Rule 55.13 Averments as to Capacity or Authority of Parties to Sue or Be Sued

• Library: Civil Procedure (2007 Ed. + 2013 Supp)

XIII. Rule 55.13 Averments as to Capacity or Authority of Parties to Sue or Be Sued

A. Text of Rule

It shall be sufficient to aver the ultimate fact of the capacity of a party to sue or be sued or the authority of a party to sue or be sued in a representative capacity or the legal existence of a corporation or of an organized association of persons that is made a party. When a person desires to raise an issue as to the legal existence of any party or the capacity of any party to sue or be sued or the authority of a party to sue or be sued in a representative capacity, the person shall do so by specific negative averment, which shall include such supporting particulars as are peculiarly within the pleader's knowledge. When a party so raises such issue, the burden of proof thereon shall be placed upon the opposite party.

B. Historical Note

None.

C. Cross-References

This Rule is the same as § 509.140, RSMo 2000. Cf. Fed. R. Civ. P. 9(a) and 17(b).

D. Time Constraints

None.

E. Comment

1. Generally

A party to an action must have the capacity to sue or be sued. Legal entities include natural persons, artificial persons, and quasi-artificial persons. Gill v. Farm Bureau Life Ins. Co. of Mo., 856 S.W.2d 96, 99–100 (Mo. App. S.D. 1993). Rule 55.13 permits pleading of the ultimate fact of the capacity of a party to sue or be sued. Want v. Leve, 574 S.W.2d 700, 710 (Mo. App. E.D. 1978). For example, the capacity of a corporation to sue is adequately alleged by stating that it is a corporation duly organized and existing under the laws of the State of Missouri. Counsel should note that a dissolved corporation continues its corporate existence and may sue or be sued in its corporate name. Sections 351.476 et seq., RSMo 2000 and Supp. 2006; see also Mabin Constr. Co. v. Historic Constructors, Inc., 851 S.W.2d 98, 102 (Mo. App. W.D. 1993).

As with general capacity, the authority of a party to sue in a representative capacity may be alleged by pleading that ultimate fact. Parties acting in a representative capacity may be involved in, for example:

· suits by or against minors (Rule 52.02);

· class actions (Rule 52.08);

· derivative actions by shareholders (Rule 52.09); and

· actions by or against unincorporated associations (Rule 52.10).

The death of either party to a cause of action will warrant the appointment of a personal representative. Section 537.021, RSMo 2000. In such a case, for example, it is sufficient to plead that the plaintiff has been duly appointed personal representative of the deceased.

It should be remembered that Rule 55 generally applies only to actions filed in circuit court. This includes actions pending in associate circuit division, except when otherwise provided by law (e.g., certain provisions of Chapter 517 or 535, RSMo). Rule 41.01(d). It dose not apply to actions in probate court unless so ordered. United States Testing Co. v. Estate of Glenn, 673 S.W.2d 842, 844 (Mo. App. S.D. 1984).

2. Denial of Capacity or Authority

A party who wishes to challenge the capacity or authority of the opposing party must do so by specific negative averment. Cornejo v. Crawford County, 153 S.W.3d 898, 901 (Mo. App. S.D. 2005). Neither a general denial nor a statement that the pleader lacks knowledge or belief to either admit or deny capacity is sufficient. Fox Plumbing...