law-preservation-of-error-for-appeal issue tried by consent | trial of unpleaded issue by consent | waiver of
pleading deficiency | waiver of complaint that theory or defense was not pleaded even though required to |
waiver of objection to requirement for verified denial |
ERROR PRESERVATION REQUIREMENTS AND EXCEPTIONS
Tex. R. App. P. 33.1(a) (providing that to preserve error, a party must present a
timely request, motion, or objection to the trial court stating the grounds to make the
trial court aware of the complaint and obtain a ruling).
TRIAL BY CONSENT EXCEPTION
As an initial matter, we must address Deere’s contention that Ingram failed to preserve his no evidence
argument regarding the existence of a partnership. First, Deere argues Ingram failed to preserve his no
evidence argument because he did not file a verified denial in response to Deere’s claim that they were
partners, which Texas Rule of Civil Procedure 93(5) requires. It is undisputed that Ingram did not file the
requisite verified denial. However, this issue was tried by consent of the parties. When both parties present
evidence on an issue and the issue is developed during trial without objection, any defects in the pleadings
are cured at trial, and the defects are waived. Tex. R. Civ. P. 67; Sage St. Assocs. v. Northdale Constr. Co.,
863 S.W.2d 438, 445–46 (Tex. 1993). Ingram v. Deere, No. 06-0815 (Tex. Jul 3, 2009)(Wainwright)
(dispute over existence of partnership under TRPA, partnership criteria/factors, fiduciary duty) (existence
of partnership not proven, take-nothing judgment reinstated)
JESSE C. INGRAM, PH.D. AND BEHAVIORAL PSYCHOLOGY CLINIC, P.C. v. LOUIS DEERE, D.O. AND
HILLVALE MEDICAL GROUP ASSOCIATION D/B/A HILLVALE MEDICAL ASSOCIATION; from Dallas County;
5th district (05-05-00063-CV, 198 SW3d 96, 04-27-06 Opinion of the Dallas court of Appeals)
2 petitions
The Court reverses the court of appeals' judgment and reinstates the trial court's judgment.
Justice Wainwright delivered the opinion of the Court, in which Chief Justice Jefferson, Justice Hecht, Justice
Medina, Justice Green, and Justice Willett joined, in which Justice O'Neill and Justice Brister joined except
as to part II.D.5.a, and in which Justice Johnson joined except as to part II.D.2. [pdf]
Justice Johnson delivered a concurring opinion. [pdf]
Here, not only did both parties present evidence at trial to affirm or controvert the existence of a
partnership, but Deere, the party arguing that a partnership existed, also submitted the issue in the jury
charge. The issue was developed at trial, and both parties understood that it was contested. Accordingly,
the failure to file a verified denial did not preclude Ingram from raising the issue on appeal.
Ford Motor Co. v. Castillo, No. 06-0875 (Tex. 2009)(Phil Johnson)
(defendant entitled to opportunity to conduct discovery on affirmative defenses to breach of settlement
claim based on improper juror conduct, error preserved)
Although appellant raised the trial court's questioning of the witnesses in his motion for new trial, this
objection was untimely. See Low v. Henry, 221 S.W.3d 609, 618 (Tex. 2007) (complaint about lack of notice
of the subject matter of the hearing untimely when first made in motion for new trial.); In re S.E.W., 168 S.W.
3d 875, 885 (Tex. App.-Dallas 2005, no pet.) (complaint about admission of expert testimony waived when
first raised in motion for new trial).
08-0301
ALLEN LANDERMAN v. STATE BAR OF TEXAS; from Collin County; 5th district (05-07-00332-CV, 247
SW3d 426, 03‑05‑08, pet. denied Oct 2008) as redrafted (disciplinary proceeding, motion for new trial)
Preservation of Error [exception]
In a post-submission brief, Susan asserts that Ditta has waived the argument that no limitations period
should apply to the removal action. While Ditta did not make that precise argument, his entire brief to this
Court assiduously detailed numerous reasons why the statute of limitations should not apply to his action.[5]
We have held that “[w]hen . . . the only issue is the law question of which statute of limitations applies, the
court of appeals should apply the correct limitations statute even if the appellee does not file any brief.”[6]
Further, a question is properly before this Court if it is subsidiary to, and fairly included within, an issue
raised in a litigant’s petition for review.[7] This requirement is to be applied “reasonably, yet liberally,” so
that an appellate court can reach the merits of an appeal whenever it is “reasonably possible” to do so.[8] In
order to see that “a just, fair[,] and equitable adjudication of the rights of the litigants”[9] is obtained, we
broadly construe Ditta’s issues to encompass the core question of whether a statute of limitations should be
applied at all. Ditta v. Conte, No. 07-1026 (Tex. Jun. 5, 2009) (Willett) (removal of trustee, statute of
limitations does not apply, trustee may be removed at any time, but suit for breach of fiduciary duty subject
to four-year SoL)
WAIVER OF ERROR ON APPEAL
we are not at liberty to reverse a trial court judgment for a reason not raised in a point of error unless the
error is jurisdictional or fundamental. See Walling v. Metcalfe, 863 S.W.2d 56, 58 (Tex. 1993).
08-1010 T. CHRISTOPHER ROBSON v. GARRETT GILBREATH AND DAVID GILBREATH; from Travis County; 3rd district (03-06-00364-CV,
267 SW3d 401, 08‑01‑08)(frivolous suit sanctions, reasonable inquiry)
Dissenting opinion by Patterson