author: KURT S. ODENWALD, Presiding Judge.

text:
    Donald W. PRESTON, Appellant, v. STATE of Missouri, Respondent.
    No. ED 93727.
    Missouri Court of Appeals, Eastern District, Division Four.
    Aug. 31, 2010.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Oct. 7, 2010.

      Mark A. Grothoff, Office of the Missouri Public Defender, Columbia, MO, for Appellant.
    Chris Koster, Attorney General, James B. Farnsworth, Assistant Attorney General, Jefferson City, MO, for Respondent.
   KURT S. ODENWALD, Presiding Judge.

Introduction

Donald Preston appeals from the motion court’s judgment denying his Rule 29.15 motion for post-conviction relief in which Preston argued that the jury selection procedures employed by the Circuit Court in Lincoln County required a reversal of his conviction and new trial. Preston argues that the motion court clearly erred in denying his amended motion because the Lincoln County jury selection procedures, which permitted qualified jurors to decline jury service by agreeing to pay $50 and perform six hours of community service, substantially failed to comply with the declared policy of Sections 494.400 through 494.505. Because the opt-out practice for qualified jurors in Lincoln County constituted a fundamental and systemic failure to comply with the statutory jury selection requirements, we hold the motion court’s judgment to be clearly erroneous, and reverse.

Factual Background

On May 17, 2007, the State of Missouri (the State) charged Preston by information with one count of class B felony attempt to manufacture a controlled substance (methamphetamine), in violation of Section 195.211. On June 7, 2007, Preston was found guilty of this charge following a jury trial, and the trial court subsequently sentenced him as a prior drug offender to fifteen years’ imprisonment. This Court affirmed the trial court’s judgment in a per curiam order, dated September 2, 2008. State v. Preston, 260 S.W.3d 927 (Mo.App. E.D.2008).

On November 24, 2008, Preston filed a pro se Rule 29.15 motion for post-conviction relief. Counsel was appointed and filed an amended motion on Preston’s behalf on February 25, 2009. In his amended motion, Preston alleged that the presiding judge employed an opt-out practice which allowed individuals to avoid potential jury service by choosing instead to perform six hours of community service and pay a $50 fee. Preston claimed that this practice improperly restricted those persons eligible for random selection to his venire panel. Preston further alleged that neither his trial nor appellate counsel had knowledge of this practice at the time of his trial and filing of his direct appeal.

On May 22, 2009, the motion court conducted an evidentiary hearing in which Grace Sinclair, the Circuit Clerk of Lincoln County, provided testimony. Sinclair testified that, prior to any disqualification by virtue of ineligibility or excusal, 915 people comprised the pool of potential jurors for the April-July term of 2007, the term in which Preston’s jury panel was constituted. Sinclair further testified that juror qualification forms were mailed to each of these 915 people. Based on their responses to these forms, 412 individuals were deemed to be “qualified jurors” — those individuals eligible for random selection to a venire panel. Of the 503 individuals not deemed to be “qualified jurors,” 496 were found to be either ineligible or entitled to be excused from jury service. The remaining seven were deemed unqualified because they had elected to trade their jury service obligation for community service hours. Had these seven individuals not been permitted to select this community service option, Sinclair testified that the list of “qualified jurors” would have been 419, and not 412. Sinclair also testified that this practice has since ended.

On August 31, 2009, the motion court denied Preston’s amended motion and concluded that the practice of which Preston complained was a “de minimus” statutory deviation and that Preston had not demonstrated any prejudice.

Point on Appeal

In his one point on appeal, Preston claims that the motion court clearly erred because Lincoln County’s allowance of a community service opt-out provision on the juror qualification forms allowed seven otherwise qualified individuals to effectively remove their names from the county’s qualified jury list and avoid possible selection to his venire panel. Preston contends that this opt-out practice does not substantially comply with Missouri’s jury selection statutes.

Standard of Review

When reviewing a judgment entered on a Rule 29.15 motion for post-conviction relief, we consider whether the motion court’s findings of fact and conclusions of law are clearly erroneous. Rule 29.15(k). A motion court’s factual findings and legal conclusions are clearly erroneous “when there is a definite and firm impression that a mistake has been made after reviewing the entire record.” Forrest v. State, 290 S.W.3d 704, 708 (Mo. banc 2009) (internal citation omitted).

Discussion

I. Preston has timely raised his claim.

The State argues that Preston’s claim was untimely filed because Section 494.465 requires that motions asserting non-conformity with Missouri’s jury selection statutes must be made “at any time before the petit jury is sworn to try the case or within fourteen days after the moving party discovers or by the exercise of reasonable diligence could have discovered the grounds therefor, whichever occurs later.” While we acknowledge the mandatory language of Section 494.465, the statutory violation which Preston complains of occurred without his actual or constructive knowledge. The violation occurred when the Lincoln County Board of Jury Commissioners assembled the qualified jury lists for the term in which Preston’s jury was constituted. The record before us reveals no evidence that either Preston’s trial or appellate counsel had knowledge of, or through reasonable diligence would have discovered the practice employed by the Lincoln County Circuit Court. As such, due to this exceptional circumstance, refusal to consider Preston’s Rule 29.15 claim in this case would result in fundamental unfairness. See Hudson v. State, 248 S.W.3d 56, 58-59 (Mo.App. W.D.2008).

II. Lincoln County’s practice of allowing qualified jurors to opt out of jury service substantially fails to comply with Missouri’s jury selection statutes.

The facts of this case are clear. The presiding judge’s policy permitted seven individuals to unilaterally elect community service in lieu of having their names placed on the “qualified jury list.” Section 494.415. The question we must answer is whether this opt-out practice constituted a “substantial failure to comply” with Missouri’s jury selection statutes. Section 494.465; State v. Anderson, 79 S.W.3d 420, 431 (Mo. banc 2002). To sufficiently address this question, we first outline Missouri’s jury selection statutes and secondly discuss the merits of Preston’s statutory compliance claim.

1. Statutory Scheme — Jury Selection Procedures

In Missouri, Sections 494.400 through 494.505 govern the procedures regarding jury selection. Section 494.400 strongly declares the policy of these sections by stating that “[a]ll persons qualified for grand or petit jury service ... shall be selected at random from a fair cross section of the citizens of the county,” and all qualified Missouri citizens have “an obligation to serve as jurors when summoned for that purpose, unless excused.” Section 494.400 (emphasis added). This provision allows only two criteria for which citizens may be disqualified from the duty to serve as a juror: (1) ineligible persons and (2) persons entitled to be excused. See Sections 494.425 (ineligible) and 494.430 (entitled to be excused).

Each county in Missouri must have a board of jury commissioners. Section 494.405. Ordinarily, three people comprise this board — the presiding judge of the circuit, the clerk of the circuit court, and the county clerk. Id. This board is “responsible for managing and supervising the jury selection process.” Id. The initial step in the jury selection process is the board’s compilation of a “master jury list” for the county. Section 494.410. The master jury list contains a “random selection of names from a minimum of two government records.” Id. At all times, the master jury list must contain four hundred names or more, and it must constitute at least five percent of the county’s total population. Id.

From the master list, the board then randomly draws the names of as many prospective jurors as a trial court may require for a term. Section 494.415. When a prospective juror’s name is drawn, the board sends that individual a “juror qualification form.” Id. This form is designed to “[ejlicit information concerning the prospective juror’s qualifications” Id. (emphasis added). For example, persons less than twenty-one years of age or persons on active duty in the armed forces are statutorily disqualified from jury service because they possess characteristics which render them ineligible. Section 494.425 (persons ineligible for jury service).

Judicial excusal is a second avenue for jury service disqualification. Section 494.430 (persons entitled to be excused from jury service). Section 494.430 provides that, if an individual makes a timely application to the court and falls within one of five enumerated categories, a judge may excuse such individual from jury service. For example, a judge may excuse an individual from jury service if he or she determines that serving as a juror would impose “an undue or extreme physical or financial hardship” on that individual. Id.

If it is determined from an examination of the juror qualification form that an individual is not qualified to serve as a juror due to either an ineligibility or an entitlement to be excused, the board shall delete that individual’s name from its master jury list. Section 494.415. The remaining names, which comprise the individuals not disqualified from jury service, constitute the “qualified jury list.” Id. Whenever a judge of the circuit court requires a panel of jurors for jury service, he or she shall designate the number of jurors required. Section 494.420. The board will then randomly draw this number from the qualified jury list and summon them to appear at the courthouse. Id.

2. Statutory Compliance Claim

Here, by virtue of the community service opt-out provision provided in the juror qualification form, the presiding judge permitted seven individuals to intentionally remove their names from Lincoln County’s qualified jury list without demonstrating that they were either ineligible or entitled to be excused under Missouri’s jury selection statutes. This opt-out practice constitutes an obvious deviation from the statutory jury selection procedures outlined above. Sections 494.425 and 494.430 are the only statutory provisions absolving certain persons from their obligation to serve as jurors when summoned. Neither section authorizes a presiding judge to allow individuals to trade potential jury service obligations for community service. Moreover, no other statutory provision in Chapter 494 suggests that such a practice logically extends from the declared policy of Sections 494.400 to 494.505. We acknowledge the State’s position that the community service opt-out choice initiated by Lincoln County roughly tracks the penalties a court may impose for the willful non-attendance of a juror under Section 494.450. That is, a court may order such a contumacious individual to participate in community service and pay a fine. Nonetheless, we find no statutory or judicial authority suggesting that an individual may be permitted to choose a non-attendance penalty up-front rather than face potential jury service. Accordingly, we cannot hold that such a practice complies with our jury selection statutes.

Still, the test to be applied in this case is not one of strict statutory compliance. Rather, only a “‘substantial failure’ to comply with the statutory jury selection requirements” will entitle Preston to relief. Anderson, 79 S.W.3d at 431 (citing Section 494.465.1). In Anderson, the Missouri Supreme Court held that “a ‘substantial’ failure to comply is one that either rises to the level of a constitutional violation, and/or that actually prejudices a defendant.” Id. But Anderson also acknowledged that:

In rare cases, certain violations of the statutory jury selection requirements may be so fundamental or systemic in nature as to amount to a ‘substantial’ failure to comply with the statutes, thereby entitling a defendant to relief, even in the absence of a clear showing of actual prejudice or of a constitutional violation.

