author: EDWIN H. SMITH, Chief Judge.

text:
    LAKE OZARK CONSTRUCTION INDUSTRIES, INC., et al., Appellants, v. OSAGE LAND COMPANY, L.L.C., et al., Defendants, Golf Trust of America, L.P., Respondent.
    No. WD 63528.
    Missouri Court of Appeals, Western District.
    April 5, 2005.
    Motion for Rehearing and/or Transfer to Supreme Court Denied May 31, 2005.
    As Modified May 31, 2005.
    Application for Transfer Denied Aug. 30, 2005.

      Reid F. Holbrook, Overland Park, KS, for appellants.
    David James Kornelis, Kansas City, MO, for respondents.
    Before EDWIN H. SMITH, C.J., and ELLIS and HOWARD, JJ.
   EDWIN H. SMITH, Chief Judge.

Lake Ozark Construction Industries, Inc. (LOCI), and its parent company, Everett Holding Company, appeal from the judgment of the Circuit Court of Miller County granting the respondent, Golf Trust of America, L.P. (Golf Trust), summary judgment on Counts IV and V of the appellants’ six-count, second amended petition and the dismissal of those counts with respect to the remaining named defendants. The lawsuit arose out of several contracts entered into between LOCI and M & M Contractors, Inc., (M & M), pursuant to which, LOCI, as a subcontractor, agreed with M & M, the general contractor, to perform and supply the necessary labor and materials for work on the Osage National Golf Club project (the Project), located in Miller County, Missouri. The Project consisted of developing land into a golf course and club (club property), and the surrounding property into private residences (residential property). In Count IV, the appellants sought to enforce a mechanic’s lien, in accordance with Chapter 429, on both club and residential property, for work it alleged was performed, but for which it was not paid, in the total amount of $1,427,302.47. In Count V, the appellants sought a declaration of the court that their mechanic’s lien was superior to the interests of other creditors named as defendants.

The appellants raise two points on appeal. In both points, they claim that the trial court erred in granting summary judgment to Golf Trust on Counts IV and V of the appellants’ second amended petition and dismissing those counts as to the remaining named defendants. Because the summary judgment for Golf Trust on Count V was based on the summary judgment for Golf Trust on Count IV and the dismissal of Counts IV and V as to the remaining defendants was also based thereon, the appeal of the summary judgment for Golf Trust on both counts and the appeal of the dismissals of both counts as to the remaining defendants effectively turn on the same issue. In that regard, the appellants claim, inter alia, in Point I, that the trial court erred in granting summary judgment to Golf Trust on Count TV, in which the appellants sought to enforce their mechanic’s lien as to the subject club and residential Project lots, because, in granting summary judgment on the basis that the property description of the required lien statement was deficient, the court misapplied §§ 429.040 and 429.080, in that the inclusion of non-contiguous lots in the description did not invalidate the lien as to the contiguous lots described in the notice. In Point II, they essentially make the same claim they make in Point I, except they claim that should we find against them in Point I, the release of their lien as to the non-contiguous lots cured any deficiency found in the statement for including therein a description of the non-contiguous lots.

We reverse and remand.

Facts

On May 16, 1996, and June 1, 1997, LOCI entered into several contracts with M & M, in which LOCI agreed to provide the necessary labor and materials for work for infrastructure, grading, excavation, and improvements to the Project, including work on both club and residential properties. LOCI finished the agreed-upon work on the Project on November 30, 1998, but was not paid. On May 27,1999, the appellants filed, in the Circuit Court of Miller County, a mechanic’s lien statement seeking to impose a lien on various club and residential Project lots for their work. The statement was filed pursuant to § 429.040, which allows for a single lien to be imposed on multiple lots, provided they are contiguous.

On September 27, 1999, the appellants filed a six-count petition in the Circuit Court of Miller County. In Count I, they sought damages against M & M for breach of contract; in Count II, they sought payment on account from M & M; in Count III, they sought damages from M & M on a theory of quantum meruit; in Count IV, they sought to enforce their blanket mechanic’s lien against the owners of the subject Project club and residential lots; in Count V, they sought a declaration of the trial court that their mechanic’s lien was superior to the interests of other creditors named as defendants; and in Count VI, they sought payment under a promissory note, secured by a deed of trust, executed by Osage Land Company, L.L.C.

On December 30, 1999, the appellants filed a first amended petition, adding several named defendants. On March 27, 2000, they filed a motion for partial summary judgment on Counts I-VI as to certain of the named defendants. On June 25, 2001, the trial court sustained their motion as to Count VI against Osage Land, ordering it to pay the balance due under the note, $1,304,422.52, but overruled the motion in all other respects. On July 18, 2001, the appellants filed a second amended petition, which added more named defendants. The record on appeal reflects that M & M never filed an answer to the appellants’ second amended petition. On September 27, 2001, counsel for M & M filed a motion to withdraw, which was granted by the trial court on December 4, 2001.

On February 20, 2002, Golf Trust filed a motion for partial summary judgment on Counts IV and Count V of the appellants’ second amended petition, alleging that the lien filed by the appellants was invalid because it sought to impose a blanket lien on lots which were not contiguous, in violation of § 429.040. On March 20, 2002, the appellants filed a partial release, releasing any lien claim as to the non-contiguous lots described in the appellants’ lien statement and reducing their lien demand, accordingly» by $19,577 for the work done on the non-contiguous lots that were released.

Golf Trust’s motion for partial summary judgment was heard and sustained by the trial court on March 25, 2002. This ruling was memorialized in an order, dated April 20, 2002, which stated, inter alia: “IT IS, THEREFORE, ORDERED, ADJUDGED AND DECREED that Defendant Golf Trust of America, L.P.’s Motion for Summary Judgment on Counts TV and V of Second Amended Petition (Single Lien Claimed On Multiple Tracts That Are Not Contiguous) is granted.” The court’s order was not designated, under Rule 74.01(b), for early appeal, and therefore, was not a final judgment subject to appeal.

On March 29, 2002, the appellants filed a motion for default judgment against M & M, which, as noted supra, had not filed a response to the appellants’ second amended petition. A default judgment was granted against M & M on April 1, 2002. As to Count I, the trial court awarded the appellants $1,780,218.83, plus attorney’s fees of $285,686.38, travel and mileage expenses of $45,220, and court costs. In addition, the trial court dismissed Counts II and III, without prejudice, at the request of the appellants.

On November 19, 2003, the trial court issued what it denominated a “Final Judgment,” entering summary judgment in favor of Golf Trust on Counts IV and V of the second amended petition and dismissing those same counts as to the remaining defendants. It is this judgment from which the appellants appeal.

This appeal followed.

Standard of Review

In reviewing the grant of summary judgment:

[o]ur review is essentially de novo. The criteria on appeal for testing the propriety of summary judgment are no different from those which should be employed by the trial court to determine the propriety of sustaining the motion initially. The propriety of summary judgment is purely an issue of law. As the trial court’s judgment is founded on the record submitted and the law, an appellate court need not defer to the trial court’s order granting summary judgment.

ITT Commercial Fin. Corp. v. Mid-Am. Marine Supply Corp., 854 S.W.2d 371, 376 (Mo. banc 1993). Summary judgment will be upheld on appeal if: (1) there is no genuine dispute of material fact, and (2) the movant is entitled to judgment as a matter of law. Id. at 380. Furthermore, when considering appeals from summary judgments, we will:

review the record in the light most favorable to the party against whom judgment was entered. Facts set forth by affidavit or otherwise in support of a party’s motion are taken as true unless contradicted by the non-moving party’s response to the summary judgment motion. We accord the non-movant the benefit of all reasonable inferences from the record.

Id. at 376.

I.

In Point I, the appellants claim, as to the dispositive issue presented, that the trial court erred in granting summary judgment to Golf Trust on Count TV, which sought enforcement of the appellants’ mechanic’s lien, because, in granting summary judgment on the basis that the property description of the required lien statement was deficient, the court misapplied §§ 429.040 and 429.080, in that the inclusion of non-contiguous lots in the description did not invalidate the lien as to the contiguous lots described in the notice. We agree.

To make a prima facie case for summary judgment, under Rule 74.04, the movant must allege facts, which are supported by specific references to the pleadings, discovery, exhibits or affidavits, demonstrating the lack of a genuine issue as to such facts and which establish a right to judgment as a matter of law. Rule 74.04(c); Bost v. Clark, 116 S.W.3d 667, 674 (Mo.App.2003). If the movant is a defending party, as is the case here, the movant can make a prima facie case for summary judgment by showing either: (1) facts that negate any one of the claimant’s required proof elements; (2) that the non-movant, after an adequate period of discovery, has not been able to produce and will not be able to produce evidence sufficient to allow the trier-of-fact to find the existence of any one of the claimant’s required proof elements; or, (3) that there is no genuine dispute as to the existence of each of the facts necessary to support the movant’s properly pleaded affirmative defense. Williams v. Mo. Highway & Transp. Comm’n, 16 S.W.3d 605, 610 (Mo.App.2000). Regardless of which of these three means is employed by the defending party, each establishes a right to judgment as a matter of law. Id. As we discuss, infra, Golf Trust employed the first means.

Chapter 429 governs mechanic’s liens. Section 429.010, the statute that authorizes mechanic’s liens, provides, in pertinent part:

Any person who shall do or perform any work or labor upon, or furnish any material ... for any building, erection or improvements upon land ... under or by virtue of any contract with the owner or proprietor thereof ..., upon complying with the provisions of sections 429.010 to 429.340, shall have for his work or labor done, or materials ... a lien upon such building, erection or improvements, and upon the land belonging to such owner or proprietor on which the same are situated.

A mechanic’s lien is “a remedy in the nature of a charge on the land given by statute to secure a priority of payment for the performance of labor or the supply of material to buildings or other improvements to be enforced against the particular property in which they have become incorporated.” Herbert & Brooner Constr. Co. v. Golden, 499 S.W.2d 541, 545 (Mo.App.1973). “Our lien statutes are based on and justified by the principle that those who have contributed labor or material to the improvement of property are entitled to look to the property for compensation.” Id.

