TOM M. ROBERTSON, IAFF LOCAL     )
2618, ADAM GRINES, LARIN         )
TRENARY, and DANIEL JOBE,        )
                                 )
      Plaintiffs-Respondents,    )
                                 )
vs.                              )                                   No. SD32475
                                 )
POLICE AND FIREMEN'S PENSION     )                                   Filed: Feb. 5, 2014
PLAN OF CITY OF JOPLIN, TRUSTEES )
OF POLICE AND FIREMEN'S PENSION )
PLAN OF CITY OF JOPLIN, and CITY )
OF JOPLIN, MISSOURI,             )
                                 )
      Defendants-Appellants.     )


             APPEAL FROM THE CIRCUIT COURT OF JASPER COUNTY

                           Honorable David B. Mouton, Circuit Judge

REVERSED AND REMANDED WITH INSTRUCTIONS

        This case is an appeal from an amended judgment ("the judgment") entered by the

circuit court after its review of the decision of an administrative agency under the

Missouri Administrative Procedure Act ("MAPA"). See section 536.010 et. seq.1 The

issue in dispute is the appropriate calculation of retirement benefits due certain Joplin

firefighters who suffer a job-related or "duty" disability under Joplin's city ordinance



1
 References to sections 536.090 and 536.150 are to RSMo 2000. All other statutory references are to
RSMo Cum. Supp. 2012.


                                                   1
providing a retirement plan for police officers and firefighters.2 Defendants Police and

Firemen's Pension Plan of Joplin ("the Plan"), Trustees of Police and Firemen's Pension

Plan of City of Joplin ("the Board"), and the city of Joplin ("City") appeal the judgment

in favor of Plaintiffs Tom M. Robertson, IAFF Local 2618, Adam Grimes, Larin Trenary,

and Daniel Jobe on Count I of Plaintiffs' amended petition ("the petition").

        The judgment reversed the Board's determination of Robertson's pension benefit,

declaring that the Plan provides that a duty disability pension benefit "is a 50% benefit[.]"

In accordance with that declaration, the judgment ordered that Robertson be paid

$10,978.43 for "past due duty disability benefits[,]" plus accrued interest, and "that Joplin

firefighters who become disabled in the line of duty shall receive a benefit equal to 50%

of their salary as calculated in accordance with the formula in the pension ordinances, but

not reduced based upon years of service less than 20[.]" The Board had awarded

Robertson a lower benefit amount -- 37.5% of his "average monthly compensation" -- by

reducing the benefit for years of service less than 20.

        Defendants present four points of alleged error: (1) the circuit court erroneously

applied the law in that "the plain and ordinary meaning of the [P]lan's language cannot

reasonably be interpreted as granting an employee 50% of his average monthly

compensation without an adjustment based upon years of service"; (2) alternatively, the

circuit court "erroneously applied the law" in finding the Plan's language unambiguous

because it "can reasonably be interpreted as requiring a reduction in duty-disability

benefits for employees who have served fewer than twenty years"; (3) the circuit court

"misapplied the law . . . in the [P]lan and [MAPA]" by not "defer[ring] to the Board's

2
 The case was decided on competing motions for summary judgment. The parties have agreed that
Ordinance 2009-001 ("the Ordinance") codifies the current version of the retirement plan, and copies of the
Ordinance were incorporated into the parties' respective factual averments.


                                                     2
reasonable interpretation of the ambiguous provision"; and (4) the circuit court erred in

denying Defendants' motion for summary judgment on Count III because substantial

evidence "does not support a finding that the Board has violated section 5.08 of [City's]

charter."

        We agree that the Plan language at issue is unambiguous, but we must reverse the

judgment because that unambiguous language provides that a duty disability benefit is

equal to 50% of the employee's salary reduced 1/20th for each year of service less than

20.

                                            Background

        Robertson had been a City firefighter for 15 years and 11 months as of January

2011, when he was injured while on duty. He was thereafter declared disabled, and the

Board awarded him "$1,448.80 as a monthly duty-disability benefit award . . . which

represents 37.5% of his Average Monthly Compensation."3 In calculating the benefit, the

Board "appl[ied] a reduction of benefits clause, based upon Section 3.1 of the Plan." We

set forth and review the text of the applicable sections of the Plan in the analysis portion

of our opinion, infra.

