civil procedure.doc

7/30/2019 CIVIL PROCEDURE.doc

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NOTES IN REMEDIAL LAW SAN SEBASTIAN COLLEGEINSTITUTE OF LAW

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JURISDICTION IN CIVIL CASES

SUPREME COURT

A. Supreme Court has original:

I. Exclusive Jurisdiction over- Petitions for issuance of writs of certiorari, prohibition, and mandamus

against the following:a. Court of Appealsb. Commission on Electionsc. Commission on Auditd. Sandiganbayan

II. Concurrent Jurisdiction with the Court of Appeals over- Petitions for issuance of writs of certiorari, prohibition, and mandamus

against the following:a. National Labor Relations Commission under the Labor Codeb. Civil Service Commissionc. Central Board of Assessment Appealsd. Court of Tax Appeals and Quasi-Judicial Agenciese. Regional Trial Courts and lower courts

III. Concurrent Jurisdiction with the Court of Appeals and the RegionalTrial Courts overa. Petitions for habeas corpus and quo warrantob. Petitions for issuance of writs of certiorari, prohibition, and mandamus

against the lower courts or bodies

IV. Concurrent Jurisdiction with the Regional Trial Courts overa. Actions affecting ambassadors and other public ministers and consuls

B. Supreme Court has appellate jurisdiction over:I. Notice of Appeal

a. From the Regional Trial Courts or the Sandiganbayan in all criminalcases involving offenses for which the penalty imposed is reclusion

perpetua, life imprisonment or death, and those involving otheroffenses which, although not so punished, arose out of the same

concurrence or which may have been committed by the accused on thesame occasion

b. Automatic review in criminal cases where the Regional Trial Court orthe Sandiganbayan imposes the death penalty

II. Petition for review on Certiorari over:a. Appeals from the Court of Appealsb. Appeals from the Sandiganbayan on pure questions of law, except

cases where the penalty imposed is reclusion perpetua, lifeimprisonment or death

c. Appeals from the Regional Trial Courts exercising original jurisdiction in

the following cases:c-1. If no question of fact is involved and the case involves:


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- Constitutionality or validity of treaty, international or executiveagreement, laws, presidential decree, proclamation, order,instruction, ordinance or regulation

- Legality of a tax, impost, assessments or toll or penalty inrelation thereto

- Jurisdiction of lower courtsc-2. All cases in which only errors or questions of law are involvedc-3. Special Civil Action of Certiorari filed within thirty (30) days withthe:

- Commission on Elections- Commission on Audit

COURT OF APPEALS

A. The Court of Appeals has original:I. Exclusive Jurisdiction over:

- Actions for annulment of judgements of Regional Trial Courts

II. Jurisdiction over:- The issuance of writs of certiorari, prohibition, mandamus, habeas

corpus, and quo warranto, and auxiliary writs or processes, whether ornot in aid of its appellate jurisdiction

III. Exclusive Appellate Jurisdiction over- All final judgements, decisions, resolutions, orders or awards of the

Regional Trial Courts and Quasi-Judicial agencies, instrumentality,

boards or commissions, including the:a. Securities and Exchange Commissionb. Social Security Commissionc. Employees Compensation Commissiond. Civil Service Commission

Except those falling within the appellate jurisdiction of the SupremeCourt in accordance with the Constitution, the Labor Code of thePhilippines, the provisions of Batas Pambansa Blg. 129, and ofsubparagraph (4) of the fourth paragraph of Section 17 of the JudiciaryAct of 1948

REGIONAL TRIAL COURT

A. The Regional Trial Court has exclusive jurisdiction:1. In all civil actions in which the subject of the litigation is incapable of

pecuniary estimation2. In all civil actions which involve title to, or possession of, real property,

or any interest therein, where the assessed value of the propertyinvolved exceeds twenty thousand pesos (P 20,000.00) or, for civilactions in Metro Manila, where such value exceeds fifty thousandpesos (P 50,000.00) except actions for forcible entry into and unlawfuldetainer of lands or buildings, original jurisdiction over which is

conferred upon the Metropolitan Trial Courts, Municipal Trial Courts,and Municipal Circuit Trial Courts


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3. In all actions in admiralty and maritime jurisdiction where the demandor claims exceeds two hundred thousand pesos (P 200,000.00)1 or inMetro Manila where such demand or claim exceeds four hundredthousand pesos (P400,000)

4. In all matters of probate, both estate and intestate, where the gross

value of the estate exceeds two hundred thousand pesos (P 200,000)or, in probate matters in Metro Manila, where such gross valueexceeds four hundred thousand pesos (P 400,000)

5. In all actions involving the contract of marriage and marital relations.6. In all cases not within the exclusive jurisdiction of any court, tribunal,

person or body exercising jurisdiction of any court, tribunal, person orbody exercising judicial or quasi-judicial functions

7. In all civil actions and special proceedings falling within the exclusiveoriginal jurisdiction of a Juvenile and Domestic Relations Court and ofthe Court of Agrarian Relations as now provided by law; and

8. In all other cases in which the demand, exclusive of interest, damages

of whatever kind, attorney's fees, litigation expenses, and costs or thevalue of the property in controversy exceeds two hundred thousandpesos (P 200,000) or, in such other cases in Metro Manila, where thedemand, exclusive of the above-mentioned items exceed four hundredthousand pesos (P 400,000).

B. The Regional Trial Court has appellate jurisdiction over all cases decidedby the:1. Metropolitan Trial Courts2. Municipal Trial Courts3. Municipal Circuit Trial Courts within their respective territorialjurisdiction

METROPOLITAN TRIAL COURTS, MUNICIPAL TRIAL COURTS

A. Exclusive Original Jurisdiction1. Over civil actions and probate proceedings, testate and intestate,

including the grant of provisional remedies in proper cases, where thevalue of the personal property, estate or amount of the demand doesnot exceed two thousand pesos (P 200,000) or, in Metro Manila, wheresuch personal property, estate or amount of the demand does not

exceed four hundred thousand (P 400,000), exclusive of interest,damages of whatever kind, attorneys fees, litigation expenses andcosts, the amount of which must be specially alleged; Provided, thatinterest, damages of whatever kind attorneys fees, litigation expenses,and costs shall be included in the determination of the filing fees;Provided further, that where there are several claims or causes ofactions between the same or different parties, embodied in the samecomplaint, the amount of the demand shall be the totality of the claims

1B.P. Blg. 129 as amended by R.A. No. 7691, approved on March 25, 1994, provides that After five (5) years from

effectivity of R.A. No. 7691, the jurisdictional amounts mentioned in Section 19 (3), (4), and (8); and Section 33 (1) ofB.P. Blg. 129, as amended by R.A. No. 7691, shall be adjusted to two hundred thousand pesos (P 200,000). Fiveyears thereafter, such jurisdictional amounts shall be adjusted further to three hundred thousand pesos (P 300,000);

Provided, however, that in the case of Metro Manila, the above-mentioned jurisdictional amounts shall be adjustedafter five (5) years from the effectivity of R.A. No. 7691 to four hundred thousand pesos (P 400,000).


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in all the causes of action, irrespective of whether the causes of actionarose out of the same or different transactions

2. Over cases of forcible entry and unlawful detainer; Provided, thatwhen, in such cases, the defendant raises the question of ownership inhis pleadings and the question of possession cannot be resolved

without deciding the issue of ownership, the issue of ownership shallbe resolved only to determine the issue of possession

3. In all civil actions which involve title to or possession of, real property,or interest therein where the assessed value of the property or interesttherein does not exceed twenty thousand pesos (P 20,000) or in civilactions in Metro Manila, where such assessed value does not exceedfifty thousand pesos (P 50,000) exclusive of interest, damages ofwhatever kind, attorneys fees, litigation expenses and costs; Provided,that in cases of land, not declared for taxation purposes, the value ofsuch property shall be determined by the assessed value of theadjacent lots

B. Delegated Jurisdiction

As may be assigned by the Supreme Court to hear anddetermine cadastral or land registration cases covering lots where there is nocontroversy or opposition or contested lots where the value of which does notexceed one hundred thousand pesos (P 100,000), such value to beascertained by the affidavit of the claimant or by agreement of the respectiveclaimants ifthere aremore than one or from the corresponding tax declarationof real property.

BASIC ELEMENTS OF PROCEDURE

1. Right

The right must be violated so that an obligation shall arise or acause of action shall exist.

