riano summarized civil procedure - · pdf fileriano summarized civil procedure chapter i:...

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pg. 1

RIANO SUMMARIZED CIVIL PROCEDURE

CHAPTER I: Fundamental Concepts

I. The Basics of Civil Litigation Process

Preparation of

Complaint

-no Cause of action

- wrong jurisdiction (motu proprio)

- wrong venue (upon motion)

- prescribed

- non compliance with conditions precedent

- no signed

- Forum shopping (upon motion

Dismissal

Filing of complaint

Non payment of docket fees within the reasonable time BUT before prescription -> no jurisdiction

Dismissal

Service of summons by the COC

Dismissal by plaintiff

Before answer- matter of right

After answer- court discretion

Dismissal

Amendment by plaintiff

Before responsive pleading is SERVED - matter of right

After responsive pleading is SERVED- court discretion

Defendant’s procedural options: not required to outrightly file an answer

1. answer 2. complaint ambiguous- file motion for bill of

particulars 3. has ground-> motion to dismiss 4. does not answer-> judgment by default

Answer

By

defendant

No ground for motion to dismiss or that motion to dismiss was denied

NO answer made Judgment by default

NO answer made

NO denial. No triable issues

Admission of claim

Judgment based on pleadings

Complaint- in- intervention:

Stranger asserts a claim against one or all of the parties


pg. 2

Cross claim to co-defendent

3rd

party complaint to a stranger

Purpose: contribution, indemnity, subrogation, other relief

Answer- in- intervention:

Stranger unites with the defendant in resisting a claim by plaintiff

Issue does not cover material fact

Summary judgment

Reply by Plaintiff Counter claim to plaintiff

Pre-Trial

(mandatory)

After last pleading has been served and filed

Alternative modes of dispute resolution

Modes of discovery

Trial

No settlement or compromise

Present evidence by plaintiff. Then rests

Defendant then:

1. presents own; or

2. demurrer to evidence

On demurrer to evidence:

1. denied-> may still present own evidence

2. granted-> denied on appeal -> waives right to present evident

Judgment

Judgment becomes final and executory

Post-judgment remedies

Execution

BEFORE judgment becomes final and executory

AFTER judgment becomes final and executory

a) motion for reconsideration

b) motion for new trial

c) appeal

a) petition for relief

b) action to annul judgment

c) certiorari


pg. 3

1st: Preparation of the complaint- lawyers meticulously pours over the following:

Cause of action vs. right of action.

-There is no right of action without there is no cause of action.

-Coa is determined by the allegations in the complaint not by the prayer.

Court having Jurisdiction.

-Wrong Juris-> motu proprio dismissal. Not waivable.

Venue. Wrong Venue-> dismissal upon motion. Waivable

Real party in interest

Prescription. Is prescribed-> ground for dismissal

Conditions precedent (eg. brgy conciliation, exhaust admin remedies, etc)

State ultimate facts. evidence is presented in the trial proper.

Relief prayed for.

Dated and signed.

-Signed by the party OR his counsel.

-not signed -> no legal effect.

-if counsel signs- it is a certification by him that he has read the pleading, that to the best of his knowledge, information, and belief, there are good grounds to support it and that it is not interposed for delay.

Address of the party OR counsel. Should it be verified?

- GR: no Exp: law of rule requires it. ( eg. summary procedure, certiorari, mandamus, etc)

Certification against forum shopping Violation-> dismissal upon motion

Provisional remedies ( depends upon nature of action)

2nd: Filing of complaint- act of presenting the same to court

Complaint filed + payment of docket fees= court acquires jurisdiction GR: must be accompanied by payment of docket or filing fees

SC Rule: relaxed it. May pay within a reasonable time BUT not beyond the prescriptive period. -Rule applies even on appeal.

Dismissal of action by plaintiff

Before defendant answers After defendant answers notice of dismissal. Motion to dismiss

GR: A matter of right EXP: exp: class suit (need court

approval)

Court’s discretion

GR: Dismissal is without prejudice to its later refilling.

Exp: 1) notice states otherwise; 2) covered by 2

GR: Dismissal is without prejudice to its later refilling.

Exp: court order states otherwise


pg. 4

dismissal rule

Amendment of complaint:

Before responsive pleading After responsive pleading A matter of right- if court refuses to accept, remedy is mandamus. * motion to dismiss is NOT a responsive pleading

Must be made with leave of court

Availed only once

When amendment may be denied: 1. amendment was intended for delay 2. no longer a matter of right 3. drastic chain in the cause of action or defense or a change in the theory of the case 4. no jurisdiction over the subject matter of the action and the amendment is for the purpose

of conferring jurisdiction upon the court where amendment is no longer a matter of right. ( since no juris over the action-> no juris to act on motion to amend)

Amendment by implication - When issues not raised in the pleadings are tried with the express implied consent of the

parties. When this occurs, the issues tried with the consent of the parties shall be treated as if they had been raised in the pleadings.

3rd : Service of summon/ voluntary appearance

Job of clerk of court Coercive process which places the person under court jurisdiction Purpose: comply constitutional due process; direct defendant to file an answer; acquired

jurisdiction over defendant How to serve:

- To be served in person, through substituted - Publication is not recognized

Defendant’s procedural options: not required to outrightly file an answer 1. answer 2. complaint ambiguous- file motion for bill of particulars 3. has ground-> motion to dismiss 4. does not answer-> judgment by default

4th : Answer

Gives notice to the plaintiff as to which allegations in the complaint he decides to contest and thus put to issue. - Failure to file -> entitles plaintiff to file motion to declare defendant in degfaultt. judgment

by default Denial must be specific. No specifically denied are deemed admitted

- No specific denial-> deemed admitted No denial made -> no triable issue -> judgment on the pleadings Judgment on the pleadings vs summary judgment


pg. 5

Judgment on the pleadings summary judgment Base entirely on pleadings Base on pleadings, affidavits,

depositions, admissions no denial was made made No triable issues No genuine issue. Does not concern

material fact

Counterclaim, cross-claim, 3rd party complaint, reply, intervention

5th: Pre-trial ( mandatory)

In this stage the following are considered: amicable settlement, adr Modes of discovery

6th: Trial

Plaintiff presents evidence- defendant may: 1. present own evidence 2. demurer to evidence - denied: may still present own evidence - granted- but reversed on appeal- waived right to present own evidence

7th: Judgment

Official determination of rights and obligation Personally and directly prepared by judge Stating clearly the facts and law Signed by him Filed with clerk of court Date on entry judgment = date of finality of judgment

8th: Post- judgment remedies

BEFORE judgment becomes final and executory a) motion for reconsideration b) motion for new trial c) appeal

AFTER judgment becomes final and executory a) petition for relief b) action to annul judgment c) certiorari

depending upon the circumstances, he may be allowed to attack the judgment collaterally.

9th: Execution of judgment

when remedies have been exhausted enforcement of the judgment


pg. 6

II. POWERS OF THE SUPREME COURT

Rule making power of SC: - power to promulgate rules concerning pleading, practice, and procedures of the courts - Limitations:

a) must be simplified and inexpensive. Speedy disposition of cases b) uniform in all courts c) not diminish, increase or modify substantive right

- versus Legislative power

Sc no longer shares it with congress. It has the sole prerogative.

Liberal construction of RoC -Construed in order to promote their objective of securing a just, speedu, and inexpensive disposition of every action or proceeding. - free from the constraints of technicalities - must facilitate not frustrate justice -Equity jurisdiction: disregards procedural lapses and decides base on merits. - SC has allowed liberal construction in the ff:

a) rigid application will result in miscarriage of justice b) substantial justice be served c) where any resolution is addressed solely to the discretion of court d) where injustice tp the adverse party is not commensurate to the degree of this thoughtlessness of not following the procedure prescribed

- but this is not a license to violate procedural requirements

- invoking “liberal construction” requires the party to justify the same

Power of SC to suspend its own rules or to except a case from its application when the circumstances so warrant. -SC allowed it in the ff: a) special or compelling circumstances b) merits of the case c) cause not entirely attributable to person benefited by such suspension d) other party will not be unjustly enriched - compliance with the procedural rules is the GR, abandonment or suspension if the exception.

Power to amend rules - To establish simplified and inexpensive process and speedy disposition of cases - To overturn judicial precedents

Power to stay proceedings and control its process

- “stay” is inherent and incidental to “control” - Has power to reverse itself


pg. 7

III. The Rules of Court

RoC constitutes the body of rules governing pleading, practice, and procedure Roc are not Laws because they do not originate in the Legislative Have force and effect of Law because they are promulgated by authority of Law Substantive law vs Remedial Law

Substantive Law Remedial Law Creates, defines, and regulates right duties concerning life, liberty, and property.

Prescribes the methods of enforcing those rights and obligations created by substantive

When violated gives rise to a cause of action

Prospective effect of Rules of Court

-Gr: no retroactive effect

GR: applicable to pending and undetermined at the time of their passage Exp: 1. statute itself or by necessary implication provides otherwise 2. application impairs vested rights 3. not feasible or would work injustice 4. application would involve intricate problems of due process or impair the independence of the court

“On fresh period of 15 day”

Case: Neypes vs CA

Court applied to pending actions a new rule promulgated through case which standardized the period for appeal by allowing a “fresh period” of 15 days within which to file the notice of appeal in the RTC, counted from…

1. receipt of original decision

2. receipt of the order dismissing a motion for new trial or motion for reconsideration.

-Exp: to the extent that in the opinion of the court their application would not be feasible or would work injustice

Application of RoC - Civil actions, criminal actions, special proceedings - Applies in all courts, except as SC provided otherwise - Inapplicable: election cases, land registration cases, cadastral cases, naturalization cases,

insolvency proceedings (except by analogy or in suppletory character and whenever practicable and convenient).


pg. 8

- Roc not strictly observed in administrative proceedings. They only apply in a suppletory character.

- Scope: ordinary civil actions, provisional remedies, special civil actions

IV. Philippine Courts

Courts: an organ of government belonging to the judicial department the function of which is the application of the laws to controversies brought before it as well as the public administration of justice.

Court vs. Judge

Court Judge Tribunal officially assembled under the authority of law

Simply an officer of such tribunal

Organ of govt with personality distinct from the person or judge who sits

imagination Physical person office Public officer The circumstances of the court are not affected by the circumstances of the judge. Death of the judge does not mean the death of the court.

Courts of law and equity. Thus, both legal and equitable jurisdiction is dispensed with in the same tribunal.

Equity jurisdiction: power of the court to resolve issues presented in a case in accordance with the natural rules of fairness and justice in the absence of a clear, positive law governing such issues. -denotes concept of fairness, justice, and right dealing among men. Regards spirit of the law. Justice outside legality. - Applies when there is no law applicable. - If there is a law, it will only supplement the law.

Principle of judicial hierarchy - Ladderized scheme which requires that lower courts initially decide on a case before it is

considered by a higher court. - SC is a court of last resort.

Application on extraordinary writs: issuance thereof is concurrent in all courts. Only in instances where it is absolutely necessary or where serious and important reasons clearly and specifically expressed in the petition exist that the SC may issue the same.

When the Principle of judicial hierarchy may be disregarded - If it warranted by the nature and importance of the issues raised in the interest of speedy

justice and to avoid future litigations. This in accord with the liberal interpretation of RoC Doctrine of non-interference or doctrine of judicial stability

-courts of equal and coordinate jurisdiction cannot interfere with each other’s orders. - doctrine applies to administrative bodies.

Types of courts: a) Constitutional court- one directly created by a direct constitutional provision.


pg. 9

b) Statutory court- one created by law other than the constitution Note: the sandiganbayan was created by a BP.

c) Civil courts- determine controversies between private persons d) Criminal courts- those which adjudicate offenses alleged to have been committed

against the state Note: Philippine courts exercise crim and civ jurisdictions

e) Courts of record- those which keep a written account of its proceedings. There is a presumption as to the veracity of its recprds that cannot be collaterally attacked except for fraud.

f) Courts not of record- those which are not bound to keep records Note: all Phil courts are now required to be court of record.

g) Superior court- one with controlling authority over other courts h) Inferior court- one which is subordinate to another court, the judgement of which

may be reviewed by a higher tribunal. Note: a court is superior or inferior in relation to another court

Type of Jurisdiction: i) Courts of general jurisdiction- those with competence to decide on their own

jurisdiction and to take cognizance of all cases (eg. RTC) j) Special/ limited jurisdiction- those which have only a special jurisdiction for a

particular purpose OR are clothed with special powers for the performance of specified duties beyond which they have no authority.

k) Original jurisdiction- when actions or proceedings are originally filed with it l) Appellate jurisdiction- when it has the power of review over the decisions of the

lower court. m) Concurrent jurisdiction- (aka coordinate jurisdiction) power of different courts to

take cognizance of the same subject matter. -Court first taking cognizance of the case assumes jurisdiction to the exclusion of the other courts. -concurrent jurisdiction among different courts of different ranks is subject to the doctrine of hierarchy of courts.

Original vs. Exclusive jurisdiction

Original Jurisdiction Exclusive Jurisdiction Jurisdiction to take cognizance of a case at its inception, try it and pass judgement upon the law and facts

Precludesthe idea of co-existence and refers to jurisdiction possessed to the exclusion of others.

A court may be conferred both original and exclusive jurisdiction over a particular subject matter.

Katarungang Pambaranggay Law (RA 7160) - Barangay conciliation - Lagally, there is no brgy court. - The proceedings before the Lupong Tagapamayapa or the Pangkat ng

Tagapagkasundo of the brgy are not judicial proceedings. - Lupon/ Pangkat- they resolve disputes or attempt to do so through mediation or

conciliation.


pg. 10

- Aim: reduce work load of the courts. - Lupon/ Pangkat does not have adjudicatory powers. Any adjudicatory powers they have

must be agreed upon by the parties in writing.

Importance -condition precedent but non-jurisdictional. - absent ground for motion to dismiss NOT motu proprio. Waivable. If not raised seasonable can no longer raise this ground.

Dismissal is without prejudice to refilling.

Steps: 1st: initiation - Complain orally or in writing before the chairman of the Lupon ( who is the punong brgy)

Complain orally or in writing before the Lupon

PLUS

Payment of appropriate fees

Chairman summons respondents

Parties appeal without counsel

To be resolved in 15 days

Not

resolved

Resolved

Lupon sets date to constitute Pangkat

Settlement reached

Settlement not reached

END

END

Goes to COURT

Pangkat issues certification

No repudiation

repudiation

Goes to COURT

Pangkat issues certification


pg. 11

- Payment of appropriate filing fees - Chairman summon the respondents within the next working day - Parties must appear in person

GR: without counsel or representatives Exp: Minors and incapacitated who may be accompanied by their relatives of next kin who are not lawyers.

- Parties must only be natural persons - Resolves within 15 days - If he fails to resolve, he shall set a date to constitute the Pangkat. - Amicable settlement NOT reached-> certification by the Lupon or Pangkat - Unless AS is repudiated -> sufficient basis for certification

Subject matter for settlement: GR: ALL EXPs:

1. where one party is the govt/its subdivision or instrumentality 2. where one party is a public officer concerning his performance of official

functions 3. offenses where imprisonment exceeds 1 year or a fine exceeding P5,000 4. where no private offended party 5. dispute involves real property located in different cities/ municipalities. UNLESS,

parties agree to submit their differences to an appropriate Lupon. 6. Parties who reside in different brgys. EXCEPT where such brgy adjoins each

other and parties agree to submit their differences to an appropriate Lupon.

NOTE: Brgy conciliation NOT MANDATORY where the parties are not actual residents in the same city or municipality or adjoining brgy.

7. Those which the President may determine in the interest of justice UPON recommendation of the Sec of Justice.

Referral to the Lupon by the court:

The court in which NON-CRIMINAL CASE is files may MOTU PRO PRIO refer the case, AT ANY TIME BEFORE TRIAL, to the Lupon concerned FOR AMICABLE SETTLEMENT.

Amicable settlement: shall be in writing ; language known to parties ; signed by them attested by the lupon chairman or pangkat

Effect of AS and award:

- have the effect of a final judgemnt of a court upon the expiration of 10 days from the date thereof UNLESS:

1) repudiation of the settlement has been made

By filing with the lupon chairman a statement to that effect sworn before him where consent is vitiated by fraud, violence, or intimidation

2) a petition to nullify the award has been filed before the proper court

Execution of award or settlement:

- Issued upon the expiration of 10 days from the date of settlement or receipt of the award. - May be enforced by the Lupon within 6 months from:


pg. 12

a) the date of settlement or b) date of receipt of award or c) the date the obligation stipulated or d) adjudged in the settlement becomes due and demandable.

-If settlement or award has not been complied with: disputants may file a motion with the punong brgy, copy furnished to other disputants

V. Pleadings in Civil Cases

Nature: WRITTEN ( can not be oral) statements of the respective claims and defenses of the parties submitted to the court for appropriate judgment.

Importance : necessary to invoke jurisdiction of courts ( done by filing)

Absent: judgement is Void

: designed to present, define and narrow down the issues

: limit the proof to be submitted in the trial

:advise the court and the adverse party of the issues and what are relied upon as coa or defenses

Construction: liberally construed so as to do justice, the intention of the pleader is controlling Substance NOT form Rule: parties are bound by the allegations, statements or admission made in his pleadings and cannot be permitted to take a contradictory position.

Ambiguity: construed most strongly against the pleader and no presumption in his favor.

Phil system of pleading: Code Pleading- pleadings are based on codified rules or written set of procedure as distinguished from common law procedure.

Pleadings under different rules:

RoC (ALLOWED)

Summary Procedure (ALLOWED)

Writ of Amparo/HD (NOT ALLOWED)

Complaint, answer, counterclaim, crossclaim, 3rd,4th- party complaint, complaint-in-intervention, reply

Complaint, compulsory counterclaim, cross-claim pleaded in the answer, answers thereto

In addition to RoC not allowed are: counterclaim, cross-claim, 3rd-party complaint, reply, pleadings-in-intervention

FORM: -Caption contains: name of the court, title of the action, docket number is assigned -Title contains: names of the parties and their participation indicated. (plaintiff/ defendant) It is not the caption but the allegations contained therein which determine the nature of the action and relief sought. Thus, the court may pass upon the real issues as raised in the allegations. - Body of the pleading: sets forth its designation, allegations, reliefs, and date. Shall be divided into paragraphs and shall be so numbered for ready identification. ( numbering will be used as referrals)


pg. 13

Two or more causes of action shall be names “ 1st, 2nd… coa”.

Allegations of ultimate facts: - Must state only Ultimate Facts: facts essential to one’s coa/ defense.

Stated in a logical form and in a plain and concise manner.

- Must not state: if stated -> subject to motion to strike. conclusion of law ( ratio: made by court) statements of mere evidentiary facts ( ratio: presented during trial)

Relief ( “prayer”/ “wherefore clause”) : - Must contain an statement of the relief sought - Must be specified but may include a “general prayer” - Relief not part of the statement of coa. Does not also limit the issues. - Court may grant relief not prayed for, for as long as the relief is warranted by the allegations

of the complaint and the proof.

Signature and Address: - Signed by the plaintiff OR counsel, indicating either’s address - Absence notice of change of address to court->service made at the last address of their

counsel of record.

-Unsigned pleading ->

GR: produces no legal effect

BUT: court may allow to sign it if plaintiff proves that lack of it is a result of mere inadvertence and not to delay proceedings.

-Counsel at fault-> subjected to disciplinary action

if counsel signs- it is a certification by him that he has read the pleading, that to the best of his knowledge, information, and belief, there are good grounds to support it and that it is not interposed for delay.

-Counsel subject to disciplinary actions in CONNECTION to pleadings when:

1) deliberately files unsigned pleading 2) signs pleading in violation of RoC 3) When he alleges in the pleading scandalous or indecent matter 4) He fails to promptly report the court the change of address.

Act of signing is personal to him and can not be delegated to non-lawyer. May delegate it to a lawyer. ( Code of Professional Responsibility)

- If signed by non-lawyer-void, can not be ratified.

Verification in a pleading Verification- under oath.


pg. 14

Significance: intended to secure that the allegations are true and correct and not mere imaginations/ speculations, AND that it is made in good faith. -Gr: Pleading need not be verified. - Exp: law or rule requires otherwise

- absence-> will be treated as unsigned. Hence, no legal effect - formal defect. Pleading is NOT defective. Hence, court may order it to be CORRECTED or ACT on it even if not verified. - corrected by making an oath

- A pleading, if required, is verified by an affidavit. It declares that:

a) that affiant has read the pleading b) that the allegations therein are true and correct c) of his personal knowledge d) based on authentic records

Other requirements:

indicate Effect if absent Professional Tex Receipt Number (PTRN), current IBP Official Receipt Number, Roll of Attorneys Number

Non-compliance within 5 days after notice: a) will not be acted upon by court b) disciplinary actions to the counsel c) contempt of court by the counsel

Number and date of issue of their MCLE certificate of Compliance or Certificate of Exemption

Would cause dismissal of the case and expunction of the pleadings from the records.

Certification against Forum Shopping (Mandatory) Meaning: sworn statement certifying the following matters:

1) the party has not comment or files any claim involving same issues in an tribunal AND to the best of his knowledge, no such other action or claim is pending

2) that if there is such, a complete statement of the present status thereof 3) that if he should learn that the same or similar action is pending, he shall report such

fact within 5 days to the court where he filed it. - Applies to special civil actions - Pleading requiring CaFS:

Complaint and other initiatory pleadings (eg. permissive counterclaim, cross-claim, 3rd,4th party complaint, complaint in intervention, petition or any application in which a party asserts a claim). Does not cover compulsory counter claim, answer with a counter claim

- Who executes: the plaintiff or principal party, signed by the party himself and not by his counsels

If made by counsel: it is defective and a valid cause for dismissal

Ratio: it is the party himself who is in the best position to know if there are other similar cases.


pg. 15

If plaintiff is a juridical person: person duly authorized by the corporation and has personal knowledge of the facts required to be disclosed in the certification. (eg. company lawyer)

4 violations related forum shpping:

violations Effect non-compliance with submission of certification -dismissal without prejudice

a)dismissal of the case by motion and NOT motu proprio - motion and hearing is required -dismissal made is “without prejudice”, unless court orders otherwise -order of dismissal is non-appealable.

Ratio: dismissal is without prejudice. Remedy is appropriate civil action under rule 65.

b) not curable by mere amendment.

Forum shopping proper - dismissal with prejudice

- Effect if deliberately done: a) summary dismissal of the case - no motion to dismiss or hearing is required -dismissal is with prejudice b) disciplinary actions to the counsel c)direct contempt of court by the counsel d) not cured by submitting certification after.

Submission of False certification

a)indirect contempt without prejudice to administrative and criminal sanctions

Non-compliance with the certification’s undertaking

NOTE: the failure to submit a certification against forum shopping is a ground for dismissal, separate and distinct from the forum shopping as a ground for dismissal.

-Forum shopping happens when: a) after an adverse decision, the party seeks another decision in a different tribunal Other than by appeal or certiorari b) where he simultaneously or successively seeks favorable decisions over different courts

- abuse of court processes

- malpractice

- Test to determine existence of FS: 1. WON the elements of lis pendentia are present

2. WON a final judgement in one case will result to res judicata in another

Thus, identify the

a) parties or atleastsuch parties as those representing the same interest in both actions,

b) their rights or causes of action,

c)identity of relief sought


pg. 16

- Liberal interpretation applied:

SC may suspend such rule in the interest of justice

If several parties, certification made by one is enough. Substantial compliance.

Belated submission may be allowed by SC.

