Civil procedure Tan Notes

Remedial Law Review Notes under Atty Ferdinand Tan CONSOLIDATED NOTES in CIVIL PROCEDURE Notes by: Paul Lemuel E. Chavez

CIVIL PROCEDURE NOTES PRELIMINARIES Remedial Law

1.

Civil Procedure (Rules 1-71)

2.

Special Proceedings (Rules 72-109)

3.

Criminal Procedure (R110-R127)

4.

Rules on Evidence (Rules 128-134)

Branch of law which prescribes the method of enforcing the rights or obtaining redress

What are the sources of Remedial Law?

for their invasions

1.

1987 Constitution

2.

BP 129 (Judiciary Reorganization Act of 1980) as amended by RA7691 (Act

Remedial Law vs Substantive Law Substantive Law

expanding the jurisdiction of MTCs, MuTCs, MCTCs

Remedial Law 3.

Rules of Court

4.

Supreme Court Administrative Matters and

Part of the law which

Refers to the legislation

creates, defines, or

providing means or

regulates rights

methods whereby

5.

Supreme Court decisions

concerning life, liberty,

causes of action may be

6.

New Civil Code

or property or the

effectuated, wrongs

7.

Family Code

powers of agencies or

redressed, and relief

8.

Local Government Code (RA 7160),

instrumentalities for the

obtained (adjective law)

Circulars

particularly the Katarungang Pambarangay

administration of public

Law

affairs

9.

Special Laws and amendments

10. Rules of Procedure on Small Claims Makes vested rights

Has no vested rights

11. Revised Manual of the Clerk of Court

possible Prospective in

Governs rights and

application

transactions which took

Differentiate: Civil Actions, Special Proceedings,

place (retroactive)

Criminal Actions

SC is expressly

Special

Criminal

empowered to

Proceedings

Procedure

A remedy by

The State

A party sues

which a party

prosecutes a

another for

seeks to

person for an

the

establish a

act or

enforcement

status, a right,

omission

or protection

or a particular

punishable by

of a right, or

fact (Rule 1

law (Rule 1

the

S3c)

S3b)

prevention or

Cannot be enacted by SC

Civil Action

promulgate procedural rules

redress of a wrong

4

Main Divisions of Remedial Law:

A proceeding wherein a

1


person is

A civil action

cause of

prosecuted by

may be

action

the State for

ordinary or

acts or

special. (R1

omissions

S3a)

law

committed in violation of penal laws, and to impose the

CONSTITUTIONAL PROVISIONS Relating to CIVIL

corresponding

PROCEDURE

penalty provided for

A8 S1

by penal laws Judicial Power shall be vested in one Supreme Court Governed by

Governed by

Both are

and in such lower courts as may be established by

special rules,

the Revised

governed by

law.

and in the

Rules of

the Rules for

absence of

Criminal

ordinary civil

Judicial Power includes the duty of the courts of

special

Procedure

actions,

justice to settle actual controversies involving rights

provisions,

subject to

which are legally demandable and enforceable, and

the rules

specific rules

to determine whether or not there is grave abuse of

provided for

prescribed for

discretion amounting to lack or excess of jurisdiction

in ordinary

a special civil

on the part of any branch or instrumentality of the

civil actions

action (R1

government.

shall be, as far

S3a)

as practicable, apply

What are those other Courts as may be established

suppletory

by Law?

(R72 S2) May involve

Involves the

Involves 2 or

only one party

State against

more parties

Sandiganbayan Family Courts (RA 8369) Court of Tax Appeals

the accused

Sharia Court

Initiated by

Initiated by

Initiated by

petition

complaint

complaint, or,

(but filed in

in some

court by

special civil

Information)

actions, by

No person shall be deprived of life, liberty, or

petition

property without due process of law, nor shall a ny

A3 S1

person be denied the equal protection of the laws. Except

Based on an

Based on a

Habeas

act or

cause of

Corpus, NOT

omission

action

based on a

punishable by

A3 S9—(Basis of Rule 67)

2


person is

A civil action

cause of

prosecuted by

may be

action

the State for

ordinary or

acts or

special. (R1

omissions

S3a)

law

committed in violation of penal laws, and to impose the

CONSTITUTIONAL PROVISIONS Relating to CIVIL

corresponding

PROCEDURE

penalty provided for

A8 S1

by penal laws Judicial Power shall be vested in one Supreme Court Governed by

Governed by

Both are

and in such lower courts as may be established by

special rules,

the Revised

governed by

law.

and in the

Rules of

the Rules for

absence of

Criminal

ordinary civil

Judicial Power includes the duty of the courts of

special

Procedure

actions,

justice to settle actual controversies involving rights

provisions,

subject to

which are legally demandable and enforceable, and

the rules

specific rules

to determine whether or not there is grave abuse of

provided for

prescribed for

discretion amounting to lack or excess of jurisdiction

in ordinary

a special civil

on the part of any branch or instrumentality of the

civil actions

action (R1

government.

shall be, as far

S3a)

as practicable, apply

What are those other Courts as may be established

suppletory

by Law?

(R72 S2) May involve

Involves the

Involves 2 or

only one party

State against

more parties

Sandiganbayan Family Courts (RA 8369) Court of Tax Appeals

the accused

Sharia Court

Initiated by

Initiated by

Initiated by

petition

complaint

complaint, or,

(but filed in

in some

court by

special civil

Information)

actions, by

No person shall be deprived of life, liberty, or

petition

property without due process of law, nor shall a ny

A3 S1

person be denied the equal protection of the laws. Except

Based on an

Based on a

Habeas

act or

cause of

Corpus, NOT

omission

action

based on a

punishable by

A3 S9—(Basis of Rule 67)

2


Private property shall not be taken for public use

A8 S5 P2—(Basis of Rule 56)

without payment of just compensation

A6 S30 No law shall be passed increasing the a ppellate

-

Review

-

Revise

-

Reverse

-

Modify

-

Affirm o

jurisdiction of the SC as provided provided in this Constitution

On appeal or certiorari, as the law or the Rules of Court may provide,

without its advice and concurrence.

final judgments and orders of lower courts in:

A8 S5 P1

1.

validity of any

The Supreme Court shall have the following powers: -

All cases in which constitutionality or

Exercise original jurisdiction over cases

a.

treaty,

b.

international or executive agreement

affecting:

-

o

Ambassadors

c.

law

o

Other public ministers and consuls

d.

presidential decree

e.

proclamation

Over petitions for o

Certiorari

f.

order

o

Prohibition

g.

instruction

o

Mandamus

h.

ordinance

o

Quo warranto

i.

regulation

o

Habeas corpus

i. is in question 2.

A7 S4 The Supreme Court en banc shall be the sole judge of all contests relating to the election, returns, and qualification of the President or Vice President, and

all cases involving the legality of any a.

tax

b.

impost

c.

assessment

d.

toll

e.

any penalty imposed in relation thereto

may promulgate its rules for the purpose. 3.

all cases in which the jurisdiction of any lower court is in issue

A7 S18 The Supreme Court may review, in an appropriate

4.

imposed is reclusion perpetua or higher

proceeding filed by any citizen, the sufficiency of the factual basis of the proclamation of martial law or the suspension of the privilege of the writ or the extension thereof, and must promulgate its decision

all criminal cases in which the penalty

5.

all cases in which only an error or question of law is involved

thereon within 30 days from its filing. A8 S5 P5 (basis of Rules of Court)

3


The SC shall have the power to promulgate rules

No decision shall be rendered by any court without

concerning:

expressing therein clearly and distinctly the facts and the law on which it is bas ed.

1.

Protection and enforcement of constitutional rights

No petition for review or motion for reconsideration

2.

Pleading, practice, procedure in all courts

of a decision of the court shall be refused due course

3.

Admission to practice of law

or denied without starting the legal basis therefor.

4.

Integrated Bar

5.

Legal assistance to the underprivileged

Such rules shall (Limits to SC-rule making power): 1. 2. 3.

A9A S7 (basis of Rule 64)

Provide simplified and inexpensive

Each Commission shall decide by majority of all its

procedure for speedy disposition of cases

Members in any case or matter brought before it

Shall be uniform for all courts of the same

within 60 days from date of its submission for

grade

decision or resolution. A case or matter is deemed

Shall not diminish, increase, modify

submitted for decision or resolution upon the filing

substantive rights.

of the last pleading, brief, or memorandum required by the rules of the Commission or by the

Rules of procedure of special court and quasi judicial

Commission itself. Unless otherwise provided by

bodies shall remain effective unless disapproved by

this Constitution or by law, any decision, order, or

the SC

ruling of each Commission may be brought to the SC on certiorari by the aggrieved party within 30 days from receipt of a copy thereof.

A8 S2 The Congress shall have the power to d efine,

CIVIL PROCEDURE PROPER

prescribe, and apportion the jurisdiction of the various courts but may not deprive the SC of its

Jurisdiction

jurisdiction over cases enumerated in S5 thereof. Authority of the court to hear and decide a No law shall be passed reorganizing the J udiciary

case and to implement its decision

when it undermines security of tenure of its members. Rule 30

Rule 36

A3 S16 Rule 39

All persons shall have the right to speedy disposition of cases before before all judicial, quasi judicial, administrative bodies.

Venue A8 S14—(basis for Rule 36)

Jurisdiction

Place where action is

Power of court to hear

instituted

and decide a case

4


May be waived

Jurisdiction over subject matter and over nature

Concurrent / Confluent / Coordinate

of action are conferred

Jurisdiction

by law and cannot be

Power conferred upon different courts,

waived

whether of the same or different ranks, to take cognizance at the same stage of the

Procedural

Substantive

May be changed by

Cannot be subject of the

written agreement of

agreement of the parties

the parties

same case in the same or different judicial territories E.g. CA, SC, Sandiganbayan, RTC- in HC cases, Writ of Amparo, Writ of Habeas Data

Not a ground for motu

A ground for motu

proprio dismissal, except

proprio dismissal

in Summary Procedure

Original Jurisdiction Power of the court to take judicial cognizance of a case instituted for judicial action for the first time under conditions provided by law and appellate jurisdiction,

General Jurisdiction

or the authority of a court higher in rank to

Power to adjudicate all controversies except

re-examine the final order or judgment of a

those expressly withheld from the plenary

lower court which tried the case or elevated

powers of the court.

for judicial review. It is jurisdiction conferred upon or inherent in the first

It extends to all controversies which may be

instance

brought before a court within the legal bounds of rights and remedies.

Jurisdiction conferred by law and filed at the first instance (NOTE: all civil actions)

Special or Limited Jurisdiction One which restricts the court’s jurisdiction

Exclusive Jurisdiction

only to particular cases and subject to such

Power to adjudicate a case or proceeding to

limitations as may be provided by the

the exclusion of all other courts at that

governing law.

stage

It is confined to particular causes, or which

Jurisdiction of the court to the exclusion of

can be exercised only under the limitations

all other courts

and circumstances prescribed by the statute

Appellate Jurisdiction Power and authority conferred upon a superior court to rehear and determine causes which have been tried in lower courts, the cognizance which a superior court takes of a case removed to it, by

Exclusive Original Jurisdiction Power of the court to take judicial cognizance of a case instituted for judicial action for the first time to the exclusion of all other courts

appeal or writ of error, from the decision of a lower court or the review by a superior court of the final judgment or order of some lower courts

Territorial Jurisdiction Refers to geographical area within which the court’s powers can be exercised

5


In civil cases, assumes importance in case of

Power conferred upon different courts,

venue of real or mixed action

whether of the same or different ranks, to

In criminal cases, consideration of territory

take cognizance at the same stage of the

and locus of crime determine venue and

same case in the same or different judicial

jurisdiction

territories

Territorial jurisdictions: SC and CA

Ancillary Jurisdiction

National

Power of the courts to settle issues which

RTC

are incidental to main issue

Regional jurisdiction Inferior courts Territorial jurisdiction as defined by SC in BP129 *Power of tribunal considered with reference to the territory within which it is to be exercised.

Delegated Jurisdiction

Appeal by Certiorari

Petition for Certiorari

Rule 45

Rule 65

Petition is based on

Petition is based on

questions of law

questions of jurisdiction, whether the lower court

The grant of authority to inferior courts to

acted without

hear and determine cadastral and land

jurisdiction or in excess

registration cases under certain cond itions

of jurisdiction or with grave abuse of discretion

Doctrine of Primary Jurisdiction

Mode of appeal

Mode of review / SPECIAL CIVIL ACTION

courts will not resolve a controversy involving a question which is within the

Involves review of the

Directed against

jurisdiction of an administrative tribunal,

judgment award or final

interlocutory order of

especially where the question demands the

order on the merits

the court or where there

exercise of sound administrative discretion

is no appeal or any plain,

requiring special knowledge and experience

speedy, or adequate

of said tribunal in determining technical and

remedy

intricate matters of fact courts shall not take cognizance of a case unless it has been decided at the administrative level

Coordinate Jurisdiction (same as Concurrent Jurisdiction)

Filed within 15 days from

Filed not later than 60

notice of judgment, final

days from notice of

order, or resolution

judgment, order, or

appealed from

resolution sought to be reviewed

Stays judgment or final

Unless a writ of

order appealed from

preliminary injunction or temporary restraining order is issued, the

6


petition does not stay

3.

Over petitions for:

a.

Certiorari

b.

Prohibition

the challenged proceeding

Appellant and appellee

Judge, court, quasi

c.

Mandamus

are original parties to

judicial agency, tribunal,

d.

Quo warranto

the action, and the lower

corporation, board or

e.

Habeas corpus

court or quasi judicial

officer or person are

agency is not impleaded

public respondents who are impleaded in the action

Appellate Jurisdiction of the Supreme Court: A8 S5 P2

Motion for

Motion for

reconsideration is not

reconsideration or for

The SC may review, revise, reverse, modify, or affirm

required

new trial is required; if a

on appeal or certiorari, as the la w or the Rules of

motion for

Court may provide, final judgments and orders of

reconsideration or new

lower courts in:

trial is filed, the period shall not only be

1.

All cases in which the constitutionality or

interrupted but another

validity of any treaty, internation or

60 days shall be given to

executive agreement, law, presidential

petitioner (SC Admin

decree, proclamation, order, instruction,

Matter 02-03)

ordinance, or regulation is in question

Court is in exercise of its

Court exercises original

appellate jurisdiction

jurisdiction

2.

All cases involving the legality of any tax, impost, assessment or toll, or any penalty imposed in relation thereto

and power of review Petition shall be filed

Petition shall be filed

with the Supreme Court

with the RTC, CA,

3.

All cases in which the jurisdiction of any lower court is in issue

Sandiganbayan, Comelec 4.

All criminal cases in which the penalty imposed is reclusion perpetua or higher (WITHIN THE SCOPE OF CRIMINAL

JURISDICTION

PROCEDURE- RULE 45)

SUPREME COURT Original Jurisdiction of the Supreme Court: A8 S5 P1- (Rule 56)

5.

All cases in which only a n error or question of law is imposed

1 and 2- PURE QUESTIONS OF LAW

The SC shall have exclusive original jurisdiction over cases involving: 1.

Ambassadors

2.

Other public ministers and consuls

Administrative Supervision of the Supreme Court: 1.

Over court personnel

7


2.

Over Justices

1.

3.

Over Judges

of its ORIGINAL JURISDICTION (via Notice or

4.

Practice of Law

Record of Appeal)

5.

Members of the Integrated Bar -

Rule 41- over RTC decisions in the exercise

RTC jurisdiction, first instance, including Special Civil Actions

CA decisions -

2.

Rule 42- over RTC decisions in the exercise of its APPELLATE JURISDICTION (via Petition

Appealable to SC under Rule 45

for Review) R45 S1- a party desiring to appeal by certiorari from a judgment or final order or resolution of the Court

3.

Rule 43- Exclusive appellate jurisdiction

of Appeals may file with the SC a verified petition for

over all final judgments, resolution, orders,

review on certiorari. The petition shall raise only

or awards of quasi judicial agencies,

questions of law which must be distinctly set forth.

instrumentalities, boards, or commissions (via Petition for Review)

Note that questions of law can be raised before the CA (BP129)

RTC Exclusive Original Jurisdiction:

COURT OF APPEALS

1.

In all actions in which the subject of litigation is incapable of pecuniary estimation

Original jurisdiction / Original Concurrent Jurisdiction 2. Original jurisdiction to issue writs of:

Actions which cannot be quantified into monetary estimation Subject matter (BP129)

-

Mandamus

-

Prohibition

-

Certiorari

possession of real property or any interest

-

Habeas corpus

therein, where assessed value of property

-

Quo warranto

involved exceeds 20k OMM or in MM, value

-

Auxiliary writs and processes,

of property involved exceeds 50k

o

3.

In all civil actions which involve title to or

Whether or not in aid of its

Except actions of FE and UD of lands and

appellate jurisdiction

buildings, original jurisdiction of which is conferred with MTC, MuTC, MCTC

Exclusive Original Jurisdiction:

4.

In all actions in admiralty and maritime actions where demand or claim exceeds

Exclusive original jurisdiction over the

300k OMM or exceeds 400k MM

actions for annulment of judgments of RTCs 5.

In all matters of probate, testate or intestate, where gross value of estate

Appellate Jurisdiction:

exceeds 300k OMM or exceeds 400k MM

8


Gross value- assessed value of property of deceased

misrepresentation which may be interest of

before deduction (NOT market value)

the public and/or of the stockholders, partners, members of associations or organizations registered with the

6.

In all actions involving the contract of

Commission

marriage and marital relations 2. 7.

Controversies arising out of intracorporate

In all cases not within the excl usive

or partnership relations, between and

jurisdiction of any court, tribunal, person or

among stockholders, members or

body exercising jurisdiction of any court,

associates, between any and all of them

tribunal, person or body exercising judicial

and the corporation, partnership, or

or quasi judicial functions

association of which they are stockholders, members or associates respectively, and

(refer to 902-A below)

between such corporation, partnership or association and the state insofar as it

8.

In all civil actions and special proceedings

concerns their individual franchise or right

falling within Exclusive original jurisdiction

to exist as such entity

of a Juvenile and Domestic Relations Court and of the Court of Agrarian Relations as

3.

now provided by law

Controversies in election or appointment of directors, trustees, officers or managers of such corporations, partnerships, or

9.

In all other cases in which the demand,

associations

exclusive of interest, damages of whatever kind, attorney’s fees, litigation expenses,

4.

Petitions of corporations, partnerships or

and costs or the value of property in

associations to be declared in the state of

controversy exceeds 300k OMM or exceeds

suspension of payments, in cases where the

400k MM

corporation, partnership or association possesses sufficient property to cover all its

1996 Bar- Gross value is 200k, property located in

debts but foresees the impossibility of

Pampanga. What is the jurisdiction and venue?

meeting them when the respectively fall

MTC of the place of decedent’s actual residence at

due or in cases where the corporation,

the time of his death, if a resident of the Philippines.

partnership or association has no sufficient

If a non resident, then the MTC of the place where

assets to cover its liabilities, but is under

his estate is located.

management of a rehabilitation receiver or management committee

(RA8799 S5.2 as amended by PD902-A)- exclusive and original jurisdiction of the RTC to hear and decide following cases:

Concurrent Original Jurisdiction: With SC, CA, -- over petitions for certiorari, mandamus, prohibition, quo warranto, habeas

1.

Cases involving devices or schemes

corpus

employed by or any acts of the board of directors, business associates, its offices or partnership, amounting to fraud or

Appellate Jurisdiction:

9


Over all cases decided by MTCs, MuTCs, MCTCs in

property or any interest therein where

their respective territorial jurisdictions

assessed value of property or interest therein does not exceed 20k OMM or does not exceed 50k MM exclusive of interest, damages of whatever kind, AF, litigation

MTC

expenses, costs. Provided that in cases of

(note: baligtarin ang RTC jurisdiction, below 20-50,

land not declared for taxation purposes, the

300-400)

value of such property shall be determined by assessed value of adjacent lots

Ordinary Civil Actions: 1.

exclusive original jurisdiction over civil

4.

exceed 300k or not more than 400k MM

actions and probate proceedings, testate and intestate, including grant of provisional remedies in proper cases, where the value

5.

more than 400k MM

of the demand does not exceed 300k OMM of whatever kind, AF, litigation expenses

over actions involving personal property valued at not more than 300k OMM or not

of the personal property, estate or amount or 400k MM exclusive of interest, damages,

civil cases where the demand does not

6.

admiralty and maritime cases where the demand or claim does not exceed 300k

and costs, the amount of which must be

OMM or does not exceed 400k MM

specifically alleged. Provided, that interest, damages of whatever kind, AF, litigation expenses, and costs shall be included in the determination of the filing fees. Provided further that where there are several claims or causes of actions between the same or

Summary Procedure: 1.

amount of damages or unpaid rentals

different parties, embodied in the same

sought to be recovered. Where AF are

complaint, the amount of demand shall be

awarded, the same shall not exceed 20k

the totality of the claims in all the causes of action, irrespective of whether the cause of action arose out of same or different

2.

plaintiff’s claim does not exceed 100k OMM

or 200k MM exclusive of interests and costs

exclusive original jurisdiction over cases of

(as amended by AM 2-11-9-SC)

forcible entry or unlawful detainer, provided that when, in such cases, defendant raises questions of ownership in his pleadings and the question of

All other civil cases, except probate proceedings, where the total amount of the

transactions 2.

All cases of FE and UD, irrespective of the

3.

Civil cases not higher than 100k- Subject to the Rule on Small Claims

possession cannot be resolved without deciding the issue of ownership, the issue of

What if, gumitna? 150k?

ownership shall be resolved only to

3.

determine the issue of possession ( see:

Higher than 100k OMM, then subject to Regular

Summary Procedure)

Proceedings in MTC

exclusive original jurisdiction in all civil

BUT, below 200k MM, hence, in such case, subject to

actions involving title to or possession of

Summary Procedure pa rin

10


Conferred by law

Why the need to discuss jurisdiction? To know whether subject to Motion to Dismiss (Rule

Jurisdiction over the issue

S1b), that the court has no jurisdiction over the Determined by allegations in the complaint

subject matter of the case

In Civil Procedure, SC-CA-RTC-MTC

Jurisdiction over the res

In Criminal Procedure, SC-CA-SANDIGANBAYAN-RTC-

By actual or constructive seizure of property

MTC

by way of attachment or execution

Commencement of a Civil Action:

Action, Cause of Action, Right of Action (Simplified Version)

R1 S5

Action

Cause of Action

Right of Action

complaint in court and pay ment of the requisite

Suit to enforce

Act or omission

Remedial right

docket fees. If an additional defendant is impleaded

one’s right or

by which a

to file a suit

in a later pleading, the a ction is commenced with

for the

party violates a

based on cause

regard to him on the date of filing of such later

prevention or

right of another

of action

pleading, irrespective of whether the motion for its

redress of a

admission, if necessary, is denied by the court.

wrong

DOCKET FEES- needed to acquire jurisdiction over

Original Distinctions:

Civil action is commenced by the filing of the original

the case

Jurisdiction over plaintiff

Action

Cause of Action

Right of Action

Suit filed in

Act or omission

Remdial right

court for

by which a

or right to relief

enforcememt

party violate a

granted by law

By filing of original complaint in court plus

or protection of

right of another

to a party to

payment of requisite docket fees

a right, or the

(R2 S2)

institute an

Jurisdiction over defendant

prevention or

action against a

redress of a

person who has

wrong (R1 S3)

committed delict or wrong

By voluntary appearance or service of

against him

summons

Jurisdiction over subject matter

Reason for the

Remedy or

action

means afforded or the

11


-

consequent

Venue: R4 S1

relief Formal

Remedial right

statement of

given to a

operative facts

person because

that give rise to

of occurrence

a remedial right

of the alleged facts

ND

2 GROUP: for purposes of determining jurisdiction/service of summons

Action In Rem -

Action which binds the whole world Note: all Special Proceedings are in rem

Matter of

A matter of

procedure and

right and

depends on the

depends on

pleadings filed

substantive law

by the parties

actions -

Summons/notification by PUBLICATION

Action in Personam

Not affected by

Affected by

affirmative

affirmative

defenses

defenses

(fraud, prescription, estoppel, etc)

-

Action which binds the parties

Action Quasi In Rem -

Action which binds interests o

Foreclosure of mortgage

o

Partition

o

Attachment

o

Any interest or lien on real property

Kinds of actions: ST

1 GROUP: for purposes of venue under Rule 4

Action in rem Real Action -

Action in

Action Quasi in

personam

Rem

Actions affecting title to or possession of

Directed

Directed

Directed

real property (A415 NCC in consideration)

against the

against

against

Venue: R4 S1

thing itself

particular

particular

persons

persons

Jurisdiction

Jurisdiction

Jurisdiction

Involves privity of contract/personal

over person of

over person of

over the person

property (A416-417 of NCC in

defendant is

defendant is

of the

consideration)

not required

required

defendant is

Personal Action -

-

Venue: R4 S2

not required as long as

Mixed Action

jurisdiction over the res is

-

Action affecting title to or possession of real

acquired

property + Privity of Contract

12


A proceeding to

An action to

A proceeding to

determine the

impose a

subject the

state or

responsibility

interest of a

Founded on

Founded on

Founded on

condition of a

or liability upon

named

privy of real

privity of

both

thing

a person

defendant over

estate

contract

directly

a particular

Filed in the

Filed in the

Filed in the

court where

court where

court where

the property or

the plaintiff or

the property or

any part

any of the

any part

thereof is

plaintiffs

thereof is

situated (R4 S1)

resides, where

situated (R4 S1)

property to an obligation or lien burdening it

sought

Judgment is

Judgment is

Judgment is

binding on the

bonding only

binding upon

defendant or

whole world

upon the

particular

any of the

parties

persons

defendants

impleaded or

resides, or in

their successors

case of non

in interest

resident defendant,

Examples:

Examples:

where he may

Examples:

be found, at election of Probate

Action for

Action for

proceeding,

specific

partition

plaintiff (R4 S2) Example:

Example:

Example:

Accion

Action for a

Accion

reivindicatoria

sum of money

publiciana with

performance

cadastral proceeding,

Action to Action for

foreclose real

breach of

estate

contract

mortgage

a claim for damages

special proceedings

Real Action

Personal

Mixed Action

Action

Personal Action

Action in personam

Personal property is

An action directed

sought to be recovered

against particular

or where damages for

persons, may be real

Ownership or

Personal

Both real and

breach of contract are

action, personal action,

possession of

property is

personal

sought

mixed action

real property is

sought to be

properties are

involved

recovered or

involved

Founded on privity of

Not necessarily; because

contract

the action may also be

where damages

real or mixed

for breach of contract are

Filed in court where

R4 S1 or R4 S2 may

13


plaintiff or any of

govern, depending on

defendants reside, at

whether the action is

option of plaintiff (R4 S2)

real action or personal action

PLEADING (R6 S1) Sworn written statements of the respective claims and defenses of the parties submitted to the court for appropriate

Mixed Action

Quasi In Rem Action

Both real and personal

Both real and personal

properties are involved

properties may also be involved

Founded on both privity

Action directed against

of real estate and privity

particular persons, but

of contract

jurisdiction over

judgment

Complaint (R6 S3) The complaint is the pleading alleging the plaintiff’s cause or causes of action.

defendant is not required as long as

Answer (R6 S4)

jurisdiction over the res is acquired

Pleading in which a defending party sets forth his defenses

Rules on venue of real

Rules on personal

actions shall govern (R4

actions govern (?)

