read civ pro

READ:

Procedural / substantive laws

Art. VIII, Sec. 5, Constitution

JUDICIARY REORGANIZATION ACT of 1980 (BP 129); AN ACT EXPANDING THE

JURISDICTION OF MTC( RA 7691), as implemented by Adm. Cir. 9/94

RULES OF COURT, Rule 1-71, 141 & 142; AM No. 07-7-12-SC Dec. 4, 2007(amending

Rules 41,45, 58 & 65);

1991 REVISED RULE ON SUMMARY PROCEDURE, as amended;

BARANGAY CONCILIATION; LOCAL GOVERNMENT CODE OF 1991(RA 7160), Secs.

399-422;

A.M. No. 08-8-7-SC dated Sept. 9, 2008-RULES OF PROCEDURE FOR SMALL CLAIMS

CASES;

A.M. 10-4-20-SC, April 10, 2010 (Internal Rules of the Supreme Court);

2002 Internal Rules of the Court of Appeals.

A.M. No. 07-11-0-8-SC (SPECIAL RULES OF COURT ON ALTERNATIVE DISPUTE

RESOLUTION); ALTERNATIVE DISPUTE RESOLUTION ACT of 2004, RA 9285;

ARBITRATION LAW of 1953, RA 876

COURT ANNEXED MEDIATION (AM No. 013-1-09-SC 7/13/04)

A.M. No. 10-4-16-SC- RE: RULE ON COURT-ANNEXED FAMILY MEDIATION

FAMILY COURT- RA 8369;

A.M. No. 04-10-11-SC- Rule on Violence Against Women and their Children, 11/15/04;

A.M. No. 02-11-10-SC (Rule on Declaration of Absolute Nullity of Void Marriages and

Annulment of Voidable Marriages

A.M. NO. 00-8-10-SC (RULES OF PROCEDURE ON CORPORATE REHABILITATION

A.M. No. 05-11-04-SC – Rule of Procedure, RA 9160, amended 11/20/05 (money

laundering);

A.M. No. 09-6-8-SC- Rules of Procedure for Environmental Cases effective 4/29/10

A.M. No. 10-4-29-SC (The 2010 Rules of the Presidential Electoral Tribunal)

A.M. No. 07-4-15-SC, otherwise known as The Rules of Procedure in Election Contests

Involving Elective Municipal and Barangay Officials

CHAPTER I. INTRODUCTION

A. Judicial Power and the courts; classifications

1. Art. VIII, Sec.1, Constitution; Art. 7, Civil Code

2. Decisions of the Supreme Court- Art. 8 & 9, Civil Code

B. Jurisdiction– defined

1. Authority to define apportion jurisdiction; constitutional limitations-Art. VIII, Sec. 2, 5; Art.

VI, Sec. 30, Constitution

Course outline in Civil Procedure 2

2. Distinguished from Judicial power

3. Distinguished from venue- Manila Railroad v. Attorney-General, 20 Phil. 523

4. Classification of jurisdiction

a. As to its nature: General, Special or Limited

b. As to the stage of the case: Original & Appellate

c. As to extent: Exclusive, Concurrent, Delegated, Special

5. Requisites for the exercise of jurisdiction

a. Jurisdiction over the subject matter

b. Jurisdiction over the parties

c. Jurisdiction over the res

d. Jurisdiction over the issues

6. Jurisdiction (over the subject matter) of various courts

a. SUPREME COURT-Art. VIII, Sec. 1 & 5, Constitution

b. COURT O F APPEALS - BP 129, amended by RA 7902

c. SANDIGANBAYAN - EO 1,2,14, 14-A, PD1606, as amended by RA 8249

d. REGIONAL TRIAL COURTS- BP 129, as amended by RA 7691; SC Adm. Cir.

No. 09-94, 6/14/94); RA 8369 (act establishing family courts); A.M. No. 03-03-03-

SC (Special Commercial Courts- to try Intellectual Property and cases formerly

cognizable by SEC)

e. MeTCs, MTCs & MCTCs- BP 129, Sec. 33, as amended by RA 7691 effective

March 20, 1999); BP 881, Sec. 138; Sec. 34, BP 129; Habeas Corpus (BP 129,

Sec. 35); Summary Procedure- BP 129, Secs. 32-35, as amended by RA 7691

See: RA 9282 [2004] as to the jurisdiction of the Court of Tax Appeals.

7. Rules on jurisdiction:

a. Jurisdiction- conferred by law; cannot be conferred or waived by the parties, and

can be assailed at anytime. But not where estoppel by laches sets in. (Tijam v.

Sibonghanoy, 23 SCRA 29)

b. Allegations of the complaint determine the court’s jurisdiction, (Aguilar v.

Cabrera, 74 Phil 658) and so jurisdiction is determined at the time of filing of the

action.

1. Exception-Where the true nature of agricultural tenancy is alleged in the

answer, the court must make a preliminary determination. (Abbain v.

Chua, 22 SCRA 748)

c. Adherence of jurisdiction- jurisdiction once acquired continues until the case is

finally terminated (Pamintuan vs. Tiglao, 53 Phil. 1)

d. Doctrine of judicial stability- (Republic v. Reyes, 155 SCRA 313; CABIGAO v.

Del Rosario, 44 Phil. 182).

C. Remedial law vs. Substantive law – (Bustos v. Lucero, 81 Phil. 649 [1949])

Who promulgates procedural rules?

Art. VIII, Sec. 5(5), Constitution; Art. XVIII, Sec. 10,

see for limitations – (Echegaray v. Sec. of Justice, GR 132601, Jan. 19,

1999).

D. The Rules of Court (Rule 1)-


1. History - The old Code of Civil Procedure was Act. 1901 which was later replaced by the

Rules of Court of 1940, and revised in 1964. It has undergone major changes in civil

procedure in 1997, criminal procedure in 1985, and evidence in 1989. Subsequent

amendments were introduced thereafter to fine-tune the revisions.

2. They have the force and effect of law. They are not penal statutes and cannot be applied

retroactively, although Procedural rules may be applied on cases pending at the time of

their passage and are retroactive in that sense.2 Principle of prospectivity in application -

applies also to “judge made laws” or judicial decisions.3 Retroactive application may be

allowed in curative statutes (implementation of the 60-day period to file certiorari petition

from denial of the motion for reconsideration under AM 00-2-03-SC-PCI Leasing v. KO,

GR 148641, 3/31/05)

3. Courts and cases governed and not governed by the Rules (Rule 1)

Liberal Construction: Alonso v. Villamor, 16 Phil. 315, 321 (1910)

Procedural rules are [tools] designed to facilitate the adjudication of cases.

Courts and litigants alike are thus [enjoined] to abide strictly by the rules.

And while the Court, in some instances, allows a relaxation in the

application of the rules, this, we stress, was never intended to forge a

bastion for erring litigants to violate the rules with impunity. The liberality in

the interpretation and application of the rules applies only in proper cases

and under justifiable causes and circumstances. While it is true that

litigation is not a game of technicalities, it is equally true that every case

must be prosecuted in accordance with the prescribed procedure to insure

an orderly and speedy administration of justice. [Republic vs. Kenrick

Development Corporation, 498 SCRA 220(2006)]

CHAPTER II. ACTIONS

A. Actions

1. As to subject-matter - PERSONAL, REAL, MIXED

a. Significance in determination of venue, amount of filing fees, as well as

jurisdiction., De Leon v. CA, GR 104796, 3/6/98;

b. Partition is merely incidental to the annulment of the document - Russel v. Vestil,

GR 119347, 3/17/99

c. Expropriation - Barangay San Roque v. Pastor, GR 138896, 6/20/00

2. As to extent of binding effect – IN PERSONAM, IN REM, QUASI IN REM1 “Our original code of civil Procedure (Act 190) was taken mainly from the code of Civil Procedure of California, and this in turn

was based upon the Code of Civil procedure of New York adopted in that state in 1948.”(Marquez v. Varela, GR L-4845, Dec.

24, 1952)

2 People v. Sumilang, 77 Phil. 764 [1946]

3 Santos vs. Sandiganbayan, GR 71523, Dec. 8, 2000


In rem: land registration proceedings (Director of Lands v. Roman Catholic

Archbishop of Manila, 41 Phil. 120); forfeiture proceedings (Republic v.

Sandiganbayan, 461 Phil 598 (2003); personal status of the plaintiff

Quasi-in-rem: Foreclosure and attachment proceedings(El Banco Espano-

Filipino v. Palanca, 37 Phil. 921 (1918); action between parties where the direct

object is to reach and dispose of property owned by them, or of some interest

therein (Midgely v. Ferandos, GR L-34314, 5/13/75; Quieting of title (SAN

PEDRO v. ONG, GR 177598, 10/17/08)

Distinction between action quasi in rem & action in personam-Domagas

v. Jensen, GR 158407, 1/17/05, 448 SCRA 663, 673-674

Action for specific performance under a contract to sell- an action in

personam (Yu v. Pacleb, GR 172172, 2/24/09)

3. Concepts of real action, personal action, proceeding in rem and proceeding in

personam:

Hernandez v. Rural Bank of Lucena, Inc.,GR L029791, 1/10/78, 81

SCRA 75

4. As to where the action may be filed – LOCAL OR TRANSITORY

5. As to what rules govern- ORDINARY OR SPECIAL

Commencement of a civil action (Rule 1, Sec. 5). – Importance?

1. As to an additional defendant

2. Effect of non-payment of FILING FEE:

Magaspi v. Ramolete, L-34840, 7/20/82

Manchester Dev. Corp. v. CA, GR 75919, 5/7/87

Sun Insurance v. Asuncion, GR 79937, 2/13/89

Tacay v. RTC of Tagum, GR No. 88075, 12/20/89

Ayala Corp. v. Madayag et al., GR 88421, 1/30/90

A.M. No. 04-2-04-SC (docket fee on real action)

Every ordinary civil action must be based on a cause of action. (Rule 2, Sec.1)

1. Definitions:

Cause of Action (Sec.3), Right of Action, Relief, Remedy, Subject Matter

D. One suit for every cause of action (Sec. 3); splitting; effect (Sec.4)

1. Singleness of a cause of action/ Effect of splitting (Sec. 4)

a. Singleness of delict or wrong- (Joseph v. Bautista, L-41423, 2/23/89)

b. loan/s secured by a mortgage- (Bacharach Motor Co. v. Icarangal, 68 Phil 287

[1939]); or mortgage securing present and future loans; 67 promissory notes

secured by one mortgage (BPI FAMILY SAVINGS BANK, INC. vs.