VI. Filing and Service of pleadings, Judgments and other papers in civil cases

Paper required to be filed and served: -judgement -resolutions -orders -pleadings -notices

-appearances -demands -offers of judgements -similar papers

Filing- act of presenting the pleading or other papers to the clerk of court

- Two modes of Filing:

a) presenting the original copy of the pleading, etc

b) registered mail

Date of filing: Coc shall indicate or endorse on the pleading or paper filed, the date and hour of filing.

Date of mailing as shown by the post office stamp on the envelope or registry receipt shall be the date of filing.

How proved: existence in the record of the case or by written or acknowledged stamp of its filing by the clerk of court

By registry receipt and by the affidavit of ther person who did the mailing, containing a full statement of the date and place of depositing the mail in the post office in a sealed envelope addressed to the court, with postage fully prepaid, and with instructions to the postmaster to return the mail to the sender after 10 days if not delivered.

Service- act of providing a party with a copy of the pleading or paper concerned. - Modes of service

Personal service Service by mail Substituted service Preferred Violation -> treated as if not filed

GR: Written explanation why this is used instead of personal service. Violation -> treated as if not filed. Exps: those documents coming from courts

HOW: a) delivering a copy of the

GR: registered mail Exp: ordinary mail when no

Last resort


pg. 17

papers served to personally to the party or his counsel; b) leaving a copy in his office with his clerk or a person having charge thereof if non-> by leaving a copy at the party’s or counsel’s residence, with a person of sufficient age and discretion residing therein between 8 in the morning to 6 in the evening.

registry of service is available in the locality of either the sender or the addressee. Done by depositing the copy in the post office, in a sealed envelope, plainly addressed to the party or his counsel at his office, if known, or otherwise at his residence, if known, with postage fully prepaid and with instructions to the postmaster to return the mail to the sender within 10 days it not delivered.

Effected by delivering the copy to the clerk of court, with proof of failure of both personal service and service by mail.

Deemed complete: upon actual delivery

a) Registered mail- upon actual receipt by the addressee, or after 5 days from the date he received the first notice of the postmaster, which ever is earlier. b) Ordinary mail- upon expiration of 10 days after mailing, unless the court otherwise provides.

Complete at the time of delivery of the copy to the clerk of court.

How to prove: a) Consist of the written admission of the party served. b) official return of the server c) affidavit of the party serving, containing full information of the date, place, and manner of service.

a) Affidavit of the person mailing of the facts showing compliance with sec 7, rule 13. b) registry receipt issued by the mailing office. Registry return card: to be filed immediately upon its receipt by the sender, or in lieu thereof the unclaimed letter together with the certified or sworn copy of the notice given by the postmaster to the addressee.


pg. 18

VII. Motion in Civil Cases

Motion- an application for relief other than by a pleading Form:

- GR: In writing Exp: those motions made in open court : motions made in the course of the hearing of the trial

- Rules that apply to pleadings shall also apply to written motions ( captions, designation, signature, other matters)

Contents: a) a statement of the relief sought to be obtained b) grounds upon which the motion is based c) the supporting affidavits and other papers. (Applies only when mandated by the rules or when necessary to prove the facts stated in the motion).

Hearing of the Motion -hearing set not later than ten days after filing of the motion. GR: every motion is a litigated motion ( one which requires parties to be heard before a ruling on the motion made by court) (eg. motion to dismiss, summary judgement) Exp: ex parte motion ( one which does not require that the parties be heard and which the court may act upon without prejudicing the rights of the party) ( motion to set for pre-trial, extension of time)

A motion that does not meet requirements set by the rules is treated as a mere scrap of paper. Notice of the motion:

- Motion which contained the notice of hearing on the motion shall be served in such manner as to ensure receipt by the other party at least 3 days before the date of hearing. Unless, coury for good cause sets the hearing on shorter notice.

- Addressed to all parties concerned - It shall specify the time and date of hearing.

Service of the motion: - Motion must be served upon the other party - No proof of service-> shall not be acted by court

Motion day

GR: Friday afternoons

Exp:


pg. 19

a) Friday is non-working-> next working holiday

b) motions requiring immediate attention

Failure to comply with

Omnibus Motion Rule -Rule which requires that every motion that attacks a pleading, judgment, order, or proceeding, shall include all grounds then available and all objections not so included shall be deemed waived. GR: all objections not so included shall be deemed waived. Exp: lack of jurisdiction, litis pendencia, res judicata, prescription Illustrated: a) grounds available at the time motion to dismiss was filed: no coa, no juris, statute of frauds, improper venue, and prescription. b) movant only assailed the first 3. c) motion was denied. d) Answer: thus, improper venue is waived BUT prescription is not waived.

1. set motion for hearing

2. notice of hearing

3. service of motion

Mere scrap of paper.

- It is pro forma presenting no question which the court could decide.

- Does not stop the running of the period for filing the requisite pleading


pg. 20

CHAPTER II: Cause of Action and Actions

I. Cause of Action (Rule 2)

Cause of Action- the act or omission by which a party violates the right of another. Elements:

a) a right in favor of plaintiff b) obligation of defendant to respect or not to violate such right c) act or omission by the defendant in violation of the right of the plaintiff or

constituting a breach of the obligation of the defendant to the plaintiff for which that latter may maintain an action for recovery of damages or other appropriate relief

Coa applied: - administrative cases

Issue not WON there is a coa. Issue: WON respondent has breached the norms and standards of the office.

- Breach of contract of carriage Negligence is presumed. Need not be proved.

- Quasi-delict GR: negligence must be alleged or proved Exp: Art 2180 of CC. negligence is presumed.

- Promissory note Coa arises upon the due date If complaint filed before due date but service made after due date-> still premature. The defect could not be cured by service of summons on the defendant after the due date.

- Unlawful detainer: There must be a demand before coa accrues or that the term of lease contract has expired. Pay or vacate Pay and vacate Specific performance Unlawful detainer RTC if amount within juris MTC

Coa vs Action


pg. 21

Action- suit filed in a court for the enforcement or protection of a right or the prevention or redress of a wrong Coa- basis of the action

All elements of a Coa must be stated in the complaint. Dismissal of the complaint:

Lack of CoA Failure to state CoA Failure to prove or to establish by evidence one’s stated Coa/ states no Coa

Insufficiency in the allegations in the complaint to establish Coa

Raised in the demurrer to evidence under Rule 33 after the plaintiff has rested his case and can be resolved only on the basis of evidence he has presented in support of his claim.

Ground for dismissal under Rule 16 before a responsive pleading is filed and can be determined only from the allegations of the pleadings and not from evidentiary matters.

Test of sufficiency of the statement of a Coa - WON admitting the facts alleged, the court could render a valid verdict in accordance with

the prayer of the complaint.

GR: Motion to dismiss in the ground of failure to state Coa, hypothetically admits the allegations in the complaint.

Note: hypothetical admission only extend to relevant and material facts in the complaint as well as to inferences deductible therefrom. Does not include conclusion or interpretations of law.

Allegations in the complaint: 1. determine WON the complaint states a Coa. Thus, it is error for the court to take cognizance of external facts/ matters aliunde or to hold preliminary hearings to determine its existence. - sufficiency should appear on the face of the complaint. - BUT court may also consider attachments, annexes or other documents, or admissions in the records. 2. determine the nature of the Coa - nature of Coa is not determined in the prayer. -caption or designation of the complaint is not controlling 3. determines which court has jurisdiction.

How to state Coa -Must contain only ultimate facts,

Ultimate facts: essential facts of the claim. A fact is essential if it cannot be stricken out without leaving the coa insufficient. It is the basis of the right of the plaintiff and which make up the wrongful act or omission of the defendant.

-stated in a plain, concise, methodological, and logical form -evidentiary facts must be omitted. - must not state conclusions of law - should not contain sham, false, redundant, immaterial, scandalous matters. These are subject to motion to stike by a party 20 days after service of the pleading OR by the court at any time.


pg. 22

Conditions precedent: Some Coa has condition precedent that need be complied with. Failure to comply is a ground for a motion to dismiss under Rule 16.

Pleading of a 1. a judgement or decision of a domestic or foreign tribunal: it is sufficient to aver the judgement or decision. No need to aver details showing jurisdiction. Under Sec 3, Rule 131, there is a presumption that a court has jurisdiction. 2. official document or act: It is sufficient to aver that the document or act was issued or done in compliance with the law. 3. capacity to sue or be sued: Facts showing one’s capacity must be averred. 4. fraud, mistake, or condition of the mind: Circumstances constituting such must be stated with particularity. Malice or intent or knowledge must be generally averred. 5. alternative coa or defenses: A party may set forth 2 or more statements of claims or defenses, alternatively or hypothetically, either in one coa or defense or in separate coas/ defenses. Even if inconsistent claim, it is okay as long as they are consistent with the coa relied upon as an alternative. The pleadings which contain alternative coa is not made insufficient by the insufficiency of one or more of the alternative statements as long as one of them if made independently is sufficient. Rule allowing alternative defenses is consistent with the omnibus motion rule. 6. actionable documents. - a document relied upon by either plaintiff or defendant - to plead, pleader is to set forth in the pleading the substance of the instrument or the document, and to attach the original or the copy of the document to the pleading as an exhibit and which shall form part of the pleading OR - to set forth in the pleading said copy of the instrument or the document.

-How to contest an actionable document: The party who has no intent of admitting the genuineness and due execution of the document must contest the same by: a) specifically denying the genuineness and due execution of the document under oath b) setting forth what he claims to be the facts

MUST: denial + oath Absence of oath=implied admission of the due execution and genuineness of the document. Defenses cut off by absence of oath Defenses NOT cut off by absence of oath a) forger, a)payment


pg. 23

b) lack of authority to execute document, c) that the party who signed it made it in

another capacity than that set in the document,

d) or that the document was never delivered,

e) or that the document was not in the words and figures set out in the pleadings, etc.

ratio: have relp to the concepts of genuineness and due execution.

b) want of consideration c)illegality of consideration d) usury e) fraud ratio: these defenses are not inconsistent with admission of genuineness and due execution of the instrument and are not therefore, barred. g) prescription h) release i) waiver j) statute of frauds k) estoppel l) former recovery or discharge in bankruptcy ratio: having no relp to the concepts of genuineness and due execution.

Note: if answer opposing the pleading is unverified or denial in bad faith (lacks knowledge of such document), genuineness and due execution deemed admitted. Thus, proper ground for judgment on the pleading. When oath not required: thus specific denial is enough. a) when the adverse party does not appear to be a party to the document b) when compliance with a court order for an inspection of the original instrument is refused by adverse party who is in possession thereof.

Splitting a Cause of Action - it is the act of instituting two or more suits for the same cause of action. - The pleader divides a sing coa, claim or demand,= into two or more parts, brings a suit for

one of such parts with the intent to reserve the rest for another separate action. - Prohibition against it:

“ a party may not institute more than one suit for a sing coa” -Ratio: multiplicity of suits, clogs court dockets, vexatious litigation, instrument od harassment, unnecessary expenses. - this rule applies not only to complaints but also to counterclaims and cross-claims and complaint for interpleader. - a single act may sometimes violate several right of a person. Nevertheless, the plaintiff has only one coa regardless of the number of rights violated. Note: separate ang action for reconveyance (ownership), from action for forcible entry or unlawful detainer (possession).


pg. 24

GR: Obligation on installment basis, gives rise to divisible independent obligations. Each default, separate suit. But if pending suit for one installment, one becomes due, plaintiff may file a supplemental pleading. Exp:Anticipatory breach Eg. when a person is obliged to deliver good every month for 10 years, but refuses to make any delivery under the contract-> it is an unqualified and positive refusal to perform his part of the agreement. Breach is total and there is only one coa.

- effect of splitting

filing or judgment of one upon the merits is available as a ground for the dismissal of others. If 2nd action is filed pending 1st action= basis: litis pendencia If 2nd action has been decided when 2nd action filed= basis: res judicata Note: it is not necessary that the 2nd action be dismissed. It is a matter of judicial discretion.

Joinder of Causes of Action: - Assertion of as many coa as a party may have against another in one pleading. - Not compulsory only permissive. - Take note of “totality test”= when the claims in all the coas are principally for the recovery

of money, the aggregate amount claimed shall be the test of - RULE: special civil action can not be joined with ordinary civil action.

- Joinder of parties, coas must arise from single transaction or series of transaction and there

must be a common question of law or fact. And that there are two or more defendants or plaintiffs.

- note: claim for atty’s fees and litigation expenses and costs are not to be included in the computation of jurisdiction.

- Joinder of coa vs joinder of parties Joinder of coa will not necessarily mean joinder of parties.

- Misjoinder is not a ground for dismissal of the action. Remedy: The erroneously joined coa can be severed and proceeded with separately upon motion by a party or upon the court’s own initiative.


pg. 25

II. Actions

Action- legal and formal demand of one’s right from another person made and insisted upon in a court of justice. (aka. Suit) Civil action One by which a party sues another for the enforcement or protection of a right , of the

prevention or rederss of a wrong. Primary purpose: compensatory Criminal action one by which the state prosecutes a person for an act or omission punishable by law.

Primary purpose: punishment. Special civil action to establish a status, a right or a particular fact.

Real action It affects title to or possession of real property, or an interest therein.

- but not every action involving real property is real action. Because the realty may only be incidental to the subject matter of the suit. The fundamental and prime objective must be related with real property. - matter in litigation: title to, ownership, possession, partition, foreclosure of mortgage or ang interest in the real prop. - thus, Real property + matter in litigation = real action

Personal action In personam Proceeding to enforce personal rights and obligations brought against the person and is

based on the jurisdiction of the person, although it may involve his right to, or to exercise of the ownership of, specific property, or seek to compel him to control or dispose of it in accordance with the mandate of the court. Purpose: impose upon the defendant a responsibility or liability

In rem Directed against the whole world Quasi in rem One brought against persons seeking to subject the property of such persons to the discharge

of the claims assailed. Purpose: subject his interests to the obligation or loan burdening the property. -deals with the status, ownership or liability or a particular property but which are intended to operate on these questions only as between parties to the proceeding and not to ascertain or cut-off rights of interests of all possible claimants.

Real vs personal action Significance: determining venue Real property: local, depends upon the location of the property involved


pg. 26

Personal property: transitory, venue depends upon the residence of the plaintiff or the defendant at the option of the plaintiff. In determining venue, steps: 1. determine WON real or personal 2. application of the rule 4, Roc

In rem vs in personam vs quasi in rem Significance; to determine WON jurisdiction over the person of the defendant is required and consequently to determine the type of summons to be employed. In personam: jurisdiction over the person of defendant In rem: jurisdiction over the res Quasi in rem: jurisdiction over the res

See further notes under summons

CHAPTER III: Jurisdiction, Venue and Parties

I. Jurisdiction

Jurisdiction: power and authority of the court to hear, try and decide a case, and the power to enforce its determination.

Jurisdiction is the power of the court and not that of the judge. Test of jurisdiction: WON the court has the power to enter into the inquiry and WON the

decision is right or wrong. Jurisdiction over the subject matter is a matter of substantive law. Jurisdiction over the

parties, res, and issues are matters of procedure. Can not be subject to waiver or stipulation of the parties. It is the duty of the court to look at first if it has jurisdiction before proceeding to other matters. It may motu pro prio dismiss case if it has jurisdiction. Power to exercise jurisdiction may be enforced by mandamus. Jurisdiction vs exercise of jurisdiction:

Jurisdiction: authority Exercise: decisions made - Errors of judgment: errors committed in the exercise of jurisdiction

- Error of judgment vs error of jurisdiction:

Error of judgment Error in jurisdiction: as long as the court act within its jurisdiction, any alleged errors committed in the exercise of its discretion will amount to nothing more than mere errors of judgment.

one where the act complained of was issued by the court without or in excess of jurisdiction or grave abuse of discretion

Corrected by appeal Corrected by certiorari


pg. 27

Not void Decision is void

- Lack of jurisdiction - If court does not have the legal power to determine the case

- Excess of jurisdiction - Court is clothed with power but oversteps its authority determined by law

- Jurisdiction vs cause of action Jurisdiction Cause of action Authority Act or omission violative of rights of others Conferred by law Not. But exist bec a right is violated

- Doctrine of primary jurisdiction: - Courts will not resolve a controversy involving a question which is within the jurisdiction of

an administrative tribunal, esp where the question demands the exercise of sound administrative discretion requiring the special knowledge , experience, and services of the administrative tribunal to determine technical and intricate matters of fact.

- Doctrine of continuity of jurisdiction: Once a court has acquired jurisdiction, that jurisdiction continues until the court has done all that it can do in the exercise of that jurisdiction.

- Thus court can not be ousted by subsequent happenings or events, although of a character which would have prevented jurisdiction from attaching in the first instance.

- Court’s jurisdiction can not be affected by a new law Except when the law provides otherwise.

- In action for ejectment already filed, court does not loose jurisdiction by the surrender of the property by the defendant.

- Court acting on a motion, doe not loose juris over said motion by the filing of notice of appeal.

- Even finality of the judgment does not totally deprive the court of jurisdiction over the case. It still has power to enforce or execute it. What the court loses is the power to amend, modify or alter the judgment.

Jurisdiction over the subject matter It is the power to deal with the general subject involved in the action, and means not simply jurisdiction of a particular case, but jurisdiction of the class of cases to which the particular case belongs. Subject matter: item with respect to which the controversy has arisen, or concerning which the wrong has been done, and it ordinarily the right, the thing, or contract under dispute. How it is conferred: Substantive Law or statute, thus it can not be subject to: a) administrative policy of any court b) by court’s unilateral assumption of jurisdiction c) court’s erroneous belief d) by agreement of the parties, their silence, or waiver


pg. 28

Determining jurisdiction over the subject matter:

jurisdiction is determined by the allegations of the complaint, the initiatory pleading. Regardless of WON the plaintiff is entitled to his claims asserted therein.

it is not determined by the defenses or by evidences in the trial.

yet if court, after hearing, the real issue determined and belongs to another court, the court should dismiss the case for lack of jurisdiction.

In a case of reconveyance of real property, the alleged value in the complaint is 11k but the uncontroverted value in the tax declaration raised as a defense is 50k. the latter prevails.

it is not determined by the amount substantiated or awarded. Thus if RTC has juris, lesser reward does not divest it of its jurisdiction. BUT this rule does not apply in REVERSE. Thus if MTC has juris, greater reward divests it of its jurisdiction.

- Exception to the above rule: The same is not applied with rigidity in ejectment cases in which the defendant averred the defense of the existence of a tenancy relationship between the parties. Provided: there must first be reception of evidence and, if after hearing, tenancy had in fact been shown to be the real issue, court may dismiss for lack of jurisdiction.

-Applicability to criminal actions:

Jurisdiction determined by the allegations in the information.

Goverened by law: at the time of filing. Penalty: penalty prescribed at the time of commission.

Note that: in case of variance in the offense charged and proved,

Trial court may try and convict defendant for offense proved which is included in the offense charged, or of the offense charged which is included in the offense proved.

Eg. charged: murder. Proved: homicide. The court may try defendant for the latter because necessarily included in the offense charged.

- Jurisdiction, being a matter of substantive law, statute in force at the time of the commencement of the action determines the jurisdiction of the court.

- Note: ex mero motu: mere motion of a party’s own free will. Same as motu proprio

- Lack of jurisdiction over the subject matter: Earliest opportunity to question jurisdiction: motion to dismiss filed before the filing or service of an answer. Gr: It maybe raised at any stage of the proceeding even on appeal. Exp: the parties barred by estoppel. (Tijam vs Sibonghanoy ruling- SC barred a belated onjection to jurisdiction after an adverse decision was rendered against the party questioning jurisdiction AND after seeking affirmative relief from the court AND after actively participating in all stages in the proceeding. Estoppels by laches. Active participation is a recognition of court’s jurisdiction.) It is an exception to omnibus motion rule. Court who dismisses a case on this ground, has no authority to forward the same to the proper court. After dismissal, it has no authority to make any other order.


pg. 29

Jurisdiction over the person Over the plaintiff: by his filing of the complaint or petition and payment of docket fees. Thus, voluntary submission. Personal appearance in court is not necessary. Over the defendant: valid service of summons or his voluntary submission in court. - Jurisdiction over defendant is only required in action in personam not in in rem or quasi in

rem.

Voluntary appearance of the defendant:

- Equivalent to service of summons - it must be that amounts to a voluntary submission to the jurisdiction of the court. - GR: seeking affirmative relief from court is voluntary appearance

Exp: when the relief sought for is for the purpose of objecting to the jurisdiction of the court over the person of the defendant.

- Examples: files necessary pleading, motion for recon of the default judgement, compromise agreement with the approval of the court, files an answer to the contempt charge. Files a petition for certiorari without questioning the court’s jurisdiction over his person.

- An appearance made without expressly objecting jurisdiction, is a submission to the jurisdiction of the court.

-Lack of jurisdiction over the person of defendant:

May be raised as a ground for a motion to dismiss May be pleaded as an affirmative defense in the answer - failure to plead it deemed waived. -omnibus motion rule applies. Not an exception. Note: Jurisdiction Over the person Over the subject matter Not an exception to omnibus motion rule An exception Not pleaded- deemed waived Not pleaded- not waived Acquired by: summons or voluntary submission

Acquired by: allegations in the pleadings

- The inclusion of a motion to dismiss on the ground aside from lack or jurisdiction over the

person of the defendant shall not be deemed voluntary appearance ( Sec 20, R14).

Jurisdiction over the issue: -Power of the court to try and decide issues raised in the pleadings of the parties -Issue: a disputed point or question to which parties to an action have narrowed down their several allegations and upon which they are desirous of obtaining as decision. - where there is no disputed point ( fails to tender issue or admits allegations of complainant)-> no issue -> judgment on the pleadings. How conferred: -Conferred and determined by the pleadings of the parties.


pg. 30

-may be conferred by stipulation of the parties, by entering into stipulations of facts and documents or enter into an agreement simplifying the issues of the case. - may be conferred by waiver or failure to object to the presentation of evidence on a matter not raised in the pleadings.

- Issues may be tried even if not raised in the pleadings if made with the express or implied consent of the parties. Treated as if they were raised in the pleadings. Thus, the pleadings may be amended upon motion or it is considered impliedly amended.

Question of law vs question of fact Of law- when the doubt or difference arises as to what the law is on a certain set of fact. Of fact- when the doubt or difference arises as to the truth or falsehood of the alleged facts. When it involves review of evidence- Of fact TEST: WON the court can determine the issue raised without reviewing or evaluating the evidence, in which case, it is a question of law; otherwise it is a question of fact.

Jurisdiction of the MTC, MeTC, and MCTC - RA 7691 ammended parts of BP 129 and expanded the jurisdiction of MTC, MeTC, and

MCTC

- all processes issued maybe served anywhere in the Philippines, without need of RTC certification.

-decision appealable to RTC.

Coverage:

1. jurisdictional amount:

Outside Metro Manila- P300k Within Metro Manila- P400k Applies to real and personal property. Jurisdiction Said amount does not include: interest, damages of whatever kind (

damages that are merely incidental to or consequence of the main action) , atty’s fees, litigation expenses, and costs.

Filing fee Included. Totality Rule: there are several claims or coa between the same or different parties, embodied in the same complaint, the amount of the demand shall be the totality of the claims in all the coa, irrespective of won the coa arose out of the same or different transaction.

2. Has exclusive and original jurisdiction over forcible entry and unlawful detainer cases regardless of assessed value. Both are ejectment cases (aka. accion interdictal)

All ejectment cases as with its jurisdiction regardless if cases involve ownership issues or the issue of possession can not be resolved without resolving ownership.


pg. 31

But any adjudication made on ownership by such court is merely provisional. Thus, without prejudice to an action between same parties involving such. What it only resolves is possession de facto NOT de jure.