A legal obligation arises from law, contract, quasi-contract, delictor quasi-delict.

A cause of action is the wrongful act or omission committed bythe defendant in violation of the primary rights of the plaintiff. The elements ofwhich are as follows:

a. a legal right on the part of the plaintiffb. a correlative obligation of the defendantc. an act or omission of the defendant in violation of a legal right

2. Real Party in Interest

It is the party who would be benefited or injured by thejudgement. It is one who has an actual or substantial interest in the subject

matter of the suit as distinguished to one who has only a nominal interest. A


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case filed by a party other than a real party in interest has no standing and willbe dismissed for lack of cause of action.

3. Jurisdiction

It is the power or capacity given by the law to court or tribunal toentertain, hear, and determine certain controversies. Jurisdiction may beexercised over:

a. the subject matter of the casethe authority of the court to hear and decide a particular class of

action

b. the party to the casethe power of the court to bind the parties to its orders and

judgements

c. the issues of the casethe power of the court to decide the issues raised in the pleadings

d. the RES (subject of the litigation)the power of the court to dispose a thing that is the subject of thelitigation

SUBJECT MATTERTHE PARTY IN THE

CASE

THE ISSUEIN THECASE

THE RES

SOURCE It is derived from law (e.g.Constitution, JudiciaryReorganization Act, RA7691). It is vested by lawupon a court. It cannot be asubject of contractualstipulation.

proper service of summons(note: In the case of plaintiff,the court acquiresjurisdiction over his personthe moment he files thecase. In the case of thedefendant, it is upon properservice of summons.)

the allegationsand counter-allegations inthe pleadings

the actualphysical orconstructivecontrol of thecourt over thething

EFFECT General Rule: If the court didnot have jurisdiction over thesubject matter of the case,then the entire proceedingswould be null and void.Exceptions: a) Doctrine ofEquitable Estoppel(jurisdiction) In the case ofTijam vs Sibonghanoy, theCourt held that where aparty to a case knowinglyasserted his claim in a courtwhich has no jurisdictionover the subject matter ofsuch claim, such party willnot be allowed later on toassail the jurisdiction of thetrial court if and when heloses in the proceedings. b)

If a case is filed before theMTC and it is later onappealed in the RTC on the

If the court has nojurisdiction over the party,that party is not bound tofollow or obey the orders orjudgement of the court.

Technically,the courtcannot resolveissues thatwere notraised by theparties.However,under thepresent rules,the court canresolve issuesthat aredirectly relatedto the issueraised in thepleadings.

If the court hasno jurisdictionover the thing,it will not beable to disposethe thing andthe casebecomes moot.


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sole issue of jurisdiction overthe subject matter, the RTCwill (if it finds the appeal tobe meritorious) set aside thejudgement as if the casewas filed for the first time inthe RTC.

HOWDETER-MINED

It is determined by a readingof the allegation in thecomplaint

It is determined by thesheriffs return indicatingproper service of summons.[Note: If there is a voluntaryappearance on the part ofthe defendant before thecourt, service of summons isno longer required. There isvoluntary appearance by: a)actual physical appearance;b) if the defendant should filea pleading asking for anaffirmative relief.] However,the filing of a motion to

dismiss does not waive therequirement of summons inas much as the motion todismiss contains only prayerfor negative relief.

It isdetermined bythe reading ofthe allegationsin thecomplaint andthe answer.

It is determinedby the actual,physical orconstructivecontrol of thecourt over thething.

CIVIL PROCEDURE

Complaint is Summons is served Answer is Pre-trialfiled by the by the sheriff to the filed by the Conference

plaintiff defendant defendant

Execution Post-judgement Judgement Trial on theRemedies Merits

Real Property Disputes

Ownership Interest in or encumbrance upon Possession

e.g. accion reinvindicatoria, e.g. cancellation of mortgage, fore- exceeds hasnotreconveyance suit, action to closure of mortgage, action for 1 yearexceedcancel title, action to quiet easement of right of way, partition, 1yeartitle, reversion suit, etc. etc. e.g.e.g.

accion

eject- publicianament


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Other Real Property

Within Metro Manila Outside Metro Manila

MTC < P 50,000.00 < RTC MTC < P 20,000.00 < RTC

Money Claims, Recovery of Personal Property

Within Metro Manila Outside Metro Manila

MTC < P 400,000.00 < RTC MTC < P 200,000.00 < RTC

Joinder of Causes of Action

A party may join as many causes in one action, provided suchcauses involve the same parties. In other words, joinder of causes is allowed,provided, there is also joinder of parties.

If there is a misjoinder of parties and several causes are joinedin an action, the litigation will be protracted unnecessarily.

A misjoinder of parties is a procedural error. However, it is not a

ground for the dismissal of the case. The remedy of the misjoined party is tofile a motion for a separate trial of the cause of action against him or to file amotion to be dropped as a party so that the plaintiff can institute a separateaction against him. A party may be dropped or added at the discretion of thecourt.

Misjoinder of parties is not a jurisdictional error. Hence, themisjoined party must immediately question the improper misjoinder of causes;otherwise, any defects are cured.

Totality Rule

For purposes of determining the jurisdictional amount involved ina case, all the damages claimed, whether actual, moral or nominal, etc., plusattorneys fees are added. If there is a joinder of parties, then the totality of allthe claims of the party/ies are obtained. However, the amount will not includefuture interest and other unliquidated amounts.


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Parties to an Action

Natural Juridical Class Representative Entity

w/oPerson Person Party PartyJuridicalPersonality

Partnership Corporation State Agent Trustee

Public Private

created under created underSpecial Law General Corp. law

Domestic Foreign

authorized not authorizedto do busi- to do businessness in the in the Phils.Phils.

Parties from the Point of View of Importance

Real Party in Interest Indispensable Party NecessaryParty

A real party-in-interest has a direct and actual interest in thecase; it is a party who will be benefited or prejudiced by the judgement. Everysuit must be brought for and in behalf of a real party-in-interest.

An indispensable party is a real party-in-interest; he must beimpleaded; otherwise, the case cannot proceed. Failure to implead anindispensable party is a fatal error.

Necessary party is a mere nominal party; he may or may not beimpleaded. A necessary party is impleaded only to give a complete relief to allthe parties.

Natural Persons

a. In the case of minor, their legal guardian must be joined in the suit;

incompetent persons are treated just like minors.


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b. In the case of married persons, they should be joined with their spouse,except in suits involving the exclusive property of each spouse.

State

The State has the right to sue but it can only be sued with itsconsent (Doctrine of State Immunity). However, in the following instances,State immunity is deemed waived:a. if there is an express waiver of the State as when the State files the suit, it

opens itself to a counterclaimb. if there is an implied waiver, as when the State enters into an ordinary

commercial contract, then it descends to the level of an individualc. if there is a specific law allowing the State to be suedd. if it would be inequitable for the State to raise the defense of immunity, as

was held in the case of Aberca vs Ver

Note: Although State immunity can be waived, it does not follow that Stateproperty can be the subject of execution. It is illegal for the Stateproperty to be executed as it will violate the constitutional provision thatall public property can only be disposed in accordance with law.

Corporations

A foreign corporation not registered to do business in thePhilippines can only sue in Philippine Courts on the basis upon isolatedtransaction (a transaction not recurring).

Class Suit

This is an exception to the requirement that all indispensableparties should be impleaded in the action.

Elements of a Class Suit1. the subject matter must be of common interest2. the parties are so numerous that it would be impracticable to bring them all

to court

3. a sufficiently qualified representative brings the suit

A class suit is based primarily on common injury, the absence ofwhich is fatal to the suit.

In the case of Newsweek vs CA, the Supreme Court held that alibel suit that was brought for and in behalf of several sugar planters againstNewsweek for damages to their reputation arising from alleged libelouspublication, may not be brought as a class suit because every sugar planterhas his own reputation. There was held to be no common interest.

However, in the case of Sulo ng Bayan vs Araneta, the SupremeCourt held that there was a common interest considering that the members of


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the class sought to be represented will suffer a common injury from the acts ofthe defendant of driving them away from their place of residence.

Entity without Juridical Personality

Under the present law, a group of persons commonly known tobe doing business as a group but without juridical personality may be suedunder the name by which they are known. The law, however, requires thedefendants to identify and give the address of the other defendants when theyfile their answers.

