable to
the party against whom judgment was entered, and that party
is afforded the benefit of all reasonable inferences.
three points on appeal, Salva contends that the trial court
erred in granting MOSERS's motion for summary judgment
and denying his on MOSERS's claim for money had and
received. In those points, he asserts that the trial
court erred in granting MOSERS's motion for summary
judgment and denying his because (1) it erroneously construed
and interpreted article XIII, section 3.12 to establish a
necessary element of MOSERS's claim, Salva's unjust
retention of retirement funds and (2) MOSERS's claim
sought retrospective application of Missouri law.
for money had and received is founded upon equitable
principles whereby the law implies a contract to prevent
unjust enrichment. Lowe v. Hill, 430 S.W.3d 346, 349
(Mo. App. W.D. 2014). The elements of an action for money had
and received are: (1) the defendant received or obtained
possession of the plaintiff's money; (2) the defendant
thereby appreciated a benefit; and (3) the defendant's
acceptance and retention of the money was unjust.
Id. at 349 n.1. Salva contends that his acceptance
and retention of retirement benefits was not unjust because
he did not belong to the class of individuals subject to
disqualification under article XIII, section 3.12.
Specifically, he argues that the provision cannot be applied
against him because he was not convicted of a felony while
serving in office but instead pleaded guilty to theft of
government property nearly two and a half years after his
retirement from the Missouri House of Representatives.
November 7, 2006, Missouri voters amended the Missouri
Constitution to include the following at issue in this case:
Beginning January 1, 2007, any public official subject to
this provision who is convicted in any court of a felony
which occurred while in office or who has been removed from
office for misconduct or following impeachment shall be
disqualified from receiving any pension from the state of
Const. art. XIII, § 3.12.
construe a constitutional provision, a court uses the same
rules that apply to statutory construction, except the former
are given a broader construction due to their more permanent
character. Mo. Prosecuting Attorneys v. Barton Co.,
311 S.W.3d 737, 741 (Mo. banc 2010). The primary goal in
interpreting a constitutional provision is to ascribe to the
words of the provision the meaning that the people understood
them to have when the provision was adopted. Id.
"The framers of the Constitution and the people who
adopted it must be understood to have employed words in their
natural sense, and to have intended what they have said. This
is but saying that no forced or unnatural construction is to
be put upon their language." Wenzlaff v.
Lawton, 653 S.W.2d 215, 216 (Mo. banc 1983)(internal
quotes and citation omitted). When words are not used in a
technical or legal sense, they must be given their plain and
ordinary meaning unless such construction will defeat the
manifest intent of the constitutional provision. Mo.
Prosecuting Attorneys, 311 S.W.3d at 742. Every word of
a provision is presumed to have meaning. Id.
relevant language of the disqualifying provision of article
XIII, section 3.12 is "any public official…who is
convicted in any court of a felony which occurred while in
office." Salva contends that the provision did not apply
to him because he was not a current public official at the
time of his conviction. The plain and ordinary language of
the provision, however, dictates what must occur while the
public official is in office: a felony, not a conviction.
Salva's construction of the provision that the
disqualification provision applies to active rather than
former public officials, specifically that a felony
conviction while serving in office triggers the
disqualification, ignores the plain language of the
provision. The phrase "which occurred while in
office" modifies the noun "felony" rather than
the more remote verb "is convicted." Under the last
antecedent rule, "'relative and qualifying words,
phrases, or clauses are to be applied to the words or phrase
immediately preceding and are not to be construed as
extending to or including others more remote.'"
Wyman v. Mo. Dept. of Mental Health, 376 S.W.3d 16,
21 n.7 (Mo. App. W.D. 2012)(quoting Rothschild v. State
Tax Comm'n, 762 S.W.2d 35, 37 (Mo. banc 1988)).
Reading "which occurred" to modify the noun
"felony" does not require adding language or
rewriting the sentence to make grammatical sense-such as
changing "was convicted" to "conviction"
or making felony an adjective to describe conviction. Where a
statute, or in this case a constitutional provision, is clear
and plain, a court may not rewrite it under the guise of
discerning intent. State v. Rowe, 63 S.W.3d 647, 650
(Mo. banc 2002). Moreover, Salva's construction is
unreasonable. Under Salva's interpretation, ...