ROBERT J. HELLMANN,                        )
and DEBRA S. HELLMANN,                     )
                                           )
      Petitioner-Appellants/Respondents,   )
                                           )
vs.                                        )    Nos. SD32740, SD32742
                                           )   and SD32743, Consolidated
RANDY SPARKS, EXECUTIVE VACATION           )
GET-A-WAYS, LLC, JAMES C. RESTELLI,        )
KAREN A. RESTELLI, MITCH'S                 )
GREENTHUMB LANDSCAPING CORP.,              )   Filed: February 20, 2015
JEFFREY M. LOWE, KATHLEEN E. LOWE,         )
JAMES RESTELLI, JEFFREY M. LOWE,           )
and ROGER L. FULTON, AS PUTATIVE           )
DIRECTORS OF THE GRAND POINT               )
ISLAND HOMEOWNERS ASSOCIATION,             )
INC., UNKNOWN PERSONS OR ENTITIES          )
THAT CLAIM AN INTEREST IN THE BOAT         )
DOCK KNOWN AS THE"COMMUNITY                )
DOCK" ATTACHED TO THE LOT KNOWN            )
AS THE "PARK" IN GRAND POINTE              )
ISLAND SUBDIVISION, A SUBDIVISION          )
IN CAMDEN COUNTY, MISSOURI,                )
GRAND POINT ISLAND HOMEOWNERS              )
ASSOCIATION, INC., EXCLUSIVE LAKE          )
PROPERTIES, LLC, BAYBERRY                  )
DEVELOPMENT CO. II, INC.,                  )
ROGER L. FULTON, DEBRA A. FULTON,          )
JEFFREY A. HOWELL, KIM M. HOWELL,          )
                                           )
      Respondents-Respondents,             )
                                           )
HEALTH CARE RESOURCE, LLC,                 )
                                           )
      Respondent-Respondent/               )
      Cross-Appellant,                     )
                                           )
                                                  )
and ROBERT A. BULL and DEBRA BULL,                )
                                                  )
       Respondents-Respondents                    )
       /Cross Appellants.                         )


         APPEAL FROM THE CIRCUIT COURT OF CAMDEN COUNTY

               Honorable Bruce E. Colyer, Associate Circuit Judge

AFFIRMED

       This case involves certain waterfront real estate located on Lake of the

Ozarks in Camden County, Missouri. The property is part of a planned, gated

community called Grand Point Island ("the subdivision"). The subdivision is

located on an island connected to the mainland by a causeway. From the time

the subdivision was created, the subdivision has had a park reserved by deed

restrictions for the recreational use of all lot owners in the subdivision and a

community dock which is attached to the park. In 2008, Robert Hellmann and

his wife Debra Hellmann (collectively "the Hellmanns") purchased some lots in

the subdivision. They also acquired the causeway and the park. Thereafter, a

dispute arose regarding the location of the community dock and control of the

subdivision's homeowners' association, Grand Point Island Homeowners

Association, Inc. ("GPI"). A lawsuit followed. In that lawsuit, the Hellmanns

asked the trial court to find there was a valid agreement to move the community

dock and to find that the current board of directors of GPI did not have authority

to act on behalf of GPI. The trial court found against the Hellmanns on all

counts, and they appeal. Two other parties, Health Care Resources, LLC

("HCR"), and Robert and Debra Bull ("the Bulls"), cross-appeal.


                                          2
       The Hellmanns raise 17 points on appeal which fall into four major groups:

points regarding the authority of GPI, points regarding the interpretation of the

subdivision's governing documents, points regarding an alleged agreement to

move the community dock, and points regarding the appointment of an attorney

for unknown parties during the litigation. HCR joins in many of those points and

raises four additional points of its own. HCR's four additional points challenge

the authority of GPI. The Bulls raise three points related to an easement

associated with the agreement to move the dock. For ease of analysis, the points

have been grouped together by topic, and we address each topic separately. We

affirm the trial court's judgment in toto.

                              Standard of Review

       "On review of a court-tried case, an appellate court will affirm the circuit

court's judgment unless there is no substantial evidence to support it, it is against

the weight of the evidence, or it erroneously declares or applies the law." Ivie v.

Smith, 439 S.W.3d 189, 198-99 (Mo. banc 2014). "When reviewing whether the

circuit court's judgment is supported by substantial evidence, appellate courts

view the evidence in the light most favorable to the circuit court's judgment and

defer to the circuit court's credibility determinations." Id. at 200. Questions of

law such as contract interpretation are reviewed de novo. G.H.H. Invs., L.L.C.

v. Chesterfield Mgmt. Assocs., L.P., 262 S.W.3d 687, 691 (Mo. App. E.D.

2008).

                   Points Regarding the Authority of GPI

       The first group of conceptually related points involved the authority of GPI

and the board of directors of GPI. These points include the Hellmanns' Point I,

                                             3
Point II, Point III, Point IV, and Point V, as well as HCR's Point I, Point II, and

Point III. The following facts are relevant to the resolution of these points.

       GPI was created in January 2001. In June of the same year, Bayberry

Development Company II, Inc. ("Bayberry") filed a declaration of restrictions

("the declaration") for the subdivision. GPI was named the governing body for

the subdivision. The declaration gave Bayberry the power to appoint the board of

directors of GPI until October 1, 2016, or until Bayberry voluntarily relinquished

that right. The declaration further empowered GPI to maintain the subdivision's

facilities, i.e., items or things owned or leased by GPI, and levy assessments

against the property owners for maintaining and improving the facilities.

       Bayberry subsequently began to develop the subdivision and sell lots for

residential purposes. Around this time, Bayberry attached the community dock

to the park. In 2004, Bayberry sold all the lots in the subdivision which had not

already been purchased to Care Investments, LLC ("Care"). On January 5, 2006,

GPI was administratively dissolved for failing to file a correct and current annual

report. On August 29, 2006, Bayberry was administratively dissolved for failing

to file a correct and current annual report.

       In early 2008, the Hellmanns began negotiating with Care to purchase a

number of lots on the island. The Hellmanns purchased lots 1, 12, and 13, as well

as the park and the causeway from Care on April 19, 2008. During this time

frame, disagreements arose regarding a plan to relocate the community dock.

       Also in April 2008, a second Missouri non profit corporation named

Grand Point Island Homeowners Association, Inc. ("Second GPI") was

incorporated. After that time, Second GPI spent money on snow removal, storm

                                          4
sewer repair, and some attorneys' fees associated with starting Second GPI.

