patino CIV PRO rev 9.5 (1).pdf

REMEDIAL LAW REVIEW | 2011 | Atty. Tranquil Salvador | 4C Use at your own risk J

Civil Procedure | Lifted from Riano, Ateneo and Beda Bar Ops Reviewers 1 | P a t i ñ o , E r i c a

GENERAL PRINCIPLES

SUBSTANTIVE LAW PROCEDURAL LAW Creates, defines and

regulates rights and duties that give rise to a cause of

action

Law that prescribes the means and method of enforcing rights and obtaining redress for their invasion. (Adjective Law)

Creates vested rights (Prospective in application)

No vested rights

Cannot be enacted by the SC SC is empowered to promulgate procedural rules

(PHIL. CONST., Art VIII)

RULE MAKING POWERS OF THE SUPREME COURT (Art 8, Sec 5, 1987 Constitution)

-‐ GR: The SC has the constitutional power to promulgate

rules concerning pleading, practice and procedure -‐ Limitations on the rule making power of the SC:

1. The rules shall provide a simplified and inexpensive procedure for the speedy disposition of cases

2. The rules shall be uniform for courts of the same grade

3. The rules shall not diminish increase nor modify substantive rights

A. Powers of the SC to Suspend its Own Rules

-‐ GR: A litigant should comply with procedural rules -‐ EXC: The SC has the power to relax or suspend technical

or procedural rules or to except a case from their operation when compelling reasons so warrant or when the purpose of justice requires. What constitute good and sufficient cause that would merit suspension of the rules is discretionary upon the courts. (Redena v. CA, Feb, 07)

Reasons that would warrant the suspension of the rules: 1. Existence of special or compelling circumstances 2. The merits of the case 3. A cause not entirely attributable to the fault or negligence

of the party favored by the suspension of the rules 4. A lack of any showing that the review sought is merely

frivolous and dilatory 5. The other party will not be unjustly prejudiced thereby (Sarmiento v. Zaratan, Feb, 07)

Compelling Reasons: -‐ Persuasive and weighty reasons as to relieve a litigant of

an injustice commensurate with his failure to comply with the prescribed procedure. (Co Unijeng v. CA, 479 SCRA 594)

-‐ Rules are required to be followed except only for the most persuasive of reasons as when “transcendental matters” of life, liberty or state security are involved. (Mindanao Savings Loan v. De Flores, 469 SCRA 416)

-‐ In many instances, the court allowed appeals filed out of time where the delay was not due to the fault or negligence of the appellant and the appeals were impressed with merit. (Singuenza v. CA, Feb 08)

-‐ The rules on legal standing and ripeness of the case for judicial adjudication may be disregarded because of the grave nature of the allegations which tended to cast doubt on the presumption of constitutionality in favor of the law (Abakada v. Purisima, Aug 08)

In the Interest of Justice: Its invocation would not automatically compel the court to suspend procedural rules. (Ramos v. Spouses Lavendia, Oct 08) B . Power to Amend Rules

-‐ The SC has the sole prerogative to amend, repeal or even

establish new rules for a more simplified and inexpensive process, and the speedy disposition of cases (Neypes v. CA, 469 SCRA 633)

-‐ The SC’s power to promulgate rules and amend or repeal the same necessarily carries with it the power to overturn judicial precedents on points of remedial law through the amendment of the Rules of Court. (Pinga v. Heirs of Santiago, June 06)

C . Power to Stay Proceedings and Control its

Process

-‐ The power to stay proceedings is incidental to the power inherent in every court to control the disposition of the cases in its dockets. But if proceedings must be stayed, it must be done in order to avoid multiplicity of suits and prevent vexatious litigations, conflicting judgments, confusion between litigants and courts. (Security Bank v. Judge Victorio, 468 SCRA 609)

THE RULES OF COURT

Nature and Definition of the Rules of Court -‐ Constitutes the body of rules governing pleading, practice

and procedure. -‐ They are not laws in the strict sense but they have the

force and effect of law. (Alvero v. De la Rosa, 76 Phil 428) -‐ The rules are subordinate to statute, and in case of

conflict, the statute will prevail. (Shioji v. Harvey, 43 Phil 333)

-‐ INTRODUCTION TO REMEDIAL LAW -‐



Application of Rules of Court: -‐ GR: Rules of Court are applied prospectively -‐ EXC: Rules may be applied to actions pending and

undetermined at the time of their passage and are deemed retroactive ONLY in that sense and to that extent.

Rule 144, Rules of Court: Effectiveness They shall govern: 1. All cases brought after they take effect, and 2. Also all further proceedings in cases then pending to the

extent that in the opinion of the court their application would not be feasible or would work injustice, in which event the former procedure shall apply.

In the Matter to Declare in Contempt of Court Hon Datumanong: As a general rule, the retroactive application of procedural laws cannot be considered violative of any personal rights because no vested right may attach to nor arise therefrom. (Aug, 06) When Procedural Rules do Not Apply to Pending Actions 1. Where the statute itself or by necessary implication

provides that pending actions are excepted from its operation

2. If applying the rule to pending proceedings would impair vested rights

3. When to do so would not be feasible or would work injustice; or

4. If doing so would involve intricate problems of due process or impair the independence of the courts

(Tan v. CA, 373 SCRA 524)

NATURE OF PHILIPPINE COURTS Judge, defined: A Judge is a public officer appointed to preside over a court for the purpose of administering the law. Court, defined: It is an organ belonging to the judicial department, vested with judicial power, the function of which is the application of the laws to the controversies brought before it as well as the public administration of justice. Court distinguished from Judge

Court Judge Tribunal officially assembled under authority of law

Simply an officer of such tribunal;

Being in imagination comparable to a corporation

A physical person

May be considered an office A public officer

-‐ A court is an organ of the government with a personality separate and distinct from the person or judge who sits

-‐ The circumstances of the court are not affected by the circumstances that would affect the judge.

CLASSIFICATION OF COURTS: 1. Civil v . Criminal

a. Civil Courts are those which determine controversies between private persons.

b. Criminal Courts are those which adjudicate offenses alleged to have been committed against the state.

2. General v . Special a. General Courts are courts, which take cognizance of

all cases, civil or criminal, of a particular nature, or courts whose judgment is conclusive until modified or reversed on direct attack, and who are competent to decide on their own jurisdiction.

b. Special Courts are those which can take cognizance of special jurisdiction for a particular purpose, or are clothed with special powers for the performance of specified duties, beyond which they have no authority of any kind.

Note: A court may be considered “general” if it has the competence to exercise jurisdiction over cases not falling within the jurisdiction of any court, tribunal or body. (Sec 19[6], Sec 20, BP 129) (e.g. RTC is a court of general jurisdiction)

3. Exclusive v. Concurrent

a. Exclusive courts are those which have jurisdiction over the subject matter to the exclusion of other courts.

b. Concurrent courts are those which have jurisdiction over the same subject matter and within the same territory, and wherein litigants may in the first instance resort to either courts indifferently.

4. Courts of Original Jurisdiction v. Appellate a. Original are those wherein a case arises. Courts

where actions or proceedings are originally filed with it.

b. Appellate when the courts have the power of review over the decisions or orders of a lower court.

5. Law v. Equity a. Court of law is any tribunal duly administering the

laws of the land. It decides a case according to the promulgated law.

b. Court of equity is one which administers justice according to the rules and principles of equity. It adjudicates a controversy according to the common precepts of what is right and just w/o inquiring into the terms and statutes

Note: In the RP, every court exercises both legal and equitable jurisdiction. (US v. Tamparong, 31 Phil 321) 6. Probate Courts are those whose basic jurisdiction is to

administer justice in matters relating to decedent estates.



7. Superior Courts v. Inferior Courts a. Superior courts are courts with controlling authority

over some other court or courts, and with certain original jurisdiction of its own.

b. Inferior courts are those which are subordinate to other courts and whose judgments and decrees can be reviewed by the higher tribunals.

8. Record v. Not of Record

a. Court of Record is one keeping a written account of its proceedings which import verity, or which is so denominated by the statute of its creation. -‐ Those whose proceedings are enrolled and

which are bound to keep a written record of all trials and proceedings handled by them

b. A Court Not of Record is one which is not keeping a written account of its proceedings.

Note: One attribute of a court of record is the strong presumption as to the veracity of its records that cannot be collaterally attacked except for fraud. (Riano, 09 citing 20 Am Jur 2d, Courts, 55) RA No. 6031 mandates all Municipal Trial Courts to be courts of record. 9. Constitutional v . Statutory

Constitutional Court Statutory Court

Created by the Constitution Created by law Cannot be abolished by

Congress w/o amending the Constitution

May be abolished by repealing the law which created said court

Ex. SC Ex. CTA Doctrine of Judicial Stability or Non-‐inference -‐ GR: No court has the authority to interfere by injunction

the judgment of another court of coordinate jurisdiction or to pass upon or scrutinize and much less declare as unjust a judgment of another court (Industrial Enterprises v. CA, Apr 90)

-‐ EXC: Such doctrine does not apply where a third party claimant is involved (Santos v. Baython, July 91)

Policy of Judicial Hierarchy -‐ GR: The policy means that a higher court will not

entertain direct resort to it unless the redress desired cannot be obtained in the appropriate lower courts.

-‐ EXC: The doctrine of hierarchy of courts may be disregarded if warranted by the nature and importance of the issues raised in the interest of speedy justice and to avoid future litigations. Hence, under the doctrine of liberal construction, the SC may suspend its own rules. (e.g. cases of national interest and of serious implications)

Quesada v. Dept of Justice: The SC is a court of last resort, and must so remain if it is to satisfactorily perform the functions assigned to it by the fundamental charter. It cannot be burdened with the task of dealing with causes in the first instance. Its original jurisdiction should be exercised only where absolutely necessary or where serious and important reasons exist. (Aug 06)

JURISDICTION Jurisdiction, defined: Authority given by law to a court or tribunal to hear and determine certain controversies involving rights that are legally demandable and enforceable -‐ It is not only the power to hear or determine, but involves

also the power to enforce its determination. The power to control the execution of its decision is an essential aspect of jurisdiction.

-‐ It cannot be waived, enlarged or diminished by stipulation of the parties.

Jurisdiction is conferred BOTH by substantive and procedural law. Jurisdiction over the subject matter

Conferred by substantive Law

Jurisdiction over the persons, issues and the res

Conferred by procedural law

Judicial Power: The duty of the courts of justice to settle actual controversies involving legally demandable and enforceable rights. Includes the power to determine grave abuse of discretion (GADALEJ). (PHIL. CONST., art VIII, § 3.) Judicial Review: The SC’s power to declare a law, treaty, international or executive agreement, presidential decree, proclamation, order, instruction, ordinance or regulation unconstitutional. Duty of a Court to Determine its Jurisdiction -‐ The court must first consider the question of jurisdiction

before anything else. (Court need not wait for a motion raised by the parties)

-‐ If it f inds that: o It has jurisdiction: It must exercise it. (Failure of the

court may be enforced by mandamus) o It has no jurisdiction: Court must dismiss the claim

and may do so motu proprio. Note: Only jurisdiction over the subject matter is conferred by substantive law. Jurisdiction over the parties, issue and the res are governed by procedural laws. Requisites for Valid Exercise of Jurisdiction:

Criminal Action Civil Action Jurisdiction over the accused Jurisdiction over the

parties Jurisdiction over the offense Jurisdiction over the

subject matter Jurisdiction over the territory (VENUE is jurisdictional)

Jurisdiction over the res



JURISDICTION OVER THE SUBJECT MATTER Jurisdiction Over the Subject Matter, defined: Power to hear and determine cases of the general class to which the proceedings in question belong - “Subject matter” refers to the item with respect to

which the controversy has arisen or which the wrong has been done (e.g. the right, the thing or the contract under dispute)

- Examples: unlawful detainer, foreclosure of mortgage

How Jurisdiction Over the Subject Matter is Conferred It is conferred by law (substantive law NOT procedural law) - Such jurisdiction

must be invoked by filing the proper complaint or petition with the court

It CANNOT be conferred by: - consent, contract, voluntary

submission, or acquiescence of the parties

- administrative policy of any court

- court’s unilateral assumption - acquiescence or erroneous

belief by the court

Applicable Law: Jurisdiction is governed by law at the time the action is commenced. In Civil Actions, jurisdiction over the subject matter is determined by: - GR: The material allegations of the complaint or

petition and nature of the principal action is controlling. (Not those of incidental or ancillary claims)

Notes: • The allegations are only required to show prima facie

presence of jurisdiction. Court does not lose jurisdiction because the defendant makes a contrary allegation in his motion. (Hence, answer is immaterial in its determination)

• Jurisdiction is acquired regardless if the plaintiff is entitled to his claims.

• Jurisdiction does not depend on the amount ultimately substantiated or awarded in the course of the trial. o Ex. Complaint demands 1M. Court can award 30k. o Note: The rule does not apply in reverse. If the

complaint demands only 30k, court cannot award 1M.

• It is not determined either by the defenses or by the evidence in trial.

- EXC: Where tenancy in ejectment cases is averred by way of defense and is proved to be the real issue, the case should be dismissed for lack of jurisdiction. Case should be properly filed w/ the Court of Agrarian Relations (now DARAB) (De la Cruz v. CA, Dec 6, 2006)

Note: The court does not automatically lose jurisdiction by mere allegation of the defense of tenancy. There must first be a reception of evidence and the fact of tenancy should be shown after hearing as the real issue.

In Criminal Actions, jurisdiction over the subject matter is determined by: • The allegations of the complaint or information.

Considering: 1. The nature of the offense and the penalty attached 2. The fact that the offense was committed w/in the

territorial jurisdiction of the court • In relation to the law prevailing at the time of the filing of

the criminal complaint or information (commencement of action) and the penalty provided by the law for the crime charged at the time of its commission

Rule on Lack of Jurisdiction: - GR: Lack of jurisdiction over the subject matter of an

action cannot be waived by the parties and may be raised at any stage of the proceeding, the court being authorized to dismiss the case motu proprio.

- EXCEPTIONS: 1. Estoppel by laches – Applies only to exceptional cases

such as in the case of Tijam (see below) where 15 years have passed before questioning jurisdiction. The objection for lack of jurisdiction should have been raised so belatedly so as to give rise to the presumption that the party entitled to assert it had abandoned or declined to assert it.

Note: The ruling in Tijam v. Sibonghanoy (23 SCRA 29 (1968)) is the exception rather than the rule. Estoppel by laches may be invoked to bar the issue of jurisdiction only in cases which the factual milieu is analogous to that of Tijam. (Riano) 2. Estoppel in pais – Where the defendant actively

participates in all stages of the proceedings before the trial court and invokes its authority by asking for an affirmative relief.

Heirs of Bertuldo Hinog v. Melicor : A party who has invoked the jurisdiction of the court over a particular matter to secure an affirmative relief cannot be permitted to afterwards deny that same as it would already amount to estoppel. (455 SCRA 460 (2005))

JURISDICTION OVER THE PARTIES

Jurisdiction over the plaintiff

Acquired upon filing of the complaint, petition or initiatory pleading

Jurisdiction over the defendant

Acquired either by his voluntary appearance in court and his submission

to its authority OR by service of summons (rule 14).

Jurisdiction over the accused

Acquired by a valid arrest or his voluntary submission to the authority

of the court. Voluntary Appearance - Should amount to a voluntary submission - Submission to the court’s jurisdiction takes the form of an

appearance that seeks affirmative relief except when the relief sought is for the purpose of objecting to the jurisdiction of the court over the person of the defendant.



Ex: Filing the necessary pleading, motion for reconsideration, petition to set aside judgment, compromise agreement, answer to the contempt charge, or petition for certiorari w/o questioning jurisdiction. (Navale v CA, 253 SCRA 705)

JURISDICTION OVER THE RES Acquired either by:

1. Seizure of the property under legal process or 2. A result of the institution of legal proceedings, in

which the power of the court is recognized and made effective.

Note: In civil actions, jurisdiction over the res and the subject matter is sufficient to vest jurisdiction in the court even in the absence of jurisdiction over the person of the defendant who does not reside and cannot be found in the Philippines.

JURISDICTION OVER THE TERRITORY Power of the court to decide a case with reference to the territory over which it is to be exercised.

VENUE JURISDICTION Geographical area in which a court may hear and

determine a case (place of trial)

Power of the court to hear and decide a case on the merits

Procedural Substantive In civil cases, venue may stipulated by the parties

Granted by law; hence, cannot be stipulated

May by waived Cannot be waived, EXCEPT

for jurisdiction over the person

Establishes a relation between the plaintiff and

the defendant

Establishes a relation between the court and the parties and

subject matter Deals with convenience Deals with substance

Court may not motu propio dismiss a case for improper

venue

Court may motu propio dismiss a case for lack of

jurisdiction

JURISDICTION OVER THE ISSUES - Jurisdiction over issues which are raised in the pleading

or by their agreement in a pre-‐trial order or those tried by the implied consent of the parties

- Jurisdiction over the issues may also be determined and conferred by stipulation of the parties as when in the pre-‐trial, the parties enter into stipulations of facts and documents or enter into agreement simplifying the issues of the case.

- It may also be conferred by waiver or failure to object to the presentation of evidence on a matter not raised in the pleadings. Here the parties try with their express or implied consent issues not raised in the pleadings. The issues tried shall be treated in all respects as if they had been raised in the pleadings.

JURISDICTION V. EXERCISE OF JURISDICTION -‐ Jurisdiction is the AUTHORITY conferred. -‐ Provided the court has jurisdiction, all errors committed

in the exercise thereof are merely errors of judgment and are proper subjects of an appeal.

ERROR OF

JURISDICTION ERROR OF JUDGMENT

Where the court, officer or quasi-‐judicial body acts

without or in excess of jurisdiction

Errors committed in the exercise of jurisdiction

(Includes: Errors in procedure or mistakes in the

court’s findings Renders judgment and

proceedings void or at least voidable.

Does not render the court’s decision void. Cannot be collaterally impeached.

Does not confer any rights. GR: May at any time be collaterally attacked. EXC: Unless the party raising the issue is barred by estoppel.

Judgment is binding on the parties unless reversed or

annulled in a direct proceeding.

Reviewable by Certiorari (Rule 65)

Reviewable on Appeal

CLASSIFICATIONS OF JURISDICTION

1. As to cases tried:

a. General Jurisdiction – Exercised over all kinds of cases

b. Limited Jurisdiction – Confined to particular cases and exercised only under the limitation and circumstances prescribed by statute

2. As to nature of the cause: a. Criminal Jurisdiction – For the punishment of a

crime b. Civil Jurisdiction – When the matter is not criminal

in nature

3. As to timing: a. Original Jurisdiction – Exercised by courts in the

first instance b. Appellate Jurisdiction – Conferred on superior

courts to review and decide cases tried by inferior or lower courts

4 . As to extent of exercise: a. Exclusive Jurisdiction – Confined to a particular

tribunal and possessed by it to the exclusion of all others

b. Concurrent Jurisdiction – Exercised by different courts at the same time over the same subject matter and within the same territory. Litigants may resort to either court at the first instance, but the court which first validly acquired jurisdiction takes it to the exclusion of all others (Confluent or Coordinate Jurisdiction)



Note: The concurrent jurisdiction among courts of different ranks is subject to the doctrine of hierarchy of courts. Hence, a petition must first be filed with the court of the lowest rank unless there are special countervailing reasons justifying its filing in the first instance with a higher court. (e.g . The SC, CA and RTC have concurrent original jurisdiction to issue writs of certiorari, prohibition and mandamus, however the application should still be filed with the lower court unless the importance of the issue involved deserves action of the court of higher level.) 5 . As to situs:

a. Territorial Jurisdiction – Exercised within the limits of the place where the court is located

b. Extra-‐territorial Jurisdiction – Exercised beyond the confines of the place where the court is located

Ancillary Jurisdiction, defined: Involves the inherent or implied powers of the court to determine issues incidental to the exercise of its primary jurisdiction. -‐ Under its ancillary jurisdiction the court may determine

all questions relative to the matters brought before it, regulate the manner in which a trial shall be conducted, determine the hours at which the witnesses and lawyers may be heard, appoint a receiver, etc.

Doctrine of PRIMARY JURISDICTION, defined: Where there is an administrative body tasked with the determination of facts relating to a special or technical field or where the question involved demands the exercise of sound administrative tribunal, the courts must give such administrative body the opportunity to do so before proceeding with the action. Doctrine of ADHERENCE OF JURISDICTION (Continuity of Jurisdiction) -‐ GR: Once jurisdiction is vested in a court, it is retained

until the end of litigation regardless of circumstances that would have prevented the continued exercise of jurisdiction by the court. Hence, a law enacted during the pendency of a case which transfers jurisdiction to another court does not affect cases already pending prior to its enactment.

-‐ EXC: 1. When the law expressly provides for retroactive

application; 2. When the change of jurisdiction is curative in nature; 3. In case of perfected appeal , here jurisdiction is

transferred to the appellate court. 4 . When the proceedings are terminated, abandoned,

or declared void. 5. When the law penalizing the act is repealed by

subsequent law. 6. When the accused is deprived of a constitutional

right. EXCLUSIONARY PRINCIPLE, defined: The court first acquiring jurisdiction exercises it to the exclusion of all others.

EQUITY JURISDICTION, defined: The power of the court to resolve issues presented in a case in accordance with the natural rules of fairness and justice in the absence of a clear, positive law governing such issues. -‐ Application of Equity Jurisdiction: o Equity seeks to reach and to do complete justice where

the courts of law are incompetent to do so because of the inflexibility of the rules and the lack of power to adapt their judgments to the special circumstance. (Air Manila v. Court of Industrial Relations, 83 SCRA 579)

o Equity is not applied when there is a law applicable to a given case. It is availed of only in the absence of law or judicial pronouncements (Velez v. Demetrio, Aug 02)

Law Which Governs Jurisdiction: Jurisdiction being a matter of substantive law, the established rules is that the statute in force at the time of the commencement of the action determines the jurisdiction of the court (Cang v. CA, 296 SCRA 128)

Question of Law Question of Fact When the doubt or difference arises as to what the law is on certain set of facts. Must not involve an examination of the

probative value of the evidence presented by the litigants or any of

them. The resolution of the issue must rest solely on what the law provides on

the given set of circumstances.

When doubt or

difference arises as to the truth or falsehood of the alleged facts

Herrera v. Bollos: Jurisdiction over the subject matter is determined by the allegations of the complaint at the time of its filing, irrespective of w/n the plaintiff is entitled to recover upon all or some of the claims asserted therein. (Jan, 02) Oca v. CA: As a general rule, lack of jurisdiction over the subject matter can be objected to at any instance, except when the litigant is barred by laches or estoppel by: (1) never disputing the jurisdiction at any stage of the proceeding, notwithstanding several opportunities; or (2) voluntarily submitting to the jurisdiction by tendering responsive pleadings, filing a counterclaims, attending conferences, participating in the hearings and appealing the adverse decision. (Mar, 02)

Mijares v. Ranada: B.P. 129 reveals that the instant complaint for enforcement of a foreign judgment, even if capable of pecuniary estimation, would fall under the jurisdiction of the Regional Trial Courts. (Apr, 05)

Thornton v. Thornton: Family courts have concurrent jurisdiction with the CA and SC in petitions for habeas corpus where the custody of minors is at issue. (Aug 04)

BPI v. ALS: The jurisdiction of the HLURB includes the regulation of the real estate industry and actions for correcting defects and deficiencies in the condominium unit. (Apr, 04)



-‐ JURISDICTION -‐

Civil Cases

MUNICIPAL TRIAL COURTS, ETC. (Inferior Courts)

BP 129 as amended by RA 7691

REGIONAL TRIAL COURTS BP 129 as amended by RA 7691

Exclusive Original

1. Actions demanding sums of money: -‐ not exceeding P300,000 or -‐ not exceeding P400,000 if in Metro Manila

Note: Amount of sums of money demanded is exclusive of interest, damages, attorney’s fees, l itigation expenses and costs (IDALEC), the amount of which must be specifically alleged but the filing fees thereon shall be paid Note: Damages will only be excluded if: it is merely incidental to a principal action. If the claim for damages is the principal action then the amount of damages claimed shall be determinative of jurisdiction.

1. In all other cases in which the demand, exclusive of IDALEC or the value of the property in controversy: -‐ exceeds P300,000 or -‐ exceeds P400,000 if in Metro Manila

Note: same as in MTC

2. Probate proceedings, testate or intestate, where gross value of the estate: -‐ does not exceed P300,000 or -‐ does not exceed P400,000 if in Metro Manila

2. Probate proceedings, both testate and intestate, where the gross value of the estate: -‐ exceeds P300,000 or -‐ exceeds P400,000 if in Metro Manila;

3. Admiralty and Maritime cases where the demand or claim: -‐ does not exceed P300,000 or -‐ does not exceed P400,000 if in Metro Manila

3. Admiralty and Maritime cases jurisdiction where the demand or claim: -‐ exceeds P300,000 or -‐ exceeds P400,000 if in Metro Manila;

4. Actions involving personal property -‐ does not exceed P300,000 or -‐ does not exceed P400,000 if in Metro Manila

4. Actions Involving personal property -‐ exceeds P300,000 or -‐ exceeds P400,000 if in Metro Manila,:

5. Actions involving tit le to or possession of real property or any interest therein where the ASSESSED VALUE -‐ not exceeding P20,000 or -‐ not exceeding P50,000 if in Metro Manila

5. Actions involving the tit le to or possession of real property or any interest therein (except actions for forcible entry and unlawful detainer), where the ASSESSED VALUE of the property: -‐ exceeding P20,000 or -‐ exceeding P50,000 if in Metro Manila

6. Provisional remedies in principal actions within their jurisdiction

7. Inclusion and exclusion of voters 8. Cases covered by the Rules on Summary

Procedure:

a. Forcible entry and unlawful detainer actions, with jurisdiction to resolve the issue of ownership only to determine the issue of possession; irrespective of the amount of damages or unpaid rentals sought to be recovered.

Note: Where attorney’s fees are awarded, the same shall not exceed P20,000

b. Other civil cases, except probate proceedings,

where the total claim: -‐ does not exceed P100,000 or -‐ does not exceed P200,000 in Metro Manila.

(Exclusive of interests and costs)

6. Subject of the litigation is incapable of pecuniary estimation (ex. rescission, reformation of contract, specific performance);

7. In all civil actions and special proceedings falling within the exclusive original jurisdiction of Juvenile and Domestic Relations Courts and of the Court of Agrarian Relations as now provided by law

8. Under Sec 5.2 of Securities Regulation Code: (Intra-‐corporate controversies) a. Cases involving devices or schemes employed by

or any acts of the board of directors, business associates, its officers or partnership, amounting to fraud and misrepresentation

b. Controversies arising out of intra-‐corporate or partnership relations

c. Controversies in elections or appointments of directors, trustees, officers or managers of such corporations, partnerships or associations

d. Petitions of corporations, partnerships or associations to be declared in a state of suspension of payment

9. In all cases not within the exclusive jurisdiction of any court, tribunal, person or body exercising judicial or quasi-‐judicial functions;

Note: RTC used to have jurisdiction over all actions involving the contract of marriage and marital relations but such is now exclusive to the Family Courts.



Civil Cases MUNICIPAL TRIAL COURTS, etc. REGIONAL TRIAL COURTS

Concurrent

With RTC – none

With SC Actions affecting ambassadors, public ministers and consuls With SC and CA

Issuance of writs of certiorari, prohibition and mandamus against lower courts quo warranto and habeas corpus

With SC, CA & Sandiganbayan

Issuance of writ of amparo and habeas data

With MTC None With Insurance Commissioner

Claims not exceeding P100,000. Applicable if subject is not capable of pecuniary estimation, otherwise, jurisdiction is concurrent with MTC

Delegated

Cadastral and land registration cases assigned by the Supreme Court where there is no controversy or opposition or in case of contested lands. The value does not exceed P100,000

Special

Petition for Habeas Corpus or application for bail in criminal cases in the city or province where the RTC judge is absent

SC may designate certain branches of the RTC to try exclusively criminal cases, juvenile and domestic relations cases, agrarian and urban land reform cases not falling within the jurisdiction of any quasi-‐judicial body and other special cases in the interest of justice (Sec 23 BP 129)

Appellate Cases decided by the lower courts in their respective territorial jurisdiction

Criminal Cases MUNICIPAL TRIAL COURTS, etc. REGIONAL TRIAL COURTS

Exclusive Original

1. Offenses punishable with imprisonment not exceeding 6 years regardless of the fine, accessory penalties and civil liability

2. Offenses involving damage to property through criminal negligence

3. Offenses where the only penalty is a fine not exceeding P4,000

4. Offenses covered by Rules on Summary Procedure a. Violations of traffic laws, rules and regulations b. Violations of rental laws c. Violations of city or municipal ordinances d. Violations of BP 22 (Bouncing Check Law) e. All other Criminal cases where the penalty is

imprisonment not exceeding 6 months and/or P1000 fine irrespective of other penalties or civil liabilities therefrom and offenses involving damage to property through criminal negligence where the imposable fine does not exceed P10,000

1. Criminal cases not within the exclusive jurisdiction of any court, tribunal or body.

a. Includes offenses punishable by imprisonment exceeding 6 years irrespective of the fine

b. Includes criminal cases not falling within the exclusive jurisdiction of the Sandiganbayan where none of the accused are occupying positions corresponding to salary grade 27.

2. Cases where the only penalty is a fine exceeding P4,000

3. Other laws which specifically lodge jurisdiction in the RTC

a. Law on written defamation or libel b. Decree on intellectual property c. Violations of Dangerous Drugs Act except when

offenders are under 16 and there are Juvenile and Domestic Relations Courts in the province

4. Cases falling under the Family Courts in areas where there are no Family Courts

Appellate All cases decided by the lower courts in their respective territorial jurisdictions

SANDIGANBAYAN

Exclusive Original

Sandiganbayan has exclusive original jurisdiction over the following: 1. Violation of RA 3019 (Anti-‐Graft) 2. Violation of RA 1379 (Ill Gotten Wealth) 3. Violation of Chapter 2, Section 2, Title 7, Book 2 of the RPC (bribery and corruption) 4. Civil and criminal cases filed pursuant to and in connection with EO nos. 1, 2, 14, 14-‐A (Sequestration cases) 5. Other offenses committed by public officials and employees in relation to their office Provided that the offender is a public official occupying a position classified as salary grade 27 or higher and the offense was committed in connection with his office.

Appellate Appellate jurisdiction over appeals from final judgments, resolutions and orders of regular courts where all the accused are occupying positions lower than salary grade 27 or not otherwise covered by the preceding enumeration.



Civil Cases SUPREME COURT COURT OF APPEALS Exclusive Original

Petitions for certiorari, prohibition or mandamus against: CA, COMELEC, COA, Sandiganbayan

Actions for annulment of judgment of the RTC Crimes of Terrorism under Human Security Act of 2007

Concurrent

With CA a. Petitions for certiorari, prohibition or mandamus

against RTC b. Petitions for certiorari, prohibition or mandamus

against NLRC, but it should be filed with the CA first – see (St. Martin Funeral Home vs CA, G.R. No. 130866 Sept 16, 1998)

c. Petitions for certiorari, prohibition or mandamus against CSC, CBAA, CTA and quasi-‐judicial agencies, but it should be filed with the CA first – Sec 4, Rule 65

With SC a. Petitions for certiorari, prohibition or

mandamus against RTC b. Petitions for certiorari, prohibition or

mandamus against NLRC, but it should be filed with the CA first – see St. Martin Funeral Home vs CA (GR130866 September 16, 1998)

c. Petitions for certiorari, prohibition or mandamus against CSC, CBAA, CTA and quasi-‐judicial agencies, but it should be filed with the CA first – Sec 4, Rule 65

With the CA and RTC a. Petitions for certiorari, prohibition or mandamus

against lower courts and other bodies b. Petitions for Quo Warranto and habeas corpus

With the SC and RTC a. Petitions for certiorari, prohibition or

mandamus against lower courts and other bodies

b. Petitions for Quo Warranto and habeas corpus With RTC: Actions affecting ambassadors, public ministers and consuls With IBP: Actions against members of the bar.

Appellate

By Notice of Appeal -‐ From the RTC or Sandiganbayan in all criminal cases

involving offenses for which penalty imposed is reclusion perpetua or life imprisonment, and those involving other offenses, although not so punished, that arose out of the same occurrence or were committed by the offender on the same occasion.

-‐ Automatic Review in criminal cases where death penalty is imposed by the RTC or the Sandiganbayan

Ordinary Appeal by Notice of Appeal a. Appeals from RTC, except those appealable

to the Supreme Court or Sandiganbayan b. Appeals from RTC on constitutional, tax,

jurisdictional questions involving questions of fact which should be appealed first to the CA.

c. Appeals from decisions and final orders of the Family Courts

Petition for Review on Certiorari a. Appeals from the CA b. Appeals from the Sandiganbayan on pure questions

of law, except where the penalty imposed is reclusion perpetua, life imprisonment or death.

c. Appeals from the RTC exercising original jurisdiction in the following cases: i. All cases in which the constitutionality or

validity of any treaty, agreement, law, PD, proclamation, order, instruction or regulation is in question.

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

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

iv. Cases involving only an error or question of law

Petition for Review a. Appeals from Civil Service Commission

(CSC) b. Appeals from RTC in the exercise of its

appellate jurisdiction, which are not a matter of right

c. Appeals from CTA and quasi-‐judicial agencies

d. Appeals from National Commission on Indigenous Peoples (NCIP)

e. Appeals from the office of the Ombudsman in administrative disciplinary cases

Special Civil Action of Certiorari f i led within 30 days

a. Against the COMELEC b. Against the COA



FAMILY COURTS Criminal Cases Civil Cases

Exclusive Original

1. One or more of the accused is below 18 years of age but not less than 15 years of age

2. One of the victims is a minor at the time of the commission of the crime

3. Cases against minors under the Dangerous Drugs act

4. Violations of RA 7610 (Special Protection of Children Against Child Abuse, Exploitation and Discrimination Act) as amended by RA 7658

5. Cases of domestic violence against women and children

1. Petitions for guardianship, custody of children, habeas corpus in relation to the latter (BUT the SC and CA have not been deprived of their original jurisdiction)

2. Petitions for adoption of children and the revocation thereof 3. Annulment and declaration of nullity of marriage and those

relating to marital status and property relations of husband & wife or those living together under different status or agreements, and petitions for the dissolution of Conjugal Partnership of gains

4. Petitions for support and/or acknowledgment 5. Summary judicial proceedings under Family Code 6. Declaration of status of children as abandoned, dependent or

neglected, petitions for voluntary or involuntary commitment of children, matter relating to parental authority and other cases under PD603 and other related laws

7. Constitution of family home (Note: under the family code, the family home is deemed constituted, hence, no need for this petition)

Special Provisional Remedies:

1. In case of violence among the family members living in the same domicile or household, the family court may order a restraining order against the accused or defendant upon verified application by the complainant or the victim for relief from abuse.

2. The court may order the temporary custody of children in all civil actions for their custody, support pendente lite including deduction from the salary, and use of conjugal home and other properties in all civil action for support.

SHARI’AH COURTS (PD 1083)

Sharia District Courts

(Appellate Courts)

The Shari'a District Court shall have exclusive original jurisdiction over: 1. All cases involving custody, guardianship, legitimacy, paternity and filiation arising under this Code; 2. All cases involving disposition, distribution and settlement of the estate of deceased Muslims, probate of wills,

issuance of letters of administration or appointment of administrators or executors regardless of the nature or the aggregate value of the property

3. Petitions for the declaration of absence and death and for the cancellation or correction of entries in the Muslim Registries mentioned in Title VI of Book Two of this Code;

4. All actions arising from customary contracts in which the parties are Muslims, if they have not specified which law shall govern their relations; and

5. All petitions for mandamus, prohibition, injunction, certiorari, habeas corpus, and all other auxiliary writs and processes in aid of its appellate jurisdiction.

Concurrently with existing civil courts, the Shari'a District Court shall have original jurisdiction over: 1. Petitions by Muslims for the constitution of a family home, change of name and commitment of an insane person to an

asylum; 2. All other personal and real actions not mentioned in paragraph 1 (d) wherein the parties involved are Muslims except

those for forcible entry and unlawful detainer, which shall fall under the exclusive original jurisdiction of the Municipal Circuit Court; and

3. All special civil actions for interpleader or declaratory relief wherein the parties are Muslims or the property involved belongs exclusively to Muslims.

Sharia Circuit Courts

(First Level Courts)

1. All cases involving offenses defined and punished under the Code of Muslim Personal Laws 2. All civil actions and proceedings between parties who are Muslims or have been married in accordance with Article 13

involving disputes relating to: (a) Marriage; (b) Divorce recognized under this Code; (c) Betrothal or breach of contract to marry; (d) Customary dower (mahr); (e) Disposition and distribution of property upon divorce; (f) Maintenance and support, and consolatory gifts, (mut'a); and (g) Restitution of marital rights.

3. All cases involving disputes relative to communal properties.



SMALL CLAIMS A.M. No. 08-‐8-‐7-‐SC When applicable [Sec. 2]: Actions before the Metropolitan Trial Courts, Municipal Trial Courts in Cities, Municipal Trial Courts and Municipal Circuit Trial Courts for payment of money where the value of the claim does not exceed One Hundred Thousand Pesos (P100,000.00), exclusive of interest and costs. Cases covered [Sec. 4]: , • Purely civil in nature where the claim or relief prayed for by

the plaintiff is solely for payment or reimbursement of sum of money

• The civil aspect of criminal actions, either filed before the institution of the criminal action, or reserved upon the filing of the criminal action in court (pursuant to Rule 111 of the Revised Rules of Criminal Procedure)

Claims or demands covered [Sec. 4]: (a) For money owed under any of the following:

1. Contract of Lease; 2. Contract of Loan; 3. Contract of Services; 4. Contract of Sale; or 5. Contract of Mortgage;

(b) For damages arising from any of the following: 1. Fault or negligence; 2. Quasi-‐contract; or 3. Contract;

(c) The enforcement of a barangay amicable settlement or an arbitration award involving a money claim covered by the Rule

KATARUNGANG PAMBARANGAY [A.C. No. 14-‐93] GR: ALL disputes are subject to Barangay conciliation pursuant to the Revised Katarungang Pambarangay Law and prior recourse thereto is a pre-‐condition before filing a complaint in court or any government offices EXCEPT: 1. Where one party is the government, or any subdivision or

instrumentality thereof; 2. Where one party is a public officer or employee and the

dispute relates to the performance of his official functions; 3. Where the dispute involves real properties located in

different cities and municipalities, unless the parties thereto agree to submit their difference to amicable settlement by an appropriate Lupon;

4. Any complaint by or against corporations, partnerships or juridical entities, since only individuals shall be parties to Barangay conciliation proceedings either as complainants or respondents [Sec. 1, Rule VI, Katarungang Pambarangay Rules];

5. Disputes involving parties who actually reside in barangays of different cities or municipalities, except where such barangay units adjoin each other and the parties thereto agree to submit their differences to amicable settlement by an appropriate Lupon;

6. Offenses for which the law prescribes a maximum penalty of imprisonment exceeding one [1] year or a fine of over P5,000.00;

7. Offenses where there is no private offended party; 8. Disputes where urgent legal action is necessary to prevent

injustice from being committed or further continued, specifically the following:

a. Criminal cases where accused is under police custody or detention [Sec. 412 (b) (1), Revised Katarungang Pambarangay Law];

b. Petitions for habeas corpus by a person illegally deprived of his rightful custody over another or a person illegally deprived of or on acting in his behalf;

c. Actions coupled with provisional remedies such as preliminary injunction, attachment, delivery of personal property and support during the pendency of the action;

d. Actions which may be barred by the Statute of Limitations.

9. Any class of disputes which the President may determine in the interest of justice or upon the recommendation of the Secretary of Justice;

10. Where the dispute arises from the Comprehensive Agrarian Reform Law (CARL) [Secs. 46 & 47, R. A. 6657];

11. Labor disputes or controversies arising from employer-‐employee relations [Montoya vs. Escayo, et al., 171 SCRA 442; Art. 226, Labor Code]

12. Actions to annul judgment upon a compromise which may be filed directly in court [Sanchez vs. Tupaz, 158 SCRA 459]. REVISED RULES ON SUMMARY PROCEDURE

Actions before the Metropolitan Trial Courts, Municipal Trial Courts in Cities, Municipal Trial Courts and Municipal Circuit Trial Courts falling under: Civil Cases 1. All cases of forcible entry and unlawful detainer, irrespective

of the amount of damages or unpaid rentals sought to be recovered. Where attorney‘s fees are awarded, the same shall not exceed P20,000;

2. All other cases where the total amount of the plaintiff‘s claim does not exceed P100,000 (outside MM) or P200,000 (in MM), exclusive of interest and costs. (except probate proceedings)

Criminal Cases 1. Violation of Bouncing Checks Law (BP 22) 2. Violations of Municipal or City Ordinances 3. Violations of Rental Law 4. All other criminal cases where the penalty prescribed is

imprisonment not exceeding 6 months, or fine not exceeding P1,000, or both, irrespective of other imposable penalties, accessory or otherwise, or of the civil liability arising therefrom, provided, that in offenses involving damage to property through criminal negligence, rule shall govern where the imposable fine does not exceed P10,000.

Note: Rule does not apply to a civil case where the cause of action or criminal charge is pleaded or related in the same complaint with another cause of action or criminal case subject to the ordinary procedure;

TOTALITY RULE UNDER BP129 (Sec. 33(1)) Where there are several claims or causes of actions between the same or different parties, embodied in the same complaint, the amount of the demand shall be the totality of the claims in all causes of action, irrespective of whether the causes of action arose out of the same or different transaction. NOTE: Rules on Summary procedure, Katarungang Pambarangay and Small Claims shall be discussed further under the Chapter on “SPECIAL REMEDIAL LAWS”



RULE 1: GENERAL PROVISIONS

Sec 1. Title of the Rules: These Rules shall be known and cited as the Rules of Court. Sec. 2. In what courts applicable. -‐ These Rules shall apply in all the courts, EXCEPT as otherwise provided by the Supreme Court. Sec. 3. Cases governed. -‐ These Rules shall govern the procedure to be observed in actions, civil or criminal, and special proceedings. (a) A civil action is one by which a party sues another for:

- the enforcement or protection of a right, or - the prevention or redress of a wrong.

A civil action may either be: ordinary or special. Both are governed by the:

- rules for ordinary civil actions, - subject to the specific rules prescribed for a special

civil action.

(b) A criminal action is: one by which the State prosecutes a person for an act or omission punishable by law.

(c) A special proceeding is: a remedy by which a party seeks to establish a status, a right, or a particular fact. Cases Governed:

ACTION CLAIM An ordinary suit in a court of

justice A right possessed by one

against another One party prosecutes another

for the enforcement or protection of a right or the

prevention or redress of a wrong

The moment said claim is filed before a court, the claim is converted into an

action or suit

CLASSIFICATION OF ACTIONS

1. As to nature

Ordinary Civil Action Special Civil Action Governed by ordinary

rules Also governed by ordinary rules BUT subject to specific rules prescribed (Rules 62 -‐ 71)

Formal demand of one’s legal rights in a court of justice in the manner prescribed by the court

or by the law

Special features not found in ordinary civil actions

Note: Not all civil actions are required to be based on a cause of action. Only ordinary civil actions are required to be based on a cause of action.

2. As to object

In Rem In Personam Quasi In Rem Directed against the thing itself

Directed against a particular person

Directed against particular persons

Jurisdiction over the person of the defendant is NOT required

Jurisdiction over the person of the defendant IS required

Jurisdiction over the person of the

defendant is NOT required as long as jurisdiction over the res is acquired

A proceeding to determine the

state or condition of a

thing

An action to impose a

responsibility or liability upon a person directly

A proceeding to subject the interest

of a named defendant over a particular property to an obligation or lien burdening it

Judgment is binding on the whole world

Judgment is binding only upon parties impleaded or their successors

in interest

Judgment binding upon particular

persons

E.g. Probate proceeding; cadastral proceeding

E.g. Action for specific

performance, breach of contract, auction of land for collection of tax

E.g. An action for partition; action to foreclose real estate

mortgage, attachment, action for accounting

Note: Distinction is important in determining whether jurisdiction over the person is required and the type of summons to be employed to make the judgment binding.

3. As to cause

Real Action Personal Action Mixed Affects

ownership, title, possession of real property or any interest therein

Personal property is sought to be recovered or where damages for breach of contract are

sought

Both real and personal

properties are involved

Founded on privity of real

estate

Founded on privity of contract

Founded on both

Filed in the court where the property or any part thereof is situated

Filed in the court where the plaintiff or any of the defendants resides, at the option

of the plaintiff

The rules on venue of real actions shall govern

Note: Real action must involve the ff issues: Ownership, possession, partition, foreclosure of mortgage or any interest in real property

-‐ CIVIL PROCEDURE-‐



Examples: Real Action Personal Action

- Accion reinvidicatoria

- Action to recover possession to real property

- Action to foreclose a real estate mortgage

- Ejectment

- Action for a sum of money, - Nullity of marriage - Action for damages to real property (since it doesn’t have the proper issues involved)

- Specific performance - Action to compel the mortgagee to accept payment of the mortgage debt and to release the mortgage

Note: The distinction is significant in determining the venue of an action. Gochan v. Gochan : A complaint denominated as one for specific performance but nonetheless prays for the issuance of a deed of sale for a parcel of land to acquire ownership is deemed a real action. (372 SCRA 356) Emergency Loan Pawnshop v. CA : Where the action to annul or rescind a sale or contract involving real property has as its fundamental and prime objective the recovery of real property, the action is real. Not a mere breach of contract. (353 SCRA 89) Hernandez v. DBP : Where an award granted was cancelled, an action that seeks to annul the cancellation of the award is a personal action. The nature of the action is really one which seeks the recognition of the validity of the previous award. (71 SCRA 290, Bar 76, 78) Note: An action in personam is not necessarily a personal action. Nor is a real action necessarily an action in rem. An action could be: - real action but in personam as to object (e.g. action to

recover piece of land) or - in rem but a personal action (e.g. action for annulment

marriage)

In Personam/ In Rem

Classification according to object of the action

Real of Personal Classification according to foundation. 4. As to place of f i l ing

Local Action Transitory Action

Must be brought in a particular place where the subject property is located,

unless there is an agreement to the contrary

(Section 4, Rule 4)

Dependent on the place where the party resides regardless of where the cause of action arose subject to Section 4,

Rule 4

e.g. real actions e.g. personal actions Paper Industr ies v . Samson: If the action is founded on privity of contract between the parties, then the action, whether debt or covenant, is t rans i tory . If there is no privity of contract and the action is founded on privity of estate only, then the action is loca l and must be brought in the place wherein the land lies. (Nov, 75)

Act ions BASED ON PECUNIARY ESTIMATION, Action capable of

pecuniary estimation Action incapable of pecuniary

estimation One wherein the action is brought pr imar i ly for the recovery o f sum o f money and the amount of the claim shall determine where the jurisdiction lies.

One wherein the basic issue is something o ther than the right to recover a sum of money or where the money c la im is pure ly inc identa l to or a consequence of the principal relief sought. (RTC has jurisdiction)

e.g. action for sum of money

e.g. specific performance, rescission, support, foreclosure of mortgage, injunction

Sec. 4. In what cases not applicable. These Rules shall not apply to: (OILE CaN)

- Other cases not herein provided for, - Insolvency proceedings - Land registration, - Election cases, - Cadastral, and - Naturalization

EXCEPT by analogy or in a suppletory character and whenever practicable and convenient. Bantolino v. Coca Cola: Rules of evidence are not strictly observed in proceedings before administrative bodies like the NLRC where decisions may be reached on the basis of position papers only. Rules that prevail in judicial proceedings are not controlling before the labor arbiter and the NLRC. (402 SCRA 699) Sime Darby Employees Association v. NLRC: Labor disputes are not governed by the strict and technical rules of procedure observed in the regular courts. They may only apply by analogy when there is a need to attain substantial justice and an expeditious, practical and convenient solution to a labor problem. (Dec 06) Samalio v. CA: Administrative bodies are not bound by the technical niceties of the rules in a court of law. Hence, administrative due process cannot be fully equated with due process in strict judicial terms. (454 SCRA 462) Sec. 5 . Commencement of action. A civil action is commenced by the fi l ing of the original complaint in court. IF an additional defendant is impleaded in a later pleading: - The action is commenced with regard to him - On the date of the filing of such later pleading, - Irrespective of whether the motion for its admission, if

necessary, is denied by the court.



CIVIL ACTIONS ARE COMMENCED BY: 1. The fi l ing of the complaint (when an additional

defendant is impleaded in a later pleading, the action is commenced with regard to him on the date of the filing of such LATER PLEADING); The date of the filing determines whether or not the action has already prescribed.

Note: An action can be commenced by filing the complaint by registered mail. In which case, it is the date of mailing that is considered as the date of filing and not the date of the receipt thereof by the clerk of court. Cabrera v. Tiano: Civil actions are deemed commenced from the date of the filing and docketing of the complaint, without taking into account the issuance and service of summons. (8 SCRA 54 (1963)) 2. The payment of docket fees (determined not only by

the amount of the claim but also by the amount of interests, damages, atty. fees, litigation expenses, costs).

Note: The amount of damages should be specified not only in the body of pleading but also in the prayer. Heirs of Bertuldo Hinog v. Melicor : It is not simply the filing of the complaint or appropriate initiatory pleading, but the payment of the prescribed docket fee that vests a trial court with jurisdiction of the subject matter or nature of the action. (455 SCRA 460 (2005))

DOCKET FEES AND JURISDICTION: Fil-‐Estate v. Navarro: Even though the payment of docket fees is a jurisdictional requirement, its non-‐payment at the time of filing does not automatically result in the dismissal of the case, provided the said fees are paid within the reglementary period. (June, 07) Hodges v. CA : Filing fees should be paid in FULL for the court to acquire jurisdiction. Partial payment of docket fees prevents the court from acquiring jurisdiction and any proceedings undertaken thereafter is null and void. (G.R. 87617 (1990)) Sun Insurance Office, Ltd. , (SIOL) v. Asuncion : Laid down the following Rules: 1. It is not simply the filing of the complaint or appropriate initiatory pleading, but the payment of the prescribed docket fee, that vests a trial court with jurisdiction over the subject matter or nature of the action. Where the filing of the initiatory pleading is not accompanied by payment of the docket fee, the court may allow payment of the fee within a reasonable time but in no case beyond the applicable prescriptive or reglementary period.

2. The same rule applies to permissive counterclaims, third-‐party claims and similar pleadings, which shall not be considered filed until and unless the filing fee prescribed therefor is paid. The court may also allow payment of said fee within a reasonable time but also in no case beyond its applicable prescriptive or reglementary period. 3. Where the trial court acquires jurisdiction over a claim by the filing of the appropriate pleading and payment of the prescribed filing fee but, subsequently, the judgment awards a claim not specified in the pleading, or if specified, the same has been left for determination by the court, the additional filing fee therefor shall constitute a l ien on the judgment. It shall be the responsibility of the Clerk of Court or his duly authorized deputy to enforce said lien and assess and collect the additional fee. (Feb 13, 1989) Alday v. FGU Insurance: There is no need to pay docket fees for compulsory counterclaims. However, in order for the trial court to acquire jurisdiction over permissive counterclaims as well as third party claims, the prescribed docket fees must be paid. (Jan, 01) Note However: Korea Technologies v. Lerma , G.R. 143581, January 7, 2008 where the court ruled: “We stress, however, that effective August 16, 2004 under Sec. 7, Rule 141, as amended by A.M. No. 04-‐2-‐04-‐SC, docket fees are now required to be paid in compulsory counterclaims or cross-‐ claims.”

[BUT]

Tranquil: IN PRACTICE filing fees are not paid in case of compulsory counterclaims based on Re: Revised Upgrading Schedule of the Legal Fees in the Supreme Court and the Lower Courts Under Rule 141 of the Rules of Court, a resolution of the SC en banc dated Sept 21, 2004: “The Court further Resolved to… SUSPEND the new rates of the legal fees under Rule 141 as amended by A.M. No. 04-‐2-‐04-‐SC viz: (a) Solemnization of marriage; (b) Motions; and (c) Compulsory counterclaims.” Note: This has not been lifted. Sec. 6 . Construction. These Rules shall be l iberally construed in order to promote their objective of securing a just, speedy and inexpensive disposition of every action and proceeding. GR: Liberal Construction EXC: 1. Reglementary Period 2. Rule on Forum Shopping 3. Service of Summons Note: Rules must not be applied rigidly so as not to override substantial justice. Every litigant must be afforded the amplest opportunity for the proper and just determination of his cause, free from the constraints of technicalities.



Liberal Construction has been Allowed in Cases: 1. Where the rigid application will result in the manifest

failure or miscarriage of justice 2. Where the interest of substantial justice will be served 3. Where the resolution of the motion is addressed solely to

sound and judiciously discretion of the court 4. Where the injustice to the adverse party is not

commensurate to the degree of his thoughtlessness in not complying with the procedure prescribed. (Manila Banking v. University of Baguio, Feb 07)

Liberal Construction has NOT been Allowed in Cases: 1. When liberality would result in the wanton disregard of

the rules and cause needless delay 2. When the rules are ignored at will to suit merely the

convenience of the party 3. When liberality amounts to a license for erring litigants

to violate the rules with impunity 4. When the rules are needed to insure an orderly and

speedy administration of justice Guadiano v. Benemerito: Concomitant to a procedure adopting a liberal application of the rules should be an effort on the part of the party invoking liberality to explain his failure to abide by the rules. (Feb, 07)

CIVIL ACTIONS -‐ ORDINARY CIVIL ACTIONS

RULE 2: CAUSE OF ACTION

Sec 1. Ordinary civil actions, basis of Every ordinary civil action must be based on a cause of action. Sec. 2. Cause of action, defined. -‐ The act or omission by which a party violates a right of another. Requisites of a Cause of Action 1. Legal right of the plaintiff. 2. Correlative Obligation of the defendant to respect or

not to violate the plaintiff’s right; and 3. Act or omission of the defendant in violation of the

plaintiff ’s legal right constituting a breach of obligation.

Injury – Illegal invasion of a legal right. Damage – The loss, hurt, or harm which results from the injury. Right of Action, defined: Right of a person to commence and prosecute an action to obtain the relief sought. -‐ Requisites of a Right of Action: 1. There must be a good cause; 2. Compliance with all the conditions precedent to the

bringing of the action; and 3. Action must be instituted by the proper party.