Because “[mjechanic’s liens exist solely by virtue of legislative enactment; ... compliance with the legislative enactment is essential to securing the lien.” Springfield Underground, Inc. v. Sweeney, 102 S.W.3d 7, 9 (Mo. banc 2003). In that regard, reasonable and substantial compliance is sufficient. Breckenridge Material Co. v. Byrnesville Const. Co., 842 S.W.2d 551, 552 (Mo.App.1992); Garavaglia v. J.L. Mason of Mo., Inc., 733 S.W.2d 53, 56 (Mo.App.1987). Because the mechanic’s lien law is remedial in nature, it is to be liberally construed. Breckenridge, 842 S.W.2d at 552. As the Missouri Supreme Court stated in Sweeney: “As a general rule, statutes relating to mechanic’s liens should be liberally construed in favor of lien enforceability.” 102 S.W.3d at 9.

In its motion for partial summary judgment, as to Count IV of the appellants’ second amended petition, Golf Trust did not challenge the appellants’ right to proceed under § 429.010 to impose a mechanic’s lien for labor performed and materials supplied by LOCI for the work done on the Project and for which they were not paid. Rather, it alleged that the appellants’ lien statement, as provided in § 429.080, was deficient in that it failed to comply with the mandatory provisions of § 429.040 for establishing a single lien on multiple lots such that no lien was established as to any of the lots described in the statement.

A party seeking to establish a mechanic’s lien, as authorized by § 429.010, must comply, inter alia, with the provisions of § 429.080, Sweeney, 102 S.W.3d at 9. Section 429.080 reads:

It shall be the duty of every original contractor, every journeyman and day laborer, and every other person seeking to obtain the benefit of the provisions of sections 429.010 to 429.340, within six months after the indebtedness shall have accrued to file with the clerk of the circuit court of the proper county a just and true account of the demand due him or them after all just credits have been given, which is to be a lien upon such building or other improvements, and a true description of the property, or so near as to identify the same, upon which the lien is intended to apply, with the name of the owner or contractor, or both, if known to the person filing the lien, which shall, in all cases, be verified by the oath of himself or some credible person for him.

(Emphasis added.) Golf Trust alleged in its motion that the appellants failed to comply with the provisions of § 429.080 in that their statement or notice of lien did not contain “a true description of the property” on which they sought to establish their lien.

In alleging that the appellants’ lien statement was deficient, in that it did not contain a “true description of the [subject] [property],” Golf Trust alleged that, contrary to § 429.040, the statement included a description of non-contiguous lots, rendering the statement deficient and resulting in the lien being invalid as to all the property described in the statement, not just the non-contiguous lots.

Section 429.040 provides:
When the improvements consist of two or more buildings, united together and situated upon the same lot or contiguous lots, or separate buildings upon contiguous lots, or a continuous or connected sidewalk in front or alongside of contiguous lots, and erected under one general contract, it shall not be necessary to file a separate lien upon each building or lot for the work done or materials furnished in the erection of such improvements.

(Emphasis added.) This section generally allows the filing of one lien, commonly known as a blanket lien, for improvements to separate buildings located on contiguous lots. Concrete Co. of Ozarks v. Catamount Ridge North, L.L.C., 63 S.W.3d 260, 263-64 (Mo.App.2001). Thus, in order to establish a single or blanket lien on multiple lots, the lien claimant must comply with the requirements of § 429.040. The appellants sought to avail themselves of the provisions of § 429.040 by filing one lien as to improvements made on multiple lots of the Project. Thus, in order to show that they had a valid lien as to these lots, the appellants had to show substantial compliance with not only § 429.080, but with § 429.040.

Reading §§ 429.040 and 429.080 together, Golf Trust contends that the appellants’ lien was invalid and unenforceable, in toto, because the description of the property in the appellants’ lien statement, required by § 429.080, included, contrary to § 429.040, a description of non-contiguous lots, as well as contiguous lots. In other words, Golf Trust is contending that the inclusion of non-contiguous lots in the lien statement description of property invalidated the appellants’ lien not only as to those lots, but the contiguous lots as well. While the appellants concede that their lien statement contained a description of non-contiguous lots, which were non-lienable under § 429.040, they contend that this language was surplusage and did not affect the validity of their hen as to the contiguous lots, which were lienable under § 429.040. Hence, in determining whether the trial court erred in sustaining Golf Trust’s motion for summary judgment on Count IV and invalidating the appellants’ mechanic’s lien, in toto, on the basis that the appellants’ hen statement was deficient as to the description of the hen property, the issue for us is whether, pursuant to §§ 429.040 and 429.080, the inclusion of non-contiguous lots in the property description of the appellants’ hen statement invalidated them lien as to all the property described in the statement, or just as to the non-henable lots.

In interpreting statutes, we are to ascertain the intent of the legislature, giving the language used its plain and ordinary meaning. Pavlica v. Dir. of Revenue, 71 S.W.3d 186, 189 (Mo.App.2002). Where the legislative intent is made evident by giving the language employed in the statute its plain and ordinary meaning, we are without authority to read into the statute an intent, which is contrary thereto. Id. When the legislative intent cannot be ascertained from the language of the statute, by giving it its plain and ordinary meaning, the statute is considered ambiguous and only then can the rules of statutoiy construction be applied. Id.

In contending as it does in this point, Golf Trust points to the language of § 429.080 that the required lien statement must contain a “true description of the property.” It argues that by including in the property description of their lien statement a description of the non-contiguous lots, the statement did not contain a “true description of the property” that was subject to a blanket lien, as authorized by § 429.040, such that the appellants’ lien was invalid, in toto. The appellants counter with the fact that, as to the contiguous lots, which were subject to the filing of a blanket lien, pursuant to § 429.040, their lien notice did contain a “true description of the property” such that as to those lots, they satisfied all the requirements of §§ 429.040 and 429.080 for establishing a lien thereon. Thus, the dispute between the parties is a legal one as to the effect of the appellants including, in their required § 429.080 hen statement, a description of non-contiguous lots, which constituted non-qualifying property for a blanket lien on multiple lots under § 429.040, on their establishing a mechanic’s lien on the contiguous lots, which did constitute qualifying property for a blanket lien under § 429.040.

In support of their claim in this point, the appellants cite Dave Kolb Grading, Inc. v. Lieberman Corp., 837 S.W.2d 924, 938-39 (Mo.App.1992). There the court was asked to address the very issue that confronts us here. The lien claimants in Kolb sought to enforce their blanket liens against multiple lots. Id. at 938. The appellants claimed that, pursuant to § 429.040, the blanket hens were unenforceable because the subject lots were non-contiguous. Id. The court first addressed the issue of whether the subject lots were contiguous. Id. at 939. Finding that they were not, the court then turned to the issue of whether including, in the hen notice description, property that was not subject to a blanket hen under § 429.040, invalidated the hen in its entirety. Kolb at 939. The court held that it did not, stating that the “description of the nonlienable property [was] simply surplus-age. If more land is described than is necessary the lienable part will be charged and judgment given accordingly.” Id. (citations omitted) (emphasis added). This clearly supports the position of the appellants in this point.

The respondents seek to distinguish Kolb by pointing out that, unlike the appellants’ hen statement in our case, there the hen statements of the claimants did not seek to impose a hen on the non-lienable property for work performed only on the lienable property, but only for work performed on the contiguous lots that were subject to a blanket hen, in accordance with § 429.040. This distinction is irrelevant given the fact that the appellants here readily admit that in treating the description of the non-contiguous lots in the appellants’ hen statement as surplusage, the amount of their hen demand was required to be adjusted by the trial court to reflect work performed solely on the qualifying contiguous lots.

The issue of what work was performed as to what property goes to the requirement of § 429.080 that the hen statement contain a “just and true account of the demand due.” In that regard, it is well settled in the law that a “hen statement may be regarded as ‘just and true’ [in accordance with § 429.080], so as not to vitiate the entire hen, if the inclusion of a non-henable item is the result of honest mistake or inadvertence without intent to defraud and if the non-lienable items can be separated from the lienable items.” Sears, Roebuck & Co. v. Seven Palms Motor Inn, 530 S.W.2d 695, 698-99 (Mo. banc 1975); see also Structure & Design, Unlimited, Inc. v. Contemporary Concepts Bldg. & Design, Inc., 151 S.W.3d 904, 907 (Mo.App.2004); Am. Prop. Maint. v. Monia, 59 S.W.3d 640, 643 (Mo.App.2001). Hence, the fact that in excluding, as sur-plusage, the language in the appellants’ hen statement concerning the non-contiguous lots, the statement of the account due the appellants would be rendered inaccurate, due to a demand for work performed on non-lienable property, would not work to vitiate the entire hen, unless Golf Trust’s motion established with undisputed facts that the appellants intended to defraud Golf Trust or that the non-lienable items could not be separated from the lienable items. In that regard, the summary judgment record discloses that Golf Trust did not allege any such facts in its motion. Hence, there is nothing in the summary judgment record from which the trial court could have granted summary judgment to Golf Trust on Count IV based on the appellants’ failure to include in their hen statement a just and true account of their demand on the subject property.

In its brief, Golf Trust cites Stewart Concrete & Material Co. v. James H. Stanton Constr. Co., 433 S.W.2d 76, 80 (Mo.App.1968), in support of its contention that the inclusion of the non-lienable items in the appellants’ lien statement vitiated the lien, in toto. There, this court held that the eight subject lots were non-contiguous such that a blanket lien, in accordance with § 429.040, could not be imposed thereon. Stewart, 433 S.W.2d at 80. However, the issue raised by the appellant on appeal in StewaH was not whether the inclusion of the non-lienable items vitiated the entire lien, the issue raised in this case, but “whether or not these eight lots which plaintiff [sought] to impress with one mechanics’ lien [were] ‘contiguous’ within the meaning of Section 429.040.” Id. at 79. Thus, at best, from Golf Trust’s perspective, StewaH could be said to implicitly stand for the proposition that the inclusion of the non-lienable items in the lien notice vitiated the lien, in toto. In any event, even assuming, arguendo, that StewaH could be cited for the proposition urged by Golf Trust in this point, we believe that the reasoning of Kolb is far more persuasive and should be followed over StewaH.

