(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. 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.
Rule 9.Pleading Special Matters
Last amended January 1, 2015 · Last verified July 13, 2026
In one sentenceRule 9 relaxes the pleading burden for routine matters like capacity and conditions precedent while demanding particularity for fraud, mistake, and duress, and it sets the notice procedure a defendant must follow to point the finger at someone who isn't a party.
Full Text of Rule 9
(b) Fraud, Mistake, Condition of the Mind. In all averments of fraud, mistake, duress or undue influence, the circumstances constituting fraud, mistake, duress or undue influence shall be stated with particularity. Malice, intent, knowledge and other condition [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 have 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 done in compliance with 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) Allocation of Nonparty Fault; Notice. (1) In an action for personal injury, medical injury, wrongful death, or property damage, a defending party seeking to allocate fault to a nonparty pursuant to Ark. Code Ann. § 16-61-202(c) shall give notice s provided in paragraph (2) of this subdivision. This requirement does not apply with respect to a nonparty who has entered into a settlement agreement with the claimant.
(2) Notice shall be given in the initial responsive pleading, if the factual and legal basis upon which fault can be allocated is then known, or in an amended pleading pursuant to Rule 15 after the party discovers that information. The pleading shall:
(A) sufficiently identify the nonparty to permit service of process, regardless whether service can be made or the court has in personam jurisdiction over the nonparty; and
(B) state in ordinary and concise language facts showing that the nonparty is at fault for the personal injury, medical injury, wrongful death, or property damage alleged by the claimant.
(3) A party served with a pleading that identifies a nonparty pursuant to this subdivision may, within 30 days after service, file an amended pleading pursuant to Rule 15 stating a claim against the nonparty.
(4) A party may not seek to allocate fault to a nonparty pursuant to Rules 49(c) or 52(a)(2) except by compliance with this subdivision (h). This subdivision does not prohibit a party from introducing evidence on any issue.
Amendment History
Amended by per curiam order August 7, 2014, effective January 1, 2015.
Reporter's Notes
Reporter’s Notes to Rule 9: 1. With certain exceptions, Rule 9 substantially follows FRCP 9. Few changes in Arkansas law are effected by this rule. Section (a) requires that any party desiring to raise an issue as to the capacity or authority of a party do so by specific, negative averment. This is closely akin to superseded Ark. Stat. Ann. § 27-1121 (2) (Repl. 1962) which provided that an allegation as to the status of a party was taken as admitted unless specifically denied. While lack of authority or capacity is not treated as an affirmative defense under the Federal Rule, it is analogous to an affirmative defense in that the objection is waived unless specifically asserted. Summers v. Interstate Tractor & Equipment Co., 446 F. 2d 42 (C.C.A. 9th, 1972); Carver v. Hooker, 369 F. Supp. 204 (D.C., N.H., 1973).
2. Omitted in Section (a) is the provision found in FRCP 9(a) which requires that capacity or status of a party be alleged when required to show the court’s jurisdiction. This provision does not appear to be necessary under Arkansas practice, particularly in view of Rule 8(a)(1) which requires a statement of the grounds upon which venue and jurisdiction depend.
3. Section (b) adds the requirement not found in FRCP 9(b) that duress or undue influence be plead with particularity. This is in keeping with prior Arkansas law. Jansen v. Blissenbach, 210 Ark. 22, 193 S.W.2d 814(1946); Ledwidge v. Taylor, 200 Ark. 447, 139 S.W.2d 238(1940).
4. Section (c) is generally in accord with prior Arkansas law. Superseded Ark. Stat. Ann. § 27- 1147 (Repl. 1962) required that in pleading the performance of a condition precedent in a contract, a party need only state generally that he had performed all conditions on his part. This rule is broader in scope and applies to all actions, whether contractual or not. It should have the effect of removing such requirements as pleading notice of breach of warranty as a condition precedent to maintaining such a claim. L.A. Green Seed Co. of Arkansas v. Williams, 246 Ark. 463, 438 S.W.2d 717(1969).
5. Section (e) is essentially the same as superseded Ark. Stat. Ann. § 27-1146 (Repl. 1962) and does not affect any changes in Arkansas law.
6. Section (f) provides that the allegations as to time and place are material as opposed to the old common law rule which treated them as immaterial and thus subject to variance at the trial. The purpose of this provision is to enable a party to raise such defenses as statute of limitations and laches based upon dates alleged by the opposing party. See Wright & Miller, Federal Practice & Procedure, Section 1308. In short, a party is bound by the dates and places alleged in his pleadings.
