dissenting.
I respectfully dissent. The majority finds that the Attorney General as inter-venor must, absolutely, file a pleading for his intervention to properly commence, reasoning that any other ruling would result in a policy which allows “oral lawsuits.” I find the majority’s concern over the danger of oral lawsuits to be wasted on the facts presented here. I would hold that the Attorney General’s intervention and the claims urged were issues litigated by consent. A more detailed recitation of what transpired at the hearing is necessary.
Two intervenors were present at the settlement hearing between Perez and U.S. Fire Insurance Company. Mr. Diaz was Perez’s original attorney in this cause, and he asserted a claim for attorney’s fees and repayment for money advanced. The Attorney General, represented by Adrian Vasquez, advanced a claim for child support. The trial court asked Perez if he understood that the Attorney General had appeared with a claim for child support and that settlement proceeds might be used to satisfy that claim. Perez replied that he did understand. Far from making any objection to the Attorney General’s appearance, Perez’s attorney informed the court that he and his client had discussed the matter with the Attorney General, and he believed that they had reached an accord. Perez never complained of the Attorney General’s lack of pleadings, nor did he complain of lack of notice of the Attorney General’s claims. Perez’s attorney admitted early in the proceedings that Mr. Vasquez served him with a motion showing $440 in delinquent child support payments. When counsel informed the court that he and the Attorney General had agreed on the payment of the support, he even asked Mr. Vasquez the correct amount his client owed, agreeing later that his client was $1040 delinquent in payments. Mr. Vasquez participated throughout the hearing, answering the trial judge’s questions, mak*24ing motions, and engaging in argument against Perez’s counsel.
Perez urged that his payment of $80 per month ($40 in current child support and $40 towards arrearage, pursuant to a previous enforcement decree) satisfied his support obligation and insulated him from further collection attempts by the Attorney General. While he agreed that he was delinquent $1040, he resisted the Attorney General's position that all unpaid child support, including the amount adjudicated in the prior hearing, constituted arrearage. It is clear from the record that Perez never objected to the Attorney General’s participation, but rather, he ably and vigorously contested the amount to be paid out of the settlement. Since he waived any complaint to intervention by failing to object, Perez should be estopped from attempting to void the award to the Attorney General now.
The majority relies upon Rule 22, which requires that a petition be filed before a suit may commence. Tex.R.Civ.P. 22. The majority reasons that the pleadings required by Rules 22 and 60 are minimum requirements, without which the intervenor would be allowed to try an oral lawsuit. I would hold that this case had already commenced under Rule 22 and that the Attorney General’s claims were litigated by consent. An issue may be deemed to be tried by consent when the issue is developed at trial, the circumstances make it clear that both parties understood that such issue was in the case, and the other party fails to make an appropriate complaint. Realtex Corp. v. Tyler, 627 S.W.2d 441, 443 (Tex.App.-Houston [1st Dist.] 1981, no writ); Tex.R.Civ.P. 67. The record shows that Perez was fully aware of the nature of the claim the Attorney General asserted and of the amounts in dispute. Rule 60 states that a party may intervene in a lawsuit subject to being stricken, and leave of court is not required. Mercure Co., N. V. v. Rowland, 715 S.W.2d 677, 681 (Tex.App.—Houston [1st Dist.] 1986, writ ref’d n.r.e.); Tex.R.Civ.P. 60. The party opposing intervention has the burden of challenging it under Rule 60, and it is error for the court to deny a potential litigant the right to intervene if there has been no objection to intervention based on sufficient cause. Guaranty Fed. Savs. Bank v. Horseshoe Operating Co., 793 S.W.2d 652, 657 (Tex.1990); In re Nation, 694 S.W.2d 588, 589 (Tex.App.—Texarkana 1985, no writ); Apparel Contractors, Inc. v. Vantage Properties, Inc., 620 S.W.2d 666, 668 (Tex.Civ. App.—Dallas 1981, writ ref’d n.r.e.). By failing to object at the hearing, Perez waived his right to complain about the lack of pleadings. See Northwest Otolaryngology Assoc. v. Mobilease, Inc., 786 S.W.2d 399, 402-03 (Tex.App.—Texarkana 1990, writ denied) (appellant could not complain about a lack of pleadings on right of subro-gation because that evidence was introduced at trial by appellees without objection).
Fundamental error in civil trials is rare, and only occurs in those instances when the record shows on its face that the court lacked jurisdiction or that the public interest would be adversely affected. Central Educ. Agency v. Burke, 711 S.W.2d 7, 8 (Tex.1986). No fundamental error is presented here, as the court had subject matter jurisdiction as well as personal jurisdiction over the parties. Placing the burden upon counsel to object to interventions that could adversely affect his client would not be against the public interest. Therefore, in the absence of a proper trial objection, Perez waived his complaint. Tex. R.App.P. 52(a).
The majority applies the rule in Comal County Rural High School Dist. v. Nelson, 158 Tex. 564, 314 S.W.2d 956, 957 (1958) and Highlands Ins. Co. v. Lumberman’s Mut. Casualty Co., 794 S.W.2d 600, 602-03 (Tex.App.—Austin 1990, no writ) somewhat routinely. The cases are distinguishable from the one at bar. In both of them, judgment had already been rendered, and the moving party never participated in the trial proceedings. The Court in Highlands, commenting on Comal, states, “the Court held simply that intervention after judgment, but before expiration of the trial court’s jurisdiction, was barred as a matter of law unless and until the trial court first set aside its judgment between the original litigants and granted a new trial.” *25Highlands, 794 S.W.2d at 602 (emphasis added). Here, the Attorney General did not attempt to intervene after judgment-was rendered, but appeared before judgment. Furthermore, the Attorney General was one of the original litigants.
I would hold that Perez willingly engaged in litigation of the Attorney General’s claims. Therefore, any error presented by a lack of written pleadings was waived, and the issues presented by the intervenor were tried by consent. Moreover, since the right of intervention is founded in equity, Highlands, 794 S.W.2d at 601-602, Perez should be estopped from complaining about the award to the Attorney General now, because he continued to defend when he knew the Attorney General had filed no plea in intervention. I agree with the majority’s disposition of the issue of attorney’s fees.