Cause of Action Right of Action Delict or wrongful act or omission committed by the defendant in violation of the primary rights of the plaintiff

Remedial right or right to relief granted by law to a party to institute an action against a person who has

committed a delict or wrong against him

The reason for the action The remedy or means afforded or the consequent

relief The formal statement of the operative facts that gives rise

to remedial right

The remedial right given to a person because of the

occurrence of the alleged facts

A matter of procedure and depends on the pleadings

filed by the parties

A matter of right and depends on substantive law

Not affected by affirmative defenses (fraud, prescription,

estoppel, etc.)

Affected by affirmative defenses

Marquez v. Valera, 92 Phil 373 Note: Right of action springs from the cause of action. There can be no right of action until there has been a violation of a legal right.

Relief Remedy Subject Matter The redress, protection, award or coercive

measure which the plaintiff

prays the court to render in his

favor as consequence of

the delict committed by the defendant

The procedure or appropriate legal form of relief of action which may be availed of by the plaintiff as the means to obtain the

desired relief

The thing wrongful act, contract or property which is directly involved in

the action, concerning which the wrong has been done and with respect to which the

controversy has arisen

Cause of Action as Applied to Administrative Cases: While a cause of action is essential to the existence of a civil action, in admin cases, the issue is not whether the complainant has a cause of action, but whether the respondent has breached the norms and standards of the office. (Mutia v. Pacariem, 494 SCRA 448) Cause of Action in Specific Cases: • Negligence is not an element of a cause of action based on

breach of contract and need not be alleged and proved. Cause of action based on breach of contract requires the ff elements: (1) The existence of a contract, and (2) breach of contract. (Calalas v. CA, 332 SCRA 356)



• Negligence as an element of a quasi-‐delict must be alleged and proved (Art 2176 CC) but the negligence of those persons described under Art 2180 CC, under the doctrine of vicarious liability, although based on a quasi-‐delict is presumed.

• Where the cause of action rests on a promissory note, filing the action before the due date of the obligation is premature. The defect cannot also be cured by the service of summons after the due date of the note.

• In an unlawful detainer case, the cause of action does not accrue unless there is a demand to vacate and is not complied with, If however, the suit is based on expiration of the lease, notice and demand are not required (Labastida v. CA, 287 SCRA 662)

• If an unlawful detainer case is predicated upon the defendant’s failure to pay the rentals, the demand is in essence an action for sum of money. If the demand is “to pay AND vacate”, the cause of action is one for unlawful detainer and should be filed in the MTC. (Barrazona v. RTC of Baguio, 486 SCRA 555)

Bar 99: Action distinguished from cause of action - An action is the suit filed in court for the enforcement of a

right or the prevention or redress of a wrong. Cause of action is the basis of the action filed.

Dismissal Anchored on “Failure to State a Cause of Action” Rule: The mere existence of a cause of action is not sufficient for a complaint to prosper. The cause of action must unmistakably be stated or alleged in the complaint or that all the elements of the cause of action required by substantive law must clearly appear from the mere reading of the complaint. - Even if the plaintiff has a cause of action against the

defendant, the complaint may be dismissed if the complaint or the pleading states no cause of action.

- Here, the allegations are insufficient for the court to know that the rights of the plaintiff were violated.

Failure to State a Cause of

Action Lack of a Cause of

Action Insufficiency in the allegations or if the allegations taken together, do not completely spell out the elements of a particular cause of action.

Failure to prove or to establish by evidence one’s stated cause of action

Raised in a motion to dismiss under Rule 16 before a responsive pleading is filed

Raised in a demurrer to evidence under Rule 33

Determined only from the allegations of the pleading and not from evidentiary matters.

Resolved only on the basis of the evidence presented in support of a claim.

Test of the Sufficiency of the Statement of a Cause of Action - The test is w/n admitting the facts alleged, the court

could render a valid verdict in accordance with the prayer of the complaint. (Misamis Occidental II , Inc. vs. David, 468 SCRA 63)

- The truth of the falsity of the allegations are beside the point because a motion to dismiss under this ground hypothetically admits the matters alleged in the complaint. (PNB v. CA, 291 SCRA 271)

- The court should only consider the material allegations of the complaint. It is an error for the court to take cognizance of external facts or to hold preliminary hearings to determine its existence. (Diaz v. Diaz, 331 SCRA 302)

- Sufficiency of the statement of the cause of action must appear on the face of the complaint. (Viewmaster Const Co v. Roxas, 335 SCRA 540)

- Extraneous facts and circumstances or other matters aliunde are not considered, but the court may consider in addition to the complaint the appended annexes or documents, other pleadings of the plaintiff, or admissions in the records. (Zepeda v. China Banking Corp., GR 172175, Oct. 9, 2006)

Determining the Nature of Cause of Action - The nature of a cause of action is determined by the facts

in the complaint and not by the prayer therein. - It is NOT the designation of the complaint or the caption

that is controlling BUT the allegations of the complaint together with the character of the relief sought, w/n plaintiff is entitled to any reliefs prayed.

- The jurisdiction of the court over the nature of the action cannot be made to depend upon the defenses set up in court or upon a motion to dismiss, otherwise, the question of jurisdiction would depend almost entirely on the defendant. (De la Rosa v. Roldan, 501 SCRA 34)

Sec. 3. One suit for a single cause of action. A party may NOT institute more than one suit for a single cause of action. Sec. 4. Splitting a single cause of action; effect of . If two or more suits are instituted on the basis of the same cause of action, the:

- Filing of one or - A judgment upon the merits in any one

is available as a ground for the dismissal of the others. Splitting a Cause of Action, defined: The practice of dividing one cause of action into several parts or claims and bringing several actions thereon. It is NOT allowed. - Ratio: To avoid multiplicity of suits, conflicting

decisions, unnecessary vexation and harassment of defendants, and clogging the docket courts.

- Applies NOT only to complaints but also to counterclaims & cross-‐claims. (Mariscal v. CA, 311 SCRA 51)



Remedy against splitting a single cause of action: 1 . Motion to dismiss on the ground of:

- Litis pendentia, -‐ if there is another action pending between the same parties for the same cause (Rule 16, Sec. 1[e]); or

- Res judicata -‐ If final judgment has been rendered in the first action when the second action is filed (Rule 16, Sec. 1[f])

2. An answer alleging either of the above-‐cited grounds as an affirmative defense (Rule 16, Sec. 6)

Rules on Contract - GR: A contract embraces only one cause of action even if

it contains several stipulations - EXC: A contract to do several things at several times is

divisible, and judgment for a single breach of a continuing contract is not a bar to a suit for a subsequent breach. (e.g. promissory note payable in several installments, so long as there is no acceleration clause)

- EXC to EXC: All obligations which have matured at the time of the suit must be integrated as one cause of action in one complaint and those not so included would be barred.

Itogon Suoc Mines Inc v. Sangil-‐Itogon Worker’s Union: The rule against splitting of a cause of action applies only where the actions are between the same parties. (Aug, 68) Joseph v. Bautista: A single act/delict may sometimes violate several rights of a person. Nevertheless, the plaintiff has only one cause of action, regardless of the number of rights violated (170 SCRA 540 (1989)) e .g . A person while driving got into an accident – he can only file one case for the violation of 2 of his rights -‐ right to be safe in his person and right to have his car intact and free from any damage I l lustration in Cases: • An action for forcible entry should include not only the

plea for restoration of possession but also claims for damages arising out of the forcible entry. (Progressive Development Corp v. CA, 301 SCRA 637)

• An action to recover the possession of land should also include the recovery of the fruits taken from the land or the unpaid rent in case of an action for unlawful detainer.

• A tenant illegally ejected from the land is entitled to two

reliefs (reinstatement and damages) arising from one cause of action. Hence, only one complaint should filed. (Gozon v. Vda de Barrameda, 11 SCRA 376)

• A cause of action for reconveyance of title over property

does not include a cause of action for forcible entry or unlawful detainer. Ejectment cases involve possession de facto or material possession while an action for reconveyance involves the issue of ownership. (Tecson v. Gutierrez, 452 SCRA 781)

• An action for recovery of taxes should also include the demand for surcharges resulting form delinquency in the payment of said taxes. (Bacolod v. SMB, 29 SCRA 819)

• A bank cannot file a civil action against a debtor for the

collection of the debt and then subsequently file an action to foreclose the mortgage. (Danao v. CA, 154 SCRA 446)

• An action to collect the amount of the loan will not

preclude a subsequent action for the rescission of the mortgage based on violation of the conditions of the mortgage. (Enriques v. Ramos, 7 SCRA 26)

• A claim for partition of real property and a claim for

compensation for the improvements thereon constitute one cause of action. (Lavaro v Labitoria, 54 Phil 788)

• An action for annulment of sale of certain shares of stock

should include a claim for the recovery of dividends which have accrued thereon.

• A suit against the owner based on breach of contract of

carriage is separate and distinct from a cause of action arising from a crime.

• A contract which requires the performance of several

obligations at different times, (e.g. obligation on installment basis) gives rise to divisible independent obligations. Thus, a contract of lease that provides for the payment of rentals in separate installments, each unpaid installment constitutes an independent cause of action. (Larena v. Villanueva, 53 Phil 923)

Doctrine of Anticipatory Breach: An unqualified and positive refusal to perform a contract, though the performance thereof is not yet due, may, if the renunciation goes into the whole contract, be treated as a complete breach which will entitle the injured party to bring his action at once. The anticipatory breach committed by the defendant entitles the plaintiff to only one cause of action for damages. (Blossom & Co. v. Manila Gas Corp. 55 Phil 226 (1930)) Sec. 5 . Joinder of causes of action. A party may in one pleading assert:

- in the alternative or otherwise, - as many causes of action as he may have against an

opposing party, Subject to the following conditions: a. The party joining the causes of action shall comply with

the rules on joinder of parties; b. The joinder shall not include special civil actions or

actions governed by special rules; c. Where the causes of action are between the same parties

but pertain to different venues or jurisdictions: the joinder may be allowed in the RTC provided one of the causes of action falls w/in the jurisdiction of said court and the venue lies therein; and

d. Where the claims in all the causes of action are principally for recovery of money: the aggregate amount claimed shall be the test of jurisdiction.



Joinder of Cause of Action, defined: The assertion of as many causes of action as a party may have against another in one pleading alone. It is the process of uniting two or more demands or rights of action in one action. Note: Rule is not compulsory but merely permissive. The plaintiff can always file separate actions for each cause of action. HOWEVER, when the joinder refers to indispensable parties, the joinder is compulsory under Rule 3 Sec 7 Notes on Requisites of Joinder of Causes of Action: Par (a): The party joining the causes of action must comply with the Rules on Joinder of Parties (Sec 6 Rule 3):

1. A right to relief in respect to or arising out of, the same transaction or series of transactions; and

2. A common question of law or fact. Examples: - Kiefer is a passenger of a bus owned by MVP and driven

by Norman. Because of the negligence of Norman, the bus got into an accident where Kiefer sustained injuries. Kiefer in filing suit may join MVP and Norman as defendants in the same complaint. Here, the liability of MVP and Norman arose out of the same accident which gave rise to the same question of law and fact.

- Monfort lent money to Kirk and Greg so that they could learn to speak Filipino. He issued only 1 promissory note in favor of the two. Monfort may join the two under one complaint in case of nonpayment.

Note: When the causes of action accrue in favor of one plaintiff/defendant, it is not necessary to ask w/n the causes of actions arose out of the same or series of transactions. Such is relevant only in cases of multiple plaintiffs/defendants. The requirements under Rule 3 do not apply when there is only one plaintiff and defendant. Par (b): Only causes of action in ordinary civil actions may be joined, obviously because they are subject to the same rules. Special civil actions or actions governed by special rules are not included: Special Civil Actions

Rule 62 -‐ 71 Special Proceedings

Rule 72 -‐ 109 QC – PRICED – PUFF

- Quo Warranto - Certiorari

- Prohibition - Review of Judgment - Interpleader - Contempt - Expropriation - Declaratory Relief

GET – DR. HASH – JVC3 - Guardianship and custody of children;

- Escheat; - Trustees; - Declaration of absence and death; - Rescission and revocation of adoption;

- Hospitalization of insane persons; - Adoption; - Settlement of estate of deceased persons;

- Habeas corpus;

- Partition - Unlawful detainer - Foreclosure of real estate mortgage

- Forcible Entry

- Judicial approval of voluntary recognition of minor natural children;

- Voluntary dissolution of corporations;

- Change of name; - Constitution of family home; - Cancellation or correction of entries in the civil registry.

Par (c): As long as one cause of action falls within the jurisdiction of the RTC, the case can be filed therein even if the MTC has jurisdiction over the others. Par (d): Embodies the TOTALITY RULE under BP129 (Sec. 33(1)) -‐ Where there are several claims or causes of action between the same or different parties, embodied in the same complaint, the amount of the demand shall be the totality of the claims in all causes of action, irrespective of whether the causes of action arose out of the same or different transactions.

Note: We will follow the totality rule in BP 129 because it is elementary in statutory construction that in case of conflict, substantive law prevails over procedural laws. Note: The jurisdictional amount excludes (1) interest, (2) damages and (3) litigation expenses and costs. These matters however, shall be included in determining the filing fees. - The exclusion of “damages” applies to cases where the

damages are merely incidental thereto or consequence of the main cause of action.

Restrictions on the Joinder of Causes of Action:

1. Jurisdiction; 2. Venue; and 3. Rules on joinder of parties.

Splitting a Cause of

Action Joinder of Causes of

Action There is a single cause of

action Contemplates several causes

of action Prohibited. It causes multiplicity of suits and

double vexation on the part of the defendant

Encouraged. It minimizes multiplicity of suits and

inconvenience on the parties

Joinder of Causes of

Action Joinder of Parties

(Sec 6 Rule 3) Procedural device where a party who asserts various claims against the same or several parties, files all his claims against them in a single complaint.

Procedural device that may be employed when there are various causes of action that accrue in favor of one or more plaintiffs against one or more defendants (i.e. there is a plurality of parties)

Does not necessarily involve a joinder of parties.

Does not necessarily involve a joinder of causes of action.



Sec. 6. Misjoinder of causes of action. Misjoinder of causes of action is not a ground for dismissal of an action. A misjoined cause of action may:

- on motion of a party OR - on the initiative of the court,

be severed and proceeded with separately. Note: There is no sanction against non-‐joinder of separate causes of action.

RULE 3:PARTIES TO CIVIL ACTIONS

Sec 1. Who may be parties; plaintiff and defendant. Only natural or juridical persons, or entities authorized by law may be parties in a civil action. The term "plaintiff" may refer to:

- the claiming party, - the counter-‐claimant, - the cross-‐claimant, or - the third (fourth, etc.) party plaintiff.

The term "defendant" may refer to: - the original defending party, - the defendant in a counterclaim, - the cross-‐defendant, or - the third (fourth, etc.) party defendant.

Plaintiff , defined: One having an interest in the subject matter of the action or in obtaining the relief demanded. The term may refer to the claiming party, the counter-‐claimant, the cross-‐claimant, or the third (fourth, etc.) – party plaintiff. Defendant, defined: One claiming an interest in the controversy or the subject thereof adverse to the plaintiff. - The term “defendant” may include: 1. An unwilling plaintiff or one who should be joined as

plaintiff but refuses to give his consent thereto (Sec. 10, Rule 3);

2. The original plaintiff becoming a defendant to the original defendant’s counterclaim; or

3. One necessary to a complete determination or settlement of the questions involved therein

Requirements for a Person to be a Party to a Civil Action: 1. He must either be a:

- A natural person; - A juridical person; or - An entity authorized by law

2. He must have a legal capacity to sue; and 3. He must be the real party in interest. Juridical Persons as Parties (Art 44 CC) 1. The State and its political subdivisions 2. Other corporations, institutions and entities for public

interest or purpose, created by law, and

3. Corporations, partnerships and associations for a private interest or purpose to which the law grants a juridical personality, separate and distinct from that of each shareholder, partner or member.

Entities Authorized by Law to be Parties to a Suit Include: 1. The estate of a deceased person (Limjoco v. Intestate

Estate, 8 Phil 776) 2. A political party incorporated under Act 1459 (now BP

68, Corp Code) 3. A registered labor union (Sec 243 PD 442 Labor Code),

with respect to its property. 4. Corporation by estoppel is precluded from denying its

existence and the members thereof can be sued and be held liable as general partners. (Sec 21 Corp Code)

5. A contract of partnership having a capital of 3k or more but which fails to comply with the registration requirements is nevertheless liable as partnership to third persons. (Art 1772 in re Art 1768 CC)

6. The Roman Catholic Church may be a party and as to its properties, the archbishop or diocese to which they belong may be a party. (Barlin v. Ramirez, 7 Phil 47)

7. A dissolved corporation may prosecute and defend suits by or against it provided that the suits (1) occur w/in 3 years after its dissolution, and (2) the suits are in connection with the settlement and closure of its affairs. (Sec 122 Corp Code)

8. Rule 3 Section 15: When two or more persons, not organized as an entity with juridical personality, enter into a transaction, they may be sued under the name by which they are generally or commonly known.

Lack of Legal Capacity to

Sue Lack of Legal

Personality to Sue Refers to the plaintiff’s general disability to sue. (e.g. on account

of minority, insanity, incompetence, lack of juridical personality, or any other general

disqualification)

The plaintiff is not the real party in interest

It can be a ground for a motion to dismiss on the ground of lack of legal capacity to sue. (Rule 16

[1d])

It can be used as a ground for a motion to dismiss based on the fact that the complaint, on the face

thereof, states no cause of action.

Board of Optometry v. Colet: Facts showing the capacity or authority of a party to sue or be sued must be averred. (260 SCRA 88) Sec. 2 . Parties in interest . A real party in interest is the party:

- Who stands to be benefited or injured by the judgment in the suit, or

- The party entitled to the avails of the suit. UNLESS otherwise authorized by law or these Rules:

- Every action must be prosecuted or defended in the name of the real party in interest.



Interest of a Real Party in Interest - To be a real party-‐in-‐interest, the interest must be real,

which is a present substantial interest as distinguished from a mere expectancy or a future, contingent subordinate or consequential interest (Fortich vs. Corona, 289 SCRA 624).

- It is an interest that is material and direct, as distinguished from a mere incidental interest in question (Samaniego vs. Aguila, 334 SCRA 438).

Tuason v. Bolanos: Section 2, Rule 3 of the Rules of Court requires that an action must be brought in the name but NOT necessarily “by” the real party in interest. In fact, the practice is for an attorney in fact to bring the action, e.g., to file the complaint in the name of the plaintiff. (95 Phil 06 (1954)) Note: The mere failure to include the name of a party in the title of the complaint is not fatal provided it is mentioned in the averments. Hence, if the body indicated the person as a party to an action, his omission in the title is NOT fatal. (Vlason Enterprises v. CA) Remedy if Party is NOT a Real Party in Interest - The prosecution of an action in the name of one who is

not the real party in interest may be a ground for dismissal on account of the failure to state a cause of action

Parties in Interest in a Contract - The contracting parties as they are the ones who stand to

benefit from the same. - Those covered by the operation of the doctrine of

relativity of contracts (Art 1311 CC) namely, parties, their assignees and heirs.

- Those who are principally and subsidiarily bound by the contract (Art 1397 CC)

GR: One who is not a privy to a contract may not bring an action to enforce it. (Exceptions to Relativity) EXC: 1. Art 1311 CC: Contracts containing stipulations pour atrui

or stipulations expressly conferring benefits to a non-‐party may sue under the contract provided such benefits have been accepted by the beneficiary prior to its revocation by the contracting parties

2. Art 1312 CC: In contracts creating real rights, 3rd persons who come into possession of the object of the contract are bound by the Mortgage Law and the Land Registration law.

3. Art. 1313, CC: Creditors are protected in cases of contracts intended to defrauded them. Thus, a creditor who is not a party to a contract can sue to rescind the contract to redress the fraud committed upon him.

4. Art 1314 CC: Any 3rd person who induces another to violate his contract shall be liable for damages to the other contracting party. (Tort Interference)

Real Party in Interest I l lustrated: • A mere agent, who is not an assignee of the principal

cannot bring suit under a contract entered into by the principal, because it is the principal and not the agent who is the real party in interest. (Uy v. CA, 314 SCRA 69)

• In case the action is brought against the agent, the action must be brought against the agent acting in his own name and for the benefit of an undisclosed principal w/o joining the principal, except when the contract involves things belonging to the principal.

• An attorney in fact is not a real party in interest. (Carillo

v. CA, 502 SCRA 66)

• In an action for forcible entry, the possessor/lessee is the real party in interest as plaintiff and NOT the owner/lessor since the issue in said action is mere possession. (Phil Trust Company v. CA, 320 SCRA 719)

• A corporation has a personality separate and distinct

from its shareholders. However, even if the corporation is the real party in interest, if the board refuses to sue despite demand, the stockholders may file a derivative suit in the corporation’s name. The stockholder being a mere nominal party. (Asset Privatization Trust v. CA, 300 SCRA 579)

• An action for ejectment may be filed by any of the co-‐

owners of the land (Art 487 CC) • Minors represented by their parents were held as real

parties in interest to file an action to annul timber licenses issued by the state under the ff principles: intergenerational responsibility, intergenerational justice, the right of the Filipino to a balanced and healthful ecology, and minors represent themselves and generations to come. (Oposa v. Factoran, G.R. 101083)

Locus Standi vis-‐a-‐vis Real Party in Interest: Locus Standi is the right of appearance in court on a given question. In private suits, standing is governed by the “real party in interest” rule. Standing however because of its constitutional underpinnings requires an analysis of broader policy concerns. CLASSIFICATION OF PARTIES IN INTEREST: 1 . Indispensable Parties – Those without whom no final

determination can be had of an action (must be joined under all conditions).

Significance of Indispensable Parties - Without the presence of this party, the judgment cannot

attain real finality (De Castro vs. CA, 384 SCRA 607). - The presence of indispensable parties is a condition sine

qua non for the exercise of judicial power and when an indispensable party is not before the court, the action should be dismissed.



- The absence of indispensable parties renders all subsequent actions of the court null and void for want of authority to act, not only to the absent parties but even as to those present.

- Two essential tests of an indispensable party: (a) Can a relief be afforded to the plaintiff without the presence of the other party? and (b) Can the case be decided on its merits without prejudicing the rights of the other party?

Not Indispensable Parties : a. Person whose interest in the controversy or subject

matter is separable from the interest of the other parties, so that it will not necessarily be directly or injuriously affected by a decree which does complete justice between them.

b. If his presence would merely permit complete relief between him and those already parties to the action, or if he has no interest in the subject matter of the action.

2 . Necessary (or proper) parties -‐ Those who are not

indispensable but ought to be joined as parties if complete relief is to be accorded as to those already parties for a complete determination or settlement of the claim subject of the action (may or may not be joined).

3 . Representative parties – Those acting in fiduciary capacity such as trustees, guardians, executors, or administrators. The beneficiary shall be included in the title of the case and shall be deemed to be real part in interest.

4 . Pro forma parties -‐ Those who are required to be

joined as co-‐parties in suits by or against another party as may be provided by the applicable substantive law or procedural rule such as in the case of spouses under Section 4.

5 . Quasi parties – Those in whose behalf a class or

representative suit is brought.

Right of a Foreign Corporation to Bring Suit in Philippine Suits:

Doing Business

in the RP Not Doing

Business in the RP

WITH A LICENSE

Corporation can SUE before

Philippine courts on any transaction. Can

also be sued. (Agilent

Technologies v. Integrated Silicon

(2004))

No need for license

to sue before Philippine Courts on

an ISOLATED TRANSACTION, or on a cause of action entirely independent of any business transaction

WITHOUT A LICENSE

Corporation cannot

sue before Philippine Courts BUT can be sued.

Philippine citizen or entity that

CONTRACTED with the foreign

corporation may be ESTOPPED from challenging its

personality in a suit brought before Philippine Courts

Sec. 3. Representatives as parties. Where the action is allowed to be prosecuted or defended by a representative or someone acting in a fiduciary capacity, the beneficiary:

- shall be included in the title of the case and - shall be deemed to be the real party in interest.

A representative may be:

1. A trustee of an express trust, 2. A guardian, 3. An executor or administrator, or 4. A party authorized by law or these Rules.

An agent acting in his own name and for the benefit of an undisclosed principal:

- may sue or be sued without joining the principal - EXCEPT when the contract involves things belonging

to the principal. Sec. 4. Spouses as parties. -‐ Husband and wife shall sue or be sued jointly, EXCEPT as provided by law. GR: Husband and wife shall sue or be sued jointly. EXC: 1. Judicial separation; 2. Separation of at least one year; 3. Administration of all the property in the marriage has

been transferred to the wife; 4. Litigation is between husband and wife; 5. Action is upon the civil liability arising from a criminal

offense; 6. Litigation is incidental to the profession, occupation or

business in which she is engaged; 7. Civil action referred to in Articles 25 to 35 of the Civil

Code; 8. Quasi-‐delict; 9. When a spouse w/o just cause abandons the other or fails

to comply with his or her obligations to the family with respect to the marital, parental or property relations.

10. When a spouses of age mortgages, encumbers, alienates or otherwise disposes of his or her exclusive property

11. The regime of separation of property governs the property relations of the spouses.

Sec. 5. Minor or incompetent persons. A minor or a person alleged to be incompetent, may sue or be sued with the assistance of:

- his father, mother, guardian, - or if he has none, a guardian ad litem.



Note: A person NEED NOT be judicially declared incompetent in order that the court may appoint a guardian ad litem, it being sufficient that his incompetency be alleged in the corresponding pleadings. Sec. 6 . Permissive joinder of parties. All persons in whom or against whom:

- any right to relief in respect to or arising out of the same transaction or series of transactions is alleged to exist,

- whether jointly, severally, or in the alternative, may, EXCEPT as otherwise provided in these Rules,

- join as 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 be just to prevent: 1. Any plaintiff or defendant from being embarrassed OR 2. Put to expense in connection with any proceedings in

which he may have no interest. Permissive Joinder –The rule on permissive joinder of parties is that they can be joined in one single complaint or may themselves maintain or be sued in separate suits. Requisites of permissive joinder of parties. 1. Right to relief arises out of the same transaction or

series of transactions; 2. There is a common question of fact or law to all

the plaintiffs or defendants; and 3. Such joinder is not otherwise proscribed by the

provisions of the rules on jurisdiction and venue. Series of Transactions – Separate transactions which are directly connected with the same subject matter of the suit. Sec. 7 . Compulsory joinder of indispensable parties. Parties in interest w/o whom no final determination can be had of an action: shall be joined either as plaintiffs or defendants. Indispensible Parties -‐ Parties in interest without whom no final determination can be had of an action shall be joined either as plaintiffs or defendants. - GR: A joinder of parties is permissive. - EXC: However, the joinder of a party becomes

compulsory when the one involved is an indispensable party.

- The indispensable party must always be included in the suit. In the absence of such party, the court has the duty to order the indispensable party be included. It shall not order the outright dismissal of the suit. The non-‐joinder of indispensable parties is not a ground for the dismissal of the action.

- Only when the party ordered to implead the indispensable party refuses or fails to do so shall the case be dismissed on the ground of disobedience to the rules and order of the court. (Sec 3 Rule 17)

- Still, the absence of an indispensable party renders all subsequent actuations of the court null and void for want of authority to act not only as to the absent parties but even as to those present.

Santiago Land Development Corp v. CA: A transferee of a property pendent lite is not an indispensable party, as it would in any event be bound by the judgment against his predecessor. (267 SCRA 726) Galarosa v. Valencia: The person whose right to the office is challenged is an indispensable party. No action can proceed unless he is joined. (227 SCRA 726) Lozano v. Balesteros: In an action for reconveyance of a property, the persons against whom reconveyance is asserted are indispensable parties. (195 SCRA 681) Sec. 8. Necessary party. A necessary party is one: who is not indispensable BUT who ought to be joined as a party

1. If complete relief is to be accorded as to those already parties, OR

2. For a complete determination or settlement of the claim subject of the action.

Quisumbing v. CA: Necessary Parties, also called proper parties – those whose presence is necessary to adjudicate the whole controversy, but those interests are so far separable that a final decree can be made in their absence w/o affecting them. (Sept, 90) Joint Debtors – Indispensable party with respect to own share and a necessary party with respect to the share of the others. Solidary Debtors – In a suit brought by a creditor against one solidary debtor, the other solidary debtor is NEITHER indispensable or necessary party. Indispensable Parties Necessary Parties Must be joined under any and all conditions, their presence being a sine qua non for the exercise of

judicial power

Should be joined whenever possible. The action can

proceed even in their absence

No valid judgment if indispensable party is not

joined

The case may be determined in court but the judgment therein will not resolve the entire controversy if a necessary

party is not joined They are those with such an interest in the controversy that a final determination would necessarily affect their rights so that the court cannot proceed without their presence

They are those whose presence is necessary to adjudicate the whole controversy but whose

interests are so far separable that a final decree can be made

in their absence without affecting them



Sec. 9. Non-‐joinder of necessary parties to be pleaded. Whenever in any pleading in which a claim is asserted, a necessary party is not joined:

- the pleader shall set forth: o his name, if known, and o shall state why he is omitted.

Should the court f ind the reason for the omission unmeritorious, it may:

- order the inclusion of the omitted necessary party if jurisdiction over his person may be obtained.

The failure to comply with the order for his inclusion, without justifiable cause,

- shall be deemed a waiver of the claim against such party.

The non-‐inclusion of a necessary party: - does not prevent the court from proceeding in the

action, and - the judgment rendered therein shall be without

prejudice to the rights of such necessary party. Duty of a Pleader Whenever a Necessary Party is Not Joined or Impleaded. 1. State the name of the necessary party, if known; and 2. State why said necessary party is omitted in the

pleading. Note: The non-‐inclusion of a necessary party may be excused only on meritorious grounds. Note: The court may order the inclusion of the omitted necessary party if jurisdiction over his person may be obtained by ordering plaintiff to file an amended complaint impleading the necessary party therein as co-‐defendant. Note: The only sanction for failure to implead a necessary party when ordered by the court is a waiver of the claim against him. This is considered as an exception to the provision on penalties imposed on a disobedient party under Sec. 3 of Rule 17 which would have entailed the dismissal of the complaint itself. Sec. 10. Unwilling co-‐plaintiff . If the consent of any party who should be joined as plaintiff cannot be obtained:

- he may be made a defendant and - the reason therefore shall be stated in the complaint.

Sec. 11. Misjoinder and non-‐joinder of parties. Neither misjoinder nor non-‐joinder of parties is ground for dismissal of an action. Parties may be dropped or added:

- by order of the court - on motion of any party or on its own initiative - at any stage of the action and on such terms as are

just. Any claim against a misjoined party -‐ may be severed and proceeded with separately.

A party is misjoined when he is made a party to the action although he should not be impleaded. A party is not joined when he is supposed to be joined but is not impleaded in the action. - GR: Misjoinder nor non-‐joinder of parties does not

involve questions of jurisdiction and is NOT a ground for dismissal of the action. Parties may be dropped or added by order of the court.

- EXC: Sec 7, Rule 3: The non-‐joinder of an indispensable or a necessary party is not by itself ipso facto a ground for the dismissal of the action. The court should order the joinder of such party and non-‐compliance with the said order would be a ground to the dismissal of the action (Feria, 2001).

Note: Objections to defects in parties should be made at the earliest opportunity (e.g., the moment such defect becomes apparent) by a MOTION TO STRIKE THE NAMES OF THE PARTIES IMPLEADED. Objections to misjoinder cannot be raised for the first time on appeal. Note: If there is misjoinder, a separate action should be brought against the party misjoined. Sec. 12. Class suit . When the subject matter of the controversy is one of common or general interest

- to many persons so numerous that it is impracticable to join all as parties,

a number of them which the court finds to be sufficiently numerous and representative as to fully protect the interests of all concerned may sue or defend for the benefit of all . Any party in interest shall have the right to intervene to protect his individual interest. Class Suit , defined: An action where one or more may sue for the benefit of all, provided all of the requisites for said actions are complied with. Borlasa v. Palistico: An action does not become a class suit merely because it is designated as such in the pleadings. Whether the suit is or is not a class suit depends upon the attending facts. (47 Phil 345) Requisites of a Class Suit 1. Subject matter of the controversy is one of common or

general interest to many persons; 2. The parties affected are so numerous that it is

impracticable to join them all as parties; 3. Parties bringing the class suit are sufficiently

numerous and representative of the class and can fully protect the interests of all concerned; and

4. The complaint must specifically state that the same is being brought in behalf of others with whom the parties share a common interest.



Note: Any party in interest shall have the right to intervene to protect his individual interest. (This is an instance when a person may intervene as a matter of right) Mathay vs. Consolidated Ban & Trust Co: A class suit does not require commonality of interest in the questions involved in the suit. What is required is a common or general interest in the subject matter of the l it igation. The subject matter of the action means the physical, the things real or personal, the money, lands, chattels, and the like, in relation to the suit which is prosecuted and not the direct or wrong committed by the defendant. It is not also a common question of law that sustains a class suit but a common interest in the subject matter of the controversy. (58 SCRA 559).

Class Suit Permissive Joinder of Parties

There is one single action pertaining to numerous persons

(There is a Community of interests)

There are multiple causes of action separately belonging to several

persons There is no class suit when interests are conflicting. Illustration: • There is no class suit filed by 400 residents initiated to

recover damages sustained due to their exposure to toxic waste from a plant located in the town. Each of the plaintiffs has a separate and distinct injury not shared by other members of the class. Each has to prove his own injury. (Bar 94)

• There is no class suit in an action for damages filed by the relatives of the fatalities in a plane crash. There is no common interest in the injuries of all the passengers. Each distinct interest must be proven individually (Bar 91)

• A non-‐stock corporation may not institute in behalf of its

individual members for the recovery of property owned by its members. A corporation has a personality separate and distinct from its members. (Bar 78)

• A class suit would not lie in an action for recovery where

each of the parties has an interest only in the particular portion of the land he is occupying, such that different parties had determinable, though undivided interest in the property. (Mathay v. Consolidated Bank, 58 SCRA 559)

• There is no class suit to recover damages for personal

reputation. Each has a separate and distinct reputation in the community not shared by others. (Newsweek v. IAC, 142 SCRA 171)

Note: A taxpayer’s suit or a stockholder’s derivative suit is in the nature of a class suit, although subject to the other requisites of the corresponding governing law especially on the issue of locus standi. (Regalado)

Note: There is a class suit in an action filed by minors represented by their parents, in behalf of themselves and others who are equally concerned about the preservation of the country’s resources, their generation as well as generation yet unborn. (Oposa v. Factoran. 224 SCRA 792) Sec. 13. Alternative defendants. Where the plaintiff is uncertain against who of several persons he is entitled to relief:

- he may join any or all of them as defendants in the alternative, although a right to relief against one may be inconsistent with a right of relief against the other.

- Where the plaintiff cannot definitely identify who among

two or more persons should be impleaded as a defendant, he may join all of them as defendants in the alternative.

- Just as the rule allows a suit against defendants in the alternative, the rule also allows alternative causes of action (Sec. 2, Rule 8) and alternative defenses (Sec. 5[b], Rule 6).

E.g. Tonio, a pedestrian was injured in the collision of two vehicles. He suffered injuries but does not know with certainty which vehicle caused the mishap. He should sue both in the alternative. Rizal Surety v. Insurance Company v. Manila: Plaintiff may sue the shipping company and the arrastre operator alternatively for the recovery of damages to goods shipped through a maritime vessel. (70 SCRA 187) Sec. 14. Unknown identity or name of defendant. Whenever the identity or name of a defendant is unknown,:

- he may be sued as the unknown owner, heir, devisee OR by such other designation as the case may require;

when his identity or true name is discovered, the pleading must be amended accordingly. Requisites: 1. There is a defendant; 2. His identity or name is unknown; 3. Fictitious name may be used because of ignorance of

defendant’s true name and said ignorance is alleged in the complaint;

4. Identifying description may be used; sued as unknown owner, heir, devisee, or other designation;

5. Amendment to the pleading when identity of true name is discovered; and

6. Defendant is the defendant being sued, not a mere additional defendant.



Sec. 15. Entity without juridical personality as defendant. When two or more persons not organized as an entity with juridical personality enter into a transaction:

- they may be sued under the name by which they are generally or commonly known.

In the answer of such defendant, the names and addresses of the persons composing said entity -‐ must all be revealed. Requisites: 1. There are two or more persons not organized as a

juridical entity; 2. They enter into a transaction; and 3. A wrong or delict is committed against a third person in

the course of such transaction. Notes: - Persons associated in an entity without juridical

personality may be sued under the name by which they are generally or commonly known, but they cannot sue under such name.

- The service of summons may be effected upon all the defendants by serving upon any of them, OR upon the person in charge of the office or place of business maintained under such name (Sec. 8, Rule 14).

GR: All members of an association of natural persons not organized as a juridical entity are to be made parties to a suit. EXC: 1. When the parties are so numerous that it is impracticable

to bring them all before the court; 2. When two or more persons associated in any business,

transact such business under a common name; or 3. In cases of co-‐ownership. INSTANCES WHERE SUBSTITUTION OF PARTIES IS PROPER:

i. Death of a party; (Sec 16, 17) ii. Incompetency or incapacity of a party; (Sec 18) iii. Transfer of interest; (Sec 19) or iv. Action on contractual money claims. (Sec 20)

Sec. 16. Death of party; duty of counsel . Whenever a party to a pending action: dies AND the claim is not thereby extinguished, It shall be the duty of his counsel to:

1. Inform the court w/in 30 days after such death of the fact thereof, and

2. To give the name and address of his legal representative or representatives.

Failure of counsel to comply with this duty shall be a ground for disciplinary action. • The heirs of the deceased: may be allowed to be

substituted for the deceased, w/o requiring the appointment of an executor or administrator and

• The court may appoint a guardian ad litem for the minor heirs.

The court shall order said legal representative or representatives -‐ to appear and be substituted within a period of 30 days from notice. IF: 1. No legal representative is named by the counsel for the

deceased party, or 2. If the one so named shall fail to appear w/in the specified

period, the court may order: - the opposing party, w/in a specified time, to procure the

appointment of an executor or administrator for the estate of the deceased and

- the latter shall immediately appear for and on behalf of the deceased.

The court charges in procuring such appointment, IF defrayed by the opposing party, may be recovered as costs This provision applies where the claim is NOT thereby extinguished as in cases involving property and property rights such as: 1. Recovery of real and personal property against the

estate; 2. Enforcement of liens on such properties; and 3. Recovery for an injury to person or property by reason of

tort or delict committed by the deceased. Effect of Death of a Party on the Atty.-‐Client Relationship - The death of the client extinguishes the attorney-‐client

relationship and divests a counsel of his authority to represent the client. Accordingly, a dead client has no personality and cannot be represented by an attorney. (Laviña vs. CA, 171 SCRA 691)

- Neither does he become the counsel of the heirs of the deceased unless his services are engaged by said heirs. (Lawas vs. CA, 146 SCRA 173)

Upon the receipt of the notice of death, the court shall determine w/n the claim is extinguished by such death. If the claim survives: - The court shall order the legal representative/s of the

deceased to appear and be substituted w/in 30 days from notice.

- Where the deceased has no heirs, the court shall require the appointment of an executor or administrator.

- In case of minor heirs, the court may appoint a guardian ad litem for them.

- The substitute defendant need not be summoned. The order of substitution shall be served upon the parties substituted for the court to acquire jurisdiction over the substitute party.

- Service of summons is not required to effect a substitution. It is NOT the amendment of the pleading but the order of the substitution and its service that effects the substitution.

- Formal substitution by the heirs is NOT necessary when they themselves voluntarily appear and participate in the case. (Vda de Salazar v. CA, 250 SCRA 305)



Rule on Compliance with Rules - GR: Non-‐compliance with the rules on substitution of a

deceased party renders the proceedings of the trial court infirm because the court acquired no jurisdiction over the person of the legal representative or heirs of the deceased. (Brioso v. Rili-‐Mariano, 396 SCR 549)

- EXC: In case of ejectment, the non-‐substitution because of the failure of the counsel to inform the court of the death of his client does not deprive the court with jurisdiction. A judgment in an ejectment case may also be enforced against the members of the family, relatives, or privies who derived their right of possession from the deceased defendant. (Florendo v. Coloma, 129 SCRA 304)

Examples of Actions which Survive the Death of a Party 1. Actions arising from delicts (Arguas v. Llamas, 5 SCRA

959) 2. Actions based on the tortious conduct of the defendant

survive his death (Melgar v. Buenviaje, 179 SCRA 196) 3. Actions to recover real and personal property, actions to

enforce a lien thereon. (Liquidators v. Kalaw, 20 SCRA 987)

4. Action for quieting title. (Sligumba v. Calanog Dec 08) 5. Ejectment Cases. (Florendo v. Coloma, 129 SCRA 304) 6. Actions for recovery of money, arising from a contract

express or implied. (Sec 20 Rule 3) I f the action does not survive (like purely personal actions for support, annulment of marriage and legal reparation), the court shall simply dismiss the case. Substitution will not be required. (Riano) Sec. 17. Death or separation of a party who is a public officer. When a public officer:

- is a party in an action in his official capacity AND - during its pendency dies, resigns, or otherwise

ceases to hold office the action may be continued and maintained by or against his successor IF,:

- w/in 30 days after the successor takes office or such time as may be granted by the court,

- it is satisfactorily shown to the court by any party that there is a substantial need for continuing or maintaining it AND

- that the successor adopts or continues or threatens to adopt or continue the action of his predecessor.

BEFORE a substitution is made, the party or officer to be affected, UNLESS expressly assenting thereto,:

- shall be given reasonable notice of the application therefore AND

- accorded an opportunity to be heard.

Requisites: 1. Public officer is a party to an action in his official

capacity; 2. During the pendency of the action, he either dies,

resigns, or otherwise ceases to hold office; 3. It is satisfactorily shown to the court by any party, within

30 days after the successor takes office, the there is a substantial need for continuing or maintaining the action;

4. That the successor adopts or continues or threatens to adopt or continue the action of his predecessor; and

5. The party or officer affected has been given reasonable notice of the application therefore and accorded an opportunity to be heard.

Sec. 18. Incompetency or incapacity. If a party becomes incompetent or incapacitated, the court: - upon motion with notice, - may allow the action to be continued by or against the

incompetent or incapacitated person assisted by his legal guardian or guardian ad litem.

Sec. 19. Transfer of interest . In case of any transfer of interest: - the action may be continued by or against the original

party - UNLESS the court upon motion directs the person to

whom the interest is transferred to be substituted in the action OR joined with the original party.

Note: The transfer of interest refers to a transfer that occurs during the pendency of the action. The transferor would no longer be the real party in interest if the transfer is made before the commencement of the suit. - GR: The rule does not consider the transferee an

indispensable party. Hence, the action may proceed without the need to implead him. Substitution of parties in this section is NOT mandatory, it being permissible to continue the action by or against the original party in case of transfer of interest pendente lite.

- EXC: Unless the substitution by or the joinder of the transferee is required by the court, failure to do so does not warrant the dismissal of the case. A transferee pendente lite is a proper, and not an indispensable party.

A Transferee Pendente Lite: 1. Stands in exactly the same position as its predecessor-‐in-‐

interest, the original defendant, and 2. Bound by the proceedings had in the case before the

property was transferred to it, even if not formally included as a defendant (Herrera)

Note: The case will be dismissed if the interest of plaintiff is transferred to defendant UNLESS there are several plaintiffs, in which case, the remaining plaintiffs can be processed with their own cause of action.



Sec. 20. Action on contractual money claims. When:

- the action is for recovery of money arising from contract, express or implied, and

- the defendant dies before entry of final judgment in the court in which the action was pending at the time of such death,

it shall not be dismissed BUT shall instead be allowed to continue until entry of final judgment. A favorable judgment obtained by the plaintiff shall be enforced in the manner especially provided in these Rules for prosecuting claims against the estate of a deceased person. Requisites: 1. The action must primarily be for recovery of money,

debt, or interest thereon; 2. The claim subject of the action arose from a contract ,

express or implied, entered into by the decedent in his lifetime or the liability for which had been assumed by or is imputable to him; and

3. Defendant dies before the entry of f inal judgment in the court in which the action was pending.

Note: The death of the defendant will not result in the dismissal of the action. According to Tranquil c/o Glenn: The action continues against the estate of the deceased until the entry of final judgment. It is wrong to say that there is substitution because the rules do not mandate it. Rules 86 and 87 further support this position. Also, Union Bank vs. Santibañez (452 SCRA 228 [2005]), held that the filing of a money claim against the decedent’s estate in the probate court is mandatory. According to Beda: The deceased shall be substituted by the heirs in accordance with Sec 16 of Rule 3. However, execution shall not issue in favor of the winning party. It should be filed as a claim against the estate of the decedent without need of proving the claim. Sec. 21. Indigent party. A party may be authorized: - to litigate his action, claim or defend as an indigent - i f the court upon an ex parte application and hearing, is

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

Such authority shall include an exemption from payment of:

1. Docket and other lawful fees, and of 2. Transcripts of stenographic notes which the court

may order to be furnished him. The amount of the docket and other lawful fees which the indigent was exempted from paying:

- shall be a l ien on any judgment rendered in the case favorable to the indigent, UNLESS the court otherwise provides.

Any adverse party may contest the grant of such authority at any time BEFORE judgment is rendered by the trial court. IF the court should determine after hearing that the party declared as an indigent is in fact a person with sufficient income or property:

- the proper docket and other lawful fees shall be assessed and collected by the clerk of court.

If payment is not made within the time fixed by the court:

- execution shall issue for the payment thereof, without prejudice to such other sanctions as the court may impose.

Indigent – One who has no money, property or income sufficient and available for his support such as food, shelter, and basic necessities. He need not be a pauper to entitle him to litigate in forma pauperis. Note: While the authority to litigate as an indigent party may be granted upon an ex parte application and hearing, it may be contested by the adverse party at any time before judgment is rendered. Algura v. Local Government of Naga: (G.R. No. 150135, 30 October 2006) Resolves the conflict between (Rule 3, Sec. 21) and (Sec. 19, Rule. 141) both referring to indigent litigants exempt from legal fees. 1. If the indigent fits within the parameters set by Rule 141,

Sec. 19, then the court must declare him to be an indigent. Rule 141 requirements: • Gross income and immediate family income does not

exceed twice of monthly minimum wage • And do not own real property whose FMV in current

tax declaration is more than P 300K 2. If he doesn’t, he falls under Rule 3, Sec. 21 and must apply

for indigent status. (“Indigency test”) Here, the court exercises discretion as to whether you are an indigent or not. So a person owning real property above 300K may still be declared an indigent.

Note: Only the docket and other fees shall form part of the lien on the judgment. Transcripts of stenographic notes are free and are not part of the lien in the judgment. Sec. 22. Notice to the Solicitor General . In any action involving the validity of any treaty, law, ordinance, executive order, presidential decree, rules or regulations, the court, in its discretion,: - may require the appearance of the Solicitor

General who may be heard in person or through a representative duly designated by him.

Rules: - Only the Solicitor General can bring and defend actions

on behalf of the Republic of the RP and the actions filed in the name of the Republic, if not initiated by the Sol Gen will be summarily dismissed.



- Only the Solicitor General may bring or defend actions on behalf of the People of the RP once such actions are brought before the CA or SC. (Sec 35(1) Chapter 12, Title 3 Book 3, Admin Code, 87)

- All criminal actions shall be commenced by complaint or by information and shall be prosecuted under the discretion and control of the public prosecutor. (Sec 5 rule 110 Rules on Criminal Procedure)

RULE 4: VENUE OF ACTIONS

VENUE, defined: The place or geographical location in which an action or proceeding should be brought. Venue is NOT a Matter of Substantive Law - Venue is procedural and not substantive. In civil cases, it

relates only to the place of the suit and not to the jurisdiction of the court. (Manila Railroad v. Atty. Gen, 20 Phil 523)

- Venus is jurisdictional ONLY in criminal cases. - In civil case, being merely procedural in nature, may even

be waived by the parties. Dismissal of Action Based on Improper Venue - GR: The court may not motu propio dismiss a

complaint on the ground of improper venue. The court may only do so in case of lack of jurisdiction over the subject matter, litis pendencia, res judicata and prescription but NOT for improper venue. (URC v. Lim, 535 SCRA 95)

- Ratio: Unless there is a motion to dismiss based on improper venue, venue cannot be said to be improperly laid, because although technically wrong, may be acceptable to the parties for whose convenience the rules on venue have been devised.

- EXC: Courts may motu proprio dismiss the case based on improper venue involving actions covered by the Revised Rules on Summary Procedure (Sec 4).

How Venue is Determined: - 1st determine whether the action is personal or

real o If personal -‐ venue is transitory (Sec 2 Rule 4) o If real – venue is local (Where the real property

is situated. (Sec 1 Rule 4) - If defendant is a non-‐ resident not found in the RP

and the action affects the personal status of the plaintiff or any of the defendant’s property is in the RP.

o Venue is the residence of the plaintiff or where the property is situated (Sec 3 Rule 4)

Stipulations on Venue: The parties may agree on a specific venue, which could be in a place where neither of them resides. (URC v. Lim, 535 SCRA 95) - Requisites for parties to stipulate on venue:

1. A valid written agreement; 2. Executed by the parties before the filing of the

action; and 3. Exclusive as to the nature of the venue.

Note: If the stipulation is restrictive, the suit may be filed ONLY in the place agreed upon by the parties.

Spouses Lantin v. Lantion: The mere stipulation on venue is not enough to preclude parties from bringing a case in other venues. The parties must show that such stipulation is EXCLUSIVE. In the absence of qualifying or restrictive words, the stipulation should be deemed as merely an agreement on the additional forum, not as limiting venue to the specified place. (499 SCRA718) Examples of qualifying or restrictive words:

1. ‘’Only’’ 2. ‘’Solely’’ 3. ‘’Exclusively in this court’’ 4. “In no other court, save as __”

Examples of merely permissive words 1. “Shall be held” 2. “Venue is.. ”

Polytrade Corp. vs. Blanco: “Parties agree to sue and be sued in the courts of Manila” was held not to be exclusive. In the absence of qualifying or restrictive words, venue stipulation is merely permissive meaning that the stipulated venue is in addition to the venue provided for in the rules. (30 SCRA 187) Phil Banking Corp v. Tensuan: The venue stipulation must clearly indicate, through qualifying and restrictive words, that the parties deliberately intended to exclude the operation of the ordinary permissive rules on venue, and that they intended contractually to designate a specific venue to the exclusion of any other court. (1993) Unimasters Conglomeration v CA : Any doubt or uncertainty as to the parties’ intentions must be resolved against giving their agreement a restrictive or mandatory aspect. (267 SCRA 759) Sweet Lines v. Teves: When the stipulation as to venue in a passenger ticket of a vessel would be contrary to public policy of making courts accessible to all who may have need of their service, the stipulation is void and unenforceable. (May, 72) Denial of Motion to Dismiss on Improper Venue – NO Appeal - An order denying a motion to dismiss based on improper

venue is merely interlocutory. It is not final. Only final orders of judgments may be appealed from

- Remedy: (1) File an answer and interpose the same as an affirmative defense; (2) Appeal from the adverse judgment after trial; (3) If tainted with grave abuse of discretion – file a petition for certiorari and prohibition.

Improper Venue is NOT Jurisdictional in Civil Cases - Venue has nothing to do with jurisdiction in civil cases - Still, the court may dismiss the case on the ground of

improper venue but not lack of jurisdiction.



Venue Jurisdiction Place where the action is

instituted Power of the court to hear and

decide a case May be waived Jurisdiction over the subject

matter over the nature of the action is conferred by law and

cannot be waived Procedural Substantive

May be changed by the written agreement of the

parties

Cannot be the subject of the agreement of the parties

Establishes a relation between plaintiff and

defendant; petitioner and respondent

Establishes a relation between the court and the subject

matter

NOT a ground for motu proprio dismissal

Ground for outright dismissal

Sec 1. Venue of real actions. 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 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.

Note: If property is located at the boundaries of two places: File case in either place at the option of the plaintiff. Note: If case involves two properties located in two different places: 1. If the properties are the object of the same transaction,

file it in any of the two places; or 2. If they are the subjects of two distinct transactions,

separate actions should be filed in each place unless properly joined.

Sec. 2. Venue of personal actions. All other actions may be commenced and tried:

- where the plaintiff or any of the principal plaintiffs resides, OR

- where the defendant or any of the principal defendants resides, OR

- in the case of a non-‐resident defendant where he may be found

All at the election of the plaintiff. Residence: Should be viewed or understood in its popular sense, meaning the personal, actual, or physical habitation of a person, actual residence or place of abode. (Raymond v. Court of Appeals 166 SCRA 50 (1988))

Means of Waiving Venue 1. Failure to object via motion to dismiss; 2. Affirmative relief sought in the court where the case

is filed; 3. Affirmative defense in an answer. 4. Voluntary submission to the court where the case is

filed; or 5. Laches.

Thus, improper venue MAY be waived through any of the means enumerated above because venue does NOT involve a question of jurisdiction (Legaspi v. Republic G.R. No. 160653 July 23, 2008) Sec. 3 . Venue of actions against non-‐residents. IF: 1. Any of the defendants does not reside and is not found in

the RP, and 2. The action affects: the personal status of the plaintiff

OR any property of said defendant located in the RP, the action may be commenced and tried in: - the court of the place where the plaintiff resides, or - where the property or any portion thereof is situated or

found. Non-‐Resident Found in the RP

- Personal actions – Where the plaintiff resides; - Real actions – Where the property is located.

Non-‐Resident Not Found in the RP -‐ An action may be filed only when the case involves:

- Personal status of plaintiff – Where plaintiff resides; - Any property of said defendant located in the

Philippines – Where the property or any portion thereof is situated or found.

Note: The Supreme Court has the power to order a change of venue to prevent miscarriage of justice. Dacoycoy v. IAC: The Court may NOT motu proprio dismiss a complaint on the ground of improper venue. An EXCEPTION is provided in Section 4 of the Rule on Summary Procedure. (195 SCRA 641 (1991)) Sec. 4. When Rule not applicable. This Rule shall not apply: a. In those cases where a specific rule or law provides

otherwise; OR b. Where the parties have validly agreed in writing before

the filing of the action on the exclusive venue thereof.



