law-trial-by-consent | pleading sufficiency | special exceptions | unpleaded claims | judgment to conform to
See RE/MAX of Tex., Inc. v. Katar Corp., 961 S.W.2d 324, 328 (Tex. App.—Houston [1st Dist.] 1997, pet. denied)
(“[Trial by consent] is not intended to establish a general rule of practice and should be applied with care, and in
no event in a doubtful situation.”).
TRIAL BY CONSENT
See S.W. Resolution Corp. v. Watson, 964 S.W.2d 262, 264 (Tex. 1997) (holding that issue may be tried by
consent where there is both failure to object to testimony and failure to object to submission to jury); LaStrada-
San Felipe, Ltd. v. ATW Plumbing Serv., Inc, No. 01-03-00547-CV, 2004 WL 1277580, at *6 (Tex. App.—Houston
[1st Dist.] June 10, 2004, no pet.) (memo op., notdesignated for publication) (holding that “even if there were a
pleading defect,” defensive issue was tried by consent); Kahn v. Carlson, No. 05-98-01415-CV, 2001 WL 428710,
*2 (Tex. App.—Dallas Apr. 27, 2001, no pet.) (not designated for publication) (“[W]hile we acknowledge that
[defendant] should have filed a verified denial, we conclude the breach of contract issue was tried by consent and
WAIVER OF FAILURE TO PLEAD AFFIRMATIVE DEFENSE IN SUMMARY JUDGMENT CONTEXT
Moreover, even if the pleadings had not put mitigation at issue, both parties addressed the issue in their summary
judgment pleadings and attached evidence, without objection from the Williamses. An unpleaded affirmative
defense may serve as the basis for a summary judgment when it is raised in the summary judgment motion and
the opposing party does not object to the lack of a Rule 94 pleading in either its written response or before the
rendition of judgment. Roark v. Stallworth Oil & Gas, Inc., 813 S.W.2d 492, 494 (Tex. 1991). In other words, trial
by consent applies in the summary judgment context. Id.; see also Segal v. Emmes Capital, L.L.C., 155 S.W.3d
267, 298 (Tex. App.--Houston [1st Dist.] 2004, pet. dism'd). "The failure to plead an affirmative defense under
rule 94 is an issue that must be raised in the trial court, or it may not be urged on appeal." Roark, 813 S.W.2d at
495. Ontiveros v. Williams (Tex.App.- Houston [1st Dist.] Feb. 11, 2010)(Hanks)
(breach of residential lease claim, mitigation of damages and failure to mitigate as affirmative defense,
trial by consent in summary judgment context, partial summary judgment on liability only,
proving amount of damages, attorney's fees)
REVERSE TRIAL COURT JUDGMENT AND REMAND CASE TO TC FOR FURTHER PROCEEDINGS:
Opinion by Justice Hanks
Before Justices Jennings, Hanks and Bland
01-09-00454-CV Francisca Rosales and Jose Ontiveros v. Kimberly Williams
Appeal from County Civil Court at Law No 3 of Harris County
Trial Court Judge: Hon. Linda Storey
TRIAL OF UNPLEADED CLAIMS BY CONSENT | WAIVER OF PLEADING DEFECTS
Unpleaded claims or defenses that are tried by express or implied consent are treated as if they had been raised
by the pleadings, and any complaint about variances between a party's pleadings and summary-judgment briefing
cannot be raised for the first time on appeal. See Roark v. Stallworth Oil & Gas, 813 S.W.2d 492, 495 (Tex.
1991). Christus Health v. Kone, Inc. (Tex.App.- Houston [14th Dist.] Jun. 25, 2009)(Brown)
(fraud and fraud-in-the-inducement claims relating to a contract for elevator-maintenance services,
one-satisfaction rule does not apply here, pleading sufficiency, special exceptions, affidavit found to be
conclusory) AFFIRMED: Opinion by Justice Brown
Before Justices Anderson, Frost and Brown
14-07-00786-CV Christus Health and Christus Health Gulf Coast v. Kone, Inc
Appeal from 127th District Court of Harris County
Trial Court Judge: Sharolyn P. Wood
Kone did not object to any alleged variance between Christus' pleadings and its summary-judgment response.
