McKell v. McKell

2024 UT App 72
THE UTAH C OURT OF APPEALS
S UMMER TATIANA M CK ELL AND M ICHELLE TISCHNER ,
Appellants,
v.
R OBERT C. M CK ELL,
Appellee.
Opinion
No. 20220315-CA
Filed May 9, 2024
Fourth District Court, Provo Department
The Honorable M. James Brady
No. 210400528
Christopher M. Ault and Chad A. Tengler,
Attorneys for Appellants
Barry N. Johnson, James K. Tracy, J. Jacob Gorringe,
and Bradley C. Johnson, Attorneys for Appellee
JUDGE JOHN D. L UTHY authored this Opinion, in which
JUDGES GREGORY K. O RME and R YAN M. HARRIS concurred.
LUTHY, Judge:
¶1 	Summer 	Tatiana 	McKell, 	through 	her 	legal 	guardian
Michelle Tischner, brought suit against Robert C. McKell, her
adoptive father and former legal guardian, for claims related to
sexual 	abuse 	he 	committed 	against 	her. 	Robert1 moved 	to
dismiss 	Summer’s 	claims 	on 	the 	ground 	that 	they 	were
untimely 	under 	the 	relevant 	statute 	of 	limitations. 	Summer
contended 	that the 	limitations period 	was statutorily tolled
while 	she 	was 	incompetent, 	until 	the 	time 	of 	Tischner’s
1. “Because the parties share the same last name, we use their
given 	names 	with 	no 	disrespect 	intended 	by 	the 	apparent
informality.” Rosser v. Rosser, 2021 UT 71, ¶ 1 n.1, 502 P.3d 294.

McKell v. McKell
20220315-CA 	2 	2024 UT App 72
appointment as her guardian. Before the district court issued a
decision on the motion, our supreme court issued an opinion
clarifying 	that 	the 	relevant 	statute 	tolls 	limitations 	periods
throughout a person’s incompetency, regardless of whether the
person has an appointed guardian. See Zilleruelo v. Commodity
Transporters, Inc., 2022 UT 1, ¶ 24, 506 P.3d 509. However, neither
party brought this decision to the district court’s attention, and
the court dismissed Summer’s claims on the grounds that the
limitations 	period 	was 	not 	tolled 	while 	she 	had 	guardians
appointed and that the combined time of the guardianships
exceeded the limitations period.
¶2 	Summer appeals, arguing that the district court improperly
dismissed her claims as time-barred. She asserts that, as Zilleruelo
clarifies, the limitations period was statutorily tolled even when
she 	had 	guardians. 	Robert 	contends 	that 	Summer 	did 	not
preserve this argument and that she invited any error in the
court’s ruling on timeliness. Alternatively, he asks us to affirm on
the ground that Summer did not sufficiently plead incompetence.
We reject Robert’s preservation argument, we conclude that
Summer did not invite the error leading to the dismissal of her
claims, 	and 	we 	determine 	that 	Summer 	sufficiently 	pled
incompetence. Accordingly, we conclude that the district court
erred in dismissing Summer’s claims, and we reverse.
BACKGROUND2
Summer’s Birth and Adoption
¶3 	Summer was born in Russia in 1994 and was later brought
to Utah by her adoptive mother (Mother). Summer purportedly
2. “In reviewing a district court’s grant of summary judgment, we
view the facts and all reasonable inferences drawn therefrom in
the light most favorable to the nonmoving party and recite the
(continued…)

