0000005132 00000 n %PDF-1.4 % DO NOT, therefore, rely on the Model Instructions for correct wording when preparing instructions. 2d 483, 487 (Fla. 5th DCA 2002)). As to the right to trial by jury, seeFox v. City of Pompano Beach, 984 So. homestead 461 0 obj <>stream employee of the state sued in an official capacity must serve an answer to the 415 South Olive Avenue West Palm Beach, FL. party does not present either by motion under subdivisions (b), (e), or (f) of Model form of verdict for statute of limitations defense in a medical negligence case, 5(a). " \*TE!@'b(sUk8CTHN77~xj?! Defendant is a consumer borrower residing in Jacksonville, Duval County, . "d 8Rx Dh9 w]F ,a8K^ZW#WeZ2J(3J]XP7.Q-aqwdB*E:ty(U?wW9dPd@vtvtyF)$Nec*`v>. W#qGt^`?=!g1 %Cg` G] (e)Effect of Failure to Deny. (1) A party waives all defenses and objections that the Affirmative defenses are not simple denials. [1] Although Section 12(a) of Rule 8 speaks of reasons set forth under Section 5(b), Rule 6, what it actually means is reasons set forth under the second paragraph of Section 5, Rule 6.. 3e82,2?u^6;7R%6 (r eao9 m Form 1.933 - ACCOUNT STATED. An affirmative defense is an allegation of a new matter which, while hypothetically admitting the material allegations in the claimants pleading, would nevertheless prevent or bar recovery by him. trial on application of any party unless the court orders that the hearing and affirmative defenses to breach of fiduciary duty floridamr patel neurosurgeon cardiff 27 februari, 2023 . (LogOut/ Co. v. Curran, 135 So. A party may move to strike or the court may strike redundant, immaterial, impertinent, or scandalous matter from any pleading at any time. A motion making any of 7. Under the Federal Rules of Civil Procedure Rule 56, any party may make a motion for summary judgment on an affirmative defense. The Group B affirmative defenses are those mentioned in Section 5 (b), Rule 6 of the Rules of Civil Procedure. Failure to properly raise affirmative defenses means that you waive those defenses. unless a different time is fixed by the court in either case. 0000063002 00000 n Examples of common affirmative defenses include statute of limitations and accord & satisfaction. hb```HNAd`0p,+jbcH```||!/]a+c9B'dXra"LP[Ph#"ADH0v ;KNTg`ZH 1?`_mc`e`I` hb```b``} wAX,S`"qw1>Q$0`vI-:|->\qiy#IS~^?HeP,%HMGTYfFi?Ux,sF7P Always refer to the standard instructions and forms provided in Parts I through VIII. (Section 13, Rule 15, Rules of Civil Procedure). Specifically, Rule 11 of the Federal Rules of Civil Procedure states that a lawyer who presents to the court a "pleading, written motion, and other paper" confirms "to the best of the person's knowledge . 0000006876 00000 n 0000015289 00000 n There are a myriad of legally recognized affirmative defenses under Florida law. In other words, the court cannot defer the resolution of a Group A affirmative defense to the trial proper since it is mandated to resolve such affirmative defense. As to the right to trial by jury, see Fox v. City of Pompano Beach, 984 So. [1] These are the following: 3. 2. 2d 1048 (Fla. 1995). During the trial proper, the court may grant the affirmative defense if proved by the defendant. On the other hand, as to the Group B affirmative defenses, the court may conduct a summary hearing within 15 days from the filing of the answer. It also discusses waiver of defenses. See Standard Jury Instructions in Contracts and Business Cases. Better Legal Talent and Quality Work than the Large Firms. The Group A affirmative defenses are those mentioned in Sec. Although the defendant knew what he or she was doing and its consequences, the defendant did not know that what he or she was doing was wrong. If a professional malpractice case involves a claim of product defect, jury instructions for such claims should be adopted from the applicable sections of this book. Form 1.921 - NOTICE OF PRODUCTION FROM NONPARTY. % The committee has, therefore, included all such claims in a single section. A discussion of each is beyond the scope of this article. The responses in subdivisions (b)(1)(b)(7), whether made in a pleading or by motion, and the motion for judgment in subdivision (c) must be heard and determined before trial on application of any party unless the court orders that the hearing and determination will be deferred until the trial. In instances in which changes have been made to adapt the standard instructions to the