Id. at 431 n. 4 (citing State v. Gresham, 637 S.W.2d 20, 26 (Mo. banc 1982)) (emphasis added). To elucidate the distinctions the Anderson Court made when it articulated the meaning of “substantial failure to comply,” it is helpful to compare the facts at issue in Anderson with the facts in Gresham.

In Gresham, the evidence showed that the county board of jury commissioners removed certain individuals from a jury list, not because of statutory ineligibilities, but because the board members perceived certain individuals to be lacking the qualities found in a good juror. Gresham, 637 S.W.2d at 25-26. Put simply, the board made a subjective determination and restricted the list of potential jurors to those individuals who possessed the “right attitude.” Id. at 25. Thus, the Court held that even though the defendant had not shown that he was actually and in fact prejudiced by this procedural irregularity , such a practice substantially departed from the policy of the jury selection statutes. Id. at 26. The Court emphasized that this irregularity “readily lends itself to jury packing.” Id. at 26.

In Anderson, the defendant alleged that certain persons who were known to be ill, to have a doctor’s appointment, or to be working out-of-town for extended periods of time were excused from the county’s qualified jury list. Anderson, 79 S.W.3d at 431. The Court held that there was no substantial failure to comply with the policy of the jury selection statutes because (1) the alleged deviation did not violate the defendant’s constitutional right to have a jury selected from venires that represent a fair cross section of his community and (2) the defendant had not shown how he was prejudiced by such an isolated and technical statutory violation. Id. at 432. Anderson emphasized that “[t]he exclusion of a prospective juror for reasons not listed in the [excusal] statute is not grounds for reversal absent a showing that a defendant was actually prejudiced by failure to strictly observe the statutory provisions for excuse.” Id. at 432. In its opinion, the Court reconciled why it required the Anderson defendant to demonstrate prejudice when it had not required the same from the Gresham defendant twenty-two years earlier. Id. at 431 n. 4. The difference stems from the degree of the statutory violation, i.e., whether the statutory violation was “fundamental or systemic in nature.” Id. at 431 n. 4.

Because removing jurors who lack the “right attitude” from county jury lists fundamentally undermined Missouri’s jury selection statutes, the Gresham defendant was not required to demonstrate prejudice. Gresham, 637 S.W.2d at 25-26. In a sense, the prejudice suffered in Gresham was presumed due to the severity of the statutory violation. However, where the precise language of the excusal statute, Section 494.430, was only slightly infringed by the removal of individuals from qualified jury lists because the circuit clerk knew them to be ill or unavailable for some reason, Anderson found that the statutory violation was not systemic or fundamental. Anderson, 79 S.W.3d at 432. As such, the added demonstration of either prejudice or of a constitutional cross section violation was required. Id. at 431-32.

In this case, we find that the presiding judge’s practice of allowing otherwise qualified jurors to opt-out of obligatory jury service to be a fundamental and systemic deviation from the declared policy of sections 494.400 to 494.505. Unlike the facts in Anderson, the seven potential jurors were not excused from jury service because the Lincoln County Circuit Court had knowledge of facts that would allow these seven individuals to be excused. To the contrary, judicial discretion was completely removed from this process. As such, Preston has presented sufficient evidence to support his claim that the Lincoln County Circuit Court failed to substantially comply with the jury selection statutes. Preston need not demonstrate prejudice, and the motion court clearly erred in requiring him to do so.

Two recent cases—State v. Sardeson, 174 S.W.3d 598, 601 (Mo.App. S.D.2005), and Hudson, 248 S.W.3d at 60 — have found fundamental and systemic violations of the statutory jury selection requirements that obviated the need for the defendants to show anything more than substantial non-compliance with the statutes. These eases’ facts parallel each other. In both instances, a computer error caused those selected from the qualified jury list to the defendants’ venire panel to be seated from oldest to youngest in the courtroom during voir dire. Sardeson, 174 S.W.3d at 601; Hudson, 248 S.W.3d at 57. The seating of the venire panel was supposed to be random. The practical effect of this error caused the Sardeson jury to seat no person under the age of forty-four and the Hudson jury to seat no person under the age of thirty-six. Sardeson, 174 S.W.3d at 601; Hudson, 248 S.W.3d at 57.

Though the community service opt-out practice which Preston complains of here does not directly impinge on the concept of random juror selection as did the violations in Sardeson and Hudson, Lincoln County’s practice implicates two other principles fundamental to the declared policy of the jury selection statutes. First, all qualified citizens have “an obligation to serve as jurors when summoned for that purpose, unless excused.” Section 494.400 (emphasis added). Second, excusal from jury service is generally predicated on a discretionary judicial determination. Section 494.430.1(2),(3). Permitting an otherwise qualified Missouri citizen to thwart these two principles by intentionally and unilaterally choosing to remove their name from a county’s qualified jury list and forgo any potential jury obligations constitutes a statutory violation, one that is fundamental and systemic in nature. Point granted.

Conclusion

Because the jury selection practice in place at the time of Preston’s trial constituted a fundamental and systemic failure to comply with the statutory jury selection requirements, we hold that the motion court’s judgment denying Preston’s amended motion for post-conviction relief was clearly erroneous. We reverse and remand Preston’s case for new trial.

ROBERT G. DOWD, JR. and NANNETTE A. BAKER, JJ„ concur.

      . All rule references are to Mo. R.Crim. P.2009, unless otherwise indicated.

      . All statutory references are to RSMo Cum. Supp.2005, unless otherwise indicated.

      . The Gresham Court's couched the critical test as follows: ‘‘[I]n the absence of a showing that a defendant was actually and in fact prejudiced by irregularities in the board’s procedures, the test to be applied is whether there has been substantial compliance with the statutes.” Id. at 25.


source: Caselaw Access Project

author: ROBERT G. DOWD, JR., Judge.

license: Public Domain

text:
    Deanna Jane KRAEMER, Appellant, v. Josephine MANISCALCO, Respondent.
    No. ED 94239.
    Missouri Court of Appeals, Eastern District, Division Four.
    Aug. 31, 2010.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Oct. 7, 2010.
    Application for Transfer Denied Dec. 21, 2010.
    Robert A. Cappiello, Clayton, MO, for Appellant.
    Canice Timothy Rice, Jr., St. Louis, MO, for Respondent.
   ROBERT G. DOWD, JR., Judge.

Deanna Jane Kraemer appeals from the judgment granting Josephine Maniscalco’s motion to dismiss and dismissing her petition to contest a will and admit a rejected will. We reverse and remand.

On November 27, 2008, Mary M. Gallegos (“Decedent”) died as a single person without any children. Deanna Jane Kraemer (“Niece”) is the niece of Decedent. Josephine Maniscalco (“Sister”) is Decedent’s sister and only surviving sibling.

At issue in this case are two instruments purporting to be Decedent’s last will' and testament at her death. One instrument was executed on February 14, 2003 (“the 2003 will”). The 2003 will is a pour-over will. It transfers all assets to a previously established living trust. The trust benefits Niece and Sister equally. The second instrument was executed on November 26, 2004 (“the 2004 will”). In the 2004 will, Decedent bequeathed one dollar to Niece, one dollar to Nina Tormino Hake, one dollar to Pearl Tina Tormino North, and the remainder of her estate to Sister.

Pursuant to Sister’s application, the 2004 will was admitted to probate. Sister was appointed the personal representative of Decedent’s estate. Niece filed an application to probate the 2003 will, which was denied, and the 2003 will was rejected by the circuit court.

Niece filed a petition to contest the 2004 will and have the 2003 will admitted to probate titled “Petition to Reject a Purported and Pretended Will and to Contest the Same and to Admit to Probate a Rejected Will.” Niece named the following persons as defendants in the petition: Sister; Nina Tormino Hake, Decedent’s niece and legatee under the 2004 will; Pearl Tina Tormino North, Decedent’s niece and legatee under the 2004 will; Vernon Wun-nenberg, Decedent’s nephew and heir-at-law; Lisa Wunnenberg Dlabcik, Decedent’s great-niece and heir-at-law; Laurie Wunnenburg Dreyer, Decedent’s great-niece and heir-at-law; and Micheál Gryzb, Decedent’s great-nephew and heir-at-law. All of the defendants named by Niece were served with summons and the petition within the ninety-day statutory period prescribed in Section 473.083.6, RSMo 2000. With the exception of Sister, none of the other defendant’s answered Niece’s petition.

Sister subsequently filed a motion to dismiss Niece’s petition “for failure to join and secure and complete service of process on all necessary parties.” Sister asserted Niece had failed to join Julie Gryzb Schneider and Jenifer Gryzb Harris (“the Omitted Heirs”), great-nieces of Decedent and heirs-at-law. Thereafter, the circuit court granted Sister’s motion to dismiss finding the Omitted Heirs were necessary parties and Niece did not show good cause for failing to serve the Omitted Heirs within ninety days of filing her petition. Niece now appeals.

The standard of review for a trial court’s grant of a motion to dismiss is de novo. Lynch v. Lynch, 260 S.W.3d 834, 836 (Mo. banc 2008).

Because they are interrelated, we will address Niece’s first three points together. Niece asserts the circuit court erred in granting the motion to dismiss for failing to join and serve the Omitted Heirs as necessary parties because (1) the Omitted Heirs do not have a protected benefit that they could lose by not being named as parties to Niece’s petition, (2) the Omitted Heirs are not adversely affected by the prosecution of the 2004 will contest, and (3) the Omitted Heirs have no interest in Niece’s petition.

The question to be answered here is whether the Omitted Heirs were necessary parties that must be joined and served in Niece’s will contest proceedings pursuant to Section 473.083. It is well-settled law that all necessary parties must be named and served within the prescribed period. Zimmerman v. Preuss, 725 S.W.2d 876, 877 (Mo. banc 1987).

Section 473.083 sets forth the procedures for contesting a will and provides, in pertinent part:

[ujnless any person interested in the probate of a will appears within six months after the date of the probate or rejection thereof by the probate division of the circuit court, or within six months after the first publication of notice of granting of letters on the estate of the decedent, whichever is later, and, by petition filed with the clerk of the circuit court of the county, contests the validity of a probated will, or prays to have a will probated which has been rejected by the probate division of the circuit court, then probate or rejection of the will is binding. An heir, devisee, trustee or trust beneficiary under another purported will of the same decedent, and a person who has acquired, before or after the death of the testator, all or part of the interest of such heir or devisee by purchase, gift, devise, intestate succession, mortgage or lien, is interested in the probate of a will for purposes of this section.

