Missouri Court of Appeals Southern District
In Division LANDS’ END PROPERTIES, LLC, ) et al., ) ) Plaintiffs-Respondents, ) ) v. ) No. SD38117 ) Filed: March 26, 2025 THE GRAND MERIDIAN ) CONDOMINIUM OWNERS’ ) ASSOCIATION, INC., et al., ) ) Defendants-Appellants. )
APPEAL FROM THE CIRCUIT COURT OF CAMDEN COUNTY
Honorable Kenneth M. Hayden, Circuit Judge
AFFIRMED
Following a bench trial, the trial court ruled in favor of Lands’ End Properties, LLC
(LEP), and against the Grand Meridian Condominium Owners’ Association (Association) on
the first count of LEP’s petition to declare that LEP “retains its development rights[.]” The
court ruled in favor of the Association and against LEP on the second count of LEP’s petition.
The court decided that: (1) the five-year statute of limitations in § 516.120 applied; and (2)
LEP owed unpaid assessments on its two units after March 28, 2013. 1
1 All statutory references are to RSMo (2000). All rule references are to Missouri Court Rules (2024). The Association appeals, presenting 13 points. Eight points contend the trial court
misapplied the law with respect to: (1) the court’s determination that LEP retained its
development rights; and (2) the court’s calculation of the amount that LEP owed in assessments,
including the application of a five-year statute of limitations. The remaining five points involve
one evidentiary ruling and several challenges to the court’s findings on the ground that they are
against the weight of the evidence. Finding no merit in any of these points, we affirm.
Standard of Review
A judgment is presumed correct, and the party challenging the judgment bears the
burden of proving it erroneous. Brackney v. Walker, 670 S.W.3d 455, 458 (Mo. App. 2023).
In this court-tried case, our review is governed by Rule 84.13(d) and Murphy v. Carron, 536
S.W.2d 30, 31-32 (Mo. banc 1976). We are required to affirm the trial court’s judgment unless
it is not supported by substantial evidence, 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). “All fact issues upon which no specific findings are made shall be considered as having
been found in accordance with the result reached.” Rule 73.01(c); see Theroff v. Dollar Tree
Stores, Inc., 591 S.W.3d 432, 437 (Mo. banc 2020). When considering whether the court
misapplied the law, we review the court’s legal conclusions and application of law to the facts
de novo. McLeod v. McLeod, 681 S.W.3d 215, 228-29 (Mo. App. 2023). In addition,
“[s]tatutory interpretation is an issue of law that this Court reviews de novo.” Crockett v. Polen,
225 S.W.3d 419, 420 (Mo. banc 2007); see Clampit v. Cambridge Phase II Corp., 884 S.W.2d
340, 345 (Mo. App. 1994).
Interpretation of the language of a condominium declaration also is reviewed de novo.
Haines v. Branson Cabin Rentals, LLC, 635 S.W.3d 172, 174 (Mo. App. 2021). “We construe
condominium declarations strictly.” Id.; see Clampit, 884 S.W.2d at 345. The rule of strict
2 construction means that we cannot give the declaration “a broader application than is warranted
by its plain and unambiguous terms, and we cannot presume anything that is not expressed by
the declaration.” Taticek v. Homefield Gardens Condo. Ass’n, 502 S.W.3d 645, 648 (Mo.
App. 2016) (internal quotation marks omitted). This provides condominium buyers with
confidence that what they see is what they get, and that a court acting under its equity powers
will not act in contravention of the declaration. Clampit, 884 S.W.2d at 345. Further, “[i]n
determining the meaning of [declaration] provisions, we consider the document as a whole and
give the words their natural and ordinary meaning.” Willows Condo. Owners Ass’n, Inc. v.
Kraus, 467 S.W.3d 312, 314 (Mo. App. 2015).
Lastly, in reviewing the evidence, we defer to the trial court’s determination of the
credibility of witnesses. Brackney, 670 S.W.3d at 459. “The trial judge is in a better position
than this court to determine the credibility of the parties, their sincerity, character and other trial
intangibles which may not be shown by the record.” Kelley v. Prock, 825 S.W.2d 896, 897
(Mo. App. 1992). Further, a trial court is free to believe or disbelieve all or any part of the
witnesses’ testimony. In re C.C.S., 393 S.W.3d 105, 108 (Mo. App. 2013). Therefore, “[w]e
view the evidence and any reasonable inferences therefrom in the light most favorable to the
court’s decision and disregard all contrary evidence and inferences.” Id. So viewed, the
following facts were proven at trial.
Factual and Procedural History
LEP was formed in October 2002 for the purposes of developing, marketing and selling
condominiums at “The Grand Meridian Condominiums at Lands’ End” project (Project). Stuart
Dabbs (Dabbs) and Kevin Brown (Brown) each owned a 50% membership interest. Brown
was the managing member until he passed away in April 2016, at which time Dabbs became
the managing member.
3 On July 24, 2003, the Association was organized for the purpose of administering and
operating the Project. On July 30, 2003, LEP recorded the Condominium Declaration for the
Project (the Declaration) for the purpose of creating a planned community of condominiums.
The Declaration was prepared in accordance with the Missouri Uniform Condominium Act (the
Act). 2 Every original purchaser received an “Original Sales Certificate” that included a copy
of the Declaration. According to the Declaration, LEP had the right to construct up to 280
condominium units at the Project. At the time of trial, the Project consisted of 192 units.
