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Trial by implied consent is not shown by the presentation of evidence that is relevant to an unestablished issue when that evidence is also relevant to the established issue. A trial court's determination with respect to the issue of implied consent must be upheld unless there has been an abuse of discretion.
After experiencing significant problems with the construction of a house he was having built, Robert E. Valiga ("Valiga") sued Robert H. Waddell ("Waddell") and John Graves ("Graves") (collectively referred to as "Defendants") seeking damages for the poor construction. Although the construction contract was between Valiga and R.H. Waddell Construction, Inc., no corporate charter had been filed when the contract was signed. The Trial Court concluded Waddell and Graves were partners and entered judgment against them individually for $ 80,045.79. After judgment was entered, Defendants filed motions seeking to amend their answers to assert a statute of limitations defense. These motions were denied by the Trial Court. Graves and Waddell appealed, challenging the Trial Court's conclusion that they were partners and subject to individual liability, the denial of their motions seeking to amend their answers to assert a statute of limitations defense, and the Trial Court's award of prejudgment interest to Valiga. The Defendants argued that the issue of whether the statute of limitation had run was tried by implied consent. They pointed out that relevant dates were introduced at trial that established the defense.
The appellate court held that the Defendants had almost eight years from the filing of the complaint until trial to assert a statute of limitations defense. The defense certainly was not expressly raised prior to or at trial; thus, the issue was not tried by implied consent. Simply because relevant dates were introduced at trial did not mean the homeowner was aware of, or acquiesced in, the issue being tried. The issues of whether the Defendants "knew" there was no corporate existence and whether they intended to create a partnership or joint venture were factual issues. Based on the roles occupied by the Defendants during the construction of the house, the trial court did not err when it found they were partners.