3. Has exclusive and original jurisdiction over civil actions involving title to possession of any real property or any interest therein where values are:

Outside Metro Manila- P20k Within Metro Manila- P50k Value determined by tax declaration or assessed value of adjacent lots. Assessed value: fair market value of the real property multiplied by the assessment level. FMV: price at which a property may be sold by a seller, who is not compelled to sell, and bought by a buyer, who is not compelled to buy. Thus,jurisdiction over accion puliciana and reinvidicatoria cases are now determined by tax declaration or assessed value.

4. Admiralty and maritime cases, if claim:

Outside Metro Manila- P300k Within Metro Manila- P400k

5. Probate proceedings, if gross value of the entire estate:

Outside Metro Manila- P300k Within Metro Manila- P400k Prov rem follows principal action: MTC has exclusive original jurisdiction to grant/ deny prov rem where principal action is within its jurisdiction.

6. SC Delegated jurisdiction: MTC is acting as RTC; thus appeal is to CA.

cadastral and land registration cases covering lots:

a) where there is no controversy/ opposition, or

b) P of land : =/< P100k

- value ascertained by affidavit of claimant/ agreement of the parties/ tax dec

7. Special jurisdiction:

a) petitions for habeas corpus ( RTC absent)

8. Summary Procedure

Basic principles:

1) not all pleadings allowed. ONLY allowed are: complaint, compulsory counterclaim, cross-claim pleaded in the answer, answer to these pleadings. PROHIBITED: motion to dismiss, new trial/ recon/ reopening of trial, Relief from judgement, extension, memoranda, certiorari/ mandamus/ interlocutory order, declare defendant in default, dilatory postponement, reply, 3rd party complaints, interventions. Exp: certiorari allowed when court acted contrary to rules of summary procedure.


pg. 32

2) Court may dismiss case outright if ground exists. 3) Defendant does not answer in 10 days from service of summons- court (motu proprio /

motion) render judgement. 4) No trial. Only preliminary conference. 5) Parties submit affidavits and position papers. 6) Render judgement- 30 days from receipt of last affidavit or position paper or expiration of

period for filing the same. 7) GR: motion to dismiss not allowed. Exp: lack of jurisdiction over subj matter and failiure to

comply with brgy conciliation.

9. small claims:

- RoC applies suppletory to these kinds of cases.

- pleadings prohibited: same as summary procedure BUT add bill of particulars. - uses forms to be filled up - purpose: inexpensive and expeditious means to settle disputes. - NO: lawyers, no formal pleadings, no strict rules on evidence.

- Procedure:

action commenced:

1)filing form I-SCC ( statement of claims, accomplished and verified, duplicate)

2) paying docket and other legal fees (unless, indigent)

3) attachements:

- if with actionable document, accompany with 2 duly certified copies

- affidavits of witnesses and other evidences in support of claim. ( state only facts of personal knowledge), non-compliance: inadmissible with disciplinary action.

- ratio- evidence not attached shall not be entertained. Unless, good cause.

Upon receipt by court: court determines won within small claims:

- Coverage:

a)MTC cases where value of claim does not exceed 100k exclusive of interest or costs.

b) purely civil in nature, where claim is solely for payment/ reimbursement of sum of money

claim:

money owed- in contract of lease/ loan/ services/sale/ mortgage.

Damages-fault or negligence/ quasi-contract, contract

enforcement of brgy amicable settlements/ arbitration ward involving money claims)

c) civil aspect of criminal actions ( filed prior to crim case/ reserved).

-several claims: such claims may be joined provided does not exceed 100k. ( interest and cost not included).


pg. 33

Within:

Court issue form 2- SCC ( summons): directing to file response.

Then form 4-SCC, notice to appear in court.

Not within jurisdiction:

Dismiss case outright.

Basis: allegations in the claim/ evidences.

Parties appear at hearing personally or through representative (SPA form 5-SCC) to: 1) Amicable settlement; 2) JDR; 3) enter into stipulation of facts or admission of facts and of documentary exhibits. NO LAWYERS

Failure to appear:

a) Plaintiff- dismissal of claim.

END.

b) Defendant- failure to file reponse. Render judgement.

EXP: several defendants sued under a common coa and who plead a common defense and one or more of them appear at the hearing.

At hearing:

- JDR

JDR works:

- Settelement form 7-SCC - Resolution form 8-SCC - Writing, signed by the parties for court approval ( form 12-SCC).

JDR fails:

- JDR to be presided by judge - -terminated in 1 day

2nd

JDR fails

- Case transmitted ( for referral) form 11-SCC to the CoC for immediate referral

Defendant to file response within 10 days in form 3-SCC.Period non-extendible.

- Form accompanied with affid/evids.

Fails to respond:

Court render judgement limited to prayer but may reduce if excessive.

END

Defendant files counter claim with response if:

a) within coverage of rule exclusive or interests and costs. ( if not within, filing of it shall be at the election of the plaintiff provided with in jurisdiction.

b) arises of the same transaction or event that is the subj matter of plaintiff’s claim

c) does not require the joinder of 3rd parties AND

d) not subj of another pending action

- interposed, or else, barred.


pg. 34

Jurisdiction of the RTC - Decisions appealble to RTC - Has general jurisdiction.

Coverage:

1. exclusive and orginal jurisdiction:

a) subj matter not capable of pecuniary estimation.

CAPABLE: jurisdictional amounts

NOT CAPABLE: RTC

Case Capable/ not capable Action primarily for recovery of money Capable Nullity of assignment of rights Not Expropriation Not Annul GOCC reso Not Annul deed of declaration of heirs with partition (partition incidental)

Not

Extrajudicial foreclosure of sale of real prop Not (ratio: not real action) Partition of real prop with determination of hereditary rights

Not

Specific performance Not Specific performance to compel one to execute deed of conveyance covering land

Not (ratio: main issue is right to compel specific performance)

Specific performance to compel one to execute deed of conveyance covering land BUT with alternative answer which asserts where primary action is to obtain ownership

Capable

Specific performance AND damages Not Specific performance OR damages Capable Injunction Not Replevin Capable Interpleader Capable

b) title to or possession of real property or an interest therein, assessed value:

exceeds 20k ( outside MMla); exceeds 50k ( MMla)

c) demand or claim: exceeds 300k ( outside MMla); exceeds 400k ( MMla)

d) probate, testate/ intestate, gross value of estate: exceeds 300k ( outside MMla); exceeds 400k ( MMla)

Note: probate court can only determine won property included in the inventory. Not adjudicate. Exp: parties agreed otherwise.

e) not falling with juris of other courts.

2. concurrent and original juris:

a) with SC: actions affecting amabassadors, public ministers/ consuls.

b) with SC and CA: certiorari, madamus, madamus vs lower courts and quo warranto and hbc


pg. 35

3. appellate jurisdiction: decisions of lower courts

4. special jurisdiction: may be designated by SC to handle exclusively criminal cases , juvenile, domestic relations, agrarian, urban and land reform which do not fall under other tribunal OR cases determined by court in the interest of speedy and efficient administration of justice.

5. intra- corporate controversies: provided in the SRC

a) cases involving devises or schemes employed or any acts of BoD, bus assoc, its officers or partnership amounting to fraud and misrepresentation- that is detrimental to interest of public/ sth/ partners/ assoc mems/ org mems registeredwith SEC.

b) controversies arising out or intra-corporate or partnership relations ( between sth, mem, associates; between any or all of them and the corp, partnersip, assoc; and between corp, partnership, assoc and the state) in so far as it concerns their individual franchise or right to exist as such entity.

c) controversies in the election/ appointmemts of dir/ trustees/ officers or managers of such corp/ part/ assoc. d) petitions of such entities to be decalred in a state of suspension of payments.

Jurisdiction of CA: - Though not a trial court, have power to try cases, hearing, recevive evid, grant and conduct

new trial or further proceedings.

Coverage:

1. Exclusive and original jurisdiction: annulment of judgement of RTC

2. concurrent and original jurisdiction

a) with SC: certiorari, prohibition, mandamus against RTC, CSC, CBAA, quasi-judicial agencies in Rule 43, NLRC. Note: follow hierarchy of courts.

b) with SC and RTC: certiorari, prohibition, mandamus against lower courts and bodies and quo warranto and hbc (won in aid of appellate jurisdiction)

3. exclusive appellate jurisdiction:

a)ordinary appeals from RTC and FC

b) RTC decision

c) decisions/ reso/ orders/ awards of RTC, CSC, CBAA, quisi-judicial agencies in Rule 43, and office of ombudsman in admin disciplinary cases.

Note: en banc CTA decision now appealble to SC ( Rule 45).

d) MTC decision on cadastral or land reg cases pursuant to delegated jurisdiction. ( note MTC decision on this is as if RTC decision).

Jurisdiction of SC: - GR: Not trier of facts - Exps:

a)Findings are grounded entirely on speculation/ surmises/ conjectures. b)inference made: manifestly mistaken/ absurd/ impossible c) grave abuse of discretion d) judgment: based on misapprehension of facts


pg. 36

e) finding of facts: conflicting f) CA findings: beyond issues of the case or contrary to the admission of parties. g) findings: contrary to the trial court h) findings: conclusions without citation of specific evidence on which they are based. i) facts in the petition, reply briefs: not disputed by respondent j: findings of fact are premised on the supposed absence of evidence and contradicted by the evidence on record. k) CA manifestly overlookes certain relevant facts not disputed by the parties, which if properly considered, could justify a different conclusion.

Coverage: 1. Exclusive Original jurisdiction in certiorari, prohibition, mandamus against CA, Comelec, Coa, Sandiganbayan.

2. Concurrent original jurisdiction

a) with CA: certiorari, prohibition, mandamus against RTC, CSC, CBAA, quasi-judicial agencies in Rule 43, NLRC. Note: follow hierarchy of courts.

b) with CA and RTC: certiorari, prohibition, mandamus against lower courts and bodies and quo warranto and hbc (won in aid of appellate jurisdiction)

c) with RTC: actions affecting amabassadors, public ministers/ consuls.

3. Appellate jurisdiction (rule 45): CA, Sandiganbayan, RTC on pure questions of law, constitutionality or validity of law or treaty, international or executive agreement, law pd, proc, order, instruction, ordinance or regulation, legality of tax/ impost/ assessment/ toll/ penalty, jurisdiction of lower court and CTA decisions.

Question: may aggrieved party choose between Rule 65 and Ryle 45 for nullification of CA decision in the exercise of its original or appellate jurisdiction?

Rule 65 not advisable. Appropriate remedy if Rule 45 which shall raise only pure questions of law.

4. cases under 187 consti= must be SC en banc

a) cases; constitutionality of a treaty, international agreement, exec agreement, law

b) Roc requires en banc

c) constitutionality/ application/ operation of pd, proc, orders, instructions, ordinances, regulations

d) cases heard by SC decision but majority vote not obtained,

e) modification or reversal: doctrine or principle of law by a previous SC en banc decision

f) discipline of judges in the lower court

g) contests on: election, returns, qualification of pre or vp.

Jurisdiction of Family Court:

1) exclusive original jurisdiction:

a) petition for guardianship/ custody/ hbc of children.

b) adoption of children, revocation


pg. 37

c) annulment of marriage/ dec of nullity of marriage/ those relating to status or property relations of H/W or those living together under different status and agreements, and petitions for dissolution of cpg.

d) petitions for support/ acknowledgement

e) summary judicial proceedings under Family Code

f) petitions for declaration of status of children as: abandoned, dependent, neglected

g) petitions for voluntary or involuntary commitment of children

h) suspension/ termination/ restoration of parental authority

i) petition for the constitution of family home

II. Venue (Rule 4)

Venue: place or the geographical area where an action is to be filed and tried. Civil cases: relates only to place of suit. Crim cases: place of suit and jurisdiction

In determining venue, steps: 1. determine WON real or personal 2. application of the rule 4, Roc

Not a matter of substantive law. Merely procedural. - Thus, parties may waive it - Thus, Improper venue= not lack of jurisdiction

Dismissal based on improper venue: - GR: TC can not motu proprio. Dismissal made on such, motu proprio, plain error. - Must be in a motion to dismiss. - Exp: action covered by the rules on summary procedure.

Determination of Venue: 1st: determine if action is personal or real. Action is… Where is party? Thus, venue: personal resident Residence of plaintiff or

defendant at plaintiff’s option. personal Non-resident Residence of plaintiff or where

defendant may be found at plaintiff’s option.

real Where real prop is situated real Non- resident and nor found in phil

-Action affect personal status of plaintiff - any prop of defendant located in phil

-residence of plaintiff or where the property or any portion thereof is situated.

personal

Action for damages and actions to collect sum of money

Residence of plaintiff or defendant at plaintiff’s option

real Action to recover ownership of real property

Place where located

real Unlawful detainer, forcible entry, accion publiciana Recovery of possession of leased real prop

Place where located


pg. 38

and payment of accrued rentals.

Stipulations on venue: - Parties may agree which could be place where they or neither of them resides. - Agreement valid: a) writing; b) made before filing of action; c) words of exclusivity of

venues (eg. only, solely, exclusively, in no other court, particularly, nowhere else but)- if exclusive= only in such venue stipulated; if not or merely permissive= in addition to where parties reside).

Denial of a motion to dismiss based on improper venue is not appealable. - Merely interlocutory order - Remedy: file an answer and interpose the ground as an affirmative defense, go to trial and

appeal from the adverse judgment. - But is denial is tainted with grave abuse of discretion- remedy is certiorari/ prohibition.

Case dismissed on ground of improper venue and not lack of jurisdiction. Note that territorial jurisdiction is irrelevant in civil cases. -Venue vs jurisdiction Venue Jurisdiction Place where case to be heard Authority to hear and determine case Procedural law Substantive law Establishes relation between plaintiff and defendant

Between court and subject matter

May be conferred by agreement/ law By law Not ground for motu proprio dismissal Ground


pg. 39

III. Parties (Rule 3)

Two main categories: Plaintiff- claiming party or more appropriately, original claiming party and one who files the complaint or party claiming in a counterclaim, etc Defendant- party against whom there is a claim

Who may be parties: Natural persons; juridical persons; entities authorized by law. a) juridical persons: Art 44 in the Civil Code - state and its political subdivisions -corp/ inst/ entities for public interest or purpose, created by law -corporations/ partnerships/ assoc for private interest or purpose to which the law grants a juridical personality, seprate and distinct from that of each shareholder, partner, or member. b) entities authorized by law, examples: -corporation by estoppels - contract of partnership with P3000 as capital but failed to register -estate of deceased -legit labor organization -Roman Catholic churchd -dissolved corporation: provided suits a) occur within 3 years after dissolution; b) connected with settlement and closure of its affairs. c) entity without a juridical personality as defendant: Sec 15, Rule 3 or RoC, entity by estoppel.

Remedy when there is a defect in the parties:

defect Remedy/ action: Person not authorized :plaintiff

Motion to dismiss on the ground that “ plaintiff has no legal capacity to sue”.

Person not authorized :defendant

Motion to dismiss on the ground that the pleading asserting the claim states no cause of action or failure to state cause of action Ratio: there cannot be a coa against one who cannot be a party to a civil action.

Plaintiff not real party in interest

Motion to dismiss on the ground that the pleading asserting the claim states no cause of action or failure to state cause of action

Failure to include name of a party in the title.

not fatal. Averments are controlling and not the title. Court goes into the substance of the complaint.

No indispensible party Case will be dismissed


pg. 40

Non joinder of IPs 1. court order them to be impleaded. 2. court order ignored. still not all are impleaded, case dismissed. Thus all court actions are null and void and will not bind strangers.

Failure to implead NP Action will proceed. Judmenet valid but withour prejudice to right of such NP.

Court ordered NP be impleaded

failure to comply: a waiver of claim against such party.

Fact showing one’s capacity to sue or be sued must e averred. Minor or incompetent may sue with parent/s/ guardian/ ad litem

Real party in interest -party who stands to be benefited or injured by the jdugement in the suit or party entitled to the avails of the suit. - interest must be “real”. Substantial interest. Interest that is material and direct. -determination of real party in interest requires going back to the elements of the coa. -GR: person who is not party to a contract can not sue by virtue thereof Exp: a) pour autrui- stipulations expressly conferring benefits to a non-party may sue under a contract provided,such benefits have been accepted by the beneficiary prior to its revocation by the contracting parties. b) he shows that his interest is affected thereby. ( eg. in fraud of cds) - 3rd party to an amicable settlement can not ask for its enforcement, modification,

amendment. Real-party-in-interest Agency A mere agent can not sue on a contract entered into

in behalf of his principal. An agent, acting in his own name and for benefit of unknown principal, may be sued. Except when it involves properties belonging to the principal. Atty-in-fact is not real party in interest

Possessor not the owner in a recovery of possession/ forcible entry.

Lawful possessor disturbed of his possession.

Damages arising from Deterioration to property

Owner

Corporate office illegally searched. Corporation alone through officers. If officers refuse- corp may sue through STHs (latter as nominal party).

ejectment Co-owners Annulment of marriage H or W Partnership Partnership Reversion of public lands Person occupying the land


pg. 41

-every action must be prosecuted and defended in the name of the real party in interest. - even if made in the name of a person in the representative capacity, the name of the beneficiary must be included in the title.

Real party in interest vs locus standi rpii Ls Won party if benefited or injured Right of appearance in a court of justice on a

given question Private suits : rpii

Indispensible parties-

- a party who has such an interest in the controversy or subj matter that a final adjudication cannot be made, in his absence, without injuring or affecting his interest, -a party who has not only an interest in the subj matter of the controversy, but also has an interest of such nature that a final decree cannot be made without affecting his interest or leaving the controversy in such a condition that its final determination may be wholly inconsistent with equity and good conscience. -a person whose absence there cannot be a determination between the parties alredy before the court which is effective, complete, or equitable. -a rpii without whom no final determination can be had of an action. Without such, court decision can not attain real finality. - one who must be included in an action before it may properly go forward. -absent- case will be dismissed. -joinder of IP is mandatory. -Not IP: if his interest in the controversy is separable. - not sufficient reason to declare a person to be IP that his presence will avoid multiple litigation. - Compulsory joinder of IPs

-Compulsory when the one involved is an indispensible party. - presence of all IPs is a condition sien qua non for the exercise of judicial power - not impleaded: not outright dismissal. 1. court order them to be impleaded (add or drop parties) . If court notices that IPs not impleaded at the course of the trial, it may suspend trial and order them to be impleaded. 2. court order ignored. still not all are impleaded, case dismissed. Thus all court actions are null and void and will not bind strangers. Ground for dismissal: failure to comply with court order.

Necessary Parties - Action will proceed. Judmenet valid but withour prejudice to right of such NP.

IPs not impleaded

No judicial power

ALL court actions are null and void


pg. 42

- duty of pleader if NP not impleaded: a) set forth the name of said NP b) state the reason why not impleaded. ( eg. NP outside jurisdiction) - if reason is unmeritorious: court may order same to be imlpeaded. - failure to comply: a waiver of claim against such party. IPs NPs Indispensible parties must be joined Necessary parties must be added whenever

possible. Mandatory Permissive Interest in subj matter is inseparable Interest in subj matter is separable Joined for case to proceed and for case not to be dismissed.

Joined to afford complete relief to already parties and avoid multiple suit.

If not joined ALL court actions are null and void

If not joined, court may decide and decision is without prejudice to the rights of necessary parties.

As applied:

Joint obligation cd may sue either or both for their share. Each db is necessary party to each other’s case filed by cd against either.

Solidary obligation cd may sue against either or both for the whole. Each db is not indispensible party to each other’s case filed by cd against either. Solidarity does not make solidary obligor IP in a suit filed by cd.

A owes B price of car. C sub A. No novation. B did not consent. C failed to pay car. Foreclosure/ replevin

If B files, C and A are IPs. Ratio: B would have right to foreclose or reposses car withour establishing that default of A unless the obli of A to B was assigned to C with the consent of B thereby novating the obli.

Property pendente lite Transferee no IP because he is bound by any judgement. Person in office IP in a case challenging his right to office Reconveyance of property

Person against whom reconveyance is asserted if IP

Unwilling co-plaintiff - party who is supposed to be a plaintiff but whose consent to be joined as plaintiff cannot be obtained as when he refuses. - He may be: a) made defendant and b)reason be stated.

Alternative defendants

- When plaintiff cannot definitely identify who among two or more persons should be impleaded as defendant, he may join all in the alternative, although the right of relief against one is inconsistent with another.

Misjoinder and non-joinder of parties - Neither is a ground for dismissal of an action


pg. 43

- Becomes ground for dismissal if court orders to drop/ joint but parties do not foolow. (Sec3, Rule 17, Roc) Misjoinder Non joinder Person made a party to the action although he should not be impleaded

Party is not joined when he is supposed to be joined but is not impleaded.

- Rule presupposes that original inclusion or non-inclusion had been made in the honest conviction that it was proper and that it was a mistake. Not whimsical or irrational.

Unknown defendant - Whenever the identity or name of the defendant is unknown, he may be sued as the

unknown owner heir, devisee, other designation as the case may require - When his identity is discovered- pleading must be amended accordingly.

Death of client -extinguishes the atty-client relationship. - dead client has no personality, cannot be represented by lawyer -does not automatically be lawyers of heirs UNLESS hired. - Duty of counsel: inform court within 30 days after such death. Mandatory. Failure to comply: ground for disciplinary action. - Effect on case: court shall determine if such claim is extinguished.

If claim survives death court shall order legal rep of the deceased to appear and

be substituted for the deceased within 30 days from notice.

If does not survive extinguish the action. Dismiss case. If no heirs court to appoint executor/admin administrator. If heirs are minors or incap court to appoint guardian ad litem

- Cases that survive death of party:

a) those arising from delicts b) based on tortious death c) recovery of real and personal prop, enforce lien, quieting title d)ejectment case e) recovery of money based on express/ implied contract. Judgement enforced against the estate of deceased.

Substitution of dead litigant: - Question: may opposing party procure appointment of an executor/ administrator for

estate of deceased? Answer: Yes. In 2 situations, 1) counsel for the deceased does not name a leg rep 2) there is a rep named but he fails to appear within the specified pd Opposing party will defray expenses but may recover.

- Present rule: heirs do not need to first secure appointment because from the moment of death, they step into the shoes of the deceased. Said heirs may elect among them


pg. 44

- Service of summons is not required to effect a substitution. Instead, court orders their appearance.

- What effects substitution: order of substitution and its service Non-compliance: no jurisdiction over the person of the leg rep of heirs of the deceased. Trial infirm.

But in ejection proceeding- failure to inform court, does not deprive court of jurisdiction.

Decision in such is binding parties/ heirs/ defendant

- Formal substitution is not necessary when heirs themselves voluntary appeared in the action, participated therein and presented evidence in defense of deceased defendant.

Incompetency or incapacity of a party during the pendency of action- court ( upon motion) may allow its continuance provided it be with assistance of legal guardian. Death

If claim survives death court shall order legal rep of the deceased to appear and be substituted for the deceased within 30 days from notice.

If does not survive extinguish the action. Dismiss case.

If no heirs court to appoint executor/admin administrator.

If heirs are minors or incap court to appoint guardian ad litem

Incompetency or incapacity court ( upon motion) may allow its continuance provided it be with assistance of legal guardian.

Transfer of interest Action maybe continued by original party UNLESS the court upon motion direct the transferee to be substituted or joined with original party.

Indigent parties

-may be allowed as such when court authorizes him.

-application and the hearing to litigate as an indigent litigant may be made ex parte.

-if allowed: exempt from payment of docket fees, transcripts, notes. Such amount will be a lien on the judgment rendered UNLESS court provides otherwise.

