                 IN THE MISSOURI COURT OF APPEALS
                         WESTERN DISTRICT
THE PUBLIC SCHOOL RETIREMENT                 )
SYSTEM OF MISSOURI,                          )
                     Respondent,             )
v.                                           )       WD77443
                                             )
SCOTT TAVEAU,                                )       FILED: September 22, 2015
                                  Appellant. )

                        Appeal from the Circuit Court of Cole County
                          The Honorable Daniel R. Green, Judge

 Before Division Four: Alok Ahuja, C.J., Gary D. Witt, J. and Kathleen A. Forsyth, Sp. J.

       The Public School Retirement System of Missouri determined that Scott Taveau, former

superintendent of the Liberty Public School District, had been paid retirement benefits for which

he was ineligible, because he was employed on a full-time basis as the School District’s

Superintendent when the retirement benefits were paid. The Retirement System notified Taveau

that it intended to withhold payment of his future retirement benefits, to recoup the payments he

received when he was ineligible. Following a bench trial, the Circuit Court of Cole County

agreed with the Retirement System’s determination, and found that Taveau had been improperly

paid retirement benefits to which he was not entitled. Taveau appeals. We affirm.

                                      Factual Background

       Taveau served as Superintendent of the Liberty Public School District from July 1, 1999,

until June 30, 2007.
        In 2004, Taveau entered into an agreement with the School District to serve a three-year

term as Superintendent, beginning July 1, 2004, and ending June 30, 2007. Under the

agreement, Taveau had the option to “retire” from full-time employment on December 31, 2005.

The contract stated that “[f]rom January 1, 2006 through June 30, 2006, the Superintendent, at

his option, may perform his duties under Public School Retirement System regulations, including

16 C.S.R 10-5.010 and section 169.560 R.S.Mo., commonly referred to as the ‘550 hour rule’,

with no reduction in pay from the District.” The “550 hour rule” permits a school district

employee to retire from full-time employment, but continue to work for the school district on a

part-time or temporary basis while receiving retirement benefits, so long as the retiree works no

more than 550 hours in any school year, and receives no more than 50% of the annual

compensation for the position he or she fills as a retiree. See Pub. Sch. Ret. Sys. of Mo. v.

Taveau, 316 S.W.3d 338, 342 (Mo. App. W.D. 2010) (“Taveau I”).

        Taveau’s agreement with the School District also provided that “the District shall make

reasonable efforts to allow the Superintendent to continue his duties as Superintendent of

Schools during the final year of this agreement[, i.e., from July 1, 2006 through June 30, 2007,]

pursuant to the terms of House Bill Nos. 346 and 174 and section 169.596 R.S.Mo., i.e. ‘retire’

and continue employment without losing his retirement benefit from the Public School

Retirement System.” At the time of the initial contract in 2004, § 169.596 RSMo Cum. Supp.

20031 permitted retired certificated teachers to continue to work for a school district while

receiving retirement benefits for up to two years, if the school district met certain conditions and

declared that it was experiencing “a critical shortage of certificated teachers.” § 169.596.4(6),

RSMo Cum. Supp. 2003. Taveau’s 2004 agreement with the School District provided that he

        1
                Unless otherwise indicated, statutory citations refer to the 2000 edition of the Revised
Statutes of Missouri, updated through the 2013 Cumulative Supplement.


                                                     2
would advise the Board if he intended to exercise the option to continue his employment under

the “critical shortage” statute. The agreement provided that “if by July 1, 2006, the

Superintendent is unable to qualify for continued or re-employment with the District without loss

of retirement benefit, the Superintendent shall withdraw his ‘resignation’ and both parties shall

continue to be bound by the terms of this agreement.”

       In 2005, the Missouri General Assembly amended § 169.596.1, to specify that “no such

retired certificated teacher shall be employed as a superintendent.” S.B. 287, 2005 Mo Laws

1311, 1371. As a result of the 2005 statutory amendment, Taveau no longer had the option of

working his final year as Superintendent as a retiree based on a “critical shortage” of candidates

for the position. Following the 2005 statutory change, Taveau and the School District signed an

“Addendum” to Taveau’s contract. Under the Addendum, Taveau agreed that during the 2006-

2007 school year, he would receive only half of his annual salary, and would continue to serve as

Superintendent under the 550 hour rule. The Addendum also provided that, following the end of

his term as Superintendent on June 30, 2007, Taveau would serve as a consultant for the District

from July 1 to December 31, 2007. The Addendum provided that Taveau would receive

approximately the other half of his salary, split into two payments, for his work as a consultant.

Thus, under the Addendum, Taveau would receive an amount of compensation approximately

equal to his full-time annual salary for the 2006-2007 school year, paid over eighteen months,

while also receiving his full retirement benefits during that period.