S1)

INITIATORY PLEADING A pleading that initiates an action

Real Action

In rem action

Ownership or possession

Action directed against

of real property is

the thing itself

RESPONSIVE PLEADING A pleading that responds to allegations in

involved

the adverse party’s pleading

Filed in court where

Not necessarily; depends

property or portion

on whether the action is

thereof is situated

real, personal, mixed

A proceeding founded

A proceeding to

on privity of real estate

determine state or condition of a thing

Initiatory Pleadings Original complaint Permissive counterclaim Cross claim

Judgment may bind

Judgment is binding

Third party complaint

whole world, or

upon the whole world

4 party complaint

th

particular persons,

Complaint in intervention

depending on whether in

Petition

rem, in personam, quasi

In special civil actions

in rem

In special proceedings Counter counter claim

14


Counter cross claim

A motion IS NOT A PLEADING

Counter Counter Claim

Counter Cross Claim

A position paper IS NOT A PLEADING

Any claim which

Any claim which a

A memorandum IS NOT A PLEADING

defending party in a

defending party in a

counterclaim may have

cross claim may have

against the original

against the original cross

counterclaimant

claimant

COMPULSORY- Arises

Can be an initiatory

out of or is necessarily

pleading, if permissive

connected with the

Why? Motion is an application for relief other than by a pleading (R15 S1) Position Paper and Memorandum only narrate facts of the case, issues, no cause of action, no defenses, but only contain discussions

transaction or occurrence that is the subject matter of the opposing party’s claim

Initiatory Pleading

Responsive Pleading

A pleading that

A pleading that responds

initiates an action

to allegations in the

PERMISSIVE- does not

adverse party’s pleading

arise of or is necessarily connected with the transaction or occurrence that is the subject matter of the

Original

Answer to original

complaint

complaint

Permissive

Answer to

counterclaim

permissive

opposing party’s claim

counterclaim

Responsive Pleadings

Cross claim Answer to third party complaint

Answer to original complaint

Third party

Answer to permissive counterclaim

complaint

Answer to third party complaint

Answer to fourth

Answer to fourth party complaint

party complaint

Answer to complaint in intervention Comment or objection to petition Compulsory counterclaim

th

4 party complaint Answer to

Reply

complaint in

Answer to counter counter claim Answer to counter cross claim

Complaint in

intervention

15


intervention

document Comment or objection to

Petition

Allegations of

petition

usury

In special civil actions

Compulsory Answer to

counterclaim

permissive counterclaim

In special proceedings Reply

Succeeding

Counter counter claim

pleadings in Answer to counter

special

counter claim

proceedings

Counter cross claim

Answer to counter cross claim

Need to be verified,

Except when otherwise

with certification

provided by law or these

against forum

Rules, need not be verified

Complaint- a pleading alleging plaintiff’s cause and causes of action

FLOW OF CIVIL PROCEDURE I.

BARANGAY CONCILIATION PROCEEDINGS

shopping, plus

General Rule with respect to Barangay Conciliation

payment of docket fees

Proceedings: No need for certification against forum shopping,

S412, LGC

and not need for payment of docket fees (Note:

No complaint, petition, action or proceedings

compulsory counterclaim,

involving any matter within authority of the Lupon

docket fees are

shall be filed or instituted directly or indirectly in

suspended)

court or in any other government office or adjudication unless there has been a confrontation between the parties before the Lupon Chairman or the pangkat, and that no conciliation or settlement

Instances when verification

has been reacehed as certified by lupon or pangkat

is needed:

chairman.

Actionable

Exceptions to above rule:

16


S408, LGC

where the action may otherwise be barred by the statute of limitations

1.

2.

where one party is the government or any subdivision or instrumentality thereof

11. in case of labor disputes

where one party is a public of ficer or

12. action to annul a judgment upon a

employee, and the dispute relates to

compromise

performance of his official functions offenses punishable by imprisonment

13. CARL disputes

exceeding 1 year or a fine exceeding 5k pesos

14. Disputes involving traditions of an indigenous cultural community

3.

offenses where there is no private offended party

4.

where the dispute involves real properties

Does the Exclusive Original Jurisdiction of the RTC

located in different cities or municipalities

on actions involving those incapable of pecuniary

unless the parties thereto agree to submit

estimation include provisional remedies as falling

their differences to amicable settlement by

within the category?

an appropriate lupon 5.

disputes involving parties who actually reside in barangays of different cities or municipalities, except where such barangay

No, because provisional remedies are merely ancillary to the main action. The category of actions incapable of pecuniary estimation refers only to main actions.

units adjoin each other and the parties thereto agree to submit their differences to amicable settlement by an appropriate lupon 6.

such other classes of disputes which the President may determine in the interest of justice

7.

Purpose of Barangay Proceedings: Reduce the number of litigations and prevent the deterioration of the quality of justice which has b een brought about by indiscriminate filing of cases in the courts. (Zamora vs Heirs of Izquierdo)

where one of the parties is a juridical entity

Venue of Barangay Conciliation Proceedings: 8.

where accused is under police custody or detention

9.

where the person has otherwise been deprived of personal liberty calling for habeas corpus proceeding

10. where the actions are coupled with provisional remedies such as preliminary injunction, attachment, delivery of personal property, and support pendent lite

S409, LGC

Disputes between persons actually residing in the same barangay shall be brought for amicable settlement before the lupon of said barangay

Those involving actual residents of different barangays within the same city or munipality shall be brought in the barangay

17


where the respondent or any of the respondents actually resides, at the election of the complainant

Rules on execution of judgment in Barangay Proceedings:

All disputes involving real property or any interest therein shall be brought in the

S417, LGC

barangay where the real property or the

The amicable settlement or arbitration award may

larger portion thereof is situated

be enforced by execution by the lupon within 6 months from the date of the settlement. After the

Those arising at the workplace where the

lapse of such time, the settlement may be enforced

contending parties are employed or at the

by action in the appropriate city or municipal court.

institution where such parties are enrolled for study, shall be brought in the barangay where such workplace or institution is located

Rules on appearance before Barangay Proceedings: S415, LGC

Remedies of the parties in case of failure of amicable settlement before the lupon: 1.

File the case before the proper court

2.

Repudiate the agreement (S418, LGC)

3.

File a petition before the MTC to nullify the agreement (basis?)

In all katarungang pambarangay proceedings, the parties must appear in person without the assistan ce of counsel or representative, except for minors and incompetents who may be assisted by their next of kin who are not lawyers.

Remedy in case of failure to c omply with Barangay Conciliation: As defendant, file a motion to dismiss under R16 S1j on the ground that a condition precedent has not

Effect of Amicable Settlement and Arbitration

been complied with.

Award: S416, LGC The amicable settlement and arbitration award shall have the force and effect of a final judgment of a court upon the expiration of 10 da ys from the date thereof, unless repudiation of the settlement has

Motion to dismiss was granted, remedy of plaintiff? Re file the case with the certification of having undergone Barangay conciliation proceedings, as the dismissal is without prejudice.

been made or a petition to nullify the award has been filed before the proper city or municipal court.

Motion to dismiss was denied, remedy of However, this provision shall not apply to court

defendant?

cases settled by the lupon under last paragraph of S408 of this Code, in which case the compromise

R16 S4 states that if the motion is denied, movant

settlement agreed upon by the parties before the

shall file his answer within the balance of the period

lupon shall be submitted to the court and upon

granted by Rule 11 to which he was entitled at the

approval thereof, have the force and effect of a

time of serving his motion, but not less than 5 days

judgment of said court.

in any event, computed from his receipt of the

18


notice of the denial. Proceed with the trial, and

(importance of knowing BP129 as amended by

when the decision is adverse, file an appeal raising

RA7691 Rules on Jurisdiction)

as error the ground for denial of the motion to dismiss. When the denial is tainted with grave abuse of discretion amounting to lack or excess of jurisdiction, file petition for certiorari under Rule 65.

** In between Barangay conciliation and filing of complaint, if real property is i nvolved, plaintiff can file adverse claim over the property, or can file

Granted- Refile Denied- State R16 S4 (yung BUONG SAGOT na Gusto ni Boss Atty Tan)

Summary Procedure: Cases covered:

notice of lis pendens

1.

Notice of Lis Pendens -

“buyer beware”

-

Notice to buyer of existence of an adverse claim o

It is not a pleading

o

There is need to register it with the

All cases of FE and UD, irrespective of the amount of damages or unpaid rentals sought to be recovered. Where AF are awarded, the same shall not exceed 20k

2.

All other civil cases, except probate proceedings, where the total amount of the plaintiff’s claim does not exceed 100k OMM

register of deeds

or 200k MM exclusive of interests and costs (as amended by AM 2-11-9-SC)

II.

COMPLAINT

3.

Civil cases not higher than 100k- Subject to the Rule on Small Claims

Complaint (R6 S3) The complaint is the ple ading alleging the plaintiff’s cause or causes of action.

GENERAL RULE on Summary Procedure: No Motion to Dismiss is allowed (Prohibited Pleading)

Undergone Barangay Conciliation Proceedings NOTE: If the case undergone Barangay conciliation

EXCEPT: 1.

Lack of jurisdiction over the subject matter of the claim

proceedings first, there must be a specific allegation in the complaint that there is compliance with Barangay Conciliation proceedings

2.

Lack of jurisdiction over the person of the defendant

Pag wala, patay (?)- M2D S1j OR amend the complaint (?)

3.

Failure to comply with Barangay Conciliation Proceedings

Jurisdiction HOWEVER, with respect to SMALL CLAIMS CASES, IF, court has no jurisdiction, M2D R16 S1b ABSOLUTE RULE: motion to dismiss is not allowed

19


Reason: defeats the purpose of Small Claims

1.

The parties have validly agreed in writing

Proceedings

2.

The agreement in writing was made before the filing of the action

3.

-

Exclusive venue is stipulated

Venue

Atty Tan’s comment:

Can be subject to stipulation of the parties

Rule 4 of the Rules of Court did not provide for MAY, but SHALL

State: Rules on venue Suppose, Real property is subject of dispute (real R4 S1 Actions affecting title to or possession of real property or interest therein shall be commenced and tried in the proper court which has jurisdiction over the area wherein the real property involved or a portion thereof is situated. Forcible entry and unlawful detainer actions shall be commenced and tried in the MTC of the municipality or city wherein the real property involved or a portion thereof is situated. R4 S2

action). A lives in Pasay, B lives in Manila, the real property is located in Davao. Following Rule 4 S1, the suit should be filed in Davao, being the place where the property or portion thereof is situated. However, the parties can exclusively agree that the venue can be filed in Baguio, provided that the requisites of R4 S4 as to exclusivity of venue are complied with So, it means that Rule 4 S1 can be the subject of agreement, and that the suit can be filed somewhere else other than what S1 provides? (Parang ok lang sana kung concern e personal action under R4 S2can be subject of agreement, pero venue of REAL

All other actions may be co mmenced and tried

ACTION CAN BE SUBJECT OF AGREEMENT?! Labo

where the plaintiff or any of the principal plaintiffs

ata...)

resides, where the defendant or any of the defendants resides, or in case of a non resident

Seems there is a loophole in Rule 4

defendant he may be found at the election of the plaintiff. R4 S3 If any of the defendants does not reside and is not found in the Philippines, and the action a ffects the

If the venue is permissive, Then the venue is in addition to the rules on venue

personal status of the plaintiff or any property of said defendant located in the Philippines, the action may be commenced and tried in the court of the

Action was filed in the wrong venue:

place where the plaintiff resides, or where the property or any portion thereof is situated or found

I will file motion to dismiss under R16 S1c on the ground that the venue is improperly laid

EXCLUSIVITY OF VENUE - NOTE: Rule 4 SHALL NOT APPLY... if

The motion was granted (court issues not a judgment but an ORDER). Counsel for plaintiff.

R4 S4

Remedy?

20


I will refile the case in the court of the proper venue,

Plaintiff includes:

because the order of dismissal is without prejudice (R16).

-

Counter counterclaimant

-

Counter cross claimant

EXCEPT: if there exists grave a buse of discretion amounting to lack or excess of jurisdiction, Certiorari

Defendant includes:

Rule 65 is the proper remedy

-

Defendant in counter counterclaim

-

Defendant in counter cross claim

-

An unwilling co plaintiff or one who should

Motion to dismiss was denied. Remedy for

be joined as plaintiff but refuses to give

defendant?

consent thereto (R3 S10) -

Rule 16 S4

A person necessary to a complete determination or settlement of the questions involved therein

File an answer within the balance of the period prescribed by Rule 11 to which he was entitled at the

Plaintiff

time of serving his motion but not less than 5 days in any event, computed from his receiving of notice of

A person having an interest in the matter of

denial.

the action or in obtaining the relief

Then, go to trial.

When the decision is

adverse, file an appeal raising as error the denial of

demanded

the motion to dismiss. If the denial of the motion is tainted with grave abuse of discretion amounting to lack or excess of jurisdiction, file petition

Defendant

for

A person claiming an interest in the

certiorari under Rule 65.

controversy or the subject thereof adverse to the plaintiff

Motion to dismiss on the ground of impr oper venue IS A PROHIBITED PLEADING under the Rules on

rd

Summary Procedure, and more so in Small Claims Remedy: raise the ground as an affirmative defense

3 party plaintiff A defending party who may with leave of court file against a third person not party to rd

th

the action called the 3 4 etc party defendant a claim for contribution, indemnity, subrogation, or any other relief

Parties

in respect of his opponent’s claim (R6 S11)

(R3 S1) Only natural or juridical persons, or entities

Cross Claimant

authorized by law may be parties in a civil action. The term plaintiff may refer to the claiming party,

A party to an original action who has a claim

the counterclaimant, cross claimant, or the 3 4 etc

against a co party arising out of the

party plaintiff. The term defendant may refer to the

transaction or occurrence that is the subject

original defending party, the defendant in the

matter either of the original action or of a

rd

rd

th

counterclaim, the cross defendant, or the 3 4th etc

counterclaim therein (R6 S8)

party defendant.

21


Real Party In Interest A real party in interest is the pa rty who

Representative party R3 S3

stands to be benefited or injured by the judgment in the suit, or the party entitled to

Party acting in a fiduciary capacity. The beneficiary

the avails of the suit. Unless otherwise

shall be included in the title of the case and shall be

provided by law or these rules, every action

deemed to be the real party in interest. It may be:

must be prosecuted or defended in the name of the real party in interest(R3 S2)

Indispensable Party

-

Trustee of an express trust

-

Guardian

-

Executor

-

Administrator

-

A party authorized by law or these rules o

(agent acting in his own name and

An indispensable party is a party in interest

for the benefit of an undisclosed

without whom no final determination can

principal may sue or be sued

be had of an action who shall be joined

without joining the principal

either as plaintiff or defendant (R3 S7)

except when the contract involves things belonging to the principal)

Necessary Party A necessary party is a party who is no t

Pro Forma Party

indispensable but who ought to be joined as

Parties who are required to be joined as co parties in

a party if complete relief is to be accorded

suits by or against another party a s may be provided

as to those already parties, or for a

by the applicable substantive law or procedural rule

complete determination or settlement of the claim subject of the action (R3 S8)

EXAMPLE: Spouses- husband and wife shall sue or be sued jointly, except as provided by law (R3 S4)

Who is a proper party? Quasi Party A proper Party is the same as a necessary party, a party who is not indispensable but who is ought to

Parties in whose behalf a class or representative suit

be joined as a party if complete relief is to be

is brought

accorded as to those already parties, or for a complete determination or settlement of the claim subject of the action (R3 S8) Party those presence is necessary to adjudicate the whole controversy, but those whose interests are so far separable that final decree can be made in their absence without affecting them (Quisumbing vs CA

Not a real party in interest: Remedy? MOTION TO DISMISS on the ground of failure to state cause of action Granted- refile

GR 93335 9/13/1990) Denied:

22


I will file an answer within the balance of the period

Non joinder/Misjoinder of parties- not a ground f or

prescribed by Rule 11 to which i am entitled at the

motion to dismiss

time of serving my motion, but not less than 5 days in any event, computed from my receipt of notice of denial. Then, proceed with the trial. In case of adverse decision I will appeal the judgment and assign as error the denial of t he motion to dismiss.

IF so, remedy: Amendment of the pleading (Rule 3 in relation to Rule 10

However, if the denial is tainted with G AD amounting to lack or excess of jurisdiction, then I will

Cause of Action

file petition for certiorari under Rule 65.

Act or omission by which a party violates a right of another (R2 S2)

JOINDER OF PARTIES Requisites: What are the elements of a cause of action? 1.

Right to relief arises out of the same transaction or series of transactions

2.

1.

Plaintiff exercises a legal right

2.

Correlative obligation the part of defendant to respect plaintiff’s legal right

Jurisdiction over plaintiffs and defendants can be obtained

3.

Defendant violates plaintiff’s legal right in a

manner contrary to law, morals, good 3.

all plaintiffs or defendants 4.

customs, public order, public policy

There is question of law or fact comm on to

Such joinder is not otherwise proscribed by

*STATE ALL CAUSES OF ACTION in the PLEADING! IF NOT, remedy:

the provisions of the rules on jurisdiction and venue

M2D R16 S1g- failure to state cause of action

R3 S6

GRANTED: refile; amend pleading

All persons in whom or against whom any right to

Denied:

relief in respect to or arising out of the same or series of transactions is alleged to exist, either jointly, severally, or in the alternative, may, except as otherwise provided in these rules, join a s plaintiffs or be joined as defendants in one complaint, where any question of law or fact common to all such plaintiffs or to all such defendants may arise in the action; but the court may make such orders as may

I will file an answer within the balance of the period prescribed by Rule 11 to which i am entitled at the time of serving my motion, but not less than 5 days in any event, computed from my receipt of notice of denial. Then, proceed with the trial. In case of adverse decision I will appeal the judgment and assign as error the denial of the motion to dismiss.

be just to prevent any plaintiff or defendant from

However, if the denial is tainted with GAD

being embarrassed or put to expense in connection

amounting to lack or excess of jurisdiction, then I will

with any proceedings in which he may have no

file petition for certiorari under Rule 65.

interest.

23


Joinder of Causes of Action (R2 S5) A party may in one pleading assert, in the alternative

If you are counsel for plaintiff, and the causes of

or otherwise, as many causes of action as he may

action are not joined, remedy?

have against an opposing party, subject to the following conditions:

File a motion to amend the complaint (as a matter or right before a responsive pleading is filed, or with

A.

B.

That the party joining the causes of action

leave of court after a responsive pleading is filed if

shall comply with the rules on joinder of

the amendment is substantial —Here, di ko alam

parties

kung substantial to...) – R10 S2 and 3

The joinder shall not include special civil actions and actions governed by Special Rules

Splitting a Single Cause of Action: It is the act of dividing or indivisible cause of

Special Civil Actions: 1.

Interpleader (R62)

2.

Declaratory Relief (R63)

3.

Review of Judgments and Final orders or resolutions of COMELEC, CoA (R64)

action into several causes of actions and bringing several actions thereon

R2 S3

4.

Certiorari, Prohibition, Mandamus (R65)

5.

Quo Warranto (R66)

A party may not institute more than one suit for a

6.

Expropriation (R67)

single cause of action

7.

Foreclosure of Real Estate Mortgage (R68)

8.

Partition (R69)

9.

Forcible Entry and Unlawful Detainer (R70)

R2 S4

10. Contempt (R71) If 2 or more suits are instituted on the basis of the INCLUDES: SPECIAL PROCEEDINGS

same cause of action, the filing of one or a judgment

(SEGTARHHCVJCDC +)

upon the merits in any one is available as a ground

Sum of money + Foreclosure of Mortgage = CANNOT

for dismissal of the others.

BE JOINED! (latter is a special civil action) Hence, sue in alternative / either or

Supposing, the plaintiff split a single cause of action, remedy?

C.

Where the claims pertain to different venues or jurisdictions, the joinder shall be

As defendant, I will file a motion to dismiss on the

allowed in the RTC provided that it falls

ground of litis pendencia or res judicata (R16 S1 e or

within the jurisdiction of said court and the

f)

venue lies therein GRANTED, remedy: APPEAL (dismissal is with D.

Where the claims in all causes of action are principally for recovery of money, the aggregate amount claimed shall be the test

prejudice) DENIED:

of jurisdiction

24


I will file an answer within the balance of the period

statement of a single act of circumstances so far as

prescribed by Rule 11 to which i am entitled at the

can be done with convenience.

time of serving my motion, but not less than 5 days in any event, computed from my receipt of notice of

A paragraph may be referred to by its number in all

denial. Then, proceed with the trial. In case of

succeeding pleadings.

adverse decision I will appeal the judgment and

Headings

assign as error the denial of t he motion to dismiss. However, if the denial is tainted with G AD amounting to lack or excess of jurisdiction, then I will file petition for certiorari under Rule 65.

When 2 or more causes of action are joined, the statement of the first shall be prefaced by the words first cause of action, of the second by second cause of action and so on for the others. When one or more paragraphs in the answer are

PLEADING / PARTS OF A PLEADING

addressed to one of several causes of action in the complaint, they shall be prefaced by the words

Rule 7 S1

answer to the second cause of action or answer to the second cause of action and so on; and when one

The caption sets forth: a.

Name of the court

b.

Title of the action

c.

Docket number if assigned

or more paragraphs are addressed to several causes of action, they shall be prefaced by words to that effect.

Relief

The title of the action indicates the names of the

The pleading shall specify the relief sought, but it

parties.

may add a general prayer for such further or other

They shall be named in the original

complaint or petition. But in subsequent pleadings,

relief as may be deemed just and equitable.

it shall be sufficient if the name of the first party on each side be stated with an appropriate indication when there are other parties.

Date

Their respective

participation in the case shall be indicated.

Every pleading shall be dated

R7 S2

R7 S3

The body of the pleading shall set forth its:

Every pleading must be signed by the party or

counsel representing him stating in either case his 1.

Designation

address which should not be a post office box. The

2.

Allegation of the claims or defenses

signature of counsel constitutes a certification by

3.

Relief prayed for

him that

4.

Date of the pleading

Paragraph

1.

he has read the pleading,

2.

that to the best of his k nowledge, information or belief there is good ground

The allegations in the body of a pleading shall be divided into paragraphs so numbered as to be

to support it, and 3.

that it is not interposed for delay

readily identified each of which shall contain a An unsigned pleading produces no legal effect

25


However, the court may, in its discretion, allow such deficiency to be remedied if it appear that the same was due to mere inadvertence and not intended for delay. 1.

What are the pleadings that need to be verified? Petition for relief from judgment or order

Counsel who deliberately files unsigned

(R38 S3)

pleading 2.

Signs a pleading in violation of these rule,

3.

or alleges scandalous or indecent matter

4.

Petition for review from RTC to CA (R42 S1)

therein,

Petition for review from CTA and q-j

Or fails to promptly report to the court a

agencies to the CA (R43 S5)

change of his address, shall b e subject to

Appeal by certiorari from the CA to SC (R45

appropriate disciplinary action

S4) Petition for annulment of judgment or final orders and resolutions (R47 S4)

R7 S4 Except when otherwise specifically required by law or rule, pleadings need not be under oath, verified, or accompanied by affidavit.

Complaint for injunction (R58 S4) Application for appointment of receiver (R59 S1)

A pleading is verified by an affidavit that Application for support pendent lite (Rule 1.

the affiant has read the pleading

2.

that the allegations therein are true and correct of his personal knowledge or based on authentic records

61 S1) (all initiatory pleadings) Original Complaint

A pleading required to be verified which contains a verification based 1.

on information and belief or

2.

upon knowledge, information and belief

3.

or lacks a proper verification

shall be treated as an unsigned pleading

Permissive Counterclaim Cross Claim rd

th

3 4 etc party complaint Complaint in intervention Petition

Is a jurat a part of a pleading? (all Special Civil Actions) The general rule is that pleadings need not be verified. However, if the law or the Rules require

Interpleader (R62)

that a pleading be verified, verification is done by way of affidavit. In an affidavit, there is a need for

Declaratory Relief and Similar Remedies

jurat to be present. Hence, in a verified pleading, a

(R63)

jurat becomes part of a pleading. Review of Judgments and Final Orders or

26


Writ of Habeas Data (

)

Resolutions of COMELEC, CoA (R64) Change of Name (R103) Petitions for certiorari, prohibition, mandamus (R65)

Clerical Error Act (

)

Quo Warranto (R66)

Cancellation or Correction of Entries in the Civil Registry (R108)

Expropriation (R67) Voluntary Dissolution of Corporations Foreclosure of Real Estate Mortgage (Rule

(Corporation Code

)

68) Judicial Approval of Voluntary Recognition Partition (R69)

of Minor Natural Children (Family Code, )

Forcible Entry and Unlawful Detainer (R70) Constitution of the Family Home (Family Code,

Contempt (R71) (all Special Proceedings)

)

Declaration of Absence and Presumptive

Settlement of Estate of Deceased (R73-90)

Death (R107 in relation to Civil and Family Code

Escheat (R91) Petition for guardianship of minors (AM __ __-__-SC) Petition for guardianship of incompetents

)

Petition for declaration of Nullity and Annulment of Marriage (

)

Petition for legal separation (

)

(R92-97) Petition for custody of minors in relation to

Pleadings not required be verified in the manner

habeas corpus, AM __-__-__-SC)

and form prescribed by S4 of this Rule but the same must be under oath:

Trusteeship (R98) Denial of genuineness and due execution of Petition for Domestic Adoption (Domestic Adoption Act,

actionable document (R8 S8)

) Denial of allegations of usury (R8 S11)

Petition for inter country adoption (Inter Country Adoption Act,

)

Answer to written interrogatories (R25 S2)

Habeas Corpus (R102) Writ of Amparo (

Motion to set aside default order (R9 S3b)

)

Answer to request for admission (R26 S2)

27


The following pleadings or motion with affidavit or

When the answer is based on a n actionable

affidavits of merit:

document (R8 S8)

Motion to postpone for absence of

Answer under the Revised Rules on

evidence (R30 S3)

Summary Procedure

Motion to postpone for illness of a party or

Answer in Small Claims Cases

counsel (R30 S4) Motion for summary judgment or opposition thereto (R35 S1,2,3,5)

If the pleading is not verified, as counsel for Motion for new trial on the ground of fraud, accident, mistake, or excusable negligence or opposition thereto (r37 S2) Petition for relief from judgment or order (R38 S3) Third party claim (R39 S16)

plaintiff, remedy? File for judgment on the pleadings under Rule 34 S1, on the ground of admission of material a llegations of the adverse party’s pleadings. Ground is based on

the fact that an a nswer is filed, but there is no genuine issue because the allegations are deemed admitted. R34 S1

Proof required of a redemptioner (R39 S30) Grounds for judgment on the pleadings: Motion for preliminary attachment (R5 7 S3)

Answer fails to tender an issue Answer admits the material allegations of

Motion for dissolution of preliminary

the adverse party’s pleading

injunction (R58 S6) Application for writ of replevin (R60 S2)

Who can verify a pleading? Claim against estate of a decedent (R86 9) A party need not sign the verification. Motion for new trial on the ground of newly discovered evidence in criminal cases (R121

The following may sign verification:

S4)

Party Party’s repr esentative Party’s Lawyer

Any person who personally knows the truth

Does the answer need to be verified?

of the facts alleged in the pleading As a general rule, answers need not be verified, save for following instances: Answer to allegations of usury in a

How about an authorized representative? Can he

complaint to recover usurious interests (R8

verify?

