Fowler v. Lincoln County Conservation Dist., 89,115.

• Decision Date: 12 December 2000
• Docket Number: No. 89,115.,89,115.
• Citation: 15 P.3d 502,2000 OK 96
• Parties: Eddie FOWLER and Karen Fowler, individually and as husband and wife, Dennis Hawkins and Arlene Hawkins, individually and as husband and wife, Lee Smith and Marjorie Smith, individually and as husband and wife, and Orah Fowler, individually, Appellees, v. LINCOLN COUNTY CONSERVATION DISTRICT, Appellant.
• Court: Oklahoma Supreme Court

15 P.3d 502

2000 OK 96

Eddie FOWLER and Karen Fowler, individually and as husband and wife, Dennis Hawkins and Arlene Hawkins, individually and as husband and wife, Lee Smith and Marjorie Smith, individually and as husband and wife, and Orah Fowler, individually, Appellees, v. LINCOLN COUNTY CONSERVATION DISTRICT, Appellant.

No. 89,115.

Supreme Court of Oklahoma.

December 12, 2000.

Ronald L. Walker, Connie M. Bryan, McKinney, Stringer & Webster, P.C., Oklahoma City, OK, for Appellant Lincoln County Conservation District.

Terry W. West, Bradley C. West, J. David Cawthon, The West Law Firm, Shawnee, OK, for Appellees.

LeAnne Burnett, Crowe and Dunlevy, Oklahoma City, OK, for Amicus National Watershed Coalition, National Association of Conservation Districts, and Oklahoma Association of Conservation Districts.

Dean A. Couch, Oklahoma Water Resources Board, Oklahoma City, OK, for Amicus Oklahoma Water Resources Board.

Jeannine Hale, Assistant Attorney General, Office of the Attorney General, Tulsa, OK, for Amicus State of Oklahoma.

HARGRAVE, V.C.J.

¶ 1 This issue in this contract case is whether the contract created a duty on the part of the Lincoln County Conservation District ("District") to maintain the condition of the lake created by its flood control easement and, if so, whether it breached that duty. The plaintiffs, adjacent landowners, sued District in contract for damages for failure to maintain the easement after blue-green algae formed on the District's flood control lake. The trial judge ruled that the easement contract was ambiguous, and permitted the introduction of parol evidence. The case was tried to a jury and judgment was rendered for the plaintiffs. District filed a motion for judgment notwithstanding the verdict/motion for new trial, both of which were denied by the trial judge. District appealed and District's motion to retain the case in this Court was granted. We affirm the jury verdict.

¶ 2 District sought to construct a dam on property then belonging to plaintiff Eddie Fowler's relatives. Eddie Fowler testified that the Fowlers did not want the dam or lake on their property, but were informed that the land would be taken by condemnation otherwise. In September 1978, the plaintiffs, or their predecessors in title, granted District an easement for the construction, operation, maintenance and inspection of a floodwater retarding structure to be located on the described land, to be called the Quapaw Creek Watershed, Site No. 11.¹

¶ 3 The easement provided for "the flowage of any waters in, over, upon or through such structure, and for the permanent storage and temporary detention of any waters that are impounded, stored or detained by such structure." The flood control structure was built in 1979. The easement provided that the landowners could use the land at any time, in any manner and for any purpose that did not interfere with the construction, operation, maintenance and inspection of the works of improvement. All of the plaintiffs used the lake for recreation and the plaintiffs Eddie and Karen Fowler used it for watering their dairy cattle.

¶ 4 According to the testimony of plaintiff Eddie Fowler, during the summer of 1991, he began to notice the presence of a greenish substance on the lake and then the health of some of his dairy cattle began to deteriorate. In October 1992, some of Eddie Fowler's cattle died and he noticed decreased milk production from the dairy herd. Autopsies on two of Eddie Fowler's dairy cows were performed in December 1992. The autopsies indicated that the cattle died of nitrate poisoning of some kind.

¶ 5 Around the first of December, 1992, Mr. Fowler went to District's office and told them that there was a problem with the lake. He was advised that the board members would be contacted. When he heard nothing from the District, Mr. Fowler again went back to District, and District's director came out to the farm around Christmastime. Mr. Fowler showed the director the algae bloom on the lake and the director took some photographs. In January, 1993, Mr. Fowler received a letter from District's director that advised him to get a dairy specialist and a chemist to check the water and feed and have tests run. Mr. Fowler had already sent samples of the feed, hay, water from the well and water from the lake for testing on November 10, 1992, and the results "came back clean." In January of 1993, Mr. Fowler again pulled samples of hay feed and water for testing by two different laboratories and it "came back clean" again. Mr. Fowler then sent some samples of the algae "bloom" to the Oklahoma Health Department's environmental lab and, although he received no written report, was told that blue-green algae had been identified.

