      In the Missouri Court of Appeals Eastern
                      District
                                        DIVISION TWO

SHARON DASH, ANGELA SIMMONS                      )       No. ED108330
AND BILL BLACKSHER, AS TRUSTEES                  )
OF RIVERWOOD ESTATES                                 )
HOMEOWNERS ASSOCIATION,      )
                                                 )
       Respondents,                              )
                                                 )       Appeal from the Circuit Court of
                                                 )        the County of St. Louis
v.                                               )       18SL-CC03860
                                                 )
MARK BARNABY,                                    )       Honorable Joseph S. Dueker
                                                 )
       Appellant.                                )       Filed: June 23, 2020

                                            OPINION

       Mark Barnaby (“Appellant”) appeals the judgment entered in favor of Sharon Dash,

Angela Simmons and Bill Blacksher, as trustees of the Riverwood Estates Homeowners

Association (“Association”). We affirm.

                                        BACKGROUND

       Appellant is the owner of a residence located in the Riverwood Estates subdivision, which

is bound by the Riverwood Estates Declaration of Residential Covenants and Restrictions

(“Covenants”). The Covenants prohibit open storage of trash receptacles on a lot, except on the

day of trash pick up from sunrise until sunset. The Covenants also prohibit any commercial

activity and signs or advertising structures to be maintained or displayed on a lot. Appellant
violated these requirements on numerous occasions and received written notices requiring his

compliance with the Covenants. He would briefly comply, but then violate them again.

Consequently, the Association filed a petition for preliminary and permanent injunction,

declaratory relief, damages, and legal expenses seeking relief against Appellant for violating the

Covenants.

         This was not the Association’s first legal rodeo with Appellant over these issues. The

Association originally brought a similar lawsuit against Appellant in 2016, seeking to enjoin him

from openly storing his trash cans. The Association voluntarily dismissed the lawsuit after

Appellant promised to store his trash cans in his garage. However, within months, his promise

proved worthless and he repeatedly violated the Covenants.

       Similar to 2016, the Association attempted to amicably resolve this lawsuit by sending

Appellant a proposed settlement judgment stating that he agreed to pay fees and costs incurred to

date related to the lawsuit as well as court costs for the filing fee. However, this time the

settlement included a provision that Appellant agree to an injunction allowing the Association to

fine him an automatic fee of $200 for any future violation. Appellant disagreed with the

permanent injunction terms and the case proceeded to trial.

       The trial court entered its judgment in favor the Association, enjoining and restraining

Appellant from openly storing trash receptacles on his lot except between sunrise and sundown

on the day of trash pick up and from parking any commercial van with signage on his lot between

the hours of midnight and 7:00 a.m. In addition, the trial court awarded attorney fees and costs to

the Association in the total amount of $7,341.03.

       This appeal follows.




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                                                 DISCUSSION

         In his sole point an appeal, Appellant alleges the trial court erred in granting the

Association’s petition for a permanent injunction and in awarding attorney fees because the

Covenants do not allow the Association to bring a legal action to enjoin a violation.1

                                               Standard of Review

          Our review of an action in equity, such as an action seeking an injunction, is governed

by Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976). Gray v. White, 26 S.W.3d 806, 814–15

(Mo. App. E.D. 1999). Accordingly, we will affirm the trial court’s judgment unless there is no

substantial evidence to support it, it is against the weight of the evidence, it erroneously declares

the law, or unless it erroneously applies the law. Id. at 815. In reviewing a court-tried case, we

review the evidence in a manner favorable to the judgment, disregarding contradictory evidence,

and we defer to the trial court’s credibility determinations. Apted-Hulling Inc. v. L & S

Properties, Ltd., 234 S.W.3d 486, 489 (Mo. App. E.D. 2007); Day v. Hupp, 528 S.W.3d 400,

412 (Mo. App. E.D. 2017).

                                                      Analysis

        Appellant contends the trial court erred in granting the Association’s petition because it

misapplied the law and issued a judgment contrary to established law. Specifically, Appellant

claims he complied with the Covenants immediately after he was notified of the underlying

lawsuit, and offered to pay more than the actual fees and costs the Association had incurred. He




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  Appellant’s point relied on is multifarious and violates Rule 84.04 because it “groups together contentions not
related to a single issue. . . .” Osthus v. Countrylane Woods II Homeowners Ass’n, 389 S.W.3d 712, 715 (Mo. App.
E.D. 2012). This violation preserves nothing for our review. Id. However, we are able to ascertain Appellant’s
argument; therefore, we exercise our discretion to review his claim ex gratia to decide this appeal on the merits. See
Scott v. King, 510 S.W.3d 887, 892 (Mo. App. E.D. 2017).


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further asserts the Covenants do not allow the Association to seek to enjoin a future violation,

only an active or threatened violation.

