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: March 6, 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, ) 

 ) 
2 

 ) 

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. 
3 

 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, 
4 

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 
5 

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 
6 

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 corporations organized under the Missouri 

Nonprofit Corporation 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). 
7 

(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' 
8 

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. 
9 

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. 
10 

(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 
11 

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 
12 

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. 
13 

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 
14 

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 
15 

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.
16 

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 
17 

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. 
18 

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 
19 

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 
20 

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." 
21 

 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). 
22 

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 
23 

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." 
24 

 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 
25 

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 
26 

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 threeday 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. 
27 

 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 
28 

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 
29 

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' crossappeal. 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. 
30 

 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 
31 

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. 
32 

 "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' 

 

5 These 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., 
33 

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. 
34 

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