McKell v. McKell
20220315-CA 	3 	2024 UT App 72
suffered traumatic injuries at birth that caused “a variety of
mental, emotional, and behavioral developmental disabilities,
including cognitive impairment.” Mother married Robert in 2007,
and Robert subsequently adopted Summer.
Summer’s Guardianships and Robert’s Criminal Charges
¶4 	In 	January 	2013, 	after 	Summer 	had 	turned 	eighteen,
Mother 	and 	Robert 	petitioned 	to 	be 	jointly 	appointed 	as
Summer’s 	limited 	guardians 	and 	conservators. 	They 	were
appointed as such on February 15, 2013.
¶5 	Soon after this appointment, Summer reported that Robert
had 	sexually 	assaulted 	her 	on 	multiple 	occasions. 	Criminal
charges were filed against Robert in April 2013. Robert and
Mother resigned as Summer’s legal guardians and conservators
on January 7, 2014.
¶6 	Michelle Tischner, Summer’s sister, was appointed as
Summer’s legal guardian on October 2, 2017. In November of that
year, Robert pled guilty to four counts of sexual battery for his
conduct toward Summer.
Summer’s Complaint and Robert’s Motion for Judgment on the
Pleadings
¶7 	On April 22, 2021, Summer, through Tischner, brought this
suit against Robert. In her complaint, Summer alleged, among
other things, that Robert had sexually assaulted her.
¶8 	In his answer, Robert asserted as an affirmative defense
that Summer’s claims were “barred by the applicable statutes of
limitations.” Robert then filed a motion for judgment on the
pleadings, contending that “[t]he four-year statute of limitations
facts accordingly.” Ockey v. Club Jam, 2014 UT App 126, ¶ 2 n.2,
328 P.3d 880 (cleaned up).

McKell v. McKell
20220315-CA 	4 	2024 UT App 72
governing each of [Summer’s] claims [had] expired several years
[previously].”
¶9 	Summer opposed this motion, arguing that it “ignore[d]
the tolling provisions of Utah law that apply to disabled and
incapacitated victims like Summer” and that “[b]ecause the
statutes 	of 	limitation 	were 	tolled 	until 	Ms. 	Tischner 	was
appointed 	guardian, 	the 	action 	was 	timely 	filed.” 	Summer
pointed to Utah Code section 78B-2-108 (the Tolling Statute),
which provides, “During the time that an individual is underage
or mentally incompetent, the statute of limitations for a cause of
action other than for the recovery of real property may not run.”
Utah Code § 78B-2-108(2). Summer stated that “[t]he statute of
limitations on [her] claims was tolled until the appointment of her
guardian” and that “her claims were timely filed within the
applicable statutes of limitation” because she “brought this action
within four years of” the appointment of Tischner and “the curing
of her legal incapacity.”
¶10 	Robert 	replied 	that 	Summer’s 	complaint 	did 	not
adequately plead incompetence and that even if it did, Summer’s
incompetence was cured more than four years prior when Mother
became Summer’s guardian and conservator.
Summer’s Amended Complaint and Robert’s Motion to Dismiss
¶11 	Summer then sought and obtained leave to amend her
complaint. Her amended complaint stated that “Robert signed
and filed a ‘Verified Consent to Conservatorship’ wherein he
affirmed that . . . ‘Summer suffers from a disability that has
impeded her ability to progress mentally and intellectually, and
on information and belief, has only attained the intellectual age of
approximately 12 years, though she is 18 years old.’” It asserted
that “Robert and [Mother’s] 2013 limited guardianship is void ab
initio due to fraud upon the court in prosecuting the petition, bad
faith, 	violating 	public 	policy 	against 	using 	court-appointed
guardianship to accomplish unlawful ends, failing to discharge

McKell v. McKell
20220315-CA 	5 	2024 UT App 72
obligations or responsibilities, etc.” Additionally, it declared that
“Summer remained under a disability and was therefore legally
incompetent 	until 	the 	appointment 	of 	her 	current 	limited
guardian.”
¶12 	Robert filed a motion to dismiss Summer’s amended
complaint. He again argued that Summer’s claims were time-
barred because “she had a legal guardian in place for well over
four years before asserting her sexual assault claims.”
¶13 	Summer opposed Robert’s motion. She reiterated her
position that she was incompetent until Tischner’s appointment
as guardian, and she stated that “at that point the statute of
limitations began to run.”
¶14 	Robert replied by explaining that his calculations as to
timeliness included Mother’s time as Summer’s guardian such
that 	“between 	[Mother’s] 	and 	Tischner’s 	guardianships
combined, Summer waited too long to assert her sex abuse
claims.”
Zilleruelo v. Commodity Transporters, Inc.
¶15 	In January 2022, our supreme court issued an opinion in
Zilleruelo v. Commodity Transporters, Inc., 2022 UT 1, 506 P.3d 509,
interpreting the Tolling Statute. Therein, the court provided the
following analysis:
The 	Tolling 	Statute 	has 	two 	relevant
subsections. 	The 	first 	prohibits 	a 	mentally
incompetent 	individual 	from 	initiating 	a 	claim
without a legal guardian. With this language—
“without a legal guardian”—the Legislature has
decreed that a mentally incompetent person cannot
bring suit unless that person has a legal guardian.

