Ronald D. Ruff v. Bequette Construction

In the Missouri Court of Appeals

Eastern District

DIVISION FOUR

RONALD D. RUFF, ET AL., ) No. ED110182

)

Appellants, ) Appeal from the Circuit Court of

) Franklin County

vs. )

) Honorable Ada Brehe-Krueger

BEQUETTE CONSTRUCTION, ET AL., )

)

Respondents. ) Filed: January 17, 2023

I. Introduction

Plaintiffs/Appellants are a group of twenty-one (21) homeowners (“Homeowners”) in the

Birch Creek Estates Subdivision located in Franklin County, Missouri (“Birch Creek”).

Homeowners appeal from the summary judgment entered by the Franklin County Circuit Court

declaring that Defendant/Respondent Bequette Construction, Inc. (“Bequette”) holds “developer

rights”1 associated with Birch Creek and that Homeowners lack standing. Additional parties are

Defendant/Respondent Birch Creek Homeowner’s Association (the “HOA”) and

Intervenor/Respondent Legends Bank, a Missouri banking corporation (“Legends”).

1

In a recent related action, our Supreme Court recognized that, “[i]n general, ‘developer rights’ are the rights of a

subdivision developer to declare covenants for a subdivision that ‘regulate[] the relationship of the real estate

developer to its subdivision, as well as the purchasers of property.’” State ex rel. AJKJ, Inc. v. Hellmann, 574

S.W.3d 239, 241 n.1 (Mo. banc 2019) (second alteration in original) (quoting Hellman v. Sparks, 500 S.W.3d 252,

259 (Mo. App. S.D. 2015)). Missouri courts have also recognized that “developer’s rights” with respect to a platted

subdivision “are personal rights that do not run with the land.” Scott v. Ranch Roy-L, Inc., 182 S.W.3d 627, 633

(Mo. App. E.D. 2005); Woodglen Estates Ass’n v. Dulaney, 359 S.W.3d 508, 513 (Mo. App. W.D. 2012).

Homeowners bring four points on appeal relating to the entry of summary judgment in

favor of Bequette and Legends. We only address Homeowners’ first point regarding its standing,

as it is dispositive of this appeal. Bequette cross appeals the circuit court’s denial of its post-

judgment motion for an award of attorneys’ fees.

Because Homeowners are not parties to, and have not alleged they are third-party

beneficiaries of, the deeds at the center of this controversy, they do not have standing to seek a

declaratory judgment with respect to the deeds because they do not have a “legally protectable

interest” therein, as required by the cases interpreting the issue of standing under Missouri’s

Declaratory Judgment Act (§§ 527.010-.1302). Accordingly, we affirm the circuit court’s

granting of summary judgment in favor of Legends and Bequette and the granting of Legends’s

third-party petition for declaratory judgment, and affirm the denial of Homeowners’ amended

petition for declaratory judgment in this matter. We also affirm the circuit court’s denial of

Bequette’s request for attorneys’ fees in its cross appeal because the plain language of the

contract provision does not support such an award. Finally, we deny Bequette’s request for

attorneys’ fees on appeal.

II. Factual and Procedural History

General Background

Each property in Birch Creek is subject to the Declaration of Covenants and Restrictions

(the “Covenants”), which was recorded on December 19, 2000. The Covenants identify AJKJ,

Inc. (“AJKJ”) and New Sites, LLC (“New Sites”) as the “Developer” and acknowledge the

creation of the “Birch Creek Subdivision Association.” Legends was the lienholder for the

project. Under Article IX, Section 5 of the Covenants, the Developer has the unilateral authority

to amend, modify, or terminate the Covenants so long as the Developer (or the Developer’s

2

All statutory references are to RSMo (2016), unless otherwise specified.

2

successors and assigns) owns any lot in Birch Creek. After the Developer no longer owns any

lot, the Covenants may only be amended by a vote of two-thirds (2/3) of the owners of the

platted lots.

On August 25, 2014, AJKJ executed a General Warranty Deed whereby AJKJ conveyed

its “right, title, and interest” in and to all of its property in Birch Creek to New Sites (the “New

Sites Deed”), without mentioning whether any of AJKJ’s “developer rights” were conveyed or

transferred.

On June 25, 2015, New Sites executed a Special Warranty Deed whereby it conveyed to

Legends “all of its right, title, and interest as developer of the Birch Creek Estates subdivision,

including but not limited to those arising pursuant to the [Covenants]…” (the “Legends Bank

Deed”).

On June 30, 2015, Legends executed a Special Warranty Deed whereby it conveyed to

Bequette “all of its right, title, and interest…, as the developer of the Birch Creek Estates

subdivision…, including but not limited to those arising pursuant to the [Covenants]…” (the

“Bequette Deed”). On the same day, AJKJ executed a written instrument titled Conveyance of

Developer Rights, which contained conveyance language similar to that of the Bequette Deed

(the “Developer Rights Conveyance”). All deeds and the Developer Rights Conveyance were

recorded with the Franklin County Recorder of Deeds.

In 2015, Bequette announced that it intended to form the HOA, which was a new

homeowner’s association for Birch Creek, and that Bequette’s owner, Anthony J. Bequette,

would serve as the initial trustee thereof. Bequette also announced plans to amend the Covenants

to reduce the minimum square footage for new homes built in Birch Creek, among other

changes.

