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Missouri State Employees' Retirement System v. Salva

Court of Appeals of Missouri, Western District, Third Division

August 30, 2016

MISSOURI STATE EMPLOYEES' RETIREMENT SYSTEM, Respondent,
v.
RAYMOND E. SALVA, SR., Appellant.

         APPEAL 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.

          VICTOR C. HOWARD, JUDGE.

         Raymond 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.

         Salva 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.

         The 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.

         Thereafter, 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 Salva followed.

         Appellate 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. Id.

         In his 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.[1] 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.

         A suit 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.

         On 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 Missouri.

         Mo. Const. art. XIII, § 3.12.

         To 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.

         The 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, ...


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