60-209. Pleading special matters. (a) Capacity or authority to sue; legal existence. (1) In general. A pleading need not allege:
(A) A party's capacity to sue or be sued;
(B) a party's authority to sue or be sued in a representative capacity; or
(C) the legal existence of an organized association of persons that is made a party.
(2) Raising those issues. To raise any of those issues, a party must do so by a specific denial, which must state any supporting facts that are peculiarly within the party's knowledge.
(b) Fraud or mistake; conditions of mind. In alleging fraud or mistake, a party must state with particularity the circumstances constituting fraud or mistake. Malice, intent, knowledge and other conditions of a person's mind may be alleged generally.
(c) Conditions precedent. In pleading conditions precedent, it suffices to allege generally that all conditions precedent have occurred or have been performed. But when denying that a condition precedent has occurred or been performed, a party must do so with particularity.
(d) Official document or act. In pleading an official document or official act, it suffices to allege that the document was legally issued or the act legally done.
(e) Judgment. In pleading a judgment or decision of a domestic or foreign court, a judicial or quasi-judicial tribunal, or a board or officer, it suffices to plead the judgment or decision without showing jurisdiction to render it.
(f) Time and place. An allegation of time or place is material when testing the sufficiency of a pleading.
(g) Special damages. If an item of special damage is claimed, it must be specifically stated. If the court allows an amended petition pursuant to K.S.A. 60-3703, and amendments thereto, to include a claim for exemplary or punitive damages the amended petition must state only whether the amount sought as damages is or is not in excess of $75,000.
(h) Pleading a written instrument. A claim, defense or counterclaim founded on a written instrument may be pleaded by:
(1) Reasonably identifying the written instrument and stating its substance;
(2) reciting the contents of the written instrument in the pleading; or
(3) attaching a copy to the pleading as an exhibit.
(i) Tender of money. When a tender of money is made in a pleading, the money need not be deposited in court prior to trial, unless the court orders otherwise.
(j) Libel and slander. In an action for libel or slander, it suffices to allege generally that defamatory matter was published or spoken concerning the plaintiff, and if that allegation is not denied in the answer, it need not be proved at trial. The defendant's answer may allege both the truth of the matter charged as defamatory and any mitigating circumstances that reduce the amount of damages. Whether the defendant proves justification, the defendant may introduce evidence of any mitigating circumstances.
History: L. 1963, ch. 303, 60-209; L. 1976, ch. 252, § 2; L. 1988, ch. 209, § 5; L. 1997, ch. 173, § 5; L. 2010, ch. 135, § 76; L. 2011, ch. 48, § 5; July 1.
Source or prior law:
(a). G.S. 1868, ch. 80, § 108; L. 1886, ch. 61, § 1; L. 1909, ch. 182, § 110; R.S. 1923, 60-729.
(c). G.S. 1868, ch. 80, § 122; L. 1909, ch. 182, § 124; R.S. 1923, 60-743.
(e). G.S. 1868, ch. 80, § 121; L. 1909, ch. 182, § 123; R.S. 1923, 60-742.
(h). G.S. 1868, ch. 80, §§ 118, 123; L. 1883, ch. 123, § 1; L. 1909, ch. 182, §§ 120, 121; R.S. 1923, 60-739, 60-740.
(i). G.S. 1868, ch. 80, § 131; L. 1909, ch. 182, § 132; R.S. 1923, 60-751.
(j). G.S. 1868, ch. 80, §§ 125, 126; L. 1909, ch. 182, §§ 126, 127; R.S. 1923, 60-745, 60-746.
Cross References to Related Sections:
General rules of pleadings, see 60-208.
Parties; capacity, see 60-217.
Punitive and exemplary damages, determination, see 60-3701.
Law Review and Bar Journal References:
Certain provisions commented upon prior to legislative enactment, George Templar, 31 J.B.A.K. 167 (1962).
Pleadings discussed, Marlin M. Volz, 11 K.L.R. 203, 207 (1962).
Paragraph (a) and K.S.A. 60-304(e) mentioned in discussing partnership liabilities, Phil H. Lewis, 37 J.B.A.K. 297, 329 (1968).
Combined effect of paragraphs (h), K.S.A. 60-208(f) and 60-210(c) discussed in case comment on sufficiency of attached exhibit as pleading, Arnold Grundeman, 8 W.L.J. 102, 108 (1968).
Kansas law on statutes of limitations, 18 K.L.R. 441, 455 (1970).
"Kansas' New Foreign Judgments Act," Robert Fowks, 40 J.B.A.K. 187 (1971).
"Survey of Kansas Law: Civil Procedure," Jerry G. Elliott, 27 K.L.R. 185, 195 (1979).
"Procedural Pitfalls in Defamation Litigation," Leon B. Graves, 3 J.K.T.L.A. No. 1, 6, 7 (1979).
"Putting Punitive Damages in Perspective," Steven M. Dickson, J.K.T.L.A. Vol. XV, No. 3, 6, 7 (1992).