        The Board is composed of City's mayor, two citizens of City, two "actively

employed Covered Employees of the Police Department, . . . and . . . [two] actively

employed Covered Employees of the Fire Department[.]" The Ordinance provides that

the police officer and firefighter members are to be elected by a majority vote of their

respective departments. The Board "may, at any time, recommend that the Plan be

amended for any reason." Any amendment to the Plan must be "approv[ed] by the


3
 In May 2011, the Board reconsidered the matter and entered the same award that it made in February
2011.


                                                   3
Participants[4] (by majority vote of those voting with respect to the amendment), and

final ratification by the City Council."

       Count I of the petition sought a declaration that "Robertson is entitled to a 50%

benefit, which would result in a monthly payment to [him] of $1,931.74[,]" that

Robertson be awarded a judgment for unpaid benefits, and that the circuit court declare

"that firefighters who become disabled in the line of duty shall receive a benefit equal to

50% of their salary" which is "not reduced based upon years of service less than 20[.]"

Count II of the petition was stated in the alternative to Count I, and it sought a

determination of benefits based upon 15 years and 11 months of service as opposed to 15

years of service.

       Count III of the petition sought a declaration that Defendants' interpretation of the

Plan was invalid as it violated City's charter, and it sought damages for City's "wrongful

actions[.]" Counts IV and V sought declarations that City had violated Robertson's

contractual rights under, respectively, article VI, section 13 of the Missouri Constitution

and Article I, Section 10 of the United States Constitution, and sought damages for said

violations. Count IV further averred that there was a 1993 vote on the Plan that "changed

the duty disability provisions from those previously existing and as described in all the

actuarial valuation reports to the position that has now been advocated by [City's

attorney] to the [Board]" and if such an interpretation is correct, then there would be "an

interference with [Robertson]'s constitutionally protected contractual rights to his proper

pension benefits." Count V incorporated this additional allegation and further contended

that City was acting as a state actor for purposes of Title 42 U.S.C. section 1983.


4
 Under Ordinance section 1.21, a "PARTICIPANT" means "any Covered Employee who is or becomes
eligible to participate in the Plan[.]"


                                               4
       Plaintiffs and Defendants each sought summary judgment on counts I and III, and

Robertson sought "summary judgment on liability only on [c]ounts IV and V[.]" After

the filing of statements of uncontroverted facts and responses thereto, the parties argued

their positions to the circuit court, and their counsel agreed that there were no disputed

facts. In their earlier proceedings before the Board, the parties had agreed "that only

legal issues were present, and that there was no need for an evidentiary hearing before the

[Board], but the matter would be decided as a matter of law following presentations to the

Board by legal counsel."

       Both sides argued in their pleadings that the terms of the Plan were unambiguous,

but they differed as to whether section 3.1(A)(1)(b) controlled the determination of

Robertson's duty disability retirement benefits. Relying on section 5.1(B) of the Plan,

Robertson claimed that duty-disabled retirees were "entitled to receive a duty-disability

benefit equal to 100% of their normal retirement benefit without any reduction in benefits

based upon years of service." Plaintiffs argued that their position was "further bolstered"

by comparing section 5.1(B)'s provision "for duty disability benefits to the language for

the calculation of non-duty disability benefits under [section] 5.2(B)" because "[a]ny

other interpretation . . . renders no difference in the amount of benefits for a participant

who suffered a duty disability versus a non-duty disability."

       In the judgment, the circuit court found that the Plan was "not ambiguous, is clear,

and can be interpreted as a matter of law without reference to outside facts and without

reference to other documents." It entered summary judgment in favor of Plaintiffs on

Count I, and it found counts II and III to be moot as a result of its resolution of Count I.




                                              5
The circuit court did not decide counts IV and V "given the Declaratory Judgment

awarded regarding Count I." This appeal timely followed the entry of the judgment.