RULE 5: UNIFORM PROCEDURE IN TRIAL COURTS

Sec 1. Uniform procedure. The procedure in the MTCs shall be the same as in the RTCs, except:

a. Where a particular provision expressly or impliedly applies only to either of said courts, OR

b. In civil cases governed by the Rule on Summary Procedure.

Sec. 2 . Meaning of terms. The term "Municipal Trial Courts" as used in these Rules shall include Metropolitan Trial Courts, Municipal Trial Courts in Cities, Municipal Trial Courts, and Municipal Circuit Trial Courts.

PROCEDURE IN REGIONAL TRIAL COURTS: Rules 6 – 39

RULE 6: KINDS OF PLEADINGS

Sec 1. Pleadings defined. -‐ The written statements of the respective claims and defenses of the parties submitted to the court for appropriate judgment. Purpose and Nature of Pleadings 1. To apprise the Court of the rival claims in a judicial

controversy submitted for trial and decision; 2. To indicate fairly the nature of the claims and defenses of

both parties and 3. To define the issues and form the foundation of proof to

be submitted during trial as well as advice a party to what his adversary would rely on as a cause of action or as defense. (Lianga Lumber v. Lianga Timber, Mar 77)

4. To invoke the jurisdiction of the court. Note: There is no such thing as an oral pleading. Note: A motion is NOT a pleading. However, there are motions that actually seek judgment like a motion for judgment on pleadings (Rule 34) and motion for summary judgment (Rule 35).

Pleading Motion The purpose is to submit a

claim or defense for appropriate judgment

The purpose is to apply for an order not included in the

judgment

May be initiatory Cannot be initiatory as they are always made in a case already filed in court

Always filed before judgment

May be filed even after judgment

Only 9 kinds of pleading are allowed by the rules

Many kinds of motion are allowed

Must be written

May be oral when made in an open court or in the course of

a hearing or trial Construction of Pleadings - Pleadings shall be liberally construed to do substantial

justice. (Concrete Aggregate Corp v. CA, 266 SCRA 88) - A fair and reasonable construction in accordance with the

natural intendment of the language used and the subject matter involved. The intention of the pleader is the controlling factor.

- However, the party is strictly bound by the allegations, statements or admissions made in his pleadings and cannot be permitted to take a contradictory position. (Santiago v. Delos Santos, 61 SCRA 146)

- In case of ambiguities in the pleadings, the same must be construed strongly against the pleader.

System of Pleadings in the RP: Based on codified rules or written procedure rather than common law procedure.



Sec. 2. Pleadings allowed. The claims of a party are asserted in a:

- complaint, counterclaim, cross-‐claim, third (fourth, etc.) party complaint, or complaint-‐in-‐intervention.

The defenses of a party are alleged in: - the answer to the pleading asserting a claim against

him. An answer may be responded to by a reply. Pleadings allowed

1. Complaint; 2. Counterclaim; 3. Cross-‐claim; 4. Third-‐party Complaint; 5. Complaint-‐in-‐intervention; 6. Answer; 7. Reply; 8. Counter-‐counterclaim; and 9. Counter-‐Cross claim.

Rues on Summary Procedure (Only Pleadings Allowed [Sec 3A]) 1. Complaint 2. Compulsory Counterclaim 3. Cross claim pleaded in the answer 4. Answers Sec. 3 . Complaint. – - The complaint is the pleading alleging the plaintiff's

cause or causes of action. - The names and residences of the plaintiff and defendant

must be stated in the complaint. Complaint – The pleading alleging the plaintiff’s cause or causes of action. It should contain a concise statement of the ultimate facts constituting the plaintiff’s cause of action, not evidentiary facts or legal conclusions. Ultimate Facts – Essential facts constituting the plaintiff’s cause of action. A fact is essential if it cannot be stricken out without leaving the statement of the cause of action insufficient. Test of Sufficiency of the Facts Alleged in the Complaint - Determine whether upon the averment of facts, a valid

judgment may be properly rendered. - If upon admission or proof of the facts being alleged, a

judgment may be properly given. What are NOT Ultimate Facts:

1. Evidentiary or immaterial facts; 2. Legal conclusions, conclusions or inferences of facts

not stated, or incorrect inferences or conclusions from facts stated;

3. The details of probative matter or particulars of evidence, statements of law, inferences and arguments.

Note: An allegation that a contract is valid or void is a mere conclusion of law.

Sec. 4 . Answer. An answer -‐ is a pleading in which a defending party sets forth his defenses. Answer, defined: The pleading where the defendant sets forth his affirmative or negative defenses. May or may not contain a counterclaim. It may likewise be the response to a counterclaim on a cross claim. Sec. 5 . Defenses. Defenses may either be negative or affirmative. a. A 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.

b. An affirmative defense is: - an allegation of a new matter which, while

hypothetically admitting the material allegations in the pleading of the claimant, would nevertheless prevent or bar recovery by him.

The affirmative defenses include: fraud, statute of limitations, release, payment, illegality, statute of frauds, estoppel, former recovery, discharge in bankruptcy, and any other matter by way of confession and avoidance. Kinds of Defenses That May be Set Forth in the Answer: a. Affirmative Defenses – One which is not a denial of

an essential ingredient in the plaintiff’s cause of action, but one which, if established, will be a good defense. (i.e. an avoidance of the claim.)

Note: Affirmative defenses are not automatically characterized as such. Before an allegation qualifies as an affirmative defense, it must be of such nature as to bar the plaintiff from claiming on his cause of action. (Pesane Animas Mongao v. Pryce Properties, Aug 05) b. Negative Defenses – Specific denial of the material

fact or facts alleged in the pleading of the claimant essential to his cause of action.

Note: Kinds of specific denials are described in Sec 10 Rule 8. If the denial is not one of those described under the said provision, the denial is deemed to be general. A general denial is an admission. (See notes on Rule 8 Sect 10 and 11 on page 42)



Insufficient Denial or Denial Amounting to Admissions: 1. General denial; and 2. Denial in the form of a negative pregnant.

Negative Pregnant, defined: A denial in such form as to imply or express an admission of the substantial fact, which apparently is controverted. It is a form of denial, which really admits the important facts contained in the allegations to which it relates. While it is a denial in form, its substance actually has the effect of an admission because of a too literal denial of the allegations sought to be denied. This arises when the pleader the allegations in a negative form. Sec. 6 . Counterclaim. -‐ A counterclaim is any claim, which a defending party may have against an opposing party. Counterclaim: Partakes of a complaint by the defendant against the plaintiff. It is permitted by the rules as a way of preventing multiplicity of suits by allowing in one action the determination of the entire controversies between parties. Nature of a Counterclaim A counterclaim is in the nature of a cross-‐complaint. Although it may be alleged in the answer, it is not part of the answer because it is a separate pleading. The inclusion is merely a matter of form. Note: A motion to dismiss with a counterclaim is not an accepted way of pleading a counterclaim, it is sanctioned neither by the rules nor by common usage. Counterclaims may either be:

1. Compulsory 2. Permissive

Sec. 7 . Compulsory counterclaim. A compulsory counterclaim is one which,:

- being cognizable by the regular courts of justice, - arises out of or is connected with the transaction or

occurrence constituting the subject matter of the opposing party's claim and

- does not require for its adjudication the presence of third parties of whom the court cannot acquire jurisdiction.

- GR: Such a counterclaim must be within the jurisdiction

of the court BOTH as to the amount and the nature thereof,

- EXC: That in an original action before the RTC, the counterclaim may be considered compulsory regardless of the amount.

I . Compulsory Counterclaim Requisites of a Compulsory Counter Claim 1. It must arise out of, or be necessarily connected with,

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

2. It does not require for its adjudication the presence of third parties of whom the court cannot acquire jurisdiction; and

3. It must be within the jurisdiction of the court both as to the nature and amount.

4. It must be cognizable by the regular courts of justice. Req 1: It must arise out of or is necessarily connected with the subject matter of the complaint o “The Compelling Test of Compulsoriness” is the logical

relation between the claim alleged in the complaint and that in the counterclaim.(Bayer Phil v. CA, 340 SCRA 437)

o E.g. Aya sues Lea for recovery of a tract of land. Lea in turn seeks to be reimbursed the value of the improvements in the same land.

o The most common compulsory counterclaim would be to claim in the same suit one’s expense in the suit for being forced to litigate in the face of an unfounded complaint.

Req 3: It must be within the jurisdiction of the court both as to the nature and amount. o In an original action before the RTC, the counterclaim

may be considered compulsory regardless of the amount (Sec 7, Rule 6). Hence, a counterclaim of 350K filed in the RTC is still compulsory even if the court would have no jurisdiction over the amount claimed if it is filed as an original complaint.

o However, the nature of the action is always material such that unlawful detainer cannot be set up in the RTC.

o A counterclaim before the MTC must be within the jurisdiction of said court, BOTH as to the amount and nature thereof.

o If a counterclaim is filed in the MTC in excess of its jurisdictional amount, the excess is considered waived. (Agustin v. Bacalan 135 SCRA 340 (1985))

o The remedy where a counterclaim is beyond the jurisdiction of the MTC is to set off the claims and file a separate action to collect the balance. (Calo v. Ajax International 22 SCRA 996 (1968))

o Despite the lack of jurisdiction of the court to adjudicate on the counterclaim, the same may nevertheless be pleaded in the same action, not to obtain affirmative relief because the court, for want of jurisdiction cannot do so. The purpose would merely to weaken the plaintiff’s claim (Maceda v. CA, 176 SCRA 440)

o A counterclaim for illegal dismissal cannot be entertained by the regular courts for want of jurisdiction. The subject matter is within the jurisdiction of the Labor Arbiters.



Incompatibility of Motion to Dismiss and Compulsory Counterclaim - The two are incompatible remedies. A compulsory

counterclaim is auxiliary to the proceeding in the original suit and derives its jurisdictional support therefrom. Hence, a counterclaim presupposes the existence of a claim.

- The defendant must choose only one remedy, If he decides to file a motion to dismiss, he will lose his compulsory counterclaim. But if he opts to set up his compulsory counterclaim, he may STILL plead his ground for dismissal as an affirmative defense in his answer. (Financial Bldg v. Forbes Park, Aug 2000)

GR: A compulsory counterclaim not set up in the answer is deemed barred. EXC: 1. If it is a counterclaim which either matured or was

acquired by party after serving his answer. In this case, it may be pleaded by filing a supplemental answer or pleading before judgment (Sec. 9, Rule 11).

2. When a pleader fails to set up a counterclaim through oversight, inadvertence excusable negligence, or when justice requires, he may, by leave of court, set-‐up the counterclaim by amendment of the pleadings before judgment. (Sec 10, Rule 11)

I I . Permissive Counterclaim - A counterclaim is permissive if any of the elements of a

compulsory counterclaim is absent. - Most common feature of a PC: Absence of a logical

connection with the subject matter of the complaint – those not connected with the plaintiff’s cause of action

E.g. A counterclaim for damages based on culpa aquiliana in a complaint for collection of a loan is permissive. A counterclaim for damages based on quasi delict in an action for unlawful detainer is also permissive. Test Whether the Claim is Compulsory or Not 1. Are the issues of fact or law largely the same? 2. Would res judicata bar a subsequent suit on defendant’s

claim, absent the compulsory counterclaim rule? 3. Will substantially the same evidence support or refute

the claim and counterclaim? 4. Is there a logical relation between the two claims? (Sandejas v. Ignacio, Dec 07)

Compulsory Counterclaim

Permissive Counterclaim

One which arises out of or is necessarily connected with the transaction or occurrence that is the subject matter of the opposing party’s claim

It does not arise out of nor is it necessarily connected with the subject matter of the opposing party’s claim

It does not require for its adjudication the presence of third parties of whom the court cannot acquire

jurisdiction

It may require for its adjudication the presence of third parties over whom the

court cannot acquire jurisdiction

Compulsory Counterclaim

Permissive Counterclaim

It is barred if not set up in the action

It is NOT barred even if not set up in the action

Not an initiatory pleading An initiatory pleading No requirement of

submitting certificates necessary for initiatory

pleadings

Should be accompanied by a certification against forum shopping and if required a certificate of the Lupong

Tagapamayapa No need to pay docket fees (However, see notes on docket fees on page 14)

Docket fees must be paid or else the case will be

dismissed Need not be answered; no

default Must be answered,

otherwise, the defendant can be declared in default

Gojo v. Goyola: A compulsory counterclaim that merely reiterates special defenses are deemed controverted even without a reply, or raises issues which are deemed automatically joined by the allegations of the complaint, need not be answered (35 SCRA 557 (1970)) Period to answer a Counterclaim: Must be made within 10 days from service. This rule has more relevance to a permissive counterclaim. Effect of Dismissal of Complaint: Instances Where the Defendant has the Right to Prosecute his Counterclaim in the Same or Separate Action Notwithstanding the Dismissal of the Original Complaint: 1. Sec 6 Rule 16: When the defendant

does not file a motion to dismiss but filed an answer utilizing grounds of a motion to dismiss as affirmative defenses

Note: If the complaint is dismissed, the counterclaim, compulsory or permissive is not dismissed. Dismissal is limited to the complaint.

2 . Sec 2 Rule 17: Plaintiff himself files a motion dismiss his complaint after the defendant has pleaded his answer with counterclaim

3. Sec 3 Rule 17: Complaint is dismissed through the plaintiff’s fault.

Sec. 8 . Cross-‐claim. A cross-‐claim is:

- Any claim by one party against a co-‐party - Arising out of the transaction or occurrence that is

the subject matter either: of the original action OR of a counterclaim therein.

Such cross-‐claim may include a claim: - That the party against whom it is asserted is or may

be liable to the cross-‐claimant for all or part of a claim asserted in the action against the cross-‐claimant.

Cross Claim: Asserted by a party against a co-‐ party



Requirements for Cross Claim 1. A claim by one party against a co-‐party; 2. It must arise out of the subject matter of the complaint or

of the counterclaim; and 3. The cross-‐claimant is prejudiced by the claim against him

by the opposing party. Purpose: To settle in a single proceeding all the claims of the different parties in the case against each other in order to avoid multiplicity of suits. (Republic v. Paredes, May, 60) GR: If a cross claim is not set up in the action, it is barred EXC: 1. When, it is outside the jurisdiction of the court; 2. If the court cannot acquire jurisdiction over third parties

whose presence is necessary for the adjudication of said cross-‐claim. In which case, the cross-‐claim is considered PERMISSIVE.

3. Cross-‐claims that mature or acquired after service of the answer, may by leave of court, be set up by supplemental pleadings. (Sec 9 Rule 11)

4. If through oversight, inadvertence, or excusable negligence it is not asserted, it may still be set with leave of court, by amendment of the pleadings.(Sec 10 Rule 11)

Note: The dismissal of the complaint carries with it the dismissal of a cross-‐claim, which is purely defensive, but not a cross-‐claim seeking an affirmative relief. Cross Claim Counterclaim 3rd Party

Complaint Against a co-‐party

Against an opposing party

Against a person not a party to the

action Must arise out

of the transaction that is the

subject matter of the original action or of a counterclaim therein

May arise out of or be necessarily connected with the transaction or that is the subject matter of the opposing party’s claim in which case, it is called a compulsory

counterclaim, or it may not, in which case

it is called a permissive counterclaim

Must be in respect of the opponent’s claim (Plaintiff)

No need for leave of court

No need for leave of court

Leave of court is required

Period to Answer: A cross claim must be answered 10 days from Service (Sec 4 Rule 11) Sec. 9 . Counter-‐counterclaims and counter-‐cross-‐claims. - A counterclaim may be asserted against an original

counter-‐claimant. - A cross-‐claim may also be filed against an original

cross-‐claimant.

Sec. 10. Reply. A reply is 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 f i le such reply: all the new matters alleged in the answer are deemed controverted. IF the plaintiff wishes to interpose any claims arising out of the new matters so alleged:

- such claims shall be set forth in an amended or supplemental complaint.

Reply, defined: The responsive pleading of the plaintiff to the defendant’s answer and not to a counterclaim or cross-‐claim. The proper response to the latter being an answer to a counterclaim or cross-‐claim. Effect of Failure to Reply - GR: Filing a reply is merely optional. It is not mandatory

and will not have an adverse effect on the defendant. New facts that were alleged in the answer are deemed controverted should a party fail to reply thereto. It will NOT amount to an admission.

- EXC: Reply is required in the following instances: • Where the answer is based on an actionable

document (Sec. 8, Rule 8) • To set up an affirmative defense on the counterclaim

(Rosario v. Martinez, Sept, 52) Remember: Failure to deny material allegations in a complaint shall mean an implied admission of the allegations. HOWEVER, allegations of new matters or material allegations of the answer in a reply need NOT be denied because they are deemed denied by the rules. Sec. 11. Third, (fourth, etc .) party complaint. A third (fourth, etc.) party complaint:

- is a claim that a defending party may, with leave of court,

- file against a person not a party to the action, called the third (fourth, etc.) party defendant,

- for contribution, indemnity, subrogation or any other relief, in respect of his opponent's claim.

Note: A third-‐party complaint is actually a complaint independent of, and separate and distinct from the plaintiff’s complaint. It is filed against one who is NOT already a party to the action nor privy to the act or deed complained of by the plaintiff. e.g. Passenger sues the operator for breach of contract of carriage because of injuries sustained. The operator may file a 3rd party complaint against the negligent driver.



Purpose: To avoid circuitry of action and proliferation of lawsuits and to expedite litigation. Because of the above rule, it does not have to be filed independently and separately from the original complaint. Defendant has NO Vested Right to File a Third party Complaint – Courts are vested with discretion to allow or disallow a party to an action to implead an additional party. (China Banking Corp v. Padilla, Feb 07) The filing of a 3rd party complaint requires leave of court, which may be obtained by motion under Rule 15.

Third Party Complaint

Complaint in Intervention (rule 19)

Brings into the action a third person who was not

originally a party

Same

Initiative is with the person already a party to the

action

Initiative is with a non-‐party who seeks to join the

action TESTS to determine whether the third-‐party complaint is in respect of plaintiff ’s claim: 1. Whether it arises out of the same transaction on which

the plaintiff’s claim is based, or although arising out of another or different transaction, is connected with the plaintiff’s claim;

2. Whether the third-‐party defendant would be liable to the plaintiff or to the defendant for all or part of the plaintiff’s claim against the original defendant; and

3. Whether the third party defendant may assert any defenses which the third-‐party plaintiff has or may have to plaintiff’s claim.

Notes: • Summons on third, fourth, etc -‐ party defendant must be

served for the court to obtain jurisdiction over his person, since he is not an original party.

• Where the trial court has jurisdiction over the main case, it also has jurisdiction over the third-‐party complaint, regardless of the amount involved as a third party complaint is merely auxiliary to and is a continuation of the main action. (Republic v. Central Surety & Insurance, 25 SCRA 641 (1968))

• A third-‐party complaint is not proper in an action for declaratory relief. (Comm of Customs v. Cloribel, June 77)

• Time to answer shall be governed by the same rule as the answer to the complaint (w/in 15days from service of summons)

Sec. 12. Bringing new parties. When the presence of parties other than those to the original action is required:

- for the granting of complete relief in the determination of a counterclaim or cross-‐claim,

- the court shall order them to be brought in as defendants, IF jurisdiction over them can be obtained.

Distinguish from a 3rd Complaint: - A third-‐party complaint is proper when not one of the

third party defendants therein is a party to the main action.

- If one or more of the defendants in a counterclaim or cross-‐claim is already a party to the action, then the other necessary parties may be brought in under this section.

Sec. 13. Answer to third (fourth, etc .) party complaint. A third (fourth, etc.) party defendant may allege in his answer:

- his defenses, counterclaims or cross-‐claims, - including such defenses that the third (fourth, etc.)

party plaintiff may have against the original plaintiff's claim.

In proper cases, he may also assert a counterclaim: - against the original plaintiff in respect of the latter's

claim against the third-‐party plaintiff. Note: The time to answer a third-‐party complaint shall be governed by the same rule as the answer to the complaint, hence within 15 days from service of summons (Sec. 5, Rule 11).

RULE 7: PARTS OF A PLEADING

Sec 1. Caption. The caption sets forth:

- the name of the court, - the title of the action, and - the docket number if assigned.

The tit le of the action - Indicates the names of the parties. - They shall all be named in the original complaint or

petition; BUT in subsequent pleadings, 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.

- Their respective participation in the case shall be indicated.

Sec. 2 . The body. The body of the pleading sets forth:

- its designation, - the allegations of the party's claims or defenses, - the relief prayed for, and - the date of the pleading.



(a) Paragraphs. -‐ The allegations in the body of a pleading: - Shall be divided into paragraphs so numbered

as to be readily identified, each of which shall contain a statement of a single set of circumstances so far as that can be done with convenience.

- A paragraph may be referred to by its number in all succeeding pleadings.

(b) Headings. When two 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 addressed to one of several causes of action in the complaint,

- they shall be prefaced by the words "answer to the first cause of action" or "answer to the second cause of action" and so on; and

When one or more paragraphs of the answer are addressed to several causes of action,

- they shall be prefaced by words to that effect.

(b) Relief . -‐ The pleading shall specify the relief sought, - BUT it may add a general prayer for such further

or other relief as may be deemed just or equitable.

(d) Date. -‐ Every pleading shall be dated. Note: It is not the caption of the pleading but the allegations that determine the nature of the action. USB v. CA: The relief and prayer, although part of the complaint, does not constitute a part of the statement of the cause of action. It does not also serve to limit or narrow the issues presented. (332 SCRA 534) Note: It is the material allegations of the complaint and not the legal conclusions made therein or the prayer that determines the relief to which the plaintiff is entitled. - The court may grant a relief not prayed for as long as the

relief is warranted by the allegations of the complaint and the proof. (Lorbes v. CA, 351 SCRA 716)

Sec. 3 . Signature and address. Every pleading must be signed:

- by the party or counsel representing him, - stating in either case his address which should not be

a post office box.

The signature of counsel constitutes a certif icate by him that:

1. He has read the pleading; 2. That to the best of his knowledge, information, and

belief there is good ground to support it; and 3. That it is not interposed for delay.

An unsigned pleading produces no legal effect . HOWEVER, the court may, in its discretion,:

- allow such deficiency to be remedied IF it shall appear that the same was due to mere inadvertence and not intended for delay.

Counsel who:

1. Deliberately files an unsigned pleading, or 2. Signs a pleading in violation of this Rule, or 3. Alleges scandalous or indecent matter therein, or 4. Fails to promptly report to the court a change of his

address, shall be subject to appropriate disciplinary action. Note: An unsigned pleading may be stricken out as sham and false, and the action may proceed as though the pleading has not been served. It has no legal effect . Garrucho v. CA: In the absence of a proper notice to the court of a change of address, service upon the parties must be made at the last address of record. (448 SCRA 165) Republic v . Kenrick Dev Corp: ONLY the signature of either the party himself OR his counsel operates to validly convert a pleading from one that is unsigned to one that is signed. (351 SCRA 716) Significance of the signature of counsel - Serves as certification of the 3 items mentioned in the

codal. - The counsel’s authority and duty to sign a pleading are

personal to him. He may not delegate it to just any person. If so, it cannot be cured or ratified by counsel.

- Counsel may delegate the signing of a pleading to another lawyer but cannot do so in favor of one who is not.

Sec. 4 . Verification. GR: Pleadings need not be under oath, verified or accompanied by affidavit. EXC: When otherwise specifically required by law or rule, A pleading is verified by an affidavit that:

1. The affiant has read the pleading and 2. That the allegations therein are true and correct of

his personal knowledge or based on authentic records. (As amended by A.M. No. 00-‐2-‐10, May 1, 2000)

A pleading required to be verified: 1. Which contains a verification based on "information

and belief," or upon "knowledge, information and belief," or

2. Lacks a proper verification, shall be treated as an unsigned pleading. Sarmiento v. Zaratan : The purpose of requiring verification is to secure an assurance that the allegations of the petition have been made in good faith, or are true and correct, not merely speculative. (Feb, 07)



Some of the Pleadings that Should be Verified 1. Civil complaints or initiatory pleadings asserting claims for

relief (including permissive counter-‐claims) (Sec. 5, Rule 7) 2. Statement of Claim and responses for Small Claims Cases

(Secs 5 & 11 Procedure for Small Claims Cases) 3. Complaint for injunction (Sec. 4, Rule 58) 4. Application for appointment of receiver (Sec. 1, Rule 59) 5. Application for support pendente lite (Sec. 1, Rule 69) 6. Petition for forcible entry or unlawful detainer, the answers

thereto, and the answers to any compulsory counter-‐claim and cross-‐claim pleaded in the answer (Sec. 4, Rule 70)

7. Petition for indirect contempt (Sec. 4, Rule 71) 8. Petition for relief from judgment or order(Sec. 3, Rule 38) 9. Petition for Review from the RTC to the SC (Sec2c Rule 41) 10. Petition for Review from RTC to CA (Sec. 1, Rule 42) 11. Petition for Review, from CTA and other quasi-‐judicial

agencies to CA (Sec. 5, Rule 43) 12. Appeal by certiorari, from CA to SC (Sec. 1, Rule 45) 13. Petition for certiorari (SCA) (Sec. 2, Rule 64) 14. Petition for certiorari (SCA) (Sec. 1, Rule 65) 15. Petition for prohibition (Sec. 2, Rule 65) 16. Petition for Mandamus (Sec. 3, Rule 65) 17. Petition for appointment of guardian (Sec. 2, Rule 93) 18. Petition for leave filed by guardian to sell or encumber

property of an estate (Sec. 1, Rule 95) 19. Petition for declaration of competency of a ward (Sec 1 Rule

97) 20. Petition for habeas corpus (Sec. 3, Rule 102) 21. Petition for change of name (Sec. 2, Rule 103) 22. Petition for voluntary judicial dissolution of a corporation

(Sec. 1, Rule 105, Rules of Court; Sec. 119, Corp Code) 23. Petition for cancellation or correction of entries in the civil

registry (Sec. 1, Rule 108) 24. Petition for correction of a clerical or typographical error in

an entry and/or change of first name or nickname in the civil register filed with the civil register office pursuant to RA 9048 (Sec. 3, Rep. Act No. 9048)

25. Petition for adoption (Sec. 7, Rule of Adoption) 26. Petition for legal separation (Sec. 2(b)(3), Rule on Legal

Separation) 27. Petition for declaration of absolute nullity of void marriages

and annulment of voidable marriages (Sec. 5, Rule on Declaration of Absolute Nullity of Void Marriages and Annulment of Voidable Marriages)

28. Petitions in summary judicial proceedings in the family law based on Articles 41, 51, 69, 73, 96, 124,127, 223, 225, 235 & 239 of the Family Code (Arts. 239, 249 & 253, Family Code)

29. Complaints filed under the Interim Rules of Procedure on Intra-‐Corporate Controversies, as well as the Answer thereto. (Sec. 3, Rule 2, Interim Rules of Procedure on Intra-‐Corporate Controversies)

30. All pleadings, motions, oppositions, defenses or claims filed by any interested party in any proceeding governed by the Rules of Procedure on Corporate Rehabilitation (2008) (Sec. 1, Rule 3, Rules of Procedure on Corporate Rehabilitation)

31. Complaints filed with the Court of Tax Appeals (Sec. 1, Rule 6, Revised Rules of Procedure of the CTA)

32. Petitions for Review filed with the CTA (Sec. 2, Rule 6, Revised Rules of Procedure of the CTA)

GR: Lack of proper verification is treated as an unsigned pleading. Hence, it produces no legal effect. (Sec 4 Rule 7). - It has however been held that the absence of a

verification or the non-‐compliance with the verification requirement does not necessarily render the pleading defective. It is ONLY a formal and not a jurisdictional requirement. It affects only form and does not render the pleading fatally defective. (Sarmiento v. Zaratan, Feb 07)

- The court may order the correction of the pleading if verification is lacking or act on the pleading although it is not verified, if the attending circumstances are such that strict compliance with the rules will not serve the ends of justice. (BPI v. CA, Oct 08)

- The absence of a verification may be corrected by requiring an oath. The rule is in keeping with the principle that technical requirements may be dispensed with in order to serve substantial justice. (Pampanga Star Dev Comp v. NLRC, 272 SCRA 737)

Other Requirements: 1. Counsel has to indicate his Professional Tax Receipt

number (PTR) and IBP official receipt number indicating its date of issue, the purpose of which is to see to it that he pays his tax and membership due regularly. (Circular No. 10 July 24, 1985; Bar Matter No, 287, Sept 26, 2000) - Failure to comply will subject the counsel to

disciplinary sanctions who shall likewise required to comply w/in 5 days from notice

- Failure to comply within the 5 days is ground for further disciplinary sanctions.

2. Roll of Attorneys Number in addition to no. (1) above should also be indicated. This was meant to protect the public by making it easier to detect impostors who represent themselves as members of the bar. (Bar Matter 1132, April 1, 2003)

3. All pleadings should also indicate the MCLE Certificate of Compliance or Certificate of Exemption. Failure to comply would cause the dismissal of the case and expunction of the pleading from the records. (Bar Matter no. 1922 En Banc Resolution, June, 08)

Sec. 5 . Certification against forum shopping. The plaintiff or principal party shall certify under oath - in the complaint or other initiatory pleading asserting a

claim for relief, or - in a sworn certification annexed thereto and

simultaneously filed therewith:

a. That he has not commenced any action or filed any claim involving the same issues in any court, tribunal or quasi-‐judicial agency AND to the best of his knowledge, no such other action or claim is pending therein;

b. IF there is such other pending action or claim, a complete statement of the present status thereof; and



c. IF he should thereafter learn that the same or similar action or claim has been filed or is pending, he shall report that fact w/in 5 days therefrom to the court wherein his aforesaid complaint or initiatory pleading has been filed.

Failure to comply with the foregoing requirements: - shall not be curable by mere amendment of the

complaint or other initiatory pleading - but shall be cause for the dismissal of the case

without prejudice, UNLESS otherwise provided, upon motion AND after hearing.

The submission of a false certification OR non-‐compliance with any of the undertakings therein: 1. Shall constitute indirect contempt of court, 2. Without prejudice to the corresponding administrative

and criminal actions.

IF the acts of the party or his counsel clearly constitute willful and deliberate forum shopping, the same: 1. Shall be ground for summary dismissal with prejudice

and 2. Shall constitute direct contempt, 3. As well as a cause for administrative sanctions.

Forum Shopping, defined: Consists of filing multiple suits in different courts, either simultaneously or successively, involving the same parties, to ask the courts to rule on the same or related causes and/or to grant the same or substantially the same relief on the supposition that one or the other court would make a favorable disposition or increase a party’s chances of obtaining a favorable decision or action. Sposues Carpio v. Rural Bank: It is the act of a party against whom an adverse judgment has been rendered in one forum of seeking and possibly getting a favorable opinion in another forum other than by appeal or by certiorari. (May, 06) Rationale Against Forum Shopping: Multiple petitions constitute abuse of court processes which degrade the administration of justice. Application: It is required ONLY for complaints or initiatory pleadings. Initiatory pleadings includes the following: 1. Permissive Counterclaim 2. Cross claim 3. Third (fourth, etc.) – party complaint 4. Complaint in intervention 5. Petition or application wherein the party asserts his

claim for relief.

UST Hospital v . Surla: Certificate of non-‐forum shopping is not required in a compulsory counterclaim because it cannot be subject of a separate and independent adjudication. It is not an initiatory pleading. (294 SCRA 382 (1998))

Elements of Forum Shopping -‐ Whether in the two (or more) cases pending, there is:

1. Identity of parties, or at least such parties as represent the same interests in both actions;

2. Identity of the rights or causes of action, and 3. Identity of the relief sought, the relief being founded

on the same facts. Hence, the question to ask is whether the elements of litis pendencia are present or whether a final judgment in one case will result in res judicata. Forum shopping can be committed in three ways: 1. Filing multiple cases based on the same cause of action

and with the same prayer, the previous case not having been resolved yet (litis pendentia);

2. Filing multiple cases based on the same cause of action and the same prayer, the previous case having been finally resolved (res judicata); and

3. Filing multiple cases based on the same cause of action but with different prayers (splitting of causes of action, where the ground for dismissal is also either litis pendentia or res judicata) (Ao-‐As v. CA, June 06)

Note: The concept of forum shopping applies not only with respect to suits filed in the courts but also in connection with litigations commenced in the courts while an administrative proceeding is pending in order to defeat administrative processes and in anticipation of an unfavorable administrative ruling. (Multinational v. CA, 203 SCRA 104) Who Executes the Certification: - GR: The certificate is to be executed by the plaintiff or

principal party, and not by counsel. - Ratio: It is the petitioner and not the counsel who is in

the best position to know whether he or it actually filed or caused the filing of a petition. (Far Eastern Shipping Comp v. CA, 297 SCA 30)

Note: A certification signed by a counsel is a defective certification and is a valid cause for dismissal. (Far Eastern Shipping Company vs. CA, 297 SCRA 30) This is the general and prevailing rule. A certification by counsel and not by the principal party himself is no certification at all. Santos v. CA: Insofar as verification is concerned, there is substantial compliance if the same is executed by an attorney, it being presumed that facts alleged by him are true to his knowledge and belief. However, the same does not apply as regards the requirement of a certificate against forum shopping. The certification must be made by petitioner himself and not by counsel. (360 SCRA 521 (2001)) Certification when Plaintiff is a Juridical Person: Execution must be made by properly authorized persons who have personal knowledge of the facts required to be disclosed in the certification. It may be signed by the authorized lawyer. (National Steel Corp v. CA, 388 SCRA 85)



PAL v. FASAP: Only individuals vested with authority by a valid board resolution may sign the certificate of non-‐forum shopping in behalf of a corporation. In addition, the Court has required that proof of said authority must be attached. Failure to provide a certificate of non-‐forum shopping is sufficient ground to dismiss the petition. Likewise, the petition is subject to dismissal if a certification was submitted unaccompanied by proof of the signatory’s authority. (479 SCRA 605 (2006)) Liberal Interpretation of the Rules on Signing of the Certification Against Forum Shopping - The rule regarding the signing of the said certification is

subject to the power of the SC to suspend procedural rules and to lay down exceptions to the same

- The personal execution of the certification by the plaintiff may be overlooked in the interest of justice

- Where the plaintiffs are husband and wife and only the husband signed the certification, the SC held the same as substantial compliance of the rule. (Docena v. Lapesura,355 SCRA 658)

- Execution of the certification by only 3 out of the 97 petitioners constitute substantial compliance. (San Miguel v. Aballa, 411 SCRA 504)

- In certain exceptional circumstances involving compelling reasons, the Court has allowed the belated filing of the certification.

- A liberal interpretation may also be given where the petitioner corporation submitted a certification but failed to show proof that the signatory was authorized to do so. The Court may permit a subsequent submission of proof of authority. (China Banking v. Mondagron, 475 SCRA 332)

Robert Development Corp v. Quitain: Certification against forum shopping is MANDATORY but NOT jurisdictional. (315 SCRA 150) Effect of Failure to Comply - It is not curable by mere amendment of the pleading but

shall be a cause for dismissal of the case. - Dismissal for failure to comply with the certification

cannot be done motu proprio. The rule requires that it should be done upon motion and after hearing.

- The dismissal shall be w/o prejudice to the refiling of the complaint, unless the order of dismissal otherwise provides.

- The failure to submit the certification against forum shopping is a ground for dismissal, separate and distinct from forum shopping as a ground for dismissal. (Juaban v. Espina, Mar 08)

- There is no appeal against an order of dismissal for failure to comply with the certification. An order of dismissal w/o prejudice is not appealable. The remedy is to file an SCA under Rule 65 (certiorari).

Deliberate Forum Shopping: Shall be subject to summary dismissal (no need for motion and hearing) with prejudice. It cannot be refiled and shall constitute direct contempt as well as cause administrative sanctions.

RULE 8: MANNER OF MAKING ALLEGATIONS IN PLEADINGS

Sec 1. In general . Every pleading shall contain in a methodical and logical form:

- a plain, concise and direct statement of the ultimate facts on which the party pleading relies for his claim or defense, as the case may be,

- omitting the statement of mere evidentiary facts. IF a defense relied on is based on law:

- the pertinent provisions thereof and - their applicability to him shall be clearly and

concisely stated. Rule: Pleading asserting a claim must ONLY contain ultimate facts. It should not allege conclusions and should also omit from its allegations, statements of mere evidentiary facts. Ultimate Facts, defined: Facts which directly form the bases of the right sought to be enforced or the defense relied upon. They are essential to a party’s cause of action or defense such that if not alleged, the cause of action would be insufficient. Tantuico v. Republic: They do not refer to details of probative matter or particulars of evidence by which the material elements are to be established. They are the principal, determinate, constitutive facts, upon the existence of which, the entire cause of action rests. (204 SCRA 428) Evidentiary Facts: Those which are necessary to prove the ultimate fact or which furnish evidence of the existence of some other facts. - Evidentiary matters are to be presented during the trial

of the case. - Conclusions and evidentiary matters contained in a

pleading may be the subject of a motion to strike. Test to Distinguish Conclusion of Law from Statement of Facts: • If from the facts in evidence, the result can be reached by

the process of natural reasoning adopted in the investigation of truth it becomes an ultimate fact to be found as such.

• If on the other hand, resort must be had to artificial processes of the law in order to reach a final determination the result is a conclusion of law. (Herrera)

Complaint Answer

Filed by plaintiff Filed by defendant Must contain a direct

statement of the ultimate facts, omitting statement of mere evidentiary facts

If defense relied is based on law, cite the pertinent legal provisions thereof, as well as

its applicability to him



Sec. 2. Alternative causes of action or defenses. A party may set forth two or more statements of a claim or defense:

- alternatively or hypothetically, - either in one cause of action or defense OR in

separate causes of action or defenses. When two or more statements are made in the alternative and one of them if made independently would be sufficient:

- the pleading is not made insufficient by the insufficiency of one or more of the alternative statements.

Rule: - This provision recognizes that the liability of the

defendant may possibly be based on either one of two possible causes of action. (E.g. Liability of a carrier may be based on a breach of contract of carriage or on quasi delict).

- The same provision has affinity to the rule which authorizes suing two or more defendants in the alternative. (Sec 13 Rule 3)

- This rule is permissible as long as the allegations pleaded w/in a particular cause of action are consistent with the cause of action relied upon in the alternative.

- The rule does not require that all of the alternative causes of action be sufficient for the plaintiff to be entitled to relief. It is enough that one of them if made independently would be sufficient to support a cause of action.

- The rule also authorizes alternative defenses. E.g. defense of payment of debt or prescription. This is also consistent with the omnibus motion rule wherein objections not included are rendered waived.

Plaintiffs Defendant

Alternative allegations – cases where the facts essential to the plaintiff’s cause are within the

knowledge of the defendant, yet the plaintiff is so imperfectly informed that he cannot state them with

certainty

Defendant may state hypothetical allegations

(affirmative defense)

Plaintiff should state the facts within his knowledge with

certainty, but to plead in alternative, the doubtful facts which are wholly within the defendant’s knowledge and call upon the defendant to make

full disclosure of these facts

Defendant may also plead as many defenses and

counterclaims he may have

Plaintiff may state alternative

causes of action, be they compatible with each other or not

Inconsistency does not operate as waiver or withdraw of defense in another portion of his

answer

Summary in Averring Facts

Facts That May be Averred Generally 1. Conditions precedent (BUT there must still be an

allegation that the specific condition precedent has been complied with, otherwise, it will be dismissed for lack of cause of action, Sec 3);

2. Capacity to sue or be sued; 3. Capacity to sue or be sued in a representative capacity;

Note: A party desiring to raise an issue as to the legal existence or capacity of any party to sue or be sued in a representative capacity shall do so by SPECIFIC DENIAL which shall include supporting particulars within the pleader’s knowledge. 4. Legal existence of an organization 5. Malice, intent, knowledge, or other condition of the

mind; 6. Judgments of domestic or foreign courts, tribunals,

boards, or officers (no need to show jurisdiction); and 7. Official document or act.

Facts that Must be Averred Particularly: Circumstances showing fraud or mistake in all averments of fraud or mistake. Sec. 3 . Conditions precedent. In any pleading a general averment of the performance or occurrence of all conditions precedent shall be sufficient . Conditions Precedent: Matter which must be complied with before a cause of action arises, Rule: When a claim is subject to a condition precedent, the compliance of the same must be alleged in the pleading. Effect of Failure to State Compliance with Condition Precedent - Failure to state the conditions precedent will make the

complaint defective and vulnerable to dismissal, even on appeal.

- It is an independent ground for a motion to dismiss. (Sec. 1[j], Rule 16).

Examples of Conditions Precedent 1. Tender of payment is required before making a

consignation. (Art 1256 CC) 2. Exhaustion of administrative remedies required in

certain cases before resorting to judicial action. (Dy v. CA, 304 SCRA 331)

3. Prior resort to barangay conciliation proceedings is necessary in certain cases. (LGC, Chapter 7)

Note: Compliance with conciliation process is a condition precedent but not a jurisdictional requirement; however, it may still be a ground for dismissal on the reason of non-‐compliance with condition precedent.



4. Earnest efforts toward a compromise must be undertaken when the suit is between members of the same family. (Art 151 Family Code)

5. Arbitration may be a condition precedent when agreed upon by the parties in a contract .

Sec. 4 . Capacity. Facts showing:

1. The capacity of a party to sue or be sued or 2. The authority of a party to sue or be sued in a

representative capacity or 3. The legal existence of an organized association of

persons that is made a party, must be averred. A party desiring to raise an issue as to:

1. The legal existence of any party or 2. The capacity of any party to sue or be sued in a

representative capacity, shall do so by specific denial , which shall include such supporting particulars as are peculiarly within the pleader's knowledge. Note: Capacity is challenged by specific denial, motion to dismiss or bill of particulars. Examples of what must be pleaded:

• Foreign corporation (generally not allowed to sue, but can be sued) has license to do business in the country or is not doing business in the country.

• If the party is an organized association of persons, its legal existence must also be averred

Examples of what the defendant must plead: • If the defendant wants to raise an issue as to the

plaintiff’s legal capacity to sue, he should file a motion to dismiss on that ground or set it up as affirmative defense in the answer.

• If the defendant wants to raise an issue of his legal capacity to be sued, he should question the jurisdiction of the court over his person.

Sec. 5 . Fraud, mistake, condition of the mind. In all averments of fraud or mistake the circumstances constituting fraud or mistake -‐ must be stated with particularity. Malice, intent, knowledge or other condition of the mind of a person -‐ may be averred generally. Fraud or Mistake - Under this provision, the complaint must state with

particularity the fraudulent acts of the adverse party. These particulars would necessarily include the time, place and specific acts of fraud committed against him.

- The defendant may move for a bil l of particulars when the allegations of fraud, etc. are merely conclusions of law, and are without statement of the facts to which such terms have reference.

- If after the granting the motion for bill of particulars, the plaintiff still refuses to do so, the court may simply dismiss the complaint.

Malice, intent, knowledge and other conditions of the mind -‐ Being borne out of human experience, is difficult to state with particularity. Hence, a general averment is allowed. Sec. 6 . Judgment. In pleading a judgment or decision of a domestic or foreign court, judicial or quasi-‐judicial tribunal, or of a board or officer,

- it is sufficient to aver the judgment or decision - without setting forth matter showing jurisdiction to

render it. Note: Under Sec 3(n) of Rule 131, the jurisdiction of the court a quo although disputable, is presumed. Sec. 7 . Action or defense based on document. Whenever an action or defense is based upon a written instrument or document:

- The substance of such instrument or document shall be set forth in the pleading, AND

- The original or a copy thereof shall be attached to the pleading as an exhibit, which shall be deemed to be a part of the pleading, OR said copy may with like effect be set forth in the pleading.

Actionable Document, defined: Refers to a written instrument upon which the action or defense is based. (e.g. promissory note in an action for sum of money, deed of mortgage in an action for foreclosure, written contract, etc.) Two Permissible Ways of Pleading an Actionable Document: 1. By setting forth the substance of such document in the

pleading and attaching said document thereto as an exhibit (contents of the document annexed are controlling, in case of variance in the substance of the document set forth in the pleading and in the document attached); or

2. By setting forth said document verbatim in the pleading. A Non Actionable Document is some other extraneous document which is not the main object of the action. (e.g. demand letter) Sec. 8 . How to contest such documents. When an action or defense is founded upon a written instrument, copied in or attached to the corresponding pleading as provided in the preceding section:

- The genuineness and due execution of the instrument shall be deemed admitted

UNLESS the adverse party: 1. Under oath, specifically denies them, AND 2. Sets forth what he claims to be the facts;



BUT the requirement of an oath does not apply when: -‐ The adverse party does not appear to be a party to

the instrument OR -‐ When compliance with an order for an inspection of

the original instrument is refused. How to Contest an Actionable Document:

1. By specifically denying the genuineness and due execution under oath; AND

2. By setting forth what is claimed to be the facts. Note: This manner of pleading a document applies only to one which is the basis of the action or a defense. Hence, if the document does not have the character of an actionable document, as when it is merely evidentiary, it need not be pleaded strictly in the manner prescribed by Sec. 7, Rule 8. Note: A mere specific denial is NOT enough. It must be coupled with an oath, which means it must be verified. The absence of the oath will result in the implied admission of the genuineness and due execution of the document. Central Surety v. Hodges: Failure to specifically deny under oath the genuineness and due execution of an actionable document generally implies an admission of the same by the other party. However, such IMPLIED ADMISSION IS DEEMED WAIVED if the party asserting the same has allowed the adverse party to present evidence contrary to the contents of such document without objection. (38 SCRA 159) Genuineness, defined: The instrument is: 1. Not spurious, counterfeit, or of different import on its

face from the one executed by the party or 2. That the party whose signature it hears has signed it and 3. That at the time it was signed, it was in words and figures

exactly as set out in the pleadings. Due Execution, defined: The document was 1. Signed voluntarily and knowingly by the party whose

signature appears thereon, 2. That if signed by somebody else such representative had

the authority to do so, and 3. That it was duly delivered, and that the formalities were

complied with. (Hibberd v. Rhode, Dec, 1915) Defenses Not Waived or Cut-‐Off Despite Failure to Specifically Deny Under Oath:

1. Payment; 2. Want or illegality of consideration; 3. Usury 4. Fraud; 5. Mistake; 6. Compromise; 7. Statute of Limitations/Prescription; 8. Release, 9. Waiver, 10. Estoppel; 11. Former Recovery or discharge in bankruptcy; 12. Duress; and 13. Minority or imbecility.

Ratio: The aforementioned defenses are NOT inconsistent with the genuineness and due execution of the document. Defenses Cut-‐off by the Admission of Genuineness and Due Execution -‐ When a party is deemed to have admitted the genuineness and due execution of an actionable document, defenses that are implied from said admission are necessarily waived. -‐ Examples of Defenses Deemed Waived:

1. Forgery in the signature; 2. Unauthorized signature, as in the case of an agent

signing for his principal; 3. The corporation was not authorized under its

charter to sign the instrument; 4. Want of delivery; or 5. At the time the document was signed, it was not in

words and figures exactly as set out in the pleading. Sec. 9 . Official document or act . In pleading an official document or official act, it is sufficient to aver that the document was issued or the act done in compliance with law. Sec. 10. Specific denial . A defendant must:

-‐ Specify each material allegation of fact the truth of which he does not admit, AND

-‐ Whenever practicable, shall set forth the substance of the matters upon which he relies to support his denial.

Where a defendant desires to deny only a part of an averment, he:

-‐ shall specify so much of it as is true and material and -‐ shall deny only the remainder.

Where a defendant is without knowledge or information sufficient to form a belief as to the truth of a material averment made in the complaint:

-‐ he shall so state, and this shall have the effect of a denial.

Rule: A denial must not be general. A general denial is regarded as an admission of the facts stated in the complaint and entitles the plaintiff to a judgment on the pleadings. 3 Types of Specific Denials: 1. Specific Absolute Denial: By specifically denying

each material averment and, whenever practicable, setting forth the substance of the matters relied upon for such denial; -‐ Here, the defendant absolutely denies his liability

and alleges what to him are the actual facts. -‐ Reference must be made to the paragraph in the

complaint sought to be denied. 2. Partial Specific Denial: Part admission and part

denial;



3. Disavowal of Knowledge: By an allegation of lack of knowledge or information sufficient to form a belief as to the truth of the averment in the opposing party’s pleading. -‐ This should be done sincerely and in good faith. -‐ A denial done in bad faith amounts to an admission. -‐ This rule shall not apply where the fact as to which a

lack of knowledge is asserted, is, to the knowledge of the court, so plainly within the defendant’s knowledge that his averment of ignorance must be palpably untrue. (WB v. Reyes, 103 Phil 662)

Negative Pregnant, defined: A form of denial which at the same time involves an affirmative implication favorable to the opposing party; It is in effect, an admission of the averment to which it is directed; It is said to be a denial pregnant with an admission of the substantial facts in the pleading responded to. Not a specific denial but an admission.

When Specific Denial Must be Coupled With an Oath 1. Denial of an actionable document (Sec 8 Rule 8)

-‐ 2 Requirements before a party can deny the genuineness and due execution of a document: a. Specifically deny the document, and to set forth

what he claims to be the facts; and b. Deny the document under oath. (See notes on Sec 8 Rue 8)

2. A denial of allegations of usury in a complaint to recover usurious interest . (Sec 11 Rule 8)

a. It must be allegations of usury in a complaint (not in the answer) and

b. The complaint is filed to recover usurious interest

Sec. 11. Allegations not specifically denied deemed admitted. Material averment in the complaint:

-‐ other than those as to the amount of unliquidated damages

shall be deemed admitted when not specifically denied. Allegations of usury in a complaint to recover usurious interest -‐ are deemed admitted IF not denied under oath. Effect of Absence of a Specific Denial -‐ Under Sec 11 Rule 8, material averments in the complaint

not specifically denied are deemed admitted -‐ If they are deemed admitted, then there are no more

triable issues. Here, the plaintiff may file a motion for judgment on the pleadings (Rule 34)

-‐ An admission on the pleading cannot be controverted by the party making such admission because the same is conclusive as to him. In which case, the other party need not even present any evidence to support his allegations.

-‐ A person who desires to contradict his own judicial admission may do so only by: (1) showing that it was made through palpable mistake; (2) that no admission was made (Rule 129 Sec 4)

-‐ Admissions may also be withdrawn by amendments. The original pleadings are superseded by the amended pleading. (Veneer v. Plan, Sept 76)

Note: Merely uttering “specific denial” is ineffective if the denial does not conform to the methods of denial provided for by the Rules of Court. Purpose of a Specific Denial: To make the defendant disclose the matters alleged in the complaint which he succinctly intends to disprove at the trial. They are compelled to lay their cards on the table. Matters NOT Deemed Admitted by the Failure to Make a Specific Denial 1. Amount of unliquidated damages. (Sec 11 Rule 8) 2. Conclusions of law in a pleading which do not have to be

denied because only ultimate facts need be alleged in a pleading. (Sec 1, Rule 8)

3. Non-‐material averments or allegations or allegations immaterial as to the cause of action (Sec 11, Rule 8)

Sec. 12. Striking out of pleading or matter contained therein. 1. Upon motion made by a party before responding to a

pleading or 2. Upon motion made by a party within 20 days after the

service of the pleading upon him IF no responsive pleading is permitted by these Rules OR

3. Upon the court's own initiative at any time, the court may order:

-‐ any pleading to be stricken out or -‐ that any sham or false, redundant, immaterial,

impertinent, or scandalous matter be stricken out therefrom.

Note: Allegations of merely evidentiary or immaterial facts may be expunged from the pleading or may be stricken out on motion.

RULE 9: EFFECT OF FAILURE TO PLEAD

Sec 1. Defenses and objections not pleaded. Defenses and objections not pleaded

-‐ Either: in a motion to dismiss or in the answer -‐ are deemed waived.

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

1. The court has no jurisdiction over the subject matter, 2. That there is another action pending between the

same parties for the same cause, (litis pendentia) or 3. That the action is barred by a prior judgment (res

judicata) OR 4. That the action is barred by the statute of limitations,

the court shall dismiss the claim.



-‐ GR: Defenses and objections not raised in a motion to dismiss or in the answer are deemed WAIVED.

-‐ EXC: The ff. are not waived even if not raised: 1. Lack of jurisdiction over the subject matter; 2. Litis pendentia; 3. Res judicata; or 4. Prescription of the action.

Note: The presence of these grounds authorizes the court to motu proprio dismiss the claims. These grounds must, however, appear from the pleadings or the evidence on record. Tijam vs. Sibonghanoy : These defenses may be raised at any stage of the proceedings even for the first time on appeal except that lack of jurisdiction over the subject matter may be barred by laches. (Apr, 68) Sec. 2 . Compulsory counterclaim, or cross-‐claim, not set up barred. A compulsory counterclaim, or a cross-‐claim, not set up shall be barred. An Amended Answer is proper if the counterclaim or cross claim already existed at the time the original answer was filed, but due to oversight, inadvertence, or excusable neglect, it was not set up. A Supplemental Answer is proper if the counterclaim or cross-‐claim matures or is acquired after the answer is filed. Sec. 3 . Default; declaration of . IF the defending party fails to answer within the time allowed therefore, the court shall:

-‐ upon motion of the claiming party with notice to the defending party, and proof of such failure,

-‐ declare the defending party in default . Thereupon, the court shall :

1. Proceed to render judgment granting the claimant such relief as his pleading may warrant,

2. UNLESS the court in its discretion requires the claimant to submit evidence.

Such reception of evidence may be delegated to the clerk of court.

(a) Effect of order of default . -‐ A party in default shall be

entitled to notice of subsequent proceedings BUT NOT to take part in the trial.

(b) Relief from order of default . -‐ A party declared in

default may: -‐ at any time after notice thereof AND before judgment -‐ f i le a motion under oath to set aside the

order of default upon proper showing: 1. That his failure to answer was due to fraud, accident,

mistake or excusable negligence and 2. That he has a meritorious defense.

In such case, the order of default may be set aside on such terms and conditions as the judge may impose in the interest of justice.

(c) Effect of partial default . -‐ When a pleading asserting a claim states a common cause of action against: -‐ Several defending parties some of whom answer and

the others fail to do so -‐ The court shall try the case against all upon the

answers thus filed and render judgment upon the evidence presented.

(d) Extent of relief to be awarded. -‐ A judgment rendered against a party in default shall: -‐ not exceed the amount nor be different in kind from

that prayed for -‐ nor award unliquidated damages.