        In November 2005, Taveau notified the Retirement System of his impending

“retirement” as of December 31, 2005, and the Retirement System subsequently began paying

Taveau his retirement benefits. Taveau continued to work as the School District’s Superintendent




                                                  3
until June 30, 2007. The School District also paid Taveau the consulting fees specified in the

Addendum following the termination of his service as Superintendent.

       In 2006, the Retirement System received information indicating that Taveau had

continued to work full-time following his purported retirement on December 31, 2005. Over the

next two years, the Retirement System sent Taveau and the School District a number of letters

requesting a clarification of Taveau’s working relationship with the District. After extensive

correspondence, the Retirement System determined in July 2008 that Taveau was not, in fact,

entitled to collect retirement benefits during the period from January 1, 2006 through June 30,

2007. Pursuant to this determination, the Retirement System withheld retirement benefit

payments from July 2008 forward, to recover the sums improperly paid, along with eight percent

interest. The total amount of the overpayment found by the Retirement System, exclusive of

interest, was $ 212,471.46.

       Natalie Shelton, a reporter with the Liberty Tribune newspaper, interviewed Taveau

concerning his purported retirement. The results of Shelton’s investigation were published under

the headline “Retired or on the job?” During the interview, Shelton reported that she asked

Taveau about his work schedule over the last two school years of his employment. Shelton

quoted Taveau as saying, “[t]he first thing is that there’s no such thing as a part-time

superintendent. . . . I was 24/7. I worked 10-, 12-, 14-hour days. . . . That last year I was full

time. I worked my tail off.” Shelton also quoted Taveau as stating that, following the

termination of his service as Superintendent, he was “not a consultant. It was the second part of

my salary, pure and simple – duty owed. . . . Everyone understood it was not a consultant.”

Taveau was also quoted explaining that “[t]here’s no impropriety here. . . . I worked a year and

got a year’s salary. If anyone wants to portray it differently, it’s not true.”




                                                   4
        The School District hired an independent accounting firm, Westbrook and Co., to

investigate alleged fraud and abuse in the District. With respect to the consulting arrangement

called for by the Addendum, Westbrook and Co. concluded:

        [Based on a] review of payroll and vendor records[,] . . . the District paid a consulting fee
        of $90,764 to a past superintendent. The consulting agreement covered a period of time
        from July 1, 2007 through December 31, 2007. Based on review of records and
        interviews, we were unable to document any benefits received from this consulting
        agreement.

        On August 1, 2008, the Retirement System filed a declaratory judgment petition against

Taveau, seeking a declaration that he was not entitled to receive retirement benefits for the

period from January 1, 2006 through June 30, 2007, and that the School District was required to

make contributions to the Retirement System in connection with Taveau’s continued full-time

employment during that period. Taveau filed a counterclaim against the Retirement System and

a third-party petition against certain Retirement System employees, alleging that the Retirement

System’s withholding of his retirement benefits to recoup payments previously made to him was

unlawful. Ultimately, Taveau alleged claims for unjust enrichment, violation of due process

under 42 U.S.C. § 1983, breach of contract, breach of fiduciary duty, and detrimental reliance.

Taveau requested injunctive and mandamus relief, and monetary damages.

        The circuit court granted summary judgment to the Retirement System on May 21, 2009.

Taveau appealed, and we reversed. Taveau I, 316 S.W.3d 338.2 Although we found that the

Retirement System’s summary judgment motion and supporting materials made a prima facie

case that Taveau had not in fact retired on December 31, 2005, id. at 346, we concluded that

Taveau had presented contrary evidence sufficient to create a genuine issue of material fact as to

        2
                 The School District did not appeal the circuit court’s grant of summary judgment against
it, which found that the District was required to make contributions to the Retirement System with respect
to Taveau’s full-time employment from January 1, 2006, through June 30, 2007. The District complied
with the 2009 judgment, and is not a party to this appeal.


                                                    5
whether he had effected a bona fide retirement. Id. at 347. Assuming that Taveau in fact retired

on December 31, 2005, we held that a genuine issue of material fact also existed as to whether

Taveau thereafter complied with the 550 hour rule, and – if he violated the rule – when that

violation occurred, causing him to forfeit retirement benefits from that point forward. Id. at 348-

56. We remanded the case to the circuit court for trial on the Retirement System’s and Taveau’s

claims. Id. at 356.

       On remand from this Court, the circuit court conducted a twelve-day bench trial. On

March 18, 2014, the court entered a 34-page judgment which made detailed findings of fact and

conclusions of law. The court found that “[t]he overwhelming evidence in the record is that

Taveau did not actually retire from Liberty on December 31, 2005, and there is no credible

evidence that Taveau did actually retire[] from Liberty at any point prior to June 30, 2007.”

Because he had not actually retired, the court concluded that Taveau was not entitled to receive

retirement benefits from January 1, 2006 through June 30, 2007, and that the Retirement System

was justified in recouping the benefits paid during that period. The court found against Taveau

on his affirmative claims.

       Taveau appeals.

                                        Standard of Review

       In a bench-tried case, “the decree or judgment of the trial court will be sustained by the

appellate court 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 v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976).