circumstances of the hypothetical case, the committee has italicized the instructions. He may also raise an affirmative defense of prescription, that is, assuming without admitting that he executed the promissory note, the same is barred by prescription since the suit was brought more than ten years after the note had become due and demandable. Estoppel. Payment (extinction of the claim or demand). If contribution is found to be appropriate in tort actions other than for negligence (but see the title to Ch. endobj these defenses must be made before pleading if a further pleading is permitted. ',-[/EH*|%Zzm;NV)*));D )oW7ss)6_r6_D0x.6mU?E..RMkv endstream endobj 460 0 obj <>/Filter/FlateDecode/Index[34 385]/Length 35/Size 419/Type/XRef/W[1 1 1]>>stream 4 0 obj They are a potent procedural weapon to defeat or diminish the plaintiffs claim or claims. 278 0 obj <> endobj Unenforceability under the statute of frauds. The instructions in this section are based upon the Florida Civil Rights Act of 1992 (FCRA), which makes it unlawful for an employer to discriminate based upon race, color, religion, sex, pregnancy, national origin, age, handicap, or marital status. Fla. July 28, 2008) (right to jury trial pursuant to the private-sector whistle-blowers provisions,F.S. The party raising the affirmative defense has the burden of proof on establishing that it applies. Consequently, a mere denial of the allegations in a complaint cannot form the basis of an affirmative defense. 0000010997 00000 n Pankauski Lazarus PLLC represents clients throughout Florida, including the cities of West Palm Beach, Boca Raton, Delray Beach, Boynton Beach, Highland Beach, Riviera Beach, North Palm Beach, Abacoa, Wellington, Lake Worth, Palm Beach Gardens, Jupiter, Greenacres, Deerfield Beach, Pompano Beach and Fort Lauderdale, as well as other communities in Palm Beach County, Broward County and Miami Dade County. (2) (A) Except when sued pursuant to section 768.28, Florida One of my greatest joys is to see my students pass the bar and become accomplished lawyers. this rule or, if the party has made no motion, in a responsive pleading except If the defendant however wants to set up a compulsory counterclaim, he should file an answer raising prescription as an affirmative defense and setting forth the counterclaim in the answer. kNr267I5$A+ZI^f}>rXh1GGpgz\,Z_a7h;,~~3^T_[pi~=& court may strike redundant, immaterial, impertinent, or scandalous matter from days after service on that party. 6. (3) The service of a motion under this rule, except a motion (e) Motion for More Definite Statement. A party may move to strike or the The reason for the difference is that the resolution of the Group A affirmative defenses does not generally require a full-blown trial. Change), You are commenting using your Twitter account. foreclosure (Section 2, Rule 9, Rules of Civil Procedure). 2d 541, 542 (Fla. 1st DCA 1983) (citation omitted). DEFENSES. I presently teach Remedial Law Review at the FEU Institute of Law and at the University of Asia & the Pacific Institute of Law, and Civil and Criminal Procedure at the MLQU School of Law. All persons are presumed to be sane. must be served within 10 days of service of the pleadings or statements. The boundaries of this tort, particularly when the claimant is a third party affected by conduct occurring between the defendant and another person, are not clearly defined. There are, however, some specific instructions that deal with issues unique to certain professions, such as instruction 402.4(d) (missing medical records) and instruction 402.12 (issues involved in certain legal malpractice claims). RULE 1.140. Section 500: Damages commercial lease The Law is Reason Free from Passion. Affirmative defenses appearing on the face of a prior pleading may be asserted as grounds for a motion or defense under rule 1.140 (b); provided this shall not limit amendments under rule 1.190 even if such ground is sustained. It is important to know whether an affirmative defense falls under Group A or under Group B since different legal rules apply to each group. Change), You are commenting using your Facebook account. (2) The responses of failure to state a cause of action or a legal defense or to join an indispensable party may be raised by motion for judgment on the pleadings or at the trial on the merits in addition to being raised either in a motion under subdivision (b) or in the answer or