(e) Where no defaults allowed. -‐ If the defending party fails to answer in an action for:

1. Annulment or 2. Declaration of nullity of marriage or 3. For legal separation

the court shall order the prosecuting attorney: 1. To investigate w/n a collusion between the

parties exists, AND 2. IF there is no collusion, to intervene for the

State in order to see to it that the evidence submitted is not fabricated.

Default , defined: The failure of the defendant to answer within the proper period. It is not his failure to appear or his failure to present evidence. Two Stages of Default: 1. Declaration of order of default; and 2. Rendition of judgment by default

Order of Default Judgment by Default Issued by the court, on

plaintiff’s motion for failure of the defendant to file his responsive pleading

seasonably

Rendered by the court following a default order or after it received, ex parte,

plaintiff’s evidence

Interlocutory-‐ not appealable

Final – appealable

Requisites for a Valid Declaration of Default 1. The court validly acquired jurisdiction over the

person of the defendant either by summons validly served or by his voluntary appearance.

2. Defendant fails to answer within the time allowed therefore;

3. There must be a motion to declare the defendant in default;

4. There must be notice to the defendant by serving upon him a copy of such motion;

5. There must be proof of such failure to answer; and 6. There must be a hearing of the motion to declare the

defendant in default Note: The purpose of notice is to avoid surprises and to give the said party time to study and meet the arguments. Hearing on the motion is also mandatory.



Where No Defaults are Allowed (LADSS) 1. Legal Separation; 2. Annulment of marriage; 3. Declaration of nullity of marriage; 4. Special civil actions of certiorari, prohibition and

mandamus where comment instead of an answer is required to be filed; and

5. Summary procedure. Person Declared in Default is Entitled to: 1. Motion to declare him in default; 2. Order declaring him in default; 3. Notices of subsequent proceedings; and 4. Service of final orders and judgments. Effect of order of Default 1. The court shall proceed to render judgment granting the

claimant relief or in its discretion require the claimant to submit evidence ex parte.

2. Party in default loses his standing in court and cannot take part in the trial. However, he is still entitled to notice of subsequent proceedings.

3. A defendant declared in default cannot be disqualified from testifying as a witness in favor of non-‐defaulting defendants. (Cavili v. Florendo 154 SCRA 610 (1987))

4. A declaration of default is not an admission of the truth or the validity of the plaintiff’s claims. (Monarch Insurance v. CA, 333 SCRA 7)

5. If the defendant was declared in default upon an original complaint, the filing of the amended complaint resulted in the withdrawal of the original complaint, hence the defendant was entitled to file the answer to the amended complaint as to which he was not in default.

The court cannot motu proprio declare a defendant in default . For defendant to be declared in default, the plaintiff must: 1. File a motion to declare defendant in default 2. Prove that summons have been properly served on the

defendant. 3. The defending party must be notified of the motion to

declare him in default. 4. Prove that the defendant really failed to answer within

the proper period. Causes of Default 1. Failure to answer within the proper period 2. Failure to furnish plaintiff with a copy of the answer 3. Non-‐compliance with the order of the court to file a bill of

particulars or in case of insufficient compliance therewith (Rule 12, Section 4)

4. Refusal to comply with the modes of discovery (Rule 29, Section 3, par. c)

5. If a party or officer or managing agent of a party willfully fails to appear before the officer who is to take his deposition. (Sec 5, Rule 29, Riano, 297)

Note: No. 4 – 5 cause default notwithstanding an answer being filed by the defendant.

Not a Cause of Default -‐ Failure of the defendant to attend the pre-‐trial is a cause

for the court to order the plaintiff to present his evidence ex parte and for the court to render judgment. This consequence is not to be declared in default. (Sec 5, Rule 18)

-‐ Failure to attend trial and failure to adduce evidence does not constitute default but a waiver of the defendant’s right to object to evidence presented during such hearings and to cross-‐examine witnesses presented.

Note: A defendant may NOT be declared in default while a motion to dismiss or a motion for bill of particulars remains pending because the filing of the two interrupts the period to answer. It will run again the moment defendant receives the order denying the motion to dismiss or bill of particulars. Failure to File an Answer under the Rule on Summary Procedure -‐ Here, the defendant is not supposed to be declared in

default. Instead, the court motu proprio or upon 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. (Sec 6, II, 1991 Rule on Summary Procedure)

-‐ Under the Rule on Summary Procedure, the plaintiff is prohibited from filing a motion to declare the defendant in default. (Sec 19 (h) of the same rules)

Partial Default (Requisites):

1. The pleading asserting a claim states a common cause of action against several defending parties;

2. Some of the defending parties answer and the others fail to do so; and

3. The answer interposes a common defense. Effect of Partial Default: The court will try the case against ALL defendants upon the answer of some EXCEPT where the defense is personal to the one who answered, in which case, it will not benefit those who did not answer. Judicial Discretion to Admit Answer Filed Out of Time -‐ It is within the sound discretion of the court to permit the

defendant to file his answer and to be heard on the merits after the reglementary period for filing the answer expires.

-‐ In fact, the rule is that the answer should be admitted where it is filed before a defending party is declared in default and no prejudice is caused to the other party and that there is no showing that the defendant intends to delay the case. (Sablas v. Sablas July, 07)

-‐ The hornbook rule is that default judgments are generally disfavored. (Paramount Insurance v. A.C. Ordonez, Aug 08)

Judicial Trend on Defaults -‐ The current trend is to avoid defaults. Courts are

enjoined to be liberal in setting aside orders of default. (Ampeloquio v. CA, 333 SCRA 465)



-‐ The issuance of orders of default should be the exception rather than the rule and to be allowed ONLY in clear cases of obstinate refusal by the defendant to comply with the orders of the court. (Lorbes v. CA, Feb 01)

-‐ The policy of the law is to have every litigant’s case tried on the merits as much as possible and not on technicalities. (Sablas v. Sablas July, 07)

Tropical Homes Inc v. Vullauz: Judges are admonished against issuing precipitate orders of default as the same deprives the litigant of the chance to be heard. While there are instances when a party may properly be defaulted, this should be the exception rather than the rule. (Feb, 89)

DEFAULT IN ORDINARY PROCEDURE

Remedies of a Defending Party Declared in Default 1 . Remedy AFTER notice of order of default and

BEFORE judgment -‐ Motion to Lift Order of Default -‐ The defendant must file a motion under oath to set aside the order of default and show that: • The failure to answer was due to fraud, accident,

mistake or excusable negligence (FAME) and that; • The defendant has a meritorious defense (there must

be an affidavit of merit) (Villareal v. CA, 295 SCRA 511)

2 . Remedy AFTER judgment and BEFORE judgment

becomes final -‐ Defendant may file a motion for new trial under Rule 37. He may also appeal from the judgment as being contrary to the evidence or law. (Lina v. CA, 135 SCRA 637)

3 . Remedy AFTER the judgment becomes final and

executory -‐ The defendant may file a petition for relief from judgment under Rule 38. (Republic v. Sandiganbayan, 540 SCRA 431)

4 . Where the defendant has been wrongly or

improvidently declared in default -‐ The court can be considered to have acted with grave abuse of discretion amounting to lack of jurisdiction. The defendant may avail of a special civil action of certiorari under Rule 65. (Balangcad v. CA Justices, Feb 98)

REMEDIES FROM JUDGMENT BY DEFAULT

Judgment by default

I V

Motion for New Trial or Reconsideration at any time after service of judgment by default and within 15/30 days

therefrom I V

Failure to file a Motion for New Trial/ Denial of such motion I V

Perfected appeal from judgment by default within the balance of the 15/30-‐day period

I V

Failure to appeal without defendants fault I V

Petition for relief from judgment within 60 days from notice of judgment but within 6 months from entry thereof

I V

Annulment of Judgment under Rule 47

After the lapse of time to file an

answer, the plaintiff may

move to declare the defendant in

default

Motion denied: Defendant allowed to

file an answer

Before judgment by default is rendered, defendant may: 1. Move to set aside order of

default upon showing: a. FAME b. He has a meritorious

defense 2. Avail of Rule 65 in proper

cases

Motion granted: Court issues order of default and renders

judgment, or require plaintiff to submit evidence

ex parte.

Defendant answers

Court maintains order of default

Presentation of plaintiff’s

evidence ex-parte

Court sets aside

order of default and defendant is allowed

to file an answer

Case set for pre-trial

If plaintiff proves his allegations, judgment by default.

If plaintiff fails to prove

his allegations, case is

dismissed.



Implied Lifting of the Order of Default Republic v . Sandiganbayan: While it is true that there was no positive act on the part of the court to lift the default order because there was no motion nor order to that effect, the anti-‐graft court’s act of granting respondent the opportunity to file a responsive pleading meant the lifting of the default order on terms the court deemed proper in the interest of justice. It was the operative act in lifting the default order and reinstating the position of the original defendant, founded on the court’s discretionary power to set aside order of default. (Dec, 07)

RULE 10: AMENDED AND SUPPLEMENTAL PLEADINGS

Sec 1. Amendments in general . Pleadings may be amended: -‐ By adding or striking out an allegation or the name of any

party, OR -‐ By correcting a mistake in the name of a party or a

mistaken or inadequate allegation or description in any other respect,

so that the actual merits of the controversy may speedily be determined, without regard to technicalities, and in the most expeditious and inexpensive manner. Pleadings may be amended by:

1. Adding or striking out an allegation of a party; 2. Adding or striking out the name of a party; 3. Correcting a mistake in the name of a party; and 4. Correcting a mistake or inadequate allegation or

description in any other respect. Vlason Enterprises Corp v. CA: It is not the change of cause of action that gives rise to the need to serve another summons for the amended complaint, but rather the acquisition of jurisdiction over the persons of the defendants. (310 SCRA 26 (1999)) When the complaint is amended, 2 situations may arise: 1. If the complaint merely corrects or modifies the original

complaint, then the action is deemed commenced upon the fi l ing of the original complaint;

2. If the amended complaint alleges a new cause of action, then that cause of action is deemed commenced upon the fi l ing of the amended complaint.

Types of Amendments: 1. Amendment as a Matter of Right – The party has

the unconditional right to amend his pleading. The court has no right to prevent him for amending. The opposite party has no right to oppose the amendment (If the court refused to admit the amended pleading as a matter of right, it is correctible by mandamus)

2. Amendment as a Matter of Judicial Discretion – The court may or may not allow the amendment. The other party has the right to oppose. (Amendment by leave of court)

Sec. 2 . Amendments as a matter of right. 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 w/in 10 days after it is

served. Instances When Amendment is a Matter of Right 1. Amendment of complaint before an answer is filed 2. Amendment of answer before a reply is filed or before

the period for filing a reply expires 3. Amendment of reply at any time w/in 10 days after it is

served; and 4. Formal amendment Note: Sec. 2 refers to an amendment made before the trial court, not the CA. The CA is vested with jurisdiction to admit or deny amended petitions filed before it (Navarro v. Vda. De Taroma, 478 SCRA 336). Right to Amend as a Matter of Right: -‐ May be exercised only ONCE – Even if no responsive

pleading has been served, subsequent amendments must be with leave of court.

-‐ Even if the amendment is SUBSTANTIAL in nature, (new cause of action or change of theory) as long as it is made before a responsive pleading is served, it may be made as a matter of right.

Motion to Dismiss is NOT a Responsive Pleading -‐ A motion to dismiss is not a responsive pleading. As such,

an amendment AFTER the denial of a motion to dismiss is still considered as a matter of right. Hence, it may be done without leave of court as long as no answer has yet been served. (Paeste v. Jaurigue, 94 Phil 179)

-‐ Even if the MTD is granted by the court, the plaintiff may still amend as a matter of right before the dismissal becomes final as long as no answer has yet been served. (Bautista v. Maya Maya, 476 SCRA 416)

Amendment to Correct a Jurisdictional Defect 1. Before a responsive pleading is served, amendment is

a matter of right EVEN if it is to a correct a jurisdictional defect . • A pending motion to dismiss does not affect the right

of the plaintiff to amend his complaint as a matter of right because a MTD is not a responsive pleading. The courts should order the defendants to answer and the MTD should be dismissed.

2. After a responsive pleading is served, amendment may

only be done with leave of court. Amendment to correct a jurisdictional defect may NOT be done. • Amendment here requires the exercise of sound

judicial discretion. The court cannot grant the amendment, as such requires a positive act of the court. If it grants the amendment, it would be acting on a complaint upon which it has no jurisdiction. Its action would be one performed w/o jurisdiction.



• Here, the court must first acquire jurisdiction over the subject matter of the complaint in order to act validly on the same including its amendment.

Remedy for Refusal of the Court to Grant Amendment as a Matter of Right -‐ Error is correctible by MANDAMUS (Breslin v. Luzon Stevedoring, 84 Phil 618) -‐ Ratio: Court’s duty to admit an amended complaint

made as a matter of right is purely ministerial. Sec. 3 . Amendments by leave of court. GR: Substantial amendments may be made ONLY upon leave of court. EXC: As provided in the next preceding section, BUT such leave may be refused: IF it appears to the court that the motion was made with intent to delay. Orders of the court upon the matters provided in this section shall be made upon:

1. Motion filed in court, and 2. After notice to the adverse party, and 3. An opportunity to be heard.

When Leave of Court is Required: If the amendment is substantial; AND a responsive pleading had already been served. Ratio: After a responsive pleading is filed, an amendment to the complaint may be substantial as would require a substantial alteration in the defenses of the adverse party. The amendment of the complaint is not only unfair to the defendant but will cause unnecessary delay in the proceedings. Leave of court is thus, required. (Siasoco vs. CA, 303 SCRA 186). Instances When Amendment By Leave of Court May NOT Be Allowed: 1. Amendment is intended to confer jurisdiction to the

court; and 2. Amendment for purposes of delay. Sec. 4 . Formal amendments.

1. A defect in the designation of the parties and 2. Other clearly clerical or typographical errors

may be summarily corrected by the court: -‐ at any stage of the action, -‐ at its initiative OR on motion, -‐ PROVIDED no prejudice is caused thereby to the

adverse party.

Sec. 5 . Amendment to conform to or authorize presentation of evidence. When issues not raised by the pleadings are tried with the express or implied consent of the parties:

-‐ they shall be treated in all respects as if they had been raised in the pleadings.

Such amendment of the pleadings as may be necessary: 1. To cause them to conform to the evidence and 2. To raise these issues

may be made: UPON motion of any party AT any time, even after judgment; BUT failure to amend does not affect the result of the trial of these issues. IF evidence is objected to at the trial on the ground that it is not within the issues made by the pleadings, the court may:

-‐ allow the pleadings to be amended and -‐ shall do so with liberality if the presentation of the

merits of the action and the ends of substantial justice will be subserved thereby.

The court may grant a continuance to enable the amendment to be made. 1ST Part: Refers to amendment to conform to evidence when issues not raised by the pleadings are tried with the express or implied consent of the parties -‐ If during the course of the proceedings, evidence is

offered w/o objection, the defect in the complaint is cured by the evidence. The plaintiff may move for the amendment of his complaint to conform to the evidence, EVEN after judgment.

-‐ Implied Amendment: Even if the party fails to amend the pleadings, such failure will NOT affect the trial as such issues are “deemed” to have been raised.

No Amendment Where No Cause of Action Exists -‐ The curing effect of Section 5 Rule 10 is applicable ONLY

if a cause of action in fact exists at the time the complaint is filed, but the complaint is defective for failure to allege the essential facts. (Failure to state a cause of action) A complaint whose cause of action has NOT yet accrued during the filing of the pleading cannot be cured or remedied by an amended or supplemental pleading alleging the existence or accrual of a cause of action while the case is pending. Such an action is premature. (Ratio: There is no cause of action to cure) (Swagman Hotels & Travels, Inc., Apr 05).

2ND Part: Refers to amendment to authorize presentation of evidence if evidence is objected to at the trial on the ground that it is not within the issues made in the pleadings.



When evidence is offered on an issue NOT RAISED in the pleadings BUT an objection was interjected -‐ The court may nevertheless admit the evidence where

the objecting party fails to show that the admission of the evidence would prejudice him in his defense.

-‐ The court must grant him a continuance to enable him to meet the new situation.

Sec. 6 . Supplemental pleadings. Upon motion of a party the court may:

-‐ upon reasonable notice and upon such terms as are just,

-‐ permit him to serve a supplemental pleading setting forth transactions, occurrences or events which have happened since the date of the pleading sought to be supplemented.

The adverse party may plead thereto w/in 10 days from notice of the order admitting the supplemental pleading. Supplemental Pleadings, defined: One that sets forth transactions, occurrences, or events which have happened since the date of the filing of the complaint and which are material to the matured claims and/or defenses therein alleged. It is but a continuation of the complaint. No Supplemental Pleading Where No Cause of Action Exists -‐ A complaint whose cause of action has not accrued

cannot be cured or remedied by an amended or supplemental pleading. Alleging the existence or accrual of a cause of action while the case is pending. The action is prematurely brought. (Swagman Hotels & Travels, Inc., Apr 05)

-‐ A supplemental pleading only serves to bolster or add something to the primary pleading. It exists side by side and does not replace that which it supplements. Hence, a supplemental pleading assumes that the original pleading is to stand and the issues joined with the original pleading remained an issue to be tried in the action. (Young v. Spouses Sy, 503 SCRA 151)

Cause of Action in Supplemental Pleadings -‐ The cause of action stated in the supplemental complaint

must be the same as that stated in the original complaint, otherwise, the court should not admit the supplemental complaint. (Asset Privatization Trust v. CA, 229 SCRA 627(1994))

-‐ Ratio: Supplemental pleadings only supply deficiencies in aid of an original pleading and does NOT introduce new and independent causes of action. (Young v. Spouses Sy, 503 SCRA 151)

Answer to a Supplemental Pleading is NOT Mandatory – Sec 7 Rule 11 provides that the “answer to the original complaint serves as the answer to the supplemental complaint if no new or supplemental answer is filed.”

Amended Pleading Supplemental Pleading Refers to facts existing at the time of the commencement of

the action

Refers to facts arising after the filing of the original

pleading Takes the place of the original

pleading Taken together with the

original pleading Can be made as a matter of right as when no responsive pleading has yet been filed

Always with leave of court

When an amended pleading is filed, a new copy of the entire

pleading must be filed

A supplemental pleading does not require the filing of a new copy of the entire

pleading Sec. 7 . Fil ing of amended pleadings. When any pleading is amended, a new copy of the entire pleading, incorporating the amendments, which shall be indicated by appropriate marks, shall be fi led. Verzosa v. CA: An amendment which merely supplements and amplifies facts originally alleged in the complaint relates back to the date of the commencement of the action and is not barred by the statute of limitations which expired after service of the original complaint. (Nov, 98) Sec. 8 . Effect of amended pleadings. An amended pleading supersedes the pleading that it amends. HOWEVER: -‐ Admissions in superseded pleadings -‐ may be

received in evidence against the pleader; and -‐ Claims or defenses alleged therein not

incorporated in the amended pleading shall be deemed waived.

Versoza v. CA: The original action is deemed abandoned and superseded by the amended complaint only if the amended complaint introduces a new or different cause of action or demand. (299 SCRA 100 (1998)) Effect of the Amendment on Admissions Made in the Original Complaint -‐ Admissions made in the original pleadings cease to be

judicial admissions. (Ching v. CA, 331 SCRA 16) -‐ They are considered as extrajudicial admissions and

may be proved by the party relying thereon by formal offer in evidence.

Note: The amended or superseded, original pleading is not expunged but remains on the record although the admission of the amended pleading amounts to withdrawal of the original pleading. When Summons NOT Required AFTER Complaint is Amended-‐ It does not ipso facto follow that service of new summons is required. 1. If defendants already appeared by virtue of the

summons in the original complaint – no need for new summons The court’s jurisdiction continues until the case is finally terminated.



2. If defendants have not yet appeared in court OR new defendants are impleaded– new summons are required to be served.

RULE 11: WHEN TO FILE RESPONSIVE PLEADINGS

Sec. 1 . Answer to the complaint. The defendant shall file his answer to the complaint:

-‐ w/in 15 days after service of summons -‐ UNLESS a different period is fixed by the court.

Sec. 2 . Answer of a defendant foreign private juridical entity. Where: -‐ The defendant is a foreign private juridical entity AND -‐ Service of summons is made on the government official

designated by law to receive the same, the answer shall be fi led within 30 days after receipt of summons by such entity. Answer to a Complaint -‐ GR: W/in 15 days after service of summons, UNLESS a

different period is fixed by the court; -‐ Other Cases: 1. In case the defendant is a foreign private juridical entity:

a. If it has a resident agent – within 15 days after service of summons to him;

b. If it has no resident agent, but it has an agent or officer in the RP – within 15 days after service of summons to said agent or officer;

c. If it has no resident agent nor agent nor officer – in which case service of summons is to be made on the proper government office which will then send a copy by registered mail to the home office of the foreign private corporation within 30 days after receipt of summons by the home office of the foreign private entity.

2. In case of service of summons by publication – within the time specified in the order granting leave to serve summons by publication, which shall NOT be less than 60 days after notice (Rule 14, Section 15); and

3. In case of a non-‐resident defendant on whom extraterritorial service of summons is made – at least 60 days.

Note: The court may extend the time to file the pleadings but may not shorten them. (Except: In Quo Warranto Proceedings) Sec. 3 . Answer to amended complaint. Where the plaintiff files an amended complaint:

The defendant shall answer the same:

As a matter of right w/in 15 days after being served with a copy thereof.

Not as a matter of right

w/in 10 days from notice of the order admitting the same.

An answer earlier f i led may serve as the answer to the amended complaint IF no new answer is filed. This Rule shall apply to the answer to an:

-‐ amended counterclaim, amended cross-‐claim, amended third (fourth, etc.) party complaint, and amended complaint-‐in-‐intervention.

Note: It is the answer to the original pleading which shall be deemed as an answer to the amended pleading when no new answer is filed. Sec. 4 . Answer to counterclaim or cross-‐claim. -‐ A counterclaim or cross-‐claim must be answered within 10 days from service. Sec. 5 . Answer to third (fourth, etc.)-‐ party complaint. -‐ The time to answer a third (fourth, etc.)-‐ party complaint shall be governed by the same rule as the answer to the complaint . Note: The third party defendant is served with summons just like the original defendant, hence, he also has 15, 30, 60 days from service of summons, as the case may be, to file his answer. Sec. 6 . Reply. -‐ A reply may be filed within 10 days from service of the pleading responded to. Sec. 7 . Answer to supplemental complaint. A supplemental complaint may be answered:

-‐ within 10 days from notice of the order admitting the same,

-‐ UNLESS a different period is fixed by the court. The answer to the complaint:

-‐ shall serve as the answer to the supplemental complaint

-‐ IF no new OR supplemental answer is filed. • As in the case of the filing of an amended pleading with

leave of court, the filing of supplemental complaint requires leave of court.

• However, unlike in an amended complaint, the court may fix a different period for answering the supplemental complaint in lieu of the 10-‐day reglementary period.

Sec. 8 . Existing counterclaim or cross-‐claim. A compulsory counterclaim or a cross-‐claim that a defending party has at the time he files his answer shall be contained therein. Sec. 9 . Counterclaim or cross-‐claim arising after answer. A counterclaim or a cross-‐claim which either:

-‐ Matured or was acquired by a party AFTER serving his pleading

MAY, with the permission of the court: -‐ be presented as a counterclaim or a cross-‐claim by

supplemental pleading BEFORE judgment.



Sec. 10. Omitted counterclaim or cross-‐claim. When a pleader fails to set up a counterclaim or a cross-‐claim:

-‐ through oversight, inadvertence, or excusable neglect, OR

-‐ when justice requires, He MAY, by leave of court: set up the counterclaim or cross-‐claim by amendment BEFORE judgment. Sec. 11. Extension of t ime to plead. Upon motion AND on such terms as may be just,:

-‐ the court may extend the time to plead provided in these Rules.

-‐ The court may also, upon like terms, allow an answer or other pleading to be fi led AFTER the time fixed by these Rules.

Requisites for Extention:

1. There must be a MOTION; 2. With SERVICE of such motion to other party; and 3. On such terms as may be JUST.

RULE 12: BILL OF PARTICULARS

Sec 1. When applied for; purpose. BEFORE responding to a pleading, a party may move for: -‐ A definite statement OR for a bil l of particulars -‐ Of any matter which is not averred with sufficient

definiteness or particularity to enable him properly to prepare his responsive pleading.

IF the pleading is a reply: -‐ The motion must be filed w/in 10 days from service

thereof. -‐ Such motion shall point out:

a. The defects complained of, b. The paragraphs wherein they are contained, and c. The details desired.

Bil l of Particulars, defined: More definite statement of any matter which appears vague or obscure in a pleading. Note: A defendant need not file an answer if there are matters in the complaint, which are vague or ambiguous. Instead of an answer, the plaintiff may file a motion for bill of particulars. Note: As long as the allegations of a complaint make out a cause of action, the ambiguity or the failure to allege facts with sufficient particularity does not justify the filing of a motion to dismiss. Galeon v. Galeon: An action cannot be dismissed on the ground that the complaint is vague or indefinite. The remedy of the defendant is to move for a bill of particulars or avail of the proper mode of discovery. (60 SCRA 234 (1976))

Application: It must be made clear that a motion for bill of particulars is not directed only to a complaint. It is a motion that applies to any pleading which in the perception of the movant, contains ambiguous allegations.

When to File: Motion for bill of particulars must be filed within the reglementary period for the filing of a responsive pleading. -‐ It must be filed BEFORE and NOT AFTER the responsive

pleading. Hence, it must be filed within the period granted by the Rules (Rule 11).

-‐ The filing of a motion if sufficient in form and substance, will interrupt the time to plead.

Purpose of the Motion: -‐ To aid in the preparation of a responsive pleading and

NOT to enable one to prepare for trial. -‐ To clarify the allegations so that a party may be informed

with certainty the exact character of the cause of action or defense.

-‐ It is not proper for the order to disclose the evidentiary facts relied upon for his cause of action or defense.

-‐ Take note of Rule 8 regarding matters that need to be averred either generally or with particularity.

Note: Where the purpose is to enable one to prepare for trial, the appropriate remedy is to avail of the discovery procedures from Rule 23 to 39. Filipino Fabricator v. Magsino: The motion must comply with the requirements for motions under Sec 4, 5, and 6 of Rule 15. Otherwise the motion will not suspend the period to answer. (Jan 88) Sec. 2 . Action by the court. UPON the filing of the motion, the clerk of court must immediately bring it to the attention of the court which may either:

1. Deny or grant it outright, OR 2. Allow the parties the opportunity to be heard.

Sec. 3 . Compliance with order. IF the motion is granted, either in whole or in part, the compliance therewith:

-‐ must be effected within 10 days from notice of the order,

-‐ UNLESS a different period is fixed by the court. The bil l of particulars or a more definite statement ordered by the court may be fi led:

-‐ either in a separate OR in an amended pleading serving a copy thereof on the adverse party.

Grant of Motion: The motion for bill of particulars may be granted in whole or in part as not all the allegations questioned by the movant are necessarily ambiguous as to require clarification.



Sec. 4. Effect of non-‐compliance. IF:

1. The order is not obeyed, OR 2. In case of insufficient compliance therewith,

the court may order: 1. The striking out of the pleading OR the portions

thereof to which the order was directed OR 2. Make such other order as it deems just.

Effect of non-‐compliance A. If the order is not obeyed or in case of insufficient

compliance therewith, the court: 1. May order the striking out of the pleading or the

portion thereof to which the order is directed; or 2. Make such order as it may deem just.

B. If the plaintiff fails to obey, his complaint may be dismissed with prejudice UNLESS otherwise ordered by the court; (Sec. 4, Rule 12; Sec. 3, Rule 17)

C. If defendant fails to obey, his answer will be stricken off and his counterclaim dismissed, and he will be declared in default upon motion of the plaintiff. (Sec. 4, Rule 12; Sec. 4, Rule 17; Sec. 3, Rule 9)

Sec. 5 . Stay of period to fi le responsive pleading. 1. After service of the bill of particulars or of a more definite

pleading, OR 2. After notice of denial of his motion, the moving party may fi le his responsive pleading: -‐ w/in the period to which he was entitled at the time of

filing his motion, which SHALL NOT be less than 5 days in any event.

Note: A motion for bill of particulars is not a pleading, hence, not a responsive pleading. W/n the motion is granted, the movant may file his responsive pleading 1. If the motion is GRANTED, in whole or in part -‐ The

MOVANT can wait until the bill of particulars is served on him by the opposing party and then he will have the balance of the reglementary period within which to file his responsive pleading.

2. If his motion is DENIED, he will still have such balance of the reglementary period to file his responsive pleading; counted from service of the order denying his motion.

Note: In either case, he shall NOT have less than 5 days to file his responsive pleading. Sec. 6 . Bil l a part of pleading. A bill of particulars becomes part of the pleading for which it is intended.

RULE 13: FILING AND SERVICE OF PLEADINGS, JUDGMENTS AND OTHER PAPERS

Sec 1. Coverage. This Rule shall govern the fi l ing of all pleadings and other papers, AS WELL as the service thereof, EXCEPT those for which a different mode of service is prescribed. Sec. 2 . Fil ing and service, defined. Fil ing: is the act of presenting the pleading or other paper to the clerk of court. Service: is the act of providing a party with a copy of the pleading or paper concerned. IF any party has appeared by counsel: -‐ service upon him shall be made upon his counsel or one

of them, -‐ UNLESS service upon the party himself is ordered by the

court. Where one counsel appears for several parties, he shall ONLY be entitled to one copy of any paper served upon him by the opposite side. Significance of Fil ing of the Complaint -‐ Signifies the commencement of the civil action. (Rule 1

Sec 5) -‐ The court also acquires jurisdiction over the person of

the plaintiff. Submission to the jurisdiction of the court is implied from the filing of the complaint.

-‐ It also has the effect of tolling the running of the prescriptive period.

Upon Whom Service Shall be Made: 1. If party is NOT represented by counsel – Service must be

made on the party 2. If party is represented by counsel – Service must be made

upon his counsel. Where party is represented by more than one counsel of record, service of notice on any of the latter is sufficient.

-‐ GR: Notice given to a party who is represented by counsel is a nullity

-‐ EXC: Unless: 1. Service thereof on the party himself was ordered by

the court; or 2. When the technical defect in the manner of notice is

waived. (Heirs of Benjamin Mendoza v. CA, Sept 08) Note: Service upon the party’s counsel of record is tantamount to service upon the parties themselves, but service upon the parties themselves is not considered service upon their lawyers. Ratio: Parties generally are not formally educated or may not be aware of the rights and duties of a litigant. (De Los Santos v. Elizalde, Feb 07)



Filing of Pleadings Service of Pleadings Act of presenting the pleading or other paper to the clerk of court

Act providing a party with a copy of the pleading or paper concerned

1. Personally to the clerk of court; or

2. Sending them by registered mail

Judgment, pleadings and orders are served to counsel, EXCEPT: • When he has no counsel; • When counsel of record can’t be located; or

• When party himself is directed by court to show cause (e.g. contempt)

Sec. 3 . Manner of f i l ing. The fi l ing of pleadings, appearances, motions, notices, orders, judgments and all other papers shall be made by: (1) Presenting the original copies thereof, plainly indicated

as such, personally to the clerk of court (personal service) OR

(2) By sending them by registered mail . In the first case: -‐ the clerk of court shall endorse on the pleading the date

and hour of filing. In the second case: -‐ the date of the mailing of motions, pleadings, or any

other papers or payments or deposits, as shown by the post office stamp on the envelope or the registry receipt, shall be considered as the date of their f i l ing, payment, or deposit in court.

-‐ The envelope shall be attached to the record of the case. Manner of Fil ing: Personal Service OR Registered Mail

Fil ing by mail should be through the REGISTRY SERVICE which is made by deposit of the pleading in the post office, and not through other means of transmission. -‐ Ratio: Government postal service enjoys the

presumption of regularity -‐ Note: If registry service is not available in the locality of

either sender or addressee, service may be done by ORDINARY MAIL.

Benguet Electric Cooperative, Inc. v . NLRC: If a private carrier is availed of by the party, the date of actual receipt by the court of such pleading, and not the date of delivery to the private carrier, is deemed to be the date of the fi l ing of that pleading. (209 SCRA 55) Note: PERSONAL and SUBSTITUTED service as applied to pleadings have a different meaning compared to summons under Rule 14. Sec. 4 . Papers required to be fi led and served. Every: (PRAWN DOJOS)

1. Pleading subsequent to the complaint; 2. Resolution; 3. Appearance; 4. Written Motion; 5. Notice;

6. Demand; 7. Order; 8. Judgment; 9. Offer of judgment; or 10. Similar papers.

shall be filed with the court, and served upon the parties affected. Sec. 5 . Modes of service. Service of pleadings, motions, notices, orders, judgments and other papers shall be made: either personally OR by mail . 3 KINDS OF SERVICE: 1. Personal Service (Section 6) 2. Service by Mail (Section 7) 3. Substituted Service (Section 8) Service of Papers Service of Judgments, Final

Orders, Resolutions 1. Personal service; 2. Registered mail; or 3. Ordinary mail.

1. Personal service; 2. Registered mail; or 3. Publication.

Sec. 6 . Personal service. Service of the papers may be made by: 1. Delivering personally a copy to the party or his

counsel, or 2. By leaving it in his office with his clerk or with

a person having charge thereof. 3. IF:

a. No person is found in his office, OR b. His office is not known, OR c. He has no office,

then by leaving the copy, between the hours of 8 in the morning and 6 in the evening (8AM – 6PM): -‐ At: the party's or counsel's residence, if known, -‐ With: a person of sufficient age and discretion then

residing therein. Personal Service: Includes -‐ a. Delivering personally a copy to the party or his counsel

or; b. Leaving a copy in counsel’s office c. Leaving the copy at the party’s or counsel’s residence UNDER the terms provided above (Sec 6)

Sec. 7 . Service by mail . 1. Service by REGISTERED MAIL shall be made by: -‐ Depositing the copy:

a. In the office, in a sealed envelope, plainly addressed to the party or his counsel at his office, IF known,

b. Otherwise at his residence, if known, -‐ With postage fully pre-‐paid, AND -‐ With instructions to the postmaster to return the mail to

the sender after 10 days IF undelivered.



2. IF no registry service is available in the locality of either the sender or the addressee, service may be done by ORDINARY MAIL. Sec. 8 . Substituted service. If service of pleadings, motions, notices, resolutions, orders and other papers cannot be made under the 2 preceding sections, the office and place of residence of the party or his counsel being unknown, service may be made by:

-‐ delivering the copy to the clerk of court, -‐ with proof of failure of both personal service and

service by mail. The service is complete at the time of such delivery. Availed only: When there is failure to effect service personally or by mail. Complete When: At the time of delivery of the copy to the clerk of court. Sec. 9 . Service of judgments, f inal orders or resolutions. Judgments, final orders or resolutions shall be served either: 1. Personally OR 2. By registered mail . 3. When a party summoned by publication has failed to

appear in the action: -‐ judgments, final orders or resolutions against him shall

be served upon him also by publication -‐ at the expense of the prevailing party. Note: Service under this section can only be served under the three modes as provided above. They CANNOT be served by substituted service. Service by Publication: Only when defendant absconds and his address is unknown. Note: A resort to modes other than by personal service must be accompanied by a written explanation why the service or filing was not done personally (Sec. 11). Sec. 10. Completeness of service. Personal service is complete: upon ACTUAL delivery. 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: a. Upon actual receipt by the addressee, OR b. After 5 days from the date he received the first notice of

the postmaster, whichever date is earlier.

Note: Completeness begins the running of the period for filing of the responsive pleadings. Personal service is complete upon actual deliver, by: a. Handling a copy to defendant; or b. Tendering him copy if he refuses

Sec. 11. Priorities in modes of service and fi l ing. Whenever practicable, the service and filing of pleadings and other papers shall be done personally . -‐ GR: A resort to other modes must be accompanied by

a written explanation why the service or filing was not done personally.

-‐ EXC: With respect to papers emanating from the court A violation of this Rule MAY be cause to consider the paper as not filed. -‐ GR: Service is preferred to be made personally. -‐ EXC: Other modes may be resorted to provided it is

accompanied by a written explanation why service was not made personally.

-‐ Note: There is no need for said explanation in case of papers emanating from the court.

Marinduque Mining and Industrial Corporation : If no explanation is offered to justify resorting to the other modes, the discretionary power of the court to expunge the pleading comes into play. (Oct 08) Sec. 12. Proof of f i l ing. The filing of a pleading or paper shall be proved by: 1. Its existence in the record of the case.

2. IF it is not in the record, but is claimed to have been:

a. Filed personally, the filing shall be proved by: the written or stamped acknowledgment of its f i l ing by the clerk of court on a copy of the same;

b. IF filed by registered mail, by: i. The registry receipt AND ii. By the affidavit of the person who did the

mailing: • containing a full statement of the date and place

of depositing the mail in the post office in a sealed envelope addressed to the court,

• with postage fully prepaid, and • with instructions to the postmaster to return the

mail to the sender after 10 days if not delivered. Sec. 13. Proof of service. Proof of personal service shall consist of: 1. A written admission of the party served, OR 2. The official return of the server, OR 3. The affidavit of the party serving, containing a full

statement of the date, place and manner of service.



If the service is by ordinary mail, proof thereof shall consist of -‐ an affidavit of the person mailing of facts showing compliance with sec 7 of this Rule.

If service is made by registered mail, proof shall be made by: a. Such affidavit AND b. The registry receipt issued by the mailing office. • The registry return card OR • In lieu thereof the unclaimed letter together with the

certified or sworn copy of the notice given by the postmaster to the addressee.

shall be fi led immediately upon its receipt by the sender. Sec. 14. Notice of l is pendens. In an action affecting the tit le or the right of possession of real property, the plaintiff and the defendant, when affirmative relief is claimed in his answer, -‐ MAY record in the office of the registry of deeds of the

province in which the property is situated a notice of the pendency of the action.

Said notice shall contain:

1. The names of the parties AND 2. The object of the action or defense, AND 3. A description of the property in that province

affected thereby. ONLY from the time of f i l ing such notice for record shall: -‐ A purchaser, or encumbrancer of the property affected

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

The notice of l is pendens hereinabove mentioned may be cancelled: -‐ ONLY upon order of the court, -‐ AFTER proper showing that:

a. The notice is for the purpose of molesting the adverse party, OR

b. That it is not necessary to protect the rights of the party who caused it to be recorded.

Lis Pendens, defined: A notice of a pendency of the action between the parties involving title to or right of possession over real property. (Purpose: It serves as a warning to all persons, prospective purchasers or encumbrancers of the property in litigation as to the result of the proceedings) Requisites: 1. Action affects the TITLE or the right of possession of the

real property; 2. AFFIRMATIVE RELIEF is claimed; 3. NOTICE shall contain the name of the parties and the

object of the action or defense and a description of the property affected thereby; and

4. Action in rem. (AFP Mutual Benefit Association, Inc. v. CA, 327 SCRA 203 (2000))

Parties Who may Record Notice of Lis Pendens 1. Plaintiff 2. Defendant, when he claims an affirmative relief in his

answer. Note: Notice of lis pendens CANNOT be cancelled:

-‐ On an ex parte motion or -‐ Upon the mere filing of a bond by the party on whose

title the notice is annotated. AFP Mutual Benefit Association v. CA: A notice of lis pendens is not and cannot be sought as a principal action for relief. The notice is but an INCIDENT to an action. The notice of lis pendens is ordinarily recorded without the intervention of the court where the action is pending. (327 SCRA 203 (2000)) Sec 76 PD 1529: NO proceeding, judgment or action to: -‐ Recover possession of real estate; Quiet title or to remove

clouds upon title; Partition; or Other proceedings directly affecting the title to land or the use or occupation of the buildings

shall have any effect UNLESS: A memorandum or notice stating the: -‐ Institution of such action or proceeding; -‐ The court wherein the same is pending; -‐ The date of the institution; -‐ Reference to the number of the certificate of title -‐ An adequate description of the land affected and the -‐ Registered owner thereof, shall have been fi led and registered.

RULE 14: SUMMONS

Summons, defined: The writ by which the defendant is notified of the action brought against him. Issuance of Summons: Not discretionary on the part of the court or the clerk BUT is a mandatory requirement. -‐ Required even if the defendant is aware of the filing of

the action against him. (Habana v. Vamenta, 33 SCRA 569)

Purpose of Summons: A. Actions in Personam -‐

1. To acquire jurisdiction over the person of the defendant in a civil case; and

2. To give notice to the defendant that an action has been commenced against him (Right to due process).

B. Actions in Rem and Quasi in Rem -‐ Not to acquire jurisdiction over the defendant but mainly to satisfy the constitutional requirement of due process. Jurisdiction over the defendant is not required and the court acquires jurisdiction over the action as long as it acquires jurisdiction over the res.

Uniformity of Rules on Summons: Rules on summons shall apply with equal force in actions before the RTC, MTC, MCTC, MeTC. (Sec 1 Rule 5)



Effect of Non Service of Summons Unless the defendant voluntarily submits to the jurisdiction of the court, non-‐service or irregular service of summons renders NULL AND VOID all subsequent proceedings and issuances in the action from the order of default up to and including the judgment by default and the order of execution. Note: The non-‐service or invalidity of service of summons may be a ground for dismissal, for lack of jurisdiction over the person of the defending party. One Peng v. Custodio: Where the defendant has already been served with summons on the original complaint, no further summons is required on the amended complaint provided it does not introduce new causes of action. (1 SCRA 780 (1961))

Atkins v. Domingo: But where the defendant was declared in default on the original complaint and the plaintiff subsequently filed an amended complaint, new summons must be served on the defendant on the amended complaint, as the original complaint was deemed withdrawn upon such amendment. (44 Phil 680 (1923)) Summons When Additional Defendant is Joined -‐ GR: When an additional defendant is joined, summons

must be served upon him. -‐ EXC:

1. When the administrator of a deceased party defendant substitutes the deceased;

2. Where upon the death of the original defendant his infant heirs are made parties; and

3. In cases of substitution of the deceased under Section16 of Rule 3.

Note: In these instances, the service of the order of substitution is sufficient.

Sec 1. Clerk to issue summons. UPON the fi l ing of the complaint AND the payment of the requisite legal fees,

-‐ the clerk of court shall forthwith issue the corresponding summons to the defendants.

Sec. 2 . Contents. The summons shall be: -‐ Directed to: the defendant, -‐ Signed by: the clerk of court under seal, and -‐ Contain: (a) The name of the court and the names of the parties to

the action; (b) A direction that the defendant answer within the time

fixed by these Rules; (c) A notice that UNLESS the defendant so answers:

-‐ plaintiff will take judgment by default and -‐ may be granted the relief applied for.

A copy of the complaint and order for appointment of guardian ad litem, if any, shall be ATTACHED to the original and each copy of the summons.

Service of summons w/o copy of the complaint: Service is defective and the defendant should seasonably challenge the court’s jurisdiction, otherwise, the defect would be waived. (Pagalaran v. Bal-‐latan, 13 Phil 135 [1905]) Sec. 3 . By whom served. The summons may be served by:

1. The sheriff, 2. His deputy, OR 3. Other proper court officer, OR 4. For justifiable reasons by any suitable person

authorized by the court issuing the summons. Note: Enumeration is EXCLUSIVE. Sec. 4 . Return. When the service has been completed, the server shall:

-‐ Within 5 days therefrom, -‐ Serve a copy of the return, personally OR by

registered mail, to the plaintiff's counsel, AND -‐ Shall return the summons to the clerk who issued

it, accompanied by proof of service. Duty of the Server Upon Completion of Service

1. Server w/in 5 days from completion of service of summons shall serve a copy of the return, accompanied by proof of service (Sec 4 Rule 14)

2. After completion of service, proof of service is required to be filed by the server of the summons. (See Sec 18 Rule 14)

Sec. 5 . Issuance of alias summons. IF a summons is returned without being served on any or all of the defendants, the server shall also:

-‐ serve a copy of the return on the plaintiff's counsel, -‐ stating the reasons for the failure of service, -‐ within 5 days therefrom.

In such a case, OR if the summons has been lost:

-‐ the clerk , on demand of the plaintiff, may issue an alias summons.

Alias Summons, defined: Summons issued when the original has not produced its effect because of a defect in form or in the manner of service, and when issued, supersedes the first writ. RECAP: ACQUISITION OF JURISDICTION OVER THE PERSON OF THE DEFEDNDANT -‐ Acquiring jurisdiction over the person of the defendant is

mandatory in an action in personam. -‐ Jurisdiction over the person is acquired either by:

1. Valid service of summons 2. Voluntary appearance.

-‐ Rule on service of summons must be strictly followed in order that the court may acquire jurisdiction over the person



MODES OF SERVICE OF SUMMONS 1. Service in Person on Defendant (Sec 6) 2. Substituted Service (Sec 7) 3. Publication (Sec 14)

Sec. 6 . Service in person on defendant. Whenever practicable, the summons shall be served:

1. By handing a copy thereof to the defendant in person, OR,

2. IF he refuses to receive and sign for it by tendering it to him.

Notes: -‐ In an action strictly in personam, service in person on the

defendant is the preferred mode of service. -‐ Service is made by the two methods provided above When Substituted Service May be Done Instead: -‐ ONLY when defendant cannot served within reasonable

time may substituted service under Section 7 may be availed of.

-‐ The sheriff or server must first exert all efforts to serve the defendant in person. If this effort fails, then substituted service can be made.

Sec. 7 . Substituted service. IF, for justifiable causes, the defendant cannot be served within a reasonable time as provided in the preceding section, service may be effected: (a) By leaving copies of the summons at the defendant's

residence with some person of suitable age and discretion then residing therein, or

(b) By leaving the copies at defendant's office or regular place of business with some competent person in charge thereof.

For substituted service of summons to be valid, it is necessary to establish the following: (What Proof of Service of Summons Must Indicate) -‐ -‐ The impossibility of the personal service of summons

within a reasonable time; -‐ The efforts exerted to locate the person to be served; and -‐ Service upon a person of sufficient age and discretion

residing in the same place as defendant OR some competent person in charge of his office or regular place of business.

Reasonable Time, defined: -‐ A period of time longer than that demarcated by the word

“prompt” and presupposes that a prior attempt at personal service had failed

-‐ So much time as is necessary under the circumstances for a reasonably prudent and diligent man to do what is required. One month from issuance of summons can be considered reasonable time (Manotoc v. CA,499 SCRA 21)

Duty of the Sheriff (Manotoc v. CA,499 SCRA 21) -‐ For substituted service to be available, there must be

several attempts by the sheriff to personally serve the summons w/in a reasonable period

-‐ “Several Attempts” means at least 3 tries preferably on at least two different dates.

-‐ Sheriff must cite in the return the details of the facts and circumstances surrounding the attempted personal service and why such service was unsuccessful. (e.g. date/time of attempts, inquiries made, name of occupants, etc.)

-‐ Impossibility of prompt service must be shown -‐ A general claim that server made “several attempts” w/o

making reference to the details, does not comply with the rules on substituted service.

Resident Temporarily Out of the Country: Although Sec 16 provides for extraterritorial service to apply in this situation, substituted service may also be made. A resident temporarily out of the country cannot be expected to be served within reasonable time. Also, considering that he has a place of residence where he is bound to return and leaves his affairs to someone who protects his interest – substituted service may be done. (Riano) Spouses Ventura v. CA: In substituted service, the sheriff’s return must show that an effort or attempt was exerted to personally serve the summons on the defendant and that the same had failed. (Dec, 87) Mapa v. CA: The absence in the sheriff’s return of a statement about the impossibility of personal service does not conclusively presume that the service is invalid. Proof of prior attempts at personal service may be submitted by the plaintiff during the hearing of any incident assailing the validity of the substituted service. (214 SCRA 417 (1993)) “A Person of Suitable Age or Discretion” – One who has attained the full age of full legal capacity (18yrs of age) and is considered to have enough discernment to understand the importance of summons. (Manotoc v. CA,499 SCRA 21) -‐ Thus, the person must have a “relation of

confidence” to the defendant, ensuring that the latter would receive or at least be notified of the receipt of summons.

-‐ Such details must be specifically described in the return “Person in Charge” – Must have sufficient knowledge to understand the obligation of the defendant in the summons. (Manotoc v. CA,499 SCRA 21) -‐ It is not necessary that the person is specifically

authorized to receive summons. It is enough that he appears to be in charge. (Guanzon v. Arradaza, 510 SCRA 309)

-‐ Such details must be specifically described in the return



Strict Compliance with Rules -‐ GR: The failure to accomplish faithfully, strict and fully

with all the foregoing requirements renders the summons ineffective. (Jose v. Boyon, 414 SCRA 216)

-‐ EXC: When the defendant prevents service of summons (ex. preventing entry in compound), it is the spirit rather than the letter of the procedural rules that governs. Depending on the circumstances of the case, strict compliance with the rules may be dispensed with. (Robinson v. Millares, 510 SCRA 678)

Effects of Ineffective Service of Summons: 1. Period to file a motion to dismiss for lack of jurisdiction

over the defendant does not commence to run 2. The court acquires no jurisdiction over the person of the

defendant

Effect of Valid Service of Summons: Where substituted service has been VALIDLY served, its validity is not affected by the defendant’s failure to actually receive the summons. Sec. 8 . Service upon entity without juridical personality. When persons associated in an entity without juridical personality are sued under the name by which they are generally or commonly known, service may be effected upon all the defendants by:

1. Serving upon any one of them, OR 2. Upon the person in charge of the office or place of

business maintained in such name. But such service SHALL NOT bind individually any person whose connection with the entity has:

-‐ upon due notice, -‐ been severed BEFORE the action was brought.

Sec. 9 . Service upon prisoners. When the defendant is a prisoner confined in a jail or institution, service shall be effected upon him:

-‐ by the officer having the management of such jail or institution who is deemed deputized as a special sheriff for said purpose.

Note: Service in this case is made to the warden. Sec. 10. Service upon minors and incompetents. When the defendant is a minor, insane or otherwise an incompetent, service shall be made upon him:

1. Personally AND 2. On his legal guardian if he has one, OR if none, upon

his guardian ad litem whose appointment shall be applied for by the plaintiff.

In the case of a minor, service MAY ALSO be made -‐ on his father or mother. In case of minors : By serving upon the minor regardless of age AND upon his legal guardian, or also upon either of his parents.

In case of incompetents : By serving on him personally AND upon his legal guardian, BUT NOT upon his parents, unless they are his legal guardians. Note: In any event, if the minor or incompetent has no legal guardian, the plaintiff must obtain the appointment of a guardian ad litem for him. Sec. 11. Service upon domestic private juridical entity. When the defendant is a corporation, partnership or association organized under the laws of the RP with a juridical personality, service may be made on:

-‐ the president, managing partner, general manager, corporate secretary, treasurer, or in-‐house counsel.

Old Rule: Allowed substantial compliance where summons served on an agent was allowed. New Rule: Strict Compliance Rule -‐ Service upon a person other than those mentioned is invalid and does not bind the corporation. The enumeration is EXCLUSIVE.

-‐ Following the principle of “Expressio unius est exclusio alterius”

-‐ Ratio: To reasonably ascertain that the corporation will receive prompt and proper notice in an action.

Summons on the ff Persons are Not Allowed: Branch manager, secretary of the corporate president. Sec. 12. Service upon foreign private juridical entity. When the defendant is a foreign private juridical entity which has transacted business in the RP, service may be made on its:

1 . Resident agent designated in accordance with law for that purpose, OR,

2 . IF there be no such agent,: a. On the government official designated by law to

that effect, OR b. On any of its officers or agents within the RP.

Note: It has been held that when a foreign corporation has designated a person to receive summons on its behalf pursuant to the Corp Code, that designation is exclusive and service of summons on any other person is inefficacious. (H.B. Zachry Company Int v. CA, 232 SCRA 329) Sec. 13. Service upon public corporations. When the defendant is the Republic of the Philippines, service may be effected on:

-‐ the Solicitor General; In case of a province, city or municipality, or l ike public corporations, service may be effected on:

1. Its executive head, OR 2. On such other officer or officers as the law or the

court may direct.



SUMMARY: Service of Summons on Different Entities

Entity Summons Made on: Service on entity w/o juridical personality (Sec 8)

Upon any or all defendants being sued under common name; or person in charge of office

Service upon prisoner (Sec 9)

Serve on officer having management of the jail or prison (Warden)

Service upon minors and incompetents (Sec 10)

In case of minors: by serving upon the minor, regardless of age, AND upon his legal guardian, or also upon either of his parents. In case of incompetents: by serving on him personally AND upon his legal guardian, but not upon his parents, unless when they are his legal guardians

Service upon domestic private juridical entity

ENTITY (Sec 11)

To the president, managing partner, general manager, corporate secretary, treasurer, or in-‐house counsel.

Service upon foreign private juridical entity

(Sec 12)

Serve on resident agent ; or if none; on gov’t official designated by law; or on any officer or agent of the corporation within the RP.

Service upon public

corporations (Sec 13)

In case defendant is the Republic of the RP-‐ by serving upon the Solicitor General In case of a province, city or municipality, or like public corporations – by serving on its executive head, or on such other officer or officers as the law or the court may direct.

Publication as a Mode of Service 1. Non-‐resident Defendant: When the defendant is a

nonresident, personal service of summons within the state is essential to the acquisition of jurisdiction over him. Summons by publication against a non-‐resident in an action in personam is not a proper mode of service.

2. Resident Defendant: -‐ GR: Summons by publication against a non-‐resident

in an action in personam is not a proper mode of service.

-‐ EXC: a. Resident temporarily out of the RP (Sec 16) b. Service upon defendant whose identity or

whereabouts are unknown

Sec. 14. Service upon defendant whose identity or whereabouts are unknown. In any action where the defendant is:

1. Designated as an unknown owner, or the like, OR 2. Whenever his whereabouts are unknown and cannot

be ascertained by diligent inquiry, service may, by leave of court, be effected upon him by:

-‐ publication in a newspaper of general circulation and in such places and for such time as the court may order.