COSCOLLUELA, G.R. No. 167724, June 27, 2006); but not where the mortgages

are separate transactions (Quiogu v. Bautista, 4 SCRA 478 (1962); or where the

the first action is to collect upon the unsecured portion of the consideration of the

sale and second action is to foreclose the mortgage security on the

balance.(Enriquez v. Ramos, GR 16797, 2/27/63)


c. Nullity of marriage based on several grounds constitutes only one cause of action

(Mallion v. Alcantara, GR 1441528, 10/31/06)

d. Obligations in installments- (Larena vs. Villanueva, 53 Phil 925)

e. Principle of “Anticipatory Breach” - Blossom & Co. vs. Manila Gas Corp., 55 Phil

226); not a case of – Danfoss, Inc. v. Continental Cement Corp., Gr No.

143788, 9/9/05.

2. Joinder of causes of action – permissive (Sec. 5) –

Requisites:

a. Comply w/Rule on Joinder of Parties(Flores v. Mallare-Phillips, 144 SCRA 377

[1986])

b. Not include actions governed by special rules

c. If pertaining to different venues or jurisdiction, joinder in the court of jurisdiction & venue

d. all causes are for sum of money- test of jurisdiction (Flores v. Mallare-Phillips, supra)

Case on joinder: Proper-

Perez v. Hermano, GR 147417, 7/8/05

Pantranco v. Standard Insurance, GR 140746, 3/16/05

3. Misjoinder of causes of action; its effects and remedies (Sec. 6)

Republic v. Hernandez, GR 117209, 2/9/96

CHAPTER III. PARTIES (Rule 3)

A. Who may be parties; parties to an action (Sec. 1)

B. Real party in interest (Sec. 2)

1. Representatives as parties (Sec. 3)-

2. Party authorized by law or these rules (e.g. labor org., entity without juridical personalityas

named party defendant)

3. An agent contracting without disclosing the principal

4. Class suits (Sec. 12)

o See: Request of the heirs of passengers of Dona Paz, GR 88-1-646-0,

3/3/88

o Sufficiency of representation-BANDA v. ERMITA, GR 166620, 4/20/10 (20/67

named petitioners signed but not enough representation)

5. Spouses (Sec. 4), exceptions.

Example of formal parties- which could be indispensable, necessary or neither

indispensable nor necessary.

Exceptions: see Art. 101 & 128, Art. 111, 145 of the Family Code.

Recovery of conjugal property may initiated by any of the spouses under Art. 487

of the Civil Code, but pursuant to Sec. 4, the other spouse must be

joined.(NAVARRO v. ESCOBIDO, GR 153788, Nov. 27, 2009)

6. Minors & Incompetents (Sec. 5)

C. Joinder of parties

1. PERMISSIVE Joinder (Sec. 6) –requirements:

a. Arising from SAME or series of TRANSACTIONs and:


b. COMMON QUESTION OF FACT or LAW

Pantranco v. Standard Insurance, GR 140746, 3/16/05

2. COMPULSORY joinder of indispensable parties (Sec. 7)

examples:

In a replevin action, the mortgagor and the possessor are indispensable parties

(Imson v. CA, 239 SCRA 58 [1994] ???

In an action for recovery of property against a person who purchased it from

another who, in turn, acquired it from others by the same means or by donation or

otherwise, the predecessors of defendants are indispensable parties if the

transfers, if not voided, may bind plaintiff. (Garcia vs. Reyes, 17 Phil. 127.)

Art 487 Civil Code authorizes any of the co-owners to bring an ejectment suit; the

others are neither indispensable nor necessary; BUT not where a co-owner brings

an action in his benefit alone.(Adlawan v. Adlawan, GR 161916, 1/20/06, 479

SCRA 275. Co-owners in a suit to establish tenancy rights over the co-owned

property are indispensable parties (Arcelona v. CA, 280 SCRA 20 [1997]); the

rule applies even to personal properties (Carandang v. Heirs of De Guzman, 508

SCRA 469 [2006]

A dismissal of the complaint as against one of the indispensable parties, will result

to dismissal as to the others. LIM TAN HU v. RAMOLETE, 66 SCRA 425

3. NECESSARY Party (Sec. 8);

In joint credit/obligations; Co-owners of promissory note (Lichauco v.

Limjuco et al. 19 Phil. (1912);

BUT NOT in solidary obligations, one of the debtors is indispensable while

the rest are not even necessary, like in joint-tort feasors (Cerezo v. Tuazon,

GR 141538, 3/23/04)

Quieting; Quasi-in-rem. San Pedro v. Ong, GR 177598, 10/17/08

Non-joinder of necessary party to be pleaded and effects of such failure (Sec.9)

4. UNWILLING CO-PLAINTIFF- as defendant (Sec. 10)

5. EFFECT OF MISJOINDER and NON JOINDER of parties- (Sec. 11)

Alonso v. Villamor, 16 Phil. 315, 321 (1910)

6. UNCERTAINTY as to:

a. Who should be sued- alternative defendants (Sec. 13)

b. Identity or name- (Sec. 14)

D. Entity without juridical personality (Sec. 15)

1. Cannot sue under its name, but may be sued- either by the name commonly or generally

known OR the members, individually. If sued under the name, the name shall contain the

names of the members and their respective residences.


E. Effects on changes on parties

1. DEATH OF A PARTY (Sec. 16)-

a). Duty of counsel -

b) Actions that do not survive – purely personal, only a notice of death

c) Actions that survive–Board of Liquidators v. Heirs of Kalaw,L-18805,

8/14/67

(tortious acts of corporate officers)

notice of death plus names and addresses of legal representative/s

Purely contractual money claims (Sec. 20)

o Before filing of the action

o After filing, but before Entry of judgment

o After Entry of judgment

o After levy on a property by way of attachment.

Continued/commenced against the administrator/executor or heirs

o Legal heirs may be substituted even with the presence of a court -

appointed administrator (GoChan v. Young, GR 131889, 3/12/01;

354 SCRA 207)

Substitution of legal representative; effect of no substitution

o With sufficient notice, but without substitution-void (Ferreria v. Vda de

Gonzales, 104 Phil. 145 [1958]

o No notice and without knowledge of the court – subsequent

proceedings valid (Florendo v. Coloma, 129 cCRA 304 [1984]

Specific cases:

o Revival of judgment on money claims; revive, then file as money

claim-Romualdez v. Tiglao, GR 51151, 7/24/81

o Saligumba v. Palanog, GR 143365, 12/04/08

2. DEATH OR SEPARATION OF A PARTY-PUBLIC OFFICER (Sec. 17)

3. INCOMPETENCE or INCAPACITY of a party (Sec. 18)

4. TRANSFER OF INTEREST (Sec. 19)

PO LAM v. CA, GR 116220, 12/6/00

F. Indigent party

Only available to natural party litigant (In re: Good Shepherd Foundation, Inc., AM

09-6-

9-SC, 8/19/09

G. Notice to the Solicitor General (Sec.22)

CHAPTER IV. VENUE (Rule 4)

Nature of venue: THE MANILA RAILROAD CO. v. ATTORNEY-GENERAL, 020

PHIL. 523

A. Venue in real actions (Sec. 1)

Actions for annulment or rescission of sale of realty and the RETURN of the realty.

Punzalan vs. Vda. De Lacsamana, GR No. 55729, 3/28/83

An action to redeem by debtor affects his title to the foreclosed property;


Action to compel acceptance of purchase price as preliminary step to establish title

(Lizares v. Caluag, L-17699, 3/30/62);

Actions to collect sum of money with alternative prayer of foreclosure, or

annulment of TCT with alternative prayer for damages- real actions (NAVARRO v.

LUCERO, 100 Phil 147)

B. Venue in personal actions (Sec. 2)

An action to compel acceptance of payment and to release the mortgage (It

appears that no foreclosure of mortgage took place and that the plaintiffs remained

in possession of the mortgaged lot) is a personal action. (Hernandez vs. Rural

Bank of Lucena, Inc., 81 SCRA 75, 1978)

NOTES:

Meaning of “residence”- Dangwa v. Sarmiento, 75 SCRA 124; Principal Partymeaning

(Irene Marcos-Araneta v. CA, GR 154096, 8/22/08

Venue for third party complaint will yield to the venue of the main action. (Eastern

Assurance & Surety Corp. vs. Cui, et al., GR No. 54452, 7/20/81)

Venue in actions to revive judgment depends upon whether the subject is a

personal or real action. (INFANTE vs. ARAN BUILDERS, INC., G.R. No. 156596,

August 24, 2007)

C. Venue in actions against non-residents (Sec. 3)

D. When rule not applicable (Sec. 4)

1. Specific rule or law provides otherwise

In Quo Warranto cases filed by SOLGEN (Rule 66, Sec. 7)

AM No. 02-11-10-SC & AM No. 02-11-11-SC as amended by as amended by

SC Res. 7/8/03- on venue on declaration of nullity of marriage / legal

separation

2. Agreement as to the exclusive venue – use of limiting words

POLYTRADE CORP. v. Blanco, GR L-27033, 10/31/69

UNIMASTERS CONGLOMERATION, INC. v. CA, GR 119657, 2/7/97

AUCTION IN MALINTA, INC. v. LUYABEN, GR 173979, 2/12/07

§ In writing and before the filing of the action

§ In adhesion contracts, stipulation void if contrary to public policy. (Sweet

Lines vs. Teves, GR 37750, 5/19/78)

§ Stipulation as to venue in adhesion contract, valid. (PILIPINO TELEPHONE

CORP. v. TECSON, GR No. 156966, 5/7/04)

§ In joinder of causes of action, where there is stipulation of exclusive venue in

one cause, the stipulation cannot be expanded to preclude bringing the

action in other venues. UNIWIDE HOLDINGS, iNC. v. CRUZ, 529 SCRA 664

3. SC ordered venue- (Art. VIII. Sec.5 (4), Constitution)

(NOTE: RULE (5) on Uniformity- same rules for MTC or RTC, except

where a rule

impliedly or expressly applies only to either of said courts, or in

Rule on Summary

Procedures.)


