        IN THE MISSOURI COURT OF APPEALS
                WESTERN DISTRICT

KEVIN ROWAN,                               )
                                           )
              Respondent,                  )       WD76265
                                           )
vs.                                        )       Opinion filed: April 8, 2014
                                           )
COVES NORTH HOMES                          )
ASSOCIATION,                               )
                                           )
              Appellant.                   )

      APPEAL FROM THE CIRCUIT COURT OF PLATTE COUNTY, MISSOURI
          THE HONORABLE JAMES WALTER VAN AMBURG, JUDGE

                Before Division Three: Anthony Rex Gabbert, Presiding Judge,
                   Victor C. Howard, Judge and Thomas H. Newton, Judge


       Coves North Homes Association, Inc. (Association) appeals the trial court’s judgment in

favor of Kevin Rowan after a trial de novo on Mr. Rowan’s claim against the Association for

breach of covenant. The judgment is reversed.

                                         Background

       The Coves North Subdivision in Platte County consists of single-family residences, patio

homes, and townhouses. The Appellant Association is the homes association for the subdivision

and is charged with operating under and enforcing the terms and conditions of the recorded

Declaration of Covenants, Rights and Restrictions of the Coves North Subdivision (Declaration).
Mr. Rowan owns a townhouse in the subdivision. He filed an action in small claims court

against the Association seeking $1996.38, the cost to replace the deck outside his townhouse. He

alleged that the Association had a duty under the Declaration to replace the deck. The small

claims court entered judgment in Mr. Rowan’s favor for $1996.38 plus costs. The Association

filed a motion for trial de novo. After judgment was entered in favor of the Association, Mr.

Rowan hired counsel and filed a motion for new trial, which was granted.

       Thereafter, Mr. Rowan filed a first amended petition. He alleged that the Association

breached the terms of the Declaration by failing to repair his townhouse deck and/or refund the

cost of the repair. He sought $1996.38, the cost of the repair. He further requested attorney’s

fees and punitive damages. Following a bench trial, the trial court entered judgment in favor of

Mr. Rowan awarding him $1996.38 plus costs and $3442.50 in attorney’s fees. This appeal by

the Association followed.

                                 Motion Taken With the Case

       Before the briefs were filed in this appeal, the Association filed a motion to determine

appellate jurisdiction in its own appeal, which was taken with the case. It questions whether the

trial de novo judgment was null and void, and in turn whether this court is deprived of appellate

jurisdiction, because its motion for trial de novo was untimely filed under section 482.365,

RSMo 2000. The Association filed its motion for trial de novo nine days after entry of the small

claims judgment but did not pay the filing fee. The clerk of the court returned the motion to the

Association for lack of a filing fee, and it refiled its motion with the filing fee on the eleventh

day after the judgment. Mr. Rowan argues that the Association’s challenge to the trial de novo

after losing and being ordered to pay his attorney’s fees in that proceeding was waived and is

patently unjust.



                                                2
        Whether the Association waived the issue need not be decided because even if the issue

was not waived, the trial court had authority to conduct the trial de novo, and this court has

jurisdiction to hear this appeal. This court has general appellate jurisdiction in all cases not

within the exclusive jurisdiction of the Missouri Supreme Court. MO. CONST. art. V, sec. 3.

This includes subject matter jurisdiction to determine whether the trial court correctly or

incorrectly exercised its authority. Dorris v. State, 360 S.W.3d 260, 265 (Mo. banc 2012).

        Section 482.365.2 confers the right of trial de novo to a party aggrieved by a small claims

judgment. Rule 151.01. It sets out the statutory requirements to have the right to trial de novo:

        The right to trial de novo shall be perfected by filing an application for trial de
        novo with the clerk of the small claims court within ten days after the judgment is
        rendered.

§ 482.365.2. Section 482.365.2 makes no reference to the payment of a filing fee to perfect the

filing of an application for trial de novo. See State ex rel. JCA Architects, Inc. v. Schmidt, 751

S.W.2d 756, 757 (Mo. banc 1988) and C&F Invs., LLC v. Hall, 149 S.W.3d 557, 558 (Mo. App.

E.D. 2004)(noting that section 512.190.1, which provides the right to trial de novo in certain

circumstances, makes no reference to payment of filing fee to perfect the right). A trial court is

without power to impose requirements in addition to those set out in the statute. Id. While a

filing fee is required, payment at a particular time is not a prerequisite to perfect the right to trial

de novo. See Id.1 Here, the Association’s filing of its motion for trial de novo nine days after

entry of the small claims judgment was in full compliance with all statutory requirements. The

trial court had authority to proceed with the trial de novo even though the filing fee was not paid

until two days later after the time for filing the application for trial de novo had expired, and this

court has appellate jurisdiction in this appeal.