                         A preliminary matter regarding appellate jurisdiction

           "Rule 74.01(b)[5] permits the circuit court to designate a final judgment 'as to one

or more but fewer than all of the claims or parties only upon an express determination

that there is no just reason for delay.'" Duncan v. Missouri Alliance for Children &

Families, 387 S.W.3d 389, 391 (Mo. App. W.D. 2012). The trial court made that express

determination here, but "[t]his court must independently decide whether the judgment

certified under Rule 74.01 actually qualifies as a final judgment for purposes of appeal."

Id. The trial court's "designation is effective only when the order disposes of a distinct

'judicial unit.'" First Cmty. Credit Union v. Levison, 395 S.W.3d 571, 576 (Mo. App.

E.D. 2013) (quoting Gibson v. Brewer, 952 S.W.2d 239, 244 (Mo. banc 1997)).

           Here, the circuit court found that there was "no just reason for delay" and certified

the judgment as final for purposes of appeal pursuant to Rule 74.01(b). In support of its

certification, the trial court found, inter alia, that

                    c.       The Court's judgment was based solely upon the language
                             of the [Plan] and no extrinsic evidence was considered.

                                      ....

                    e.       The only claims remaining for the court's consideration are
                             Counts IV and V which allege [Robertson] has suffered an
                             unconstitutional impairment of his contractual rights under
                             the federal and state constitutions.

                                      ....

                    h.       Determination of the constitutional claims will require
                             consideration of additional facts which the Court has not
                             yet considered including whether [Robertson] had a
5
    Unless otherwise indicated, all rule references are to Missouri Court Rules (2013).


                                                        6
                       contractual right that is protected by the federal and state
                       constitutions, and if so, whether and to what extent
                       Defendants have impaired this right.

               i.      The case does not remain pending in this Court as to all the
                       original parties as [Robertson] is the only plaintiff asserting
                       the constitutional claims in Counts IV and V.

               j.      The relief sought by Counts IV and V is different from
                       that granted by the Court's judgment in that those counts
                       seek redress for constitutional injury whereas the Court's
                       judgment simply declares [w]hat the proper interpretation
                       of the [Plan]'s language is.

       "Whether the circuit court properly entered and certified the partial summary

judgment as appealable affects our jurisdiction." Duncan, 387 S.W.3d at 391.

                In determining if a judgment disposing of less than all claims is
       final, this court must look to the claim that is the subject of the judgment
       and decide whether it constitutes one single, yet complete, claim. See
       Committee for Educational Equality v. State, 878 S.W.2d 446, 451 (Mo.
       1994). The term "one claim" constitutes "the aggregate of operative facts
       which give rise to a right enforceable in the courts." Id. Claims are
       "separate," however, "if they require proof of different facts and the
       application of distinguishable law, subject to the limitation that severing
       the claims does not run afoul of the doctrine forbidding the splitting of a
       cause of action." Id.

Fischer v. City of Washington, 55 S.W.3d 372, 377-78 (Mo. App. E.D. 2001).

       Here, the judgment decided Count I on the merits and found that counts II and III

were thereby moot. We find that the remaining counts present claims which are separate

and distinct from the claim decided in the judgment. Counts IV and V allege that if the

meaning of the Plan regarding duty disability benefits changed in 1993, then there would

be "an interference with [Robertson]'s constitutionally protected contractual rights to his

proper pension benefits." Proof of facts regarding what change, if any, was made in 1993

and whether the City qualified as a State actor were not required for the trial court to

determine the meaning of the Plan as it was in effect at the time Robertson became



                                              7
disabled. Indeed, the trial court decided the summary judgment "based solely upon the

language of the [Plan] and no extrinsic evidence was considered." The resolution of the

constitutional claims will require proof of facts wholly irrelevant to the claim decided in

the instant judgment. Further, the law applicable to the constitutional claims differs from

that applicable to the proper interpretation of the Plan. As a result, the pending

constitutional claims were rightly seen by the trial court as a separate judicial unit, and

we have appellate jurisdiction over this appeal.

