H.J.R. 36

1

JOINT RESOLUTION ON CIVIL PROCEDURE RULES
2 REGARDING CAUSE OF ACTION
3 2011 GENERAL SESSION
4 STATE OF UTAH
5 Chief Sponsor: Stephen E. Sandstrom
6 Senate Sponsor: ____________
7
8 LONG TITLE
9 General Description:
10 This bill allows the consolidation of claims into one action if the claims are all for the
11 same defendants.
12 Highlighted Provisions:
13 This resolution:
14 . allows claims against the same defendants to be consolidated by a plaintiff who has
15 been assigned the claims.
16 Special Clauses:
17 This resolution provides an immediate effective date.
18 Utah Rules of Civil Procedure Affected:
19 AMENDS:
20 Rule 9, Utah Rules of Civil Procedure
21
22 Be it resolved by the Legislature of the state of Utah, two-thirds of all members elected to each
23 of the two houses voting in favor thereof:
24 As provided in Utah Constitution Article VIII, Section 4, the Legislature may amend
25 rules of procedure and evidence adopted by the Utah Supreme Court upon a two-thirds vote of
26 all members of both houses of the Legislature:
27 Section 1. Rule 9 , Utah Rules of Civil Procedure is amended to read:

28 Rule 9. Pleading special matters.
29 (a) Capacity. It is not necessary to aver the capacity of a party to sue or be sued or the
30 authority of a party to sue or be sued in a representative capacity or the legal existence of an
31 organized association of persons that is made a party. A party may raise an issue as to the legal
32 existence of any party or the capacity of any party to sue or be sued or the authority of a party
33 to sue or be sued in a representative capacity, by specific negative averment, which shall
34 include facts within the pleader's knowledge. If raised as an issue, the party relying on such
35 capacity, authority, or legal existence, shall establish the same on the trial.
36 (a) (2) Designation of unknown defendant. When a party does not know the name of an
37 adverse party, he may state that fact in the pleadings, and thereupon such adverse party may be
38 designated in any pleading or proceeding by any name; provided, that when the true name of
39 such adverse party is ascertained, the pleading or proceeding must be amended accordingly.
40 (a) (3) Actions to quiet title; description of interest of unknown parties. In an action to
41 quiet title wherein any of the parties are designated in the caption as "unknown," the pleadings
42 may describe such unknown persons as "all other persons unknown, claiming any right, title,
43 estate or interest in, or lien upon the real property described in the pleading adverse to the
44 complainant's ownership, or clouding his title thereto."
45 (b) Fraud, mistake, condition of the mind. In all averments of fraud or mistake, the
46 circumstances constituting fraud or mistake shall be stated with particularity. Malice, intent,
47 knowledge, and other condition of mind of a person may be averred generally.
48 (c) Conditions precedent. In pleading the performance or occurrence of conditions
49 precedent, it is sufficient to aver generally that all conditions precedent have been performed or
50 have occurred. A denial of performance or occurrence shall be made specifically and with
51 particularity, and when so made the party pleading the performance or occurrence shall on the
52 trial establish the facts showing such performance or occurrence.
53 (d) Official document or act. In pleading an official document or act it is sufficient to
54 aver that the document was issued or the act done in compliance with law.
55 (e) Judgment. In pleading a judgment or decision of a domestic or foreign court,
56 judicial or quasi-judicial tribunal, or of a board or officer, it is sufficient to aver the judgment
57 or decision without setting forth matter showing jurisdiction to render it. A denial of
58 jurisdiction shall be made specifically and with particularity and when so made the party

59 pleading the judgment or decision shall establish on the trial all controverted jurisdictional
60 facts.
61 (f) Time and place. For the purpose of testing the sufficiency of a pleading, averments
62 of time and place are material and shall be considered like all other averments of material
63 matter.
64 (g) Special damage. When items of special damage are claimed, they shall be
65 specifically stated.
66 (h) Statute of limitations. In pleading the statute of limitations it is not necessary to
67 state the facts showing the defense but it may be alleged generally that the cause of action is
68 barred by the provisions of the statute relied on, referring to or describing such statute
69 specifically and definitely by section number, subsection designation, if any, or otherwise
70 designating the provision relied upon sufficiently clearly to identify it. If such allegation is
71 controverted, the party pleading the statute must establish, on the trial, the facts showing that
72 the cause of action is so barred.
73 (i) Private statutes; ordinances. In pleading a private statute of this state, or an
74 ordinance of any political subdivision thereof, or a right derived from such statute or ordinance,
75 it is sufficient to refer to such statute or ordinance by its title and the day of its passage or by its
76 section number or other designation in any official publication of the statutes or ordinances.
77 The court shall thereupon take judicial notice thereof.
78 (j) Libel and slander.
79 (j) (1) Pleading defamatory matter. It is not necessary in an action for libel or slander to
80 set forth any intrinsic facts showing the application to the plaintiff of the defamatory matter out
81 of which the action arose; but it is sufficient to state generally that the same was published or
82 spoken concerning the plaintiff. If such allegation is controverted, the party alleging such
83 defamatory matter must establish, on the trial, that it was so published or spoken.
84 (j) (2) Pleading defense. In his answer to an action for libel or slander, the defendant
85 may allege both the truth of the matter charged as defamatory and any mitigating circumstances
86 to reduce the amount of damages, and, whether he proves the justification or not, he may give
87 in evidence the mitigating circumstances.
88 (k) Renew judgment. A complaint alleging failure to pay a judgment shall describe the
89 judgment with particularity or attach a copy of the judgment to the complaint.

90 (l) Allocation of fault.
91 (l) (1) A party seeking to allocate fault to a non-party under Title 78B, Chapter 5, Part
92 8 shall file:
93 (l) (1) (A) a description of the factual and legal basis on which fault can be allocated;
94 and
95 (l)(1)(B) information known or reasonably available to the party identifying the
96 non-party, including name, address, telephone number and employer. If the identity of the
97 non-party is unknown, the party shall so state.
98 (l) (2) The information specified in subsection (l)(1) must be included in the party's
99 responsive pleading if then known or must be included in a supplemental notice filed within a
100 reasonable time after the party discovers the factual and legal basis on which fault can be
101 allocated but no later than the deadline specified in the discovery plan under Rule 26(f). The
102 court, upon motion and for good cause shown, may permit a party to file the information
103 specified in subsection (l)(1) after the expiration of any period permitted by this rule, but in no
104 event later than 90 days before trial.
105 (l) (3) A party may not seek to allocate fault to another except by compliance with this
106 rule.
107 (m) Consolidation.
108 (m) (1) A party seeking to collect multiple assigned claims may consolidate the claims
109 into a single action if:
110 (m) (1) (A) the claims consolidated into a single action are for the same defendants;
111 and
112 (m) (1) (B) each claim that is consolidated is within the statute of limitations.
113 Section 2. Effective date.
114 This resolution takes effect upon approval by a constitutional two-thirds vote of all
115 members elected to each house.

Legislative Review Note
as of 2-11-11 9:51 AM

Office of Legislative Research and General Counsel