               In reviewing questions of fact, the reviewing court will defer to the trial
       court's assessment of the evidence if any facts relevant to an issue are contested.
       . . . Once contested, a trial court is free to disbelieve any, all, or none of the
       evidence, and the appellate court's role is not to re-evaluate testimony through its
       own perspective. The trial court receives deference on factual issues because it is


                                                  6
       in a better position not only to judge the credibility of the witnesses and the
       persons directly, but also their sincerity and character and other trial intangibles
       which may not be completely revealed by the record.

Pearson v. Koster, 367 S.W.3d 36, 44 (Mo. banc 2012) (citations and internal quotation marks

omitted).

       We review questions of law de novo. Jennings v. Atkinson, 456 S.W.3d 461, 464 (Mo.

App. W.D. 2014).

                                             Analysis

       As a general matter, “a prerequisite for a person to receive retirement benefits [from the

Retirement System] is that person’s actual retirement from the public school system.” Taveau I,

316 S.W.3d at 342. “Section 169.560 provides a minor exception to this rule by allowing a

retiree to maintain part-time employment with the public school system and receive retirement

benefits.” Id. Section 169.560 provides in relevant part:

                Any person retired and currently receiving a retirement allowance
       pursuant to sections 169.010 to 169.141, other than for disability, may be
       employed in any capacity in a district included in the retirement system created by
       those sections on either a part-time or temporary-substitute basis not to exceed a
       total of five hundred fifty hours in any one school year, and through such
       employment may earn up to fifty percent of the annual compensation payable
       under the employing district's salary schedule for the position or positions filled
       by the retiree, given such person’s level of experience and education, without a
       discontinuance of the person’s retirement allowance. If the employing school
       district does not utilize a salary schedule, or if the position in question is not
       subject to the employing district's salary schedule, a retiree employed in
       accordance with the provisions of this section may earn up to fifty percent of the
       annual compensation paid to the person or persons who last held such position or
       positions. . . . Such a person shall not contribute to the retirement system or to
       the public education employee retirement system established by sections 169.600
       to 169.715 because of earnings during such period of employment. If such a
       person is employed in any capacity by such a district on a regular, full-time basis,
       the person shall not be eligible to receive the person’s retirement allowance for
       any month during which the person is so employed and shall contribute to the
       retirement system.




                                                 7
        Taveau I explained that a retiree must satisfy two separate criteria to be entitled to

retirement benefits while continuing to be employed by a school district. First, “the person must,

in fact, retire from full-time employment.” 316 S.W.3d at 342. Second, the retiree must

establish compliance with the 550 hour rule. “Even if the retiree has retired from full-time

employment, the statute further requires that retiree (1) work no more than 550 hours, and (2)

make no more than 50% of the salary at that position.” Id. Taveau I made clear that the 550

hour rule does not come into play unless this first criteria – actual retirement from full-time

employment – is satisfied: “Under the statute, there is no necessity to examine the number of

hours worked by the retiree nor the amount of compensation received by the retiree unless the

retiree does, in fact, retire from full-time employment.” Id.3 As reflected in our disposition of

Taveau I, the question whether Taveau had complied with the requirements of § 169.560 was

primarily a factual issue, which could only be resolved by trial.

                                                    I.

        Taveau first argues that the trial court “erred and misapplied the law” by concluding that

he had not actually retired as of December 31, 2005. Taveau argues that “the question of


        3
                 Taveau I found that there was a genuine issue of material fact whether Taveau had in fact
retired as of December 31, 2005, and that this genuine factual dispute precluded the grant of summary
judgment to the Retirement System. Because the “actual retirement” issue could not sustain the circuit
court’s grant of summary judgment, we also examined whether a genuine issue of material fact existed as
to Taveau’s compliance with the 550 hour rule. Our discussion of the 550 hour rule began by re-
emphasizing that § 169.560 establishes two separate criteria: (1) actual retirement; and (2) compliance
with the 550 hour rule:
        [T]he only reason we proceed to analyze the 550 hour and 50% compensation limitations
        of section 169.560 is because we have first concluded that there exists a material dispute
        as to the fact of whether or not Taveau did, in fact, retire from full-time employment with
        LPSD. Had we concluded that no material dispute existed on that issue and that the
        undisputed facts confirmed that Taveau had not retired from full-time employment, it
        would not be necessary to examine the 550 hour and 50% compensation limitations as
        examination of those issues only become relevant if the purported retiree has, in fact,
        retired from full-time employment.
316 S.W.3d at 348.


