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Questions and Answers
What is the consequence if a defendant fails to raise the defense of lack of legal capacity in either a motion to dismiss or in the answer?
What is the consequence if a defendant fails to raise the defense of lack of legal capacity in either a motion to dismiss or in the answer?
- The issue can be raised at any stage of the proceedings.
- The court will automatically consider the defense sua sponte.
- The defense is deemed waived. (correct)
- The defendant will be given an extension to amend the answer.
Under what circumstances is a court obligated to dismiss a claim, even if defenses and objections have not been properly pleaded?
Under what circumstances is a court obligated to dismiss a claim, even if defenses and objections have not been properly pleaded?
- When newly discovered evidence suggests a different outcome.
- When the court determines that there is a high likelihood of success on appeal.
- When the court lacks jurisdiction over the subject matter. (correct)
- When the defendant demonstrates financial hardship.
What is the legal consequence of failing to assert a compulsory counterclaim in a pleading?
What is the legal consequence of failing to assert a compulsory counterclaim in a pleading?
- The defendant may be sanctioned, but the counterclaim remains viable.
- The counterclaim can be raised in a subsequent, separate action.
- The counterclaim is barred. (correct)
- The counterclaim is converted into a permissive counterclaim.
What action must a claiming party take to have a defending party declared in default for failing to answer?
What action must a claiming party take to have a defending party declared in default for failing to answer?
What right does a party in default retain?
What right does a party in default retain?
Under what conditions may a court set aside an order of default?
Under what conditions may a court set aside an order of default?
In a case with multiple defendants, what happens if some answer while others fail to do so?
In a case with multiple defendants, what happens if some answer while others fail to do so?
What limitations are placed on the relief that can be awarded in a judgment against a party in default?
What limitations are placed on the relief that can be awarded in a judgment against a party in default?
In what type of case is special action taken when the defending party fails to answer?
In what type of case is special action taken when the defending party fails to answer?
In actions for annulment of marriage where the defending party defaults, what specific action is the court mandated to take to protect the interests of the State?
In actions for annulment of marriage where the defending party defaults, what specific action is the court mandated to take to protect the interests of the State?
Flashcards
Waived Defenses
Waived Defenses
Defenses and objections not pleaded in a motion to dismiss or in the answer are considered waived.
Exceptions to Waiver
Exceptions to Waiver
Even if not pleaded, a court MUST dismiss a claim if it lacks subject matter jurisdiction, there's a similar pending action, or the action is barred by prior judgment/statute of limitations.
Barred Claims
Barred Claims
If a compulsory counterclaim or cross-claim is not raised, it cannot be raised later. You lose the right to claim it.
Default Declaration
Default Declaration
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Effect of Default
Effect of Default
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Relief from Default
Relief from Default
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Partial Default Effect
Partial Default Effect
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Extent of Relief
Extent of Relief
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Waiver
Waiver
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Study Notes
- This rule covers the consequences of failing to properly plead defenses, compulsory counterclaims, cross-claims, and the effects of default.
Defenses and Objections Not Pleaded
- Defenses and objections that are not raised in a motion to dismiss or in the answer are considered waived.
- An exception exists where the court lacks subject matter jurisdiction, there is another pending action for the same cause, or the action is barred by res judicata or the statute of limitations; the court must dismiss the claim in these cases.
Compulsory Counterclaim or Cross-Claim Not Set Up
- A compulsory counterclaim or cross-claim that is not properly raised in the pleadings will be barred.
Default Declaration
- If a defendant fails to file an answer within the allowed time, the court will, upon motion by the claimant with notice to the defendant and proof of failure to answer, declare the defendant in default.
- The court will then render a judgment granting the claimant the relief warranted by the pleadings, unless the court requires the claimant to present evidence, which can be delegated to the clerk of court.
Order of Default Effects
- A party in default is entitled to receive notices of subsequent proceedings.
- A party in default cannot participate in the trial.
Relief From Order of Default
- A party declared in default can file a motion under oath to set aside the order of default at any time after receiving notice of the default but before judgment.
- The motion must demonstrate that the failure to answer was due to fraud, accident, mistake, or excusable negligence, and that the party has a meritorious defense.
- The court can set aside the default order with terms and conditions in the interest of justice.
Partial Default Effect
- When one or more defending parties answer, but others do not, in a common cause of action, the court will try the case against all defendants based on the answers filed.
- The court will render judgment based on the evidence presented.
Extent of Relief
- A judgment against a party in default must not exceed the amount or differ from the kind of relief requested in the pleadings.
- Judgments cannot award unliquidated damages.
No Defaults Allowed
- In actions for annulment, declaration of nullity of marriage, or legal separation, if the defendant fails to answer, the court must order the prosecuting attorney to investigate potential collusion between the parties.
- If no collusion is found, the prosecuting attorney intervenes to ensure the evidence is not fabricated.
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