Therefore, Kone tried the fraud claim based on representations made in the contract by consent and may not
complain of any alleged pleading deficiencies for the first time on appeal. See Roark, 813 S.W.2d at 495.
Teel v. Shifflett (Tex.App.- Houston [14th Dist.] Feb. 23, 2010)(Frost)
(protective order against ex-girlfriend, same household finding affirmed, constitutional challenge not properly
presented, intimate partner finding not supported by the pleadings or tried by consent)
This is an appeal from a protective order entered against a man’s former girlfriend after the trial court determined that the former
girlfriend committed family violence against him and was likely to commit family violence in the future. In four issues, the former
girlfriend challenges (1) the constitutionality of the statute under which the protective order was issued, (2) a recitation in the
judgment that the parties were “intimate partners” pursuant to 18 U.S.C. §§ 922(g)(8) & 921(a)(32), (3) the legal and factual
sufficiency of the evidence to support a finding that the former girlfriend was a household member, and (4) the legal and factual
sufficiency of the evidence to support a finding that family violence is likely to occur in the future. We modify the judgment to delete
the intimate-partners finding and we affirm the trial court’s judgment as modified.
AFFIRMED AS MODIFIED: Opinion by Justice Frost
Before Justices Brock Yates, Frost and Brown
14-08-00836-CV Ashleigh Elise Teel v. Kenneth Richard Shifflett
Appeal from 309th District Court of Harris County
Trial Court Judge: David D. Farr
Shiflett’s application for a family protective order contains no request for a finding that the parties were intimate
partners under the federal statute. Nonetheless, in the protective order, the trial court found that Shiflett and
Teel were intimate partners. Therefore, the judgment did not conform to the pleadings, and the trial court erred in
granting such relief in the absence of pleadings or trial by consent. See Tex. R. Civ. P. 301; Moneyhon, 278 S.W.
3d at 878. If issues not raised by the pleadings are tried by express or implied consent of the parties, these
issues shall be treated as if they had been raised by the pleadings. See Tex. R. Civ. P. 67, 301; Baltzer v.
Medina, 240 S.W.3d 469, 476 (Tex. App.—Houston [14th Dist.] 2007, no pet.). To determine whether the issue
was tried by consent, the court must examine the record not for evidence of the issue, but rather for evidence of
trial of the issue. Greene v. Young, 174 S.W.3d 291, 301 (Tex. App.—Houston [1st Dist.] 2005, pet. denied).
The record does not reflect that the intimate-partners issue was tried by consent. Although the record indicates
that the parties had cohabitated and had a child together, the record does not reflect that the parties were trying
the issue of “intimate partners” as that term is defined by section 921 of Title 18 of the United States Code.
Accordingly, we sustain Teel’s second issue.
The Texas Rules of Civil Procedure require certain defenses, including the defense of "release," to be
affirmatively pleaded. Tex. R. Civ. P. 94. Generally, an affirmative defense is waived if it is not pleaded. Alvarado
v. Wingfoot Enters., 53 S.W.3d 720, 725 (Tex. App.--Houston [1st Dist.] 2001) (quoting Shoemake v. Fogel, Ltd.,
826 S.W.2d 933, 937 (Tex. 1992)) rev'd on other grounds by 111 S.W.3d 134 (Tex. 2003). However, "[u]
npleaded claims or defenses that are tried by express or implied consent of the parties are treated as if they had
been raised by the pleadings." Hartford Fire Ins. Co. v. C. Springs 300, Ltd., No. 01-06-00065-CV, 2008 WL
2208887, at *6 (Tex. App.--Houston [1st Dist.] May 29, 2008, no pet. h.) (citing Roark v. Stallworth Oil & Gas, Inc.,
813 S.W.2d 492, 495 (Tex. 1991)). "The party who allows an issue to be tried by consent and who fails to raise
the lack of a pleading before submission of the case cannot later raise the pleading deficiency for the first time on
appeal." Id. (citing Roark, 813 S.W.2d at 495). "Moreover, '[w]hen issues not raised by the pleadings are tried by
express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the
pleadings.'" Id. (quoting Tex. R. Civ. P. 67). "To determine whether an issue was tried by consent, we examine the
record not for evidence of the issue, but rather for evidence of trial of the issue." Id. (citing Case Corp. v. Hi-Class
Bus. Sys. of Am., Inc., 184 S.W.3d 760, 771 (Tex. App.--Dallas 2005, pet. denied)). "A party's unpleaded issue
may be deemed tried by consent when evidence on the issue is developed under circumstances indicating that
both parties understood the issue was in the case, and the other party failed to make an appropriate complaint."
