Rachel Hall appeals the trial court’s grant of partial summary judgment in favor of the ContiGroup Companies, Inc., et al., on certain of her nuisance claims. Everett and Cindy Peters, co-plaintiffs with Rachel Hall, also contest two of the trial court’s evidentiary rulings in the jury trial of their nuisance claims. The ContiGroup Companies have filed a cross-appeal that is contingent on any reversal based on the appeal of Ms. Hall and the Peters. The judgment is affirmed in part and reversed in part.
Background
Plaintiffs Everett and Cindy Peters are a married couple who reside in Gentry County, Missouri. Mrs. Peters’s daughter, Rachel Hall, lived with the Peters during her childhood. She went on active duty with the military in June 2002. The Defendants ContiGroup Companies, Inc., Premium Standard Farms, Inc., and PSF Group Holdings, Inc., (hereinafter collectively referred to as “the ContiGroup defendants”) operate several hog farm facilities in various northwestern Missouri counties, including Gentry County.
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In 1996, 108 residents of northwest Missouri, including Everett and Cindy Peters, filed a nuisance lawsuit against Continental Grain Company, Inc., and two other defendants in St. Louis County Circuit Court.
See Hanes v. Cont’l Grain Co.,
On August 5, 2002, Mr. and Mrs. Peters and thirty-four other former Hanes plaintiffs filed another nuisance lawsuit against ContiGroup (or Continental) 1 and two other companies in Jackson County Circuit Court. That lawsuit was the genesis of the case we consider here. The petition alleged that despite the finding of a temporary nuisance in Ham.es three years earlier, the defendants “continue to maintain a nuisance in close proximity to the plaintiffs property” in that “ill-smelling odors and/or contaminated wastewater continue to escape” onto the plaintiffs’ property.
On that same date, a group of twenty-three spouses and children of the former Hams plaintiffs also brought a nuisance lawsuit against the same group of defendants. Rachel Hall was a plaintiff in that lawsuit. The petition alleged that “[tjhough the plaintiffs herein were not parties to the Hanes case, they are nonetheless adversely affected by the defendants’ actions and are similarly situated to [those plaintiffs who were compensated by an award].” The petition also alleged that the defendants have failed to materially abate the nuisance even though over three years have elapsed since the Hanes judgment. Specific to Ms. Hall, the petition alleged that “[u]ntil enlisting in the Armed Forces ... Rachel Hall resided at her parents’ residence located in Gentry County ... and retains her place of residence at their address ... in close proximity to the defendants’ [facilities].”
On motion of the ContiGroup defendants, the court severed the plaintiffs’ claims on the basis that they did not arise out of the same series of transactions or occurrences and because joinder would result in prejudice to the defendants. The court then joined the plaintiffs’ claims into groups by household (ie., the spouses’ and children’s claims were joined with those of their respective spouse or parents). The first of those lawsuits to go to trial was the one brought by Mr. and Mrs. Peters, which had been joined with Rachel Hall’s. The Peters’s specific allegations were that the defendants’ farming operations at their Homan facility in Gentry County constituted an abatable, temporary nuisance in that odors emanating from it substantially interfered with the Peters’s use and enjoyment of their property. The Peters sought actual and punitive damages.
Prior to trial, the ContiGroup defendants moved for partial summary judgment as to Rachel Hall’s nuisance claims that arose prior to May 17, 1999, on the basis that such damage claims had already *385 been litigated by Mr. and Mrs. Peters in the earlier Hams lawsuit and were barred from the new action. Following a hearing, the court granted the motion, finding that Rachel’s pre-1999 claims were barred by res judicata. The court allowed Rachel’s post-Hanes claims to go forward, finding that she retained her legal residence in Missouri and occupied the home from time to time even after joining the Navy.
The trial proceeded over a period of three weeks. At the close of all the evidence, the ContiGroup defendants moved for directed verdict claiming that the plaintiffs failed to make a submissible case either as to liability or punitive damages. The court denied the defendants’ motions. The jury returned a verdict in favor of ContiGroup, and the court entered judgment accordingly.
Mr. and Mr. Peters and Rachel Hall (collectively “the plaintiffs”) appeal. The ContiGroup defendants cross-appeal.
Motion to Dismiss Cross-Appeal Denied
The Peters have filed a motion to dismiss the ContiGroup defendants’ cross-appeal, alleging that the notice was not timely filed and that the cross-appeal was barred because the defendants failed to seek post-trial relief. The defendants respond that the plaintiffs’ calculation of the filing deadline failed to take into account a State holiday and that Missouri law permits a prevailing party to take a conditional cross-appeal without first moving for post-trial relief. This court notified the parties of our intent to take that motion with the case. Because our rulings in this case make it unnecessary to consider the cross-appeal, the motion to dismiss is denied.
