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
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Remedial Law Review Notes under Atty Ferdinand Tan CONSOLIDATED NOTES in CIVIL PROCEDURE Notes by: Paul Lemuel E. Chavez
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)
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Remedial Law Review Notes under Atty Ferdinand Tan CONSOLIDATED NOTES in CIVIL PROCEDURE Notes by: Paul Lemuel E. Chavez
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)
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Remedial Law Review Notes under Atty Ferdinand Tan CONSOLIDATED NOTES in CIVIL PROCEDURE Notes by: Paul Lemuel E. Chavez
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)
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Remedial Law Review Notes under Atty Ferdinand Tan CONSOLIDATED NOTES in CIVIL PROCEDURE Notes by: Paul Lemuel E. Chavez
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
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Remedial Law Review Notes under Atty Ferdinand Tan CONSOLIDATED NOTES in CIVIL PROCEDURE Notes by: Paul Lemuel E. Chavez
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
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Remedial Law Review Notes under Atty Ferdinand Tan CONSOLIDATED NOTES in CIVIL PROCEDURE Notes by: Paul Lemuel E. Chavez
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
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Remedial Law Review Notes under Atty Ferdinand Tan CONSOLIDATED NOTES in CIVIL PROCEDURE Notes by: Paul Lemuel E. Chavez
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
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Remedial Law Review Notes under Atty Ferdinand Tan CONSOLIDATED NOTES in CIVIL PROCEDURE Notes by: Paul Lemuel E. Chavez
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
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Remedial Law Review Notes under Atty Ferdinand Tan CONSOLIDATED NOTES in CIVIL PROCEDURE Notes by: Paul Lemuel E. Chavez
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:
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Remedial Law Review Notes under Atty Ferdinand Tan CONSOLIDATED NOTES in CIVIL PROCEDURE Notes by: Paul Lemuel E. Chavez
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
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Remedial Law Review Notes under Atty Ferdinand Tan CONSOLIDATED NOTES in CIVIL PROCEDURE Notes by: Paul Lemuel E. Chavez
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
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Remedial Law Review Notes under Atty Ferdinand Tan CONSOLIDATED NOTES in CIVIL PROCEDURE Notes by: Paul Lemuel E. Chavez
-
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
Remedial Law Review Notes under Atty Ferdinand Tan CONSOLIDATED NOTES in CIVIL PROCEDURE Notes by: Paul Lemuel E. Chavez
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
Remedial Law Review Notes under Atty Ferdinand Tan CONSOLIDATED NOTES in CIVIL PROCEDURE Notes by: Paul Lemuel E. Chavez
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
Remedial Law Review Notes under Atty Ferdinand Tan CONSOLIDATED NOTES in CIVIL PROCEDURE Notes by: Paul Lemuel E. Chavez
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
Remedial Law Review Notes under Atty Ferdinand Tan CONSOLIDATED NOTES in CIVIL PROCEDURE Notes by: Paul Lemuel E. Chavez
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
Remedial Law Review Notes under Atty Ferdinand Tan CONSOLIDATED NOTES in CIVIL PROCEDURE Notes by: Paul Lemuel E. Chavez
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
Remedial Law Review Notes under Atty Ferdinand Tan CONSOLIDATED NOTES in CIVIL PROCEDURE Notes by: Paul Lemuel E. Chavez
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
Remedial Law Review Notes under Atty Ferdinand Tan CONSOLIDATED NOTES in CIVIL PROCEDURE Notes by: Paul Lemuel E. Chavez
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
Remedial Law Review Notes under Atty Ferdinand Tan CONSOLIDATED NOTES in CIVIL PROCEDURE Notes by: Paul Lemuel E. Chavez
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
Remedial Law Review Notes under Atty Ferdinand Tan CONSOLIDATED NOTES in CIVIL PROCEDURE Notes by: Paul Lemuel E. Chavez
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
Remedial Law Review Notes under Atty Ferdinand Tan CONSOLIDATED NOTES in CIVIL PROCEDURE Notes by: Paul Lemuel E. Chavez