S11)

Yes, if armed with proper authority from the party (Through SPA?)

28


Forum shopping is an act of malpractice of filing multiple suits in different courts either R7 S5- certification against forum shopping Plaintiff or principal party shall certify under oath in the complaint or other initiatory pleading assisting a claim for relief, or in a sworn certification annexed

simultaneously or successively, involving the same parties, and asking the courts to rule on the same or related causes and/or to grant the same or substantially the same relief

thereto and simultaneously filed therewith, 1.

that he has not theretofore commenced

3 ways of committing forum shopping:

any action or filed any claim involving the

2.

same issues in any court, tribunal or quasi

Filing multiple cases based on the same

judicial agency, and, to the best of his

cause of action and with the same prayer

knowledge, no such other claim or action is

the previous not having been resolved (litis

pending therein

pendencia)

if there is no such other pending action or

Filing multiple cases based on the same

claim, a complete statement of the present

cause of action and with the same prayer,

status thereof

the previous having been resolved with finality (res judicata)

3.

if he should thereafter learn that the same or similar action or claim is filed or is

Filing multiple cases based on same causes

pending, he shall report that fact within 5

of action but with different prayers

days therefrom to the court where his

(splitting cause of action on the ground of

aforesaid complaint or initiatory ple ading

litis pendencia or res judicata)

has been filed Failure to comply with the foregoing requirements shall not be curable by mere amendment of the

Pleadings requiring certification against forum

complaint or pleading but shall be cause for

shopping:

dismissal of the case without prejudice, unless otherwise provided, upon motion and after hearing.

Initiatory Pleadings Original complaint

Submission of a false certification or non compliance

Permissive counterclaim

with any of the undertakings therein shall constitute

Cross claim

indirect contempt of court without prejudice to

rd

th

3 4 etc party complaint

corresponding administrative and criminal actions.

Complaint in intervention Petition

If acts of party or counsel clearly constitute wilful and deliberate forum shopping, the same shall be ground for summary dismissal with prejudice, direct contempt, and cause for administrative sanctions.

What is stated in certification against forum shopping:

Forum Shopping:

R7 S5 The plaintiff or principal party shall certify under oath in the complaint or other initiatory pl eading

29


asserting a claim for relief, or in a sworn certification annexed thereto and simultaneously filed therewith:

Willful and deliberate forum shopping 1.

That he has not theretofore commenced any action or filed any claim involving the

If the acts of party or counsel clearly constitute wilful

same issues in any court, tribunal or quasi

and deliberate forum shopping, the same shall be

judicial agency and, to the best of his

ground for summary dismissal with prejudice, direct

knowledge, no such other action or claim is

contempt, and cause for administrative sanctions.

pending therein 2.

If there is such other pending claim or action, a complete statement of the present status thereof

3.

Serves as FINAL ORDER, hence, appeal is the proper remedy if motion to dismiss under R16 S1j is granted

If he should thereafter learn that the same or similar action or claim has been filed or is pending, he shall report that fact within 5

Remedies in case of failure to attach certification

days therefrom to the court wherein his

against forum shopping:

aforeseaid complaint or initiatory pleading has been filed

As counsel for defendant, file motion to dismiss under Rule 16 S1j on the ground that a condition precedent has not been complied with.

States the effects of: (R7 S5) Failure to attach certification against forum shopping Failure to comply with the foregoin g requirements

Motion to dismiss was granted, remedy? As plaintiff, refile the case, o n the ground that the dismissal is without prejudice.

shall not be curable by mere amendment of the complaint or pleading but shall be cause for dismissal of the case without prejudice, unless

If the plaintiff committed wilful and deliberate

otherwise provided, upon motion and after hearing.

forum shopping, and the complaint was dismissed,

Remedy is file motion to dismiss R16 S1j,

remedy?

and if granted, plaintiff’s remedy is to refile

As plaintiff, i will file notice of appeal under Rule 41,

the case with the required certification,

because the dismissal is without prejudice, hence, in

unless if declared by the court as dismissal

the nature of a final order.

with prejudice, hence, remedy is appeal

Define, enumerate, each pleadings: Submission of a falser certification or non compliance of any of the undertakings

Complaint (R6 S3)

therein

The complaint is the pleading alleging the plaintiff’s cause or causes of action.

Submission of a false certification or non compliance of any of the undertakings therein shall constitute

Counterclaim (R6 S6)

indirect contempt of court without prejudice to

Any claim which a defending party may

corresponding administrative and criminal actions

have against an opposing party

30


Compulsory Counterclaim (R6 S7)

Answer (R6 S4)

A counterclaim which being cognizable by

Pleading in which a defending party sets

the regular courts of justice arises out of or

forth his defenses

is connected with the transaction or occurrence constituting the subject matter

Counter counterclaim (R6 S9)

of the opposing party’s claim and does not

A counterclaim that may be a sserted

require for its adjudication the presence of

against an original counterclaimant

third parties of whom the court cannot acquire jurisdiction

Counter crossclaim A cross claim which may be filed against an

Permissive Counterclaim (R6 S7)

original cross claimant

A counterclaim which being cognizable by the regular courts of justice does not arise out of or is connected with the transaction or occurrence constituting the subject matter of the opposing party’s claim and

Counterclaim

may require for its adjudication the Original complaint

presence of third parties of whom the court cannot acquire jurisdiction

A

Cross claim (R6 S8)

vs

B

Counterclaim

Any claim by one party against a co p arty arising out of the transaction or occurrence that is the subject matter either of the original action or of a counterclaim therein

Counter Counter Claim

th

3rd 4 etc party complaint (R6 S11) A claim that a defending party may, with leave of court, file against a person not a rd

th

party to the action, called a 3 4 etc party

Cross Claim A

vs

B

and

C

defendant for contribution, indemnity, subrogation, or any other relief in respect of his opponent’s claim

(Original Complaint) Cross Claim

Complaint in intervention (R19 S1) Pleading filed by an intervenor if he answers a claim against either or all of the

Counter Cross Claim

original parties

Answer in intervention (R19 S3) Filed by intervenor if he unites with the defending party in resisting a claim against

Third Party Complaint A vs B vs C (for CISA)

the latter

31


C is impleaded for CISA

Third party is impleaded

Third party has legal

in the suit for CISA

interest and wants to be impleaded in the suit

Complaint In intervention

Initiatory Pleadings

A vs B

Requires payment of docket fees C (or)

C wants to be impleaded in the action Permissive Counterclaim vs Compulsory Counterclaim (Simplified version) Permissive CC

Compulsory CC

THIRD PARTY

COMPLAINT IN

Does not arise out of or

Arises out of or is

COMPLAINT

INTERVENTION

is connected with the

connected with the

transaction or

transaction or

occurrence that is the


subject matter of the




Not

Rule 6

Rule 19

A claim that a defending

Pleading filed by an

party may, with leave of

intervenor if he answers

court, file against a

a claim against either or

Needs verification and

all of the original parties

certification against

person not a party to the rd

th

action, called a 3 4 etc

forum shopping

party defendant for contribution, indemnity, subrogation, or any other relief in respect of his opponent’s claim

Docket fee is required to

Docket fees are

be paid

suspended

in the matter in

Failure to file answer

not

ligitation, or in the

results in declaration of

success of either of the

default

Intervenor is any person who has a legal interest

parties, or who has an interest against both

may require for its

Does not require for its

parties, or who is so

adjudication the

adjudication the

situated as to be

presence of third parties


adversely affected by the

over whom the court

over whom the court

distribution or other

cannot acquire

cannot acquire

disposition of property

jurisdiction

jurisdiction

Not barred even if not

Barred if not set up in

set up in the action

the action

Initiatory pleading

Not an initiatory

in the custody of the court or of an officer thereof

pleading

32


preservation of rights while the main action is

3PC vs Third party claim

pending

Third Party Complaint

Third Party Claim

Initiated by way of

By way of affidavit

PROVISIONAL REMEDIES -

complaint

Temporary, auxiliary, ancillary remedies available to a litigant for the protection and

Filed before the court

Filed before the sheriff

For CISA

Terceria

Pleading

Affidavit

Docket fees are required

Not

to be paid

Lis Pendens vs Litis Pendencia

Lis Pendens

Litis Pendencia

“buyer beware”

Filing multiple suits in

preservation of his rights while the main action is pending The following are the provisional remedies: 1.

Preliminary Attachment (Rule 57)

2.

Preliminary Injunction (Rule 58)

3.

Receivership (Rule 59)

4.

Replevin (Rule 60)

5.

Support Pendente Lite (Rule 61)

NOTE: Not Exclusive! Protection orders Provisional orders

different courts involving same parties, same Notice to buyer of existence of an adverse claim

Production orders

causes of action, same facts, same relief, the

Witness protection orders

identity of the 2 cases such that any judgment that may be rendered in

See: RA 9262, Rules on Nullity/Annulment

one case, regardless of

of Marriage/Legal Separation, Petition for

which party is successful,

Custody of Minors, Writ of Amparo, Writ of

would amount to res

Habeas Data

judicata in the other case Notice

NOTE ALSO: Injunction and replevin can be main actions

A ground for motion to

in themselves

dismiss under Rule 16

PROVISIONAL REMEDIES Simultaneous or after filing of the original complaint/pleading asserting a claim,

A.

Preliminary Attachment (Rule 57)

When filed? (R57 S1)

PROVISIONAL REMEDIES may be availed of,

At the commencement of the action or at any time

ancillary to the main action for protection and

before entry of judgment, a plaintiff or any proper party may have the property of the adverse party

33


attached as security for the satisfaction of judgment

f.

In an action against a party who does not

that may be recovered in the following cases (See

reside and is not found in the Phils , or on

grounds)

whom

summons

may

be

served

by

publication

Grounds

for

preliminary

attachment

(NOTE:

Requirements: (Rule 57 S3)

TINATANONG SA BAR!) 1.

By way of motion or by way of complaint

2.

Verified

Rule 57 S1

a.

In an action for recovery of a specified

through

Affidavit

attached to motion or complaint

amount of money or damages, other than moral and exemplary, on a cause of action arising from law, contract, quasi contract, delict or quasi delict against a party who is

about to depart from the Phils with intent to defraud his creditors b.

application

-

Stating the grounds

-

That there is no sufficient security

3.

Allegation of the ground necessitating the need for preliminary attachment

In an action for money or property

4.

embezzled or fraudulently misapplied or

Posting of bond in an amount to be determined by the court

converted to his own use by a public officer, or an officer of a corporation , or an attorney, factor, broker, agent, or clerk, in the course of his employment as such, or by

How is attachment applied for?

any other person in a fiduciary capacity , or for a wilful violation of duty c.

In an action to recover the possession of

By way of motion? Or by way of complaint? EITHER

property unjustly or fraudulently taken, detained, or converted, when the property, or any part thereof, has been concealed,

removed, or disposed of to prevent its being found or taken by the applicant or an

HOW? At the commencement of the complaint

authorized person d.

In an action against a party who has been

-

By verified complaint

At any time before judgment

guilty of fraud in contracting the debt or -

incurring the obligation upon which the

By verified motion

action is brought , or in the performance thereof Cany you apply for writ of attachment before the

e.

In an action against a party who has

MTC?

removed or disposed of his property , or is about to do so with intent to defraud his creditors

YES. In all instances?

34


YES. Because under Summary Procedure, not a

-

That the writ was improperly or irregularly issued or enforced

prohibited pleading -

That the bond is insufficient

FE/UD- No If the attachment is excessive, the discharge shall be Amount 200k MM- yes

limited to the excess

100k- no Ordinary Civil Actions- yes

Order of denial of motion to quash: -

INTERLOCUTORY, hence,

When is it necessary to issue summons?

o

M4R R65 S4

o

Certiorari R65 S1, R41 S1b

In case of implementation of the preliminary rd

attachment (3 stage) Purpose of the bond: -

Stages:

adverse party in case writ of attachment is

-

Publication

-

Order/Execution o

-

To answer for damages incurred by the

BOTH ARE EX PARTE

Implementation o

With Summons

How attached? -

Garnishment

-

Levy on attachment o

improperly or irregularly enforced

Annotated on back of title, warning on subsequent buyer subject to outcome of the case

Remedy in case of issuance of writ of attachment:

Writ of Preliminary Attachment Covers real or personal property At the commencement of the action or at any time before entry of judgment Amount of the bond is the value of the obligation (fixed by the court) May be resorted to even if property is in the possession of a third person

Writ of Replevin Covers only personal property Commencement of the action or at any time before answer Amount of the bond is double the amount of the personal property Can be sought only when defendant is in actual possession of the property

R57 S12 and S13

B.

Preliminary Injunction (Rule 58)

S12- Motion to discharge attachment upon giving of counterbond S13- Motion to quash the writ of attachment on the ff grounds:

Injunction -

Judicial

writ,

process,

or

proceeding

whereby a party is ordered to do or refrain from doing a particular act

35


complained

Preliminary Injunction

of,

or

in

requiring

the

performance of an act or acts, either for a -

An order granted at any stage of an action

limited period or perpetually

or proceeding prior to the judgment requiring a party or a court, agency, or a

b.

person to refrain a particular act or acts

performance of the act or acts complained of during the litigation would probably work

Preliminary Mandatory Injunction -

That the commission, continuance, or non

injustice to the applicant, or

An order requiring the performance of a c.

particular act or acts

That a party, court, agency, or a person is doing, threatening, or is attempting to do, or is procuring or suffering to be done, some act or acts probably in violation of the

Denial- interlocutory -

rights of the applicant respecting the subject of the action or proceeding, and

Remedy: certiorari

tending to render the judgment ineffectual If FJ- appeal

Irreparable damage and injury Can preliminary injunction be issued ex parte? -

Of such constant and frequent recurrence

NO (?). TRO- yes

that no fair or reasonable redress can be had therefore in court of law or where there is no standard by which their amount

Writ of preliminary injunction A writ granted at any stage of action or proceeding prior to the judgment or final order, requiring a party or a court, agency or person from a particular act or acts. It may also require performance of a particular act or acts, in which case it shall be known as a preliminary mandatory injunction

can be measured with reasonable accuracy

TRO An order to restrain particular act or acts of a party for a limited period of time

How do you avail? By way of MOTION or by way of VERIFIED COMPLAINT IF by verified complaint, at the commencement of the

action

or

before

entry

of

judgment,

INCORPORATED IN THE BODY OF THE COMPLAINT If by motion, then by an application for relief complying with the Rules on Motion: 1.

GROUNDS for preliminary injunction (R58 S3):

In writing, [except those made upon in open court or in the course of a hearing or trial ] (R15 S2)

a.

That the applicant is entitled to the relief demanded, and the whole or part of such

2.

Must be verified and accompanied by an

relief consists in restraining the commission

affidavit of merit if the ground for the

or

motion is FAME

continuance

of

the

act

or

acts

36


copy of the notice given by the postmaster to the 3.

Shall state the following (R15 S3)

addressee. 8.

If the motion is not s erved to the other

a.

Relief sought to be obtained

b.

Grounds upon which it is based

party by personal service, such mode

and

resorted to must be accompanied by a

If required by these Rules or

written explanation why the service or filing

necessary to prove facts alleged

was not done personally. A violation of this

therein, shall be supported by

Rule may be cause to consider the paper as

supporting affidavits and other

not filed (R13 S11)

c.

papers 4.

5.

Motion is set for hearing by applicant (R15

Effect of failure to comply with Sections, 4, 5, 6 of

S4)

Rule 15?

Notice of hearing addressed to all parties

1.

concerned, specifying the time and date of

piece of paper which the clerk of court has

hearing which must not be later than 10

no right to receive and the court has no

days after the filing of the motion (R15 S5)

authority to act upon (mere scrap of paper) 2.

6.

It does not interrupt the running of the

Motion and notice of hearing must be

prescriptive/reglementary period for the

served at least 3 days before the date of

filing of the requisite pleading

hearing (3 day notice rule) 7.

*the motion shall be treated as a worthless

3.

It will be ground for denial of the motion

4.

The motion shall be considered as not filed

Proof of service of the motion

R13 S13

HOW?

Proof of personal service shall consist of: -

Written admission of party served or

-

Official return of the server or

-

Affidavit of the party serving containing a

At the commencement of the complaint -


At any time before judgment

full statement of the date, place, and manner of service

-

By verified motion

If by service is by ordinary mail, proof thereof shall consist of an affidavit of the person mailing of facts showing compliance with S7 of this Rule. If service is by registered mail, proof shall be made

Status Quo Order -

Order issued by the court to maintain the

by such affidavit and registry receipt issued by the

last,

peaceable,

actual,

uncontested

mailing office

condition of the parties before the action or proceeding

The registry return card shall be filed i mmediately upon its receipt by the sender, or in lieu thereof, the unclaimed letter together with the certified or sworn

37


TRO- order restraining particular act or acts of a

original

seventy-two

hours

provided

herein.

party for a limited period of time; can be issued ex In the event that the application for preliminary

parte

injunction is denied or not resolved within the said (RULE 58- AM 7-7-12)

period, the temporary restraining order is deemed automatically vacated. The effectivity of a temporary

Sec. 5. Preliminary injunction not granted without notice; exception. No preliminary injunction shall be granted without hearing and prior notice to the

party or persons sought to be enjoined . If it shall appear from facts shown by affidavits or by the verified application that great or irreparable injury would result to the applicant before the matter can be heard on notice, the court to which the

application for preliminary injunction was made, may issue ex parte a temporary restraining order to be effective only for a period of twenty (20) days from service on the party or person sought to be enjoined, except as herein provided. Within the twenty-day period, the court must order said party

or person to show cause at a specified time and place, why the injunction should not be gran ted. The court shall also determine, within the same

period, whether or not the preliminary injunction shall be granted, and accordingly issue the corresponding

restraining order is not extendible without need of any judicial declaration to that effect, and no court shall have authority to extend or renew the same on the

same

ground

for

which

it

was

issued.

However, if issued by the Court of Appeals or a member thereof, the temporary restraining order shall be effective for sixty (60) days from service on

the party or person sought to be enjoined. A restraining order issued by the Supreme Court or a member thereof shall be effective until further orders. The

l

trial

court,

the

Court

of

Appeals,

the

Sandiganbyan or the Court of Tax Appeals that issued a writ of preliminary injunction against a lower court, board, officer, or quasi-judicial agency shall decide the main case or petition within six (6)

months from the issuance of the writ.

order.

However, subject to the provisions of the preceding sections, if the matter is of extreme urgency and the applicant will suffer grave injustice and irreparable injury, the executive judge of a multiple-sala court or the presiding judge of a single-sala court may issue

“Lifetime” (R57 S5 in relation to AM 7 -7-12)

-

service on the party or person sought to be

ex parte a temporary restraining order effective for

enjoined.

only seventy-two (72) hours from issuance, but

o

shall immediately comply with the provisions of the

and place why injunction should

and the documents to be served therewith.

not be granted, w/n P injunction

Thereafter, within the aforesaid seventy-two (72)

should be granted, and accordingly

hours, the judge before whom the case is pending

issue the corresponding order

shall conduct a summary hearing to determine

extended until the application for preliminary injunction can be heard. In no case shall the total period of effectivity of the temporary restraining

Court to order said party or person to show cause at a specified time

next preceding section as to service of summons

whether the temporary restraining order shall be

Effective only for a period of 20 DAYS from

-

IF the matter is of EXTREME URGENCY, applicant will suffer grave injustice and irreparable injury, executive judge of multi

order exceed twenty (20) days, including the

38


sala court or presiding judge of single sala

R70 S15

court may issue EX PARTE TRO o

Effective for only 72 HOURS from

Court

issuance,

accordance with the provisions of R58 thereof, to



But

shall

immediately

comply with provisions of the next preceding section as to service of summons and

documents

to

be

served -

may

grant

preliminary

injunction,

in

prevent defendant from committing further acts of dispossession against plaintiff. A possessor deprived of possession through Fe or UD may, within 5 days from filing of complaint, present a motion in the action for FE UD for issuance of writ of preliminary mandatory injunction to restore him

Within the 72 hours, judge to conduct summary hearing to determine whether the TRO can be extended until application for

in his possession. possession. The court shall decide the motion within 30 days from filing thereof R70 S20

preliminary injunction can be heard, o

Total period of effectivity of TRO

Upon motion of plaintiff, within 10 days from

shall

DAYS,

perfection of appeal to the RTC, the latter may issue

including the original 72 hours

a writ of preliminary mandatory injunction to restore

provided therein

plaintiff in possession if the court is satisfied that

NOT

EXCEED

20

CA issues: effective for 60 DAYS from service on the

-

defendant’s appeal is frivolous or dilatory,

or

party or person sought to be enjoined SC or member issues: effective until further orders

that the appeal of plaintiff is prima facie meritorious

AGAIN...

REMEDIES IN CASE OF PRELIMINARY INJUNCTION:

TRO- order restraining acts of a party for a limited

Granted: (Rule 57 S6)

period of time -

quash the writ based on:

1.

upon showing of insufficiency

2.

on other grounds upon affidavits of the

20 days 72 hours (ex parte)- extreme urgency

party or person enjoined

20 days non extendible 3.

if it appears after hearing that although applicant is entitled to the injunction or restraining

Can the court issue injunction ex parte? NO!- requires notice and hearing Can MTC issue TRO?

order,

the

issuance

or

continuance thereof, as a case may be, would cause irreparable damage to the party or person enjoined while applicant can be fully compensated for such damages he may suffer

Ordinary Civil Actions- Pwede Other requirements for quashal of writ: Forcibly Entry / UnlawFul Detainer- YES

39


1.

filing of bond in amount fixed by court conditioned that he will pay all damages which applicant may suffer by the denial or dissolution of the injunction or restraining order

Denied: -

M4R

-

Certiorari Rule 65

Provisional remedy Rule 58 An order granted at any stage of an action or proceeding prior to the judgment requiring a party or a court, agency, or a person to refrain a particular act or acts

Special civil action Rule 65 Petition in case a person exercising J, QJ, Ministerial Function acted without jur or with GAD amounting to lack or excess of jurisdiction, for respondent to desist from further proceedings

Mandatory Injunction Provisional Remedy Rule 58 An order requiring the performance of a particular act or acts

Mandamus Special Civil Action Rule 65 Requires performance of a ministerial act or to desist from excluding another from a right or office (ministerial) Directed against a Judicial or quasi judicial bodies exercising ministerial functions Original action By way of petition

Can there be injunction in criminal cases? YES, in case of preliminary injunction with respect to preliminary investigation (general rule, no, but the enumerations are the exceptions) 1.

When prejudicial to the rights of the accused

2.

When there is need for protecting the

Directed against a party

Constitutional rights of the accused 3.

To Prevent the long arm of the law from being vindictive

4.

Provisional remedy By way of motion

When prejudicial question is involved in the case

5.

In case of criminal prosecution under an

C.

Receivership (Rule 59)

-

Provisional remedy to preserve a property

invalid law subject of litigation from further loss, wastage, Can MTC issue preliminary injunction?

damage,

dissipation

Where applied for?

Case falling under Summary Procedure, if the claim

1.

Court where action is pending

being 100k (Small Claims), EXCEPT:

2.

CA

3.

SC

FE and UD o

the

protection of another person

YES, except in:

-

for

R70-

preliminary

injunction

and

mandatory

Grounds: (R59 S1)

preliminary

prohibitory injunction are allowed

a.

When it appears from the verified application, and such other proof as the court may require, that the

Prohibitory Injunction

Prohibition

party applying for the appointment

40


of receiver has an interest in the

REQUIREMENTS:

property or fund which is the subject

of

the

action

or

1.

Verified motion in a complaint / Verified

proceeding, and that such property

complaint at commencement of action (R59

or fund is in danger of being lost,

S1)

removed, or materially injured unless a receiver be appointed to

2.

Bond by applicant in an amount to be fixed by the court to pay such person against

administer and preserve it

whom application is presented to pay such b.

When it appears in an action by

party all damages he may sustain by reason

the mortgagee for the foreclosure

of the appointment of such receiver in case

of mortgage that the property is in

the applicant shall have procured such

danger

appointment without sufficient cause(R59

of

being

wasted

or

S2)

dissipated or materially injured, and that its value is probably insufficient

to

discharge

the

Oath and Bond by receiver to faithfully

mortgage debt, or that the parties

discharge of his duties in an action or

have so stipulated in the contract

proceeding and obey court orders

of mortgage c.

3.

IF pending appeal,

After judgment, to preserve the

-


property during the pendency of an appeal, or to dispose of it according to the judgment, or to aid execution when execution has

IF after judgment, -

By way of motion

been returned unsatisfied or when

NOTE: Receivership as provisional remedy applies to

judgment obligor refuses to apply

all civil actions, while receivership of corporation is

his property in satisfaction of the

an original action applicable only to corporations

judgment or otherwise to carry the

under the Corporation Code of the Philippines

judgment into effect d.

Whenever in other cases it appears that the appointment of a receiver is the most convenient and feasible means

of

preserving,

administering, or disposing of the

Receivership with appointment of receiver: pwede Receivership with MTC: pwede, except in Small Claims

property in litigation During pendency of appeal, the appellate court may

General powers of receiver:

allow an application for the appointment of a receiver to be filed in and decided by the court of origin and the receiver appointed to be subject to the control of said court.

R59 S6 Subject to the control of the court in which the action or proceeding is pending, a receiver shall have the power to

41


1.

Bring and defend, in such capacity, actions

2.

in his own name

direct the delivery of the funds and other property in his possession to the person adjudged to be entitled to receive them,

2.

Take and keep possession of the property in controversy

3.

and order the discharge of the receiver from further duty as such

3.

To receive rents The court shall allow the receiver such reasonable

4.

5.

To collect debts due to himself, as receiver

compensation as the circumstances of the case

or to the fund, property, estate, person,

warrant, to be taxed as costs against the defeated

corporation to which he is the receiver

party, or apportioned, as justice requires.

To compound for and compromise the same

D. REPLEVIN (Rule 60)

6.

To make transfers

-

7.

