Rule 15.Amended and Supplemental Pleadings

Reporter’s Notes to Rule 15: 1. Section (a) of Rule 15 marks a substantial change from FRCP 15(a) and is generally in accord with prior Arkansas law. The Committee believed that amendments to pleadings should be allowed in nearly all instances without special permission from the court. The court is, however, given discretion to strike any amendment which would cause prejudice or unduly prolong the disposition of a case. As an alternative to striking an amendment, a continuance could be granted by the trial court. Under prior Arkansas law, trial courts were given broad discretion to permit an amendment to stand. Hogue v. Jennings, 252 Ark. 1009, 481 S.W.2d 752 (1972); Bridgman v. Drilling, 218 Ark. 772, 238 S.W.2d 645 (1951). Generally speaking, it is the intent of this rule that amendments to pleadings should be permitted without leave of the court in all instances unless it can be demonstrated that prejudice or delay would result. To this extent, Rule 15 is more liberal than superseded Ark. Stat. Ann. § 27-1160 (Repl. 1962) and is certainly more liberal than the Federal Rule.

2. [As amended by Per Curiam, February 26, 1996] Section (b) is identical to FRCP 15(b). It follows prior Arkansas law by permitting amendments to conform to the proof adduced at trial. This rule goes somewhat further, however, by more or less making it mandatory that pleadings be amended to conform to the proof where there has been no objection to such proof. Metropolitan Life Ins. Co. v. Fugate, 313 F.2d 788 (C.C.A. 5th, 1963); Bradford Audio Corp. v. Pious, 329 F.2d 67 (C.C.A. 2nd, 1968). Prior Arkansas law granted the trial court considerable discretion to permit pleadings to be amended to conform to the proof where there had been no objection raised. Velda Rose Motel, Inc. v. Eason, 241 Ark. 1041, 411 S.W.2d 502 (1967); Smith v. F. & C. Engineering Co., 225 Ark. 688, 285 S.W.2d 100 (1956). Where a new or different claim or defense was sought to be presented over the objection of the opposing party, the pleadings could not be amended to conform to the proof under prior Arkansas law. Shelton v. Harris, 225 Ark. 855, 286 S.W.2d 20(1956); O’Guinn Volkswagen, Inc., v. Lawson, 256 Ark. 23, 505 S.W.2d 213(1974). This rule does liberalize somewhat prior Arkansas law.

3. With the exception of minor wording changes, Section (c) is identical to FRCP 15(c). The question of relation back of pleadings normally does not arise unless the statute of limitations is involved. Under this and the Federal Rule, an amendment always relates back when it arises out of the conduct, transaction or occurrence set forth in the original pleading. Under prior Arkansas law, the question of whether a pleading related back was determined by whether the amendment asserted a new cause of action against the defendant. If it did, the amended pleading could not stand or relate back. Warmack v. Askew, 97 Ark. 19, 132 S.W. 1013(1910); Love v. Couch, 181 Ark. 994, 28 S.W.2d 1067 (1930).

4. Section (c) also permits changing the party against whom a claim is asserted if the party sought to be brought in received such notice of the action that he would not be prejudiced if brought in and knew or should have known that but for mistake, he would have been made a defendant initially. Prior Arkansas law was somewhat more prohibitive in that where there was a substantial change in identity of the defendant so as to amount to a change of defendants, the amendment would not be permitted to relate back. Davis v. Chrisp, 159 Ark. 335, 252 S.W. 606 (1923); Arkansas Land & Lumber Co. v. Davis, 155 Ark. 549, 244 S.W. 730(1922).

5. Omitted from Section (c) is the second paragraph of FRCP 15(c). Such provision is unnecessary under Arkansas practice.

6. Section (d) is identical to Section (d) of the Federal Rule. It is in accord with superseded Ark. Stat. Ann. § 27-1161 (Repl. 1962). Its purpose is simply to allow a pleading to be supplemented to reflect facts which develop after the filing of the original pleading.

Additions to Reporter’s Notes, 1984 Amendments: Rule 15(a) is amended so that the first sentence takes account of the amendment to Rule 12(h)(1) making it clear that a waivable defense may not be raised by amendment "at any time."

The Rule is also amended to enlarge from 10 to 20 days the time to respond to an amended pleading.

Addition to Reporter’s Notes, 1993 Amendment: Subdivision (c) is revised to prevent parties against whom claims are made from taking unfair advantage of otherwise inconsequential pleading errors to sustain a limitations defense. The changes are based on the 1991 amendments to the corresponding federal rule.

Paragraph (1) is simply a restatement of the general "relation back" principle and works no change in the law. However, paragraph (2) effectively overturns the interpretation that had been given FRCP 15 with respect to a misnamed defendant. See Schiavone v. Fortune, 477 U.S. 21 (1986), cited with approval in Harvill v. Community Methodist Hospital Ass’n, 302 Ark. 39, 786 S.W.2d 577 (1986), and Southwestern Bell Tel. Co. v. Blastech, Inc., 313 Ark. 202, 852 S.W.2d 813 (1993). Under the revised rule, an intended defendant who is notified of an action with the period allowed by Rule 4(i) for service of a summons and complaint may not defeat the action on account of a defect in the pleading with respect to the defendant’s name, provided that the requirements of clauses (A) and (B) have been satisfied. If the notice is received within the period specified in Rule 4(i), including an extension granted pursuant to that rule, a complaint may be amended at any time to correct a formal defect such as a misnomer or mis-identification.

Addition to Reporter’s Notes, 2001 Amendment: Subdivision (d), which governs supplemental pleadings, is amended to make its terms parallel with those of subdivision (a), which applies to amended pleadings. By virtue of the amendment, permission of the court to file a supplemental pleading is no longer necessary, although the opposing party may move to strike the pleading on grounds of prejudice or undue delay. Also, a response to the supplemental pleading is now required. Under the original version of the rule, a response was to be filed only if the court "deem[ed] it advisable."