C.r.c.p. 9
C.r.c.p. 9
Annotation 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. Under this rule, unknown persons may be made parties to a suit to quiet title to lands and may be concluded by the decree therein. Brackett v. McClure, 24 Colo. App. 524, 135 P. 1110 (1913) (decided under § 50(b) of the former Code of Civil Procedure, which was replaced by the Rules of Civil Procedure in 1941). IV. Interest of Unknown Parties. Law reviews. For article on requirements of this rule, see 6 Dicta 9 (1929). For article, "Standard Pleading Samples to Be Used in Quiet Title Litigation", see 30 Dicta 39 (1953). V. Fraud, Mistake, Condition of the Mind. Law reviews. For article, "Use of Summary Judgments and the Discovery Procedure", see 24 Dicta 193 (1947). Federal rule is substantially identical, therefore federal cases interpreting F.R.C.P. 9(b) are persuasive in interpreting C.R.C.P. 9(b). State Farm Mutual Auto. Ins. Co. v. Parrish, 899 P.2d 285 (Colo. App. 1994). Fraud is never presumed. Fidelity Fin. Co. v. Groff, 124 Colo. 223, 235 P.2d 994 (1951). This rule provides that in all averments of fraud the "circumstances constituting fraud" shall be stated with "particularity". Western Homes, Inc. v. District Court, 133 Colo. 304, 296 P.2d 460 (1956); Coon v. District Court, 161 Colo. 211, 420 P.2d 827 (1966); State Farm Mutual Auto. Ins. Co. v. Parrish, 899 P.2d 285 (Colo. App. 1994). Where complaint alleged a conspiracy to defraud an insurance company by virtually every conceivable method of doing so, but failed to identify which of the hundreds of transactions between the parties over a period of years involved fraud, dismissal of the conspiracy claim and other claims incorporating the allegations contained in the conspiracy claim was proper. State Farm Mutual Auto. Ins. Co. v. Parrish, 899 P.2d 285 (Colo. App. 1994). Allegations of fraud must be stated with the "particularity" required by this rule. O.K. Uranium Dev. Co. v. Miller, 140 Colo. 490, 345 P.2d 382 (1959). Particularity requirement is intended in part to protect defendants from reputational harm that may result from unsupported allegations of fraud, a charge which involves moral turpitude. State Farm Mutual Auto. Ins. Co. v. Parrish, 899 P.2d 285 (Colo. App. 1994). The "particularity" required includes all of the material elements of an action in fraud and deceit as such had theretofore been laid down in the numerous decisions of this court antedating the adoption of the rules of civil procedure. Ginsberg v. Zagar, 126 Colo. 536, 251 P.2d 1080 (1952); Coon v. District Court, 161 Colo. 211, 420 P.2d 827 (1966). Particularity requirement applies to all claims "sounding in fraud", regardless of the label that a party has attached to a particular claim. State Farm Mutual Auto. Ins. Co. v. Parrish, 899 P.2d 285 (Colo. App. 1994). Rescission based on fraud in the inducement, asserted as an affirmative defense to action on an employment contract, held insufficiently pleaded where defendant did not allege specific damage attributable to reliance on plaintiff's misrepresentations and did not include demand for rescission in complaint. Ice v. Benedict Nuclear Pharmaceuticals, Inc., 797 P.2d 757 (Colo. App. 1990). Where defense of fraud was stated with sufficient particularity and supported by affidavit in defendant's response to motion for partial summary judgment, it should have been incorporated in defendant's answer for the purpose of technical compliance with C.R.C.P. 8(c), even though the defense is more properly asserted in an answer. Alien, Inc. v. Futterman, 924 P.2d 1063 (Colo. App. 1995). Earlier cases defining "particularity" required in actions for fraud and deceit. Brown v. Linn, 50 Colo. 443, 115 P. 906 (1911); Kilpatrick v. Miller, 55 Colo. 419, 135 P. 780 (1913); Morrison v. Goodspeed, 100 Colo. 470, 68 P.2d 458 (1937). Where a plaintiff alleges that specific material representations were made by a defendant, it is insufficient merely to characterize them as false, but such plaintiff must set forth the falsity thereof by direct and particular allegation of the true facts, demonstrating thereby that the representations are untrue. Ginsberg v. Zagar, 126 Colo. 536, 251 P.2d 1080 (1952). Although this rule requires