§ 3.7.2.5.4 Presentation of Issues and Arguments Below.

• Jurisdiction: Arizona

§ 3.7.2.5.4 Presentation of Issues and Arguments Below. Legal issues and arguments generally have to be presented specifically to the trial court, and cannot be argued for the first time on appeal. See McDowell Mountain Ranch Land Coalition v. Vizcaino, 190 Ariz. 1, 5, 945 P.2d 312, 316 (1997); Hawkins v. Allstate Ins. Co., 152 Ariz. 490, 503, 733 P.2d 1073, 1086 (1987) (issues not raised until petition for review not considered); Napier v. Bertram, 191 Ariz. 238, 239, ¶ 6, 954 P.2d 1389, 1390 (1998) (court should not consider new factual theories raised for first time on appeal from summary judgment); Hannosh v. Segal, 235 Ariz. 108, 115, ¶ 25, 328 P.3d 1049, 1056 (App. 2014) (arguments not raised in superior court were waived for appeal).

By the rule of “invited error,” one who deliberately leads the trial court to take certain action may not upon appeal assign that action as error. See In re MH2010-002348, 228 Ariz. 441, 445, ¶ 12, 268 P.3d 392, 396 (App. 2011); In re MH2009-002120, 225 Ariz. 284, 287, ¶ 8, 237 P.3d 637, 640 (App. 2010); In re MH 2009-001264, 224 Ariz. 270, 272, ¶ 8, 229 P.3d 1012, 1014 (App. 2010).

Numerous cases have held appellants waived arguments on appeal where they did not raise those arguments in the trial court. See, e.g., Murphy Farrell Dev., LLP v. Sourant, 229 Ariz. 124, 132, ¶ 28, 272 P.3d 355, 363 (App. 2012) (entitlement to constructive trust); Desarrollo Immobilliario v. Kader Holdings, 229 Ariz. 367, 373 n.8, ¶ 18, 276 P.3d 1, 7 n.8 (App. 2012) (reasonableness of forum selection clause); Castle v. Barrett-Jackson Auction Co., LLC, 229 Ariz. 471, 473, ¶ 7, 276 P.3d 540, 542 (App. 2012) (trial court considered documents attached to motion to dismiss without converting motion to motion for summary judgment).

As explained by the supreme court in Trantor v. Fredrikson, 179 Ariz. 299, 300-01, 878 P.2d 657, 658-59 (1994), errors not raised at trial cannot be raised on appeal absent extraordinary circumstances, since both the trial court and opposing counsel should be afforded the opportunity to correct asserted defects before any error may be raised on appeal. Issues and arguments not raised initially at trial are accordingly deemed waived. See In re MH 2007-001264, 218 Ariz. 538, 540, ¶ 16, 189 P.3d 1111, 1113 (App. 2008); Rand v. Porsche Fin. Servs., 216 Ariz. 424, 434 n.8, ¶ 39, 167 P.3d 111, 121 n.8 (App. 2007); Aranda v. Cardenas, 215 Ariz. 210, 218, ¶ 27, 159 P.3d 76, 84 (App. 2007).

A trial court cannot be expected to glean a party’s arguments from simply reviewing the evidence. To preserve legal arguments for appeal, a party must articulate them in the trial court. See Best Choice Fund, LLC v. Low & Childers, P.C., 228 Ariz. 502, 508 n.3, ¶ 17, 269 P.3d 678, 684 n.3 (App. 2012); see also Flood Control Dist. v. Paloma Inv. Ltd., 230 Ariz. 29, 46, ¶ 63, 279 P.3d 1191, 1208 (App. 2012) (court of appeals would not review argument that superior court erroneously denied an expert witness fee where the party who had employed the witness did not provide any citations to the portion of the record in which the reasonableness of the witness fee was argued).

However, in Reid v. Reid, 222 Ariz. 204, 208, ¶ 16, 213 P.3d 353, 357 (App. 2009), the court of appeals refused to apply the waiver rule stated in Trantor to an argument that the trial court failed to make adequate findings supporting its child custody determination. It instead held that the trial court’s failure to make adequate findings was an error of law requiring reconsideration and remanded for that court to make proper findings. Where a motion in limine was denied, a stipulation to admission of evidence also did not waive the right to appellate review. See Bogard v. Cannon & Wendt Elec. Co., Inc., 221 Ariz. 325, 332, ¶ 24, 212 P.3d 17, 24 (App. 2009).

Generally, counsel’s failure to object to an argument at trial waives...