Second GPI also opposed the plan to relocate the community dock.

       On May 21, 2010, Robbie Marley, president and sole remaining member of

Bayberry, signed a document ratifying the current board membership of the

Grand Point Island Homeowner's Association, Inc., to include James Restelli

("Restelli") as President, Jeffery Lowe ("Lowe") as Vice-President, and Roger

Fulton ("Fulton") as Secretary/Treasurer. That document did not designate

whether the association referred to was GPI or Second GPI.

       At some point, Second GPI discovered the existence of GPI. To clarify the

situation, the members voted to reinstate GPI and to merge GPI with Second GPI.

On April 13, 2011, GPI was restored to good standing with the Office of the

Missouri Secretary of State. On May 25, 2011, the board of directors

recommended the homeowners merge GPI with Second GPI. On November 14,

2011, the Missouri Secretary of State issued a Certificate of Merger combining the

two homeowners' associations leaving GPI as the surviving entity.

       In their seventh amended petition, the Hellmanns requested a declaratory

judgment stating, among other things, that: (1) Second GPI had no authority to

govern the subdivision; (2) all actions taken by Second GPI were void; (3)

Bayberry had voluntarily relinquished its rights to appoint directors so the

Bayberry consent to the appointment of the board of directors had no force or

effect; (4) all actions taken by the board of directors were void; and (5) the

reinstatement of GPI was void because Restelli did not have the authority to act

on behalf of GPI. In the judgment, the trial court found Bayberry had not

relinquished its right to appoint directors, so Restelli, Fulton, and Lowe had been

                                          5
properly appointed directors of GPI. The trial court further found GPI's actions

were authorized. In their first group of points on appeal, the Hellmanns

challenge these rulings.

                   No Assignment or Ratification Was Necessary

          In their first point, the Hellmanns argue the trial court erred in finding

Second GPI "was a validly existing homeowners' association with authority to

govern the Subdivision" because Second GPI never received an assignment of

rights from GPI. In their third point, the Hellmanns argue the trial court erred

when it found the actions of Second GPI were valid. In support of this claim, the

Hellmanns state there was no evidence GPI ratified the acts of Second GPI and

reiterate their argument that Second GPI had no authority to act because it had

never received an assignment. These arguments are incorrect because Second

GPI merged into GPI.

          Both GPI and Second GPI were limited liability corporations operating

under Missouri law. They merged in 2011. Thus, the applicable rule is stated in

Section 355.636,1 which governs the effect of mergers of corporations in Missouri.

That section provides as follows:

          When a merger takes effect:

          (1)      Every other corporation party to the merger merges into the
                   surviving corporation and the separate existence of every
                   corporation except the surviving corporation ceases;

          (2)      The title to all real estate and other property owned by each
                   corporation party to the merger is vested in the surviving
                   corporation without reversion or impairment subject to any
                   and all conditions to which the property was subject prior to
                   the merger;

1   Unless otherwise indicated, all statutory references are to RSMo (2000).

                                                  6
        (3)   The surviving corporation has all liabilities and obligations of
              each corporation party to the merger;

        (4)   A proceeding pending against any corporation party to the
              merger may be continued as if the merger did not occur or
              the surviving corporation may be substituted in the
              proceeding for the corporation whose existence ceased; and

        (5)   The articles of incorporation and bylaws of the surviving
              corporation are amended to the extent provided in the plan
              of merger.

Id.

        Here, GPI and Second GPI were merged in 2011 with GPI as the surviving

corporation. Consequently, under the plain language of Section 355.636, Second

GPI ceased to exist. § 355.636(1). The only existing corporation was GPI, which,

as the trial court correctly found, had authority to maintain the subdivision

facilities.

        In support of their arguments to the contrary, the Hellmanns rely on

DeBaliviere Place Ass'n v. Veal, 337 S.W.3d 670 (Mo. banc 2011), and

Valley View Village South Imp. Ass'n, Inc. v. Brock, 272 S.W.3d 927

(Mo. App. S.D. 2009), for the proposition that since Second GPI did not exist at

the time the declaration was filed, it needed an assignment from GPI for

authority to act.

        This argument fails because DeBaliviere and Valley View involved

different factual situations. It is true that in each of those cases, as in the present

case, a second homeowners' association began managing a subdivision after a

first homeowners' association lapsed. DeBaliviere, 337 S.W.3d at 672; Valley

View, 272 S.W.3d at 928. However, those cases are different from the present

case because neither of those cases involved a merger of the first homeowners'

                                           7
association with the second homeowners' association. In DeBaliviere, the

second homeowners' association received authority via an assignment, and in

Valley View no attempt was made to revitalize the first homeowners'

association. DeBaliviere, 337 S.W.3d at 672; Valley View, 272 S.W.3d at 932.

While the second homeowners' associations in those cases were found not to have

the necessary authority because they did not receive an assignment of the correct

rights from the first homeowners' associations, nothing in those cases requires

the conclusion that the only way a successor homeowners' association may

acquire rights to govern a subdivision is by assignment. Here, Second GPI was

merged into GPI. Through that merger, GPI, which did have authority to govern

the subdivision, assumed all liabilities and obligations of Second GPI, thus

implicitly ratifying all of Second GPI's actions. See § 355.636(3).

        The Hellmanns' Points I and III are denied.2

                                  Directors' Authority

        In their second point, the Hellmanns argue the trial court erred in finding

GPI was a validly existing homeowners' association because it had never been

properly reinstated or merged with Second GPI because "no authorized

representative of [GPI] approved these actions." In their fourth point, the

Hellmanns argue the trial court erred when it found "Bayberry did not voluntarily

relinquish its rights to appoint directors[.]" In their fifth point, the Hellmanns

argue the trial court erred when it found GPI's actions between 2008 and 2011

were valid because the directors were not elected. All three of these points fail

2
 The Hellmanns' Point I is substantially the same as Point I in HCR's brief as cross-appellant.
We deny HCR's first point for the same reasons we deny the Hellmanns' first and third points.


                                                8
because Bayberry did not voluntarily relinquish its rights to appoint directors for

GPI, so Restelli, Fulton, and Lowe had authority to act on behalf of GPI.

       As with so many of the points in this case, the analysis begins with the

declaration of covenants for the subdivision. Generally speaking, a declaration of

covenants for a subdivision "regulates the relationship of the real estate

developer to its subdivision, as well as the purchasers of property." Woodglen

Estates Ass'n v. Dulaney, 359 S.W.3d 508, 513 (Mo. App. W.D. 2012)

(quoting Marshall v. Pyramid Dev. Corp., 855 S.W.2d 403, 406 (Mo. App.