Section 473.08B.1. Section 473.083.1 does not speak on the issue of necessary parties. Cool v. Reed, 710 S.W.2d 243, 247 (Mo.App. E.D.1986). Thus, we look to Section 473.083.3. That section provides:

It is not necessary to join as parties in. a will contest persons whose interests will not be affected adversely by the result thereof. Subject to the provisions of section 472.300, RSMo, persons not joined as parties in a will contest are not bound by the result thereof and have no rights in or to any consideration given for dismissal pursuant to subsection 8 of this section.

Section 473.083.3 (Emphasis added.) Subsection 3 of Section 473.083 became effective January 1,1981. With few exceptions, before Section 473.083.3 became effective, all “interested persons” were deemed necessary parties. Zimmerman, 725 S.W.2d at 877 (citing Eddie v. Parke’s Executor, 31 Mo. 513 (Mo.1862)). However, “subsection 3 mandates joinder of only those persons whose interests will be affected adversely by the result of the will contest.” Id.

In looking at the “affected adversely” language of Section 473.083.3, the Missouri Supreme Court stated:

the test is whether an interested person stands to lose some benefit if the will contest ultimately succeeds, not whether there is a possible loss of a benefit or expectancy if the contest fails. Stated another way, the question is whether an interested person may lose some protected benefit “if the contestant wins.”

Zimmerman, 725 S.W.2d at 877 (citing Nevins, Missouti Probate: Intestacy, Wills & Basic Admin., Section 7-10(g) and Cool, 710 S.W.2d at 246).

In Zimmerman, the decedent’s widow and stepchildren, the primary beneficiaries under a rejected will, filed a will contest naming the beneficiaries of the admitted will as defendants. Zimmerman, 725 S.W.2d at 876-77. The rejected will also bequeathed money to two other individuals, who were not named in the will contest. Id. The two individuals were not mentioned in the admitted will. Id. at 877. The defendants filed a motion to dismiss for failure to include the two legatees in the rejected will as necessary parties, and the circuit court granted the motion to dismiss. Id. On appeal, the court held the two legatees in the rejected will were not necessary parties because they could not be adversely affected by the result of the will contest where they had no protected interest which could be lost if the will contest was successful. Id.

On the other hand, legatees of a contested will are necessary parties to a will contest proceeding. Jones v. Jones, 770 S.W.2d 246, 248 (Mo.App. E.D.1988). In Jones, the plaintiffs, four children of the decedent, challenged a will in which a brother was bequeathed specific property. Id. at 247. The plaintiffs did not include their brother in their will contest. Id. at 248. The circuit court dismissed the plaintiffs’ petition for failure to join a legatee in the contested will. Id. On appeal, the court held a legatee of a contested will is a necessary party to a will contest because if the will contest is successful the legatee would lose the benefit of a specific bequest. Id.

Here, the Omitted Heirs cannot be deemed to be necessary parties. The Omitted Heirs are not mentioned in either the contested 2004 will or the rejected 2003 will, and therefore, are not legatees under either will. The Omitted Heirs do not stand to lose some protected benefit if the will contest ultimately succeeds. Thus, the Omitted Heirs would not be adversely affected by the result of the will contest and are not necessary parties.

Sister asserts that because Niece also seeks to have the rejected 2008 will admitted to probate if the 2004 will contest is successful, the Omitted Heirs are necessary parties because they could be adversely affected if the 2004 will contest succeeded. Sister maintains that if the 2008 will, in which the Omitted Heirs are not beneficiaries, is admitted to probate rather than the 2004 will being rejected and intestate succession resulting, the Omitted Heirs would be adversely affected because they would not receive their intestate share. However, Sister misapplies the standard of Section 473.083.3. That section only applies to will contests and who is a necessary party in a will contest and does not apply in seeking to have a will admitted to probate.

Sister also asserts that the second sentence of Section 473.083.3 that “persons not joined as parties in a will contest are not bound by the result thereof’ somehow makes the Omitted Heirs necessary parties. We are not persuaded by Sister’s argument.

Because the Omitted Heirs would not be adversely affected by the result of the 2004 will contest, they are not necessary parties. The trial court erred in dismissing Niece’s proceedings and finding the Omitted Heirs were necessary parties. Niece’s points are granted.

The circuit court’s dismissal is reversed and the cause is remanded for further proceedings.

KURT S. ODENWALD, P.J. and NANNETTE A. BAKER, J., concur.

      . All further statutory references are to RSMo 2000.

      . Following oral argument, Sister filed a motion for leave to file a memorandum of law supplementing oral argument. That motion is hereby granted.

      . Section 473.083.8 provides:
      [a]ny such action may be voluntarily dismissed, after the period of contest has expired, by consent of all parties not in default, at the cost of the party or parties designated, at any time prior to final judgment. Dismissal under this subsection shall not be considered a compromise of the action requiring court approval pursuant to sections 473.084 and 473.085, even though the parties have contractually agreed to an exchange of consideration for such dismissal or consent, and even though others similarly situated do not participate in such consideration.

      . Because of our holding that the Omitted Heirs are not necessary parties, we need not address Niece's remaining point regarding good cause for failing to join and serve the Omitted Heirs.


author: SHERRI B. SULLIVAN, P.J.

text:
    C.K., Petitioner/Respondent, v. B.K., Respondent/Appellant.
    No. ED 93632.
    Missouri Court of Appeals, Eastern District, Division Three.
    Sept. 7, 2010.
    Application for Transfer to Supreme Court Denied Oct. 26, 2010.
    Application for Transfer Denied Dec. 21, 2010.

      Alan E. Freed, Clayton, MO, for Appellant.
    Richard J. Eisen, Jennifer Growe Sosh-nik, St. Louis, MO, for Respondent.
   SHERRI B. SULLIVAN, P.J.

Introduction

B.K. (Father) appeals from the trial court’s judgment modifying a decree of dissolution upon Father’s Motion to Modify the Modified Decree of Dissolution (Motion to Modify) seeking to modify or terminate his maintenance obligation to C.K. (Mother). We affirm.

Factual and Procedural Background

Father and Mother were married in October 1989. Two children were adopted during the marriage, D., born January 2, 2000, and N., born January 12, 2000 (collectively the Children). In 2002, the trial court entered its Judgment of Dissolution, in which the court ordered Father to pay Mother $12,000 in monthly maintenance and $1,482 in monthly child support. The court ordered that Father and Mother share joint physical and legal custody of the Children.

On January 31, 2008, Father filed his Motion to Modify seeking an order terminating or reducing his maintenance obligation to Mother and modifying the parenting plan by granting Father additional time with the Children. Father alleged there was a substantial and continuing change of circumstances since the original judgment of dissolution warranting termination or modification of his maintenance obligation, in that Mother had entered into a permanent relationship amounting to a substitution for marriage with John Ash-ton (Ashton); Mother was now able to contribute to her own financial needs through full-time employment; and Mother’s monthly expenses had decreased.

On November 25, 2008, Mother sought leave to file an amended motion to seek a modification of child support. The court denied Mother leave to filed the amended motion.

On May 7, 2009, the trial court entered its Findings of Fact and Judgment. The court found that Mother should not be required to seek employment outside the home at that time, reduced the maintenance award to $6,800 per month, and ordered Father to pay $20,000 towards Mother’s attorney fees. The parties settled the custody issues raised by Father’s Motion to Modify, and the court accepted the parties’ agreed parenting plan. On September 6, 2009, the trial court entered two amended Judgments, in response to the parties’ post-judgment motions, making minor adjustments to the modified judgment. This appeal follows.

Points Relied On

In his first point on appeal, Father argues the trial court erred and abused its discretion by failing to terminate Father’s maintenance obligation because the overwhelming weight of the evidence and testimony presented at trial established that the relationship between Mother and Ash-ton constituted a “substitute for marriage” under the law established by Herzog v. Herzog, 761 S.W.2d 267 (Mo.App. E.D.1988), in that the couple’s cohabitation, birth of a child, financial interdependence, and acknowledgment of their long-term commitment to one another, together with other indicia of a permanent relationship, proved that Mother has abandoned her right to support from Father.

In his second point on appeal, Father argues the trial court erred and abused its discretion by finding that Mother was not required to find employment because the court failed to follow the case law interpretation of the statutory factors in determining maintenance in that, by failing to impute a $30,000 annual income to Mother as stipulated by the parties, and by failing to consider the undisputed fact that any need for day care results from her choice to have a child in a relationship that is a substitute for marriage, the court failed to require her to make an effort to provide for her own needs.

In his third point on appeal, Father argues the trial court erred by ordering him to pay $20,000 to Mother’s attorneys because this order constitutes an abuse of discretion in that Father’s voluntary and generous decision to forego a judgment of close to $100,000 against Mother for retroactive maintenance, combined with the fact that the litigation became necessary solely as a result of Mother’s unilateral decision to enter into a relationship that is a substitute for marriage, renders any attorney’s fees judgment against Father inequitable.

Standard of Review

On appeal, we will affirm the trial court’s judgment unless there is no substantial evidence to support it, it is against the weight of the evidence, or it erroneously declares or applies the law. Haynes v. Almuttar, 25 S.W.3d 667, 671 (Mo.App. W.D.2000). This court views the evidence in the light most favorable to the decision and disregards contradictory evidence. Id. We defer to the trial court’s superior opportunity to judge the credibility of the witnesses. Id.

Discussion

Point I — Termination of Maintenance

In his first point, Father contends the trial court erred by failing to terminate his maintenance obligation because the overwhelming weight of the evidence established that Mother’s relationship with Ash-ton constituted a “substitute for marriage.”

To justify a modification of maintenance, the movant must demonstrate a change of circumstances so substantial and continuing as to make the terms of the original decree of dissolution unreasonable. Section 452.370.1; Brooks v. Brooks, 957 S.W.2d 783, 786 (Mo.App. W.D.1997). As the party seeking modification, Father bears the burden of proving the changed circumstances. Fowler v. Fowler, 21 S.W.3d 1, 4 (Mo.App. E.D.2000). “We will not reverse the trial court’s award of maintenance absent an abuse of discretion.” Brooks, 957 S.W.2d at 786.

In determining whether a substantial change in circumstances has occurred, the court shall consider the financial resources of the parties, including the extent to which the reasonable expenses of either party are, or should be, shared by someone the party is cohabitating with. Section 452.370.1.

