Posted By:
Kenny ColeI would object to a motion to conform the pleadings to the proof (on the plaintiff's side) if I was worried about a SOL issue that had arisen for the first time. Since its an affirmative defense, you would then have to explain why it wasn't pled earlier, etc., etc. I don't want to give the seminar about pleadings, waiver, whether it was necessarily litigated and whatnot, and I'm not saying I would win that argument, I'm just saying that it isn't necessarily a slam dunk if it isn't pled to begin with. Plus, I'm sure that the defendant has almost always committed fraud, which only starts the statute running when it is discovered. 
BTW, I always move to conform the pleadings to the proof. I have had at least three trials where I did that and the judge didn't know WTF I was talking about. Sigh.
Kenny Cole