                                                     8
whether [he] retired on that date called for a legal conclusion.” According to Taveau, the legal

question of whether or not he retired on December 31, 2005, is answered by the terms of his

employment contract with the School District. Taveau contends that, “[a]bsent an ambiguity,

neither the trial court nor [the Retirement System] had the discretion to interpret or deviate from

the terms of the contract between [Taveau] and [the School District].” In addition to the terms of

the contract, Taveau cites the testimony of multiple School Board members, that they intended

that Taveau would continue to work for the School District as a part-time retiree. Taveau also

emphasizes that, beginning on January 1, 2006, the School District stopped making contributions

to the Retirement System on his behalf, and identified Taveau’s status on various accounting

reports as “retired.” Finally, Taveau refers to the fact that the Retirement System in fact paid

retirement benefits to him throughout the period from January 1, 2006 through June 30, 2007.

       Taveau’s first Point misconceives the inquiry we directed the circuit court to conduct on

remand. Taveau I makes clear that the issue of whether Taveau actually retired from full-time

employment on December 31, 2005, was a factual question, not a legal issue, which the circuit

court was required to resolve after considering all of the circumstances surrounding Taveau’s

post-December 2005 employment. If the terms of Taveau’s contract with the School District

were controlling, there would have been no need for Taveau I to remand the case to the circuit

court for trial. Taveau cites no authority for the proposition that the characterization of an

individual’s employment status in an employment contract, to which the Retirement System was

not a party, could excuse the individual from complying with the requirements of § 169.560, and

we are aware of none. Cf. Empson v. Mo. Hwy. & Transp. Comm’n, 649 S.W.2d 517, 521 (Mo.

App. W.D. 1983) (“the mere characterization of one party (in a contract) as an independent




                                                  9
contractor is not controlling of the question of agency [for purposes of vicarious tort liability]

where surrounding facts evince an agency relationship, however artfully disguised”).

       In any event, Taveau’s contract with the School District did not excuse him from

complying with § 169.560. To the contrary, both the 2004 contract and the Addendum specified

that Taveau would “perform his [post-December 31, 2005] duties under Public School

Retirement System regulations, including . . . section 169.560 R.S.Mo.” The testimony of

School Board members cited by Taveau establishes nothing more than that they contemplated

that he would continue as the Liberty School District’s Superintendent within the limitations

imposed by § 169.560. Thus, even under the contract, the factual question remains: did

Taveau’s post-December 31, 2005 employment comply with § 169.560? Based on a detailed

review of the evidence presented during a twelve-day bench trial, the circuit court concluded that

Taveau had failed to comply with § 169.560 in his post-December 31, 2005 employment. While

Taveau’s contract with the School District may have permitted him to continue as

Superintendent under the constraints of § 169.560, the circuit court found, as a matter of fact,

that he had not done so. The trial court’s factual findings do not constitute a “rewriting” or a

“deviation” from the terms of his employment contract, as Taveau contends; instead, the circuit

court simply found that he had failed to comply with those terms and the governing statute.

       The fact that the School District designated Taveau as “retired” in its records, and

stopped making Retirement System contributions on his behalf, is also not dispositive. Once

again, Taveau cites no legal authority for the proposition that the School District’s

characterization of his employment status could bind the Retirement System. In addition, the

circuit court’s 2009 summary judgment ruling determined that the School District acted




                                                 10
erroneously by characterizing Taveau as a retiree, and the School District has acquiesced in that

judgment. See note 2, above.

       The fact that the Retirement System initially paid Taveau retirement benefits for the

period from January 1, 2006, through June 30, 2007, likewise does not justify reversal. As we

explain in § III, below, Taveau has failed to develop any argument that the Retirement System

lacks statutory authority to recoup retirement benefit payments which it previously paid in error.

The Retirement System’s initial (albeit erroneous) payment of benefits to Taveau is not

dispositive.

       Taveau’s argument under his first Point also contends that, “[e]ven if one considers the

trial court’s finding that appellant did not retire in December 2005 to be a factual rather than a

legal conclusion, such a determination is against the weight of the evidence.” Taveau’s Point

Relied On does not make a “weight of the evidence” claim, and it is therefore not properly

presented for our review. J.A.R. v. D.G.R., 426 S.W.3d 624, 629-30 & n.10 (Mo. banc 2014).

Even if a “weight of the evidence” argument were properly presented, Taveau’s argument on this

score merely references, again, the evidence discussed above: the terms of his contract with the

School District; the testimony of School Board members that they desired Taveau to continue his

employment as Superintendent under the limitations of § 169.560; the fact that the School

District characterized him as “retired”; and the fact that the Retirement System actually paid him

retirement benefits. We have explained above why none of these facts mandate a decision in

Taveau’s favor.

       Taveau’s “weight of the evidence” claim fails to acknowledge the evidence on which the

circuit court relied to find that he had not actually retired in December 2005. Given the nature of

Taveau’s argument, we find it unnecessary to review all of the evidence adduced during the




                                                 11
twelve-day bench trial, or all of the findings made by the circuit court in its 34-page judgment.