To pay outstanding debts

8.

To divide the money and other property

A provisional remedy for recovery of personal

/

reacquisition

of

personal property subject of litigation

that shall remain among the persons legally entitled to receive the same 9.

property

Can be a provisional remedy or a main action -

If a main action, then it is an action for recovery of unlawfully withheld personal property in the possession of another

To do such acts respecting the property as the court may authorize

Jurisdiction/Venue:

However, funds in the hands of a receiver may be

RTC or MTC (300k-400k OMM MM higher lower)

invested only by order of the court upon the written consent of all the parties to the action. No action may be filed by or against a receiver

REQUIREMENTS: (R60 S2)

without leave of the court which a ppointed him 1.

Verified Application (by affidavit)/complaint before service of answer

Termination

of

receivership;

compensation

of

Facts:

receiver a.

That applicant is the owner of the property claimed, particularly describing it, or is

R59 S8

entitled to the possession thereof Whenever the court, motu proprio or on motion of either party, shall determine that the necessity for

b.

That the property is wrongfully detained by

receiver no longer exists, it shall, after due notice to

adverse party, alleging cause of detention

all interested parties and hearing,

thereof according to the best of his

1.

settle the accounts of the receiver,

knowledge, information, and belief

42


c.

That the property has not been distrained

-

Nullity of marriage

or taken for a tax assessment or a fine

-

Annulment of marriage

pursuant to law, or seized under a writ of

-

Legal separation

execution or preliminary attachment, or

-

Custody of minors in relation to habeas

otherwise placed under custodia legis, or if

corpus

so seized, that it is exempt from such

-

Criminal cases:

seizure or custody d.

o

Rape

o

RA9262

The actual market value of the property S1- Application

2.

Posting of bond by applicant in double the value of the property stated in the affidavit mentioned, for return of the property to

At -

adverse party if such return be adjudged, and for payment to adverse party of such

the commencement of the proper action or proceeding,

-

sum as he may recover from the applicant

or at any time prior to the judgment or final order,

in the action

o

a verified application for support pendentee lite may be filed by any party 

Denied, REMEDY:

stating the grounds for the claim and the financial conditions of both parties,

Counterbond double the amount of property

and 

commenced by affidavits, depositions,

E.

SUPPORT PENDENTE LITE (Rule 61)

-

Amount of support provisionally fixed by

or

other

authentic documents in support thereof

the court in favour of the person or persons entitled thereto during the pendency of an action for support

S2- Comment A copy of the application and all supporting

IMMEDIATELY EXECUTORY!

documents Where filed? FAMILY COURT Why not in MTC?

o

Because action for support is

incapable of pecuniary estimation (Exception:

shall be served upon adverse party,

Criminal

cases

falling

who shall have 5 days to comment thereon 

unless a different period is fixed by the court upon

under

jurisdiction?) When available?

MTC

his motion. The comment shall be verified and shall be accompanied by affidavits, depositions, or other authentic documents in support thereof.

-

Action for support

-

Relief sought is support for applicant

43


S3- Hearing

S5- enforcement of order

1.

After the comment is filed, or

If the adverse party fails to comply with an order

2.

after the expiration of the period for its

granting support pendente lite, the court shall, motu

filing,

proprio or upon motion,

a.

the application shall be set for hearing not more than 3 days

-

issue an order of execution against him, o

thereafter

without prejudice to his liability for contempt.

The facts in issue shall be proved in the same When the person ordered to give support pendente

manner as if proved for evidence on motions.

lite refuses or fails to do so, S4- Order

any third person who furnished that support to the applicant may, after due notice and hearing in the same case,

The court shall determine provisionally 1.

o

obtain a writ of execution to enforce his right of reimbursement

the pertinent facts, and

against the person ordered to provide such support.

shall render such order as justice and equity may require, -

having due regard to the probable outcome and such other circumstances as may aid in the proper resolution of the question

S6- Support in criminal cases In criminal cases

involved. 1. If the application is granted, -

the offspring as a consequence of the crime 2.

the court shall fix o

filing, a.

or such other forms of support as

the child born to the offended

taking into account the necessities

of

party allegedly because of the

the

crime.

applicant and the  

the accused may be ordered to provide support pendente lite to

should be provided, 

and civil aspect thereof has not been waived, reserved, or instituted prior to its

the amount of money to be provisionally paid,

o

where the civil liability includes support for

resources or means of the

The application therefore may be filed successively

adverse party, and

by the

terms

of

payment

or

mode for providing the

-

offending party,

support.

-

her parents,

-

grandparents,

If the application is denied, the principal case shall

-

or guardian

be tried and decided as early as possible.

-

and the state in the corresponding criminal case during its pendency,

44


in accordance with the procedure

o

-

established in this Rule.

S7- Restitution When the judgment or final order of the court finds

-

that the person who has been providing support

complaint Interpleader (62) Foreclosure of mortgage (68) Forcible entry / UD (70) Partition (69) Expropriation (67)

pendente lite is not liable therefor, -

-

-

it shall order the recipient thereof to return to the former the amounts already paid with legal interest from the dates of actual

1.

Interpleader (62)

2.

Declaratory

without prejudice to the right of

o

Relief

and

other

similar

final

orders,

remediesv (63)

payment, 3.

in a separate action from the person legally obliged to give the support. Should recipient fail to reimburse said amounts, the person who provided the same may

Review

of

judgments,

resolutions of CoA, COMELEC (64)

recipient to obtain reimbursement

-

-

petition declaratory relief (62) review of adjudication of comelec, coa (64) c, m, p (65) qw (66) contempt (71)

4.

Certiorari, Prohibition, Mandamus (65)

5.

Quo Warranto (66)

6.

Expropriation (67)

7.

Foreclosure of Real Estate Mortgage (68)

8.

Partition (69)

9.

Forcible Entry/Unlawful Detainer (70)

10. Contempt (71)

likewise o

seek reimbursement thereof in a

Governed by Special Rules, Rules on ordinary civil

separate action from the person

actions apply in a suppletory manner (OR is it the

legally

other way? R1 states governed by rules on ordinary

obliged

to

give

such

civil actions, subject to specific rules prescribed in a

support.

special civil action) Examples: Failure of action for support pendente lite, REMEDY: VENUE -

move for motion for execution MOTION TO DISMISS

DENIED, DEMURRER TO EVIDENCE -

file petition for indirect contempt, for disobedience to lawful order of the court

PARTS OF A PLEADING

INTERPLEADER (Rule 62)

SPECIAL CIVIL ACTIONS (discussed in this stage because initiatory pleadings are filed, by complaint or by petition, as the case

-

Initiated by way of complaint

may be) S1- When proper

SCA initiated by

SCA initiated by

45


-

Whenever

issue an order requiring the conflicting claimants to interplead with one another.

-

conflicting claims upon the same subject matter o

If the interests of justice so require, are or may be made against a -

person who claims no interest

the court may direct in such order o

whatever in the subject matter or o

that the subject matter be paid or delivered to the court.

an interest in which in whole or in part is not disputed by claimants, 

he may bring an action against

conflicting

S3- Summons

litigants to compel them to interplead and litigate

Summons shall be served upon the conflicting

their

claimants, together with a copy of the complaint and

several

claims

among themselves

order.

NOTE: Person in possession has no legal interest S4- Motion to dismiss

Interpleader Rule 61 Without leave of court Original / Special Civil action Filed by complaint for interpleader

At any time

Intervention Rule 19 With leave of court Ancillary to main action

Within the time for filing an answer, each claimant may -

file motion to dismiss on the ground of impropriety of the interpleader action or

If for plaintiff- complaint in intervention

-

If for defendant- answer in intervention Before judgment

The period to file the answer shall be tolled and

on other appropriate grounds specified in Rule 16.

if the motion is denied, the movant may file his answer within the remaining period, which shall not be less than 5 days in any event, reckoned

JURISDICTION:

from the notice of denial. (See Rule 16 S4)

RTC or MTC 20-50 real 300-400 personal higher lower VENUE: Real- R4 S1

S5- Answer and other pleadings Each claimant shall file his answer setting forth his claim within 15 days from service of the summons upon him,

Personal- R4 S2 -

serving a copy thereof upon each of the other conflicting claimants, o

S2- Order Upon filing of the complaint, the court shall

who may file their reply thereto as provided in these Rules.

If any claimant fails to plead within the time therein fixed, the court may, on motion,

46


-

declare him in default and

OTHER SIMILAR REMEDIES CONTEMPLATED which

-

thereafter render judgment barring him

applies the provisions of this Rule:

from any claim in respect to the subject -

matter. The parties in an interpleader action may file

reformation of an instrument

NOTE: INSTRUMENT, not the elements of the

counterclaims, cross claims, 3 party complaints and

instrument—if such, e subject of another proceeding

responsive pleading thereto, as provided in these

to, annulment of contract

rd

Rules.

-

quiet title to real property or remove clouds therefrom

S6- Determination

-

consolidate ownership

After the pleadings of the conflicting claimants have

In case of pacto de retro sale or foreclosure of

been filed, and pre trial has been conducted in

mortgage, not necessarily owner agad, hence, file for

accordance with these Rules,

consolidation of ownership under this Rule

-

the court shall proceed to determine their respective

rights

and

adjudicate

(EXCLUSIVE) hence, if not, then not subject here

their

several claims.

NOTE: DECLARATORY RELIEF is the only civil action (special vis a vis ordinary) that can be filed even before breach or violation thereof

In case of adverse Resolution,

JURISDICTION/VENUE:

Appeal pursuant to R40-42

Declaratory Relief: -

DECLARATORY RELIEF AND OTHER SIMILAR

RTC- incapable of pecuniary estimation

Queting of title:

REMEDIES (R63) -

MTC or RTC 20-50 OMM MM lower higher

Objective: (R63 S1) Consolidation of ownership: Interpretation/Construction of: o

deed,

o

will,

o

contract, or

o

other written instrument, or


Reformation of contracts: -


determining validity of: Can the SC entertain petition for declaratory relief?

o

statute,

o

executive order,

NO.

o

regulation,

pecuniary estimation

o

ordinance, or

o

any other governmental regulation

BP129- RTC EO Jur, actions incapable of

47


REVIEW OF JUDGMENTS AND FINAL ORDERS OR

Requirements:

RESOLUTIONS OF THE COMELEC AND COMMISSION S2- Parties

ON AUDIT (Rule 64 [but applying Rule 65])

All persons who have or claim any interest which

Constitutional Basis:

would be affected by the declaration shall be made parties, and -

A9A S7 (basis of Rule 64)

no declaration shall, except as provided in

Each Commission shall decide by majority of all its

these Rules,

Members in any case or matter brought before it

o

prejudice the rights of persons not

within 60 days from date of its submission for

parties to the action.

decision or resolution. A case or matter is deemed submitted for decision or resolution upon the filing

S3- Notice on Sol Gen

of the last pleading, brief, or memorandum required

In any action which involves validity of

by the rules of the Commission or by the Commission itself.

Unless otherwise provided by

-

statute,

this Constitution or by law, any decision, order, or

-

EO, or

ruling of each Commission may be brought to the SC

-

regulation, or

on certiorari by the aggrieved party within 30 days

-

any other governmental regulation,

from receipt of a copy thereof.

o

The Sol Gen shall be notified by the party assailing the same and 

COVERAGE: (R64 S1)

shall be entitled to be

Judgments, final orders, resolutions of COMELEC,

heard upon such question

CoA

S4- Local government ordinances

S1- Scope

In any action involving the validity of a local

Final orders or judgments of COA and COMELEC

government ordinance, -

the corresponding prosecutor or attorney of the LGU involves shall be similarly

S2- Mode

notified and entitled to be heard. SC- petition for certiorari under Rule 65 If such ordinance is alleged to be unconstitutional, the Sol Gen shall also be notified and entitled to be heard.

S3- Time Within 30 days from notice of judgment

In case of adverse resolution -

APPEAL R41 o

(R40 to RTC if Quieting in MTC)

IF M4r denied, filed within remaining period and not less than any event reckoned from notice of the denial NO FRESH PERIOD RULE, only in 40 41 42 43 45

48


Filing of certiorari will not stay execution of judgment, FO, resolution sought to be reviewed, S4- Docket, lawful fees Pay, + 500 for costs

unless SC shall direct otherwise upon such terms as may be just Petitioner may apply for TRO or preliminary injunction to stay execution

S5- Form/Contents 1.

Verified petition, 18 copies, with certified true copy of judgment

2.

Respondent is Comelec or CoA, person interested in sustaining

3.

Finding of fact supported by substantial evidence, final and non reviewable

4.

State specific material dates showing it was filed on time

5.

Accompanied by sworn certification against forum shopping

6.

Proof of service of its copy on commission and adverse party, and of payment of

Rule 65 Rule 64 Applies to orders of Applies to judgments, judicial, quasi judicial final orders, resolutions court or tribunals of CoA and COMELEC 60 days from denial of 30 days from notice of motion for judgment or final order reconsideration (AM 7-7- or resolution sought to 12-SC) be reviewed Motion for NOT reconsideration is required Petition filed before RTC, Petition filed before SC CA, SC

docket and other lawful fees

S6- order to comment -

Rule 43 Appeal/Petition for review of decisions of Quasi Judicial Bodies

Within 10 days from notice of order or judgment, by respondent, or else, dismissed

Grounds for dismissal 1.

Non compliance with form and contents

2.

Non payment of docket and 500 for costs

3.

Filed manifestly for delay

4.

Questions are too unsubstantial to warrant further proceedings

15 days from notice of award, final judgment, resolution With the CA

Rule 64 Petition for review of judgments and final orders or resolutions of COMELEC and CoA 30 days from notice of judgment or final order sought to be reviewed With the SC

CERTIORARI, PROHIBITION, MANDAMUS (Rule 65) Constitutional Basis:

S7- Comments of respondents -

18 copies

-

No other pleading may be filed unless required or allowed by court

A8 S1 P2 Judicial Power includes the duty of the courts of justice to settle actual controversies involving rights which are legally demandable and enforceable, and to determine whether or not there is grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the

S8- Effect of filing

government.

49


A8 S5 P2

What is the MATERIAL DATES RULE?

-

Review

As far as Rule 65 is concerned, the following material

-

Revise

dates must be stated in the verified petition or else,

-

Reverse

the petition would be denied:

-

Modify

-

Affirm o

On appeal or certiorari, as the law

1.

Notice of the order or judgment

2.

Date of the filing of the motion for reconsideration

or the Rules of Court may provide, final judgments and orders of

3.

reconsideration

lower courts in: 6.

All cases in which constitutionality or validity of any

Certiorari

a.

treaty,

b.

international or executive

-

Special civil action directed to an inferior

agreement

court, tribunal, board or officer directing

c.

law

judicial or quasi judicial functions, to annul

d.

presidential decree

or modify proceedings of such court,

e.

proclamation

tribunal, board or officer in the event that

f.

order

the same has acted with grave abuse of

g.

instruction

discretion amounting to lack or excess of

h.

ordinance

jurisdiction

i.

regulation

o

i. 7.

Date of the denial of the motion for

to

correct

errors

of

jurisdiction

is in question

all cases involving the legality of any

Seeks

Prohibition

a.

tax

b.

impost

tribunal, board, officer or person exercising

c.

assessment

judicial,

d.

toll

functions,

e.

any penalty imposed in relation

proceedings in the event that the same

thereto

acted with grave abuse of discretion

-

Special civil action directed against any quasi to

judicial, desist

or from

ministerial further

amounting to lack or excess of jurisdiction 8.

all cases in which the jurisdiction of any lower court is in issue

9.

all criminal cases in which the penalty imposed is reclusion perpetua or higher

Mandamus -

Special civil action directed against any tribunal, corporation, board, officer or person, to do the act required to be done to

10. all cases in which only an error or question of law is involved

protect the rights of petitioner and to pay damages sustained by petitioner by reason of the respondent’s wrongful act, in the

event that the same unlawfully neglected in the performance of ministerial duty or unlawfully excluded another from use and

50


enjoyment of a right or office to which such

2.

where question raised in the certiorari proceedings have been duly raised and

other is entitled

passed upon by the lower court, or are the QUALIFICATIONS in ALL 3: -

same as those raised and passed upon by the lower court

that there is no plain, speedy, or adequate remedy in the ordinary course of law

3.

where there is an urgent necessity for the resolution of the question and any further delay would prejudice the interest of the

Certiorari discretionary

Mandamus Ministerial

Prohibition Discretionary and ministerial To annul order To order To restrain performance performance 60 days from receipt of final judgment or order or from denial of motion for reconsideration Against entity or Against entity or Against entity or person exercising j person exercising person exercising j, or ej function ministerial function ej, ministerial function Without or GAD Unlawful neglect of Without or GAD ministerial duty or excluded another from a right or office Correct errors of Performance of act To restrain or jurisdiction or desist from prevent usurpation excluding another of jurisdiction from a right or office

government or the petitioner or the subject of the action is perishable 4.

where under the circumstances, a motion for reconsideration would be useless

5.

where petitioner was deprived of due process, and there is extreme urgency for relief

6.

where, in a criminal case, relief from an order of arrest is urgent and the granting of such relief by the trial court is improbable

7.

where the proceedings in the lower court are a nullity for lack of due process

8.

where the proceeding were ex parte or in which the petitioner had no opportunity to object

Errors of Jurisdiction Court acted with GAD amounting to lack or excess of jurisdiction Action of the court Correctible by certiorari Rule 65

Errors of Judgment Misapprehension of law or facts by the court Valid proceeding Correctible by appeal Rules 40-43, 45

General Rule: M4R is required to allow the court to

9.

or where public interest is involved

REQUIREMENTS: 1.

verified petition in 7 legible copies

2.

it should be filed not later than 60 days from

correct its errors

where the order is a patent nullity, as where the court has no jurisdiction

notice

of

judgment,

order

or

resolution sought to be assailed or from denial of M4R

Exception: 1.

where the issue raised is one purely of law

3.

contain full names and addresses of petitioners

and

respondents,

concise

statement of matters involved, factual

51


background of the case, grounds relied

-

upon for the relief prayed for

superior courts would not take cognizance of a case brought before it unless the case has been decided by the lower courts in the

4.

accompanied by clearly legible duplicate

exercise of its jurisdiction

originals or certified true copies of award, judgment, order, resolution, ruling subject 5.

certification against forum shopping

Same principle in certiorari: MTC to RTC- 60 days RTC to CA- 60 days

6.

pay docket and lawful fees, 500 for costs CA to SC- 60 days

7.

serve copy upon adverse party or parties and the court 65 vs 45 (simplified)

8.

service and filing to be done personally, with explanation if not done personally

General rule: Certiorari is not a substitute for lost a ppeal

Rule 65

Rule 45

60 days Motion for reconsideration required Questions of jurisdiction SC, CA, RTC Special civil action

Except: -

15 Days Not Questions of law SC Mode of appeal/petition for review

denial of due process Rule 65 as amended by Am 7-7-12:

-

appeal is not a remedy o

no appeal or no plain, speedy, adequate remedy

-

court without jurisdiction

-

when deprived of substantial rights

Sec. 4. When and where to f ile the petition. The petition shall be filed not later than sixty (60)

days from notice of the judgment, order or resolution. In case a motion for reconsideration or new trial is timely filed, whether such motion is required or not, the petition shall be filed not later

than sixty (60) days counted from the notice of the Note: in the cases, in event of denial of petition, and

denial

of

the

motion.

in exercise of original jurisdiction, remedy is APPEAL If the petition relates to an act or an omission of a MTC to RTC- Rule 40

municipal trial court or of a corporation, a board, an officer or a person , it shall be filed with the

RTC to CA- Rule 41 (original), Rule 42 (appellate) CA to SC- Rule 45

Regional Trial Court exercising jurisdiction over the territorial area as defined by the Supreme Court. It may also be filed with the Court of Appeals or with

The above-stated is the PRINCIPLE OF HIERARCHY OF

the Sandiganbayan , whether or not the same is in

COURTS

aid of the courts appellate jurisdiction. If the petition involves an act or an omission of a quasi-judicial

52


agency, unless otherwise provided by law or these

a.

a person who usurps, intrudes into, or

rules, the petition shall be filed with and be

unlawfully holds or exercises a public office,

cognizable

position, or franchise

only

by

the

Court

of

Appeals.

In election cases involving an act or an omission of a

b.

a public officer who does or suffers an act

municipal or a regional trial court, the petition shall

which by provision of law constitutes a

be filed exclusively with the Commission on

ground for the forfeiture of his office

Elections, in aid of its appellate jurisdiction. c.

an association which acts as a corporation within the Phils without being legally incorporated or without lawful authority to

NO MORE EXTENSION OF TIME IS GIVEN TO FILE

act

CERTIORARI!

*Sol Gen commences action (S2, S3) Period: (S11)

M4R based on Rule 65 Of interlocutory order, as preparation to file certiorari

M4R based on Rule 37 Of final judgment or final order, not including interlocutory orders

Within 1 YEAR -

after cause of ouster or right of petitioner to hold such office, or position arose

Within 1 YEAR (action for damages)

QUO WARRANTO (Rule 66) -

-

proceeding or writ issued by the court to determine the right to the use or exercise of an office, position or franchise and to oust the person holding or exercising such office, position

or

franchise

if

his

right

after

entry

of

judgment

establishing

petitioner’s right to the office in question

in short... within 1 YEAR from usurpation of public office

is

unfounded or if he had forfeited his right to

REMEDY IF DENIED: Appeal

enjoy the privilege

Jurisdiction and Venue: 2 kinds of quo warranto: 1.

usurpation of public office

2.

dissolution of a de facto corporation

RTC, CA, SC If Solicitor General files- RTC, CA, SC If other person files- R4 S1 R4 S2

Rule 66 S1 An action for usurpation of a public office, position, or franchise may be commenced by a verified petition brought in the name of the Republic of the Philippines against:

Quo Warranto Election Code Election Code COMELEC, RTC. MTC Omnibus Election Code Not

Quo Warranto Rule 66 Rules of Court RTC, CA, SC Basis: A8 Consti, R66 Subject to BP129

53


Can be filed with MTC Contest right of elected public officer to hold public office Ineligibility or disqualification of person elected to hold the office Within 10 days after proclamation of candidate Filed by any voter

Cannot be filed with MTC Show title to public office or exercise public franchise Usurpation, forfeiture, illegal association

Within 1 year from usurpation of office Filed by government or person entitled to the office

NOTE: Expropriation is an instance where multiple appeals are filed (30 day record on appeal in case of multiple appeal) Why? 3 orders issued under Rule 67: 1.

order of compensation

2.

order of expropriation

3.

final order of just compensation

Remedy of person after expropriation, no payment made: -

recover property from expropriator within 5 years after non payment

Expropriation (Rule 67) Eminent Domain- right and authority of the State to acquire private property for public use upon

FORECLOSURE OF MORTGAGE (Rule 68)

observance of due process and payment of just compensation

(Tan, Handbook on Civil Procedure and pleadings, pp 142-145)

Expropriation- procedure to be observed in the exercise of the right of eminent domain

Foreclosure -

action by which a mortgagee or pledge or any other lien holder cuts off the right of

Constitutional Basis:

debtor whose property is pledged, because of default in meeting the obligation

A3 S9 Private property shall not be taken for public use without payment of just compensation

Foreclosure of Mortgage -

termination

of

all

the

rights

of

the

mortgagor in the property covered by the mortgage Jurisdiction: RTC, incapable of pecuniary estimation (BP129) Venue: Where the property is located Basis: (action involving title to or real property under R4 S1) CANNOT BE FILED WITH SC, because under EO jur of

Manner of foreclosure of mortgage: Rule 68 S1 Contents of action: 1.

date and due execution of mortgage

2.

assignments, if any

RTC

54


Remedies of Mortgagee in case of default of 3.

names and residences of mortgagor and

mortgagor/waiver of right to foreclose:

mortgagee a.

Judicial

or

extrajudicial

foreclosure

of

mortgage

4.

description of mortgaged property

5.

statement of date of the note or other

b.

Filing of ordinary action to collect debt

-

Here, under b, deemed to have waived his

documentary evidence of the obligation secured by the mortgage

right to proceed against the property in a 6.

amount claimed to be unpaid thereon

7.

names and residences of all persons having of

claiming

interest

in

the

property

subordinate in right to that of the holder of the mortgage, all of whom shall be made defendants in the action

foreclosure proceeding

Right of Redemption Exists in EJ foreclosure By mortgagee within 1 year from registration of the sale in the Office of the Registry of Deeds

Nature of Action: -

QUASI IN REM

-

Service of summons by publication

Equity of Redemption Exists in J foreclosure By mortgagor during not less than 90 days nor more than 120 days from entry of judgment or foreclosure or even after foreclosure sale but before judicial confirmation of the same

Jurisdiciton/Venue: MTC-RTC 20-50 OMM MM lower higher

J Foreclosure, no right of redemption, except only if morgagee is a bank

Where real property or portion thereof is situated (R4 S1)

PARTITION (Rule 69) Classification of Foreclosure of Mortgage:


1.

JUDICIAL FORECLOSURE -

Separation, division, assignment of a thing

To have the property seized and sold by the court

held in common among those to whom it

order to the end that the proceeds thereof be

may belong

applied t o payment of plaintiff’s claim

Classes of partition: 2.

EJ FORECLOSURE 1.

Voluntary- division of property by the act of the parties themselves

Possession of property sold may be given to purchaser by sheriff after the period of redemption had expired, unless there is a third person actually holding the property adversely to the mortgagor

2.

Compulsory-

partition

by

judicial

proceedings at the instance of one or more of the co tenants without regard to the wishes of the other co tenants

55


MULTIPLE APPEALS- 30 day record on appeal (R69 S2)

Kinds of Partition Why? (tingin ko lang) 1.

Total - all the things are divided among the participants

2.

Orders under Rule 69:

Partial- when some of the things are

1.

Order of partition

divided, the rest remaining in community

2.

Order of accounting

ownership 3.

Provisional- when it is temporary or

NOTE: Partition is one mode of settlement of estate

conditional, until a final or definite division

of the deceased (relate to R75-77)

is made 4.

Definite- when the resulting division is permanent, final, and absolute

5.

FORCIBLE ENTRY AND UNLAWFUL DETAINER (Rule 70 in relation to Rules on Summary Procedure )

Judicial- takes place when court intervenes

(issue is that of possession)

and approves the petition (Tan, Handbook on Civil Procedure and pleadings, pp

6.

Extrajudicial- division may be made by

153-158)

testator himself or by some person n amed by deceased or amicably by interested heirs

Real

by common agreement (Rule 74 S1)

possession of real property, binding upon the parties

R69 S1 A person having the right to compel partition of real

Action

+

Action

in

personam-

involves

NOTE: 3 kinds of recovery of real property 1.

Accion interdictal - summary action for

estate may do so as provided in this Rule, setting

recovery of physical possession of the

forth in his complaint the nature and extent of his

property where dispossession has lasted for

title and an adequate description of the real estate

more than 1 year; FE or UD

of which partition is demanded and joining as defendants all other persons interested in the

2.

plenary

action

for

recovery of real right of POSSESSION

property Covers: REAL or PERSONAL PROPERTY

Accion publiciana -

3.

