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132 Cards in this Set
- Front
- Back
What is the 2-step process for jurisdiction?
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(1) must meet constitutional standards regarding the existence of minimum contacts
(2) must be authorized by state law/statute (such as the long-arm statute) |
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Specific Jurisdiction
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allows the court to hear only causes of action related to teh defendant's contacts with the state
Note: a single contacy may suffice under the long-arm statute, but more contacts are required for the exercise of general jurisdiction |
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Personal Jurisdiction - 9 foundations
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(1) presence of defendant in FL when served
(2) general appearance without timely objection (3) consent (4) domicile in FL (5) incorporation in FL (6) place of business in FL (7) substantial (not isolated) activities in FL (minimum contacts) (8) long-arm statute (9) non-resident motorist act |
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Specific Jurisdiction - Non-Resident Motorist Act
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may sue a nonresident who owns OR operates a motor vehicle, watercraft, or aircraft( including a nonresident who navigates or maintains an aircraft) involved in an accident OR collision in FL
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Long-Arm Statute - Applications
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specific jurisdiction in FL when the cause of action arises from:
(1) operation of a business in FL (2) ownership, use or possession of land in FL (3) tortious act committed in FL (4) breach of contract in FL |
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Application of the long-arm statute to Corporations
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The corporation MAY be sued in FL on a jurisdictional basis other than the long-arm statute even though the claim does not arise form activities conducted in FL
The constitutional "minimum contacts" test MUST always be satisfied Under the LAS, claim MUST arise/grow out of the activity done in or directed towards FL |
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Tortious Act in FL
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interpreted broadly, includes such acts as electronic communications
(as long as the cause of action arises from the communicaitons) |
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Tortious Act Committed OUTSIDE FL that Injures INSIDE FL
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FL jurisdiction IF:
(1) engaged in solicitation or services activites in FL OR (2) products are used in FL in the ordinary course of commerce |
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Personal Jurisdiction - Significance
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decisions based on PJ are considered res judicata and are given full faith and credit in other states
this imposes a personal obligation/liability on the party and may be satisfied from any assets of that party |
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In Rem Jurisdiction
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affects the interests of all persons in a thing
does NOT result in the personal liability of any person msu be exercised, in a limited class of cases, when the court has control over the thing itself (suit to quite title to land in FL) |
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Quasi In Rem Jurisdiction
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affects the interests of specified persons in a thing
The court MUST have physical power over the property itself (by attachment), AND the constitutional minimum contacts standard must be met |
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What happens if the defendant was coerced into FL for service of process?
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FL courts will NOT honor the service of process and will not exercise personal jurisdiction
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What if a party is in FL as a witness/party to another lawsuit?
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immune from service of process during that presence in FL
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Service of Process - Timeline
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Plaintiff must use due diligence in attempting to serve the summons and copy of the complaint on the defendant WITHIN 120 days of commencement
EXCEPTION: --good cause --excusable neglect |
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Service of Process - Amended Complaint
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the 120 day timeline BEGINS with the order granting leave to amend IF the amended complaint was attached to the motion for leave to amend
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Personal Service - BY whom?
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can be effected by (1) sheriff, (2) special process server appointed by the sheriff, (3) a person over the age of 18 who is specially appointed AND is not interested in the outcome of the case
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Elisor
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person specially appointed to serve process
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Affidavit of Service - Required?