particularity in averments of fraud, it does not require detailed allegations of evidentiary facts. Northwest Dev., Inc. v. Dunn, 29 Colo. App. 364, 483 P.2d 1361 (1971). It is sufficient to state the main facts constituting the fraud. It is not necessary to recite in the bill of complaint all the evidence that may be adduced to prove the fraud, it being sufficient merely to state the main facts or incidents which constitute the fraud. Fidelity Fin. Co. v. Groff, 124 Colo. 223, 235 P.2d 994 (1951). Failure to allege precise dates or exact places of misrepresentations would not render fraud defense insufficient. Had the alleged fraud been pleaded with the "particularity" required by section (b) of this rule, the fact that the defendants failed to allege in their answer setting up the defense of fraud the precise dates upon which the misrepresentations were made, or the exact places where they were made, would not render the proposed defense legally insufficient. Coon v. District Court, 161 Colo. 211, 420 P.2d 827 (1966). The allegations and proofs of fraud must be clear and convincing. Fidelity Fin. Co. v. Groff, 124 Colo. 223, 235 P.2d 994 (1951). Allegations of fraud sufficiently averred. Western Homes, Inc. v. District Court, 133 Colo. 304, 296 P.2d 460 (1956). Where plaintiff does not make a prima facie showing of actionable fraud with the particularity required by section (b) of this rule, the trial court is correct in directing a verdict for defendant and against plaintiff. Roblek v. Horst, 147 Colo. 55, 362 P.2d 869 (1961). Where a complaint does not allege fraud with the particularity required by this rule and a motion to dismiss is filed, but neither argued nor ruled upon, and an answer thereafter filed in which the motion to dismiss is not repeated and trial proceeds on the issues framed by the complaint and answer without the sufficiency of the complaint being again challenged, an amendment to conform to the proof would have been in order under C.R.C.P. 15(b). O.K. Uranium Dev. Co. v. Miller, 140 Colo. 490, 345 P.2d 382 (1959). Complaint contained sufficient allegations of fraud to satisfy the requirements of section (b) where a corporation alleged that former officers and directors misused their access to confidential information regarding customers' identities, contracts, pricing, cost data, suppliers and production techniques to compete with the corporation and produce similar products using production and fabrication process substantially similar to the corporation's confidential processes. Scott Sys., Inc. v. Scott, 996 P.2d 775 (Colo. App. 2000). Although the court did not decide whether claims arising under the Colorado Consumer Protection Act must be pled under section (b), complaint satisfied the heightened pleading requirements when it contained facts that alleged that a corporation had deceived consumers about their goods' geographic origins. People ex rel. Suthers v. Mandatory Poster, 260 P.3d 9 (Colo. App. 2009). VI. Conditions Precedent. Law reviews. For article, "One Year Review of Contracts", see 35 Dicta 18 (1958). Annotator's note. (1) The last clause of section (c) commencing with the words "and when so made" is not in F.R.C.P. 9(c) and 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. (2) Since section (c) of this rule is similar to § 72 of the former Code of Civil Procedure, which was replaced by the Rules of Civil Procedure in 1941, relevant cases construing that section have been included in the annotations to this rule. This rule provides that in pleading performance or occurrence of condition precedent, it is sufficient to aver generally that all conditions precedent have been performed or have occurred but that a denial of performance "shall be made specifically and with particularity". Lively v. Price, 165 Colo. 111, 437 P.2d 526 (1968). This rule permits a plaintiff to plead generally the performance of all conditions. Sullivan v. McCarthy, 136 Colo. 150, 314 P.2d 901 (1957). Complaint on bond may adopt general averment. A complaint on a bond which prescribes conditions to be performed by the obligee in order to fix the liability of the obligor may effectually adopt the general averment of conditions performed. United States