3

The Homeowners’ 2016 Lawsuit Against Bequette

In April 2016, Homeowners filed a petition pursuant to Missouri’s Declaratory Judgment

Act seeking a declaration that, inter alia, Bequette could not unilaterally amend the Covenants

because it did not hold “developer rights” associated with Birch Creek in that the New Sites

Deed did not contain an express conveyance of developer rights from AJKJ to New Sites (the

“2016 Lawsuit”).3 Homeowners named Bequette and the HOA as defendants. In their answer

and affirmative defenses, Bequette and the HOA alleged that Bequette possessed developer

rights associated with Birch Creek, and also raised the issue of Homeowners’ standing to seek a

declaratory judgment with respect to the conveyance of developer rights, among other defenses.

In February 2018, the trial court held a bifurcated bench trial in the 2016 Lawsuit. The

sole issue presented in the initial portion of the bifurcated trial was whether Bequette held

developer rights associated with Birch Creek. On April 24, 2018, the circuit court entered an

interlocutory judgment (the “Interlocutory Judgment”) finding that Homeowners had standing to

pursue a declaratory judgment action with respect to whether Bequette had developer rights and

that developer rights were not transferred via the New Sites Deed. The Interlocutory Judgment

did not address the other claims and prayers for relief raised in Homeowners’ amended petition

in the 2016 Lawsuit, which included several claims and prayers for relief related to the

Covenants.4

3

Although not conclusively established, the record indicates that there are approximately 124 platted lots in Birch

Creek. Therefore, it appears that not all Birch Creek property owners are parties to the 2016 Action.

4

For example, ¶ 64 of Homeowners’ amended petition alleges that there is a dispute between the parties relating to:

(a) whether the HOA has authority to govern Birch Creek, (b) whether amendments Bequette made to the Covenants

in 2015, 2016, and 2017 are valid; (c) whether Bequette’s proposed new construction plans violate the Covenants;

and (d) whether two new homes already constructed by Bequette violate the Covenants. In addition, ¶ 65 requests

that the circuit court enter a declaratory judgment and an injunction with respect to the disputes alleged in ¶ 64.

4

AJKJ’s 2018 Reformation Lawsuit

On June 1, 2018, AJKJ filed a single-count petition with the Franklin County Circuit

Court seeking to reform the New Sites Deed on the grounds of mutual mistake (the “Reformation

Lawsuit”). AJKJ named New Sites, Legends, and Bequette as defendants, but did not name

Homeowners. AJKJ alleged the parties “inadvertently failed to include the words ‘developer

rights’” in the New Sites Deed.

On July 19, 2018, the circuit court entered its judgment in the Reformation Lawsuit,

ordering the New Sites Deed “reformed and corrected to include the words ‘including developer

rights’ in the description of the property and rights to be transferred from AJKJ, Inc., to New

Sites, LLC” (the “Reformation Judgment”), which was effective “as of the date of the original

conveyance of the New Sites Deed (i.e., August 25, 2014).”5

On August 14, 2018, Homeowners moved to intervene in the Reformation Lawsuit and

set aside the Reformation Judgment (the “Motion to Intervene”). On September 13, 2018, the

circuit court granted the Motion to Intervene and vacated the Reformation Judgment.

On October 8, 2018, AJKJ filed a petition for writ of prohibition with this Court, which

was denied. AJKJ then filed a similar petition with the Supreme Court of Missouri, which was

granted, finding that the circuit court did not have jurisdiction at the time it granted the Motion to

Intervene under Rule 75.01 because more than thirty days had passed since the Reformation

Judgment was entered and the Motion to Intervene was not an authorized post-trial motion that

extended the circuit court’s jurisdiction under Rule 85.01(a). See generally State ex rel. AJKJ,

Inc. v. Hellmann, 574 S.W.3d 239 (Mo. banc 2019). Thus, the Reformation Judgment was

determined to be a final judgment in the matter.

5

All further references to the New Sites Deed are as it was reformed by the Reformation Judgment.

5

Legends Intervenes in the 2016 Lawsuit and Other Proceedings

On January 6, 2021, Legends moved to intervene in the still-pending 2016 Lawsuit and

concurrently filed its third-party petition for declaratory judgment, which sought a declaration

that the Legends Deed and the Bequette Deed, in conjunction with the reformed New Sites Deed,

conveyed all developer rights associated with Birch Creek to Bequette and that Bequette

possesses all developer rights, free of any claim by Homeowners. On January 15, 2021, Legends

filed a motion requesting that the Interlocutory Judgment be set aside, arguing, inter alia, that it

was contrary to the Reformation Judgment. On February 5, 2021, the circuit court granted the

Motion to Intervene.

On January 28, 2021, Bequette filed its third motion to reconsider the Interlocutory

Judgment, and on March 10, 2021, the circuit court set aside the Interlocutory Judgment by

written judgment and order.

On May 24, 2021, Legends filed a motion for summary judgment in the 2016 Lawsuit,

based on the Reformation Judgment and other evidence, arguing it was clear AJKJ, New Sites,

Legends, and Bequette all intended for “the developer rights to pass from New Sites to Legends,

and then to Bequette.” Legends also asserted that Homeowners lacked standing to challenge the

transfer of developer rights. On June 7, 2021, Bequette likewise moved for summary judgment

by incorporating Legends’s motion. Homeowners opposed the two motions for summary

judgment, arguing, inter alia, that at the time of the New Sites Deed, no party had the required

intent to transfer developer rights under applicable Missouri law. Homeowners also argued that

“under the rules of collateral estoppel, the Reformation Judgment cannot be enforced against

[them] because they were not parties to the Reformation Lawsuit.” Thus, Homeowners argued

that the Reformation Judgment was void as to them and they had standing pursuant to § 527.020.

