                                                                                  FILED
                                                                      United States Court of Appeals
                      UNITED STATES COURT OF APPEALS                          Tenth Circuit

                                 TENTH CIRCUIT                                May 18, 2016
                         _________________________________
                                                                          Elisabeth A. Shumaker
                                                                              Clerk of Court
JANE FRERES,

      Plaintiff - Appellee,

v.                                                          No. 15-4115
                                                  (D.C. No. 2:13-CV-00400-DAK)
XYNGULAR, a Delaware corporation,                            (D. Utah)

      Defendant - Appellant.
                      _________________________________

                             ORDER AND JUDGMENT*
                         _________________________________

Before KELLY, O’BRIEN, and GORSUCH, Circuit Judges.
                   _________________________________

      After Xyngular fired Jane Freres, she brought a breach of contract action

against the company and won. Using a special verdict form the parties had agreed

upon, the jury decided Ms. Freres was entitled to attorney fees and left it to the

district court to determine the exact amount of fees due after trial. But when

Ms. Freres sought that very determination after trial, Xyngular objected, arguing for

the first time that Utah law precluded an award of attorney fees as consequential

damages. The district court rejected Xyngular’s argument as coming too late in the

      *
        After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral
estoppel. It may be cited, however, for its persuasive value consistent with
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
day and proceeded to award Ms. Freres the fees she sought. It is this ruling the

company now asks us to undo.

       We don’t see how we might. No litigant can win an appeal by complaining

about a putative error by the district court the litigant itself invited. See United States

v. Burson, 952 F.2d 1196, 1203 (10th Cir. 1991) (“[T]he Invited Error Doctrine . . .

prevents a party who induces an erroneous ruling from being able to have it set aside

on appeal.”). And that much seems to be precisely what is happening here. Xyngular

could have objected to the proposed jury instructions permitting fees as consequential

damages as inconsistent with Utah law. Instead, it stipulated to those instructions.

Later, when during deliberations the jury asked the court to confirm that it could

award fees, the district court asked the parties for their views. And once again

Xyngular expressly agreed that the jury should be allowed to “put attorneys’ fees and

a dollar amount. We’ve already said that that’s what consequential damages are.”

Aplt. App. at 541. In these circumstances it seems to us that, if any possible error

might lurk here in the award of attorney fees to Ms. Freres, it could only be an

invited one. See Burson, 952 F.2d at 1203.

       Affirmed.



                                             ENTERED FOR THE COURT


                                             Neil M. Gorsuch
                                             Circuit Judge



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