Requisites: 1. Involves any action (in personam, in rem, quasi in rem) 2. Defendant’s identity and whereabouts are UNKNOWN

and CANNOT BE ASCERTAINED by diligent inquiry; and 3. There must be LEAVE OF COURT. Old Rule: The action must be either be an action in rem or quasi in rem so that service may be made by publication. New Rule: Summons by way of publication may with leave of court be availed of where the defendant involved in ANY ACTION (in rem, quasi in rem and in personam) is designated as an unknown owner or whenever his whereabouts are unknown and cannot be ascertained. Santos v. PNOCC: The SC held that the in rem/in personam distinction was significant under the old rule because it was silent as to the kind of action to which the rule was applicable. Because of this silence, the court limited the application of the old rule to in rem actions only. This has been CHANGED. The present rule expressly states that this provision applies to ANY ACTION where the defendant is designated as unknown owner, or the like, or whenever his whereabouts are unknown and cannot be ascertained by diligent inquiry. This now applies to any action, whether in personam, in rem or quasi in rem. (Sept 08) Maximo v. Maximo: Summons is validly served if it is left with some person of suitable age and discretion then residing in the defendant’s residence, even if defendant was abroad at that time. The fact that the defendant did not actually receive the summons did not invalidate the service (March, 68). Sec. 15. Extraterritorial service. When the defendant:

-‐ does not reside and is not found in the RP, AND the action affects:

1. The personal status of the plaintiff or relates to, OR 2. The subject of which is, property within the RP, in

which the defendant has or claims a lien or interest, actual or contingent, OR

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

4. The property of the defendant has been attached within the RP,



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

-‐ Personal service as under section 6; 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 defendant, OR

-‐ In any other manner the court may deem sufficient.

Any order granting such leave shall : -‐ specify a reasonable time, -‐ which shall not be less than 60 days after notice,

within which the defendant must answer. Extraterritorial Service Requisites 1. Defendant does NOT RESIDE or is NOT FOUND in the RP; 2. The action must be an action IN REM or QUASI IN REM. It

either: a. Affects the PERSONAL STATUS of plaintiff; b. Relates to the subject which is property within the

RP in which defendant has a LIEN or interest; c. Demands a relief which consists wholly or in part in

EXCLUDING the defendant from any interest in any property within the RP; or

d. Property of defendant has been ATTACHED in the RP.

3. Mode of Service a. With leave of court, serve outside the RP by personal

service; b. With leave of court, serve by publication in a

newspaper of general circulation, in which case, copy of the summons and order of court must also be sent by registered mail to the last known address of defendant; or

c. Any other manner the court may deem sufficient. Banco Espanol Fil ipino v. Palanca: Personal service using the procedure in Sec 6 of Rule 14 will not have the effect of acquiring jurisdiction over the nonresident defendant even if the summons and the copy of the complaint are personally received by him in the country where he may be found. A nonresident defendant who refuses to come to the country voluntarily remains beyond the personal processes of the court which cannot acquire jurisdiction over him. (37 Phil 921) It must comply with all the requisites of Sec 15 first. Extraterritorial Service of Summons Under Rule 15 Does not Apply:

1. In actions in personam 2. When the defendant is a resident of the RP

Underlying Purpose of Extraterritorial Service: Compliance with due process

Example of “In any other manner the court may deem sufficient” – In Gemperle v. Shchenker, it was held that service on the wife of a nonresident defendant was found sufficient because the defendant had appointed his wife as his attorney-‐in-‐fact. It was held that although defendant was a Swiss citizen and resident of Switzerland, service of summons upon his wife who was in the Philippines was sufficient because she was her husband's representative and attorney-‐in-‐fact in a civil case, which he had earlier filed. In other words, Mrs. Schenker had authority to sue, and had actually sued, on behalf of her husband, so that she was, also, empowered to represent him in suits filed against him, particularly in a case, like the one at bar, which is a consequence of the action brought by her on his behalf. (125 Phil 458) Sec. 16. Residents temporarily out of the Philippines. When any action is commenced against a defendant:

1. Who ordinarily resides within the RP, 2. BUT who is temporarily out of it,

service may, by leave of court, be also effected out of the RP, as under the preceding section. Note: Like in the case of an unknown defendant or one whose whereabouts are unknown, the rule affecting residents who are temporarily out of the RP applies in ANY action. Comment Riano: This provision is superfluous since a resident defendant temporarily out of the RP may still be served through substituted service under Sec 15 Rule 14. (Motalban v. Maximo, 22 SCRA 1070)

Summary of Service of Summons

ACTION SERVICE OF SUMMONS Resident but identity or whereabouts unknown

(Sec 14) Any action

With leave of court, by publication in a newspaper of general circulation.

Not a resident and is not found in the RP (Sec 15)

In Rem or quasi in rem

Extraterritorial Service: 1. With leave of court serve outside the RP

by personal service; or 2. With leave of court serve by

publication in a newspaper of general circulation in which case copy of the summons and order of court must also be sent by registered mail to the last known address of the defendant, or

3. Any other manner the court deem sufficient

Resident temporarily out of the RP (Sec 16)

Any action

Substituted service or with leave of court, personal service out of the RP as under extraterritorial service.



Summons When Complaint is Amended (Recap) -‐ When the defendants have already appeared in court by

reason of summons validly served or by reason of voluntary appearance – Jurisdiction continues as to them. No need for new summons to be served.

-‐ When defendants have not yet appeared nor summons validly served in the original complaint – New summons must be served to acquire jurisdiction as to them.

Sec. 17. Leave of court. Any application to the court under this Rule for leave to effect service in any manner for which leave of court is necessary shall be made by:

1. Motion in writing, 2. Supported by affidavit of the plaintiff or some person

on his behalf, setting forth the grounds for the application.

Sec. 18. Proof of service. The proof of service of a summons shall be made: -‐ In writing by the server and -‐ Shall set forth: the manner, place, and date of service; -‐ Shall specify any:

a. Papers which have been served with the process and b. The name of the person who received the same; and

-‐ Shall be sworn to when made by a person other than a sheriff or his deputy.

Sec. 19. Proof of service by publication. If the service has been made by publication, service may be proved: 1. By the affidavit of: The printer, his foreman or principal

clerk, or of the editor, business or advertising manager, to which affidavit a copy of the publication shall be attached, AND

2. By an affidavit showing: The deposit of a copy of the summons and order for publication in the post office, postage prepaid, directed to the defendant by registered mail to his last known address.

Sec. 20. Voluntary appearance. The defendant's voluntary appearance in the action SHALL be equivalent to service of 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. Note: Any form of appearance in court, by the defendant, his agent authorized to do so, or his attorney, is equivalent to service of summons EXCEPT where such appearance is precisely to object to the jurisdiction of the court over the person of the defendant.

RULE 15: MOTIONS

Sec 1. Motion defined. -‐ A motion is an application for relief other than by a pleading. Note: A motion is not a pleading. Kinds of Motion 1. Motion EX PARTE – Made without the presence or

notification to the other party because the question generally presented is not debatable.

2. Motion OF COURSE – Where the movant is entitled to the relief or remedy sought as a matter of discretion on the part of the court.

3. LITIGATED motion – One made with notice to the adverse party to give an opportunity to oppose.

4. SPECIAL motion – Motion addressed to the discretion of the court.

GR: A motion cannot pray for judgment. EXC: 1. Motion for judgment on the pleadings; 2. Motion for summary judgment; or 3. Motion for judgment on demurrer to evidence. Sec. 2 . Motions must be in writing. GR: All motions shall be in writing EXC: Those made in open court OR in the course of a hearing or trial. Sec. 3 . Contents. A motion shall state:

1. The relief sought to be obtained and 2. The grounds upon which it is based, AND 3. IF: required by these Rules OR necessary to prove

facts alleged therein, shall be accompanied by supporting affidavits and other papers.

Sec. 4 . Hearing of motion. -‐ EXC: Except for motions which the court may act upon

without prejudicing the rights of the adverse party, -‐ GR: Every written motion shall be set for

hearing by the applicant. Every written motion required to be heard AND the notice of the hearing thereof shall:

-‐ be served in such a manner as to ensure its receipt by the other party

-‐ at least 3 days before the date of hearing, -‐ UNLESS the court for good cause sets the hearing on shorter notice.



Hearing of Motion -‐ GR: Every written motion shall be set for hearing. (Hence, every motion is deemed a Litigated Motion) e.g. motion to dismiss, motion for judgment on the pleadings, motion for summary judgment

-‐ EXC: Hearing requirements do not cover motions which the court may act upon without prejudicing the rights of the adverse party. (Ex parte motion) e.g. motion to set pre trial, motion for extension of time.

Note: Ex parte motions are frequently permissible in procedural matters, and also in situations and under circumstances of emergency or delay. 3-‐DAY NOTICE RULE -‐ GR: Service of the copy of motions should be made in such a manner as shall ensure its receipt at least 3 days before the hearing.

-‐ EXC: 1. Ex parte motions 2. Urgent motions 3. Motions agreed upon by the parties to be heard on

shorter notice or jointly submitted by the parties, and

4. Motions for summary judgment which must be served at least 10 days before its hearing

5. Non-‐litigated motions. Sec. 5 . Notice of hearing. The notice of hearing shall be:

1. Addressed to all parties concerned, AND 2. Shall specify the time and date of the hearing which

MUST NOT be later than 10 days after the filing of the motion.

Sec. 6 . Proof of service necessary. – NO written motion set for hearing shall be acted upon by the court without proof of service thereof. Note: Hence, the motion set for hearing must be served upon the other party. Non-‐Compliance with Section 4, 5, 6 -‐ Any motion that does not comply with Sections 4, 5 and 6 of this Rule is a mere scrap of paper, which the clerk of court has no right to receive and the trial court has no authority to act upon. It renders the motion fatally defective. (Vette Industrial Sales v. Cheng, Dec 06)

-‐ Also, it does not interrupt the reglementary period for the filing of the requisite pleading. (Cruz v CA, 388 SCRA 72)

-‐ Considered pro forma and thus, will be marked as one filed merely to delay the proceedings. (Marikina Development Corp v. Flojo 251 SCRA 87)

Summary of Requisites of a Motion Not Made in Open Court or in the Course of Hearing or Trial:

1. It must be in WRITING; 2. HEARING OF MOTION set by the applicant; 3. NOTICE OF HEARING shall be addressed to all

parties concerned. (Section 5); 4. Motion and notice of hearing must be served at least

3 DAYS BEFORE THE DATE OF HEARING (Section 4); and

5. PROOF OF SERVICE (Section 6). Sec. 7 . Motion day. GR: All motions shall be scheduled for hearing:

-‐ On Friday afternoons, OR -‐ IF Friday is a non-‐working day, in the afternoon of the next working day.

EXC: For motions requiring immediate action. Note: There is no motion day in the Supreme Court. Sec. 8 . Omnibus motion. SUBJECT to the provisions of section 1 of Rule 9, a motion attacking a pleading, order, judgment, or proceeding shall:

-‐ include all objections then available, AND -‐ all objections not so included shall be deemed waived.

Omnibus Motion Rule: -‐ GR: A motion attacking a pleading, order judgment or

proceeding (e.g. motion to dismiss) shall include all objections then available. Objections not included shall be deemed waived

-‐ EXC: (not waived even if not raised): 1. Lack of jurisdiction over the subject matter; 2. Litis pendentia; 3. Res judicata; or 4. Prescription of the action.

Riano Il lustration: A motion to dismiss must invoke all objections available at the time of the filing of said motion, otherwise, it is deemed waived. It can no longer be invoked as an affirmative defense in the answer which the movant may file following the denial of his motion to dismiss. Sec. 9 . Motion for leave. A motion for leave to file a pleading or motion:

-‐ shall be accompanied by the pleading or motion sought to be admitted.

Sec. 10. Form. The Rules applicable to pleadings shall apply to:

-‐ written motions so far as concerns caption, designation, signature, and other matters of form.



RULE 16: MOTION TO DISMISS

Sec 1. Grounds. WITHIN the time for but BEFORE fi l ing the answer to the complaint OR pleading asserting a claim, -‐ a motion to dismiss may be made on any of the following grounds: (a) That the court has no jurisdiction over the person

of the defending party; (b) That the court has no jurisdiction over the subject

matter of the claim; (c) That venue is improperly laid; (d) That the plaintiff has no legal capacity to sue; (e) That there is another action pending between the

same parties for the same cause; (f) That the cause of action is barred by a prior

judgment or by the statute of l imitations; (g) That the pleading asserting the claim states no cause

of action; (h) That the claim or demand set forth in the plaintiff's

pleading has been paid, waived, abandoned, or otherwise extinguished;

(i) That the claim on which the action is founded is unenforceable under the provisions of the statute of frauds; and

(j) That a condition precedent for f i l ing the claim has not been complied with.

A motion to dismiss (MTD) is NOT a pleading. It is merely a motion. GR: A court may not motu propio dismiss a case unless a motion to that effect is filed by a party. EXC: 1. Those cases where the court may dismiss a case motu

proprio (Sec. 1, Rule 9); (No jurisdiction over the subject matter, litis pendentia, res judicata, prescription)

2. Failure to Prosecute (Sec. 3, Rule 17); or 3. Rule on Summary Procedure (Section 4, 1991 Revised

Rule on Summary Procedure). Types of Dismissal of Action

1. Motion to dismiss before answer under Rule 16; 2. Motion to dismiss under Rule 17;

§ Upon notice by plaintiff; § Upon motion by plaintiff; or § Due to fault of plaintiff.

3. Motion to dismiss called a demurrer to evidence after plaintiff has completed the presentation of his evidence under Rule 33; or

4. Dismissal of an appeal. Hypothetical Admissions of a Motion to Dismiss

-‐ A motion to dismiss generally partakes the nature of a demurrer. It hypothetically admits the allegations stated in the complaint.

-‐ However, the admission extends ONLY to material and relevant allegations, not conclusions.

-‐ This rule does NOT apply where the motion to dismiss is based on lack of jurisdiction, improper venue, lack of capacity to sue, litis pendentia, res judicata or prescription.

Grounds: JJVC SLLURPP

1. No Jurisdiction over the person of the defending party;

2. No Jurisdiction over the subject matter of the calm; 3. Improper Venue; 4. Non-‐compliance with a Condition precedent for

filing a claim. 5. Failure to State a cause of action; 6. Litis pendentia; 7. No Legal capacity to sue; 8. Claim is Unenforceable under the Statute of Frauds;

and 9. Res judicata; 10. Prescription; 11. Paid, abandoned, waived, or otherwise extinguished

claim or demand. Contents and Form of Motion to Dismiss (Recap) 1. MTD shall state the relief sought and the grounds upon

which it is based and shall be accompanied by supporting affidavits. (Sec 3 Rule 15)

2. MTD shall be set for hearing and shall contain a notice of hearing according to Sec 15 (Notice requirement is mandatory)

Time to File the Motion: -‐ GR: Within the time for filing the answer -‐ EXC: MTD may still be filed even after the answer is filed on the following grounds: (Lack of jurisdiction over the subject matter, litis pendentia, res judicata, prescription)

Motion to Dismiss under

Rule 16 Motion to Dismiss under

Rule 33 (demurrer to evidence)

Grounded on preliminary objections

Based on insufficiency of evidence

May be filed by any defending party against

whom a claim is asserted in the action

May be filed only by the defendant against the

complaint of the plaintiff

Should be filed within the time for but prior to the filing

of the answer of the defending party to the

pleading asserting the claim against him

May be filed only after the plaintiff has completed the presentation of his evidence

• If denied: Defendant answers, or else he may be declared in default.

• If granted: Plaintiff may appeal or if subsequent case is not barred, he may re-‐file the case

• If denied: Defendant may present evidence

• If granted, plaintiff appeals and the order of the dismissal is reversed: Defendant loses his right to present evidence



GROUND: Litis Pendentia Requisites :

1. IDENTITY OF PARTIES or at least such parties representing the same interests in both actions;

2. There is SUBSTANTIAL IDENTITY IN THE CAUSE OF ACTION AND RELIEF sought, the relief being founded on the same facts; and

3. The identity in the two cases should be such that any judgment that may be rendered in one, regardless of which party is successful, would amount to RES JUDICATA in the other case.

Note: Motion to dismiss may be filed in either suit, not necessarily in the one instituted first. GROUND: Res Judicata This ground for dismissal is based on 2 grounds: 1. Public policy and necessity, which makes it to the

interest of the state that there should be an end to litigation

2. The hardship of being vexed twice for the same cause.

Requisites : 1. PREVIOUS FINAL JUDGMENT; 2. JURISDICTION over the subject matter and the parties by

the court rendering it; 3. JUDGMENT UPON THE MERITS; and 4. There must be IDENTITY of parties, of subject matter and

of cause of action between the first and second actions. Note: Requisites does not require absolute identity of parties but merely substantial identity (privity or community of interest) of parties. Note: Rule on res judicata applies as well to judicial and quasi-‐judicial acts of public, executive or administrative officers and boards acting within their jurisdiction as to the judgments of courts having general judicial powers. Res Judicata Comprehends 2 Distinct Concepts: 1. Bar by a former judgment – Bars the prosecution of a

second action upon the same claim, demand or cause of action

2. Conclusiveness of judgment -‐ Issues resolved in a former suit is conclusive as to the parties in that actions and persons in privity with them while the judgment remains unreversed by proper authority.

Note: There could be res judicata without a trial, such as in a judgment on the pleadings (Rule 34), a summary judgment (Rule 35), or an order of dismissal under Section 3 of Rule 17. Res Judicata in Criminal Proceedings: Res judicata is a concept of civil law and thus has no bearing in criminal proceedings. Double jeopardy requires different elements.

GROUND: Failure to State a Cause of Action -‐ When the ground for dismissal is that the complaint states no cause of action, such fact can be determined only from the facts alleged in the complaint.

-‐ Where the plaintiff has not exhausted all administrative remedies, the complaint not having alleged the fact of such exhaustion, the same may be dismissed for failure to state a cause of action.

-‐ Failure to STATE a cause of action and NOT LACK OR ABSENCE of cause of action is the ground for a motion to dismiss. The former means there is insufficiency in the allegations in the pleading. The latter means that there is insufficiency in the factual basis of the action.

Note: An action cannot be dismissed on the ground that the complaint is vague or indefinite. The remedy of the defendant is to move for a bill of particulars or avail of the proper mode of discovery. GROUND: Prescription A motion to dismiss on the ground of prescription will be given due course only if the complaint shows on its face that the action has already prescribed.

Prescription Laches Concerned with the fact of

delay Concerned with the effect of

delay A matter of time A matter of equity

Statutory Non-‐statutory Applies at law Applies in equity

Based on fixed time Not based on fixed time GROUND: That the claim or demand set forth in the plaintiff's pleading has been paid, waived, abandoned, or otherwise extinguished: Laches as a Ground for a Motion to Dismiss -‐ The ground of “paid, waived, abandoned and otherwise extinguished” is broad enough to include within its ambit the defense of bar by laches.

-‐ Here, the court must set a hearing on the motion where the parties shall submit not only their arguments on the questions of law but also their evidence on the questions of fact involved.

-‐ Being factual in nature, the elements of laches must be proved through the presentation of evidence. (Pineda v. Heirs of Eliseo Guevara, Feb 07)

GROUND: Condition Precedent e .g . Non-‐compliance with P.D 1508 (Katarungang Pambarangay Law) may result to dismissal of the case on the ground on non-‐compliance with a condition precedent.



Effects of Action on MTD

Remedy

Order granting motion to dismiss is final order (without

prejudice)

Re-‐file the complaint

Order granting motion to dismiss (with prejudice)

Appeal

Order denying the motion to dismiss is

interlocutory

Certiorari and prohibition if there is grave abuse of discretion amounting to lack or excess of jurisdiction under Rule 65. He may also go to trial and if decision is adverse, he can appeal

from the judgment and assign as error the denial of the motion to dismiss.

Sec. 2 . Hearing of motion. At the hearing of the motion, the parties shall submit:

-‐ their arguments on the questions of law and -‐ their evidence on the questions of fact involved EXCEPT those not available at that time.

Should the case go to trial, the evidence presented during the hearing shall automatically be part of the evidence of the party presenting the same. Sec. 3 . Resolution of motion. AFTER the hearing, the court MAY:

1. Dismiss the action or claim, 2. Deny the motion, or 3. Order the amendment of the pleading.

• The court SHALL NOT defer the resolution of the motion for the reason that the ground relied upon is not indubitable. (conclusive)

• In every case, the resolution shall state clearly and distinctly the reasons therefor.

Sec. 4 . Time to plead. IF the motion is denied, the movant shall FILE HIS ANSWER: o within the balance of the period prescribed by Rule 11 to

which he was entitled at the time of serving his motion o BUT NOT LESS than 5 days in any event, o computed from his receipt of the notice of the

denial. If the pleading is ordered to be amended, he shall file his answer:

-‐ within the period prescribed by Rule 11 counted from service of the amended pleading,

-‐ UNLESS the court provides a longer period. Sec. 5 . Effect of dismissal . SUBJECT to the right of appeal , an order granting a motion to dismiss based on paragraphs (f), (h) and (i) of section 1 hereof shall bar the refil ing of the same action or claim.

REMEDY OF THE DEFENDANT If motion is denied 1. Movant shall f i le his answer w/in the balance of the

period prescribed by Rule 11 to which he was entitled at the time of serving his motion, but not less than 5 days

2. The order denying a motion to dismiss is interlocutory and hence not appealable. The movant must answer, go to trial and then appeal from the adverse judgment .

3. Where the dismissal of the motion was tainted with grave abuse of discretion amounting to lack of jurisdiction – certiorari may be filed.

REMEDY OF PLAINTIFF If motion is granted – Here, the complaint is dismissed with finality. 1. Depending on the ground for dismissal, the plaintiff may

simply refile the complaint. 2. He may appeal form the order of dismissal where the

ground relied upon is one which bars the refiling of the complaint.

3. He may also avail of certiorari if the court gravely abuses its discretion amounting to lack of jurisdiction.

GR: The action or claim may be re-‐filed. EXC: The action cannot be re-‐filed if it was dismissed on any of these grounds: (PURE)

1. Prescription; 2. Unenforceability under the Statue of Frauds. 3. Res judicata (barred by prior judgment); 4. Extinguishment of the claim or demand (Paid,

waived, abandoned); and Note: In these instances, the remedy of the plaintiff is APPEAL. Remember: When the dismissal is with prejudice, then appeal is proper. When the dismissal is without prejudice then the order of dismissal cannot be appealed. Refiling is proper in the latter scenario. Note: Dismissal for lack of jurisdiction over the subject matter is a dismissal without prejudice. HOWEVER, an appeal may still be taken from an order dismissing and action for lack of jurisdiction in a situation contemplated under Sec 8 Rule 40. This situation applies in a dismissal made in the MTC and not to a dismissal in the RTC. (Riano) Sec. 6 . Pleading grounds as affirmative defenses. IF no motion to dismiss has been filed, any of the grounds for dismissal provided for in this Rule:

-‐ MAY be pleaded as an affirmative defense in the answer AND,

-‐ in the discretion of the court, a preliminary hearing may be had thereon AS IF a motion to dismiss had been filed.

The dismissal of the complaint under this section shall be: -‐ without prejudice to the prosecution in the same or separate action of a counterclaim pleaded in the answer.



Effect of Dismissal of Complaint on Counterclaim: Under Sec 6 Rule 16, dismissal of the main action does not carry with it the dismissal of the counterclaim. Note: If the defendant would want to file a counterclaim, he should NOT file a motion to dismiss. Instead, he should allege the grounds of a motion to dismiss as affirmative defenses in his answer with a counterclaim. A preliminary hearing may be had thereon, and in the event the complaint is also dismissed, the defendant can PROSECUTE his counterclaim. Note: If no motion to dismiss had been filed, any of the grounds for dismissal provided for in Rule 16, INCLUDING IMPROPER VENUE, may be pleaded as affirmative defenses and a preliminary hearing may be had thereon in the discretion of the court. California and Hawaiian Sugar Co v. Pioneer Insurance: A preliminary hearing on affirmative defenses may be allowed when a motion to dismiss has not been filed or when, having been filed, it has not been denied unconditionally. (346 SCRA 214 (2000)) Omnibus Motion Rule -‐ It is subject to the omnibus motion rule since it is a

motion that attacks a pleading. -‐ Rule mandates that all grounds available at the time of

the motion’s filing be alleged otherwise, they are waived. (Exc: Lack of jurisdiction over the subject matter, litis pendencia, res judicata, and prescription)

-‐ The rule applies ONLY when a motion to dismiss is filed. No defense is waived when no motion is filed.

-‐ When no MTD is filed, the grounds for dismissal may be pleaded as an affirmative defense in the answer.

Spouses Radas v. Sps Vil la: Ground previously invoked in a denied MTD may still be dismissed. The denial of a motion to dismiss does not preclude any future reliance on the ground relied upon. (477 SCRA 538)

RULE 17: DISMISSAL OF ACTIONS

Sec 1. Dismissal UPON NOTICE by plaintiff . A complaint may be dismissed by the plaintiff BY:

-‐ Filing: A notice of dismissal -‐ At any time: BEFORE SERVICE of the answer OR of a motion for summary judgment.

UPON such notice being filed, the court shall:

-‐ issue an order confirming the dismissal . UNLESS otherwise stated in the notice, the dismissal:

-‐ GR: Is without prejudice, -‐ EXC: That a notice 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.

Notes: -‐ Dismissal here is effected not by motion but by mere NOTICE of dismissal.

-‐ It is a dismissal as matter of right BEFORE the SERVICE of the answer or a motion for summary judgment.

-‐ The rule requires a COURT ORDER confirming the dismissal. The order merely confirms the dismissal already effected by the filing of the notice of dismissal. The court does not have to approve the dismissal because it has no discretion on the matter.

-‐ The dismissal as a matter of right ceases when an answer or a motion for summary judgment is served on the plaintiff and NOT when it is filed with the court.

-‐ Thus, if a notice of dismissal is filed by the plaintiff even after an answer has been filed in court but before the responsive pleading has been served on the plaintiff, the notice of dismissal is STILL a matter of right,

Effect of Dismissal -‐ GR: Such dismissal is WITHOUT PREJUDICE. The complaint may still be refiled.

-‐ EXC: 1. The notice of dismissal by the plaintiff provides that the

dismissal is with prejudice; or 2. Plaintiff has previously dismissed the same case in a

court of competent jurisdiction. (TWO-‐DISMISSAL RULE)

Note: If the plaintiff files a notice of dismissal providing therein a reason that prevents the refilling of the complaint, the dismissal must be deemed one with prejudice even if the notice does not state that the dismissal is with prejudice. (e.g. extinguishment, prescription, payment, res judicata, etc) Two Dismissal Rule – Applies when the plaintiff has:

1. Twice dismissed an action 2. Based on or including the same claim 3. In a court of competent jurisdiction.

Note: The second notice of dismissal will bar the refilling of the action because it will operate as an adjudication of the claim upon the merits. In other words, the claim may only be filed twice. Sec. 2 . Dismissal UPON MOTION of plaintiff . EXCEPT as provided in the preceding section, a complaint shall not be dismissed at the plaintiff 's instance: -‐ save upon approval of the court AND -‐ upon such terms and conditions as the court deems proper.

IF a counterclaim has been pleaded by a defendant prior to the service upon him of the plaintiff's motion for dismissal -‐ the dismissal shall be limited to the complaint. The dismissal shall be: -‐ without prejudice to the right of the defendant to prosecute his counterclaim in a separate action

-‐ UNLESS within 15 days from notice of the motion: he manifests his preference to have his counterclaim resolved in the same action.



-‐ GR: A dismissal under this paragraph shall be without prejudice.

-‐ EXC: UNLESS otherwise specified in the order, Note: A class suit shall not be dismissed or compromised -‐ without the approval of the court. Dismissal May ONLY be Dismissed at the Plaintiff ’s instance when:

1. Dismissal as a matter of right under Rule 17 Section 1 or

2. When approved by the court upon the terms the court deems proper.

In this Section: Once either an answer or a motion for summary judgment has been served, the dismissal is no long a matter of right and will require the filing of a motion to dismiss. The dismissal of the complaint is subject to the DISCRETION of the court. Such dismissal shall be without prejudice to the right of the defendant to either: 1. Prosecute his counterclaim in a separate action;

In this case, the court should render the corresponding order granting and reserving his right to prosecute his claim in a separate complaint; OR

2. To have the same resolved in the same action. In this case, defendant must manifest such preference to the trial court within 15 days from notice to him of plaintiff’s motion to dismiss.

Note: These alternative remedies of the defendant are available to him REGARDLESS OF WHETHER HIS COUNTERCLAIM IS COMPULSORY OR PERMISSIVE. Dismissal under this rule is WITHOUT PREJUDICE, EXCEPT: 1. When otherwise stated in the motion to dismiss; or 2. When stated to be with prejudice in the order of the

court. Sec. 3 . Dismissal due to fault of plaintiff . IF , for no justifiable cause, the plaintiff fails:

1. To appear on the date of the presentation of his evidence in chief on the complaint, or

2. To prosecute his action for an unreasonable length of time, (Nolle Prosequi)or

3. To comply with these Rules OR any order of the court,

the complaint may be dismissed: -‐ UPON: motion of the defendant OR upon the court's own motion,

-‐ WITHOUT PREJUDICE to the right of the defendant to prosecute his counterclaim in the same OR in a separate action.

This dismissal shall have the effect of an adjudication upon the merits , UNLESS otherwise declared by the court.

Jalover v. Ytoriaga: The plaintiff’s failure to appear at the trial after he has presented his evidence and rested his case DOES NOT WARRANT the dismissal of the case on the ground of failure to prosecute. It is merely a waiver of his right to cross-‐examine and to object to the admissibility of evidence. (80 SCRA 100 (1977)) Dismissal With Prejudice -‐ Dismissal here shall have the effect of an ADJUDICATION UPON THE MERITS (RES JUDICATA), unless otherwise declared by the court.

SECTION 2 SECTION 3 Dismissal is at the instance of

the plaintiff Dismissal is not procured by plaintiff though justified by causes imputable to him

Dismissal is a matter of procedure, without prejudice unless otherwise stated in the order of the court or on plaintiff’s motion to dismiss

his own complaint

Dismissal is a matter of evidence, an adjudication on

the merits

Dismissal is without prejudice to the right of the defendant to prosecute his counterclaim in a separate action unless w/in 15 days from notice of the motion he manifests his intention to have his counterclaim

resolved in the same action

Dismissal is without prejudice to the right of the defendant to prosecute his counterclaim on the same or

a separate action

Sec. 4 . Dismissal of counterclaim, cross-‐claim, or third-‐party complaint. The provisions of this Rule shall apply to: the dismissal of any counterclaim, cross-‐claim, or third-‐party complaint. A voluntary dismissal by the claimant by notice as in section 1 of this Rule, shall be made:

-‐ BEFORE a responsive pleading OR a motion for summary judgment is served OR,

-‐ IF there is none, BEFORE the introduction of evidence at the trial or hearing.

Servicewide Specialist v . CA: A dismissal or discontinuance of an action operates to annul orders, rulings or judgments previously made in the case, as well as all proceedings had in connection therewith and renders all pleadings ineffective. (May, 96)

RULE 18: PRE-‐TRIAL

Pre-‐trial , defined: A mandatory conference and personal confrontation before the judge between the parties and their respective counsel.



Nature of Pre-‐Trial: -‐ Pre-‐trial is mandatory in civil cases -‐ In all criminal cases cognizable by the Sandiganbayan, RTC, MeTC, MTC, MCTC – pre-‐trial is also mandatory.

-‐ Pre-‐trial conference is also mandatory in both civil and criminal cases.

Sec. 1 . When conducted. AFTER the last pleading has been served and filed, it shall be the duty of the plaintiff to promptly move ex parte that the case be set for pre-‐trial. Civil Cases: Within 5 days from date of filing of the reply, the plaintiff must promptly move ex parte that the case be set for pre-‐trial conference. If the plaintiff fails to file said motion within the given period, the Branch COC shall issue a notice of pre-‐trial (A.M. No. 03-‐1-‐09-‐SC) Criminal Cases: Where the accused is under preventive detention, his case shall be raffled and its records transmitted to the judge to whom the case was raffled within 3 days from the filing of the complaint or information. The accused shall be arraigned within 10 days from the date of the raffle. The pre-‐trial of his case shall be held within ten days after arraignment unless a shorter period is provided for by law. (A.M. No. 03-‐1-‐09-‐SC) Referral to the Philippine Mediation Center (PMC) -‐ At the start of the preliminary conference, the judge is mandated to refer the parties and/or counsel to the mediation unit of the PMC for mediation.

-‐ Rule applies to: Metro Manila, Cebu, Davao and other place where PMC units may be organized. (Admin Circular no 50-‐2005)

The meaning of “Last Pleading” -‐ The last permissible pleading that a party can file is the reply to the answer to the last pleading asserting a claim which is to be filed within 10 days from service of the pleading responded. The claim could be the original complaint, the counterclaim, the cross-‐claim or third-‐party complaint.

-‐ The “last pleading” need not be literally construed as the actual filing of the last pleading. For purposes of the pre-‐trial, the expiration of the period for filing the last pleading is sufficient. (Sarmiento v. Juan, 120 SCRA 403 (1983))

Sec. 2 . Nature and purpose. The pre-‐trial is mandatory. The court shall consider: a. The possibility of an amicable settlement or of a

submission to alternative modes of dispute resolution; b. The simplification of the issues; c. The necessity or desirability of amendments to the

pleadings; d. The possibility of obtaining stipulations or

admissions of facts and of documents to avoid unnecessary proof;

e. The limitation of the number of witnesses; f. The advisability of a preliminary reference of issues

to a commissioner; g. The propriety of rendering judgment on the pleadings,

OR summary judgment, OR of dismissing the action should a valid ground therefor be found to exist;

h. The advisability or necessity of suspending the proceedings; and

i. Such other matters as may aid in the prompt disposition of the action.

Summary of What the court shall consider: (PORNS AASS)

1. Advisability of a PRELIMINARY REFERENCE 2. OTHER MATTERS that aid the prompt disposition of

the case. 3. The propiety of RENDERING JUDGMENT

Note: The court’s authority is confined to a mere determination of the propriety of rendering judgment on the pleadings or summary judgment pursuiant to Rule 34 (Judgment on the Pleadings) or Rule 35 (Summary Judgment)

4. NUMBER OF WITNESSES; 5. The possibility of obtaining STIPULATIONS or

ADMISSIONS of facts and documents Filoil Marketing Corp. v . Dy Pac & Co.: The process of securing admissions, whether of facts or evidence, is essentially voluntary. When the parties are unable to arrive at a stipulation of agreed facts, the court must close the pre-‐trial and proceed with the trial of the case. (160 SCRA 133 (1988))

6. Possibility of an AMICABLE SETTLEMENT 7. Necessity or desirability of AMENDMENTS TO THE

PLEADINGS; 8. SIMPLIFICATION OF ISSUES; 9. Necessity or advisability of SUSPENDING THE

PROCEEDINGS; Sec. 3 . Notice of pre-‐trial . The notice of pre-‐trial shall be served: on counsel, OR on the party who has no counsel. The counsel served with such notice is charged with the duty of notifying the party represented by him. Note: Notice is so important that it would be grave abuse of discretion for the court to allow the plaintiff to present his evidence ex parte for failure of the defendant to appear before the pre-‐trial who did not receive notice. Sec. 4 . Appearance of parties. It shall be the duty of the parties AND their counsel to appear at the pre-‐trial . The non-‐appearance of a party may be excused ONLY IF:

1. A valid cause is shown therefor OR



2. IF a representative shall appear in his behalf fully authorized in writing: a. To enter into an amicable settlement, b. To submit to alternative modes of dispute

resolution, and c. To enter into stipulations or admissions of facts

and of documents. GR: BOTH the parties and their counsel must appear at the pre-‐trial. Written Authority – Must be in the form of a Special Power of Attorney (SPA). If a party is a corporation, the SPA must be supported by a board resolution. Note: Mere presentation of such written authority is not sufficient. It must be complemented by a showing of valid cause for the non-‐appearance of the party himself. Disregard the disjunctive “or”. Sec. 5 . Effect of failure to appear. The failure of the PLAINTIFF to appear when so required pursuant to the next preceding section:

-‐ Shall be cause: for dismissal of the action. -‐ The dismissal shall be with prejudice, UNLESS otherwise ordered by the court.

A similar failure on the part of the DEFENDANT:

-‐ Shall be cause: to allow the plaintiff to present his evidence ex parte AND the court to render judgment on the basis thereof.

Note: The non-‐appearance of the defendant in the pre-‐trial is NOT a ground to declare him in default. Failure of the Plaintiff to Appear: Dismissal shall be with prejudice, the same shall have the effect of an adjudication on the merits thus, final. The remedy of the plaintiff is to appeal from the order of dismissal. Failure of the Defendant to Appear: Defendant who fails to appear in the pre-‐trial may be considered “as in default.” The order of the court allowing the plaintiff to present his evidence ex parte does not dispose of the case with finality. The order is merely interlocutory hence, not appealable. He may file a petition for certiorari if the denial is tainted with the grave abuse of discretion. Sec. 6 . Pre-‐trial brief . The parties shall f i le 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: (a) A statement of their will ingness to enter into amicable settlement or alternative modes of dispute resolution, indicating the desired terms thereof;

(b) A summary of admitted facts and proposed stipulation of facts; (c) The issues to be tried or resolved; (d) The documents or exhibits to be presented, stating the purpose thereof; (e) A manifestation of their having availed or their intention to avail themselves of discovery procedures or referral to commissioners; and (f) The number and names of the witnesses, and the substance of their respective testimonies. Failure to f i le the pre-‐trial brief shall have the same effect as failure to appear at the pre-‐trial. Rule: It is the mandatory duty of the parties to seasonably file their pre-‐trial briefs under the conditions and with the sanctions provided therein. Legal Effect of Representation and Statements in the Pre-‐trial Brief – The parties are bound by the representations and statements in their respective pre-‐trial briefs. (A.M. 03-‐1-‐09-‐SC, July 13, 2004) Hence, such representations and statements are in the nature of judicial admissions in relation to Sec 4 Rule 129. Failure to File Pre-‐Trial Brief: Has the same effect as failure to appear at the pre-‐trial. (See notes on Sec 5) Ramos v. Sps Lavendia: The dismissal of the complaint for failure to file pre-‐trial brief is discretionary on the party of the court. (Oct, 08) Principles Involved in Compromise Agreements: The authority to compromise litigation is not mandatorily required to be in writing. The vital thing is that authority was made expressly which may be established by evidence. Lim Pin v. Tiao Tan : Compromise agreement entered w/o authority is NOT void but unenforceable and may be ratified. (July, 82) Importance of Identification and Marking of Evidence – No evidence shall be presented and offered during the trial in support of a party’s evidence in chief other than those that had been earlier identified and pre-‐marked during pre-‐trial, except if allowed by the court for good cause shown. (A.M. No. 03-‐1-‐09-‐SC, July 13, 2004) Failure to Settle (A.M. No 03-‐109 –SC, July 13, 2004) -‐ Judge should not allow the termination of the pre-‐trial

simply because of the manifestation of the parties that they cannot settle the case.

-‐ Only when all efforts fail shall the judge endeavor to achieve the other purposes of pre-‐trial

-‐ Parties shall agree on specific dates for continuous trial. -‐ Adherence to the One Day Examination Rule shall be

required subject to the discretion of the court to extend the examination for justifiable reasons.

-‐ The Most Important Witness Rule in limiting the number of witnesses shall also be followed.



-‐ Questions are asked by the judge and answers must be directed to the judge to avoid hostilities.

Sec. 7 . Record of pre-‐trial . The proceedings in the pre-‐trial shall be recorded. UPON the termination thereof, the court shall issue an ORDER which shall recite in detail:

1. The matters taken up in the conference, 2. The action taken thereon, the amendments allowed

to the pleadings, AND 3. The agreements or admissions made by the parties

as to any of the matters considered.

Should the action proceed to trial, the order shall explicitly define and limit the issues to be tried. -‐ GR: The contents of the order shall control the subsequent course of the action,

-‐ EXC: UNLESS modified before trial to prevent manifest injustice.

Pre-‐Trial Order: -‐ Issue by the court within 10 days after the termination of the pre-‐trial. (A.M. No 03-‐109 –SC, July 13, 2004)

-‐ Recites in detail the following: 1. A statement of the nature of the cause 2. The stipulations or admissions of the parties,

including testimonial and documentary evidence. 3. The factual and legal issues 4. Number of Witnesses and 5. Date of trial

-‐ GR: The contents of the Pre Trial Order shall CONTROL the subsequent course of action

-‐ EXC: Unless: 1. Modified before trial to prevent manifest injustice (Rule

18, Sec 7) 2. Issue impliedly included therein or may be inferable

therefrom by necessary implication. (Velasco v. Apostol, May 89)

3. Amendment to conform to evidence (Rule 10 Sec 5) Note: A party is deemed to have WAIVED the delimitations in a pre-‐trial order if he failed to object to the introduction of evidence on an issue outside of the pre-‐trial order, as well as in cross-‐examining the witness in regard to said evidence. Preliminary Conference under the Revised Rules on Summary Procedure -‐ Preliminary conference shall be held not later than 30 days after the last answer is filed.

-‐ Rules on pre-‐trial shall apply except when inconsistent with the rules on summary procedure.

-‐ Failure of the plaintiff to appear shall be cause for dismissal of his complaint and the defendant who appears shall be entitled to judgment on his counterclaim.

-‐ W/in 5 days from termination of the conference, court shall issue an order stating the matters taken up.

Pre Trial in Civil Cases Pre-‐Trial in Crim Cases Set when plaintiff moves ex party to set the case for pre

trial

Ordered by the court

Motion to set pre trial is made after the last pleading

has been served.

Ordered by the court within 30 days from the date the court acquires jurisdiction over the person of the

accused. Considers the possibility of

amicable settlement. Does not include amicable settlement of liability.

Sanctions for non-‐appearance are imposed on

either the plaintiff or defendant

Sanctions are imposed on the counsel for the accused of the

prosecutor

Pre trial brief is specifically required

Pre trial brief is not specifically required

PRE-‐TRIAL

Amicable Settlement

Failure to Appear

If plaintiff is

absent when so

required to attend, the court may dismiss the

case

Court renders decision

If evidence is insufficient to

prove plaintiff’s cause of action or

defendant’s counterclaim, court rules in favor of either

one or dismisses the case

No Settlement

TRIAL

Agreements made by parties;

Amendments to pleading; Schedule of

trial

If defendant is absent, court may

hear evidence

of plaintiff ex parte



RULE 19: INTERVENTION

Intervention, defined: A legal proceeding by which a third person is permitted by the court to become a party by intervening in a pending action after meeting the conditions and requirements set by the Rules of Court. Nature of Intervention: -‐ Intervention cannot alter the nature of the action and the issues already joined

-‐ Intervention is neither compulsory nor mandatory but only optional and permissive. The court has the discretion of allowing/disallowing the same.

-‐ Where the interest of the movant is undisputed, a denial of a motion is an injustice.

-‐ Intervention is not an absolute right and can be secured only in accordance with the terms of the applicable statute or rule.

-‐ GR: Intervention is never an independent proceeding but is ANCILLARY and SUPPLEMENTAL to an existing litigation. Hence, the final dismissal of the principal action results in the dismissal of said ancillary action.

-‐ EXC: When intervention has been allowed and the complaint in intervention has already been filed before plaintiff’s action had been expressly dismissed. (Metro Bank v. RTC, Sept 90)

Sec 1. Who may intervene. A person who has a legal interest:

1. In the matter in litigation, OR 2. In the success of either of the parties, OR an 3. Interest against both, OR 4. Is so situated as to be adversely affected by a

distribution or other disposition of property in the custody of the court or of an officer thereof

MAY, with leave of court, be allowed to intervene in the action. The court shall consider: (Factors) 1. w/n the intervention will unduly delay or prejudice the

adjudication of the rights of the original parties, and 2. w/n the intervenor's rights may be fully protected in a

separate proceeding. Who Intervenes: Third person who intervenes is one who is not originally impleaded in the action. Interest Involved: The interest which entitles a person to intervene in a suit must be on the matter in litigation and of such direct and immediate character that the intervenor will either gain or lose by the direct legal operation and effect of the judgment. (e.g. in an action for foreclosure, the owners of the land may intervene)

Requisites for Intervention 1. Motion for intervention filed before rendition of

judgment by the trial court. (Leave of court is required) 2. Movant has a the prescribed legal interest Denial of Motion to Intervene: Does not constitute res judicata. Remedy of intervenor is to file a separate action. (Asuncion v. Pineda, July 89)

Intervention Interpleader An ancillary action An original action

Proper in any of the four situations mentioned in

this Rule

Presupposes that the plaintiff has no interest in the subject matter of the action or has an interest therein which in whole or in part is not disputed by the other

parties to the action Defendants are already original parties to the

pending suit

Defendants are being sued precisely to implead them

Sec. 2. Time to intervene. The motion to intervene may be filed at any time BEFORE rendition of judgment by the trial court. A copy of the pleading-‐in-‐intervention shall be: attached to the motion AND served on the original parties. Justification: Before judgment is rendered, the court, for good cause shown, may still allow the introduction of additional evidence and that is still within the liberal interpretation of the period for trial. Since no judgment has yet been rendered, the matter subject of the intervention may still be readily resolved and integrated in the judgment disposing of all claims in the case. -‐ GR: Motion to intervene must be filed at any time BEFORE rendition of judgment. (Note: After rendition of judgment, a motion to intervene is barred, even if the judgment itself recognizes the right of the movant. The remedy of the movant is to file a separate action.)

-‐ EXC: 1. Intervention of indispensable parties may be allowed

even on appeal. (Falcasantos v. Falcasantos, May 52) 2. When the intervenor is the Republic (Lim v. Pacquing,

Jan 95) 3. When intervention is necessary to protect some interest

which cannot otherwise be protected, and for the purpose of preserving the intervenor’s right to appeal. (Herrera)

Sec. 3 . Pleadings-‐in-‐intervention. The intervenor shall file: -‐ A complaint-‐in-‐intervention: IF he asserts a claim against either or all of the original parties, OR

-‐ An answer-‐in-‐intervention: IF he unites with the defending party in resisting a claim against the latter.



Sec. 4. Answer to complaint-‐in-‐intervention. The answer to the complaint-‐in -‐intervention shall be filed: -‐ GR: Within 15 days from notice of the order

admitting the same -‐ EXC: UNLESS a different period is fixed by the court. Remedies for Denial of Intervention 1. Appeal; or 2. Mandamus. 3. If there is improper granting of intervention, the remedy

of the party is Certiorari. 4. Intervenor may opt to just file a separate action.

RULE 20: CALENDAR OF CASES

Sec 1. Calendar of cases. The clerk of court, UNDER the direct supervision of the judge, shall keep a calendar of cases FOR:

-‐ Pre-‐trial, -‐ Trial, -‐ Those whose trials were adjourned or postponed, and -‐ Those with motions to set for hearing.

Preference shall be given to: 1. Habeas corpus cases, 2. Election cases, 3. Special civil actions, and 4. Those so required by law.

Sec. 2 . Assignment of cases. The assignment of cases to the different branches of a court shall be done: exclusively by raffle . The assignment shall be done in open session of which adequate notice shall be given so as to afford interested parties the opportunity to be present.

RULE 21: SUBPOENA

Subpoena Summons

An order to appear and testify or to produce books and

documents

Order to answer a complaint

May be served to a non-‐party Served on the defendant Needs tender of kilometrage, cost of production fees and

attendance

Does not need tender of kilometrage and other fees

Notice of the date of the hearing of which he is required to attend

Notifies party that a complaint against him has been filed and that he

should file an answer within a given period

May be issued more than once at anytime

Issued only once at the start, for the court to

acquire jurisdiction and for the issues to be joined

Violation: Indirect contempt Violation: Contempt

Sec 1. Subpoena and subpoena duces tecum. Subpoena -‐ is a process directed to a person requiring him to attend AND to testify:

a. At the hearing or the trial of an action, OR b. At any investigation conducted by competent

authority, OR c. For the taking of his deposition.

It may also require him to bring with him:

1. Any books, 2. Documents, or 3. Other things under his control,

in which case it is called a subpoena duces tecum. Kinds of Subpoena 1. Subpoena Duces Tecum – Process directed to a

person which requires him to bring with him any books, documents, or other things under his control.

2. Subpoena Ad Testificandum – Process directed to a

person requiring him to attend and to testify at the hearing, trial, investigation or deposition.

Sec. 2 . By whom issued. – The subpoena may be issued by: a . The court before whom the witness is required to

attend; b. The court of the place where the deposition is to be

taken; c . The officer or body authorized by law to do so in

connection with investigations conducted by said officer or body; or

d. Any Justice of the SC or of the CA in any case or investigation pending within the RP.

When application for a subpoena to a prisoner is made, the judge or officer shall :

-‐ examine and study carefully such application -‐ to determine whether the same is made for a valid purpose.

No prisoner: 1. Sentenced to death, reclusion perpetua or life

imprisonment AND 2. Who is confined in any penal institution shall be brought outside the said penal institution for appearance or attendance in any court UNLESS authorized by the SC. Requisites of Subpoena to a Prisoner

1. Must be for a valid cause 2. Must be authorized by the SC -‐ If sentenced to death,

reclusion perpetua or life imprisonment and is confined in any penal institution.



Note: The deposition of a prisoner confined in prison may be taken only by leave of court on such terms as the court prescribes. (Rule 23, Section1) Liebnow v. Philippine Vegetable Oil : If a subpoena duces tecum is improperly issued, a proper remedy is motion to vacate or set aside the subpoena. (39 Phil 60 (1918)) Sec. 3 . Form and contents. A subpoena shall: 1. State the name of the court and 2. State the title of the action or investigation, 3. Shall be directed to the person whose attendance is

required, and in the case of a subpoena duces tecum, it: 4. Shall also contain a reasonable description of the

books, documents or things demanded which must appear to the court prima facie relevant.

Note: A subpoena is signed by the Clerk of Court. (Rule 136, Sec 4) Sec. 4 . Quashing a subpoena. The court may quash a subpoena duces tecum: 1. UPON motion promptly made AND, 2. In any event, at or before the time specified therein 3. IF: (Proof that)

a. It is unreasonable and oppressive, or b. The relevancy of the books, documents or things

does not appear, or c. If the person in whose behalf the subpoena is

issued fails to advance the reasonable cost of the production thereof.

The court may quash a subpoena ad testificandum: -‐ On the ground that the witness is not bound thereby.

In either case, the subpoena may be quashed:

-‐ On the ground that the witness fees and kilometrage allowed by these Rules were not tendered when the subpoena was served.

Section 2, RA 1405 provides that bank deposits can only be examined when there is:

a. Written permission of the depositor; b. In cases of impeachment; c. Upon order of a competent court in cases of bribery

or dereliction of duty of public officials; or d. In cases where the money deposited or invested is

the subject matter of the litigation.

However, this is subject to the provisions of Section 11 of the Anti-‐Money Laundering Act which gives the Anti-‐Money Laundering Council the right to examine any particular deposit or investment upon order of any competent court in cases of violation of the AMLA, but there is no need for court order if such violation of the AMLA is related to kidnapping for ransom, violations of the Comprehensive Dangerous Drugs Act of 2002, and hijacking.

Sec. 5 . Subpoena for depositions. Proof of service of a notice to take a deposition, as provided in sections 15 and 25 of Rule 23, shall:

-‐ constitute sufficient authorization for the issuance of subpoenas for the persons named in said notice by the clerk of the court of the place in which the deposition is to be taken.

The clerk shall NOT, however, issue a subpoena duces tecum to any such person -‐ without an order of the court. Sec. 6 . Service. Service of a subpoena shall be made in the SAME MANNER as personal or substituted service of summons. 1. The original shall be exhibited and a copy thereof

delivered to the person on whom it is served, 2. GR: Tendering to him the fees for one day’s attendance

AND the kilometrage allowed by these Rules, EXC: That when a subpoena is issued by or on behalf of the RP or an officer or agency thereof, the tender need not be made.

3. The service must be made so as to allow the witness a reasonable time for preparation AND travel to the place of attendance.

4. IF the subpoena is duces tecum, the reasonable cost of producing the books, documents or things demanded shall also be tendered.

Sec. 7 . Personal appearance in court. A person present in court before a judicial officer may be required to testify AS IF he were in attendance upon a subpoena issued by such court or officer. Sec. 8 . Compelling attendance. IN CASE of failure of a witness to attend, the court or judge issuing the subpoena: -‐ UPON proof of the service thereof AND of the failure of the witness: 1. MAY issue a warrant to the sheriff of the

province, or his deputy, to arrest the witness and bring him before the court or officer where his attendance is required, AND

2. The cost of such warrant and seizure of such witness shall be paid by the witness IF the court issuing it shall determine that his failure to answer the subpoena was willful AND without just excuse.

Sec. 9 . Contempt. Failure by any person without adequate cause to obey a subpoena served upon him:

-‐ shall be deemed a contempt of the court from which the subpoena is issued.

IF the subpoena was not issued by a court, the disobedience thereto -‐ shall be punished in accordance with the applicable law or Rule.



GR: The failure to attend if willful and without just cause just shall be subject to:

1. Warrant of arrest and payment of cost (Sec 8) and 2. Contempt of Court (Sec 9)

EXC: (Sec 10) Sec. 10. Exceptions. The provisions of sections 8 and 9 of this Rule shall not apply: 1. To a witness: who resides more than 100 kilometers

from his residence to the place where he is to testify by the ordinary course of travel, (VIATORY RIGHT) or

2. To a detention prisoner: if no permission of the court in which his case is pending was obtained.

Note: Viatory Right refers only to civil and NOT criminal cases. (Genorga v. Quitain, July 77)

RULE 22: COMPUTATION OF TIME

Sec. 1 . How to compute time. In computing any period of t ime -‐ prescribed or allowed by these Rules, or by order of the court, or by any applicable statute:

1. The day of the act or event from which the designated period of t ime begins to run is to be EXCLUDED and

2. The date of performance INCLUDED. IF the last day of the period, as thus computed, falls on a Saturday, a Sunday, or a legal holiday in the place where the court sits,

-‐ The time SHALL NOT RUN UNTIL the next working day.

How Time is Computed • The f irst day (or the day of the act or event) shall be

EXCLUDED • While the last day (the date of performance) shall be

INCLUDED. Sec. 2 . Effect of interruption. Should an act be done which effectively interrupts the running of the period:

-‐ The allowable period after such interruption shall start to run: on the day AFTER notice of the cessation of the cause thereof.

The day of the act that caused the interruption -‐ Shall be EXCLUDED in the computation of the period.

e .g . If the defendant files a motion to dismiss on the fifth day, the balance of his allowable period is 11 days. Since the motion to dismiss filed interrupts the period to file the answer, you exclude that day in the computation of the period and so the allowable period would be 11 days.