Legal Framework: Nuisance
“An action for private nuisance rests on tort liability....”
Vermillion v. Pioneer Gun Club,
A nuisance can be temporary or permanent.
Cook v. DeSoto Fuels, Inc.,
*386 Point I: Rachel Hall’s Pre-1999 Claims
In the first point, Rachel Hall argues that the trial court erred in granting defendants a partial summary judgment on Rachel Hall’s claims prior to May 17, 1999, on the basis that they were litigated in the earlier Hanes case and, thus, were barred under the doctrine of res judicata.
Standard of Review
The propriety of a summary judgment is a question of law that we review
de novo. ITT Commercial Fin. Corp. v. Mid-Am. Marine Supply Corp.,
Discussion
The common-law doctrine of
res judicata
precludes the same parties or then- privities from relitigating a claim formerly made.
Chesterfield Vill., Inc. v. City of Chesterfield,
Rachel Hall contends that the third factor is missing in that she was neither a named party in the
Hanes
lawsuit nor in privity with others who were named parties, citing
Lomax v. Sewell,
Rachel Hall did not testify in the Hanes case. There was testimony by the Peters in Hanes about the harmful effects of the nuisance on Rachel. ContiGroup says this means that they were seeking damages for her as well. The Peters testified that the offensive odors caused Rachel to remain inside the home as much as possible; prevented her from helping her parents with the farm; strained intra-family relationships; made Rachel nauseous on occasion; and interfered with her relationships with *387 friends. The plaintiffs responded that minimal testimony about Rachel’s circumstances did not alter the fact that she was not a plaintiff in Hanes and received no money from that judgment.
The ContiGroup defendants cite
Ellis v. Kansas City, St. Joseph, & Council Bluffs Railroad Co.,
The defendants appear to misunderstand or misinterpret Ellis. We do not find support for their broad interpretation of the case. In Ellis, the wife of the occupant of a dwelling house was made sick by noxious odors arising from a decomposing horse which had been killed by the defendant’s train and left lying near the plaintiffs’ residence. Id. at 133. The question in Ellis was whether the husband’s cause of action for injuries his wife sustained from the nuisance survived to the wife after the husband’s death. Id. at 135. The Court first distinguished between a public and a private nuisance, stating that a public nuisance was injury to the community and private nuisance was injury to specific lands. Id. After finding that the railroad caused a private nuisance, the Court explained that the right of action was in the husband, because he was the occupier and the lawful possessor of the house. Id. The Court held that because the husband alone was considered to be the possessor of the property, only he could bring a claim for his wife’s injuries:
[T]he cause of action accrued to the occupier or tenant of the property affected by the nuisance ..., and in a suit for damages occasioned thereby, he can recover for damages to the members of his family, without making them parties. We have not been able to find any authority which would authorize us to declare that each member of the family of the occupant of a house affected by a private nuisance could maintain an action therefor ....
Id. at 136 (emphasis added) (citations omitted). The Court observed that the plaintiff in a nuisance action, “must prove possession of the house,” as well as the injurious act and damages. Id. Thus, the Court found no error in the trial court’s action in directing a verdict for the defendant. 4
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The defendants say that
“Ellis’s
rule of pleading and proof in nuisance actions” has never been abrogated. We disagree. We are of the opinion that
Ellis
has been effectively overruled by
McCracken v. Swift & Co.,
[W]e may add we do not understand that the [trial] court intended to adopt the decision, in Ellis v. K. C., etc., R. R., that, where the wife ... was made sick by the stench arising from the [nuisance], she could not, in such case, recover damages for her sickness and injuries. That decision was rendered before the adoption of our Married Woman’s Act.
Id.
at 92. The Court then quoted
United States Smelting Co. v. Sisam,
The confusion surrounding
Ellis
stems from the fact that the old common law of nuisance in effect at the time was strictly concerned with damage to the land; thus, a cause of action in nuisance belonged only to the rightful possessor of the property.
Ellis,
In
Hanes
(the appeal of the Peters’s earlier nuisance case), the defendants claimed that certain plaintiffs failed to make a submissible case of nuisance because “they did not have any ownership or possessory rights in any property affected by the nuisance.”
We find that a person who rightfully occupies but does not oivn a home may sue for injuries caused by a temporary nuisance. In a temporary nuisance action, the damages are for personal injuries inflicted upon the person occupying the property. See, e.g., McCracken v. Swift & Co.,265 S.W. 91 , 92 (Mo.1924).
Id.
at 5 (emphasis added). By contrast, damages for a
permanent
nuisance involve the diminution in value of the property; thus, one seeking damages for a
permanent
nuisance must have a property interest.