Fid. & Guar. Co. v. Newton, 50 Colo. 379, 115 P. 897 (1911). Plaintiff under the allegation of performance of an insurance contract can prove waiver of policy requirements by the company. Southern Sur. Co. v. Farrell, 79 Colo. 53, 244 P. 475 (1926). Complaint failing to allege performance by plaintiff is fatally defective. A complaint based upon a contract executory as to the plaintiff which is silent upon the question of plaintiff's performance and contains no averments which, if true, would excuse performance is fatally defective. Armor v. Fisk, 1 Colo. 148 (1869); Jones v. Perot, 19 Colo. 141, 34 P. 728 (1893); Bd. of Pub. Works v. Hayden, 13 Colo. App. 36, 56 P. 201 (1899); Mulford v. Central Life Assurance Soc'y, 25 Colo. App. 527, 139 P. 1044 (1914); Galligan v. Bua, 77 Colo. 386, 236 P. 1016 (1925). It is not defective for failure to state plaintiff "duly" performed all conditions. In an action on a hail insurance policy where the allegations of the complaint substantially complied with this provision, it is held that it was not defective because it failed to state that plaintiff "duly" performed all of the conditions of the contract. Great Am. Ins. Co. v. Scott, 89 Colo. 99, 299 P. 1051 (1931). It is error to refuse filing of answer denying performance. Where the petition alleged performance of the contract on the part of the petitioner, an answer denying the allegations of performance in the petition created a material issue, and it was error to refuse to permit it to be filed. Bd. of Pub. Works v. Hayden, 13 Colo. App. 36, 56 P. 201 (1899). Defendant must specially allege nonperformance of conditions precedent. Where an averment of performance of conditions precedent is allowed in the complaint, the rule is that if a defendant relies upon nonperformance he must specially allege the condition or conditions on the nonperformance of which he relies and negate their performance. Helvetia Swiss Fire Ins. Co. v. Allis Co., 11 Colo. App. 264, 53 P. 242 (1898); Pennsylvania Mut. Life Ins. Co. v. Ornauer, 39 Colo. 498, 90 P. 846 (1907); Nat'l Sur. Co. v. Queen City Land Co., 63 Colo. 105, 164 P. 722 (1917). Denial must be made specifically and with particularity. If an adverse party denies the performance of any such conditions, the rule requires that such denial shall be made specifically and with particularity. Sullivan v. McCarthy, 136 Colo. 150, 314 P.2d 901 (1957). Plaintiff is not obliged to prove performance of condition precedent not put in issue by defendant. Under this rule in an action where a plaintiff alleges generally the performance of all conditions precedent and defendant denies with particularity the performance of specific conditions, the plaintiff is not obliged to prove performance of a condition precedent with reference to which the defendant has tendered no issue. Sullivan v. McCarthy, 136 Colo. 150, 314 P.2d 901 (1957). VII. Judgment. Annotator's note. The last sentence of section (e) is not in F.R.C.P. 9(e) and 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. The manner of pleadings of this rule is prescribed not only to simplify the pleadings relating to judgments, but also to apprise the pleader of a judgment or decision of a court that it is being challenged for jurisdictional reasons as well as the particular grounds of the attack upon it, and for the further purpose of preventing final judgments and decisions of courts from being overthrown unadvisedly. Lamberson v. Thomas, 146 Colo. 539, 362 P.2d 180 (1961). The party pleading a foreign judgment must establish all jurisdictional facts when denial of jurisdiction is made with particularity by the opponent. Superior Distrib. Corp. v. White, 146 Colo. 595, 362 P.2d 196 (1961). A general denial of the validity of the decree is not sufficient to assail it. Lamberson v. Thomas, 146 Colo. 539, 362 P.2d 180 (1961). If plaintiff intends to attack a decree upon jurisdictional grounds, he is required to give notice to the defendants by specifically denying jurisdiction and alleging with particularity the grounds showing lack of jurisdiction. Lamberson v. Thomas, 146 Colo. 539, 362 P.2d 180 (1961). The mandatory provisions of this rule are not waived by the first pleaders having alleged jurisdictional facts