                  Applicable Principles of Review and Governing Law

                           Standard of Review in the Circuit Court

         The parties agree that this case should be reviewed as a noncontested

administrative case under MAPA. "Actions which are delegated by a municipality to a

board or retained to itself to enforce an ordinance are administrative and are reviewable

under [MAPA]." Wrenn v. City of Kansas City, 908 S.W.2d 747, 749 (Mo. App. W.D.

1995).

                  The key to the classification of a case as contested or noncontested
         is the requirement of a hearing. Cade [v. State, 990 S.W.2d 32,] 36[ (Mo.
         App. W.D. 1999)]. The term "hearing," as used in section 536.010(2)
         means a proceeding at which a "measure of procedural formality" is
         followed. Hagely v. Board of Educ. of Webster Groves School Dist., 841
         S.W.2d 663, 668 (Mo. banc 1992). Procedural formalities in contested
         cases generally include: notice of the issues (section 536.067); oral
         evidence taken upon oath or affirmation and the cross-examination of
         witnesses (section 536.070); the making of a record (section 536.070);
         adherence to evidentiary rules (section 536.070); and written decisions
         including findings of fact and conclusions of law (section 536.090).

City of Valley Park v. Armstrong, 273 S.W.3d 504, 507 (Mo. banc 2009) (footnote

omitted).




                                               8
         We agree that the circuit court's review was of a noncontested case because

significant procedural formalities outlined in Armstrong are absent from section 7.6 of

the Plan. 273 S.W.3d at 507. Section 7.6, entitled "CLAIMS PROCEDURE," empowers

the Board "to govern and control the hearing, [and to make] consideration and disposition

of all claims, and other administrative matters and proceedings before such Board."6

Section 7.6 further provides:

                 The [Board] shall have exclusive original jurisdiction to receive,
         hear and rule upon all claims for benefits from the Fund [held by the
         Board] and to hear and determine all such claims in the first instance. The
         decision of the [Board] shall be in writing, and the Board shall take and
         preserve the evidence on any disputed claim and such evidence, records,
         finding and decision of the Board shall be subject to judicial review by
         certiorari or other proper legal procedure with the full right of appeal from
         the decision of the reviewing court on appeal, as in other civil cases.

         Notably absent are requirements for "notice of the issues[,]" "oral evidence taken

upon oath or affirmation[,]" "cross-examination of witnesses[,]" and "adherence to

evidentiary rules[.]" Id. Significantly, section 7.6 does not describe the precise

procedure a claimant must use to request and obtain a hearing, and it does not clearly

indicate whether the holding of such a hearing is mandatory or discretionary. Cf. Hunter

v. Madden, 565 S.W.2d 456, 459 (Mo. App. St.L.D. 1978) (holding that language in an

ordinance that the board for fire protection district "may" hold hearings was a grant of

discretion, not a requirement that a hearing be held). We find that because there are so

few procedural formalities for a hearing spelled out in the Plan, a formal hearing was not

required, and the matter constituted a noncontested case for purposes of judicial review.



6
  This section also requires that the Board's rules and regulations be "not inconsistent with State Laws, or
this Plan, or City Ordinance No. 19655," but it does not appear that City Ordinance No. 19655 is a part of
the record on appeal. "We cannot take judicial notice of ordinances not contained in the record on appeal."
Board of Educ. of City of St. Louis v. Daly, 129 S.W.3d 405, 408 (Mo. App. E.D. 2004).


                                                     9
           We do not agree with Defendants' further unqualified contention that "a court

reviewing a noncontested case is not permitted to 'substitute its discretion for discretion

legally vested in the agency[,]'" quoting section 536.150.1.7 It is true that under section

536.150.1 a trial "court shall not substitute its discretion for discretion legally vested in

the administrative agency." Missouri Nat'l Educ. Ass'n v. Missouri State Bd. of Educ.,

34 S.W.3d 266, 274 (Mo. App. W.D. 2000). But only "[u]ncontested cases for which no

other method of judicial review is provided are subject to judicial review under [s]ection

536.150[.]" State, ex rel. Nance v. Board of Trs. for Firefighters' Ret. Sys. of Kansas

City, Mo., 961 S.W.2d 90, 92 (Mo. App. W.D. 1998) (emphasis added).

