§ 16-63-214 - Variance between pleading and proof. - Arkansas Statutes

16-63-214. Variance between pleading and proof.

(a) (1) No variance between the allegation in a pleading and the proof is to be deemed material unless it has actually misled the adverse party to his or her prejudice in maintaining his or her action or defense upon the merits.

(2) Whenever it is alleged that a party has been so misled, that fact must be shown to the satisfaction of the court, and it must also be shown in what respect he or she has been misled. Thereupon, the court may order the pleading to be amended upon such terms as may be just.

(b) Where the variance between the allegation in the pleading and the proof is not material, the court may direct the fact to be found according to the evidence, and may order an immediate amendment without costs.

(c) Where, however, the allegation of the claim or defense to which the proof is directed is unproved, not in some particular or particulars only, but in its general scope and meaning, it is not to be deemed a case of variance within this section, but a failure of proof.