Accion reivindicatoria - action for recovery of OWNERSHIP

Jurisdiction/Venue:

Ejectment- form of action by which possessory titles MTC RTC 20-50 300-400 OMM MM lower higher R4 S1 R4 S2

to corporeal hereditariments may be tried and possession obtained which lies to regain possession of real property, with damages for illegal detention 2 kinds: FE and UD

In case of adverse resolution:

Forcible Entry Person in physical

Unlawful Detainer Withholding by a person

56


possession of land was deprived of possession through FISTS Unlawful ab initio Not require demand to vacate Prove prior possession until deprived 1 y from date of actual entry on land

of possession of land or building Legal but becomes illegal Pay AND vacate; jurisdictional No need to prove prior physical possession 1 year from date of last demand

Filed by: R70 S1 Person deprived of possession of land or building by FISTS, or lessor, vendor, vendee, other person against whom possession of any land or building is unlawfully withheld

Jurisdiction/Venue: MTC of the place where property or portion thereof is situated (R4 S1)

After the court determines that the case falls under summary procedure, it may, from an examination of the allegations therein and such evidence as may be attached thereto, dismiss the case outright on any of the grounds apparent therefrom for the dismissal of a civil action. If no ground for dismissal is found it shall forthwith issue summons which shall state that the summary procedure under this Rule shall apply.

S5- Answer Within 10 days from service of summons, the defendant shall file his answer to the complaint and serve a copy thereof on the plaintiff. Affirmative and negative defenses not pleaded therein shall be deemed waived, except for lack of jurisdiction over the subject matter. Cross claims and compulsory counterclaims not asserted in the answer shall be considered barred. The answer to counterclaims or cross claims shall be filed and served within 10 days from service of the answer in which they are pleaded.

-

Within 10 DAYS from service of summons o

Rule 70

o

Summ Pro

Proceedings SUMMARY IN NATURE! (Rules on Summary Procedure)

Pertinent Provisions of the Rules on Summary Procedure: (note the same... applies to all cases subject to Rules on Summary Procedure, ESPECIALLY PROHIBITED PLEADINGS AND MOTIONS) S3- Pleadings The only pleadings allowed to be filed are the: 1. 2. 3. 4.

Complaints Compulsory counterclaims Cross claims pleaded in the answer Answers thereto

VERIFIED!

S4- Duty of the Court

S6- Effect of Failure to answer Should the defendant fail to answer the complaint within the period above provided, the court, motu proprio or on motion of the plaintiff, shall render judgment as may be warranted by the facts alleged in the complaint and limited to what is prayed for therein. Provided, however, that the court may in its discretion reduce the amount of damages and AF claimed for being excessive or otherwise unconscionable. This is without prejudice to applicability of R15 S4 of the Rules of Court, if there are 2 or more defendants.

S7- Preliminary conference; appearance of parties Not later than 30 days after the last answer is filed, a preliminary conference shall be held. The rules on pre trial in ordinary cases shall be applicable to the preliminary conference unless inconsistent with the provisions of this Rule. The failure of the plaintiff to appear in the preliminary conference shall be cause for dismissal of the complaint. The defendant who appears in the absence of plaintiff shall be entitled to judgment on

57


his counterclaim in accordance with S6 hereof. All cross claims shall be dismissed. If a sole defendant shall fail to appear, the plaintiff shall be entitled to judgment in accordance with S6 hereof. This Rule shall not apply where one of 2 or more defendants sued under a common cause of action who had pleaded a common defense shall appear at the preliminary conference.

S8- Record of Preliminary Conference Within 5 days after the termination of the preliminary conference, the court shall issue an order stating the matters taken up therein, including but not limited to: a.

b.

c.

However, should the court find it necessary to clarify certain material facts, it may, during the said period, issue an order specifying the matter to be clarified, and require the parties to submit affidavits or other evidence on the said matters within 10 days from receipt of said order. Judgment shall be rendered within 15 days after the receipt of the last clarificatory affidavits, or the expiration of the period for filing the same. The court shall not resort to the clarificatory procedure to gain time for the rendition of the judgment.

S18- Referral to Lupon Cases requiring referral to the Lupon under the

Whether the parties have arrived at an amicable settlement, and if so, the terms thereof

provisions of PD1508 where there is no showing of

The stipulations or admissions entered into by the parties

after such requirement shall have been complied

Whether, on the basis of the pleadings and the stipulations and admissions made by the parties, judgment may be rendered without the need of further proceedings, in which effect the judgment shall be rendered within 30 days from issuance of the order

d.

A clear specification of material facts which remain controverted

e.

Such other matters intended to expedite the disposition of the case

S9- Submission of affidavits and position papers Within 10 days from receipt of the order mentioned in the next preceding section, the parties shall submit the affidavits of their witnesses and other evidence on the factual issues defined in the order, together with their position papers setting forth the law and the facts relied upon by them.

S10- Rendition of judgment Within 30 days after receipt of the last affidavits and position papers, or the expiration of the period for filing the same, the court shall render judgment.

compliance

with

such

requirement,

shall

be

dismissed without prejudice and may be revived only with.

S19- Prohibited pleadings and motions The following pleadings, motions, or petitions shall not be allowed in the cases covered by this Rule: a.

Motion to dismiss the complaint or to quash the complaint or information except on the ground of lack of jurisdiction over the subject matter, or failure to comply with the preceding section

b.

Motion for a bill of particulars

c.

Motion for new trial, or for reconsideration of a judgment, or for opening of trial

d.

Petition for relief from judgment

e.

Motion for extension of time to file pleadings, affidavits, or any other paper

f.

Memoranda

g.

Petition for certiorari, mandamus, or prohibition against any interlocutory order issued by the court

h.

Motion to declare defendant in default

58


Forcibly Entry / UnlawFul Detainer- YES i.

Dilatory motions for postponement R70 S15

j.

Reply Court

k.

Third party complaints

l.

Interventions

may

grant

preliminary

injunction,

in

accordance with the provisions of R58 thereof, to prevent defendant from committing further acts of dispossession against plaintiff. A possessor deprived of possession through Fe or UD

S20- Affidavits The affidavits required to be submitted under this Rule shall state only facts of direct personal knowledge of the affiants which are admissible in evidence, and shall show their competence to testify to the matters stated therein. A violation of this requirement may subject the party or the counsel who submits the same to disciplinary action, and shall be cause to expunge the inadmissible affidavit or portion thereof from the record.

may, within 5 days from filing of complaint, present a motion in the action for FE UD for issuance of writ of preliminary mandatory injunction to restore him in his possession. The court shall decide the motion within 30 days from filing thereof R70 S20 Upon motion of plaintiff, within 10 days from perfection of appeal to the RTC, the latter may issue a writ of preliminary mandatory injunction to restore plaintiff in possession if the court is satisfied that

S21- Appeal The judgment or final order shall be appealable to the appropriate RTC which shall decide the same in accordance with S22 of BP129. The decision of the RTC in civil cases governed by this Rule including forcible entry and unlawful detainer, shall be immediately executor, without prejudice to a further appeal that may be taken therefrom. S10 of Rule 70 shall be deemed repealed.

-

defendant’s appeal is frivolous or dilatory,

or -

that the appeal of plaintiff is prima facie meritorious

CONTEMPT (Rule 71)

-

15 DAYS from notice of judgment or final order, notice of appeal + bond to RTC o

NO M4R (prohibited pleading)


However, if RTC decision adverse, (in exercise of appellate jurisdiction), M4R pwede na -

MTC Summary Procedure, only up to MTC level lang o

Contempt -

acting in opposition to authority, justice,

Once the case was elevated to RTC,

dignity

it is no longer summary, but is governed by rules on Ordinary Civil

wilful disregard or disobedience to court,

Contempt of Court

Actions -

conduct which tends to bring authority and administration of law into disrespect or to

Injunction in FE and UD:

59


interfere with or prejudice parties litigant or their witnesses during litigation Remedy: CERTIORARI or PROHIBITION (R71 S2)

2 classifications of contempt: 1.

Direct Contempt (R71 S1)

2.

Indirect Contempt (R71 S2)

2.

INDIRECT CONTEMPT (S3)

-

Main / Original action o

Can be filed in RTC or MTC

Actions covered: DISCUSSION: a.

1.

DIRECT CONTEMPT (S1)

-

A remedy

Misbehaviour of an officer of a court in the performance of his official duties or in his official transactions

Acts covered: -

b.

Disobedience of or resistance to a

Misbehaviour in presence of or so near the

lawful

court

judgment of a court, including act

as

to

obstruct

or

interrupt

of

proceedings before the same

writ,

person

process,

who,

after

order,

being

dispossessed or ejected from any -

real property by the judgment or

Disrespect toward the court

process of any court of competent -

Offensive personalities towards people in

jurisdiction, enters or attempts or

court

induces another to enter into or upon such real property, for the

-

Refusal to be sworn or to answer as a

purpose of executing acts of

witness

ownership or possession, or in any manner disturbs possession given

-

Refusal

to

subscribe

an

affidavit

to the person adjudged to be

or

entitled thereof

deposition when lawfully required to do so Punishment: (RTC/of equivalent or higher rank) F: not exceeding 2k OR I: not exceeding 10 days, OR BOTH

Note highlighted: case in MTC where case is pending -

If after ejectment, re entered the property, indirect contempt (relate to Rule 70) c.

Any abuse of or any unlawful interference with the processes or proceedings of the court not

(lower court)

constituting direct contempt as under S1

F: not exceeding 200 I: not exceeding 1 day, OR BOTH

60


d.

Improper conduct tending, directly or indirectly, to impede, obstruct, degrade administration of justice

e.

Assuming to be an attorney or

Rule 13 Section 14

officer of the court and acting as

In an action affecting the title or the right of

such without authority

possession of real property, the plaintiff and the defendant, when affirmative relief is clai med in his

f.

Failure to obey subpoena duly

answer, may record in the office of the registry of

served

deeds of the province in which the property is situated

g.

The rescue, or attempted rescue, of a person or property in the custody of an officer by virtue of an order or process of a court held by him

a notice of the pendency of the action Said notice shall contain the names of the parties and the object of the action or defense, and a description of the property in that province affected

Remedy: (R71 S11)

thereby

Appeal to proper court as in criminal cases

Only from the time of filing such notice for record shall a purchaser,

Direct Contempt In presence of a judge, motu proprio or upon motion Cant initiate In presence or so near judge Rem: certiorari remedy

Indirect Contempt or encumbrancer of the property affected thereby, Initiate Not in presence of judge, disobey court order Rem: appeal Original action

be deemed to have constructive notice of the pendency of the action, and only its pendency against the parties designated by their real names

Upon filing of complaint, plaintiff may opt to file

The notice of the lis pendens hereinabove

notice of lis pendens with the register of deeds

mentioned may be cancelled

Notice of Lis Pendens “buyer beware”

Notice to buyer of existence of an adverse claim It is not a pleading There is need to register it with the register of deeds

only upon order of the court, after proper showing that the notice is for the purpose of molesting the adverse party, or that it is not necessary to protect the rights of the party who caused it to be recorded

61


By delivering personally a copy to the party or his counsel or

FILING AND SERVICE of the pleading

By leaving it in his office with the clerk or a person having charge thereof

Differentiate: Filing from service

If no person is found in his office or his office is not

R13 S2

known or he has no office, then,

Filing is the act of presenting the pleading or paper

By leaving the copy between the hours of 8

to the clerk of court.

in the morning and 6 in the evening at the

Service is the act of providing a party with a copy of

party’s or counsel’s residence, if known,

the pleading or paper concerned.

with a person of sufficient age and discretion then residing therein NOTE: NO TENDERING under Rule 13 S6!

What are the papers required to be filed and served Sa summons lang yon, when defendant

under Rule 13?

refuses to accept the same (PAMNOJDORS)

Service by mail

Pleading subsequent to the complaint Appearance

R13 S7

Written Motion Notice

Service by registered mail shall be made by

Order

depositing the copy in the post office,

Judgment

in a sealed envelope

Demand

plainly addressed to the party or his counsel

Offer of judgment

at his office, if known,

Resolution

otherwise, at his residence, if known,

Similar papers

with postage fully prepaid and with instructions to the postmaster to return the mail to the sender after 10 days if

What are the modes of service of pleading? (R13

undelivered

S5) If no registry service is available in the locality of Personal Service (R13 S6)

either in the sender or the addressee, service may be

Service by Registered Mail (R13 S7)

done by ordinary mail.

Substituted Service (R 13 S8)

IF defendant refuses both modes of service, resort

How is it done?

to:

Personal Service R13 S6

Substituted Service R13 S8

Service of papers may be made

62


If service of pleadings, motions, notices, resolutions,

5.

orders, or other papers cannot be made under the 2

Rather, the pleading produces no legal effect

preceding section, the office and place of residence of the party or his counsel being unknown, service may be made by:

When is service deemed completed?

Delivering the copy to the clerk of court,

Personal Service (R13 S10)

with proof of failure of both personal service and service by mail The service is complete at the time of such delivery.

Personal service is complete upon actual delivery or

by handling a copy to defendant Service by mail (R13 S10)

Note: Wag ipaghalo ang provisions ng Rule 13 and Rule 14!!!

Service by ordinary mail is complete upon the

expiration of 10 days after mailing, unless the court otherwise provides. Service by registered mail is complete upon actual

Effect of non compliance with personal service?

receipt by the addressee or after 5 days from the date he received the first notice of the postmaster,

Note: Service other than personal service

whichever date is earlier. Substituted Service (R13 S8) Substituted service is complete at the time of

R13 S11

delivery of the copy to the c lerk of court, with proof Whenever practicable, the service and filing of

of failure of both personal service or service by

pleadings and other papers shall be done personally.

mail.

Except with respect to papers emanating from the court, a resort to other modes must be a ccompanied by a written explanation why the service or filing

What is constructive service of pleading?

was not done personally. R13 S10 A violation of this rule may be cause to consider the paper as not filed.

Service by registered mail is complete.. ..after 5 days from the da te he received the notice of the postmaster, whichever date is earlier

State in detail: Effects 1. 2.

A violation of this rule may be cause to consider the paper as not filed (R13 S11)

FILING- Rule 13 S1- with the office with the clerk of

The pleading/paper would not be

court

admissible in court 3. 4.

Would not toll the running of the

Required in ALL INITIATORY PLEADINGS

reglementary period

+ PAYMENT OF THE REQUISITE DOCKET FEES (See

In case of defendant, it will NOT RESULT in

Rule 1 Section 5)

defendant being declared in default

63


Pag kulang, court to order correct payment

If the court should determine after hearing that the

NOTE: Docket fees are suspended in

party declared as an indigent is in fact a person with

compulsory counterclaims (SC Resolution 9-

sufficient income or property,

21-04) the proper docket and other lawful f ees shall be assessed and collected by the clerk of court

IF you cannot pay docket fees, REMEDY? If payment is not made within the time fixed by the File a motion to be declared as pauper

court,

litigant (R3 S21) execution shall issue or the payment thereof, R3 S21- A party may be authorized to litigate his action, claim, or defense as an indigent if the court,

without prejudice to such other sanctions as the

upon an ex parte application and hearing, is satisfied

court may impose

that the party is the one who has no money or property sufficient and available for food, shelter, and basic necessities for himself and his family

After filing of the complaint and the payment of the requisite legal fees,

Such authority shall include an exemption from payment of -

docket and

-

other lawful fees, and

-

of transcript of stenographic n otes

III. SERVICE OF SUMMONS Summons Writ or process in the name of the RP, issued by the Branch clerk of court informing the defendant of the filing of the case against him, to file a n answer within

which the court may order to be furnished him

the reglementary period, or else, be The amount of docket and o ther lawful fees which

declared in default

the indigent was exempted from paying

Office of the Clerk of -

shall be a lien on a ny judgment rendered in

Branch Clerk of Court

Court

the case favorable to the indigent, o

unless the court otherwise provides

Office

Person

Receives complaint and

Serves summons upon

payment of the docket

the defending party

fees Any adverse party may contest the grant of such authority

2 kinds of summons: at any time before the judgment is rendered by the trial court

1.

Original Summons- issued by the branch clerk of court to the defendants upon the filing of the complaint and the payment of the requisite docket fees

64


relief applied for (R14 2.

Alias Summons- issued by the branch clerk

S2)

of court upon motion of the plaintiff in case the summons are lost, destroyed,

Served on the defendant

party

improperly served, or there is defect in the manner or form of service

Summons

Subpoena

May be served to a non-

Does not need tender of

Needs tender of

kilometrage and other

kilometrage, attendance

fees

fee, and reasonable cost of production fee

a writ or a process issued

(R21 S1) Original or alias

to a defending party by

Ad testificandum or

the clerk of court,

A process directed to a

delivered by a sheriff, his

person requiring him to

deputy, or proper court

attend and to testify at

Upon filing of the

During trial or

office, or any suitable

the hearing or trial of an

complaint and payment

investigation

person authorized by the

action, or at any

of requisite docket fees

court issuing the

investigation conducted

summons, with the

by competent authority

purpose of obtaining

or for the taking of his

Note: significant to know whether the action is in

jurisdiction over the

deposition. (Subpoena

personam, in rem, or quasi in rem —for purpose of

person of the defendant

ad testificandum)

service of summons

A process directed to a

FE and UD- in personam actions

duces tecum

and giving him notice that an action has been commenced against him

person requiring him to bring with him any books, documents, or other things under his

IN PERSONAM

control (Subpoena duces

Service in person

tecum)

Substituted service

Purpose is to obtain

Order for a person to

jurisdiction over person

appear and to testify at a

of defendant, and to give

hearing, action,

Service in person

notice to defendant that

investigation, or for

Substituted Service

an action has been

taking of his deposition

Publication

commenced against him,

OR to produce books,

Extraterritorial Service

ordering defendant to

documents, or other

answer the complaint

things under his control

within the time fixed by

(R21 S1)

these Rules, and unless defendant answers, plaintiff will take

IN REM

QUASI IN REM Service in person Substituted service Publication

judgment by default and may be granted the

65


Can you serve summons by mail?

2.

By leaving the copies at defenda nt’s office or regular place of business with some

NO

competent person in charge thereof Through process server or upon motion- by service

How to serve summons?

Service in person on defendant (R14 S6) The summons shall be served by handing a copy thereof to the defendant in person.

of summons by substituted service

How is a person deemed of suitable age and discretion? 1.

Of legal age

2.

With sufficient knowledge and comprehension that what he is receiving on behalf of defendant are summons notifying

Tendering summons to defendant (R14 S6)

defendant that a suit was brought against the same, AND PREFERABLY KNOWS HOW

In case defendant refuses to receive or sign for it, by

TO SPEAK ENGLISH

tendering it to him, done through: 1.

Leaving copy of the summons to the defendant who refuses to receive it

Service by publication in a newspaper of general circulation

2.

The officer serving the summons shall make an affidavit addressed to the court statin g that the time, place, manner of service of summons, and that despite efforts to try and serve the summons in person on defendant, the same refused to receive it, as well as the manner of non-receipt

R14 S15 Service by leave of court by publication in a newspaper of general circulation in such place a nd for such time as the court may order, in which case a copy of the summons and order of the court shall be sent by registered mail to the last known a ddress of the defendant.

Substituted Service of Summons on defendant (R14 S7) Requisites;

Suffices under the following instances: 1.

Upon defendant designated as unknown

Impossibility of the personal service of

owner or the like, or whenever his

summons within a reasonable time

whereabouts are unknown and cannot be

The efforts exerted to locate the person to

ascertained by diligent inquiry (R14 S14)

be served 2.

To whom served / how?

found in the Philippines, and the action: (AREA—R14 S15)

By leaving copies of the summons at: 1.

When defendant does not reside and is not

Defendant’s residence with some person of

-

Affects personal status of the plaintiff or

suitable age and discretion then residing

-

Relates to, or the subject of which, is

therein or

property within the Philippines in which

66


defendant has or claims a lien or interest,

Requisites;

actual or contingent, or -

In which the relief demanded consists, wholly or in part, in Excluding the defendant from any interest therein or

-

3.

is non resident, in Impossibility of the personal service of summons within a reasonable time

The property of the defendant has been Attached within the Philippines When defendant ordinarily resides in the

abroad, action in rem, by way of personal service outside of Phils, by publication in a

The efforts exerted to locate the person to be served

Philippines but who is temporarily out of it (R14 S16)

Arises in case defendant

newspaper of general circulation, or in any other manner the court may deem sufficient

To whom served / how? By leaving copies of the

Can there be personal service of summons in in rem actions? Yes. R14 S15 states that when defendant does not reside and is not found in the Philippines, and the action affects the personal status of the plaintiff or

summons at: Def endant’s residence with some person of suitable age and discretion then residing therein or

relates to, or the subject of w hich, is property within the Philippines in which defendant has or claims a lien or interest, actual or contingent, or in which th e relief demanded consists, wholly or in part, in excluding defendant from any interest therein, or the property of defendant has been attached within

By leaving the copies at defendant’s office or regular place of business with some competent person in charge thereof

the Philippines, service may, by leave of court, be effected out of the Philippines by:

Through process server or upon motion- by

1.

Personal service as under S6**

2.

By publication in a n ewspaper of general

service of summons by substituted service

circulation in such places and for such time as the court may order, in which case a copy of the summons and order of the court shall be sent by registered mail to the last known address of defendant, or

R14 S14 In any action where the defendant is designated as

3.

In any other manner the court may deem

an unknown order, or the like, or whenever his

sufficient

whereabouts are unknown and cannot be ascertained by diligent inquiry, service may, by leave of court, be effected upon him by publication in a

Substituted Service vs Extraterritorial Service of

newspaper of general circulation and in such places

Summons

and for such time as the court may order .

Substituted Service


67


-

Instance where in personam, yet

Reason: the court cannot proceed with the case

publication is allowed (exception to the

without jurisdiction over the person of the defending

general rule)

party

o

Identity is unknown or whereabouts are unknown

Defective service of summons, remedy:

Exception to exception: SMALL CLAIMS

To whom summons are made?

M2D Rule 16 S1a, that the court has no jurisdiction over the person of the defending party

1.

Ordinary defendant Upon an entity without juridical personality

3 options of the court: 1.

GRANT M2D- as plaintiff, refile the case,

R14 S8

unless tainted with grave abuse of discretion

When persons associated as an entity without a juridical personality are sued under the name by

2.

DENY M2D

which they are generally or commonly known, service may be effected upon all the defendants by

As defendant, following Rule 16 S4, I will file an

serving upon any one of them, or upon the person

answer within the balance of the period prescribed

in charge of the office or place of business

by Rule 11 to which I am entitled at the time of

maintained in such name. But such service shall not

serving my motion, but not less than 5 days in any

bind individually any person whose connection with

event, computed from my receipt of notice of denial.

the entity has, upon due notice, been severed before

Then proceed with the trial, and when the decision is

the action was brought.

adverse against me, I will file an appeal assigning as error the denial of the motion to dismiss. And when

Upon Prisoners

the denial is tainted with grave abuse of discretion amounting to lack or excess of jurisdiction on the part of the court, I will file for certiorari under Rule 65.

R14 S9 When defendant is a prisoner confined in a jail or institution, service may be effected upon him by the

officer having the management of such jail or 3.

ISSUANCE OF ALIAS SUMMONS

institution who is deputized as a special sheriff for said purpose.

Can Rule 16 S1a be a ground for Motion to dismiss

Upon Minors and Incompetents

under Rules on Summary Procedure? YES. General rule, motion to dismiss not allowed, except #1 instance, lack of jurisdiction over the person of the defending party (RULES ON SUMMARY PROCEDURE)

R14 S10 When defendant is a minor, insane, or otherwise an incompetent, service shall be made upon him

personally or on his legal guardian if he has one, or

68


if none, upon his guardian ad litem whose appointment shall be applied for by the plaintiff. In case of a minor, service shall be made on his father

or mother.

R14 S14 In any action where the defendant is designated as an unknown order, or the like, or whenever his whereabouts are unknown and cannot be

Upon domestic private juridical entity

ascertained by diligent inquiry, service may, by leave of court, be effected upon him by publication in a

R14 S11

newspaper of general circulation and in such places

When the defendant is a corporation, partnership, or

and for such time as the court may order .

association organized under the laws of the Philippines without a juridical personality, service may be made on the President, Managing Partner,


General Manager, Corporate Secretary, Treasurer, or In House Counsel

R14 S15

NOTE: the LIST IS EXCLUSIVE!!!!!

When the defendant does not reside and is not found in the Philippines, and the action aff ects the

Service upon foreign private juridical entity

personal status of plaintiff or relates to, or the subject of which, is property within the Philippines,

R14 S12

in which the defendant has or claims a lien or

When the defendant is a foreign private juridical entity which has transacted business in the Philippines, service may be made on its reside nt agent designated in accordance with law for that purpose, or, if there be no such agent, on the government official designated by law to that effect, or on any of its officers or agents within the Philippines.

interest, actual or contingent, or in which the relief demanded consists, wholly or in party, in excluding defendant from any interest therein, or the property of the defendant has been attached within the Philippines, service may, by leave of court, be effected out of the Philippines by personal service

as under S6; or by publication in a newspaper of general circulation in such places and for such time as the court may order, in which case a copy of the summons and order of the court shall be sent by registered mail to the last known address of the

Service upon public corporations

defendant, or in any other manner the court may deem sufficient. Any order granting such leave

R14 S13

shall specify a reasonable time, which shall not be

When the defendant is the Republic of the

less than 60 days after notice, within which the

Philippines, service shall be made on the Solicitor

defendant must answer .

General; in case of a province, city or municipality, or like public corporations, service may be effected

on its executive head, or on such other officer or

Upon residents temporarily out of the

officers as the law or the court may direct .

Philippines R14 S16

Service upon defendant whose identity or whereabouts are unknown

69


When any action is commenced against a defendant

1.

Complaint in intervention- because third

who ordinarily resides within the Philippines, but

person submitted to jurisdiction of the

who is temporarily out of it, service may, by leave of

court

court, be also effected out of the Philippines, as

under the preceding section.

2.

Not in permissive counterclaim- because defendant aka original plaintiff is already a party to the action, jurisdiction over him in original complaint was already taken from

If summons cannot be served because non resident,

the start

unknown, or out of the Phils, as plantiff, what is your remedy?

3.

In case of formal not substantial amendments

Convert action in personam to quasi in rem A vs B Corporation, action for sum of money. Amend the complaint, action for sum of money WITH ATTACHMENT OF PROPERTY. Hence, summons by publication can already be made.

May bayad ba summons? WALA!

Court acquires jurisdiction over the RES

Pag pinaserve mo sa process server, meron, but not

Because nature of the case has become

required (abutan mo na lang para hindi kawawa, sige

quasi in rem

ka, baka hindi i serve)

(relate to Rule 10)

Relate Rule 14 to Rule 57

As far as amendment of the pleading, is summons

Order of attachment, writ of attachment,

required to be served?

issued ex parte

YES, in the following instances:

To implement, serve summons

1.