CHAPTER V. PLEADINGS- defined

A. KINDS (Rule 6)

1. Complaint- cause/s of action; names/residences

Ultimate facts

o TANTUICO v. REPUBLIC, GR 89114, 12/2/91

o FAR EAST MARBLES v. CA, GR 94093, 8/10/93

2. Answer -Negative and affirmative defense

-defense based on law

3. Counterclaim

i. compulsory counterclaim - test of compulsoriness

1. Arenas v. CA, GR 126640, 11/23/00

2. Tan v. Kaakbay Finance Corp. GR 146595, 6/20/03

ii. after-acquired Counterclaim (NAMARCO v. Federation of United

NAMARCO Distributors, Inc., 49 SCRA 238

iii. need not be answered if the issues raised in the counterclaim are inseparable

from those of the complaint, requiring a repetition of the allegations in the

complaint (Navarro v. Hon. Bello, 102 Phil. 1019)

4. Cross claim

Counter-counterclaim/counter cross-claim

5. REPLY

Failure to specifically deny under oath the genuineness and due execution

of the actionable documents attached to the answer means that the

plaintiff is deemed to have admitted the same (Agasen v. Ca, GR

115508, 2/15/00)

6. Third party (fourth etc.) complaint- for CISO (contribution, indemnity,

subrogation or any other relief)

Function of TPC- Firestone v. Tempongko, 27 SCRA 418 [1968]

Test of propriety: ACDC v. CA, GR 160242, 5/12/05

BALBASTRO v. CA, GR L-33255, Nov. 29, 1972

Example of “any other relief”- warranty in sales (UY v. ARIZA, GR

158370, 8/17/06)

7. Answer to third (fourth etc) party complaint –

8. Bringing new parties- in a counter-claim or cross-claim as defendants

B. PARTS of a pleading (Rule 7)

Sufficiency in form; allegations over caption - MUNSALUD v. NHA, GR

167181, 12/23/08

1. Caption


Non inclusion of the name of a party in the title (but indicated in the body

as a party) is not fatal (Vlason Enterprises Corp. v. CA, 369 Phil 269

[1999])

2. Body

Prayer - court can grant the relief warranted by the allegation and the

proof even if it is not specifically sought by the injured party; (DE

GUZMAN v. NLRC, GR 90856, 7/23/92, 211 SCRA 723, 732) the

inclusion of a general prayer may justify the grant of a remedy different

from or together with the specific remedy sought, (Gutierez v. Valiente,

GR 166802, 7/4/08) if the facts alleged in the complaint and the evidence

introduced so warrant. (Eugenio Sr. v. Velez, GR 85140, 5/17/90)

3. Signature & address

§ May be signed by party or counsel (SAMEER OVERSEAS PLACEMENT

AGENCY, INC. v. SANTOS, GR 152579, Aug. 4, 2009)

§ Unsigned. Republic vs. Kenrick Development

Corporation, 498 SCRA 220(2006)]

§ Failure to report new address of counsel (NAJARRO v. JARSON DEVT.

CORP. GR 142627 & 172750, 1/28/08

4. Verification

Modes: based on personal knowledge or authentic records (or both)

Hyung Park v. Eung Won Choi, GR 165496, 2/12/07

One signature of the three petitioners is substantial compliance (Ateneo

de Naga v. Manalo, GR 160455, 5/9/05).

it is basic that verification is only a formal, not jurisdictional, requisite.

(Buenaventura v. Uy, GR L-28156, 3/31/82) Accordingly, even if the

verification is flawed or defective, the Court may still give due course to

the pleading if the circumstances warrant the relaxation of the rule in the

interest of justice. (Oshita v. Republic, L-21180, 3/31/67)

5. Certification against non-forum shopping-

Distinguished from VERIFICATION; subsequent compliance Manila

Midtown YMCA v. REMINGTON STEEL CORP, GR 159422, 3/28/08

NATURE -mandatory, but not jurisdictional (Melo v. CA, GR 123686,

11/16/99

WHERE REQUIRED: Initiatory pleadings; The certification is required in

permissive counterclaim (UST Hospital vs. Surla, GR 129719, 8/17/98)

BUT not in compulsory counterclaim (Ponciano vs. Parentela, GR

133284, 5/9/00); because it is not an initiatory pleading (CRUZ-AGANA v.

SANTIAGO-LAGMAN, GR 139018, 4/11/05) just like a writ of possession

(ARQUIZA v. CA, GR 160479, June 8, 2005).

WHO MUST SIGN - All petitioners must sign (Locquias vs.

Ombudsman, GR 139396, 8/15/00)


o BUT a signature of one of the spouses sued on a property which

they have common interest is substantial compliance with the rule

(Dar vs. Legasto, GR 143016, 8/3/00); (Ateneo de Naga vs.

Manalo, GR No. 160455, 5/9/05)

o or where the parties are abroad at the time of filing of the petition,

they are excused from complying with the requirement. (Hamilton

vs. Levy, GR No. 139283, 11/15/00);

o by counsel specifically authorized who has personal knowledge of

the facts required to be disclosed. (BA Savings Bank v. Sia, 336

SCRA 484 [2000]; but not every counsel (Digital Microwave

Corp. v. CA [328 SCRA 286) ; Ordinarily, counsel may not issue

the certification (United v. COSLAP, GR 135945, 3/07/01

o In corporations,

§ Guidelines- FUENTEBELLA v. CASTRO, GR 150865,

6/30/06

§ certification may be signed by specifically authorized

person, including retained counsel, who has personal

knowledge (NASSCO v. CA, GR 134468, 8/29/02); If

counsel’s authority is disputed, he is required to show

proof (Expert Travel & Tours, Inc. v. CA, Korean

Airlines, GR 152392, 5/26/05.

§ Summary of corporate officers (gen. manager, asst GM,

employment specialist in labor cases, personnel officer,

chairman or president) may sign EVEN WITHOUT board

resolution (CAGAYAN VALLEY DRUG CORP. v. CIR,

GR 151413, 2/13/08

WHEN IS THERE FORUM SHOPPINGo

The test of determining forum-shopping is whether the filing of the

case gives rise to the application of res judicata or litis pendentia.

Litis pendentia – (Sherwill Dev. Corp. v. Sitio Sto. Nino

residents et al., Gr 158455, 6/28/05);

o No forum shopping if there is no identity of issues raised in the

two petitions. (Gochan et al., v. Gochan, et al., GR 146089,

12/13/01);

o Mention of “prior filing “ of the case for support (dismissed by the

plaintiff herself before any responsive pleading was filed) not


required in the certification if the case is refiled. There is no res

judicata OR litis pendentia. (Roxas v. CA, GR 139337, 8/15/01)

Separate sanctions foro

Failure to attach/submit Certification

o Failure to comply with the undertaking

o Forum shopping

§ If not wilfull, the subsequent case is dismissed (CHUA v.

METROBANK, GR 182311, 8/19/09

§ If wilfull, dismissal of all actions (Collantes v. Court of

Appeals, G.R. No. 169604, 6 March 2007, 517 SCRA

561, 569)

§ Dismissal upon motion & hearing- Bautista v. Causapin

Jr. , 652 SCRA 442

6. Substantial compliance rule: justification and equity (UNITED PARAGON

MINING CORP. v. CA, GR 150959, 8/4/06, 497 SCRA 638);

7. Certification executed in a foreign country (HEIRS OF ARCILLA v.

TEODORO, GR 162886, 8/11/08

C. MANNER of making allegations (Rule 8)

1. In general

a. ultimate facts-allege them in methodical and logical form, the plain,

concise and direct statement of the ultimate fact

sufficient allegations for partition (BALO v. CA, GR 129704,

9/30/05

b. What are “evidentiary facts?” LOCSIN v. SANDIGAN, GR 134458,

8/9/07

3. Alternative causes of action or defenses

a. Alternative causes/defendants-FABRE JR. v. CA, GR 111127, 7/26/96;

INSURANCE COMPANY OF NORTH AMERICA v. UNITED STATES LINES

CO., GR l-21839, 4/30/68

3. Conditions precedent –

-barangay conciliation

-earnest efforts exerted to settle between family members

o (WEE v. GALVEZ, GR 147394, 8/11/04

4. Capacity –to sue or be sued; in representative capacity or legal existence

of an organized association

GALINDO v. HEIRS OF MARCIANO ROXAS, GR 147969,

1/17/05


MIAA v. RIVERA VILLAGE LESSEE HOMEOWNERS ASSN,

INC., GR 143870, 9/30/05

5. Fraud, mistake, condition of mind

Fraud must be alleged with particularity (Luistro v. CA, 158819,

4/16/09); corporate fraud (REYES v. RTC, GR 165744, 8/11/08)

6. Judgment – no need to allege facts showing jurisdiction

7. Action or defense based on document

2 ways of alleging the document

2 ways of contesting the document

o Gateway Electronics v. AsianBank Corp., GR No.

172041, 12/18/08

o Casent Realty Dev. Corp. v. Philbanking Corp., GR

1570731, 9/14/07

Exceptions

a. document, merely evidence

b. no oath required if: it appears to be not a party to the

document or there is refusal to comply with an order for

inspection

o No need to deny if not a party to the document-(Toribio

v. Bidin, GR 57821, 1/17/85)

Effect of failure to deny-

1. meaning of “genuineness” “due execution”

2. Defenses not inconsistent with genuineness & due execution.

o Hibberd v. Rohde, 32 Phil 476 (1915)

Waiver of the admission

MAUNLAD SAVINGS & LOAN ASSN. v. CA, GR

114942, 11/27/00

8. Ways of making specific denials?

Specific denial of the material allegations and allege the

substance of the matter in support of the denial

Failure to specify matters as basis of denial– AQUINTEY v.

TIBONG, GR 166704, 12/20/06; TERANA v. DE SAGUN,

GR 152131, 4/29/09

Admit part and deny the rest

Lack of knowledge (must be in good faith-PNB v. CA, GR

126153, 1/14/04)

Denial in bad faith-or professing lack of information as to the

matters alleged when they are plainly within the pleader’s knowledge

(CAMITAN v. CA, GR 128099, 12/20/06

9. What is a “negative pregnant?”

GALOFA v. NEE BON SING, 22 SCRA 48 [1968]


10. Allegations not denied deemed admitted

-material allegations (excluding unliquidated damages)

o Allegations anticipatory of the defense, need not be

denied.