Splitting a Cause of Action

Several actions are brought for several elements or parts of asame cause. Splitting a cause of action will violate the following:

a. the prohibition against forum shoppingb. the rules on litis pendentiac. the rule on res adjudicata

There is forum shopping when several cases are prosecutedbefore several courts or agencies on the same issue.

Forum shopping is penalized by the dismissal of all the casesand disciplinary action against the legal counsel.

There is litis pendentia when a case is filed for a cause of action

that is being litigated in another pending case. If there is a litis pendentia, oneof the cases may be pleaded in abatement of the other.

There is res adjudicata if a case has been finally decided andthe judgement has become final and executory. The judgement shall bind allthe parties and their successor-in-interest. All the matter and issues betweenthe parties can no longer be questioned in another proceeding between them(law of the case). Hence, if an action is brought for an issue that is consideredres adjudicata, the suit shall be dismissed.

Venue

Criminal Law Civil Law

Jurisdictional Procedural

Real Action Personal Action

Venue is the place where an action is instituted.


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Venue is jurisdictional in criminal cases. This means that thecriminal case must be instituted in the place where the offense wascommitted; otherwise, the proceedings will be null and void.

In civil cases, venue is merely a procedural requirement. Thismeans that if improper venue is not assailed seasonably via motion todismiss, then the defect is deemed waived or cured.

Improper venue is a procedural defect that must be assailed assoon as possible. If it is not corrected on time, it can no longer be questionedon appeal.

Real Actions

It is any action that involves the recovery of ownership, interest

in, encumbrance upon or possession over real property.

In real actions, venue is laid where the property is located; if thereal property is found in several places, venue may be laid in any of theplaces where a portion thereof is located.

An action for rescission of a contract that would have the effectof conveying real property is a real action.

Personal Actions

A personal action is any action other than real.

In personal action, venue is laid down as follows:a. where the parties are residence of the Philippines:

- it is the place of residence of the plaintiff; or- it is the place of residence of the defendant; or- if there is a stipulation on venue in an agreement and the stipulation is

not exclusive and restrictive, then the place stipulated can also be avenue

Note: If the stipulation is exclusive and restrictive, then the venue can only

be laid in the place stipulated.b. where one of the parties is a non-resident of the Philippines:

- place where the non-resident can be found- where one is involve in a quasi in rem, it is the place where the

property of the defendant can be found or the residence of the plaintiffc. special rules

- In the case of Polytrade vs Blanco, the Supreme Court held that if acontract exclusively stipulates a venue, then it will bar any suit that isinstituted in another place not stipulated. The contract, however, musthave been fairly and freely agreed upon.

- In the case of Sweet Lines vs Teves, the Supreme Court held that

where the contract involved is a contract of adhesion and the subjectmatter thereof is affected with public policy, an exclusive and restrictive


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stipulation as to venue is considered null and void as it will deprive aparty of his day in court.

accion pobliciana, ejectment quasi in rem proceedings

Real Action(venue)

Personal Action(venue)

In Rem Proceeding(binding effect)

In Personam Proceeding(binding effect)

land registration proceedings almost all actions

In Rem Proceedings (binding effect of judgement)

The defendant in an in rem proceeding is theoretically the entireworld and the general public; summons is served normally via publication.(e.g. land registration proceedings, settlement of estate, naturalization, etc.)

In Personam Proceedings

Only the parties who were properly summoned are bound by theaction. Generally, almost all types of actions are in personam. Summons is

served via:a. personal serviceb. substituted servicec. extra-territorial service

Quasi In Rem Proceedings

Quasi in rem

recovery of money or property actions concerning personal statusor family relations

a. properties of the non-resident defendant a. extra-territorial service of summonsmust first be attached by the court (by publication)

b. the court shall allow extra-territorialservice of summons (by publication)

In quasi in rem cases, the defendant is a non-resident always.Hence, the court is unable to serve summons personally. The remedy is forextra-territorial service of summons to be effected.


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There are two types of quasi in rem cases, the first concernsrecovery of property or money and the second type involves personal statusand family relations. In the first type, a prior attachment of the property foundin the Philippines of the absent defendant is required before extra-territorialservice of summons could be allowed. Attachment insures that the

proceedings will not be an exercise of futility, as there will be propertiesavailable to satisfy a favorable judgement for the plaintiff.

Duty of a Lawyer if his Client Dies

In case a party should die, the counsel concerned is required tonotify the court of such fact within thirty (30) days from the time of death.

Effect of Death

Plaintiff Defendant

Purely Personal Action case is dismissed case is dismissed

Action for Recovery ofProperty or Money

substitution of parties substitution of parties

Substitution

administrator/executor of the estate heirs of the deceased

Complaint Summons Answer Pre-trial Trial Judgement Post-Execution

judgement

allegation 1--------issue-------counter-allegation 1 evidence isallegation 2--------issue-------counter-allegation 2 receivedallegation 3--------no issue

Pleadings

Primary Pleading Secondary Pleadinge.g. complaint, answer, etc e.g. motions


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Pleadings

It refers to a collective noun that refers to all the documents orrelated papers that are filed by the parties in court.

Pleadings are of two types. The first one is called the primarypleading. This is a pleading that is filed by a party on the main case. (e.g.complaint, answer, petition, third party complaint, complaint in intervention,etc.)

The reliefs prayed for in the primary pleadings are either grantedor denied in the judgement. The primary pleading contains the primary actionsor the defense of the complaint.

The second type of pleadings are called the secondarypleadings. These are pleadings that pray for remedies concerning incidental

matters. (e.g. motions, manifestations, etc.) Generally, the remedies prayedfor in the secondary pleadings are either granted or denied by the court in aninterlocutory order.

Basic Rules for Pleadings

1. What is alleged, can be proved.2. What is not alleged can not be the subject of proof.

Note: However, if evidence is objectionable but the opposing party fails toassail the evidence on time, such evidence will be admitted.

3. All the necessary allegations must be stated; otherwise, they are deemedwaived.

4. Only the ultimate facts must be stated in the pleadings.Note: An ultimate fact refers to the very basic element of the cause of

action or defense of any party.

Defenses in Litigation

Effective Defense Defective Defense

Affirmative Defense Valid Negative General Silence Negative AnActionable

Defense Denial PregnantDocument

that isnot

properlydenied

Affirmative Defense


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It is a defense that admits hypothetically the allegation in thecomplaint but at the same time raises a valid legal justification to defeat theclaim. (e.g. prescription, violation of the statute of fraud, condonation, legalmerger, payment, etc.)

Valid Negative Defense

It consists of a denial that is specific. A denial is specific, if theparty states the reasons, facts, and/or circumstances as the basis for thedenial. A valid denial must traverse the points raised in the allegations.

A denial based upon lack of knowledge sufficient to form a basisto determine the validity of the allegation is permitted. It is still considered avalid denial.

General Denial

A general denial is a plain denial that alleges nothing specific byway of facts and/or circumstances. It will result in an admission of theallegation in the complaint.

Silence

Self-explanatory. It will also result in an admission.

Negative Pregnant

It denies the peripheral or subsidiary aspect of the allegation butit fails to deny the main substance of the allegation. It also results in anadmission.

Actionable Document

An actionable document is the document that is the very basis of

the cause of action. (e.g. Bounced check in a collection case)

As a rule, whenever an actionable document is alleged in apleading, it must be specifically denied under oath in the opposing pleading.This is done by having the answer notarized or attaching an affidavit of denialto the answer. If there is failure to deny under oath the actionable document,the genuineness, authenticity and due execution of the document is deemedadmitted. The exceptions to the rule are:1. If the party who is required to make the denial is not a party to the

instrument (res inter alios acta atters nec). This rule is based on theprinciple of res inter alios acta which means that a party will not be

prejudiced by the acts of another.


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2. If the party who alleged the actionable document refuses to allow theopposing party to inspect the document after the court has previouslygiven an order to allow inspection.

Default (A Process)

Complaint15 days from receipt of

summons to file the answer

Summons

Answer Answeris filed is not filed

upon motion of the

plaintiff

Pre-Trial Court issues anorder of default

Trial on theMerits

Court to render Court mayrequire

judgement based thepresentation of

Judgement on the pleadings evidence ex-parte

(summary)

Post-judgement

Execution Judgement by default

Consequences of an Order of Default

The defendant loses his standing to participate in theproceedings (e.g. cannot cross-examine witnesses; cannot present evidence

etc.). However, the defendant is still required to be served with copies of allthe pleadings or orders.