For the reasons stated, Golf Trust failed to make a prima facie case for summary judgment as to Count IV, on the basis that the lien statement was deficient, as being contrary to § 429.040, for including a description of non-lienable property, the non-contiguous lots. And, inasmuch as Golf Trust’s summary judgment on Count V was based on the granting of summary judgment on Count TV and the dismissal of the other defendants, as to both Counts IV and V, was also based thereon, the court’s judgment of May 12, 2003, granting Golf Trust summary judgment on Counts TV and V and dismissing those counts as to the remaining defendants, must be reversed. And, given our disposition of Point I, the appellants’ claim of error in Point II is moot, and we need not address it.

Conclusion

The judgment of the Circuit Court of Miller County, granting summary judgment to Golf Trust on Counts IV and V of the appellants’ second amended petition and dismissing those counts as to the remaining defendants, is reversed, and the cause is remanded for further proceedings consistent with this opinion.

ELLIS and HOWARD, JJ., concur.

      . All statutory references are to RSMo 2000, unless otherwise indicated.

      . On the same date, Golf Trust filed a second motion for partial summary judgment on the ground that there was no evidence that the various owners of the multiple lots covered by the lien contracted with M & M for the work performed by the appellants. The trial court did not rule on this second motion.

      . All rule references are to Missouri Rules of Civil Procedure, 2005, unless otherwise indicated.


source: Caselaw Access Project

author: William A. Stoneking

license: Public Domain

text:
    William A. STONEKING, Jr., Appellant, v. Shirley Anne STONEKING, Respondent.
    No. WD 64091.
    Missouri Court of Appeals, Western District.
    April 5, 2005.
    Motion for Rehearing and/or Transfer to Supreme Court Denied May 31, 2005.
    Application for Transfer Denied Aug. 30, 2005.

      William Stoneking, Villa Park, IL, pro se.
    Susan Szczucinski, Overland Park, KS, for Respondent.
    Before PAUL M. SPINDEN, Presiding Judge, VICTOR C. HOWARD, Judge, and THOMAS H. NEWTON, Judge.
   ORDER

William A. Stoneking

appeals the circuit court’s judgment modifying the decree dissolving his marriage to Shirley Anne Sto-neking. We affirm. Rule 84.16(b).


author: PER CURIAM.

text:
    Jerry L. McCAULEY, Appellant, v. STATE of Missouri, Respondent.
    No. ED 85480.
    Missouri Court of Appeals, Eastern District, Division One.
    April 5, 2005.
    Motion for Rehearing and/or Transfer to Supreme Court Denied May 16, 2005.
    Application for Transfer Denied Aug. 30, 2005.
    Jerry L. McCauley, Pro Se, Jefferson City, MO, for Appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Andrew W. Hassell, Assistant Attorney General, Jefferson City, MO, for Respondent.
    Before GARY M. GAERTNER, SR., P.J., SHERRI B. SULLIVAN, J. and BOOKER T. SHAW, J.
   ORDER

PER CURIAM.

Appellant, Jerry L. McCauley (“Mov-ant”), appeals from the judgment of the Circuit Court of the City of St. Louis denying his motion to reopen his Rule 29.15 motion for post-conviction relief. Following a jury trial, Movant was convicted of one count of second-degree murder, section 565.021 RSMo (1994), one count of first-degree assault, section 565.050, and two counts of armed criminal action, section 571.015. We previously affirmed the motion court’s denial of Movant’s Rule 29.15 motion for post-conviction relief. We affirm.

We have reviewed the briefs of the parties and the record on appeal. As an extended opinion would serve no jurisprudential purpose, we affirm the motion court’s order pursuant to Rule 84.16(b). We have, however, provided a memorandum opinion for the use of the parties only setting forth the reasons for our decision.

      . All statutory references are to RSMo 1994 unless otherwise indicated.

      . Movant’s motion to a remand for an eviden-tiary hearing, which was taken with the case, is denied.


author: PAUL M. SPINDEN, Presiding Judge.

text:
    Joel STOKES, Appellant, v. NATIONAL PRESTO INDUSTRIES, INC., Respondent.
    No. WD 64182.
    Missouri Court of Appeals, Western District.
    April 12, 2005.
    Application for Transfer to Supreme Court Denied May 31, 2005.
    Application for Transfer Denied Aug. 30, 2005.
    See also 119 S.W.3d 193.

      Paul Redfearn III, Kansas City, for appellant.
    William Lynch, Kansas City, Mark Arnold, St. Louis, for respondent.
   PAUL M. SPINDEN, Presiding Judge.

Joel Stokes was severely burned when, as a 13-month-old toddler, he pulled over a deep fryer and dumped hot oil on himself. Stokes’ parents, acting on their son’s behalf, sued the deep fryer’s manufacturer, National Presto Industries, Inc., and the boy’s grandmother, who was cooking with the deep fryer when the mishap occurred. Stokes appeals the jury’s verdict for National Presto. The jury returned a verdict for Stokes against the grandmother, but Stokes dismissed that action.

Stokes asserts that the circuit court erred in excluding evidence concerning substantially similar pullover accidents involving similar deep fryers manufactured by National Presto and in excluding evidence regarding correspondence between National Presto and the Consumer Products Safety Commission and Underwriter Laboratories concerning the danger of National Presto’s deep fryers. He also claims that the circuit court erred in denying his request for discovery of claims and lawsuits involving similar incidents with National Presto’s similar deep fryers after Stokes’ injury. We reverse the circuit court’s judgment and remand for a new trial.

Stokes’ injury occurred while his grandmother, Diane Scheu, was heating cooking oil in National Presto’s deep fryer, a Kitchen Kettle model. Scheu set it on an island counter and plugged the electrical cord into a receptacle on the counter’s side. The cord hung over the counter’s edge. Stokes pulled on the cord. The deep fryer slid off the counter and spilled hot oil on Stokes, seriously injuring him.

Stokes sued Scheu for negligence and National Presto for products liability and negligence. Stokes claimed that the deep fryer was defective because it slid too easily — that National Presto should have been equipped it with rubber feet and an electrical cord that would have released when tugged by a young child. A jury returned a verdict for National Presto but against Scheu in the amount of $500,000.

The circuit court denied Stokes’ post-trial motions concerning National Presto’s and Scheu’s separate motions for a new trial, but it granted Stokes’ motion for additur against Scheu in the amount of $1.5 million. Scheu declined the additur, which necessitated a new trial on the issue of damages. Stokes attempted to appeal the circuit court’s judgment to this court, but we dismissed the appeal after finding that Stokes filed it before the circuit court had issued a final judgment. Stokes v. National Presto Industries, Inc., 119 S.W.3d 193 (Mo.App.2003). Stokes dismissed with prejudice his claims against Scheu, and the circuit court entered judgment for National Presto. Stokes then filed this appeal.

Stokes first contends that the circuit court erred in excluding evidence concerning substantially similar “pullover” accidents involving similar deep fryers manufactured by National Presto. We agree.

The Kitchen Kettle model was a cooker, which could be used not only for deep frying, but also for roasting, braising, blanching, boiling, stewing, steaming, and slow cooking. The unit featured an aluminum pot with a cooking oil fill line, four plastic feet, and a variable electric temperature control, which detached from the heating element. Although its electrical cord detached, detachment required a stronger tug than a young child would typically exert.

National Presto manufactured three other units that were designed primarily for deep frying food: the FryBaby, the Fry-Daddy, and the GranPappy models. They differed only in their capacities, and, like the Kitchen Kettle, they featured an aluminum pot with a cooking oil fill-line and plastic feet. Unlike the Kitchen Kettle, their electrical cords were not detachable.

At trial, Stokes attempted to introduce evidence concerning the history of “pullover” accidents involving children and Kitchen Kettle, FryBaby, FryDaddy, and GranPappy units. The circuit court restricted evidence of other pullover accidents to incidents involving the Kitchen Kettle. Repeatedly during the trial, the circuit court declared that it was confining the evidence to the “single product idea” or “one product idea.”

Admissibility of evidence is a matter for the circuit court’s discretion, and we will not disturb the circuit court’s ruling unless we discern an abuse of discretion. Thornton v. Gray Automotive Parts Company, 62 S.W.3d 575, 583 (Mo.App.2001). A circuit court abuses its discretion in ruling on the admissibility of evidence when its ruling is illogical and so unreasonable and arbitrary that it shocks our sense of justice or indicates a lack of careful, deliberate consideration. Oldaker v. Peters, 817 S.W.2d 245, 250 (Mo. banc 1991). Even if the circuit court abuses its discretion in excluding the evidence, we should not reverse the circuit court’s judgment unless the abuse had a material effect on the trial. Thornton, 62 S.W.3d at 583.

Evidence of accidents similar to that suffered by the plaintiff generally is admissible in negligence and products liability actions. The key element is the similarity of the incidents. The similarity of the accident at issue and the previous incident must be sufficiently close to avoid undue prejudice and confusion. Id. To be sufficiently similar, the accidents must be (1) of like character, (2) occur under substantially the same circumstances, and (3) result from the same cause. Id.; Gerow v. Mitch Crawford Holiday Motors, 987 S.W.2d 359, 364-65 (Mo.App.1999); Benoit v. Missouri Highway and Transportation Commission, 33 S.W.3d 663, 669 (Mo.App.2000).