in support of a judgment or decree. Lamberson v. Thomas, 146 Colo. 539, 362 P.2d 180 (1961). Contrary rulings by the court under the former code are no longer authority in Colorado. Lamberson v. Thomas, 146 Colo. 539, 362 P.2d 180 (1961). Fraud which will be available to a defendant in his attack upon a foreign judgment is fraud which has deprived him of the opportunity to make a full and fair defense. Superior Distrib. Corp. v. White, 146 Colo. 595, 362 P.2d 196 (1961). Where the very jurisdictional facts alleged as fraud were those heard and decided by the foreign court, no good reason appears why defendants should be permitted to relitigate this matter, they having had their day in court thereon. Superior Distrib. Corp. v. White, 146 Colo. 595, 362 P.2d 196 (1961). The doctrine of "res judicata" must be applied to questions of jurisdiction in cases arising in state courts involving application of the full faith and credit clause where under the law of the state in which the original judgment was rendered such adjudications are not susceptible to collateral attack. Superior Distrib. Corp. v. White, 146 Colo. 595, 362 P.2d 196 (1961). The doctrine of "res judicata" applies to adjudications of the person or of the subject matter where such adjudications have been made in proceedings in which those questions were in issue and in which the parties were given full opportunity to litigate. Superior Distrib. Co. v. White, 146 Colo. 595, 362 P.2d 196 (1961). Court may take judicial notice of doctrine or rule of law adopted in previous action. The rule which precludes a court from taking judicial notice of its own records in other actions, unless properly introduced in evidence, does not prevent it from noticing the doctrine or rule of law adopted by the court in the first action and applying that principle under the theory of "stare decisis" in the second action. Wasinger v. Miller, 154 Colo. 61, 388 P.2d 250 (1964). The trial court can properly take judicial notice of the fact that defendants had a right established by a previous action in its court and as to the wording used in that judgment, which wording later needed interpretation. Wasinger v. Miller, 154 Colo. 61, 388 P.2d 250 (1964). In order that an action may be maintained in one state upon a judgment recovered in another state, it is necessary that the judgment should be a valid and final adjudication, remaining in full force and virtue in the state of its rendition, and capable of being there enforced by final process. Gobin v. Citizens' State Bank, 92 Colo. 350, 20 P.2d 1007 (1933) (decided under § 71 of the former Code of Civil Procedure, which was replaced by the Rules of Civil Procedure in 1941); Ginsberg v. Gifford, 144 Colo. 186, 355 P.2d 657 (1960); Superior Distrib. Corp. v. McCrory, 144 Colo. 457, 356 P.2d 961 (1960). Complaint need not "specifically" allege that foreign judgment "can be enforced". It is not essential to a complaint based upon a foreign judgment that the allegations "specifically" state that the judgment sued upon "can be enforced" in the jurisdiction in which it was entered where the allegations in substance allege that the judgment is a valid and final adjudication remaining in full force in the state of its rendition and capable of being there enforced by final process, for under the liberalized rules of civil procedure, it is the substance of the complaint rather than the form that is paramount. Superior Distrib. Corp. v. Zarelli, 143 Colo. 358, 352 P.2d 967 (1960); Ginsberg v. Gifford, 144 Colo. 186, 355 P.2d 657 (1960). Where the pleadings show that a foreign judgment is a contingent, inconclusive adjudication, interlocutory in nature, the complaint is insufficient to state an enforceable claim on a foreign judgment. Superior Distrib. Corp. v. McCrory, 144 Colo. 457, 356 P.2d 961 (1960). VIII. Time and Place. Where the complaint on its face fails to make the material allegation of place, a motion to dismiss is good. Sprott v. Roberts, 154 Colo. 252, 390 P.2d 465 (1964). A motion to dismiss based on the fact that the complaint facially established a jurisdictional defect because of a violation of the statute of limitations has the effect of a motion for judgment on the pleadings, as averments