W.D. 1993)). That document "is a restrictive covenant between the [d]eveloper,

the [a]ssociation, and its members." Id. (quoting Wildflower Cmty. Ass'n v.

Rinderknecht, 25 S.W.3d 530, 534 (Mo. App. W.D. 2000)). "The rules

governing construction of restrictive covenants on realty are generally the same

as those applicable to any covenant or contract." Stolba v. Vesci, 909 S.W.2d

706, 708 (Mo. App. S.D. 1995). Thus, the "primary rule" in interpreting such

documents "is to ascertain the intent of the parties and to give effect to that

intent." Marshall, 855 S.W.2d at 406. "Where there is no ambiguity in the

contract, the intent of the parties is to be gathered from it alone and the court will

not resort to construction where the intent of the parties is expressed in clear and

unambiguous language as there is nothing to construe." Id.

       Therefore, to determine this point, we turn to the language of the

declaration. With respect to the number and qualification of directors, the

declaration at issue in this case provides as follows:

       The Board shall consist of three (3) Directors.



                                          9
       (a)    Until October 1, 2016, all three directors shall be appointed
              by Declarant and may, but need not be, a member of the
              Association.

       (b)    Upon Declarant voluntarily relinquishing its right of
              appointment or after October 1, 2016 whichever event first
              occurs, then all directors shall be elected annually by the
              Class B members at the annual meeting as set from time to
              time by the previous Board of Directors.

The declaration defines "Declarant" as Bayberry. Bayberry appointed Restelli,

Lowe, and Fulton as directors in 2010. Consequently, the trial court did not err

in finding Restelli, Lowe, and Fulton were properly exercising authority as

directors of GPI.

       In support of their argument to the contrary, the Hellmanns rely on Forst

v. Bohlman, 870 S.W.2d 442 (Mo. App. E.D. 1994). Forst is not applicable

here. The issue in Forst involved the rights of subsequent purchasers of the

land. Here, in contrast, Bayberry was the original developer of the subdivision.

The facts of Forst are not sufficiently similar to those in the present case for

Forst to be controlling.

       HCR also makes several arguments relevant to this point. First, HCR

relies on the deposition testimony of Bob Van Stavern to support the contention

that Bayberry "'washed [its] hands of the island' in April 2004." This argument

ignores the standard of review. Because the trial court's conclusion that Bayberry

had not voluntarily relinquished its right to appoint GPI's directors was contrary

to Van Stavern's assertion, this Court must disregard Van Stavern's assertion.

See Ivie, 439 S.W.3d at 200 ("Appellate courts 'accept as true the evidence and

inferences . . . favorable to the trial court's decree and disregard all contrary



                                          10
evidence.'") (quoting Zweig v. Metro St. Louis Sewer Dist., 412 S.W.3d 223,

231 (Mo. banc 2013)).

       HCR next argues Bayberry voluntarily relinquished the right to appoint

directors by divesting itself of all its property interests in the subdivision.

However, selling the property did not automatically transfer Bayberry's rights as

developer to the purchaser. "As a general proposition, 'the developer's rights of a

platted subdivision are personal rights that do not run with the land.'"

Woodglen, 359 S.W.3d at 513 (quoting Scott v. Ranch Roy–L, Inc., 182

S.W.3d 627, 633 (Mo. App. E.D. 2005)). Those rights are assignable, but to be

effective, the assignor must "manifest an intention to transfer the right to another

person without further action or manifestation[.]" Id. (quoting Scott, 182

S.W.3d at 634). Thus, Bayberry's sale of the land alone did not constitute

voluntary relinquishment of its duties and rights as developer.

       Furthermore, that Bayberry was administratively dissolved is not

sufficient to meet the plain meaning of the term "voluntarily relinquishing." As

stated above, interpretation of subdivision declarations is governed by the same

rules as contract interpretation, Stolba, 909 S.W.2d at 708, and generally

speaking that means applying the plain meaning of the terms the parties used,

Marshall, 855 S.W.2d at 406. The plain and ordinary meaning of words may be

derived from the dictionary. Bailey v. Federated Mut. Ins. Co., 152 S.W.3d

355, 357 (Mo. App. W.D. 2004). Voluntary means "proceeding from the will or

from one's own choice or consent" while relinquish means "to withdraw or retreat

from" or "to give over possession or control of[.]" Merriam-Webster's Collegiate

Dictionary 1052, 1402 (11th ed. 2003). Bayberry was administratively dissolved

                                           11
for failing to file annual reports. That is, Bayberry was dissolved by an action of

the secretary of state, not by its "own choice and consent." Thus, the dissolution

does not demonstrate Bayberry voluntarily relinquished its rights to appoint the

directors of GPI.

        Bayberry did not voluntarily relinquish its right to appoint directors of

GPI, which was manifested by Bayberry appointing Restelli, Fulton, and Lowe to

be directors of GPI. Restelli, Fulton, and Lowe did not need to be elected to act as

directors, and Restelli's actions to reinstate GPI were authorized.

        The Hellmanns' Points II, IV and V are denied.3

    Points Regarding the Interpretation of the Governing Documents

        The next conceptually related group of points involves interpretation of

the declaration and the bylaws. This group includes the Hellmanns' Point VIII,

Point IX, Point X, Point XI, and Point XII as well as HCR's Point IV. In analyzing

these points, we note that the declaration and the bylaws are essentially

contracts, and that the general rules of contract interpretation apply. See Kehrs

Mill Trails Assocs. v. Kingspointe Homeowner's Ass'n, 251 S.W.3d 391,

396 (Mo. App. E.D. 2008); Blue Ridge Bank and Trust Co. v. Trosen, 221

S.W.3d 451, 459 (Mo. App. W.D. 2007); Maryland Estates Homeowners'

Ass'n v. Puckett, 936 S.W.2d 218, 219 (Mo. App. E.D. 1996). "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." Schler v. Coves

3
 The Hellmanns' Point II is substantially the same as HCR's Point II as cross-appellant. HCR's
Point II is denied for the same reason we deny the Hellmanns' Point II. The Hellmanns' fifth
point is substantially the same as HCR's Point III as cross-appellant. HCR's Point III is denied for
the same reasons we deny the Hellmanns' points four and five.



                                                12
North Homes Ass'n, 426 S.W.3d 720, 723 (Mo. App. W.D. 2014). Generally,

"[t]he parties' intent is determined by giving each term its plain, ordinary, and

usual meaning." Id. "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." Id. Furthermore, the interpretation of these

documents must be guided by consideration of the purpose of the declaration.