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
Remedial Law Review Notes under Atty Ferdinand Tan CONSOLIDATED NOTES in CIVIL PROCEDURE Notes by: Paul Lemuel E. Chavez
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
Remedial Law Review Notes under Atty Ferdinand Tan CONSOLIDATED NOTES in CIVIL PROCEDURE Notes by: Paul Lemuel E. Chavez
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
Remedial Law Review Notes under Atty Ferdinand Tan CONSOLIDATED NOTES in CIVIL PROCEDURE Notes by: Paul Lemuel E. Chavez
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
Remedial Law Review Notes under Atty Ferdinand Tan CONSOLIDATED NOTES in CIVIL PROCEDURE Notes by: Paul Lemuel E. Chavez
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
Remedial Law Review Notes under Atty Ferdinand Tan CONSOLIDATED NOTES in CIVIL PROCEDURE Notes by: Paul Lemuel E. Chavez
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
Remedial Law Review Notes under Atty Ferdinand Tan CONSOLIDATED NOTES in CIVIL PROCEDURE Notes by: Paul Lemuel E. Chavez
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
Remedial Law Review Notes under Atty Ferdinand Tan CONSOLIDATED NOTES in CIVIL PROCEDURE Notes by: Paul Lemuel E. Chavez
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
Remedial Law Review Notes under Atty Ferdinand Tan CONSOLIDATED NOTES in CIVIL PROCEDURE Notes by: Paul Lemuel E. Chavez
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
Remedial Law Review Notes under Atty Ferdinand Tan CONSOLIDATED NOTES in CIVIL PROCEDURE Notes by: Paul Lemuel E. Chavez
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
Remedial Law Review Notes under Atty Ferdinand Tan CONSOLIDATED NOTES in CIVIL PROCEDURE Notes by: Paul Lemuel E. Chavez
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
occurrence that is the
subject matter of the
subject matter of the
opposing party’s claim
opposing party’s claim
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
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
Remedial Law Review Notes under Atty Ferdinand Tan CONSOLIDATED NOTES in CIVIL PROCEDURE Notes by: Paul Lemuel E. Chavez
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
Remedial Law Review Notes under Atty Ferdinand Tan CONSOLIDATED NOTES in CIVIL PROCEDURE Notes by: Paul Lemuel E. Chavez
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
Remedial Law Review Notes under Atty Ferdinand Tan CONSOLIDATED NOTES in CIVIL PROCEDURE Notes by: Paul Lemuel E. Chavez
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
Remedial Law Review Notes under Atty Ferdinand Tan CONSOLIDATED NOTES in CIVIL PROCEDURE Notes by: Paul Lemuel E. Chavez
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
Remedial Law Review Notes under Atty Ferdinand Tan CONSOLIDATED NOTES in CIVIL PROCEDURE Notes by: Paul Lemuel E. Chavez
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 -
By verified 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
Remedial Law Review Notes under Atty Ferdinand Tan CONSOLIDATED NOTES in CIVIL PROCEDURE Notes by: Paul Lemuel E. Chavez
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
Remedial Law Review Notes under Atty Ferdinand Tan CONSOLIDATED NOTES in CIVIL PROCEDURE Notes by: Paul Lemuel E. Chavez
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
Remedial Law Review Notes under Atty Ferdinand Tan CONSOLIDATED NOTES in CIVIL PROCEDURE Notes by: Paul Lemuel E. Chavez
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
Remedial Law Review Notes under Atty Ferdinand Tan CONSOLIDATED NOTES in CIVIL PROCEDURE Notes by: Paul Lemuel E. Chavez
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
-
By verified complaint
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
Remedial Law Review Notes under Atty Ferdinand Tan CONSOLIDATED NOTES in CIVIL PROCEDURE Notes by: Paul Lemuel E. Chavez
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
Remedial Law Review Notes under Atty Ferdinand Tan CONSOLIDATED NOTES in CIVIL PROCEDURE Notes by: Paul Lemuel E. Chavez
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
Remedial Law Review Notes under Atty Ferdinand Tan CONSOLIDATED NOTES in CIVIL PROCEDURE Notes by: Paul Lemuel E. Chavez
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
Remedial Law Review Notes under Atty Ferdinand Tan CONSOLIDATED NOTES in CIVIL PROCEDURE Notes by: Paul Lemuel E. Chavez
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
Remedial Law Review Notes under Atty Ferdinand Tan CONSOLIDATED NOTES in CIVIL PROCEDURE Notes by: Paul Lemuel E. Chavez