The circuit court abused its discretion by applying the wrong standard of law. Rather than focusing on the similarity of the previous incidents, the circuit court imposed a ruling that it referred to as the “single product rule” and restricted evidence of previous incidents to those involving Kitchen Kettle units. The circuit court did not disclose the source for the single product rule, and we have not been able to find any courts or experts enunciating such a rule. If indeed the prior incidents were similar to the one leading to Stokes’ injuries, the circuit court should have been permitted Stokes to present evidence of them.

National Presto, however, contends that, because the circuit court permitted Stokes to prove three prior incidents involving Kitchen Kettle units, the circuit court did not abuse its discretion. It also points out that the jury learned from the evidence that the most frequent injuries associated with deep fryers were burns from hot oil and that such accidents often occurred when a small child tipped over the fryer by grabbing the electrical cord. The circuit court permitted Stokes to show that the Consumer Product Safety Commission had determined that deep fryers were susceptible to hot oil spills caused by children pulling on their cords. CPSC documents presented to the jury reported more than 100 incidents involving deep fryers and children during the last several years, including three deaths and 40 serious injuries. Although this evidence made clear the dangers involving deep fryers and children and established possible defect, risk, or notice, this evidence did not cure the prejudice to Stokes resulting from the circuit court’s erroneous ruling.

We reach this conclusion from the closing arguments. National Presto took advantage of the circuit court’s erroneous ruling to argue to the jury:

I want to talk about the evidence of other accidents, because this is — this is important. They keep talking about, you know, all these accidents and all these horrible things that National Presto knew. But what’s the evidence they introduced about other accidents? What evidence did they introduce to you about other accidents involving National Presto’s products? Three. Materio, July 25th, [19]84, accident date; Walton, February 20th, [19]86, accident date; and Smitheman, June 1st, [19]87, accident date. All before the cord tag was added.
So I want to look at the actual evidence, not talk about, you know, hazards to babies and infants and talk about it on an emotional level[J [B]ut what are the facts[?] What are the evidence of other Kitchen Kettle accidents that were actually introduced[?] 1983[:] zero. 1984[:] I think it was Materio, one. 1985[:] zero. 1986[:] Walton or Materio, whichever one. I can go back and look in my notes. 1987[:] Smitheman, one.... [19]88[:] zero. [19]89[:] zero. [19]90[:] zero. [19]91[:] zero. [19]92[:] zero. [19]98[:] zero. [19]94[:] zero. That’s the evidence of other accidents.
There’s a report of CPSC after the fact involving all the different manufacturers, involving all the different deep frying products, involving all kinds of accidents. But here’s what we know about known pull-over accidents — that’s what these are, pull-over accidents — that National Presto knew about between 1983 and 1994. And that’s the evidence. That’s it. This is when the Kitchen Kettle involved in this case was manufactured, and that’s when [United Laboratories] said no new requirements or revisions are necessary.

National Presto took advantage of the circuit court’s erroneous ruling to emphasize to the jury the small number of Kitchen Kettle accidents. Although it knew that Stokes was prepared to introduce evidence of at least 24 other pullover incidents involving National Presto deep fryers, it suggested to the jury that it knew of only three prior incidents, all occurring before National Presto added a warning tag to the Kitchen Kettle units. Because of the circuit court’s erroneous ruling, Stokes’ hands were tied during closing arguments to rebut National Presto’s misleading argument. The circuit court’s erroneous ruling had a materially prejudicial effect on the trial.

We, therefore, reverse the circuit court’s judgment and remand for a new trial. On retrial, the circuit court must determine whether or not the other pullover incidents involving Presto’s other deep fryers were substantially similar to Stokes’ accident. If the circuit court determines that the accidents were indeed substantially similar, the circuit court shall allow Stokes to introduce relevant evidence to substantiate the occurrence of the injuries in those substantially similar accidents. The circuit court, however, should not interpret this decision to mean that it must allow Stokes to delve into all of the details of the prior incidents involving National Presto’s other products. For instance, Stokes sought to introduce photographs of injuries, deposition testimony, allegations from complaints filed in lawsuits against Presto, and testimony from some of the victims’ parents. Such detail could be unduly prejudicial and cause confusion by becoming the proverbial “sideshow taking over the circus.” What is relevant to Stokes’ proceeding is the occurrence of injuries under similar circumstances.

Moreover, to the extent that the circuit court also denied Stokes’ request for discovery of claims and lawsuits involving similar incidents with National Presto’s similar deep fryers after Stokes’ injury, that evidence could be admissible to establish that the Kitchen Kettle was dangerous. Pierce v. Platte-Clay Electric Cooperative, Inc., 769 S.W.2d 769, 775 (Mo. banc 1989); see also Herman v. Andrews, 50 S.W.3d 836 (Mo.App.2001); Doyle v. St. Louis-San Francisco Railway Company, 571 S.W.2d 717 (Mo.App.1978). On retrial, Stokes should be allowed to discovery claims involving similar incidents with National Presto’s similar deep fryers after his injury.

We, therefore, reverse the circuit court judgment and remand for a new trial.

VICTOR C. HOWARD, Judge, and THOMAS H. NEWTON, Judge, concur.

      . National Presto contends that Stokes did not file his notice of appeal on time because the judgment became final on May 10, 2004, when Stokes dismissed his claim against Scheu. National Presto is wrong. Although Stokes dismissed his claims against Scheu, the circuit court retained jurisdiction over National Presto and entered its judgment on May 11, 2004. Pursuant to Rule 81.05(a), this judgment did not become final until 30 days after the circuit court entered its judgment. Moreover, Rule 81.05(b) says, "In any case in which a notice of appeal has been filed prematurely, such notice shall be considered as filed immediately after the time the judgment becomes final for the purpose of appeal.” Stokes prematurely filed his notice of appeal on September 5, 2002; hence, even if the judgment became final on May 10, 2004, we could deem Stokes’ notice of appeal of September 5, 2002, as filed immediately after May 10, 2004.

      . In 1988, National Presto added a tag that warned users, by means of words and pictures, not to hang the electrical cord over a counter edge because of the danger of a child's pulling on the cord.

      . We added the emphasis.

      . National Presto argues that, because Stokes’ offer of proof concerning the 24 other similar pullover incidents contained both admissible and inadmissible evidence, the circuit court properly excluded the evidence. The circuit court, however, would not allow any evidence of similar accidents because it confined the evidence to the "single product idea” or “one product idea.” When Stokes attempted to present evidence concerning the occurrence of injuries under similar circumstances, the circuit court would not even allow such evidence.

      . Because we reach this conclusion, we need not address Stokes’ remaining contention on appeal that the circuit court erred in excluding evidence regarding correspondence between National Presto and the Consumer Products Safety Commission and Underwriter Laboratories concerning the danger of National Presto's deep fryers. Although the remaining issue could arise on retrial, given the record in this appeal, we would essentially be issuing an advisory opinion if we ruled on it at this time. Stokes either failed to make sufficient offers of proof or failed to proffer the evidence to the circuit court for its ruling on admissibility. Were we to rule on this issue now, we would be impermissibly rendering an advisory opinion on evidence that was not preserved for review in this appeal and that may not be admitted during the next trial. See Yerington v. La-Z-Boy, Inc., 124 S.W.3d 517, 523 n. 9 (Mo.App.2004).


text:
    Randee BACH, individually and derivatively for the benefit of JT Sound Systems, Inc., d/b/a St. Louis Sound & Communications, Appellants, v. STL, INC., Stephen C. Leidholdt, William Halliburton and Joan Halliburton, STL Services, Inc. and Halliburton Financial Services, Respondents.
    No. ED 83442.
    Missouri Court of Appeals, Eastern District, Division One.
    April 12, 2005.
    Motion for Rehearing and/or Transfer to Supreme Court Denied June 2, 2005.
    Application for Transfer Denied Aug. 30, 2005.
    Michael W. Newport, St. Louis, MO, for appellant.
    Charles F. Dufour, St. Louis, MO, for respondent.
    Before GARY M. GAERTNER, SR., P.J., SHERRI B. SULLIVAN, J., and BOOKER T. SHAW, J.
   ORDER

PER CURIAM.

In this consolidated appeal, Randee Bach (“Bach”) appeals from the trial court’s judgment entered on her petition individually and derivatively as a shareholder of JT Sound Systems, Inc. (“JTS”). Bach raises six points on appeal. JTS cross-appeals, raising five points on appeal. The respondents, STL, Inc., Steven Leid-holdt (“Leidholdt”), William Halliburton (“Halliburton”), Joan Halliburton, STL Services (“Services”), and Halliburton Financial Services (“HFS”) also appeal, raising eleven additional points on appeal.

We have reviewed the briefs of the parties, the extensive legal file, and transcripts on appeal. No error of law appears. An extended opinion reciting the detailed facts and restating the principles of law would have no precedential value. The parties have been furnished with a memorandum for their information only, setting forth the reasons for the order affirming the judgment pursuant to Rule 84.14(b).

      . There were two motions taken with the case. Respondents requested to supplement the legal file and Bach requested attorneys' fees for litigating this appeal. These motions are denied.


text:
    Steven STANKO, et al., Appellants, v. Terry FLEMING, Respondent.
    No. ED 84111.
    Missouri Court of Appeals, Eastern District, Division One.
    April 12, 2005.
    Motion for Rehearing and/or Transfer to Supreme Court Denied June 2, 2005.
    Application for Transfer Denied Aug. 30, 2005.
    Paul C. Hetterman, St. Louis, MO, for appellant.
    Scott C. Harper, Karen M. Speiser, Clayton, MO, for respondent.
    Before GARY M. GAERTNER, SR., P.J., SHERRI B. SULLIVAN, J., BOOKER T. SHAW, J.
   ORDER

PER CURIAM.

