(dissenting). I agree with the majority's analysis of waiver; I disagree, however, that we should exercise our discretionary power of review.
Section 752.35, Stats., permits us to review unobjected-to trial court errors in two circumstances only: when "the real controversy has not been fully tried," or if there has been a miscarriage of justice and if we "can conclude that a new trial would probably produce a different result." Vollmer v. Luety, 156 Wis. 2d 1, 27, 456 N.W.2d 797, 809 (1990) (Bablitch, J„ concurring on behalf of six members of the court). We do not have the power to review unobjected-to trial court errors that go to the "integrity of the fact-finding process." Ibid.
Although we have the authority to review an unobjected-to but erroneous jury instruction under the "real controversy has not been tried" prong of § 752.35, STATS., which does not require that we also conclude that a new trial would most likely produce a different result, Vollmer, 156 Wis. 2d at 19-20, 456 N.W.2d at 805, this case extends that authority to those situations where the complaining party has agreed to the erroneous instruction.1 I believe that this extension is unwarranted; in my view the Steinbergs are judicially *126estopped from seeking a new trial because of the instruction. See Coconate v. Schwanz, 165 Wis. 2d 226, 231, 477 N.W.2d 74, 75 (Ct. App. 1991) (party may not assert "position in a legal proceeding that is inconsistent with a position previously asserted"); see also Vollmer, 156 Wis. 2d at 11, 456 N.W.2d at 802 (review of unobjected-to trial court errors might induce parties to "build in an error to ensure access to the appellate court"). I respectfully dissent.
Although the Steinbergs contend that they did not agree to the erroneous instruction, the trial court found that they did. The Majority opinion does not indicate how, or even if, that finding of fact is "clearly erroneous." Under our standard of *126review, therefore, we are bound by the trial court's finding. See Rule 805.17(2), Stats.