How the Doctrine of Invited Error can ruin your appeal.

In Transport Ins. Co. v. TIG Ins. Co. (2012) ___ Cal.App.4th ___, the First Appellate District, Division Two, the court was faced with an appeal dealing with reinsurance, and more particularly, the jury's finding that the lawsuits were barred by the statute of limitations.  The appeal "generated over 8,000 pages of appendices, 35 volumes of reporter's transcripts, and 425 pages of well-written briefing, including a 180-page appellant's reply bief."  Whew! (Opn., p. 2.) (I would love to see - or have - the attorneys' fees in this case.)

The appellant argued the appeal involved several issues of first impression in California and looked to the court to become the lead authority on these issues.  Instead, the court resolved the appeal under principles of appellate review, including the doctrine of invited error. 

Appellant first argued that the trial court committed instructional error because the instruction on the statute oflimitations contained an incorrect statement of law regarding accrual and omitted any mention of tolling.  The court concluded the argument was barred by the doctrine of invited error.

Invited error occurs when an appellant's conduct induces or invites the commission or error by the trial court, resulting in an estoppel to raise it as a ground for reversal on appeal.  (As an interesting side note, the court cited to Cal. Practice Guide: Civil Appeals and Writs.  One of the authors of that treatise, Jon B. Eisenberg, is co-counsel for appellant.) 

While the instruction in this case was submitted by another party, appellant agreed to the instruction.  Appellant later argued that an attorney who submits to the trial court after an adverse ruling and after making appropriate objections, does not waive the error.  The court of appeal did not see it the same way, indicating that appellant's recitation of the fact was less than candid.

One complaint that I frequently hear is that attorneys cease objecting because they are fearful of a trial court's reaction.  The court stated, "the claim that advocating a position with an experienced judge would somehow 'aggravate' her is sheer speculation -- not to mention demeaning."  (Opn., pp. 25-26)  In reality, making objections can irritate a judge, and the attorney is mindful of the fact that during the course of trial, the judge has many opportunities to hurt the attorney's presentation of the case.  However, failing to object also results in the loss of valuable rights and grounds for appeal, so the attorney has to risk a judge's displeasure so the record on appeal can be preserved.

The court also noted that appellant did not request an instruction on equitable tolling.  Each party "'must propose complete and comprehensive instructions in accordance with his theory of the litigation; if the parties do not do so, the court has no duty to instruct on its own motion.'"  (Opn., p. 27.)

The court also found that appellant's challenge to the trial court's order denying its motion for summary adjudication failed because an order granting or denying summary adjudication is generally reviewable only by a petition for writ of mandamus, especially where the parties litigated the same issues at trial.  The court also found the argument would fail on its merits.

Finally, the court rejected appellant's last argument that the trial court erred in rejecting its equitable estoppel instruction.  Although appellant proposed such an instruction, the trial court did not find any evidence to support the instruction.  It concluded, "A party is entitled to 'correct' instructions on 'every theory of the case advanced by [it] which is supported by substantial evidence," citing Soule v. General Motors Corp. (1994) 8 Cal.4th 548, 572. (Opn., p. 32.)

How frustrating and expensive to have gone through this appeal, spending a boatload of money on attorneys' fees and producing a hefty boatload of paper, only to have the door shut on you on strictly procedural issues.