7. Section (g) follows the common law rule that special damages must be pleaded specifically. Arkansas has recognized this rule, but has not always adhered to it. Arkansas Power & Light Co. v. Harper, 249 Ark. 606, 460 S.W.2d 75 (1970); Ark-La Gas Co. v. McGaughey Bros., Inc., 250 Ark. 1083, 468 S.W.2d 754(1971).
8. Omitted from Rule 9 is Section (h) of FRCP 9 which deals with admiralty and maritime claims under federal law.
Addition to Reporter’s Notes (2014 amendment): New subdivision (h) creates the exclusive procedural mechanism for asserting the right to an allocation of nonparty fault created by Ark. Code Ann. § 16-61-202(c), as amended by Act 1116 of 2013, § 3, or by any other statute. Other states have placed similar provisions in their rules that govern the pleading of special matters. E.g., Mich. Ct. Rule 2.112(k); Utah R. Civ. P. 9(l). Subdivision (h) draws in part on those rules and on section 2 of Act 649 of 2003, codified at Ark. Code Ann. § 16-55-202, which was held unconstitutional on separation-of-powers grounds in Johnson v. Rockwell Automation, Inc., 2009 Ark. 241, 308 S.W.3d 135.
Under subdivision (h), a defendant asserts a contribution claim for allocation of nonparty fault in an answer or amended answer. By contrast, a defendant seeking contribution for damages may bring a third-party claim against a nonparty under Rule 14 or a cross-claim against a co-party under Rule 13. The procedural section of the Uniform Contribution Among Tortfeasors Act, Ark. Code Ann. § 16-61-207, is inconsistent with Rule 9(h) and in some respects with Rules 13 and 14. Therefore, section 16-61-207 is superseded pursuant to Ark. Code Ann. § 16-11-301. Notice under Rule 9(h) is necessary if a nonparty’s fault is to be considered by the trier of fact. See 2014 Amendments to Rules 49 and 52. Under paragraph (h)(1), however, the notice requirement does not apply if a nonparty has settled with the claimant. When there has been a settlement, there is no need for notice in light of Ark. Code Ann. § 16-61-204(d), which provides that "the remaining defendants are entitled to a determination by the finder of fact of the released joint tortfeasor’s pro rata share of responsibility for the injured person’s damages."
Under paragraph (h)(2), noticed must be given in the defending party’s original responsive pleading, if the necessary information is then available, or in an amended or supplemental pleading under Rule 15. Unlike former section 16-55-202, under which notice could be given no later than 120 days before the trial date, paragraph (h)(2) contains no deadline. Although Rule 15 allows amended and supplemental pleadings as a matter of right, the court may, on motion, strike the amended or supplemental pleading or grant a continuance if it determines that "prejudice would result or the disposition of the cause would be unduly delayed."
Paragraph (h)(2)(A) requires that nonparties be identified in sufficient detail to permit service of process, even though service cannot be made and the court lacks in personam jurisdiction. This requirement guards against the practice of naming so-called "phantom tortfeasors." See Brown v. Wal-Mart Discount Cities, 12 S.W.3d 785 (Tenn. 2009). Paragraph (2)(B) parallels Ark. R. Civ. P. 8(a) in requiring the same fact pleading necessary in a complaint. The requirement in former section 16-55-202—"a brief statement of the basis for believing the nonparty to be at fault"— was uncertain in scope but well short of the fact-pleading standard.
Paragraph (h)(3) permits any party, within 30 days after being served with a pleading that identifies a nonparty, to amend his or her pleadings to assert a claim against the nonparty. Paragraph (h)(4) makes plain that the procedure set out in subdivision (h) is the exclusive method for allocation of nonparty fault under Rules 49(c) and 52(a)(2). It also emphasizes, as should be clear from the context, that subdivision (h) has nothing whatsoever to do with the admissibility of evidence. For example, defense counsel remain free to introduce evidence of proximate causation with respect to a nonparty in the course of raising the so-called "empty chair" defense.
Plain-English Summary
Most of Rule 9 lowers the bar for pleading things that are rarely in real dispute. A party does not have to plead that it has the capacity to sue or be sued, or that an organization named as a party legally exists; anyone who wants to contest capacity, authority, or legal existence must raise the issue by a specific negative averment backed by whatever particulars the pleader knows. Conditions precedent get the same treatment: a general averment that all conditions precedent have been performed or have occurred is enough, and the burden shifts to the other side to deny performance specifically and with particularity if it disputes that. Pleading an official document or act only requires an averment that it was done in compliance with law, and pleading a prior judgment does not require showing that the court that issued it had jurisdiction.