A .M. No. 00-‐2-‐14-‐SC, 2000: When the last day of the period falls on a Saturday, a Sunday, or a legal holiday, and a party is granted an extension of time, the extension should be counted from the last day which is a Saturday, Sunday, or legal holiday. It should be counted from the expiration of the period regardless of the fact that the said due date is a Saturday, Sunday or legal holiday.

MODES OF DISCOVERY

Discovery, defined: A device employed by a party to obtain information about relevant facts and of material evidence on the case from the adverse party in the preparation for trial. Considered as vital components of case management in pre-‐trial courts. Purpose of Discovery: To enable the parties to obtain the fullest possible knowledge of the issues and evidence long before the trial to prevent such trial from being carried on in the dark. 1. To narrow and clarify basic issues between the parties; 2. As a device for ascertaining the facts relative to those

issues, and 3. To support a motion for summary judgment. Note: Denial of Bills of Particulars does not bar the use of the Modes of Discovery. Modes of Discovery are intended to be cumulative and not alternative or mutually exclusive.

Bill of Particulars Modes of Discovery To make ultimate facts more

definite, not to supply evidentiary matters

To discover evidentiary facts

To prepare for Responsive pleading

To prepare for trial (abbreviates trial)

Modes of Discovery Under the Rules of Court: 1. Depositions pending action (Rule 23); 2. Depositions before action or pending appeal (Rule 24); 3. Interrogatories to parties (Rule 25); 4. Admission by adverse party (Rule 26); 5. Production or inspection of documents, or things (Rule

27); and 6. Physical and mental examination of persons (Rule 28). Limitations to Modes of Discover 1. When it can be shown that the examination is being

conducted in bad faith; 2. When it can be shown that the examination is being

conducted in such a manner as to annoy, embarrass, or oppress the person subject to the inquiry;

3. Irrelevant; and 4. Privileged matters. Note: Discovery is NOT MANDATORY but failure to avail carries sanctions in Rules 25 and 26.



RULE 23: DEPOSITIONS PENDING ACTIONS

Deposition, defined: The testimony of a witness taken upon oral examination or written interrogatories, not in open court, but in pursuance of a commission to take testimony issued by a court, or under a general law or court rule on the subject, and reduced to writing and duly authenticated, and intended to be used in preparation and upon the trial, civil or criminal prosecution. Depositions are intended as a means to compel disclosure of facts resting in the knowledge of a party or other person, which are relevant in a suit/proceeding. Note: Depositions are different from affidavits:

Deposition Affidavit Written testimony of the witness in the course of judicial proceedings, in

advance of trial and hearing

Mere sworn written statements

Opportunity for cross-‐examination

Ex parte statements without formal interrogation and

cross-‐examination Can be competent testimonial evidence

Not admissible in evidence EXCEPT in cases governed by the Rule on Summary Procedure or in ordinary cases subject to cross-‐

examination. Classification of Depositions 1. Depositions on Oral Examinations (Sec 15-‐24); 2. Depositions upon Written Interrogatories (Sec 25 -‐

28); 3. Deposition De Bene Esse -‐ Taken for purposes of

pending action. (Rule 23); 4. Depositions In Perpetuam Rei Memoriam -‐ Those

taken to perpetuate evidence for purposes of an anticipated action or further proceedings in a case on appeal. (Rule 24).

What to File: 1. Motion to Take Oral Deposition or Written

Interrogatories (By Leave of Court) -‐ After jurisdiction has been obtained over any defendant or over property which is the subject of the action but before answer, or

2. Notice to take Oral Deposition or Written Interrogatories (Without Leave of Court) -‐ After an answer has been served.

Sec. 1 . Depositions pending action, when may be taken. 1 . By leave of court: AFTER jurisdiction has been

obtained over any defendant or over property which is the subject of the action, or

2. Without such leave: AFTER an answer has been served

The testimony of any person, whether a party or not,: -‐ may be taken, at the instance of any party, -‐ BY deposition UPON oral examination OR written interrogatories.

• The attendance of witnesses may be compelled: By the use of a subpoena as provided in Rule 21.

• Depositions shall be taken ONLY in accordance with these Rules.

• The deposition of a person confined in prison may be taken: ONLY by leave of court on such terms as the court prescribes.

When Taken: A. With Leave of Court

1. After jurisdiction has been obtained over any defendant or over the property which is the subject of the action and BEFORE answer has been filed. (Ratio: Leave of court is necessary because the issues are not yet joined and the disputed facts are not yet clear)

2. Deposition of a person confined in prison. B. Without Leave of Court

-‐ AFTER answer AND deponent is not confined in prison.

Rosette v. Lim: An answer ex abundati cautela (“out of abundant caution” or “to be on the safe side) does not make an answer less of an answer. Thus, when such is filed, deposition may be made without leave of court. (June 06) Sec. 2 . Scope of examination. -‐ EXC: Unless otherwise ordered by the court as provided by section 16 or 18 of this Rule,

-‐ GR: The deponent may be examined regarding any matter: 1. Not privileged, 2. Which is relevant to the subject of the pending

action, 3. Whether relating to the claim or defense of any other

party, 4. Including: The existence, description, nature,

custody, condition, and location of any books, documents, or other tangible things and the identity and location of persons having knowledge of relevant facts.

Scope of Examination 1. Not privileged:

-‐ Privileged communication: • Husband and wife; • Attorney and client; • Doctor and patient; • Public officer; or • Priest and confessant. • Others (e.g. secrecy of bank deposits, non-‐

disclosure of trade secrets, result of census, candidate voted for exc in an election case.)



2. Relevant to the subject of the pending action, 3. Not restricted by protective order or motion to limit

examination (Sec 16 and 18). Sec. 3 . Examination and cross-‐examination. Examination and cross-‐examination of deponents may proceed as permitted at the trial under sections 3 to 18 of Rule 132. Note: The deponent may be asked questions on direct, cross, re-‐direct or re-‐cross. He has the same rights as a witness and may be impeached like a court witness. Sec. 4 . Use of depositions. AT the trial OR upon the hearing of a motion or an interlocutory proceeding: -‐ any part or all of a deposition, so far as admissible

under the rules of evidence, -‐ may be used against any party:

1. Who was present or represented at the taking of the deposition OR

2. Who had due notice thereof, in accordance with any one of the following provisions: a. Any deposition may be used:

-‐ by any party -‐ for the purpose of contradicting or impeaching the testimony of deponent as a witness;

b. The deposition of a party or of any one who at the time of taking the deposition was an officer, director, or managing agent of a public or private corporation, partnership, or association which is a party may be used: -‐ by an adverse party for any purpose;

c. The deposition of a witness, whether or not a party, may be used: -‐ by any party for any purpose -‐ IF the court f inds: 1. That the witness is dead; OR 2. That the witness resides at a distance more than

100 km from the place of trial or hearing, OR is out of the RP, UNLESS it appears that his absence was procured by the party offering the deposition; OR

3. That the witness is unable to attend or testify because of age, sickness, infirmity, or imprisonment; OR

4. That the party offering the deposition has been unable to procure the attendance of the witness by subpoena; OR

5. UPON application AND notice, that such exceptional circumstances exist as to make it desirable, in the interest of justice and with due regard to the importance of presenting the testimony of witnesses orally in open court, to allow the deposition to be used; AND

d. If only part of a deposition is offered in evidence by a party, • The adverse party may require him to introduce

all of it which is relevant to the part introduced, AND • Any party may introduce any other parts.

Note: Where the witness is available to testify and the situation is not one of those excepted under Section 4, his deposition is inadmissible in evidence and he should be made to testify. Note: Certiorari will not lie against an order admitting or rejecting a deposition in evidence, the remedy being an appeal from the final judgment. -‐ Ratio: Because it is merely an error of law and not grave abuse of discretion.

Sec. 5 . Effect of substitution of parties. Substitution of parties: does not affect the right to use depositions previously taken; AND, When: 1. An action has been dismissed AND 2. Another action involving the same subject is afterward

brought between the same parties or their representatives or successors in interest,

ALL depositions lawfully taken and duly filed in the former action: may be used in the latter as if originally taken therefore. Note: It is applicable in depositions pending action, before action, and pending appeal. (Cross reference to Rule 24 Sec 6 and 7) Sec. 6 . Objections to admissibility. SUBJECT to the provisions of section 29 of this Rule, objection may be made at the trial or hearing

-‐ to receiving in evidence any deposition or part thereof for any reason which would require the exclusion of the evidence

-‐ IF the witness were then present and testifying. Note: And it is also at trial or hearing when any party may rebut any relevant evidence contained in a deposition whether introduced by him or by any other party (Sec 9). Sec. 7 . Effect of taking depositions. A party shall NOT be deemed to make a person his own witness for any purpose by taking his deposition. Sec. 8 . Effect of using depositions. The introduction in evidence of the deposition or any part thereof for any purpose OTHER THAN that of contradicting or impeaching the deponent: -‐ Makes the deponent the witness of the party introducing

the deposition, -‐ BUT this shall NOT APPLY to the use by an adverse party

of a deposition as described in paragraph (b) of section 4 of this Rule.



GR: A party shall not be deemed to make a person his own witness for any purpose by taking his deposition because depositions are taken for discovery and not for use as evidence. (Sec 7) EXC: If a party offers the deposition in evidence, then he is deemed to have made the deponent his witness (Sec.8) EXC TO THE EXC: Unless: 1. The deposition is that of any adverse party OR 2. The deposition is used for impeaching or contradicting

the deponent (Sec.8). Sec. 9 . Rebutting deposition. At the trial OR hearing, any party MAY: -‐ rebut any relevant evidence contained in a deposition -‐ whether introduced by him or by any other party. Sec. 10. Persons before whom depositions may be taken within the Philippines. Within the RP, depositions may be taken before:

1. Any judge, 2. Notary public, OR 3. The person referred to in Sec14: Any person

authorized to administer oaths if the parties so stipulate.

Sec. 11. Persons before whom depositions may be taken in foreign countries. In a foreign state or country, depositions may be taken:

1. On notice before a secretary of embassy or legation, consul general, consul, vice-‐consul, or consular agent of the Republic of the Philippines;

2. Before such person or officer as may be appointed by commission OR under letters rogatory; OR

3. The person referred to in Sec 14: Any person authorized to administer oaths if the parties so stipulate.

Sec. 12. Commission or letters rogatory. A commission or letters rogatory shall be issued ONLY:

1. When necessary or convenient, 2. On application and notice, AND 3. On such terms and with such direction as are just

and appropriate.

• Officers may be designated in notices or commissions: either by name or descriptive title AND

• Letters rogatory may be addressed to the appropriate judicial authority in the foreign country.

Commission Letters Rogatory Issued only when necessary or convenient, on application and notice, and on such terms and with such direction as are just

and appropriate An instrument issued by the court of justice or tribunal to authorize a

person to take depositions or to do any other act by authority of such court or tribunal

Instruments sent in the name and by authority of a judge or court to another, requesting the latter to cause to be examined, upon interrogatories filed in a case pending before the former, a witness who is within the

jurisdiction of the judge or court to whom such letters are

addressed Issued to a non-‐judicial foreign officer who will

directly take the testimony

Issued to the appropriate judicial official of the foreign country who will direct somebody in said foreign country to take down

testimony. Applicable rules of

procedure are those of the requesting court

Applicable rules of procedure are those of the foreign court

requested to act Resorted to if permission of the foreign country is

given

Resorted to if the execution of the commission is refused in the

foreign country Leave of court is not

necessary Leave of court is necessary

Sec. 13. Disqualification by interest . NO deposition shall be taken before a person who is:

1. A relative within the 6th degree of consanguinity or affinity, or employee or counsel of any of the parties; OR

2. A relative within the same degree, or employee of such counsel; OR

3. Financially interested in the action. Sec. 14. Stipulations regarding taking of depositions. IF the parties so stipulate in writing, depositions may be taken:

-‐ Before any person authorized to administer oaths, -‐ At any time or place, -‐ In accordance with these Rules, and

when so taken may be used like other depositions. Sec. 15. Deposition upon oral examination; notice; t ime and place. A party desiring to take the deposition of any person upon oral examination shall: -‐ Give reasonable notice in writing to every other party to

the action. -‐ The notice shall state:

1. The time and place for taking the deposition AND 2. The name and address of each person to be

examined, i f known, and 3. IF the name is not known, a general description

sufficient to identify him or the particular class or group to which he belongs.



On motion of any party upon whom the notice is served: -‐ The court MAY for cause shown enlarge or

shorten the time. Sec. 16. Orders for the protection of parties and deponents. 1. AFTER notice is served for taking a deposition by oral

examination, 2. UPON motion seasonably made by any party or by the

person to be examined and 3. FOR good cause shown, the court in which the action is pending may make an order:

a. That the deposition shall not be taken, OR b. That it may be taken only at some designated place

other than that stated in the notice, OR c. That it may be taken only on written interrogatories,

OR d. That certain matters shall not be inquired into, OR e. That the scope of the examination shall be held with

no one present EXCEPT the parties to the action and their officers or counsel, OR

f. That after being sealed the deposition shall be opened ONLY by order of the court, OR

g. That secret processes, developments, or research need not be disclosed, OR

h. That the parties shall simultaneously file specified documents or information enclosed in sealed envelopes to be opened as directed by the court; OR

i. The court may make any other order which justice requires to protect the party or witness from annoyance, embarrassment, or oppression.

Sec. 17. Record of examination; oath; objections. The officer before whom the deposition is to be taken shall:

1. Put the witness on oath and 2. Shall personally, or by some one acting under his

direction and in his presence, record the testimony of the witness.

The testimony shall : -‐ GR: Be taken stenographically -‐ EXC: UNLESS the parties agree otherwise.

All objections made at the time of the examination:

1. To the qualifications of the officer taking the deposition, OR

2. To the manner of taking it, OR 3. To the evidence presented, OR 4. To the conduct of any party, AND 5. Any other objection to the proceedings,

shall be noted by the officer upon the deposition. • Evidence objected to: shall be taken subject to the

objections. • In lieu of participating in the oral examination, parties

served with notice of taking a deposition may: -‐ Transmit written interrogatories to the officers, -‐ Who shall propound them to the witness and record

the answers verbatim.

Sec. 18. Motion to terminate or l imit examination. At any time during the taking of the deposition:

-‐ On motion or petition of any party or of the deponent AND

-‐ UPON a showing that the examination is being: 1. Conducted in bad faith or 2. In such manner as unreasonably to annoy,

embarrass, or oppress the deponent or party, The court in which the action is pending OR the RTC of the place where the deposition is being taken:

1. May order the officer conducting the examination to cease forthwith from taking the deposition, OR

2. May limit the scope and manner of the taking of the deposition, as provided in sec 16 of this Rule.

• IF the order made terminates the examination, it shall

be resumed thereafter: ONLY upon the order of the court in which the action is pending.

• UPON demand of the objecting party or deponent: The taking of the deposition shall be suspended for the time necessary to make a notice for an order.

• In granting OR refusing such order, the court may:

-‐ Impose upon either party OR upon the witness: -‐ The requirement to pay such costs or expenses as the

court may deem reasonable. Grounds for NOT Taking a Deposition 1. Not relevant (Sec 1); or 2. To protect a party or witness from annoyance,

embarrassment or opposition (Sec 16 and 18). Autographics, Inc. v . CA: The right of a party to take depositions as means of discovery is not exactly absolute. In such instances, these provisions expressly authorize the court to either prevent the taking of a deposition or stop one that is already being taken. (July 93) Isabela Sugar Co v. Macadaeg: When the constitutional privilege against self-‐incrimination is invoked by deponent or his counsel, the trial court may stop the examination. (Oct 53) Protection Orders of Parties & Deponents

(Sec 16 & 28)

Motion to Terminate or Limit Examination

(Sec 18) Provides protection to the party or witness before the

taking of deposition.

Provides protection to the party or witness during the

taking of deposition. Filed with the court in

which the action is pending Filed in the court in which the action is pending or the RTC of the place where the deposition

is being taken



Sec. 19. Submission to witness; changes; signing. When the testimony is fully transcribed, the deposition -‐ GR: Shall be submitted to the witness for examination

AND shall be read to or by him, -‐ EXC: Unless such examination and reading are waived by

the witness and by the parties. Any changes in form or substance which the witness desires to make shall:

1. Be entered upon the deposition by the officer 2. With a statement of the reasons given by the witness

for making them. 3. The deposition shall then be signed by the witness,

UNLESS: -‐ The parties by stipulation waive the signing or -‐ The witness is ill or cannot be found or refuses to

sign.

IF the deposition is not signed by the witness, the officer shall : -‐ sign it AND state on the record the fact of:

1. The waiver or of the illness or absence of the witness OR

2. The fact of the refusal to sign together with the reason given therefor, if any, AND

-‐ GR: The deposition may then be used as fully as though signed,

-‐ EXC: Unless on a motion to suppress under Sec 29 (f) of this Rule, the court holds that the reasons given for the refusal to sign require rejection of the deposition in whole or in part.

Ayala Land v. Tagle: A deposition not signed does not preclude its use during the trial. A deponent’s signature to the deposition is not in all events indispensable since the presence of signature goes primarily to the form of deposition. The requirement that the deposition must be examined and signed by the witness is only to ensure that the deponent is afforded the opportunity to correct any errors contained therein and to ensure its accuracy. In any event, the admissibility of the deposition does not preclude the determination of its probative value at the appropriate time. (Aug, 05) Sec. 20. Certification and fi l ing by officer. The officer shall : 1. Certify on the deposition:

a. That the witness was duly sworn to by him AND b. That the deposition is a true record of the testimony

given by the witness. 2. He shall then securely seal the deposition in an

envelope: a. Indorsed with the title of the action AND b. Marked "Deposition of (here insert the name of

witness)" AND 3. Shall promptly f i le it with the court in which the action

is pending OR send it by registered mail to the clerk thereof for filing.

Sec. 21. Notice of f i l ing. -‐ The officer taking the deposition shall give prompt notice of its f i l ing to ALL the parties. Sec. 22. Furnishing copies. UPON payment of reasonable charges therefor, -‐ The officer shall furnish a copy of the deposition to any

party or to the deponent. Sec. 23. Failure to attend of party giving notice. IF the party giving the notice of the taking of a deposition:

-‐ Fails to attend and proceed therewith AND -‐ Another attends in person or by counsel pursuant to

the notice, The court MAY order the party giving the notice to pay such other party:

-‐ The amount of the reasonable expenses incurred by him and his counsel in so attending,

-‐ Including reasonable attorney’s fees. Sec. 24. Failure of party giving notice to serve subpoena. IF the party giving the notice of the taking of a deposition of a witness:

-‐ Fails to serve a subpoena upon him AND -‐ The witness because of such failure does not attend,

AND -‐ IF another party attends in person or by counsel

because he expects the deposition of that witness to be taken,

The court MAY order the party giving the notice to pay to such other party:

-‐ The amount of the reasonable expenses incurred by him and his counsel in so attending,

-‐ Including reasonable attorney’s fees. Sec. 25. Deposition upon written interrogatories; service of notice and of interrogatories. A party desiring to take the deposition of any person upon written interrogatories shall: -‐ serve them upon every other party with a notice stating:

1. The name and address of the person who is to answer them AND

2. The name or descriptive title and address of the officer before whom the deposition is to be taken.

Within 10 days thereafter

A party so served may serve: -‐ cross-‐interrogatories -‐ UPON the party proposing to take

the deposition.

Within 5 days thereafter

the latter may serve: -‐ re-‐direct interrogatories -‐ UPON a party who has served

cross-‐ interrogatories. Within 3 days

after being served with re-‐direct interrogatories,

a party may serve: -‐ recross-‐interrogatories -‐ UPON the party proposing to take

the deposition.



Sec. 26. Officers to take responses and prepare record. A copy of the notice and copies of all interrogatories served shall be delivered: -‐ BY the party taking the deposition -‐ TO the officer designated in the notice, who shall

proceed promptly, in the manner provided by sec 17, 19 and 20 of this Rule: 1. To take the testimony of the witness in response to

the interrogatories AND 2. To prepare, certify, and file or mail the deposition,

attaching thereto the copy of the notice and the interrogatories received by him.

Sec. 27. Notice of f i l ing and furnishing copies. When a deposition upon interrogatories is filed, the officer taking it shall : 1. Promptly give notice thereof to all the parties, AND 2. May furnish copies to them or to the deponent upon

payment of reasonable charges therefor. Sec. 28. Orders for the protection of parties and deponents. AFTER the service of the interrogatories and PRIOR to the taking of the testimony of the deponent, the court in which the action is pending:

-‐ On motion promptly made by a party or a deponent, AND

-‐ For good cause shown, MAY make any:

1. Order specified in sections 15, 16 and 18 of this Rule which is appropriate and just OR an

2. Order that the deposition shall not be taken before the officer designated in the notice OR that it shall not be taken except upon oral examination.

Sec. 29. Effects of errors and irregularities in depositions. (a) As to notice.

-‐ All errors and irregularities in the notice for taking a deposition are waived

-‐ UNLESS written objection is promptly served upon the party giving the notice.

(b) As to disqualification of officer. -‐ Objection to taking a deposition because of

disqualification of the officer before whom it is to be taken is waived

-‐ UNLESS made BEFORE the taking of the deposition begins OR as SOON THEREAFTER as the disqualification becomes known or could be discovered with reasonable diligence.

(c) As to competency or relevancy of evidence. -‐ Objections to the competency of a witness or the

competency, relevancy, or materiality of testimony are NOT waived BY failure to make them before or during the taking of the deposition,

-‐ UNLESS the ground of the objection is one which might have been obviated OR removed if presented at that time.

(d) As to oral examination and other particulars. -‐ Errors and irregularities occurring at the oral

examination in the manner of taking the deposition: 1. In the form of the questions or answers, 2. In the oath or affirmation, or 3. In the conduct of the parties and errors of any kind

which might be obviated, removed, or cured if promptly prosecuted,

are waived -‐ UNLESS reasonable objection thereto is made at the

taking of the deposition.

(e) As to form of written interrogatories. -‐ Objections to the form of written interrogatories

submitted under sec 25 and 26 of this Rule are waived -‐ UNLESS served in writing upon the party

propounding them 1. Within the time allowed for serving succeeding cross

or other interrogatories AND 2. Within 3 days AFTER service of the last

interrogatories authorized.

(f) As to manner of preparation. -‐ Errors and irregularities in the manner in which the

1. Testimony is transcribed or the 2. Deposition is prepared, signed, certified, sealed,

indorsed, transmitted, filed, OR otherwise dealt with by the officer under sec 17, 19, 20 and 26 of this Rule

are waived -‐ UNLESS a motion to suppress the deposition or some

part thereof is made: 1. With reasonable promptness after such defect is, OR 2. With due diligence might have been, ascertained.

Diman v. Hon. Alumbres : A trial court has no discretion to determine what the consequences of a party's refusal to allow or make discovery should be; it is the law which makes that determination; and it is grave abuse of discretion for the Court to refuse to recognize and observe the effects of that refusal as mandated by law. (Nov 98)



RULE 24: DEPOSITIONS BEFORE ACTION OR PENDING APPEAL

• A deposition before action and a deposition pending

appeal are referred to as perpetuation of testimony or perpetuam rei memoriam because their objective is to perpetuate the testimony of a witness for future use.

• Depositions under this Rule are also taken conditionally, to be used at the trial only in case the deponent is not available.

• Depositions under this Rule do not prove the existence of

any right and the testimony perpetuated is not in itself conclusive proof, either of the existence of any right nor even of the facts to which they relate, as it can be controverted at the trial in the same manner as though no perpetuation of testimony was ever had.

• However, in the absence of any objection to its taking,

and even if the deponent did not testify at the hearing, the perpetuated testimony constitutes prima facie proof of facts referred to in the deposition.

Sec 1. Depositions before action; petition. A person who desires to perpetuate his own testimony OR that of another person

-‐ regarding any matter that may be cognizable in any court of the RP,

may fi le a verified petition in the court of the place of the residence of any expected adverse party. Note: This may be availed of only in civil cases and NOT in criminal cases. e .g . The petitioner has a cause of action which has not yet accrued. In such a case, inasmuch as he cannot bring the action until the cause of action accrues, he may perpetuate his testimony or that of another person. Sec. 2 . Contents of petition. The petition 1. Shall be entitled in the name of the petitioner AND 2. Shall show:

(a) That the petitioner expects to be a party to an action in a court of the RP BUT is presently unable to bring it or cause it to be brought;

(b) The subject matter of the expected action AND his interest therein;

(c) The facts which he desires to establish by the proposed testimony AND his reasons for desiring to perpetuate it ;

(d) The names or a description of the persons he expects will be adverse parties AND their addresses so far as known; AND

(e) The names and addresses of the persons to be examined AND the substance of the testimony which he expects to elicit from each, and

3. Shall ask for an order: -‐ Authorizing the petitioner to take the depositions of

the persons to be examined named in the petition -‐ For the purpose of perpetuating their testimony.

Note: The petition shall be verified and shall be filed in the place of residence of any expected adverse party. Sec. 3 . Notice and service. The petitioner shall: -‐ Serve a notice upon each person named in the petition

as an expected adverse party, together with a copy of the petition,

-‐ Stating that: the petitioner will apply to the court, at a time and place named therein, for the order described in the petition.

At least 20 days BEFORE the date of the hearing, the court shall :

-‐ Cause notice thereof to be served on the parties and prospective deponents

-‐ In the manner provided for service of summons. Sec. 4 . Order and examination. IF the court: is satisfied that the perpetuation of the testimony may prevent a failure or delay of justice, it shall make an order:

1. Designating or describing the persons whose deposition may be taken AND

2. Specifying the subject matter of the examination and whether the depositions shall be taken upon oral examination or written interrogatories.

• The depositions may then be taken in accordance with Rule 23 BEFORE the hearing.

Sec. 5 . Reference to court. For the purpose of applying Rule 23 to depositions for perpetuating testimony, each reference therein to the court in which the action is pending shall be deemed to refer to the court in which the petition for such deposition was filed. Sec. 6 . Use of deposition. IF a deposition to perpetuate testimony:

-‐ is taken under this Rule, OR -‐ if, although not so taken, it would be admissible in

evidence, it may be used in any action involving the same subject matter subsequently brought, in accordance with the provisions of sections 4 and 5 of Rule 23.



Sec. 7. Depositions pending appeal . IF an appeal has been taken from a judgment of a court, including the CA in proper cases, OR before the taking of an appeal if the time therefore has not expired: • The court in which the judgment was rendered:

-‐ May allow the taking of depositions of witnesses to perpetuate their testimony for use in the event of further proceedings in the said court.

• In such case, the party who desires to perpetuate the testimony: -‐ May make a motion in the said court for leave to take

the depositions, -‐ UPON the same notice and service thereof AS IF the

action was pending therein. The motion shall state:

(a) The names and addresses of the persons to be examined and the substance of the testimony which he expects to elicit from each; AND

(b) The reason for perpetuating their testimony. IF the court f inds that the perpetuation of the testimony is proper to avoid a failure or delay of justice -‐ It MAY: make an order allowing the depositions to be

taken, and -‐ Thereupon the depositions MAY be: taken AND used

in the same manner and under the same conditions as are prescribed in these Rules for depositions taken in pending actions.

Note: Depositions are taken pending appeal with the view to their being used in the event of further proceedings in the court of origin or appellate court. e.g. A party may perpetuate the testimony of a witness which was objected by the adverse party and ruled out by the court. If the appellate court should reverse the decision/order of the lower court, it could admit the deposition as additional evidence or remand the case back to the lower court for such admission in accordance with Sec 4 and 5 of Rule 23.

RULE 25: INTERROGATORIES TO PARTIES

PURPOSE of Written Interrogatories: To elicit material and relevant facts from any adverse party. Note: Written interrogatories and the answers thereto must both be FILED and SERVED. Hence, answers may constitute judicial admissions. (Sec 4 Rule 129)

Interrogatories Bil l of Particulars Designed to disclose all

material and relevant facts. Not directed at a pleading.

Designed to clarify ambiguities in a pleading. Directed at the pleading.

Disclosure of matters of proof Disclosure only of matters which define the issues

May be made part of the records as evidence

Becomes a part of the pleadings

Depositions Upon Written Interrogatories to Parties (Rule 23, Sec 25)

Interrogatories to Parties (Rule 25)

Deponents Any person, either party or

witness Served upon the adverse

party directly Scope Procedure

Direct, cross, redirect, recross.

Only one set of interrogatories

Interrogatories No fixed time 15 days to answer unless

extended or reduced by court Intervention

With intervention of the office who is authorized to

take the deposition

No intervention since interrogatories are directed

to the party himself Sec 1. Interrogatories to parties; service thereof. Under the same conditions specified in sec 1 of Rule 23, ANY party desiring to elicit material and relevant facts from any adverse parties shall: -‐ f i le and serve upon the latter written interrogatories

to be answered: 1. BY the party served OR, 2. IF the party served is a public or private corporation

or a partnership or association, BY any officer thereof competent to testify in its behalf .

A party may serve written interrogatories: 1. Without Leave of Court – After answer has been

served, for the first set of interrogatories. 2. With Leave of Court – Before answer has been served

(Ratio: At that time, the issues are not yet joined and the disputed facts are not yet clear)

• Only one set of interrogatories by the same party is

allowed. Leave of court is necessary for succeeding sets. • Interrogatories and the answers thereto should be filed

in court and served on adverse parties, so that the answers may constitute judicial admissions. (Rule 129, Sec 4)

Sec. 2 . Answer to interrogatories. The interrogatories: 1. Shall be answered fully in writing AND 2. Shall be signed and sworn to by the person making them. The party upon whom the interrogatories have been served shall:

-‐ File and serve a copy of the answers on the party submitting the interrogatories within 15 days after service thereof,

-‐ UNLESS the court, on motion and for good cause shown, extends or shortens the time.

Note: A judgment by default may be rendered against a party who fails to answer written interrogatories.



Sec. 3. Objections to interrogatories. Objections to any interrogatories may be presented to the court:

-‐ within 10 days after service thereof, -‐ with notice as in case of a motion;

AND answers shall be deferred -‐ UNTIL the objections are resolved, -‐ which shall be at as early a time as is practicable.

Sec. 4 . Number of interrogatories. NO party may, without leave of court, serve more than one set of interrogatories to be answered by the same party. Sec. 5 . Scope and use of interrogatories. • Interrogatories may: relate to any matters that can be

inquired into under section 2 of Rule 23, and • The answers may: be used for the same purposes

provided in section 4 of the same Rule. Note: Since answers to interrogatories may be used for the same purposes as depositions, they may also be the basis of summary judgment under Rule 35. Sec. 6 . Effect of failure to serve written interrogatories. GR: A party not served with written interrogatories may NOT be compelled by the adverse party:

-‐ to give testimony in open court, or -‐ to give a deposition pending appeal.

EXC: UNLESS thereafter allowed by the court for good cause shown AND to prevent a failure of justice, Note: The only exception is when the court allows it for GOOD CAUSE shown and to prevent a failure of justice. Note: The sanction adopted by the Rules is not one of compulsion in the sense that the party is being compelled to avail of the discovery mechanics, but one of negation by depriving him of evidentiary sources which would otherwise have been accessible to him.

RULE 26: ADMISSION BY ADVERSE PARTY

Sec. 1 . Request for admission. At any time AFTER issues have been joined, a party may: -‐ f i le and serve upon any other party a written

request for the ADMISSION by the latter: 1. Of the genuineness of any material and relevant

document described in and exhibited with the request OR

2. Of the truth of any material and relevant matter of fact set forth in the request.

• Copies of the documents shall be delivered with the request UNLESS copies have already been furnished.

PURPOSE OF written request for admission: To expedite trial and relieve the parties of the costs of proving facts which will not be disputed on trial and the truth of which can be ascertained by reasonable inquiry. When request may be made: At any time after the issues have been joined (After the responsive pleading has been served). What Request May Include: 1. Admission of the genuineness of any material and

relevant document; 2. Admission of the truth of any material and relevant

matter of fact set forth in the request; or 3. A matter of fact not related to any documents may be

presented to the other party for admission or denial. Written Interrogatories Request for Admission

Adverse party or witness Adverse party only NOT required to deny or

admit anything Required to admit or deny

something Written request must be filed in court and served on the

adverse party

Written request must be filed in court and served on the

adverse party Must be objected within 10

days (Rule 25) Must be objected within 15

days Distinguished from the Rule on Actionable Documents

Admission Actionable Documents Genuineness of an

evidentiary document is sought to be admitted

Original or a copy should be attached to the complaint, or

copied therein, and its genuineness and due execution is deemed impliedly admitted

If not denied under oath in accordance with Section 2, its genuineness is deemed

admitted

If not specifically denied under oath by the adverse party, it is deemed impliedly admitted

Po v. Court of Appeals: A request for admission is not intended to merely reproduce or reiterate the allegations of the requesting party’s pleading but should set forth relevant evidentiary matters of fact, or documents described in and exhibited with the request, whose purpose is to establish said party’s cause of action or defense. (164 SCRA 668 (1998)) Sec. 2 . Implied admission. Each of the matters of which an admission is requested shall be DEEMED ADMITTED UNLESS: -‐ within a period designated in the request, which shall

NOT BE LESS than 15 days after service thereof, or -‐ within such further time as the court may allow on

motion,



the party to whom the request is directed: files and serves upon the party requesting the admission a sworn statement EITHER:

1. Denying specifically the matters of which an admission is requested OR

2. Setting forth in detail the reasons why he cannot truthfully either admit or deny those matters.

Objections to any request for admission:

-‐ Shall be submitted to the court BY the party requested

-‐ Within the period for and PRIOR to the filing of his sworn statement as contemplated in the preceding paragraph and

his compliance therewith shall be deferred -‐ UNTIL such objections are resolved, -‐ which resolution shall be made as early as

practicable. Remedy of the Party in This Case: File a motion to be relieved of the consequences of the implied admission. The amendment of the complaint per se cannot set aside the legal effects of the request for admission since its materiality has not been affected by the amendment. Sec. 3 . Effect of admission. Any admission made by a party pursuant to such request: -‐ Is for the purpose of the pending action ONLY and -‐ Shall not constitute an admission by him for any other

purpose -‐ Nor may the same be used against him in any other

proceeding. Use of the Admission: An admission under this section is for the purpose of the pending action only. Sec. 4 . Withdrawal. The court MAY allow the party making an admission under this Rule, whether express or implied,

-‐ to withdraw OR amend it upon such terms as may be just.

Note: To effect the withdrawal, the admitting party should file a motion to be relieved of the effects of his admission Sec. 5 . Effect of failure to fi le and serve request for admission. UNLESS:

1. Otherwise allowed by the court for good cause shown AND

2. To prevent a failure of justice, A party who fails to f i le and serve:

-‐ a request for admission on the adverse party of material and relevant facts at issue which are, or ought to be, within the personal knowledge of the latter,

SHALL NOT be permitted to present evidence on such facts.

RULE 27: PRODUCTION OR INSPECTION OF DOCUMENTS OR THINGS

Production of documents affords more opportunity for discovery than a subpoena duces tecum because in the latter, the documents are brought to the court for the first time on the date of the scheduled trial wherein such documents are required to be produced. TEST of Relevancy and Sufficiency of their Description: One of reasonableness and practicality. Sec. 1 . Motion for production or inspection; order. UPON motion of any party showing good cause therefore, the court in which an action is pending MAY: (a) ORDER any party to produce and permit the

inspection and copying or photographing, by or on behalf of the moving party, -‐ Of any designated documents, papers, books,

accounts, letters, photographs, objects or tangible things: 1. Not privileged, 2. Which constitute or contain evidence material to

any matter involved in the action and 3. Which are in his possession, custody or control;

OR (b) ORDER any party to permit entry:

-‐ UPON designated land OR other property in his possession or control

-‐ For the purpose of: Inspecting, measuring, surveying, or photographing the property OR any designated relevant object or operation thereon.

The order: -‐ Shall specify the time, place and manner of making the

inspection and taking copies and photographs, AND -‐ May prescribe such terms and conditions as are just. Motion for production or inspection: Only applicable to a PENDING ACTION Distinguished from Subpoena Duces Tecum Production or Inspection of Documents or things

Subpoena Duces Tecum

Essentially a mode of discovery Means of compelling production of evidence

The Rules is limited to the parties to the action

May be directed to any person

The order under this Rule is issued only upon motion with notice to the adverse party

May be issued upon an ex parte application

Note: The rule is not intended for use as a dragnet or any fishing expedition.



Note: In a petition for the production of papers and documents, they must be sufficiently described and identified. Otherwise, the petition cannot prosper.

Tanda v. Aldaya: This mode of discovery does not authorize the opposing party or the clerk of other functionaries of the court to distrain the articles or deprive the person who produced the same of their possession, even temporarily. (Nov, 59)

RULE 28: PHYSICAL AND MENTAL EXAMINATION OF PERSONS

Sec. 1 . When examination may be ordered. • In an action in which: The mental or physical

condition of a party is in controversy, • The court in which the action is pending MAY in

its discretion: order him to submit to a physical or mental examination by a physician.

When examination may be ordered -‐ This applies only to parties, NOT witnesses. -‐ Since the results of the examination are intended to be

made public, the same are not covered by the physician-‐patient privilege. Sec 24(b), Rule 130

-‐ Ex. The mental condition of a party is in controversy in proceedings for GUARDIANSHIP over an imbecile or insane person, while the physical condition of the party is generally involved in PHYSICAL INJURIES cases.

Examples of Mental or Physical Condition of a party in controversy: o In an action to recover damages for personal injury, the

physical condition of the plaintiff in controversy. o In a petition for guardianship on the ground of insanity,

the mental condition of the ward is in controversy. o An action for annulment of a contract where the ground

relied upon is insanity or dementia.

Sec. 2 . Order for examination. The order for examination may be made ONLY:

1. On motion 2. For good cause shown AND 3. UPON notice to the party to be examined and to all

other parties, AND 4. Shall specify:

a. The time, place, manner, conditions and scope of the examination AND

b. The person or persons by whom it is to be made. Good Cause: When the ends of justice so require and the examination may be made without danger to the party’s life or health or the infliction upon him of serious pain.

Discretion of Court: The Court exercises full discretion in regulating physical and mental examinations of a party to a controversy. The defendant seeking physical examination of a plaintiff has no absolute right to choose his own physician. The Court must first determine whether a physical examination is NECESSARY, then determine the PHYSICIAN who shall conduct the examination. Sec. 3 . Report of f indings. IF requested by the party examined, the party causing the examination to be made:

-‐ shall deliver to him a copy of a detailed written report of the examining physician

-‐ setting out his findings and conclusions. After such request and delivery, the party causing the examination to be made:

-‐ shall be entitled upon request to receive from the party examined a l ike report

-‐ of any examination, previously or thereafter made, of the same mental or physical condition.

• IF the party examined refuses to deliver such report,

the court on motion AND notice: -‐ MAY make an order requiring delivery on such terms

as are just, AND • IF a physician fails or refuses to make such a report

the court: -‐ MAY exclude his testimony if offered at the trial.

Sec. 4 . Waiver of privilege.

1. By requesting AND obtaining a report of the examination so ordered OR

2. By taking the deposition of the examiner, the party examined waives any privilege he may have:

-‐ in that action OR any other involving the same controversy,

-‐ regarding the testimony of every other person who has examined OR may thereafter examine him in respect of the same mental or physical examination.

Consequences where the party examined requests and obtains a report on the results of the examination: 1. He has to furnish the other party a copy of the report of

any previous or subsequent examination of the same physical and mental condition, AND

2. He waives any privilege he may have in that action or any other involving the same controversy regarding the testimony of any other person who has so examined him or may thereafter examine him.



RULE 29: REFUSAL TO COMPLY WITH MODES OF DISCOVERY

Sec. 1 . Refusal to answer. IF a party or other deponent refuses to answer any question UPON oral examination, the examination: -‐ may be completed on other matters OR adjourned -‐ as the proponent of the question may prefer. The proponent may thereafter: apply to the proper court of the place where the deposition is being taken, for an order to compel an answer.

The SAME procedure may be availed of when a party or a witness refuses to answer any interrogatory submitted under Rules 23 or 25. IF the application is granted, the court shall : 1. Require the refusing party or deponent to answer the

question or interrogatory AND 2. IF IT ALSO finds that the refusal to answer was without

substantial justification, it may require: -‐ the refusing party or deponent or the counsel

advising the refusal, or both of them, -‐ to pay the proponent the amount of the:

a. Reasonable expenses incurred in obtaining the order,

b. Including attorney’s fees.

IF the application is denied AND the court finds that it was filed without substantial justification, the court may require: -‐ the proponent or the counsel advising the filing of the

application, or both of them, -‐ to pay to the refusing party or deponent the

amount of the: 1. Reasonable expenses incurred in opposing the

application, 2. Including attorney’s fees.

Where to File for Order to Compel: 1. Rule 23: Depositions pending actions –

Application for an order must be filed with the court of the place where the deposition is being taken.

2. Rule 25: Interrogatories to parties – Application for an order must be filed with the court where the action is pending.

Sec. 2 . Contempt of court. IF a party OR other witness: -‐ Refuses to be sworn OR refuses to answer any

question -‐ After being directed to do so by the court of the

place in which the deposition is being taken, the refusal may be considered a contempt of that court.

Sec. 3 . Other consequences. IF any party OR an officer or managing agent of a party: -‐ refuses to obey an order made:

1. Under section 1 of this Rule requiring him to answer designated questions, or

2. An order under Rule 27 to produce any document or other thing for inspection, copying, or photographing or to permit it to be done, or to permit entry upon land or other property, or

3. An order made under Rule 28 requiring him to submit to a physical or mental examination,

the court may make such orders in regard to the refusal as are just , and among others the following: (a) An order that the matters regarding:

-‐ which the questions were asked, or -‐ the character or description of the thing or land, or -‐ the contents of the paper, or -‐ the physical or mental condition of the party, or -‐ any other designated facts

shall be taken to be established for the purposes of the action in accordance with the claim of the party obtaining the order; (b) An order refusing to allow the disobedient party:

1. To support or oppose designated claims or defenses OR

2. Prohibiting him: a. From introducing in evidence designated

documents or things or items of testimony, OR b. From introducing evidence of physical or mental

condition; (c) An order:

1. Striking out pleadings or parts thereof, OR 2. Staying further proceedings until the order is

obeyed, OR 3. Dismissing the action or proceeding or any part

thereof, OR 4. Rendering a judgment by default against the

disobedient party; AND (d) In lieu of any of the foregoing orders or in addition

thereto, an order: -‐ Directing the arrest of any party or agent of a

party -‐ For disobeying any of such orders EXCEPT an order

to submit to a physical or mental examination. Note: Orders enumerated above are NOT exclusive. Sec. 4 . Expenses on refusal to admit. 1. IF a party AFTER being served with a request

under Rule 26 to admit the genuineness of any document or the truth of any matter of fact, serves a sworn denial thereof AND

2. IF the party requesting the admissions thereafter: proves the genuineness of such document OR the truth of any such matter of fact,



he may apply to the court for an order requiring the other party: to pay him the:

a. Reasonable expenses incurred in making such proof, b. Including attorney’s fees.

UNLESS the court f inds:

1. That there were good reasons for the denial or 2. That admissions sought were of no substantial

importance, such order shall be issued. Sec. 5 . Failure of party to attend or serve answers. IF a party OR an officer or managing agent of a party willfully:

1. Fails to appear before the officer who is to take his deposition, AFTER being served with a proper notice, OR

2. Fails to serve answers to interrogatories submitted under Rule 25 AFTER proper service of such interrogatories,

the court on motion and notice, MAY: 1. Strike out all or any part of any pleading of that

party, OR 2. Dismiss the action or proceeding or any part thereof,

OR 3. Enter a judgment by default against that party, AND 4. In its discretion, order him to pay:

a. Reasonable expenses incurred by the other, b. Including attorney’s fees.

Zepeda v. China Banking Corporation: If a party refuses to answer the whole written interrogatories, Sec 5 of Rule 29 applies. Where a party refuses to answer a particular question, in the set of written interrogatories and despite an order compelling him to answer, still refuses to obey the order, Sec 3(c) will apply. (Oct 06) Note: The matter of how, and when, the above sanctions should be applied is one that primarily rests on the sound discretion of the court where the case is pending, having always in mind the paramount and overriding interest of justice. Sec. 6 . Expenses against the Republic of the Philippines. Expenses and attorney’s fees are NOT to be imposed upon the Republic of the Philippines under this Rule.

RULE 30: TRIAL

Trial , defined: The judicial process of investigating and determining the legal controversies, starting with the production of evidence by the plaintiff and ending with his closing arguments. Trial and Hearing: Sometimes interchangeably used. Hearing however is a broader term:

Trial Hearing Reception of evidence and other processes: the period for the introduction of evidence by both parties

Not confined in trial but embraces several stages of litigation, including the pre-‐trial stage Does not necessarily imply presentation of evidence in open court but the parties are afforded the opportunity to be heard

GR There should be a trial when an issue exists. A decision should not be made without trial. EXC:

1. Judgment on the Pleading (Rule 34); 2. Summary Judgment (Rule 35); 3. Judgment on Compromise; Where the parties

entered into a compromise or an amicable settlement. (Rule 18, Art 2028 CC)

4. Judgment by Confession; or 5. Judgment with Prejudice. Where the complaint has

been dismissed with prejudice. (Rule 17). 6. Judgment under rule on summary procedure. 7. Where the parties agree in writing upon the facts

involved in litigation, and submit the case for judgment on the facts agreed upon. (Stipulation of facts) (Sec 6 Rule 30)

Sec. 1 . Notice of trial . UPON entry of a case in the trial calendar, the clerk shall: -‐ Notify the parties of the date of its trial in such manner as

shall ensure his receipt of that notice -‐ AT LEAST 5 days BEFORE such date. Session Hours: (Admin Circular No. 3-‐39, Jan 99) -‐ 8:30 A.M. to 12 noon and 2 P.M. to 4:30 P.M. from

Monday to Friday. -‐ Hours in the morning shall be devoted to the conduct of

trial. Hours in the afternoon shall be devoted to other purposes (e.g. pre-‐trial, writing decisions, etc.)

-‐ Unless the docket of the court requires otherwise, not more than 4 cases shall be scheduled for trial daily.

Sec. 2 . Adjournments and postponements. A court MAY adjourn a trial:

-‐ from day to day, AND to any stated time, -‐ as the expeditious and convenient transaction of

business may require, BUT shall have no power to adjourn a trial :

-‐ For a longer period than 1 month for each adjournment, NOR more than 3 months in all,

-‐ EXCEPT when authorized in writing by the Court Administrator, SC.

Sec. 3 . Requisites of motion to postpone trial for absence of evidence. A motion to postpone a trial on the ground of absence of evidence can be granted ONLY: -‐ UPON affidavit showing the

1. Materiality or relevancy of such evidence, AND 2. That due diligence has been used to procure it.



BUT: -‐ IF the adverse party: Admits the facts to be given in

evidence, EVEN IF he objects or reserves the right to their admissibility,

-‐ The trial shall NOT be postponed. Requisites: 1. Motion for postponement must be filed 2. The motion must be supported with an affidavit showing

the 2 item mentioned above in Sec 3 Note: A motion for postponement should not be filed on the last hour especially when there is no reason why it could not have been presented earlier (Republic vs. Sandiganbayan, 301 SCRA 237). Sec. 4 . Requisites of motion to postpone trial for i l lness of party or counsel . A motion to postpone a trial on the ground of i l lness of a party or counsel MAY be granted IF: -‐ it appears UPON affidavit or sworn certification that:

1. The presence of such party or counsel at the trial is indispensable, AND that

2. The character of his illness is such as to render his non-‐attendance excusable.

Requisites of motion to postpone trial for i l lness of party or counsel 1. A motion for postponement stating the ground relied

upon must be filed; and 2. The motion must be supported by an affidavit or sworn

certification showing the 2 items above in Sec 4 Postponement is NOT a Matter of Right: It is addressed to the sound discretion of the court. (Garces v. Valenzuela, 170 SCRA 745) Sec. 5 . Order of trial . SUBJECT to the provisions of section 2 of Rule 31, and UNLESS the court for special reasons otherwise directs, the trial: -‐ Shall be l imited to the issues stated in the pre-‐

trial order AND -‐ Shall proceed as follows: (a) The plaintiff : shall adduce evidence in support of his

complaint; (b) The defendant: shall then adduce evidence in support

of his defense, counterclaim, cross-‐claim and third-‐party complaint;

(c) The third-‐party defendant, if any: shall adduce evidence of his defense, counterclaim, cross-‐claim and fourth-‐party complaint;

(d) The fourth-‐party, and so forth, if any: shall adduce evidence of the material facts pleaded by them;

(e) The parties against whom any counterclaim or cross-‐claim has been pleaded: shall adduce evidence in support of their defense, in the order to be prescribed by the court;

(f) The parties MAY then: -‐ respectively adduce rebutting evidence ONLY, -‐ UNLESS the court, for good reasons and in the

furtherance of justice, permits them to adduce evidence upon their original case; AND

(g) UPON admission of the evidence, the case shall be: -‐ deemed submitted for decision, -‐ UNLESS the court directs the parties:

1. To argue OR 2. To submit their respective memoranda or any

further pleadings.

IF several defendants or third-‐party defendants, and so forth having SEPARATE defenses, appear by DIFFERENT counsel , -‐ the court shall determine the relative order of

presentation of their evidence. Issues in Trial: -‐ GR: Limited to the issues stated in the pre-‐trial order -‐ EXC: Unless the court so directs for special reasons.

Order of Trial

Plaintiff presents evidence in support if his complaint

Defendant files demurrer to evidence

Defendant presents evidence to support

his defense/counterclai

m/cross-‐claim/third party

complaint

Court grants motion: renders dismissal

Rebuttal Evidence by parties

Decision

After presentation of evidence:

1. Oral arguments or 2. Submission of memoranda

Court denies motion, continues with hearing Third party

defendant presents evidence, if any



Reverse Order of Trial: In this situation, the defendant presents evidence ahead of the plaintiff. When Proper: If the defendant in his/her answer relies upon an affirmative defense, a reverse order of trial is proper. Ratio: Plaintiff need not have to present evidence since judicial admissions do not require proof (Sec 2 Rule 129) Note: Evidence offered in rebuttal is not automatically excluded just because it would have been more properly admitted in the case in chief. Sec. 6 . Agreed statement of facts. The parties to any action MAY: -‐ Agree, in writing, upon the facts involved in the

litigation, AND -‐ Submit the case for judgment on the facts agreed

upon, WITHOUT the introduction of evidence.

IF the parties agree ONLY on some of the facts in issue, the trial shall be held as to the disputed facts , in such order as the court shall prescribe. This is known as STIPULATION OF FACTS and is among the purposes of a pre-‐trial. The parties may also stipulate verbally in open court. Such stipulations are binding UNLESS relief therefrom is permitted by the court on good cause shown, such as error or fraud. But counsel cannot stipulate on what their respective EVIDENCE consists of and ask that judgment be rendered on the basis of such stipulation. Note: If the parties agreed to submit the case for judgment based on the facts agreed upon, a trial need not be conducted because evidence would no longer be presented. Note: Here, the court cannot impose upon the parties a judgment different from their compromise agreement. However, the compromise agreement must not be contrary to law, morals, good customs, public order and public policy. (PBCom v. Echiverri, Aug 80) Note: Stipulations of facts are not permitted in actions for: ANNULMENT OF MARRIAGE and for LEGAL SEPARATION.

SOF in Civil Cases SOF in Criminal Cases May be signed by the counsel alone who has a special power of attorney.

Must be signed both by the counsel and the accused.

May be made verbally or in writing

Strict: It must always be in writing

Sec. 7 . Statement of judge. During the hearing or trial of a case any statement made BY the judge with reference to the case, or to any of the parties, witnesses or counsel, shall be made of record in the stenographic notes.

Sec. 8 . Suspension of actions. The suspension of actions shall be governed by the provisions of the Civil Code. ART. 2030 CC: Every Civil Action or Proceeding shall be Suspended: 1. If willingness to discuss a possible compromise is

expressed by one or both parties; or 2. If it appears that one of the parties, before the

commencement of the action or proceeding, offered to discuss a possible compromise but the other party refused the offer.

Sec. 9 . Judge to receive evidence; delegation to clerk of court. The judge of the court where the case is pending -‐ GR: Shall personally receive the evidence to be adduced

by the parties. -‐ EXC: HOWEVER:

1. In default hearings or 2. Ex parte hearings, AND 3. In any case where the parties agree in writing,

the court may delegate the reception of evidence to its clerk of court who is a member of the bar. • The clerk of court shall have NO power to rule on

objections to any question or to the admission of exhibits, • Which objections shall be resolved by the court:

-‐ UPON submission of his report and the transcripts -‐ Within 10 days from termination of the hearing.

Requisites on Valid Delegation of Power To Receive Evidence: 1. The delegation may be made only in default or ex parte

hearings, or an agreement in writing by the parties; 2. The reception of evidence shall be made only by the

CLERK OF THAT COURT who is a member of the bar; 3. Said clerk shall have NO POWER to rule on objections to

any question or to admission of evidence or exhibits; and 4. He shall SUBMIT HIS REPORT AND TRANSCRIPTS of the

proceedings, together with the objections to be resolved by the court, within 10 days from the termination of the hearing.

RULE 31: CONSOLIDATION OR SEVERANCE

Consolidation, defined: Involves several actions having a common question of law or fact which may be jointly tried. Severance, defined: A single action having a number of claims, counterclaims, cross-‐claims, third-‐party complaints, or issues which may be separately tried.



Sec. 1. Consolidation. When actions involving a common question of law or fact are pending before the court:

1. It may order a joint hearing or trial of any or all the matters in issue in the actions;

2. It may order all the actions consolidated; AND 3. It may make such orders concerning proceedings

therein as may tend to avoid unnecessary costs or delay.

-‐ GR: Consolidation is discretionary upon the court. -‐ EXC: Consolidation becomes a matter of duty when the

cases are: 1. Pending before the same judge; or 2. Filed with different branches of the same RTC and one of

such cases has not been partially tried. Purpose: To avoid multiplicity of suits, guard against oppression or abuse, prevent delay, clear congested dockets, simplify the work of the trial court and save unnecessary costs and expenses. Requisites for Consolidation 1. Actions which involves a COMMON QUESTION of law or

fact; and 2. The actions are pending before the SAME COURT.