of time will be considered in determining the sufficiency of the pleadings. People v. Steinberg, 672 P.2d 543 (Colo. App. 1983). IX. Special Damages. Law reviews. For article, "The Law of Libel in Colorado", see 28 Dicta 121 (1951). For article, "Loss of Use as an Element of Damages", 28 Dicta 277 (1951). For article, "One Year Review of Civil Procedure and Appeals", see 40 Den. L. Ctr. J. 66 (1963). Special damages must be specifically set forth in complaint. Where the loss of the business use of plaintiff's car was not the usual and natural consequence of any wrongful act on defendant's part, the damages, if any, which he sustained resulting from defendant's acts were required to be specifically set forth in his complaint. Rogers v. Funkhouser, 121 Colo. 13, 212 P.2d 497 (1949). Purpose of requiring that special damages be pled with specificity is essentially one of notice. Rodriquez v. Denver & R. G. W. R. R., 32 Colo. App. 378, 512 P.2d 652 (1973). Only when a party seeks to recover such damages as are not the usual and natural consequence of the wrongful act complained of must special damages be specially pled. Rodriquez v. Denver & R. G. W. R. R., 32 Colo. App. 378, 512 P.2d 652 (1973). Special damages may be considered by the court when not pleaded. Where special damages are not pleaded by plaintiff as required by section (g) of this rule, but defendant neither attacks the sufficiency of the complaint nor objects to evidence introduced relevant thereto, the trial court may, pursuant to C.R.C.P. 15(b), consider the matter of special damages and enter judgment for such amount as warranted by the evidence. Carlson v. Bain, 116 Colo. 526, 182 P.2d 909 (1947). Where the amended complaint of the plaintiffs did not plead special damages and the record disclosed that the defendant was put on notice of the claim for special damages as early as the pre-trial conference, the trial court's admission of the evidence and grant of leave to amend the complaint to conform to the proof upon motion of the plaintiffs was in conformity with the discretion of C.R.C.P. 15(b). Welborn v. Sullivant, 167 Colo. 35, 445 P.2d 215 (1968); Karakehian v. Boyer, 900 P.2d 1273 (Colo. App. 1994). Complaint in breach of contract suit "specifically stated" items of special damage where it was alleged that as a result of defendants' refusal to permit plaintiffs to use water specified in an agreement to exchange property, plaintiffs were damaged in that they were forced to drill a well on their own property and that there was also some loss of business and profits in the operation of their tourist court. Hinsey v. Jones, 159 Colo. 326, 411 P.2d 242 (1966). The only claims of defamation which may be maintained without allegation and proof of special damages are claims of libel per se, or claims of libel per quod where the alleged defamatory words meet certain of the specific criteria required in claims of slander per se. Fort v. Holt, 508 P.2d 792 (Colo. App. 1973). X. Pleading Statute. Allegation that action is barred by statute does not require specific citation. Under the rules of pleading the allegation that an action is barred by the statute in such case made and provided is certainly a reference to the statute on which a plaintiff relies and does not require specific citation to chapter and page. Denning v. A.D. Wilson & Co., 137 Colo. 372, 326 P.2d 77 (1958). Instruction on statute not objectionable where complaint fails to specifically refer to statute. Instruction covering the subject of damages which are recoverable for wrongful death was not objectionable because plaintiff had failed to specifically refer in his complaint to the wrongful death statute. Reidesel v. Blank, 158 Colo. 340, 407 P.2d 30 (1965). Court may allow amendment to more specifically plead statute subsequent to proof for clarification. After proof had been offered under the issues tendered and some question arose as to whether the statute of limitations had been pleaded, it was permissible for the court to permit counsel leave to amend by more specifically pleading the statute of limitations for the purpose of clarification. Munro v. Eshe, 113 Colo. 19, 156 P.2d 700 (1944).
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.