           Here, section 7.6 of the Plan -- codified by the Ordinance -- provides that Board

decisions are "subject to judicial review by certiorari or other proper legal procedure[,]"




7
    Section 536.150.1 provides:

           When any administrative officer or body existing under the constitution or by statute or
           by municipal charter or ordinance shall have rendered a decision which is not subject to
           administrative review, determining the legal rights, duties or privileges of any person,
           including the denial or revocation of a license, and there is no other provision for judicial
           inquiry into or review of such decision, such decision may be reviewed by suit for
           injunction, certiorari, mandamus, prohibition or other appropriate action, and in any such
           review proceeding the court may determine the facts relevant to the question whether
           such person at the time of such decision was subject to such legal duty, or had such right,
           or was entitled to such privilege, and may hear such evidence on such question as may be
           properly adduced, and the court may determine whether such decision, in view of the
           facts as they appear to the court, is unconstitutional, unlawful, unreasonable, arbitrary, or
           capricious or involves an abuse of discretion; and the court shall render judgment
           accordingly, and may order the administrative officer or body to take such further action
           as it may be proper to require; but the court shall not substitute its discretion for
           discretion legally vested in such administrative officer or body, and in cases where the
           granting or withholding of a privilege is committed by law to the sole discretion of such
           administrative officer or body, such discretion lawfully exercised shall not be disturbed.

(Emphasis added.)



                                                        10
and it provides "the full right of appeal from the decision of the reviewing court on

appeal, as in other civil cases."8

                                    Standard of Review on Appeal

         "The court of appeals reviews the decision of the circuit court in a noncontested

case as in other court-tried cases, applying the standards established in Murphy v.

Carron, 536 S.W.2d 30, 32 (Mo. banc 1976)." State ex rel. Valentine v. Board of Police

Comm'rs of Kansas City, 813 S.W.2d 955, 957 (Mo. App. W.D. 1991).9 The judgment

from a court-tried case is therefore sustained "unless there is no substantial evidence to

support it, unless it is against the weight of the evidence, unless it erroneously declares

the law, or unless it erroneously applies the law." Murphy, 536 S.W.2d at 32; Missouri

Nat'l Educ. Ass'n, 34 S.W.3d at 274-75. We review de novo both a trial court's grant of

summary judgment and questions of statutory interpretation. Rice v. Shelter Mut. Ins.

Co., 301 S.W.3d 43, 46 (Mo. banc 2009); State, ex rel. Nixon v. Premium Standard

Farms, Inc., 100 S.W.3d 157, 161 (Mo. App. W.D. 2003).

                                                 Analysis

                                                  Point I

         Defendants' first point asserts that the trial court erred in applying the law because

the Plan "cannot reasonably be interpreted as granting an employee 50% of his average

monthly compensation without an adjustment based upon years of service." We agree.



8
  Moreover, even if section 536.150.1 were applicable, it would apply to the exercise of the Board's
discretion in determining factual matters; it would not grant discretion to the Board in resolving questions
of law. Cf. Thiemann v. Columbia Pub. Sch. Dist., 338 S.W.3d 835, 838 (Mo. App. W.D. 2011)
(interpretation of school district's self-funded insurance plan was a question of law reviewed de novo).
9
  "The review of a contested case is a review by the trial court of the record created before the
administrative body. Section 536.140. The trial court's decision upon such review is appealable, but the
appellate court also looks back to the record created before the administrative body." Furlong Cos. v. City
of Kansas City, 189 S.W.3d 157, 165 (Mo. banc 2006).


                                                     11
         "In interpreting a city ordinance, we are to apply the same rules that are used in

interpreting a state statute." BBCB, LLC v. City of Independence, 201 S.W.3d 520, 527

(Mo. App. W.D. 2006). "Ordinances are interpreted based on a review of the whole

ordinance." City of Univ. City v. AT & T Wireless Servs., 371 S.W.3d 14, 19 (Mo. App.