6

On August 16, 2021, the circuit court granted summary judgment in favor of Legends and

Bequette, ruling that Bequette holds all developer rights associated with Birch Creek based on

the Reformation Judgment and that Homeowners lacked standing to challenge the transfer of

developer rights via the deeds (the “2021 Judgment”). In the 2021 Judgment, the circuit court

also denied Homeowners’ amended petition for declaratory judgment and granted Legends’s

third-party petition for declaratory judgment in the 2016 Lawsuit.6 Although Homeowners’

amended petition originally asserted claims and sought relief with respect to the Covenants,

Homeowners had previously dismissed all claims and prayers for relief not addressed in the

Interlocutory Judgment, which left only claims related to the three deeds. Homeowners appeal

from the 2021 Judgment.

Bequette’s and the HOA’s Motion to Amend the 2021 Judgment to Award Attorneys’ Fees

The 2021 Judgment taxed court costs against Homeowners, but made no award of

attorneys’ fees to any party. Bequette and the HOA filed a motion to amend or modify the 2021

Judgment pursuant to Rule 75.01, requesting that the court award Bequette $201,972.19 in

attorneys’ fees it incurred for the 2016 Lawsuit and other “collateral matters” brought by

Homeowners (the “Motion to Amend”). Bequette and the HOA relied on three separate grounds

for an award of attorneys’ fees: (1) the express terms of the Covenants; (2) the Declaratory

Judgment Act; and (3) to balance the equities. After extensive briefing and oral argument, the

circuit court denied the Motion to Amend, rendering the 2021 Judgment final for purposes of

appeal. Bequette cross appeals the denial of the Motion to Amend.7

6

We note that although the 2021 Judgment also purported to grant Bequette’s petition for declaratory judgment, the

record does not reflect any such petition being filed by Bequette in the 2016 Lawsuit.

7

Bequette also filed a motion for its attorneys’ fees on appeal, which is taken with the case and addressed below.

7

III. Standard of Review

“Our review of the circuit court’s grant of a motion for summary judgment is essentially

de novo, and we will use the same criteria that apply to the circuit court’s review of the motion.”

Borges v. Missouri Public Entity Risk Mgmt. Fund, 358 S.W.3d 177, 180 (Mo. App. W.D. 2012)

(citing ITT Com. Fin. Corp. v. Mid-Am. Marine Supply Corp., 854 S.W.2d 371, 376 (Mo. banc

1993)). “The propriety of summary judgment is purely an issue of law.” ITT Comm. Fin., 854

S.W.3d at 376.

In this case, the circuit court granted summary judgment on the basis of Homeowners’

lack of standing. “Standing is a question of law that we review de novo.” Borges, 358 S.W.3d at

180 (citing State ex rel. St. Louis Retail Group v. Kraiberg, 343 S.W.3d 712, 715 (Mo. App. E.D.

2011)). “We consider the petition along with any other non-contested facts to determine whether

the petition should be dismissed due to [the petitioner’s] lack of standing.” Id. (citing Kraiberg,

343 S.W.3d at 715).

IV. Discussion

Homeowners bring four points on appeal. However, Homeowners’ first point, which

addresses the threshold issue of their own standing, is dispositive of this appeal. Therefore, we

only address that point and need not address Homeowners’ remaining three points. 8 We also

address Bequette’s cross-appeal regarding its request for an award of attorneys’ fees.

8

In their second point, Homeowners argue that the circuit court erred in relying on the Reformation Judgment to

vacate the Interlocutory Judgment because the Reformation Judgment was an improper collateral attack on the

Interlocutory Judgment. In their third point, Homeowners argue that the circuit court misapplied the summary

judgment standard by disregarding a disputed material fact regarding the parties’ intent to transfer developer rights

and impermissibly reaching legal issues not presented in the summary judgment briefing. In their fourth point,

Homeowners argue that the circuit court erred in granting Legends’ motion to intervene because Legends submitted

no supporting evidence and did not meet the requirements for intervention.

8

A.

Homeowners’ appeal of the 2021 Judgment – Point I (Homeowners’ standing)

Summary

In their first point on appeal, Homeowners argue that the circuit court erred in

determining they lacked standing to bring this declaratory judgment action, asserting two

alternative theories. First, Homeowners claim they have standing under § 527.020 to seek an

interpretation of the Covenants because they are parties to the Covenants. Homeowners

alternatively claim they have standing under a so-called “non-statutory” theory because they

have a “legally protectable interest at stake” in the Covenants, which means a pecuniary or

personal interest in their interpretation under applicable case law. Homeowners claim they have

such an interest because the Covenants govern permissible construction in Birch Creek, and

Bequette’s new construction plans will allegedly impact Homeowners’ property values.