reply. )", both published by Central Books. eviction 0 Model form of verdict for general negligence with apportionment of fault(revised February 1, 2018), Punitive Damage Instructions for Causes of Action Arising Prior to October 1, 1999, Emergency Medical Treatment Claims Instructions for Causes of Action Arising Prior to September 15, 2003, To inculcate in its members the principles of duty and service to the public, to improve the administration of justice, and to advance the science of jurisprudence. corporation document.getElementById( "ak_js_1" ).setAttribute( "value", ( new Date() ).getTime() ); Appeals on Pure Questions of Law: AnOutline, In Search of the New Rule on Search Warrants: Venue of Search Warrant Applications and Extent of WarrantEnforceability. Gulisano Law, PLLC. (1)Unless a different time is prescribed in a statute of Florida, a respondent must serve a response within 20 days after service of original process and the initial pleading on the respondent, or not later than the date fixed in a notice by publication. It is an affirmative defense to a criminal prosecution that, at the time of the commission of the acts constituting the offense, the defendant was insane. 2d 6 (Fla. 1st DCA 2008) (right to jury trial pursuant to the Whistle-blower Act,F.S. available to that party. See, e.g., JoJos Clubhouse, Inc. v. DBR Asset Mgmt., Inc., 860 So. %PDF-1.4 Release. The plaintiffs motion can hardly be characterized as dilatory, unlike the defendants motion for reconsideration of the denial of an affirmative defense. Old Republic These are: 4. american rule Section 200: Preliminary Instructions The instructions in this section are based upon F.S. 3. The Florida Rules of Civil Procedure are intended to "secure the just, speedy, and inexpensive determination of every action."[1] The Florida Constitution, however, mandates that "[t]he right to trial by jury shall be secure to all and remain inviolate."[2] This tension between an efficient court system, on one hand, and protecting one's right to a jury of his or her peers, on the . Think of them this way: even if the allegations or accusations in the complaint are true, you still win ! A party who makes a motion under this rule may join with it the other motions herein provided for and then available to that party. All rights reserved. 2023 The Florida Bar. kZAVP+`Z((((((JO2"YtV8+JgYTx2x~~{1-I7NdSNW 10. Disclaimer: The Florida Rules of Civil Procedure have been reproduced here in their entirety and are being provided as a courtesy and free of charge. Of course, the denial of the affirmative defense is not conclusive upon the defendant. after the filing of the order or such other time as the court may fix, the 3. I had the privilege of serving as a commissioner at the Legal Education Board. The grounds on which any of the enumerated defenses are based and the 2d at 212 (The matters raised by Gatts affirmative defense simply denied the facts contained in the brokers complaint and did not raise any new matters to defeat the complaint. Affirmative defenses are the type of yea, but.. defenses. (1) Unless a different time is prescribed in a statute of On April 29, 2021, the Florida Supreme Court adopted a new summary judgment standard. 2d at 79798 (It is well established that if an affirmative defense is not pleaded, it is waived.). [2] Such affirmative defenses shall be resolved by the court within 30 days from the termination of the summary hearing. 2d 175, 176 (Fla. 3d DCA 1975) ([T]hat portion of the affirmative defense alleging that the note was not in default does not constitute an affirmative defense, but is merely a denial.). moratorium Disclaimer | Sitemap | Privacy Policy |. 1 Filing # 71045621 E-Filed 04/20/2018 04:55:11 PM RECEIVED, 04/20/2018 04:58:29 PM, Clerk, Supreme Court 768.13(2)(b) and comparative negligence, 6. Except for prescription, extinction of the claim or demand, and unenforceability under the statute of frauds, these affirmative defenses were not grounds of a motion to dismiss under Rule 16 of the 1997 Rules of Civil Procedure. Co. v. Curran, 135 So. Self-defense,entrapment,insanity,necessity, andrespondeat superiorare some examples of affirmative defenses. Purported affirmative defenses that do not satisfy this test are properly stricken. 0000001945 00000 n Hence, under the 1997 Rules, these affirmative defenses, except for the three mentioned, could be resolved only during the trial proper. (b) How Presented. 