Substantial not merely formal amendment

2.

Other parties are impleaded

3.

With respect to third party complaint, serve

Ex parte issuance of preliminary injunction

upon third party defendant (relate to R6

To implement, serve summons

Relate Rule 14 to Rule 58

S11) 4.

With respect to fourth party complaint, th

serve upon 4 party defendant (relate to R6

Court not to issue injunction unless there is invalid service of summons

S11) Notice and hearing NOT in: EXCEPTION TO SERVICE OF SUMMONS:

70


Voluntary appearance Motion for Bill of Particulars (Rule 12) 1.

Filed responsive pleading

2.

Submitted to jurisdiction of the court,

Motion to amend the pleading (Rule 10)

EXCEPT:

Motion for Extension of Time to File Responsive Pleading (Rule 11)

When questioning the jurisdiction of the court

Motion for Summary Judgment (Rule 35)

Rule 14 S20 Order of Default/Judgment by Default (Rule

S20- Voluntary appearance

9) The defendant’s voluntary appearance shall be

equivalent to service of summons. summons. The inclusion in a motion to dismiss of other grounds aside from lack of jurisdiction over the person of the defendant shall not be deemed a voluntary appearance.

Can the court dismiss a case motu proprio for lack of jurisdiction over the person of the def ending party for defective service of s ummons?

ONE-AT-A-TIME,

A.

MOTION TO DISMISS (Rule 16)

Motion to dismiss A motion to dismiss in an application for relief filed by an original defendant, a

NO!

defendant in a permissive counterclaim, rd

th

Dismissal shall only be by MOTION! M OTION!

cross claim, 3 4 etc etc party complaint, complaint,

Motion to dismiss

complaint in intervention, filed within the time for but before filing the answer to the

Rule 9 S1 (relate to Rule 16) provides for the

complaint or pleading asserting a claim

following instances when the court may dismiss a

After service of summons, before filing of a

case motu proprio:

responsive pleading

Lack of jurisdiction over the subject matter

NOTE: Motion to dismiss dismiss is not a pleading! It is not a

Litis pendencia

responsive pleading! Hence, if there is motion motion to

Res judicata

dismiss, the complaint may still be a mended as a

Prescription

matter of right even if there is a motion to dismiss!

DOES NOT INCLUDE: lack of jurisdiction over the person of the defending party (Wala to!)

Grounds for motion to dismiss: Rule 16 S1 states that within the time for but before After service of summons,

IV. REFER TO THE FOLLOWING:

filing the answer to the complaint or pleading asserting a claim, a motion to dismiss may be made on basis of the following grounds:

Motion to Dismiss (Rule 16)

71


a.

That the court has no jurisdiction over the

File an answer within the balance of the period

person of the defending party

prescribed by Rule 11 to which entitled at the time of serving motion, but not less than 5 days in any

Relate to R14 Jurisdiction over defendant may be acquired by: voluntary appearance or by valid service of summons, except if appearance is to question the jurisdiction of the court

event, computed from receipt of notice of denial. Then proceed with the trial, and when the decision is adverse, file an appeal assigning as error the denial of the motion to dismiss. dismiss. And when the denial denial is tainted with grave abuse of discretion amounting to lack or excess of jurisdiction on the part of the court, file for certiorari under Rule 65.

GRANTED: Refile Move for alias summons

c.

That venue is improperly laid

DENIED:

Note: Rule 4


GRANTED:

prescribed by Rule 11 to which entitled at the time

Refile, except if GAD, then certiorari Rule 65

of serving motion, but not less than 5 days in any event, computed from receipt of notice of denial.

DENIED:

Then proceed with the trial, and when the decision i s adverse, file an appeal a ssigning as error the denial


of the motion to dismiss. dismiss. And when the denial is is


tainted with grave abuse of discretion amounting to

of serving motion, but not less than 5 days in any

lack or excess of jurisdiction on the part of the court,

event, computed from receipt of notice of denial.

file for certiorari under Rule 65.

Then proceed with the trial, and when the decision is adverse, file an appeal assigning as error the denial of the motion to dismiss. dismiss. And when the denial denial is

b.

That the court has no jurisdiction over the subject matter of the claim

tainted with grave abuse of discretion amounting to lack or excess of jurisdiction on the part of the court, file for certiorari under Rule 65.

NOTE: Subject matter (BP129- conferred by law) Exclusive original jurisdiction of courts, if not within, then M2D is proper

d.

GRANTED:

GRANTED: -

Refile + docket fees OR

-

Amend complaint to confer jurisdiction (no need for docket fees)

That plaintiff has no legal capacity to sue

Refile DENIED: File an answer within the balance of the period prescribed by Rule 11 to which entitled at the time

DENIED:

of serving motion, but not less than 5 days in any event, computed from receipt of notice of denial.

72




adverse, file an appeal assigning as error the denial


of the motion to dismiss. And when the denial is







lack or excess of jurisdiction on the part of the court, file for certiorari under Rule 65.

e.

That there is another action pending between parties for the same cause f.

That the action is barred by prior judgment or by the statute of limitations

aka LITIS PENDENCIA Aka RES JUDICATA Elements: Elements: 1.

Identity of parties or at least such parties representing the same interests in both

There is previous final judgment or order

actions The previous final judgment is a judgment 2.

That there is substantial identity in the

upon the merits

cause of action and in the relief sought, th e relief being founded on the same facts

Jurisdiction over the subject matter and the parties by the court rendering it

3.

Identity in the two cases would be such that any judgment that may be rendered in one,

There must be identity of the parties, of

regardless of which party is successful,

subject matter, and of cause of action

would amount to res judicata in the other

between the first and second actions

case

Which should be dismissed in case of litis st

nd

rd

th

pendencia? The 1 , 2 , 3 , 4 action?

Aka PRESCRIPTION

The later case(s) would be dismissed. GRANTED: GRANTED: Appeal DENIED:

Appeal DENIED: File an answer within the balance of the period






event, computed from receipt of notice of denial. Then proceed with the trial, and when the decision is

73


adverse, file an appeal a ssigning as error the denial










g.

That the pleading asserting the claim

i.

That the claim on which the action is founded is unenforceable under the

states no cause of action

Statute of Frauds Aka FAILURE TO STATE CAUSE OF ACTION (note: 1403, NCC) GRANTED: GRANTED: Refile Amend the pleading

Appeal

DENIED:

DENIED:









Then proceed with the trial, and when the decis ion is


adverse, file an appeal a ssigning as error the denial










j. h.

That the claim or demand set forth in the

That a condition precedent for filing the claim has not been complied with

plaintiff’s pleading has been paid, waived, abandoned, or otherwise extinguished GRANTED:

GRANTED: General Rule: refile plus comply with condition precedent, EXCEPT:

Appeal In case of wilful and deliberate forum DENIED: File an answer within the balance of the period prescribed by Rule 11 to which entitled at the time of serving motion, but not less than 5 days in any

shopping, which operates as dismissal with prejudice, hence, In the latter case, Appeal


In case of non exhaustion of administrative


remedies,

74


Exhaust then refile

NOTE ALSO: Rule 7 S5

DENIED:

Hence, summing up Rule 16,


WITH PREJUDICE- e, f, h, i of Rule 16

prescribed by Rule 11 to which entitled at the time of serving motion, but not less than 5 days in any

WITHOUT PREJUDICE- the rest of Rule 16

event, computed from receipt of notice of denial. Then proceed with the trial, and when the decision is adverse, file an appeal a ssigning as error the denial of the motion to dismiss. And when the denial is tainted with grave abuse of discretion amounting to lack or excess of jurisdiction on the part of the court, file for certiorari under Rule 65.

Rule 50 S1- Motion to dismiss appeal An appeal may be dismissed by the CA on its own motion or on that of appellee , on the following

MOTU PROPRIO DISMISSAL: (see underlined below) Rule 9 S1

grounds: 1.

Failure of the record on appeal to show on its face that the appeal was taken within

Defenses and objections not pleaded either in a motion to dismiss or

the period prescribed by these Rules 2.

Failure to file notice of appeal or the record on appeal within the period prescribed by

in the answer

these Rules are deemed waived 3.

Failure of appellant to pay the docket and other lawful fees prescribed in S5 of R40 and S4 Rule 41

However, when it appears from the pleadings or the evidence on record that

4.

Unauthorized alterations, omissions, or additions in the approved record on appeal as provided in S4 of Rule 44

1.

the court has no jurisdiction over the subject matter,

5.

Failure of appellant to serve and file the required number of copies of his brief or

2.

3.

that there is another action pending

memorandum within the time provided by

between the parties for the same cause, or

these Rules

that the action is barred by prior judgment

6.

or by statute of limitations,

Absence of specific assignment of errors in the appellant’s brief, or of page references

to the record as required in S13 par a, c, d, f of Rule 44 the court shall dismiss the claim

7.

Failure of appellant to take necessary steps for the correction or completion of the

75


record within the time limited by the court

2.

in its order

It does not interrupt the running of the prescriptive/reglementary period for the filing of the requisite pleading

8.

Failure of appellant to appear at the preliminary conference under R48 or to

3.

It will be ground for denial of the motion

4.

The motion shall be considered as not filed

comply with orders, circulars, or directive of the court without justifiable cause, and

Execution of the act subject of the motion, 9.

The fact that the order or judgment

because it would be deemed as a final order

appealed from is not appealable If act is adversely ruled due to non compliance with the Rules on Motion, file M4R within 15 days (Rule 37) Side note: RULES ON MOTION Note requirements of written motion:

LITIGATED MOTION 1.

NON LITIGATED

Notice of hearing (Due process)- 3 daay

MOTION

notice rule 2.

Set hearing 10 days after filing of the

Comply with requisites

No need to comply with

for written motion

all the requirements, but

motion

with need to hear on the motion

3.

Proof of service (different from proof of mailing, only as far as filing)

-

If not, would affect the right of parties IF not, then not set for

To see whether the adverse party was able

hearing

to receive the motion 4.

IF by registered mail, accompanied by proof of service, explanation why not done via

What is a motion?

personal service (R13 S11) Other party files comment or objection 5.

File reply to comment

IF requisites are not complied with, 1.

R15 S1 A motion is an application for relief other than by a pleading

What are the kinds of motions?

*the motion shall be treated as a worthless

Motion ex parte / Non Litigated Motion

piece of paper which the clerk of court has

Made without the presence of or

no right to receive and the court has no

notification to the other party because the

authority to act upon (mere scrap of paper)

question generally presented is not debatable

Motion of course

76


Movant is entitled to the relief or remedy sought as a matter of discretion on the part of the court

Litigated Motion Motion made with notice to the adverse party to give him an opportunity to oppose it

Special Motion A motion addressed to the discretion of the

Examples of non-litigated motions: Motion to reset pre trial Motion to postpone pre trial Motion to extend time for filing pleadings Motion to set case for pre trial

court

Motions that need to be verified: Examples of Litigated Motions: Motion to dismiss Motion to declare defendant in default Motion for summary judgment

Motion for relief from judgment Motion to lift order of default Motion to postpone trial Motion for new trial on ground of FAME

Motion for judgment on the pleadings

All motions for provisional remedies: Motion for new trial Motion for reconsideration

Motion for preliminary attachment

Motion to dismiss complaint upon plaintiff’s

Motion for dissolution of preliminary

motion

injunction

Motion to lift order of default

Motion for writ of replevin

Motion to declare a party in direct

Motion in support pendent lite

contempt Motion to postpone for absence of Motion for demurrer to evidence

evidence

Motion for consolidation or severance of

Motion to postpone for illness of a party or

case

counsel

Motion for trial by commissioner Rule 16- relate to Rule 10 Motion to strike out evidence or testimony off the record

77


Amendment as a matter of right if a motion to

Note: the motion is a LITIGATED MOTION

dismiss is filed- PWEDE! Because motion to dismiss To clarify ambiguities

is NOT a responsive pleading Motion to dismiss- not a pleading

Done before filing of a responsive pleading

Position paper- not a pleading

What is a bill of particulars?

Memorandum- not a pleading

R12 S1 states that a bill of particulars is a more definite statement of any matter which is not

Amendment if order granting motion to dismiss,

averred with sufficient definiteness or particularity,

pwede, for as long as the motion is final and

with the purpose of aiding in the preparation of a

executory

responsive pleading.

OF the 10 grounds,

When do you file bill of particulars?

Motion to dismiss after a responsive

R12 S1 states that a bill of particulars is filed before

pleading,

responding to a pleading, following the reglementary periods provided for under R11. (If the pleading is a

PWEDE, raise as affirmative defense, then set the

reply, the motion must be filed within 10 days from

motion to dismiss for hearing

service thereof)

B.

MOTION FOR BILL OF PARTICULARS (R12)

(Note: Different from motion for bill of particulars in

Requirements for filing Bill of Particulars: (R12 S1 in relation to R15)

Criminal Procedure) 1.

Motion for Bill of

Motion for Bill of

Particulars in Civ Pro

Particulars in Crim Pro

Rule 12

R116 S9

May be filed before

May be filed before

responding to a pleading

arraignment

A written motion by the defending party before the court for a bill of particulars

2.

If the pleading is a reply, the motion must be filed within 10 days from service

3.

The motion shall point out the defects complained of, the paragraphs wherein

Address any matter in

Address alleged defects

the pleading not averred

in the criminal complaint

with sufficient

or information

they are contained, and the details desired 4.

definiteness or

The motion is to be filed befo re the filing of responsive pleading

particularity Purpose is to prepare

Purpose is to enable

responsive pleading

properly to plead and

5.

In writing

6.

Hearing of motion set by applicant

prepare for trial

78


7.

Notice of hearing shall be addressed to all

YES!

the parties concerned not later than 10 days from the filing of the motion

R12 S6 provides that a bill of particulars becomes part of the pleading for which it is intended.

8.

Motion and notice of hearing must be served at least 3 days before the date of hearing

C.

MOTION TO AMEND THE PLEADING (Rule 10)

9.

Proof of service Amendment, as provided under R10 S1, is the process of:

The motion for bill of particulars is denied.

1.

Remedy? R12 S5

Adding or striking out an allegation or name of any party or

2.

Correcting a mistake in the name of a party or a written or inadequate allegation or description in any other respect,

After service of the Bill of Particulars or of a more

a.

definite pleading, or after notice of denial of his

So that the actual merits of the

motion, the moving party may file his responsive

controversy may speedily be

pleading within the period to which he was entitled

determined,

at the time of filing his motion which shall not

b.

Without regard to technicalities,

exceed 5 days in any event

c.

And in the most expeditious and inexpensive manner

IN SHORT:

Effect of order of failure to comply to file Bill of Amendment is the process of adding or

Particulars

striking out or correcting a name or R12 S4 If the order is not obeyed, or in case of insufficient

allegation Amendment as a matter of right

compliance therewith, the court may order the striking out of the pleading or the portions thereof

-

To correct alterations in a PLEADING (not in a motion)

to which the order was directed, or make such order as it deems just. (File a motion to strike out the pleading)

Kinds of amendments:

1. Motion for Bill of Particulars: Granted: Clarify, file bill of particulars

Amendment as a matter of right: (R10 S2)

A party may amend his pleading once as a matter of right at any time before a responsive pleading is served or in the case of a reply, at any time within 10

Denied, answer within the plenary period

days after it is served. -

Once the pleading is amended, the old pleading is no more, EXCEPT, a dmissions

IS bill of particulars part of a pleading?

made in the old pleading

79


6. 2.

Amendment by leave of court: (R10 S3)

Amendment to confer jurisdiction

Amendment as a matter of right, so far as no responsive pleading is served

Except as provided in the next preceding section, substantial amendments may be made only upon leave of court Question: Amendment as a matter of right, there is -

Amendment is substantial

second motion to amend (not once as a matter of

-

A responsive pleading had already been

right), is the second motion to amend a matter of

served

right or a matter of discretion? (Question unanswered yet)

3.

Formal Amendments (R10 S4)

A defect in the designation of the parties or other

If there is no responsive pleading y et- amendment as

clearly clerical or typographical errors may be

a matter of right

summarily corrected by the court at any stage of the action, at its initiative or on motion, provided no

Once- matter of discretion

prejudice is caused thereby to the adverse party. Amendment as a matter of right

4.

Amendments to conform or to authorize presentation of evidence (R10 S5)

DENIED: remedy- MANDAMUS

When issues not raised in the pleadings are tried with the express or implied consent of parties, they

Amendment with leave of court (after the filing of a

shall be treated as if raised in the pleadings,

responsive pleading)

pleadings may be amended to conform to the evidence, and failure to amend does not affect the result of the trial of these issues -

With already presentation of evidence, but

DENIED: Remedy? Certiorari Rule 65 in relation to Rule 41 S1 Order is interlocutory

as far as allegations are conc erned, there is discrepancy, so, amendment is allowed to conform to evidence o

Relate Rule 10 to Provisional Remedies

NOTE: meron din to sa criminal procedure

If the original complaint or v erified complaint has provisional remedies, and the original is superseded by amendment, any

5.

Substantial amendments

Amendment of the pleading which would change the original cause of action

provisional remedy is affected by amendment Amendment of complaint, which includes prayer for writ of attachment, the provisional remedy shall be DISSOLVED.

80


Amended Pleading Relate Rule 10 to Rule 6 -

When the answer does not allege cross claim, counterclaim, o

Remedy: AMENDMENT of the pleading

-

Answer omitted counterclaim or cross

Supplemental Pleading

Refers to facts existing at

Refers to facts arising

the time of the

after the filing of the

commencement of the

original pleading

action Takes the place of the

Taken together with the

original pleading

original pleading

Can be made as matter

Always with leave of

of right when no

court

claim, o

Remedy is to AMEND the answer

responsive pleading has yet been filed

Relate to Rule 2 -

In case of non joinder of causes of action, o

AMEND the pleading

Relate to Rule 3 -

Related to joinder of parties, o

AMEND the complaint

Related to Rule 14 and Rule 57 -

Substantial amendment o

-

A substantial pleading

is filed, a new copy of

does not require the

the entire pleading must

filing of a new copy of

be filed

the entire pleading

Amendment as a matter

A supplemental pleading

of right is to be

may be answered within

answered before the

10 days from notice of

filing of the responsive

the order admitting the

pleading, (within 15 days

same, unless a different

after being served with a

period is fixed by the

copy thereof) —(R11 S3)

court. The answer to the complaint shall serve as answer to the

In personam to quasi in rem, publication is allowed

-

When amended pleading

Service of summons required

Amendment of complaint to join another party, o

Need to serve summons

Amendment by leave of court is to be answered within 10 days from notice of the order

supplemental complaint if no new or supplemental answer is filed (R11 S7)

admitting the same. An answer earlier filed may serve as the answer to the amended complaint

Amendment of the answer? 3PC? 4PC? Complaint

if no new answer is filed

in intervention?

(R11 S3)

PWEDE!- amendment of the pleadings naman a ng

Supersedes original

Supplements original

tinutukoy eh

pleading

pleading

With or without leave of

With leave of court

court

81


Relate to Rule 16

no need for hearing, notice, and filing

The court may either deny the motion to dismiss, grant the motion to dismiss, or ORDER THE AMENDMENT OF THE

3 day notice rule- further motion 3 days before

PLEADING

hearing 10 days- motion set for hearing at least 10 days

Is there amendment of the pleading in summary procedure?

Is bill of particulars allowed in Summary Procedure?

YES

NO (Prohibited pleading) -

As a matter of right

-

As a matter of discretion o

NO PROHIBITION under the Rules

Motion to dismiss in Summary Procedure?

on Summary Procedure NO (prohibited pleading) EXCEPT:

D. MOTION FOR EXTENSION OF TIME TO FILE RESPONSIVE PLEADING (Rule 11)

1.

lack of jurisdiction over the person of the defending party

Rule 11 S11 Section 11

2.

lack of jurisdiction over the person of the defendant

3.

failure to comply with the Barangay Conciliation Proceedings

Upon motion and on such terms as may be just,

EXCEPTION TO EXCEPTION:

the court may extend the time to plead provided in

Small Claims Cases- motion to dismiss absolutely

these Rules

hindi pwede

The court may also, upon like terms, allow an answer or other pleading to be filed

E.

SUMMARY JUDGMENT (Rule 35)

Summary judgment -

judgment rendered by the court without trial if it clearly appears that there exists no

after the time fixed by these Rules

genuine issue or controversy as to any material fact, except as to the amount of damages

Extend, BASED ON CAUSE

S1 and 2- PLAINTIFF or DEFENDANT Files Plaintiff- at any time after the pleading in answer

Not a litigated motion

thereto has been served

82


1.

Defendant- at any time

The court must have validly a cquired jurisdiction over the person of the

NOTE: LITIGATED MOTION

defendant either by service of summons or voluntary appearance

GRANTED: -

2.

remedy is APPEAL o

-

defendant

final judgment on the merits

DENIED:

3.

The defendant fails to answer within the time allowed therefore

plead o

Proof of service of summons on the

there is issue, but there is no genuine issue

4.

Written motion by claiming party to declare defendant in default (NOT oral motion!) (state R15 requirements)

Maganda ka? Maganda ka nga

ORDER OF DEFAULT / JUDGMENT BY DEFAULT (Rule 9) Order of Default

Plaintiff failed to file answer, be declared in default (R9 in relation to Rule 6)

Judgment by Default

Order issued by the

Decision or judgment by

court where defendant

the court after order of

failed to file answer

default and presentation

NATURE OF ORDER OF DEFAULT: interlocutory (making reference to R41)

of evidence ex parte by plaintiff REMEDY: MOTION TO LIFT ORDER OF DEFAULT Verified, FAME, Affidavit of Merit (note

ORDER OF DEFAULT

what it is, and in what instances required Rule 9 S3 provides that a defending party who fails

[all FAME])

to file an answer to an initiatory pleading within the time allowed therefor may be declared in default.

Granted: File answer Denied,

DEFENDING PARTY INCLUDES:

FILE MOTION FOR RECONSIDERATION

In a permissive counterclaim- original

-

S4 R65

plaintiff

-

Interlocutory

rd

o

In a 3PC- 3 party defendant

37 applies only to Final orders)

In a cross claim- co defendant

Requirements for declaration of default: (R9 S3)

NOT Rule 37 as basis (because Rule

Denied,

83


CERTIORARI RULE 65 with TRO or injunction -

Dahil pag wala, at may order of default,

DOCTRINE OF HIERARCHY OF COURTS

tuloy tuloy na + judgment of default Higher courts will not entertain any case brought before it unless the same is decided before the lower courts NOTE: umaakyat to hanggang SC- Ordinary and Special Civil actions (from MTC), [not Spec Pro]

Effect of order of default: MTC

-

Lose standing

-

Not to participate at the trial but shall be

(all special civil actions, original actions in exercise of original jurisdiction, final judgment)

entitled to notices -

Entitled to 2 copies of decision, resolution, substantially amended pleadings

ORDINARY CIVIL ACTION Order of default DENIED, Motion for reconsideration

R9 S3 in relation to Rule 10 -

Order of default issued by court, there is amendment of the pleading, order of default is dissolved

DENIED, Certiorari Rule 65 RTC with TRO (S7 R9 amended by AM 7-7-12) DENIED,

R9 in relation to Modes of Discovery -

Motion for reconsideration Rule 37 with RTC

R29 o

Due to refusal to comply with the modes of discovery, the refusing

DENIED,

party may be declared in default

Notice of appeal with CA Rule 41 (original jurisdiction of RTC ang certiorari Rule 65) —apply Neypes, doctrine of hierarchy of courts

In case of motion to declare defendant in default, there is one more remedy:

DENIED, CA M4R Rule 52 DENIED,

File motion to admit answer o

Mawawala ang motion to declare defendant in default dahil may answer na eh

SC R45 Petition for Review on Certiorari apply Neypes, Hierarchy of courts DENIED,

Summary Proceedings

SC M4R Rule 52

84


Motion to declare defendant in default is a

Motion for reconsideration

PROHIBITED PLEADING Denied, As plaintiff in such a case, file MOTION TO RENDER CERTIORARI Rule 65 with TRO/injunction-

JUDGMENT

PREFERRED over appeal As defendant, don’t file motion to admit answer

-

It is equal to motion for extension of time

remedy

to file pleadings o

Because appeal is not the adequate, speedy o

PROHIBITED PLEADING

Judgment kasi is based on evidence ex parte- no evidence to review because no evidence in the

ETO DISKARTE MO, ikaw ang defendant -

first place is presented by defendant

Go to office of the clerk of court, file your answer, at pag ayaw tanggapin, file it by

GENERAL RULE: certiorari is not a substitute for lost

registered mail

appeal;

o

Pag nag argue ang kalaban, motion to strike out answer, WEH! 

R1 S6- Liberal application

EXCEPTION: when appeal is not a speedy, adequate remedy

of the rules, HENCE, you can file answer

Denied. Remedy? File a motion for reconsideration of the judgment or final resolution within 15 days from s ervice thereof

Summary Procedure

before the CA, with proof of service on the adverse party.

Given 10 days to answer from receipt of service of summons

Basis: R52 S1

JUDGMENT BY DEFAULT

Denied. Remedy?

Nature: Final Judgment

File a petition for review on c ertiorari before the SC raising only questions of law which must be distinctly

R9 in relation to R11 Based on presentation of evidence ex parte

set forth, within 15 days from notice of the denial of petitioner’s motion for reconsideration filed in due

time after notice of the judgment. Basis: R45 S2 and R45 S1-- CA judgment,

BEFORE JUDGMENT BECOMES FINAL AND

final order, or resolution can be elevated to

EXECUTORY:

the SC raising only questions of law

REMEDY: Motion to set aside judgment or final order due to FAME Denied,

Denied. Remedy? File a motion for reconsideration of th e judgment or final resolution within 15 days from s ervice thereof

85


before the SC, with proof of service on the adverse

Answer to cross claim

party. rd

th

Answer to 3 4 etc party complaint Basis: R52 S1 Answer to complaint in intervention

AFTER FINALITY OF JUDGMENT:

Reply

Any of the following remedies:

Answer to amended complaint

1.

Answer to amended counterclaim

File petition for relief from judgment, order, or other proceeding on the ground of entry

Answer to amended cross claim

of such judgment or final order, or any other proceeding is thereafter taken against

2.

rd

th

a party in a court through FAME (Rule 38

Answer to amended 3 4 etc party

S1)

complaint

File petition for annulment of judgment or

Answer to amended complaint in

final order or resolution on the ground of

intervention

extrinsic fraud (R47 S1 and 2) Answer to supplemental complaint 3.

File petition for certiorari (Rule 65) Rejoinder

4.

Collateral Attack Answer to counter counterclaim

V.

Answer to counter cross claim

FILING OF ANSWER

Answer- the pleading setting forth the defending

Answer to amended counter counterclaim

party’s defenses

Answer to amended counter cross claim (Bears the same parts of a pleading) WITHIN WHEN?