We merely summarize some of the factual findings made by the circuit court which support its

decision.4

        First and foremost, the trial court’s judgment found that Taveau had in fact made the

statements attributed to him by reporter Natalie Shelton. Those statements, quoted above, admit

that Taveau continued to work full-time following his purported resignation, and that the

“consulting fees” he received after the conclusion of the 2006-2007 school year were merely the

second half of his compensation for his full-time employment as Superintendent during that

school year. Taveau’s admissions in his interview with Shelton, standing alone, are sufficient to

support the judgment.

        The circuit court also found that a time log prepared by Taveau, which purportedly

demonstrated his compliance with the strictures of § 169.560, was “inaccurate, incomplete, self-

serving, and by his own testimony a[n] attempt to create a ‘fictitious’ record.” The court

specifically noted that the log did not “include time Taveau worked for Liberty when he was not

in his office even though it was very common for Taveau to work outside his office by attending

conferences, meetings, using his Liberty laptop and by telephone.” Taveau’s log reported 512

hours worked during the 2006-2007 school year. The trial court specifically found that the log

failed to record time on 60 days when the evidence indicated that Taveau was either present in

the School District’s central office, or attending education conferences. The trial also found that

the log “did not include any hours worked for Liberty when Taveau worked outside the office by

        4
                 Taveau’s Brief argues that the circuit court improperly “deferred to [the Retirement
System’s] after the fact determination that [Taveau] had not retired.” This claim is frivolous. The circuit
court heard evidence for twelve days, and made detailed findings of fact to support its conclusion that
Taveau had not retired in December 2005. There is no indication in the judgment that the circuit court
deferred to the Retirement System’s decision, as opposed to making its own independent factual
determinations based on the evidence presented at trial.


                                                    12
making telephone calls to Liberty employees, reading and sending e-mail from his Liberty e-mail

address and attending business meetings where he charged expenses to his Liberty credit card.”

       The judgment notes that the calendar maintained by Taveau’s secretary showed that he

was in the office on 76 weekdays during the period from January 1, 2006 to June 30, 2006, and

on 151 weekdays during the 2006-2007 school year. The trial court also found that Taveau

attended education conferences on at least 22 additional days, and “commonly worked outside of

the office.” In addition, Taveau “sent numerous [work-related] e-mails,” and “made numerous

[work-related] telephone calls,” on days he claimed to not have worked.

       The circuit court also found that the consulting fee required by the Addendum was a

sham. The court found that “Taveau did not do any work as a consultant to his successor as

superintendent,” and that “[t]here is no evidence that Taveau performed any work for Liberty

after June 30, 2007.” The court found that “Taveau wanted this ‘consultant fee’ included in his

compensation so that he would receive the same amount of compensation for the 2006-07 school

year that he was going to earn under the Employment Agreement, while characterizing part of

that compensation as a ‘consultant fee’ rather than salary.” The circuit court also relied on the

conclusion of the School District’s accountants, Westbrook & Co., that “Taveau did not do any

work in return for that [consultant] fee.”

       The School District’s public statements treated June 30, 2007 – not December 31, 2005 –

as Taveau’s retirement date. The School District’s newsletter referred to the Addendum as

“extending the superintendent’s employment through the 2006-2007 school year.” The minutes

of the School Board did not indicate that Taveau resigned at any time before June 30, 2007, and

Taveau did not provide a resignation letter effective December 31, 2005, although requested to




                                                13
do so.5 Inconsistent with a purported December 2005 retirement, the School District’s July 2006

newsletter reported that Taveau “announced he will retire effective June 30, 2007, at the regular

business meeting of the Liberty Board of Education held July 24, 2006,” after “hav[ing] served

eight years as Liberty’s Superintendent of Schools.”

        Although Taveau offered testimony which contradicted (or offered a benign explanation

for) the evidence described above, the court explicitly found Taveau’s testimony to be “not

credible.” In a bench tried case such as this, “the trial court determines the credibility of

witnesses and is free to believe or disbelieve all or part of the witnesses' testimony. We defer to

the trial court on credibility determinations even if the evidence could support a different

conclusion.” Exch. Bank of Mo. v. Gerlt, 367 S.W.3d 132, 136 (Mo. App. W.D. 2012) (citations

and internal quotation marks omitted).

        For all of these reasons, we reject Taveau’s first Point. The circuit court properly applied

the law, and was supported by substantial competent evidence, in concluding that Taveau had not

retired from full-time employment with the School District until June 30, 2007, and was

therefore not entitled to receive retirement benefits until that time. We note that Taveau I found

that the Retirement System’s summary judgment briefing had made a prima facie case that

Taveau had not resigned as of December 31, 2005, based on the presentation of evidence similar

to that which the Retirement System introduced at trial. 316 S.W.3d at 346.

        Taveau’s second, third and fourth Points all challenge the circuit court’s additional

conclusion that Taveau had not complied with the 550 hour rule in his employment after
        5
                  Taveau argues that the circuit court “impose[d] yet another term into the agreement” by
finding that he was required to submit a resignation letter in order to retire effective December 31, 2005.
The trial court imposed no such requirement; instead, it simply found that the absence of a resignation
letter was additional evidence that Taveau did not, in fact, retire when he claimed he did. Although such
letters may not have been required, Carol Embree, Chief Financial Officer for the School District,
testified that an official resignation letter “would be what typically would happen with regard to people
changing their employment status.”