Republic of the Philippines - solicitor general can bring and defend actions on behalf of RP - without SG; case be summarily dismissed. - in criminal cases: shall be prosecuted under the direction and control of a public prosecutor.

Suit by or against spouses - GR: sue and be sued jointly.

Exp: cases provided by law ( eg. exclusive property of a sps)


pg. 45

Liability of the spouse to cds for family expenses shall however, be solidary.

Class suit - An action where one or more may sue for the benefit of all if the requisites for said action

are complied with. - Requisites:

a) subject matter: common or general interest to many persons -not commonality in the questions of facts or law involved in the issue. But commonality in the subj matter ( physical things, personal/ real) b) persons- too numerous that it is impracticable to join all as parties c) parties actually before the court are sufficiently numerous and representative as to fully protect the interest of all concerned. d) the representative sue or defend for the benefit of all.

- No class suit:

- residents of a town where injured by gas leak of a plant. ( each must prove own injury) - relatives of victims of a plane crash -interests are conflicting: - corporation to recover property of its members, owned in their personal capacity. - recovery of portions of a property, as each could allege and prove their respective rights. No identical title. - recover real property individually held. - damages for personal reputation ( libelous article against individual sugar planters)

- Common and general interest in the environment. - Derivative suit vs class suit

Derivative Class Filed by a STH in behalf of corp to protect the interest of the latter Asserted bec Bod failed to protect corp ( deliberate or otherwise)

An action where one or more may sue for the benefit of all if the requisites for said action are complied with.

Coa belongs to corp NOT sth Coa belongs to members of class


pg. 46

IV. Filing, Amendment and Dismissal by plaintiff

A. Filing of the complaint

Filing: act of presenting the original complaint to the coc personally or through registered mail.

-Significance:

a) signifies commencement of the civil action, b) acquisition of jurisdiction over the plaintiff

c) tolling the running of the prescription period.

Payment of docket fees - Vests jurisdiction too - Thus, it is required that amount of damages prayed for must be stated, otherwise the

complaint shall be expunged from the record. - Defect: underpayment of docket fee- cannot be cured by amendment. - Rule on this has been subjected to liberal interpretation. Nonpayment does not

automatically dismiss case. Payment maybe made later provided it is made within prescriptive or reglementary period.

- In case of Appeal: appellate docket fees must be paid within the same period for taking an appeal. Mandatory for it’s perfection. Otherwise, ground for dismissal.

-

B. Amendment of complaint

- applied to any pleading.

As a matter of right: absolute right - amendment may be or may not be substantial. Even if amendment is made to correct jurisdictional defect. -may only be exercised once ( time when made irrelevant) -subsequent amendments must be made with leave of court - before responsive pleading is served OR a reply to which there is no responsive pleading at any time within 10 days after it is served. Amendment in the RTC Apply sec 2, rule 10 Amendment in the CA CA has discretion to admit/not amendment - Ministerial upon court,court refuses, remedy: mandamus. - Motion to dismiss is not a responsive pleading. Even is motion to dismiss is granted,

plaintiff may still amend his complaint as a matter of right before the dismissal becomes final as long as no answer has yet been served.

By leave of court: - Made after service of responsive pleading. Ratio: defense already made. Amending

complaint will also amend defense. - Can not be made to correct jurisdictional defect.


pg. 47

There is COA but plaintiff failed to state it at the time it was filed.

Amendment maybe made to cure a failure to state coa or to conform with the evidence presented during the trial and was not objected to.

NO COA in the first place at the time it was filed but only arose during the trial. Was brought prematurely.

NO amendment can be made where there was no cause of action at the time it was filed. Thus where the complaint was filed at a time where no coa has yet accrued in favor of plaintiff, an amendment cannot cure the defect. No coa to cure in the first place.

Amendment to conform to the evidence - When issues not raised in the pleadings are tried with the express or implied consent of the

parties, such issues shall be treated as if they had been put in issue by the pleadings. Thus even if amendment was not actually made, trial is not affected because they are deemed to have been raised in the pleadings.

- Made upon a motion of a party even after judgment. - 2 situations under sec 5 Rule 10:

a) when evidence is introduced on an issue not alleged in the pleadings and no objection was interposed by the other party. b) when evidence is offered on an issue not raised in the pleadings but an objection was intercepted but such objected was not shown by objecting party that the admission of evidence would prejudice him in his defense. Thus, court may allow it.

- lack of juridical personality to sue may be cured by evidence presented as to it during the trial and the same was not objected to.

Effect of amendment of the original pleading: - Amended pleading supersedes the original one which it amends ONLY if the former

introduces a new or different cause of action. - Amendmend on admission made in the original pleading cease to be judicial admissions.

They will now be considered as extrajudicial admissions. - Admissions in the original pleading may be received in evidence against the pleader.

Extrajudicial admission that must be formally offered in evidence.

Although the original pleading is deemed superseded by the pleading that amends it, it does not ipso facto follow that service of new summons is required. If parties have already appeared before court by virtue of the original complaint, no need for new summons even if new coa is alleged. - Ratio: jurisdiction continues until the case is finally terminated once it is acquired. And new

summons is only needed when court has not yet acquired jurisdiction over parties. When there is new defendant, issue summons upon him.

Supplemental pleading:


pg. 48

- One which sets forth transactions, occurrences, or events which have happened since the date of the pleadings sought to be supplemented.

- It does not replace the original pleading. It only supports it. - Requires leave of court. Court will allow it upon such terms as just. - Made by: filing of a motion with notice to all parties. - Denied: When coa in the SP is different from that in the original pleading. - Answer to SP must be made within 10 days from notuce of the order admitting the SP.

Answer to it is not mandatory. Answer to the original complaint shall serve as the answer to the SP if not new supplemental answer is filed.

C. Dismissal by the plaintiff

Notice of dismissal -when: a matter of right a) before service of an answer ( note: service not filing) b) before service of a motion for summary judgment - upon filing such, court shall issue an order confirming the dismissal. -note that it is not the order of dismissal that dismisses the case because it merely confirms the dismissal. Court has no discretion as to its dismissal. -dismissal occurs as of the date of the filing of the notice and NOT when the court issues order. - GR: dismissal herein is WITHOUT prejudice (thus, can be refilled). Exp: a) notice of dismissal provides that it is with prejudice b) plaintiff has previously dismissed the same case in a court of competent jurisdiction.

-Two-dismissal Rule: Applies to: a) twice dismissed actions b) based on or including the same claim c) in a court action of competent jurisdiction.

- to apply: complaints must have been dismissed in a court of competent jurisdiction.

- Claim may only be filed twice. the second notice of dismissal will bar the refiling of the action because it will operate as an adjudication of the claim upon the merits.

1. orginal=notice of dismissal= case dismissal without prejudice.

2. refiled= notice of dismissal= case dismissal with prejudice.

Motion to dismiss -when: needs court approval a) after service of an answer ( note: service not filing) b) after service of a motion for summary judgment - dismissal shall be limited to the complaint. Thus, counterclaim is not dismissed ( compulsory or permissive). Defendant may prosecute his counterclaim either in a separate or the same action. Preference made is Same action He should notify the court of his preference within 15 days from the


pg. 49

notice of the plaintiff’s motion to dismiss. Separate action The court should render the order granting and reserving his right to

prosecute his claim in a separate complaint.

- Dismissal under sec 2 rule 17 is without prejudice. Unless otherwise provided.

Dismissal due to the fault of plaintiff Made by: motion or motu proprio Grounds: a) he fails to appear on the date of the presentation of evidence in chief without justifiable reasons. b) his failure to prosecute his action for an unreasonable length of time c) his failure to comply with the RoC d) his failure to obey any order of court -same: dismissal shall be limited to the complaint. Thus, counterclaim is not dismissed ( compulsory or permissive). Defendant may prosecute his counterclaim either in a separate or the same action. -Dismissal under sec 3 rule 17 is without prejudice. Unless otherwise provided.

V. Summons

Summons: writ by which the defendant is notified of the action brought against it. Issuance thereof is ministerial and mandatory upon coc. Served by sheriff, his deputy, other proper court officer, or person authorized by court. Directed upon defendant. Made upon: filing and payment of docket fees. Purpose: due process.

Action in personam notify defendant and acquire jurisdiction over him. Mere knowledge of the case against him without service of summon, no juris upon defendant.

Action in rem or Quasi in rem

Jurisdiction upon defendant is not mandatory as long as juris upon res.

Note:

Jurisdiction over the person: a) personal service b) substituted service c) publication ( if resident temporarily out of the country/ identity of defendant unknown)

extraterritorial service. Jurisdiction over the res: a) placing the property under the court’s custody (eg. attachment of property) b) statutory authority conferring upon it the power to deal with the property or thing within

the court’s territorial jurisdiction (eg status of non-resident defendant) - in both cases summons must be served over defendant, to comply with due process.


pg. 50

Upon completion of service: -server, 5 days from completion of service, serve a copy of the return to plaintiff’s counsel and shall return the summons to coc who issued it, accompanied by proof of service. -proof of service:

-made in writing; - set forth the manner, place, and date of service; -specify papers that were served; -name of the person who received the same; - and shall be sworn to when made by a person other than a sheriff or his deputy.

GR: rules on service of summons same in all trial courts. Exp: a) provision expressly or impliedly applies only to a certain court. b) civil cases governed by the rules on summary procedure.

Content: a)Name of the court b) Name of parties c) direction that defendant should answer in the time fixed by law d) notice that unless the defendant so answers, plaintiff will take judgment by default and may be granted the relief prayed for by plaintiff. e) copy of complaint and appointment of guardian ad litem ( if necessary) shall be attached to the original and each copy of the summons.

- defective service of summons and defendant did not challenge jurisdiction: defect is deemed waived and jurisdiction upon him is valid.

Service upon: How served: Entity without a juridical personality

-sued under the name by which they are generally or commonly known. -serving upon: any one of the persons who organized it OR upon the person in charge of the office or of the place of business maintained in such name. - this service shall not bind the individual, whose connection with the entity, upon due notice has been severed before the action was brought.

prisoner Served upon him by the officer managing the jail or institution whre he is confined. Jail manager is deemed deputized as special sheriff.

Minor or incompetent

a) upon him personally AND his legal guardian is he has one. If none, upon his guardian as litem. Appointment of guardian ad litem shall be applied for by the plaintiff. Minor: upon his father or mother.

Private domestic juridical entity

Upon: a)president; b) managing partner; c) general manager; d) corporate secretary; e) treasurer; or d) in-house counsel. Present rule: enumeration is exclusive. Strict compliance. Expression unius est exclusion alterius

Public corporation

Defendant RP: service upon OSG Defendant is province, city: service upon its executive head or such other officer as the law or court may direct.

Defendant is unknown OR whereabout

With prior leave of court effected by publication in a newspaper of general circulation. Place and frequency of publication is determined by court. -applies to action personam, in rem, quasi in rem.


pg. 51

unknown despite diligent inquiry Resident temporarily out of Phil

Either: a) personal service; b) publication in a newspaper of general circulation WITH registered mailing of a copy of the summons and the order of the court to the last known address of defendant; c) any manner of the court may deem sufficient. -applies to action personam, in rem, quasi in rem. Note however that publication is not necessary because substituted service of summons may be made.

Foreign private juridical entity

Transacted business in the Philippines, made upon: a) resident agent designated in accordance with law; b) if no agent, govt official designated by law; or c) on any of its officers or agents within the Philippines. When foreign corp designated receiver of summons pursuant to corporation code: designation is exclusive.

Jurisdiction upon defendant: a) voluntary appearance; or b) valid service of summons; c)

defendant performs acts that could be construed as voluntary appearance

A. Service in the person of the defendant

Action in personam- personal service is preferred. If he refuses to accept, remedy of server is to tender the summon and not substituted service agad agad.

If defendant can not be served personally within reasonable time, only then may substituted service may be availed of. All efforts to effect personal service must be made and proof of such effort must be placed in the proof of service.

Must be stated in the proof of service of summons and sheriff’s return: a) indicate the impossibility of service of summon within reasonable time b) specify efforts of server to locate defendant c) state that summons was served upon a person of sufficient age and discretion who is residing in the address, or who is in charge of the office or regular place of business of the defendant.

Effect of ineffective substituted service: a) period to file a motion to dismiss for lack of jurisdiction over defendant does not begin to run since the court has no juris over him in the first place b) trial court does not acquire jurisdiction over the person of the defendant

B. Substituted service of summons

Availed of “for justifiable reasons, defendant can not be served within a reasonable time”. - Reasonable time:

a period of time longer than that demarcated by the word “prompt” and presupposes that a prior attempt at personal service had failed. So much time as is necessary under the circumstances for a reasonable prudent and diligent man to do, conveniently, what the duty requires that should be done. To plaintiff : 7 days To sheriff: 15-30 days


pg. 52

Several attempts by the sheriff should be made. Which means 3 tries in at least 2 different dates. Facts as to these attempts must be cited by sheriff in the Return of Summons. Absent such or when cited in general terms, does not justify substituted service.

How made: a) leaving copies of the summons at the defendant’s residence to a person of suitable age and discretion residing therein ( at least 18 yo and able to read and write and relation of confidence to the defendant) - discretion: the ability to make decisions which represent a responsible choice and for which an understanding of what is lawful, right or wise may be presupposed. b) leaving copies of the summons at the defendant’s office or regular place of business to a competent person in charge thereof. - one managing the office or business of defendant, such as the president or manager; and such individual must have sufficient knowledge to understand the obligation of the defendant in the summon, its importance, and the prejudicial effect arising from inaction on the summons. - it is not important that such person be authorized, it is only important that he appears to be in charge.

Validity of substituted service of summons is not affected by the fact that it was not actually received by defendant. Sheriff not require to verify that he did receive it.

When defendant prevents service - Deemed valid service. Judgment by default may be had.

C. Summons by publication

Publication: notive to thw whole worlds that the proceeding has for its object to bar indefinitely all who might be minded to make an objection of any sort against the right sought to be established. - It brings the whole world as party to the case.

Extraterritorial service of summons

- Requisites:

Defendant is resident Defendant is Non-resident

Rem a) In person b) Can’t be served within reasonable time: Substituted service c) Unknown or can’t be found: publication d) temporarily out of Ph: substituted service + sending notice e) other modes as the court may deem proper.

a) while in Ph: in person b) not in Phi: publication Quasi in rem

In personam a) personal service in his state b) Unknown: publication


pg. 53

a) defendant is non resident b) he is not found in Phil c) action against him: rem/ quasi in rem: examples:

- Actions that affect the personal statues of the plaintiff - Actions which relate to, or the subject matter of which is property within Phil, in which defendant claims a lien or interest, actual or contingent. - Actions in which the relief demanded consists, wholly or in part, in excluding the defendant from an interest in property located in Phil - when defendant’s property has been attached in the Phil

Note: res is a) personal status of plaintiff/ b) property subject to litigation in the Phil.

- there is no extraterritorial service in an action in personam.

-alternative modes of extraterritorial service:

a) personal service to defendant

b) publication in a newspaper of general circulation in such place and as often as the court orders WITH summons and order sent by registered mail to last known address of defendant.

c) in any manner as the court may deem proper.

-availing personal service will not prevent other modes.

If defendant is:

a) non-resident b) not found in the country

may be served extraterritorially in 4 instances:

a) when the action affect the personal status of the plaintiff b) when the action relates to, or the subject of which is property within the Philippines, in

which the defendant claims a lien or interest, actual or contingent. c) When the relief demanded in such action consists, wholly or in part, in excluding the

defendant from any interest in property located in the Philippines d) When the defendant non-resident’s property has been attached within the Philippines Situation: SC decision American tourist owing big hotel bills, left the country without paying. Hotel filed a case and asked for summons by publication. Granted and decision rendered in their favor.

Judgment void. Ratio: summons by publication futile. Jurisdiction over the defendant was never acquired. Action in personam.

Balikbayan, former Filipino now naturalized Canadian citizen, inherited a parcel of land. Obtained loan and made a mortgage. Left without paying debt. Extraterritorial service made. Decision in their favor rendered.

Judgment valid. Ratio: Action is quasi in rem. Jurisdiction over the person not necessary. Important is juris over the res.

Balikbayan, former Filipino now naturalized Canadian citizen, has properties in Ph. Action is in personam. Decision in their favor rendered.

Judgment valid. Ratio: Provided, attachment is made on the property of defendant. Thus, in personam action is converted to quasi in rem.


pg. 54

Summons by publication is sufficient to comply with due process.

Mexican ( phil tourist) forced a Filipina to marry him. He left Ph to visit his parents. While there, wife filed for annulment of marriage with damages.

- Extraterritorial service + summons and order were mailed.

- Decree was then issued - Granted damages

Decree valid. Action is in rem. Juris over res is enough. Damages not valid Action in personma. Juris over the person of defendant is mandated.

A filed complaint for partition against H and W who are US residents. H is a Phil lawyer who commutes between US and Manila.

- Service made upon H who was in Manila then. He refused. Sherrif served W through H.

Action is quasi in rem. Thus since personal service or publication not made it may be made in “any other manner as the court may deem proper”. Service to husband is then another manner. But server should justify this mode availed of.


pg. 55

VI. Proceeding after service of summons

Three options available to defendant upon receipt of the complaint: a) motion for bill of particulars ( vague) b) motion to dismiss ( may be availed even if there is already MBop) c) answer to the complaint. ( if no ground to dismiss/ clarify)

A. Motion for Bill of Particulars: - Applies to any pleading that contains ambiguous allegations. - When to file: filed before not after responding to a pleading.

- period to file it refers to the period for filing the responsive pleading. Except in case of a reply, BoP must be made within 10 days.

- Purpose: to seek an order from court directing the pleader to submit a bop which avers with sufficient definiteness and particularity to enable the movant to prepare his responsive pleading. To clarify the allegations in the pleading so that the adverse party may be informed of the coa or defense.

Example: facts constituting “ unlawful concert” of parties in ammasing plaintiff’s properties.

- since purpose is only to clarify, it is an error for the movant

a)to ask that evidences be disclosed. This matters can be obtained through mode of discovery.

b) call for the production of particulars constituting malice, intent, knowledge or condition or the mind. Since these may be averred generally and these are evidentiary matters.

c) require to aver particular circumstances of fraud or mistake.

d) set forth matters showing the jurisdiction of a court to render judgement.

- Requirements for the motion: motion shall point out a) defects complained of b) paragraphs where in they are contained c) the details desired

- Action of the court: a) deny motion outright b) grant motion outright:


pg. 56

- if granted and the pleader MUST submit bill of particulars within 10 days from the notice of the order or within the period fixed by court. - pleader may comply through: filing a separate or amended pleading. -bop submitted becomes part of the pleading for which it is intended. -Non compliance: b.1)striking out of the pleading. b.2) striking out of portions of the pleading to which the order was directed. b.3) order as it may deem just. c) hold hearing for the motion ( court not mandated)

- When a MBoP is made, period to file responsive pleading: If denied/ granted: the period for filing a responsive pleading is interrupted. Thus continuance of counting is from date of receipt of notice of the order of denial. In no case be less than 5 days.

B. Motion to Dismiss: Note: within one day from receipt of the complaint, summons shall contain a reminder to the defendant to observe restraint in filing a motion to dismiss and instead allege the ground thereof as defenses in the answer.

-If there is a ground for dismissal, defendant may: a) file a M2d or b) allege the ground as an affirmative defense.

- M2D is not a pleading. Merely a motion, which is an application for relief other than by a

pleading.

- Hypothetical admission of a M2D: - hypothetically admits the truth of the factual allegations in the complaint. It extends to such matters of fact that have been sufficiently pleaded and not mere epithets charging fraud, allegations of legal conclusions or erroneous statements of law, inferences from facts not stated, matters if evidence or irrelevant matters. “ hypothetically”- even assuming the facts to be true”.

- Omnibus motion rule: When a m2d is filed, all grounds available at the time the motion is filed must be invokes in the motion. Grounds not waived however are: lack of juris over subj matter, litis pendencia, res judicata, prescription. There is ground for dismissal

Legal effect Preliminary hearing

a) party filed M2D Applying omnibus motion rule, all grounds available at the time the motion is filed must be invokes in the motion.

-Hearing on the motion is necessary. There may be preliminary hearing when trial court have not categorically resolved the motion

b) party alleged it as a No waiver. Court discretion: preliminary


pg. 57

affirmative defense hearing

- Contents and form: a) state the relief sought and the grounds upon which it is based b) accompanied by supporting affidavits and paper c) shall set forth the hearing by the applicant and shall contain a notice of hearing addressed to all parties concerned. - hearing must be conducted not later than 10 days after filing of the motion. - notice of hearing is mandatory. Absent such, motion is defective. Considered are mere pro forma and does not stay the period for filing response.

- Time to file:

- within the time for filing the answer but before filing said answer

-GR: filed out of time (after answer) , party is stopped from filing m2d.

Exp: lack of juris over subj matter, litis pendencia, res judicata, prescription. - Grounds:

ground W/ or w/o prejudice

a) no jurisdiction over the defendant w/o b) no jurisdiction over the subject matter w/o c) Improperly laid venue w/o d) Plaintiff no legal capacity w/o e) there is another action pending between the same parties and for same cause

w/o

f) the coa is barred by a prior judgement or by statute of limitations

w/

g) states no coa w/o h) claim or demand of plaintiff has been paid, waived, abandoned, extinguished -includes: laches ( in this case, hearing is mandated)

w/

i) claim on which the action is founded is unenforceable under the statute of frauds

w/

j) conditions precedent not complied with w/o

- f) res judicata -basis: public policy and individual cannot be vexed twice. - two concepts: Bar by a former judgment Bars prosecution of a second action upon the same claim,

demand, or coa Conclusiveness of judgment A fact of question which was in issue in a former suit and

was judicially passed upon and determined by court of competent juris, is conclusively settled and cannot again be litigated in any future action in the same or other court and on either same or different coa.

-elements: a) the former judgment must be final


pg. 58

b) court which rendered it has jurisdiction over the subj matter and the parties c) judgment on the merits d) there must be between the 1st and 2nd actions, identity of parties, sunj matter, and coa. - it does not requires absolute similarity identity of parties. Only substantial.

- substantial: when there is community of interest or rpivity of interest between a party in the 1st and 2nd case even if the first case did not implead the latter.

- preliminary hearing may be had.

- applies to judicial or quasi- judicial authorizes.

- no res judicata in criminal proceedings.

-Grounds as affirmative defenses:

- If made, court may at its discretion, conduct preliminary hearing upon it. - Omnibus motion rules does not apply. Other grounds not waived.

-A denial of a motion to dismiss does not preclude any future reliance on the grounds relied thereupon.

Remedy of defendant if motion is denied: interlocutory order.

1) he may file his answer within the balance period, but not less than 5 days. 2) certiorari, prohibition, mandamus: a) Certiorari/ prohibition: when denial was tainted with grave abuse of discretion amounting to lack of jurisdiction b) Mandamus: respondent court unlawfully neglected the performance of an act which the law specifically enjoins.

Remedy of plaintiff is motion is granted: Final order

Depending on ground: 1.without prejudice: refile the action or certiorari when there is a ground. 2.wirh prejudice: appeal from the order of dismissal

- Note: sec 8, Rule 40 is an exception to sec 1, Rule 41. MTC dismisses a case based on lack of jurisdiction over the subj matter, may appeal to RTC. RTC will try it as if it was originally filed with it. If reversed: remanded to MTC.