Remedies of a Default Defendant


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Motion to Declare Order of JudgementDefendant in Default Default by Default

1. file an answer 1. Motion to lift the order of 1. Appeal2. file a motion or opposition to default on the grounds of: 2. Motion for New

Trialthe motion to declare defen- a. fraud 3. Motion for

Reconside-dant in default b. accident ration

c. excusable neglect 4. Rule 38 Petitionfor

d. mistake Relief

and that the defendant 5. Rule 47Independent

has a meritorious defense Action to AnnulJudge-

ment6. Rule 65 Certiorari

Under Summary Procedure

filed

Complaint Summons Answer is filed is served

not filed

Court can motu propiorender

judgement based on thepleading

Instances when Default is not allowed

1. Petitions to Declare the Nullity of Marriage2. Petitions for Legal Separation

Note: This is so because the State is an interested party in marriage.Hence, collusion is prohibited. In the above cases, in the event thatthe other spouse fails to oppose, the State will intervene.

Notes on Default


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1. In those cases falling under the regular procedure, a motion to declaredefendant in default must first be filed by the plaintiff before the court canissue an order of default.

2. However, in those cases falling under summary procedure (e.g. ejectmentcases, claims not exceeding P 10,000.00), the court can motu propio

render a judgement based on the pleadings if the defendant did not file hisanswer within the 10 day period.

3. The time to file an answer is as follows:a. for cases falling under the regular procedure, 15 days from receipt of

summonsb. for foreign corporation with a local agent, 30 daysc. where summons was served via extra-territorial service (by

publication), 60 daysd. for cases under the summary procedure, 10 days from receipt of

summons4. Once the court issues an order of default, the defendant loses his standing

to participate in the proceedings. However, he is still entitled to notice.5. The defendant may avert being defaulted by filing an answer promptly

before he received an order of default.6. The defendant can file a motion to lift the order of default provided that no

judgement of default has been rendered. Such a motion is based on theground of extrinsic fraud, accident, mistake, excusable neglect andprovided that the defendant has a meritorious defense. After the defendantreceived the judgement by default, he may avail any of the post-judgementremedies.

7. In case the defendant is declared in default, the court may choose any ofthe following:a. render a judgement based on the pleadingsb. require the plaintiff to present evidence ex-parte on the theory that the

interest of justice will be best served if evidence is presented.8. A judgement by default is not necessarily in favor of the plaintiff. If the

allegations in the complaint are insufficient or the evidence ex-parte islikewise insufficient, the court will dismiss the case.

Analogous Cases of Default

At the pre-trial conference, the plaintiff and the defendant areboth required to appear together with their counsel.

If the plaintiff fails to appear or his lawyer appears withoutauthority, the defendant can orally move the court to declare the plaintiff asnon-suited. Furthermore, the court will allow the defendant to presentevidence ex-parte on his counterclaim.

If the defendant fails to appear or his lawyer appears withoutauthority, the plaintiff can orally move the court to declare defendant as indefault. Furthermore, the court will allow the plaintiff to present evidence ex-

parte.


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Note: The party who is declared non-suited or in default may file a motion forreconsideration so that the order will be set aside.

as to form (e.g. clerical mistakes) Note: may be made any timeas amatter of right

Amendmentsto pleadings

if it changes the cause of actionas to substance

if it changes the theory of thedefense

amendment may only bemade with leave of court

after receipt

Time of receipt of responsive pleading Pre-trialt

amendment will be

restrictive;before receipt it will only be allowed if

amendment is meritorious

amendment may be madeas a matter of right

Notes on Amendments to Pleadings

1. A formal amendment refers to the correction of typographical errors.These are amendments that can be done any time as a matter of right.

2. A substantial amendment has the effect of altering or changing the theoryof the case, cause of action, defenses, etc. Substantial amendments maybe done as a matter of right before receipt of the responsive pleadingsought to be amended. After receipt of the responsive pleading, anamendment could only be done with leave of court.Note: Generally, after pre-trial, amendments are seldom allowed except if

the amendment is meritorious.

3. How to make amendments?


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The amended pleading must contain all the amendmentsproperly underlined. Once admitted, the amended pleading supersedesthe previous pleading.

4. Amendments to conform with the evidenceIf during the trial, evidence was admitted but which evidence

does not prove any allegation in the pleading, the court may allow thepleading to be amended to conform to the evidence presented.

5. Amendments that cannot be permitted are:a. an amendment that cures a jurisdictional defect; an amendment that

purports to confer jurisdiction upon the court, where none existed beforeb. where amendment is for dilatory purposesc. where amendments will alter the cause of action or the defense to the

prejudice of the opposing party (e.g. if the amendment is sought to bemade after the other party has already presented his evidence)

6. Amendments as compared to supplementsAn amendment supplants and replaces the pleading that was

amended, while a supplemental pleading is considered as an appendix orannex to the previous pleading. (e.g. bill of particulars)

Service

of notices, pleadings, of summonsorders (NPO)

personal service personal service

service by mail substituted service

substituted service extra-territorial service

by publication by mail other means

Some Basic Points with respect to Service

1. If a counsel represents a party then service to counsel is service in law

and service to the party is not service under the law.2. A counsel of record remains as counsel until he withdraws.

Service of Notice, Pleadings, and Orders

a. Personal Service of NPO

It is done by giving a copy personally to the party or if he isrepresented by a counsel, to his counsel. A copy of the NPO may be left atthe partys residence or principal office between the hours of 8:00 a.m. to 6:00

p.m. with a person of sufficient age and discretion who is in charge of theoffice.


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b. Service by Mail of NPO

If personal service could not be effected or there is greatdifficulty in pursuing personal service, service by mail may be allowed.

However, the party making the service by mail is required to prepare a writtenexplanation as to why personal service could not be effected. This explanationmust be contained in the pleading to be served.

Service by mail could be done through registered mail orordinary mail. If it is done by a registered mail, there must be an instruction tothe postmaster to return the parcel to the sender after 10 days if undelivered.If service is done by ordinary mail, the party making the service is required toprepare an affidavit of service indicating the circumstances as to how the mailmatter was sent.

The proof of service for registered mail is the return card; andthe proof of service for ordinary mail is the affidavit of service.

In the case of Gabas vs CA, the Supreme Court held that theday of mailing is considered as the day of filing, provided that the mail matterwas actually received.

c. Substituted Service of NPO

This is done only if there is a failure of personal service andservice by mail. In substituted service, the copy of what is to be delivered willbe sent to the clerk of court with proof of failure of personal service andservice by mail.Note: This does not cover judgements that are required to be delivered

personally or by mail. In those instances, where summons waspublished, the judgement is also required to be published.

Summons

It is defined as a process (because if a case is filed summons isautomatically issued) that is issued by the court against a defendant in apending case. The purpose of summons is to inform the defendant of thepending case against him and that he is being given a reasonable period oftime within which to file his answer; otherwise, the proper steps may be takenfor judgement by default against said defendant. Summons is served by thecourt to enable it to acquire jurisdiction over the person of the defendant.

a. Personal Service of Summons

This is done by the sheriff who delivers a copy of the summonsand the complaint to the defendant in person. If the defendant refuses toreceive the summons, the sheriff can tender summons upon said defendant

and in the sheriffs return that is prepared, the sheriff can state that the tender


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was made. If there was proper service of summons, then the service isdeemed complete.- Service of summons upon domestic juridical entities

Under the present law, summons must be served only upon thepresident, managing partner, general manager, corporate

secretary, treasurer or in-house counsel.- Foreign Juridical Entity

Summons could be served upon the designated agent in thePhilippines of such foreign entity.

- Republic of the Philippines or any of its agenciesSummons must be served upon the Office of the SolicitorGeneral. In case the defendant is a local government unit,service of summons could be effected upon the Chief Executiveof the Local Government Unit.

- Where the defendant is unknown but is a residentWhere the whereabouts of the defendant could not be

determined, under the present law, publication of summons maybe allowed. Apparently, the present law applies this even toresident defendant.Justice Feria opines that publication of summons against aresident defendant, whose whereabouts could not be located, isvoid as it deprives the defendant of his right to due process andto his right to a day in court. In a long line of cases decided bythe Supreme Court, notably the case of Citizens Surety vsMelencio-Herrera, the Supreme Court has ruled that publicationof summons is only justified if the defendant is a non-resident.The burden, therefore, falls upon the plaintiff to look for thedefendant.