                                                    14
December 31, 2005, assuming that he had actually retired on that date. Given the finding that

Taveau did not actually retire in December 2005, it is unnecessary to address his compliance

with the 550 hour rule for reasons explained above.

                                                  II.

       In his fifth Point, Taveau contends that his right to due process of law was violated,

because his retirement benefits were taken without affording him a pre-deprivation hearing.

Taveau claims that “[u]nless a pre-deprivation hearing is truly burdensome in proportion to the

liberty or property interest at stake, or the state is truly unable to anticipate and prevent a random

deprivation of the property, pre-deprivation notice and a hearing are required before an

individual may be deprived of his property.”

              The due process clauses of the United States and Missouri constitutions
       prohibit the taking of life, liberty or property without due process of law. . . . In
       determining what process is due in a particular case, a court first determines
       whether the plaintiff has been deprived of a constitutionally protected liberty or
       property interest. If so, a court then examines whether the procedures attendant
       upon the deprivation of that interest were constitutionally sufficient.

               Under both the federal and state constitutions, the fundamental
       requirement of due process is the opportunity to be heard at a meaningful time
       and in a meaningful manner. This does not mean that the same type of process is
       required in every instance; rather, due process is flexible and calls for such
       procedural protections as the particular situation demands. Three factors must be
       considered in determining what procedures are constitutionally sufficient:

               [1] First, the private interest that will be affected by the official action;
               [2] second, the risk of an erroneous deprivation of such interest through
               the procedures used, and the probable value, if any, of additional or
               substitute procedural safeguards; and [3] finally, the Government's
               interest, including the function involved and the fiscal and administrative
               burdens that the additional or substitute procedural requirement would
               entail.

Jamison v. State Dept. of Soc. Servs., 218 S.W.3d 399, 405 (Mo. banc 2007) (citations, footnote,

and internal quotation marks omitted).




                                                  15
       Although the Retirement System disputes whether Taveau had a protected property

interest in the receipt of retirement benefits to which he was not statutorily entitled, we assume

for purposes of our analysis that Taveau had a property interest protected by due process

safeguards. We must then examine “the risk of an erroneous deprivation of such interest through

the procedures used, and the probable value, if any, of additional or substitute procedural

safeguards.”

       Taveau’s briefing assumes that a “pre-deprivation hearing” must be conducted in-person,

and that no pre-deprivation hearing was provided to him in this case. Taveau’s assumption is

inaccurate. Procedures “which inform[] [an] employee of the claims against him and [offer] a

chance to tell his side of the story[,]” and which give an agency “an opportunity to halt the

suspension if further investigation were needed[,]” have been found to “substantially alleviate[]

the risk of an erroneous deprivation[.]” State ex rel. Donelon v. Div. of Emp’t Sec., 971 S.W.2d

869, 876 (Mo. App. W.D. 1998). In Laubinger v. Laubinger, 5 S.W.3d 166 (Mo. App. W.D.

1999), we specifically held that the opportunity to present a party’s position in writing prior to

the circuit court’s entry of an order mandating the payment of child support pendente lite

(“PDL”), was sufficient to satisfy due process principles, where the decision was subject to

further review in connection with the final disposition of a dissolution action. We explained:

       [The] pre-deprivation opportunity to be heard does not have to be a formal
       judicial hearing. Pre-deprivation procedures, when coupled with adequate post-
       deprivation remedies, are sufficient where they provide an initial check against
       mistaken decisions. Here, both the appellant and the respondent were allowed to
       file suggestions in support of or in opposition to the respondent’s application for
       PDL orders, affidavits, and various court-approved forms providing extensive
       financial information concerning the relevant issues in determining temporary
       child support, attorney's fees and costs. Given the extensive nature of the
       information the parties submitted, the risk of erroneous deprivation here was very
       small.

              . . . The opportunity to present reasons, either in person or in writing,
       why a proposed action should not be taken is sufficient to satisfy due process.


                                                 16
Id. at 176 (citations and internal quotation marks omitted).

        Here, the Retirement System sent several letters to Taveau and to the School District,

over a roughly two-year period, that explained the Retirement System’s concerns regarding

Taveau’s December 2005 “retirement,” and requested specific information to address those

concerns. The letters offered several opportunities for Taveau and the School District to

respond, and commented extensively on the responses the Retirement System received.