Bequette argues that Homeowners lack standing because the issue of whether developer

rights were transferred can only be determined by interpreting the three deeds in the chain of title

(i.e., the New Sites Deed, the Legends Bank Deed, and the Bequette Deed), which actually

contain the conveyance of developer rights, and not by interpreting the Covenants. Therefore,

Bequette argues that because Homeowners are neither parties to nor third-party beneficiaries of

these deeds, they lack standing under § 527.020 and applicable case law to seek a declaratory

judgment. With respect to Homeowners’ second theory, Bequette argues that their claim is “far

too attenuated,” as it is hypothetical and speculative, and thus, insufficient to confer standing.

We agree that Homeowners do not have standing under § 527.020 to challenge the

conveyance of developer rights contained in the New Sites Deed because they are not parties to,

and have not alleged they are third-party beneficiaries of, any of the deeds, as required under

9

Missouri law. The issue of whether developer rights were transferred to Bequette involves an

interpretation of the three deeds, and not the Covenants.9 Further, Homeowners’ “non-statutory”

theory of standing misses the mark, as they rely on case law interpreting standing under the

Declaratory Judgment Act, and do not have the requisite “legally protectable interest” to confer

standing. Accordingly, the circuit court correctly granted summary judgment in favor of

Legends and Bequette with respect to their petitions for declaratory judgment, and likewise

correctly denied Homeowners’ petition for declaratory judgment.

Applicable Missouri Law

As noted, Homeowners commenced the 2016 Lawsuit pursuant to Missouri’s Declaratory

Judgment Act. In particular, § 527.020 allows any person “interested” under a deed or written

contract, or “whose rights, status or other legal relations are affected by a contract,” to file an

action asking the court to determine any question of construction or validity arising under a deed

or written contract and obtain a declaration of rights, status, or other legal relations thereunder.

See Mager v. City of St. Louis, 699 S.W.2d 68, 70 (Mo. App. E.D. 1985); see also St. Paul Fire

& Marine Ins. Co. v. Med. Protective Co. of Fort Wayne, Ind., 675 S.W.2d 665, 667 (Mo. App.

E.D. 1994) (recognizing that § 527.020 “authorizes any party with a present interest in a written

contract to have determined any question of construction or validity of the contract” (emphasis

added)). However, “[a] declaratory judgment is not a general panacea for all real and imaginary

legal ills.” Mo. Soybean Ass’n v. Mo. Clean Water Com’n, 102 S.W.3d 10, 25 (Mo. banc 2003).

Declaratory judgment “is not available to adjudicate hypothetical or speculative situations that

may never come to pass.” Id.

9

Homeowners have argued that developer rights were not transferred from AJKJ to New Sites via the New Sites

Deed because it does not contain explicit language to that effect, which they argue is required under Missouri law.

Homeowners further argue that because developer rights were not transferred from AJKJ to New Sites via the New

Sites Deed, the two subsequent deeds in the chain of title also failed to transfer any developer rights, even though

the subsequent deeds contain language explicitly transferring developer rights.

10

Under § 527.020, a circuit court may grant a declaratory judgment if presented with:

(1) a justiciable controversy that presents a real, substantial, presently-existing

controversy admitting of specific relief, as distinguished from an advisory decree

upon a purely hypothetical situation; (2) a plaintiff with a legally protectable

interest at stake, “consisting of a pecuniary or personal interest directly at issue

and subject to immediate or prospective consequential relief”; (3) a controversy

ripe for judicial determination; and (4) an inadequate remedy at law.

Lane v. Lensmeyer, 158 S.W.3d 218, 222 (Mo. banc 2005) (emphasis added) (quoting Mo.

Soybean Ass’n, 102 S.W.3d at 25).

The dispositive issue in this case is whether Homeowners have standing to seek a

declaration regarding the conveyance of developer rights in the New Sites Deed. As the parties

seeking a declaratory judgment in this case, Homeowners “bore the burden of establishing that

they had standing.” Courtright v. O’Reilly Automotive, 604 S.W.3d 694, 700 (Mo. App. W.D.

2020) (quoting Corozzo v. Wal-Mart Stores, Inc., 531 S.W.3d 566, 572 (Mo. App. W.D. 2017)).

It is well established that “[s]tanding is a threshold requirement,” and “[w]ithout it, a

court has no power to grant the relief requested.” Querry v. State Highway and Transp.

Comm’n, 60 S.W.3d 630, 634 (Mo. App. W.D. 2001) (citing In re Estate of Scott, 913 S.W.2d

104, 105 (Mo. App. E.D. 1995)); accord Kraiberg, 343 S.W.3d at 715. Furthermore, “[l]ack of

standing cannot be waived.” Querry, 60 S.W.3d at 634; Citizens Ins. Co. of America v.

Leiendecker, 962 S.W.2d 446, 449 (Mo. App. E.D. 1998)). “Standing is a concept utilized to

determine if a party is sufficiently affected so as to insure [sic] that a justiciable controversy is

presented to the court….” American Econ. Ins. Co. v. Ledbetter, 903 S.W.2d 272, 274 (Mo.

App. S.D. 1995) (citing Black’s Law Dictionary 1405 (6th ed. 1990)); Citizens Ins. Co. of

America, 962 S.W.2d at 449.

Standing for declaratory judgment actions requires a “legally protectable interest.”

American Econ., 903 S.W.2d at 274; accord Battlefield Fire Protection Dist. v. City of

11

Springfield, 941 S.W.2d 491, 492 (Mo. banc 1997). This means a “pecuniary or personal interest

directly in issue or jeopardy which is subject to some consequential relief, either immediate or

prospective.” American Econ., 903 S.W.2d at 274 (emphasis added) (quoting City of Jackson v.