Steven and Pamela Stanko (“the Stan-kos”) appeal from the trial court’s judgment granting Terry Fleming’s (“Fleming”) motion for directed verdict at the close of the Stankos’ evidence. The Stan-kos argue the trial court erred in granting Fleming’s motion for directed verdict because they made a submissible case of liability against Fleming. The Stankos also argue the trial court erred in permitting Fleming to amend her answer on the first day of trial to raise an affirmative defense of lack of control and workers’ compensation because this was prejudicial and unfair.

We have reviewed the briefs of the parties and the record on appeal and find the claims of error to be without merit. No error of law appears. An extended opinion reciting the detailed facts and restating the principles of law would have no prece-dential value. The parties have been furnished with a memorandum for their information only, setting forth the reasons for the order affirming the trial court’s judgment pursuant to Rule 84.16(b).


text:
    AMERICAN FAMILY MUTUAL INSURANCE COMPANY, Appellant, v. FESLER-WINKLER ENTERPRISES, INC., et. al., Respondent.
    No. ED 84918.
    Missouri Court of Appeals, Eastern District, Division Three.
    April 12, 2005.
    Motion for Rehearing and/or Transfer to Supreme Court Denied June 2, 2005.
    Application for Transfer Denied Aug. 30, 2005.
    Robert J. Wulff, Robert F. Mueller, St. Louis, MO, for appellant.

      Mark A. Panzeri, St. Louis, MO, for Respondent Fesler-Winkler.
    Maurice B. Graham, St. Louis, MO, for Respondent Pogue.
    Before: CLIFFORD H. AHRENS, P.J., GLENN A. NORTON, J., and NANNETTE A. BAKER, J.
   ORDER

PER CURIAM.

American Family Mutual Insurance Company (“American Family”) appeals from a judgment in a declaratory judgment action in the Circuit Court of the City of St. Louis. American Family sought a declaration that no insurance coverage existed for Fesler-Winkler Enterprises, Inc. (“Fesler-Winkler”) for a lawsuit filed against it by Brian and Christine Pogue (“Pogues”). All parties submitted Motions for Summary Judgment and the trial court found that the policy excludes coverage for punitive damages and certain claims of property damage. The court also found that the policy did provide coverage for all remaining claims in the underlying suit.

On appeal, American Family claims that the court erred in finding that the policy provides coverage to Fesler-Winkler for the Pogues’ claims against Fesler-Winkler in the underlying suit because: (1) the “Products — Completed Operations Hazard” (“Completed Operations”) exclusion precludes coverage for work Fesler-Wink-ler did at the Pogues’ home and this exclusion is valid and enforceable under Missouri law; (2) the policy provides coverage for injuries caused by an “occurrence” but the allegations made by the Pogues do not fall under the definition of “occurrence” as it is set out in the policy; (3) the date of loss occurred after the expiration of the policy; (4) coverage for medical payments is precluded by the completed operations exclusion; (5) the policy excludes from coverage damages arising from expected or intentional acts and the Pogues allege that the acts causing their injuries were intentional; (6) the policy excludes coverage arising because of a breach of contract and the Pogues allege that Fesler-Winkler breached their contractual duties and a breach of contract is not an “occurrence” within the meaning of a commercial general liability policy. This court finds no error and affirms.

We have reviewed the briefs of the parties and the record on appeal and find the claims of error to be without merit. No jurisprudential purpose would be served by a written opinion reciting the detailed facts and restating the principles of law. The parties have been furnished with a memorandum opinion for their information only, which sets forth the facts and reasons for this order.

We affirm the judgment pursuant to Rule 84.16(b).


author: SHERRI B. SULLIVAN, J.

text:
    TWIN CHIMNEYS HOMEOWNERS ASSOCIATION, Plaintiff/Respondent, v. J.E. JONES CONSTRUCTION CO., et al., Defendants/Appellants.
    No. ED 82976.
    Missouri Court of Appeals, Eastern District, Division One.
    April 12, 2005.
    Motion for Rehearing and/or Transfer to Supreme Court Denied June 30, 2005.
    Application for Transfer Denied Aug. 30, 2005.

      Gary Edward Snodgrass, William Stuart Thomas — co-counsel, St. Louis, MO, for Howard Chilcutt, Jones Company Custom Homes, Inc, and J.E. Jones Construction Company.
    Martin John Buckley, St. Louis, MO, for Howard Chilcutt, Jones Company Custom Homes, Inc, and J.E. Jones Construction Company, Lloyd Potts and Steve Mullen.
    Robert Engel Tucker, St. Louis, MO, for Twin chimneys Homeowners Associations.
    Gary Phillip Paul, Clayton, MO, for J.L. Mason of Missouri, Inc.
    Kevin Paul Schnurbusch, St. Louis, MO, for Dave Kolb Grading, Inc.
   SHERRI B. SULLIVAN, J.

Introduction

J.E. Jones Construction Company (J.E. Jones) and Jones Company Custom Homes, Inc. (Custom Homes) (collectively Jones Company) and Howard Chilcutt (Chilcutt) (collectively Appellants) appeal from a trial court judgment entered upon a jury verdict in favor of Twin Chimneys Homeowners Association (the Association) and against Jones Company in the amount of $13,960 for damages based on negligence and against Jones Company and Chilcutt in the amount of $987,940 for damages based on breach of fiduciary duty. We affirm.

Factual and Procedural Background

In 1988, J.L. Mason of Missouri, Inc. (J.L. Mason) began construction of the Twin Chimneys subdivision (the Subdivision). After construction of the infrastructure began, J.L. Mason determined that it needed a partner in the Subdivision project, and it approached J.E. Jones. In November 1988, J.L. Mason and J.E. Jones entered into a joint venture agreement, forming Twin Chimneys Partnership, to purchase real property and sell single family developed lots.

In January 1989, Twin Chimneys Partnership and Lloyd L. Potts (Potts), Steven A. Mullen (Mullen), Homer Clark (Clark), and Chilcutt entered into an Indenture of Trust governing the Subdivision, wherein Potts, Mullen, Clark and Chilcutt consented to serve as original Trustees. Potts and Mullen were affiliated with J.L. Mason. Clark and Chilcutt were employees of J.E. Jones. The Indenture of Trust included the following general provision:

The Trustees are authorized to act through a representative, provided, however, that all acts of the Trustees shall be agreed upon by at least a majority of said Trustees. No Trustee shall be held personally responsible for his or her wrongful acts, and no Trustee shall be responsible for the wrongful acts of others. No Trustee shall be held personally liable for injury or damage- to persons or property by reason of any act or failure to act of the Trustees, collectively or individually.... The owners of the Lots and other parcels shall indemnify and hold the Trustees harmless from and against any and all liability, loss, damage, costs and expense, including reasonable attorney’s fees and court costs which the Trustees may suffer or incur solely by the reason of being Trustees hereunder or by reason of any action taken by the Trustees in good faith believed to be in the best interests of the Owners.

The parties also entered into a Subin-denture of Trust, (sometimes referred to as Subindenture or Subindenture Agreement), which included a general provision substantially the same as the one quoted above. The Subindenture of Trust also provided that the Trustees had ownership and control of the common property within the Subdivision and were responsible for the maintenance of the common property.

The construction of the lakes, monuments, and irrigation system within the Subdivision was completed by 1990. In 1991, J.L. Mason went out of business and J.E. Jones took over the Twin Chimneys Partnership. J.H. Berra was hired to replace J.L. Mason as general contractor to complete the infrastructure for the individual lots within the Subdivision.

In August 1992, Custom Homes, formed in 1989, bought all of the assets of J.E. Jones. An Amendment to the Subinden-ture of Trust identified Custom Homes as the successor to J.E. Jones.

On March 24, 1999, the Association filed a Petition for Damages, asserting one count of negligence against J.E. Jones and one count of breach of fiduciary obligation against Potts, Mullen, Clark, and Chilcutt. Subsequently, the Association filed a Second Amended Petition, adding J.L. Mason and Custom Homes as defendants and adding one count each of breach of contract and promissory estoppel. The Second Amended Petition also divided the negligence claim into three counts, one each relating to the lakes, the entrance monuments, and the sprinkler system.

Potts and Mullen filed motions for directed verdict at the close of the Association’s case, which the trial court sustained. Accordingly, the court entered judgments in favor of Potts and Mullen and against the Association.

After a trial of about two and a half weeks, the jury returned the following verdicts: (1) in favor of Jones Company and J.L. Mason on the Association’s claim of negligence in constructing the lakes; (2) in favor of Jones Company on the Association’s claim of negligence in constructing the irrigation system; (3) in favor of the Association and against Jones Company for damages based on negligence in constructing the entrance monument lighting in the amount of $13,960; and (4) in favor of the Association and against Jones Company and Chilcutt for damages based on breach of fiduciary duty in the amount of $987,940. The trial court entered a judgment in accordance with the jury verdicts.

Discussion

Appellants raise eight points on appeal. In their first point, Appellants argue that the trial court erred in denying their motions for directed verdict and for judgment notwithstanding the verdict (JNOV), or, in the alternative, for new trial because the Association did not have standing to bring the claims raised in the Second Amended Petition in that there were no allegations in the pleadings or evidence at trial showing that the Association was the owner of the common ground of the Subdivision and therefore, the Association was not the real party in interest to prosecute the cause of action.

The standard of review of a trial court’s denial of motions for directed verdict and judgment notwithstanding the verdict are treated the same. Erdman v. Condaire, Inc., 97 S.W.3d 85, 88 (Mo.App. E.D.2002). In reviewing a trial court’s denial of a motion for JNOV, the primary inquiry is whether the plaintiff has made a submissible case. Id. To make a submis-sible case, a plaintiff must present substantial evidence for every fact essential to liability. Id. In determining whether a plaintiff made a submissible case, we view the evidence and all reasonable inferences therefrom in the light most favorable to the plaintiff. Id. The standard of review for the denial of a motion for new trial is abuse of discretion by the trial court. Echard v. Barnes-Jewish Hosp., 98 S.W.3d 558, 567 (Mo.App. E.D.2002). A new trial will be available only upon a showing that trial error or misconduct of the prevailing party incited prejudice in the jury. Id.