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when service is not effected by a sheriff or deputy
Note: affidavit of service is prima facie evidence that service was made, failure to file does NOT affect the actual validity of service |
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Service of Process - Individuals
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(1) personal delivery
(2) delivery to any person 15+ residing at defendant's usual place of abode IF informed of the contents (3) substitute service to spouse IF they live together (in any place) UNLESS the action is between spouses (4) delivery to an agent authorized to accept process |
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Service of Process - Individual dealing with real estate
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if the tenant cannto be found in the county OR there is no person 15+ residing at the tenant's usual place of abode, AFTER 2 attempts of personal service at the residence, MAY conspicuously post process, AND have the clerk mail copies of the summons and complaint to the defendant at the premises
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Service of Process - Substitute Service at Private Mailbox Address
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if the only address discoverable through public records for a person to be served is a private mailbox, substitute service MAY be made on that person by leaving a copy of the process with the individual in charge of the private mailbox, BUT ONLY IF the process server determines that the person to be served still maintains a private mailbox at that location
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Service of Process - Minors and Incompetents
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may be made upon the individual's legal guardian
if a minor doesn't have a legal guardian, his parent may be served AND a court order sought as to whether appointment of a guardian ad litem is necessary if incompetent, the person who has care and custody should be served AND a court order sought regarding appointment of a representative |
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Service of Process - Sole Proprietor
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may be made at his place of business, during regular business hours, by serving the person in charge of the business IF 2+ attempts to serve the owner have been made at the place of business
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Service of Process - Corporations
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(1) may be made upon the president or vice president
(2) in their absence, on the cashier, treasurer, secretary, or general manager (3) in their absence, a director (4) in their absence, a resident officer or business agent |
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Service of Process - Domestic Corporation/Foreign Corporation qualified to do business in FL
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may be made upon
(1) any agent designated by law or, (2) if no such agent has been apointed, to any employee a tthe corporation's principal place of business (3) or on any employee of the registered agent if the address is a private mailbox or residence, the SoP may be made by serving the registered agent, or director at that address as if they were an individual |
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Service of Process - Partnerships
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may be made by delivery to:
(1) a partner (2) designated employee (3) or under certain circumstances, to the person in chagre of the partnership Service on an individual partner IS valid against the partnership Execution of the resulting judgment DEPENDS on who is served |
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Service of Process - Non-Residents
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secretary of state is the agent for service of process for claims arising out of the business/act
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Service of Process - By Publication in General
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may be used in connection with certain actions involving in rem and quasi in rem jurisdiction when the defendant is OUTSIDE FL or cannot be found for personal service after a diligent search in teh state
can be waived and replaced with service by mail |
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Service of Process - By Publication - Process
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(1) file affidavit that defendant is over 18 (if known), that residence is unknown or defendant resides in FL and has been outside FL for 60 days, or has concealed himself, and disclosing particulars of diligent search
(2) copy of published notice MUST be mailed to each defendant whose address is known or can be found with reasonable effort |
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Minimum Contacts
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CONTACTS:
(1) purposeful availment (voluntary act by the defendant) (2) foreseeability (to suit in FL regarding the contacts) FAIR PLAY AND SUBSTANTIAL JUSTICE: (1) relatedness of cause of action and the forum (2) convenience (3) state's interest |
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Circuit Court - Exclusive Jurisdiction
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(1) probate and estate matters, guardianship, incompetence
(2) juveniles (except traffic offenses) (3) title or boundaries to realty (4) ejectment cases (EXCEPT landlord evicting the tenant) (5) equity cases that are NOT in the county court's jurisdiction (6) actions at LAW that are NOT in teh county court's jurisdiction |
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County Court - Exclusive Jurisdiction
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(1) dissolution of marriage under simplified dissolution proceedings
(2) violations of municipal or county ordinances (3) actions at LAW with < $15,000 UNLESS otherwise vested in circuit court (4) EQUITY cases < $15,000 (not exclusive though, so MAY go to circuit court instead) (5) disputes in homeowners' associations (6) LANDLORD EVICTING tenant (if < 15k MUST be county, if >15k can be EITHER) |
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What claims can be added together to determine amount in controversy?
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can aggregate claims ONLY IF they arise from the SAME transaction OR occurrence (T/O)
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Who pays transfer costs when case is filed in the wrong court?