Father argues on appeal that the trial court erred in failing to take the additional step of terminating Mother’s maintenance based on a finding that Mother had entered into a relationship of such permanence that it is a substitute for marriage pursuant to Herzog.

In Herzog, 761 S.W.2d 267, this court considered whether the post-dissolution cohabitation of a spouse receiving maintenance authorized the modification or termination of a maintenance award. At the time Herzog was decided, the statute governing the modification of maintenance did not specifically provide that cohabitation was a consideration on a motion to modify maintenance. Id. at 268. The Herzog court noted that cohabitation was an issue in maintenance modification proceedings because the new relationship does not carry a legal obligation of support, yet there was a basic unfairness in requiring a prior spouse to continue supporting a spouse who has entered into a relationship with some of the benefits of, but few of the detriments of, marriage. Id. at 268.

The Herzog court stated that where the relationship has achieved a level of permanence sufficient to support the conclusion that it has become a substitute for marriage, equitable principles warrant a finding that the spouse has abandoned his or her right to support from the prior spouse. Id. at 268-69. Modification may be justified when the receiving spouse has substantial continuing support from a third party regardless of whether the relationship is permanent. Id. at 269. Under Herzog, it is the court’s responsibility to evaluate the relationship to determine whether equity justifies termination or modification of maintenance on the basis of that changed condition alone. Id. at 268.

In this case, the first question is whether Mother’s relationship with Ashton rises to the level of a relationship that is a “substitute for marriage.” Father argues the overwhelming evidence established that it does. Specifically, Father argues that Mother and Ashton have been in a monogamous relationship since 2003; have established a home together as a cohabi-tating couple since 2006; have a child together; and intend to remain in a permanent, committed relationship.

In making its determination, the trial court considered these facts as supporting a finding of a permanent relationship. The court also found that Ashton attempted to conceal the true nature of his and Mother’s cohabitation by renting a room outside their home 16 months after he moved to St. Louis. However, the court also considered that the parties have not engaged in a commitment service; do not hold themselves out to be married; have no present intent to get married; and that Ashton has not placed himself in a position to replace Father in the Children’s lives.

Although the trial court did not make an explicit finding that Mother and Ashton’s relationship did not rise to the level of a “substitute for marriage” justifying termination of maintenance, such a finding is apparent from the language of the court’s judgment. The court found that they had entered into “a relationship of sufficient permanence to support an equitable modification of Father’s maintenance obligation.” This finding indicates that the trial court was treating the relationship as one of cohabitation justifying modification under Section 452.370.1, and not as a substitute for marriage under Herzog.

In addition to the evidence already noted, the record also indicates that Mother and Ashton do not commingle their finances, have no joint bank accounts or credit cards, are not named as beneficiaries on each other’s life insurance policies, have not provided for each other in their wills, and have not discussed getting married. Based on the evidence in the record, the trial court did not err in treating Mother and Ashton’s relationship as one of cohabitation and not as a substitute for marriage.

As already noted, the trial court can consider the extent to which a party’s expenses are or should be shared by a cohabitant when determining whether a substantial change in circumstances has occurred. Section 452.370.1; Gal v. Gal, 937 S.W.2d 391, 394 (Mo.App. E.D.1997). Father acknowledges that a reduction of maintenance, instead of termination, is appropriate where a relationship involves cohabitation but does not reach the level of a substitute for marriage.

In reducing maintenance, the trial court assessed Mother’s reasonable needs to be $7,300 per month, well below the $14,795 alleged by Mother in her statement of expenses. Then, consistent with Section 452.370.1, the court considered the extent to which Mother’s expenses are or should be shared by Ashton. The evidence established that Ashton was not providing any meaningful ongoing financial support to Mother. The court found, however, that Ashton should provide $2,000 a month toward Mother’s expenses and the household, in addition to paying his own expenses and the expenses of their infant child. Based on these findings, Mother had an unmet need of approximately $5,300 net per month. The court ordered Father to pay Mother $6,300 in maintenance in order for Mother to meet her reasonable needs and pay taxes.

The trial court did not abuse its discretion in reducing Father’s maintenance obligation from $12,000 to $6,300 per month after assessing Mother’s reasonable needs and Ashton’s reasonable expected contribution to the household. Father’s Point I is denied.

Point II — Imputed Income

In his second point, Father argues the trial court abused its discretion in failing to impute income to Mother in determining the maintenance award.

Prior to trial, the parties stipulated that Mother could earn income of $30,000 from employment if she was employed outside the home. The trial court noted that while Mother had previously been employed in professional positions, she became a stay-at-home parent, per the agreement of the parties, when the Children were adopted. The court found if Mother was employed outside the home she would incur childcare costs of $540 per month, resulting in a net income of approximately $1,500 per month. The court found that it is in the best interests of the Children that Mother continue as a stay-at-home parent, and that this is a luxury that the parties can afford for the Children. The court concluded that the circumstances of the family made it inappropriate for Mother to be required to seek employment outside the home at this time.

On appeal, Father argues that Mother has a continuing duty to exert reasonable efforts to attain self-sufficiency and that Mother would only incur childcare expenses for her infant son with Ashton since the Children are in school. Father also contends the court incorrectly concluded that it is in the best interests of the Children for Mother to continue as a stay-at-home parent because the self-sufficiency of both parents is in the Children’s best interests.

A spouse seeking maintenance has an affirmative duty to seek employment after the divorce. Breihan v. Breihan, 73 S.W.3d 771, 775 (Mo.App. E.D.2002). A spouse’s failure to make a good faith effort to become self-supporting may be the basis for modification of a maintenance award, but it does not mandate modification. Fowler, 21 S.W.3d at 4. The trial court may impute income to a party seeking maintenance according to what she could earn by use of her best efforts to gain employment suitable to her capabilities. Breihan, 73 S.W.3d at 775. The trial court’s determination of whether to impute income to a party is within its discretion and we will not reverse the trial court’s determination absent a manifest abuse of that discretion. Jones v. Jones, 958 S.W.2d 607, 611 (Mo.App. W.D.1998).

Father suggests that the court’s refusal to impute income to Mother relieves her of her duty to become self-sufficient, which is not in the best interests of the Children. Under the facts and circumstances of this case, the trial court did not err in refusing to impute $30,000 in employment income to Mother. Although Mother worked during the parties’ marriage, Mother was not employed outside the home, by agreement of the parties, after the Children were adopted. Mother’s projected net income of $1,500 per month is relatively small compared to Mother’s reasonable needs of $7,300 per month. Based on the evidence at trial, it is clear that if Mother worked outside the home, she would not be self-sufficient. The trial court could have reasonably found that the relatively small amount of income Mother could contribute does not outweigh the benefit to the Children of having a stay-at-home parent, at least for the present time. The court has not relieved Mother of her duty to become self-sufficient, but instead simply found that it was inappropriate for Mother to work outside the home at this time.

Father’s contention that Mother’s need for childcare is based solely on the birth of a new child is completely without merit. The trial court found that Mother would incur childcare costs of $540 per month if she went back to work. This amount is consistent with Mother’s testimony that this would be the cost of childcare for the older children and does not include the costs of care for the new child.

The trial court did not abuse its discretion in failing to impute income to Mother at this time. Father’s Point II is denied.

Point III — Attorney fees

Last, Father contends the trial court abused its discretion in ordering him to pay $20,000 of Mother’s attorney fees because Father voluntarily and generously decided to forego a judgment of almost $100,000 against Mother for retroactive maintenance, and the litigation was necessary solely as result of Mother’s decision to enter into a relationship with Ashton.

Section 452.355 authorizes the trial court to award attorney fees after considering “all relevant factors including the financial resources of both parties, the merits of the case and the actions of the parties during the pendency of the action[.]” Section 452.355.1 RSMo 2006. “One spouse’s greater ability to pay is sufficient to support an award of attorney’s fees to the other spouse.” Stufflebean v. Stufflebean, 941 S.W.2d 844, 847 (Mo.App. W.D.1997). An award of attorney’s fees is within the trial court’s discretion. Lueckenotte v. Lueckenotte, 34 S.W.3d 387, 399 (Mo. banc 2001). The trial court’s decision is an abuse of discretion when it is against the logic of the circumstances and is so arbitrary and unreasonable that it shocks one’s sense of justice. Id.

Father places significant emphasis on his decision to forego a judgment for overpaid maintenance. This was a relevant factor for the court to consider, and it is clear that the court did so because it specifically set it out as a factor in the judgment. However, this was not the only factor for the court’s consideration. In making its determination the court considered the relative resources of the parties, the merits of the case, and the actions of the parties during litigation. Specifically, the court found that both parties took positions that increased the contentiousness of the litigation and fueled the acceleration in fees and expenses. The court also considered the financial resources of the parties. Father reported earnings of $710,000 per year, while Mother is not employed outside the home. Father has substantial income and the financial resources to make the payment while Mother does not. The trial court did not abuse its discretion in ordering Father to pay $20,000 of Mother’s attorney fees. Father’s Point III is denied.

Conclusion

The judgment of the trial court is affirmed.

CLIFFORD H. AHRENS and LAWRENCE E. MOONEY, JJ., concur.

      . All statutory references are to RSMo 2008, unless otherwise indicated.

      . The statute was subsequently amended to provide for such consideration. See Section 452.370 RSMo 1994.


author: JEFFREY W. BATES, Judge.

text:
    L. Wayne GRIDER and Nancy C. Grider, Plaintiffs-Respondents, v. Jeffrey J. TINGLE, et al., Defendants-Appellants.
    No. SD 28753.
    Missouri Court of Appeals, Southern District, Division One.
    Sept. 13, 2010.
    Motion for Rehearing or Reconsideration and Transfer Denied Oct. 6, 2010.
    Application for Transfer Denied Dec. 21, 2010.

      Richard J. Rollings, Jr. of Camdenton, MO, for Plaintiffs-Respondents.
    Lewis Z. Bridges of Osage Beach, MO, for Defendants-Appellants.
   JEFFREY W. BATES, Judge.

After a bench trial, the trial court entered a judgment that quieted title to certain real estate, awarded nominal damages for trespass to the Griders and granted their requests for ejectment and injunctive relief. Jeffrey Tingle (Jeffrey) has appealed from the judgment and presents four points of alleged error. Because none of Jeffrey’s points have any merit, the judgment is affirmed.