-
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
Remedial Law Review Notes under Atty Ferdinand Tan CONSOLIDATED NOTES in CIVIL PROCEDURE Notes by: Paul Lemuel E. Chavez
-
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
RTC- incapable of pecuniary estimation
Reformation of contracts: -
RTC- incapable of pecuniary estimation
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
Remedial Law Review Notes under Atty Ferdinand Tan CONSOLIDATED NOTES in CIVIL PROCEDURE Notes by: Paul Lemuel E. Chavez
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
Remedial Law Review Notes under Atty Ferdinand Tan CONSOLIDATED NOTES in CIVIL PROCEDURE Notes by: Paul Lemuel E. Chavez
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
Remedial Law Review Notes under Atty Ferdinand Tan CONSOLIDATED NOTES in CIVIL PROCEDURE Notes by: Paul Lemuel E. Chavez
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
Remedial Law Review Notes under Atty Ferdinand Tan CONSOLIDATED NOTES in CIVIL PROCEDURE Notes by: Paul Lemuel E. Chavez
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
Remedial Law Review Notes under Atty Ferdinand Tan CONSOLIDATED NOTES in CIVIL PROCEDURE Notes by: Paul Lemuel E. Chavez
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
Remedial Law Review Notes under Atty Ferdinand Tan CONSOLIDATED NOTES in CIVIL PROCEDURE Notes by: Paul Lemuel E. Chavez
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
Remedial Law Review Notes under Atty Ferdinand Tan CONSOLIDATED NOTES in CIVIL PROCEDURE Notes by: Paul Lemuel E. Chavez
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
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Remedial Law Review Notes under Atty Ferdinand Tan CONSOLIDATED NOTES in CIVIL PROCEDURE Notes by: Paul Lemuel E. Chavez
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:
(Tan, Handbook on Civil Procedure and pleadings, pp 148-149)
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
Remedial Law Review Notes under Atty Ferdinand Tan CONSOLIDATED NOTES in CIVIL PROCEDURE Notes by: Paul Lemuel E. Chavez
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
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Remedial Law Review Notes under Atty Ferdinand Tan CONSOLIDATED NOTES in CIVIL PROCEDURE Notes by: Paul Lemuel E. Chavez
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
Remedial Law Review Notes under Atty Ferdinand Tan CONSOLIDATED NOTES in CIVIL PROCEDURE Notes by: Paul Lemuel E. Chavez
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
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Remedial Law Review Notes under Atty Ferdinand Tan CONSOLIDATED NOTES in CIVIL PROCEDURE Notes by: Paul Lemuel E. Chavez
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)
(Tan, Handbook on Civil Procedure and pleadings, pp 162-166)
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
Remedial Law Review Notes under Atty Ferdinand Tan CONSOLIDATED NOTES in CIVIL PROCEDURE Notes by: Paul Lemuel E. Chavez
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
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Remedial Law Review Notes under Atty Ferdinand Tan CONSOLIDATED NOTES in CIVIL PROCEDURE Notes by: Paul Lemuel E. Chavez
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
Remedial Law Review Notes under Atty Ferdinand Tan CONSOLIDATED NOTES in CIVIL PROCEDURE Notes by: Paul Lemuel E. Chavez
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
Remedial Law Review Notes under Atty Ferdinand Tan CONSOLIDATED NOTES in CIVIL PROCEDURE Notes by: Paul Lemuel E. Chavez
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
Remedial Law Review Notes under Atty Ferdinand Tan CONSOLIDATED NOTES in CIVIL PROCEDURE Notes by: Paul Lemuel E. Chavez
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
Remedial Law Review Notes under Atty Ferdinand Tan CONSOLIDATED NOTES in CIVIL PROCEDURE Notes by: Paul Lemuel E. Chavez
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
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Remedial Law Review Notes under Atty Ferdinand Tan CONSOLIDATED NOTES in CIVIL PROCEDURE Notes by: Paul Lemuel E. Chavez
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
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Remedial Law Review Notes under Atty Ferdinand Tan CONSOLIDATED NOTES in CIVIL PROCEDURE Notes by: Paul Lemuel E. Chavez
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
Extraterritorial Service