Note: If filed with different courts, authorization from the SC is necessary. 3 Ways of Consolidating Cases 1. By Recasting The Cases Already Instituted –

Reshaping of the cases by amending the pleading and dismissing some cases and retaining only one case. There must be joinder of causes of action and of parties. Conducting only one hearing and rendering only one decision;

2. By Consolidating the Existing Cases – It is a joint trial with joint decision, the cases retaining their original docket numbers. Holding only one hearing and rendering only one decision; and

3. By Hearing Only the Principal Case and suspending the hearing on the others until judgment has been rendered in the principal case. (TEST-‐CASE METHOD)

Note: Consolidation of cases on appeal and assigned to different divisions of the SC and the CA is also authorized. Note: The consolidation of civil and criminal cases is allowed. This is now sanctioned under Section 2(a), Rule 111 of the Rules of Criminal Procedure. Sec. 2 . Separate trials . The court, in furtherance of convenience or to avoid prejudice, MAY order a separate trial:

-‐ of any claim, cross-‐claim, counterclaim, or third-‐party complaint, or

-‐ of any separate issue or -‐ of any number of claims, cross-‐claims, counterclaims,

third-‐party complaints or issues.

Note: When the separate trial of claims is conducted by the court, it may render separate judgments on each claim.

RULE 32: TRIAL BY COMMISSIONER

Commissioner, defined: A person to whom a case pending in court is referred, for him to take testimony, hear the parties and report thereon to the court, and upon whose report, if confirmed, judgment is rendered. Sec. 1 . Reference by consent. By written consent of both parties, the court MAY order: any or all of the issues in a case to be referred to a commissioner:

1. To be agreed upon by the parties OR 2. To be appointed by the court.

As used in these Rules, the word "commissioner" includes: a referee, an auditor and an examiner. -‐ GR: Trial by commissioner depends largely upon the

discretion of the court. -‐ EXC: The following are instances when such

appointment is mandatory 1. Expropriation (Rule 67) 2. Partition (Rule 69) 3. Settlement of Estate of a deceased person in case of

contested claims and 4. Submission of accounting by executors or

administrators. Note: An irregularity in the appointment of a commissioner must be seasonably raised in the trial court where the defect could still be remedied. It can be waived by consent of the parties expressly or impliedly. Sec. 2 . Reference ordered on motion. When the parties do not consent, the court may: -‐ UPON the application of either OR of its own motion,

direct a reference to a commissioner in the following cases:

(a) When the trial of an issue of fact requires the

examination of a long account on either side, -‐ in which case the commissioner may be directed to

hear and report upon the whole issue or any specific question involved therein;

(b) When the taking of an account is necessary: 1. For the information of the court before judgment, or 2. For carrying a judgment or order into effect;

(c) When: 1. A question of fact , OTHER than upon the

pleadings arises upon motion or otherwise, in any stage of a case, or

2. For carrying a judgment or order into effect .



Sec. 3. Order of reference; powers of the commissioner. When a reference is made, the clerk shall: forthwith furnish the commissioner with a copy of the order of reference. The order: 1. May specify or limit the powers of the commissioner AND 2. May direct him to:

a. Report only upon particular issues, or b. To do or perform particular acts, or c. To receive and report evidence only, AND

3. May fix the date for: a. Beginning and closing the hearings AND b. For the filing of his report.

SUBJECT to the specifications and limitations stated in the order, the commissioner has and shall exercise the power: 1. To regulate the proceedings in every hearing before him

AND 2. To do all acts AND take all measures necessary or proper

for the efficient performance of his duties under the order.

3. He may issue subpoenas and subpoenas duces tecum, 4. Swear witnesses, AND 5. Unless otherwise provided in the order of reference, he

may rule upon the admissibility of evidence. Note: The trial or hearing before him shall proceed in all respects as it would IF held before the court. Requisites of the Order of Reference:

1. It must state the purpose 2. It must be in writing; and 3. It may specify or limit the power of the

commissioner. Note: The requirement of hearing cannot all together be dispensed with as this is the essence of due process Delegation to Clerk of

Court Trial by Commissioner

Clerk of court must be a lawyer

Commissioner need not be a lawyer

Clark cannot rule on objections or on admissibility

of evidence

Commissioner can rule on objections or on admissibility

of evidence Delegation is made during

trial Appointed even after the case

has become final and executory.

Sec. 4 . Oath of commissioner. BEFORE entering upon his duties the commissioner shall be sworn to a faithful and honest performance thereof.

Sec. 5 . Proceedings before commissioner. • UPON receipt of the order of reference AND • UNLESS otherwise provided therein, The commissioner shall forthwith: 1. Set a time and place for the first meeting of the

parties or their counsel to be held within 10 days AFTER the date of the order of reference AND

2. Shall notify the parties or their counsel. Sec. 6 . Failure of parties to appear before commissioner. IF a party fails to appear at the time & place appointed, the commissioner MAY:

1. Proceed ex parte OR, 2. In his discretion, adjourn the proceedings to a future

day, giving notice to the absent party or his counsel of the adjournment.

Froilan v. Pan Oriental Shipping: Where the order was merely to examine the accounts involved in the counterclaim w/o any direction to hold hearings, the commissioner does not need the presence of the parties. (Sep 54) Sec. 7 . Refusal of witness. The refusal of a witness: 1. To obey a subpoena issued by the commissioner or 2. To give evidence before him, shall be deemed a contempt of the court which appointed the commissioner. Note: Disobedience to a subpoena issued by the commissioner is deemed contempt of the court which appointed the latter. Sec. 8 . Commissioner shall avoid delays. It is the duty of the commissioner: To proceed with all reasonable diligence. Either party, on notice to the parties and commissioner, may apply to the court for an ORDER requiring the commissioner :

1. To expedite the proceedings AND 2. To make his report.

Sec. 9 . Report of commissioner. UPON the completion of the trial or hearing or proceeding before the commissioner, 1. He shall f i le with the court his report in writing

UPON the matters submitted to him by the order of reference.

2. When his powers are not specified or limited, He shall set forth his f indings of fact and conclusions of law in his report.

3. He shall attach thereto: All exhibits, affidavits, depositions, papers and the transcript, if any, of the testimonial evidence presented before him.



Sec. 10. Notice to parties of the fi l ing of report. UPON the filing of the report, the parties: 1. Shall be notified by the clerk, AND they 2. Shall be allowed 10 days within which to signify grounds

of objections to the findings of the report, if they so desire.

Objections to the report based upon grounds:

-‐ Which were available to the parties during the proceedings before the commissioner,

-‐ OTHER than objections to the findings and conclusions therein set forth,

shall not be considered by the court UNLESS they were made before the commissioner. Sec. 11. Hearing upon report. UPON the expiration of the period of 10 days referred to in the preceding section:

1. The report shall be set for hearing, after which 2. The court shall issue an order:

a. Adopting, modifying, or rejecting the report in whole or in part, OR

b. Recommitting it with instructions, OR c. Requiring the parties to present further

evidence before the commissioner or the court. Sec. 12. Stipulations as to f indings. When the parties stipulate that a commissioner’s findings of fact shall be final: -‐ ONLY questions of law shall thereafter be considered. Sec. 13. Compensation of commissioner. The court shall allow the commissioner such reasonable compensation as the circumstances of the case warrant, to be:

1. Taxed as costs against the defeated party, or 2. Apportioned, as justice requires.

RULE 33: DEMURRER TO EVIDENCE

Sec 1. Demurrer to evidence. AFTER the plaintiff has completed the presentation of his evidence, the defendant:

-‐ may move for dismissal -‐ on the ground that upon the facts and the law the

plaintiff has shown no right to relief . • IF his motion is denied: He shall have the right to

present evidence. • IF the motion is granted but on appeal the order

of dismissal is reversed: He shall be deemed to have waived the right to present evidence.

Demurrer to Evidence, defined: A motion to dismiss based on the ground of insufficiency of evidence and is presented after the plaintiff rests his case. Nature: There is only a one-‐sided trial, i.e. it is the plaintiff who has presented evidence. Purpose: To discourage prolonged litigations. Demurrer to Evidence Motion to Dismiss It is presented after the

plaintiff has rested its case Presented before a responsive pleading (answer) is made by

the defendant The ground is based on insufficiency of evidence

It may be used on any of those enumerated in Rule 16

If the motion is denied, the defendant may present his

evidence

If the motion is denied, defendant may file his responsive pleading

If the motion is granted, the complaint is dismissed. The remedy of the plaintiff is to

APPEAL

If the motion is granted, the complaint is dismissed and depending on the ground, the complaint may be re-‐filed

Two Scenarios:

Motion Denied Motion Granted BUT Reversed on Appeal

Movant shall have the right to present his evidence (The court should set the date for reception of evidence and not grant relief demanded by the

plaintiff).

Movant is deemed to have waived his right to present evidence. The decision of the appellate court will be based only on the

evidence of the plaintiff, as the defendant loses his right to have the case remanded for reception

of his evidence

Denial is interlocutory. Sec. 1, Rule 36(that judgment should state clearly and distinctly the facts and the law on which it is based), will not apply. The denial is

NOT appealable

Order of the court is an ADJUDICATION ON THE MERITS, hence, the requirement in Sec 1, Rule 36 should be complied

with

Note: An order denying a demurrer to evidence may be the subject of a petition for certiorari in case of grave abuse of discretion or an oppressive exercise of judicial authority. (Katigbak v. Sandiganbayan, 405 SCRA 558)

Civil Cases Criminal Cases

Defendant need not ask for leave of court

May be filed with or without leave of court. Leave of court is necessary so that the accused could present his evidence if the demurrer is

denied



Civil Cases Criminal Cases If the court finds plaintiff’s evidence insufficient, it will grant the demurrer by

dismissing the complaint.

If the court finds the prosecution’s evidence insufficient, it will grant the demurrer by rendering judgment acquitting accused.

The judgment of dismissal is appealable by the plaintiff. If

plaintiff appeals and judgment is reversed by the appellate court, it will decide the case on the basis of the plaintiff’s evidence with the

consequence that the defendant already loses his right to present evidence; no res judicata in dismissal due

to demurrer

Judgment of acquittal is not appealable; double jeopardy sets in

If court denies demurrer, defendant will present his

evidence

If court denies the demurrer: a. If demurrer was with leave, accused may present evidence; b. If the demurrer was w/out leave, accused can no longer present his evidence & case is submitted for decision based on the prosecution’s evidence

Judgment on Demurrer to Evidence: A judgment rendered by the court dismissing a case upon motion of the defendant, made after plaintiff has rested his case, on the ground that upon the facts presented by the plaintiff and the law on the matter, plaintiff has not shown any right to relief.

RULE 34: JUDGMENT ON THE PLEADINGS

Sec 1. Judgment on the pleadings. Where an answer:

1. Fails to tender an issue, OR otherwise 2. Admits the material allegations of the adverse

party’s pleading, the court may, on motion of that party -‐ direct judgment on such pleading. HOWEVER, in actions for:

1. Declaration of nullity OR 2. Annulment of marriage OR for 3. Legal separation,

the material facts alleged in the complaint shall ALWAYS be proved. Judgment on the Pleadings: A judgment rendered by the court upon motion of the claimant on the ground that an answer fails to tender an issue, or otherwise admits the material allegations of the adverse party’s pleading.

• Judgment on the pleadings is rendered without a trial, or even without a pre-‐trial

• The concept of judgment on the pleadings will not apply when no answer is filed.

• By moving for judgment on the pleading, plaintiff WAIVES his claim for unliquidated damages. Claim for such damages must be alleged and proved.

Motion Required -‐ A judgment on the pleadings must be on motion of the

claimant. -‐ Note however, Sec 2(g) Rule 18 where courts during pre-‐

trial are empowered on its own to determine the propriety of rendering a judgment on the pleadings, summary judgment. (See also Luzon Development Bank v. Conquilla, Sept 05 motu proprio)

Falcasantos v. How Suy Ching : One who prays for judgment on the pleadings without offering proof as to the truth of his own allegations and without giving the opposing party an opportunity to introduce evidence, must be understood to ADMIT all MATERIAL and RELEVANT ALLEGATIONS of the opposing party and to rest his motion for judgment on those allegations taken together with such of his own as are admitted in the pleadings. (91 Phil 456 (1952)) Allegations Not Deemed Admitted by Fil ing of Judgment on the Pleadings

1. Irrelevant allegations 2. Immaterial allegations and 3. Allegations of damages in the complaint.

Grounds for Judgment on the Pleadings 1. Answer fails to tender an issue because of:

a. General denial of the material allegations of the complaint; or

b. Insufficient denial of the material allegations of the complaint.

2. Answer admits material allegations of the adverse party’s pleading.

Judgment on the Pleadings Judgment by Default The defendant answered, but did not tender an issue or admitted the material

allegations in the complaint

The defendant did not file an answer

Evidence is not received as the same is based on the pleadings

alone

Evidence is received

Decision is based on the allegations in the pleadings

Decision is based on the evidence presented

Motion to Dismiss Motion for Judgment on

the Pleadings Filed by defendant to a complaint, counterclaim, cross-‐claim or third-‐party

complaint

Filed by the plaintiff if the answer raises no issue



Note: If the complaint states no cause of action, a motion to dismiss should be filed and not a motion for judgment on the pleading

Note: A motion for judgment on the pleadings is one that is considered ex parte because upon particular facts thus presented, the plaintiff is entitled to judgment motu proprio under Rule 18 (2g) (Dino v. Valencia, July 89)

RULE 35: SUMMARY JUDGMENTS

Summary Judgment, defined: Judgment rendered by the court without trial for the prompt disposition of civil actions wherein it clearly appears that there exist no genuine issue or controversy as to any material fact except maybe the amount of damages. (Also called “Accelerated Judgment”) Genuine Issue, defined: An issue of fact which calls for the presentation of evidence as distinguished from a sham, fictitious, contrived, and patently unsubstantial so as not to constitute a genuine issue for trial. Note: What triggers a summary judgment is the absence of a genuine FACTUAL issue. Hence, even if there is a complicated question of law, if there is no issue as to the facts, a summary judgment is not barred. (Velasco v. CA, 329 SCRA 392) Example: In action for foreclosure of mortgage where the defendant admits the existence of the debt and raises an issue as to the demandability or the interest rate involved, summary judgment would be proper Note: Even if on their face, the pleadings appear to raise issues, when the affidavits depositions and admissions show that such issues are not genuine, then summary judgment must ensue as a matter of law.

Summary Judgment

Judgment on the Pleadings

Judgment by Default -‐ Rule 9

Based on the pleadings, depositions,

admissions, and affidavits

Based solely on the pleadings

Based on the complaint and evidence, if

presentation is required

Available to both plaintiff and defendant

Generally available only to the

plaintiff, unless the defendant presents a counterclaim

Available to plaintiff

There is no genuine issue between the

parties, i.e. there may be issues but

these are irrelevant

The answer fails to tender an issue or

there is an admission of material allegations

No issues as no answer is filed by the defending

party

10-‐day notice required

3-‐day notice required

3-‐day notice rule applies

Summary Judgment

Judgment on the Pleadings

Judgment by Default -‐ Rule 9

May be interlocutory or on the merits

On the merits On the merits

Available only in actions to recover a debt, or for a liquidated sum of money or for

declaratory relief

Available in any action EXCEPT annulment of marriage or legal

separation cases

If filed by plaintiff, it must be filed at any time after

answer is filed; if served by

defendant, it may be filed any time even before there is an answer.

There is already an answer filed.

There is no answer filed.

Note: Summary judgments are made specifically applicable to a special civil action for declaratory relief. (Rule 63) Sec. 1 . Summary judgment for claimant. A party seeking to recover:

-‐ UPON a claim, counterclaim, or cross-‐claim or to obtain a declaratory relief

-‐ May: At any time AFTER the pleading in answer thereto has been served,

-‐ Move WITH supporting affidavits, depositions or admissions for a summary judgment in his favor upon all or any part thereof.

Who can File 1. Plaintiff : He must wait for the answer to be filed and

served, and thus for the issue to be joined, before he can move for summary judgment.

2. Defendant: He can move for summary judgment at anytime, that is, anytime after filing and service of the complaint even before he answers

Note: The party who moves for summary judgment has the burden of demonstrating clearly the absence of any genuine issue of fact, or that the issue posed in the complaint is patently unsubstantial so as not to constitute a genuine issue for trial. Test: W/n the pleadings, affidavits and exhibits in support of the motion are sufficient to overcome the opposing papers and to justify the finding that, as a matter of law, there is no defense to the action or claim. (Estrada v. Consolacion, June 76)



Sec. 2. Summary judgment for defending party. A party against whom: a claim, counterclaim, or cross-‐claim is asserted or a declaratory relief is sought

-‐ MAY, at any time, move WITH supporting affidavits, depositions or admissions

-‐ for a summary judgment in his favor as to all or any part thereof.

Sec. 3. Motion and proceedings thereon. The motion shall be served: At least 10 days before the time specified for the hearing. The adverse party MAY serve opposing affidavits, depositions, or admissions: at least 3 days BEFORE the hearing. AFTER the hearing, the judgment sought shall be rendered forthwith: -‐ IF the pleadings, supporting affidavits, depositions, and

admissions on file, show that, EXCEPT as to the amount of damages: 1. There is no genuine issue as to any material fact AND 2. That the moving party is entitled to a judgment as a

matter of law. Note: Motion must also satisfy the requirements under Rule 15. Motion Required: -‐ Trial courts cannot motu proprio decide the summary

judgment on an action. Claimant must invoke the rule on summary judgment by filing a motion. (Pineda v. Guevara, Feb 07)

-‐ Note however, Sec 2(g) Rule 18 where courts are empowered to determine the propriety of rendering a judgment on the pleadings or summary judgment.

Remedies of the aggrieved party when the court grants summary judgment despite the absence of a notice of hearing:

a. To have the order set aside; b. Cure the irregularity; or c. Appeal from the final judgment.

Calubaquib v. Republic: Due process rights are violated by a motu proprio rendition of a summary judgment. The filing of a motion and the conduct of a hearing on the motion are therefore important because these enable the court to determine if the parties’ pleadings, affidavits and exhibits in support of, or against, the motion are sufficient to overcome the opposing papers and adequately justify the finding that, as a matter of law, the claim is clearly meritorious or there is no defense to the action. The non-‐observance of the procedural requirements of filing a motion and conducting a hearing on the said motion warrants the setting aside of the summary judgment. (June, 11)

Sec. 4 . Case not fully adjudicated on motion. IF on motion under this Rule:

1. Judgment is not rendered upon the whole case or for all the reliefs sought AND

2. A trial is necessary, the court at the hearing of the motion,:

-‐ by examining the pleadings and the evidence before it AND

-‐ by interrogating counsel shall ascertain:

-‐ what material facts exist without substantial controversy AND

-‐ what are actually and in good faith controverted. It shall thereupon make an order:

1. Specifying the facts that appear without substantial controversy, including the extent to which the amount of damages or other relief is not in controversy, AND

2. Directing such further proceedings in the action as are just.

The facts so specified shall be deemed established, AND the trial shall be conducted on the controverted facts accordingly. Note: This authorizes rendition of partial summary judgment but such is interlocutory in nature and is not a final and appealable judgment. (Guevarra v. CA, Aug 83) Sec. 5 . Form of affidavits and supporting papers. Supporting and opposing affidavits:

1. Shall be made on personal knowledge, 2. Shall set forth such facts as would be admissible in

evidence, AND 3. Shall show affirmatively that the affiant is competent

to testify to the matters stated therein. Certified true copies of all papers or parts thereof referred to in the affidavit shall be attached thereto or served therewith. Sec. 6 . Affidavits in bad faith. Should it appear to its satisfaction at any time that any of the affidavits presented pursuant to this Rule are presented:

1. In bad faith, OR 2. Solely for the purpose of delay,

the court shall forthwith order the offending party or counsel:

1. To pay to the other party the amount of the: a. Reasonable expenses which the filing of the

affidavits caused him to incur b. Including attorney’s fees.

2. It MAY, after hearing, further adjudge the offending party or counsel guilty of contempt.



Bases of Summary Judgment: 1. Affidavits made on personal knowledge; 2. Depositions of the adverse party or a third party under

Rule 23; 3. Admissions of the adverse party under Rule 26; or 4. Answers to interrogatories under Rule 25; All intended to show that:

a. There is no genuine issue as to any material fact, EXCEPT damages which must always be proved; &

b. The movant is entitled to a judgment as a matter of law.

Note: Even if the answer does tender an issue, and therefore a judgment on the pleadings is NOT proper, a summary judgment may still be rendered if the issues tendered are NOT genuine, are sham, fictitious, contrived, set-‐up in bad faith, and patently unsubstantial. (Vergara v. Suelto, 156 SCRA 753) Note: When the facts as pleaded appear uncontested or undisputed, then there is no real or genuine issue or question as to the facts, and summary judgment is called for. (Asian Construction v. PCIB 488 SCRA 192 (2006))

JUDGMENTS Judgment, defined: -‐ Final consideration and determination by a court of the

rights of the parties, upon matters submitted to it in an action or proceeding.

-‐ The court’s official and final consideration and determination of the respective rights and obligations of the parties.

Note: In the process of rendering judgment, courts can only consider facts and issues pleaded by the parties. They may not substitute their own personal knowledge for evidence nor take notice of matters other than those provided under judicial notice. (Social Justice Society v. Atienza, Dec 08) Judgment and Decision: Synonymous. KINDS OF JUDGMENTS 1. Judgment upon compromise 2. Judgment upon confession 3. Judgment upon the merits 4. Clarificatory judgment 5. Judgment non pro tunc (Now for then) 6. Judgment sin prejuicio 7. Judgment by default (Sec 3 Rule 9) 8. Judgment on the pleadings (Rule 34) 9. Summary judgment (Rule 35) 10. Several judgment (Sec 4 Rule 36) 11. Separate judgment (Sec 5 Rule 36) 12. Special judgment (Sec 11 rule 39) 13. Judgment for specific acts (Sec 10 Rule 39) 14. Judgment on demurrer to evidence (Rule 33) 15. Conditional judgment 16. Final judgment 17. Amendment judgment; and 18. Supplemental judgment.

A. Judgment upon Agreement or Compromise Definition: A judgment rendered by the court on the basis of a compromise agreement entered into between the parties. Note: It is covered by Art 2028 to 2046 of the CC When Perfected: Perfected by mere consent, manifested by the meeting of the minds and does NOT need judicial approval for its perfection. (Villaluz v. Ligon, Aug 05) Note: Parties may submit to a compromise agreement at any state of the case, even if judgment has already become final and executory, even w/o approval of the court. Constitutes Res Judicata • A judgment on a compromise agreement has upon the

parties the effect and authority of res judicata. • Judgment upon a compromise is immediately executory

upon the signing of the compromise agreement in the absence of a motion to set aside on the ground of fraud, mistake, etc. (World Machine Ent v. IAC, Dec 90)

• Substantive law does not require court approval for res judicata to attach. HOWEVER, there shall be no execution of the compromise agreement except in compliance of a judicial compromise. (Art 2037 CC)

• Once approved by the court , a judicial compromise is conclusive upon the parties and is not appealable. The order of approval becomes part of the judgment that can be enforced by a writ of execution.

Binding Effect: A compromise agreement is a contract which requires the consent of the parties. Hence, it cannot bind a party who did not voluntarily take part in the settlement itself and give specific individual consent. Effect of Non Compliance: If one party refuses to abide by the agreement, the other party may enforce the compromise or regard it as rescinded and insist upon the original claim (Art 2041 CC) Assailing a Judgment by Compromise: Compromise may be assailed on the ground that the agreement was obtained either by fraud violence, intimidation, falsity of documents or other vices of consent. (Art 2038 CC) -‐ Judicial Compromise: File a motion to set aside -‐ Result of a Contract , Not Judicial – File an action to

annul the compromise B. Judgment by Confession

Definition: Judgment upon confession is one which is rendered against a party upon his petition or consent. It usually happens when the defendant appears in court and confesses the right of the plaintiff to judgment or files a pleading expressly agreeing to the plaintiff’s demand.



Two kinds of judgment by confession 1. A judgment by Cognovit Actionem – Here, the

defendant after service instead of entering a plea, acknowledged and confessed that the plaintiff’s cause of action was just and rightful.

2. A judgment by Confession Relicta Verificatione – After pleading and before trial, the defendant both confessed the plaintiff’s cause of action and withdrew or abandoned his plea or other allegations, whereupon judgment was entered against him without proceeding to trial. Judgment upon Compromise

Judgment by Confession

The provisions and terms are settled and agreed upon by the parties to the action, and which is entered in the

record by the consent of the court.

An affirmative and voluntary act of the defendant himself. The court exercises a certain amount of supervision over the entry of judgment.

Note: Remedy against judgment by consent, confession or compromise is to first file a motion to set it aside, then if denied, file the appropriate petition under Rule 65. (Sec 1 Rule 41) C . Judgment Upon the Merits Definition: -‐ Judgment rendered after consideration of the evidence

submitted by the parties during the trial of the case. -‐ “On the Merits” When it amounts to a legal declaration

of the respective rights and duties of the parties, based upon the disclosed facts.

-‐ Merits: A matter of substantive law and refers to the real or substantial grounds of action or defense. It is not a matter of form or refers to technical or collateral matters.

Note: Jurisprudence does not require that a judgment on the merits be one rendered after a full blown trial. Examples of Judgment Upon the Merits: 1. A ruling based on a motion to dismiss, w/o any trial or

formal presentation of evidence, can still be a judgment on the merits.

2. Dismissal on the ground of failure to state a cause of action is still a judgment on the merits.

Not Judgment Upon the Merits -‐ A judgment dismissing an action for want of jurisdiction

cannot operate as res judicata on the merits. -‐ Dismissal on the ground of the failure of the petitioner to

furnish a copy of her formal offer of evidence is only a resolution in an interlocutory order.

D. Clarificatory Judgment

Rendered by the court, upon motion, when a judgment previously rendered is ambiguous or difficult to comply or execute.

Amended or Clarified

Judgment Supplemental Decision

It is an entirely new decision and supersedes the original

judgment

Does not take the place of or extinguish the original

judgment Court makes a thorough study of the original judgment and renders the amended and clarified judgment only after considering all the factual and

legal issues

Serves to bolster or add to the

original judgment

E. Judgment Non Pro Tunct (now for then)

A judgment intended to enter into the records, acts which had already been done, but which do not appear in the records.

Function: It is not to render a new judgment or to correct a judicial error but to make the records show what the judicial action really was but was omitted from the records. Beyond Scope: A motion that seeks the inclusion of matters that were not parts of the judicial action is beyond the scope of the judgment, F . Judgment Sin Prejuicio -‐ A brief judgment containing only the dispositive portion

w/o prejudice to the making of a more extensive discussion of the findings of fact and law to support it.

-‐ It is not a final decision. -‐ Current use may refer to dismissal of a case w/o

prejudice to its being re-‐filed. G. Conditional Judgment

-‐ One the effectivity of which depends upon the occurrence

or non-‐occurrence of an event. -‐ Such is generally void because of the absence of a

disposition. (Cu Unijeng v, Mabalacat, 70 Phil 384) H. Incomplete Judgment

-‐ One which leaves certain matters to be settled in a

subsequent proceeding. (Ignacio v. Hilario, 76 Phil 605) -‐ There is a decision but there are still other matters to be

incorporated later in such decision.



[OTHER DECISIONS/ORDERS]

I . Memorandum Decision -‐ The judgment or final resolution of the appellate court

may adopt by reference the findings of facts and conclusions of law contained in the decision of the trial court.

-‐ Reason for allowing: To avoid cumbersome reproduction and repetition of the decision

Minimum Requirements: As long as the memorandum decision states the nature of the case, summarizes the facts with reference to the record and contains a statement of the applicable laws and jurisprudence and the tribunal’s assessment and conclusions on the case. Note: Such decision must not simply incorporate the findings of facts and the conclusions of law of the lower court by reference. It must also provide direct access to the facts and the law being adopted, contained in a statement attached to the decision and made an indispensable part of the decision. (Francisco v. Permskul, 173 SCRA 324) J . Interlocutory Orders -‐ Are not decisions w/in the constitutional definition. -‐ Those which determine incidental matters that do not

touch on the merits of the case or put an end to the proceedings. It is not a final disposition of the case.

-‐ “Interlocutory” refers to something intervening between the commencement and the end of the suit.

Examples: Order denying a motion to dismiss, an order denying an extension to file pleading. Remedy Against Interlocutory Orders

-‐ One cannot appeal this order. -‐ Proper remedy would be a petition for certiorari

under Rule 65 and NOT Rule 45. K. Resolutions of the Supreme Court -‐ Resolutions are not decisions within the Constitutional

purview.

[OTHER MATTERS OF JUDGMENT] Meaning of Rendition of Judgment -‐ Refers to the filing of the same with the clerk of court and

NOT the pronouncement of the judgment in open court. -‐ It is not the writing of the judgment nor the signing which

constitutes rendition. Period Within Which to Render a Decision -‐ All cases must be decided or resolved by

• SC: W/in 24 months from the date of their submission for decision

• Lower Courts: W/in 12 months, unless reduced by the SC.

• Lower Collegiate Courts: W/n 3 months, unless reduced by the SC. (Art 8. Sec 15, 1987 Consti)

Note: These periods are mandatory. However, the SC may extend the period upon request of the judge on reasonable reasons. Without an extension granted, a delay in the disposition of the case is tantamount to gross inefficiency. (Arap v. Mustafa, A.M. No. SCC-‐017, Mar 02) Note: The period within which to decide a case commences from the submission of the case for decision w/o memoranda. The case is considered submitted for decision upon the filing of the last memorandum or the expiration of the period to do so. In case the court allows the filing of memoranda, no further orders are necessary before they are deemed submitted for decision. (Re: Report on the Judicial Audit of RTC Brs. 29 and 59) Judgment penned by a judge who did not hear the evidence -‐ It is NOT necessary that the Judge who heard the evidence be the same judge who shall pen the decision. The succeeding judge can examine and evaluate the evidence already presented by the simple expedient going over of the transcripts of the testimony of the witnesses in the same manner as appellate courts review the evidence on record. (People v. Tumaru, 319 SCRA 515) Judgment penned by a judge who had ceased to be a judge -‐ A decision penned by a judge after his retirement cannot be validly promulgated and cannot acquire a binding effect. In a like manner, a decision penned by a judge during his incumbency cannot be validly promulgated after his retirement. When he retires, all his authority to decide any case i.e. to write, to sign and promulgate the decision has also “retired” with him. (Nazareno v. CA, 378 SCRA 28) Judgment penned by a judge who was transferred -‐ A judge who was permanently transferred to another court of equal jurisdiction before the case heard by him was decided may validly prepare and sign his decision on the said case and send the same to the court where he was originally assigned. (Valentin v. Sta Maria 55 SCRA 40) Judgments of the SC: Form part of the legal system. Every court must take cognizance of the decisions of the SC and are proper subjects of judicial notice. Rule of Stare Decisis -‐ When the SC has laid down a principle of law applicable

to a certain state of facts, it will adhere to that principle and apply it to all future cases where the facts are substantially the same.

-‐ Such principle once established, shall be followed by all courts of lower rank, in subsequent cases involving a similar legal issue.

-‐ Abandonment thereof must be based ONLY on strong and compelling reasons.



Obiter Dictum -‐ An opinion expressed by the court, which is not

necessary to the decision of the case. -‐ It is neither enforceable as a relief nor a source of a

judicially actionable claim. -‐ Such is not binding as a precedent. (Villanueva v. CA, 379

SCRA 563) Final Judgments -‐ It refers to a judgment that disposes of a case in a manner

that leaves nothing more to be done by the court. -‐ It has the effect of ending the litigation where an

aggrieved party may appeal from. -‐ It may also refer to a judgment that is capable of being

executed when appeal is not allowed or when the period to appeal has elapsed.

Note: A judgment may still be amendment if it has not yet been filed with the clerk of court. Before its filing, the same does not yet constitute a real judgment. (Ago v. CA, 6 SCRA 530) Conclusiveness of Judgments (Immutability of Judgments) General Rule: -‐ A final judgment cannot be modified, even if the purpose

is to correct perceived erroneous conclusions of the facts or law.

-‐ Once a judgment has become final and executory, it can no longer be distrubed, altered or modified. Except for clerical erros or mistakes, all the issues between the parties are deemed resolved and laid to rest.

-‐ Here, the court loses jurisdiction to amend (exc for clerical errors) or alter the same but it retains jurisdiction to execute it during its lifetime.

Exceptions: 1. To make corrections of clerical errors, not substantial

amendments. 2. Nunc pro tunc entries which cause no prejudice to any

party. 3. Whenever circumstances transpire after the finality of

the decision rendering its execution unjust and equitable. (Siy v. NLRC, Aug 05)

4. To clarify an ambiguity which is borne out by and justifiable in the context of the decision;

5. Where the judgment is void; or 6. In judgments for support, it can always be amended from

time to time.

Clerical Error Judicial Error Errors not the result of

exercise of judicial functions Mistake relates to something the court did not consider or

erroneously decided May be modified, corrected even after judgment has

become final and executory

Cannot be modified. It must be done in another case/suit

Attack of a judgment: May be direct or collateral. -‐ GR: The validity of a judgment or order of a court cannot

be collaterally attacked. -‐ EXC:

1. Lack of jurisdiction and 2. Irregularity of its entry apparent from the face of the

record. Direct Attack -‐ Before Finality:

1. Motion for new trial or reconsideration; and 2. Appeal.

-‐ After Finality: 1. Relief from judgment (Rule 38); and 2. Annulment of judgment (Rule 47). 3. Certiorari

Doctrine of Law of the Case: According to this principle, whatever is once irrevocably established as the controlling legal rule or decision between the same parties in the case continues to be the law of the case, whether correct on general principles or not, so long as the facts on which such decision was predicated continue to be the facts of the case before the court. (RCPI v. CA, Apr 06) Promulgation, defined: The process by which a decision is published, officially announced, made known to the public or delivered to the clerk of court for filing, coupled with notice to the parties or their counsel.

Court renders a decision

Losing Party

Accepts decision without further

contest

File an appeal within 15/30from notice of

judgment

File an motion for new trial or

reconsideration within 15/30from

notice of judgment

If no appeal is taken or did not avail of

remedies, judgment becomes final and

executory

If granted the court:

(1) Modifies decision or

(2) Grants new trial

If denied, losing

party may appeal

within a fresh 15

day period



RULE 36: JUDGMENTS, FINAL ORDERS AND ENTRY THEREOF

Sec 1. Rendition of judgments and final orders. A judgment or final order determining the merits of the case shall:

1. Be in writing 2. Personally and directly prepared by the judge, 3. Stating clearly and distinctly the facts and the law on

which it is based, 4. Signed by him, and 5. Filed with the clerk of the court.

Requisites of a Valid Judgment 1. The court must be clothed with authority to hear and

determine the matter before it 2. The court must have jurisdiction over the parties and

subject matter 3. Parties must have been given an opportunity to adduce

evidence in their behalf 4. Evidence must have been considered by the tribunal in

deciding the case 5. Judgment must be in writing, personally and directly

prepared by the judge. A verbal judgment is, in contemplation of law, not in esse, therefore, ineffective.

6. States clearly and distinctly the facts and the law on which it is based, signed by the judge and filed with the clerk of court. (Note: This requirement refers to decisions and final orders on the merits, not to those resolving incidental matters. [Pabl-‐Gualberto v. Gualberto V, 461 SCRA 450])

Setting Forth the Facts and the Law Upon Which the Decision is Based: -‐ Must be distinctly and clearly set forth -‐ Rule does not require that the court shall state in its

decision all the facts found in the records. -‐ Need not be a complete recital of the evidence presented. -‐ A decision with nothing to support it is a patent nullity. A

void judgment has no legal and binding effect, force or efficacy for any purpose.

Note: This rule applies also to:

-‐ Resolutions disposing of a motion to dismiss. -‐ Denial of a petition for review or motion for

reconsideration. Parts of a Decision 1. Opinion of the court – Contains the findings of fact

and conclusions of law. (Body or ratio decidendi) 2. Disposition of the case -‐ Dispositive portion or the

fallo. States whether the complaint or petition is granted or denied. Part that actually settles and declares the rights and obligations of the parties.

3 . Signature of the judge.

Conflict Between the Dispositive Portion and Body of the Decision. -‐ The dispositive portion or the fallo shall govern. This rule

rests on the theory that the fallo is the final order while the opinion in the body is merely a statement ordering nothing.

-‐ Rule applies ONLY when the final order is definite, clear and unequivocal and can be given effect w/o a need of interpretation or construction.

-‐ HOWEVER, where the body is so clear that there was a mere mistake in the dispositive portion, the body will prevail.

Sec. 2 . Entry of judgments and final orders. IF no appeal or motion for new trial or reconsideration is filed within the time provided in these Rules:

-‐ the judgment or f inal order shall forthwith be entered by the clerk in the book of entries of judgments.

The date of f inality of the judgment or final order shall be DEEMED to be the date of its entry. The record:

-‐ shall contain the dispositive part of the judgment or final order AND

-‐ shall be signed by the clerk, -‐ WITH a certificate that such judgment or final order has become final and executory.

Entry of Judgment: Refers to the physical act performed by the clerk of court in entering the dispositive portion of the judgment in the book of entries after the same has become final and executory. Relevance of Knowing the Date of the Entry of a Judgment -‐ There are some proceedings the filing of which is reckoned from the date of entry of final judgment. (ex. Execution of judgment, petition for relief)

-‐ It assumes importance in reckoning some reglementary periods.

Sec. 3 . Judgment for or against one or more of several parties. Judgment may be given:

-‐ for or against one or more of several plaintiffs, AND -‐ for or against one or more of several defendants.

When justice so demands, the court MAY:

-‐ require the parties on each side to file adversary pleadings as between themselves AND

-‐ determine their ultimate rights and obligations.



Sec. 4. Several judgments. In an action against several defendants, the court may:

-‐ when a several judgment is proper, -‐ render judgment against one or more of them, -‐ leaving the action to proceed against the others.

Several Judgment is one rendered by a court against one or more defendants and not against all of them leaving the action to proceed against the others. Fernandez v. Sta Maria: Several judgments is proper where the liability of each party is clearly separable and distinct from his co-‐parties such that the claims against each of them could have been the subject of separate suits, and the judgment for or against one of them will not necessarily affect the other. It is proper in actions against joint but not solidary debtors. (Dec 04) Sec. 5 . Separate judgments. When more than one claim for relief is presented in an action, the court, at any stage: -‐ UPON a determination of the issues material to a particular claim and all counterclaims arising out of the transaction or occurrence which is the subject matter of the claim,

-‐ MAY render a separate judgment disposing of such claim.

• The judgment shall terminate the action with respect to the claim so disposed of AND

• The action shall proceed as to the remaining claims. In case a separate judgment is rendered, the court by order 1. MAY stay its enforcement UNTIL the rendition of a

subsequent judgment or judgments and 2. MAY prescribe such conditions as may be

necessary to secure the benefit thereof to the party in whose favor the judgment is rendered.

Separate Judgment – Judgment rendered to dispose of one of the several claims for relief presented in an action. When Proper: It is proper when more than one claim for relief is presented in an action and a determination as to the issues material to the claim has been made. The action shall proceed as to the remaining claims. Sec. 6 . Judgment against entity without juridical personality. When judgment is rendered against two or more persons sued as an entity without juridical personality: the judgment shall set out their individual or proper names, IF known.

Amended or Clarified Judgment

Supplemental Decision

It is an entirely new decision and supersedes the original judgment

It does not supersede the original decision

RULE 37 (New Trial or Reconsideration) and RULE 38 (Relief from Judgments) shall be discussed under the CHAPTER on APPRAC on page 122

RULE 39: EXECUTION, SATISFACTION AND EFFECT OF JUDGMENTS

Execution, defined: Remedy provided by law for the enforcement of a final judgment. Against Whom Issued: Execution can only issue against a party and not against one who has not had his day in court. Writ of Execution: Judicial writ issued to an officer authorizing him to execute the judgment of the court. Essential Requisites of a Writ of Execution: 1. A writ of execution to be valid, must conform strictly to

every essential particulars of the judgment, and 2. It cannot vary the terms of the judgment it seeks to

enforce

Note: The writ of execution should conform to the dispositive portion of the decision to be executed and the execution is VOID if it varies the terms or it is in excess of and beyond the original judgment or award. (Banquerigo v. CA, Aug 06) Final Order or Judgment, defined: One 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 by execution what has been determined. Test to Determine Whether a Judgment or Order is Final or Interlocutory -‐ If the judgment or order leaves nothing more for the court to do with respect to the merits of the case, it is a final order. Otherwise, it is an interlocutory order. Note: Judgments and orders become final and executory by operation of law and not by judicial declaration. The trial court need not even pronounce the finality of the order as the same becomes final by operation of law. (Testate of Maria Manuel Vda De Biascan) Classes of Execution:

A. As to their nature 1. Compulsory Execution – Execution as a matter

of right (Sec 1) 2. Discretionary Execution – known as Execution

Pending Appeal (Sec 2) B. As to how it is enforced (Sec 6)

1. Execution by motion 2. Execution by independent action



Sec 1. Execution upon judgments or f inal orders. Execution shall issue as a matter of right:(requisites) 1. On motion, 2. Upon a judgment or order that disposes of the action or

proceeding 3. UPON the expiration of the period to appeal

therefrom IF no appeal has been duly perfected. IF the appeal has been duly perfected and finally resolved, the execution MAY forthwith be applied for:

-‐ In the court of origin, -‐ On motion of the judgment obligee, -‐ Submitting therewith certif ied true copies of: (a) the judgment or judgments or final order or orders sought to be enforced AND of (b) the entry thereof,

-‐ With notice to the adverse party. The appellate court may:

-‐ On motion in the same case, when the interest of justice so requires,

-‐ Direct the court of origin to issue the writ of execution. How Execution shall Issue: -‐ Even in judgments which are immediately executory, “there must be a motion to that effect and a hearing called for the purpose. (Lou v. Siapno, 335 SCRA 39)

-‐ SC Circular No. 24-‐94: A motion for the issuance of a writ of execution must contain notice to the adverse party.

-‐ A motion which does not contain a notice of hearing is a worthless piece of paper which the court has no authority to pass upon.

Where Application for Execution Made: Court of Origin -‐ If an appeal has been duly perfected and finally resolved, the execution may be applied for also in the court of origin on motion of the judgment obligee.

-‐ There is no need to wait for the records of the case to be remanded to the court of origin.

GR: Execution is a matter of right of the winning party. The court cannot refuse execution. EXC: Unless: 1. The judgment turns out to be Incomplete or

conditional 2. Judgment novated by parties 3. Equitable grounds like a change in situation of the

parties which makes execution inequitable. (Supervening fact doctrine) – note: supervening event must happen after the judgment has become final and executory.

4. Execution is enjoined 5. Judgment has become dormant. (Except support

which can be executed by motion) 6. Execution is unjust or impossible 7. When the judgment has already been executed by the

voluntary compliance with the parties. (Cunanan v. CA, 25 SCRA 265)

8. When execution is sought more than 5 years from its entry w/o the judgment having been revived. (Cunanan v. CA, supra)

9. When execution is sought against property exempt from execution.

10. When refusal to execute judgment has become imperative in the higher interest of justice. (Phil Veterans Bank v. IAC, 78 SCRA 645)

Judgment and Final orders that may be executed as a matter of right before expiration of t ime to appeal: 1. Forcible entry and detainer; 2. Injunction, receivership, accounting and support; and 3. Award, judgment, final order, or resolution of quasi-‐

judicial agencies (appealable to CA). GR: Once a judgment becomes final, the prevailing party is entitled as a matter of right to a writ of execution. Trial Court has the ministerial duty to order execution of final and executory judgments. It cannot refuse execution and is compellable by mandamus. EXC: (Same grounds to QUASH WRIT of execution) 1. Change in the situation of the parties which makes the

execution inequitable or unjust; 2. Writ of execution varies judgment. 3. Controversy was never submitted to the judgment of the

court; 4. Execution is sought against property exempt from

execution; 5. Terms of the judgment are not clear and leaves room for

interpretation; 6. Writ of execution is improvidently issued; 7. Writ of execution is defective in substance; 8. Writ of execution is issued against the wrong party; 9. Judgment debtor has been paid or otherwise satisfied; 10. Writ of execution was issued without authority. In the above exceptions, remedy is certiorari (Rule 65) When the Execution of Final and Executory Judgment May be Enjoined

1. Upon filing of a petition for relief from judgment; 2. Attack against a judgment which is void for lack of

jurisdiction, or obtained through fraud; 3. On equitable grounds; and 4. In cases falling under the 10 exceptions above.

GR: The dispositive portion of the decision is the part of the judgment that becomes the subject of execution. EXC: 1. When there is ambiguity, the body of the opinion may be

referred to for purposes of construing the judgment because the dispositive part of the decision must find support from the decision’s ratio decidendi. (Mutual Security v. CA, Sept 87)

2. Where explicit or extensive discussion and settlement of the issue is found in the body of the decision. (Wilson Ong Ching Kian Chung v. Chinese National Cereals, June 2000)



Ratio: The dispositive portion of the judgment is that which finally invests rights upon the parties, sets conditions for the exercise of those rights, and imposes the corresponding duties and obligations. (Globe v. Florendo Flores, 390 SCRA 201) Sec. 2 . Discretionary execution. (a) Execution of a judgment or f inal order pending appeal .

-‐ On motion of the prevailing party -‐ With notice to the adverse party -‐ Filed in the trial court while (1) it has jurisdiction over the case AND (2) 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 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. (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. -‐ GR: Judgments cannot be executed before the lapse of the period for appeal.

-‐ EXC: Discretionary Execution – here, the judgment need only be final and not executory.

Note: Discretionary execution must be strictly construed because it is an exception to the general rule. It is not meant to be availed of routinely and applies only in extraordinary circumstances. (Corona Int. 343 SCRA 512) When Issuance of Writ of Execution is Discretionary 1. Execution pending appeal; and

a. While trial court has jurisdiction over the case and is in possession of either the original record or record on appeal;

b. When trial court has lost jurisdiction but has not transmitted records of the case to the appellate court; and

c. When trial court has lost jurisdiction and has transmitted records (motion for execution pending appeal with appellate court).

2. Execution of several, separate or partial judgments.

Several Judgments Separate/Partial Judgments

Rendered against one or more of several

defendants, leaving the action to proceed against the other defendants

Rendered at any stage of the action regarding a particular claim, leaving the action to proceed as to the remaining

claims

Discretionary Execution

Execution as a Matter of Right

May issue before the lapse of period to appeal, and even during appeal

Issued when period to appeal has already lapsed and no appeal has been

perfected Discretionary upon the court; there is inquiry on whether there is good reason for execution

Ministerial duty of the court provided there are no supervening events

By the Appellate Court: It can order the execution of judgment pending appeal for good reasons. By the Trial Court: May do so in the exercise of its residual jurisdiction under Rule 41 and 42. Requisites for Execution Pending Appeal

1. On motion by the prevailing party, 2. There is notice to the adverse party; 3. There are good reasons for issuing execution; 4. Good reasons must be stated in a special order; and 5. There must be due hearing.

Good Reasons -‐ Good reasons are what confer discretionary power upon the court to issue a writ of execution pending appeal. (Intramuros Tennis Club v. CA: 309 SCRA 474)

-‐ Certiorari will lie against an order granted but not founded upon good reasons. (International School v. CA, 309 SCRA 474)

-‐ What constitutes good reasons is left to the sound discretion of the court.

Examples of Good Reasons 1. Where education of a person to be supported would

unduly be delayed; 2. The immediate execution of an order to support is valid;

or 3. The judgment debtor is insolvent, except when a co-‐

defendant is solvent and his liability is subsidiary 4. When there is a danger of the judgment becoming

ineffectual. (Scotting Union v. Macadaeg, 91 Phil 891) 5. For the purpose of preventing irreparable injury. 6. When goods subject of judgment will perish or

deteriorate during the pendency of the appeal. 7. Failure in an unlawful detainer case to make the required

periodic deposits to cover the amount of rentals due.



What are Not Good Reasons 1. The mere fact that a claim is not secured, without any

allegation that the defendant is insolvent or is about to dispose of his properties;

2. Where the reason given is that an appeal is frivolous or dilatory, it is not within the competence of the trial court to determine the same. Only an appellate court can appreciate the intent of an appeal.

3. Mere posting of a bond is not of itself sufficient reason. It should be the combination of circumstances which should be considered.

4. Financial distress is also not in itself good reason.

Note: Award for actual and compensatory damages may be ordered executed pending appeal, but not moral and exemplary damages. (Ratio: Moral and exemplary damages depends on actual result of the appeal while actual damages are fixed and certain.) Sec. 3 . Stay of discretionary execution. Discretionary execution issued under Sec 2 may be stayed UPON: 1. Approval by the proper court of a sufficient

supersedeas bond 2. Filed by the party against whom it is directed, 3. Conditioned upon: the performance of the judgment

or order allowed to be executed in case it shall be finally sustained in whole or in part.

The bond thus given may be proceeded against: on motion WITH NOTICE to the surety. Supersedeas bond, defined: Filed by a petitioner and approved by the court before judgment becomes final and executory and conditioned upon the performance of the judgment appealed from in case it be affirmed wholly or in part. Note: Aside from the supersedeas bond, an aggrieved party may file a SCA of certiorari under Rule 65 against the order granting execution pending appeal where the same is not founded upon good reasons. GR: An order of execution is NOT appealable otherwise there would be no end to the litigation between the parties. EXC: 1. When the terms of the judgment are not very clear; 2. When the order of execution varies with the tenor of the

judgment. Remedy: File a SCA of certiorari under Rule 65 Sec. 4 . Judgments not stayed by appeal . Judgments in actions for: 1. Injunction, 2. Receivership, 3. Accounting 4. Support, and 5. Such other judgments as are now or may hereafter be

declared to be immediately executory,

-‐ GR: Shall be enforceable AFTER their rendition and shall NOT be stayed by an appeal taken therefrom

-‐ EXC: UNLESS otherwise ordered by the trial court. • On appeal therefrom, the appellate court in its

discretion may: make an order suspending, modifying, restoring or granting the injunction, receivership, accounting, or award of support.

• The stay of execution shall : be upon such terms as to bond OR otherwise as may be considered proper for the security or protection of the rights of the adverse party.

GR: An appeal perfected in due time stays the execution of judgment EXC: 1. Those enumerated above (Sec 4) which by express

provision of law are immediately executory and are not stayed by an appeal.

2. Those judgments that have become the object of discretionary execution. (Sec 2 Rule 39)

3. A judgment rendered against the defendant in an action for forcible entry and unlawful detainer is likewise immediately executory upon motion (Sec 19 Rule 70)

Note: The reason for the non-‐stay of judgment for support is because support is immediately needed and its delay may unduly prejudice the one in need of it. Embroidery & Apparel Control Board v. Cloribel: The rule on immediate execution of judgment in an injunction case does not apply to a judgment in an action for prohibition. (June 67) Sec. 5 . Effect of reversal of executed judgment. Where the executed judgment is:

-‐ Reversed totally or partially, or -‐ Annulled, on appeal or otherwise,

the trial court may, -‐ On motion, -‐ Issue such orders of restitution or reparation of damages as equity and justice may warrant under the circumstances.

How Restitution is Made and Effects of Reversal or Modification

Complete Reversal

Specific Restitution

Modified judgment

Creditor may not be compelled to make specific restitution; he can be required to restore the excess realized upon the execution over and above the amount finally awarded

Sale by sheriff to a 3rd person

Sale is not affected by reversal; title of 3rd person is protected, except when there is want of jurisdiction over the subject matter

Sale of a creditor to himself in a public

sale

He may be required to surrender the property



Complete Reversal

Specific Restitution

Sale to a creditor, but subsequently sold to a 3rd party

Creditor may be required to account for the value received by virtue of the sale to the 3rd party; title of 3rd party is protected, unless writ of execution is absolutely void, where: 1. Execution upon a void judgment 2. Judgment has been paid 3. Execution levied on wrong party

Sec. 6 . Execution by motion or by independent action. A f inal and executory judgment or order may be executed:

1. On motion, within 5 years from the date of its entry.

2. AFTER the lapse of such time, and BEFORE it is barred by the statute of limitations, a judgment may be enforced by action.

The revived judgment may also be enforced:

1. By motion, within 5 years from the date of its entry AND

2. Thereafter BY action BEFORE it is barred by the statute of limitations.

Modes of Enforcement 1. By motion – Within 5 years from date of entry 2. By Independent Action – After 5 years from date of

entry but before 10 years (Statute of limitations for an action in personam, Art 1144(3) CC) -‐ An independent action to revive judgment is an action incapable of pecuniary estimation filed in the RTC. It must also comply with the requirements on venue in Rule 4.

Note: A writ of execution issued by motion after 5 years from date of entry is null and void. There is a need for prevailing party to file an independent action for the revival. Auction sale after levy may be made even after the 5 year period -‐ The sale of property and the application of the proceeds are merely the means to carry out the writ of execution and a levy already validly made.

-‐ The sale must however, be made within 10 years from finality of judgment (date of entry) during which the judgment can be enforced. (Ansaldo v. Fidelity & Surety 88 Phil 547)

Lifetime of a writ of execution: -‐ Corresponds to the period within which the judgment may be enforced by motion, that is 5 years from entry of judgment

-‐ The rules do not provide any lifetime for a writ of attachment unlike a writ of execution.

Note: A judgment rendered against several defendants, jointly and severally, can be revived against one of them only. When the 5/10 Period is Not Applicable: 1. Judgment for support; and

-‐ Does not prescribe. -‐ The court never loses jurisdiction to enforce it. -‐ May still be enforced by motion even after the 5-‐year period.

2. Special proceedings. e.g. land registration proceedings.

Defenses Available in an Action for Enforcement of Judgment

1. Prescription; 2. Satisfaction of claim; and 3. Counterclaims.

Revival of Judgment • Action presupposes that the same cannot be enforced by

mere motion. • Judgment becomes dormant after 5 years without it

being executed from finality of judgment or date of its entry.

• Action prescribed 10 years from finality of judgment or the date of its entry.

Revived Judgment as an Independent Judgment • A revived judgment is deemed a new judgment separate

and distinct from the original judgment wherein the cause of action is the decision itself and not the merits of the original action.

• Its purpose is not to reopen the issues in the original action.