See Pioneer Point Homeowners Ass'n, Inc. v. Booth, 179 S.W.3d 397, 402

(Mo. App. S.D. 2005) (quoting Sherwood Estates Homes Ass'n, Inc. v.

Schmidt, 592 S.W.2d 244, 247 (Mo. App. W.D. 1979)) ("the principle that

restrictions as to the use of real property 'should be strictly construed' and

'doubts resolved in favor' of its free use 'should never be applied in such a way as

to defeat the plain purpose of the restriction.'").

                         The Assessments Were Valid

       In their eighth point, the Hellmanns argue the trial court erred in finding

GPI's assessments were authorized by the declaration. More specifically, the

Hellmanns assert the declaration authorized assessments for facilities only, notes

that GPI owned no property until 2011, and then concludes all the assessments

were improper. This argument is without merit because it ignores the purpose

and plain language of the declaration and the bylaws.

       In Article I of the declaration, Bayberry stated its intention was "to develop

a residential project on the Property to consist of residential facilities and related

recreational facilities and amenities." (Emphasis added.) Bayberry's purpose in

adopting the declaration also included "preventing any future impairment of the

Property[.]" Article III of the declaration gave GPI the duty of governing the

                                          13
facilities, and Article IV empowered GPI to levy assessments "for the purpose of

operating, maintaining and improving the Facilities, whether presently existing

or added hereafter[.]" The declaration defined the term facilities as "all items or

things, whether real or personal that are now or hereafter owned in fee simple or

leased by the Association, including, without limitation, roads, well and water

facilities, park areas, services, sewage system and related services." In defining

the board's powers to administer the facilities, the bylaws state the board may,

among other things, "protect and defend in the name of the Association any part

or all of the Facilities from loss and damage by suit or otherwise." Finally, Article

V of the declaration governs easements and reservations. Among other things,

section 7 of that article granted GPI:

       the concurrent right to establish from time to time, by declaration
       or otherwise, utility and other easements, permits, or licenses over
       the Common Areas, [f]or purposes including but not limited to
       streets, paths, walkways, drainage, recreation areas, parking areas,
       ducts, shafts, flues, conduit exceptions, and exclusions for the best
       interest of all the Owners within [the subdivision] as initially built
       and expanded.

       When the provisions of the bylaws and the declaration are read in light of

the purpose stated in Article I of the declaration, it is clear assessing fees to hire

attorneys to protect the common areas for the use of the members was

contemplated as an appropriate assessment. The purpose of the declaration is in

part to prevent impairment of the subdivision property values and to provide

common recreational elements for the owners in the subdivision. The

community dock and the park property are clearly within the plain language of

recreational elements. The dock lawsuit would, if undefended, have required

removal of the community dock, which a majority of the members clearly

                                          14
believed would have impaired their property values. Thus, payment of attorneys'

fees and participation in the suit were necessary to protect the common

recreational elements belonging to the subdivision. The assessments were valid

under the plain language of the declaration and the bylaws.

        The argument that GPI owned no property overlooks the use restrictions

contained in the Hellmanns' deed to the park and the causeway. The declaration

states that the term "facilities" includes real or personal property. Furthermore,

according to the deed under which the Hellmanns received the park and the

causeway, they took the property subject to "rights of others to use the causeway

to the island as an easement for ingress and egress and use of Park area by other

subdivision owners, their grantees, heirs, successors and assigns[.]" That is, the

subdivision owners had an easement by virtue of their status as members of the

subdivision. Furthermore, by the terms of the declaration, GPI had the right to

create additional easements in the common areas. Easements are a form of

property. See St. Charles County v. Laclede Gas Co., 356 S.W.3d 137, 139

(Mo. banc 2011) ("Although an easement does not vest title, an easement is a

form of private property"). GPI had property included in the definition of the

term "facilities" in the form of an easement.

        The trial court did not err in finding the assessments were valid. The

Hellmanns' Point VIII is denied.4




4
 The Hellmanns' Point VIII is substantially the same as HCR's Point IV as cross-appellant.
HCR's Point IV is denied for the same reasons we deny the Hellmanns' Point VIII.


                                               15
              The Hellmanns Are Entitled to Only Two Votes

       In their ninth point, the Hellmanns argue the trial court erred in ruling

they are entitled to only two votes in governing GPI because the trial court

improperly interpreted the meaning of the terms "lot," "parcel," and "designate."

This argument ignores the plain meaning of the language in the declaration and

the bylaws.

       The following additional facts are relevant to the resolution of this claim.

The GPI bylaws provide that "[a]t all meetings of the Association, a Lot, Tract or

Parcel Owner or Owners shall be entitled to cast one (1) vote for each Lot, Tract

or Parcel owned by him (them)." Article II of the bylaws defines "lot" as "a parcel

of land designated as a lot, tract or unit on any plat of Grand Point Island or any

portion thereof, and reserved for any purpose other than Facilities."

       On the filed plat of the subdivision, the property owned by the Hellmanns

is divided into five areas. These areas are labeled "cause-way," "park," "lot 1," "lot

12," and "lot 13." Later, a minor subdivision plat was filed which combined "lot

12" and "lot 13." The combined lot is now known as "lot 12" ("lot 12A"). The trial

court accorded the Hellmanns one vote for lot 1 and one vote for lot 12A. The

Hellmanns contest the trial court's ruling that they are not also entitled to two

more votes, one each for the causeway and the park, claiming they are entitled to

four votes instead of two.

       The bylaws define the term "lot" as a parcel of land designated as a lot on

the plat. Thus, resolution of this point requires examination of the term

"designate." The verb "designate" is not defined in either the bylaws or the

declaration. In such circumstances, "[t]he dictionary is a good source for finding

                                         16
the plain and ordinary meaning of contract language." Kansas City

University of Medicine and Biosciences v. Pletz, 351 S.W.3d 254, 261

(Mo. App. W.D. 2011) (quoting Ferguson v. Gateway Ins. Co., 151 S.W.3d

911, 913 (Mo. App. W.D. 2004)). Designate is a verb meaning "to call by a

distinctive title, term, or expression[.]" Merriam-Webster's Collegiate Dictionary

338 (11th ed 2003).

       Here, as the trial court correctly found, the plat does not call the park and

the causeway by the distinctive title "lot." Neither does it use the words "tract" or

"unit." The causeway and park are not "designated as a lot, tract or unit on any

plat of Grand Point Island[.]" Thus, they are not "lots" as that term is used in the

provision according a vote for each lot.