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Remedial Law Review Notes under Atty Ferdinand Tan CONSOLIDATED NOTES in CIVIL PROCEDURE Notes by: Paul Lemuel E. Chavez
-
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
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Remedial Law Review Notes under Atty Ferdinand Tan CONSOLIDATED NOTES in CIVIL PROCEDURE Notes by: Paul Lemuel E. Chavez
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,
Extraterritorial Service
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
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Remedial Law Review Notes under Atty Ferdinand Tan CONSOLIDATED NOTES in CIVIL PROCEDURE Notes by: Paul Lemuel E. Chavez
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:
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Remedial Law Review Notes under Atty Ferdinand Tan CONSOLIDATED NOTES in CIVIL PROCEDURE Notes by: Paul Lemuel E. Chavez
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)
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Remedial Law Review Notes under Atty Ferdinand Tan CONSOLIDATED NOTES in CIVIL PROCEDURE Notes by: Paul Lemuel E. Chavez
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
File an answer within the balance of the period
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
File an answer within the balance of the period
of the motion to dismiss. dismiss. And when the denial is is
prescribed by Rule 11 to which entitled at the time
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.
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Remedial Law Review Notes under Atty Ferdinand Tan CONSOLIDATED NOTES in CIVIL PROCEDURE Notes by: Paul Lemuel E. Chavez
Then proceed with the trial, and when the decision is
event, computed from receipt of notice of denial.
adverse, file an appeal assigning as error the denial
Then proceed with the trial, and when the decision is
of the motion to dismiss. And when the denial is
adverse, file an appeal assigning as error the denial
tainted with grave abuse of discretion amounting to
of the motion to dismiss. And when the denial is
lack or excess of jurisdiction on the part of the court,
tainted with grave abuse of discretion amounting to
file for certiorari under Rule 65.
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
File an answer within the balance of the period
prescribed by Rule 11 to which entitled at the time
prescribed by Rule 11 to which entitled at the time
of serving motion, but not less than 5 days in any
of serving motion, but not less than 5 days in any
event, computed from receipt of notice of denial. Then proceed with the trial, and when the decision is
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Remedial Law Review Notes under Atty Ferdinand Tan CONSOLIDATED NOTES in CIVIL PROCEDURE Notes by: Paul Lemuel E. Chavez
adverse, file an appeal a ssigning as error the denial
adverse, file an appeal assigning as error the denial
of the motion to dismiss. And when the denial is
of the motion to dismiss. And when the denial is
tainted with grave abuse of discretion amounting to
tainted with grave abuse of discretion amounting to
lack or excess of jurisdiction on the part of the court,
lack or excess of jurisdiction on the part of the court,
file for certiorari under Rule 65.
file for certiorari under Rule 65.
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:
File an answer within the balance of the period
File an answer within the balance of the period
prescribed by Rule 11 to which entitled at the time
prescribed by Rule 11 to which entitled at the time
of serving motion, but not less than 5 days in any
of serving motion, but not less than 5 days in any
event, computed from receipt of notice of denial.
event, computed from receipt of notice of denial.
Then proceed with the trial, and when the decis ion is
Then proceed with the trial, and when the decision is
adverse, file an appeal a ssigning as error the denial
adverse, file an appeal assigning as error the denial
of the motion to dismiss. And when the denial is
of the motion to dismiss. And when the denial is
tainted with grave abuse of discretion amounting to
tainted with grave abuse of discretion amounting to
lack or excess of jurisdiction on the part of the court,
lack or excess of jurisdiction on the part of the court,
file for certiorari under Rule 65.
file for certiorari under Rule 65.
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
event, computed from receipt of notice of denial.