E.D. 2012).10 "If the ordinance is clear and unambiguous when the terms used are given

their legislative definition or their plain and ordinary meaning, then there is no room for

construction and the courts must give effect to the statute as written." Cousin's Adver.,

Inc. v. Board of Zoning Adjustment of Kansas City, 78 S.W.3d 774, 779 (Mo. App.

W.D. 2002).

         "We will look beyond the plain meaning of the statute and to the rules of statutory

construction only when the language is ambiguous or would lead to an absurd or illogical

result." City of Univ. City, 371 S.W.3d at 19. "When a statute is open to differing, but

reasonable, interpretations, it is ambiguous." Allright Props., Inc. v. Tax Increment Fin.

Comm'n of Kansas City, 240 S.W.3d 777, 780 (Mo. App. W.D. 2007). "The language of

a statute or ordinance leads to "absurd or illogical results" when there is a complete

contradiction in the language or when two statutory provisions cannot be harmonized."

City of Univ. City, 371 S.W.3d at 20.

         With these legal standards in mind, we now turn to examine the Plan language at

issue, starting with the relevant portions of section 5.1.

         5.1      DUTY DISABILITY BENEFIT

                  (B)      Benefit Amount


10
  "In interpreting ordinances, the appellate court gives words their plain and ordinary meaning, by
considering the entire act and its purposes, and by seeking to avoid unjust, absurd, unreasonable,
confiscatory, or oppressive results." Firemen's Ret. Sys. of St. Louis v. City of St. Louis, 911 S.W.2d 679,
680 (Mo. App. E.D. 1995).


                                                    12
               The duty disability benefit payable to a Covered Employee
               is a monthly benefit equal to one hundred percent (100%)
               of the Covered Employee's monthly normal retirement
               benefit described in Section 3.1. If, at the time a Covered
               Employee qualifies for duty disability benefits, he has
               fewer than: (1) twenty (20) years of Credited Service, if
               hired on or before January 31, 2009; or (2) twenty-five (25)
               years of Credited Service, if hired after January 31, 2009,
               the Covered Employee shall receive an additional ten
               percent (10%) of his monthly normal retirement benefit for
               his Eligible Spouse and for each Qualified Child, but with
               an overall maximum benefit of one hundred and thirty
               percent (130%) of his monthly normal retirement benefit.

               Any benefit payable under this Section shall be adjusted
               pursuant to Section 5.4 as applicable. [Section 5.4
               addresses "PROOF OF CONTINUING DISABILITY[.]"]

The pertinent portions of section 3.1 provide:

3.1    NORMAL RETIREMENT

       A Participant may retire on or after his Normal Retirement Date,
       and payment of the retirement benefit shall be governed by the
       following provisions:

       (A) Benefit Amount:

               (1)    The monthly normal retirement benefit of a
                      Participant hired on or before January 31, 2009,
                      shall be equal to fifty percent (50%) of the
                      Participant's Average Monthly Compensation,
                      adjusted, as applicable, in accordance with the
                      following:

                      (a)     For each year of Credited Service in excess
                              of twenty (20), the Participant shall receive
                              an additional benefit of one percent (1%) of
                              Average Monthly Compensation, up to a
                              maximum total benefit of sixty-five percent
                              (65%) of Average Monthly Compensation.

                      (b)     If the Participant has less than twenty (20)
                              years of Credited Service, the benefit shall
                              be reduced by one-twentieth (1/20) for each
                              year less than twenty (20) years.



                                    13
       Section 1.19 provides that the normal retirement date is set at "[a]ge 60" or, for

those hired on or before January 31, 2009, "the completion of twenty (20) years of

Credited Service." Credited Service includes "the total time in complete and fractional

years (based on the number of months) during which the Employee is a Covered

Employee and makes the contribution required" elsewhere in the Plan. Section 1.14.