- When complaint cannot be refilled: a) coa is barred by prior judgement b) coa is barred by statute of limitation c) claim/ demand have been paid/ waived/ abandoned/ extinguished. d) claim on which the action is founded is unenforceable under the provisions of the statute of frauds.


pg. 59

- Dismissal shall be without prejudice to the prosecution in the same or a separate action of a counterclaim pleaded in the answer of defendant.

VII. Answer, other pleadings, default,

judgment on the pleadings, summary judgment

pleadings Made by/ Asserted by To/ against

answer defendant Plaintiff counterclaim defendant plaintiff

Cross-claim Co-defendant defendant

3rd/ 4th/etc- party complaint defendant stranger

intervention stranger Original parties

Reply Defendant/ plaintiff Plaintiff/ defendant

A. Answer - answer: pleading in which the defending party sets forth his defenses.

- there is no answer to a reply.

-Defenses in the answer: negative or affirmative

a) Negative answer:

material averments alleged in the pleading of the claimant are specifically denied. It is a form of a specific denial.

If not specifically made/ blanket denial-> it is a general denial: thus it is an admission-> No more triable issue-> judgment on the pleadings.

-GR: allegations in a complaint not specifically denied are deemed admitted.

Exps:

a) amount of unliquidated damages


pg. 60

b) conclusions in a pleading which to not have to be denied at all because only the ultimate facts need be alleged in a pleading. c) non-material averments

-GR: admission in a pleading cannot be controverted by the party making such admission because the admission is conclusive as to him.

Exp: contradict own judicial admission when:

a) by showing that the admission was made through palpable mistake

b) that no such admission was made.

Specific denial:

-Purpose of specific denial: lay down cards on the table. make him disclose matters alleged in the complaint which he succinctly intends to disprove at trial, together with the matter which he relied upon to support the denial.

-using words “ specifically/ specific denial” not enough.

Kinds of specific denial:

a) absolute denial -defendant specifies each material allegation of fact the truth of which he does not admit and, whenever practicable, sets forth the substance of the matters upon which he relies to support his denial. -reference must be made to the paragraph sought to be denied. Blanket denial is not enough. It is considered as general denial.

b) partial denial -defendant does not make a total denial of the material allegations in a specific paragraph

c) denial by disavowal of knowledge -defendant alleges that he is without knowledge or information sufficient to form a belief as to the truth of a material averment made in the complaint. - must be made in good faith. - if made in bad faith-> considered an admission.

When specific denial MUST be coupled with a oath:

a) denial of an actionable document ( eg. promissory note)

Thus, a) specifically deny the document and to set firth what he claims to be the facts; b) deny the document under oath.

GR: Failure to do such: he is deemed to have admitted the genuineness and due execution of the actionable document.

Exp: fraud, mistake, compromise, payment, statute of limitations, estoppels, and want of consideration. Thus, party may still argue it.

b) denial of allegations of usury in a complaint to recover usurious interest. Specific denial of:

- allegatios of usury in a complaint.

- comaplaint is filed to recover usurious interest.


pg. 61

Negative pregnant: not a specific denial, actually an admission.

- It is an affirmative and which although is stated in a negative form really admits the allegations to which it relates.

Denial Example: Specific denial: absolute “Defendant denies the truth of paragraph 7…” Specific denial: partial “Defendant admits that collision happened but

denies that it was through his fault” Specific denial: no knowledge “ Defendant has no knowledge of…” Negative pregnant Complaint: P lend D for P500k

NP: Defendant specificall denies that P lend him 500k ( note: mere repetition)

a) Affirmative answer:

when it alleges new matters which, while hypothetically admitting the allegations of the pleading of the claimant, would nevertheless, prevent or bar recovery by the claiming party.

- Avoidance of the claim not merely denial of plaintiff’s coa. - Includes: fraud/ statute of limitation/ release/ payment/ illegality/ statute of frauds/

estoppels/ former recovery/ discharge in bankruptcy/ any other matter by way of confession and avoidance.

- Affirmative defenses are not automatically as such. It must be of such nature as to bar the plaintiff from claiming on his coa.

B. Counterclaim

-any claim in a pleading which defending party may have against opposing party.

- “any claim”: money or some other relief against an opposing party.

- purpose: prevent multiplicity of suits.

- it is not intrinsically a part of an answer because it is a separate pleading. But it may be included in the answer ( Answer with a counterclaim)

- Motion to dismiss with a counterclaim is not allowed.

- kinds:

a) compulsory counterclaim

- Requirements:

a.1) arises out of, or is necessarily connected with the transaction or occurrence which is the subject matter of the opposing party’s claim.

a.2) does not require for its adjudication the presence of 3rd parties over whom the court cannot acquire jurisdiction; and

a.3) the court has jurisdiction to entertain both as to the amount and nature.

- if not within jurisdiction, the same may still be alleged to weaken the plaintiff’s claim. OR

- if not within jurisdiction, pleader may waive the excess.

- even if not within jurisdiction: still a counterclaim.


pg. 62

Test of compulsoriness: logical relation between the claim alleged in the complaint and that in the counterclaim. Compulsory or not?

-are the issues of fact or law raised by the claim and counterclaim are largely the same?

- would res judicata bar a subsequent suit on defendant’s claims, absent the compulsory counterclaim rule?

- will substantially the same evidence support or refute plaintiff’s claim as well as defendant’s counterclaim?

-if there any logical relation between the claim and counterclaim, such that the conduct of separate trial of the respective claims of the parties would entail a substantial duplication of effort and time by the parties and the court?

Example: claim for compensation of improvements; cost of suit

-a party who desires to plead a compulsory counterclaim should not file a motion to dismiss. But if he opts to pursue counterclaim, he may use his ground for dismissal as an affirmative defense in his answer.

- omitted compulsory counterclaim: ratio for remedy of omission: pleader’s oversight, inadvertence, excusable negligence, justice so requires. -maybe set up, by leave of court by amendment of the pleadings BEFORE judgment. - if not set up in the action, the cc shall be BARRED. Refers: cc already existing at the time the answer is filed. If cc arose after the filing of the answer, with leave of court, be presented as cc by supplemental pleading BEFORE judgment. Cc existing at the time the answer is filed

Amended pleading Set up in the amended pleading

Cc existed only after answer was filed.

Supplemental pleading Presented in the supplemental pleading

- Period to answer cc: 10 days from service thereof.

- Dismissal of complaint-> dismissal of counterclaim; 3 situations

a) sec 6, rule 16 defendant does not file a m2d and uses grounds for dismissal as affirmative defense with a counterclaim. Then a preliminary hearing. If case is dismissed, counterclaim, ( cc or pc) is not dismissed.

b) sec 2, Rule 17 plaintiff files m2d after defendant answers with a counterclaim. If motion is granted, dismissal limited to complaint. Defendant has right to prosecute his claim in a separate action unless within 15 days from the notice of the motion he manifests his preference to have his counterclaim resolved in the same action.

c) sec 3, rule 17 Complaint is dismissed through plaintiffs fault and cc already set up,


pg. 63

same as above.

b) permissive counterclaim

- if any of the elements of a compulsory counterclaim is absent.

Example: damages based on culpa aquiliana in collection of loan; damages based on quasi delict in unlawful detainer; payment of car in recovery of piece of land.

compulsory Permissive

Cc which a party has at the time the answer is filed, is contained therein. If not set up: barred.

Does not apply

Not an initiatory pleading Initiatory pleading

Not needed Should be accompanied by a certification against Forum shopping and certification issued by lupong tagapamayapa to file suit

Need not be answered: merely reiterates special defenses are deemed controverted even without reply; or raises issues which are deemed automatically joined by the allegations of the complaint. Need not be answered.

Must be answered by the party against whom it is interposed. Failure: may be declared in default of the counterclaim.

Docket and other lawful fess should be paid Docket and other lawful fess should be paid

C. Cross-claim

-any claim by one party against a co-party arising out of the transaction of occurrence that is the subject matter either of the original action of a counterclaim therein.

- a cross-claim that a party has at the time the answer is filed shall be contained in said answer. Set up in the same action.

C-c existing at the time the answer is filed

Amended pleading Set up in the amended pleading

C-c existed only after answer was filed.

Supplemental pleading Presented in the supplemental pleading

-counterclaim vs cross-claim

cc c-c

Against opposing party Against a co-party

May or may not Rise from the transaction or occurrence that is the subj matter of the original complaint or counterclaim

- Period to answer cc: 10 days from service thereof.


pg. 64

D. 3rd (4th, etc) – Party Complaint

- a claim which a defending party may, with leave of court, file against a person who is not yet a party to the action for:

a) contribution,

b)indemnity,

c) subrogation,

d) other relief

- complaint independent of and separate and distinct from the plaintiff’s complaint.

-defendant has no vested right to file this complaint. Court may disallow it.

- not proper to file a 3rd party complaint against one who is already a party to the action

-Leave of court: this complaint needs court approval.

-Period to answer 3PC: 15 days from service summons.

E. Intervention

- legal proceeding by which a person who is not a party to the action is permitted by the court to become a party by intervening in a pending action after meeting the conditions and requirements set by the RoC.

- 3rd person not originally impleaded in the action.

- purpose: to enable 3rd party to protect or preserve a right or interest which may be affected by such proceeding

- it is an ancillary and supplemental proceeding.

- it cannot alter the nature of the action and issues already joined.

- it is only optional and permissive upon court.

- requisites:

a) there must be a motion for intervention filed BEFORE rendition of judgment by the trial court

b) by leave of court c) movant must show in his motion that: 1) legal interest in the a)matter in the litigation/

b)success of either of the parties in the action/ c)against both parties.

d) “legal” interest”: one that is actual and material, direct and of an immediate character, not merely contingent or expectant so that the intervenor will either gain or lose by the direct legal operation of the judgment.

e) movant is so situated as to be adversely affected by the distribution or other disposition of property in the custody of the court or of an officer thereof

f) intervention must not unduly delay or prejudice the adjudication of the rights of the original parties and that the intervenor’s rights may not be fully protected in a separate proceeding.

-Procedure for intervention:

1. intervenor shall file a motion for intervention attaching his pleading-in-intervention


pg. 65

a) complaint-in-intervention: assert claim to orginal parties

b) answer- in-intervention: seek to unite with the defending party in resisting a claim against the latter

2. motion and pleading shall be served upon parties

3. the answer to complaint-in-intervention shall be filed within 15 days from notice of the order admitting the same, unless court sets a different period.

- time for intervention: at any time before the rendition of judgment by the trial court.

F. Reply

- pleading, the function of which is to deny, or allege facts in denial or avoidance of new matters alleged by way of defense in the answer and thereby joins or makes issue as to such new matters.

- responsive pleading to an answer

- not a responsive pleading to a cc or c-c

- a proper response cc or c-c: answer to each.

-filing of reply is not mandatory.

- effect of not filing: all matters in the answer is deemed denied.

Material allegation in the complaint must be specifically denied

Failure to: complaint deemed admitted

Material allegations in the answer need not be denied

Failure to: answer deemed denied

-reply is advisable if answer is based on an actionable document. Thus plaintiff has to file a reply under oath to deny is genuineness and due execution,

G. Default

- procedural concept that occurs when the defending party fails to files his answer within the reglementary period and NOT when he fails to attend pre-trial or trial.

- it is an error to declare defendant in default when answer has already been filed.

failure to answer within reglementary period

Judgment on default

Failure to attend pre-trial/ trial

waiver of defendant’s right to object to evidence presented and to cross- examine the witness presented.

NOT a waiver of his right to present evidence

- requisites before a party may be declared in default. a) motion to declare party in default filed by the claiming party. NO motu proprio declaration of default. b) summons has been validly and previously served upon him c) the defending party must have failed to filed his answer within the reglementary period/ that fixed by court.


pg. 66

d) there must be a proof of the failure to file the answer. e) defending party must be notified of the motion to declare him in default f) there must be a hearing of the motion to declare him in default. Mandatory. If not made, certiorari.

- failure to file and answer under the Rules of summary procedure, defendant NOT declared in default. INSTEAD, court ( motu proprio/ motion) shall render judgment as may be warranted by the prayer in the complaint.

Default to answer in Civ Pro Motion: judgement on default Default to answer in Summ Proc motu proprio/ motion: judgment on complaint

-Effect of default:

Total 1. def loses standing in the court. Prevents him from taking part in the trial. 2. but he is entitled to notices of subsequent proceedings. May participate as a witness 3.it is not an admission of the truth or validity of plaintiff’s claims.

Partial (In case of several defendants)

Court shall try the case against all defending parties based on the answers filed and render judgment upon the evidence presented where the claim states a common coa against them all.

- Action of court after declaration of default: option

a) proceed to render judgment OR

b) require the plaintiff to present his evidence ex parte ( received by the court itself or the clerk of court)

-Remedies of one declared in default:

Remedy: After notice or order and before judgment

Show that: failure to answer was due to farud/ accident/ mistake/ excudable negligence and defendant has a meritorious defense ( affid of merit)

After judgment and before it becomes final and executory

a) Motion for new trial under Rule 37. OR b) appeal from judgment as being contrary to the evidence or law

After judgment has become final and executory

Petition for a relief from judgment under Rule 38

Was wrongly declared in default and court acted with grave abuse amounting to lack of juris and such is patent in the judgment

Certiorari.

-Note that default should be exceptions rather than the rule. Court must set aside when possible.

- implied lifting of the order of default: granting defendant opportunity to file a responsive pleading after it was declared in default. Such lifting does not need hearing. It only needs to be under oath and accompanied by affid of merits showing his defenses and filed before judgment is made.


pg. 67

- a judgment rendered against a party in default shall not exceed the amount or be different in kind from that prayed for nor award unliquidated damages. Thus, complaint seeks 1M but evidence shows 1.5M, the court can not grant 1.5M.

-GR: does not answer, default.

Exp: Default PROHIBITED:

a) annulment of marriage b) declaration of nullity of marriage c) legal separation

- if no answer in the following, court shall order prosec atty to investigate WON collusion exists. If none, court shall order prosec atty to intervene for the State in order to see to it that the evidence submitted is not fabricated.

-GR: answer filed out of time: court will not admit it- default.

Exp: answer files out of time and is allowed by court within its judicial discretion. BUT must be allowed before declaration of default is made and shown that there was no intention to cause delay.

-GR: default available when there is failure to answer

Exp: default despite answer is filed,

a) party refuses to obey court order to comply with various modes of discovery.

b) party or officer or managing agent of a party willfully fails to appear before the officer who is to take his deposition or a party fails to serve answers to interrogatories.

H. judgment on the pleadings

- comes to operation when an answer is served and filed but the same fails to tender an issue or admits the material allegations of the adverse party’s pleadings.

- by motion of the party and not motu proprio

- not applied:

a) annulment of marriage b) declaration of nullity of marriage c) legal separation

-material allegations alleged in the complaint should always be proved.

Summary Judgment (accelerated judgment)

- proper where upon a motion filed after the issues had been joined and on the basis of the pleadings and papers filed, the court finds that there is no genuine issue as to any material fact except as to the amount of damages.

- what triggers it is that there is no genuine factual issue.

-“genuine issue” : issue of fact which requires the presentation of evidence as distinguished from a sham, fictitious, contrived or false claim.

- by motion of the party and not motu proprio

K. Default/ judgement on the pleadings/ sum judgment


pg. 68

Judgment on default Judgment on the pleadings Summary judgment

On motion On motion On motion

no answer within reglementary period

answer is served and filed but the same fails to tender an issue or admits the material allegations of the adverse party’s pleadings -absence of any factual issue

the court finds that there is no genuine issue as to any material fact except as to the amount of damages -absence of genuine issue

By plaintiff By plaintiff/ counterclaimant By claimant/ defendant

Judgment based on: complaint and/or evidence the court requires from plaintiff

Judgment based on: pleadings alone

Judgment based on: pleadings, affid, depo, and admissions adverse party may serve opposing affid/depo/admissions atleast 3 days before hearing.

Hearing hearing hearing

- 3 day rule notice before hearing

- 10 day rule notice before hearing


pg. 69

VIII. Pre-trial and Modes of discovery

A.Pre-trial - procedural device held prior to the trial for the court to consider the ff purposes:

a) a)possibility of an amicable settlement or submission to adr b) simplify issues c) necessity or desirability of amendments to the pleadings d) possibility of obtaining stipulations or admissions of facts and documents to avoid unnecessary

proof. e) limit number of witnesses f) advisability of prelim reference of issues to a commissioner g) propriety of judgment on pleadings, sum judgment, or dismissing the action should there be a

valid ground. Determination of propriety only. Party must still file a motion to effect any of these.

h) advisability or necessity of suspending the proceedings i) other matters as may aid in the prompt disposition of the action

Mandatory: a) in civil cases, b) crim cases in the sandiganbayan, RTC, MTC, MTCC, MeTC, MCTC c) civ and crim cases in Rules of Summary Procedure

- before start of Prelim conference: judge must mandate parties to refer case to Phil Mediation Center (PMC). Mediation fails-> continue with prelim conference.

- How it is called:

a) civil cases: initiated by the plaintiff.


pg. 70

- a motion is made 5 days after the last pleading has been filed and served. The motion is an ex parte motion. - P fails to file this: coc shall issue a notice of pre-trial.

“last pleading” : last permissible pleading that a party can file is the reply to the answer to the last pleading asserting a claim or expiration of the period to file such, which ever comes first.

- Notice of pre-trial

: served on the counsel of the party if the latter is represented by counsel. Counsel then has duty to inform party. : otherwise, party himself

: mandatory no matter what.

-Appearance in the pre-trial

: it shall be the duty of parties and their counsels to appear.

: failure to appear

plaintiff - plaintiff is “non-suited” -cause of dismissal of the action. Dismissal shall be with prejudice unless the court orders otherwise -Remedy: appeal from order of dismissal

Defendant -defendant is in default -cause to allow plaintiff to present his evidence ex parte (merely interlocutory, non-appealable) and -for the court to render judgment on the basis of the evidence presented by plaintiff Remedy: certiorari

: non-appearance excused

Show: valid cause AND represented by counsel (who has power to enter into an amicable settlement AND adr AND stipulations or admissions- LAHAT dapat or considered as no authority at all)

- counsel’s authority must be in a SPA form.

: filing and contents-

- file with the court their respective pre trial briefs 3 days before date for such. - Served to adverse party - Shall contain

a) statement of their willingness to enter into an amicable settlement or adr and indicating their desired terms

b) summary of admitted facts and proposed stipulation of facts c) issues to be tries and resolved d) docu/exhibits to be presented, stating the purpose e) manifestation of their having availd of or their intention to avail the discovery

procedures or referral to a commissioner. f) Number and names of the witnesses and the substance of their respective testimonies.

: documents and exhibits shall be identified and marked.


pg. 71

Ratio: no evidence shall be presented and offered during the trial in support of a party’s evidence-in-chief other than those that have been identified and marked during pre-trial. Exp: for good cause.

:on pre-trial, there is an adherence to “one say examination of witness rule”. Absent settlement, “ adhere to “ most important witness rule”.

: Questions to be asked by judge:

Ask question on issues raised by the parties and all questions or comments by counsel or parties must be directed to the judge to avoid hostilities between parties.

: failure to file pre-trial brief

-shall have same effect as failure to appear at pre-trial.

plaintiff - plaintiff is “non-suited” -cause of dismissal of the action. Dismissal shall be with prejudice unless the court orders otherwise -Remedy: appeal from order of dismissal

Defendant -defendant is in default -cause to allow plaintiff to present his evidence ex parte (merely interlocutory, non-appealable) and -for the court to render judgment on the basis of the evidence presented by plaintiff Remedy: certiorari

-Such dismissal is discretionary upon court.

: judge shall not allow the termination of pre-trial simply because of the manifestation of the parties that they cannot settle.

Judge’s duty if they can’t settle

a) inform them of the importance of a pre-trial and its advantages. b) endeavor to achieve the other purposes of a pre-trial c) to obtain admission using depositions under Rule 23 d) to obtain answers to admission under Rule 26 e) to obtain answers under Rule 25 f) production of docu or things requested by a party under Rule 27 g) production of results of physical and mental examination under Rule 28

: Pre-trial order

- issued within 10 days after termination of the pre-trial - order shall contain the ff:

a) matters taken up in the conference b) action taken thereon c) amendments allowed to the pleadings d) agreements or admissions made by the parties as to any of the matters considered.

These are binding and conclusive upon parties.

: should it proceed to trial, pre-trial order shall fcn as:


pg. 72

a) defines and limits the issues to be tried b) controls the subsequent course of action EXCEPT if modified before trial to prevent manifect

injustice.

: crim vs civ cases

Civil cases Criminal cases

Motion of plaintiff Motu proprio Made after the last pleading has been served and filed

After arraignment and within 30 days from the date the court acquires jurisdiction over the person of accused.

Considers the possibility of amicable settlement

Not considered

Agreements and admissions contained in the minutes of the prelim conference and signed by either parties or their counsels.

Agreements and admissions must be reduced in writing and signed by both accused and counsel, otherwise, it cannot be used against the accused.

Sanctions for non-appearance are imposed upon the plaintiff and defendant

Sanctions are imposed upon counsel of accused of the prosecutor.

Pre-trial brief is required to be submitted Not required

: preliminary conference under the revised rules on summary procedure

- shall not be held not later than 30 days after last answer is filed. - Roc applied except when it is inconsistent with sum proc

Plaintiff failed to appear at pc Dismissal of his complaint Defendant failed to appear at pc Entitled to judgment on his counterclaim

- All cross-claims shall be dismissed - Within 5 days from termination of pc: court shall issue order stating the matters taken up in

the conference.

B. Modes of Discovery

- Device employed by a party to obtain information about relevant matters on the case from the adverse party in preparation for the trial

- May be used by all parties to the case - Purpose: designed to serve as an additional device aside from pre-trial, to narrow and

clarify the basic issues between the parties, to ascertain the facts relative to the issues and to enable the parties to obtain the fullest possible knowledge of the issues and facts before civil trial and thus prevent the said trials to be carried on in the dark.

- Duty of court: a) Preparing summons with in one day from the receipt of complaint b) Issue an order requiring the parties to avail of the interrogatories under Rule 25;

request for admission under Rule 26; or at their discretion make use of depositions under Rule 23, 27,28 within 5 days from filing of the answer.

c) Serve copy to defendant and plaintiff together with the summons - Modes of discovery


pg. 73

Mode Effect if not filed and served Rule 23: deposition pending action Rule 24: depositions before action or pending appeal

Rule 25: interrogatories to parties failure to serve written interrogatories: may NOT be compelled by the adverse party to give testimony in open court or to give deposition pending appeal UNLESS allowed by the court/ to prevent failure of justice

Rule 26: admission by adverse party Party who fails to file and serve this request shall not be permitted to present evidence on such facts. UNLESS for good cause permitted by court/ to prevent injustice

Rule 27: production or inspection of documents and things

Rule 28: physical and mental examination of persons

1. Deposition:

- taking of testimony of any person, whether he be a party or not, but at the instance of a party to the action.

- testimony taken out of court.

- a) oral examination; or b) written interrogation

- may be used:

a)(perpetuam rei memoriam: future action pending appeal;

b) benne esse: pending action (Rule 23)

- pending action:

a)With leave of court: before the service of an answer but after jurisdiction is acquired before defendant or property subj of the action

b)Without leave of court: after service of an answer

“ex abudanti cautela” ( to be on the safe side)

- When parties consider that what they submitted is not an answer as contemplated by Roc. : the same contention does not make it less of answer because the pleading filed is substantially an “answer”.

-before whom taken:

a) within the Philippines- judge/ notary public/ any person authorized to administer oaths if the parties so stipulate in writing

b) outside the Philippines- secretary of an embassy or legation/ consul general/ vice consul/ consular agent of the Philippines/ officers or persons as may be appointed by commission or letters of rogatory/ person authorized to administer oaths by written stipulation of the parties.