The trial court’s judgment is presumed correct, and Jeffrey bears the burden of proving it erroneous. Surrey Condominium Ass’n, Inc. v. Webb, 163 S.W.3d 531, 535 (Mo.App.2005). Appellate review in this court-tried case is governed by Rule 84.13(d). This Court must 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. Strobl v. Lane, 250 S.W.3d 843, 844 (Mo.App.2008). Substantial evidence is evidence which has probative force and from which the trier of fact could reasonably find the issues in harmony with its decision. Harvard Properties, LLC v. City of Springfield, 262 S.W.3d 278, 279 (Mo.App.2008). The phrase “weight of the evidence” means its weight in probative value, rather than the quantity or amount of evidence. Nix v. Nix, 862 S.W.2d 948, 951 (Mo.App.1993). The weight of the evidence is not determined by mathematics, but depends on its effect in inducing belief. Id. “An appellate court exercises extreme caution in considering whether a judgment should be set aside on the ground that it is against the weight of the evidence and will do so only upon a firm belief that the judgment was wrong.” Simpson v. Strong, 234 S.W.3d 567, 578 (Mo.App.2007).

On appeal, the evidence and all reasonable inferences derived therefrom are viewed in the light most favorable to the judgment. Bacon v. Uhl, 173 S.W.3d 390, 396 (Mo.App.2005). This Court disregards all contrary evidence and inferences. Id. The credibility of the witnesses and the weight to be given to their testimony is for the trial court, which is free to believe none, part or all of the testimony of any •witness. Christian Health Care of Springfield West Park, Inc. v. Little, 145 S.W.3d 44, 48 (Mo.App.2004). “We defer to the trial judge’s superior opportunity to assess the witnesses’ credibility.” Lee v. Hiler, 141 S.W.3d 517, 520 (Mo.App.2004). In the case at bar, the court made a number of factual findings in the judgment. This Court considers all other factual issues to have been determined in accordance with the result reached. Rule 73.01(c). Our summary of the evidence presented at trial, which is set forth below, has been prepared in accordance with these principles.

This lawsuit involves a dispute about real property located at Lake of the Ozarks in Camden County, Missouri, in the Shawnee Bend No. 4 and View East subdivisions. The relevant portions of a subdivision survey are appended to this opinion to aid the reader’s understanding of the following facts and case background.

The Lake of the Ozarks is a privately owned, man-made lake. Before the lake was created, the Union Electric Land and Development Company (Land Company) acquired ownership of large tracts of land that would form the lakebed and adjacent lakefront property. Land Company’s holdings included all of the land located in Shawnee Bend No. 4 above and below the 662-foot contour line. The land below that contour line was conveyed to the Union Electric Light and Power Company (Power Company), but Land Company retained an easement which, in relevant part, is set out below:

This deed is made, however, subject to the following easement reserved to and retained by [Land Company] in and to all lands herein conveyed to [Power Company], viz; [Land Company] for itself, its successors and assigns, hereby reserves an easement in the lands here-inbefore described and hereby conveyed, to use the surface of said lands whether submerged or not, for any and all purposes whatsoever, including the erection and maintenance of improvements thereon, provided such use will in no way interfere with the construction, operation and maintenance by [Power Company], its successors or assigns, of the said dam ..., power plant and works appurtenant. ...

Thereafter, the land above the 662-foot contour line was platted as Lot 4 in the Shawnee Bend No. 4 subdivision (hereinafter, Lot 4). In 1959, William and Joan Hamilton (collectively, the Hamiltons) became the owners of Lot 4. This tract contained approximately eight acres.

In 1977, the Hamiltons sold all of their lakefront property to Gerald and Kay Stonitsch (the Stonitsches). As shown on the attached survey, the two-acre lakefront tract of land located within the bold, black lines was conveyed to the Stonitsches by warranty deed. The deed stated that the conveyance was:

Subject to the following described easement, to be retained by the grantors: Beginning at the Southeast corner of said Lot 4; thence run along said South line of said Lot 4 South 59 degrees 24' West 247.9 feet; thence leaving said South line and run North 12 degrees 27' East 41.5 feet; thence North 59 degrees 24' East 229.0 feet to the 662 Contour line of the Lake of the Ozarks; thence run along said 662 Contour line in a Southerly direction 30.8 feet more or less, to the point of beginning.

The easement was located on two wooded slopes that came together to create a natural drainage area into the lake.

In August 1979, the Stonitsches recorded a plat that created the View East Subdivision (VES). This new subdivision contained six lots. The Hamiltons’ retained easement was located along the southern edge of VES lot 1 (hereinafter, Lot 1). It is identified as “EASEMENT OF RECORD” on the attached survey.

William died in 1978 or 1979. Joy Horne-Jones (Horne-Jones) is the daughter of William and Joan. Jeffrey is Horne-Jones’ son. His wife is Maria Tingle. At some point not disclosed by the record, the Joan M. Hamilton 1991 Revocable Trust (the Trust) appears to have acquired an interest in Lot 4.

In 1999, the Lisses owned Lot 1. In October of that year, Joan filed a lawsuit against the Lisses in the Circuit Court of Camden County, Missouri. The petition alleged, inter alia, that Joan had an easement over Lot 1 “for ingress to and from the Lake of the Ozarks” and that the Lisses’ placement of trash, debris and a dog run cable on the easement had interfered with Joan’s ability to use it. The suit was dismissed in April 2000 after the Lisses cleaned up the easement area. In June 2000, Joan and the Trust conveyed Lot 4, including the retained easement over Lot 1, to Jeffrey and Horne-Jones.

That same year, Wayne and Nancy Gri-der became interested in purchasing Lot 1. Wayne knew about the easement and inspected the property. The easement was “completely grown up.” There was no evidence that the easement had ever been used by the Hamilton family to tie up a boat dock. Wayne saw nothing to indicate that the easement had been used for anything other than access to the lake. In September 2000, the Griders became the owners of Lot l. The warranty deed conveying the property to them stated that it was “[s]ubject to all restrictions, reservations, conditions and easements of record and to all existing roads and power lines, whether of record or not.” The Griders received a permit from AmerenUE (Amer-en) to have a boat dock and to install a seawall on the submerged land below the 662-foot contour line. The Barrows, who lived in a home on the lot immediately south of Lot 1, also had a boat dock.

Between 1977 and 2004, the easement property had been used by Hamilton family members and their guests to access the water for fishing or swimming. In addition, this group of individuals had used the easement five or six times each summer to launch and temporarily beach small rented boats. During this same 27-year time period, the owners of Lot 1, their family members and guests likewise had used the easement property for swimming, fishing, launching boats and jet skis and temporarily parking such watercraft on the sandy shore.

Fred and Teril Buck lived next door to the Barrows and south of the Griders’ property. With the Griders’ permission, the Bucks and other neighbors used the beach portion of the easement area to swim and to temporarily store and wash their jet skis, boats and trailers. In the fall of 2004, Fred encountered Jeffrey on the easement area. Jeffrey was holding a large map and a blueprint and said he was putting in a boat dock. When Fred told Jeffrey that he could not put in the dock because the Griders had given other people permission to use the easement area, Jeffrey said he owned that property.

In late 2004, Jeffrey was attempting to refinance the loan on Lot 4. On December 31, 2004, Jeffrey and Horne-Jones, along with their respective spouses, conveyed Lot 4 to Jeffrey and Maria (collectively, the Tingles) by warranty deed. This conveyance included the retained easement over Lot 1. In order to obtain a loan, however, Jeffrey had to have lakefront property. He went to Legend Land Title and asked the owner, Teresa Sapp (Sapp), to prepare a warranty deed from Joan conveying a fee simple interest in the land encompassed by the easement to the Tingles. Sapp told Jeffrey that he already had an easement interest in the property, and the warranty deed would be no good to him. Sapp declined to prepare the deed. Jeffrey returned to the title company two more times and finally persuaded another employee to prepare the warranty deed for him. In January 2005, this deed was recorded. It purported to convey a fee simple interest in the land encompassed by the easement to the Tingles. The deed was executed by Joan individually and in her capacity as trustee of the Trust, even though neither grantor had any interest in Lot 4 that could be conveyed. This warranty deed created a cloud on the title to Lot 1.

The Tingles moved into a house located on Lot 4. Their house was directly above the Griders’ house on Lot 1. Jeffrey decided that he wanted to have a boat dock, so he called Ameren to find out how to obtain a dock permit. Before receiving the permit, he went ahead and purchased a boat dock in late February 2005. On March 3, 2005, Jeffrey called Wayne and asked for permission to tie the Tingles’ boat dock to the Griders’ dock. Wayne refused.

Shortly after this telephone call, the Tingles’ dock was towed up between the Gri-ders’ dock and the Barrows’ dock and placed against the shoreline on the easement property. The Tingles’ dock was tied to the side of the Griders’ dock. In addition, cables were run from the Tingles’ dock to an anchor on the Griders’ seawall and to the Barrows’ property. The Tingles also began regularly trespassing on the Griders’ property. They frequently drove vehicles over the Griders’ driveway or yard to access the easement property. They walked in the Griders’ yard and stood on their porch. They went inside the Griders’ carport and used the outlet there to provide electricity for power tools. They built a structure described as a “martini deck” on the easement property. The martini deck was a platform surrounded by a railing, and it was large enough to hold a number of chairs. Stairs were built on the front and back sides of the platform. After the martini deck was built, vehicles could no longer access the lake via the easement area. Instead, vehicles had to drive over the Griders’ yard or the Barrows’ property to get to the water.

Ameren received Jeffrey’s dock application on March 23, 2005. A copy of the January 2005 warranty deed was attached to the application. This deed made it appear that the Tingles were the fee simple owners of the land encompassed by the easement. Ameren relied on the documents that Jeffrey attached to his application in deciding whether to issue the permit. Ameren officials believed that the Tingles were the owners of the land to which their dock would be attached.

On March 25, 2005, the Griders’ attorney sent a letter to the Tingles demanding that they stop trespassing on the Griders’ property. The Tingles received the letter, but their acts of trespass continued. In a letter to the Griders’ attorney, the Tingles claimed to own the land encompassed by the easement.

On August 28, 2005, Ameren issued a dock permit to Jeffrey. The permit authorized the placement of a concrete pier on the lakebed to secure the ramp for the Tingles’ dock. The permit stated, however, that placement of the dock could not “interfere with access to adjacent docks or other property. Disputes that may arise from placement of this [activity] shall be locally or legally resolved by the permit-tee....” Finally, the permit also said that “your attention is invited to general condition ‘f in said Appendix which states in part, that this permit does not convey any property rights, either in real estate or material, or any exclusive privileges, nor does it authorize any injury to property or invasion of rights of other persons.”