- Where the defendant resident is temporarily out of the Philippinespublication of summons is also allowed, but again, this is subject toexception in the preceding paragraph.

b. Substituted Service

This is done by the sheriff only if there is failure of personalservice of summons despite diligent efforts. It is done by leaving a copy of the

summons and the complaint with a person of sufficient age and discretion,who resides in the place or is in-charge of the office.

c. Extra-territorial Service of Summons

This is allowed only if there is a showing of failure of personal orsubstituted service despite diligent efforts. Furthermore, it is only permissibleif the defendant is a non-resident. It has three modes:- by publication in a newspaper of general circulation- by sending registered mail to the last known address of the defendant- any other means convenient to the court


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Extra-territorial service is also known as the long arm statutebecause it enables a local court to acquire jurisdiction over a person who isresiding outside of the territorial jurisdiction of the trial court.

Extra-territorial service is a legal fiction and it is intended to

enable the defendant to acquire knowledge of the pending suit. It is part ofdue process.

Extra-territorial service is required in quasi in rem cases. Theperiod to file an answer shall not be less than 60 days from the date of lastpublication.

Defect in the Service of Summons

The defendant may question the failure of the court to acquire

jurisdiction over his person by filing a motion to dismiss. Such motion will notwaive the defect in the service of summons because the motion to dismiss onthe ground of lack of jurisdiction is a negative defense.

Failure or defects in the service of summons, however, can becured by voluntary appearance that may take any of the following form:a. if the defendant files a motion that prays for an affirmative relief (i.e. a

motion that requires the plaintiff to do something)b. if the defendant physically appears in courtc. if the defendant files another action before another court to restrain the

trial court in question

Summons can only be served by the sheriff of the branch thatissued the summons. However, a motion for special sheriff may be filed forthe purpose of enabling the court to deputize another sheriff, a peace officeror a government agency to serve summons.

Notice ofLis Pendens

It refers to the notice annotated in the certificate of title that is onfile with the Registry of Deeds. It is a notice that warns the general public of apending litigation involving the property. Anyone who buys the property buys itat his own risk subject to the outcome of the litigation. In effect, a notice of lis

pendens operates as a notice to every one.

Mechanics of Annotation

1. The complaint for the recovery of real property is filed in court.2. A copy of the complaint together with a formal request for annotation is

submitted to the Registry of Deeds.3. The annotation fee is paid.4. The annotation is then made.

How a Notice is lifted?


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A motion to lift the notice of lis pendens must be filed in court. Ifthe court grants the motion then the notice is lifted.

Effects of the Notice

1. The notice is considered as a summons to the general public.2. The notice is treated just like any other encumbrance; hence, it is superior

to those who are registered after it, but inferior to those who are registeredbefore it.

CLAIM P 1M COMPLAINT IN THIRD PARTY

F A vs B C D E INTERVENTION CROSS CLAIM COMPLAINT

P 1M

COUNTERCLAIMP 1M

A,Plaintiff,

-versus-

B,C,D,Defendant.

x-----------------------------x

D,Third Party Plaintiff,

-versus-

E,Third Party Defendant.

x----------------------------------------x

F,

Intervenor,

-versus-

A,Defendant.

x-------------------------x

Counterclaim

Compulsory Permissive


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Compulsory Counterclaim

A compulsory counterclaim is a claim of the defendant againstthe plaintiff that arises out or is connected to the same fact, act, transaction oroccurrence constituting the subject matter of the case that was filed by the

plaintiff.

A compulsory counterclaim must be filed or set up in theanswer; otherwise, it is barred and may not be claimed any more in asubsequent proceeding.Note: A compulsory counterclaim must be within the jurisdiction of the trial

court except in pure money claims where any amount may be counter-claimed in the RTC.

Permissive Counterclaim (Recoupment or Set-off)

A permissive counterclaim has no relation to the case that wasfiled by the plaintiff. By itself, it can be the basis of a separate andindependent action. It can only be set up if the court gives permission.

A permissive counterclaim is treated just like an ordinarycomplaint and therefore, the defendant who receives it is required to pay filingfees. Furthermore, the plaintiff is required to file an answer to the permissivecounterclaim by way of a reply; otherwise, the plaintiff could be declared indefault with respect to the permissive counterclaim. A permissivecounterclaim will not be allowed if it is outside the jurisdiction of the trial court.It is not barred even if it is not set up.

Cross Claims

It is a claim filed by the defendant against a co-defendant or bythe plaintiff against a co-plaintiff. The rule on compulsory counterclaim isapplicable to counterclaims.

Third Party Complaint

It is a claim that is brought by a party in an existing case againsta third party not previously impleaded. Normally, the subject of a third partycomplaint is reimbursement.

This subject to the discretion of the trial court and will not beallowed if it is inconvenient or beyond the jurisdiction of the trial court.

Intervention


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This takes place when a party not previously impleaded in thecase seeks to be joined as a party in litigation to protect his interest. Theintervenor is someone who has a direct interest in the pending action orsomeone who may be prejudiced by the outcome of the litigation. Intervention

is subject to the discretion of the trial court and will not be allowed if the causeof the intervenor is outside the jurisdiction of the trial court.

After-Acquired Counterclaim

It is technically a compulsory counterclaim that arises only afterthe answer was filed or it comes to the knowledge of the defendant after hefiled his answer.

If in the discretion of the trial court, the filing of the after-acquired

counterclaim will best serve the interest of justice, then the after-acquiredcounterclaim will be allowed through a supplemental answer. However, thedefendant may opt to file a separate action for the after acquired counterclaimwhich is not barred.

REPUBLIC OF THE PHILIPPINES


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REGIONAL TRIAL COURTNATIONAL CAPITAL JUDICIAL REGION

BRANCH ___MANILA

Norberto Manero,Plaintiff,

-versus- Case No. 007Civil Damages for

LibelPhilippine Daily Inquirer,

Defendant.x------------------------------------x

COMPLAINT

COMES NOW PLAINTIFF, by counsel and before this

Honorable Court, respectfully manifests:

1. Plaintiff is a resident of 123 C.M. Recto, Manila, where he may be served

with process. Defendant is a Newspaper Publishing Company with address

at 456 Edsa, Quezon City, where he may be served with summons.

2. On February 1, 2000, defendant published an article which reads: Manero

ate a priest [p.1, Annex A hereof];

3. The said article destroyed the reputation of plaintiff and exposed him to

public ridicule and causing plaintiff to suffer P 10 M in damages.

PRAYER

WHEREFORE, it is respectfully prayed that defendant be

condemned to pay plaintiff the amount of P 10 M as damages.

Respectfully submitted. Manila. February 14, 2000.

Counsel for Plaintiff(Sgd.)Atty. Mike VelardePTR No.IBP No.C.M. Recto, Manila

Certification Against Forum Shopping


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I, Norberto Manero after having been sworn hereby, depose and state:

1. that I caused the preparation of the foregoing complaint;

2. that all its contents are true and correct of my own personal knowledge;

3. that I have not filed any similar action or proceeding against defendant before any other

tribunal, agency or court;

4. that if I should know of any similar proceeding, I shall promptly inform the court thereof

within 5 days from knowledge.

Norberto Manero(Sgd.)

Affiant

BEFORE ME, a notary public, personally appeared the affiant who presentedhis Residence Certificate No. ____, which was issued on ______ at ______.

WITNESS my hand and seal, this _______ day of _______, 2000 at_______.

NOTARY PUBLIC

Doc No.Page No.Book No.Series of


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REPUBLIC OF THE PHILIPPINESREIONAL TRIAL COURT

NATIONAL CAPITAL JUDICIAL REGIONBRANCH ___

MANILA

Norberto Manero,Plaintiff,

-versus- Case No. 007Civil Damages for

LibelPhilippine Daily Inquirer,

Defendant.x------------------------------------x

ANSWER

COMES NOW Defendant, by counsel, and before this Honorable Court,

respectfully avers:

1. Defendant admits paragraph (1) of the complaint.

2. Defendant, however, denies the importance and meaning of Paragraph (2) of the

complaint the truth being that which is stated in defendants special defense hereunder;

3. Defendant also denies the validity of Paragraph (3) of the complaint for the same reason

stated in Paragraph (2) above;

4. By way of SPECIAL DEFENSES, defendant avers that:

What defendant wrote is that Manero ate the breast of the pig

The word Manero is generic and does not necessarily refer to a Norberto Manero

5. By way of COUNTERCLAIM, defendant avers that:

Defendant sustained damges to its reputation of P 100M as a result of the filing of this

suit

Plaintiff enjoyed Free Advertising for his restaurant named Manero Eats: Tinadtad

Special as a result of filing this baseless suit. This advertisement is worth at least P

5M.

