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. A
party may 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 by specific negative averment, which shall include
facts within the pleader's knowledge. If raised as an issue, the party relying
on such capacity, authority, or legal existence, shall establish the same on
the trial.
(a)(2) Designation of unknown defendant.
When a party does not know the name of an adverse party, he may state that fact
in the pleadings, and thereupon such adverse party may be designated in any
pleading or proceeding by any name; provided, that when the true name of such
adverse party is ascertained, the pleading or proceeding must be amended
accordingly.
(a)(3) Actions to quiet title; description
of interest of unknown parties. In an action to quiet title wherein any of the
parties are designated in the caption as "unknown," the pleadings may
describe such unknown persons as "all other persons unknown, claiming any
right, title, estate or interest in, or lien upon the real property described
in the pleading adverse to the complainant's ownership, or clouding his title
thereto."
(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 on the trial establish the facts showing such performance or
occurrence.
(d) Official document or act. In pleading an
official document or 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, 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 damage. When items of special
damage are claimed, they shall be specifically stated.
(h) Statute of limitations. In pleading the
statute of limitations it is not necessary to state the facts showing the
defense but it may be alleged generally that the cause of action is barred by
the provisions of the statute relied on, referring to or describing such
statute specifically and definitely by section number, subsection designation,
if any, or otherwise designating the provision relied upon sufficiently clearly
to identify it. If such allegation is controverted,
the party pleading the statute must establish, on the trial, the facts showing
that the cause of action is so barred.
(i) Private
statutes; ordinances. In pleading a private statute of this state, or an
ordinance of any political subdivision thereof, or a right derived from such
statute or ordinance, it is sufficient to refer to such statute or ordinance by
its title and the day of its passage or by its section number or other
designation in any official publication of the statutes or ordinances. The
court shall thereupon take judicial notice thereof.
(j) Libel and slander.
(j)(1) Pleading defamatory matter. It is not
necessary in an action for libel or slander to set forth any intrinsic facts
showing the application to the plaintiff of the defamatory matter out of which
the action arose; but it is sufficient to state generally that the same was
published or spoken concerning the plaintiff. If such allegation is controverted, the party alleging such defamatory matter
must establish, on the trial, that it was so published
or spoken.
(j)(2) Pleading defense. In his answer to an
action for libel or slander, the defendant may allege both the truth of the
matter charged as defamatory and any mitigating circumstances to reduce the
amount of damages, and, whether he proves the justification or not, he may give
in evidence the mitigating circumstances.
(k) Renew judgment. A complaint alleging
failure to pay a judgment shall describe the judgment with particularity or
attach a copy of the judgment to the complaint.
(l) Allocation of fault.
(l)(1) A party seeking to allocate fault to
a non-party under Title 78B, Chapter 5, Part 8 shall
file:
(l)(1)(A) a
description of the factual and legal basis on which fault can be allocated; and
(l)(1)(B) information
known or reasonably available to the party identifying the non-party, including
name, address, telephone number and employer. If the identity of the non-party
is unknown, the party shall so state.
(l)(2) The information specified in
subsection (l)(1) must be included in the party's
responsive pleading if then known or must be included in a supplemental notice
filed within a reasonable time after the party discovers the factual and legal
basis on which fault can be allocated but no later than the deadline specified
in the discovery plan under Rule 26(f). The court, upon motion and for good
cause shown, may permit a party to file the information specified in subsection
(l)(1) after the expiration of any period permitted by
this rule, but in no event later than 90 days before trial.
(l)(3) A party may not seek to allocate
fault to another except by compliance with this rule.