Rule 9 PLEADING SPECIAL MATTERS.

• Jurisdiction: Colorado

Rule 9. Pleading Special Matters.

(a) (1) Capacity. It is not necessary to aver 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 an organized association of persons that is made a party. When a party 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, he shall do so by specific negative averment, which shall include such supporting particulars as are peculiarly within the pleader's knowledge, and on such issue the party relying on such capacity, authority, or legal existence, shall establish same on the trial.

(2) Identification of Unknown Party. When a party is designated in the caption as one "whose true name is unknown" the pleader shall allege such matters as are within his knowledge to identify such unknown party and his connection with the claim set forth.

(3) Interest of Unknown Parties. When parties are designated in the caption as "all unknown persons who claim any interest in the subject matter of this action" the pleader shall describe the interests of such persons, and how derived, so far as his knowledge extends.

(4) Description of Interest. Where unknown parties claim some interest through some one or more of the named defendants, it shall be a sufficient description of their interests and of how derived to state that the interests of the unknown parties are derived through some one or more of the named defendants.

(b) Fraud, Mistake, Condition of the Mind. In all averments of fraud or mistake, the circumstances constituting fraud or mistake shall be stated with particularity. Malice, intent, knowledge, and other condition of mind of a person may be averred generally.

(c) Conditions Precedent. In pleading the performance or occurrence of conditions precedent, it is sufficient to aver generally that all conditions precedent have been performed or have occurred. A denial of performance or occurrence shall be made specifically and with particularity, and when so made the party pleading the performance or occurrence shall establish on the trial the facts showing such performance or occurrence.

(d) Official Document or Act. In pleading an official document or official act it is sufficient to aver that the document was issued or the act done in compliance with law.

(e) Judgment. In pleading a judgment or decision of a domestic or foreign court, judicial or quasi-judicial tribunal, or of a board or officer within the United States or within a territory or insular possession subject to the dominion of the United States, it is sufficient to aver the judgment or decision without setting forth matter showing jurisdiction to render it. A denial of jurisdiction shall be made specifically and with particularity and when so made the party pleading the judgment or decision shall establish on the trial all controverted jurisdictional facts.

(f) Time and Place. For the purpose of testing the sufficiency of a pleading, averments of time and place are material and shall be considered like all other averments of material matter.

(g) Special Damages. When items of special damage are claimed, they shall be specifically stated.

(h) [There is no section (h).]

(i) Pleading Statute. In pleading a statute of Colorado or of the United States, the same need not be set forth at length, but it shall be sufficient to refer to such statute by the appropriate designation in the official or recognized compilation thereof, or otherwise identify the same, and the court shall thereupon take judicial knowledge thereof.

Cross references: For pleadings concerning parties plaintiff and joint defendants, see §§13-25-117 and 13-25-118, C.R.S.; for conclusion of a judgment in rem against unknown defendants, see C.R.C.P 54(g); for general rules of pleading, see C.R.C.P. 8.

ANNOTATION

I. General Consideration.

II. Capacity.

III. Identification of Unknown Party.

IV. Interest of Unknown Parties.

V. Fraud, Mistake, Condition of the Mind.

VI. Conditions Precedent.

VII. Judgment.

VIII. Time and Place

IX. Special Damages.

X. Pleading Statute.

I. GENERAL CONSIDERATION.

Law reviews. For article, "Pleadings, Rules 7 to 25", see 28 Dicta 368 (1951). For article, "Pleadings and Motions: Rules 7-16", see 23 Rocky Mt. L. Rev. 542 (1951). For article, "One Year Review of Civil Procedure", see 35 Dicta 3 (1958). For article, "One Year Review of Civil Procedure and Appeals", see 37 Dicta 21 (1960). For article, "One Year Review of Civil Procedure and Appeals", see 39 Dicta 133 (1962).

Applied in Daniel v. M.J. Dev., Inc., 43 Colo. App. 92, 603 P.2d 947 (1979); K-R Funds, Inc. v. Fox, 640 P.2d 257 (Colo. App. 1981); Ed Hackstaff Concrete, Inc. v. Powder Ridge Condo., 679 P.2d 1112 (Colo. App. 1984); Padilla v. Ghuman, 183 P.3d 653 (Colo. App. 2007).

II. CAPACITY.

Annotator's note. The last clause of section (a)(1) beginning with the words "and on such issue", is not in F.R.C.P. 9(a)(1) was added because of the decision in Home Ins. Co. v. Taylor, 94 Colo. 446, 32 P.2d 183 (1934) concerning the burden of proof.

Want of legal capacity to sue must be raised by special plea. Bohen v. Bd. of County Comm'rs, 109 Colo. 283, 124 P.2d 606 (1942).

It is unnecessary to aver in the pleadings the authority of a party to sue in a representative manner. Alder v. Alder, 167 Colo. 145, 445 P.2d 906 (1968).

If a party desires to raise an issue as to the authority of a party to sue in a representative manner, he must do so by specific negative averment. Adler v. Adler, 167 Colo. 145, 445 P.2d 906 (1968).

An answer stating that the defendant is without knowledge of plaintiff's corporate existence and capacity to sue is not sufficiently specific under this rule to place that matter in issue so that plaintiff's failure to prove its capacity may properly serve as the basis for dismissal of its complaint, and does not meet this rule's requirement for a specific negative averment. Tex-Am Carriers, Inc. v. A.S.T. Brokerage, Inc., 41 Colo. App. 438, 586 P.2d 667 (1978).

Where the pleadings of the plaintiffs in error do not contain the negative averment, the issue is never before the trial court and the objection is waived. Adler v. Adler, 167 Colo. 145, 445 P.2d 906 (1968).

Neither the legal existence of a party nor its capacity to sue can be challenged by motion to dismiss for failure to state a claim, for such issue can be raised only by specific negative averment, and the issue, when so raised, becomes an issue to be settled on the trial of the matter. Northwest Dev., Inc. v. Dunn, 29 Colo. App. 364, 483 P.2d 1361 (1971).

Determination whether assignee of claim for attorney's fee acted as a nonlicensed collection agency in bringing suit was not necessary where no issue concerning the capacity of assignee to sue was raised by the pleadings, the pre-trial order did not permit extension of the issues beyond those stated in the order, and the action was neither one to determine the legality of the assignment contract nor one to invoke a penalty against assignee for violation of the collection agency statute. Reilly v. Cook, McKay & Co., 152 Colo. 269, 381 P.2d 261 (1963).

Where defendant failed to file an objection to plaintiff's motion for substitution of parties and also failed to challenge the trial court's order permitting the substitution, then right to review on appeal has been waived. Thomason v. McAlister, 748 P.2d 798 (Colo. App. 1987).

Trial court had personal jurisdiction over estate after plaintiffs amended complaint to name estate and estate's special administrator as defendants instead of deceased, non-existent defendant before any answer had been filed in the case. This cured the defect in personal jurisdiction contained in the original complaint. Currier v. Sutherland, 218 P.3d 709 (Colo. 2009).

III. IDENTIFICATION OF UNKNOWN PARTY.

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