D. EFFECT OF FAILURE TO PLEAD (Rule 9)

1. DEFENSE or OBJECTION not contained in the ANSWER or MOTION TO

DISMISS - waived (Sec. 1)

-exception: where the COURT may motu proprio dismiss the claim on the basis ofa.

LACK OF JURISDICTION over the subject matter;

-may be raised at any stage even on appeal; estoppel does not

apply (VARGAS v. CAMINAS, GR 137869 & 137940, 6/12/08)

TIJAM is an exception because of presence of laches

(CALIMLIM v. RAMIREZ, 204 Phil. 25, 34-35 [1982])

b. LITIS PENDENTIA or RES JUDICATA

c. PRESCRIPTION

Anido v. Negado, G.R. No. 143990, 10/17/01

Defense of lack of legal capacity to sue may be invoked in a later

motion to dismiss if the ground arose during the trial (OBANDO vs.

FIGUERAS, G.R. No. 134854, January 18, 2000)

2. A CLAIM– (compulsory counterclaim & cross claim) barred (Sec. 2)

3. FAILURE TO ANSWER- may be declared in DEFAULT (Sec. 3)

a. REQUIREMENTS- motion, notice, proof of failure

o Notice requirement does not apply if defending party is not

known or he cannot be located-Nemo tenetur ad impossibile

(SANTOS, jr. V. PNOC Exploration Corp., GR 170943, 9/23/08

o Motion to lift not required if the defaulting party’s standing has

been restored impliedly by grant of motions for extension to file

answer (Republic v. Sandiganbayan, Estate of Marcos, GR

148154, 12/17/07

b. EFFECT of default (par a)

Partial default in common cause of action (par . c)

o Court cannot render a partial judgment on those

defaulting defendants (Manguiat v. CA, GR 150768, 176,

8/20/08

a. REMEDIES vs. order of default:

o MOTION TO LIFT order of default. (RULE 9, Sec. 3, par. b)


Must comply with the requirements (DAVID v.

Gutierrez-Fruelda, GR 170427, 1/30/09

Ground of Fraud, Accident, Mistake & Excusable

negligence (FAME)

o Excusable negligence- due to absence of

counsel- SANTOS v. CARPIO, GR 153696,

9/11/06

Not a motion for reconsideration (Banco de Oro v.

Tansipek, GR 181235, 7/22/09)

o Certiorari (Rule 65) – in case of grave abuse

Issuing a default order prior to the date of hearing of

default (SANTOS v. CARPIO, Gr 153696, 9/11/06

o MOTION FOR NEW TRIAL under Rule 37

o PETITION FOR RELIEF under Rule 38

o ACTION TO ANNUL under Rule 47

o APPEAL (MARTINEZ v. Republic, GR 160895, 10/30/06,

3rd div. J. Tinga)

b. EXTENT OF RELIEF- not exceeding the amount or different in kind

from what prayed for, now award unliquidated damages?

LIM TANHU v. RAMOLETE, 66 SCRA 425, 8/29/75

Recovery limited to what was prayed for AND PROVED.

(Republic v. Hidalgo, GR 161657, 10/4/07)

GAJUDO v. TRADERS ROYAL BANK, Gr 151098, 3/21/06

c. WHERE DEFAULT NOT ALLOWED (Rule 9, Sec. 3, par (e)

E. AMENDED and SUPPLEMENTAL pleadings (Rule 10)

1. FORM and KINDS of amendments-

2. When is AMENDMENT AS A MATTER OF RIGHT? (Sec. 2)

No need of a motion. (Alpine Lending Investors v. Corpuz,

November 24, 2006, 508 SCRA 45)

Amendment may involve a new cause of action or change in theory.

(RCPI vs. CA, Salvosa, 271 SCRA 286, 289 (1997). Or to correct an

inadequate allegation, even if a dismissal order is pending before the

appellate courts (Remington Industrial Sales Corp. v. CA GR

133657, 5/29/02).

But amendment cannot confer jurisdiction. (Rosario v. Carandang,

96 Phil. 845 (1955)

Complaint may still be amended as a matter of right as to nonanswering

defendants (Siasoco, et al. v. Court of Appeals, 362 Phil

525, 533 (1999)


3. When is AMENDMENT WITH LEAVE of court? (After service of an

answer; or in case of the reply, anytime within 10 days after service)

May amendment change the theory of the case? VALENZUELA

v. CA, 416 Phil. 289 (2001)

4. Amendments: (Sec.5)

To CONFORM to evidence

o PANGANIBAN v. ROLDAN, GR 163053, Nov. 25, 2009

To AUTHORIZE presentation of evidence

o ROYAL CARGO CORP. v. DFS SPORTS UNLIMITED,

INC., GR 158621, 12/10/08; CO TIAMCO v. DIAZ, 75

Phil. 672 (1946)

5. Manner of filing amended pleadings (Sec. 7)

6. EFFECT of amended pleadings (Sec. 8)

7. SUPPLEMENTAL pleadings (Sec. 6)

o Supplemental pleadings cannot introduce new cause of action

(Leobrera v. Court of Appeals G.R. No. 80001, February 27,

1989, 170 SCRA 711)

o A party may not be declared in default for failure to answer a

supplemental pleading. CHAN v. CHAN, GR 150746, Oct. 15,

2008

8. DISTINCTION between amended and supplemental pleadings

Matters covered

Where a party has no cause of action at the commencement of

the action, the same cannot be cured by amended or

supplemental pleadings (SWAGMAN HOTELS vs. CA, G.R. No.

161135, April 8, 2005)

CHAPTER VIII. PERIODS –

A. WHEN to file responsive pleadings (Rule 11)

15 days after service of summons or unless a different period is fixed.

Amended complaint -15 days from service if the amendment is a

matter of right; 10 days from notice of the order of admission if done

with leave.

30 days from receipt by the main office of the foreign corporation

where summons is made to govt. official designated by law to receive

the same(e.g. SEC, Supt. Of Banks, Insurance Commissioner); 15

days if summons served to resident agent

60 days or longer at the discretion of the court in summons served by

publication


Counterclaim or cross-claim – 10 days from service of the answer

Third party complaint, etc. – same rule as in complaint.

B. Court may EXTEND period of filing of a pleading or allow the filing BEYOND

THE PERIOD fixed under the rules. (Sec. 11, Rule 11)

C. COMPUTATION of time (Rule 22)

BPI v. CA, GR 142731, 6/08/06 (20 days TRO should include holidays)

BILL OF PARTICULARS (Rule 12)

1. When applied for; purpose (Sec. 1)

2. Action of the court (Sec. 2)

3. Compliance (Sec. 3)

4. Effect of non-compliance (Sec. 4)

5. Stay of period to file responsive pleading. (Sec. 5)

G. FILING and SERVICE of Pleadings, Judgments and other papers (Rule 13)

1. FILINGModes

Personally

Registered Mail- date of mailing is the date of filing

2. What papers are required to be FILED and SERVED?

3. SERVICE OF Pleadings/papers–

Garrucho v. Court of Appeals, G.R. No. 143791, 14 January

2005, 448 SCRA 165;

Modes

Personal Service (Sec.6)

Service by Mail

o Registered mail (date of mailing-date of service)

o Ordinary mail

Substituted

4. SERVICE of JUDGMENTS etc. –

Modes

Personal service

Registered Mail

o Present address, not last known address (BELEN v.

CHAVEZ, GR 175334, 3/26/08);

o Deemed effective after 5 days from receipt of the first

notice; QUELNAN v. VHF Phil. , GR 138500, 9/16/05


By publication in cases where the defendant was summoned by

publication and he did not appear in the case.

5. COMPLETENESS of SERVICE

The registry notice must indicate the nature of contents of the mail

matter in order to have constructive notice. (Cayetano v. Ceguerra

and Serrano, 121 Phil. 76 (1965);

8. PRIORITIES in Filing and Service-filing-

Solar Team Entertainment, Inc. v. Ricafort, 355 Phil. 404 (1998)

The filing of affidavit of service is not substantial compliance of Sec. 11, Rule

13, requiring Explanation in case the mode of service is other than Personal

service. MC Engineering Inc. v. NLRC, GR 142314, 6/28/01

Absence of Written explanation may be excused if the impracticability of

personal service is apparent from the pleadings (distance between the offices

of the lawyers) MACEDA v. MACATANGCAY, GR 164947, 1/31/06

9. PROOF of-

FILING

o Existence of record on file

o If no record on file-

§ Personal-acknowledged copy

§ By Registered Mail-registry receipt/affidavit

AMEX v. SISON, GR 172901, Oct. 29, 2008

SERVICE

o Written acknowledgment

o Official return of server

o Affidavit of party serving

§ Registered mail- registry receipt/affidavit of service;

return card must be filed or the unclaimed letter with

sworn notice of the postmaster

§ Ordinary mail-affidavit of service

8. What is a notice of LIS PENDENS; its effect?

In what actions applicable?

o “According to Section 24, Rule 14 of the Rules of Court and Section

76 of Presidential Decree No. 1529, a notice of lis pendens is proper

in the following cases, viz.:

a) An action to recover possession of real estate;

b) An action to quiet title thereto;

c) An action to remove clouds thereon;

d) An action for partition; and

e) Any other proceedings of any kind in Court directly affecting the title

to the land or the use or occupation thereof or the buildings thereon.

(Magdalena Homeowners Association, Inc. vs. Court of Appeals, 184

SCRA 325, 329-330, April 17, 1990)


o May the Register of Deeds refuse to register an application for a

notice of lis pendens on the ground that the applicant does not have

any title or right of possession over the subject properties?

[Villanueva vs. Court of Appeals, 281 SCRA 298(1997)]

Matters in the NOTICE

Effect of NOTICE

How and grounds for cancellation

o Whether or not ‘materials or workers’ lien may be the subject of “lis

pendens” Atlantic Erectors, Inc. v. Herbal Cove Realty Corp. GR

148568, 3/20/03

o The registered owners must be parties to the action (REYES v. CA,

GR 153263, 8/28/08

CHAPTER VII. SUMMONS (Rule 14)

A. Importance of service of summons?

Who issues and what are the contents of a summons? (Sec. 1-2)

Who may serve the summons? (Sec.3)

Return (Sec. 4)

Alias summons (Sec. 5)

Kinds of actions; service of summons

o In personam- GOMEZ v. CA, GR 127692, 3/10/04

o Quasi in rem (quieting of title)- SAN PEDRO v. ONG, GR 77598,

10/17/08.

o While the case involved claims against a vessel and is therefore an

action in rem, the claim for damages against the bank (a non resident

foreign corporation served with summons by publication) made the

action one in personam to that extent. (Banco de Brasil v. CA, GR

121576, 6/16/00)

o Appearance of counsel- BELEN v. CHAVEZ, GR 175334, 3/26/08

B. MODES OF SERVICE

1. IN PERSON (Sec. 6)–priority- resort to other modes not allowed unless summons

could not be served in person within reasonable time.