0000000016 00000 n 2d 795, 797 (Fla. 3d DCA 1976) (citation omitted) ([A]ffirmative defenses are pleas of confession and avoidance. When you are served with a lawsuit, you receive a copy of the complaint. must be served within 10 days after the filing of the courts order unless a %%EOF The book provides useful forms for each affirmative . For example, in Florida self-defense is an affirmative defense but in Ohio, it is not. Affirmative Defenses Under Florida Law "An affirmative defense is a defense which admits the cause of action [asserted in the plaintiff's complaint], but avoids liability, in whole or in part, by alleging an excuse, justification, or other matter negating or limiting liability." The defendant is prohibited from filing a motion for reconsideration of the denial nor may such denial be challenged by a petition for certiorari, prohibition, or mandamus. 0000001612 00000 n He is simply arguing that he has a good reason for having done so, and therefore should be excused from all criminal liability. The defense of lack of jurisdiction of the subject matter may be raised at any time. endobj 2d 664 (Fla. 4th DCA 2008) and ONeal v. Fla. A&M Univ., 989 So. The motion must point out the defects complained of and the details desired. ad valorem attorney's fees cannot reasonably be required to frame a responsive pleading, that party may 3d 1071, 1079 (Fla. 2014) (quotation omitted). Form 1.986(a). See Rule 1.190(h), Florida Rules of Civil Procedure. Auto. SECOND AFFIRMATIVE DEFENSE The Association failed to properly serve the Complaint on Ms. Durrett in violation of the Florida Rules of Civil Procedure. No copyright is claimed to the text of the Florida Rules of Civil Procedure. endobj Gatt v. Keyes Corp., 446 So. [3] This procedural device is provided for in Section 16, Rule 16 of the 1997 Rules of Civil Procedure. Illegality. 0000005047 00000 n Although practitioners are fond of setting forth in the answer special and affirmative defenses, there is really no such thing as a special defense under the Rules of Civil Procedure. 0000006469 00000 n Form of verdict itemizing damages introductory comment, 1. Copyright 2022.All Rights Reserved. 0000016581 00000 n alters these periods of time so that if the court denies the motion or (1) AFFIRMATIVE DEFENSE. These Model Instructions are provided only as examples of how the instructions are intended to be used. A party served with a pleading (1) A party waives all responses and objections that the party does not present either by motion under subdivisions (b), (e), or (f) or, if the party has made no motion, in a responsive pleading except as provided in subdivision (h)(2). 9. A defense is either negative or affirmative. If the dismissal is on an affirmative defense other than PURE, such as improper venue, then such dismissal is without prejudice. (Section 6, Rule 15 of the Rules of Civil Procedure). Metropolitan Life Insurance Co. v. McCarson, 467 So.2d 277 (Fla. 1985). Chapter 1 - Rules of Civil Procedure; updated January 19, 2023 Chapter 2 - Rules of General Practice and Judicial Administration; updated February 2, 2023 Chapter 3 - Rules of Criminal Procedure; updated January 1, 2023 Remedy from the grant of an affirmative defense. 0000022033 00000 n If the motion is granted and the order of the court is not obeyed within 10 days after notice of the order or such other time as the court may fix, the court may strike the pleading to which the motion was directed or make such order as it deems just. These are: 1. (d) Preliminary Hearings. If a valid affirmative defense is timely plead and proven, it could totally defeat or partial reduce, the claims raised by the plaintiff in the complaint. However, the Federal Rules of Civil Procedure do not allow this tactic or the assertion of boilerplate affirmative defenses. title insurance. affirmative defenses to breach of fiduciary duty florida. endobj See also, Bliss v. Carmona, 418 So. Chapter 7 In responding to a pleading, a party must affirmatively state any avoidance or affirmative defense, including: accord and satisfaction; arbitration and award; assumption of risk; contributory negligence; duress; estoppel; failure of consideration; fraud; illegality; injury by fellow servant; laches; license; payment; <> from it any defenses or objections then available to that party that this rule Do you have to answer affirmative defenses in Florida? Payment (extinction of the claim or demand). Think of them this way: even if the allegations or accusations in the complaint are true, you still win ! (3) If the court permits or requires an amended or responsive pleading or a more definite statement, the pleading or statement must be served within 10 days after notice of the courts action. judgment in subdivision (c) of this rule must be heard and determined before Ins. See, e.g., Cady 528 So. Change). If a pleading sets forth a claim for relief to which the adverse party is not required to serve a responsive pleading, the adverse party may assert any defense in law or fact to that claim for relief at the trial, except that the objection of failure to state a legal defense in an answer or reply must be asserted by motion to strike the defense within 20 days after service of the answer or reply. property taxes (g) Consolidation of Defenses. 448.101-105). 2d 1017, 1019 (Fla. 3d DCA 1982) (internal citations omitted) (Certainty is required when pleading defenses and claims alike, and pleading conclusions of law unsupported by allegations of ultimate fact is legally insufficient.); Walker v. Walker, 254 So. Notably, a motion for more definite statement under Rule 1.140(e), Florida Rules of Civil Procedure, that is not concurrent with, or accompanied by a motion on the defenses or objections of Rule 1.140(b), Florida Rules of Civil Procedure, risks waiver of those Rule 1.140(b) defenses, if any.15 Therefore, the best practice is 0000027068 00000 n [Last updated in June of 2022 by the Wex Definitions Team]. Moreover, affirmative defenses must be asserted in the answer otherwise they are waived. The Group B affirmative defenses are those mentioned in Section 5(b), Rule 6 of the Rules of Civil Procedure. Model form of verdict for emergency medical treatment; issue as to the applicability of F.S. The specific enumeration of Group B affirmative defenses is not exclusive because of the catch-all clause any other matter by way of confession and avoidance. Examples of other affirmative defenses are caso fortuito, nullity or voidability of the contract, vices of consent, and unenforceability of the contract under paragraphs 1 and 2 of Article 1403 of the Civil Code. meta These instructions cover both types of claims. 0000017233 00000 n endstream endobj 279 0 obj <>/Metadata 45 0 R/Pages 276 0 R/StructTreeRoot 56 0 R/Type/Catalog>> endobj 280 0 obj <>/MediaBox[0 0 612 792]/Parent 276 0 R/Resources<>/Font<>/ProcSet[/PDF/Text/ImageB/ImageC/ImageI]>>/Rotate 0/StructParents 0/Tabs/S/Type/Page>> endobj 281 0 obj <>stream 2d 311, 313 (Fla. 5th DCA 1985). ~ From the Rules Regulating The Florida Bar, Florida's Standards for Imposing Lawyer Sanctions, Entire Set of Civil Jury Instructions, Word, Entire Set of Civil Jury Instructions, PDF, Section 600: Substantive Instructions General, Appendix C Punitive Damage Instructions, Appendix E Emergency Medical Treatment Claims Instructions for Causes of Action Arising prior to September 15, 2003, The Theory and Technique of Charging a Jury with These Instructions, Original Introduction from Inaugural Committee, Orders of the Supreme Court Creating and Revising These Instructions, Members of the Committee Since Its Inception, 201.2 Introduction of Participants and Their Roles, 201.3 Explanation of the Voir Dire Process, 202.5 Jury to Be Guided by Official English Translation/Interpretation, 301.1 Deposition Testimony, Interrogatories, Stipulated Testimony, Stipulations, and Admissions, 301.2 Instruction when First Item of Documentary, Photographic, or Physical Evidence Is Admitted, 301.3 Instruction when Evidence Is First Published to Jurors, 301.4 Instruction Regarding Visual or Demonstrative Aids, 301.5 Evidence Admitted for a Limited Purpose, 301.6 Jury to Be Guided by Official English Translation Interpretation, 301.7 Jury to Be Guided by Official English Transcript of Recording in Foreign Language (Accuracy Not in Dispute), 301.8 Jury to Be Guided by Official English Translation/Interpretation Transcript of Recording in Foreign Language (Accuracy in Dispute), 301.11 Failure to Maintain Evidence or Keep a Record, 408 Tortious Interference with Business Relationships, 410 Outrageous Conduct Causing Severe Emotional Distress, 413 Claim for Personal Injury Protection (PIP) Benefits (Medical Benefits only), 414 Intentional Tort As an Exception to Exclusive Remedy of Workers Compensation, 418 Unlawful Retaliation