Lawsuits often change shape and form during their lives. The plaintiff develops a new theory of liability during discovery. The defendant happens upon a new affirmative defense.
Eager to press the new theory or defense, counsel presents it in a dispositive motion or in a trial brief. The new theory leads to a finding of liability. Or, as the case may be, the new affirmative defense prevails, foreclosing liability.
Secure in victory, the prevailing party remains confident on appeal. There is only one problem. And it’s a big one. Counsel forgot to amend the complaint by pleading the new theory, or forgot to amend the answer by pleading the new defense.
The pleadings frame the issues that may be considered by the courts, whether presented on summary judgment or at trial. The scope of the issues framed by the pleadings may be further limited for trial by a pre-trial order or stipulation of the parties. When a party fails to expand the issues by amending the complaint, answer, pre-trial order, or other governing document, the consequences on appeal can be catastrophic. And not only for the losing party.
It is settled law that the unsuccessful party in the trial court generally may not urge reversal on issues not raised below. But courts have held that even if an unsuccessful party raised an issue below, that issue may not serve as a basis for reversal if it was not properly framed by the pleadings. Even the successful party in the trial court is subject to the consequences of failing timely to seek amendment to the pleadings. One appellate court reversed a judgment because it was based on a theory that the prevailing party failed to include in the operative pleading.
Counsel should seek to amend pleadings in the trial court at the earliest opportunity. Failure to do so may lead to unpleasant surprises in the Court of Appeal.