Prohibition: no depo shall be taken before a person who is a


pg. 74

a) relative within the 6th degree of consanguinity or affinity or employee or counsel of any of the parties; or b)who is a relative within the same degree, or

c) employee of such counsel; or who is financially interested in the action.

Use of depo pending action:

May be used against:

a) any party who was present or represented at the taking of the deposition

b) against one who had notice of the depositon

May use for:

a) contradicting or impeaching the testimony of the deponent as a witness

b) any purpose by the adverse party where the deponent is a party

c) for any purpose by any party where the deponent is a witness if the court finds that

-witness is dead

-that witness resides more than 100km from the place of trial or hearing or is outside Phil UNLESS it appears that his absence was procured by the party offering the deposition

- that the witness is unable to attend or testify because of age, sickness, infirmity, or imprisonment

- party offering the deposition has been unable to procure the attendance of witness by subpoena

-exceptional circumstances exist

-deposition of a prisoner: may only be taken with leave of court and upon such tems as the court may prescribe.

- examination of the deponent:

1) party seeking deposition shall give reasonable notice in writing to all parties 2) notice shall state name, address of each person to be examined 3) courts then MAY make any order of protection of the parties and deponents. 4) Attendance of witnesses may be made by subpoenas 5) Deponent may be examined or cross-examined following the procedures for witnesses in

the trial. He as same rights as witnesses. 6) deponent may be examined any matter EXP: priveledge and court orders otherwise 7) person before whom deposition is made is HAS NO AUTHORITY to rule on the

objections interposed during the course of the deposition although any objections shall be noted by him.

8) Any evidence that has been objected to shall still be taken but subject to objection.

- Deposition upon written interrogatories

- written interrogatories serve upon every party.


pg. 75

-other party may also serve cross-interrogatories upon party proposing to take the deposition within 10 days from service of written interrogatories. - latter may, within 5 days serve re-direct

- and within 3 days thereafter the other may serve re-cross interrogatories

- copies of all these shall be delivered to the officer before whom the deposition is taken

- officer shall take responses and prepare the record.

-perpetuation of testimony pending appeal, Procedure:

1. done by filing a verified petition by person desiring to perpetuate own testimony or of any another matter that may be cognizable in any Phil court

2. filed in the place of residence of any expected adverse party 3. notices sent 4. if court is satisfies that perpetuation may prevent a failure or delay justice, it shall order the

taking of deposition. 5. deposition under this is admissible in evidence in any action subsequently brought

involving the same subj matter

2. Interr0gatories to Parties:

- purpose: to elicit material and relevant fact from any adverse party

-vs Bill of particulars

I2P BoP

Seek to disclose all material and relative fact from a party

Designed to clarify ambiguities in the pleading

Not Directed to a pleading

- vs written interrogatories in a deposition

I2P IID

Directly upon adverse party Not served upon the adverse party directly but delivered to an officer who will make the depo

- Procedure:

1) filing and serving upon the adverse party written interrogatories to be answered by the party served. If juridical entity – answered by any competent officer.

2) No party, w/o leave of court, serve more than one set of interrogatories to be answered by the same party.

3) Interrogatories shall be answered fully in writing and shall be signed and sworn to by the person making them.

4) A copy of the answer to such shall be filed and served on the party who submitted it within 15 days after service thereof. ( 15 days may be extended or shortened by the court).

5) Person who needs to answer may make objection to interrogatories 6) Said objection shall be presented in court within 10 days after service of interrogatories. 7) Filing of objection- have the effect of deferring the filing and service of the answer to the

interrogatories.


pg. 76

-failure to serve written interrogatories: may NOT be compelled by the adverse party to give testimony in open court or to give deposition pending appeal UNLESS allowed by the court/ to prevent failure of justice.

3. Admission by the Adverse Party

- purpose: allow one party to request the adverse party in writing to admit certain material and relevant matters which most likely will not be disputed during the trial. To avoid unnecessary inconvenience. May request:

a) admit the genuiness of any material and relevant document described in and exhibited with the request

b) admit the truth of any material and relevant matter of facts set forth in the request.

- Party who fails to file and serve this request shall not be permitted to present evidence on such facts. UNLESS for good cause permitted by court/ to prevent injustice

-

- answer (admit/deny), file and serve:

a) Person served should specifically deny the admission requested OR if he does not deny, set forth in detail the reasons why he can not truthfully admit or deny those matters.

b) This sworn statement shall be filed and served within the period designated but it shall not be less than 15 days from the request of service, or within period allowed by court.

c) If no sworn statement= deemed admitted. IMPLIED ADMISSION d) Admission shall only be for pending action and not for nay other purpose or proceeding.

- To avoid implied admission= party may file and serve sworn statement deferment. It has the effect of filing court objection. Court shall decide on such objections, if denied, compliance must be had.

e) withdrawal of admission: party may be allowed by court to withdraw and amend admission upon just terms. Motion to be relieved of the effect of his admission. - Admission is NOT FINAL and NOT IRREVOCABLE.

4. Production or Inspection of Documents

-purpose: to allow a party to seek an order from the court in which the action is pending to

a. order any party to produce and permit the inspection and copying or photographing, by or on behalf of the moving party, of any designated docu, papers, books, accounts, letters, photos, objects or tangible things, NOT PRIVELEGED, which constitute or contain evidence material to any matter involved in the action and which are in his possession, custody and control

b. order any party to permit entry upon designated land or other property in his possession or control for the purpose of inspecting, measuring, surveying, or photographing the property or any designated relevant object or operation thereon.

- take note privileged communications: they can not be used. (eg. communication bet H and W, trade secrets, editors as to their sources, voters on who they voted, info in tax census returns, bank deposits)

- procedure:


pg. 77

1) motion must be filed by the party seeking such and must show good cause supporting the same 2) court order shall be issued specifying the time, place, manner or making the inspection and

taking copies and photographs and may prescribe such terms and conditions that are just.

5. Physical and Mental Examination of Persons

- applicability: to an action which the mental or physical condition of a party in the controversy.

- Procedure:

1) motion must be filed showing good cause 2) notice to other parties 3) motion specify: time, place, manner, conditions, and scope of examination and by the person/s

by whom it is made. 4) Party examined may request the party causing the examination to deliver to him a copy of the

detailed report of physician setting out his findings and conclusions 5) After request and delivery: person who requested the examination SHALL BE ENTITLED to

receive a like report of any examination, previously or thereafter made of the same physical or mental condition.

6) If he refuses, court may make an order the delivery thereof. 7) If physician fails or refuses to make report, the court may exclude his testimony.

- by requesting and obtaining report or taking deposition of examiner, the party examined is WAIVES any privilege he may have in that action or any other involving the same controversy, regarding the testimony of every other person who has examined or may thereafter examine him in respect of the same mental or physical examination.

REFUSAL to comply with modes of discovery:

Refusal effect to answer any question (deposition or interrogatories)

1.may compel a deponent or person interrogated who refuses to answer an oral examination 2. if there is a court order to answer, contempt of court AND shall be liable the proponent the reasonable expenses incurred in obtaining the court order and atty’s fees 3.if application to issue order is denied- and no substantial justification, proponent liable for the reasonable expenses incurred in obtaining the court order and atty’s fees

to answer designated or particular questions or refusal to produce documents or things or to submit to physical or mental examination

1. court may order compliance. 2. court may also order that refusing party not to be allowed to support or introduce evidence designated docu or things or items of testimony, or from introducing evidence of physical or mental condition 3.court may order the striking out of pleadings or parts thereof or staring further proceedings UNTIL order is obeyed


pg. 78

4. court may order dismissing the action or proceeding or any part thereof 5. court may render judgment by default against disobedient party 6. court may direct the arrest of any party or agent for disobeying EXCEPT an order to submit to physical examination

to be sworn 1) may be considered as contempt of court to admit Situation: party refuses to admit genuineness of

docu or truth of any matter of fact BUT eventually it was prove that it is genuine and true 1) court may order the former to pay the reasonable expenses in making such proof including atty’s fees.

Failure to attend depositions or to serve answers to interrogatories Section 5 Rule 29 a) he refuses to answer whole set of interrogatory OR b) He refuses to answer as particular question even if the court orders him to do so.

1) court may order the striking out of pleadings or parts thereof or staring further proceedings UNTIL order is obeyed 2) court may order dismissing the action or proceeding or any part thereof 3) court may render judgment by default against disobedient party 4) court may order the former to pay the reasonable expenses in making such proof including atty’s fees.

IX. Trial, Demurrer to Evidence and Judgement

Trial- a judicial process of investigating and determining the legal controversies, starting with the production of evidence by the plaintiff and ending with his closing arguments.

Hearing- broader term. Covers several stages in the litigation. When trial unnecessary

When Action Where the pleading of the parties tender no issue at all Judgment on the pleadings From the pleadings, affidavits, depositions, and other

papers, there is no genuine issue Summary judgment

Compromise agreement or amicable settlement during pre-trial or while the trial in progress

Judgment on the agreement

Complaint has been dismissed with prejudice Res judicata Case falls under rules on summary procedure

Parties agree in writing, upon the fact involved in the litigation, and submit the case for judgment on the

facts agreed upon, without the introduction of evidence

Trial may be had in part on the facts disputed upon only.


pg. 79

Notice of Trial- coc shall notify the parties of the date of trial in such manner as to ensure its

receipt at least 5 days before such date. In calendaring cases , coc shall give preference to habeas corpus cases, election cases, special

civil actions, and those whose preference is required by law. Session: 4 trial per day unless pwede pa. hours in the morning dedicated for trial. Afternoons

are for pre-trial, writing decisions, reso, orders, or continuation of trial on merits. Schedule may be modified upon IBP request in multi-sala courts with few practicing lawyers.

Adjournments GR: a court may adjourn a trial from day to day, and to any stated time. Limits: court has no power to adjourn a trial for a period longer than one month from each adjournment, nor more than 3 months in all, except when authorized by court administrator. - Motion for postponement should not be filed on the last hour

Postponements- not matter or fight, submitted to the court’s discretion

illness Absence of evidence by party or counsel on motion

Affidavit or sworn certification showing that a) presence of the party or counsel at the trial is indispensible, AND b) character of his illness is such as to render his non attendance excusable

Affidavit or se evidence sworn certification showing a) materiality or relevancy of the evidence b) due diligence has been used to procure it

Will not be postponed if adverse party admits that facts to be given in evidence but are absent EVEN if he reserves the right to object to the admissibility of the evidence.

Reception of evidence:

Who: judge or clerk of court when properly delegated. When coc receive: default hearings, ex parte hearings, written agreement of the parties.

Trial shall be limited to issues stated in the pre-trial unless court directs for special reasons. Consolidation or severance:

1. when: actions involve a common question of law or fact pending before the court. Thus, court may order joint hearing or trial and order CONSOLIDATION of all actions. 2. when: furtherance of convenience or to avoid prejudice. Thus, court may order SEPARATE trial for claim, cross- claim, counterclaim, 3rd party complaint or issues.

Demurrer to evidence After plaintiff rests its case ( ends presenting evidence on his behalf, and defendant feel that the plaintiff has not lived up to his burden or proving the material alleagations of his claim an id therefore, not entitled to the relief sought, he may move for a dismissal aka. demurrer to evidence.

Demurrer to evidence vs rule 16

Rule 33 Rule 16

Made after plaintiff ends presenting evidence

Made before filing of answer


pg. 80

One ground Many grounds

If denied, may present his evidence 0rder of this denial is merely interlocutory

If denied, may file responsive pleading

If granted, it may not be refiled, remedy is to appeal from the order of dismissal.

If granted, complaint may be refiled or not

Demurrer in civil cases Demurer in crim cases Leave of court is not required With or without leave If granted, order or dismissal is appealable No. double jeopardy If denied, def to present evid. If made with leave of court and if denied, accused may

present evidence. Otherwise, he can not.

Judgement: final ruling by a court of competent jurisdiction regarding the right or other matters submitted to it in an action or proceeding.

- Requisites of a valid judgment: 1. Court must be clothed with authority to hear and determine the matter before it 2. Court must have jurisdiction over the SUBJECT MATTER and PARTIES 3. Parties must have been given an opportunity to adduce evidence in their behalf 4. Evidence must have been considered by the court in deciding 5. Judgment: writing, personally and directly prepared by the judge. Verbal decision has no effect. 6. Judgment: must state clearly the facts and law on which it is based, signed by the judge and files with

the coc. Applies to decision and final orders on the merits NOT to those resolving incidental matters. - No need to set forth complete recital of facts - #6 applies to motions to dimiss - #6 applies to petition for review and motion for reconsideration as mandated by the Constitution

Conflict between the dispositive portion (fallo) and the body of the decision ( ratio decidendi) - It is the fallo of the judgment that actually settles and declares the rights and obligations of the

parties, finally, definitively, and authoritatively. - GR: In case of conflict, fallo controls.

Exp: where there is a clear mistake in the fallo.

Clarificatory judgment: where the judgment us difficult to execute because of ambiguity in its terms, it is suggested that the remedy to avail of it to have the court remove the emabiguity by the filing of this motion and not to assail the judgment as void.

Demurrer to evidence

denied Proceed with trial

Defendant to present evidence

granted Render dismissal of the case

No appeal. Case ends.

appealed

Affirmed. ends

reversed

Appellate should not remand case.

Should instead render judgment on the basis of the evidence submitted by the plaintiff.

Defendant loses right to present evidence.


pg. 81

Resolutions of the SC: SC denying petitions to review decisions of the CA and minute resolutions are not decision within purview of the Constitution.

Interlocutory orders: - Those that determine incidental matters that do not touch on merits of the case or put an end to

proceedings - Proper remedy in case of improvident IO: certiorari under rule 65

Memorandum decisions -one rendered by an appellate court and incorporates by reference the findings of facts and conclusions of law contained in the decision or order under review. -Ratio for allowing: to avoid cumbersome reproduction and repetition of the decision or the lower court in the decision of the higher court - although allowed, appellate court must make full findings of fact and conclusions of law. As long as a memorandum decision states the nature of the case, summarizes facts with reference to the record and contains a statement of the applicable laws and jurisprudence and the tribunal’s assessment and conclusion on the case, judgement is valid.

Rendition of Judgement: - It is the filing of the same with the clerk of court NOT the prolumgation in court or the writing of

judgment or signing the same. Because even if already written, it is still subject to amendment. NOT yet a real judgment if not yet filed.

Periods in making decisions court Period Lower courts 3 months from the date of submission, unless reduced by SC. Lower collegiate courts

12 months from the date of submission, unless reduced by SC.

Supreme Court 24 months from the date of submission, unless reduced by SC. -GR: said periods are indispensible, mandatory. - consequences: gross inefficiency of the judge. EXP: extensions set by SC within which to decide a case upon request by the judge concerned on account of heavy caseload or any reasonable excuse. -Deemed submitted for decision: filing of the last pleading, brief, or memorandum required by Roc. - 90 days (3mos) commences from the submission of the case for decision without memoranda UNLESS court requires filing memoranda, in which case upong its filing or expiration of period when it is supposed to be filed. - no further orders announcing the submission of the case for decision is necessary before they are deemed submitted for decision. Judge’s decision - It is not necessary that the judge who heard the evidence be the same judge who shall pen the

decision. The judge trying the case may die, resign, transferred, etc. Thus, succeeding judge can examine and evaluate the evidence already presented by going

- There is a disputable presumption that the judge regularly performed his job

situation Effect Penned by a judge and promulgated during his incumbency Valid and binding Penned by a judge after his retirement and promulgated after. not


pg. 82

Decision penned by a judge during his incumbency and promulgated after his retirement Ps: when a judge retires, all his authority to decide any case has also retired with him.

not

A judge who was permanently transferred to another court of equal jurisdiction before the case heard by him was decided Ps: he may pen and sign it and send it to the court where he was originally sign

Valid and binding

- Decisions of the SC forms part of the legal system and judges should take judicial notice thereof.

Stare decisis -when the SC has laid down a principle of law applicable to a certain state of facts, it will adhere to that principle and apply it to all future cases where the facts are substantially the same. - it does not require identity of or privity of parties. - decisions assume the same authority as the statute itself and, until authoritatively abandoned, necessarily become, to the extent that they are applicable, the criteria which must control the actuations not only of those called upon to decide thereby but also of those in duty bound to enforce obedience thereto.

Obiter dictum - An opinion expressed by a court, which is not necessary to the decision of the case before it. - It is neither enforceable as a relief nor a source of a judicially actionable claim. - It is not binding as a precedent

When a judgment becomes final: - 2 senses of “final”

a) a judgment that disposes of a case in a manner that leaves nothing more to be done by the court in respect thereto but to enforce it by execution b) final and executory. judgment that is no longer appealable and is already capable of being executed because the period for appeal has elapsed without a party having perfected an appeal of if there has been an appeal, it has already been resolved by the highest possible tribunal.

Immutability of judgments ( preclusion of issue/ collateral estoppel) - A judgment that has attained finality can no longer be disturbed - Issues actually and directly resolved in a former suit cannot again be raised in any future case

between the same parties - It may no longer be modified in any respect, even if the modification is meant to correct what is

perceived to be an erroneous conclusion of fact or law, and regardless of whether the modification is attempted to be made by the court rendering it or by the highest court of the land

- May only be modified for clerical errors or mistakes, all the issues between the parties being deemed resolved and laid to rest

- The court loses jurisdiction over the judgment to amend (exp clerical errors) or to alter the same but it retains jurisdiction to execute it during its lifetime.

-EXCEPTIONS to IMMUTABILITY OF JUDGMENT

a) correction to clerical errors b) nunc pro tunc entries which cause no prejudice to any party and void judgment


pg. 83

c) whenever circumstances transpire after the finality of the decision rendering its execution unjust and equitable

d) in cases of special and exceptional nature as when facts and circumstances transpire which render the judgment’s execution impossible or unjust, when necessary in the interests of justice to direct its modification to harmonize the disposition with the prevailing circumstances.

e) Void judgments f) SC is not precluded from rectifying errors of judgment if blind and stubborn adherence to the

doctrine of immutability would involve the sacrifice of justice for technicality.

Res judicata effect of final judgment or final order 2 aspects: a) Bar by a prior judgment- judgment or final order is a bar to the prosecution of a subsequent action

based on the same claim or cause of action. b) Conclusiveness of judgment- judgment or final order precludes the relitigation of particular issues

or facts on a different demand or cause of action.

- A final judgment is conclusive not only on the matters or issues directly or actually determined by the decision but also on all issues that could have been raised in relation thereto.

- A judgment of Philippine court has the effect of resolving the issues raised in the case. Conclusive with respect to personal, political, or legal condition or status of a person.

JUDGMENT OF FOREIGN COURT: a) Judgment upon specific thing- the judgment is conclusive upon the title of the thing. b) Judgment against a person- judgment is a presumptive evidence of a right as between the parties

and their successor in interest by subsequent title.

- Maybe assailed on any of the following grounds: a) Evidence of want of jurisdiction b) Want of notice to the party c) Collusion d) Fraud e) Clear mistake of fact or law

- Foreign arbitral awards may be enforced under ADR Act of 2004. Award must first be confirmed by the RTC and when so confirmed shall be enforced in the same manner as final and executor judgments in the Philippine Courts.

Judgment on the merits -when it amounts to a legal declaration of the respective rights and duties of the parties, based upon disclosed facts -it is a reasoned decision which clearly states the facts and law on which it is based. - “merits”- matter of substance of law as distinguished from a matter of form/ technical/ collateral - there can be judgment of the merits even if no trial/ full blown trial -dismissal on the ground of failure to state cause of action is a judgment on the merits and operates as res judicata on subsequent cases as long as the dismissal ruled on the issues raised.

Doctrine of Case Law - Whatever is once irrevocable established as the controlling legal rule or decision between the same

parties in the case continues to be the law of the case, whether correct or general principles or not,


pg. 84

so long as the facts on which such decision was predicated continue to be the fact of the case before the court.

Several judgments - One rendered by a court against one or more defendants, but not against all, leaving the action to

proceed against others. - Proper when the liability of each party is clearly separable and distinct from that of his co-parties

Separate Judgment - This judgment presupposes that there are several claims for relief presented in a single action - This judgment will terminate the action with respect to that claim and the action shall proceed as to

the remaining claims. - BUT despite the judgment, the court may stay the execution of the separate judgment until the

rendition of a judgment on all other claims.

Conditional Judgment -one the effectivity of which depends upon the occurrence or non-occurrence of an event. GR: Void because of absence of disposition

Judgment sin perjurio -a brief judgment containing only the dispositive portion, without prejudice to the making of a more extensive discussion of the findings of facts and law to support it. -not a final decision -dismissal without prejudice

Judgment nunc pro tunc (now for then) - Judgment intended to enter into the record acts which had already been done, but which to not yet

appear in the record. - Judgment which orders the entry of something which was actually previously done - Purpose is not to render new judgment but only to make records show what the judicial action really

was but was omitted from the records - A motion for clarificatory judgment that seeks the inclusion of matters that were not parts of the

judicial action is beyond the scope of judgment nunc pro tunc

Judgment upon compromise - Rendered by the court on the basis of a compromise agreement entered into between the parties to

the action - Res judicata upon the parties - There shall be no execution of the compromise agreement except in compliance with a judicial

compromise - Compromise is perfected by mere consent, manifested by the meeting of the offer and the

acceptance upon the thing and the cause which constitutes the contract. Thus, does not need a judicial approval for its perfection.

- Once approved by the court, a judicial compromise is not appealable and it thereby becomes immediately executor.

- Refer and apply only to those who are bound by the compromise. A stranger to the compromise can not be bound

- NOT appealable. Implicit waiver of right to appeal. - Enforced by writ of execution unless otherwise enjoined by a restraining order


pg. 85

- If one party to it refuses to comply: the other may either enforce the compromise or regard it as rescinded and insist upon his original demand.

- Set aside compromise: motion on the ground that consent was attained by fraud, mistake, duress, vitiation of consent. ( If such motion is denied: NON APPEALABLE.)

- A motion to set aside the compromise on a ground vitiating consent applies only to a judgment upon a compromise

- When compromise is not judicial- proper remedy is annul compromise. - Compromise where consent is attained by fraud, mistake, duress, vitiation of consent is a

VOIDABLE contract.

Judicial compromise Annulled by a motion to set aside compromise agreement Extrajudicial compromise

Annulled by an action to annul compromise

Judgment upon a confession ( cognovits actionem) - Judgment rendered by a court when a party expressly agrees to the other party’s claim or

acknowledgment the validity claim against him

Judgment against an entity without juridical personality - Judgment should be actually against the persons who form the entity without a juridical personality

and the judgment shall set out their individual or proper names, if known.

ENTRY of judgment - Refers to the physical act performed by the coc in entering the dispositive portion of the judgment

after the same has become final and executory. - Record shall contain the dispositive portion, signed by the coc, with coc’s certificate that judgment

has already become final and executor. - Date of entry of judgment is the date when the judgment becomes final and executor regardless of

the date when the physical act of entry was done. - Relevance: computation of prescription.

X. Post Judgment Remedies

I. Remedies BEFORE judgment becomes final and executory

Available Remedies:

a) Motion for reconsideration ( rule 37) b) Motion for new trial (rule 37) c) Appeal ( rule 40, 41, 42, 43, 45)

A. Motion for Reconsideration

- Directed against a judgment or final order NOT against an interlocutory order

- it is a prohibited motion in summary procedure and small claims

-Effect of the filing of the motion within appeal period: interrupts period to appeal.

