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The failure to plead a theory of recovery is immaterial where that theory is tried with the express or implied consent of the appellants. Alaska R. Civ. P. 15(b) provides: When issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings. Such amendment of the pleadings as may be necessary to cause them to conform to the evidence and to raise these issues may be made upon motion of any party at any time, even after judgment; but failure so to amend does not affect the result of the trial of these issues.


In Alaska Protection Services v. Frontier Colorcable, Inc., 680 P.2d 1119, 1124 (Alaska 1984) the court refused to find implied consent to try an issue on which the evidence was brief, undeveloped, and one sided. In Hill v. Ames, 606 P.2d 388, 390 (Alaska 1980) the appellant introduced evidence relevant to theories of equitable relief which were not contained in the pleadings. Because the appellee had no opportunity to present countervailing evidence on those theories, the court declined to consider ...

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