1
  “Such conclusion does not preclude the trial court from imposing sanctions on litigants who do not comply with
the statutes and rules.” C&F Invs., 149 S.W.3d at 558 n.3 (citing Schmidt, 751 S.W.2d at 757).

                                                         3
                                      Standard of Review

       In a bench-tried case, the judgment of the trial court will be affirmed unless it is not

supported by substantial evidence, it is against the weight of the evidence, or it erroneously

declares or applies the law. Recsnik v. Ret. Time Ins., LLC, 361 S.W.3d 9, 11 (Mo. App. E.D.

2009)(citing Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976)). The interpretation of a

contract is reviewed de novo. Id.

                                        Points on Appeal

       The Association raises four points on appeal. First, it claims that the small claims court

and the trial court did not have authority over Mr. Rowan’s equitable action for specific

performance. Second, it contends that the trial court erred in entering judgment in favor of Mr.

Rowan because the Declaration contained no provision requiring it to maintain or repair Mr.

Rowan’s deck. Third, the Association argues that the trial court erred in granting Mr. Rowan

leave to file his first amended petition because the petition improperly contained additional

claims to that heard in the small claims court. Finally, it contends that the trial court erred in

awarding attorney’s fees to Mr. Rowan. Because the second point is dispositive, the other points

are not addressed.

       The Declaration contains two provisions that govern the exterior maintenance and repair

of townhouses. The first is Article VI, §13, which applies to all of the owners in the subdivision:

       Except as specifically provided herein, each Owner at the Owner’s sole expense
       shall keep the exterior of the Owner’s building structure, including but not limited
       to doors, walls, windows, roofs, patios and other improvements, in good
       maintenance and repair.

Article IV, §3(A)(2)(b) provides an exception to Article VI, §13. In that article, the Association

is responsible for certain exterior maintenance of townhouse or duplex living units:




                                                 4
       Additionally, the services to be provided to the Owners of townhouses or duplex
       living units shall include the exterior maintenance of each townhouse or duplex
       living unit, as follows: paint, repair, replace and care for roofs, gutters,
       downspouts and exterior building surfaces including the pointing of brick. Such
       exterior maintenance shall not include glass surfaces.

       “A covenant is simply an agreement between the grantor and grantee which requires the

performance or the nonperformance of some specified duty with regard to real property,

including an agreement to do or not to do a particular act.” Kehrs Mill Trails Assocs. v.

Kingspointe Homeowner’s Ass’n, 251 S.W.3d 391, 396 (Mo. App. E.D. 2008)(internal quotes

and citation omitted). “An affirmative covenant, as opposed to a restrictive one, does not restrict

the use of land in question, but instead, imposes a duty on a party to the agreement to perform an

affirmative act.” Id. (internal quotes and citation omitted). Although Article VI is labeled

“Restrictions,” §13 of that article does not restrict the Owners’ use of their land but imposes an

affirmative duty on them to maintain the exteriors of their building structures. Likewise, Article

IV, §3(A)(2)(b) is an affirmative covenant imposing an affirmative duty on the Association to

provide exterior maintenance of townhouse and duplex living units. See Hills v. Greenfield

Village Homes Ass’n, Inc., 956 S.W.2d 344, 348-49 (Mo. App. W.D. 1997)(provision of homes

association agreement similar to Article IV, §3(A)(2)(b) was affirmative covenant).

        “Principles of contract law apply to the interpretation of an affirmative covenant.” Kehrs

Mill Trails, 251 S.W.3d at 396. See also Hills, 956 S.W.2d at 349. The primary rule of contract

interpretation under Missouri law is that a court will seek to determine the parties’ intent and

give effect to that intent. Chochorowski v. Home Depot U.S.A., 404 S.W.3d 220, 226 (Mo. banc

2013). The parties’ intent is determined by giving each term its plain, ordinary, and usual

meaning. Id.; Kehrs Mill Trails, 251 S.W.3d at 396. The dictionary is a good source for finding

the plain and ordinary meaning of contract language; but the contract’s context must be



                                                5
considered in applying the appropriate dictionary definition. Bailey v. Federated Mut. Ins. Co.,