McKell v. McKell
20220315-CA 	6 	2024 UT App 72
The second subsection speaks to a different
question. It guarantees that a statute of limitations
will 	not 	run 	against 	a 	mentally 	incompetent
individual during the time that the individual is
mentally incompetent. However, the Legislature
omitted the language “without a legal guardian”
from 	the 	second 	subsection. 	. 	. 	. 	We 	presume
omissions to be purposeful.
Taking note of this omission and deeming it
purposeful, the language of the Tolling Statute is
plain. A statute of limitations is tolled during a
person’s mental incompetency, whether or not that
person has a legal guardian.
[The appellee] argues for a reading of the
Tolling Statute where the second subsection would
parallel the first. In other words, [the appellee]
wants us to read the Tolling Statute to provide:
“During the time that an individual is underage, or
mentally incompetent and without a legal guardian,
the statute of limitations for a cause of action other
than for the recovery of real property may not run.”
Without a doubt, the Legislature could have written
the Tolling Statute in this way. But also without a
doubt, it did not. And it is not our job to second
guess the Legislature and insert substantive terms
into the statute’s text.
Simply stated, the Tolling Statute provides
that the statute of limitations is tolled while a person
is mentally incompetent, whether or not that person
is represented by a legal guardian.
Id. ¶¶ 20–24 (cleaned up). Neither party brought Zilleruelo to the
district court’s attention.

McKell v. McKell
20220315-CA 	7 	2024 UT App 72
Oral Argument and the Ruling on Robert’s Motion to Dismiss
¶16 	In February 2022, the district court heard oral argument on
Robert’s 	motion 	to 	dismiss. 	During 	this 	hearing, 	Summer’s
position 	remained 	consistent 	with 	her 	earlier 	statements
regarding the effect of her incompetency to toll the statute of
limitations until the time of Tischner’s guardianship. Summer’s
counsel stated that “a person does gain competency when there is
a guardian that is appointed” and that Summer’s “incapacity was
cured by the appointment of Michelle Tischner as her guardian.”
Again, 	neither 	party 	raised 	Zilleruelo 	at 	the 	hearing 	or 	in
subsequent briefing to the district court.
¶17 	In March 2022, the district court granted Robert’s motion
and dismissed Summer’s claims. The court noted that Robert had
argued “that the standard for legal incompetency is different than
the standard for a disability that would apply to the appointment
of a guardian,” but the court did not “rule on the parties’
argument regarding the differences between competency and
disability” because it reasoned that “even assuming that [Summer
was] correct that her incapacitation was sufficient to deem her
mentally incompetent and that it triggered the tolling of the
statute of limitations, the appointment of guardians for her
removed the tolling while she had guardians appointed.” The
court calculated that between Mother and Tischner, Summer “had
guardians appointed for a total of four years and 133 days after
the alleged sexual assault and before she filed the present
lawsuit.” 	Accordingly, 	the 	court 	concluded 	that 	Summer’s
“causes of action [were] barred by the statute of limitations” and
dismissed them. Summer now appeals.
ISSUE AND STANDARD OF REVIEW
¶18 	Summer 	argues 	that 	the 	district 	court 	erroneously
dismissed her claims as time-barred because the Tolling Statute
renders them timely. “Because a trial court’s grant or denial of a

