(a) 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, except to the extent required to show the jurisdiction of the court. 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 within the pleaders' [sic] knowledge.
(b) Fraud, Mistake, Condition of Mind. In all averments of fraud or mistake, the circumstances constituting fraud or mistake shall be stated with particularity. Malice, intent, knowledge, and other conditions 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 occurred. A denial of performance or occurrence shall be made specifically and with particularity.
(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 was done in compliance with the 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.
(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) Libel or Slander. In pleading libel or slander it is not necessary to state in the pleading any extrinsic facts for the purpose of showing the application to the pleader 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 pleader. In such case, the opposing party may in his answer, allege both the truth of the matter charged as defamatory, and any mitigating circumstances reducing the damages and, whether he proved the justification or not, he may give in evidence the mitigating circumstances.
(i) Verification of Account. In an action on an account the pleader shall attach a verified copy of an account to the pleading, or if the items of the account are set forth in the pleading it must be verified.
All parts of Rules 9(a) through 9(g) conform to the Federal Rules and to present State practice. Rule 9(h) was added to preserve Code §§ 15-13760 and 15-13-770 as to pleading libel and slander. Rule 9(i) preserves Code § 15-13-710.
A. Introduction
Rule 9 contains several special pleading rules for recurring issues. The rule permits some issues to be raised by simple averment, such as legal capacity, conditions precedent, and judgments. Challenges to others, including an allegation of a lack of capacity or a denial of performance, must be by specific negative averment so that the issue is raised in the pleadings and not by a general denial. Fraud, the denial of performance of a contract, and special damages require more detailed pleading. These requirements should be read in light of Rule 8, which requires fact pleading. In addition, Rule 19(c) requires a complaint to identify those persons who should be joined under Rule 19, but have not been joined, and the reasons for their nonjoinder.
B. Capacity
Capacity is a person's personal right or qualification to sue or be sued. For example, a partnership has the capacity to sue in its own name, although formerly all the partners had to be parties.2 Capacity is different from the real party in interest requirement of Rule 17. One who is insane may be the real party in interest but lack the capacity to sue. Rule 9(a) provides that the litigant need not allege capacity to sue, the authority to sue in a representative capacity, or the legal existence of the pleader. The pleading need not assert that the party is a corporation or partnership, or that it is suing as administrator, guardian, trustee, or other representative. The rule reflects the view that capacity is rarely an issue and need not be specifically pleaded. Capacity, legal existence, or representative status must be pleaded when it is necessary to show the jurisdiction of the court or to understand the litigation.
A challenge to the capacity, legal existence, or representative status of a party must be by "specific negative averment which shall include such supporting particulars as are within the pleaders' [sic] knowledge." Failure to raise capacity in the pleading waives the defense.3 If the defect appears on the pleading, it may be raised...