Article XV of the Declaration addresses LEP’s development rights. According to
§ 15.1, LEP, as the “Declarant[,]” reserves all development rights “[u]ntil the expiration of the
Declarant Rights Period”:
Reservation of Development Rights. Until the expiration of the Declarant Rights Period, Declarant reserves the rights to exercise all “Development Rights”, as defined from time to time in the Act (and so referred to herein as “Development Rights”) with respect to all of the Property, other than to the extent hereinafter limited with respect to a specific Development Right. The rights hereinafter set forth may be terminated prior to the expiration of the Declarant Rights Period only upon the filing by Declarant of an amendment to the Declaration expressly terminating a specific right. The Development Rights reserved hereunder shall specifically include, without limitation, the rights set forth in Subsections 15.1.1 through 15.1.6.
§ 15.1 (emphasis added). 3 Section 3.20 of the Declaration defines the “Declarant Rights
Period” as beginning on the date the Declaration was recorded and ending on the date LEP
conveys “all units … originally owned by [LEP.]”
The last unit sold by LEP was in April 2013. LEP retained ownership, however, of
Units 1-E100 and 1-E101, which have never been conveyed to another party. LEP does not
have a lease for any boat slips, nor has LEP been assigned or leased any garage spaces.
2 The Act is comprised of “Sections 448.1-101 to 448.4-120[.]” See § 448.1-101. 3 With respect to termination of development rights, no evidence was presented that LEP filed an amendment terminating its development rights as required by § 15.1. 4 Lastly, as relevant here, the Declaration also reserved the right of LEP to submit
additional property to the Project. Section 15.1.1 provides:
Option to Add Real Estate to the Condominium. Declarant reserves the right to add to the Condominium in whole or in portions, the real estate described on Exhibit D (“Potential Added Land”).
Id. 4 The real estate described on Exhibit D includes the “Point” property (Point), which is the
subject of the underlying controversy between the parties.
In 2015, LEP began marketing for sale and taking reservations for units to be
constructed on the Point. In October 2017, LEP learned that the Association opposed
development of the Point. The Association took the position that: (1) LEP no longer retained
development rights; and (2) LEP owed assessments on the two units it owns, Units 1-E100 and
1-E101.
In March 2018, LEP filed its first amended petition (Petition) seeking declaratory relief
in its first two counts. These counts requested the trial court to declare that: LEP retains its
development rights based on the aforementioned Declaration provisions (Count 1); and LEP is
not obligated to pay assessments on the two units it owns based on Declaration § 4.2.1.5
4 Once submitted to the Project, there was no provision in the Declaration reserving the right of LEP to withdraw property from the Project. 5 Section 4.2.1 of the Declaration provides:
Building Status as Master Unit. Notwithstanding the foregoing, each Building shown on the Plat shall be deemed to constitute one master Unit, owned by Declarant. Declarant reserves the Development Rights, as set forth in Section 15.1 of this Declaration, to subdivide such Master Unit into the Units depicted on the Building Plat …. Until such time as all the Units depicted on the Building Plat shall have been conveyed to purchasers other than Declarant, the Allocated Interest for the Master Unit shall equal one percent (1%); provided however, that Declarant shall be responsible for all expenses associated with such Building as is not provided for by the assessments attributable to Units therein which are owned by purchasers other than Declarant. [Emphasis added.]
5 According to LEP, the foregoing Declaration provision states that the Association is not entitled
to collect assessments on its two units, so long as LEP is paying all expenses associated with
those units until LEP conveys them to a purchaser (Count 2). 6
In response, the Association filed a counterclaim opposing LEP’s first two counts. In
Count 1, the Association denied that LEP retains development rights because, inter alia, § 3.20
defining “Declarant Rights Period”: (1) “fails to state a time limit in which LEP must exercise
its development rights”; and (2) even if § 3.20 stated a time limit, such a time limit is
“unconscionable” because it is “unknowable and perpetual and should not be enforced against
purchasers of condominium units and the Association” pursuant to § 448.1-112 (providing that
a court may refuse to enforce unconscionable clause). In Count 2, the Association alleged that
LEP owed assessments on its two units because Declaration § 4.1.2 “discriminate[s] against
other condominium units in LEP’s favor by not requiring LEP to pay common expense
assessments” in violation of § 448.2-107.1 (allocations of interest in common elements “may
not discriminate in favor of units owned by the declarant”).
The Association’s third-amended counterclaim, filed in September 2022, included five
more counts. These counts requested: punitive damages (Count 3); an accounting (Count 4);
damages for the cost of repair of a roadway and parking lot (Count 5); a resulting trust (Count
6); and, alternatively, a constructive trust (Count 7).
In October 2022, a bench trial was conducted. The trial court agreed with LEP as to
Count 1, but disagreed with LEP as to Count 2. With respect to Count 1, the court declared that
LEP properly preserved its development rights and, therefore, must be permitted to complete
the development of the Project. The court did not make any findings with respect to the
6 LEP’s first amended petition alleged 11 counts, of which nine counts have since been dismissed. The first two counts remained viable and are relevant here.