"A Primer on Punitive Damages in Kansas," Paul W. Rebein, 64 J.K.B.A. No. 9, 22, 24 (1995).
"Caveat plaintiff: Congress has defederalized private securities litigation," Steven A. Ramirez, 67 J.K.B.A. No. 9, 16 (1998).
CASE ANNOTATIONS
Prior law cases, see G.S. 1949, 60-729, 60-739, 60-740, 60-742, 60-743, 60-745, 60-746, 60-751 and the 1961 Supp. thereto.
1. An attached exhibit is no substitute for a necessary allegation. Hoover Equipment Co. v. Smith, 198 Kan. 127, 131, 422 P.2d 914.
2. Election of remedies unnecessary in action to recover both compensatory and exemplary damages. Pierce v. Melzer, 199 Kan. 100, 106, 427 P.2d 632.
3. In action brought under K.S.A. 12-105, party must plead general averment that precedent conditions thereof have been performed. James v. City of Wichita, 202 Kan. 222, 224, 225, 447 P.2d 817.
4. Petition insufficient under subsection (c); did not aver compliance with statutory condition precedent imposed by K.S.A. 12-105. Frankhauser v. City of ElDorado, 203 Kan. 757, 759, 760, 457 P.2d 146.
5. No allegation of fraud made prior to or during trial; assertion of fraud on appeal untenable. Peoples State Bank v. Merry "A" Drilling, Inc., 204 Kan. 192, 199, 460 P.2d 521.
6. No specific negative averment as to plaintiff's corporate existence; issue not properly raised. Augusta Oil Co., Inc. v. Watson, 204 Kan. 495, 500, 501, 464 P.2d 227.
7. Subsection (b) cited in case holding judgment against heirs is res judicata to similar action brought by one of such heirs after his appointment as administrator. Wells, Administrator v. Ross, 204 Kan. 676, 679, 465 P.2d 966.
8. Subsection (b) applied; facts and circumstances relied upon to constitute fraud must be pleaded affirmatively and with particularity; summary judgment granted. Sade v. Hemstrom, 205 Kan. 514, 519, 520, 471 P.2d 340.
9. No compliance with subsection (b), requiring averments of fraud to be stated with particularity. Weil & Associates v. Urban Renewal Agency, 206 Kan. 405, 416, 479 P.2d 875.
10. Subsection (a) cited; plaintiff had legal standing and capacity to maintain action attacking validity of constitutional amendments. Moore v. Shanahan, 207 Kan. 645, 648, 486 P.2d 506.
11. Construed; failure to comply with considered as waiver. Marr v. Geiger Ready-Mix Co., 209 Kan. 40, 41, 49, 50, 51, 495 P.2d 1399.
12. Where defendant in declaratory judgment action failed to assert that plaintiff not real party in interest, defense waived and cannot later be raised by affidavit. Wulf v. Shultz, 211 Kan. 724, 726, 508 P.2d 896.
13. Subsection (a) mentioned; assertion that plaintiff lacks capacity to sue must be supported by allegation of facts, or defense waived. Van Brunt, Executrix v. Jackson, 212 Kan. 621, 624, 512 P.2d 517.
14. Failure to question capacity of parties to sue by specific negative averment constituted waiver of right. State, ex rel., v. State Board of Education, 215 Kan. 551, 559, 527 P.2d 952.
15. Paragraph (b) applied; no specific facts pleaded; suit questioning validity of proceedings under general improvement and assessment law. Cherry v. Vanlahi, Inc., 216 Kan. 195, 199, 531 P.2d 66.
16. Motion to dismiss pursuant to subsection (b) sustained by trial court; reversed. Weaver v. Frazee, 219 Kan. 42, 50, 547 P.2d 1005.
17. Failure to plead notice requirements of K.S.A. 84-2-607; waiver by failure to raise issue at pretrial conference. Dold v. Sherow, 220 Kan. 350, 352, 552 P.2d 945.
18. Action characterized as contract action sounded in tort; governmental immunity. Malone v. University of Kansas Medical Center, 220 Kan. 371, 373, 552 P.2d 885.
19. Fraud not pleaded as required by section; under evidence no genuine issue; summary judgment proper. Time v. Prescott State Bank, 220 Kan. 377, 388, 553 P.2d 315.
20. Applied; petition raised material question of fact which precluded summary judgment. Schierenberg v. Hodges, 221 Kan. 64, 66, 558 P.2d 133.
21. Referred to; amended petition alleging invasion of privacy sufficient to withstand motion to dismiss. Rinsley v. Frydman, 221 Kan. 297, 302, 559 P.2d 334.
22. Discussed; allegation that plaintiff prevented from transacting business broad enough to include loss of income. Frevele v. McAloon, 222 Kan. 295, 298, 564 P.2d 508.
23. Subsection (b) applied; allegations stated with sufficient particularity. Citizens State Bank v. Gilmore, 226 Kan. 662, 672, 603 P.2d 605.
24. Cited; a party resisting a motion of summary judgment in an action based upon fraud need not present clear and convincing evidence of fraud in opposing the motion. Dugan v. First Nat'l Bank in Wichita, 227 Kan. 201, 207, 606 P.2d 1009.