Under Rule 52.01, a civil action must be prosecuted in the name of the real party in interest. The purpose of this rule is to enable those who are interested in the subject matter of the suit and entitled to the benefits of the litigation to be those who maintain the action. Boyer v. Sinclair & Rush, Inc., 67 S.W.3d 627, 635 (Mo.App. E.D.2002). Clearly, the Association was the real party in interest to pursue this cause of action, as it is the one entitled to the benefits of the litigation against Appellants. Appellants performed substandard work on the common areas, promised to repair, and did not. The residents were induced to purchase property-in the Subdivision in part because of the lakes, working irrigation system and monuments. When these inducements turned out to be defective or non-functioning, and Appellants promise to fix them but do not, the residents, whether in the form of the Association or individual resident trustees, most certainly have standing to bring suit against Appellants. As we said in Terre Du Lac Ass’n, Inc. v. Terre Du Lac, Inc., 737 S.W.2d 206, 215-216 (Mo.App. E.D. 1987):

Defendants’ argument that Association lacks standing is untenable for practical considerations as well. Two interests are conveyed in a condominium or in a home located within a homeowners’ association development: a dwelling on one hand and a proportionate share of the common elements on the other. Concepts of Liability in the Development and Administration of Condominium and Home Owners Associations, 12 Wake Forest L.Rev. 915, 961 (1976). Frequently, the common amenities are highlighted in the developer’s marketing and sales program. The common elements, however, present unique problems. Id. The first problem is that many owners buy into a development at a stage when much of the construction of the common elements is unfinished. Id. The second problem is the sheer size and complexity of the investigation which would be required to assure an individual owner that the common areas are complete and fit for the use for which they were intended. Id. In this context, the condominium or home owners association takes on a critical role as a representative of the individual owners.... As a result, the powers of an association are extensive with regard to enforcing the common rights of all owners.

In the instant case, the Association, incorporated pursuant to the Subindenture and comprised of resident trustees of the Subdivision, was the real party in interest to bring a civil action against Appellants for negligence and breach of fiduciary duty with regard to the common areas of the Subdivision. Therefore, the trial court correctly denied Appellants’ motions for directed verdict, JNOV and new trial based on lack of standing.

Accordingly, Appellants’ point I on appeal is denied.

In their second point on appeal, Appellants argue that the trial court erred in entering judgment against Appellants because the trust documents upon which the Association based its cause of action released Chilcutt from liability for the damages sought by the Association as a matter of law in that the Indenture and Subindenture of Trust and Restrictions for the subdivision provide that no trustee shall be held personally liable for injury or damage to property by reason of any act or failure to act of the trustees collectively or individually. If Chilcutt is not liable, he asserts, then neither is Jones Company because its liability was predicated solely on Chilcutt’s liability as an agent for Jones Company.

Appellants made this point in their respective motions for directed verdict which were denied by the trial court. The standard of review for a denial of those motions is set forth in our discussion of Point I. The Indenture of Trust included the following general provision:

The Trustees are authorized to act through a representative, provided, however, that all acts of the Trustees shall be agreed upon by at least a majority of said Trustees. No Trustee shall be held personally responsible for his or her wrongful acts, and no Trustee shall be responsible for the wrongful acts of others. No Trustee shall be held personally liable for injury or damage to persons or property by reason of any act or failure to act of the Trustees, collectively or individually.... The owners of the Lots and other parcels shall indemnify and hold the Trustees harmless from and against any and all liability, loss, damage, costs and expense, including reasonable attorney’s fees and court costs which the Trustees may suffer or incur solely by the reason of being Trustees hereunder or by reason of any action taken by the Trustees in good faith believed to be in the best interests of the Owners.

The Subindenture of Trust included a general provision substantially the same as the one quoted above.

Although exculpatory clauses in contracts releasing an individual from his or her own future negligence are disfavored, they are not prohibited as against public policy. Alack v. Vic Tanny Intern. of Missouri, Inc., 923 S.W.2d 330, 334 (Mo.banc 1996). However, contracts exonerating a party from acts of future negligence are to be strictly construed against the party claiming the benefit of the contract, and clear and explicit language in the contract is required to absolve a person from such liability. Id. It is a well-established rule of construction that a contract provision exempting one from liability for his or her negligence will never be implied but must be clearly and explicitly stated. Id.

We do not believe the above clause clearly and explicitly releases the trustees, including Chilcutt, from their own breaches of fiduciary duty. Further, although there was no finding by the jury that Chilcutt’s actions were willful or intentional, i.e., to support an award of punitive damages, Chilcutt admitted that, as owner and an officer of Jones Company, any money spent by Jones Company would have affected him personally. Addressing the explicit concerns of the residents about the lakes, which Chilcutt admittedly did not do, by excavating massive amounts of material from the lakes would have cost the developers, including the Jones Company, a lot of money. We do not believe the exculpatory clauses above encompass this sort of conflict of interest and breach of fiduciary duty.

Accordingly, Appellants’ point II on appeal is denied.

In their third point on appeal, Appellants argue that the trial court erred in submitting Instruction 24 and in refusing to submit Chilcutt’s proposed Instructions A and B because Instruction 24 was preju-dicially defective in that it: (1) failed to hypothesize sufficient facts to guide the jury in determining whether or not a breach of fiduciary duty occurred; (2) failed to define what constituted a fiduciary duty; (3) failed to hypothesize that Chilcutt had committed some specific act or omission that constituted a breach of fiduciary duty; (4) allowed the jury to return a verdict against one individual for the actions of the entire Board of Trustees without showing that Chilcutt was the alter ego of the Board; and (5) constituted a roving commission in that it submitted a broad, general proposition to the jury without requiring findings as to specific facts and elements.

Whether or not a jury was properly instructed is a question of law. Moore ex rel. Moore v. Bi-State Development Agency, 87 S.W.3d 279, 293 (Mo.App. E.D.2002). A proper instruction submits only the ultimate facts, not evidentiary details, to avoid undue emphasis of certain evidence, confusion, and the danger of favoring one party over another. Id., see also Rule 70.02(b). The test is whether the instruction follows the substantive law and can be readily understood by the jury. Id. When reviewing claimed instructional error, we view the evidence most favorably to the instruction, disregard contrary evidence, and reverse where the party challenging the instruction shows that the instruction misdirected, misled, or confused the jury, and there is a substantial indication of prejudice. Id.

Instruction 24 submitted to the jury was a not-in-MAI instruction. It provides as follows:

Your verdict must be for Plaintiff Twin Chimneys Homeowners Association and against Defendant Howard Chilcutt on Plaintiffs claim of breach of fiduciary duty if you believe:
First, Defendant Chilcutt was a subdivision trustee with control over and responsibility for maintaining, repairing, and rebuilding the common elements of the subdivision, specifically the lakes, entrance monument lighting and irrigation system, and
Second, either Defendant Chilcutt failed to exercise control with respect to the maintenance, repair or rebuilding of the lakes and siltation controls, or Defendant Chilcutt failed to exercise control with respect to the maintenance, repair or rebuilding of the entrance monument lighting, or Defendant Chil-cutt failed to exercise control with respect to the maintenance, repair or rebuilding of the irrigation system, and
Third, Defendant Chilcutt in any one or more of the respects submitted in paragraph Second, thereby failed to act in the best interests of the homeowners or failed to act in a manner which placed the interest of the homeowners above those of his employer, and
Fourth, as a direct result Plaintiff sustained damage.

We find that this instruction adequately followed the substantive law on breach of fiduciary duty and hypothesized the ultimate facts necessary to establish Chilcutt’s fiduciary duty and breach thereof. The ultimate facts were that Chilcutt failed in his fiduciary duty as trustee, as set out in the Subindenture Agreement, to maintain and repair the common areas, specifically the lakes, irrigation system, and/or monuments. Instruction 24 was based on and specifically tracked the language of the Subindenture Agreement delineating a trustee’s duties. The Subindenture Agreement also defined trustees as “those persons designated” as trustees, including Chilcutt.

Appellants’ arguments that whether Chilcutt should have insisted that Jones Company should have repaired the common areas and what specific acts or omissions of Chilcutt constituted liability should have been included in Instruction 24 are incorrect because findings of detailed evidentiary facts are not to be submitted to the jury. Moore, 87 S.W.3d at 293. Rather, jurors should be credited with ordinary intelligence, common sense, and an average understanding of the English language. Stalcup v. Orthotic & Prosthetic Lab, Inc., 989 S.W.2d 654, 659 (Mo.App. E.D.1999) (rejecting defendant’s argument that instruction specify a particular act or omission on the part of the lab that had caused improper fit of plaintiffs prosthetic leg).

Appellants also argue that the authority of the board to act belonged collectively to the board and not to individual trustees, and therefore Instruction 24 should have required a finding that each trustee had responsibility for repairing the common ground. Instruction 24 does require a finding that Chilcutt “was a subdivision trustee with control over and responsibility for maintaining ... the common areas.”

Appellants further argue that there was no legally sufficient basis for finding that Chilcutt breached his fiduciary duties and proximately caused the Association’s damages. This argument goes beyond the prejudicially defective instructional error asserted in Appellants’ point relied on, in that it raises the issue of whether Instruction 24 should have been given at all based on the evidence at trial. In any event, we view all the evidence in the light most favorable to the submission of an instruction, First State Bank of St. Charles, Missouri v. Frankel, 86 S.W.3d 161, 173 (Mo.App. E.D.2002), and find that the evidence was sufficient for the jury to find that Chilcutt, as an individual trustee, had a duty to maintain and repair the common areas, and that he breached his duty by failing to take the necessary action to have the common areas maintained and/or repaired and thus proximately caused the damages suffered by plaintiff.