6 Association’s argument that § 3.20 was “unconscionable.” As for Count 2, the court agreed
with the Association that LEP owes assessments on its two units “after March 28, 2013” through
and after December 31, 2022 “for as long as [LEP] owns said units.” The court applied the
five-year statute of limitations in § 516.120 to determine that the assessments were due after
March 28, 2013.
With respect to the Association’s additional counts in its amended counterclaim, the
trial court found against the Association on its Counts 3, 4, 6 and 7. The court found in favor
of the Association, however, on its Count 5. The court ordered LEP to “lay a second layer of
asphalt … within 60 days of the completion of the construction on the Point[,]” rendering the
Association’s “request for damages for repair to [the] roadway and parking lot … moot in light
of the Court’s Judgment.”
Thereafter, the Association filed a motion to amend the judgment or for a new trial, both
of which the trial court denied. 7 This appeal followed. Additional facts will be included below
as we address the Association’s 13 points on appeal. For ease of analysis, we will address these
points out of order.
Discussion and Decision
In four of the Association’s points, the Association contends the trial court “misapplied
the law” with respect to its ruling that LEP retained its development rights (Points 3, 4, 13 and
10). Next, also in four points, the Association contends the court also “misapplied the law” in
calculating the amount of assessments that LEP owes (Points 2, 8, 7 and 12). Lastly, in the
remaining five points, the Association challenges a ruling in an evidentiary matter (Point 11),
7 The Association’s motion presented similar issues and arguments as those raised on appeal. 7 and maintains that four findings by the trial court are against the weight of the evidence (Points
1, 5, 6 and 9). We will address each point in turn.
Development Rights – Points 3, 4, 13 and 10
The Association contends LEP did not retain its development rights because: the
Declaration fails to state a sufficient “time limit” for LEP to exercise its development rights
(Point 3); LEP’s development rights are prohibited by its failure to pay costs, insurance and
taxes on the Point property (Point 4); and LEP’s failure to turn control of the Association over
to unit owners terminated LEP’s development rights (Point 13). The Association further takes
issue with the court’s order to lay asphalt (Point 10). Each of these points is separately
identified and discussed below.
Point 3 – “Time Limit” to Exercise Development Rights
Point 3 contends the trial court misapplied the law in determining “that the Declaration
states a ‘time limit’ in which LEP could exercise development rights” because “the language in
the Declaration reserving LEP’s development rights is not a ‘time limit’ as required” by
§ 448.2-105.1(8) of the Act. We disagree.
Section 448.2-105 provides in relevant part:
1. The declaration for a condominium shall contain: … (8) A description of any development rights and other special declarant rights reserved by the declarant, together with a legally sufficient description of the real estate to which each of those rights applies, and a time limit within which each of those rights shall be exercised[.]
§ 448.2-105.1(8) (emphasis added). As mentioned previously, § 3.20 of the Declaration defines
the “Declarant Rights Period” as beginning on the date the Declaration was recorded, and
ending on the date LEP conveys all units that LEP originally owned:
8 “Declarant Rights Period” means the period beginning the date this Declaration is first recorded in the office of the Recorder of Deeds of Camden County, Missouri, and ending the date on which Declarant shall have conveyed to parties (other than a Successor Declarant) all units, as defined in the Act, originally owned by Declarant in the Community.
(Emphasis added.)
The trial court determined that the “time limit” set forth in the Declaration complies with
§ 448.2-105.1(8) and “is not infinite” as the Association argued. The court noted that § 448.2-
105.1(8) “does not provide a maximum time limit for the exercise of development rights” and
refused to add language to this section of the statute for the following reason:
This section does not require a clear date or maximum term of years. This Court will not add language to this statute. If the legislature had intended to set forth a maximum time limit in this section they could have done so as they did in Section 448.3-103.4 RSMo … wherein the legislature set forth maximum time limits defining the period of declarant control of the association.
We agree with the trial court. The primary rule of statutory interpretation is to give
effect to legislative intent as reflected in the plain language of the statute. Black River Motel,
LLC v. Patriots Bank, 669 S.W.3d 116, 122 (Mo. banc 2023). “In construing a statute, courts
cannot add statutory language where it does not exist; rather, courts must interpret the statutory
language as written by the legislature.” Peters v. Wady Indus., Inc., 489 S.W.3d 784, 792 (Mo.
banc 2016) (internal quotation marks and citation omitted); see Li Lin v. Ellis, 594 S.W.3d 238,
241-42 (Mo. banc 2020). Similarly, the rule of strict construction of the Declaration means that
we cannot give § 3.20 “a broader application than is warranted by its plain and unambiguous
terms[.]” Taticek, 502 S.W.3d at 648 (citation omitted). Further, “we cannot presume anything
that is not expressed by the [D]eclaration.” Id.; see Shaw v. Mega Indus., Corp., 406 S.W.3d
446, 472 (Mo. App. 2013).
9 Thus, the plain language of § 448.2-105.1(8) requires the Declaration to simply contain
“a time limit within which [LEP’s development rights] shall be exercised.” Id. Section 3.20
complies with that statutory requirement by providing a beginning and end date within which
LEP must act. No maximum time limit was required. Accordingly, the trial court did not
misapply the law in concluding the time limit in the Declaration complied with § 448.2-
105.1(8). Point 3 is denied.