PRAYER

WHEREFORE, it is respectfully prayed that the complaint be dismissed and

that plaintiff be ordered to pay for counterclaims as follows:

a. damages to reputation P 100M

b. free advertisement P 5M

Respectfully submitted. Manila. March 1,2000.

Atty. Ely Soriano(Sgd)Counsel for DefenseIBPPTR123, Manila

Parts of a Pleading


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1. Caption

It identifies all the parties in the case, the case number and thecourt where the case is pending.

2. Body

It contains all the allegations of the ultimate facts concerning thecase. The ultimate facts consist of the basic or bare facts constituting thecause of action or the defense.

3. The Petitory Portion

It contains all the remedies and the reliefs prayed for. In case ofconflict between the body and the petitory portion, the latter prevails. It is

normally use for purposes of computing the appropriate filing fees.Note: In the case of Manchester vs CA, the petitioner stated his claim in the

body but prayed for a lower amount in the petitory portion. The samewas considered in bad faith by the appellate court and it was held that itis as if the complaint was not filed.

4. Signature of a Lawyer

When a lawyer signs a pleading, the implications are a) it meansthat he has read the pleading; b) that there are good reasons to support thepleading; and c) the pleading was filed not because it was intended to cause

delay.

5. Certification Against Forum Shopping

An initiatory pleading will not be allowed or accepted in thedocket if it is not accompanied by the certification against forum shopping. Ifthere is no such certification, the defendant may file a motion to dismiss onthe ground of failure to comply with a condition precedent.

Preparation of the Answer

1. The answer must traverse all the allegations in the complaint to preventthe admission of any issue or fact.

2. All compulsory counterclaims must be set-up; otherwise, they will not beallowed to be claimed in future action.

3. The answer must be verified if an actionable document was attached orannexed to the pleading.

Manchester Doctrine


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In the case of Manchester Development Corporation vs Court ofAppeals, the Supreme Court held that if the correct filing fee is not paid, it isas if no pleading was filed and the court would therefore, have no jurisdictionover the case. The payment of docket fee was considered indispensable and

the only exception is in the case of a pauper litigant.

However, in the subsequent case of Sunlife AssuranceCorporation vs Honorable Judge Asuncion, the Supreme Court modified theManchester Doctrine and held that unpaid or deficient filing fee shall beconsidered as a lien on a favorable judgement. This means that the unpaidfiling fee must first be satisfied before any award given to the winning party.

REPUBLIC OF THE PHILIPPINESREGIONAL TRIAL COURT

NATIONAL CAPITAL JUDICIAL REIONBRANCH ___

MANILA

S. CUEVAS,Plaintiff,

-versus- Case No. 007Collection of a sumof money

J. BARRICAN,Defendant.

x------------------------------------x

MOTION

COMES NOW Plaintiff, by counsel and to this Honorable Court, respectfully

alleges:

1. During the hearing of this case on February 14, 2000, defendant testified under oath and

said Si Cuevas ay kalbo gaya ni Manero (p 239 TSN, February 14, 2000);

2. The aforesaid statement is irrelevant to the pending case and intended merely to

humiliate plaintiff;

3. Even if the statement is true, it does not prove or disprove the claim or defense of the

defendant;

4. There is a need to strikeout the same in the transcript of stenographic notes.

PRAYER

WHEREFORE, it is respectfully prayed that the subject statement be

expunged from the records.

Respectfully submitted. February 29,2000. Manila.


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Atty. Billy Balbastro (Sgd)Counsel for MovantPTR

IBP123 Recto, Manila

NOTICE OF HEARING

To Atty. Lolit SolisCounsel for Defendant

The Branch Clerk of Court

Regional Trial CourtBranch ___Manila

Greetings. Take note that counsel will submit the foregoing motion forhearing and consideration on March 15,2000, Friday, motion day, at 8:30 am.

Atty. Billy Balbastro(Sgd)

BEFORE ME, a Notary Public, personally appeared the affiant whopresented his Residence Certificate No. ________ which was issued on ______ at ________.

NOTARY PUBLIC

Doc No.Page No.Book No.Series of

RECEIVED BY


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ORDER

FINAL INTERLOCUTORY(appealable) (not appealable)

Litigated Non-litigated

MOTIONS

Oral Written

Any application for a court order is a motion. A motion is asecondary pleading. Generally, reliefs prayed for are merely interlocutory;however, there are some motions that may give rise to a final order. A motionto dismiss for instance, if granted, will result in a final order. However, anorder denying a motion to dismiss is merely interlocutory.

A final order is appealable while an interlocutory order is notappealable.

General Requirements for Motions

1. The requirement of Notice

A copy must be served on the opposing party by personalservice, if not possible, then service by mail. If service by mail is resorted to,there must be a written explanation stating the reason as to why personalservice could not be effected. There must be a proof of service to indicate thatnotice was given.

2. Three Day Rule

A copy of the motion must be served upon the opposing party atleast three (3) days before the scheduled hearing of the motion.

The exceptions to the three-day rule are:


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a) In the case of urgent motion, the three day rule can bewaived if there is a showing of an urgent necessity and provided themovant can explain the reason for urgency; and

b) In the case of motions for summary judgement, the requirednotice must be given ten (10) days before the hearing of the motion.

3. The motion must be properly scheduled for hearing

There must be an indication of the date and time of the hearing.

Consequences of Failure to Comply with the Requirements

If one of the requirements stated above is not complied with, themotion is considered as a mere scrap of paper and without legal effect or

validity.

Additional Requirements for Special Motions

1. In the case of motions for provisional remedies such as attachment,injunction, receivership, delivery of personal property, and support

pendente lite, the movant is also required to submit an affidavit of meritsplus the required bond.

2. In the case of motions for post-judgement remedies, the movant is alsorequired to submit an affidavit of merit.

3. In the case of motions for summary judgement, the movant is required to

attach all the pertinent affidavits and documents.

Litigated Motions

It is a motion that will prejudice the right of the opposing partiesand hence, there must be strict compliance with the requirements.

Non-litigated Motions

It is a motion that will not prejudice the substantial right of theadverse party and hence, the requirements are not strictly observed.

Oral Motions

Generally, oral motions are not allowed because our courts areconsidered as court of records. However, there are instances where oralmotions may be permitted:1. Motions for Continuance

Postponements may be prayed for orally for meritorious reasons.

However, dates fixed at the pre-trial order may not be cancelled orally.


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2. Motion to Declare Plaintiff as Non-suited or Motion to Declare Defendant inDefaultAt the pre-trial conference, an oral motion to declare the plaintiff as non-suited or the defendant in default may be entertained.

Omnibus Motion Rule

Under this rule, a movant is required to state all the possiblearguments concerning the subject of his motion; otherwise, any agreementnot stated is deemed waived.

However, this rule will not apply if the subject of the motion isjurisdiction of the court on the subject matter of the case because ajurisdictional matter may be asserted even after judgement.

DISMISSAL OF ACTIONS

Dismissal of Actions

Without prejudice With prejudice(sin perjuicio)

case can be refiled case can no longerbe refiled after theorder of dismissal hasbecome final andexecutory

A court order dismissing an action must state whether or not thedismissal is with prejudice. If the dismissal is with prejudice, the losing party

must either move for reconsideration or file an appeal during the periodavailable to file an appeal so that the dismissal will not become final andexecutory. Once the dismissal is final and executory, res judicata will set in.Note: There is res adjudicata if a case is dismissed with prejudice and it

involves the same parties, same cause of action, same issues, and anysubsequent case between the same parties may be barred if there isres adjudicata.


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How Actions are Dismissed

By notice on By motion on By motion on By the courtthe part of the the part of the the part of the due to the

faultplaintiff plaintiff defendant of the

plaintiff

A case may be dismissed by mere notice given to the court bythe plaintiff beforethe latter receives a copy of the answer. The dismissal is amatter of right and is sin perjuicio.

A second notice of dismissal of a similar case is considered asan adjudication on the merits and therefor with prejudice.

After the plaintiff has received the answer, the plaintiff can stillfile a motion to dismiss. However, the dismissal of the case will not include thecounterclaim of the defendant. Such counterclaim will continue to be litigated.Note: The correct remedy, therefore, is for the plaintiff to secure the consent

of the defendant to a dismissal that includes the counterclaim.