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plaintiff (since they filed it in the wrong place) pays the costs of transfer WITHIN 30 days or it is dismissed without prejudice
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Difference between Venue and Jurisdiction
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Venue - geographic location of a court that may hear the case
Jurisdiction - power of court to hear the case |
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Venue - Generally
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exists in the county
(1) where ANY defendant reside at the time the action is commenced, (2) where the cause of action arose, OR (3) where property in litigation is located |
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Venue - Local Actions
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must be brought in the county the property lies in:
(1) ejectment (2) foreclosure of a mortgage (3) trespass to land (even if relief sought is damages) (4) quiet title to land (5) partition of land (6) forcible entry and unlawful detainer of land |
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Venue - Transitory Actions
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venue is proper in county:
(1) where defendant resides when complaint filed (2) where cause of action accrued (3) where property in litigation is located (ownership of chattel) |
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Venue - Waiver of Objection to Improper Venue
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(1) by contract
(2) by failure to make a timely objection |
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Venue - Nonresident
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(1) county where served with process
(2) county where cause of action accrued (3) county where property in litigation is located |
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Venue - Resident and Non-Resident Defendant
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venue must be proper for the resident (nonresident will defend there too)
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Venue - Corporations
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domestic: any county in which it has or usually keeps an office for transaction of its customary business
foreign: any county in which it has an agent or other representative |
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Venue - Partnerships and Unions
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any county designated by the secretary of state as the location of its principal office, or failing that, in the county of residence of any partner or member
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Venue - Transfer of Venue
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originally improper: court will transfer to proper venue if plaintiff pays costs within 30 days, otherwise, dismissed without prejudice (if multiple counties available for transfer, plaintiff can choose)
originally ok, seeking transfer: (1) party wont receive fair trial where case originally filed (2) convenience of parties or witnesses, or "interest of justice" |
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Venue - Factors Considered in Transfer for Fair Trial
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(1) opponent has undue influence in teh county
(2) moving party is so odious he cannot get a fair jury (3) it is impracticable to get a qualified jury (pretrial publicity) Note: make the motion for the REASON of getting a fair trial, which is then established through consideration of the FACTORS |
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Pleadings - 7 Types
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(1) complaint
(2) answer (3) reply (4) third-party complaint (5) answer to third-party complaint (6) answer to counterclaim (7) answer to cross-claim |
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Pleadings - what must be included
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ultimate facts, NOT evidence or conclusions
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Pleadings - Inconsistencies
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alternative, inconsistent, or hypothetical causes of action or defenses may be pleaded in the alternative as long as the pleader does not know which is true
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Pleadings - Special Pleadings
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circumstances that establish fraud, mistake, or denial of performance or occurrence MUST be stated with particularity
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Pleadings - Attachments
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if founded on a written instrument, the document must be attached as an exhibit or so much of it as is relevant must be adequately quoted
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Pleadings - Claim for Punitive Damages
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must disclose the basis for asserting such relief
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Pleadings - Defenses
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lack of subject matter jurisdiction: may be raised at any time
matters of abatement: waived if not objected to by motion or responsive pleading EXCEPT (1) failure to state a cause of action or legal defense or (2) failure to join an indispensable party |
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Service of Process - Long-Arm Statute
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serve out of state in any method allowed in FL with service made by an officer authorized to serve process in the state where defendant is served
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Pleadings - Incorporation by Reference
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Facts stated in one part of the pleading may thereafter be incorporated by reference
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Pleadings - Computation of Time
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do NOT include the day the act occurs for which the period is running
DO count the final day IF the final day falls on a weekend or a legal holiday, the final day is the NEXT DAY NOT a weekend or legal holiday IF less then 7 days, do NOT count intervening weekends or legal holidays |
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Answer - options of defendant
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(1) challenge the complaint's legal sufficiency
(2) deny essential allegations (3) assert affirmative or other defenses MUST be served within 20 days of service of complaint |
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Answer - Denials
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the failure to deny an allegation constitutes an admission of that allegation
general denials may be made in good faith, but they are not favored |
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Answer - Defenses that are waived if not brought in answer
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(1) lack of jurisdiction over the person
(2) improper venue (3) insufficient process or service of process Note: lack of SMJ is NOT waived and may be raised even on appeal |
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Counterclaims - Generally
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if defendant has a claim that arises from the same transaction or occurrence as the plaintiff's, it MUST be pleaded in the CC or it will be barred
other claims against the plaintiff MAY be asserted even if not related to the cause of action (permissive) CC is answered in the same manner as a complaint |
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Pleadings - Contents
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MUST contain:
(1) name of the court (2) case file number (3) name of parties (4) name, address, and telephone number of attorney (5) attorney's FL bar number (6) designation of pleadings (7) each claim or defense separately stated (8) numbered paragraphs |
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Pleadings - Certification of Attorney (or pro se defendant)
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signature is attesting to:
(1) they read the document (2) to the best of their knowledge there is good ground to support it (3) it is not interposed for delay If NOT signed - court can strike the pleading |
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Reply - Generally
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ONLY required if the answer contains an affirmative defense that the opposing party wishes to avoid
MUST be filed within 20 days after service of the answer |
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Cross-Claims - Generally
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claims by one defending party against a co-party
MAY be filed if it arises from the same transaction or occurrence as the complaint or a counterclaim, OR if it relates to any property that is the subject matter of the original claim (permissive in nature) |
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Defense Motions - Two Types
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(1) issues of form
(2) matters of abatement |
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Defense Motions - Issues of Form
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(1) motion for more definite statement (when a pleading is so vague that defendant cannot respond)
(2) motion to strike (pares out immaterial allegations, cheap shots, etc.) |
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Defense Motions - Matters of Abatement (Dismissal)
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(1) lack of SMJ
(2) lack of PJ (3) improper venue (4) indussifiency of process (5) insufficient service of process (6) failure to state a claim on which relief can be granted (7) failute to join indispensable party |
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Defense Motions - Matters of Abatement --- Which ones are waivable?
