Opinion
No. 77-1019
Decided October 26, 1978.
Trial court dismissed action on basis that corporate plaintiff had not proved its capacity to sue, and plaintiff appealed.
Reversed
1. PLEADING — Answer — Allegation — Without Knowledge — Plaintiff's Corporate Existence — Capacity to Sue — Insufficient — Place Matter At Issue — No Basis — Dismissal of Complaint. An answer stating that the defendant is without knowledge of a plaintiff's corporate existence and capacity to sue is not sufficiently specific under C.R.C.P. 9(a)(1) to place that matter in issue, and thus where such a general answer had been filed, plaintiff's failure to prove its capacity could not properly serve as the basis for dismissal of its complaint.
2. Motion — Dismiss — Failure to State Claim — Not — Put in Issue — Plaintiff's Corporate Existence — Capacity to Sue. A defendant's motion to dismiss for failure to state a claim for which relief can be granted does not serve to put in issue the plaintiff's corporate existence and capacity to sue.
Appeal from the District Court of Jefferson County, Honorable George G. Priest, Judge.
Kelly, Haglund, Garnsey Kahn, Howard A. Roitman, for plaintiff-appellant.
Vernon P. Playton, Douglas John Traeger, for defendants-appellees.
No appearance for defendant-appellee W. M. Jussell.
This appeal addresses the question of whether an answer stating the defendant is without knowledge of plaintiff's corporate existence and capacity to sue is sufficiently specific under C.R.C.P. 9(a)(1) 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. We conclude that such a pleading does not meet the rule's requirement for a specific negative averment, and therefore, reverse the judgment of the trial court, which dismissed the complaint.
Plaintiff, Tex-Am Carriers, Inc., an Iowa corporation, sued A.S.T. Brokerage, Inc., for breach of contract and defendants W. M. Jussell and Ron Van Englehoven, corporate officers of A.S.T., for conversion and gross negligence for failure to remit to Tex-Am money belonging to Tex-Am.
In its complaint, Tex-Am stated it was an Iowa corporation, operating solely in interstate commerce. A.S.T. answered that it was without information upon which to form a belief as to the truth of this allegation and therefore it was denied. A.S.T. contends that where a defendant has no direct knowledge of the facts regarding the plaintiff's legal existence or capacity to sue, and they are not readily ascertainable, the "without information" denial is a sufficient negative averment to put the matter in issue. We do not agree.
C.R.C.P. 9(a)(1) states:
"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."
There are no Colorado cases directly on point. However, the portion of C.R.C.P. 9(a)(1) quoted above is identical to Rule 9 of the Federal Rules of Civil Procedure. Federal cases have held that under Rule 9, the "without information" denial is insufficient to raise an issue regarding corporate existence or capacity to sue. Montellier v. United States, 202 F.Supp. 384 (E.D.N.Y. 1963), aff'd on other grounds, 315 F.2d 180 (2d Cir. 1963); Langwood Products, Inc. v. De Luxe Game Corp., 9 F.R.D. 418 (E.D.N.Y. 1949); Kucharski v. Pope Talbot, Inc., 4 F.R.D. 208 (S.D.N.Y. 1944).
According to 2A Moore's Federal Practice ¶ 9.02 at 1912 (J. Moore and J. Lucas 2d ed. 1975):
"If the [defendant] desire[s] to raise an issue as to the legal existence of the [plaintiff], it should deny in substantially the following form: 'Defendant denies that the plaintiff has such legal existence as entitles it to maintain this action;' and should add such supporting particulars as are within its knowledge."
[1] Finding these authorities persuasive, we hold that A.S.T. did not comply with C.R.C.P. 9(a)(1) because its answer did not contain the specific negative averment together with supporting particulars. Therefore, Tex-Am was not required to prove its existence and capacity to sue and the court's dismissal of the complaint was error.
[2] Also, A.S.T.'s motion to dismiss for failure to state a claim on which relief can be granted did not put the matter at issue. Northwest Development, Inc. v. Dunn, 29 Colo. App. 364, 483 P.2d 1361 (1971).
Further, we may not accede to Tex-Am's request that this court enter judgment on the substantive claims presented, based upon the record. That is the province of the trial court. Consequently, the trial having been completed, we remand the cause to the trial court for its findings of fact and conclusions of law and judgment based upon the evidence in the record.
Judgment reversed and cause remanded for further proceedings.
JUDGE ENOCH and JUDGE KELLY concur.