        Given the multiple opportunities the Retirement System gave to Taveau to explain his

position and offer evidence in writing, his claim that he was denied a pre-deprivation hearing is

simply inaccurate.6 Taveau does not separately argue that the pre-deprivation opportunity to be

heard which the Retirement System gave him was constitutionally inadequate. We therefore do

not decide whether the extensive exchange of correspondence discussed above, and the

availability of prompt post-deprivation review, was sufficient to satisfy due-process

requirements. We merely hold that – contrary to Taveau’s argument – he was in fact provided




        6
                 We also note that significant post-deprivation procedures were available to Taveau under
16 CSR 10-1.050. The rule provides that, once a request for review is made, “review will be held at the
next regularly scheduled board meeting that is at least thirty (30) days after the request for review is
received.” 16 CSR 10-1.050(3). Decisions on such appeals will “[n]ormally . . . occur at the same
meeting as the request is initially presented to the board[.]” 16 CSR 10-1.050(8). If the board is unable
to make a decision at the meeting at which the request for review is presented, “[i]n those instances, the
board will make its decision at the next regularly scheduled board meeting.” 16 CSR 10-1.050(8).
        Although Taveau argues that he was not required to take advantage of the opportunity for post-
deprivation review, the availability of those procedures would be relevant to Taveau’s due process claim.
                 [P]re-deprivation process must simply provide an initial check against mistaken
        decisions – essentially, a determination of whether there are reasonable grounds to
        believe that the charges against the employee are true and support the proposed action.
        Specifically . . . where a prompt post-deprivation evidentiary hearing is available, due
        process requires only that the employee be afforded notice of the charges, an explanation
        of the employer's evidence, and an opportunity to present his or her side of the story prior
        to the deprivation.
Belton v. Bd. of Police Com'rs of Kansas City, 708 S.W.2d 131, 138 (Mo. banc 1986) (citation omitted).


                                                    17
with an opportunity to be heard prior to the deprivation of his property interests, and his due

process argument accordingly fails.

                                                 III.

       Taveau’s sixth Point claims that he detrimentally relied upon the Retirement System’s

representations that he had complied with the eligibility requirements for payment of retirement

benefits, and should not be punished for his reliance on the Retirement System’s statements.

“[T]he ‘doctrine of equitable estoppel is rarely applied in cases involving a governmental entity,

and then only to avoid manifest injustice.’” Lalani v. Dir. of Revenue, 452 S.W.3d 147, 149

(Mo. banc 2014) (citation omitted). Given the trial court’s findings that Taveau continued his

full-time employment despite informing the Retirement System that he had retired and was only

performing the limited work permitted by § 169.560, no manifest injustice resulted here.

       Claims based on detrimental reliance also require that reliance on the actions or

statements of another be justifiable. See Wellcraft Marine v. Lyell, 960 S.W.2d 542, 547 (Mo.

App. W.D. 1998). As explained above, while there is no dispute that Taveau notified the

necessary parties of his purported retirement, the circuit court found that he did not, in fact,

retire. The Retirement System, acting in good faith on Taveau’s representations, paid retirement

benefits accordingly. Given that Taveau was aware of the actual nature of his continued

employment, he could not have justifiably relied on the Retirement System’s statements or

actions, which rested on the assumption that he was complying with § 169.560. We also note

that it is the recognized public policy of Missouri that individuals should not be allowed to

benefit from their own wrongdoing. See, e.g., James v. Paul, 49 S.W.3d 678, 688 (Mo. banc

2001); Carr v. Holt, 134 S.W.3d 647, 651 (Mo. App. E.D. 2004). We reject Taveau’s

detrimental reliance claim.




                                                  18
       Taveau also claims the Retirement System had a fiduciary duty to provide retirement

benefits to him, and that it had no statutory power to withhold those funds. We fail to see how

the Retirement System could have a fiduciary duty to make retirement benefits payments to

individuals who do not satisfy the statutory criteria for receipt of those benefits. Moreover,

although Taveau’s briefing makes the assertion that the Retirement System lacks the statutory

authority to withhold future benefit payments to recoup benefits previously paid in error, he does

not cite any authority to support this argument. Although the issue was not then ripe for

consideration, Taveau I observed “that section 169.080 RSMo 2000 would appear to be

instructive on the issue of correcting overpayments made to retirees under the subject retirement

system, should the trial of this case result in a determination that Taveau received more

retirement benefits than he was entitled to receive.” 316 S.W.3d at 356 n.6. Despite this

statement in our prior opinion, Taveau’s briefing does not cite § 169.080, much less make any

argument as to why the statute would be inapplicable here. Section 169.080 provides that,

              [s]hould any change or error in records result in any member or
       beneficiary receiving from the retirement system more or less than he would have
       been entitled to receive had the records been correct, the board of trustees shall
       have the power to correct such error and, as far as practicable, may adjust the
       payments in such manner that the actuarial equivalent of the benefit to which such
       member or beneficiary was correctly entitled shall be paid.

In the absence of any contrary argument from Taveau, we hold that § 169.080 authorized the

Retirement System to recover funds previously paid to Taveau in error, through the adjustment

of his future benefit payments.