Heritage Savings & Loan Ass’n, 639 S.W.2d 142, 144 (Mo. App. E.D. 1982)); see also Ste.

Genevieve School Dist. R-II v. Board of Aldermen, 66 S.W.3d 6, 10 (Mo. banc 2002)

(recognizing that “[a] legally protectable interest exists if the plaintiff is directly and adversely

affected by the action in question” (emphasis added)). Other courts have similarly recognized

that “[a] person must have a legal interest susceptible of protection at stake in order to have

standing to bring a declaratory judgment action.” Mager, 699 S.W.2d at 70; see also General

Motors Acceptance Corp. v. Windsor Group, Inc., 2 S.W.3d 836, 839 (Mo. App. E.D. 1999)

(recognizing that a “legally protectable interest means a pecuniary or personal interest directly in

issue or jeopardy which is subject to some consequential relief, either immediate or

prospective”). “Whether a litigant has an interest which confers standing must be considered on

a case by case basis.” Mager, 699 S.W.2d at 70.

“In contract actions, a party has a legally protectable interest at stake if it has a right to

enforce the contract as a party thereto or as a third party beneficiary.” General Motors

Acceptance Corp., 2 S.W.3d at 839 (citing American Econ., 903 S.W.2d 274) (emphasis added);

see also Hardware Center, Inc. v. Parkedge Corp., 618 S.W.2d 689, 692 (Mo. App. E.D. 1981)

(similarly recognizing that “[t]he plaintiff must present a set of facts from which he has legal

rights against the defendant he names[,]” and further, “[h]e must be entitled to some

consequential relief immediate or prospective”).

This Court in Hardware Center also observed that “the [Declaratory Judgment Act]

appears to distinguish between a person interested under a contract and a person whose rights,

12

status or legal relations are affected by the contract.” Id. at 692 n.3 (emphasis added).

“Arguably, one could be interested and not have his rights, status or legal relations affected.” Id.

However, we recognized that “judicial interpretation does not reflect this distinction,” and thus,

we only focused on whether the plaintiff had a “legally protect[a]ble interest” in the case. Id.

(citing State ex rel. Chilcutt v. Thatch, 221 S.W.2d 172, 176 (Mo. 1949), and Absher v. Cooper,

495 S.W.2d 696, 698 (Mo. App. 1975)).

In St. Paul Fire & Marine Ins. Co., this Court held that a non-party to an insurance

contract lacked standing to seek a declaration with respect thereto. 675 S.W.2d at 666. In

reaching that conclusion, we specifically noted that “[n]o authority has been cited to this court

and we find none which would authorize or grant standing to seek a declaration of rights under a

contract to one who is not a party and who has no right to enforce the contract.” Id. at 667. We

further noted, “the provisions of our Declaratory Judgment Act do not extend standing to a party

nor enlarge the jurisdiction of the court over subject matter or parties.” Id. (citing Hardware

Center, Inc., 618 S.W.2d at 694-95). Finally, we noted that the Declaratory Judgment Act

“merely opens the doors of court to certain potential defendants or plaintiffs at a stage prior to

that justifying an action for other traditional relief.” Id. (quoting Hardware Center, Inc., 618

S.W.2d at 694); see also Farmers Ins. Co. v. Miller, 926 S.W.2d 104, 107 (Mo. App. E.D. 1996)

(“Where respondents do not have a right to enforce the contract themselves, and where they are

not third party beneficiaries to the contract, no standing exists under the Declaratory Judgment

Act to bring an action to determine the rights of the parties under the contract.”).

In Scott, we held that landowners in a platted subdivision lacked standing to challenge, on

the basis of the statute of frauds, an alleged oral assignment of individual developer rights under

the subdivision’s declaration because the landowners were not parties to the oral assignment

13

agreement. 182 S.W.3d at 633-34. We specifically recognized that, “[o]nly a party to a contract

or a transferee or successor of a party to the contract can assert that the contract is unenforceable

under the Statute of Frauds.” Id. at 634 (quoting Restatement (Second) of Contracts § 144

(1981); Restatement (Second) of Contracts § 324 cmt. b (1981)).

Similar results were reached with respect to insurance contracts in American Econ. Ins.

Co., 903 S.W.2d at 276-77, and Farmers Ins. Co., 926 S.W.2d at 107. Likewise, in Hardware

Center, this Court held that a sublessee that was neither a creditor nor donee beneficiary under a

lease agreement lacked standing to seek a declaratory judgment with respect to a provision of the

lease. 618 S.W.2d at 694-95.

Although we are not aware of any Missouri cases addressing whether a non-party to a

deed had a sufficient “interest” therein to confer standing, the prevailing rule in other states is

that deeds are interpreted according to the general rules of contract law. See, e.g., Wiegmann v.

Baier, 203 N.W.2d 204, 208-09 (Iowa 1972); Cassidy v. Pavlonnis, 205 P.3d 58, 61 (Or. Ct.

App. 2009); Keith v. Mountain Resorts Dev., L.L.C., 337 P.3d 213, 220 (Utah 2014); Faith

United Methodist Church and Cemetery of Terra Alta v. Morgan, 745 S.E.2d 461, 481 (W. Va.