Fraud, mistake, duress, and undue influence sit at the opposite end of the spectrum. Rule 9(b) requires the circumstances constituting these claims to be stated with particularity, which means naming the who, what, when, and how rather than alleging fraud in general terms. A person's state of mind, by contrast, including malice, intent, and knowledge, may be averred generally, since a plaintiff rarely has direct access to what was going on inside someone else's head. Rule 9(f) adds that allegations of time and place are treated as material, so a party can rely on the dates and locations another party has pled, including for defenses like the statute of limitations, and Rule 9(g) requires that special damages be spelled out specifically rather than folded into a general damages claim.
Rule 9(h), added in 2014, addresses a different problem: a defendant who wants the jury to weigh the fault of someone who is not a party to the case, sometimes called the empty-chair defense. To put a nonparty's fault before the fact-finder under Ark. Code Ann. § 16-61-202(c), a defending party must give notice in its initial responsive pleading, or in an amended pleading once the facts supporting fault become known. That notice has to identify the nonparty well enough to allow service of process, even if service is never made, and it has to state facts, not conclusions, showing the nonparty is at fault. Anyone served with that kind of notice then has 30 days to amend its own pleading and assert an actual claim against the nonparty.
Rule 9(h) is a notice mechanism, not a claim in itself, and the Reporter's Notes are careful to distinguish it from Rule 14 third-party practice. A defendant who wants a judgment against the nonparty, for indemnity or contribution, still has to bring that person into the case under Rule 14 or assert a cross-claim under Rule 13. Rule 9(h) only controls whether the jury gets to allocate a percentage of fault to someone sitting outside the courtroom.
Frequently Asked Questions
How does a party challenge someone's legal capacity or authority to sue?
Rule 9(a) does not require a plaintiff to plead capacity or authority in the first place. A party that wants to contest capacity, authority to sue in a representative role, or an organization's legal existence must raise the issue through a specific negative averment, including whatever supporting details are within that party's knowledge.
How specific does a fraud allegation have to be under Arkansas rules?
Rule 9(b) requires the circumstances constituting fraud, mistake, duress, or undue influence to be pled with particularity, meaning the pleading should identify the specific misrepresentations, actors, and circumstances rather than alleging fraud in conclusory terms. A person's state of mind, such as intent or knowledge, may still be averred generally.
Do I need to prove the issuing court had jurisdiction when I plead a prior judgment?
No. Rule 9(e) allows a party to plead a judgment or decision of a court, tribunal, board, or officer without setting out facts showing that body had jurisdiction to render it.
What is the notice requirement for blaming a nonparty for the plaintiff's injury?
Rule 9(h) requires a defending party who wants a jury to allocate fault to a nonparty under Ark. Code Ann. § 16-61-202(c) to give notice in its initial responsive pleading, or in an amended pleading once it learns the relevant facts. The notice must identify the nonparty in enough detail to allow service of process and must state facts showing that nonparty's fault.
If I'm notified that a defendant is blaming a nonparty, can I bring a claim against that nonparty myself?
Yes. Rule 9(h)(3) gives any party served with that kind of notice 30 days to file an amended pleading under Rule 15 asserting a claim directly against the nonparty.
How specifically do special damages have to be pled?
Rule 9(g) requires items of special damage to be specifically stated. A general claim for damages is not enough to put the other side on notice of losses like lost wages, medical bills, or other out-of-pocket costs that go beyond the ordinary consequences of the wrong alleged.
Is Rule 9(h) the same thing as bringing a third-party claim under Rule 14?
No. Rule 9(h) only gives notice that a nonparty's fault should be considered by the jury; it does not by itself create a claim against that person. A party seeking an actual judgment against the nonparty, for indemnity or contribution, still needs to use Rule 14 third-party practice or a Rule 13 cross-claim.
Source & verification. Rule text, Reporter's Notes, and amendment
history are reproduced verbatim from the Arkansas Rules of Civil Procedure, prescribed by
the Arkansas Supreme Court. The plain-English summary is original and written by us.
Last verified July 13, 2026. ·
Official source
Also known as: pleading fraud with particularity arkansasempty chair defense arkansasnonparty fault notice arkansasrule 9(h) arkansasspecial damages pleading arkansasconditions precedent pleading arkansas