Appellants also maintain that the jury should have been instructed on the elements of fiduciary duty and should have been charged with finding whether a fiduciary duty even existed. Whether a trustee is a fiduciary is not a matter for the fact finder. A trustee is a fiduciary of the highest order and is required to exercise a high standard of conduct and loyalty in administration of the trust. John R. Boyce Family Trust v. Snyder, 128 S.W.3d 630, 636 (Mo.App. E.D.2004).

Appellants complain that Instruction 24 was a “roving commission.” A jury instruction becomes a “roving commission” when it assumes a disputed fact or proffers an abstract legal question allowing the jury “to roam freely through the evidence and choose any facts which suited its fancy or its perception of logic” and impose liability. Scanwell Freight Exp. STL, Inc. v. Chan, 2004 WL 612869, *2 (Mo.App. E.D. 2004). In the instant case, Instruction 24 did neither. If an instruction fails to notify the jury of “what acts or omissions of the party, if any, found by them from the evidence, would constitute liability, then it may be considered a roving commission.” Id. In this case, Instruction 24 specifically notified the jury of what acts or omissions by Chilcutt, if found by the jury from the evidence, would constitute liability. Instruction 24 limited these acts or omissions to the ultimate facts, and not detailed evi-dentiary facts, as prohibited by Rule 70.02(b).

Based on the foregoing, we find that the trial court did not err in submitting Instruction 24. Appellants’ point III on appeal is denied.

In their fourth point on appeal, Appellants argue that the trial court erred in submitting Instruction 26 and in refusing to submit Jones Company’s proposed Instruction H because Instruction 26 did not correctly state the law of agency in that it permitted the jury to return a verdict against Jones Company if it found that Chilcutt was acting within the scope of his employment at the time and it did not require the jury to find that Jones Company exerted control or had the right to control the actions of Chilcutt in his capacity as a trustee. Thus, Instruction 26 permitted the jury to return a verdict against Jones Company without finding all of the elements necessary to hold Jones Company liable for the actions of Chilcutt as its employee.

The standard of review for the submission of an instruction is set forth in our discussion of the previous point.

Instruction 26 reads as follows:
In your verdict you must find Defendant J.E. Jones Construction Company and Defendant The Jones Company Custom Homes, Inc. responsible for any breach of fiduciary duty of Defendant Chilcutt as submitted in Instruction 24 if you believe Chilcutt was acting within the scope and course of his employment with Defendant J.E. Jones Construction Company or Defendant The Jones Company Custom Homes, Inc.
Acts were within the “scope and course of employment” as that phrase is used in this instruction even though not specifically authorized by Defendant J.E. Jones Construction Company or the Jones Company Custom Homes, Inc. if:
1. they were done by Chilcutt to further the business interests of Defendant J.E. Jones Construction Company or The Jones Company Custom Homes, Inc. under the general authority and direction of Defendant J.E. Jones Construction Company or The Jones Company Custom Homes, Inc.
and
2. they naturally arose from the performance of Chilcutt’s work.

Instruction 26 is a not-in-MAI instruction because it is a combination of MAI instruction 18.01, verdict director where agency is at issue, and 13.02, which defines the scope and course of employment in the context of intentional torts. Appellants objected to Instruction 26 because it did not require the jury to find Jones Company controlled the actions of Chilcutt as a trustee. Appellants suggested that an instruction submitting the “dual purpose” acts definition of agency, patterned after MAI 13.03, would be more appropriate, and submitted refused Instruction H.

An instruction submitting the “dual purpose” acts definition of agency would not have been appropriate in this case because the “dual purpose” doctrine is inapplicable. The dual purpose doctrine provides that if an employee’s work requires travel, the employee is deemed to be in the course of his employment although he may have been attending to a simultaneous personal purpose. Williams v. ServiceMaster, 907 S.W.2d 193, 194 (Mo. App. W.D.1995), Tuttle v. Muenks, 964 S.W.2d 514, 518 (Mo.App. W.D.1998). Here, Chilcutt’s serving as a trustee for the Association was part of his duty as an employee of the Jones Company. Serving as trustee was not incidental to his employment, nor was he attending to some simultaneous personal purpose in serving as trustee.

For the foregoing reasons, Appellants’ point IV on appeal is denied.

In their fifth point on appeal, Appellants argue that the trial court erred in denying Jones Company and Chilcutt’s motions for judgment notwithstanding the verdict, or, in the alternative, motion for new trial because the trial court misapplied the applicable statute of limitations, Section 516.120, in that more than five years had passed since the Association was aware of its right to sue. Alternatively, the jury’s verdict on the breach of fiduciary duty claim, Verdict D, was against the weight of the evidence because the jury’s damage award did not limit damages to the period specified by the statute of limitations as instructed by the trial court.

The standard of review for the denial of a motion for JNOV is set forth in our discussion of Point I.

Section 516.120 provides that claims of negligence and breach of fiduciary duty are governed by a five-year statute of limitations. Section 516.100 provides that:

[a] cause of action shall not be deemed to accrue when the wrong is done or the technical breach of contract or duty occurs, but when the damage resulting therefrom is sustained and is capable of ascertainment, and, if more than one item of damage than the last item, so that all resulting damage may be recovered, and full and complete relief obtained.

The Association filed its petition for damages on March 29,1999, asserting negligence and breach of fiduciary duty.

Appellants maintain that at trial, the Association presented the testimony of about IB residents of the subdivision. Those who lived in the subdivision prior to 1994 offered testimony that problems first appeared as early as 1990, and at the very latest, in 1993. Appellants claim that those who served on the homeowner’s advisory board testified that they notified Appellants about the problems as early as 1990 and 1991, nine years before taking legal action against Appellants. Thus, conclude Appellants, we should find the Association’s damages were capable of ascertainment at least eight years before the Association filed suit, well outside the statute of limitations time period.

The trial court held that the Association’s action was brought within the applicable statute of limitations because the last element of damage was the under-excavation of the lakes, which was only discovered and capable of ascertainment by the Association on March 30, 1998. We discern no error in this finding, which was based on expert testimony and a report by SCI provided to the Association on that date opining that Lake A was underexca-vated by up to 8 feet. Despite what some of the residents noticed about how muddy, etc. the lakes were in the early 1990s, Appellants present no evidence that they knew the lake was underexcavated prior to the issuance of the report. Therefore, we find no error in the trial court’s holding.

Additionally, Appellants’ failure to maintain the common areas was a continuing wrong. Missouri recognizes the “continuing or repeated wrong rule.” Lake St. Louis Community Ass’n v. Oak Bluff Preserve, 956 S.W.2d 305, 309 (Mo. App. E.D.1997). Under this rule, each continuation or repetition of wrongful conduct may be regarded as a separate cause of action for which suit must be brought within the period beginning with the occurrence. Id. at 310. A failure to maintain is a continuing wrong. Id. The continuing wrong rule was adopted by our state’s Supreme Court in Davis v. Laclede Gas Co., 603 S.W.2d 554 (Mo.banc 1980). It there decided:

[I]f the wrong done is of such a character that it may be said that all of the damages, past and future, are capable of ascertainment in a single action so that the entire damage accrues in the first instance, the statute of limitation begins to run from that time. If, on the other hand, the wrong may be said to continue from day to day, and to create a fresh injury from day to day, and the wrong is capable of being terminated, a right of action exists for the damages suffered ■within the statutory period immediately preceding suit.

Id. at 556.

The wrong alleged is Appellants’ failure to maintain the common areas. The failure to maintain is a wrong which continues from day to day, it creates a fresh injury from day to day, and it is capable of being terminated. See, e.g., Lake St. Louis Community Ass’n, 956 S.W.2d at 310. Accordingly, a cause of action exists for damages suffered for failure to maintain the common areas, and damages may be claimed for the five-year period immediately preceding the filing of the petition. See Id.

In conjunction with the continuing wrong theory, we also note that the developer trustees continually promised through 1996 that the common areas would be remedied. The developers asserted that the lakes should not be repaired until the subdivision was complete, because during construction silt would continue to flow into the lakes. However, nothing was ever fixed or remedied. Only at the time did the Association know for certain that the developer trustees were not going to make repairs or that they no longer had the ability to do so, were their damages recov-erably certain.

Where the potentiality of future harm is not clear, however, limitations should not run until damages become recover-ably certain. Thus, the possibility that the defendant may remove the harmful condition or cease his wrongful conduct, or that injury may not result, may prevent the recovery of full prospective damages, so that the period limiting an action to recover for such damage does not begin prior to its maturation. Since the amount of future harm will vary with the extent of the later wrongful conduct, recovery is permitted only for that portion of the wrong whether it be affirmative conduct or a failure to act which has occurred within the statutory period immediately preceding suit.

Davis, 603 S.W.2d at 556, quoting with approval, Developments in the Law Statutes of Limitation, 63 Harv.L.Rev. 1177, 1205 (1950).

Appellants also assert that the trial court erred in not granting its motion for a new trial based on the jury’s verdict on damages in the amount of $987,940.00. We only review the trial court’s decision not to grant a new trial for abuse of discretion. Echard, 98 S.W.3d at 567. In determining whether the evidence was sufficient to support the jury’s verdict, we view the evidence in the light most favorable to the result reached by the jury, giving the plaintiff the benefit of all reasonable inferences and disregarding evidence and inferences that conflict with that verdict. Giddens v. Kansas City Southern Ry. Co., 29 S.W.3d 813, 818 (Mo.banc 2000). We generally defer to the jury’s decision as to the amount of damages. Id. at 822. This is as it should be because the determination of the amount of damages is a task that lay juries are particularly able to perform. Id.

Appellants claim that it is clear from the amount of the verdict that the jury did not limit its award to those damages accrued within five years prior to the filing of the suit, as set forth in Lake St. Louis Community Ass’n, 956 S.W.2d at 310, and the jury did not heed the trial court’s instruction to limit their award of damages to those accrued after March 1994.