¶ 6 Mr. Fowler called his state representative and a meeting was arranged at the farm on or about February 8, 1993, to determine what was wrong with the lake and what could be done about it. The county agent, along with representatives from the Corporation Commission, Conservation District, Conservation Commission, and Oklahoma Health Department's environmental lab attended the meeting. They viewed the lake, as well as an area where an oil pipeline had, according to Mr. Fowler, "blownout" in 1990, and had been cleaned up by the pipeline companies just before the meeting.

¶ 7 In March of 1993, Mr. Fowler sought legal advice. In July 1993, the algae bloom was sent to OSU for testing. The lab report from OSU revealed that the particular blue-green algae involved was microcystis and stated that "this algae should be considered hazardous to livestock." The report advised that "livestock and other animals should not be permitted access to this pond."² The report indicated that the pond water also contained a small amount of cyanide at less that 5 parts per million, a level that should not present a hazard to livestock. The report stated that the nitrate level was less than 5 parts per million, which was not toxicologically significant. On November 3, 1993, Mr. Fowler sold his dairy cattle. Mr. Fowler testified that 28 cows and 18 calves died from November 1992 until the cows were sold in November 1993.

¶ 8 Plaintiffs first sued District under the Governmental Tort Claims Act for negligence in failing to maintain the Quapaw Creek Watershed Lake Site No. 11. The District moved to dismiss on the grounds that it is a political subdivision and that no written notice of the claim was presented within one year after the claim arose, as required by Title 51 O.S. § 156. Plaintiffs then filed an amended petition alleging breach of contract against District for failing to maintain Lake Site No. 11 pursuant to the easement agreement. As a result of the alleged breach of contract, the Fowlers, Hawkins and Smiths alleged that they suffered economic losses and diminishment in the value of their properties around "this polluted watershed control lake" for which they sought recovery. Plaintiffs' third cause of action, for specific performance, sought an order requiring District to perform the proper maintenance as set out under its contract and to take whatever steps were necessary to restore the Quapaw Creek Watershed Lake to its original condition, or in the alternative, to remove the lake from the property.³

¶ 9 A previous judge in the case granted District's motion to dismiss for failure to state a claim. On motion to reconsider, the trial judge vacated his previous order. Subsequently, District moved for summary judgment and Plaintiffs moved to amend their petition in order to dismiss the pipeline companies, to add Orah Fowler as an additional plaintiff, and to add the Oklahoma Conservation Commission as a party defendant. The Oklahoma Conservation Commission moved to dismiss on the grounds that the court lacked jurisdiction over the Commission and because the petition failed to state a claim against the Commission. The trial judge granted the Conservation Commission's motion to dismiss and sustained the District's motion for summary judgment.

¶ 10 Plaintiffs appealed and the Court of Appeals, Division 4, affirmed the dismissal of Commission and reversed the grant of summary judgment in favor of District. The case was remanded to district court and proceeded to jury trial. The jury returned a verdict in favor of the plaintiffs.⁴ The trial court denied District's motion for judgment notwithstanding the verdict/motion for new trial. District appealed and it's motion to retain was granted.

¶ 11 The case was presented and tried as a contract case. In its motion for judgment notwithstanding the verdict and motion for new trial, District, represented by the attorney general's office, requested the trial court to take judicial notice of federal laws and regulations pertinent to watershed districts that it claimed showed that District had no duty or responsibility to maintain water quality and that District did nothing to cause the problems with the water. The trial judge correctly noted that it was being asked to consider the case on an entirely different basis from that on which it was presented to the jury, with pages and pages of federal regulations and code law that never were part of the original trial.

¶ 12 District raises numerous issues on appeal, but the majority of those issues were not raised in its motion for judgment notwithstanding the verdict/motion for new trial.⁵ We may not consider errors not raised in the motion for new trial.⁶ We are left with only the issues raised by the post-trial motions. District offers numerous arguments in opposition to plaintiffs' claims, but the only issues raised in District's motion for judgment NOV/motion for new trial were that the easement agreement did not require them to maintain the water quality in the flood control lake, that neither federal or state law places a duty on them to maintain water quality, and that plaintiffs have failed to show any action on the part of District that caused their...