- 15 - F.3d 305, 312 (5th Cir. 1994). The Court of Appeals held that the issue of res judicata may be tried by implied consent. In reaching its holding, the Court of Appeals considered factors similar to those that this Court has considered with respect to the use of implied consent in circumstances where pleading requirements for matters other than affirmative defenses were involved. In arriving at its holding, the Court of Appeals considered “whether the parties recognized that the unpleaded issue entered the case at trial, whether the evidence that supports the unpleaded issue was introduced at trial without objection, and whether a finding of trial by consent prejudiced the opposing party’s opportunity to respond.” United States v. Shanbaum, supra at 312-313 (citing Haught v. Maceluch, 681 F.2d 291, 305- 306 (5th Cir. 1982)); Jimenez v. The Tuna Vessel “Granada”, 652 F.2d 415, 421 (5th Cir. 1981); see also Markwardt v. Commissioner, 64 T.C. 989, 997 (1975) (and cases cited thereat). Similarly, this Court, in deciding whether to apply the principle of implied consent, has considered whether the consent results in unfair surprise or prejudice toward the consenting party and prevents that party from presenting evidence that might have been introduced if the issue had been timely raised. See Krist v. Commissioner, T.C. Memo. 2001-140; McGee v. Commissioner, T.C. Memo. 2000-308.Page: Previous 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 Next
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