ROBERT AND DEBRA BULL,                      )
                                            )
        Plaintiffs-Respondents,             )
                                            )
v.                                          )       No. SD32738
                                            )       Filed: 7-9-14
ROBERT AND DEBRA HELLMANN,                  )
                                            )
        Defendants-Appellants.              )

           APPEAL FROM THE CIRCUIT COURT OF CAMDEN COUNTY

                   Honorable Bruce E. Colyer, Associate Circuit Judge

APPEAL DISMISSED

        Robert and Debra Hellman (Appellants) challenge three superfluous and

immaterial findings in a judgment entered against them. Because the inclusion of mere

surplusage in a judgment presents no issue for us to review, this appeal is dismissed as

moot.

        This appeal arose out of an action for declaratory judgment and injunctive relief

brought by Robert and Debra Bull (Respondents) against Appellants in the Circuit Court

of Camden County, Missouri. Respondents’ petition requested a declaratory judgment

that Appellants had no right to interfere with the maintenance and use of the causeway,

security gate and control systems located in the Grand Point Island Subdivision.
Respondents also sought injunctive relief to prevent Appellants “from interfering with the

use, maintenance and repair of the ‘Causeway,’ any road located thereon, the existing

gate, and all control facilities associated therewith and any replacements thereof.” The

trial court entered a judgment granting Respondents the declaratory and injunctive relief

they requested.

       Appellants filed a timely notice of appeal, but they do not challenge the trial

court’s judgment in any material respect. As stated in Appellants’ opening brief:

       Appellants do not appeal the trial court’s aforementioned declaration that
       Appellants “have to [sic] right to interfere with the maintenance and use of
       the Causeway, security gate and control systems located upon the
       roadways shown on the Plat of Grand Point Island Subdivision”, nor do
       they appeal the Court’s issuance of a permanent injunction enjoining them
       from “interfering with the use of [sic] maintenance and repair of the
       Causeway, any road located thereon, the existing gate and all control
       facilities associated therewith.”

Instead, Appellants only complain about three findings in the judgment that they concede

are “superfluous and immaterial to the [trial] court’s issuance of the declaratory judgment

and permanent injunction relating to the use and maintenance of the causeway, security

gate, road and control facilities ….”

       In Respondents’ brief, they argue that the appeal should be dismissed. We agree

because a party generally cannot appeal a trial court’s incidental findings when not

appealing the actual outcome of the case. See Autumn Ridge Homeowners Ass’n, Inc. v.

Occhipinto, 311 S.W.3d 415, 419-20 (Mo. App. 2010). As the western district of this

Court explained in Autumn Ridge:

       In this case, the sole issue on appeal is the inclusion of language that the
       Association says is surplusage. Generally, findings that are mere
       surplusage do not present an issue for review by this court. On appeal,
       points of error relating to separable, excess legal conclusions are moot.
       They do not present an issue for appellate review because any opinion



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       addressing surplus conclusions would be merely advisory. We do not
       render advisory opinions or decide nonexistent issues. Here, only the
       surplusage is being appealed. In the absence of any actual controversy, an
       appeal is moot and should be dismissed. Generally, if comments are
       superfluous, the matter is moot because there is no collaterally preclusive
       effect to the judgment; if they are not superfluous, then they are part-and-
       parcel of the issue properly decided by the court, and the language cannot
       be separately appealed without appealing the judgment. Either way, the
       appeal is subject to dismissal.

Id. at 420 (italics in original; citations and quotation marks omitted).

       This appeal is dismissed as moot.



JEFFREY W. BATES, P.J. – OPINION AUTHOR

GARY W. LYNCH, J. – CONCUR

DON E. BURRELL, J. – CONCUR




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