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(2) lack of PJ
(3) improper venue (4) insufficiency of process (5) insufficient service of process **if not put in the FIRST DEFENSIVE RESPONSE (seeking something affirmative), they are waived** |
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Amendments - Generally
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plaintiff has the right to amend once BEFORE the defendant serves his answer
OR, if no responsive pleading is required, within 20 days of service of the pleading sought to be amended ALL OTHERS: can be made ONLY with written consent of all adverse parties OR by leave of court (freely given in the interest of justice) |
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Amendments - Conforming Pleadings to Proof
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can be made at any time before or after judgment
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Amendments - Relation Back
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amendments date back to teh date of the original pleading, and are permitted, even though the statute of limitations has run, IF the conduct, occurrence, or transaction was set forth in the original pleading
relation back does NOT apply to new, distinct causes of action |
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Motion for Judgment on the Pleadings - Generally
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may be made between close of the pleadings and trial, it tests the legal sufficiency of the cause of action or answer
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Motion for Summary Judgment - Generally
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made on the theory that there is no genuine issue of material fact to be tried, and that the moving party is therefore entitled to judgment as a matter of law
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Motion for Summary Judgment - Support
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can be supported or opposed by affidavits, depositions, pleadings, admissions, and answers to the interrogatories
must be made on personal knowledge AND must set forth facts that would be admissible in evidence as if the affiant were testifying in person at trial |
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Joinder of Parties
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Plaintiffs: only if they have a joint interest in the subject of the action or the relief requested
Defendants: if they have an interest adverse to the plaintiff |
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Joinder - Necessary Party
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should be joined if feasible since a necessary party's interest in the subject matter MAY be affected by the action or the court MAY not be able to adjudicate the matter fully in his absence
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Joinder - Indispensable Party
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MUST be joined because his interest in the subject matter WILL be irreparably affected adversely or the court WILL NOT be able to resolve the controversy in his absence without prejudicing some party to the action
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Joinder - Insurance Carrier
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accident victim may NOT join the liability carrier as a party defendant UNTIL he has obtained a judgment against the insured
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Impleader
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defendant may bring in a person (third-party defendant) not a party to the action who MAY be liable to him for some or all of the plaintiff's claim against him
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Interpleader
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available to a stakeholder by complaint or counterclaim to join parties where claims are such that the stakeholder is or might be subject to multiple liability for one debt or obligation
person holding the property is the stakeholder people who may be entitled to it are claimants |
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Class Actions - Initial Requirements
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(1) too numerous for practicable joinder
(2) some questions of law or fact in common to class (3) representative's claims or defenses typical of those of the class, AND (4) representative adequately and fairly represents the class |
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Class Actions - 3 Types
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(1) prejudice (class treatment is necessary to avoid harm either to class members or to the nonclass party)
(2) seeking an injunction or delcaratory judgment because the class was treated alike by the other party (employment discrimination) (3) damages (common questions predominate over individual questions AND class suit is superior to other devices) |
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Class Actions - Pleading and Notice Requirements
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Pleading: must designate a "class representation" next to the case caption and specifically allege class action allegations, define the class and approximate the membership
Notice: class representative pays to give individual notice to ALL class members reasonably identifiable, to inform them: (1) they can opt-out of the class action, (2) they will be bound by the judgment if they do not opt-out, AND (3) they can enter a separate appearance in the case through counsel |
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Class Actions - Dismissal
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no dismissal or settlement of class action without court approval, with notice to all members
court can consider their feedback in deciding whether to allow dismissal or settlement |
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Condominium Association Rights
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can sue on behalf of all unit owners on matters of common interest, IF control of the association rests with the owners, NOT with the developers
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Discovery - Duty to Supplement