       In support of their argument to the contrary, the Hellmanns rely on an

alternate dictionary definition of "designate" and the dictionary definition of

"lot." This argument is without merit because it ignores the second portion of the

definition of lot. See Blue Ridge Bank, 221 S.W.3d at 459 (quoting State ex

rel. Vincent v. Schneider, 194 S.W.3d 853, 859 (Mo. banc 2006)) ("[c]ontract

terms 'are read as a whole to determine the intention of the parties'"). The

second part of the definition of "lot" provides that to be a lot, the piece of land

must be "reserved for any purpose other than Facilities[.]" But the causeway and

the park are specifically reserved as easements for the use of other owners for

recreational purposes and to reach the community dock.

       The Hellmanns' Point IX is denied.




                                           17
               The Community Dock Declarations Are Valid

       In Point X, the Hellmanns argue the trial court erred when it found the

declaration regarding the community dock association was valid because the

declaration imposed additional duties on the Hellmanns to which they did not

agree. This argument is without merit because the Hellmanns manifested assent

to community management of the community dock through their previous

actions.

       The following additional facts are relevant to the resolution of this point.

Bayberry constructed the community dock as part of its initial development of the

subdivision in 2000. The permit application submitted at that time described the

structure as a "community dock for lot owners" in the subdivision. When the

Hellmanns began negotiation to purchase property on the island, Hellmann was

told the dock attached to the park was a community dock. At that time,

Hellmann was also aware the subdivision had a set of restrictive covenants. The

Hellmanns closed on their property during the spring of 2008. By the spring of

2011, the Hellmanns had acquired two slips in the community dock.

       Thereafter, GPI held a meeting and adopted declarations for governing

and maintaining the community dock. The Hellmanns voted against these

resolutions.

       In their seventh amended petition, the Hellmanns sought, inter alia, a

declaratory judgment against GPI. The Hellmanns requested the trial court

declare that the declaration of covenants for the community dock were

unenforceable against the Hellmanns because the Hellmanns had not consented



                                         18
to the declaration. The trial court found the declaration for the community dock

was enforceable against the Hellmanns.

       The trial court did not err in finding the declaration for the community

dock was enforceable against the Hellmanns because the Hellmanns manifested

their assent to community management of the community dock when they

purchased two slips knowing that the dock was a community dock owned by

another entity. One of the ways a developer may create a binding restrictive

covenant is "by developing and selling the land pursuant to a common plan or

scheme of improvement." Wheeler v. Sweezer, 65 S.W.3d 565, 569 (Mo. App.

W.D. 2002). Furthermore, such covenants may be enforced against an owner

"who has actual or constructive notice of the restrictions." Id.

       Here, the circumstances surrounding the Hellmanns' purchase of their

property and the slips in the community dock show they had knowledge that

implied restrictions applied to the community dock. The community dock was

built several years before the Hellmanns purchased their property. It was always

designated as a community dock. When the Hellmanns negotiated the purchase

of their property, they saw the community dock and were informed that it was a

community dock. The Hellmanns were also aware that restrictions governed the

subdivision. After obtaining that knowledge, the Hellmanns acquired two slips in

the dock. The Hellmanns' assent to community government of the dock can be

inferred from these facts.

       The problem with the Hellmanns' arguments to the contrary is that they

focus on the wrong time period. The Hellmanns argue they did not agree to the

declaration GPI created because they voted against it. This focus allows them to

                                         19
discount the import of their actions when they acquired the property. When they

acquired their property and the dock slips, they knew the property was subject to

restrictions and that the dock was a community dock.

       The Hellmanns' Point X is denied.

            The Bylaws and Declarations Were Not Amended

       In their eleventh point, the Hellmanns argue the trial court erred in

finding the March 2011 proxy votes were not an amendment to the declaration.

This argument fails because the March 2011 proxy votes did not broaden the

purpose of the assessments or expand the definition of facilities.

       The following additional facts are relevant to the resolution of this point.

GPI held a meeting in March 2011. One of the topics of discussion at that

meeting was the use of the park. At that meeting, the members of GPI voted to

approve several items. Among those items were (1) an acknowledgment that the

term "facilities" included the park and the community dock and (2) an

acknowledgment that GPI could charge assessments to cover the cost of

litigation. The Hellmanns and HCR voted no on those items, while all the other

members voted yes.

       The trial court denied the Hellmanns' claim that these votes were

ineffective, stating there was never an attempt to amend the declaration. The

trial court noted the items were not described as amendments. More specifically,

the trial court stated, "there is no evidence to support the Hellmanns' contentions

that the items voted on during the March 2011 meeting were, in form or

substance, amendments to the Declaration."



                                         20
       In the present case, the declarations stated the purpose of the restrictions

was to maintain the value of the property and to provide attractive residential

areas with associated recreational facilities. The definition of common area

included property held "for the common use and enjoyment of all the Members."

The applicable deed reserved the park for the use of all the lot owners in the

subdivision. Thus, the plain meaning of the definition of "Common Area" in the

declaration included the park. The trial court did not err in finding the March

2011 vote did not constitute an amendment of the declaration.

       The Hellmanns' Point XI is denied.

                       The Design Review Committee

       In Point XII, the Hellmanns argue the trial court erred when it found the

requirement of approval by the design review committee of plans for

improvements on the island had not been waived. This argument is moot

because there has been no attempt to enforce the design review committee

provisions.

       Although neither of the parties addresses the issue, the issue of mootness

is a legal issue Missouri appellate courts will raise sua sponte. STRUCE, Inc. v.

Potts, 386 S.W.3d 214, 218 (Mo. App. W.D. 2012). "With regard to justiciability,

a case is moot if a judgment rendered has no practical effect upon an existent

controversy." Autumn Ridge Homeowners Ass'n, Inc. v. Occhipinto, 311

S.W.3d 415, 420 (Mo. App. W.D. 2010) (quoting State ex rel. Chastain v.

City of Kansas City, 968 S.W.2d 232, 237 (Mo. App. W.D. 1998)).

Furthermore, appellate courts will "not decide questions of law disconnected

from the granting of actual relief." Id. (quoting Chastain, 968 S.W.2d at 237).

                                         21
Such issues "do not present an issue for appellate review because any opinion

addressing surplus conclusions would be merely advisory." Id. (quoting Craft

v. Phillip Morris Cos., 190 S.W.3d 368, 378 (Mo. App. E.D. 2005)). Thus, if a

challenged finding does not affect the practical effect of the trial court's

judgment, a point on appeal regarding that finding will not be addressed.