2. SUBSTITUTED SERVICE (Sec. 7) –if, for justifiable causes, summons could not

be served in person within reasonable time.

Nature and requisites: MANOTOC v. CA, 499 SCRA 21 [2006]

Sheriff can only employ substituted service after he makes an attempt at

personal service. His failure to serve by personal service must be reflected in


his RETURN, otherwise, the service is ineffective. (Hamilton v. Levy, GR

139283, 11/15/00)

§ presumption of regularity in the performance of official functions by the sheriff

is not applicable in this case where it is patent that the sheriff's return is

defective (Venturanza v. CA, 156 SCRA 305)

§ Not valid service without the return explaining why prior resort to service in

person was not made. (Guiguinto Credit Coop. v. Torres, GR 170926,

9/15/06; Samartino v. Raon et al., GR 131482, 7/03/02).

§ Not valid if hastily and capriciously resorted to without actually exerting any

genuine effort to locate respondents.(Jose v. Boyon, GR 147369, 10/23/03)

§ VALID even if made through security guard if sheriff was prevented from

entering subdivision through instruction of defendant and defendant failed to

controvert such a report by the sheriff.(ROBINSON v. Miralles, GR 163584,

12/12/06)

3. BY PUBLICATION

§ To what cases applicable: Applicable only in in rem and quasi in rem –(Jose

v. Boyon, GR 147369, 10/23/03);

§ BUT in SANTOS, JR. vs. PNOC EXPLORATION CORPORATION, G.R. No.

170943, September 23, 2008, 1st Div., J. Corona- it was ruled to be

applicable in action in personam where the defendant’s whereabouts is

unknown.(Sec.14). Also see comments in MANGILA v. CA 387 SCRA 162)

§ Requirements and Proof of service (including requisite affidavits), by

publication must be strictly complied with. (GONZALES v. CA, GR 150908,

1/21/05)

C. SERVICE OF SUMMONS IN SPECIFIC INSTANCES:

1. Entity without juridical personality (Sec. 8)

Corporation under MANCOM- Tyson’s Super Concrete vs. CA, 6/23/05

2. Prisoners (Sec. 9)

3. Minors and incompetents (Sec. 10)

4. Domestic private juridical entity (Sec. 11)

§ Must be made on the officer named in the statute; (branch manager not

among them) Bank of Philippine Islands v. Santiago, G.R. No. 169116,

March 28, 2003, 519 SCRA 389

§ Service of summons through the secretarial staff, NOT VALID (PARAMOUNT

INSURANCE v. A.C. ORDONEZ Corp., GR 175109, 8/06/08)


§ No more “substantial compliance” rule, but “restricted, limited and exclusive

(Mason v. CA, GR 144662, 10/13/03, CITING Villarosa v. Judge Benito,

370 Phil. 921 (1999)

§ Improper service of summons renders the declaration of default void (MASON

v. CA, 413 SCRA 303)

§ DEFECT CURED: But Improper service to legal secretary cured not only by

admission of actual receipt, but for asking affirmative reliefs in several motions

(Oaminal v. Castillo, Gr 152776, 10/8/03)

5. Foreign private juridical entity (Sec. 12)

Upon the resident agent (see also Sec. 123, Corp. Code)

If none, thru the government agency designated by law/rules (Sec. 128,

Corporation Code; substituted service, applicable in natural persons,

may be resorted to if there is failure of personal service-Pioneer

International LTD v. Guadiz, GR 156848, 10/11/07)

Any officer or agent found in the Philippines

As amended under SC AM No. 11-3-6, it provides for service of summons

to foreign corporations not registered (licensed) or has no resident agent,

similar to that of extra-territorial service to non-resident individuals not

found in the Philippines under Sec. 15.

o By personal service coursed through appropriate court in the

foreign country with assistance of DFA.

o By publication once in a newspaper of general circulation in the

country where the defendant may be found and by serving copy

of the summons and the court order by registered mail at the last

known address of the defendant

o By facsimile or any recognized electronic means that oculd

generate proof of service, or

o By such other means as the court may in its discretion direct.

6. Public corporations (Sec. 13)

7. Unknown defendant or whereabouts unknown-(Sec. 14)–with leave, by publication

Available even in action in personam; Affidavit of Service need not be executed by

the clerk of court. SANTOS v. PNOC Exploration Corp., GR 170943, 9/23/08

8. Extra-territorial service (Sec. 15) – in rem/ quasi-in-rem cases where the

defendant is non-resident and not found in the Philippinesa).

personal service effected out of the Philippines

b).publication and sending a copy to the last known address

c).in any other manner the court may deem sufficient.

Example- Registered mail. Licaros v. Licaros, GR No. 150656,

4/29/03


§ Does not apply in action in personam like collection of money even if

attachment is prayed for if no property is actually attached. (ELMER

SINGAPORE v. DAKILA TRADING, GR 172242, 8/14/07)

9. Resident temporarily out of the Philippines (Sec. 16)– with leave of court, MAY BE

SERVED through extra-territorial service. (Sec. 15) or Substituted Service (Sec. 7)

§ Substituted service is the normal method (Montefalcon v. Vasquez, GR

165016, 6/17/08); Extra-territorial service only when substituted service is

not feasible; see also PCIB v. Alejandro, GR 175587, 9/21/07

D. PROOF OF SERVICE-(Sec.18); proof if service by publication (Sec.19)

Alias summons (Sec. 5)

E. Voluntary Appearance (Sec. 20)

The filing of a compulsory counterclaim in an ANSWER ad cautelam is not

voluntary appearance (ELMER SINGAPORE v. DAKILA TRADING, GR 172242,

8/14/07) COMMENT: By seeking relief under the counterclaim, is the

counterclaimant (defendant) not deemed to have submitted to the jurisdiction of

the court?

F. Additional notes: In case of amendment to the complaint, it does not require new

summons; In case of amendment while defendant is declared in default, new summons should be issued

on amended complaint as the new matters subject amendment cannot bind the defendant unless new

summons was served (ATKINS KROLL & CO. v. Domingo, 44 Phil 680

CHAPTER IX . MOTIONS

A. MOTIONS - in general (Rule 15)

1. Defined (Sec.1)

2. Requirements:

a. in writing, exception (Sec. 2)

b. contents & form (Sec. 3)

c. notice of hearing, exception (Sec.4)

should be served to ensure receipt 3 days before hearing (otherwise

the MR did not toll the reglementary period of appeal-CAMARINES

Corp. v. Aquino)

EXCEPTION: (1) where a rigid application will result in a manifest

failure or miscarriage of justice especially if a party successfully

shows that the alleged defect in the questioned final and executory

judgment is not apparent on its face or from the recitals contained

therein; (2) where the interest of substantial justice will be served; (3)

where the resolution of the motion is addressed solely to the sound

and judicious discretion of the court; and (4) where the injustice to the

adverse party is not commensurate with the degree of his


thoughtlessness in not complying with the procedure prescribed.

(SARMIENTO v. ZARATAN, GR 167471, 2/05/07

d. Notice addressed to all parties, date/time not later 10 days from filing (Sec.5)

e. proof of service (Sec. 6)

The affidavit of service by registered mail must be made by the

person who actually mailed; the registry return receipt must indicate

what was mailed (ROMULO v. PERALTA, GR 165665, 1/31/07

Exception: when the adverse party actually received a copy of the

motion and had opportunity to oppose the same. Vette Indusrial

Sales Co., Inc., v. Cheng, GR 170232 & 170301, 12/05/06

2. Motion day (Sec. 7)

3. Omnibus Motion Rule (Sec. 8, Rule 15)

4. Motion for leave-accompanied by the pleading or motion to be admitted (Sec. 9)

B. MOTION TO DISMISS (Rule 16)- upon initiative of the defending party

1. GROUNDS (Sec. 1) (code – J2VC3 LRPEU

a. No jurisdiction over the person of defending party- May be waived by

voluntary appearance. No waiver of this defense even if invoked with the

other grounds.

Forfeiture proceedings- being in rem proceedingssummons

by publication may be allowed. RP v. Glasgow

Credit, GR 170281, 1/18/08

b. No jurisdiction over the subject matter - determined from the

allegations of the complaint and the law prescribing jurisdictions.

DAR v. Abdulwahid, GR 163285, 2/27/08

forum non conveniens- Raytheon v. Rouzie Gr

162894, 2/26/08

c. Improper venue –

The court cannot motu proprio dismiss the case on improper

venue.(Rudolf Lietz Holdings, Inc. vs. Registry of Deeds of

Paranaque, GR No. 133240, 11/15/00). If erroneously denied, the

remedy is PROHIBITION (Enriquez v. Macadaeg, 84 Phil 674).

Objection impliedly waived if movant goes to trial (PICOP v. Samson,

11/28/75).

d. No legal capacity to sue – The plaintiff is not in the full possession of his

civil rights, or he does not have the character or representation he claims.

If a plaintiff loses his capacity to sue during the pendency of a case,

the defendant should be allowed to file a motion to dismiss, even after


the lapse of the reglementary period for filing a responsive pleading

(Obando v. Figueras, GR 134854, 1/18/00).

Foreign Corporation- doing business in the Philippines without a

license cannot maintain a suit (Sec. 133, Corp. Code)

o Exception- “Isolated transaction” (AETNA Casualty & Surety

vs. Pacific Star Line, L-26809, 12/29/77)

e. litis pendentia- (or lis pendens or auter action pendant)

Litis pendentia applied even if same cause was pending in another

proceeding, not an action (before the LMB). Sherwill Dev. Corp. v.

Sitio Sto. Nino residents et al., Gr 158455, 6/28/05)

No litis pendentia if a proper after-acquired counterclaim is made the

subject of a separate action. (Instramuros Administration v.

