LPCH partners David Coale and John Volney co-author the article, "When is an Issue Tried by Consent?" in DBA Headnotes, which discusses when consent is found versus not found using the same set of rules in the Dallas Court of Appeals. Coale and Volney present two case examples that agree on the basic principles. An issue is not tried by consent just because evidence about that issue is admitted. The court of appeals examines the record "not for evidence of the issue, but rather for evidence the issue was tried."

In conclusion, the Dallas Court of Appeals makes clear that trial by consent cannot occur simply because evidence on an unpleaded claim or defense is admitted without objection, if that evidence is also relevant to a pleaded claim or defense. The likelihood of a trial-by-consent finding increases as the parties' engage in more questioning and argument about the evidence.

Click to read the full article here.