Under Floridas Public Sector Whistle-Blower Act, 420 Negligent Infliction of Emotional Distress, 451 Fiduciary Duty (Shared with Contract and Business), 401.8 Violation of Non-Traffic Penal Statute as Negligence per Se, 401.9 Violation of Statute, Ordinance, or Regulation as Evidence of Negligence, 401.10 Equal and Reciprocal Rights of Motorists and Pedestrians, 401.14 Preliminary Issues Vicarious Liability, 401.15 Preliminary Issues Common Carrier, 401.16 Preliminary Issues Premises Liability, 401.17 Burden of Proof on Preliminary Issues, 401.18 Issues on Plaintiffs Claim General Negligence, 401.19 Issues on Plaintiffs Claim Common Carrier, 401.20 Issues on Plaintiffs Claim Premises Liability, 401.24 Counterclaims, Cross Claims, and Third Party Claims, 402.7 Legal Cause (Treatment Without Informed Consent), 402.9 Preliminary Issues Vicarious Liability, 402.10 Burden of Proof on Preliminary Issues, 402.12 Issues on Claim of Attorney Malpractice Arising Out of Civil Litigation, 403.5 Implied Warranty of Merchantability, 403.6 Implied Warranty of Fitness for Particular Purpose, 403.11 Inference of Product Defect or Negligence, 403.14 Burden of Proof on Preliminary Issue, 403.16 Issues on Crashworthiness and Enhanced Injury Claims, 404.4 Insurers Bad Faith (Failure to Settle), 404.5 Medical Malpractice Insurers Bad Faith Failure to Settle, 404.9 Concluding Instruction when Court to Award Damages, 404.10 Damages (Cases with Claims for Mental Distress), 404.11 Burden of Proof on Mental Distress Claim, 406.6 Instituting or Continuing a Proceeding, 408.5 Issues on Plaintiffs Claim Interference with Contract not Terminable at Will, 408.6 Issues on Plaintiffs Claim Interference with Business Relations or with Contract Terminable at Will, 408.8 Affirmative Defense Financial Interest, 409.7 Issues on Plaintiffs Claim Fraudulent Misrepresentation, 409.8 Issues on Plaintiffs Claim Negligent Misrepresentation, 409.9 Issues on Plaintiffs Claim False Information Negligently Supplied for the Guidance of Others, 412.1 Contribution Sought by Cross-Claims Between Defendant Tortfeasors in Injured Partys Original Action, 412.2 Contribution Sought by Third Party Claim in Injured Partys Original Action, 412.3 Introduction for Independent Contribution Claim, 412.8 Issues on Claim and Burden of Proof, 415.4 Retaliation; Adverse Employment Action, 415.8 Preliminary Issue Adverse Employment Action, 415.9 Burden of Proof on Preliminary Issue, 415.13 Defense Issue on Damages (Mitigation-Discharge), 415.14 Reduction of Damages to Present Value, Standard Jury Instructions in Contracts and Business Cases, 417.4 Discrimination Disparate Treatment, 417.10 Affirmative Defense Failure to Mitigate Lost Wages, 417.11 Affirmative Defense After-Acquired Evidence, 417.12 Reduction of Damages to Present Value, 418.5 Preliminary Issue Adverse Employment Action, 418.6 Burden of Proof on Preliminary Issue, 418.12 Defense Issue Adverse Employment Action Based on Other Grounds, 418.14 Defense Issue on Damages (Mitigation Discharge), 418.15 Reduction of Damages to Present Value, 451.4 Existence of Fiduciary Duty Disputed, 451.8 Preliminary Issue Vicarious Liability, 451.9 Burden of Proof on Preliminary Issues, 451.14 Model Form of Verdict for Breach of Fiduciary Duty, 501.1 Personal Injury and Property Damages: Introduction, 501.2 Personal Injury and Property Damages: Elements, 501.4 Comparative Negligence, Non-Party Fault and Multiple Defendants, 501.5 Other Contributing Causes of Damages, 501.7 Reduction of Damages to Present Value, 502.1 Wrongful Death Damages: Introduction, 502.2 Wrongful Death Damages: Elements for Estate and Survivors, 502.3 Wrongful Death Damages of Estate and Survivors: Separate Awards for Estate and Survivors, 502.4 Wrongful Death Damages: Elements when There Are No Survivors, 502.5 Comparative Negligence, Non-Party Fault, and Multiple Defendants, 502.7 Reduction of Damages to Present Value, 503.1 Punitive Damages Bifurcated Procedure, 503.2 Punitive Damages Non-Bifurcated Procedure, 601.3 Jury to Be Guided by Official English Translation/Interpretation, 601.4 Multiple Claims, Numerous Parties, Consolidated Cases, 601.5 Concluding Instruction (Before Final Argument), 801.1 Juror Questions During Deliberations, 801.4 Instructions upon Discharge of Jury, Model form of verdict for general negligence with apportionment of fault, 2(a).
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