       Generally, a restrictive covenant is a private contractual obligation governed by the same

rules of construction applicable to any covenant or contract; thus, we apply the principles of

contract law apply when interpreting an indenture. Trustees of Clayton Terrace Subdivision v. 6

Clayton Terrace, LLC, 585 S.W.3d 269, 280 (Mo. banc 2019). In interpreting indentures,

contract terms are read as a whole to determine the intention of parties and give the words of the

contract their natural, ordinary, and common sense meaning. Id. Restrictive covenants will not

be extended by implication to include anything not clearly expressed in them and, this principle

should never be applied in a manner that would defeat the plain and obvious purpose and intent

of the restriction. Lake at Twelve Oaks Home Ass’n, Inc. v. Hausman, 488 S.W.3d 190, 197 (Mo.

App. W.D. 2016).

       Article VI, Section J of the Covenants forbids trash cans or receptacles to be openly

stored on a lot, except between sunrise and sundown on designated trash pick-up days.

Additionally, Sections C and G of Article VI prohibit commercial activity of any kind and signs,

billboards, or advertising structures to be erected maintained or displayed on any lot. Article IX

of the Covenants permits the Association “to enforce, by any proceeding at law or in equity, any

of the covenants, conditions, restrictions and provisions hereof, either to restrain or enjoin a

violation or threatened violation or to recover damages.” (emphasis added).

        Appellant argues that the plain and ordinary reading of this provision only allows the

Association to enjoin a lot owner who is actively violating or is threatening to violate the

Covenants. Appellant contends the trial court erred in granting injunctive relief to the




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Association because he was compliant with the Covenants. As a result, he claims the

Association’s only damages were the fees and costs incurred to bring him into compliance. We

disagree.

       “The purpose of an injunction is to prevent actual or threatened acts that constitute real

injury.” Zoological Park Subdistrict of the Metro. Park Museum Dist. v. Smith, 561 S.W.3d 893,

896 (Mo. App. E.D. 2018). “A request for injunctive relief must be based on a real apprehension

that future acts are not only threatened but will in all probability be committed.” Beavers v.

Recreation Ass’n of Lake Shore Estates, Inc., 130 S.W.3d 702, 716 (Mo. App. S.D. 2004)

(internal quotations omitted).

       Appellant’s conduct unequivocally demonstrates his chronic refusal to comply with the

Covenants, even after the Association voluntarily dismissed the 2016 litigation upon Appellant’s

promised compliance. The record supports that Appellant subsequently violated Article VI,

Section J by failing to properly store his trash receptacle as well as Sections C and G by parking a

commercial van with signage on the sides and back overnight on his driveway. Appellant would

briefly comply upon written notice from the Association but soon reverted to repeatedly violating

the Covenants. The Association had no other alternative but to seek injunctive relief to keep him

from violating Article VI of the Covenants. We find the injunction is consistent with the plain

language of the Covenants and adequately prohibits future conduct that “will in all probability be

committed” by Appellant. Thus, the trial court did not err in issuing an injunction against

Appellant.

       As a result of the judgment in favor of the Association, the trial court did not err in

awarding the amount of $7, 341.03 as attorney fees and court costs. Missouri courts apply the

American Rule when considering whether to award attorney fees. Trustees of Clayton Terrace



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Subdivision, 585 S.W.3d at 285. Each litigant bears his own attorney fees unless there is

statutory authorization or a contractual agreement. Id. However, in the present case, Article IX

of the Covenants permits the Association to enforce, by any proceeding at law or in equity, any

of the covenants, restrictions, and provisions to enjoin a violation or threatened violation.

Specifically, Article IX, Section A states that

        In any legal action filed by the [Association] against an owner of any lot or if the
        [Association] retain[s] legal counsel without filing a legal action in order to
        enforce any covenant or restrictions herein contained or adopted[,] . . . the owner
        of said lot shall be personally liable for and pay the [Association’s] reasonable
        [attorney] fees and costs incurred with or without legal action.

Therefore, the Association was entitled to reasonable attorney fees relating to its action to enjoin

Appellant’s violation of the Covenants.

       Moreover, the Association filed a motion for attorney fees and expenses on appeal in the

amount of $4,175.00, which was taken with the case. “Our Court has the authority to either

allow and fix the amount of attorneys' fees on appeal or remand the cause with instructions for

the trial court to determine the amount of attorneys’ fees and enter judgment accordingly.”

Frontenac Bank v. GB Investments, LLC, 528 S.W.3d 381, 397 (Mo. App. E.D. 2017). A party

may be allowed to recover attorney fees if “they are authorized by a written agreement that is the

subject of the issues presented on appeal.” Id. Such authorization is set forth in Article IX,

Section A of the Covenants at issue in this matter.

       Accordingly, the trial court did not err in awarding attorney fees because Appellant’s

repeated violations required the Association to obtain legal counsel in order to enforce Article VI

of the Covenants. Under the circumstances, because we deny Appellant’s point on appeal and

affirm the trial court’s judgment, we find it is in the interest of judicial economy for our court to

allow and fix the amount of attorney fees on appeal rather than to remand the cause to the trial


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court. See id. We, therefore, grant the Association’s motion for attorney fees on appeal in the

amount of $4,175.00.

                                         CONCLUSION

       Based on the foregoing, we affirm the judgment of
       the trial court.


                                                             _______________________________

                                                             Lisa P. Page, Judge
Philip M. Hess, P.J. and Kurt S. Odenwald, J., concur.




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