Id.
The court noted the finding in
Ellis
that the husband could bring a nuisance claim for his wife’s illness, but stated “[w]e do not read
[Ellis
] as mandating a possessory or ownership interest in a property in order to bring a cause of action for temporary nuisance.”
Id.
Thus, under
Hanes,
while a permanent nuisance is still dependent upon property ownership, the cause of action for a temporary nuisance can be maintained by an
occupier
of the property with no ownership interest. See
id. (citing McCracken,
We conclude that the holdings in Hanes and McCracken refute defendant’s contention. Although a householder has brought his own cause of action for damages, including damages related to his distress caused by observing the discomfort and injuries suffered by members of his family, those family members are not barred by res judicata from bringing their own claims. Thus, Rachel, as an occupant of the Peters’s residence, possessed her own separate cause of action for temporary nuisance based on the direct personal injuries she sustained prior to May 17,1999.
The defendants assert that a child necessarily lacks a sufficient property interest to bring a nuisance claim. In a supplemental letter, defendants cited
Swearingen v. Long,
The answer to whether a minor child occupying premises affected by nuisance may bring a nuisance action (with appointment of next friend) varies by jurisdiction. The consensus seems to be “yes.”
See, e.g., Bowers v. Westvaco Corp.,
The answer to this question, understandably, seems to be closely related to the way the particular state handles the question of whether it is sufficient to be a mere “occupier” of the property to bring such a claim. Thus, we conclude, on the basis of McCracken and Hanes, that a child, as an occupier of the propei'ty, has the right to bring such a claim in Missouri. We find no authority to support the notion that a minor child is barred from later pursuing her own temporary nuisance claim if not joined in a prior suit for the same nuisance.
Based on the foregoing, we conclude that Ms. Hall had a cause of action for her loss of use and enjoyment that was not asserted in Hanes. Now that she is of the age of majority, she may assert it herself.
Point II. Use of Power-Point Slide
The Peters claim in the second point that the trial court erred in permitting the defendants to display a power-point slide over plaintiffs’ objection in opening statement and to again display it and discuss it in closing argument. The plaintiffs say the slide misstated the plaintiffs’ burden of proof and misled the jury as to the elements of a private temporary nuisance, in that it referred to “offensiveness” and “frequency,” which are not required elements.
In opening statement, defense counsel displayed a power-point slide to the jury. 6 Referring to that slide, counsel said the issues to be discussed included whether the odor from the Homan farm was “so offensive” and “so frequent” that it substantially interferes with the Peters’s use and enjoyment of their property. The Peters objected, contending that the slide misstated the law of nuisance by improperly suggesting that “frequency”.and “offensiveness” are required elements of a nuisance claim. The court overruled the objection. The slide was not introduced into evidence. ContiGroup referred to the frequency and offensiveness of the odors during questioning at trial without objection. The Peters say they did object off the record to ContiGroup’s use of the slide in closing argument.
A trial court’s ruling on objections to statements made by counsel during argument are reviewed for an abuse of discretion.
Nelson v. Waxman,
The Peters complain about statements that the odors had to be “so offensive” and “so frequent” that they substantially interfered with the plaintiffs’ use and enjoyment of their property. A nuisance is defined as “a
substantial
interference with the use and enjoyment of one’s property.”
Hanes,
The court did not err in overruling plaintiffs’ objection to use of the slide in opening statements, because it did not misstate the law or mislead the jury. Even if the slide was improper, the plaintiffs do not demonstrate that this resulted in prejudice that “materially affect[ed] the merits of the action” so as to warrant reversal.
See
Rule 84.13(b);
Tinsley,
The plaintiffs acknowledge that their only objection to the slide in
dosing argument
was made off the record. A party serious about an objection should make sure that the objection gets on the record, or that they obtain a stipulation from the opponent that the objection was made (and that the objection was of a specific nature).- By failing to object on the record, the plaintiffs failed to preserve these claims. The plaintiffs say that when an argument is so “obviously false and manifestly prejudicial upon every consideration,” it is unnecessary to repeat an objection “when [opposing] counsel [has been] encouraged by the Court’s approval of the offending statement,” quoting
Kelley v. Hudson,
Alternatively, the Peters ask for plain error review. “Plain errors affecting substantial rights may be considered on appeal, in the discretion of the court, ... when the court finds that mani
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fest injustice or miscarriage of justice has resulted therefrom.” Rule 84.13(c). “Plain error is evident, obvious, and clear error.”