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there is no duty to supplement answers to discovery if the answers were complete when made
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Discovery - Tools
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(1) depositions (oral and written)
(2) inerrogatories (3) requests to produce (4) physical/mental examination (5) requests for admissions |
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Discovery - Applicable to NON-party
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depositions is subpoenaed...can be duces tecum (required to produce documents)
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Sanctions - Against a Party
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if a party refuses to comply with proper discovery requests:
(1) sanctions (2) default judgment (3) dismissal (4) strie pleadings (5) stay the proceedings (6) prohibit party from supporting or opposing certain claims or defenses (7) prohibit party from introducing evidence on the matter (8) enter an order of contempt |
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Sanctions - Attorney Misconduct
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may dismiss case with prejudice
court will consider: (1) if conduct was willful (2) attorney was previously sanctioned (3) client was personally involved (4) opposing party was prejudiced (5) attorney offered a reasonable justification for noncompliance (6) delay created significant problems of judicial administration |
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Pretrial Judicial Management
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(1) case management conference
(2) pretrial conference failure to attend - court can take appropriate actions |
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Effect of Pretrial Conference Order
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controls future events UNLESS amended to prevent manifest injustice
essentially this supersedes ALL pleadings |
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Voluntary Dismissal - 3 Methods
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(1) notice of dismissal
(2) stipulation of parties (3) court order |
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Notice of Dismissal - When does it NOT apply?
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(1) if case ahs been submitted to trier of fact OR motion for summary judgment pending
(2) property seized or in court custody (3) counterclaim pending which cannot stand for independent adjudication |
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Stipulation of Parties (written) - when does it NOT apply?
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property in court custody
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Court Ordered Dismissal - when does it NOT apply?
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if counterclaim is pending which cannot stand for independent adjudication
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How many voluntary dismissals do you get?
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1 without prejudice, the 2nd one is with prejudice
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How can you terminate a case without a trial?
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(1) voluntary dismissal
(2) default and default judgment (3) involuntary dismissal (4) rule nisi (5) scire facias (6) failure to state cause of action (7) summary judgment |
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Involuntary Dimisssal - Grounds and Results
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(1) failure to obey a court order, failure to comply with the rules of the court (with predjudice, usually)
(2) lack of jurisdiction (without prejudice) (3) improper venue (without prejudice) (4) failure to join an indispensible party (without prejudice) (5) failure to prosecute for a period of 1 year, notice after 10 months, 60-day waiting period before dismissal (without prejudice) |
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Summary Judgment - Grounds and Results
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no genuine issue of material fact AND the moving party is entitled to judgment as a matter of law (with prejudice)
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Rule Nisi
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an order to show cause - tells a party the court will enter a particular oder UNLESS they convince the judge not to
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Scire Facias
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order requiring oen to show cause why some matter of record should NOT be vacated OR why a dorment judgment shoudl not be revived
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Summary Judgment - Standard
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moving party must show:
(1) there is no genuine dispute as to a material issue of fact AND (2) he is entitled to judgement as a matter of law granted if there is no reason to hold a trial |
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Summary Judgment - What can the court consider?
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(1) affidavits
(2) interrogatory answers (3) depositions (4) admissions (5) pleadings Note: court will NOT take oral testimony |
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Summary Judgment - Timing
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defendant may move at any time, plaintiff must wait 20 days from commencing the action
motion MUST be served 20 days before the hearing party opposing MAY serve affidavits by: (1) mailing them at least 5 days before the hearing, OR (2) delivering them to the movant's lawyer no later than 5pm 2 days before the hearing |
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Jury Trial - Requirements
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MUST demand in writing within 10 days after service of last pleadings directed to jury-triable issue
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Jury Trial - Withdrawal of Plea
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party can withdraw its demand for a jury trial ONLY IF all other parties agree
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Jury Trial - constitutional right for what issues?
