On June 15, 2021, the Missouri Supreme Court held that a homeowners association was not entitled to recover its attorney fees due to qualifying language in the subdivision’s declarations.

The case centered on a homeowner’s construction of a swimming pool building that was not in the original plan the homeowner had submitted to the association for its approval.  After the homeowner refused to stop construction (despite receiving a cease and desist from the association), the association filed for an injunction in the Boone County Circuit Court.

Following a bench trial, the circuit court found in favor of the Homeowners Association and issued a permanent injunction.   The circuit court also initially ordered the homeowner to pay over Eighty Three Thousand Dollars ($83,000) in attorney’s fees.  But, after reviewing the parties’ motions for amendment and clarification of the judgment, the circuit court determined that each party should bear its own fees and placed a series of Xs over the line awarding the association its attorney’s fees. 

The association appealed, pointing to two provisions in the declarations that governed the property.   Unfortunately for the association; the Supreme Court held that neither provision entitled it to recover its attorney’s fees.  

First, the association relied on a provision that “the prevailing party shall be entitled to receive an aware [sic] of attorney’s fees and court costs as deemed appropriate by a court of competent jurisdiction.”   The Supreme Court held that there was qualifying language which only allowed an award of attorney’s fees and costs as deemed appropriate by the circuit court.  The language granted the circuit court discretion to award attorney’s fees and costs.  Because the record reflected that the circuit court considered awarding attorney’s fees to the association and had changed its decision after post-trial motions, the Supreme Court found that the circuit court did not abuse its discretion in denying the association its attorney’s fees.

A second provision stated that “[i]f any Lot Owner brings suit to enforce the terms of this Declaration against any other Lot Owner, then the prevailing party in such litigation shall be entitled to recover said prevailing party’s attorney’s fees, costs…”   Here, the Supreme Court held that the recovery of attorney’s fees was “limited to a lot owner” and the Association never argued that it was a lot owner, so that the circuit court did not abuse its discretion in denying attorney’s fees.