McKell v. McKell
20220315-CA 	8 	2024 UT App 72
motion to dismiss is a question of law, the standard of review is
correctness.” State v. Arguelles, 2020 UT App 112, ¶ 6, 473 P.3d 170
(cleaned up).
ANALYSIS
¶19 	Summer asserts that the district court “err[ed] as a matter
of law in holding that statutes of limitation for an incompetent
person’s claims . . . begin to run upon the judicial appointment of
a legal guardian.” She argues that our supreme court’s opinion in
Zilleruelo v. Commodity Transporters, Inc., 2022 UT 1, 506 P.3d 509,
demands the conclusion that the statute of limitations has been
tolled throughout the duration of Summer’s alleged ongoing
incompetence—regardless of guardianship status—such that her
claims were timely. We agree that Zilleruelo does demand that
conclusion. The holding in Zilleruelo clearly establishes that if
Summer was incompetent, her claims were not time-barred
because the relevant statute of limitations was tolled under the
Tolling Statute for the duration of Summer’s incompetency,
regardless of guardianship status. See id. ¶ 24.
¶20 	Robert responds not by asserting that the court’s legal
conclusion on tolling during incompetency or its application of
the Tolling Statute were correct but, rather, by contending that
Summer’s argument on appeal is unavailing because she did not
preserve it or argue an exception to preservation and because she
invited any error on this point. Robert additionally asserts that we
should affirm on the alternative ground that Summer did not
sufficiently plead incompetence. We address these contentions in
turn.
I. Preservation
¶21 	Robert contends that we should not consider Summer’s
appeal because Summer failed to preserve the issue of whether
“statutes of limitation for an incompetent person’s claims . . .

McKell v. McKell
20220315-CA 	9 	2024 UT App 72
begin to run upon the judicial appointment of a legal guardian.”
(Omission in original.) In support of this argument, Robert points
to caselaw establishing that Utah appellate courts “view issues
narrowly” and “recognize that an appellant raises a new issue
when the appellant raises a legal theory entirely distinct from the
legal theory the appellant raised to the district court.” Ahhmigo,
LLC v. Synergy Co. of Utah, 2022 UT 4, ¶ 18, 506 P.3d 536 (cleaned
up).
¶22 	We first note that the issue of the impact of the Tolling
Statute was before the district court. Robert raised the issue of
whether Summer’s claims were time-barred in his answer and
motion 	for 	judgment 	on 	the 	pleadings, 	and 	Summer
responded by quoting the Tolling Statute and arguing that
it 	rendered 	her 	claims 	timely. 	Whether 	we 	define 	the
issue 	broadly 	as 	the 	timeliness 	of 	Summer’s 	claims 	or
more 	narrowly 	as 	the 	effect 	of 	the 	Tolling 	Statute 	on 	the
timeliness of Summer’s claims given her guardianships, these
issues 	were 	preserved.3 Either 	issue 	was 	“presented 	to 	the
trial court in such a way that the trial court ha[d] an opportunity
to rule on that issue.” 438 Main St. v. Easy Heat, Inc., 2004 UT 72,
¶ 51, 99 P.3d 801 (cleaned up). That Summer agreed to an
interpretation of the Tolling Statute that was legally incorrect
does not change the reality that the court was presented with
and ruled on these issues. See Cottam v. IHC Health Services, Inc.,
2024 UT App 19, ¶ 18 n.2, 544 P.3d 1051 (“The court was not
3. Counsel for Robert stated during oral argument before this
court, “The issue in front of the district court was this: Do we, for
purposes of Summer’s statute of limitations, apply all of the time
that she had a legal guardian in place? So do we count both the
time that Michelle Tischner was the legal guardian and do we
count the time that [Mother] was her legal guardian?” Such a
framing is consistent with our conclusion that the district court
had an opportunity to rule on the issue of whether Summer’s
claims were timely under the Tolling Statute in light of her
guardianships.