-Resolution of MoRecon: 30 days from the time it is submitted for resolution


pg. 86

- Form: motion, in writing, stating the grounds, written notice to adverse party

Grounds:

a) damages awarded are excessive b) evidence is insufficient to justify the decision or final order c) decision or final order is contrary to law

- it is not sufficient to mention ground, it is necessary to point out specifically the findings or conclusions of the judgment or final order which are not supported by the evidence or which are contrary to law, making express reference to the testimonial or documentary evidence or to the provision of law alleged to be contrary to such findings or conclusions.

When to File:

-filed within the period to appeal and NO motion for EXTENSION of time shall be allowed.

-Notice of appeal (15 days), record of appeal (30 days).

- 15 days begin to run upon the OFFICIAL receipt of notice of decision or final order appealed from

Official: from the time counsel receives notice, service upon counsel is service upon party

NOT Official: service on party is prohibited and is not considered the official receipt of judgment. EXP: court of tribunal orders service upon party or when technical defect in the manner of notice is waived.

Pro forma Motion

- one which does not satisfy the requirements of the rules and one which will be treated as a motion intended to delay the proceedings.

- Essential: non- compliance with the requirements of law - Considered as such if the same does not specify the findings or conclusions of the judgment

or final order which are not supported by the evidence or which are contrary to law, making express reference to the testimonial or documentary evidence or to the provision of law alleged to be contrary to such findings or conclusions.

- When MORecon held pro forma a) second motion for reconsideration b) it did not comply with the rule that the motion must specify the findings or conclusions

of the judgment or final order which are not supported by the evidence or which are contrary to law, making express reference to the testimonial or documentary evidence or to the provision of law alleged to be contrary to such findings or conclusions.

c) It failed to substantiate alleged errors d) Merely alleged that the decision in question was contrary to law e) Adverse party was not given notice thereof

- Court should be linient in declaring it pro forma as long as motion reveals bona fie effort to present it and no intent to delay.

Court’s action on motion for recon:

1. Granted: court may amend such judgment. It is in the nature of a new judgment and it supersedes the original judgment.


pg. 87

2. Partial Recon: the order may order grant as to such issues to which the motion affects, IF severable without interfering with the judgment or final order upon the rest.

3. Denied: movant has a FRESH PERIOD of 15 days from receipt or notice of such denial within which to file a notice of appeal. (applies to Rule 40,41,42,43,45)

- order of denial is NON APPEALABLE under rule 65

- Remedy: appeal from the judgment or final order itself subject of the motion for reconsideration. Rule 65 DOES NOT apply.

Single motion rule: a party may NOT BE ALLOWED to file a second motion for reconsideration of judgment or final order. This rule does not apply to a motion for recon of an interlocutory order.

B. Motion for New Trial

- it is a prohibited motion in summary procedure and small claims

-Effect of the filing of the motion within appeal period: interrupts period to appeal.

-Resolution of MoRecon: 30 days from the time it is submitted for resolution

- Form: motion, in writing, stating the grounds, written notice to adverse party

When to File:

-filed within the period to appeal and NO motion for EXTENSION of time shall be allowed.

-Notice of appeal (15 days), record of appeal (30 days).

Grounds:

a) Fraud/ accident/ mistake/ excusable negligence which ordinary prudence could not have guarded against and by any reason of which such aggrieved party has probably been impaired in his rights -shall be supported by affidavit of merit -Affidavit of merit: one showing the facts constituting the valid coa or defense which the movant may prove in case a new trial is granted, because a new trial would serve no purpose and would just waste the time of the court as well as the parties if found groundless.

b) Newly discovered evidence, which he could not, with reasonable diligence, have discovered and produced at the trial, and which if presented would probably alter the result. -shall be supported by affidavits of the witness by whom such evidence is expected to be given, or by duly authenticated documents which are proposed to be introduced in evidence.

-Non compliance with support of affids shall render the motion as a mere pro forma. Thus, it shall not toll the reglementary period.

- gross negligence of counsel is not a ground for new trial.

Court’s action on motion for recon:


pg. 88

1. Granted: original judgment or final order shall be vacated, and the action shall stand for trial de novo. -recorded evidence in the former trial shall be used at the new trial without retaking the same if the evidence is material and competent.

2. Partial New Trial: court may grant a new trial as to such issues if severable without interfering with the judgment or final order upon the rest.

-court may stay or enforce as to the rest until after the new trial.

3. Denied: movant has a FRESH PERIOD of 15 days from receipt or notice of such denial within which to file a notice of appeal. (applies to Rule 40,41,42,43,45)

- order of denial is NON APPEALABLE under rule 65.

- Remedy: appeal from the judgment or final order itself subject of the motion for reconsideration. Rule 65 DOES NOT apply.

Second motion for new trial: a party may be ALLOWED to file a second motion for new trial. A motion for new trial shall include all grounds then available. Those not included are waived. BUT when a ground for new trial was NOT EXISTING or available when the 1st motion was made, a second motion for new trial may be filed within the period allowed BUT EXCLUDING the thime during which the 1st motion had been pending.

C. Appeals

General Principles: 1. right to appeal is a mere statutory privilege that has to be exercised only in the manner and in

accordance with the provisions of law 2. it is not a constitutional or natural right 3. certiorari and appeal as exclude each other as remedies. 4. Applied only to judgment or final orders that completely disposes the case.

NOT APPEALABLE a) An order denying a petition for relief or any similar motion seeking relief from judgment b) Interlocutory order c) Order disallowing or dismissing an appeal d) An order denying a motion to set aside a judgment by consent, confession, or compromise

on the ground of fraud, mistake, duress, or any other ground vitiating consent. e) An order of execution f) A judgment or final order for or against one or more of several parties or in separate claims,

counterclaims, cross-claims, and 3rd party complaint, while the main case is pending unless the court allows an appeal therefrom.

g) An order dismissing an action without prejudice

“completely dispose of the case” – judgment on the merits and leaves the court nothing to do anymore.


pg. 89

Example:

Motion to dismiss base on improper venue- denied- interlocutory- not appealable

Motion to dismiss base on improper venue- granted- dismissal without prejudice- not appealable

Dismissal based on violation on forum shopping- dismissal without prejudice- not appealable

Order granting a writ of possession under ACT 3135- final order- appealable

Order granting a writ of possession under Rule 67 (expropriation) - interlocutory-not appealable

Issues that may be raised on appeal: - Party may not changed his theory of the case on appeal - It should only be issues on question of law or fact that has been raised in the court below

and which is within the issues framed by the parties. - Defenses not pleaded in the answer may not be raised for the first time on appeal.

Issues that the appellate court decides on appeal - Appellate court shall consider no error unless stated in the assignment of errors. - Ratio: justice and fair play. Will not consider not litigated upon - Exceptions a) matters on errors that affects the jurisdiction over the subject matter. lack of jurisdiction b) matters on error that affects the validity of the judgment appealed from. lower court

committed plain error c) matters on error which affect the proceedings d) matters on error closely related to or dependent on an assigned error and properly argued in

the brief. e) it is a plain and clerical error f) if SC finds that their consideration is necessary in arriving at a just decision of the case. g) Determine whether or not there is sufficient justification for the award of damages. h) CA is also imbued with power to review matters not assigned as error if it finds that the

consideration is necessary in arriving at a complete and just resolution of the case or to serve the interest of justice or to avoid dispensing piecemeal justice.

Appeals in Criminal Cases: Unlike in civil cases, when appeal is made appellate court may decide on matters even those not made the subject of assignment of errors,

Payment of docket fees

- Must be made within the prescribed period. Mandatory and Jurisdictional. - But application of said rule is discretionary upon the court.

Record of appeal vs Notice of Appeal

Falls under Sec 1, Rule 41

Does not fall under Sec 1, Rule 41

Refile/ Certiorari. Rule 65

Modes of appeal


pg. 90

- Appeal is usually made by filing a notice of appeal with the court which rendered the judgment or final order appealed from.

- GR: notice of appeal - Exp: record of appeals is required in special proceedings and other cases of multiple or separate

appeals where the law or RoC require it.

Multiple Appeals:

-party may appeal only a particular incident in the case and not all the matters involved in the same case.

-Record on appeal is required so the appellate court may have a record of the proceedings to resolve a separate and distinct issue raised in the appeal, and since the original records remain with the TC it still can resolve the other issues of the case not made subject of the appeal.

Example:

Expropriation; 2 stages-

1st: determination of lawful right of the plaintiff to expropriate- may appeal

2nd: determination of just compensation- may appeal

Exp: no multiple appeal if TC haw fully and finally resolved all issues in the complaint for expropriation and records could already be sent to the appellate court.

RULE 40; MTC to RTC

Where: taken to RTC exercising jurisdiction over the area to which the former pertains

When: 15 days after notice to the appellant of the judgment or final order appealed from. If record of appeal is requires then 30 days.

How:

1. filing a notice of appeal with the court that rendered judgment 2. serving copy of the notice to the adverse party 3. within the period for taking appeal, appellant to pay coc which rendered judgment full amount of court

docket and other lawful fees 4. proof of payment shall be transmitted to the appellate court together with the original record or the

record on appeal 5. within 15 days from perfection of appeal, coc of lower court shall transmit the original record or the

record on appeal together with transcripts and exhibits, which shall certify the same as complete to the proper RTC.

6. coc of RTC shall notify parties of the receipt of record/ notice 7. within 15 days from such notice, appellant shall submit a memorandum, copy furnished to appellee.

memorandum is vital, failure to do so will be a ground for notice of dismissal. Memorandum shall discuss briefly the errors imputed to the lower court.

8. appellee , if he so desires, file his memorandum within 15 days from receipt of appellant’s memo. 9. Case is deemed submitted upon the filing of appellee’s memorandum or the expiration of the period to

do so. 10. RTC shall decide the case on the basis of the entire record of the proceedings had in the court of origin

and such memoranda as are filed.

Perfection of Appeal:

Notice of appeal- perfected as to appellant upon filing. No need approval.


pg. 91

Record of appeal- perfected as to appellant upon approval of the record on appeal filed in due time

Lack of Jurisdiction

-appeal taken from dismissal of MTC based on this ground:

a) if reversed- case shall be remanded to the MTC for further proceeding

b) if affirmed- dismissal becomes dismissal on the merits

-lack of jurisdiction upon subject matter and appeal taken.

a) if affirmed- affirm dismissal and RTC SHALL TRY the case on the merits as if it was ORIGINALLY filed with it.

- RTC may allow amendment of the pleadings and may receive additional evidence in the interest of justice,

NOTE:

GR: sec 19 (g)Rule 41- order dismissing an action for lack of jurisdiction (without prejudice) is not appealable.

EXP: sec 8 Rule 40- MTC dismissal based on lack of jurisdiction is appealable.

3 modes of appeal from the RTC:

a) RULE 41: Ordinary Appeal or appeal by writ of error- appeal on the RTC decision in the exercise of original jurisdiction. (Question of fact/ law/ fact and law)

b) RULE 42: Petition for Review- appeal on the RTC decision in the exercise of its appellate jurisdiction. (Question of fact/ law/ fact and law)

c) Petition for Review on Certiorari or appeal by certiorari to the SC- appeal on RTC decision in the exercise of its original jurisdiction ( questions of law)

RULE 41; RTC to CA ( original jurisdiction)

When: 15 days after notice to the appellant of the judgment or final order appealed from. If record of appeal is requires then 30 days.

How:

1. filing a notice of appeal with the court that rendered judgment 2. serving copy of the notice to the adverse party 3. where both parties are to appeal, they may file a joint record of appeal 4. within the period for taking appeal, appellant to pay coc which rendered judgment full amount of court

docket and other lawful fees 5. within 30 days after perfection of all appeals, the coc shall verify the correctness and completeness of

the records 6. and if incomplete, to take such measures to complete such records, certify to the correctness of the

records, to transmit the same to the CA and to furnish the parties with copies of his letter or transmittal of the records to the CA.

7. upon receipt, coc of CA shall docket the case and notify parties of the receipt of record/ notice 8. Within 45 days from receipt of notice from coc, appellant shall file a brief with proof of service upon

appellee.


pg. 92

9. Within 45 days from receipt of appellant’s brief, the appelle shall file his own brief with proof of service to the appellant.

10. Within 20 days from receipt of appellee’s brief, the appellant may file a reply brief answering points in the appellee’s brief not covered in the main brief.

11. GR: Extension of time for filing briefs will not be allowed. EXP: for good and sufficient cause and ONLY IF the motion for extension is filed before the expiration of the time sought to be extended.


Notice of appeal- perfected as to appellant upon filing. No need approval.

Record of appeal- perfected as to appellant upon approval of the record on appeal filed in due time

Petitions for certiorari, prohibition, mandamus, quo warranto and habeas corpus cases, briefs are not files. Instead, parties shall file their respective memoranda within the non- extendible period of 30 days from receipt of the notice that all the evidences are already attached to the record.

Questions that may be appealed:

Any question of law or fact that has been raised in the court below and within the issues framed by the parties.

Residual jurisdiction: Authority of the TC

1. to issue orders for the protection and preservation of the right of the parties which do not involve any matter litigated by the appeal.

2. to approve compromises

3. permit appeals of indigent litigants

4. order execution pending appeal

5. allow withdrawal of the appeal

-provided these are done prior to the transmittal of the original record or record of appeal even if the appeal have already been perfected or despite approval of the record on appeal or in case of petition for review under Rule 42, before the CA give due course to the petition.

- Residual jurisdiction of TC is available at a stage which the court is normally deemed to have lost jurisdiction over the case or the subject matter involved in the appeal.

-There is NO such RJ where no appeal or petition has been filed.

RULE 42; RTC to CA (appellate jurisdiction)

When: 15 days after notice of the decision sought to be reviewed or of the denial of petitioner’s motion for new trial or reconsideration.

Court may grant an additional 15 days as extension, provided: a) motion; b) there is payment of the full amount of the docket and other lawful fees and deposit for costs before expiration of the reglementary period; c) most compelling reason; d) no case exceed 15 days.

How:

1. Filing a verified petition for review with the CA, paying the docket and other lawful fees, depositing amount of P500 for costs, - Petition shall be in form required by Sec 2 Rule 42


pg. 93

- Stating a concise statement of the matters involved, issues raised, specification of errors of law or fact or both committed by court and reasons or arguments relied upon for the allowance of appeal.

- Material Data Rule: Shall state the specific material dates showing that the petition was filed on time.

- Accompanied by certification against forum shopping. - Failure to comply with any: ground for dismissal

2. Furnish RTC and adverse party with copies of the petition 3. Ca may dismiss the petition: patently without merit, prosecuted for delay, questions raised are too

unsubstantial to require consideration. 4. If no dismissed: it may require the respondent to file a comment on the petition within 10 days from

notice. Respondent NO TO FILE motion to dismiss. 5. If CA finds prima facie that the RTC committed an error of fact or law- it may give due course. 6. If given due course, CA may set case for oral argument or require the parties to submit memoranda with

a period of 15 days from notice. 7. Case is deemed submitted for decision upon the filing of the last pleading or memo required.


As to petitioner- filing of a petition for review and payment of the corresponding docket and lawful fees.

Dismissal of Appeal:

Appeal may be dismissed by CA ( motion or motu proprio), on the ff grounds:

a) Failure to comply with material date rule b) Failure to file notice / record of appeal within the prescribed period c) Failed to pay docket and other lawful fees d) Unauthorized alterations, omissions, or additions in the approved record on appeal ( sec 4, Rule 44) e) Failure of the appellant to serve and file required number of copies of his brief or memo with in the time

prescribed. f) Absence of specific assignment of errors in the appellant’s brief, or of page reference to the record ( sec

13 a,c,d, f, Rule44) g) Failure of the appellant to take the necessary steps for the correction or completion of the record within

the time limited by the court in its order. h) Failure of appellant to appear at the preliminary conference under Rule 48 or to comply with orders,

circulars, or directives of the court without just reasons. i) The fact the judgment appealed from is not appealable.

- These grounds are discretionary upon the court ( sec 2, R50 uses “may”)

Residual jurisdiction:

Same as those in Rule 41.

Rule 41 Rule 42 May be exercised prior to the transmittal of records May be exercised by RTC before RTC gives due course

to the petition.

Stay of judgment:

-Appeal shall stay the judgment unless the CA, law, or rules provides otherwise.

-Civil cases decided under the Rules on Summary Procedure shall not be stayed.

RULE 45; Appeal by Certiorari to the SC

Application:


pg. 94

a) RTC judgment in the exercise of original jurisdiction involving only questions of law NOTE: Orig jurisdiction, Questions of Law ONLY a) Rule 45 Appellate jurisdiction, Questions of law/ fact/ both b) Rule 42

b) CA judgment where the petition raises only questions of law c) Sandiganbayan judgment where the petition raises only questions of law d) CTA en banc decision e) Writ of amparo judgment ( question of fact or law or both) f) Writ of Habeas Date judgment ( question of fact or law or both)

- Applicable to both civil and criminal cases, except in criminal cases where the penalty imposed is death, reclusion perpetua or life imprisonment.

Provisional Remedies

-May include an application for preliminary injunction or other prov rem

-May apply for the same during pendency.

Rule 45 is not a matter of right

- GR: Subject to sound discretion of the court - Exp: penalty of death or reclusion perpetua ( appeal here is a matter of right) - Reasons for court to grant right:

a) when the court below has decided a question of substance not yet determined by SC b) when court below decided a matter of substance in a way that is not in accord with law or with the applicable decisions of the SC c) when the court below has departed from the accepted and usual course of judicial proceedings, or so far sanctioned such departure by a lower court, as to call of the exercise of the power of supervision of the SC.

GR: only questions of law. SC not trier of facts.

Exps:

1) conclusion of the CA is grounded entirely on speculations, surmises, conjecture 2) inference made is manifestly mistaken, absurd, impossible 3) grave abuse of discretion 4) judgment based on misapprehension of facts 5) CA in making it finding went beyond the issues of the case and the same is contrary to the admission of

both appellant and appellee 6) Findings are contrary to those of the TC 7) Findings of fact are conclusions without citation of specific evidence on which they are based 8) Facts set forth in the petition as well as in the petitioner’s main and reply briefs are not disputed by

respondents. 9) Findings of fact of CA are premised on the supposed absence of evidence and contradicted by the

evidence on record 10) In an appeal from the judgment or final order of the court in a petition for a writ of amparo or habeas

date, questions of fact may be raised

Certiorari under Rule 45 vs Rule 65

Rule 45 Rule 65 Mode of appeal. A petition for review on certiorari Special civil action ( an original action) Continuation of the appeal process Independent action


pg. 95

Seeks to review final order/ judgments Final judgments/ interlocutory orders/ matters where no appeal may be taken from

Raises questionsof law Acted without jurisdiction or in excess Filed within 15 days from notice of judgment 60 days from notice of judgment/ recon/ NT Does not require a prior motion for reconsideration GR: requires motion for recon Stays the judgement appealed Does not stay the judgment appealed UNLESS

enjoined or restrained Parties remain without impleading the lower court or its judge

Lower court/ tribunal and/ or its judges may be impleaded with the prevailing parties

Filed with the SC Special civil action with with the RTC, CA, or SC. Rule: a party cannot file both 45 and 65. Mutually exclusive. Not alternative or cumulative. When avails of both- dismissed outright. However, SC may set aside technicalities

When: 15 days after notice of the decision sought to be reviewed or of the denial of petitioner’s motion for new trial or reconsideration.

SC may grant an additional 30 days as extension, provided: a) motion; b) there is payment of the full amount of the docket and other lawful fees and deposit for costs before expiration of the reglementary period; c) most compelling reason

How:

1) Filing a verified petition with the SC within the reglementary period raising only questions of law 2) paying the docket and other lawful fees, depositing amount of P500 for costs,

- Petition shall be in form required by Sec 2 Rule 42 - Proof of service of the copy of the petition on the lower court concerned and adverse party - Stating a concise statement of the matters involved, issues raised, specification of errors of law or

fact or both committed by court and reasons or arguments relied upon for the allowance of appeal. - Material Data Rule: Shall state the specific material dates showing that the petition was filed on

time. - Accompanied by certification against forum shopping. - Failure to comply with any: ground for dismissal

3) Ca may dismiss the petition: patently without merit, prosecuted for delay, questions raised are too unsubstantial to require consideration.

4) Sc may require the filing of such pleadings, briefs, and memoranda or the submission of documents it may deem necessary.

5) If not dismissed: it may require the elevation of the complete record of the case or specified parts thereof with 15 days from notice.

RULE 43; Appeal from Quasi- Judicial Bodies

- appeals from the judgments of quasi- judicial bodies/ agencies in Rule 43 are now required to be brought to the CA

- may involve questions of law or facts or both

- file a verified petition for review with the CA

- appeal SHALL NOT STAY the award, judgment, final order or reso sought to be reviewed unless the CA shall direct otherwise.

Decision of Action for review NLRC a) first file a motion for reconsideration,


pg. 96

II. Remedies AFTER judgment becomes final and executory

Available Remedies:

b) if denied, file certiorari under rule 65 within 60 days from the notice of the decision. File with the CA ( applying principle of hierarchy of courts) If filed with the CA instead of SC – shall be dismissed. NO REFERRAL to CA.

Sandiganbayan

appealable by certiorari to the SC (pure questions of law) under Rule 45 NOT rule 65. Rule applies when the penalty is less than reclusion perpetua, life imprisonment or death. If more than- appeal to SC.

Ombudsman a) administrative cases- ruling of Ombudsman is appealable to CA under Rule 43 but in cases which Ombudsman acted with grave abuse of discretion, appeal may be made to SC under Rule 65. b) criminal cases/ non-administrative- ruling of ombudsman elevated to SC under Rule 65 nut restricted only to determining won there was grave abuse of discretion.

CTA a) CTA DIVISION decision- file a motion for reconsideration or new trial b) then file petition for review CTA EN BANC c) then, file with the SC a petition for review under Rule 45.

COMELEC a) appeal to SC under Rule 65 by filing the petition within 30 days from notice

COA a) appeal to SC under Rule 65 by filing the petition within 30 days from notice

CSC a) appeal to CA under Rule 43 Office of the President a) appeal to CA under Rule 43


pg. 97

a) Petition for relief from judgment ( Rule 38) b) Petition for annulment of judgment ( Rule 47) c) Direct action of certiorari ( jurisprudence, Rule 65) d) Collateral attack of a judgment that is void on its face ( jurisprudence)

A. Petition for Relief from Judgment or other Proceedings

Nature: a legal remedy whereby a party seeks to set aside a judgment rendered against him by a court whenever: a) he was unjustly deprived of hearing; or b) was prevented from taking an appeal because of fraud, accident, mistake, excusable negligence.

- It is an equitable remedy that is allowed in exceptional cases when there id no other available or adequate remedy. LAST CHANCE.

- Motion for new trial and petition for relief from judgment are exclusive remedies. They exclude each other. Not cumulative. Remedy is to appeal from the judgment.

- Available only to parties to the case and not to strangers. - Petition for relief is not available remedy in the CA/ SC. ( not cognizable by SC under Rule

56 and Petition for relief involves questions of fact of FAME)

Grounds:

a) when a judgment or final order is entered into, or any other proceeding is thereafter taken against the petitioner in any court through fraud, accident, mistake, excusable negligence. filed where: in such court ( MTC/ RTC) and not in another or to a higher court prayer: judgment or order or proceedings be set aside

“any other proceeding is thereafter taken against the petitioner in any court through fraud, accident, mistake, excusable negligence”

- Thus, also applicable to a proceeding taken after the entry of judgment or final order such as an order of execution.

b) when petitioner has been prevented from taking an appeal by fraud, accident, mistake, excusable negligence. filed where: in such court (MTC/ RTC) and not in another or to a higher court prayer: appeal be given due course

When to File:

Filed within 60 days after the petitioner learns (knowledge) of the judgment, final order, etc AND not more than 6 months after such judgment or final order, etc was entered or such proceeding was taken.