A case can also be dismissed by the court motu propio if there isan unreasonable delay on the part of the plaintiff to prosecute the action or by

the repeated failure of the plaintiff to present evidence. Dismissal under thisground is sin perjuicio. However, the court may issue an order for thedismissal with prejudice.

Complaint Summons Answer

Motion to Dismiss

Motion to Dismiss

It is one of the methods of cutting short or abbreviating litigation.It is used to test the sufficiency of the allegations in the complaint.

It is also use to test whether or not the cause of action in thecomplaint had been extinguished by condonation, prior payment orprescription

A motion to dismiss is use to win out patently unmeritoriouscases. It must be availed of during the same period to file an answer. Hence,

if an answer has been filed, a motion to dismiss must be based on the groundof lack of jurisdiction over the subject matter.


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Grounds for motion to dismiss are as follows:

1. no jurisdiction on the person of the defendant

2. no jurisdiction over the subject matter3. improper venue4. plaintiff has no legal capacity to sue5. litis pendentia (forum shopping)6. res adjudicata7. prescription8. the complaint does not state a cause of action9. the claim has been paid, waived, abandoned or extinguished10.the obligation is unenforceable11. failure to comply with a condition precedent (e.g. failure to undergo

barangay conciliation, if required; no certification against forum shopping;

etc.)

Hypothetical Admission Rule

For purposes of resolving the ground of whether or not thecomplaint states a cause of action, the court shall consider all the allegationsto be true and then determines if the allegations are sufficient.

The defendant is not allowed to present evidence on a motion todismiss. However, by way of exception, if the ground for the motion to dismiss

is that the claim has been paid, waived, abandoned or extinguished or whenthere is prescription the defendant is allowed to present evidence on a motionto dismiss.

Alternative to a Motion to Dismiss

The defendant may opt to file an answer and incorporate in hisanswer the grounds for a motion to dismiss. Thereafter, the defendant mayfile a motion for preliminary hearing of his special defenses and the sameshould be resolved just like a motion to dismiss.

If a motion to dismiss was filed, instead of an answer, and thesame was denied, the defendant would have the remaining period of time, butnot less than five days, to file his answer.

A motion to dismiss based on lack of jurisdiction or that theclaim has been paid, waived or abandoned, res adjudicata, prescription orunenforceability, if granted, the order is with prejudice.


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Summary Procedure

to render judgementbased on the pleading

Complaint Summons Answer Pre-trial Judgement

filed with to conduct athe MTC limited trial

Appeal to RTC..

Procedure Observed by Trial Courts

Regional Trial Court Municipal Trial Court

Regular Procedure Regular Procedure SummaryProcedure

1. Summary procedure was intended to speed up the litigation of smallclaims before inferior courts.

2. Coverage of summary procedure:a. In civil cases

All ejectment cases whether by forcible entry or unlawful detainer

irrespective of the back rentals or damages claimed.

All other civil cases except probate proceedings where the total claim

does not exceed P 10,000.00.

b. In criminal cases Violation of traffic laws

Violation of rental laws

Violation of municipal or city ordinance

All other criminal cases where the penalty of imprisonment does not

exceed six (6) months or fine not exceeding P 1,000.00 as to cases ofreckless imprudence resulting to damage to property covered bysummary procedure if the imposeable fine does not exceed P1,000.00.


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Exceptions to the Coverage of Summary Procedure

1. Summary procedure will not be applied if a cause of action, cognizableunder summary procedure, is pleaded with another cause of action

cognizable under regular procedure, in which case the regular procedurewould be applied to both cases.

2. In criminal cases, if the crime cognizable under summary procedure isnecessarily related to another offense charged which is covered by theordinary criminal procedure, the latter will be applied.

Characteristics of Summary Procedure

1. Only the complaint and the answer are allowed to be filed in court. Allother pleadings are prohibited except motion to dismiss on the ground oflack of jurisdiction over the subject matter and motion for preliminary

mandatory injunction in forcible entry cases.2. All pleadings must be verified, which means they must be sworn before

the notary public.3. The time to file the answer is only ten (10) days from the receipt of

summons.Note: By way of comparison, under the rules on regular procedure, there is

a need for a motion to declare the defendant in default to be filed,before the court can declare the defendant in default.

4. With respect to the consequences of failure to answer on time, under therules on summary procedure, the court may motu propio render judgementbased on the pleadings.

Note: In comparison to ordinary proceedings, a motion to declaredefendant in default must be filed. The court can not act motu

propio.5. Under the rules on summary procedure, the affidavits of the witnesses can

be presented and admitted as evidence under direct examination withoutthe necessity of requiring the affiant to testify on his affidavit.Note: By way of comparison, under the rules of regular procedure, the

affiant must testify in court; otherwise, the affidavit per se isconsidered hearsay.

6. With respect to the conduct of trial, under the summary procedure it isdiscretionary. The court may opt to conduct trial for the purpose ofclarifying some points in the affidavits of the witnesses. Otherwise, thecourt can decide on the basis of the affidavits and documents presented.By way of comparison, under the regular procedure, trial on the merits ismandatory.

7. The parties are required to file position papers.Note: A position paper is a memorandum that summarizes the case of a

party; attached to it are the affidavit and documents concerning thecase.

8. If the case is covered by a barangay conciliation and there was a failure tocomply with such requirement, the trial court can motu propio dismiss the

case without prejudice for referral to the Lupon ng Tagapamayapa.


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Note: By way of comparison under the rules on regular procedure, thecourt cannot dismiss the case unless the proper motion to dismisswas filed before it alleging failure to undergo barangay conciliation.

9. Decisions of the MTC are appealable before the RTC. A motion forreconsideration is not permitted.

Barangay Conciliation

No

Yes

Notes on Barangay Conciliation

Barangay conciliation covers all kinds of cases (whether in theMTC or RTC and whether under summary procedure or regular procedure)where the parties are residence of the same barangay or adjoining barangaysof the same municipality or adjoining barangays of different municipalities.

The exceptions to the coverage are:1. If one of the parties to the dispute is a corporation2. Where the action is coupled with a provisional remedy (e.g. attachment,

injunction, receivership, replevin, supportpendente lite)3. Where one of the parties is the government or the Republic of the

Philippines4. Where one of the parties is a public official and the dispute is related to hispublic function

Mechanics

1. If during the conciliation conference, an amicable settlement is reached,the parties will sign a written agreement that would be the basis of the suitfor breach of the agreement.Note: Under the Local Government Code, it appears that the Lupon has

the power to enforce such an agreement. However, it is submitted

Complainant notifies theLupon of the complaint

Lupon notifies the respon-dent of the grievance andschedule of the conciliation

Conciliationmeeting takes

placeDispute

is

settled

Agreement issigned by the

parties

If agreement is violated,suit for breach of contract

will be filed

Luponprepares a

certificateto fileaction

Complainant attaches theCertification to the

complaint and files it incourt

Actuallitigation


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that the same is questionable because the Lupon is not a court. Itcan not decide a dispute and neither can it execute its judgement.

2. If a settlement could not be reached, the Lupon ng Tagapamayapa willprepare a certificate to file an action. The complainant can use thecertificate in filing a suit.

Note: If a case was filed without going through barangay conciliationassuming that it is applicable, the defendant may file a motion todismiss on the ground of failure to comply with a conditionprecedent. However, if the case falls also under summaryprocedure, the court can motu propio dismiss the case withoutprejudice and refer the same to barangay conciliation.

3. Barangay conciliation is merely a procedural requirement; it is not ajurisdictional prerequisite. Hence, if the defect of lack of barangayconciliation is not seasonably assailed, then the defect is cured. In thecase of Gonzalez vs. CA, the Supreme Court held that defects in barangayconciliation do not give rise to jurisdictional questions.

Complaint Summons Answer Pre-trial Trial on theMerits

Pre-trial Conference

It is a mandatory process that is intended to accomplish thefollowing objectives:

1. to enable the court to simplify the issue for trial2. to identify and limit the witnesses3. to amend and shorten pleadings if possible4. to mark exhibits5. to enable the parties to pursue discovery procedure (e.g. request for

admission written interrogatories, depositions, etc.)6. to enable the parties to pursue amicable settlement

Mechanics of Pre-trial

Upon submission of the last pleading, the plaintiff is required tocalendar the date of the pre-trial conference by notifying the clerk of court andcopy furnishes the defendant. Thereafter, the clerk of court notifies thedefendant of the date and time of the pre-trial.