Id. (citing Case Corp., 184 S.W.3d at 771).
Safeco Surety v. J.P. Southwest Concrete, Inc. (Tex.App.- Houston [1st Dist.] Apr. 2, 2009)(Alcala)
(effect of failure to disclose evidence) (effect of failure to disclose evidence, failure to plead properly, trial by
consent, release as affirmative defense, lost profit damages)
AFFIRM TC JUDGMENT IN PART, REVERSE TC JUDGMENT IN PART, AND REMAND CASE TO TC FOR
FURTHER PROCEEDINGS: Opinion by Justice Alcala
Before Chief Justice Radack, Justices Alcala and Hanks
01-07-00904-CV Safeco Surety and C.A. Walker, Inc. v. J.P. Southwest Concrete, Inc.
Appeal from 189th District Court of Harris County
Trial Court Judge: Hon. William R. Burke. Jr.
Here, it is undisputed Walker did not plead release as an affirmative defense. We therefore must examine the
evidence of this issue being tried by consent. Id. In opening statements, Walker's counsel raised the issue of the
release. The release was admitted into evidence without objection. Walker testified the March payment was made
despite J.P. not providing all the required documentation and included amounts for work that had not been done
by J.P. In response to questions from the judge, Walker's counsel asserted the plain language of the release
indicated J.P. acknowledged that, as of March 16, 2005, it had been paid for all work. Pantle was cross-examined
concerning the release, acknowledging he signed it. J.P.'s counsel then conducted a re-direct examination of
Pantle concerning the circumstances surrounding the signing of the release. The trial court did not hear closing
arguments, but instead discussed a number of issues with counsel. The release came up several times and both
sides presented their theories and arguments concerning the proper interpretation and effect of the release. J.P.
did not complain of the lack of pleadings to support the affirmative defense of release before the trial court,
raising the issue for the first time in its brief to this Court.
We conclude the issue of release was tried by consent because the record shows the release was introduced at
the trial without objection, witnesses were examined concerning the release, both parties discussed and argued
the meaning and effect of the release to the trial court, and J.P. did not make any complaint concerning the lack
of pleadings to support the defense of release. See Hartford Fire Ins. Co., 2008 WL 2208887 at *7 (concluding
issue tried by consent when issue "was raised several times during the trial" and no objection to lack of pleadings
made until charge conference).
Craig v. Varon (Tex.App.- Houston [1st Dist.] Dec. 3, 2009)(Jennings)
(real estate contract, indemnity agreement, trial of issues by consent)
AFFIRM TC JUDGMENT: Opinion by Justice Jennings
Before Justices Jennings, Higley and Sharp
01-08-00794-CV Bob Craig, 6030 South Rice, Ltd. v. Jacobo Varon, Charter Title Company
Appeal from 127th District Court of Harris County
Trial Court Judge: Hon. Shearn Smith
Moneyhon v. Moneyhon 278 S.W.3d 874 (Tex.App.- Houston -14th Dist.] Feb. 12, 2009, no pet.)(Frost)
(judgment not supported by the pleadings, TRCP 301 judgment to conform to the pleadings, breach of fiduciary
duty claim not tried by consent, pleading deficiency, constructive trust improperly imposed)
REVERSED AND RENDERED: Opinion by Justice Frost
Before Justices Anderson, Frost and Guzman
14-06-00873-CV Brian D. Moneyhon and Cheryl Parrish-Moneyhon v. Patricia Moneyhon
Appeal from 412th District Court of Brazoria County
Trial Court Judge: W. Edwin Denman
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