- These two periods must concur. - Both periods are not extendible and never interrupted. - Strict compliance but still subject to SC’s discretion.


pg. 98

How:

1. Petition must be verified and must be accompanied with affidavits showing fraud, accident, mistake, and excusable negligence relied upon and the fact constituting the petitioner’s good and substantial cause of action or defense, as the case may be.

2. If sufficient in form and substance, the court shall issue an order requiring the adverse parties to answer the same within 15 days from receipt thereof.

3. After filing of answer or expiration thereof, court shall hear the petition. 4. Court finds that allegations are not true: dismiss the petition. 5. Court finds that allegations are true: it shall set aside the judgment, final order, etc. 6. In connection with number 5, the case then shall stand as if such final order/ judgment/ etc

had never been rendered issued or taken. 7. Court shall then proceed to hear and determine the case as if timely motion for new trial or

recon had been grated by it. 8. In case of prevented to appeal by FAME, the court shall set aside the denial to appeal and shall

give due course to said appeal. The case shall then be elevated as if a timely appeal had been submitted.

Preliminary injuction pending the petition for relief:

- Court in which the petition is filed, may grant a Prelim Inj to preserve the right of the parties upon the filing of abond.

- Bond is conditioned upon the payment to the adverse party by such reason of the issuance of the injuction or other other proceedings following the petition.

B. Annulment of Judgments or Final Orders or Resolutions

Nature: remedy in law independent of the case where the judgment sought to be annulled was rendered.

- Resorted to when the ordinary remedies or new trial, appeal, petition for relief, etc are no longer available through NO FAULT of the petitioner and is based only in two grounds.

- Allowed only in exceptional cases. - May no longer be invoked it the party has availed of new trial, appeal, pet for relief, etc or

where such remedies were lost through his fault or negligence. - Purpose: have a final and executor judgment set aside so that there will be a renewal of

litigation. - Available to parties or strangers to the case as long as petitioner is one who can prove his

allegation that judgment was obtained by fraud and collusion and that he was affected thereby.

- Applies to annulling judgments of RTC by CA or of MTC by CA. - It does not apply to annulling judgments of quasi-judicial bodies or agencies by the CA. the

proper remedy is petition for review under Rule 43.

Grounds: exclusive


pg. 99

a) Extrinsic/ collateral fraud - When there is fraudulent act committed by the prevailing party outside of the trial of the

case, whereby the defeated party was prevented from presenting fully his side of the case by deception practiced on him by the prevailing party.

- When there is a fraudulent scheme which prevented a party from having his day in court. - Example: false promise or compromise or kept ignorant of the suit - Intrinsic fraud is no sufficient to annul a judgment since party is not prevented from having

his day in court to protect his side of the case. - Period for filing the action: 4 years from discovery

b) lack of jurisdiction - lack of jurisdiction over the person of the defending party or over the subject matter of the

claim. - Petitioner must show absolute lack of authority to hear and decide the case - Period for filing the action: brought to court before it is barred by estoppel.

How:

1. Filed with the CA/ RTC 2. Follow ordinary civil procedure cases. ( note: it is independent of the case sought to be

annulled) 3. If CA finds trial necessary, reception of evidence may be referred to a member of the court or to

a judge of the RTC. 4. A petition filed with the RTC shall also be treated as an ordinary civil action. 5. Merits found, Coc shall issue corresponding summons to defendant upon the filing of the

complaint and payment of legal fees. 6. Defendant may then file a motion to dismiss base on Rule 16 or court may motu prior dismiss

the same when it finds that it has no jurisdiction over the subject matter.

VS. ordinary civil actions-

-Court may make outright dismissal upon filing of petition as long as it has specific reasons for its dismissal.

-Dismissal may even be made before summons is served.

-It is only when the court finds merit in the petition that is shall serve summons.

7. Judgment of annulment based on lack of jurisdiction shall have the effect of setting aside the questioned judgment or final order and rendering the same null and void - But this is without prejudice of filing an original action in the proper court. - Period for refilling the original action shall be deemed suspended from the filing of the original

action until finality of judgment of an annulment. - No suspension of said period when extrinsic fraud is attributable to plaintiff in the original action.

C. Certiorari

Nature: supervisory or superintending writ


pg. 100

- Availed of to annul or modify the proceedings of a tribunal, board, officer exercising judicial or extra-judicial functions which ha acted without or in excess of jurisdiction, or with grace abuse of discretion amounting to lack of jurisdiction.

- For this to prosper it is necessary to show that there is no more appeal, or any other plain, speedy, and adequate remedy.

- Thus, if appeal is available but the same is not adequate or speedy, certiorari may be had. - Task of court in certiorari proceedings: determine won the lower court committed grave

abuse of discretion. “ grave abuse of discretion” a) Too patent and gross as to amount to an evasion of a positive duty, b) or a virtual refusal to perform the duty enjoined or act in contemplation of law, c) or where the power is exercised in an arbitrary and despotic manner by reason of

passion ad personal hostility

Essential requirements:

a) petition is directed against a tribunal, board or officer (TBO) exercising judicial or quasi-judicial functions.

-quasi- judicial act: acts of public administrative officers or bodies required to investigate the facts or to ascertain the existence of facts, hold hearings, and draw conclusions from them, as a basis for their official actions, and to exercise discretion of a judicial nature.

b) such TBO has acted without or in excess of jurisdiction or with grave abuse of discretion

c) there is neither appeal or any plain, speedy, and adequate remedy

- there must be capricious, arbitrary, and whimsical exercise of power.

Motion for reconsideration:

-Ratio: for court to correct itself.

GR: motion for reconsideration + denial thereof= to avail of certiorari

EXPS:

1. order is a patent nullity (eg. court a quo has no jurisdiction) 2. questions raised in the lower court have been duly raised and passed upon by the lower court

or are the same as those raised and passed upon by the lower court. 3. There is an urgent necessity for the resolution of the question and any further delay would

prejudice the interest of the govt or of the petitioner or the subject matter of the action is perishable.

4. Motion for recon would be useless 5. Petitioner was deprived of due process and there is extreme urgency for relief 6. Where, in criminal case, relief from an order of arrest is urgent and the granting of such relief

by the TC is improbable. 7. Proceedings of the lower court are nullity for lack of due process 8. Proceedings was ex parte or in which the petitioner has no opportunity to object 9. Where the issue raised is one purely of law or public interest is involved


pg. 101

10. Absence of appeal or any plain, speedy, and adequate remedy. (eg. denial of a motion to lift order of default).

Writ of Injunction:

- Petition for certiorari does not interrupt the course of the principal action nore the running of reglementary period unless an application for restraining orde or Writ of preliminary injuction is granted by court.

Duty of Court:

-public respondent has duty to proceed with the principal case within 10 days from the filing of a petition for certiorari or upon expiration of 10 days absent TRO or WPI.

- failure to proceed- ground for administrative charge. Judicial courtesy is no longer an excuse.

No petition for certiorari/ mandamus/ prohibition in a summary procedure:

EXP: procedural void. Court in one case allowed the petition because the TC gravely abused its discretion by indefinitely suspending the proceedings in the ejectment case contrary to the principles of Rules on Summary Procedure.

Cetiorari is NOT substitute for lost of appeal.

- Both remedies are mutually exclusice and not alternative or successive. - When certiorari is available despire loss of appeal:

a) public welfare and advancement of public policy dictates b) broader interest of justice so requires c) writ issued are null and void d) when the questioned order amounts to an oppressive exercise of judicial authority

When to File:

-Filed within 60 days after the petitioner learns (knowledge) of the judgment, final order or denial of a motion for reconsideration.

- no extension of time to file shall be granted except for compelling reasongs

-Material data (date) rule

- 3 material dates for certiorari under rule 65 a) date when the notice of judgment or final order was received b) the when the motion for NT or recon when such was filed c) date when notice of the denial thereof was received

- to determine timeliness of motion.

Where to File:

a) if against corp/ board/ officer/ person – file with RTC exercising jurisdiction over the territorial areas defined by SC

b) quasi-judicial agency-file with CA won in aid of its appellate jurisdiction c) Sandiganbayan won in aid of its appellate jurisdiction d) Election cases involving an act or omission of a municipal or regional trial court- file with COMELEC in

as of its appellate jurisdiction.


pg. 102

- Hierarchy of courts must be observed. A direct invocation of SC’s original jurisdiction may be allowed only when there are special and important reasons therefore, clearly and specifically set out in the petition.

Who:

- Filed by person aggrieved- a party to the proceedings in the lower court. - When petition is against act of judge, court, quasi-judicial agency, tribunal, corporation, board,

officer, petitioner shall join as private respondent with public respondent in the court. Private should appeal and defend on his and public repondent’s own behalf. If costs are to be awarded it shall only be against private resp not public resp.

- Public respondent is not required to appeal or file an answer or comment UNLESS specifically directed by court. ( nominal party)

How:

1. Person aggrieved may file a verified petition in the proper court alleging the facts with certainty and praying that judgment be rendered annulling or modifying the proceedings of the tribunal, board or officer, and granting such incidental reliefs as law and justice may require.

2. Accompanied by certified true copy of the judgment, order, or resolution subject of the petition; If not certified true copies- deficient and a ground for dismissal

3. Mere copies of the relevant pleadings and documents; a sworn certification of non-forum shopping. 4. Accompanied by Certification against forum shopping. 5. No service of summons. Found to be sufficient in form and substance, court shall issue an order

requiring respondent to comment on the petition within 10 days. 6. Reply and other responsive pleadings may be required is deemed necessary by the court. 7. Court may then hear the case OR require the parties to submit a memoranda 8. If found true, court shall render judgment for the relief prayed for. 9. If found unmeritorious, court may dismiss the case. Court may then award respondent TREBLE COSTS

solidarily against petitioner and counsel. Counsel shall be subjected to administrative sanctions. SC may also impose motu pro prio disciplinary actions.

10. certified true copy of the judgment shall be served upon public respondent. Disobedience shall make one liable for contempt ( Sec 9, Rule 65, Roc)

11. PRIMARY RELIEF: annulment or modification of judgment. And may include INCIDENTAL RELIEFS: damages, costs, etc.

Collateral Attack of Judgment

Direct vs Collateral

Direct Attack Collateral Attack Made through an action or proceedings the main object of which is to annul, set aside, or enjoin the enforcement of such judgment if not yet carried into effect; or if the property has been disposed of, the aggrieved party may sue for recovery.

Made when in another action to obtain a different relief, an attack on the judgment is made as an incident in said action. Proper only when the judgment is on its face null and void.

Example: petition on certiorari under rule 65 Motion to dismiss on the ground that plaintiff has no legal capacity to sue in a collection for sum of money case


pg. 103

XI. Execution of Judgment

A remedy afforded for the satisfaction of judgment Fruit and end of the suit The dispositive portion is that part which is the subject of execution When to issue:

-A matter of right upon the expiration of the period to appeal and no appeal was perfected from judgment or order that disposes the action of proceeding. Issuance of a writ of execution becomes ministerial duty of the court’s sheriff. - such duty is compellable by mandamus.

Exceptions:

1. judgment has already been executed by voluntary compliance 2. judgment has been novated by the parties- entering into a compromise 3. petition for relief is filed and Prelim inj is granted in accordance with Sec 5, Rule 38;

also when execution is enjoined by higher court 4. judgment is conditional/ incomplete 5. when facts and circumstances transpire which would render execution inequitable or

unjust 6. when execution is sought more than 5 years from its entry of judgment 7. when execution is sought against exempt property 8. higher interest of justice

Quashal of write of execution:

1. writ varies the judgment 2. there has been changed in the situation of the parties making the execution

inequitable or unjust 3. execution is sought to be enforced against exempt property 4. when it appears that the controversy has never been submitted to the judgment of

the court. 5. Terms of the judgment are not clear enough and there remains room for the

interpretation thereof 6. When it appears that the writ has been improvidently issued 7. When it appears that the writ is defective in substance 8. Or is issued against the wrong party or 9. that the judgment debt has been paid or otherwise satisfied, or 10. writ issued without authority.

How execution shall issue: 1. File a motion for the issuance of writ of execution 2. Even judgments that are immediately executor there must be a motion and hearing called

for that purpose. 3. Notice to adverse party 4. Absent 2 and 3, pro forma.


pg. 104

5. Writ shall be applied for in the court of origin. 6. If appeal has been perfected and finally resolved, may still apply in the court of origin. In

the latter no need to wait for the records to be remanded to the lower court. Judgment oblige nee only to attach to said motion a judgment of the appellant court and the entry of said judgments.

7. If execution can not be had on court of origin, he may file the same with the appellate court.

No appeal may be taken from an order of execution by express provision of the rules. Remedy: certiorari on Rule 65.

Form and contents: issued in the name of the RP, stating name of the court the granted the motion, case number, dispositive portion of the judgment or order subject of the execution, shall require the sheriff or other proper officer to whom it is directed to enforce the writ accdg to its terms.

Writ of execution must conform with judgment.

Writ shall continue in effect during the period within which judgment may be enforced by motion. It is enforceable within the 5 year period from entry of judgment.

2 Modes of execution of judgment:

a) execution by motion is the enforcement of the judgment is sought within 5 years from the date of entry

b) execution of independent action if the 5 year period has elapsed and before it is barred by the statute of limitations. There must be an action for revival of the judgment.

- If levy is made within 5 years, sale may be had after five years provided that sale must be made within 10 years from the finality of the judgment can be enforced.

- Revival of judgment: action to revive a judgment must be filed within 10 years from the date the judgment became final.

- Must be filed within 10 years from the date judgment became final - If action has been revived, it may also be enforced within 5 years before it is barred by

statute of limitations. - Revived judgment is a new judgment not a continuation of the original, and results in a new

judgment constituting a new coa, upon a new period of limitation begins to run. New coa : not the merits of the orginal case but the revived decision itself. It is not meant to retry the case on the merits all over again.

- Proper venue: depends if it is a real or personal action.

WE under Sec 6 Rule 39 We under Sec 34 Rule 39 Not sought by prevailing party. Sought by

highest bidder who was not able to possess the property bought

Motion may then be filed on the same action or separate action to recover price he paid


pg. 105

He also has option to revive the judgment Judgment has not been executed Judgment has already been executed.

When the 5 year period is interrupted: a) delays attributable to the defendant have the effect of suspending the running of the

prescriptive period for the enforcement of the judgment. b) Agreement of the parties c) Injunction d) Taking an appeal e) Taking a writ of error

When the 5 or 10- year period does not apply: a) special proceedings ( land reg and cadastral cases)- right of writ of possession does not prescribe b) judgment for support which do not become dormant

Judgment the execution of which is not stayed by pending appeal: a. those immediately executory

- injunction, receivership, accounting, support - though not absolute: court may make an order, suspending, modifying, restoring, or granting IRAS - also action of forcible entry and unlawful detainer - but even if immediately executory there must be a motion to that effect and hearing called for the purpose.

b. those object of discretionary execution - GR: judgment cannot be executed before lapse of the period of appeal or pendency of

appeal. - Exp: discretionary execution - “discretionary”- addressed to the sound discretion of the court - Must be strictly construed - It can not be insisted upon because appeal period not yet expired. - Requisites:

a) there must be a motion filed by the prevailing party with notice to the adverse party b) there must be a hearing of the motion c) there must be good reasons to justify d) good reasons must be stated in the special order

- if not in confirmatory with the rules: execution is null and void. “good reasons”- essential -left to the sound discretion of the court -examples: a) insolvency of the judgment debtor b) prevent irreparable injury c) goods will perish


pg. 106

d) failure in an unlawful detainer case to make the required deposits to cover the rental amounts due or for failure to post supersedeas bonds

NOT GOOD REASON:

a) frivolous appeal is not a good reason because the authority to disapprove an appeal pertains to the appellant court.

b) posting bond is not in itself a good reason

c) financial distress

- discretionary execution shall be a) filed with the TC while it has jurisdiction over the case and it is in possession of either the original record or the record of appeal. b)After TC lost jurisdiction- may file in the appellant court

- where executed judgment is reverse or annulled on appeal or otherwise, TC may on motion, issue such orders of restitution or reparation of damages.

- Execution in case parties die: Judgment oblige dies will not prevent the execution of judgment.

Execution may issue upon the application of his executor/ administrator/ successor in interest.

Judgment oblige dies will not prevent execution of judgment. Execution shall issue against executor/ administrator If he died after levy- proceed with sale. If he died before levy- claim filed against estate

- Execution of money judgments: STEPS

a. Sheriff makes demand from the judgment obligor the immediate payment if the full amount in the judgment including lawful fees.

b. If cannot pay all or some, sheriff shall levy upon properties of the judgment obligor. c. Judgment obligor has the option which property shall be levied upon. d. If he does not choose, sheriff shall choose first personal prop then real prop e. Sheriff may levy on debts due to the judgment debtor including bank deposits,

financial interests, royalties, commissions, personal prop not capable or manual delivery and in the hands of 3rd parties. (GARNISHMENT) .

i. Note sheriff may only levy if: 10 can’t pay cash or admits that can’t pay cash.

Garnishment of debts and credits: Steps: 1) serving notice upon the 3rd person having in possession or control of the credits in favor of

judgment obligor


pg. 107

2) 3rd person or garnishee shall make a written report to the court within 5 days from service of notice, and shall state won the judgment obligor has sufficient funds to satisfy the judgment.

3) If sufficient, garnishee shall deliver the amount in cash, check to the judgment oblige within 10 working days from the service of notice on said garnishee.

4) Is insufficient, garnishee shall make a report as to the amount he holds for the judgment obligor.

Execution of judgment for performance of specific acts - Such act must be performed - Fails to do so, court may direct the act to be done by someone at the cost of disobedient

party

Execution of judgment for conveyance of real or personal property found in the Philippines - To convey such - If faild to do so, order divesting the title of any party and vest it in others

Execution of judgment for delivery or restitution of real property - Example, ejectment: sheriff shall demand the judgment obligor to vacate peaceably within 3

working days, and restore possession of prop to judgment oblige - Note that immediacy of execution does not mean instant execution, respect 3 days - If refuse to vacate, sheriff may enforce the writ by ousting the judgment obligor with the

assistance of appropriate officers and employing such means as may reasonable necessary to retake possession. Bodily removal of defendant and his belongings.

- contempt is not a remedy: Mere refusal to vacate is not contempt because orders were made upon the sheriff not the judgment debtor.

- Improvement thereon shall not be demolished by sheriff. These may only be done by the officer upon a special order by the court which will be issued upon motion and hearing.

Property exempt from execution: (section 13, Rule 39) - List is exclusive. a. family home or homestead and the land b. ordinary tools and implements personally used by him in his trade/ employment/

livelihood c. 3 horses, or 3 cows, or 3 carabaos or other beasts of burden as the judgment obligor may

choose necessarily used by him in his ordinary occupation. d. His necessary clothing and articles for ordinary personal use, excluding jewelry. e. Household furniture and utensils necessary for housekeeping, and used for that purpose by

the judgment obligor and his family, such as the judgment obligor may select of value not exceeding P100k

f. Provisions for individual or family use sufficient for 4 months g. Professional libraries and equipments of judges/ lawyers/ physicians/ pharmacists/

dentists/ engineers/ surveyors/ clergymen/ teachers/ and other professionals not exceeting P300k

h. One fishing boar and accessories not exceeding the total value of P100k owned by the fisherman and by the lawful use of which he earns his livelihood.


pg. 108

i. So much of salaries, wages, or earning of the judgment obligor for his personal services within the 4 months preceding the levy as are necessary for support of his family

j. Lettered gravestones k. Monies, benefits, privileges, or annuities accruing or in any manner growing out of an life

insurance l. The right to receive legal support, or money or property obtained as such support or any

pension or gratuity from the govt m. Properties specially exempted by law

- When a-m is not exempt from execution: when judgment is for the recovery of the price or

upon a judgment of foreclosure or a mortgage upon the property.

Remedy of 3rd persons: a) Terceria - A person claiming a property levied upon may execute an affidavit of his title or right of

possession over such property stating the grounds relied upon. - Affidavit shall be served upon sheriff and judgment oblige. - Officer served with such shall not be bound to keep the property subject of the claim

UNLESS judgment oblige, on demand of officer, files a bond approved by court. - No damages may be enforced against such bond UNLESS the action is filed within 120 days

from the date of filing the bond. b) file an action to nullify levy with damages - a and b are cumulative remedies c) filing an action distinct and separate from that which the judgment is being enforced. Action for recovery with damages may be filed. d) may file also a 3rd party claim with damages against same action

Principles in execution sale: a) notice of sale is required before prop levied is sold b) execution sale must be proceeded with a valid levy c) levy is made when can’t pay cash d) levy is the act of setting apart properties to pay debt e) levy upon real property: - by filing with the RC a copy of the order, description of the attached property and notice

of attachment AND - leaving with the occupant a copy of the same order, description, and notice. - No- compliance: shall invalidate levy. f) after prop has been sold to satisfy debt, no more shall be sold. g) excess- delivered to judgment obligor h) if Highest bidder refuses to pay, sheriff may again sell the property to another highest

bidder. Court may require the 1st HB to pat whatever loss with costs occasioned by his refusal to pay.

i) Any subsequent bid by 1st HB may be refused j) Judgment oblige may bid when there is no 3rd party claim


pg. 109

k) Sale of personal property at auction conveys to the HB all the right which the judgment obligor had in such property as of the date of levy on execution or the preliminary attachment.

l) Certificate of sale may be issued

Sale and redemption of real property - Sheriff to give HB the certificate of sale - Such cert shall be registered in the RD of the place where the property is situated - Real property sold may be redeemed from HB with in 1 year from the sate of registration of

sale. - If there are other cd having lien, redemption may again be made within 60 days from last

redemption ( called redemptioner) - Right of redemption under ROC refers only to real prop

If no redemption is made: - After 1 year w/o redemption, the purchaser is entitled to a conveyance and possession of the

property - Or if after 6o days from last redemption w/o redemption from other cd, the purchaser is

entitled to a conveyance and possession of the property

HB or redemptioner - Shall not entitled to receive rent/ income/ earning of the property sold on execution when

such property is in the possession of the tenant. - All of such shall belong to the judgment obligor UNTIL the expiration of his period of

redemption.

Judgment unsatisfied - Remedy: judgment oblige is entitled to an order from the court which rendered the

judgment, requiring the judgment obligor to appear and be examined concerning his property and income before the court or commissioner appointed by the court.

- BUT he can not be examined outside the province or city which he resides.

Effect of final judgment: Upon a specific thing Conclusive upon the title to the thing Probate of a will or the administration of the estate of a deceased person

Conclusive upon the will or administration but the same shall only be prima facie evidence of the death or testator or intestate and not a conclusive presumption of death

Personal, political, or legal condition or status of a person or his relp with another

Conclusive upon the condition, status, or relp

Judgment be with repect to the matter directly adjudged or as to any ptehr matter that could have been raised in relation thereto aka “Bar by prior judgement”- res judicata

Conclusive between the parties and their successors in interest by title subsequent to the commencement of the action or special proceeding, litigating for the same thing and under the same title and same capacity,


pg. 110

relationship. Former of final order Aka “conclusiveness of judgment” – another form of res judicate

Conlusive on any other litigation between same parties or their successors in interest, which appear upon its face to have been adjudged, or which was actually and necessarily included thereon or necessary thereto.

XII. Provisional Remedies Rule 57: preliminary attachment

Rule 58: Preliminary injunction

Rule 59: receivership

Rule 60: replevin

Rule 61: support pendent lite