Contacto, Gr 152576, 5/5/03)

Priority in time rule- Del Rosario v. Jacinto, 15 SCRA 15 [1965]

More appropriate action test or anticipatory test- Teodoro v. Mirasol,

99 Phil 150 [1956]

-considerations predominate in the ascending order of importance in

determining which action should prevail: (1) the date of filing, with

preference generally given to the first action filed to be retained; (2)

whether the action sought to be dismissed was filed merely to

preempt the later action or to anticipate its filing and lay the basis for

its dismissal; and (3) whether the action is the appropriate vehicle for

litigating the issues between the parties. Domatrix Trading v.

Legaspi, GR 155622, 10/22/09 (citations omitted)

f. res judicata

Bar by prior judgment [Rule 39, Sec. 47 (b)]

o Final judgment, jurisdiction over the subject matter and parties,

identity of parties, subject matter and causes of action between

the first and second action.

Conclusiveness of judgment [Rule 39, Sec. 47(c)]

o There is no identity of cause of action, and facts and issues

actually and directly resolved in a former action cannot be

relitigated in a subsequent action between the same parties.

§ (Oropeza Mktg. Corp. v. Allied Banking Corp. , GR

129788, 12/03/02)

§ RP v. YU et al., GR 157557, 3/10/06.- action for

reversion of an expropriated property.


§ No identity of parties, subject matter and causes of

action – (Ramirez v. CA, GR No. 133841, 8/15/03).

g. prescription (of actions)- (under Arts. 1139 to 1155, Civil Code)

dismissal on this ground will be considered if it appears on the complaint;

if not, then the resolution will be considered during the trial.

Heirs of Dolleton v. Fil Estate, GR 170750, 4/7/09

Lasquite v. Victory Hills, GR 175375, 6/23/09

h. Failure to state a cause of action-

Plaintiffs allegation that they are entitled to the proceeds of the

insurance states no cause of action because they, although legal

heirs of the deceased, are not the beneficiaries in the insurance policy

(Maramag v. Maramag, G.R. No. 181132, June 5, 2009).

Where there allegations show no violation of right yet (Danfoss, Inc.

v. Continental Cement Corp., Gr No. 143788, 9/9/05).

Sufficiency is based on the allegations of the complaint (Ceroferr

Realty Corp. v. CA, GR 139539, 2/5/02).

May consider other evidence on record (Nadela v. Cebu, 149627,

9/18/03).

i. Extinction- (prescription of real & other rights under Arts. 1117 to 1138 of

the Civil Code)

j. Statute of frauds (see Arts. 1403 (2), 1405 & 1406, Civil Code)

k. Condition precedent for filing the claim has not been complied

with.

– (lack of cause of action) such as:

No allegation as to earnest efforts exerted towards settlement among

members of the same family (Art. 150 Family code). Failure to allege

may be cured by amendment if there is actual efforts exerted towards

settlement (TRIBIANA vs. TRIBIANA, G.R. No. 137359, September

13, 2004).

o Does not apply where compromise is not allowed

such as civil status, validity of marriage or legal

separation, ground for legal separation, future

support, jrusideiction and future legitime. (Art. 2035,

Civil Code.

Non exhaustion of administrative remedies

§ NIA v. ENCISO, GR 142571, 5/5/06

Non referral to the barangay lupon where the action requires

barangay conciliation. ROYALES v. IAC, 212 Phil. 432 (1984)


KATARUNGANG PAMBARANGAY (Local Gov’t Code, RA 7160,

Secs. 399-422)

Reason for barangay conciliation & requirement under the law

Cases covered-

Jurisprudence:

o DOES NOT APPLY to: where one of the parties is an

estate (Vda de Borromeo vs. Pogoy, 126 SCRA

217); Where there are several plaintiffs or

defendants, and one of them is the government or its

subdivisions or instrumentality, a confrontation should

still be undertaken among the parties. (Gegare v.

CA, 177 SCRA 417); does not apply to labor disputes

(Montoya vs. Escano, 171 SCRA 442);

o Where the complaint states that the address of the

plaintiff as “Baguio post office”, it does not

necessarily imply that plaintiff is a resident of Baguio

just like the defendant, and barangay conciliation is

not necessary. (Boleyley vs. Hon. Clarence

Villanueva, GR 128734, 9/14/99)

2. ACTION by the court- Resolution of motion-(Sec.3) –

dismiss, deny, or order amendment;

Cannot defer resolution.

The resolution shall state clearly and distinctly and reasons therefore.

(Instramuros Administration v. Contacto, Gr 152576, 5/5/03)

3. EFFECT OF dismissal (Sec. 5)- remedies available (RPEU)

subject to the right of appeal, the dismissal on ground of res judicata,

statute of limitations, extinction of the claim or unenforceability (statute of

frauds), BARS the refiling.

4. Time to plead if motion is denied or amendment is ordered (Sec.

4) -

5. Pleadings grounds as affirmative defenses (Sec. 6)

A preliminary hearing on the defenses is still possible even if the defenses

were already included in a motion to dismiss (California and Hawaiian

Sugar Co. v. Pioneer Insurance and Surety Corp., GR 129273,

11/29/00)

F. DISMISSAL OF ACTIONS (Rule 17)

1. By the PLAINTIFF

a. by NOTICE- anytime before service of Answer or Motion for Summary

Judgment (Sec.1)

-without prejudice


-with prejudice (because of two dismissal rule or so expressed in

the notice or dismissal is premised on the fact of payment).

Notice of dismissal prevail over defendant’s motion to

dismiss (DAEL v. BELTRAN GR 156470 4/30/08

b. by MOTION (Sec.2)

dismissal limited to the complaint if counterclaim has been

pleaded before service of plaintiff’s motion; counterclaim to be

prosecuted in a separate action UNLESS within 15 days from

service of the motion, defendant manifests his preference to

prosecute his counterclaim in the same action. Dismissal

WITHOUT PREJUDICE unless otherwise specified in the

order.

2. Due to the PLAINTIFF’S FAULT (Sec.3)- initiative of the adverse party or court

a). Plaintiff’s failure to appear during presentation of evidence in chief

b). Failure to prosecute action for unreasonable length of time

c). Failure to comply with the rules

d). Failure to comply with any order of the court

Filinvest v. CA GR 142439 12/6/06

4. Counterclaim may be prosecuted in the same or separate action.

Tracing the history and rationale for the rule (PINGA v. Heirs of

Santiago GR 170354, 6/30/06)

5. Rule applies to dismissal of the counterclaim, cross claim or third party complaint

(Sec.4)

CHAPTER X. PRE-TRIAL PROCEEDINGS; MEDIATIONS, JUDICIAL

DISPUTE RESOLUTIONS

A. Pre-trial (Rule 18)

Read: PRE-TRIAL AND USE OF DEPOSITION-DISCOVERY PROCEDURES, AM No.

013-1-09-SC 7/13/04

B. Who should initiate and when

C. nature and purpose (AIAFWCJSO) or WAIS2 CAJO

D. notice- who issues and to whom addressed

appearance of parties; effect of failure to appear- Absence of counsel (Paredes et al.,

v. Verano, GR 164375, 10/12/06)

MR must show grounds (FAME) for failure to attend (CIRCLE Financial Corp v. CA,

GR 77315, 4/22/91)

E. pre trial briefs; contents (WAISCD2); effect of non submission

F. Court Annex Mediation (CAM)

G. Judicial Dispute Resolution (JDR)

H. Proceedings taken if all mediation fails

i. Referral to COC for preliminary conference

ii. Continuation of the pre-trial by the judge

I. record of pre-trial


CHAPTER XI. TRIAL (Rule 30)

A. Interventions (before judgment) (Rule 19)

NORDIC ASIA v. CA, GR 111159, 7/13/04

by a third party claimant (FBDC v. Yllas lending corp. GR 158997, 10/6/08

Exception: Even after judgment, if the intervenor is an indispensable party

(Looyuko v. CA, GR Nos. 102696,102716,108257, 120954, 7/12/01); but not a

transferee pendent lite (SLDC v. CA, Quisumbing, GR 106194, Jan. 28, 1997)

B. Calendar of cases (Rule 20)

C. Subpoena & subpoena duces tecum (Rule 21)

1. by whom issued; form and contents

2. Quashing a subpoena

3. Service

4. Personal appearance in court

5. Compelling attendance & contempt

D. MODES OF DISCOVERY

1. DEPOSITIONS

READ:

Deposition of witnesses may be taken even if such witnesses will be presented

during the trial (HYATT Industrial Mfg. Corp. v. LEY Construction, GR 147143,

3/10/06)

Deposition outside the country may be refused if the evidence sought would only

corroborative or cumulative (PEOPLE v. WEBB, GR 132577 August 17, 1999)

Witness is outside the Philippines at the time of offer (Sales vs. Sabino, GR No.

133154, 12/9/05)

a. Pending Actions (rule 23)

1). WHEN taken – with leave after jurisdiction acquired over the defendant or

property or without leave after service of the answer

Deposition before service of answer (but after jurisdiction is acquired over

the defendant or res) requires showing of “unusual” circumstances to

justify leave of court (REPUBLIC vs. SANDIGAN, GR 112710, 5/30/01)

2). SCOPE- on all relevant matter

3). MANNER (oral examination or written interrogatories)

Deposition may not be taken upon order of the court for good cause

shown (Sec.16) NORTHWEST AIRLINES vs. CRUZ, GR 137136, 11/3/09

4). USE of deposition

To contradict or impeach a witness

For any purpose –

o if the deponent is a party or officer of a juridical party


o if the witness is dead, or resides more than 100 kms away or is

out of the Philippines (unless procured), or unable to attend due

to age, sickness, infirmity, or imprisonment; or the party offering

the deposition is unable to procure a subpoena; or under

exceptional circumstances

5). EFFECT:

a) Effect of taking deposition of a witness – does not make him a witness

b) Effect of using depositions (other than for impeachment) – except for a

party, the deponent becomes a witness of the proponent

6). BEFORE WHOM TAKEN (domestic & foreign

-commissions, letters rogatory

7). record of examination; oath; objections

8). motion to terminate

9). DEPOSITION UPON WRITTEN INTERROGATORIES

-Serve written interrogatories; with notice to all parties

-within 10 days to serve cross interrogatories

-within 5 days to serve re-direct

-within 3 days to serve re-cross

[t]he protracted delay in the litigation at petitioner's instance coupled with

the belated and unsubstantiated allegations of illness and threats to

petitioner's life, more than sufficient reasons for the trial court to deny

petitioner's motion to take deposition by written interrogatories

(PAJARILLAGA vs. CA, GR 163515, 10/31/08)

interrogatories upon witnesses out of the country by a foreign corporation

(SAN LUIS v. Hon ROJAS GR 159127, 3/03/08)

b. Before or Pending Appeal (rule 24)