Discuss the periods to answer to responsive What are the responsive pleadings? Rule 6 of the Rules of Court in relation to Rule 11

pleadings under Rule 11 of the Rules of Court: 1.

Answer to the original complaint

provides for the following responsive pleadings: R13 S1 Answer to the original complaint Defendant shall file answer to the complaint within Compulsory counterclaim

15 days after service of summons, unless a different period is fixed by the court

Answer to the permissive counterclaim R13 S2

86


Where the defendant is a foreign private juridical entity and service of summons is made: -

to a resident agent, answer shall be filed

within 15 days from service of summons to him -

when it has no resident agent but has an

3.

Answer to permissive counterclaim

agent or officer in the Philippines, answer shall be filed within 15 days after service of

summons to said agent or officer -

if it has no resident agent nor an agent or

R11 S4 A permissive counterclaim must be answered within

10 days from service

officer, and summons is made on the proper government office designated by law to receive the same (SEC), which will

4.

Answer to cross claim

then send a copy thereof by registered mail within 10 days to the home office of the foreign private corporation, answer shall be filed within 30 days after receipt of

summons by the home office of the for eign

R11 S4 A cross claim must be answered within 10 days from

service

private entity R14 S15

5.

In case of summons by publication, answer shall be

rd

th

Answer to 3 4 etc party complaint

R11 S5

filed within the time specified in the o rder granting rd

th

leave to serve summons by publication which shall

Time to answer a 3 4 etc party complaint shall be

not be less than 60 days after notice, within which

governed by the same rule as the answer to the

the defendant must answer.

complaint (hence, follow R11 S1, 2 plus amendments)

In case of a non resident defendant in whom extraterritorial service of summons is made, the period to answer should be at least 60 days.

6.

Answer to complaint in intervention

R19 S4

2.

Compulsory counterclaim

(note above periods?)

The answer to the complaint in intervention shall be filed within 15 days from notice of the order

admitting the same , unless a different period is fi xed by the court

7.

Reply

R11 S6

87


A reply may be filed within 10 days from service of

the pleading responded to

8.

Answer to amended complaint

R11 S3 Where plaintiff files amended complaint as a matter of right, the defendant shall answer the same within

15 days after being served with a copy thereof Where its filing is not a matter of right, the defendant shall answer the amended complaint

within 10 days from notice of the order admitting the same R11 S4 (?) Answer within 10 days from service

9.

Amended CC, Amended 34etc PC, Amended CII

R11 S3 (note the period) shall apply to the answer to an amended counter claim, amended cross claim, rd

th

amended 3 4 etc party complaint, amended

17-18. R11 S3 (?)—note the periods

complaint in intervention Answer may raise counterclaim or cross claim 10. Answer to supplemental complaint R11 S7 A supplemental complaint may be answered within

Answer in third party complaint- Can you raise Counterclaim or cross claim? YES!

10 days of the order admitting the same , unless a

But, if counterclaim against counterclaim, counter

different period is fixed by the court. The answer to

counterclaim

the complaint shall serve as a nswer to the supplemental complaint if no new or supplemental

IF cross claim against cross cla im, then counter cross

answer is filed.

claim

11. Rejoinder (?)

Counterclaim

Cross Claim

Any claim which a

Any claim by one party

defending party may

against a co party arising

have against the

out of the transaction or

opposing party

occurrence that is the subject matter either of

88


the original action or of a counterclaim therein Counterclaim with respect to Rule 17 Pwede, proceed after service of answer (Rule 17 S1 and 2)

Compulsory

Permissive Counterclaim

Counterclaim

Counterclaim with respect to Rule 18

Arises out of or is

Does not arise out of nor

necessarily connected

is necessarily connected

with the transaction or

with the subject matter


of the opposing party’s


claim

Plaintiff failed to appear in pre trial, case is dismissed with prejudice, without prejudice to counterclaim


DEFENSES and DENIALS Does not require for its

It may require for its

adjudication the

adjudication the



over whom the court

over which the court

cannot acquire

cannot acquire

jurisdiction

jurisdiction

Barred if not set up in

Not barred even if not

the action

set up in the action

Need not be answered,

Must be answered or

not result in default

else defendant can be

Not an initiatory

What are the types of defenses? 1.

Negative defense

R6 S5 Negative defense is the specific denial of the material fact or facts alleged in the pleading of the claimant essential to his cause or causes of action.

2.

Affirmative defense

declared in default

R6 S5

Initiatory pleading

An affirmative defense is an a llegation of new matter which, while hypothetically admitting the

pleading

material allegations in the pleading of the claimant, Docket fees are

With docket fees

suspended

Omitted counterclaim or cross claim REMEDY: amend the answer

Motion to dismiss with counterclaim If permissive counterclaim, PWEDE Kasi, independent sa main action

would nevertheless prevent or bar recovery by him. The affirmative defenses include: a.

Fraud

b.

Statute of limitations

c.

Release

d.

Payment

e.

Illegality

f.

Statute of frauds

g.

Estoppel

h.

Former recovery

i.

Discharge in bankruptcy

j.

Any other matter by way of confession and avoidance

89


Ground for motion to dismiss (if M2D not filed or

Specifically deny par 2 __ for being untrue, the truth

M2D denied), may be pleaded as an affirmative

of the matter is that...

defense in the answer Motion to set affirmative defense for hearing, -

Equivalent to motion to dismiss o

2.

Partial specific denial

-

Part admission and part denial

During hearing, defending party to present evidence first 

With support dapat

INVERTED TRIAL

3.

Disavowal of knowledge

-

By an allegation of lack of knowledge or

Affirmative defense is granted, case is dismissed. Remedy?

information sufficient to form a belief as to APPEAL (Because trial is on the merits)

the truth or falsity of the averment in the opposing party’s pleading

In good faith, or else, deemed an admission With respect too negative defenses, note SPECIFIC

Specific denial in par __ __ __ for lack of knowledge

DENIALS

to truth or belief of the same

What is a negative pregnant?

Specific not necessarily Specific Denial

-

General denials are deemed admissions

Answer- no need to verify EXCEPT:

Plaintiff’s remedy in such a case?

-

JUDGMENT ON THE PLEADINGS (Rule 34)

1.

Actionable Document

-

Document which creates rights, which serves as basis for filing of the complaint

Kinds of Denials:

2.

Usury in a complaint

1.

Specific Absolute Denial

3.

Summary procedure

-

By specifically denying the averment and

4.

Answer with permissive counterclaim

whenever practicable, setting forth the substance of the matters relied upon for such denial Not denied under oath an actionable document such With support dapat

as deed of sale or mortgage,

90


Failure to verify = deemed admitted

1.

HENCE, judgment on the pleadings Except:

After answer and deponent is not confined in prison

Scope of examinations:

1.

Fraud/forgery

2.

Not a party to the a ctionable document

After jurisdiction is acquired by court, parties may resort to:

VI. MODES OF DISCOVERY Rules 23-28 -

Depositions pending action (under R23)

-

Depositions before action or pending

1.

Matter which is relevant to the subject of the pending action

2.

Not privileged

3.

Not restricted by a protective order

2.

Depositions before action or pending appeal (Rule 24)

Aka perpetuam rei memoriam -

Objective is to perpetuate testimony of a witness for future use o

Taken conditionally, to be used at

appeal (R24)

the trial only in case deponent is

-

Interrogatories to parties under R25

not available

-

Admission by adverse party (R26)

-

Production or inspection of documents or

testimony perpetuated is not in itself

things under (Rule 27)

conclusive proof, either of the existence of

Physical and mental examination of persons

any right nor even of the facts to which they

under (Rule 28)

relate, as it can be controverted at the trial

-

-

Do not prove existence of any right and the

in the same manner as though no perpetuation of testimony was ever had BUT, in the absence of any objection to its

Discussing each:

1.

taking, and even if the deponent did not testify at the hearing, the perpetuated

Depositions pending action (R23)

testimony constitutes prima facie proof of Deposition- a written testimony of a witness given in

facts referred to in the deposition

the course of a judicial proceeding in advance of the trial or hearing upon oral examination or in response to written interrogatories and where an opportunity

3.

Interrogatories to parties (R25)

-

Purpose is to elicit facts from any adverse

is given for cross examination Aka depositions de bene esse May be taken with leave of court when: 1.

2.

After jurisdiction has been obtained over

party -

Answers may also be used as admissions of the adverse party

-

Written interrogatories and the answers

any defendant or over the property which is

thereto must be both filed and served,

the subject of the action but before an

hence, the answers may constitute as

answer has been filed

judicial admissions

Deposition of a person confined in prison

May be taken without leave of court:

91


4.

condition of a party is in controversy,

Admission by Adverse Party under Rule 26

usually arising in controversy in proceedings -

Purpose is to expedite trial and relieve

for guardianship over an imbecile or insane

parties of the costs of proving facts which

person, while the physical condition of the

will not be disputed on trial and the truth of

party is generally involved in physical

which can be ascertained by reasonable

injuries cases

inquiry -

5.

An admission made is for the purpose of

-

Since the results of the examination are

the pending action only and cannot be used

intended to be made public, the same are

in other proceedings

not covered by physician-patient privilege

Production or inspection of documents or

Use of depositions:

things under Rule 27 1. -

evidence)

Applies only to a pending action and the documents or things subject of the motion

Impeach adverse party’s witness (relate to

2.

Residing 100 km away, sick or infirm

must only be those within the possession, control, or custody of a party

R23 R24- Relate to R134 (Deposition)

The documents to be produced must have the following requisites: 1.

Should not be privileged

2.

Should constitute or contain evidence

Interrogatories/Admission by adverse party 1.

File answer or comment, or else, the fa cts

material to any matter involved in the

are deemed admitted, no issue, hence,

action and which are in the party’s

judgment on the pleadings

possession, custody, or control 3.

In a petition for production of papers and documents, they must be sufficiently described and identified, or else, the petition will not prosper

Production/Inspection of documents or things For photographing, copying, inspecting

This mode of discovery does not authorize the

Production or Inspection

opposing party or clerk or other functionaries of the

of Documents or Things

Subpoena

court to distrain the articles or deprive the person who produced the same of their possession, even

Mode of discovery

Process

By motion

By request

temporarily

6.

Physical and Mental Examination of Persons under Rule 28

-

This mode of discovery is available in an

Production or Inspection

Original of Evidence in

of Documents or Things

Custody of Adverse Party

action in which the mental or physical

92


Mode of discovery

Exception to the best

-

of a motion for summary judgment

evidence rule By motion

By notice

At any time before service of the answer or

Before filing responsive pleading or motion for summary judgment

If there is no original

2.

Dismissal upon motion by plaintiff (R17 S2)

document, because such is in the presence of

Upon approval of the court and

adverse party, the

Upon such terms and conditions as the

requesting party can ask

court deems proper

for production of the original by way of notice Without prior knowledge

With prior knowledge of

as to contents

contents of the

With answer, by way of motion without prejudice to counterclaim May be filed independently or separately

document, because the requesting party has the secondary evidence

3.

Dismissal due to fault of plaintiff, when for justifiable cause,

Mental and Physical examination of Persons vs Hospitalization of Insane Persons

Hospitalization of

Physical and Mental

Insane Persons

examination of persons

Plaintiff fails to appear on the date of the presentation of his evidence in chief on the complaint Plaintiff fails to prosecute his action for an

Governed by Rule 101

Governed by Rule 28

unreasonable length of time

Special proceeding

Mode of discovery

Plaintiff fails to comply with these Rules or

File a petition

File a motion

Filed by Regional

Any party may avail of

Director of DOH

any order of the court

What is the 2 dismissal rule? What are its elements?

Another remedy which may be availed of:

MOTION TO DISMISS BY PLAINTIFF (Rule 17)

(R17 S1) -..the notice of dismissal by plaintiff operates as an adjudication upon the merits when filed by a plaintiff who has once dismissed in a competent court an action based on or including the same claim

What are the grounds for dismissal under Rule 17? 1.

Dismissal upon notice by plaintiff (R17 S1) Elements of 2 dismissal rule: (R17 S1)

93


1. 2.

First complaint filed by plaintiff before court

The dismissal shall be without prejudice,

of competent jurisdiction

unless otherwise specified in the order

At any time before service of answer or of motion for summary judgment, plaintiff filed notice of dismissal of the first

(S3), due to fault of plaintiff

complaint, which the court granted (effect

The dismissal shall have the effect of an

without prejudice) 3.

adjudication upon the merits unless

Second complaint filed by plaintiff involving

otherwise declared by the court

an action based on or including the same claim before court of competent jurisdiction 4.

At any time before service of answer or of motion for summary judgment, plaintiff filed notice of dismissal of the second complaint based on or including the same

What are your remedies, as plaintiff, in such cases? S1- dismissal upon notice by plaintiff

claim as the first complaint

refile the case (unless the 2-di smissal rule applies [?])

Effect of 2 dismissal rule (R17 S1): The second notice of dismissal shall operate as an

or if so declared with prejudice, appeal the

adjudication upon the merits.

dismissal

Exceptions to 2 Dismissal Rule:

S2- dismissal upon motion of plaintiff

st

1.

1 action is not related to the secon d action

Refile the case

2.

Court dismissing the second action is a

If the court declares that the dismissal is

court not of competent jurisdiction

with prejudice, appeal the dismissal

S3- dismissal due to fault of plaintiff Nature of Dismissal of actions under Rule 17: Appeal the dismissal

(S1), upon notice by plaintiff If the court declares that the dismissal is

Unless otherwise stated in the notice, the

without prejudice, refile the case

dismissal is without prejudice, (*2 dismissal rule) ..except that a notice operates as an adjudication upon the merits

Another:

when filed by a plaintiff who has once

JUDGMENT ON THE PLEADINGS (Rule 34)

dismissed in a competent court an a ction based on or including the same claim

S1 Where the answer

(S2), upon motion of plaintiff -

fails to tender an issue or

94


-

otherwise admits the material allegations of

On the merits

the adverse party’s pleading,

the court may, on motion of that party, direct

Interlocutory or on the merits

There is answer filed

judgment on such pleading

If filed by plaintiff, filed at any time before answer is served

However, in an action for declaration of -

nullity or

-

annulment of marriage or

If filed by defendant,

-

for legal separation,

may be filed at any time even before answer

the material facts alleged in the complaint shall always be proved

VII. REPLY (R6 S10) Exception that JoP be on motion: -

if at pre trial court finds that judgment on the pleadings is proper, it can render such judgment motu proprio

A pleading, the office or 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 join or make issue as to such new matters. If a party does not file such reply, all the new matters alleged in the answer are deemed

Allegations not deemed admitted by filing of judgment on the pleadings:

controverted. R11- may be filed within 10 days from service of the pleading responded to

-

irrelevant allegations

-

immaterial allegations

-

allegations of damages in the complaint

VIII. REJOINDER

Judgment on the

Summary Judgment

Pleadings 10 day notice rule

Filed by plaintiff

Filed by defendant

Based solely on the

Based on pleadings,

pleadings

depositions, admissions, affidavits

Answer fails to tender an

No genuine issue

issue or there is an

between the parties

allegations

defendant being his answer to the plaintiff’s

replication

3 day notice rule

admission of material

Second pleading on the party on the part of

Another form of responsive pleading

IX. PRE TRIAL (Rule 18) Rule 18 S1 COMPLETE: AFTER the LAST PLEADING ASSERTING A CLAIM has been served and filed, or AFTER the E XPIRATION OF THE TIME FOR FILING THE LAST PLEADING ASSERTING A CLAIM, a pre trial is to be conducted

95


upon motion ex parte by plaintiff that the case be

Pre Trial in Criminal

set for pre trial

Pre Trial in Civil Cases

Cases Mandatory requirement

Pre Trial Conference- yes

After arraignment,

After the last pleading

within 30 days from the

asserting a claim has

date the court acquires

been served and filed

jurisdiction over the

Answer

accused Answer to permissive counterclaim Answer to cross claim

Rule 118

Rule 18

No pre trial brief

Pre trial brief is required to be filed and served

Answer to third party complaint Answer to complaint in intervention Reply to answer

Counsel of accused and

Parties and counsel are

prosecutor are required

required to appear

to appear

Reply to answer to permissive counterclaim

Non appearance may be excused only if valid

Reply to answer to cross claim

cause is shown, or representative shall

Reply to answer to third party complaint

appear in behalf duly authorized in writing to

Reply to answer to complaint in

enter into amicable

intervention

settlement, submit to ADR, enter into

Rejoinder

stipulations of facts and of document Failure of counsel of

Failure of plaintiff to

accused or prosecutor to

appear, dismissal of the

If the motion is not filed, is the case dismissed for

appear, and without

case with prejudice,

failure to prosecute?

acceptable excuse for

unless otherwise

lack of cooperation,

ordered by the court

By MOTION

-

Techinically, yes, but ff R1 S6 (liberal

court may impose

construction,

proper sanctions or

o

It is not dismissed

penalties

Failure of defendant to

Hence, if plaintiff failed to file motion ex parte that

appear, plaintiff to

the case be set for pre trial, the clerk of court shall

present evidence ex

issue notice of pre trial conference

Presence of private

parte

offended party is not required (as only required to appear at

96


of the criminal

arraignment)

and civil aspects of the case

Limitation on the number of

Prê trial agreement is in

Signed by parties and

writing, signed by

counsel (?)

witnesses

accused and counsel, or else, cannot be used Advisability of

against accused

preliminary Considerations in pre

Considerations in pre

conference of

trial conference:

trial:

issues to commissioner

Plea bargaining

Possibility of amicable

Propriety of

Stipulation of

settlement or

rendering

facts

submission to

judgment on

alternative

the pleadings,

modes of

summary

Marking of

dispute

judgment,

identification of

resolution

dismissing the

evidence of the

action should a

parties

valid ground therefor be

Simplification of

found to exist

the issues Waiver of objections to admissibility of

Necessity or

evidence

desirability of

Advisability or necessity of suspending the

amendments to

proceedings

the pleadings Modification of order of trial if accused admits

Possibility of

the charge but

obtaining

interposes a

stipulations or

lawful defense

admissions of

Such other matters as may aid in the prompt disposition of

facts and of

the action

documents to Such matters as

avoid

will promote a

unnecessary

fair and

proof

(simplified)

expeditious trial

97


Pre Trial In Criminal

Pre Trial in Civil

f.

The advisability of a preliminary conference of issues to a commissioner

After arraignment

After last pleading asserting a claim has

g.

been served and filed No pre trial brief

The propriety of rendering judgment on the pleadings or summary judgment or of dismissing the action should a valid ground

With pre trial brief

therefore the found to exist

Order of pre trial signed h.

by accused and counsel

The advisability or necessity of suspending the pleadings

so admissions are binding i. Failure to appear,

Failure to appear by

sanctions against

plaintiff, dismissal of

counsel and prosecutor

case with prejudice

Such other matters as may aid in the prompt disposition of the action

S6- Pre trial brief Failure to appear by defendant, plaintiff to present evidence ex parte

The parties shall file with the court and serve on the adverse party, in such manner as shall ensure their receipt thereof at least 3 days before the date of the pre trial, their respective pre trial briefs which shall contain, among others:

What are the purposes of pre-trial?

a.

A statement of their willingness to enter into amicable settlement or alternative

(Rule 18 S2)

modes of dispute resolution, indicating the The court shall consider: a.

The possibility of an amicable settlement or of a submission to alternative modes of

desired terms thereof b.

stipulation of facts

dispute resolution b.

The simplification of the issues

c.

The necessity or desirability of amendments

c.

The issues to be tried or resolved

d.

The documents or exhibits to be presented, stating the purpose thereof

to the pleadings d.

The possibility of obtaining stipulations of

e.

discovery procedures or referral to

avoid necessary proof The limitation of the number of witnesses

A manifestation of their having availed or their intention to avail themselves of

admissions of facts and of documents to

e.

A summary of stipulated facts and proposed

commissioners f.

The number and names of the witnesses, and the substance of their respective testimonies

98


Failure to file the pre trial brief shall have the same effect as failure to appear at the pre trial.

Effects of failure to appear at the pre trial: Plaintiff fails to appear PRE TRIAL BRIEF R18 S5 Required to be filed at least 3 days before the Pre Trial Conference

The failure of plaintiff to appear at the pre trial conference when so required shall be cause for the

Ensure na really good, for filing memoranda

dismissal of the action. The dismissal shall be with prejudice, unless otherwise ordered by the court.

(all remedies, may bayad, bawat pleading) — pagkakitaan

Defendant fails to appear Failure to file at pre trial brief = failure to appear at

R18 S5

pre trial, same effect The failure of defendant to appear at the pre trial conference shall be cause to allow the plaintiff to present his evidence ex parte and the court to

Requisites for appearance at the pre trial:

render judgment on the basis thereof.

(R18 S4) 1.

2.

Duty of the parties and their counse l to

Remedies in case of failure to appear by plaintiff /

appear at the pre trial

defendant: Plaintiff fails to appear

The non-appearance of a party may be excused only if a valid cause is shown therefor or IF A REPRENTATIVE SHALL

Plaintiff can file an appeal, unless the

APPEAR IN HIS BEHALF FULLY AUTHORIZED

dismissal is ruled to be without prejudice,

IN WRITING

which in such a case, defendant would be avail of the remedy of refiling the case or filing a petition for certiorari under Rule 65

If party a NATURAL PERSON- representative is armed with SPECIAL POWER OF ATTORNEY

Defendant fails to appear

If party is a JURIDICAL PERSON (corporations or

NOTE: Defendant WILL NOT BE DECLARED IN

partnerships)- representative is armed with BOARD

DEFAULT! Likewise, there is no such thing under the

RESOLUTION (Board resolution is binding upon the

1997 Rules on Civil Procedure AS IN DEFAULT (sa

entire corporation, because the Board of Directors

luma to)

[in case of stock corporations] or the Board of Trustees [in case of non stock corporations] are the

When defendant fails to appear, 4 SCENARIOS ARE

ones who make the decisions of the corporation

CONTEMPLATED:

through Board Resolution-- note that Board Resolution prevails over SPA)

-

Issuance of order allowing ex parte presentation of evidence/before presentation of evidence

99


-

Order allowing ex parte presentation of

BAWAL accdg sa Manual of Clerk of Court (ugat ng

evidence was issued, plaintiff presents ex

corruption)

parte evidence -

Before judgment becomes final and

The only time na pwede is when he is not

executory

an employee of a court

After judgment becomes final and executory

REMEDIES: File a motion for reconsideration + Set aside the

Evidence Ex parte -

law [R37]? OR,

ORDER ALLOWING PLAINTIFF’S PRESENTATION OF EVIDENCE EX PARTE

on the ground that the order is contrary to

-

that, the order allowing ex parte presentation of evidence is an interlocutory order)

REMEDIES: The order is interlocutory, hence,

if you fail this, the evidence shall form part

File motion for reconsideration, based on

of the records of the case – kawawa ka cge

R65 S4 and R41 S1 -

R65 (4)- ..whether such m4r is required or not..

-

R41 (1)- the order allowing ex parte

If the motion for reconsideration + motion to set

presentation of evidence is an interlocutory

aside is denied, file a petition for certiorari under

order, hence, no appeal may be taken from

Rule 65

it R41 (1)- the order allowing ex parte presentation of evidence is an interlocutory If M4R denied, file petition for certiorari under Rule

order, no appeal may be taken from it,

65

hence, aggrieved party may file the appropriate special civil action under Rule -

R41 (1)- the order allowing ex parte

65, which includes certiorari

presentation of evidence is an interlocutory order, no appeal may be taken from it, hence, aggrieved party may file the appropriate special civil action under Rule

Before judgment becomes final and

65, which includes certiorari

executory REMEDIES:

PRESENTATION OF EVIDENCE EX PARTE Conducted by Court of CLERK OF COURT -

Clerk of court, a LAWYER o

Hence, if judge delegated to clerk

-

Appeal the judgment (Rule 41) or

-

File motion for reconsideration (Rule 37) or

Ground: that the evidence is insufficient to justify the decision or final order

of court who is not a lawyer, BAWAL -

File a motion for new trial (Rule 37)

Can clerk of court charge Commissioner’s Fee?

100


Ground: FAME which ordinary prudence could not

-

Deemed admitted

have guarded against and by reason of which such aggrieved party has been impaired in his right

Cause of action admitted by defendant, -

Rule 18 in relation to Rule 34 

After judgment becomes final and

JUDGMENT ON THE PLEADINGS

Conclusive on part of admitter, for purposes

executory

of substantial justice REMEDIES: Pre Trial -

File Relief from judgment, order, or other

proceedings under Rule 38 or o

-

GROUND: any proceeding is

May be delegated to clerk of court who is a lawyer

thereafter taken against the party After PRE TRIAL,

in any court through FAME -

File for annulment of judgment, final

order, or resolution under Rule 47 or o

-

X.

TRIAL

The best part of law practice

GROUND: extrinsic fraud

File petition for certiorari under Rule 65 or o

GROUND: GAD amounting to lack or excess of jurisdiction on the part

(Rule 30 in relation to Rule 132 S4, 5, 6, 7, 8)

of the tribunal exercising judicial functions, and there is no appeal

A proceeding where parties present

nor any plain, speedy and

evidence and ends in oral argument

adequate remedy in the ordinary course of law -

Make a collateral attack on the judgment

With respect to examination of witnesses Pre trial brief (see above) presented in trial

Pre Trial Order -

Order issued by the court stating what transpired during the pre trial conference o

Can be amended accordingly

o

By filing motion to amend or

All witnesses in pre trial brief to be presented Before witness is presented, offer of testimony, in accordance with purpose in pre trial brief

correct the pre trial order, within 5 days after receipt of the pre tr ial order o

NO NEED for counsel to sign the pre trial order

Pre Trial conference- relates to judicial admissions under Rule 129

1.