McKell v. McKell
20220315-CA 	10 	2024 UT App 72
required 	to 	hold 	the 	[defendants] 	to 	their 	apparent 	legal
concession; it was required to reach its own conclusion on the
[legal question presented].”). And once an issue has been raised
in the trial court, “new arguments” as to that issue, including
“citing new authority or cases supporting an issue that was
properly 	preserved,” 	“do 	not 	require 	an 	exception 	to
preservation.” State v. Johnson, 2017 UT 76, ¶ 14 n.2, 416 P.3d 443.
What Summer has done on appeal is to cite a new case—namely,
Zilleruelo—in support of an issue that was properly preserved—
namely, the timeliness of her claims in light of the Tolling Statute
and her guardianships.
¶23 	We recognize that, as Robert asserts, Summer is relying on
appeal on a Tolling Statute theory—that the Tolling Statute tolls
the 	running 	of 	the 	statute 	of 	limitations during 	all 	of 	her
incompetency, regardless of whether she has a guardian—that is
distinguishable from the Tolling Statute theory she relied on
below—that the Tolling Statute tolls the running of the statute of
limitations for periods during which she was incompetent and
without a guardian and that Mother should not be deemed to
have 	been 	her 	guardian. 	However, 	based 	on 	the 	same
considerations that 	guided 	our 	supreme 	court’s decision 	in
Patterson v. Patterson, 2011 UT 68, 266 P.3d 828, we decline to
characterize 	these 	as 	entirely 	distinct 	legal 	theories 	for
preservation purposes.
¶24 	In Patterson, the defendant had asserted below that an
existing Utah Supreme Court opinion that arguably controlled the
key issue in the case should be either distinguished or overruled.
See id. ¶ 4. The defendant had failed to bring to the district court’s
attention the fact that legislation subsequent to the relevant
supreme court opinion had overruled that opinion already. See id.
¶¶ 18, 20. The district court determined that the supreme court
opinion at issue was controlling, and in reliance on that opinion,
it granted partial summary judgment against the defendant. See
id. ¶ 5.

McKell v. McKell
20220315-CA 	11 	2024 UT App 72
¶25 	On appeal, the defendant asked the supreme court to
overrule 	its 	prior 	opinion 	or, 	alternatively, 	to 	apply 	the
subsequently enacted statute, which the defendant newly argued
had itself overruled the prior opinion already. See id. ¶ 8. The
plaintiff 	responded 	by 	asserting 	that 	the 	prior 	opinion
“remain[ed] good law and should not be overruled.” Id. He
further contended that the subsequent statute had not overruled
the prior opinion and that, in any event, the court should not
consider the statutory argument because the defendant raised it
for the first time on appeal. See id.
¶26 	The supreme court began its analysis by considering
whether the defendant was barred from arguing the applicability
of the subsequent statute where he had not cited it in the district
court. Id. ¶ 10. After explaining the “two primary considerations
underlying 	the 	[preservation] 	rule”—“judicial 	economy 	and
fairness”—the court concluded that the preservation rule did not
prevent the defendant from raising on appeal what it deemed to
be “controlling legislation.” Id. ¶¶ 15‒16, 18. Simply stated, where
the statute was relevant to “a properly preserved issue,” the court
was “unwilling to disregard controlling authority that [bore]
upon the ultimate resolution of [the] case solely because the
parties did not raise it below.” Id. ¶ 18.
¶27 	The 	court 	acknowledged 	that 	its 	decision 	might
“undermine some of the policies underlying the preservation
requirement.” Id. ¶ 19. Specifically, it said that judicial economy
might not be served since the district court “may have ruled in
[the 	defendant’s] 	favor 	and 	[the] 	appeal 	[may] 	have 	been
avoided” if the defendant had raised the controlling authority in
the district court. Id. And it explained that fairness was not being
fully served since it was “not entirely fair to characterize the
district court’s ruling as ‘error’ because it did not have the statute
before it.” Id. But the court emphasized that there were “other
important [policy] considerations that cut against application of
the preservation rule in [that] situation.” Id. ¶ 20.

