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Hess v. Fernandez2/25/2005
erred in finding implied consent. Specifically, they argue that because they did not receive actual notice that evidence was being presented on the unpleaded issue, there could not have been implied consent. Next, Fernandez and the Fund argue that the circuit court focused on whether they met their burden on prejudice, and neglected to consider, among other matters, why Hess delayed bringing a claim under Wis. Stat. § 51.61(7)(a) for four years. Additionally, Fernandez and the Fund claim that the circuit court was wrong and that they were in fact prejudiced.
. In our analysis of Wis. Stat. § 802.09(2), we first address the issue of consent. Here, the record is quite clear that Fernandez and the Fund did not provide Hess with any express consent to try the unpleaded issues contained in Wis. Stat. § 51.61(7)(a). We have identified express consent to be that which "may be given by stipulation, or may be incorporated in a pre-trial order and rarely raises any serious fact question." Peterson, 104 Wis. 2d at 630, n. 17 (citation omitted). We, along with the parties, agree that no such consent was given here. Therefore, if Fernandez and the Fund consented to the trial of costs and reasonable actual attorney fees, the consent must be implied. See Peterson, 104 Wis. 2d at 630.
. As stated above, the determination of whether a case was tried by implied consent is to be made by the circuit court. In this case, the circuit court held that there was implied consent, because the elements of the Wis. Stat. § 51.61(7)(a) claim, at least as to violation of the standard of care, were fully addressed at trial. The court articulated that the elements of a § 51.61(7)(a) claim would require proof that Joan Hess was a "patient" receiving services for mental illness, that her rights under § 51.61 were unlawfully denied or violated, and that she suffered damages as a result of such denial or violation. It concluded, therefore, that Joan Hess's right to adequate treatment was violated, because the jury found negligence based on Fernandez's failure to exercise reasonable care. Thus, the court was satisfied that the elements, at least as to the violation of the standard of care, were "fully aired" during the trial, and the amendment satisfied Wis. Stat. § 802.09(2).
. From our review of the record, we disagree with the circuit court and conclude as a matter of law that there was no implied consent, since Fernandez and the Fund did not have actual notice of the unpleaded issue. For support on this conclusion, we look to Peterson. In that case, we held that implied consent exists where there is no objection to the introduction of evidence on the unpleaded issue and where the party not objecting is aware that the evidence goes to the unpleaded issue. Peterson, 104 Wis. 2d at 630. Thus, actual notice to the parties is the key factor in determining if there was implied consent. Id. Because we assume that relevant evidence was admitted here without timely objection, we must review the record to determine if Fernandez and the Fund had actual notice that the claim by Hess for costs and reasonable actual attorney fees was being raised during trial. See id.
. We cannot conclude that, because the jury found negligence as to the standard of care, Fernandez and the Fund were fully aware that Hess was also trying a claim under Wis. Stat. § 51.61(1)(f), and that they could be liable for over $1 million in costs and reasonable actual attorney fees under § 51.61(7)(a). The circuit court erred when it failed to analyze the implied consent issue in terms of actual notice. It found that the issue was "fully aired," at least as to the violation of the standard of care, simply because it concluded a commonality of p
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