       Section 5.2(B) specifically governs non-duty disability benefits and provides:

       5.2     NON-DUTY DISABILITY BENEFIT

               (B)     Benefit Amount

                       The non-duty disability benefit for a Covered Employee
                       with fewer than: (1) twenty (20) years of Credited Service,
                       if hired on or before January 31, 2009; or (2) twenty-five
                       (25) years of Credited Service, if hired after January 31,
                       2009, shall be a monthly benefit equal to two and one-half
                       percent (2 1/2% ), plus one-half of one percent (1/2%) for
                       his Eligible Spouse and for each Qualified Child, of the
                       Covered Employee's monthly normal retirement benefit
                       described in Section 3.1 for each full year of the Covered
                       Employee's Credited Service, with an overall maximum of
                       four percent (4%) of the Covered Employee's monthly
                       normal retirement benefit for each full year of his Credited
                       Service.

       Applying the plain and ordinary meaning of section 5.1(B)'s reference to section

3.1 results in a duty-disability benefit which adjusts downward for an employee hired on

or before January 31, 2009 who has less than 20 years of service. Plaintiffs contend that

this result is not consistent with the effect of section 5.2(B) concerning non-duty related

disability because the same result would be reached under 5.1(B) and 5.2(B) regardless of

the characterization of the disability. We disagree.

       The amounts afforded to an Eligible Spouse and Qualified Child are different for

duty and non-duty disabilities. For a duty disability under section 5.1(B), the disabled



                                             14
employee would receive an additional ten percent (10%) for an Eligible Spouse and each

Qualified Child, "with an overall maximum benefit of one hundred and thirty percent

(130%) of his monthly normal retirement benefit." For a non-duty related disability

under section 5.2(B), the benefits added on account of an Eligible Spouse and Qualified

Child are limited to one-half percent each and "an overall maximum of four percent (4%)

of the Covered Employee's monthly normal retirement benefit for each full year of his

Credited Service."11

         Further, Plaintiffs make no cogent argument as to why it would be illogical or

absurd for both types of disability to receive the same basic benefit under the Plan.

Instead, they argue canons of statutory construction disfavoring interpretations that would

render language superfluous or result in unnecessary repetition. In doing so, they cite

Davidson v. Missouri State Treasurer as Custodian of Second Injury Fund, 327

S.W.3d 583, 587 (Mo. App. S.D. 2010) (en banc) ("[w]hen interpreting a statute, our

primary aim is to ascertain the intent of the legislature from the language used and give

effect to that intent, remembering that 'every word of a statute is presumed meaningful'")

(quoting Gott v. Director of Revenue, 5 S.W.3d 155, 158 (Mo. banc 1999)). They also

cite the statement in Tuft v. City of St. Louis, 936 S.W.2d 113, 117 (Mo. App. E.D.

1996) (quotations omitted), that "[t]he general rules of statutory construction require that

meaning be given to each word used in the legislative enactment, insofar as possible and

one word of the statute should not be considered a needless repetition of another." But

the court in Tuft did not apply any rules of statutory construction. Instead, it found the

11
  The difference between the treatment of duty and non-duty disability benefits is further revealed in
section 3.10 of the Plan, which provides that "the duty disability benefit pursuant to Section 5.1 . . . shall
not exceed the difference between any worker's compensation payment received by the [covered employee]
for the same . . . disability and . . . the Covered Employee's Average Monthly Compensation."



                                                     15
ordinance at issue to be unambiguous and noted that "when the language is unambiguous,

the reviewing court is afforded no room for construction." Id. at 118-19; see also Long v.

Interstate Ready-Mix, L.L.C., 83 S.W.3d 571, 576 (Mo. App. W.D. 2002) ("[w]here the

language of the statute is clear and unambiguous, there is no room for construction").

        When the language is unambiguous, the role of the court is simply to apply the

plain and ordinary meaning of the terms used unless doing so produces an absurd or

illogical result. See City of Univ. City, 371 S.W.3d at 19. Here, as earlier noted,

Plaintiffs have failed to demonstrate why it would be absurd or illogical for the Plan to

treat all disabled employees similarly except for differences in benefits related to an

eligible spouse or qualifying child and offsets for workers compensation payments. The

sections do not repeat each other; they provide different benefits depending on whether

the disability is a duty or non-duty disability.

