Chapter 29-6 Trial by Consent

• Jurisdiction: United States

29-6 Trial by Consent

Trial by consent occurs when evidence directed to an unpleaded issue is presented to the judge or jury for determination, without objection by the opposing party.⁴⁹

When unpleaded issues "are tried by the express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings."⁵⁰ A determination of trial by consent is committed to the court's discretion to be made in the exceptional case, and never in a doubtful situation.⁵¹ "The rule of trial by consent should not be applied in doubtful cases, but only when the record makes it clear that the parties understood the non-pleaded matter to be an issue in the case. There can be no trial by consent when the evidence on the non-pleaded matter is relevant to the issues pleaded, and for that reason would not be calculated to elicit an objection when offered."⁵² Evidence relevant to a pleaded issue does not, standing alone, support an argument that an unpleaded issue has been tried by consent.⁵³

When the court finds that trial by consent has occurred, a requested trial amendment to conform the pleadings to the evidence and support submission of the charge to the jury should be granted pursuant to Tex. R. Civ. P. 67.⁵⁴ When the court finds that trial by consent has not occurred, a requested trial amendment may still be directed to the court's discretion pursuant to Tex. R. Civ. P. 63 and 66.⁵⁵

--------

Notes:

^[49] Maswoswe v. Nelson, 327 S.W.3d 889, 895 (Tex. App.—Beaumont 2010, no pet.).

^[50] Tex. R. Civ. P. 67.

^[51] Compass Bank v. MFPFin. Servs., Inc., 152 S.W.3d 844, 854 (Tex. App.—Dallas 2005, pet. denied).

^[52] City of San Antonio v. Lopez, 754 S.W.2d 749, 751 (Tex. App.—San Antonio 1988, writ denied).

^[53] Born v. Virginia City Dance Hall and Saloon, 857 S.W.2d 951, 956 (Tex. App.—Houston [14th Dist.] 1993, writ denied).

^[54] McFadden v. Hale, 615 S.W.2d 345, 348 (Tex. App.—Waco 1981, no writ).

^[55] Wendell v. Cent. Power & Light Co., 677 S.W.2d 610, 618 (Tex. App.—Corpus Christi 1984, writ ref'd n.r.e.).