Pre-trial Brief

Pre-trial


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All the parties are required to submit pre-trial briefs at least three(3) days before the scheduled date of pre-trial. Failure to submit the pre-trialbrief is considered as non-appearance at the pre-trial conference. The pre-trial brief is a summary of the case of a party. It contains the proposed issues,identity of witnesses, list of exhibits, schedule of dates for trial.

Pre-trial Order

At the conclusion of the pre-trial conference, the court will issuea pre-trial order, which summarizes the result of the pre-trial. Only the issuestackled in the pre-trial order will be the subjects of trial.

Discovery Procedure

Modes of Discovery and their Mechanics

1. Depositionsa. Pending Action

It is the examination of the deponent regarding matters that arerelevant to the subject of a pending action. Examination and cross-examination may proceed as permitted at the trial.

b. Before Action or Pending Appeal

A person who desires to perpetuate his own testimony may file averified petition in the court of the place of residence of any expected

adverse party. This is intended to preserve known testimony againstdamage or loss.

2. Interrogatories to Parties

The party desiring to elicit material and relevant facts from theadverse party shall file and serve written interrogatories. The answersigned and sworn shall be filed and served within fifteen (15) days afterservice thereof. Time is under the discretion of the court. Objections maybe presented within ten (10) days after service thereof. Answers shall bedeferred until the objections are resolved. Failure to serve written

interrogatories is sanctioned the adverse party can not be compelled togive testimony.

3. Admission of Adverse Parties

After issues have been joined, request for admission may befiled regarding the genuineness of any material or relevant document.Admissions, requests and answers must be in writing. Its purpose is toestablish a cause of action or defense.

4. Production or Inspection of Documents or Things


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Upon motion, the court may order production and inspection ofdocuments or permit entry upon property. The order shall specify the time,place, and manner of making inspection.

5. Physical and Mental Examination

The court may require a person to undergo physical and mentalexamination, if it is in controversy. The order shall specify the time, place,manner, and scope of the examination.

Purpose of Discovery

1. to narrow and clarify the basic issues between parties2. to ascertain facts relative to the issues

Advantages of Discovery

1. discloses acts, deeds or documents in aid of prosecution or defense, orthe litigation by certain parties, witnesses or persons by judicial permission

2. discloses facts resting in the knowledge of the defendant


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NOTES IN REMEDIAL LAW SAN SEBASTIAN COLLEGEINSTITUTE OF LAW [email protected]

Trial on the Merits

Plaintiff Plaintiff Plaintiff Defendant Defendant Defendant At the discretion Defendant End of trialpresents his offers his rests presents his offers his rests of the court, plain- presentsevidence- documentary evidence- documentary tiff presents rebut- sur-rebut-in-chief exhibits in- chief exhibits tal evidence tal evidence

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Evidence-in-chief

It refers to the entire body of evidence that is used by a party toprove his case. It includes testimonial evidence, real evidence, and documentaryevidence. The presentation of evidence-in-chief is required to enable a party to

prove the allegations in his pleadings.

Rebuttal and Sur-rebuttal Evidence

Their presentation is discretionary on the part of the court. They areintended to attack the credibility of the evidence-in-chief of the opposing party.However, no new matters may be introduced in support of the evidence-in-chiefduring rebuttal or sur-rebuttal.

Joint Stipulation of Facts

In lieu of a trial, the parties may agree to a joint stipulation of factsin writing. The stipulation is submitted to the court and the court may reconsider

judgement based on the stipulation.

Reception of Evidence

The proceedings must be taken down in writing by way ofstenographic notes. The judge is required to receive the evidence personally.However, he may delegate the reception of evidence to the clerk of court if all the

parties agree. If evidence is presented to the clerk of court, any objections mustbe placed on record and it is up to the judge to rule on the objections.

Consolidation of Trial

If there are several pending cases in the same court and they allinvolve a common question of fact or law, the court can motu propio order a jointhearing of all the cases.

Trial by Commissioner

If the subject matter of the case is very technical, the parties mayagree to refer the reception of evidence to a third party known as a trialcommissioner who is knowledgeable about the subject matter. The trialcommissioner is appointed by the court to gather evidence and resolve factualissues. However, the trial commissioner can not rule on the legal questions. Atthe end of the trial, the trial commissioner submits to the court his report on theevidence presented. The trial court may accept, modify or reject the report.

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Ways to Cut Short Litigation

Motion to Motion for Judgement Motion for Demurrer

Dismiss on the Pleadings Summary Judgement to Evidence

Judgement on the Pleadings

Where the responsive pleading fails to tender an issue or admitsthe allegations of the opposing pleadings, a motion for judgement on thepleadings may be filed. If the reasons cited on the judgement of the pleading aremeritorious, res adjudicata will apply.

Motion for Summary Judgement

If there is no genuine issue or no factual issues really exist asproved by the affidavits, documents, and other depositions, a party can file amotion for summary judgement. The opposing party has ten (10) days noticebefore the motion is heard. However, resolving a motion for summary judgementis a matter of discretion on the part of the trial court. If the motion for summary

judgement is granted in full then a judgement on the merits is rendered againstthe opposing party, as a result trial is avoided.

Pre-trial Trial Judgement

Plaintiff Plaintiff Plaintiff Defendant Defendant Defendantpresents his offers his rests presents his offers his restsevidence- documentary evidence- documentaryin-chief exhibits in- chief exhibits

Demurrer to Evidence

Demurrer to Evidence

A demurrer to evidence may be filed after the plaintiff has rested inthe presentation of his evidence but before the defendant has presented hisevidence-in-chief. A demurrer to evidence is based on the ground that theevidence presented by the plaintiff is insufficient and therefore the defendant isnot anymore required to present evidence in support of his case.

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Demurrer in Civil Case

After the Plaintiff has Rested

Demurrer to Evidence is Filed

YES NO

Case is dismissed Trial continues

No appeal Appeal

Denied Granted

Reversal of the dismissaland there will be judgement

for appellant. The defendantis deprived to present his evidence

A demurrer to evidence in civil cases is a remedy that may backfireon the defendant. If a demurrer is reversed on appeal, there will be a judgementin favor of appellant and the defendant will be deprived of his right to presentevidence. An order granting a demurrer is a final order. On the other hand, anorder denying a demurrer is merely an interlocutory order.

Demurrer in Criminal Cases

After the Prosecution has Rested

Motion for Leave to Allow Demurrer

Granted Denied

Demurrer is filed then the Trial continuesprosecution is given an

opportunity to submit anopposition

Granted Denied

Trial is ended (no appeal)

Grante

d

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Judgements

A judgement in order to be valid must be final. It is final if itterminates the proceedings; it is also final if it resolves the merits or the issues inthe case. If it leaves other things to still be done or it does not completely

resolves the controversy, the judgement is not considered final and it is null andvoid without producing any legal effect. As a result, the period to appeal will notbegin to run. Furthermore, a void judgement could not be the basis of a validexecution.

A judgement has two parts, namely: a) the body which contains thereasons and comments of the court known as the obiter dicta; and b) thedispositive portion which resolves the issue in the case. It is the dispositiveportion that is the subject of execution. In case of conflict between the body andthe dispositive portion, the latter prevails. Moreover, it is the dispositive portionthat is required to be entered in the book of judgement after such judgement has

become executory.

In civil cases, a judgement is promulgated at the time it is filed withthe clerk of court and not at the time when the trial judge affixed his signature inthe judgement.Note: In criminal cases, however, promulgation is done by reading the judgement

before the accused in open court.

A judgement that is final time becomes executory

a. 15 days after receipt and no appeal is takenb. 30 days (multiple appeals)c. 60 days if judgement was publishedd. in the case of compromise judgement, the judgement

becomes executory immediately upon approval of thecompromise

If the parties, in the course of litigation, arrived at a compromise,they may execute a compromise agreement. If the same is submitted to anyapproval by the court, it is treated just like a judgement and it is immediatelyexecutory.

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Ordinary Appeal Multiple Appeal

Parties to the Appeal 15 Days 30 Days

How Appeal is Done By filing a Notice of Appeal By filing a Notice and theRecord on Appeal

Perfection of the Appeal By the expiration of the lastday for the party to appeal Upon approval of the Recordon Appeal

all remedies may be obtained all remedies