Schaubel v. Iversen, 92-346

• Decision Date: 02 March 1993
• Docket Number: No. 92-346,92-346
• Parties: Charles SCHAUBEL and Eva Schaubel, Plaintiffs and Appellants, v. Enoch IVERSEN and Olivia Iversen, Defendants and Respondents.
• Court: Montana Supreme Court

Page 489

848 P.2d 489

257 Mont. 164

Charles SCHAUBEL and Eva Schaubel, Plaintiffs and Appellants, v. Enoch IVERSEN and Olivia Iversen, Defendants and Respondents.

No. 92-346.

Supreme Court of Montana.

Submitted on Briefs Dec. 17, 1992.

Decided March 2, 1993.

J. Douglas Alexander, Sidney, Robert L. Johnson, Lewistown, for plaintiffs and appellants.

Geoffrey R. Keller, Matovich, Addy & Keller, Billings, for defendants and respondents.

HARRISON, Justice.

This is an appeal from the Seventh Judicial District, Richland County, the Honorable Richard G. Phillips presiding. Appellants Charles and Eva Schaubel (the Schaubels) appeal from a directed verdict and denial of their motion for a new trial. We affirm.

The Schaubels raise only the issue of whether the District Court erred in applying Sec. 85-7-2212, MCA, in granting its directed verdict. However, because the Schaubels failed to specify as error and address an independent ground on which the District Court granted the directed verdict, we need not address this issue.

The Schaubels sued Enoch and Olivia Iversen (the Iversens) on the theory that they were negligent regarding the overflow of a drainage ditch that runs approximately twenty-five to fifty feet from the Schaubels' residence and on the theory that they were operating a nuisance. According to the pre-trial order, whether the Iversens were negligent, and whether their negligence, if any, was the proximate cause of the Schaubels' damage was to be determined at trial. Also to be determined as an issue of law was whether Sec. 85-7-2212(2), MCA, barred the Schaubels' claim. That section reads:

85-7-2212. Irrigation ditches--nonliabilities. An irrigation district or private person or entity owning or operating irrigation ditches is not liable for:

. . . . .

(2) personal injury or property damage occurring on another's land and caused by water seepage that existed or began before the injured person first arrived on or obtained an interest in the land or before the damaged property was first placed on the land, if the seepage does not carry toxic chemicals onto the land;

. . . . .

At the close of the Schaubels' case-in-chief the Iversens moved for a directed verdict. After lengthy discussion in chambers, the District Court granted this motion based on two reasons. The first reason was the defense provided by Sec. 85-7-2212(2), MCA. The second reason was the Schaubels' failure to establish a duty or breach of any duty by the Iversens or to show that the Iversens' irrigation practices were different than would have been practiced by a reasonable person. The second reason amounts to failure to establish a prima facie case of negligence.

The Schaubels raised only the application of Sec. 85-2-2212(2), MCA, in their motion for a new trial, which the court denied after briefing and oral argument. They raised only that issue on appeal also. However, as the Iversens correctly point out in their brief to this Court, that was not the only basis on which the District Court granted their motion for a directed verdict.

The issue of whether the District Court erred in determining that the Schaubels had failed to establish a prima facie case of negligence is not properly before this Court, as Rule 4(c), M.R.App.P., requires that the notice of appeal "designate the judgment, order or part thereof appealed from." State v. Delap (1989), 237 Mont. 346, 351, 772 P.2d 1268, 1271. Furthermore, because the Schaubels did not raise the issue or argue it in their brief, the issue is deemed waived and we need not address it. Teesdale v. Anschutz Drilling Co. (1960), 138 Mont. 427, 431, 357 P.2d 4, 7; Hagerty v. Hall (1959), 135 Mont. 276, 283, 340 P.2d 147, 151; See also Nutter v. Permian Corp. (1986), 224 Mont. 72, 727 P.2d 1338 (order denying sanctions would not be reversed where appellant filed no brief or transcript with this Court). "This Court will not endeavor to review a matter when appellant has directed no argument toward it." Sands v. Nestegard (1982), 198 Mont. 421, 428, 646 P.2d 1189, 1193.

The Schaubels argue in their reply brief that the District Court did not specifically determine that they had failed to establish a prima facie case; rather, the court's second enumerated reason also referred to Sec. 85-7-2212, MCA, and not to another issue. The District Court specifically stated:

The other [reason for granting the motion for directed verdict] is I fail to find any evidence of any standard to establish the duty or any evidence of a breach of that duty to show that the irrigation practices were improper. There has been no evidence presented that the irrigation as practiced by the Iversens was not as would have [been] done by a reasonable person.

Contrary to the Schaubels' argument, this statement is not unclear or ambivalent. It speaks directly to their failure to establish a prima facie case of negligence. There is no doubt that the court was speaking to this issue when its statement is viewed in light of the following:

1....