We disagree that it is so clear. The jury’s award of only $987,940.00 did not show that they disregarded the court’s instruction to limit their damages to post-March 1994. The Association’s engineering expert Morris Berk (Berk) testified that in 2003, the cost to correct the lake problems was $2,500,000.00. The Association’s second engineering expert, Don Esk-ridge (Eskridge), who had been involved in designing lakes and detention basins, opined that Berk’s cost estimate was fair and reasonable. There was testimony that if the lakes were not excavated to the proper depth, and if only the silt was removed from the lakes, the problem would recur. Appellants have not convinced us that the jury’s verdict was against the weight of the evidence. Accordingly, Appellants’ point V on appeal is denied.

In their sixth point on appeal, Appellants argue that the trial court erred in submitting Instructions 18 and 28, instructing the jury to enter an award based on a “cost of repair” measure of damages, and in refusing to submit Jones Company’s proposed Instruction I on diminution in value because the narrow cost of repair exception to the general rule regarding the proper measure of damages to property is inapplicable to this case in that the Association did not adduce any evidence of diminution in value of the homes or that the cost of repair damages were significantly less than the diminution in value.

Again, the standard of review for instructional error is set forth in our discussion of Point III.

Instructions 18 and 28 provide:
Instruction 18
If you find in favor of Plaintiff, you must award the Plaintiff such sum as you may find from the evidence to be the reasonable cost of repair of any damage to the entrance monument lighting.
Instruction 28
If you find in favor of Plaintiff, then you must award the Plaintiff such sum as you may find from the evidence to be the reasonable cost of repair of any damage to the lakes, entrance monument lighting and irrigation system.

The general rule is that the measure of damages for tortious injury to real property is the difference in fair market value of the property before and after the injury or the cost of restoring the property, whichever is the lesser amount. Leonard Missionary Baptist Church v. Sears, Roebuck and Co., 42 S.W.3d 833, 836 (Mo. App. E.D.2001). However, there is an exception to the general rule of fair market value for certain categories of property that are not bought and sold on the open market. Id. at 837. For certain categories of property, termed “special purpose property,” such as the property of nonprofit, charitable, or religious organizations, there will not generally be an active market from which the diminution in market value may be determined. Id. at 886. This is true of such properties as school yards, church yards, college campuses, buildings under construction, and cemeteries. Id.

In the instant case, the property at issue is the common grounds of the Subdivision. The Association’s expert witness, Albert Westover (Westover), a real estate appraiser, testified that he knew of no other comparable property that had ever sold in the open market in the St. Louis Metropolitan area. Westover stated that a market value could not be placed on the common ground in the Subdivision because there is no market for the common areas, because the common areas are interior parcels within a residential area that are an integral part of the subdivision, the common areas are surrounded by single-family residences, are not set off or at the edge of the property so as to be usable by an adjacent property owner. For these reasons, cost of repair as opposed to fair market value was the appropriate measure of damages in this case, and it was not error for the trial court to submit Instructions 18 and 28. Accordingly, Appellants’ point VI on appeal is denied.

In their seventh point on appeal, Appellants argue that the trial court erred in admitting Exhibit 116, a memo from Francis Godwin (Godwin), a civil engineer and non-retained expert, regarding who was responsible for the lakes’ siltation problems and in admitting into evidence and sending to the jury Chapter 405 of the O’Fallon Municipal Code because the admission of this evidence was unfairly prejudicial in that the memorandum and related testimony invaded the province of the jury, was outside the scope of Godwin’s expertise, and was not produced in discovery despite being subpoenaed, and the municipal code was irrelevant to the issues in the case and was not in effect at the time of the construction of the subdivision.

The admission or exclusion of evidence, especially expert evidence, is a matter of trial court discretion. IMR Corp. v. Hemphill, 926 S.W.2d 542, 546 (MoApp. E.D.1996). We review only for a manifest abuse of discretion. Id. A ruling within the trial court’s discretion is presumed correct and the appellant bears the burden of showing the trial court abused its discretion and that they have been prejudiced by the abuse. Id.

At trial, Godwin testified that he had worked for the City of O’Fallon for approximately eleven years, and had served in the capacities of Senior Plan Reviewing Engineer, construction inspector, chief of construction, and city engineer. He personally performed inspections of the Subdivision and supervised other employees who did so.

The memo dated May 29, 1998 by Godwin to Benny Hedden (Hedden), Director of Public Works in O’Fallon, was in response to Hedden’s request that Godwin review the O’Fallon file on the Subdivision and make some determinations of the cause of the lake sedimentation problems. Appellants objected to Godwin’s closing remarks in the memo that “the information on file suggests it was the developer and the builder who were responsible” for the lake’s problems. Appellants maintain that the remarks invaded the province of the jury in determining who was at fault. However, the remarks do not encompass any of the ultimate issues decided by the jury. The ultimate issues to be determined were whether the defendant trustees breached their fiduciary duties as delineated in the Subindenture, to maintain and repair the common areas of the Subdivision. Who was responsible for the problems with the common areas was not an ultimate issue for the jury. Its only relevance would be to the Association’s claim for negligent construction of the lakes, but the jury found in favor of Appellants on that claim. As such, admission of the memo did not invade the province of the jury and was not error. We also note that the parties had equal access to the memo, and the Association is not responsible if Appellants failed to receive the memo upon subpoena of the City of O’Fallon.

Appellants also complain about the admission of Chapter 405 of the Municipal Code of O’Fallon, which required city approval for modification to the design and construction of the development because the section of the code read to the jury was not in effect at the time of the construction of the lakes.

Section B of Chapter 405, dated January 2001 states, in pertinent part, that:

Installation and construction shall conform to the approved engineering drawings. However, if the developer chooses to make minor modifications in design, and/or specifications during construction, he or she shall make such changes at his or her own risk without any assurance that the city engineer will approve the completed installation or construction. It shall be the responsibility of the developer to notify the city engineer of any changes from the approved drawings.

Godwin testified the requirements in that particular section read to the jury had been in effect since Godwin began working with the City of O’Fallon eleven years earlier. Appellants do not dispute this testimony. Further, Appellants also used Chapter 405 in the presentation of their case. Appellants also argue that the section, which merely addresses the procedure for approval by the City of O’Fallon, was irrelevant to the issue of whether certain elements of the Subdivision were improperly constructed or maintained by the developers.

Although we do not find the section to be especially relevant to the Association’s claims of negligence and for punitive damages, we cannot go so far as to deem it irrelevant. At any rate, its admission was not so prejudicial to Appellants as to amount to a manifest abuse of discretion.

For the foregoing reasons, Appellants’ point YII on appeal is denied.

In their eighth point on appeal, Appellants argue that the trial court erred in allowing homeowner witnesses to testify regarding their interpretation of statements made by Clark, who was deceased, and their subjective perceptions and feelings about the lakes because this testimony was unfairly prejudicial and materially affected the outcome of the trial in that it was irrelevant and speculative.

The standard of review for the admission of evidence is set forth in our discussion of the previous point.

Appellants identify the testimony of Tim Egan (Egan), who testified in response to the question, “[w]ere you ever at any meetings where anybody from the Jones Company made assurances about correcting the defects?” that Clark had promised him that “we will take care of this.” Appellants claim that there was no evidence as to whether Clark, an employee of Jones Company and a trustee, used “we” to mean Jones Company or to mean the trustees.

However, Egan did not speculate as to whether Clark meant Jones Company or the trustees. He merely stated what Clark had said to him. Furthermore, on cross examination Appellants asked Egan if Clark had specified who “we” was and Egan said no. There was no prejudice here.

Appellants argue that comments like Egan’s allowed the jury to believe certain promises were made on behalf of Jones Company when those promises were not made. However, there was plenty of evidence that the residents were relying on, and had been reassured by, the developer trustees that the problems with the common areas would be resolved. The jury was able to interpret the evidence presented to them on this issue, and could certainly reasonably conclude that Clark’s promises to repair the lakes were made on behalf of Jones Company.

Appellants complain that Egan’s statement was not given to them in response to an interrogatory that clearly asked for such information, and thus they were unfairly surprised at trial. However, there was plenty of evidence giving Appellants notice that residents had claimed that the trustee developers, including Clark, had reassured them that the common areas would be fixed. There is no prejudice to Appellants when there is cumulative evidence on an issue. See Anuhco, Inc. v. Westinghouse Credit Corp., 883 S.W.2d 910, 930 (Mo.App. W.D.1994).

Appellants also claim that the admission of homeowner statements in regard to their perceptions of the lakes was unfairly prejudicial. Some residents testified that they thought the lakes were beautiful and added a lot to the Subdivision; some testified that the lakes turned into muddy ponds. This testimony was relevant because the residents purchased homes in the Subdivision in part because of the amenities and it described the condition of the lakes at the beginning and as they eroded. The condition of the lakes was a central issue in the case. The relevance of this testimony clearly outweighed any possible prejudice to Appellants.

Accordingly, Appellants’ point VIII on appeal is denied.

Conclusion

The judgment of the trial court is affirmed.

GARY M. GAERTNER, SR., P.J., and KATHIANNE KNAUP CRANE, J., concur.

      . Subsequently, J.E. Jones and the original Trustees filed a Suggestion of Death for Clark, and the trial court granted a Motion for Involuntary Dismissal filed by Clark after the Association failed to file a timely Motion for Substitution.

      . All rule references are to Mo. R. Civ. P.2004, unless otherwise indicated.

      . 70.02(b) Form of Instructions. Whenever Missouri Approved Instructions contains an instruction applicable in a particular case that the appropriate party requests or the court decides to submit, such instruction shall be given to the exclusion of any other instructions on the same subject. Where an MAI must be modified to fairly submit the issues in a particular case, or where there is no applicable MAI so that an instruction not in MAI must be given, then such modifications or such instructions shall be simple, brief, impartial, free from argument, and shall not submit to the jury or require findings of detailed evidentiary facts.

      . All statutory references are to RSMo 2000.

      . Similar instructions were submitted to the jury regarding damage to the lakes and irrigation system.