1) Deposition (before action)- to perpetuate a testimony

court petition at residence of expected adverse party

contents of petition

Notice (with petition) to the adverse party

-20 days before the hearing, the court issues notice to the parties

and prospective deponents – served as in summons

order

2). Deposition pending appeal (after taking appeal or before taking an appeal)

2. Interrogatories to Parties (Rule 25); REPUBLIC v. SANDIGAN, 204

SCRA 213

When – same conditions as in Sec. 1 of Rule 23

Written interrogatories (only one set for every party)– addressed to a party

Answers- sworn & within 15 days

Scope and use – same as in Sec. 2 of Rule 23

Effect of failure to serve – a party not served may not be compelled to give

testimony in open court and deposition pending appeal


3. Admission by adverse party (Rule 26)

When – after issues are joined

Request for admission – of genuineness of document and truth of any fact

(both must be relevant and material)

1. Request must be served on the party (BRIBONERIA v. CA, 216)

SCRA 607 (1992), not only to counsel (Duque v. CA, GR 125383,

7/02/02)

2. Counsel may answer the request for admission (Lanada vs. CA et al.,

GR no. 102390, 2/1/02)

3. No need of second denial (Po v. CA., 164 SCRA 668, 670, 1988)

4. It is the law, not the court, that determines the consequences of failure

to make or allow discovery (DIMAN vs. ALUMBRES, GR 131466,

11/27/98)

4. Production or inspection of documents or things (Rule 27)

-upon motion in a pending action

-order any party to produce and permit the inspection and copying or

photographing of any documents, papers, books, etc. or order any party to

permit entry upon property in his possession for inspection, measuring,

surveying or photographing.

Must specify with particularity the documents to be produced

(SOLIDBANK vs. GATEWAY, GR 164805, 4/30/08)

Cannot compel production of privileged matters, including trade

secrets (AIR PHIL. CORP vs. PENNSWELL, Inc. GR 172835,

12/13/07)

5. Physical and mental examination of persons (Rule 28)

-when physical and mental condition of a party is in issue

-Order upon motion

-Report of findings

If party examined requested and given a copy of the report, the

other party is entitled to receive a previous or subsequent

examination report; delivery may be compelled on motion and if

physician refuses his testimony may be excluded if offered at the

trial.

If party examined obtains a report, or takes the deposition of the

examiner, he waives any privilege in that action or in any other

involving the testimony of every other person who examined or

thereafter will examine him.

6. Effect of Refusal to comply with Modes of Discovery (Rule 29)

a. contempt of court- refusal to be sworn or to answer when directed by the

court in which the deposition is taken


b. Refusal to answer questions (under rule 23,24 & 25) when directed by the

court or produce any document or permit entry pursuant to an order under

Rule 27 or to submit to physical or mental examination under Rule 28, the

court may:

-matters asked, character or description of thing or land, or the

contents of a paper, or physical or mental condition or any

designated facts shall be taken as ESTABLISHED in accordance

with the claim of the party obtaining the order.

-disallow the disobedient party to support or oppose claims or

defenses or prohibiting him from introducing evidence

-strike out pleadings/parts thereof; or staying proceedings until

order is obeyed; dismiss the action or proceeding; or render

judgment by default against the disobedient party

-in LIEU or ADDITION, order ARREST of the party or his agent

EXCEPT an order to submit to physical or mental examination.

c. Willful Failure of a party to attend a deposition or serve answers

(rule 25) -

Strike out all/part of his pleadings

Dismiss action or proceeding

or enter default judgment

E Trial proper (Rule 30)

1. Postponements:

a. due to absence of evidence

b. due to illness of party or counsel.

2. Order of trial

3. Agreed statement of facts

4. Statement of judge

5. Judge to receive evidence; delegation to clerk of court

a. When may be delegated to the clerk of court

b. Clerk cannot make findings of facts and law; nor rule on objections.

G. Consolidation & Severance (Rule 31

F. Trial by Commissioner (Rule 32)

Power of commissioner is defined in the order.

Subject to the limitations imposed by the court, the commissioner may rule on

objections and make findings of fact and law. He may also issue subpoena and

subpoena duces tecum.

Action of the court on the report of commissioner.


G. Demurrer to evidence (Rule 33)

When- after the presentation of the evidence by the claimant, the defending party

before presenting his evidence, may move for demurrer to evidence on the ground

that based on the evidence and the law, claimant is not entitled to relief.

Effects: if denied, defendant can present evidence. But if granted, and dismissal

is reversed on appeal, defendant loses the right to present evidence

CHAPTER XII. JUDGMENTS

A. Judgment on the pleadings (Rule 34) – on motion by the claimant party, when the

answer fails to tender an issue or otherwise admits the material allegations in the complaint

Judgment is possible even with a pending third party complaint- (Narra Integrated Corp.

v. CA, GR 137915, 11/15/00)

Judgment on the pleadings still possible even if the movant is the defending party; in this

case, actual as well as moral, exemplary and attorney’s fees were awarded.

(SUNBANUN v. GO, GR 163280, 2/2/10 2nd div. Carpio, J.)

For having prayed for a judgment on the pleadings, plaintiff is deemed to have admitted the truth of the

defendant's denial on the alleged damages and to have rested his motion for judgment on those

allegations taken together with such of his own as are admitted in the pleadings. (GALOFA v. NEE

BON SING, 22 SCRA 48 [1968])

B. Summary judgments (Rule 35) – on motion (with at least 10 day-notice) of the claimant

after service of the answer, or by the defending party, at anytime, in claim, counterclaim, cross claim, third

party complaint, including an action for declaratory relief,

MARCELO v. SANDIGANBAYAN, 531 SCRA 385 –(proper)

When there are disputed facts, the issues cannot be tried by mere affidavits. (Solid Bank

Corp. v. CA, et al., GR 120010, 10/3/02)

RIVERA v. SOLIDBANK, 487 SCRA 512

C. Judgments, Final Orders and entry (Rule 36)

1. Meaning of judgments and final orders

2. Formal Requirements

3. Finality or entry

4. Final order distinguished from Interlocutory orders

5. Several judgment / Separate judgment

CHAPTER XIII. REMEDIES AGAINST A JUDGMENT

FRESH PERIOD RULE:

Neypes vs. CA, GR 141524, 9/14/05;


A. RECALL OR REVIEW BY THE SAME COURT OF ITS OWN JUDGMENT

OR ORDER

1. MOTION FOR NEW TRIAL OR RECONSIDERATION (Rule 37) – within the time of taking

an appeal and filed with the same case.

Period within which to file: rule-cannot be relaxed; exceptions(Delos Santos v. Elizalde,

GR 141810& 141812, 2/02/07)

MOTION FOR NEW TRIAL

GROUNDS: FAME & Newly discovered evidence

o Extrinsic Fraud

o Accident

o Mistake – could not have been guarded against by ordinary prudence

(VIKING INDUSTRIAL CORP. vs. CA, G.R. No. 143794, July 13,

2004).

o Gross negligence of counsel amounted to denial of due process

(MULTI-TRANS AGENCY vs. ORIENTAL ASSURANCE, GR

180817, 6/23/09

REQUIREMENTS: Verified Motion, Affidavit of merit, In case of newly

discovered evidence, the affidavit of the witness or the authenticated copy of

the document.

MOTION FOR RECONSIDERATION

GROUNDS: Excessive damages, Insufficient evidence, Contrary to the facts

and law

NOTES:

1. A motion for reconsideration is not required as a condition precedent for an

appellate review BUT is required in cases involving custody of minors,

declaration of nullity or annulment of marriages.

2. No second MR by party against a judgment or Final order

3. No second Motion for New Trial UNLESS the ground was not existing and

available during the pendency of the first motion.

4. Pro-forma motions: when it does not comply with the specific requirements of

motion in general and in particular

2. RELIEF FROM JUDGMENT, FINAL ORDER OR PROCEEDING (Rule 38)

(FAME)

Not a proper case (Gomez v. MOntalban, GR 174414, 3/14/08


Transferor pendente lite has the legal personality to file the petition (Dela Cruz

v. Quizon, GR 171961, 11/28/08

Rule 38 applies only to MTC and RTC. (Mesina v. Meer, GR 46845, 7/2/02);

Not available remedy before the SC (PURCON, JR. vs. MRM PHIL., GR

182718, 9/26/08;

Relief against a final and executory judgment. Samartino v. Raon et al., GR

131482, 7/03/02;

a. When – (within 60 days from knowledge or 6 months from entry of judgment or

taking of the proceeding)

Both periods must concur (Quelnan v. VHF Philippines, G.R. No. 138500,

September 16, 2005, 470 SCRA 73)

The 60-day period is reckoned from the time the party acquired knowledge of

the order, judgment or proceedings and not from the date he actually read the

same. Escueta v. Lim, GR 137162, 1/24/07

b. Subject: Judgment, Final Order or Proceeding or an order denying an appeal

c. Grounds: FAME

Extrinsic fraud: committed by counsel (BANG vs. SY, GR 179955, 4/24/09)

Excusable Negligence: Negligence of counsel to pay the docket fee 9 days

after the expiration of the period of appeal not excusable. Ruiz v. Santos, GR

166386, 1/27/09

d. Effect if granted- judgment vacated as if a timely motion for new trial or

reconsideration was granted and trial de novo shall proceed. If the petition is

directed against a denial of an appeal, the appeal is given due course.

B. REVIEW BY ANOTHER COURT

Appeal from a denial of a Motion for execution of the judgment (VALDEZ v. FINANCIERA

MANILA, INC., GR 183387, 9/29/09) NOTE: this ruling seems questionable.

Appeal from the Order denying a Motion for Reconsideration (Quelnan v. VHF

Philippines, Inc, G.R. No. 145911, July 7, 2004)

1. BY APPEAL

EFFECTS OF:

Perfection of appeal

Loss of jurisdiction

Residual jurisdiction- extent

a. ORDINARY APPEAL

1) Notice of Appeal (appeal period - 15 days)


2) Notice of Appeal PLUS RECORD ON APPEAL – in special proceedings, cases

involving multiple appeals. (appeal period- 30 days)

b. PETITION FOR REVIEW

i. Petition for Review (rule 42)

ii. Petition for Review (rule 43)

c. PETITION FOR REVIEW ON CERTIORARI (Rule 45)

Docket fees -Payment of docket fee is now mandatory and jurisdictional (Lazaro vs.

