Opinion:Farris v. Masquelier, 2022 OK 91
Subject Matter:Appealability of Objections to Jury Instructions
Date Decided:November 15, 2022
Trial Court:District Court of Custer County
Route to this Court:Petition for certiorari for Court of Civil Appeals’s decision to remand for further proceedings.
Facts:Plaintiffs/Appellants own property downstream from property owned by Defendants/Appellees. The Creek begins from an underground source on the Masqueliers’ property. In January 2014, Defendants constructed a dam on the Creek. 

When the Plaintiffs discovered the construction of the dam, they filed an application for an appropriation permit from the Oklahoma Water Resources Board (“OWRB”). Defendants also filed an application for a permit to the OWRB seeking to appropriate some of the Creek water.

The OWRB conducted a hearing after which it issued permits, with conditions, to each applicant. The Plaintiffs’ permit allowed for an appropriation of 68.75 acre-feet of stream water per year to irrigate fifty-five acres of trees and crops, as requested. The OWRB imposed conditions upon the Defendants to agree to continually release at least 12.2 gallons per minute (gpm) to the downstream property owners.The OWRB further conditioned the permit on the Defendants’ agreement to not interfere with then-existing domestic and appropriative uses of the downstream owners. The decision of the OWRB as to each of the permits was not appealed by either party.
In April 2016, Plaintiffs filed suit against Defendants claiming that, as a result of the dam’s construction, they no longer received adequate water flow to meet their lawful riparian and appropriative rights to the Creek waters. Plaintiffs further claimed they incurred damages for harm to their real property and a resulting inability to farm their land. Plaintiffs filed suit against the Defendants.

The jury returned a verdict for the Defendants on all claims and the trial court subsequently denied the request for an injunction. The trial court awarded costs to the Defendants but denied their request for attorney fees. Plaintiffs moved for a new trial and, after this request was denied, they appealed. Defendants counter-appealed the denial of their attorney fees. On appeal, COCA found multiple errors in the jury instructions, reversed the trial court’s decision, and remanded the case for further proceedings. The Defendants petitioned for certiorari.
Standard of Review:The Court applied the proper fundamental error standard of review.
Analysis:Plaintiffs first alleged that the trial court committed an error in the jury instructions, however, the record indicated that Plaintiffs made no objections to the jury instructions at the trial. Thus, a party that makes no objection to a jury instruction prior to the giving of that instruction to the jury but then raises the issue on appeal severely limits the authority of the appellate court to review the alleged error. Sullivan v. Forty-Second West Corp., 1998 OK 48, ¶ 5. The Court determined that the failure to timely provide an objection to a jury instruction amounted to a waiver of the alleged error as according to Capshaw v. Gulf Ins. Co., 2005 OK 5, ¶ 13. The Court also held that the Court of Civil Appeals erred in its standard of review because the review of instructions and whether they misled the jurors was to be used only if Plaintiffs timely objected to the instructions.

In regard to whether the jury instruction that failed to specifically use the term “negligence per se” in its description of the law, the Court found that the instruction itself was not a misstatement of the law because it was still properly defined and cited to Oklahoma Statutes for the definition of negligence per se and the ordinance on interference with stream flow. Plaintiffs also failed to timely object to the jury instruction at trial.

Plaintiffs also argued that the trial court erred in ruling that they were required to provide their own water storage system before making a water rights interference claim under their Oklahoma Water Resources Board permit. The Court found nothing in the record that the trial court made such a statement to the jury and that the claimed error arose out of a ruling on a motion in limine. The issue that the Court emphasized was that Plaintiffs offered no proof that they made an objection in the record, thus the pretrial limine ruling was not preserved for appeal. Furthermore, Plaintiffs were granted a jury instruction on the matter of damages to real property. After they were unsuccessful, they claimed that they made no such claim and were not required to pay attorney fees. The Court rejected that argument and awarded Defendants attorney fees.
Outcome:The opinion of the Court of Civil Appeals is vacated; the trial court’s judgment is affirmed in part, reversed in part and remanded for further proceedings.
Vote:7-1. Concur: Darby, C.J., Kane, V.C.J., Winchester (author), Edmondson, Combs, Gurich, Kuehn, JJ. Concur in Part, Dissent in Part: Rowe, J.
Other:By separate writing, Justice Rowe agreed with the Court’s judgment to reverse the Court of Civil Appeals’ opinion and affirm the trial court’s ruling to deny the motion for a new trial. The Justice only disagreed with the finding that Defendants were entitled to attorney fees.