Estate of Werner,
Point III: Exclusion of Irrelevant, Collateral Evidence
In their third point, the Peters contend that the trial court erred in denying their request to confront Robert Manly, former president of Premium Standard Farms, with his pleadings in a separate, unrelated “nuisance” lawsuit, 7 which, they say, amounted to a prior inconsistent statement and could have been used to impeach his testimony in this lawsuit.
Before trial, the plaintiffs sought permission to introduce portions of a deposition from Mr. Manly. The designated excerpts pertained to Mr. Manly’s personal involvement in a property dispute with the City of Shawnee, Kansas, concerning a softball field that was to be constructed near his home. The Peters maintained that the information was relevant to impeach Mr. Manly’s testimony in an earlier deposition regarding “his feelings” about the plaintiffs’ nuisance claims. The defendants objected that the testimony was irrelevant, improper for impeachment, prejudicial, and likely to mislead jurors. They pointed out that the lawsuit was brought by Mr. Manly in his personal capacity and related to no issues in this case. The court agreed and excluded the evidence.
The admission or exclusion of evidence rests in the sound discretion of the trial court, and the court’s decision will be reversed only if it constitutes an abuse of discretion.
Oldaker v. Peters,
The defendants say the trial court properly precluded questions about Mr. Manly’s unrelated property dispute because it concerned a collateral matter and was irrelevant to this lawsuit. “The test for relevancy is whether an offered fact tends to prove or disprove a fact in issue or corroborates other relevant evidence....”
Oldaker,
The plaintiffs also fail to show any prejudice from the exclusion of the evidence. To warrant relief, the plaintiffs had to show prejudice that “materially af-fectfed] the merits of the action.” Rule 84.13(b);
Elliott,
Defendants’ Cross-Appeal
The ContiGroup defendants raise two claims on cross-appeal that they ask us to consider in the event the judgment is reversed on any of the plaintiffs’ claims. Defendants say the circuit court erred in denying its motions for directed verdict: (1) on the issue of liability because the plaintiffs failed to make a submissible case of temporary nuisance on the element of adaptability; and (2) on punitive damages because a submissible case for such damages was not made.
Although we are reversing and remanding with instructions to conduct a trial on Rachel Hall’s pre-1999 claims, it is unnecessary to address the denial of the defendants’ directed verdict motions. Ms. Hall’s pre-1999 claims were precluded via summary judgment prior to trial; thus, no evidence concerning those claims was presented. Consequently, the trial court could not have erred in denying a motion for directed verdict on the basis that the plaintiffs failed to make a submissible case on those claims. Unless and until Rachel’s pre-1999 claims are allowed to go forward, we cannot know if her evidence would support her liability and punitive damages claims. Additionally, because we are affirming the judgment as to the case that was presented (the Peters’s post-1999 claims), it is unnecessary to address these arguments.
Conclusion
We reverse the summary judgment as to Rachel Hall’s claim for injuries occurring prior to May 17, 1999, and remand with directions to conduct a trial on her claim. We affirm in all other respects.
All concur.
Notes
. The parties do not explain the exact relationship between Continental Grain and the ContiGroup Companies but treat them as if they were the same entity.
. Under Rule 52.02(a), "[c]ivil actions by minors may be commenced and prosecuted only by a duly appointed guardian of such minor or, if there is no such guardian, by a next friend appointed in such civil action[.]” The defendants point to subsection (m), which states: "Failure to appoint a next friend or guardian ad litem for a minor ... shall not invalidate the proceedings if the court finds that the interests of the minor ... were adequately protected.”
. The ContiGroup defendants complain that two of Rachel's arguments are made for the first time on appeal: (1) that her "personal injury” claim was not litigated in
Manes,
and (2) that none of the money recovered in
Hanes
was for her “personal injury.” The complaints are without merit; the plaintiffs raised these claims in their summary judgment response. The defendants fail to acknowledge that the plaintiffs use the term "personal injury" to describe Rachel’s loss of use and enjoyment.
See Hanes,
. The court instructed the jury that it could not legally find that the wife was "in possession” of the property, and that if she was not *388 in possession, she could not recover. Id. at 136.
. See, e.g., Prosser & Keeton on the Law of Torts, sec. 87 (W. Page Keeton, gen. ed. 5th ed.1984); 66 C.J.S. Nuisances sec. 69 (1998); Note, Nuisance-Wheiher Property Interest Necessary to Recovery-Death by Wrongful Act, 27 Yale L.J. 280, 281 (1917); Restatement (Second) of Torts, sec. 821E cmt. D (1979).
. The parties do not include a copy of the slide in their briefs or point to the location of a copy in the record.
. The Peters characterize this dispute as a “nuisance lawsuit.” ContiGroup calls it a “zoning board appeal.” For our purposes, the exact nature of the dispute is irrelevant.