25. An action for malicious prosecution does not have special pleading requirements. Nelson v. Miller, 227 Kan. 271, 277, 607 P.2d 438.
26. Where both parties agree that matter was ripe for summary judgment, court did not abuse discretion in denying losing party permission to amend pleadings thereafter. United Kansas Bank & Trust Co. v. Rixner, 4 Kan. App. 2d 662, 664, 665, 610 P.2d 116.
27. Circumstances of fraud must be pled with particularity. Weigand v. Union Nat'l Bank of Wichita, 227 Kan. 747, 755, 610 P.2d 572.
28. Subsection (j) cited in holding trial court erred in dismissing action where plaintiff's charge of defamation was not pleaded specially. Knight v. Neodesha Police Dept., 5 Kan. App. 2d 472, 481, 620 P.2d 837.
29. Claim under subsection (b), along with claim of tort of outrage, preempted by labor contract under NLRA, 29 U.S.C. § 141 et seq. Collins v. MBPXL Corp., 9 Kan. App. 2d 363, 370, 679 P.2d 746 (1984).
30. Tests for pleading and proving fraud restated; petition herein pled with requisite particularity and competent evidence proven. Price v. Grimes, 234 Kan. 898, 903, 677 P.2d 969 (1984).
31. Cited; fraud allegations where probationary employee discharged for reporting employer's illegal practices examined. Palmer v. Brown, 242 Kan. 893, 901, 752 P.2d 685 (1988).
32. Paragraph (g) amended to allow it to exist in conformity with K.S.A. 60-3703. NAL II, Ltd. v. Tonkin, 705 F. Supp. 522, 526, 527 (D. Kan. 1988).
33. Substantial compliance with K.S.A. 12-105b(d) as condition precedent before filing action under tort claims act (K.S.A. 75-6101 et seq.) determined. Tucking v. Board of Jefferson County Comm'rs, 14 Kan. App. 2d 442, 445, 796 P.2d 1055 (1990).
34. Where suit filed against individual, plaintiff not obligated to respond to defendant's assertion of corporate entity. Hill & Company, Inc. v. O'Malley, 15 Kan. App. 2d 709, 713, 817 P.2d 660 (1991).
35. Cited in holding that following steps enumerated in K.S.A. 60-216, trial court would not have ruled plaintiffs had failed to plead fraud. Carnes v. Meadowbrook Executive Bldg. Corp., 17 Kan. App. 2d 292, 299, 836 P.2d 1212 (1992).
36. Remanded for determination whether evidence could reasonably support jury verdict for punitive damages. Fusaro v. First Family Mtg. Corp., 17 Kan. App. 2d 730, 733, 735, 843 P.2d 737 (1992).
37. Factors trial court must consider before allowing plaintiff to amend claim to include punitive damages discussed. Fusaro v. First Family Mtg. Corp., 257 Kan. 794, 802, 897 P.2d 123 (1995).
38. Responsibility of plaintiff whose recovery depends on contract provision to comply with subsection (h). Bennett v. Van Doren Industries, Inc., 262 Kan. 426, 430, 939 P.2d 874 (1997).
39. Claim of fraud against appellant's attorneys sufficiently pled but damages delineated were not caused by attorneys but from plaintiff being sued for malpractice. Miller v. Sloan, Listrom, Eisenbarth, Sloan & Glassman, 267 Kan. 245, 261, 978 P.2d 922 (1999).
40. Reference to a document attached to parental termination pleading does not constitute an allegation stating a claim. In re C.H.W., 26 Kan. App. 2d 413, 418, 988 P.2d 276 (1999).
41. General pleading statutes in civil procedure code do not override more specific pleading provisions of probate code. In re Estate of Wolf, 279 Kan. 718, 112 P.3d 94 (2005).
42. Section requires fraud to be pled with particularity. Nelson v. Nelson, 38 Kan. App. 2d 64, 75, 162 P.3d 43 (2007).
43. Federal rule 9(b) requirement to state "with particularity" applies to deceptive trade practices under Kansas consumer protection act. Thompson v. Jiffy Lube Intern., Inc., 505 F. Supp. 2d 907, 931 (2007).
44. Discussion of case law relating to constructive fraud pleadings. Nelson v. Nelson, 288 Kan. 570, 205 P.3d 715 (2009).
45. Fraud claims must be pled with particularity. Knop v. Gardner Edgerton U.S.D. No. 231, 41 Kan. App. 2d 698, 205 P.3d 755 (2009).
46. Party waives defense challenging another party's capacity to sue if not raised in timely manner. In re Metcalf Assocs.-2000, 42 Kan. App. 2d 412, 213 P.3d 751 (2009).
47. Lack of capacity by out-of-state plaintiff to sue must be specifically raised in defense to an opposing party's claim, just as other affirmative defenses. Douglas Landscape & Design v. Miles, 51 Kan. App. 2d 779, 783, 355 P.3d 700 (2015).
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