       Here, the trial court's statement in the judgment regarding the design

review committee was not necessary to the relief requested by the parties. In the

present case the primary issues involved (1) the identity of the members of the

GPI board of directors; (2) the organizational structure of GPI; (3) the validity of

the assessments GPI charged; and (4) the validity of the alleged agreement to

relocate the community dock. There is no allegation that the design review

committee unreasonably failed to approve plans or that a structure should be

removed because approval from the design review committee had not been

obtained. Rather, the Hellmanns are simply requesting a declaration that the

design review committee provisions do not apply in the abstract. Such a

declaration would amount to an advisory opinion as it would have no effect on

the rights and liabilities associated with a currently existing dispute.

       The Hellmanns' Point XII is denied.

    Points Regarding the Agreement to Move the Community Dock

       The Hellmanns' Point XIII, Point XIV, Point XV, Point XVI, and Point

XVII are devoted to the trial court's refusal to enforce the alleged agreement to

relocate the community dock. Additionally, each of the three points raised by the

Bulls as cross appellants is related to the easement associated with the



                                          22
community dock. These points all fail because the alleged agreement to relocate

the community dock was rescinded.

       The following additional facts are necessary to the resolution of these

points. In 2004, Care acquired several lots in the subdivision. Randall Kent

("Kent"), a member of Care, also purchased two lots in his individual capacity.

       In the fall of 2006, Kent developed an idea to move the community dock

from the park to lot 3 which was owned by Care. Kent discussed the idea with

Restelli who was the only other full-time resident of the island at that time.

Relocating the community dock would provide a wave break for Restelli's dock,

and it would create space for Kent to attach his personal dock to the park so

Kent's personal dock would be closer to lots 12 and 13 on which Kent planned to

build a home. Four of the owners on the island, including Randall Sparks

("Sparks") and a representative of Ozark BF, LLC ("Ozark"), signed documents

stating they had no interest in the park and they gave "permission to move the

community dock from the 'Park' to the legal easement located between lots 2 and

3."

       Meanwhile, Care agreed to sell lot 3 to Michael Franklin ("Franklin"). The

contract for this sale ("the Franklin contract") provided that two boat slips in the

community dock were to be conveyed with the land. In a paragraph labeled

special agreements, the Franklin contract went on to state, "[b]uyer hereby agrees

that the community boat dock will be placed between lots 2 and 3 GPI. Buyer

agrees to install seawall on Lot 3 GPI. Buyer to have approval on the

specifications of the sidewalk installed between Lots 2 and 3."



                                         23
      On September 10, 2006, Care entered into a separate sale agreement with

Sparks ("the Sparks contract") to sell lots 4 and 5 to Sparks. Like the Franklin

contract, the Sparks contract contained an addendum regarding the community

dock. The addendum provided that Sparks would be responsible for installing a

sidewalk between lots 2 and 3 while Care would "be responsible for the move and

installation of the community dock between Lots 2 and 3 GPI."

      The sale to Franklin took place on September 30, 2006. The sale to Sparks

took place on October 13, 2006.

      The situation began to change that winter. In November 2006, Kent sold

lot 8 to Lowe. At the time of the sale, Kent told Lowe "the community dock would

be accessible via the park which was common ground." Lowe was not asked to

sign a waiver of interest "or any other type of document consenting to the dock

relocation." Kent did not tell Lowe about any plan to move the community dock.

      In early 2007, Franklin constructed a foundation for his home on lot 3.

After Franklin built his home, it was no longer possible to create a reasonable

access for the community dock from lot 3. As a result, Care had difficulty selling

additional dock slips. Some of the other homeowners stated they would sue if

Care moved the dock. Kent and Sparks believed it was no longer possible to

move the community dock, so they agreed "the deal was off[.]" That information

was conveyed to Franklin and Ozark.

      In early 2008, the Hellmanns began negotiating with Care to purchase a

number of lots on the island. The first contract between the Hellmanns and Care

required Care to complete the relocation of the community dock before closing.

Prior to closing, Kent received information that Ozark would sue if the

                                        24
community dock was moved. Care sent an email to the agent at the title

insurance company informing her the deal would be put on hold. On the

appointed closing date, Kent did not appear on behalf of Care. The Hellmanns

sued Care and filed a lis pendens regarding the property. Care and the

Hellmanns then entered into a second contract. The second contract did not

require relocation of the community dock prior to closing.

       The Hellmanns then purchased lots 1, 12, and 13, as well as the park and

the causeway from Care on April 19, 2008. The warranty deed for the park and

the causeway reserved the rights of the other owners to use the park and the

causeway. On that same day, Kent also executed an assignment. That

assignment transferred to the Hellmanns, among other things, "[a]ll rights under

certain owner consents for lots 4, 5, 6, 7, and 9 of Grand Pointe Island, a

subdivision in Camden County, Missouri, allowing the moving of the dock

presently attached to the Park Lot[,]" and "[a]ll rights pursuant to an agreement

with Pete Franklin to move the dock presently attached to the Park Lot to Lot 3,

the lot owned by Pete Franklin[.]" Nevertheless, the assignment explicitly stated,

"[a]ssignor specifically makes no representations with respect to the validity or

the enforceability of any rights being assigned to [a]ssignee."

       In December 2011, Franklin's lender, Hawthorn Bank ("Hawthorn"),

began foreclosure proceedings on lot 3. The Hellmanns sued Franklin and

Hawthorn seeking specific performance of the agreement to move the community

dock and an injunction on the foreclosure until Hawthorn executed an agreement

subordinating its lien on lot 3 to the easement on lot 3. The parties to that

lawsuit reached a settlement. As part of the settlement, the Franklins granted an

                                         25
easement on their property for the purpose of attaching the community dock and

for access to the community dock. The easement was conditional on the result of

the litigation in this case and provided the easement would lapse if a final

judgment was entered stating there was no agreement to move the community

dock.

        Ozark sued the Hellmanns and others seeking an injunction to prevent the

removal of the community dock from the park. The Hellmanns counterclaimed

seeking a declaration that the other lot owners had no right to use the park and

that there was a valid and binding agreement to relocate the community dock.

They also sought a mandatory injunction requiring the community dock to be

moved to lot 3 and specific performance of the Franklin contract. After a three-

day trial, the trial court found there was no binding agreement to relocate the

community dock and denied the Hellmanns' claims requesting specific

performance and a mandatory injunction.