Point 4 – Point Costs, Insurance, and Taxes
Point 4 contends the trial court misapplied the law in determining “LEP’s failure to pay
costs and maintenance, insurance, and taxes on the ‘Point’ for 14 years does not prohibit LEP
from exercising the development right [to] construct additional units on the Point because …
§ 448.3-107.2 requires the developer to pay such costs on real property in which it has reserved
development rights.” We disagree.
Here, the trial court acknowledged that “LEP has not paid for maintenance and other
expenses attributable to the to the real property it now desires to develop at least since 2009, as
required by Section 448.3-107.2[,] except for maintaining liability insurance thereon.” The
court went on to conclude, however, that any violation of this statute “is minor in nature”
because:
The Association has not billed LEP for any costs or expenses attributable to the Point. … There is no evidence before this Court as to what the maintenance costs of the Point have been. Accordingly, any violation of Section 448.3-107.2 by LEP is minor in nature and should not subject LEP to liability for attorney fees of the Association. Neither was such violation willful, wanton and malicious or outrageous because of LEP’s evil motive or reckless indifference to the rights of the Association. In so ruling this Court is aware that the Camden County Assessor has not assessed LEP ad volorem real property taxes against the Point. LEP can only pay the real estate taxes for which it is assessed. The manner in which the Camden County Assessor has assessed the ad volorem real estate taxes for the Point is not binding on this Court or determinative of the issues before this Court.
10 While § 448.3-107.2 does require that “the declarant alone is liable for all expenses in
connection with real estate subject to development rights[,]” this statute does not prohibit LEP
from exercising the development rights due to a failure to pay such expenses as the Association
contends. The Association fails to cite any other statutory authority or caselaw to support its
contention. As such, the trial court did not misapply the law refusing to prohibit LEP from
exercising its development rights based on its failure to pay maintenance costs on the property
subject to development. Point 4 is denied.
Point 13 – Unit Owners’ Control of the Association
Point 13 contends the trial court misapplied the law in determining “LEP’s failure to
turn control of the Association over to the Unit owners as required by [the Act] did not also
terminate LEP’s right to add additional condominium units” because “LEP purposefully
violated multiple provisions of [§ 448.3-103] and purposefully acted in ways to ensure the
Association would not file suit against LEP to collect unpaid assessments or complaining about
LEP’s failure to pay maintenance and expenses on real property LEP wanted to develop.” We
disagree.
The Association’s Point 13 fails for the same reason as the previous point. Even if the
trial court had found LEP acted in ways described in this point (which the court did not), the
Association fails to cite any statute or caselaw to support the proposition that a developer loses
its development rights by failing to turn over control of the Association to the unit owners. The
Association cites § 448.3-103, which governs executive board members and officers, but does
not provide that a developer’s failure to act consistently with any of the statute’s provisions
terminates development rights. Accordingly, the trial court did not misapply the law in refusing
to terminate LEP’s development rights, based on its alleged failure to turn control of the
Association over to the unit owners. Point 13 is denied.
11 Point 10 – Order for LEP to Lay Asphalt
Finally, with respect to LEP’s development rights, the Association’s tenth point takes
issue with the trial court’s order that LEP “lay a second layer of asphalt … within 60 days of
the completion of the construction on the Point.” In so ordering, the court actually found in
favor of the Association and against LEP.
In Point 10, the Association nevertheless contends the trial court “erred in ordering LEP
to install the second layer of asphalt … upon ‘completion of the construction on the Point’
because such is ambiguous in that there is no time limit in which LEP will be required to
complete such construction.” We disagree.
Although this point fails to state exactly how the trial court erred under our 84.13(d) and
Murphy v. Carron standard of review – in violation of briefing requirements under Rule
84.04(d) – we nevertheless find no error or ambiguity in the court’s order. The court’s ruling
is in accordance with the court’s findings that LEP properly retained its development rights to
the Point. Given that the road in question may be further damaged during the Point’s
construction, it is reasonable that the court did not order LEP to lay the asphalt any sooner. Any
required completion date of that work would be based on speculation at this time. Point 10 is
denied.
Assessments – Points 2, 8, 7 and 12
The Association contends the trial court “misapplied the law” in determining the amount
of assessments that LEP owed because the court: applied a 5-year statute of limitations for
contract actions, instead of a 10-year statute of limitations (Point 2); determined LEP was
entitled to a $49,000 credit “for unpaid assessments” that LEP paid in 2007, when the court
ruled LEP did not owe assessments prior to 2013 (Point 8); determined LEP did not owe
assessments for “garages or boat slips it controlled” (Point 7); and determined “subsequent
12 purchasers of condominium units were precluded from complaining about LEP’s failure to pay
condominium assessments” (Point 12). The following facts are relevant to these points.
The trial court found that “[a] condominium declaration is simply a contract.” The court
went on to find that the “Declaration in this instance clearly states the terms, covenants,
conditions, easements, restrictions, use, limitations and obligations of the developer and the unit
owners[.]”
With respect to assessments for common expenses, the court found that “[t]he evidence
is clear that assessments were not being levied against units which were not yet sold.” The
court further found that unit owners and the Association had notice LEP was not paying
assessments:
Any unit owner and the Association were put on notice that LEP was not being assessed or paying assessments on units it owned, and which had not been sold, as early as 2004. LEP took no action to conceal this information.