McKell v. McKell
20220315-CA 	12 	2024 UT App 72
¶28 	First, the court noted that consideration of the controlling
statute was “necessary to a proper decision” and that “[a]s the
state’s highest court, [it has] a responsibility to maintain a sound
and uniform body of precedent and must apply the statutes duly
enacted into law.” Id. Second, the court observed that “the issue
of whether and how” the statute applied was “one that [could] be
resolved purely as a matter of law.” Id. Third, the court then
pointed out that the defendant’s “failure to raise the argument
below appear[ed] to have been inadvertent, rather than tactical,
because [the court could] conceive of no way in which [the
defendant] would [have] derive[d] an advantage from reserving
the statutory argument for appeal rather than raising it in the
district court.” Id. Finally, the court highlighted the parties’
“ethical obligation to disclose adverse authority to the court,”
explaining, “[T]he failure to raise the controlling statute in the
district court is a failure that can be appropriately assigned to
counsel 	for 	both 	parties. 	Were 	we 	to 	refuse 	to 	apply 	the
[controlling 	statute] 	here, 	it 	could 	incentivize 	attorneys 	to
disregard their ethical obligation to point out controlling adverse
authority.” Id.
¶29 	Almost all of these important policy considerations that cut
against application of the preservation rule in Patterson likewise
cut against application of the preservation rule here. As an initial
matter, where newly cited authority is relevant to a narrow,
preserved issue, we, like the Patterson court, are “unwilling to
disregard controlling authority that bears upon the ultimate
resolution of [the] case solely because the parties did not raise it
below.” Id. ¶ 18. Additionally, the impact of the Tolling Statute
here “can be resolved purely as a matter of law.” Id. ¶ 20.
Moreover, Summer’s “failure to raise the [Zilleruelo] argument
below appears to have been inadvertent, rather than tactical,
because we can conceive of no way in which [Summer] would
derive an advantage from reserving [this] argument for appeal
rather than raising it in the district court.” Id. Finally, because both
parties had “an ethical obligation to disclose adverse authority to
the court,” “the failure to raise [Zilleruelo] in the district court is a

McKell v. McKell
20220315-CA 	13 	2024 UT App 72
failure that can be appropriately assigned to counsel for both
parties.” Id. And like our supreme court, we have no desire to
“incentivize attorneys to disregard their ethical obligation to point
out controlling adverse authority.”4 Id.
¶30 	Admittedly, the distance between the argument made in
the district court in Patterson (that prior precedent should be
overruled) and the alternative argument made on appeal in
Patterson 	(that 	prior precedent 	had 	already 	been 	statutorily
overruled) 	was 	less 	than 	the 	distance 	between 	Summer’s
argument below (that Mother should not be deemed to have been
Summer’s guardian) and Summer’s argument on appeal (that it
does not matter whether Summer had a guardian as long as
Summer was mentally incompetent). But as close cases like this
one reveal, there is no bright line between a new argument and an
entirely distinct legal theory. Therefore, we have been counseled “to
look 	at 	the 	underlying 	policies 	to 	determine 	whether 	new
arguments are actually entirely new issues.” State v. Johnson, 2017
4. The only Patterson policy consideration not applicable here is
the responsibility of appellate courts to “maintain a sound and
uniform body of precedent,” which cannot be done if an appellate
court is required “to issue an opinion in contravention of”
controlling authority. Patterson v. Patterson, 2011 UT 68, ¶ 20, 266
P.3d 828. This was an active consideration in Patterson because the
defendant there made alternative arguments on appeal, which
required the supreme court to address the merits of the key issue
in any event. See id. ¶ 8. In contrast here, Summer’s appellate
argument is based solely on Zilleruelo v. Commodity Transporters,
Inc., 2022 UT 1, 506 P.3d 509. Thus, if we were to determine that
her argument was precluded by the preservation rule, we could
simply affirm the district court’s decision without reaching the
merits of the timeliness issue and thereby avoid issuing an
opinion in contravention of controlling authority. We are not
convinced, however, that the inapplicability here of this one
policy 	consideration 	compels 	a 	different 	conclusion 	as 	to
preservation.

