In preparing for a hearing recently, I kept coming up on cases citing the “invited error” doctrine. The doctrine of invited error seems pretty straight forward. It is a form of estoppel. The doctrine states that a party cannot complain on appeal that the trial court took a specific action the complaining party requested. See Tittizer v. Union Gas Corp., 171 S.W.3d 857 (Tex. 2005), citing, Ne. Tex. Motor Lines v. Hodges, 138 Tex. 280, 158 S.W.2d 487, 488 (Tex. 1942). However, there are a number of cases that discuss the doctrine and find that it does not apply. So, when does it apply? The short answer is to look carefully at the relief requested and provided by the trial court.
In Tittizer v. Union Gas Corp., Union Gas asked for a uniform date to apply to all royalty owners so that the effective date of pooling was the date of first production. The court granted a uniform date to all royalty owners but one. Because the court make a different ruling as to one royalty owner, the invited doctrine did not apply. See Tittizer v. Union Gas Corp., 171 S.W.3d 857, 862 (Tex. 2005).
In Neasbitt v. Warren, 22 S.W.3d 107 (Tex. App. – Fort Worth 2000, n.w.h.), horse owners sued their veterinarian, Warren, for a botched surgery that caused their horse to be put down. Warren filed a motion for cost bond and production of expert report as required by the Texas Medical Liability and Insurance Improvement Act (i.e. article 4590i) and Neasbitt did not comply. Warren filed a no-evidence motion for summary judgment and in response Neasbitt stated that suit was filed under Texas Medical Liability and Insurance Improvement Act and they therefore had 180 days to file an expert report. The court issued a notice of intent to dismiss and Neasbitt filed a response stating that Texas Medical Liability and Insurance Improvement Act did not apply and also, alternatively, attached a copy of the expert report but did not file a cost bond. The trial court dismissed the case for the failure to file a cost bond and Neasbitt appealed arguing that the Texas Medical Liability and Insurance Improvement Act did not apply. The trial court never ruled on the motion for summary judgment or the response filed by Neasbitt.
The Court of Appeals reversed and held that the Texas Medical Liability and Insurance Improvement Act did not apply to veterinarians and also that Nesbitt was not prohibited on appeal for raising that issue even though Neasbitt’s response to Warren’s motion for summary judgment stated that the Texas Medical Liability and Insurance Act did apply. Because the trial court never ruled on Warren’s motion for summary judgment or Neasbitt’s response, it was Warren, not Neasbitt, who brought up the issue as the basis for the motion to dismiss for want of prosecution. Therefore, the invited doctrine did not apply to Neasbitt.
While seemingly straightforward, the invited error doctrine does require a comparison, among other things, of the relief requested and granted and the party moving for and receiving the requested relief. The opinions in this blog are solely the author’s and any comments, suggestions or replies can be sent to email@example.com.