The court nevertheless concluded, however, that LEP is liable for “assessments for the
common expenses pursuant to the ‘Allocated Interest’ for [U]nits 1-E100 and 1-E101.” The
court limited the time period in which LEP owed the assessments to after March 28, 2013.
The court ruled that “[t]he claims of the Association for unpaid assessments … prior to March
28, 2013” are “barred by the five-year statute of limitations” pursuant to § 516.120.1 (applying
to “[a]ll actions upon contracts”).
In determining the amount LEP owed, the trial court “calculated the amount through
December 31, 2022 to be $36,198.78.” The court also awarded the Association $65,000 in
attorney fees authorized under the Declaration, which resulted in a partial judgment of
$101,198.78. The court went on to determine a “net” partial judgment. The court: (1) first
acknowledged that “LEP contributed the sum of $49,000 to the operating fund deficit in 2007”;
(2) then determined that LEP “is entitled to a credit of $49,000 against the partial judgment”;
13 and (3) ultimately awarded “a net partial judgment of $52,198.78” in favor of the Association
and against LEP.
Point 2 – Assessments Owed Prior to March 28, 2013
Point 2 contends the trial court misapplied the law in determining that “the Association
could not collect unpaid common expense assessments from LEP for amounts owed prior to
March 28, 2013[,]” because the Court applied a 5-year statute of limitations and “the proper
statute of limitations is 10 years[.]” We disagree. 8
“In determining whether the five-year or ten-year statute of limitations is applicable to
a breach of contract claim, the sole consideration is whether there is any breach of a written
promise to pay an amount of money[.]” Sommers v. Kruse Mennillo, LLP, 699 S.W.3d 525,
530 (Mo. App. 2024) (emphasis in original).
Missouri has two statutes of limitation relating generally to contract actions[.] Section 516.110(1) applies to an “action upon any writing, whether sealed or unsealed, for the payment of money or property” and allows the claim to be brought within ten years. Section 516.120(1) applies to “[a]ll actions upon contracts, obligations or liabilities, express or implied, except those mentioned in section 516.110.”
Hughes Dev. Co. v. Omega Realty Co., 951 S.W.2d 615, 616 (Mo. banc 1997). “Under
516.120, all claims must be brought within five years.” Sommers, 699 S.W.3d at 530. In
Rolwing v. Nestle Holdings, Inc., 437 S.W.3d 180 (Mo. banc 2014), our Supreme Court
explained:
[T]he 10-year statute established by section 516.110(1) “applies to every breach of contract action in which the plaintiff seeks a judgment from the
8 Alternatively, Point 2 argues that the trial court misapplied the law because the 5-year statute of limitations “should be waived or tolled until such time as the Unit owners gained control of the Association” based on LEP’s alleged control of the Association. This argument lacks merit because it is based on alleged facts contrary to the court’s findings. Specifically, the trial court found that LEP did not control the actions of the Association. 14 defendant for payment of money the defendant agreed to pay in a written contract.”
Rolwing, 437 S.W.3d at 183 (emphasis in original); see Hughes, 951 S.W.2d at 617
(Section 516.110(1) applied because the plaintiff sought a judgment against the defendant for
payment of money as agreed to in a contract); Sommers, 699 S.W.3d at 530-32 (similar
holding).
In this case, the Association’s claim for unpaid assessments was an action seeking
recovery of money from LEP. The Association did not have a lien or seek to enforce a lien.
Specifically, the Association maintained that LEP’s failure to pay assessments violated the
Declaration as a contract. See, e.g., Cornerstone Condo. Ass’n v. Dunlap, 591 S.W.3d 880,
881 (Mo. App. 2019) (underlying claim for breach of contract relating to unit owner’s failure
to pay condominium assessments). As the trial court found, the Declaration was indeed a
contract that stated “the terms, covenants, conditions, easements, restrictions, use, limitations
and obligations of the developer and the unit owners[.]” While the Declaration establishes the
procedures to determine if, and how much, money is owed, the Declaration is not in itself “a
written promise to pay an amount of money[.]” Sommers, 699 S.W.3d at 530. As such, the 10-
year statute of limitations period pursuant to § 516.110(1) does not apply. Id.; compare
Hughes, 951 S.W.2d at 617; Sommers, 699 S.W.3d at 530-32. Because the underlying claim
is still an action upon contract, the trial court correctly applied the 5-year limitation period under
§ 516.120(1); see Rolwing, 437 S.W.3d at 183. 9
9 A claim for assessments could also be an action upon a liability created by statute. See § 448.3-115 (governing assessments for common expenses). Such an action is similarly included in the 5-year limitation period under § 516.120(2) as “[a]n action upon a liability created by a statute other than a penalty or forfeiture[.]” Id. 15 The Association argues the 10-year statute of limitations applies pursuant to § 516.010
as an action for recovery of lands:
No action for the recovery of any lands, tenements or hereditaments, or for the recovery of the possession thereof, shall be commenced, had or maintained by any person, whether citizen, denizen, alien, resident or nonresident of this state, unless it appear that the plaintiff, his ancestor, predecessor, grantor or other person under whom he claims was seized or possessed of the premises in question, within ten years before the commencement of such action.
