Wampler v. Tusing’s Empirical Analysis

Citation profile

5 state decisions

Most-quoted passages

The sentences later courts lift from this opinion, ranked by how many decisions quote each — the parts of the opinion doing the work. These counts are smaller than the citation total above because most of the 5 citing decisions cite the case generally; a passage count includes only decisions quoting that exact language verbatim.

1. ““[b]efore a party may impliedly consent to the trial of an unpleaded issue, he must be given some notice as to the existence of that issue. Notice may be overt, as where the unpleaded issue is expressly raised prior to or sometime during the trial but before the close of evidence. Notice may be implied where the evidence presented at trial is such that a reasonably competent attorney would have recognized the unpleaded issue as being litigated. However, the opposing party may not put a new issue into a trial under the cloak of evidence relevant to an already pleaded issue. Both parties must litigate the new issue, and implied consent will not be found unless the parties know or should have known that the unpleaded issue was being presented.””

   2 later decisions quote this exact passage
   e.g. Van Bibber Homes Sales v. Marlow · Samar, Inc. v. Hofferth

2. “Fairness requires that the opposing party have 'some notice that an issue is before the court which has not been pleaded or has not been agreed to in a pre-trial order.”

   1 later decision quote this exact passage
   e.g. Rogers v. Lockard