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issues of LAW, not equity...so the jury will determine the legal issues, and the equity issues will be left for the judge
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Jury Trial - Number of Jurors
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Civil: 6
Eminent Domain: 12 |
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Jury Trial - Challenges of Jurors
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Peremptory: 3 (plus 1 for each alternate)
Cause: unlimited |
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Jury Trial - Multiple Parties and the number of challenges
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if the number of peremptory challegnes is not equal for each side (P and D), then EACH SIDE will get the higher number
Example: 2 P, 3 D = 3 per party, 3 D = 9 for D...so 9 peremptory for EACH SIDE |
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Jury Instructions - Objections
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MUST be made BEFORE the jury is charged, otherwise they are waived
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Directed Verdict - Generally
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this is an exceptional order, the effect of which is to take the case away from the jury (judge decides instead)
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Directed Verdict - Timing
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move after the other side has been heard
defendant: can move at the close of plaintiff's case AND again at the close of all evidence plaintiff: can move ONLY at the close of all evidence |
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Directed Verdict - Standard
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reasonable people could not disagree on the result
court will view the evidence in the light most favorable to the nonmoving party will also take inferences in favor of the nonmoving party |
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Verdict - Generally
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MUST be unanimous UNLESS the parties agree otherwise
approved by the judge and then read by the clerk |
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Verdict - Requirements
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when a party is held liable for damages, the jury must itemize amounts to be awarded in these categories...which means they must be separately stated in the verdict:
(1) economic loss (wages, medical expenses) both before verdict and to be incurred in the future (2) noneconomic loss (pain and suffering, anguish) both before verdict and to be incurred in the future (3) punitive damages (intentional misconduct or gross negligence) must be shown by clear and convincing evidence |
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Punitive Damages - Cap
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generally 2x compensatory or $500,000 UNLESS specific intent to harm OR under the influence of drugs/alcohol
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Belated Directed Verdict (JNOV) - Timing
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must be in writing and filed and served within 10 days after return of the verdict (day of verdict itself does not count)
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Belated Directed Verdict (JNOV) - Standard & Prerequisite
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Standard: same as a directed verdict, if it is granted, the court is saying that the jury reached a conclusion that reasonable people could not have reached
Prerequisite: motion for directed verdict at the close of all evidence is required to make the belated directed verdict |
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Motion to Set Aside - Grounds and Timing
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(1) clerical error (anytime)
(2) mistake, excusable neglect, suprise (must show viable defense)(reasonable time, not exceeding 1 year) (3) fraud by opposing party (reasonable time, not exceeding 1 year) (4) newly discovered evidence not previously available despite due diligence (reasonable time, not exceeding 1 year) (5) judgment void (reasonable time, no maximum) |
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Appeals
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generally can only appeal final judgments within 30 days of entry (by notice of appeal)
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Deposition of Defendant - Location
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defendant's deposition is usually taken in his county of residence or business if it differs from the venue of the action
parties may designate any place that is mutually satisfactory |
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Deposition of Nonparty - Location
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nonparties are entitled to be deposed where they live
a nonparty who is a FL resident may only be compelled to appear for a deposition where the deponent resides, is employed, or transacts business in person or in such convenient place as fixed by the court |
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What should you do if you fear the defendant will die before you can file your complaint?
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file a petition with the court requesting an order authorizing the deposition, and ONLY for the purpose of preserving or perpetuating testimony
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Which experts must be disclosed in interrogatories?
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ONLY those which a party intends to call at trial
must also recite the substance of the expert's anticipated testimony and the grounds for the expert's opinion if asked |
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What is a stakeholder entitled to with interpleader?
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reasonable attorneys' fees and costs
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Multiple Defendants that are contesting venue
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where an action is brought against multiple defendants, venue may lie where any of them resides, or where the cause of action arose
if one defendant fails to assert improper venue, venue is proper as to them and, therefore, against the others too |
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Condition of Impleader
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the 3rd party defendant must be ameanable to personal jurisdiction in FL
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Where do you file a notice of appeal?
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with the trial court from which the appeal is taken (not with the appellate court itself)
Note: appellant must 1st seek to stay the enforcement of a lower court injunction in the lower court when making an appeal |
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What should a judge do when there is a discrepancy between the general verdict and the specific finding of legal justification?
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he MAY NOT permit the verdict to stand based on the inconsistency
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What is the FL Supreme Court NOT allowed to review on appeal?
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a DCA decision that merely construes a state statute
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When is a claim of lack of jurisdiction waived?
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when a party makes an appearance and claims rights under Rules of Civil Procedure
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