After receiving the permit, the Tingles installed a cement pier onto the lakebed and attached a 30-foot ramp to the pier and dock. Because of the placement of the dock, pier and ramp in relation to the shoreline, the beach area could no longer be effectively used for swimming, fishing, launching jet skis and boats, etc. After the attachment of the Tingles’ dock to the Griders’ seawall, a crack developed in the wall from top to bottom at the anchor point.

In an April 2005 letter, the Griders’ attorney had demanded that the Tingles remove the cloud on the title to the Gri-ders’ property created by the January 2005 warranty deed. Although the Tingles received the letter, nothing was done. Additional letters demanding action were sent to the Tingles in May and June 2005, with the same results.

On September 14, 2005, the Griders filed a lawsuit in the Circuit Court of Camden County, Missouri, against the Tingles; Horne-Jones; and Joan, both individually and as trustee of the Trust. The petition contained counts for quiet title, ejectment, trespass, injunctive relief, slander of title and declaratory relief. On September 28, 2005, the Tingles finally recorded a quitclaim deed and release which stated that the Tingles were “the holder of an easement for access to the Lake of the Ozarks across the real property owned by [the Griders].... ”

After a bench trial, the court entered a judgment that disposed of Counts I-IV in the following ways:

Count I — Quiet Title: The court decided that the Griders held fee simple title to Lot 1 and that Horne-Jones and Joan had no interest in said property. The Griders held an easement appurtenant to Lot 1 below the 662-foot contour line which they could use for any and all purposes, including the erection and maintenance of improvements thereon, provided such use did not interfere with the construction, operation or maintenance of Bagnell Dam. The Griders’ seawall was situated on a portion of this appurtenant easement. The Tingles held a nonexclusive easement for ingress and egress to the waters of the lake for swimming, boat launching and other transitory purposes. The court specifically decided that the easement “is not for the purpose of access to a boat dock or attaching thereto a boat dock, cables, or for the installation of any pier, deck or other permanent structure.”
Count II — Ejectment: The court decided that the Tingles had no right to maintain the boat dock ramp and martini deck located on the Tingles’ easement property or the cables attached to the Griders’ seawall and property. Therefore, the Griders were entitled to ejectment in order to have these items removed.
Count III — Trespass: The court found that the Tingles had continually trespassed, by vehicle and by foot, on portions of the Griders’ property not subject to the Tingles’ easement. With respect to the easement property itself, the court decided that the Tingles’ use of the easement for non-transitory purposes exceeded the scope of the easement and constituted trespass as well. The court found that such uses by the Tingles changed their transitory, nonexclusive easement for ingress and egress and precluded the Griders from reasonable joint use of the easement property. Therefore, the court decided the Griders were entitled to nominal damages of $1.00 for such trespasses. Count TV — Injunctive Relief: The court found that the Griders were entitled to injunctive relief due to the Tingles’ continuing trespasses. The Tingles were enjoined from attaching cables to the Griders’ seawall or property and from maintaining the martini deck, boat dock, ramp or any other improvements on Lot 1. The Tingles also were enjoined from using their easement for any purpose other than ingress or egress to the Lake of the Ozarks.

Only Jeffrey has appealed from the judgment. Additional facts necessary to the disposition of the case are included below as we address Jeffrey’s four points of error.

Point I

In Jeffrey’s first point, he contends the trial court erred by ordering the removal of the Tingles’ boat dock, ramp and piers because he and the Griders share in common the appurtenant easement granted by Power Company that authorizes the use of the surface of the lake-bed for any and all purposes, including the erection and maintenance of improvements. Jeffrey argues that he has the right to use this common, appurtenant lakebed easement so long as his use does not interfere with the activities or operation of the Power Company. Jeffrey also argues that the trial court’s ruling was beyond the scope of the pleadings. For the reasons discussed below, neither argument has merit.

Generally, there must be a dominant and a servient estate in order to create an easement. Loumar Development Co. v. Redel, 369 S.W.2d 252, 257 (Mo.1963); Denning v. Manley, 610 S.W.2d 51, 56 (Mo.App.1980). When Land Company conveyed the real estate below the 662-foot contour line to Power Company, Land Company reserved an easement to use the surface of said lands for any and all purposes that did not interfere with Power Company’s construction, operation or maintenance of the dam, power plant or appurtenant works. Thus, Land Company’s undivided block of land above the 662-foot contour line and contiguous to the lakebed constituted the dominant estate benefited by the appurtenant easement. See Paul v. Jackson, 910 S.W.2d 286, 287-88 (Mo.App.1995). Power Company’s contiguous land below the 662-foot contour line constituted the servient estate.

When the eight-acre tract of Land Company’s real estate above the 662-foot contour line was platted and sold as Lot 4, that land was still contiguous to the lake-bed and became one of the dominant estates benefited by the appurtenant easement. See Paul, 910 S.W.2d at 288. As a consequence of this conveyance, the land located at a higher elevation than Lot 4 was no longer contiguous to the lakebed. The conveyance severed the higher-elevation land from the lakefront tract that was benefited by the appurtenant lakebed easement. See Turnbull v. Car Wash Specialties, LLC, 272 S.W.3d 871, 874 n. 2 (Mo.App.2008) (easements may be terminated based upon alterations in the dominant estate); Restatement (First) of the Law of PROPERTY § 488 cmt. d (1944) (noting that “[a]n easement may be so created as to benefit the one in whose favor it was created as the possessor of a given tract of land while giving him no benefit as the possessor of another and different tract”).

In 1977, the Hamiltons sold all of the lakefront property in Lot 4 to the Ston-itsches. Once again, the identity of the land that constituted the dominant estate benefited by the appurtenant lakebed easement was changed by that sale and conveyance. Insofar as relevant here, the Stonitsches’ two-acre tract contiguous to the lakebed became a dominant estate benefited by the appurtenant lakebed easement. Because the six-acre tract retained by the Hamiltons was no longer contiguous to the lakebed, their retained property was no longer part of a dominant estate benefited by the appurtenant easement. After that transfer of ownership, the Hamiltons’ easement rights were limited to the express easement contained in the warranty deed conveying the property to the Ston-itsches.

Citing Karches v. Adolph Inv. Corp., 429 S.W.2d 788 (Mo.App.1968), Jeffrey argues that the Hamilton’s sale of all of the lakefront property in Lot 4 did not extinguish their right to share the appurtenant lake-bed easement with other lakefront property owners. That case does not support Jeffrey’s argument.

In Karches, the Schuermann Company (Schuermann) developed the 29-lot Lake Sherwood subdivision. Subdivision lot owners were able to reach Lackland Road via East and West Sherwood Drives. These two north-south private roads abutted lots on the east and west sides of the subdivision and joined Lackland Road on the north. The recorded subdivision plat reserved to Schuermann the right to use East and West Sherwood Drives. Id. at 789-90. Schuermann sold 34 acres of land just south of the subdivision to the Adolph Investment Company (AIC). The AIC property abutted both East and West Sherwood Drives. Id. at 789-91. AIC filed a plat to subdivide its land into 42 lots, all of which would access Lackland Road via East and West Sherwood Drives. Id. at 789. The Lake Sherwood subdivision trustees filed suit to obtain a declaratory judgment and injunctive relief to limit the rights of AIC and its assignees to use East and West Sherwood Drives. Id. After the trial court ruled in favor of AIC, the trustees appealed. The appellate court noted that AIC’s property constituted the dominant estate benefited by the appurtenant easement relating to the use of East and West Sherwood Drives. Id. at 791. In upholding the trial court’s judgment, the appellate court relied upon the principle that, except as limited by the terms of transfer or the manner or terms of the creation of an appurtenant easement, those who succeed to possession of a subdivided portion of a dominant estate also succeed to the privileges of using the servient estate as authorized by the easement. Id.

In Karches, the land purchased by AIC abutted both East and West Sherwood Drives. Thus, AIC’s land was the dominant estate that was benefited by an appurtenant easement on contiguous land used as a roadway. The division of AIC’s land into smaller parcels did not sever those parcels from the dominant estate. In the case at bar, however, the Hamiltons’ sale of all of the lakefront property in Lot 4 to the Stonitsches did sever the remaining six acres from the dominant estate benefited by the appurtenant lakebed easement on contiguous land. Therefore, Karches has no application here. Jeffrey’s first argument is based upon the premise that the portion of Lot 4 which he owns is a dominant estate still benefited by the appurtenant lakebed easement. Because that premise is incorrect, the argument fails.

Jeffrey’s second argument is that the trial court’s ruling was beyond the scope of the pleadings. We find no merit in this assertion. The Griders’ petition contained counts for quiet title, ejectment, trespass, injunctive relief, slander of title and declaratory relief. The evidence presented at trial was relevant to the issues raised by those theories of recovery. In particular, much of the focus of the trial was on whether the Tingles’ conduct exceeded the scope of any easement rights which they did have. If an easement user exceeds his rights, either in the extent or manner of his use, he is guilty of trespass to the extent of the unauthorized use. Maasen v. Shaw, 133 S.W.3d 514, 520 (Mo.App.2004); Macios v. Hensley, 886 S.W.2d 749, 752 (Mo.App.1994). If the actions outside the scope of the easement are capable of repetition, the servient owner may be awarded injunctive relief. Maasen, 133 S.W.3d at 520. In the judgment, the court dismissed the counts dealing with slander of title and declaratory relief. The court granted the Griders’ requests for relief with respect to the quiet title, ejectment, trespass and injunctive relief counts. Based upon our review of the record, there is no indication that the trial court granted any relief to the Griders based upon a theory that was outside of the pleadings. Point I is denied.

Point II

In Jeffrey’s second point, he contends the trial court erred by granting relief to the Griders because, “assuming for the purpose of argument that issues of nuisance were before the trial court, [the Griders] failed to show any substantial interference with their property rights which is a required element of a cause of action for nuisance.” After reviewing the transcript, we find no indication that the trial court was presented with evidence bearing only on a nuisance theory of recovery, rather than one of the other theories pled in the petition. In the judgment, the trial court granted the Griders’ requests for relief based upon the quiet title, ejectment, trespass and injunctive relief counts in the petition. There is nothing in the record before this Court to indicate that the Gri-ders sought relief based upon a nuisance theory or that the trial court granted any relief based upon such a theory. Because the record fails to support Jeffrey’s contention, Point II is denied.