Id. (emphasis added). The Association recognizes it does not seek to recover any lands, but
nevertheless argues it seeks to recover “hereditaments[,]” which can include easements running
with the land in restrictive covenants. See Terre Du Lac Prop. Owners’ Ass’n v. Wideman,
655 S.W.2d 803, 805 n.1 (Mo. App. 1983). This argument lacks merit for two reasons.
First, a hereditament must be inheritable. See, e.g., Orchard v. Wright-Dalton-Bell-
Anchor Store Co., 125 S.W. 486, 496 (Mo. 1909); McLaughlin v. Neiger, 286 S.W.2d 380,
384 (Mo. App. 1956); Blacks Law Dictionary 872 (11th ed. 2019) (defining a hereditament as
“[a]ny property that can be inherited; anything that passes by intestacy” or “[r]eal property;
land”). An unpaid assessment is not inheritable upon the death of the person obligated to pay,
and it does not descend by intestacy as an heir’s obligation. See The Ventana Owners Ass’n,
Inc. v. Ventana KC, LLC, 481 S.W.3d 75, 79 (Mo. App. 2015) (“contractual personal debt for
unpaid assessments … is enforceable only against the owner who did not pay assessments”).
Second, the only case relied upon by the Association is factually distinguishable. In
Kuehnle v. Gray, 865 S.W.2d 439 (Mo. App. 1993), owners of a lot in a subdivision argued the
enforcement of liens on their property was barred by the 5-year statute of limitations. Id. at
441. The eastern district of this Court held that enforcement of liens in that case was governed
by § 516.010 as an action to recover “hereditaments.” Kuehnle, 865 S.W.2d at 441. Kuehnle
is factually distinguishable from the case at bar in three respects. First, this case does not
16 involve the enforcement of a lien. See Ventana, 481 S.W.3d at 79 (“personal debt of an owner
for unpaid assessments, collected by an action for a money judgment, is not enforcement of a
lien”). Furthermore, Kuehnle involved a lien on a subdivision lot – not a condominium unit.
The Act specifically authorizes a lien for unpaid assessments on a condominium unit, pursuant
to § 448.3-116, and further imposes a 3-year limitation period to enforce the lien:
A lien for unpaid assessments is extinguished unless proceedings to enforce the lien are instituted within three years after the full amount of the assessments becomes due.
§ 448.3-116.5. Finally, the Association sought recovery of money from LEP for violations of
the Declaration as a breach-of-contract action. As established previously, because the
Association’s contract action was not based on a written promise to pay an amount of money,
the 10-year statute of limitations period under § 516.110(1) does not apply. Instead,
§ 516.120(1) applies, and it narrows the period of limitation to five years. See Rolwing, 437
S.W.3d at 183. Accordingly, the trial court did not misapply the law in determining that the 5-
year limitation period applied and that the Association could not collect unpaid common
expense assessments from LEP for amounts owed prior to March 28, 2013. Point 2 is denied.
Point 8 – LEP’s $49,000 Credit
Point 8 contends the trial court misapplied the law in determining “LEP was entitled to
a credit of $49,000 in payments made in 2007 for amounts it owed for unpaid assessments from
March 28, 2013” because “such ruling was inconsistent” with the court’s finding that “LEP did
not owe unpaid condominium assessments prior to March 28, 2013 due to a five-year statute of
limitations but still gave LEP credit for payments made in 2007.” We disagree.
The Association’s eighth point is based on a faulty premise. The trial court specifically
found that LEP contributed the $49,000 to the operating fund deficit in 2007, not to pay
assessments. Further, the trial court did not apply the $49,000 specifically to unpaid
17 assessments. The court instead applied the credit generally to a partial judgment that included
$65,000 in attorney fees. The Association makes no other argument that ties the credit to
assessments. As such, the trial court did not misapply the law in determining LEP was entitled
to a credit of $49,000. Point 8 is denied.
Point 7 – Assessments for Garage Spaces and Boat Slips
The Association’s seventh point challenges the trial court’s determination that LEP did
not owe assessments for garage spaces and boat slips that LEP controls. In order to better
understand this point, the following statutory framework under the Act applies.
The Act makes a distinction between common elements and “limited” common
elements. The Act defines “limited” common elements as common elements “for the exclusive
use of one or more but fewer than all of the units”:
(4) “Common elements” means all portions of a condominium other than the units; … (17) “Limited common element” means a portion of the common elements allocated by the declaration or by operation of subdivision (2) or (4) of section 448.2-102 for the exclusive use of one or more but fewer than all of the units[.]
§ 448.1-103(4) and (17) (italicized emphasis added). Further, common elements and “limited”
common elements are addressed separately in § 448.2-107 (common elements) and § 448.2-
108 (limited common elements).
Section 448.2-107 provides, in relevant part, that allocations of interests in “common
elements and in the common expenses … may not discriminate in favor of units owned by the
declarant”:
The declaration shall allocate a fraction or percentage of undivided interests in the common elements and in the common expenses of the association, and a portion of the votes in the association, to each unit and state the formulas used to establish those allocations. Such allocations may not discriminate in favor of units owned by the declarant. 18 § 448.2-107.1 (emphasis added).
Section 448.2-108 governs “limited” common elements and does not include a provision
prohibiting discrimination in favor of units owned by the declarant:
1. Except for the limited common elements described in subdivisions (2) and (4) of section 448.2-102, the declaration shall specify to which unit or units each limited common element is allocated. That allocation may not be altered without the consent of the unit owners whose units are affected.