CA, GR 137761, 4/6/00); and must be paid within the period to appeal (Oriental

Assurance corp. vs. Solidbank Corp., GR no. 139882, 8/16/00)

-Dismissal of the case on appeal is discretionary, and the erroneous assessment by the

clerk of court is a justifiable reason. (Yambao v. CA, GR No. 140894, 11/27/00)

-After the notice of appeal was filed, the court no longer has jurisdiction to entertain a

motion for new trial. Heirs of Antonio Pael v. Domingo, GR 133547, 2/10/00;

BUT THERE COULD BE SIMULTANEOUS RESORT TO SUCH REMEDIES- RF

Navarro & Co. vs. Vailoces, GR 102313, 7/12/01

Issues raised may not be raised for the first time on appeal. Except: In consonance

with the demand of justice- (Sy Chin v. CA, GR 136233, 11/23/00

EQUITY JURISDICTION:

PCI Leasing and Finance, Inc. v. Milan, GR 151215, 4/5/10

a.. Appeal from MTCs to RTC (Rule 40)

If the RTC, on appeal from a judgment of the MTC dismissing the case on

jurisdictional grounds, reverses the dismissal, cannot decide the case on the

merits, but must remand the case to the MTC for further proceedings. Herrera

v. Bollos, GR 138258, 1/18/02

b. Appeal from RTC to CA (Rule 41 & 42)

See AM No. 07-7-12-SC 12/4/07 on amendments

c. Appeal from agencies, boards, tribunals to CA (Rule 43)

As a rule, the tribunal whose decision is subject of review should not be impleaded; neither

should it intervene. However, in case of exoneration, it may appeal from such exoneration.

Civil Service Commission v. Dacoycoy 306 SCRA 425 (1999).

It is a well-known doctrine that a judge should detach himself from cases where his

decision is appealed to a higher court for review. The raison d’être for such doctrine is the

fact that a judge is not an active combatant in such proceeding and must leave the

opposing parties to contend their individual positions and the appellate court to decide the


issues without his active participation. When a judge actively participates in the appeal of

his judgment, he, in a way, ceases to be judicial and has become adversarial instead.

[Pleyto vs. Philippine National Police Criminal Investigation and Detection Group (PNPCIDG),

538 SCRA 534(2007)]

d. Appeal from RTC to SC (Rule 45)

e. Appeal from CA to SC (Rule 45) on pure question of law

o An appeal on the dismissal on the ground that complaint failed to state

a cause of action can only raise question of law. Hence the appeal to

the CA is improper. (China Road and Bridge Corp. v. CA, GR

137898, 12/15/00)

EXCEPTION to PURE QUESTION OF LAW requirement: when there is

misapprehension of facts or failure to notice certain relevant facts – BPI Family

Savings Bank, Inc. vs. CA, GR 122480, 4/12/00; or when there is conflicting

findings of facts of the trial court and the appellate court. Ladinon v. CA, GR

122973, 7/18/00

2. BY INDEPENDENT ACTION

a. Direct attack

i). ANNULMENT OF JUDGMENT (Rule 47)

-filed with RTC involving a decision of the MTC

-filed with CA involving a decision of the RTC

Grounds: Lack of jurisdiction

Extrinsic Fraud

o Gross negligence of counsel - as extrinsic fraud.

Heirs of Antonio Pael v. Domingo, GR 133547,

2/10/00

NOTES:

1. Could not be resorted to if other remedies under the law

are available or were not availed without sufficient

justification (Arcenas v. Queen City Development

Bank, GR 166819, 6/16/10)

ii). Special Civil Action of Certiorari

b. Collateral attack- for being nullity apparent on the face of the judgment

CHAPTER XIV. ENFORCEMENT OF JUDGMENTS (Rule 39)

A. Kinds of execution:

1. Final judgment, execution of-

2. Pending appeal, execution of judgment - Upon good grounds:

o deterioration of vessel-(Yasuda v. CA, GR 112569, 4/12/00)


o A corporation which obtained a favorable judgment cannot move for execution pending

appeal on the ground of impending bankruptcy unlike individuals. (Diesel

Construction Co.,Inc. v. Jollibee Foods Corp. ,GR 136805, 1/28/00)

o Court of Appeals cannot order execution pending appeal of its own decision, because

it is not provided in the rules. (Heirs of the late Justice Jose B.L. Reyes v. CA, GR

135180-81, 8/16/00)

Foreign judgment:

Asivest Merchant Bankers (M) Berhad v. Ca, GR 110263, 7/20/01;

Garcia v. Recio, GR No. 138322, 10/2/01

B. Form and contents of the writ

i. Judgment is not confined to what appears on the face of the decision, but extends as well

to those necessarily included therein or necessary thereto (TUMBAY v. SORO, GR

152016, 4/13/10, citing DHL Phil. Corp. United Rank and file Asso. V.

Buklod ng

Manggagawa ng DHL Phil. Corp., 478 Phil. 842, 853); PEREZ v.

EVITE, 111Phil 564

(1961)

C. Execution of money judgment

A terceria or third party claim is not necessary in filing a separate action (Naguit v. CA.,

GR 137675, 12/5/00)

D. Execution of judgment for specific acts

E. Execution of special judgments

F. Return of the writ

G. Effects of judgment


CHAPTER XV. PROVISIONAL & OTHER REMEDIES

A. Preliminary Attachment (Rule 57)

When available and in what cases may it be availed

B. Preliminary Injunction (Rule 58)

Prior service of summons or raffling may be dispensed with if could not be served despite

diligent efforts. Gonzales v. State properties Corp. GR 140765, 1/25/01

No clear right-

PEZA v. CARANTES, GR 181274, 6/23/10

BPI v. CA, GR 142731, 6/08/06

C. Receivership (Rule 59)

D. Replevin (Rule 60)

E. Support pendente lite (Rule 61)

F. Others: Notice of Lis Pendens

PART II . SPECIAL CIVIL ACTIONS

RULE 63.

To determine which court has jurisdiction over the actions identified in the

second paragraph of Section 1, Rule 63 of the Rules of Court, said provision

must be read together with those of the Judiciary Reorganization Act of 1980,

as amended. [Malana vs. Tappa, 600 SCRA 189(2009)]

A cursory examination of the foregoing averments readily shows that the

private respondents’ petition is indeed, as captioned, one for quieting of title

and nullification and cancellation of title. Thus, the private respondents assert

therein that the issuance to petitioners of a new owner’s duplicate copy of

OCT No. 4331, which was procured by fraudulent representation, casts a

cloud on the titles of the private respondents and, therefore, should be ordered

cancelled. [Heirs of Susana De Guzman Tuazon vs. Court of Appeals, 420

SCRA 219(2004)]

A. Certiorari, Prohibition, Mandamus (Rule 65)

Is a motion for reconsideration filed beyond 15 days from receipt of an interlocutory

order considered filed out of time? Lanada vs. CA et al., GR no. 102390, 2/1/02; but

although the 60-day period will be counted from receipt of denial of the first motion for


reconsideration, and not from the denial of the second or third motion for

reconsideration. (San Juan, Jr. v. , 497 SCRA 410[2006])

Prohibition – mayor acted in excess of his jurisdiction (City Engineer of Baguio v.

Baniqued, GR 150270, 11-26-08)

B. Quo warranto (Rule 66)

C. Expropriation (Rule 67)

D. Foreclosure of REM (Rule 68)

E. Partition (Rule 69)

F. Forcible Entry (Rule 70)

G. Unlawful detainer (Rule 70)

Allegations sufficient to show “unlawful withholding”. Barba v. CA, GR 126638,

2/6/02

SEE: RULE ON SUMMARY PROCEDURE -

Jurisprudence:

Counter-affidavit may constitute an ANSWER to the complaint –JALIGUE v.

DANDAN, GR 148305, 11/28/03

Prior possession must be alleged by the plaintiff in a FORCIBLE ENTRY case.

Varona et al., v. CA, Lim, GR 124148, 5/20/04

Mere invocation of tolerance in an ejectment case does not make it proper

proceedings before the MTC. (Go, Jr. vs. CA, GR No. 142276, 8/14/01)

A certiorari proceedings, although not allowed under the Rules on Summary

Procedure, may be resorted if there is a procedural void created by an unlawful order

of the trial court. (Go et al., vs. Ca GR No. 128954, 10/8/98)

Similarly, a Motion for Reconsideration for failure of the plaintiff to appear during the

preliminary conference is not prohibited. What is prohibited is a motion for

reconsideration AFTER TRIAL. (Lucas v. Fabros, mtj-99-1226, 1/31/00); or motion

for reconsideration of an order of dismissal for lack of jurisdiction (JOVEN v. CA, GR

80739, 8/20/92)

There could be no preliminary hearing on the affirmative defense contained in an

ANSWER under the Rules on Summary Procedure to avoid unnecessary delay. (Del

Rosario v. CA, 241 SCRA 519)

A motion for extension of time to file an answer under the Rules on Summary

Procedure is dilatory in nature. (Gachon vs. Devera, et al., GR 116695, 6/20/97)

A position paper filed late may not be admitted. (Terana v. Sagun, 587 SCRA 60

[2009])


As a rule, an ejectment suit is not abated by a quieting of title filed with the RTC.

EXCEPTION: see Amagan v. Marayag, GR 138377, 2/28/00

Ownership as a defense, not a case of -. Lacap v. Lee, GR 142131, 12/11/02

The Regional Trial Court, except in execution pending appeal, has to remand to the

court of origin for execution of the judgment and cannot issue the writ of execution

itself. (Jason v. Ygana, RTJ-00-1543, 8/4/00)

An ejectment case may be initiated to recover an encroachment (Benitez v.

CA/Macapagal, GR 104828, 1/16/97)

G. Contempt (Rule 71)

1. Direct or Indirect

a. distinctions as to commission

b. distinctions as to how initiated

c. distinctions as to remedies

2. Criminal or Civil

a. distinctions as to punishment

b. distinctions as to how initiated

read civ pro

Documents