PROPONENT’S / PLAINTIFF’S TESTIMONIES AND EVIDENCE IN CHIEF as well as that of witnesses

With respect to Rule 7 (parts of a pleading) stating the cause of action in the body of the pleading

Adverse party admits your proposals/stipulations

101


Ultimate facts to be proven during the trial of the

Line of questioning:

case Is it not a fact you are 1 of... YES ORDER: Executed sometime, etc... YES

Direct Examination NOTE: Lead mo papunta sayo -

Transform allegations of the complaint in the body of the pleading

-

Cause of action

-

Direct testimony

-

Show sinumpaang salaysay

-

Test credibility of witness, test credibility of testimony

-

Not from the mouth of credible witness, but from credible testimony o

WHY? Asa TSN- pag may mali, ipa correct

HOW, WHEN, WHERE, WHAT, WHY



CONSIDER violations and exceptions:

TSN is best evidence of what transpired during trial

Leading Questions



To impleach

-

Avoid except in preliminary matters

testimony of

-

Propound answers which proponent desires

witness 

To refresh

NOTE EXCEPTIONS: hostile witnesses, minors,

memory of the

adverse party, preliminaries

witness 

Is your name Ms X? Leading

isa isa sa memorandum

Is your age 27? Leading

Misleading questions

Ididiscuss din to

Re Direct Examination Re establish what was destroyed during the cross examination

Re Cross Examination Cross Examination Requires knowledge of: -

Facts

-

Evidence

-

Defenses

Leading questions are allowed Totoo bang ikaw ay maganda? Leading

Destroy what was re established in the re direct examination NOTE: Identify all witnesses

Offer of Testimony

Offer of Evidence

Made at the time the

After termination of

witness is presented on

presentation of evidence

the witness stand

of prosecution

Obtain affirmative answers- GOOD

102


case

responsive pleading

That plaintiff has shown

10 grounds

no right of relief

Evidence in chief Evidence supporting allegations in the

If granted, case

If granted, case

dismissed

dismissed, remedy

complaint

depends:

If granted but on appeal After presentation of all witnesses,

order of dismissal is

With prejudice- appeal

reversed, defendant is

Offer of evidence

deemed to have waived

Without prejudice- refile

the right to present evidence Then, Both by way of motion

Comment or objection -

Secondary

-

Not identical

NOTE: in summary proceedings, no trial, no demurrer to evidence In Criminal Cases,

Then, There is demurrer to evidence in Summary

Order of admission/Exclusion of evidence Admitted; Exh A, Exh B

Procedure -

Constitutional Right to Due process

Excluded: Exh C, etc

TENDER OF EXCLUDED EVIDENCE Considered by CA in appeal

After PLAINTIFF RESTS ITS CASE, (defendant may file) DEMURRER TO

Demurrer to evidence in

Demurrer to evidence in

Civil Procedure

Criminal Procedure

Rule 33

Rule 119 S23

No leave of court


required

court

EVIDENCE (Rule 33) D2E vs M2D (simplified)

If with leave of court,

D2E

M2D

Rule 33

Rule 16

After plaintiff rests its

Before filing of

accused could present evidence if demurrer is denied

103


If without leave of court,

no longer present

accused could not

evidence and submits

present evidence if

case for decision based

demurrer is denied

on prosecution’s

evidence If court finds that

If court finds that

evidence is insufficient

prosecution’s evidence is

(plaintiff has shown no

insufficient, demurrer

right to relief), complaint

granted, accused is

dismissed as demurrer is

acquitted

(simplified version)

granted

D2E Civil Judgment of acquittal not appealable, hence, DJ sets in Judgment of dismissal is

Judgment of acquittal is

appealable

not appealable; DJ sets

D2E Criminal

Rule 33

Rule 119 S23


With LoC- if denied,

court

accused presents evidence

in If granted, but on appeal If demurrer is granted but on appeal, order of dismissal is reversed,

is reversed, defendant

Without LoC- if denied,

loses the right to present

defendant cannot

evidence, case

present evidence

submitted for decision

defendant is deemed to have waived the right to present evidence

After plaintiff rests its case, no D2E or D2E denied no appeal, (NO res judicata in

2.

DEFENDANT’S EVIDENCE IN CHIEF

dismissal due to demurrer)

Prove allegations in the body of the answer

Plaintiff files motion to

Court may motu proprio

deny motion due to

deny motion

(R7 S1) Order:

demurrer to evidence

Direct Examination If court denies demurrer,

If court denies demurrer,

Cross Examination

defendant will present evidence

Re Direct Examination With LoC- accused may present evidence

Re Cross Examination Formal offer of evidence

W/O LoC- accused can

Comment

104


Objection

A judgment or final order determines the merits of a case, shall be

Offer Tender of excluded evidence DEFENDANT RESTS ITS CASE

-

in writing,

-

personally and directly prepared by the judge,

-

the law on which it is based,

Note: No more D2E- Rule 33- after PLAINTIFF rests its case...

3.

stating clearly and distinctly the facts and

-

must contain a dispositive part,

-

signed by him, and

-

filed with the clerk of court

REBUTTAL EVIDENCE Purpose is to rebut defendant’s evidence in

chief Order: (same as previously stated)

CONSTITUTIONAL BASIS: A8 S14—(basis for Rule 36) No decision shall be rendered by any court without expressing therein clearly and distinctly the facts and the law on which it is bas ed.

4.

SUR REBUTTAL EVIDENCE No petition for review or motion for reconsideration Purpose is to rebut the rebuttal

of a decision of the court shall be refused due course or denied without starting the legal basis therefor.

Order: (Same as previously stated)

Kinds of Judgments:

5.

MEMORANDUM JUDGMENT UPON A COMPROMISE Narration of facts of the case, issues, no cause of action, no defenses, but only

-

Judgment rendered by the court on the basis of compromise agreement entered

contain discussions

into by the parties -

compromise agreement in absence of

After trial,

XI. JUDGMENT (Rule 36)

Immediately executory upon signing of motion to set aside on the ground of FAME

-

Has effect of res judicata

-

Compromise agreement May be submitted

Declares rights/reliefs of parties

to by parties at any stage of a case, even

Final consideration and determination of a

after F and E, even without court approval

court of competent jurisdiction upon the matters submitted to it in an action or

(A2028-2046, NCC)

proceeding S1- Rendition of judgments and final orders:

105


Court could render judgment upon a compromise, and, in case of breach of any of the conditions, the party may ask the court for execution of judgment.

Remedies to judgment by consent, confession, compromise: File motion to set aside

JUDGMENT UPON CONFESSION If denied, file petition for certiorari under Judgment rendered by court when a party

Rule 65 (R41 S1)

expressly agrees to the other party’s claim

or acknowledges validity of the claim against him

JUDGMENT UPON THE MERITS Judgment that is rendered after

Judgment upon

Judgment by confession

consideration of the evidence submitted by the parties during the trial of the case

compromise Provisions and terms are

An affirmative and

settled and agreed upon

voluntary act of

by the parties to the

defendant himself. The

action and which is

court exercises a certain

entered by the consent

amount of supervision

of the court

over the entry of

CLARIFICATORY JUDGMENT Judgment rendered to clarify an ambiguous judgment or one difficult to comply with

judgment

JUDGMENT NON PRO TUNC 2 kinds of judgment by confession:

Judgment by Cognovit actionem

Now for then Judgment intended to enter into the record the acts which had already been done, but

Defendant after service instead of entering

which do not appear in the records

a plea, acknowledged and confessed that plaintiff’s cause of action was just and

rightful

JUDGMENT SIN PERJUICIO Without prejudice

Judgment by Confession Relicta

Refers to dismissal of a case without

Verificatione

prejudice to its being refiled

After pleading and before trial, defendant both confesses the plaintiff’s cause of

JUDGMENT BY DEFAULT (R9 S3)

action and withdrew or abandoned his plea or other allegations, whereupon judgment was entered against him without

Judgment rendered by the court following an order of default, granting the claiming

proceeding to trial

106


party the relief prayed for on the basis of

particular claim and all counterclaims

his evidence presented ex parte by plaintiff

arising out of the transaction or occurrence which is the subject matter of said claim

JUDGMENT ON THE PLEADINGS (R34) SPECIAL JUDGMENT Judgment rendered by the court upon motion by plaintiff where the answer of defendant

R39 S11

fails to tender an issue or

Judgment requiring performance of an act

otherwise admits the material allegations of

other than execution of judgments for

the adver se party’s pleading

money execution of judgments for a specific act, a certified copy of the judgment shall be attached to the writ of execution and shall

SUMMARY JUDGMENT (R35)

be served by the officer upon the party against whom the same is rendered, or

Judgment rendered by the court if the

upon any other person required thereby, or

pleadings, supporting affidavits, depositions

by law, to obey the same, and such party or

and admissions of plaintiff or defendant

person can be held liable for c ontempt for

show that:

disobedience of such special judgment

except as to the amount of da mages, there

is no genuine issue as to any material fact and that the moving party is entitled to

JUDGMENT FOR SPECIFIC ACTS

judgment as a matter of law R39 S10 Judgment of a court directing a party to execute a conveyance of land or personal

SEVERAL JUDGMENT

property or to deliver deeds or other R36 S4

documents, or to perform any other specific act in connection therewith

Judgment rendered by the court where in an action against several defendants, the court renders judgment against one or more of them, leaving the acti on to proceed

JUDGMENT ON DEMURRER TO EVIDENCE

against the others R33 judgment rendered by court dismissing case

SEPARATE JUDGMENT

upon motion of defendant, made after plaintiff rested his case, on the ground that upon the facts presented by plaintiff and

R36 S5

the law on the matter, plaintiff has not Judgment rendered disposing of a claim

shown any right to relief

among several others presented in a case after a determination of issues material to a

107


CONDITIONAL JUDGMENT Judgment wherein effectivity of such

Obiter Dictum

depends upon occurrence or non occurrence of an event

FINAL JUDGMENT Law of the Case Judgment which disposes of the whole subject matter or terminates the particular proceedings or action, leaving nothing to be done by the court but to enforce in execution what has been determined If after judgment is promulgated, the judgment is

AMENDED JUDGMENT

ambiguous and difficult to comply, MOTION FOR CLARIFICATORY JUDGMENT

Aka clarified judgment; it is an entirely new judgment, which supersedes an original judgment rendered by the court

XII. REMEDIES BEFORE JUDGMENT BECOMES FINAL AND EXECUTORY: SUPPLEMENTAL JUDGMENT

Motion for reconsideration (Rule 37)

Judgment of the court which serves to

Motion for New Trial (Rule 37)

bolster or add to the original judgment, and does not take place nor extinguish the

Reopening of Trial (Rule 119)

original judgment Appeal (Rules 40-43, 45) Conclusiveness of judgment 1.

Motion for Reconsideration (Rule 37)

R37 S1 Res Judicata (note above)

Within the period for taking an appeal, a motion for reconsideration may move for reconsideration on the grounds that:

Stare Decisis

a.

Damages awarded are excessive

b.

Evidence is insufficient to justify the decision or final order

108


Civil- for reasons of EQUITY c.

That the decision or order is contrary to law For criminal cases- for reason of admission of additional evidence

NOTE: M4R here is directed against judgment or final order, not an interlocutory order which preceded petition for certiorari (R41 S1 in relation to R65 yon) NOTE: Interlocutory orders are non appealable (AM

4.

APPEAL (Rules 40-43, 45)

-

from the judgment, order of denial, assignment of errors

7-7-12-SC)

o

Under Summary Procedure, BAWAL ang M4R and

FINAL ORDER- decision or the denial of M4R or MNT

MNT R37 (General Rule) 15 days- ordinary appeal Exception: If against interlocutory order 30 days- record on appeal (Spec Pro, Multiple Appeals- Expropriation, Partition) 2.

Motion for New Trial (Rule 37)

-

Motion to Rehear a case already decided by

Neypes vs CA Fresh Period to Appeal:

court but before judgment thereon 15 days from denial of M4R/MNT

becomes final and executory, filed within the period for taking an appeal, to

30 days from denial of M4R/MNT

set aside the judgment or final order order and grant a new trial based on the ff grounds materially affecting substantial rights of a party:

MTC decisions

(R37 S1) 1.

MTC

FAME which ordinary prudence could not

M4R Under

have guarded against and by reason of been impaired in his right or 2.

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

Rule 37

RTC

which such aggrieved party has probably Notice / Record

Petition for

on

Review

Appeal

under Rule

under

42

M4R Under

CA

Rule 52

R40 (from RTC decisions in exercise of appellate jurisdiction)

Petition 4 review on

SC

certiorari under Rule 45

3.

Reopening of Trial (civil in relation to criminal procedure- R119 S24) SC

Reopening of the proceedings to avoid miscarriage of justice

M4R Rule 52

109


Notice/Record on Appeal In case of Record on Appeal, appellant’s Brief 45

days to file record on appeal

Rule 40

Rule 41

Rule 42

Rule 43

Rule 45

Memorandu

Appellant’

Petition

Petition

Petition for

m of appeal

s Brief

for Review

For

Review on

Review

Certiorari

Notice or

Notice or

Petition

Petition

Petition for

Record on

record on

for Review

for

Review on

appeal

appeal

Review

Certiorari

(Appeal?)

RTC decisions in exercise of original jurisdiction

Of MTC

Of RTC

Of RTC

Of quasi

Of CA,

decisions

Decisions

decisions

judicial

Sandiganbayan

original

appellate

bodies

, CTA, RTC

jurisdictio

jurisdictio

n

n

Questions of

Questions

Questions

Question

Questions of

fact law or

of fact law

of fact

s of fact

law

both

or both

law, or

law or

both

both

To CA

To CA

To RTC

To CA

decisions

To SC

RTC

General Rule: Finding of fact of CA are final and conclusive and M4R

Notice or

Under

Record

Rule 37

on appeal

CA

cannot be reviewed on appeal to SC: EXCEPTIONS:

under

Rule 41

M4R Under

1. SC

Rule 52

Petition 4

speculations, surmise, conjecture 2.

review on

When finding is grounded entirely on

When inference is manifestly absurd, mistaken, or impossible

certiorari under Rule 45

3.

When judgment is premised on a misrepresentation of facts

SC M4R

4.

When there is GAD in appreciation of facts

5.

When findings of fact are conflicting

Rule 52

110


6.

When CA in making its findings went

S2- Petition for relief from denial of appeal

beyond the issues of the case and the same is contrary to both the admissions of

When judgment or final order is rendered by court in

appellants and appellees

any case, and a party thereto, by FAME, has been prevented from taking an appeal, he may file a

7.

When findings of fact of CA are at variance

petition in such court and in the same case and

with those of the trial court, the SC has to

praying that the appeal be given due course.

review the evidence in order to arrive at the correct findings based on record Filed within 60 days from knowledge of judgment 8.

When findings of fact are conclusions

and within 6 months from entry of judgment

without citation of specific evidence on which they are based 9.

When facts set forth in the petition as well

-

Relate to appeal o

as in the petitioner’s main and reply briefs

Failure to appeal due to FAME

are not disputed by respondents 10. when findings of fact of the CA is premised

2.

on supposed evidence and is contradicted

Petition for Annulment of judgment (Rule 47)

by evidence on record RTC exclusive original jurisdiction to CA 11. when certain material facts and circumstances which have been overlooked by the trial court which, if taken into

MTC exclusive original jurisdiction to RTC Ground: extrinsic fraud

account, would alter the result of the ca se in that they would entitle accused to acquittal

REMEDIES AFTER JUDGMENT BECOMES FINAL AND EXECUTORY: 1.

Annulment of judgment -

Remedy in law independent of the case where the judgment sought to be annulled

Petition for relief from Judgment (Rule 38)

was rendered and may be availed of though the judgment has been executed

S1- Petition for relief from judgment, orders, other proceedings When a judgment or final order is entered, or any other proceeding is thereafter taken against a party in any court through FAME, he may file a petition in

Important condition: -

Petitioner failed to move for MNT, appeal

such court and in the same case praying that the

from, file petition for relief against, or take

judgment, order, or proceeding be set aside

other

-

OTHER PROCEEDING INCLUDES: o

Order or writ of execution

o

Order dismissing appeal

appropriate

remedies

assailing

questioned judgment or final order or resolution through no fault attributable to him

111


a.

upon

expiration

of

period

to

appeal therfrom if no appeal has S2- Grounds

been duly perfected

1.

Extrinsic or collateral fraud

2.

Lack of jurisdiction over subject matter and

NOTE: (rules on motion)

over the person

-

ministerial on the part of the court

IF DENIED, mandamus or appeal is the proper remedy

3.

Certiorari under Rule 65 Nature of writ of execution: R39 S8 The writ of execution is issued in the name of RP and

4.

Collateral Attack

shall state: e.

Name of court which granted the motion

EXECUTION OF JUDGMENT -

f.

Case number

g.

Dispositive

portion

of

the

judgment or order subject of the

Nothing left for the court but to enforce its

execution

decision h.

Shall require the sheriff or other proper officer to whom it is

Execution

directed

to

enforce

the

writ

according to its terms -

remedy

afforded

by

law

for

the

enforcement of a judgment -

object is to obtain satisfaction of the judgment on which the writ is issued

BY MOTION- 5 years AFTER 5 years

Rule: Matter of right on part of winning party (execution), and court cannot refuse

Revival of Judgment- 10 YEARS, by MOTION Except: 1. Execution as a matter of right (R39 S1) Execution shall issue as a matter of right, on motion, 1.

When judgment turns out to be incomplete or conditional

2.

Judgment is novated by parties

upon judgment or order that disposes of the action or proceeding

112


3.

Equitable grounds like change in situation of the parties which makes execution inequitable

4.

Execution is enjoined

5.

Judgment has become dormant

6.

Execution is unjust or impossible

May issue before lapse of period to appeal, and even during appeal Discretionary upon the court; there is inquiry on whether there is good reason for execution

right Period to appeal has already lapsed, no appeal is perfected Ministerial duty of the court provided there are no supervening events

S2- Discretionary execution

a. When proper to Quash Writ of Execution: 1.

Change in situation of parties renders execution inequitable

2.

Issued against the wrong party

3.

Issued without authority

4.

Improvidently issued

5.

Defective in substance

6.

Judgment is already satisfied

7.

Controversy was never submitted to the court

Rule: Dispositive portion of decision is the part that becomes subject of execution

Execution of a judgment or a final order pending appeal

On motion of the prevailing party with notice to the adverse party filed in the trial court -

while it has jurisdiction over the case and is in possession of either the original record or the record on appeal, as the case may be, at the time of the filing of such o motion, said court may, in its discretion, order execution of a  judgment or final order even before the expiration of the period to appeal

After the trial court has lost jurisdiction, the motion for execution pending appeal may be filed in the appellate court. Discretionary execution may only issue upon good reasons to be stated in a special order after due hearing.

Except: 1.

When there is ambiguity in the dispositive portion

2.

Where extensive and explicit discussion and settlement of the issue is found in the body of the decision

b.

Execution of several, separate, or partial judgments

A several, separate, or partial judgment may be executed under the same terms and conditions as execution of a judgment or final order pending appeal.

S2- Discretionary Execution Discretionary Execution

Execution as a matter of

Grounds:

113


1.

Insolvency of judgment debtor

2.

Wastage of asset by judgment debtor

5.

Other

judgments

declared

to

be

immediately executory unless otherwise ordered by trial court

Court may, in its discretion, order an execution before expiration of the time within which to appeal,

S6- Execution by motion or independent action

provided, Modes of enforcement: 1.

2.

There is motion for execution filed by winning party

1.

By motion within 5 years from date of entry

There is notice of said motion to the

2.

By independent action for revival of judgment after 5 years from entry and

adverse party

before it is barred by statute of limitations 3.

There are good reasons stated in a special

which is 10 years from entry under 1144,

order after due hearing

NCC

Revival of judgment S6 Independent action

Supersedeas Bond -

Bond filed by petitioner and approved by court before the judgment becomes final and

executor

and

conditioned

upon

performance of the judgment appealed from, in case it be affirmed wholly or in part

Remedy in case of execution as matter of discretion, -

CERTIORARI o

Assumes there is no execution within first 5 years Party who files the action is the judgment creditor himself, or his assignee, or his successor in intereest Filed due to lapse of 5 year period

Interlocutory, without prejudice to

Revival of judgment S34 Carried out through filing of a motion in court Assumes that judgment is executed within first 5 years Party who files such motion is not the original judgment creditor but he is the highest bidder in the public auction Filed because movant is deprived of property purchased

the outcome of appeal

S4- Judgments not stayed by appeal (Exception to general rule) In the following cases:

S6 N/A to: 1.

Judgments for support

2.

Contempt orders in unauthorized re-entry on land by ejected defendant

1.

Injunction

3.

Issuance of writs of possession and

2.

Receivership

4.

Special proceedings and land registration

3.

Accounting

4.

Support

cases

S9- Award of judgments of money, how enforced

114


1.

Immediate payment on demand

1.

2.

Satisfaction by levy

by law, or the homestead in which he

3.

Garnishment of debts and credits

resides, and the land necessarily used in

Judgment obligor’s family home as provided

connection therewith 2.

Levy -

Ordinary tools and implements personally used by him in his trade, employment, or

Act

by

which

officer

sets

apart

livelihood

or

appropriates part of whole property of judgment debtor for purposes of execution

3.

3 horses, 3 cows, 3 carabaos, other beasts of burden such as judgment obligor may

sale

select necessarily used by him in his ordinary occupation Garnishment -

4.

Necessary clothing and articles for ordinary personal use, including jewelry

Act of appropriation by the court when property of debtor is in the hands of a third 5.

person

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

Attachment Refers to corporate property in possession of judgment debtor

Garnishment Refers to money, stocks, credits, other incorporeal property which belong to judgment debtor but is in the possession or under control of a third person

select, of a value not exceeding 100k pesos 6.

Provisions for individual or family use sufficient for 4 months

7.

Professional libraries and equipment of judges, lawyers, physicians, pharmacists, dentists, engineers, surveyors, clergymen, teachers, other professionals, not exceeding 300k pesos in value

8.

S10- Execution of judgments for specific act

One fishing boat and accessories not exceeding total value of 100k pesos owned

1.

Conveyance,

delivery

of

deeds,

other

by a fisherman and by the lawful use of

specific acts vesting title

which he earns his livelihood

2.

Sale of real or personal property

3.

Delivery or restitution of real property

4.

Removal of improvements on property

of the judgment obligor for his personal

subject of execution

services within the 4 months preceding the

Delivery of personal property

levy as are necessary for support of his

5.

9.

So much of the salaries, wages, or earnings

family S13- Property Exempt from Execution:

10. Lettered gravestones

115


11. Monies,

benefits,

privileges,

annuities

accruing or in any manner growing out of any life insurance 12. Right to receive legal support, or money or property obtained as such support, or any

Ordinary sale on execution Need not be confirmed by court

pension or gratuity from government 13. Persons specially exempted by law BUT not article or species of articles of property

Right exists

of

redemption

mentioned in this section shall be exempt from execution issued upon a judgment recovered for its price or upon a judgment of foreclosure of a mortgage thereon.

Title is acquired after expiration of redemption period when final deed of conveyance is executed

Sale in judicial foreclosure of mortgage Must be confirmed by court in order to divest rights in the property of the parties and to vest the rights in the purchaser No right of redemption except when mortgagee is a bank or a banking institution Title is acquired upon confirmation and registration of the foreclosure sale

S16- Proceedings where property claimed by third person rd

Remedies of 3 party claimant: 1.

Summary

hearing

S30- Proof required of redemption before

court

of

competent jurisdiction

Redemptioner must produce to officer, or person from whom he seeks to redeem, and serve with his notice to the officer:

2.

Terceria or third party claim filed with 1.

sheriff

A copy of the judgment or final order certified by the clerk of court wherein the

3.

judgment or final order is entered

Action for damages on the bond posted by judgment creditors 2.

4.

If he redeems upon a mortgage or other lien, a memorandum of the record thereof,

Independent reivindicatory action

certified by RD, or Terceria -

3.

assignment necessary to establish his claim,

A person claiming property levied upon may

or

execute affidavit of title or right of possession over the property o

Such

affidavit

must

state

the

grounds of such right or title o

The affidavit shall be served upon

An original or certified copy of any

4.

An affidavit executed by him or his agent showing the amount then actually due on the lien

officer making a levy and a copy thereof must also be served upon

S32- Rents, Earnings, Income of property pending

the judgment oblige

redemption

Note: Cumulative remedies

Rights of judgment debtor:

116


1.

Remain in possession of property 5.

2.

Cannot be ejected

Court may appoint a receiver for the property of the judgment debtor not exempt from execution or forbid a transfer

3.

4.

Use the property in the same manner it was

or disposition or interference with such

previously used

property

Make

necessary

repairs

to

buildings

6.

thereon while he occupies the property

If court finds that the judgment debtor has an ascertainable interest in real property either

5.

Use it in the ordinary course of business

as

mortgagor,

otherwise,

and

his

mortgagee

interest

can

or be

ascertained without controversy, the court 6.

Collect rents, earnings, and income derived

may order the sale of such interest

from the property until expiration of the period of redemption

7.

If the person alleged to have the property of the judgment debtor or be indebted to him, claims an adverse interest in the property or denies the debt, the court may authorize judgment creditor to institute an

S35- Remedies of judgment creditor in aid of

action to recover the property, forbid is

execution 1.

transfer and may punish disobedience for contempt

If execution is returned unsatisfied, he may cause examination of judgment debtor as to his property and income

2.

He may cause examination of debtor of the

S47- Effect of judgment or final order

judgment debtor as to any debt owed by him or to any property of the judgment

Res judicata

debtor in his possession 3.

If

after

examination,

the

court

judgment

finds

property of the judgment debtor, either in his own hands or that of any person, the court may order the property applied to the

Bar by former judgment/direct estoppel by

Conclusiveness of judgment -

satisfaction of the judgment

Estoppel by verdict, estoppel by record, collateral

estoppel

by

judgment

or

preclusion of issues or rule of auter accion pendent, covers par c

A party or other person may be compelled, by order or subpoena, to attend before the court or commissioner to testify as provided by S36 and S37

Public Policy Principle 4.

If court finds the earnings of the judgment debtor are more than sufficient for his

-

Inalterability

of

final

and

executory

judgment

family’s needs, it may order payment in

instalments

117


Decisions of court must be immutable at some

-

definite period of time

Judgment by a court is enforceable only within its territorial jurisdiction

Effect of foreign judgments Conclusiveness of judgment -

-

Provided that the tribunal has jurisdiction

1.

In case of judgment against a specific thing,

Issues actually and directly resolved in a former suit cannot again be raised in any future case between the same parties

a.

involving a different cause of action

Judgment is conclusive upon title to the thing

2. Bar by former judgment Identity of parties, subject matter, causes of action First judgment constitutes absolute bar to all matters directly adjudged and those that might have been adjudged Has the effect preclusion of claims

of

In case of judgment against a person,

Conclusiveness of judgment Identity of parties and subject matter First judgment is conclusive only as to matters directly adjudged and actually litigated in the first action. Second action can be prosecuted Has the effect of preclusion only to issues

a.

Judgment is presumptive evidence of a right as between the parties and their successors in interest by a subsequent title

2 ways of giving effect to a foreign judgment: 1.

Ordinary action to enforce the foreign judgment may be filed in court or

2.

It may be pleaded in an answer or motion to dismiss

Law of the case -

Refers to the legal conclusions announced on a first appeal, whether on the general law or the law as applied to the concrete facts, not only prescribe the duty and limit the power of the trial court to conduct

In both instances, judgment may be repelled by evidence of: 1.

Want of jurisdiction

2.

Want of notice

3.

Collusion

4.

Fraud

obedience and conformity thereto, but they become and remain the law of the case in all other steps, whether in the lower court or in the appellate court on a subsequent appeal

Effect of foreign judgment: R39 S8 The effect of a foreign judgment or final order of a tribunal of a foreign country, having jurisdiction to

S48- Effect of foreign judgment or final orders

render judgment or final order is as follows:

Public policy principle

118

Civil procedure Tan Notes

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