McKell v. McKell
20220315-CA 	14 	2024 UT App 72
UT 76, ¶ 14 n.2, 416 P.3d 443. That is what we have done here.
And in light of the policy considerations identified above, we
conclude that Summer’s reliance on Zilleruelo does not present an
entirely new issue but, rather, a new argument under the narrow,
preserved issue of whether her claims were timely in light of the
Tolling 	Statute 	and 	her 	guardianships. 	We 	therefore 	reject
Robert’s argument that our preservation doctrine prevents us
from considering the applicability of Zilleruelo.
II. Invited Error
¶31 	Robert also argues that Summer invited any error in the
district court’s ruling related to the Tolling Statute because she
affirmatively represented to the court “the very legal principle she
now challenges on appeal.” We disagree and conclude that the
invited error doctrine is inapplicable here.
¶32 	“Under the doctrine of invited error, an error is invited
when counsel encourages the trial court to make an erroneous
ruling.” State v. Popp, 2019 UT App 173, ¶ 23, 453 P.3d 657 (cleaned
up), cert. denied, 485 P.3d 943 (Utah 2021). “To invite an error, a
party must do more than simply fail to object; the party must
manifest some sort of affirmative representation to the trial court
that the court is proceeding appropriately.” Id.
Application of the invited error doctrine serves
three 	important 	purposes. 	First, 	it 	discourages
parties from intentionally misleading the trial court
so as to preserve a hidden ground for reversal on
appeal. Second, it encourages counsel to actively
participate in all proceedings and to raise any
possible error at the time of its occurrence. Finally,
it 	fortifies 	our 	long-established 	policy 	that 	the
district court should have the first opportunity to
address a claim of error.
State v. Moa, 2012 UT 28, ¶ 25, 282 P.3d 985 (cleaned up).

McKell v. McKell
20220315-CA 	15 	2024 UT App 72
¶33 	There is no denying that Summer’s counsel stated to the
court that “a person does gain competency when there is a
guardian that is appointed”; this statement conceded a legal rule
that was wrong, which the district court erroneously applied
when it determined that “the appointment of guardians for
[Summer, including Mother,] removed the tolling” of the relevant
statute of limitations. However, Summer never encouraged the
court’s ultimate decision dismissing her claims as untimely under
the Tolling Statute. Nor did she affirmatively represent that the
district court was “proceeding appropriately” by dismissing her
claims. Popp, 2019 UT App 173, ¶ 23. To the contrary, Summer
steadfastly maintained that her claims were timely under the
Tolling Statute by adamantly denying that Mother’s guardianship
cured her incompetency.
¶34 	Moreover, Summer’s actions in the district court fulfilled
the first purpose of the invited error doctrine and at least partially
fulfilled its second purpose. Specifically, there is no indication
that Summer intentionally misled the trial court where, as we
have already observed, there was no way in which she would
have derived an advantage by waiting to raise Zilleruelo until
appeal. 	And 	her 	counsel 	was 	actively 	participating 	in 	the
proceedings and raised the possible error he perceived at the time
of its occurrence.
¶35 	We acknowledge that a decision to not apply the invited
error doctrine in this circumstance may undermine the other
purposes of the doctrine, including to encourage counsel to raise
any possible error at the time of its occurrence and to thereby
fortify the “long-established policy that the district court should
have the first opportunity to address a claim of error,” Moa, 2012
UT 28, ¶ 25 (cleaned up)—the identical judicial economy purposes
that undergird the preservation rule, see Patterson v. Patterson,
2011 UT 68, ¶ 15, 266 P.3d 828. However, the same important
counter-considerations that led us to not apply the preservation
rule in this situation, see supra ¶ 29, also lead us to not apply the
invited error doctrine in this situation. Much like we said with