2013). In addition, although not binding, we find City of Pinellas Park v. Matthews, 355 So.2d

475 (Fla. App. 2nd Dist. 1978), particularly instructive here. In Matthews, the District Court of

Appeal of Florida held that non-parties to a deed that conveyed certain real property lacked

standing to bring a declaratory judgment action seeking to have it declared void. Florida’s

declaratory judgment statute at the time, Fla. Stat. § 86.021 (1975), was substantially similar to

Missouri’s current statute. See id. at 476. In interpreting the Florida statute, Matthews

specifically recognized: “As we read it, before a party can bring suit under this statute he must

claim some rights under the deed which he seeks to have construed.” Id. Matthews further noted

14

that even though the deed in question may “affect” certain property in which the non-parties

have an interest, they lacked standing because they “are claiming no rights under that deed.” Id.

Therefore, we apply the same requirements for standing in a declaratory judgment action

involving a contract, to this case, which involves a deed.

Analysis

There is no dispute that Homeowners are not parties to the three deeds in the chain of title

transferring developer rights, beginning with AKJK and ending with Bequette, including the key

deed at issue—the New Sites Deed. Homeowners have also not alleged that they are third-party

beneficiaries of any of the deeds. Likewise, Homeowners are not parties to the conveyance of

developer rights contained in the deeds, and have not alleged they are third-party beneficiaries of

the conveyances. Therefore, under the weight of the foregoing precedent, Homeowners clearly

lack standing under § 527.020 to challenge the transfer of developer rights to Bequette, as they

do not have the requisite “legally protectable interest” in the deeds or the conveyances because

they are not parties to, and have not alleged they are third-party beneficiaries of, the deeds or

conveyances, and thus, have no legal right to enforce them. General Motors Acceptance Corp.,

2 S.W.3d at 839; St. Paul Fire & Marine Ins. Co., 675 S.W.2d at 667; Scott, 182 S.W.3d at 633-

34; American Econ., 903 S.W.2d 276-77; Farmers Ins. Co., 926 S.W.2d at 107; Hardware

Center, 618 S.W.2d at 694-95; see also City of Pinellas Park, 355 So.2d at 476.

In addition, although § 527.020 “appears to distinguish between a person interested under

a contract and a person whose rights, status or legal relations are affected by the contract,”

Missouri cases do not reflect this distinction. Hardware Center, 618 S.W.2d at 692 n.3

(emphasis added). Therefore, we do not separately analyze whether Homeowners’ “rights, status

or other legal relations” are affected by the deeds and conveyances. Rather, we follow the well-

15

established precedent applicable to declaratory judgment actions involving contracts, which only

permits standing for parties to, or third-party beneficiaries of, the subject contract. The fact that

Homeowners are parties to the Covenants is not relevant in determining whether they have

standing to request an interpretation of the deeds and the conveyances contained therein. The

only relevant question is whether Homeowners were parties to, or third-party beneficiaries of,

the deeds or conveyances with the legal right to enforce them.

We now turn to Homeowners’ “non-statutory” theory of standing, which argues they

have a “legally protectable interest at stake” in the Covenants. This argument misses the mark in

two respects. First, the issue of whether developer rights were transferred to Bequette involves

an interpretation of the conveyances contained in the three deeds, and not the Covenants.

Homeowners have dismissed all claims in the 2016 Lawsuit seeking an interpretation of the

Covenants, leaving only their request for a declaration that developer rights were not transferred

via the New Sites Deed.

Second, Homeowners’ “non-statutory” theory actually restates the specific requirements

for standing under § 527.020, as the two primary cases relied on in their brief (i.e., Battlefield

Fire Protection Dist. v. City of Springfield, 941 S.W.2d at 492, and Lane v. Lensmeyer, 158

S.W.3d at 222), interpret standing under the Declaratory Judgment Act. Regardless of the

nomenclature used to characterize their theory of standing, Homeowners do not have a pecuniary

or personal interest in the deeds that is directly in issue or jeopardy, as required to confer

standing. American Econ., 903 S.W.2d at 274; Ste. Genevieve School Dist. R-II, 66 S.W.3d at

10; Battlefield Fire Protection Dist., 941 S.W.2d at 492; Mager, 699 S.W.2d at 70. This is

because, although not explicitly stated in the foregoing cases, they implicitly recognize that one

16

who is neither a party to nor a third-party beneficiary of a contract does not have the legal right

to enforce it.

Finally, in further support of our holding, Homeowners’ counsel acknowledged at oral

argument that had the original “Developer” of Birch Creek (i.e., AJKJ and New Sites jointly)

retained its developer rights and made these same amendments to the Covenants, Homeowners

would have had no legal basis to challenge the amendments. The recorded Covenants have

always permitted the Developer to convey its rights and further permitted Developer and its

successors or assigns to unilaterally amend the Covenants so long as Developer still owns a lot in

Birch Creek. If Homeowners could not challenge amendments to the Covenants by the original

Developer, we see no reason why they could challenge amendments by Bequette (as the

successor Developer), which undercuts any argument that Homeowners have a “legally

protectable interest at stake” in the deeds. The fact that Homeowners were parties to the

Covenants does not establish their standing to seek a declaration as to whether developer rights

were conveyed via a deed to which they were neither parties nor third-party beneficiaries.

Accordingly, Homeowners’ inability to directly enforce the conveyance of developer rights

contained in the New Sites Deed precludes them from seeking any declaration with respect

thereto under § 527.020 and the cases interpreting it.