       Given that the Retirement System had the statutory authority to withhold his future

benefit payments, Taveau’s claim that the Retirement System was unjustly enriched by such

withholding likewise fails. “To establish the elements of an unjust enrichment claim, the

plaintiff must prove that (1) he conferred a benefit on the defendant; (2) the defendant



                                                19
appreciated the benefit; and (3) the defendant accepted and retained the benefit under inequitable

and/or unjust circumstances.” Howard v. Turnbull, 316 S.W.3d 431, 436 (Mo. App. W.D.

2010). Here, there was no inequitable or unjust retention.

       Point VI is denied.

                                                 IV.

       In his final Point, Taveau claims that the circuit court erroneously considered evidence of

a dismissed criminal indictment against him, and his later guilty plea which resulted in a

suspended imposition of sentence.

       As background, it appears that Taveau was initially charged, by indictment, with stealing

by deceit in connection with his receipt of retirement benefits during the period at issue in this

case. That charge was not prosecuted to a conclusion. Instead, Taveau later pled guilty to the

misdemeanor of engaging in a deceptive business practice, associated with his use of a School

District credit card. The parties dispute whether the original indictment was amended to charge a

deceptive business practice, or instead whether the original indictment was dismissed, and a new

charge filed.

       In its judgment, the circuit court specifically referred to the indictment and Taveau’s later

guilty plea. It explained:

               The Court finds this evidence relevant to Taveau’s claims under 42 U.S.C.
       § 1983. The evidence against Taveau in his criminal case was similar to the
       evidence that caused [the Retirement System] to conclude that Taveau was not
       entitled to retirement benefits and that it had a statutory duty to withhold Taveau’s
       benefits. Taveau’s guilty plea tends to prove that [the Retirement System]’s
       decision to withhold his retirement benefits was not arbitrary and capricious.

       There are at least two problems with Taveau’s argument, even if we assume that the

evidence of his criminal prosecution and guilty plea was inadmissible. First, when the

Retirement System initially sought to introduce evidence concerning the criminal charges



                                                 20
Taveau objected, and the trial court sustained his objection. Evidence concerning the criminal

charges was first admitted into evidence during Taveau’s direct examination by his own counsel;

the Retirement System’s counsel then cross-examined Taveau concerning the charges without

objection. “A party may not complain on appeal that the trial court erred in admitting evidence if

the complaining party was the first to admit evidence of that type.” St. Louis Cnty. v. River Bend

Estates Homeowners’ Ass’n, 408 S.W.3d 116, 125 (Mo. banc 2013). We recognize that Taveau

may have introduced this evidence to clarify the nature and disposition of the criminal charges,

because the charges were discussed with the circuit court when the Retirement System sought

(unsuccessfully) to introduce evidence of those charges. But the fact remains that it was Taveau

who actually introduced the criminal charges into evidence. “A party who has introduced

evidence concerning a certain fact may not on appeal complain that his opponent was allowed to

introduce related evidence, in rebuttal or explanation.” Bowls v. Scarborough, 950 S.W.2d 691,

702 (Mo. App. W.D. 1997) (where party’s motion in limine to exclude evidence is denied, the

party must “await an attempt by [the adverse party] to introduce [the challenged] evidence . . .

and object at that time”; by preemptively introducing the evidence, appellant waived any

objection).

       In addition, the judgment states that evidence of the criminal charges was relevant only

for a limited purpose. According to the judgment, this evidence “tends to prove that [the

Retirement System]’s decision to withhold his retirement benefits was not arbitrary and

capricious,” and the evidence was therefore relevant to Taveau’s claims under 42 U.S.C. § 1983.

We presume from this statement that the trial court considered the evidence relevant to a

substantive due process claim, where the rationality or irrationality of the Retirement System’s

actions might be in issue. See Peer v. Mo. Bd. of Pharmacy, 453 S.W.3d 798, 811 (Mo. App.




                                                21
W.D. 2014); Indep. Living Ctr. of Mid MO, Inc. v. Dep’t of Social Servs., 391 S.W.3d 52, 58-59

(Mo. App. W.D. 2013). The trial court actually found – after hearing twelve days of testimony –

that Taveau had not been eligible to receive the retirement benefits paid to him; this

determination did not rely on evidence of the criminal charges.7 The Retirement System’s denial

of Taveau’s retirement benefits could not be irrational where its decision was legally justified

and correct. Thus, the criminal charges added nothing of consequence, and Taveau could not

have been prejudiced by the trial court’s consideration of that evidence in relation to his due

process claim.

                                               Conclusion

        The circuit court’s judgment is affirmed.




                                                          __________________________________
                                                          Alok Ahuja, Chief Judge
All concur.




        7
                 We presume in a bench trial that a trial court did not rely on challenged evidence unless
the record clearly indicates otherwise. See, e.g., State v. McMillon, 436 S.W.3d 663, 671 (Mo. App. E.D.
2014). Consistent with that principle, we presume in this case that the trial court relied on evidence of the
criminal charges solely for the limited purpose identified in the judgment.


                                                     22
