Counsel spar over res judicata and 'invited error' defenses in appeal

Respondent's attorney, Mark Lee, urged the court that res judicata and invited error affect the admissibility of some arguments on appeal. Lee said administrative proceedings and a dismissal with prejudice around related issues have procedural effect and that a sentence added near the end of the trial — which appellants relied on — can constitute invited error if not simultaneously challenged in the trial court.

Appellants' counsel Jeff Wykell replied that "invited error" typically concerns evidentiary objections and that the court should focus on whether the substantive law was misapplied. Wykell also argued that the administrative citation respondents relied on lacks factual statements showing a change in quantity of flow. The panel questioned both sides on whether prior administrative or court steps gave each party a full opportunity to litigate the specific factual issue now raised on appeal.