In summary, Homeowners have failed to establish any of the requirements for standing

with respect to their remaining claim in the 2016 Lawsuit.10 Therefore, the circuit court correctly

granted Legends’s and Bequette’s motions for summary judgment and Legends’s third-party

10

We emphasize that our holding and related discussion herein only addresses Homeowners’ standing with respect

to their remaining claim requesting a declaration that developer rights were not transferred via the deeds to which

they were not parties, and thus, our holding and related discussion should not be construed to comment in any way

on Homeowners’ standing with respect to any other cause of action they may have against these or other parties to

this matter, nor should they be construed to comment in any way on the merits of any such causes of action.

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petition for declaratory judgment, and correctly denied Homeowners’ amended petition for

declaratory judgment in the 2016 Lawsuit.

Point I is denied. Because Point I is dispositive of Homeowners’ appeal, we need not

address Homeowners’ three remaining points.

B.

Bequette’s Cross-Appeal for Attorneys’ Fees

Summary

Bequette cross appealed, arguing that the circuit court erred in denying its Motion to

Amend the judgment to award their attorneys’ fees because the fees are permitted under an

indemnification provision in the Covenants. We find that the indemnification provision relied

upon by Bequette cannot be construed as proposed, and therefore, the circuit court correctly

denied the Motion to Amend.

Standard of Review and Applicable Law

“In Missouri, litigants generally bear the expense of their own attorneys’ fees as provided

in the American Rule.” Lee v. Invs. Title Co., 241 S.W.3d 366, 367 (Mo. App. E.D. 2007).

However, attorneys’ fees may be recovered “if the circumstances arise from one of the following

categories: (1) recovery pursuant to a contract or provided by statute; (2) recovery as damages in

collateral litigation; or (3) reimbursement to balance the benefits.” Id.

Although “we generally review the denial of a request for attorneys’ fees for an abuse of

discretion, if a contract provides for the payment of attorneys fees and expenses incurred in

enforcing rights under the contract, the trial court must award those fees.” Brown v. Brown-

Thill, 437 S.W.3d 344, 348 (Mo. App. W.D. 2014) (quoting Hoag v. McBride & Son Inv. Co.,

18

967 S.W.2d 157, 175 (Mo. App. E.D. 1998) (internal quotation omitted)); accord Lee, 241

S.W.3d at 368.

“We review issues of contract interpretation de novo.” Brown, 437 S.W.3d at 348.

Furthermore, although trial courts are granted broad discretion to award attorneys’ fees in most

circumstances, “if a claim for attorney’s fees is made under a provision of the contract, the trial

court must comply with the terms set forth therein.” Id. (quoting J&M Secs., LLC v. Brown, 388

S.W.3d 566, 570 (Mo. App. E.D. 2012)). “Thus, a trial court[] has no discretion whether to

award attorneys’ fees where they are recoverable by contract, and its failure to do so is

erroneous.” Id. at 348-49 (quoting Midland Prop. Partners, LLC v. Watkins, 416 S.W.3d 805,

817 (Mo. App. W.D. 2013)); accord Lee, 241 S.W.3d at 368. “An essential principle of contract

interpretation is to ascertain the intent of the parties. The terms of a contract are read as a whole

to determine the intention of the parties and are given their plain, ordinary, and usual meaning.”

Brown, 437 S.W.3d at 349 (quoting State ex rel. Vincent v. Schneider, 194 S.W.3d 853, 859 (Mo.

banc 2006)).

“If the contract terms are unequivocal, plain, and clear, the court is bound to enforce the

contract as written.” Malan Realty Invs., Inc. v. Harris, 953 S.W.2d 624, 626-27 (Mo. banc

1997). Furthermore, “[i]t is a well-established principle of contract construction that, when a

contract is clear, the court is bound to enforce the terms as written . . . in the absence of a

showing that the contract was procured by fraud, duress, or undue influence.” Id. at 627.

“Attorneys’ fees may be awarded on appeal if they are based on a written agreement that

is the subject of the issues that are presented in the appeal.” Brown, 437 S.W.3d at 350 (quoting

Mead v. Moloney Secs. Co., 274 S.W.3d 537, 545 (Mo. App. E.D. 2008)).

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Analysis11

Bequette’s request for attorneys’ fees is based on Article IX, Section 15 of the Covenants,

titled “Indemnification”:

The Association shall indemnify the Developer and its agents, officers and

employees and any officer and director of the Association and member of the

Architectural Control Committee against any and all expenses, including attorney

fees, reasonably incurred by or imposed in connection with any action, suit, or

other proceeding (including settlement of any suit or proceeding if approved by

the then Board of Directors) to which he or she may be a party by reason of being

or having been an officer or director or a member of the Architectural Committee.

The officers and directors shall not be liable for any mistake of judgment,

negligent or otherwise, except for their own individual willful misfeasance,

malfeasance, misconduct or bad faith. The officers and directors shall have no

personal liability with respect to any contract or other commitment made by them,

in good faith, on behalf of the Association (except to the extent that such officers

or directors may also be members of the Association), and the Association shall

indemnify and shall forever hold each such person free and harmless from and

against any and all liability to others on account of such contract or commitment.

Any right to indemnification provided for herein shall not be exclusive of any

other rights to which such person may be entitled. The Association shall, as a

common expense, maintain adequate general liability and officers and directors

liability insurance to fund this obligation if such insurance is reasonably

available.