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regard to preservation, “we are unwilling to disregard controlling
authority that bears upon the ultimate resolution of a case solely
because the parties did not [discover] it below,” Patterson, 2011 UT
68, ¶ 18, and, thus, agreed to a misstatement of the law. Instead,
we hold that the invited error doctrine does not apply when, as
here, there is controlling authority that counsel for both sides—as
well as the trial court—wholly failed to recognize and the
appealing party did not acquiesce in the ultimate decision that is
rendered 	erroneous 	by 	that 	controlling 	authority. 	In 	such
circumstances, only an affirmative disavowal of the controlling
authority itself will constitute invited error.
III. Sufficiency of Pleadings Regarding Incompetence
¶36 	Finally, Robert argues that we should “affirm on the
alternate ground that the [a]mended [c]omplaint fails to allege
that Summer is mentally incompetent, which means that her
claims are barred by the statute of limitations.” Robert asserts that
the threshold for a person to be deemed “mentally incompetent”
for purposes of the Tolling Statute is a high bar that Summer failed
to sufficiently plead.
¶37 	Our supreme court has explained that “tolling statutes
based on mental incompetency are enacted to relieve from the
strict time restrictions people who are unable to protect their
legal 	rights 	because 	of 	an 	overall 	inability 	to 	function 	in
society.” O’Neal v. Division of Family Services, 821 P.2d 1139, 1142
(Utah 1991) (cleaned up). “Courts generally hold that a person
is incompetent for the purposes of a provision tolling a statute
of limitations when the disability is of such a nature to show
him or her unable to manage his or her business affairs or
estate, or to comprehend his or her legal rights or liabilities.” Id.
(cleaned up).
¶38 	Summer’s amended complaint alleged that “Robert signed
and filed a ‘Verified Consent to Conservatorship’ wherein he
affirmed that . . . ‘Summer suffers from a disability that has

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impeded her ability to progress mentally and intellectually, and
on information and belief, has only attained the intellectual age of
approximately 	12 	years, 	though 	she 	is 	18 	years old.’” 	The
amended complaint also alleged that “Summer remained under a
disability 	and 	was 	therefore 	legally 	incompetent 	until 	the
appointment of her current limited guardian.” Additionally, in
both her original complaint and her amended complaint, Summer
alleged that she “suffers from a variety of mental, emotional, and
behavioral 	developmental 	disabilities, 	including 	cognitive
impairment” due to her birth injuries and that “she has profound
difficulties in seeking out and processing information on her
own.” These allegations are more than sufficient to survive a
motion to dismiss on the issue of mental incompetency under the
Tolling Statute.
¶39 	Of particular relevance are the allegations that, although of
an adult age, Summer had attained the intellectual age of only a
twelve-year-old and that she suffers from mental disabilities and
cognitive impairment that make it profoundly difficult for her to
seek 	out 	and 	process 	information. 	These 	allegations 	and
permissible inferences that can be drawn from them paint a
picture of someone who is unable to manage her own business
affairs and to comprehend or protect her legal rights because of
an overall inability to function in society. See generally Alpine
Homes, Inc. v. City of West Jordan, 2017 UT 45, ¶ 7 n.2, 424 P.3d 95
(“In determining whether a lawsuit survives a motion to dismiss,
we assume that the factual allegations in the complaint are true
and we draw all reasonable inferences in the light most favorable
to the plaintiff.” (cleaned up)). Indeed, where the Tolling Statute
operates to relieve from the strict time restrictions of applicable
statutes of limitation a person who is actually twelve years old,
we find it difficult to conclude that the Tolling Statute would not
similarly relieve an adult with the mental capacity of a twelve-
year-old. Accordingly, we do not affirm on this alternative
ground.

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CONCLUSION
¶40 	Zilleruelo clarifies that the Tolling Statute applies during
the 	duration 	of 	a 	person’s 	incompetency, 	regardless 	of
guardianship status. See Zilleruelo v. Commodity Transporters, Inc.,
2022 UT 1, ¶ 24, 506 P.3d 509. Summer’s claims were therefore
timely filed. Because we decline to conclude that this issue was
unpreserved, to apply the doctrine of invited error, or to affirm on
the alternative ground that Summer failed to sufficiently plead
her incompetence, we reverse the district court’s decision and
remand this matter to the district court for further proceedings
consistent with this opinion.