     The Agreement to Move the Community Dock Was Rescinded

        The trial court's determination that there was no agreement to relocate the

community dock was correct because the parties to the original agreement to

move the community dock had mutually rescinded that agreement prior to the

time the Hellmanns received their assignment of Care's rights under those

contracts. "A written contract may be rescinded or abandoned by an agreement,

either written or parol, of the parties to the contract." Tahan v. Garrick, Inc.,

701 S.W.2d 189, 191 (Mo. App. E.D. 1985). "Such rescission may be shown by

acts and declarations of the parties which are inconsistent with the continued

existence of the previous contract." Id.

                                           26
       Here, not only did the parties on both sides of the agreement take actions

and make statements inconsistent with the continued existence of an agreement

to move the community dock, there was an explicit agreement to abandon the

agreement to move the community dock. In November 2006, Kent sold property

in the subdivision to Lowe. During the negotiations prior to that sale, Kent did

not mention the agreement to move the community dock, even though that

agreement, if still effective, would have affected the rights associated with the lot

Lowe purchased. In early 2007, Franklin built his home in a location on his lot

that made construction of an access for the community dock unrealistic if not

impossible. The choice to build a home in that location supports the conclusion

that there was no longer an agreement to move the community dock. Then,

based on complications caused by Franklin's choice, Kent and Sparks discussed

the situation and decided "the deal was off[.]" That conversation constituted an

explicit oral agreement to rescind the agreement to move the community dock.

       Additionally, when the removal of the community dock was made a

condition of the Hellmanns' first contract in 2008, Kent could not accomplish it,

and the contract failed to close. Even at that point, Kent took no action to

attempt to enforce the agreement to move the community dock. These facts show

Kent, Franklin, and Sparks rescinded the agreement to move the community

dock to lot 3.

       The rescission of the contract renders moot any further discussion of the

Hellmanns' points regarding the agreement. This is because, "[a]s a general rule,

rescission of a contract does not merely terminate it, but abrogates it in toto."

Dilts v. Lynch, 655 S.W.2d 118, 121 (Mo. App. S.D. 1983). Furthermore, the

                                         27
Hellmanns' rights with respect to the agreement to relocate the community dock

stem from an assignment they received from Kent. "An assignee steps into the

shoes of its assignor; it acquires no greater rights than those held by the assignor

at the time of the assignment." Adams v. Cossa, 294 S.W.3d 101, 105 (Mo.

App. E.D. 2009). That is, "[t]he only rights or interests an assignee acquires are

those the assignor had at the time the assignment was made." Renaissance

Leasing, LLC v. Vermeer Mfg. Co., 322 S.W.3d 112, 128 (Mo. banc 2010)

(emphasis added). Thus, if an agreement has been cancelled prior to an

assignment, one who takes an assignment of that agreement acquires nothing.

See Stone v. Farm Bureau Town & Country Ins. Co., 203 S.W.3d 736, 744

n.5 (Mo. App. S.D. 2006). At the time the Hellmanns purchased the property

and Kent made the assignment of his rights under the agreement to relocate the

community dock, the agreement to relocate the community dock had already

been rescinded. Consequently, it was as if the agreement had never existed, and

there was nothing to transfer to the Hellmanns.

       The rescission of the agreement to relocate the community dock also

defeats the Hellmanns' claims regarding the easement on lot 3 because the

easement on lot 3 was expressly conditioned upon the relocation of the

community dock. When interpreting the provisions of a written grant of an

easement, Missouri courts look to the parties' intentions "to be ascertained within

the four corners of the instrument, the surrounding circumstances and

conditions." Jablonowski v. Logan, 169 S.W.3d 128, 131 (Mo. App. E.D.

2005). Furthermore, "an easement can be granted to be terminated on

condition[.]" University City v. Chicago, R. I. & P. Ry. Co., 149 S.W.2d

                                         28
321, 326 (Mo. 1941). Here, the easement was created to settle litigation regarding

the alleged agreement to relocate the community dock. Additionally, the

language of the recorded instrument granting the easement explicitly stated that

if a court ordered that the community dock would not be relocated, "then the

easement granted herein shall lapse." Thus, once it is determined that there is no

enforceable agreement to relocate the community dock, the easement is

extinguished by its own terms.

       This conclusion also disposes of the points raised in the Bulls' cross-

appeal. In each of their three points as cross-appellants, the Bulls present

additional reasons why the trial court should have found it was impossible to

construct the sidewalk in the easement on lot 3. Because the agreement to

relocate the community dock was rescinded and the easement lapsed, these

points are moot.

       The original parties to the agreement to relocate the community dock

rescinded their agreement. Thus, the trial court did not err in determining there

was no enforceable agreement to relocate the community dock. The Hellmanns'

Point XIII, Point XIV, Point XV, Point XVI, and Point XVII as well as the Bulls'

Point I, Point II, and Point III are denied.

            Points Regarding the Appointment of an Attorney

       The final group of points includes the Hellmanns' Point VI and Point VII,

in which the Hellmanns challenge the trial court's rulings regarding attorney

Michael McDorman ("McDorman"). The following additional facts are relevant

to the resolution of these two points.



                                          29
       In February 2011, after the lawsuit had been pending for almost three

years, the trial court held a hearing and then made a docket entry regarding

additional parties. The Hellmanns' attorney was given 14 days to file an amended

petition which included all parties. Later that summer, trial was scheduled for

December 2011.

       On September 6, 2011, the Hellmanns filed a motion to add additional

parties. Again, the trial court held a hearing to determine whether all parties had

been named in the lawsuit. After that hearing, the trial court noted in a docket

entry that "parties agree a GAL should be appointed for all unknown heirs.

Parties agree to appoint Attorney Michael McDorman, Plaintiff to deposit

$2000.00 with the GAL."

       On November 16, the Hellmanns filed a motion to strike the appointment

of McDorman. In that motion, the Hellmanns argued the trial court had no

authority to appoint McDorman because there was no statute or rule authorizing

the appointment. The trial court overruled the motion, noting the case had been

continued three times while the parties attempted to identify all interested

persons. The case was finally tried in September 2012, and McDorman attended

and participated in the three day trial.

       After trial, McDorman submitted a bill to the judge with an explanatory

email. The email stated McDorman anticipated spending additional time on the

matter to review the proposed findings of fact and conclusions of law submitted

by the parties and to perhaps draft his own proposed findings of fact and

conclusions of law if the positions taken by the other parties did not incorporate

all of his concerns. The statements attached to the email billed 68.8 hours of

                                           30
attorney time. After mileage and other expenses were included, the total bill

came to $17,232.55.