        Plaintiffs also argue that "[i]f [Section] 5.1(B) was simply meant to refer to the

normal retirement benefit as adjusted by [Section] 3.[1](A)(1) and (2), then the term

'100%' would be rendered superfluous." Again, such an argument has no place when an

ordinance requires no construction and is capable of being applied as written. See City of

Univ. City, 371 S.W.3d at 19. And the term "one hundred percent (100%) of the Covered

Employee's monthly normal retirement benefit described in Section 3.1" has meaning.

As written, "100%" means the entire or full benefit as calculated by the application of

section 3.1, which plainly includes a sub-section (A)(1)(b) that requires a reduction of

that "starting point" benefit when a person hired on or before January 31, 2009 has

provided less than 20 years of service.




                                              16
       Plaintiffs also argue (as the judgment found) that if the same reduction is applied

to section 5.2(B) for non-duty disability as applied to section 5.1(B) for duty disability,

then benefits for a non-duty disability would be reduced yet again so as to leave that

benefit reduced 1/20 times 1/20 for each year less than 20 years of service and thereby

"result in a maximum non-duty disability benefit of 2.4% (19/400 x 50% = 2.4%) of his

or her Average Monthly Compensation for any firefighter with less than 20 years of

service." Arguments about the meaning of section 5.2(B) ignore the fact that section

5.1(B) -- governing duty disabilities -- is worded differently than section 5.2(B), which

addresses non-duty disabilities. It is beyond the scope of this appeal to interpret the

meaning of section 5.2(B) as applied to a case involving a non-duty disability. As

Defendants point out in their reply brief, to the extent that section 5.2(B) may be

ambiguous, that does not mean that section 5.1(B) -- the subsection applicable in this case

-- is ambiguous. And it is not necessary to construe sections 5.1(B) and 5.2(B) together

in order to determine how a duty disability benefit is calculated under the Plan.

       In considering whether the unambiguous language of the Plan produces an

illogical or absurd result, it must also be remembered that amendments to the Plan may

be recommended at any time by the Board -- of which firefighters and police officers

comprise the majority -- and the proposed amendment must be approved by a majority

vote of the Participants before it is presented for ratification by City Council. Unlike

scenarios in which the beneficiaries of a retirement plan have no control or input in the

drafting of the language describing the benefit, here those who stand to benefit from the

provisions of the Plan actually control the majority of the seats on the Board. And, as

Defendants point out, if the Board had intended "for an employee to receive 50% of his




                                             17
Average Monthly Compensation regardless of years of service, Section 5.1 could plainly

have said so." Finally, the provision made by section 5.1(B) for awarding an individual's

duty disability pension does not exist in a vacuum; the Board must consider the overall

solvency and security of the Plan such that all promised benefits are actually available to

those who are entitled to receive them.

         We therefore find that applying section 3.1 as section 5.1(B) plainly directs does

not lead to an absurd or illogical result. Point I is granted.12

                                                 Decision

         Counts II and III of Plaintiffs' petition -- previously found moot by the trial court

based on its erroneous resolution of Count I -- are no longer moot. The judgment is

reversed, and the case is remanded for further proceedings on counts II, III, IV, and V, all

in accordance with the opinion of the court rendered herein.


DON E. BURRELL, J. - OPINION AUTHOR

GARY W. LYNCH, J. - CONCURS

MARY W. SHEFFIELD, J. - CONCURS




12
  Our resolution of Point I renders moot Defendants' alternative Point II. Point III, which claims that we
must defer to the Board's discretion under section 536.150.1, is also moot and will not be addressed beyond
our discussion, infra, of any effect it might have on the applicable standard of review. Point IV contends
the trial court erred in denying Defendants "summary judgment on Count III because its decision was not
based on substantial evidence[.]" Specifically, they assert "that the record does not support a finding that
the Board has violated section 5.08 of the City Charter." The trial court did not address Count III because it
found the claim moot in light of its ruling on Count I. As a result, Defendants' Point IV fails because its
premise is incorrect -- Defendants' motion for summary judgment was not denied on its merits. Given our
reversal on Point I, Count III is no longer moot and will again be at issue upon remand.


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