Point III

In Jeffrey’s third point, he contends the trial court erred by ordering the removal of the Tingles’ boat dock, ramp and piers because he holds an exclusive easement over the Griders’ property. According to Jeffrey, this exclusive easement authorized him to locate and access a boat dock in conjunction with the easement, and his actions did not exceed the scope of his easement. We find no merit in this argument.

We first address whether or not the easement reserved by the Hamiltons in the 1977 warranty deed is exclusive. In order for the easement to be exclusive, the language used to create it must refer “to the exclusion of the servient tenement from participation in the rights granted to the dominant owner.” Maasen v. Shaw, 133 S.W.3d 514, 518 (Mo.App.2004); see Weis v. Miller, 805 S.W.2d 683, 684 (Mo.App.1990) (language in subdivision plat stating that two streets were reserved “for the exclusive use and benefit of the owners of lots in the subdivision” created an exclusive easement); Robert Jackson Real Estate Co., Inc. v. James, 755 S.W.2d 343, 346 (Mo.App.1988) (holding that the easement at issue was non-exclusive because neither the language used in the deed that created the original easement nor any subsequent conveyances provided for exclusive use by the easement holders).

Neither the 1977 warranty deed conveying VES to the Stonitsches nor the 2000 warranty deed conveying Lot 1 to the Gri-ders contain any language excluding the owner of the servient estate from participating in the rights granted to the dominant owner. Therefore, the trial court correctly decided that the Tingles’ easement was non-exclusive. As the servient owners, the Griders retained the privilege of sharing the benefits conferred by the easement. Maasen, 133 S.W.3d at 518.

We next address what benefits the Tingles’ easement actually conferred. In interpreting the meaning of an easement, the intent of the parties is controlling. Gowen v. Cote, 875 S.W.2d 637, 641 (Mo.App.1994). When there is doubt as to the meaning, surrounding circumstances may be considered. Id. The language used in the 1977 warranty deed from the Hamiltons to the Stonitsches did not specify either the purpose of, or the uses for, the easement. Looking solely at the language of the deed, it is impossible to determine whether the easement was intended for ingress and egress, parking, drainage or some other purpose. The omission of any specific purposes or uses rendered the conveyance incomplete or ambiguous on its face. Maasen, 133 S.W.3d at 519. Therefore, it was appropriate for the trial court to consider extrinsic evidence to determine the parties’ intent. Id.

Although Joan was a party to this action, she did not testify. Therefore, the trial court was not presented with any testimony from her about the purpose for which the Hamiltons retained the easement. Cf. Hoelscher v. Simmerock, 921 S.W.2d 676, 678 (Mo.App.1996) (grantor of easements testified that he intended to give the grantees an easement for lake access and another easement to maintain a boat dock). There was, however, abundant circumstantial evidence bearing on that issue for the trial court to consider. Between 1977 and 2004, the easement property had been used by Hamilton family members and their guests to access the water for fishing or swimming. In addition, this group of individuals had used the easement five or six times each summer to launch and temporarily beach small rented boats. During this same 27-year time period, the owners of Lot 1, their family members and guests likewise had used the easement property for swimming, fishing, launching boats and jet skis and temporarily parking such watercraft on the sandy shore. When the Griders inspected Lot 1 prior to buying the property, the easement was completely overgrown. It appeared to Wayne that the easement property had not been used for anything other than obtaining access to the lake. In Jeffrey’s testimony, he conceded that he was asking the court to deny the Griders the right to jointly use the easement property, even though such joint use had been occurring since the easement was created.

The court also was presented with evidence concerning the 1999 lawsuit Joan filed against the then-owners of Lot 1. Joan’s petition stated that the easement was used for “ingress to and from the Lake of the Ozarks” and that the defendants were interfering -with such use. This was strong circumstantial evidence of what the Hamiltons, as grantors, intended when they reserved the easement in the 1977 warranty deed. In addition, the deed of release executed by the Tingles and recorded in September 2005 acknowledged that the Tingles were the holders “of an easement for access to the Lake of the Ozarks across the real property owned by [the Griders]-” Finally, Jeffrey presented no evidence that the easement property had ever been used for boat dock purposes before he became the owner of Lot 4. He did not claim the right to use the easement property for that purpose until 2004. When he did so, he based that claim upon the false assertion that the Tingles owned the property encompassed by the easement. One such example occurred during Jeffrey’s conversations with Fred Buck in 2004. Another example occurred in 2005 when Jeffrey obtained a warranty deed purporting to convey fee simple title to the easement property to the Tingles. That deed was executed by Joan individually and in her capacity as trustee of the Trust, even though neither grantor had any interest in Lot 4 that could be conveyed to the Tingles. When Jeffrey applied to Ameren for a boat dock permit, a copy of the January 2005 warranty deed was attached to the application. This deed made it appear that the Tingles were the fee simple owners of the land encompassed by the easement. Ameren relied on the documents that Jeffrey attached to his application in deciding whether to issue the permit. Ameren officials believed that the Tingles were the owners of the land to which their dock would be attached. In short, Jeffrey’s actions convincingly demonstrated that he was not relying upon the easement as the basis for his claim that he was entitled to put a boat dock on the lake.

After considering all of the foregoing evidence, the trial court determined that the Tingles held a non-exclusive easement for ingress and egress to the waters of the lake for swimming, boat launching and other transitory purposes. That factual finding is supported by substantial evidence. See Maasen, 133 S.W.3d at 519. As noted above, the Tingles’ easement was non-exclusive. The Griders, as owners of the servient estate, retained the privilege of sharing the benefits conferred by the easement. Id. at 518. Therefore, they retained the privilege of using the easement property for such transitory purposes as launching boats and jet skis, temporarily parking such watercraft on the shoreline, swimming, boating and fishing. This was the same use the Griders and their predecessors in title had made of the easement property for over 25 years. In addition, the Griders retained the rights of full dominion and use of the easement property for any other purposes that did not impede the Tingles’ rights of ingress and egress. Southern Star Central Gas Pipeline, Inc. v. Murray, 190 S.W.3d 423, 430 (Mo.App.2006).

The court also decided that the easement “is not for the purpose of access to a boat dock or attaching thereto a boat dock, cables or for the installation of any pier, deck or other permanent structure.” We agree. An easement for ingress and egress provides a right of passage and allows the owner of the dominant estate unlimited reasonable use for that purpose. Bedard v. Scherrer, 221 S.W.3d 425, 429-30 (Mo.App.2006); Maasen, 133 S.W.3d at 519. Such an easement does not confer the right to place and access a boat dock, attach the dock to the shore using cables or the install piers, ramps or other structures. See Macios v. Hensley, 886 S.W.2d 749, 752 (Mo.App.1994).

In Macios, the plaintiffs had an easement for ingress and egress to the lake bed and lake. They argued that this easement authorized them to place and access a boat dock on the surface of the water abutting the defendants’ property. The trial court did not agree. Id. at 751. On appeal, that ruling was affirmed. The appellate court held that the plaintiffs had an easement for ingress and egress to the lake, which included the right to use the easement to launch boats. Id. at 752. That easement, however, did not authorize the plaintiffs to place and access a boat dock on the lake. The court explained that the plaintiffs did not acquire the easement for docking purposes and that docking boats was a different quality of use than entering and leaving the water. Id. “The one involves going across land in a transitory manner; the other involves placing an obstruction on the land.” Id. The court also noted that “[t]he evidence established that the plaintiffs’ dock and boat affixed thereto created and imposed a substantial burden on the servient estate making it very difficult for the defendants to use their land and dock to access the lake.” Id.

We reach the same conclusion here. The Tingles’ easement for ingress and egress did not authorize them to place a boat dock on the surface of the lake, access that dock or install a concrete pier and ramp to the dock. These actions exceeded the scope of their easement and created a new and substantial burden on the Gri-ders’ servient estate. Because of the placement of the dock, pier and ramp in relation to the shoreline, the Griders could no longer effectively use the beach area for launching jet skis and boats, swimming or fishing. The attachment of the Tingles’ dock to the Griders’ seawall also damaged that structure. These actions by the Tingles constituted trespass, as the trial court decided, and entitled them to injunctive relief. Macios, 886 S.W.2d at 752.

Jeffrey argues that Hoelscher v. Sim-merock, 921 S.W.2d 676 (Mo.App.1996), supports his assertion that his actions were within the scope of the easement. After reviewing that decision, however, we find it to be factually distinguishable.

In Hoelscher, the Bleckes owned two lots at the Lake of the Ozarks. Lot 62 was a first-tier lot with approximately 50 feet of lake frontage. Lot 63 was a second-tier lot with no direct access to the lake. It was above and behind Lot 62. In 1988, the Bleckes sold part of Lot 63 to the Simmerocks. The deed granted the Sim-merocks three easements. The first easement was for ingress and egress to Lot 63 and the parking of motor vehicles. The second easement, which was not located on Lot 62, granted the Simmerocks access to the lake (lake access easement). The Sim-merocks used a series of wooden steps over this easement to access the water. The third easement was located on Lot 62. It was described as being along the water’s edge and extending an additional 15 feet from the water’s edge corner of the lake access easement. When the Simmer-ocks bought Lot 63, a boat dock was already floating on the water abutting Lot 62. In 1989, the Bleckes sold Lot 62 to the Hoelschers. The deed conveying Lot 62 stated that it was subject to easements of record. A few months later, the Sim-merocks replaced the dock and installed a ramp that attached to the shoreline on Lot 62. In 1994, the Hoelschers brought suit to have the third easement extinguished and to obtain damages from the Simmer-ocks for trespass because they had constructed and used the boat dock. Id. at 677-78. At trial, Mr. Blecke and Ms. Sim-merock gave the following testimony to establish the location and purpose for the third easement:

Mr. Blecke testified that he intended to give the Simmerocks a ten-foot easement “to get them to the lake” and a fifteen-foot easement “for a boat dock.” He intended the third easement to be located in the northeast corner of Lot 62, running fifteen feet along the shoreline. The purpose of this third easement was to give the Simmerocks “room to put a dock in front of this 10 foot down to the lake.” Ms. Simmerock testified that she believed the deed gave her “a 10-foot easement going to the lake, then an extension to the left 15 more.” She believed the purpose of the third easement was to allow her room for a boat dock.