152 S.W.3d 355, 357 (Mo. App. W.D. 2004). “A contract is ambiguous only if its terms are

susceptible of more than one meaning so that reasonable men may fairly and honestly differ in

their construction of the terms. The mere fact that the parties disagree over a contract’s meaning

does not render the contract ambiguous.” Jackson County v. McClain Enters., Inc., 190 S.W.3d

633, 640 (Mo. App. W.D. 2006)(internal quotes and citation omitted). If the covenant is clear

and unambiguous, the covenant is not subject to rules of construction, and intent is determined

from the plain language of the covenant alone. Kehrs Mill Trails, 251 S.W.3d at 396; Hills, 956

S.W.2d at 349.

       The affirmative covenants in this case are not ambiguous alone or when read together.

Article VI, §13 plainly provides that the owners shall keep the exterior of their building

structures in good maintenance and repair unless the Declaration specifically provides an

exception. Under the covenant, doors, walls, windows, roofs, patios and other improvements are

included in the owners’ responsibility for the exterior of their building structures, but such

responsibility is not limited to those things.

       In entering judgment in favor of Mr. Rowan, the trial court determined that Article IV,

§3(A)(2)(b) “imposes a duty on [the Association] to maintain and/or repair any improvements to

the townhouse owned by [Mr. Rowan].” Specifically, it found that the Association is responsible

for the exterior maintenance of townhouse units and that Mr. Rowan’s deck is part of the exterior

of the townhouse. The trial court, however, disregarded the phrase in Article IV, §3(A)(2)(b)

that specifically identifies what exterior maintenance the Association is obligated to undertake.

In particular, the article provides that the Association is responsible for “the exterior maintenance

of each townhouse or duplex living unit, as follows: paint, repair, replace and care for roofs,



                                                 6
gutters, downspouts and exterior building surfaces including the pointing of brick.” (emphasis

added). “As follows” means “as will next be told or explained, ” WEBSTER’S NEW WORLD

COLLEGE DICTIONARY 549 (4th ed. 2002), or “as will be stated next—used to introduce a

specified enumeration, explanation, or command.” THE AMERICAN HERITAGE DICTIONARY                                  OF

THE   ENGLISH LANGUAGE 683 (4th ed. 2006). Within Article IV, §3(A)(2)(b), the phrase “as

follows” introduces what exterior maintenance the Association is obligated to provide. Unlike in

Article VI, §13, under the plain and ordinary meaning of this article, the Association is obligated

to maintain only those things specifically enumerated.

         It is clear that a deck is not a roof, gutter, or downspout. The question is whether it is

included in “exterior building surfaces.”              “Exterior” is defined as “on the outside; outer:

outermost [an exterior wall].” WEBSTER’S NEW WORLD COLLEGE DICTIONARY 503 (4th ed.

2002). “Building” is defined as “anything that is built with walls and a roof, as a house or

factory; structure.” Id. at 192. Finally, “surface” is defined as “the outer face, or exterior, of an

object.” Id. at 1440. Based on the dictionary definitions of the individual terms, the plain and

ordinary meaning of the phrase “exterior building surfaces” is the outer face of the townhouse

structure itself. A deck is not an outer face of the townhouse structure and, therefore, is not an

exterior building surface. It is not covered under Article IV, §3(A)(2)(b). 2 The trial court erred

in ruling that the Association has a duty under the Declaration to maintain or repair Mr. Rowan’s

deck. See also Schler v. Coves North Homes Ass’n, WD75983, slip op. at 6-7 (Mo. App. W.D.

April 8, 2014)(townhouse patio, porch, and steps are not exterior building surfaces and, thus, are

2
  The trial court also found that in a prior declaratory judgment, it had found that the Association is responsible for
the exterior maintenance of townhouse units. In that prior proceeding, the Association filed an action for declaratory
judgment to determine its obligations under the Declaration to Mr. Rowan and other townhouse owners. In its
judgment, the trial court found that the Association is financially responsible for exterior maintenance of
townhouses as set out in Article IV, §3(A)(2)(b), setting out verbatim the article. The declaratory judgment did not,
however, interpret the article or declare that the Association was responsible for any specific repair. Consequently,
the declaratory judgment does not provide any support in this case.


                                                          7
not covered under Article IV, §3(A)(2)(b)). The judgment awarding Mr. Rowan damages and

attorney’s fees is reversed.




                                        __________________________________________
                                        VICTOR C. HOWARD, JUDGE

All concur.




                                          8