       In its original judgment, the trial court made factual findings regarding the

necessity of appointing McDorman. The trial court noted the complexity of the

case and the trial court's orders trying to get the Hellmanns to join all interested

parties. The trial court also considered the Hellmanns' conduct at trial and the

fact that "[p]rior to purchasing their lot, the [Hellmanns] were aware that the

project to move the dock had been abandoned by all lot owners." The trial court

concluded it had the power to appoint an attorney for unknown parties in a

declaratory judgment action and ordered the Hellmanns to pay $19,857.55 in fees

to McDorman.

       The Hellmanns timely filed a motion for new trial or to amend the

judgment. Among other things, the Hellmanns argued the award of fees to

McDorman was improper because it was more than McDorman requested.

       The trial court thereafter entered an amended judgment. The findings

regarding McDorman were identical to those in the original judgment, but the

amount of attorney's fees awarded was increased to $20,000.00.

                                  Invited Error

       In Point VI, the Hellmanns argue "[t]he trial court erred in appointing

attorney McDorman to represent 'unknown persons' and ordering the Hellmanns

to pay all of the fees for attorney McDorman" because the trial court lacked

jurisdiction to do so as "there is no rule or statute or other authorizing law that

provides the authority for the trial court to take these actions." The record

created below suggests the Hellmanns invited this error.

                                         31
        "The general rule of law is that a party may not invite error and then

complain on appeal that the error invited was in fact made." Pierson v.

Kirkpatrick, 357 S.W.3d 293, 299 (Mo. App. S.D. 2012) (quoting Lau v.

Pugh, 299 S.W.3d 740, 757 (Mo. App. S.D. 2009)). Thus, "[u]nder the invited

error rule, 'a party is estopped from complaining of an error of his own creation,

and committed at his request.'" G.H. v. Eli Lilly & Co., 412 S.W.3d 326, 332

(Mo. App. W.D. 2013) (internal citation omitted).

        In the present case, the initial docket entry regarding McDorman stated

the parties agreed to have a guardian ad litem appointed for "unknown heirs." It

was not until over a month later that the Hellmanns objected to the appointment.

Under these circumstances, the Hellmanns invited the error of which they now

complain.

        The Hellmanns' Point VI is denied.

                                      Attorney's Fees

        In their seventh point, the Hellmanns argue the trial court's award of fees

to McDorman was not supported by substantial evidence and was against the

weight of the evidence because the amount awarded was more than the amount

McDorman requested. We disagree.

        McDorman's bill and the letter accompanying it show the award was

reasonable.5 "[T]he trial court is considered an expert on the issue of attorneys'


5These documents do not appear in the legal file and were not provided as an exhibit on appeal.
Rather, the documents are available only in the appendix to the Hellmanns' brief. Generally
speaking, merely including a document or exhibit in an appendix to a brief does not make them
part of the record on appeal. Evans v. FirstFleet, Inc., 345 S.W.3d 297, 306 (Mo. App. S.D.
2011). Nevertheless, "[w]here a statement of fact is asserted in one party's brief and conceded to
be true in the adversary's brief, we may consider it as though it appears in the record." Eskridge
v. State, 193 S.W.3d 849, 852 (Mo. App. S.D. 2006) (quoting Thornbury v. Morris Oil Co.,

                                               32
fees such that, in the absence of a contrary showing, the trial court is presumed to

know the character of the attorneys' services rendered in duration, zeal, and

ability." Grissom v. First Nat. Ins. Agency, 364 S.W.3d 728, 736 (Mo. App.

S.D. 2012) (quoting Williams v. Trans States Airlines, Inc., 281 S.W.3d

854, 878 (Mo. App. E.D. 2009)). In fact, because of its expertise, "[t]he circuit

court that 'tries a case and is acquainted with all the issues involved may "fix the

amount of attorneys' fees without the aid of evidence."'" Western Blue Print

Co., LLC v. Roberts, 367 S.W.3d 7, 23 (Mo. banc 2012) (quoting Essex

Contracting, Inc. v. Jefferson County, 277 S.W.3d 647, 656 (Mo. banc

2009)). When fixing the amount of attorneys' fees, the trial court may consider

many factors, including:

        1) the rates customarily charged by the attorneys involved in the
        case and by other attorneys in the community for similar services;
        2) the number of hours reasonably expended on the litigation; 3)
        the nature and character of the services rendered; 4) the degree of
        professional ability required; 5) the nature and importance of the
        subject matter; 6) the amount involved or the result obtained; and
        7) the vigor of the opposition.

Berry v. Volkswagen Group of America, Inc., 397 S.W.3d 425, 431 (Mo.

banc 2013) (quoting Hill v. City of St. Louis, 371 S.W.3d 66, 81-82 (Mo. App.

E.D. 2012)).

        In the present case, the trial judge who set the amount of attorney's fees in

this case was also the judge who appointed McDorman and presided over the

trial. Thus, he was familiar with the work McDorman performed in the case.

Additionally, McDorman submitted a bill in the amount of $17,232.55.


Inc., 846 S.W.2d 238, 239 n. 2 (Mo. App. S.D. 1993)). Here, all parties who discuss this issue
refer to the email and the bill in their briefs and appear to agree about the amount stated in the
bill. Thus, we accept those statements as if they appeared in the record.

                                                 33
McDorman also noted he would be expending additional time in the case to

review the parties' proposed findings of fact and conclusions of law. In light of

the number of parties and complexity of the case, the trial court did not abuse its

discretion in providing additional fees for that work.

       In support of their argument to the contrary, the Hellmanns rely on

Dildine v. Frichtel, 890 S.W.2d 683 (Mo. App. E.D. 1994), for the proposition

that the trial court abuses its discretion in setting attorney fees where there is no

evidence to support the award. This argument is without merit. That case

involved a jury award of attorney fees. Id. at 684-85. Members of a jury, unlike

a trial judge, are not experts in attorney fees. Id. at 687. Furthermore, as

discussed above, there is evidence to support the trial court's ruling because

McDorman stated he would be doing additional work on the case that was not

reflected in the bills submitted.

       The trial court did not abuse its discretion when it set the amount of

attorney's fees to be awarded to McDorman. The Hellmanns' Point VII is denied.

                                     Decision

       The trial court's judgment is affirmed.


MARY W. SHEFFIELD, P.J. – OPINION AUTHOR

NANCY STEFFEN RAHMEYER, J. – CONCURS

DON E. BURRELL, J. – CONCURS




                                          34