Id. at 678. The trial court found that the Simmerocks were entitled to a 15-foot easement across the shoreline of the Hoelschers’ property, beginning at the corner of the lake access easement. The Hoelschers appealed.

The western district of this Court affirmed the trial court’s judgment. The appellate court decided that the trial court’s decision was supported by the evidence:

[T]he location of the third easement was described in reference to the lake access easement. The lake access easement is a ten-foot right-of-way running from the Simmerocks’ property to the shoreline. Its purpose is to give the Simmerocks access to the lake, and does not cross the Hoelschers’ property. The third easement was then created to give the Simmerocks room to maintain a boat dock. According to the deed, the third easement extends fifteen feet along the shoreline of Lot 62, starting from the waters edge corner of the lake access easement. The testimony of Mr. Blecke, the grantor of the easements, and Ms. Simmerock, a grantee, reinforce the language of the deed. Mr. Blecke testified that he intended to give the owner of Lot 63 an easement for access to the lake and another easement to maintain a boat dock fifteen feet across the property of Lot 62, leaving the owner of Lot 62 thirty-five feet for his own dock. Ms. Simmerock similarly testified that she believed the deed granted her a fifteen-foot easement along the shoreline of Lot 62 for the maintenance of a boat dock. The intentions of the parties are supported by the usage of the easement. A boat dock was in place in front of the lake access easement when Mr. Blecke conveyed part of Lot 68 to the Simmer-ocks. The Simmerocks used this dock for approximately a year and then replaced it with one which was slightly larger. Both docks were used by the Simmerocks in conjunction with the lake access easement.

Id. at 679. Because the grant creating the third easement did not declare a specific purpose for the easement, it was appropriate for the trial court to consider how that easement had been previously used. Id. The appellate court concluded by stating:

[T]he deed grants the third easement in general terms and the Simmerocks are entitled to reasonable use of it. Certainly, a natural and reasonable use of an easement along the shoreline of a lake includes the attachment of a boat dock. The Simmerocks’ usage of the third easement as such supports this characterization.

Id. at 680 (italics added).

Jeffrey argues that the italicized language in Hoelscher means that the Tingles are entitled to use their ingress and egress easement for the attachment of a boat dock. We disagree. Jeffrey ignores the fact that, in Hoelscher, the Simmerocks had a completely separate easement for ingress and egress to the lake over property other than Lot 62. Hoelscher, 921 S.W.2d at 679. There was evidence in Hoelscher that the third easement was specifically intended to be used for the purpose of allowing the Simmerocks to attach a boat dock to the shoreline on Lot 62. Id. at 678. Moreover, there was evidence that the easement had been used for that purpose from the inception of the third easement’s creation. Id. No such evidence of intent or usage was presented in the case at bar. Instead, the circumstantial evidence before the trial court supported the inference that the Tingles’ easement was intended only for the purpose of securing ingress and egress to the lake and related, transitory uses such as swimming, launching boats, etc. Thus, Hoelscher does not support Jeffrey’s argument. Point III is denied.

Point TV

In Jeffrey’s fourth point, he contends again that the relief granted by the trial court was beyond the scope of the pleadings. Jeffrey argues that the trial court’s order that the boat dock, ramp and pier be removed is beyond the scope of the pleadings because they are located on the lakebed easement abutting Lot l. We disagree.

Jeffrey argues that the Griders’ petition did not make any allegations regarding improvements located beyond the boundaries of that lot. Assuming arguen-do that is true, the issue of who was authorized to use the appurtenant lakebed easement was tried by implied consent. At the outset of the trial, the deed from Land Company to Power Company containing the appurtenant lakebed easement language was admitted by stipulation of the parties. If that evidence was beyond the scope of the pleadings, Jeffrey was obligated to object to the admission of Ex. 37. He did not do so. Failure to timely object to evidence beyond the scope of the pleadings constitutes implied consent for a determination of the issues raised. Schuchmann v. Air Services Heating & Air Conditioning, Inc., 199 S.W.3d 228, 236 (Mo.App.2006).

Jeffrey ignores the admission of this exhibit and instead focuses on the later admission of Ex. 49. This exhibit was a voluminous document that included the Land Company’s deed to Power Company. This copy of the deed also contained the appurtenant lakebed easement language. Jeffrey claims he objected to evidence beyond the scope of the pleadings when Ex. 49 was introduced. The record does not support that assertion. When Ex. 49 was offered in evidence, Jeffrey’s counsel stated that he had “no objection” to its admission. This resulted in a waiver of any claim of error Jeffrey may have had concerning this exhibit. Dorman v. State Bd. of Registration for Healing Arts, 62 S.W.3d 446, 454 (Mo.App.2001). The objection made by Jeffrey’s counsel was only asserted when the Griders’ counsel began to question the witness about the specific appurtenant lakebed easement language in the exhibit. At that point, the exhibit already had been admitted. When a written document is admitted in evidence, the entire contents of the document are admitted in the absence of specific objections to admit it only on a partial basis. Rob-Lee Corp. v. Cushman, 727 S.W.2d 455, 457 (Mo.App.1987). In addition, the appurtenant lakebed easement language in Ex. 49 was cumulative of Ex. 37, which had been admitted by stipulation.

We also note that Jeffrey chose to introduce his own evidence on this subject. During the Griders’ case-in-chief, the court took a recess. When the recess ended, Jeffrey was permitted to call Joe Daley as a witness out of order. Daley was a senior real estate representative for Ameren. Jeffrey’s counsel asked Daley who owned the lakebed of Lake of the Ozarks. When the Griders’ counsel objected, Jeffrey’s counsel reminded the court that Ex. 37, the deed from Land Company to Power Company, had already been admitted in evidence. Thus, it is evident that both parties sought to have the trial court determine what rights they had to use the lakebed that was subject to the appurtenant easement reserved by Land Company. “It is settled law that a party may not complain on appeal of an alleged error in which he joined, acquiesced or invited by his conduct at trial.” Barnes v. Morris Oil Co., 263 S.W.3d 697, 702 (Mo.App.2008). The position Jeffrey took at trial has been carried forward on appeal. Relying upon Ex. 37, Jeffrey argues in his brief that he is the holder of “an easement to use the bed of the Lake of the Ozarks for all purposes including the location of improvements as long as it does not interfere with the activities or operation of the dam, by [Power Company] or its successors.” Point IV is denied.

The judgment of the trial court is affirmed.

BARNEY, J., and SCOTT, P.J., Concur.

APPENDIX

      . A number of persons mentioned in this opinion share the same surname. When referred to individually, such person’s given name will be used for clarity.

      . All references to rules are to Missouri Court Rules (2009).

      .As shown on the first attached subdivision survey, Shawnee Bend No. 4 encompassed all of the land from Niangua Road on the west to the 662-foot contour line on the east. This lot, which is identified by the large number 4 above the words "Hamilton Circle” on the survey, is what the Hamiltons purchased in 1959. This Lot 4 should not be confused with the smaller VES lot 4, which was platted after the Stonitsches purchased all of the Hamil-tons’ lakefront property and created VES.

      . The Griders owned all of the shares of WLW Land Development Corp. The Lisses sold Lot 1 to the corporation, which reconveyed the lot to the Griders.

      . Ameren is the successor to Power Company.

      . The Appendix was attached to the permit. General Condition f states: "That this permit does not convey any property rights, either in real estate or material, or any exclusive privileges; and that it does not authorize any injury to property or invasion of rights or any infringement of Federal, State, or local laws or regulations, nor does it obviate the requirement to obtain State or local assent required by law for the activity authorized herein.”

      . The judgment stated that Count V (slander of title) and Count VI (declaratory relief) were dismissed by the court.

      . This principle does not apply to easements in gross. See, e.g., Wallace v. Snider, 134 S.W.3d 118, 119 (Mo.App.2004); Gowen v. Cote, 875 S.W.2d 637, 640 (Mo.App.1994).

      . We use the phrase "a dominant estate” because there were many parcels of property contiguous to the 662-foot contour line that were benefited by the appurtenant lakebed easement.'

      . The nature of the use authorized by that express easement is the subject of Jeffrey's third point on appeal and will not be discussed further here.

      . The principle in Karches would apply to purchasers like the Griders, who purchased VES Lot 1 after the Stonitsches subdivided their land. Lot 1 became its own dominant estate benefited by the appurtenant lakebed easement on land contiguous to the Griders' lot.

      . Jeffrey’s brief identifies only two instances in which he objected to testimony as beyond the scope of the pleadings. The first instance involved an objection to Teril Buck’s testimony about what use the Griders, their relatives and friends made of the easement property. That testimony was relevant to the issue of the purpose and scope of the easement retained by the Hamiltons, as well as whether or not the easement was intended to be exclusive. The second instance involved an objection to a question about easement language contained in Ex. 49. This exhibit was an index of all of the deeds in the chain of title to Lot 1 from the date the parcel of property encompassing Lot 1 was acquired by Power Company. This exhibit contained the same appurtenant lakebed easement language in the deed from Land Company to Power Company. This deed, which was identified as Ex. 37, was admitted by stipulation of the parties at the beginning of the trial. When Jeffrey’s second objection was made, both Ex. 37 and Ex. 49 were in evidence with no objection being raised to the admission of either one. Therefore, Jeffrey waived any claim of error he may have had with respect to the appurtenant lakebed easement language contained in Ex. 37 or Ex. 49. Dorman v. State Bd. of Registration for Healing Arts, 62 S.W.3d 446, 454 (Mo.App.2001).

      . The holdings in these Missouri cases are consistent with the general rule recited in this secondary authority: "Absent an express provision in a grant or reservation, an easement is not an exclusive interest in the burdened land. The servient owner retains all rights in the property, subject only to the easement.” (Footnote omitted.) Jon W. Bruce & James W. Ely, Jr., The Law of Easements and Licenses in Land § 8:20 (West 2001).

      . Jeffrey cites Denning v. Manley, 610 S.W.2d 51 (Mo.App.1980), to support his argument. In Denning, the appellants argued that the trial court's judgment required them to remove a concrete seawall. Id. at 57. The appellate court rejected that argument because "the disposition of the seawall, while perhaps implicit in the plaintiff lot owners’ original cause, is not addressed in the judgment, and we express no opinion thereon." Id. at 58. We fail to discern how this case advances Jeffrey’s argument.