2. Except as the declaration otherwise provides, a limited common element may be reallocated by an amendment to the declaration executed by the unit owners between or among whose units the reallocation is made. The persons executing the amendment shall provide a copy thereof to the association, which shall record such copy. The amendment shall be recorded in the names of the parties and the condominium.
3. No common element not previously allocated as a limited common element may be so allocated except pursuant to provisions in the declaration made in accordance with subdivision (7) of section 448.2-105. The allocations shall be made by amendments to the declaration.
§ 448.2-108. 10
With the aforementioned statutory framework in mind, the trial court made the
following findings relevant to this point. With respect to garage spaces, the court found that
“LEP is the owner of 11 garage spaces not otherwise assigned to condominium units at [the
Project] as set forth in the Declaration.” The court further found that “[n]o Garage Spaces have
been assigned to LEP” and because assessments begin once assigned, the court concluded that
LEP does not owe assessments for garage spaces. In support of its ruling, the court relied on
10 This statue mentions two other sections, but neither prohibits discrimination against unit owners in favor of a developer. Section 448.2-102 addresses “unit boundaries” that include limited common elements in subsections (2) and (4). Section 448.2-105 simply requires a declaration to contain a description of real estate “allocated subsequently as limited common elements[.]” § 448.2-105.1(7).
19 Declaration provisions and the distinction between common elements and “limited” common
elements under the Act. The trial court explained:
Section 4.5 of the Declaration provides that unit owners may request the assignment of one or more Garage Spaces. Unit owners are required to pay LEP a one-time assignment fee for the assignment of the Garage Space which shall be irrevocably assigned and become appurtenant to the unit. An owner to [whom] a Garage Space is assigned shall be assessed for the repairs, maintenance, insurance and real estate taxes attributable [to] said space.
Section 9.2.3 of the Declaration provides that any common expense associated with the maintenance, repair, or replacement of a Limited Common Element shall be assessed against the unit or units to which the Limited Common Element is assigned[.] No Garage Spaces have been assigned to LEP.
While Section 448.2-107.1 makes clear that allocations of interests in the common elements and common expenses may not discriminate in favor of units owned by the declarant[,] no such discrimination language appears in Section 448.2-108 as to the allocation of interest in limited common elements. The Association and unit owners have had notice since 2004 and thereafter that LEP was not being assessed and was not paying assessments on Garage Spaces it retained and which had not been assigned[.] While this treatment is certainly favorable to LEP it is in accordance with the provisions of the Declaration and does not violate [the Act]. LEP’s failure to pay expenses on the garages is not discriminatory.
The court made similar findings with respect to boat slips. The court found:
LEP does not lease nor has it leased any boat dock slip. Accordingly, LEP does not owe any assessments for common expenses for boat dock slips it owns and for which it has reserved the right to receive the one-time Base Rate/Base Rent payment. The Association and Unit Owners have had notice since 2004 and thereafter that LEP was not being assessed and was not paying assessments on boat dock slips it still owned and which had not yet been leased to a Unit Owner. While this treatment is certainly favorable to LEP it is in accordance with the provisions of the Declaration and does not violate [the Act]. LEP’s failure to pay expenses on the boat docks is not discriminatory.
Point 7 contends the trial court misapplied the law in determining “LEP does not owe
any assessments for limited common element garages or boat slips it controlled because such
are limited common elements for which the allocation of expenses may not discriminate in
20 favor of the developer under R.S.Mo. § 448.2-107, in that the Court found such garages and
boat slips were not common elements.”
In support of this point, the Association argues “a limited common element is also by
definition a common element” under § 448.1-103, and therefore “allocations for expenses for
limited common elements are also covered by non-discriminatory allocations set forth in
R.S.Mo. § 448.2-107” for common elements. According to the Association, “[b]ecause LEP’s
method of allocation for expenses for garage spaces [and boat slips] it owns is purposefully set
up in LEP’s favor so that it does not pay assessments” on them, “such is discriminatory in its
favor and is a violation of § 448.2-107.” We disagree.
The Association’s argument lacks merit because it ignores the distinction between
common and limited common elements, and the different treatment of those elements in the
Act. See § 448.1-103(4) and (17); § 448.2-107; § 448.2-108. Thus, “limited” common elements
are different types of common elements that are necessarily treated differently than common
elements and subject to separate requirements. See § 448.1-103(17); § 448.2-108. Further, the
Association’s argument treating limited and common elements the same would render the
“limited” common element distinction meaningless, contrary to the well settled tenets of
statutory interpretation. See T.B. III v. N.B., 478 S.W.3d 504, 510 (Mo. App. 2015) (“[c]ourts
should avoid interpreting statutes in a way that leaves the statutory language meaningless”).
Accordingly, the trial court did not misapply the law in determining that LEP did not owe any
assessments for limited-common-element garage spaces or boat slips it controlled. Point 7 is
Point 12 – Complaints from Subsequent Purchases
Point 12 contends the trial court misapplied the law “in finding subsequent purchasers
of condominium units were precluded from complaining about LEP’s failure to pay
21 condominium assessments and assessments or costs for the upkeep of LEP’s garages and boat
slips” because “such actions of LEP are violations of [the Act] and there is no contractual right
of the developer to change its obligations to pay assessments for the maintenance of common
elements.” We disagree.
