Gausewitz v. Flanigan

Full title: ALFRED GAUSEWITZ et al., Plaintiffs and Respondents, v. PRESTON FLANIGAN…

Court: California Court of Appeals, Fourth District, Third Division

Date published: Dec 24, 2007

No. G037721 (Cal. Ct. App. Dec. 24, 2007)

Opinion

ALFRED GAUSEWITZ et al., Plaintiffs and Respondents, v. PRESTON FLANIGAN et al., Defendants and Appellants. ALFRED GAUSEWITZ et al., Plaintiffs and Respondents, v. EUGENE J. TOTH et al., Defendants and Appellants. ALFRED GAUSEWITZ et al., Plaintiffs, Cross-defendants and Appellants, v. EUGENE J. TOTH et al., Defendants, Cross-complainants and Respondents. G037721, G037728, G037955 California Court of Appeal, Fourth District, Third Division December 24, 2007

NOT TO BE PUBLISHED

Super. Ct. Nos. 05CC04317 & 05CC07995

ORDER MODIFYING OPINION AND DENIAL OF PETITION FOR REHEARING

BEDSWORTH, J.

It is ordered that that the opinion filed herein on November 27, 2007, be modified in the following particular:

On page 12, after the second full sentence, which ends with the phrase “no continuous adverse use”, add the following footnote:

“In a petition for rehearing, Preston and Elizabeth Flanigan argue the doctrine of invited error does not apply because although the hostile use instruction is marked “given as modified,” the modification consisted of using their instruction along with one requested by Gausewitz, and the part requested by Gausewitz was wrong. But the combining of the instructions has not been shown to us anywhere in the record and was not explained in any of the briefs. In light of this, we conclude the refinement now asserted was waived. In addition, we note the challenge to the hostile use instruction that was raised in the brief fails to cite any legal authority. So, quite apart from invited error, the argument was waived for failure to provide supporting authority.”

This modification does not effect a change in judgment.

The petition for rehearing is DENIED.

WE CONCUR: RYLAARSDAM, ACTING P. J., IKOLA, J.