law-trial-by-consent | preservation of error for appellate review | issues 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 requirement for  verified denial |

TRIAL BY CONSENT EXCEPTION TO PRESERVATION OF ERROR
REQUIREMENT

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)  (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.