This point, as we understand it, is based on a finding that the trial court did not make.
We have carefully reviewed the 36-page judgment and are unable to locate any finding that
“subsequent purchasers of condominium units were precluded from complaining about LEP’s
failure to pay condominium assessments[.]” Therefore, Point 12 is denied. 11
Evidentiary Matter – Point 11
Point 11 challenges the trial court’s reliance on Dabbs’ testimony at trial. Our review
is for abuse of discretion. Beckmann v. Phillips, 704 S.W.3d 404, 412 (Mo. App. 2024). The
following facts are relevant to this point.
During Dabbs’ testimony at trial, the Association’s counsel discovered Dabbs was
reading from an outline prepared by Dabbs and LEP’s counsel. The Association’s counsel
objected, stating that Dabbs’ testimony was not based on his knowledge, and requested that the
testimony be stricken. The trial court ruled that Dabbs should not be testifying from notes, but
the judge refused to strike the testimony for the following reason:
I’m not going to strike his testimony. If you want to go over it on cross, you know, to establish what he does or doesn’t remember, that may affect the weight his testimony is to be given.
Point 11 contends the trial court “erred in relying on the testimony of [Dabbs] because
[his] testimony was tainted in that during trial, [Dabbs] testified from a previously prepared
outline created by his attorney.” We disagree.
11 To the extent that this point is re-arguing LEP’s obligation to pay assessments for garage spaces and boat slips it controls, that issue was fully addressed in Point 7. 22 Here, the Association has failed to show the trial court’s ruling was “clearly against the
logic of the circumstances [and] so arbitrary and unreasonable as to shock one’s sense of justice
and indicate a lack of careful consideration.” Dickerson v. Dickerson, 580 S.W.3d 98, 103
(Mo. App. 2019). Further, in bench-tried cases, the trial court “is given more latitude in the
admission of evidence.” State v. Coaston, 609 S.W.3d 527, 528 (Mo. App. 2020); see Kenney
v. Myers, 674 S.W.3d 139, 146 (Mo. App. 2023) (“it is nearly impossible to obtain a reversal
based upon the improper admission of evidence in a court-tried case”). Finding no abuse of
discretion, Point 11 is denied.
Against the Weight of the Evidence – Points 1, 5, 6 and 9
The Association maintains the following findings are against the weight of the evidence:
“any finding against unconscionability” (Point 1) 12; the omission of “assessments for Unit 1E-
101 from October 1, 2019 to December 31, 2022” in the court’s “calculations for assessments
owed by LEP” (Point 5); that “the Association only began charging 18% interest on unpaid
assessments November 16, 2019” (Point 6); and that “LEP was the owner of boat docks and
other marina facilities” (Point 9).
An against-the-weight-of-the-evidence challenge assumes the “existence of substantial
evidence supporting a proposition necessary to sustain a judgment, but, nevertheless, challenges
the probative value of that evidence to induce belief in that proposition when viewed in the
context of the entirety of the evidence before the trier of fact.” Houston v. Crider, 317 S.W.3d
12 We address Point 1 even though it is multifarious, as it alleges “more than one of the Murphy v. Carron standards” of review. Ebert v. Ebert, 627 S.W.3d 571, 580 (Mo. App. 2021) (emphasis in original). “In our discretion, we may review all, some, or none of a multifarious point relied on.” Atchley v. Missouri Highways & Transp. Comm’n, 697 S.W.3d 90, 94 n.1 (Mo. App. 2024). Point 1 first alleges that the trial court “misapplied the law” by “disregarding the procedural and substantive unconscionability of [LEP’s] development scheme and actions[.]” The point goes on to allege that “any finding against unconscionability is against the weight of the evidence.” In our discretion, we address only the latter allegation of error. See Atchley, 697 S.W.3d at 94. 23 178, 186 (Mo. App. 2010); Sauvain v. Acceptance Indem. Ins. Co., 437 S.W.3d 296, 304 (Mo.
App. 2014); Schuman v. Schuman, 612 S.W.3d 232, 238 (Mo. App. 2020). Consequently, this
challenge requires the completion of four sequential steps:
(1) identify a challenged factual proposition, the existence of which is necessary to sustain the judgment;
(2) identify all of the favorable evidence in the record supporting the existence of that proposition;
(3) identify the evidence in the record contrary to the belief of that proposition, resolving all conflicts in testimony in accordance with the trial court’s credibility determinations, whether explicit or implicit; and,
(4) demonstrate why the favorable evidence, along with the reasonable inferences drawn from that evidence, is so lacking in probative value, when considered in the context of the totality of the evidence, that it fails to induce belief in that proposition.
Houston, 317 S.W.3d at 187. Here, the Association has failed to follow this mandatory
sequence, which renders its arguments analytically useless and provides no support for these
challenges. See Wax v. Vickers, 701 S.W.3d 903, 909 (Mo. App. 2024). Accordingly, the
Association’s contentions that certain findings are against the weight of the evidence lack merit.
Points 1, 5, 6 and 9 are denied.
The judgment of the trial court is affirmed.
JEFFREY W. BATES, J. – OPINION AUTHOR
MARY W. SHEFFIELD, J – CONCUR
JACK A. L. GOODMAN, J. – CONCUR