In case of non exhaustion of administrative
Then proceed with the trial, and when the decision is
remedies,
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Remedial Law Review Notes under Atty Ferdinand Tan CONSOLIDATED NOTES in CIVIL PROCEDURE Notes by: Paul Lemuel E. Chavez
Exhaust then refile
NOTE ALSO: Rule 7 S5
DENIED:
Hence, summing up Rule 16,
File an answer within the balance of the period
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
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Remedial Law Review Notes under Atty Ferdinand Tan CONSOLIDATED NOTES in CIVIL PROCEDURE Notes by: Paul Lemuel E. Chavez
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
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Remedial Law Review Notes under Atty Ferdinand Tan CONSOLIDATED NOTES in CIVIL PROCEDURE Notes by: Paul Lemuel E. Chavez
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
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Remedial Law Review Notes under Atty Ferdinand Tan CONSOLIDATED NOTES in CIVIL PROCEDURE Notes by: Paul Lemuel E. Chavez
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
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Remedial Law Review Notes under Atty Ferdinand Tan CONSOLIDATED NOTES in CIVIL PROCEDURE Notes by: Paul Lemuel E. Chavez
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
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Remedial Law Review Notes under Atty Ferdinand Tan CONSOLIDATED NOTES in CIVIL PROCEDURE Notes by: Paul Lemuel E. Chavez
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.
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Remedial Law Review Notes under Atty Ferdinand Tan CONSOLIDATED NOTES in CIVIL PROCEDURE Notes by: Paul Lemuel E. Chavez
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
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Remedial Law Review Notes under Atty Ferdinand Tan CONSOLIDATED NOTES in CIVIL PROCEDURE Notes by: Paul Lemuel E. Chavez
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
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Remedial Law Review Notes under Atty Ferdinand Tan CONSOLIDATED NOTES in CIVIL PROCEDURE Notes by: Paul Lemuel E. Chavez
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,
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Remedial Law Review Notes under Atty Ferdinand Tan CONSOLIDATED NOTES in CIVIL PROCEDURE Notes by: Paul Lemuel E. Chavez
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
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Remedial Law Review Notes under Atty Ferdinand Tan CONSOLIDATED NOTES in CIVIL PROCEDURE Notes by: Paul Lemuel E. Chavez
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
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Remedial Law Review Notes under Atty Ferdinand Tan CONSOLIDATED NOTES in CIVIL PROCEDURE Notes by: Paul Lemuel E. Chavez
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
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Remedial Law Review Notes under Atty Ferdinand Tan CONSOLIDATED NOTES in CIVIL PROCEDURE Notes by: Paul Lemuel E. Chavez
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
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Remedial Law Review Notes under Atty Ferdinand Tan CONSOLIDATED NOTES in CIVIL PROCEDURE Notes by: Paul Lemuel E. Chavez
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
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Remedial Law Review Notes under Atty Ferdinand Tan CONSOLIDATED NOTES in CIVIL PROCEDURE Notes by: Paul Lemuel E. Chavez
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
occurrence that is the
of the opposing party’s
subject matter of the
claim
Plaintiff failed to appear in pre trial, case is dismissed with prejudice, without prejudice to counterclaim
opposing party’s claim
DEFENSES and DENIALS Does not require for its
It may require for its
adjudication the
adjudication the
presence of third parties
presence of third parties
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
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Remedial Law Review Notes under Atty Ferdinand Tan CONSOLIDATED NOTES in CIVIL PROCEDURE Notes by: Paul Lemuel E. Chavez
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,
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Remedial Law Review Notes under Atty Ferdinand Tan CONSOLIDATED NOTES in CIVIL PROCEDURE Notes by: Paul Lemuel E. Chavez
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:
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Remedial Law Review Notes under Atty Ferdinand Tan CONSOLIDATED NOTES in CIVIL PROCEDURE Notes by: Paul Lemuel E. Chavez
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
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Remedial Law Review Notes under Atty Ferdinand Tan CONSOLIDATED NOTES in CIVIL PROCEDURE Notes by: Paul Lemuel E. Chavez
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)
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Remedial Law Review Notes under Atty Ferdinand Tan CONSOLIDATED NOTES in CIVIL PROCEDURE Notes by: Paul Lemuel E. Chavez
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
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Remedial Law Review Notes under Atty Ferdinand Tan CONSOLIDATED NOTES in CIVIL PROCEDURE Notes by: Paul Lemuel E. Chavez
-
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
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Remedial Law Review Notes under Atty Ferdinand Tan CONSOLIDATED NOTES in CIVIL PROCEDURE Notes by: Paul Lemuel E. Chavez
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
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Remedial Law Review Notes under Atty Ferdinand Tan CONSOLIDATED NOTES in CIVIL PROCEDURE Notes by: Paul Lemuel E. Chavez
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
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Remedial Law Review Notes under Atty Ferdinand Tan CONSOLIDATED NOTES in CIVIL PROCEDURE Notes by: Paul Lemuel E. Chavez
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
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Remedial Law Review Notes under Atty Ferdinand Tan CONSOLIDATED NOTES in CIVIL PROCEDURE Notes by: Paul Lemuel E. Chavez
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
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Remedial Law Review Notes under Atty Ferdinand Tan CONSOLIDATED NOTES in CIVIL PROCEDURE Notes by: Paul Lemuel E. Chavez
-
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?