(Emphasis added) (the “Indemnification Provision”).

Bequette argues that it is the “Developer,” as defined in the Covenants, and each

Homeowner is a “member” of the HOA. Bequette further argues that “it was subjected to an

‘action, suit or other proceeding’ on account of its status as developer,” and as such,

Homeowners are contractually obligated to indemnify and reimburse it for its costs and

expenses, including attorneys’ fees, arising from the 2016 Lawsuit. Therefore, Bequette argues

11

We note that Homeowners argue Bequette’s cross-appeal should be dismissed pursuant to Rule 84.04(c) for

failure to include any facts relating to its request for attorneys’ fees in its statement of facts, notwithstanding that

Bequette did include relevant facts in the argument section of its brief, citing Kent v. Charlie Chicken, II, Inc., 972

S.W.2d 513, 515 (Mo. App. E.D. 1998), among other authorities. While we agree that Bequette’s brief violated

Rule 84.04(c) in that respect, “[o]ur preference is to decide an appeal on the merits where disposition is not

hampered by rule violations and the argument is readily understandable.” Bennett v. Taylor, 615 S.W.3d 96, 98

(Mo. App. E.D. 2020). Therefore, because the relevant facts relating to Bequette’s cross-appeal were generally not

disputed and were included in the argument portion of its brief, we decline to dismiss Bequette’s cross-appeal on

this basis.

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it is entitled to its attorneys’ fees due to its status as a director of the HOA or member of the

Birch Creek Architectural Control Committee because the 2016 Lawsuit “challenged its status as

the developer of Birch Creek and, by direct extension, its control of the Association’s Board of

Directors and Architectural Control Committee,” and the attorneys’ fees it incurred were “on

account of being party to an action, suit or other proceeding related to its status as director of the

Architectural Control Committee.”

In response, Homeowners argue that Bequette’s request for attorneys’ fees should be

denied because it does not hold “developer rights” associated with Birch Creek, and thus, it is not

the “Developer” thereof. However, given our disposition of Homeowners’ first point on appeal,

this argument is without merit. In the alternative, Homeowners argue that even if Bequette is

determined to be the Developer, it is not entitled to an award of attorneys’ fees pursuant to the

Indemnification Provision for several reasons. Homeowners’ chief argument is that the

Indemnification Provision, by its own plain language, is not a “loser-pays” indemnification

provision which requires the losing party in a suit between parties to the Covenants to pay the

winner’s attorneys’ fees; rather, it expressly provides that the Association (and not the individual

parties to the lawsuit) shall indemnify the Developer and officers and directors of the HOA for

expenses incurred as a result of suits brought against them “to which [they] may be a party by

reason of being or having been an officer or director.” Homeowners also point to the final

sentence of the Indemnification Provision regarding insurance, and argue that the

Indemnification Provision is simply an “officer and director indemnification provision,” which is

funded by insurance (if available), and not the Association as a whole. Finally, Homeowners

argue that Bequette’s argument is undercut by the fact that the affidavit proffered in support of

its request for attorneys’ fees indicates that the fees sought were incurred in representing both

21

Bequette and the HOA. Homeowners argue this contradicts the plain language of the

Indemnification Provision, which provides that the HOA is the indemnitor, not the indemnitee.

We agree with Homeowners. The Indemnification Provision simply does not require or

permit an award of attorneys’ fees for Bequette under the circumstances presented in this case.

The Indemnification Provision only authorizes the Association to indemnify the Developer and

its agents, officers, and employees (and certain specified people directly affiliated with the

Association) for attorneys’ fees “incurred by or in connection with any action suit, or other

proceeding … to which he or she may be a party by reason of being or having been an officer or

director of a member of the Architectural Control Committee” (emphasis added). The

Indemnification Provision simply does not provide that the individual members of the

Association who bring suit against another party to the Covenants are personally liable for the

attorneys’ fees incurred by the opposing party. The plain language of the Indemnification

Provision is clear and unequivocal, and we are bound to enforce it as written. Malan Realty, 953

S.W.2d at 626-27. For these reasons, the circuit court correctly denied Bequette’s Motion to

Amend.12

Point denied.

Finally, because Bequette’s request for attorneys’ fees on appeal is also premised on the

Indemnification Provision, we likewise deny this request for the same reasons we hold that the

circuit court correctly denied Bequette’s Motion to Amend.

12

As noted above, the Motion to Amend argued three separate grounds in support of Bequette’s request for

attorneys’ fees: (1) the express terms of the Indemnification Provision; (2) the Declaratory Judgment Act (i.e.,

§§ 527.010-.130); and (3) to balance the equities. On appeal, however, Bequette has only argued that it is entitled to

attorneys’ fees on the basis of the Indemnification Provision. Therefore, Bequette has abandoned any claim to

attorneys’ fees based on the other grounds asserted in the Motion to Amend, and thus, we need not address these

grounds.

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V. Conclusion

For the foregoing reasons, we affirm the judgment of the circuit court with respect to

Legends’s and Bequette’s motions for summary judgment, affirm the circuit court’s denial of

Bequette’s Motion to Amend, and deny Bequette’s motion for attorneys’ fees on appeal.

_______________________________

Kelly C. Broniec, Presiding Judge

Philip M. Hess, J. and

James M. Dowd, J. concur.

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