Trial by consent – point, counterpoint –

Two recent opinions set the current guideposts for whether an issue is tried by consent. On the one hand, a recent post described the Fifth Court’s reasoning in Avelar v. Nunez, No. 05-17-00631-CV (Nov. 20, 2018) (mem. op.), which found no consent to a particular damages element from a cross that related to earlier-pleaded damages theories. On the other, there is BB&T Co. v. Seideman, which observed:

“In this case, the Bank’s claims against L&S and the guarantors were based on the loan  documents. The Note, the statute of frauds notice, and the guaranties were  admitted into evidence without objection. Holmes, Brian, Robert, and Seideman testified about the statute of frauds notice and the lack of a written agreement modifying the terms of the Note or the guaranties. Both parties argued to the trial court about the effect of the statute of frauds and the contractual waivers on L&S’s and the guarantors’ affirmative defenses and responded to the trial court’s questions on both issues. L&S and the guarantors did not object to the evidence, the arguments, or the trial court’s questions on the ground they related to an issue not pleaded by the Bank. We therefore conclude the issue of whether the statute of frauds or the contractual waivers precluded L&S and the guarantors from relying on any of the pleaded affirmative defenses was tried by consent.”

No. 05-17-00381-CV (June 21, 2018) (mem. op.)