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Remedial Law Review Notes under Atty Ferdinand Tan CONSOLIDATED NOTES in CIVIL PROCEDURE Notes by: Paul Lemuel E. Chavez
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
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Remedial Law Review Notes under Atty Ferdinand Tan CONSOLIDATED NOTES in CIVIL PROCEDURE Notes by: Paul Lemuel E. Chavez
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
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Remedial Law Review Notes under Atty Ferdinand Tan CONSOLIDATED NOTES in CIVIL PROCEDURE Notes by: Paul Lemuel E. Chavez
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
With or without leave of
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
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Remedial Law Review Notes under Atty Ferdinand Tan CONSOLIDATED NOTES in CIVIL PROCEDURE Notes by: Paul Lemuel E. Chavez
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 or without leave of
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
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Remedial Law Review Notes under Atty Ferdinand Tan CONSOLIDATED NOTES in CIVIL PROCEDURE Notes by: Paul Lemuel E. Chavez
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:
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Remedial Law Review Notes under Atty Ferdinand Tan CONSOLIDATED NOTES in CIVIL PROCEDURE Notes by: Paul Lemuel E. Chavez
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
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Remedial Law Review Notes under Atty Ferdinand Tan CONSOLIDATED NOTES in CIVIL PROCEDURE Notes by: Paul Lemuel E. Chavez
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
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Remedial Law Review Notes under Atty Ferdinand Tan CONSOLIDATED NOTES in CIVIL PROCEDURE Notes by: Paul Lemuel E. Chavez
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
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Remedial Law Review Notes under Atty Ferdinand Tan CONSOLIDATED NOTES in CIVIL PROCEDURE Notes by: Paul Lemuel E. Chavez
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
Remedial Law Review Notes under Atty Ferdinand Tan CONSOLIDATED NOTES in CIVIL PROCEDURE Notes by: Paul Lemuel E. Chavez
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
Remedial Law Review Notes under Atty Ferdinand Tan CONSOLIDATED NOTES in CIVIL PROCEDURE Notes by: Paul Lemuel E. Chavez
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
Remedial Law Review Notes under Atty Ferdinand Tan CONSOLIDATED NOTES in CIVIL PROCEDURE Notes by: Paul Lemuel E. Chavez
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
Remedial Law Review Notes under Atty Ferdinand Tan CONSOLIDATED NOTES in CIVIL PROCEDURE Notes by: Paul Lemuel E. Chavez
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
Remedial Law Review Notes under Atty Ferdinand Tan CONSOLIDATED NOTES in CIVIL PROCEDURE Notes by: Paul Lemuel E. Chavez
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
Remedial Law Review Notes under Atty Ferdinand Tan CONSOLIDATED NOTES in CIVIL PROCEDURE Notes by: Paul Lemuel E. Chavez
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
Remedial Law Review Notes under Atty Ferdinand Tan CONSOLIDATED NOTES in CIVIL PROCEDURE Notes by: Paul Lemuel E. Chavez
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
Remedial Law Review Notes under Atty Ferdinand Tan CONSOLIDATED NOTES in CIVIL PROCEDURE Notes by: Paul Lemuel E. Chavez
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
Remedial Law Review Notes under Atty Ferdinand Tan CONSOLIDATED NOTES in CIVIL PROCEDURE Notes by: Paul Lemuel E. Chavez
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