• It is a new cause of action and not considered a continuation of the old one and hence, should not be dependent upon the jurisdictional requirements of the original action. It does not have to be filed in the same court which rendered the original judgment.

• A revived judgment is again enforceable by motion within 5 years and thereafter, by another action to revive within 10 years from finality of the revived judgment, not the original judgment.

Compania General de Tabacos v. Martinez and Nolan: The action to revive a judgment is unlike the remedy of scire facias which the court declared is a mere incident of the original suit and must be instituted in the court where said suit was brought. Such remedy does not exist in the RP. (29 Phil 515) Proper Venue for Revival of Judgments -‐ Test: Whether it is a real or personal action -‐ Real Action: When the revival of judgment affects title to or possession of real property or interest therein.

-‐ If it is not a real action, it is a personal action



Revival of Judgment in (Sec 6)

Revival of Judgment in (Sec 34)

An independent Action Carried out through the filing of a motion in court

Assumes that there is no execution within the first 5

years

Assumes that a judgment is executed within the first 5

years The party who files the action is the judgment creditor himself, or his assignee or successor in interests.

The party who files such motion is not the original judgment creditor but he is the highest bidder in the public auction sale.

Filed due to lapse of the 5 year period.

Filed because the movant is deprived of the property

purchased. Sec. 7 . Execution in case of death of party. In case of the death of a party, execution may issue or be enforced in the following manner: (a) In case of the death of the judgment obligee:

-‐ UPON the application of his executor or administrator, or successor in interest;

(b) In case of the death of the judgment obligor:

-‐ Against his executor or administrator or successor in interest,

-‐ IF the judgment be for: a. The recovery of real or personal property, or b. The enforcement of the lien thereon;

(c) In case of the death of the judgment obligor

AFTER execution is actually levied upon any of his property, -‐ The same MAY be sold for the satisfaction of the judgment obligation, and

-‐ The officer making the sale shall account to the corresponding executor or administrator for any surplus in his hands.

Execution in case of death of party: This section applies when a party dies after rendition of judgment, before or after entry. Death of an Obligee

Execution will issue in any case

Death of an Obligor

Death before levy: • Action for recovery of real or personal property or any lien – execution will issue

• Action for a sum of money – Execution will NOT issue. The judgment obligee should file a claim against the estate of the judgment obligor under Rule 86

Death after levy: Execution will issue in any case because the property is already separated from the estate of the deceased and is deemed in custodia legis

Sec. 8 . Issuance, form and contents of a writ of execution. The writ of execution shall: 1. Issue in the name of the RP from the court which

granted the motion;

2. State the: a. Name of the court, the b. Case number and title, c. The dispositive part of the subject judgment or

order; and

3 . Require the sheriff or other proper officer to whom it is directed: to enforce the writ according to its terms, in the manner herein after provided:

a. IF the execution be against the property of the

judgment obligor to satisfy the judgment, with interest, out of the real or personal property of such judgment obligor;

b. IF it be against real or personal property in the lands of personal representatives, heirs, devisees, legatees, tenants, or trustees of the judgment obligor, to satisfy the judgment, with interest, out of such properties;

c. IF it be for the sale of real or personal property:

-‐ To sell such property, describing it, AND apply the proceeds in conformity with the judgment,

-‐ The material parts of which shall be recited in the writ of execution;

d. IF it be for the delivery of the possession of real

or personal property, -‐ To deliver the possession of the same, describing it, to the party entitled thereto, AND

-‐ To satisfy any costs, damages, rents, or profits covered by the judgment 1. Out of the personal property of the person against

whom it was rendered, AND 2. IF sufficient personal property cannot be found,

then out of the real property; AND

e. In all cases, the writ of execution shall specifically state: -‐ The amount of the interest, costs, damages, rents, or profits due as of the date of the issuance of the writ, aside from the principal obligation under the judgment.

-‐ For this purpose, the motion for execution shall specify: the amounts of the foregoing reliefs sought by the movant.

Note: The motion for execution and the writ of execution must state specifically the amount of interest, costs, damages, rents, or profits due as of the date of issuance of the writ, aside from the principal obligation. Note: An appeal is the remedy for an order denying the issuance of a writ of execution.



Note: However, an order granting the issuance of a writ of execution of a final judgment is not appealable under Rule 41, the remedy being to file an SCA under Rule 65. Sec. 9 . Execution of judgments for money, how enforced. (a) Immediate payment on demand. The officer shall enforce an execution of a judgment for money by: demanding from the judgment obligor the immediate payment of:

1. The full amount stated in the writ of execution AND 2. All lawful fees.

The judgment obligor shall pay in: 1. Cash, 2. Certified bank check payable to:

a. The judgment obligee OR b. His authorized representative if present at the

time of payment. The lawful fees shall be: Handed under proper receipt to the executing sheriff, WHO shall turn over the said amount within the same day to the clerk of court of the court that issued the writ. IF the judgment obligee or his authorized representative is not present to receive payment:

-‐ The judgment obligor shall deliver the aforesaid payment to the executing sheriff .

-‐ THE LATTER shall turn over all the amounts coming into his possession within the same day to: a. The clerk of court of the court that issued the

writ, OR b. IF the same is not practicable, deposit said

amount to a fiduciary account in the nearest government depository bank of the RTC of the locality.

The clerk of court shall thereafter: -‐ Arrange for the remittance of the deposit to the account of the court that issued the writ

-‐ WHOSE clerk of court shall then deliver said payment to the judgment obligee in satisfaction of the judgment. a. The excess, if any, shall be delivered to the

judgment obligor b. While the lawful fees shall be retained by the

clerk of court for disposition as provided by law.

• In NO case shall the executing sheriff demand: that any payment by check be made payable to him.

(b) Satisfaction by levy. IF the judgment obligor cannot pay all or part of the obligation in:

-‐ Cash, -‐ Certified bank check OR -‐ Other mode of payment acceptable to the judgment obligee,

The officer shall levy upon: -‐ the properties of the judgment obligor of every kind and nature whatsoever

-‐ which may be disposed of for value AND -‐ not otherwise exempt from execution

giving the LATTER the option to immediately choose: which property or part thereof may be levied upon, sufficient to satisfy the judgment. IF the judgment obligor does not exercise the option, the officer shall :

-‐ FIRST levy on the personal properties, IF any, AND -‐ THEN on the real properties IF the personal properties are insufficient to answer for the judgment.

The sheriff shall sell ONLY: A sufficient portion of the personal or real property of the judgment obligor -‐ which has been levied upon. When there is more property of the judgment obligor than is sufficient to satisfy the judgment and lawful fees: he must sell ONLY so much of the personal or real property as is sufficient to satisfy the judgment and lawful fees. Real property, stocks, shares, debts, credits, and other personal property, or any interest in either real or personal property: may be levied upon in like manner and with like effect as under a writ of attachment. (c) Garnishment of debts and credits . The officer may levy on:

-‐ Debts due the judgment obligor and -‐ Other credits, -‐ INCLUDING bank deposits, financial interests, royalties, commissions and other personal property not capable of manual delivery in the possession or control of third parties.

• Levy shall be made by: serving notice upon the person owing such debts or having in his possession or control such credits to which the judgment obligor is entitled.

• The garnishment shall cover ONLY: Such amount as will satisfy the judgment AND all lawful fees.

The garnishee shall : -‐ Make a written report to the court -‐ Within 5 days from service of the notice of garnishment

-‐ Stating: a. Whether or not the judgment obligor has sufficient

funds or credits to satisfy the amount of the judgment.

b. IF NOT, the report shall state how much funds or credits the garnishee holds for the judgment obligor.



The garnished amount in cash, or certified bank check issued in the name of the judgment obligee:

-‐ Shall be delivered directly to the judgment obligee -‐ Within 10 working days from service of notice on said garnishing requiring such delivery,

-‐ EXCEPT the lawful fees which shall be paid directly to the court.

IN THE EVENT there are two or more garnishees holding deposits or credits sufficient to satisfy the judgment:

-‐ The judgment obligor, IF available, shall have the right to indicate the garnishee or garnishees who shall be required to deliver the amount due;

-‐ OTHERWISE, the choice shall be made by the judgment obligee.

The executing sheriff shall : observe the same procedure under par (a) with respect to delivery of payment to the judgment obligee. 3 Ways to Enforce a Judgment for Money 1. Immediate payment on demand -‐ Judgment obligor

shall pay in cash, certified bank check payable to the judgment obligee, or any other form of payment acceptable to the latter.

2. Satisfaction by levy

Levy, defined: An act by which an officer sets apart or appropriates a part or whole of the property of the judgment debtor for purposes of the execution sale. Valenzuela v. De Aguilar: Levy is a prerequisite to the auction sale. In order that an execution sale may be valid, there must be a previous valid levy. A sale not preceded by a valid levy is void and the purchaser acquires no title.(May 63) Note: The judgment obligor exercises discretion to choose which property to levy; if not exercised, the officer shall levy first on personal property, then on real property. Note: The levy on execution creates a lien in favor of the judgment obligee over the right, title, and interest of the judgment obligor in such property at the time of the levy, subject to liens and encumbrances then existing. How Made: a . Real Property: By filing with the Register of Deeds, a

copy of the order together with the description of the property and a notice that it is attached and leaving with the occupant of the property, copy of the same order. (Sec 7a Rule 57)

b. Personal Property: If capable of manual delivery by taking and safely keeping it in the custody of the sheriff after issuing the corresponding receipt. (Sec 7b Rule 57)

Note: Levy on personal property may be actual or constructive (e.g. levy on a barge by registration w/ Philippine Coast Guard is constructive).

3. Garnishment of debts and credits Garnishment, defined: An act of appropriation by the court when the property of the debtor is in the hands of third persons. • A specie of attachment for reaching any property or

credits pertaining or payable to a judgment debtor • The garnishee or the 3rd person who is in possession of

the property of the judgment debtor is deemed a forced intervenor.

Attachment Garnishment It refers to

corporeal property in the possession of

the judgment debtor

It refers to money, stocks, credits and other incorporeal property which

belong to the judgment debtor but is in the possession or under the control of a

3rd person. Sec. 10. Execution of judgments for specific act . (a) Conveyance, delivery of deeds, or other specific acts; vesting tit le . IF a judgment directs a party: 1. To execute a conveyance of land or personal property, or 2. To deliver deeds or other documents, or 3. To perform any other specific act in connection

therewith, AND the party fails to comply within the time specified:

-‐ The court may: Direct the act to be done at the cost of the disobedient party by some other person appointed by the court and

-‐ The act when so done shall have like effect AS IF done by the party.

IF real or personal property is situated within the RP, the court in lieu of directing a conveyance thereof may:

-‐ by an order divest the title of any party AND vest it in others,

-‐ which shall have the force and effect of a conveyance executed in due form of law.

(b) Sale of real or personal property. IF the judgment be for the sale of real or personal property:

-‐ To sell such property, describing it, AND -‐ Apply the proceeds in conformity with the judgment.

(c) Delivery or restitution of real property. The officer shall demand of: The person against whom the judgment for the delivery or restitution of real property is rendered and all person claiming rights under him:

a. To peaceably vacate the property -‐ within 3 working days, AND

b. To restore possession thereof to the judgment obligee;



OTHERWISE, the officer shall : 1. Oust all such persons therefrom

-‐ With the assistance, IF necessary of appropriate peace officers, AND

-‐ Employing such means as may be reasonably necessary to retake possession, AND

2. Place the judgment obligee in possession of such property.

Any costs, damages, rents or profits awarded by the judgment: shall be satisfied in the same manner as a judgment for money. (d) Removal of improvements on property subject of execution -‐ When the property subject of the execution: contains improvements constructed or planted by the judgment obligor or his agent, -‐ GR: The officer shall NOT destroy, demolish OR

remove said improvements -‐ EXC: Upon special order of the court issued

a. UPON motion of the judgment obligee b. AFTER due hearing AND c. AFTER the former has failed to remove the same

within a reasonable time fixed by the court. (e) Delivery of personal property. In judgments for the delivery of personal property, the officer shall : 1. Take possession of the same AND 2. Forthwith deliver it to the party entitled thereto AND 3. Satisfy any judgment for money as therein provided.

Specific Acts of Execution of Judgment 1. Conveyance, delivery of deeds, or other specific acts

vesting title; 2. Sale of real or personal property; 3. Delivery or restitution of real property; 4. Removal of improvements on property subject of

execution; and 5. Delivery of personal property I f a Party REFUSES to: 1. Vacate the property – Remedy is not contempt. The

sheriff must oust the party. A demolition order from the court is required to effect removal of an improvement constructed by the defeated party. (Special order must be issued by the court) Note: This authorizes the bodily removal of the defendant and his belongings.

2. Deliver – The sheriff will take possession and deliver it to the winning party.

3. Comply – The court can appoint some other person at the expense of the disobedient party and the act shall have the same effect as if the required party performed it.

Note: The writ of execution in ejectment cases cannot be enforced on the same date the sheriff received the writ. The 3 day notice is required. (Manuel v. Escalante, Aug 02)

Note: When a decision is immediately executory, it does not mean the 3 day notice may be dispensed with. When Contempt is Proper -‐ GR: The judgment debtor cannot be cited for contempt of court. Generally, contempt is not a remedy to enforce a judgment. Note that writ of possession is not directed at the judgment debtor but to the sheriff.

-‐ Exceptions: 1. Refusal to perform a particular act or special judgments

under Sec 11 where he may be cited in contempt; and 2. In case of the provisional remedy of support pendente

lite under Rule 61, the judgment debtor may still be cited for contempt even if the decision is not a special judgment and requires the latter to pay money.

Sec. 11. Execution of special judgments. When a judgment requires the performance of any act OTHER THAN those mentioned in the two preceding sections, a certif ied copy of the judgment:

-‐ Shall be attached to the writ of execution AND -‐ Shall be served by the officer:

a. Upon the party against whom the same is rendered, OR

b. Upon any other person required thereby, or by law, to obey the same, AND

Such party or person may be punished for contempt: IF he disobeys such judgment. Special Judgment, defined: One that can be complied with only by the judgment obligor because of his personal qualifications or circumstances. -‐ It requires the performance of any other act than payment of money, or the sale or delivery of real or personal property.

Note: Failure to comply with a special judgment under Section 11 is punishable by contempt. Note however that refusal to comply with an ordinary judgment is not a ground for contempt. Sec. 12. Effect of levy on execution as to third persons. The levy on execution shall: • Create a l ien in favor of the judgment obligee • OVER: The right, title and interest of the judgment obligor

in such property at the time of the levy, subject to liens and encumbrances then existing.

Sec. 13. Property exempt from execution. EXCEPT as otherwise expressly provided by law, the following property, and no other, shall be exempt from execution: (a) The judgment obligor's:

-‐ Family home as provided by law, or -‐ The homestead in which he resides, and -‐ Land necessarily used in connection therewith;



(b) Ordinary tools and implements personally used by him in his trade, employment, or livelihood;

(c) 3 horses, or 3 cows, or 3 carabaos, or other beasts of

burden: -‐ Such as the judgment obligor may select -‐ Necessarily used by him in his ordinary occupation;

(d) His necessary clothing and articles for ordinary personal use, EXCLUDING jewelry;

(e) Household furniture and utensils necessary for housekeeping, and used for that purpose by the judgment obligor and his family: -‐ Such as the judgment obligor may select, -‐ Of a value NOT EXCEEDING 100,000 pesos;

(f) Provisions for individual or family use sufficient for 4 months;

(g) The professional libraries and equipment:

-‐ Of judges, lawyers, physicians, pharmacists, dentists, engineers, surveyors, clergymen, teachers, and other professionals,

-‐ NOT EXCEEDING 300,000 pesos in value;

(h) 1 fishing boat and accessories: -‐ Not exceeding the total value of 100,000 pesos -‐ Owned by a fisherman and -‐ By the lawful use of which he earns his livelihood;

(i) So much of the salaries, wages, or earnings of the judgment obligor of his personal services: -‐ Within the 4 months preceding the levy -‐ As are necessary for the support of his family;

(j) Lettered gravestones; (k) Monies benefits, privileges, or annuities accruing or in

any manner growing out of any life insurance; (l) The right to receive legal support, or money or property

obtained as such support, or any pension or gratuity from the Government;

(m) Properties specially exempt by law. But NO article or species of property mentioned in his section shall be exempt from execution issued:

a. Upon a judgment recovered for its price OR b. Upon a judgment of foreclosure of a mortgage

thereon. Other Properties Specially Exempt from Execution • Property mortgaged to DBP (Section 26, CA 458); • Property taken over by Alien Property Administration

(Section 9[f], US Trading With The Enemy Act); • Savings of national prisoners deposited with the Postal

Savings Bank (Act 2489); • Backpay of pre-‐war civilian employees (RA 304);

• Philippine Government backpay to guerillas (RA 897); • Produce, work animals, and farm implements of

agricultural lessees, subject to limitations (Section21, RA 6389);

• Benefits from private retirement systems of companies and establishments, with limitations (RA 4917);

• Labor wages, except for debts incurred for food, shelter, clothing, and medical attendance (Art. 1708, NCC);

• Benefit payments from the SSS (Section 16 RA 1161 as amended by PDs 24, 65, and 177);

• Copyrights and other rights in intellectual property under the former copyright law (PD 49 cf. Section 239.3, RA 8293); and

• Bonds issued under RA 1000 (NASSCO v. CIR L-‐17874 31 August 1963) (Regalado, F. Remedial Law Compendium Vol. 1, 9th ed., pp. 481-‐482).

Sec. 14. Return of writ of execution. • The writ of execution shall be returnable to the

court issuing it: IMMEDIATELY AFTER the judgment has been satisfied in part or in full.

IF the judgment:

-‐ Cannot be satisfied in full within 30 days after his receipt of the writ,

-‐ The officer shall : report to the court AND state the reason therefor.

Such writ shall continue in effect: during the period within which the judgment may be enforced by motion. The officer shall make a report to the court:

-‐ EVERY 30 days on the proceedings taken thereon -‐ UNTIL the judgment is satisfied in full, OR its effectivity expires.

The returns or periodic reports:

-‐ Shall set forth the whole of the proceedings taken, AND -‐ Shall be filed with the court

AND copies thereof promptly furnished the parties Sec. 15. Notice of sale of property on execution. BEFORE the sale of property on execution, notice thereof MUST be given as follows: (a) In case of perishable property,

-‐ BY posting written notice of the time and place of the sale a. In 3 public places, b. Preferably in conspicuous areas of the municipal

or city hall, post office and public market in the municipality or city where the sale is to take place,

c. For such time as may be reasonable, considering the character and condition of the property;



(b) In case of other personal property, -‐ BY posting a similar notice a. In the 3 public places above-‐mentioned b. For NOT LESS than 5 days;

(c) In case of real property: IF the assessed value of the property is P50K pesos or less:

IF the assessed value of the property EXCEEDS P50,000 pesos:

BY posting: -‐ For 20 days -‐ IN the 3 public places above-‐mentioned

a similar notice particularly: a. Describing the

property AND b. Stating where the

property is to be sold, and

1. BY posting notice: -‐ For 20 days -‐ IN the 3 public places above-‐mentioned AND

2. BY publishing a copy of the notice: Once a week for 2 consecutive weeks in: a. 1 newspaper selected by

raffle, whether in English, Filipino, OR

b. Any major regional language published, edited and circulated OR

c. In the absence thereof, having general circulation in the province or city;

(d) IN ALL CASES, written notice of the sale shall be given to the judgment obligor, -‐ AT LEAST 3 days BEFORE the sale, EXCEPT as provided in par (a) hereof where notice shall be given at ANY TIME BEFORE the sale,

-‐ In the same manner as personal service of pleadings and other papers as provided by Section 6 of Rule 13.

The notice shall specify: 1. The place, date AND 2. Exact time of the sale -‐ which should NOT be earlier than

9AM AND NOT later than 2PM (9AM – 2PM)

• The place of the sale MAY be agreed upon by the parties.

• In the absence of such agreement, the sale of real property or personal property not capable of manual delivery shall be held in the office of the clerk of court of the RTC or the MTC which issued the writ OR which was designated by the appellate court.

In the case of personal property capable of manual delivery, the sale shall be held in the place where the property is located. Effects of an Execution Sale Without the Required Notice: a. Sheriff and creditor are joint tortfeasors; and b. Liable in solidum because liability is joint and solidary. Want of notice does not invalidate the execution sale where purchaser is innocent and no collusion appears (buyer in good faith).

Sec. 16. Proceedings where property claimed by third person. IF the property levied on is claimed: -‐ By any person OTHER than the judgment obligor or his agent,

-‐ AND SUCH PERSON: a. Makes an affidavit of his title thereto or right to

the possession thereof, stating the grounds of such right or title, AND

b. Serves the same UPON the officer making the levy AND a copy thereof upon the judgment obligee,

the officer shall NOT be bound to keep the property, -‐ UNLESS such judgment obligee, on demand of the officer,

-‐ f i les a bond approved by the court to indemnify the third-‐party claimant in a sum not less than the value of the property levied on.

• In case of disagreement as to such value, the

same shall be determined by the court issuing the writ of execution.

• NO claim for damages for the taking or keeping of the property may be enforced against the bond UNLESS the action therefor is filed within 120 days from the date of the filing of the bond.

• The officer shall not be l iable for damages for the taking or keeping of the property, to any third-‐party claimant IF such bond is filed.

Nothing herein contained shall:

1. Prevent such claimant or any third person from: vindicating his claim to the property in a separate action, OR

2. Prevent the judgment obligee from: claiming damages in the same or a separate action against a third-‐party claimant who filed a frivolous or plainly spurious claim.

• When the writ of execution is issued in favor of the RP, or any officer duly representing it: the filing of such bond shall NOT be required, AND

• IN CASE the sheriff or levying officer is sued for damages as a result of the levy,

-‐ He shall be represented by the Solicitor General AND -‐ IF held liable therefor, the actual damages adjudged

by the court shall be paid by: the National Treasurer out of such funds as may be appropriated for the purpose.

3RD Party Claim: A claim by any person other than the judgment debtor or his agent on property levied on execution. Purpose 1. To recover property levied on by the sheriff (although 3rd

party can vindicate claim in a separate action); and 2. To hold sheriff liable for damages for the taking or

keeping of such property.



When to File: At any time, so as long as the sheriff has the possession of the property levied upon, or before the property is sold under execution. Note: The sheriff may or may not require the judgment obligee to file a bond.

Indemnity Bond Filed

No Indemnity Bond Filed

Action for damages brought against the principal and sureties on the bond

Action for damages may be brought against sheriff

himself Sheriff not liable for damages Sheriff liable for damages

Sheriff bound to keep property on behalf of judgment obligee

Sheriff not bound to keep property under levy

Note: The sheriff is at complete liberty to suspend or not to suspend execution if the judgment creditor does not file a bond. Remedies of the Creditor -‐ File a bond to indemnify 3rd party complainant; and -‐ File a claim for damages against 3rd party in the same or separate action based on the ground that 3rd party claim is frivolous or plainly spurious.

Note: The judgment creditor cannot be compelled to file a bond because he is at complete liberty to do so. Remedies of the 3rdParty 1. Summary hearing before the court which authorized the

execution 2. TERCERIA or third-‐party claim filed with the sheriff 3. Vindicate his claim in a separate action; (Note: No

intervention allowed since judgment final & executory) 4. File a separate action for damages against the sheriff (if

no bond filed); and 5. File a claim for damages against the bond. (Claim must be

within 120 days from filing of bond.) Note: The remedies are cumulative and may be resorted to by the third party claimant independently of or separately from the others.

Third Party Claim Third Party Complaint Pleading filed by a defendant against the third person not a

party to the action for contribution, indemnity, subrogation or any other

relief.

Affidavit made by a third person who claims to be

entitled to the property in the custody of the sheriff.

Filed by the third-‐party claimant

Filed by the third-‐party plaintiff

Sec. 17. Penalty for sell ing without notice, or removing or defacing notice. A. An officer selling

without the notice prescribed by Sec 15 of this Rule

Shall be l iable to pay: 1. Punitive damages in

the amount of P5,000 to any person injured thereby

2. In addition to his actual damages,

Note: Both to be recovered BY motion in the same action

B. A person willfully removing or defacing the notice posted, if done:

-‐ Before the sale, OR -‐ Before the satisfaction of the judgment IF it be satisfied before the sale

Sec. 18. No sale if judgment and costs paid. At any time BEFORE the sale of property on execution, the judgment obligor may prevent the sale by paying:

a. The amount required by the execution AND b. The costs that have been incurred therein.

Note: If judgment obligor paid the amount of judgment, NO writ of execution may be issued or implemented. Sec. 19. How property sold on execution; who may direct manner and order of sale. ALL sales of property under execution must be made:

1. At public auction 2. To the highest bidder, 3. To start at the exact time fixed in the notice.

• After sufficient property has been sold to satisfy the

execution no more shall be sold AND • Any excess property or proceeds of the sale shall:

-‐ Be promptly delivered to the judgment obligor OR his authorized representative,

-‐ UNLESS otherwise directed by the judgment or order of the court.

• When the sale is of real property, consisting of several known lots they must be sold separately; OR,

• When portion of such real property is claimed by a third person, he may require it to be sold separately.

When the sale is of personal property capable of manual delivery:

-‐ It must be sold within view of those attending the same AND

-‐ In such parcels as are likely to bring the highest price.

The judgment obligor, IF present at the sale, MAY: -‐ Direct the order in which property, real or personal, shall be sold,

-‐ When such property consists of several known lots or parcels which can be sold to advantage separately.



NEITHER the officer conducting the execution sale, NOR his deputies: 1. Can become a purchaser, NOR 2. Be interested directly or indirectly in any purchase at

such sale. Note: A valid levy is indispensable to a valid execution sale. (Tan v. CA, 162 SCRA 237) Person Prohibited from Buying Property Sold on Execution:

1. Judge who issued the writ of execution; and 2. Officer conducting sale or his deputy.

Inadequacy of Price

-‐ Mere inadequacy of price is not material if there is a right of redemption.

-‐ Shocking inadequacy of price may be a ground for setting aside the sale.

Note: Court w/c rendered judgment that became final and executory has exclusive jurisdiction. Ordinary Sale on

Execution Sale in Judicial Foreclosure of

Mortgage Need not be confirmed

by the court Must be confirmed by the court in order to divest the rights in the property of the parties and to vest the rights in the purchaser

Right of redemption

exists

There is no right of redemption, exc by the mortgagor where the mortgagee is a bank or a banking institution

Title acquired after expiration of the redemption period when final deed is

conveyed is executed

Title acquired upon the confirmation and registration of the foreclosure sale

Sec. 20. Refusal of purchaser to pay. • IF a purchaser refuses to pay the amount bid by him

for property struck off to him at a sale under execution, • The officer:

-‐ MAY again sell the property to the highest bidder & -‐ SHALL not be responsible for any loss occasioned thereby;

• BUT the court: 1. May order the refusing purchaser to pay into the

court the amount of such loss, WITH costs, AND 2. May punish him for contempt if he disobeys the

order.

The amount of such payment shall be: 1. For the benefit of the person entitled to the

proceeds of the execution, 2. UNLESS the execution has been fully satisfied, in which

event such proceeds shall be for the: benefit of the judgment obligor.

The officer may thereafter reject any subsequent bid of such purchaser who refuses to pay. Sec. 21. Judgment obligee as purchaser. When: 1. The purchaser is the judgment obligee, AND 2. No third-‐party claim has been filed, • He need not pay the amount of the bid -‐ IF it DOES

NOT EXCEED the amount of his judgment. • IF IT DOES -‐ He shall pay ONLY the excess. Sec. 22. Adjournment of sale. By written consent of: 1. The judgment obligor and obligee, OR 2. Their duly authorized representatives, The officer may adjourn the sale to any date and time agreed upon by them. Without such agreement, he may adjourn the sale from day to day IF it becomes necessary to do so for lack of time to complete the sale on:

a. The day fixed in the notice OR b. The day to which it was adjourned.

Sec. 23. Conveyance to purchaser of personal property capable of manual delivery. • When the purchaser of any personal property capable of

manual delivery, pays the purchase price, • The officer making the sale must:

1. Deliver the property to the purchaser AND, 2. IF desired, execute and deliver to him a certificate of

sale. The sale conveys to the purchaser:

-‐ All the rights which the judgment obligor had in such property

-‐ As of the date of the levy on execution or preliminary attachment.

Sec. 24. Conveyance to purchaser of personal property not capable of manual delivery. • When the purchaser of any personal property, not

capable of manual delivery, pays the purchase price, • The officer making the sale must: execute AND

deliver to the purchaser a certificate of sale.

Such certif icate conveys to the purchaser: -‐ all the rights which the judgment obligor had in such property

-‐ as of the date of the levy on execution or preliminary attachment.

Note: For personal property not capable of manual delivery, the officer must execute and deliver to the purchaser the certificate of sale (symbolic delivery).



Sec. 25. Conveyance of real property; certificate thereof given to purchaser and fi led with registry of deeds. UPON a sale of real property, the officer must give to the purchaser a certificate of sale containing: (a) A particular description of the real property sold; (b) The price paid for each distinct lot or parcel; (c) The whole price paid by him; (d) A statement that the right of redemption expires 1 year from the date of the registration of the certificate of sale. Such certif icate must be registered: In the registry of deeds of the place where the property is situated. Notes: • Purchaser acquires right, title, interest and claim of

judgment obligor. • Purchaser of property registered under Torrens system

acquires the same free from liens or encumbrances not noted thereon.

• Confirmation of the sale is not needed unlike in judicial foreclosure of mortgage. The certificate of sale is merely provisional.

May the Validity of an Auction Sale be Attacked? -‐ GR: No because of the presumption of regular performance of duty by the sheriff

-‐ EXC: 1. When from the nature of the irregularity or from intrinsic

facts, injury resulted therefrom. (Navarro v. Navarro, 76 Phil 378)

2. When the price obtained is shockingly inadequate and it is shown that a better price can be obtained at a resale (Barozzo v. Macadaeg 83 Phil 378)

Sec. 26. Certificate of sale where property claimed by third person. When a property sold by virtue of a writ of execution has been claimed by a third person, • the certif icate of sale to be issued by the sheriff

pursuant to sections 23, 24 and 25 of this Rule shall make express mention of the existence of such third-‐party claim.

Sec. 27. Who may redeem real property so sold. Real property sold as provided in the last preceding section, or any part thereof sold separately, may be redeemed in the manner hereinafter provided, BY the following persons: (a) The judgment obligor, or his successor in interest in the

whole or any part of the property; (b) A creditor having a lien:

-‐ by virtue of an attachment, judgment or mortgage on the property sold, or on some part thereof,

-‐ subsequent to the lien under which the property was sold.

Such redeeming creditor is termed a redemptioner.

Note: The right to redemption is transferable and may be voluntarily sold, but it cannot be levied upon by the judgment creditor so as to deprive the judgment debtor of any further rights to the property. Right of Redemption • Personal Property – None; sale is absolute. • Real Property – There is a right of redemption. Who May Redeem

Judgment Debtor Redemptioner Judgment obligor, or his successor in interest (e.g. transferee, assignee, heirs,

joint debtors)

One who has a lien by virtue of another attachment, judgment, or mortgage on property

SUBSEQUENT to the lien under which the property was sold

Within 1 year from the date of registration of the

certificate of sale

1. Within 1 year from the date of registration of the certificate of sale; or

2. Within 60 days from the last redemption by another redemptioner

A surety is NOT a Successor in Interest: By paying the debt, he stands in the place of the creditor, not obligor. Sec. 28. Time and manner of , and amounts payable on, successive redemptions; notice to be given and fi led. The judgment obligor, or redemptioner, may redeem the property from the purchaser:

-‐ At any time within 1 year from the date of the registration of the certificate of sale,

-‐ By paying the purchaser: a. The amount of his purchase, b. With 1% per month interest thereon in addition,

up to the time of redemption, c. Together with the amount of any assessments or

taxes which the purchaser may have paid thereon after purchase, AND

d. Interest on such last named amount at the same rate; AND

e. IF the purchaser be also a creditor having a prior lien to that of the redemptioner, other than the judgment under which such purchase was made, the amount of such other lien, with interest.

Property so redeemed may again be redeemed:

-‐ Within 60 days after the last redemption -‐ Upon payment of

a. The sum paid on the last redemption, b. With 2% thereon in addition, and c. The amount of any assessments or taxes which

the last redemptioner may have paid thereon after redemption by him,

d. With interest on such last-‐named amount, and e. In addition, the amount of any liens held by said

last redemptioner prior to his own, with interest.



The property may be again, AND as often as a redemptioner is so disposed, redeemed from any previous redemptioner:

-‐ Within 60 days after the last redemption, on -‐ Paying:

a. The sum paid on the last previous redemption, b. With 2% thereon in addition, and c. The amounts of any assessments or taxes which

the last previous redemptioner paid after the redemption thereon,

d. With interest thereon, and e. The amount of any liens held by the last

redemptioner prior to his own, with interest. • Written notice of any redemption must be given to the

officer who made the sale AND • A duplicate filed with the registry of deeds of the place,

and • IF any assessments or taxes are paid by the redemptioner

OR IF he has or acquires any lien other than that upon which the redemption was made, notice thereof must in l ike manner:

1. Be given to the officer AND 2. Filed with the registry of deeds;

IF such notice be NOT fi led, the property may be redeemed without paying such assessments, taxes, or liens. Period of Redemption Judgment Obligor Redemptioner

Judgment Obligor has 1 year from registration of certificate of sale

• 1st redemptioner has 1 year to redeem

• 2nd redemptioner has 60 days to redeem after 1st redemption

• 3rd redemptioner has 60 days after 2nd, etc.

Once he redeems, no further redemption is

allowed

Further redemption allowed, even after lapse of 1 year, as long as each redemption is made within

60 days after the last Payment: How and to Whom Made • Tender of redemption money may be made to purchaser

or sheriff. • If tendered to sheriff, he has the duty to accept. Medium of Payment • Cash, although Rule 39, Sec. 9 allows certified bank check. • If check is dishonored, redemption is invalid. • If check became stale for not being presented through no

fault of redemptioner, redemption is valid. Note: The period of redemption is NOT suspended by an action to annul the foreclosure sale. Lazo v. Republic Surety Insurance: The periods for redemption are not extendible or interrupted. The parties may however agree on a longer period, in such case, it would be a conventional redemption. (Jan 70)

Sec. 29. Effect of redemption by judgment obligor, and a certif icate to be delivered and recorded thereupon; to whom payments on redemption made. IF the judgment obligor redeems, he must:

-‐ Make the same payments as are required to effect a redemption by a redemptioner,

-‐ Whereupon, a. No further redemption shall be allowed AND b. He is restored to his estate.

The person to whom the redemption payment is made must:

-‐ Execute AND deliver to him a certif icate of redemption

-‐ Acknowledged before a notary public OR other officer authorized to take acknowledgments of conveyances of real property.

• Such certif icate must: Be filed and recorded in the registry of deeds of the place in which the property is situated, and

• The registrar of deeds must: note the record thereof on the margin of the record of the certificate of sale.

The payments mentioned in this and the last preceding sections may be made:

1. To the purchaser or redemptioner, OR 2. For him to the officer who made the sale.

Note: Redemption can be paid in other forms than cash. The rule is construed liberally in allowing redemption (aid, rather than defeat the right) and it has been allowed in the case of a cashier’s check, certified bank checks, and even ordinary checks. Javellana v. Mirasol: Redemption of the property sold under a foreclosure sale by the judgment mortgagor eliminates from his title thereto the lien created by the levy or attachment or the registration of the mortgage thereon. (Feb 1920) Sec. 30. Proof required of redemptioner. A redemptioner must: 1. Produce to the officer, or person from whom he seeks to

redeem, AND 2. Serve with his notice to the officer:

a. A copy of the judgment or final order -‐ under which he claims the right to redeem, -‐ certified by the clerk of the court wherein the judgment or final order is entered; OR

b. If he redeems upon a mortgage or other lien, a memorandum of the record thereof, certified by the registrar of deeds; OR

c. An original or certified copy of any assignment necessary to establish his claim; AND

d. An affidavit executed by him or his agent, showing the amount then actually due on the lien.



Validity of Redemption Not Affected by Failure to Present Proof -‐ If person to whom redemption was offered accepts without requiring proof, redemption is valid. Sec. 31. Manner of using premises pending redemption; waste restrained. UNTIL the expiration of the time allowed for redemption, the court MAY, as in other proper cases restrain the commission of waste on the property -‐ By injunction, -‐ On the application of the purchaser or the judgment obligee,

-‐ With or without notice; BUT it is NOT waste: • For a person: in possession of the property at the time

of the sale, OR entitled to possession afterwards, • During the period allowed for redemption:

a. To continue to use it in the same manner in which it was previously used; OR

b. To use it in the ordinary course of husbandry; OR c. To make the necessary repairs to buildings thereon

while he occupies the property. Sec. 32. Rents, earnings and income of property pending redemption. The purchaser or a redemptioner shall not be entitled to receive: 1. The rents, earnings and income of the property sold on

execution, OR 2. The value of the use and occupation thereof when such

property is in the possession of a tenant. All rents, earnings and income derived from the property pending redemption shall:

-‐ belong to the judgment obligor UNTIL the expiration of his period of redemption.

Rights of a Judgment Debtor: 1. Remain in possession of the property 2. He cannot be ejected 3. Use the property in the same manner it was previously

used 4. Make necessary repairs to buildings thereon while he

occupies the property 5. Use it in the ordinary course of husbandry (Sec 31) and 6. Collects rents, earnings and income derived from the

property until the expiration of the period of redemption (Sec 32)

Sec. 33. Deed and possession to be given at expiration of redemption period; by whom executed or given. IF no redemption be made within 1 year from the date of the registration of the certificate of sale

The purchaser is entitled to a conveyance and possession of the property; or

IF so redeemed whenever: • 60 days have elapsed AND • No other redemption has

been made, AND • Notice thereof given, AND • The time for redemption has

expired,

The LAST redemptioner is entitled to the conveyance and possession;

BUT in all cases: The judgment obligor shall have the entire period of 1 year from the date of the registration of the sale to redeem the property. The deed shall be executed: 1. By the officer making the sale OR 2. By his successor in office and shall have the same

validity as though the officer making the sale had continued in office and executed it.

UPON the expiration of the right of redemption, the purchaser or redemptioner: -‐ Shall be substituted to AND -‐ Acquire all the rights, title, interest and claim of the judgment obligor to the property as of the time of the levy.

-‐ GR: The possession of the property shall be given to the purchaser or last redemptioner BY the same officer

-‐ EXC: Unless a third party is actually holding the property adversely to the judgment obligor.

Note: Within 1 year, purchaser acquires only the rights, title, interest and claim of judgment obligor to property. After 1 year, the purchaser now has his own right and acquires right to the property. It is at this time that the writ of possession is issued. Note: Writ of possession may be enforced against the judgment obligor or his successors-‐in-‐interest but NOT against persons whose right of possession is adverse to the latter When a Third party is in possession: The procedure is for the court to order a hearing and determine the nature of such adverse possession. Two Documents which the sheriff executed n case of real property: 1. Certificate of Sale: After the auction sale, he will

execute in your favor the certificate of sale under Sec 25, by the time you register that, you start counting the one year.

2 . Deed of Conveyance: If after 1 year there is no redemption, a deed of conveyance is executed -‐ Sec 33

Note: The deed of conveyance is what operates to transfer to the purchaser whatever rights the judgment debtor had in the property. The certificate of sale after execution merely is a memorial of the fact of sale and does not operate as a conveyance.



Pacheco v. CA: The purchaser acquires no better right than what the judgment debtor had in the property levied upon. Thus, if the judgment debtor had already transferred the property executed prior to the levy and no longer has an interest in the property, the execution purchaser acquires no right. (Aug 87) Sec. 34. Recovery of price if sale not effective; revival of judgment. IF the purchaser of real property sold on execution, OR his successor in interest: -‐ fails to recover the possession thereof, OR is evicted therefrom: a. In consequence of irregularities in the proceedings

concerning the sale, or b. Because the judgment has been reversed or set aside,

or c. Because the property sold was exempt from

execution, or d. Because a third person has vindicated his claim to

the property, He may on motion: 1. In the same action or in a separate action, recover from

the judgment obligee: a. The price paid, with interest, OR b. So much thereof as has NOT been delivered to the

judgment obligor; OR 2. Have the original judgment revived in his name

for: a. The whole price with interest, OR b. So much thereof as has been delivered to the

judgment obligor. • The judgment so revived shall have the same

force and effect as an original judgment would have AS OF the date of the revival and no more.

Note: The purchaser or his successor may also bring an action to recover possession of property. Sec. 35. Right to contribution or reimbursement. • When property liable to an execution against several

persons is sold thereon AND • More than a due proportion of the judgment is satisfied

out of the proceeds of the sale of the property of one of them, OR

• One of them pays, without a sale, more than his proportion,

he may compel a contribution from the others; and • When a judgment is upon an obligation of one of them, as

security for another, AND • The surety pays the amount, or any part thereof, either

by sale of his property or before sale, he may compel repayment from the principal .

Note: Contribution and reimbursement may be obtained in a separate action, unless cross-‐claims have been filed and adjudicated in the same action, in which case, execution may issue to compel contribution or reimbursement. (Feria) Sec 36 to 43: Remedies of the judgment creditor in aid of execution or if judgment is not fully satisfied: 1. Examination of judgment obligor’s property and income

(Sec. 36); 2. Examination of the judgment obligor’s debtor as to any

debt owned by him or to any property of the judgment debtor in his possession (Sec. 37);

3. Enforcement by subpoena of attendance and conduct of examination (punishable by contempt) (Sec. 38);

4. Judgment obligor’s debtor may pay sheriff (Sec. 39); 5. Order to apply to obligor’s property in the hands of

another, investigate income, expenses, earnings – order to fix monthly installments (Sec. 40);

6. Appoint receiver (Sec. 41); 7. Sale of debtor’s interest in real estate (Sec. 42); and 8. If garnishee denies debt, court may order creditor to

institute action against such person to pay debt (May be an action to recover property, forbid its transfer or punish disobedience for contempt)(Sec. 43).

Sec. 36. Examination of judgment obligor when judgment unsatisfied. When the return of a writ of execution: -‐ Issued against: Property of a judgment obligor, OR any one of several obligors in the same judgment,

-‐ Shows that: The judgment remains unsatisfied, in whole or in part

• The judgment obligee, at any time AFTER such return

is made, shall be entitled to an order from the court which rendered the said judgment: -‐ Requiring such judgment obligor to appear and be examined concerning his property and income

-‐ Before such court OR before a commissioner appointed by it,

-‐ At a specified time and place; AND • Proceedings may thereupon be had for the

application of the property and income of the judgment obligor towards the satisfaction of the judgment.

But NO judgment obligor shall be so required to appear before a court or commissioner OUTSIDE the province or city in which such obligor resides or is found. Sec. 37. Examination of obligor of judgment obligor. • When the return of a writ of execution against the

property of a judgment obligor shows that the judgment remains unsatisfied, in whole or in part, &

• UPON PROOF to the satisfaction of the court which issued the writ, that: A person, corporation, or other juridical entity has property of such judgment obligor OR is indebted to him,



the court may, by an order, require such person, corporation, or other juridical entity, or any officer or member thereof,

1. To appear before the court or a commissioner appointed by it, at a time and place within the province or city where such debtor resides or is found, AND

2. Be examined concerning the same. The service of the order shall bind;

1. All credits due the judgment obligor AND 2. All money and property of the judgment obligor in the

possession or in the control of such person, corporation, or juridical entity from the time of service;

AND the court may also require: -‐ Notice of such proceedings to be given to any party to the action

-‐ In such manner as it may deem proper. Note: The garnishee becomes a forced intervenor, requiring him to pay his debt not to the judgment debtor but to the creditor (a form of involuntary novation). Sec. 38. Enforcement of attendance and conduct of examination. A party or other person MAY be compelled, by an order or subpoena:

1. To attend before the court or commissioner 2. To testify as provided in the two preceding sections,

AND UPON failure: To obey such order or subpoena OR to be sworn, OR to answer as a witness OR to subscribe his deposition, MAY BE punished for contempt as in other cases. • Examinations shall not be unduly prolonged, • BUT the proceedings may be adjourned from time to

time, UNTIL they are completed. • IF the examination is before a commissioner, he

must: take it in writing and certify it to the court. ALL examinations and answers before a court or commissioner: 1. MUST be under oath, AND 2. When a corporation or other juridical entity answers,

it: MUST be on the oath of an authorized officer or agent thereof.

Sec. 39. Obligor may pay execution against obligee. AFTER a writ of execution against property has been issued: • A person indebted to the judgment obligor MAY

pay: -‐ To the sheriff holding the writ of execution: -‐ The amount of his debt or so much thereof as may be necessary to satisfy the judgment,

-‐ In the manner prescribed in Sec 9 of this Rule, AND

The sheriff ’s receipt shall be: A sufficient discharge for the amount so paid or directed to be credited by the judgment obligee on the execution. Sec. 40. Order for application of property and income to satisfaction of judgment. The court may order any property of the judgment obligor, or money due him:

-‐ Not exempt from execution, -‐ In the hands of either himself or another person, or of a corporation or other juridical entity,

to be applied to the satisfaction of the judgment, SUBJECT to any prior rights over such property. IF, upon investigation of his current income and expenses, • It appears: That the earnings of the judgment obligor

for his personal services are MORE THAN necessary for the support of his family,

the court: 1 May order that he pay the judgment in fixed monthly

installments, AND 2 UPON his failure to pay ANY such installment when due

without good excuse: may punish him for indirect contempt.

Sec. 41. Appointment of receiver. The court: 1. MAY appoint a receiver of the property of the judgment

obligor; AND it 2. MAY also forbid a transfer or other disposition of, or any

interference with the property of the judgment obligor not exempt from execution.

Note: The sheriff is not a proper person to be appointed as receiver. Sec. 42. Sale of ascertainable interest of judgment obligor in real estate. IF it appears that the judgment obligor:

-‐ Has an interest in real estate in the place in which proceedings are had, as mortgagor or mortgagee or otherwise, AND

-‐ His interest therein can be ascertained without controversy,

• The receiver may be ordered: To sell and convey such real estate or the interest of the obligor therein; AND

• Such sale: Shall be conducted in all respects in the same manner as is provided for the sale of real estate upon execution, AND

• The proceedings thereon: Shall be approved by the court BEFORE the execution of the deed.



Sec. 43. Proceedings when indebtedness denied or another person claims the property. IF it appears that a person or corporation, alleged to have property of the judgment obligor OR to be indebted to him: 1. Claims an interest in the property adverse to him OR 2. Denies the debt, the court may authorize, BY an ORDER made to that effect, the judgment obligee:

1. To institute an action against such person or corporation for the recovery of such interest or debt,

2. Forbid a transfer or other disposition of such interest or debt within 120 days from notice of the order, and

3. May punish disobedience of such order as for contempt.

Such order may be modified or vacated at any time: -‐ By the court which issued it, or -‐ By the court in which the action is brought, upon such terms as may be just.

Note: Execution may issue only upon an incontrovertible showing that the 3rd party holds property of the judgment obligor or is indebted to him. Sec. 44. Entry of satisfaction of judgment by clerk of court. Satisfaction of a judgment: Shall be entered by the clerk of court in the court docket, AND in the execution book: 1. UPON the return of a writ of execution showing

the full satisfaction of the judgment, OR 2. UPON the fi l ing of an admission to the satisfaction of

the judgment: Executed AND acknowledged in the same manner as a conveyance of real property by the judgment obligee or by his counsel unless a revocation of his authority is filed, OR

3. UPON the endorsement of such admission by the judgment obligee or his counsel on the face of the record of the judgment.

Sec. 45. Entry of satisfaction with or without admission. • Whenever a judgment is: Satisfied in fact, OR

otherwise than upon an execution, on demand of the judgment obligor,

• The judgment obligee or his counsel must: Execute and acknowledge, or indorse, an admission of the satisfaction as provided in the last preceding section, and

• AFTER notice AND upon motion the court: 1. May order either the judgment obligee or his counsel

to do so, OR 2. May order the entry of satisfaction to be made

without such admission. -‐ Creditor who compels satisfaction of judgment loses right of appeal.

-‐ Debtor who voluntary satisfies judgment loses right to appeal. But, the debtor who is compelled to pay does NOT lose right to appeal.

Tender of Payment by Judgment

Tender of Payment by Contractual Debt

• If tender refused, not necessary to make consignation

• Court may direct money to be paid to the court, and order entry of satisfaction of judgment

If tender refused, must consign payment w/

court

Sec. 46. When principal bound by judgment against surety. When a judgment is rendered against a party who stands as surety for another, -‐ The LATTER (Principal) is also bound FROM the time

that he has: 1. Notice of the action or proceeding, AND 2. An opportunity at the surety’s request to join in the

defense.

Surety Sued Alone

Principal and Surety Jointly

Sued

Principal Sued Alone

• Principal also bound by judgment

• Surety should notify principal and request him to join in defense; surety must still file separate action for reimbursement but principal can no longer set up defenses w/c he could have set up in the original action

• If principal not notified, he may set up defenses in a subsequent action

Judgment may be rendered against them jointly & severally

Surety should file cross-‐claim for reimbursement

Principal has no cause of action against surety

Sec. 47. Effect of judgments or f inal orders. The effect of a judgment or final order rendered by a court of the Philippines, having jurisdiction to pronounce the judgment or final order, may be as follows: (a) In case of a judgment or f inal order:

Judgment or f inal

order:

EFFECT: The judgment or f inal order is

CONCLUSIVE as to: Against a specific thing

The title of the thing

In respect to the Probate of a will or administration of the estate of a deceased person

Will or administration. However, only prima facie evidence of the death of the

testator or intestate In respect to the personal, political, or legal condition or status of a particular person or his relationship to another

Condition, status, or

relationship of the person



HOWEVER, the probate of a will or granting of letters of administration shall ONLY be prima facie evidence of the death of the testator or intestate; (b) In other cases, the judgment or final order is, with respect:

1. To the matter directly adjudged OR as 2. To any other matter that could have been raised in

relation thereto, CONCLUSIVE between the parties AND their successors in interest

-‐ By title subsequent to the commencement of the action OR special proceeding,

-‐ Litigating for the same thing and under the same title and in the same capacity; and

(c) In ANY OTHER litigation between the same parties or their successors in interest:

-‐ that ONLY is deemed to have been adjudged in a former judgment or final order: 1. Which appears upon its face to have been so

adjudged, OR 2. Which was actually and necessarily included

therein or necessary thereto. Final judgment or Order, defined: One which disposes of the whole subject matter or terminates a particular proceeding or action, leaving nothing to be done but to enforce by execution what has been determined. (Francisco v. Basa, Feb 05) Res Judicata of a Final Judgment of Final Order -‐ An existing final judgment or decree rendered on the

merits is conclusive upon the rights of the parties or their privies, in all other actions or suits in the same or any other judicial tribunal, on the points and matters in issue in the first suit.

-‐ It is based on the principle that parties should not litigate the same matter more than once.

Public Policy Principle: The inalterability of a final and executory judgment. The decisions of the court must be immutable at some definite period of time. Otherwise, there will be no end to litigation. Note: A significant effect of a final judgment is its being appealable. (Sec 1 Rule 41) Two aspects of Res Judicata: 1. BAR BY A PRIOR JUDGMENT – The judgment or final

order is a bar to the prosecution of a subsequent action based on the same claim or cause of action -‐ Also known as “Direct Estoppel by Judgment” -‐ Covers paragraphs A and B

Par (a): Refers to bar by former judgment or res judicata in judgments IN REM. Par (b): Refers to as bar by former judgment or res judicata in judgments IN PERSONAM .

Requisites of Res Judicata by Prior Judgment 1. Former judgment or order must be final and executory; 2. Court has jurisdiction over subject matter and parties; 3. Former judgment or order was on merits; and 4. Identity of (a) parties, (b) subject matter, and (c) cause of

action between first and second action. Note: Res judicata applies only between adverse parties in a former suit, NOT between co-‐parties. Identity of Cause of Action: When the two actions are based on the same delict or wrong committed by the defendant even if the remedies are different. Identity of the Parties: Present even if the defendant in the first case becomes the plaintiff and vice versa. (HSBC v. Aldecoa, Mar 1915) There is NO Res Judicata in: a. Revival of judgment – Cause of action is for revival of

a dormant judgment. b. Annulment of Judgment – Cause of action is for

extrinsic fraud or lack of jurisdiction. Here, the subject matter is the judgment itself.

2. CONCLUSIVENESS OF JUDGMENT – The issues actually and directly resolved in a former suit cannot again be raised in any future case between the same parties involving a different cause of action.

-‐ It has the effect of preclusion ONLY of the issues -‐ The parties in both actions may be same but the causes of action are different.

-‐ Also known as “Estoppel by Verdict” or “Estoppel by Record” or “Collateral Estoppel by Judgment” or “Preclusion of Issues” or “Rule of Auter Action Pendant”.

Par (c): Known as “conclusiveness of judgment” Bar by Former Judgment Conclusiveness of

Judgment Refers to same action, claim or

demand Refers to another action between same parties but involves different claim

First judgment constitutes an absolute bar to subsequent

action

There is finality as to the claim or demand in controversy, not

only to matters directly adjudged, but as to any other admissible matter w/c might

have been adjudged.

Judgment merely an estoppel only as to those matters in issue or

controverted. Conclusive only as to matters directly adjudged and actually

litigated in the first action.

Identity of parties, subject matter, cause of action

Identity of parties and subject matter only

Has the effect of preclusion of claims

Has the effect of preclusion only of issues.



Sec. 48. Effect of foreign judgments or f inal orders. The effect of a judgment or final order of:

-‐ A tribunal of a foreign country, -‐ Having jurisdiction to render the judgment or final order is as follows:

In case of: A judgment or f inal order:

The judgment or f inal order IS:

(a) Upon a specific thing

conclusive upon the tit le to the thing;

(b) Against a person,

presumptive evidence of a right as between the parties and their successors in interest by a subsequent title.

In either case, the judgment or f inal order may be repelled BY evidence of a: 1. Want of jurisdiction, 2. Want of notice to the party, 3. Collusion, 4. Fraud, or 5. Clear mistake of law or fact.

Public Policy Principle: A judgment by a court is enforceable only within its territorial jurisdiction. Two Ways of Giving Effect to a Foreign Judgment: 1. An ordinary action to enforce the foreign judgment may

be filed in court or 2. It may be pleaded in an answer or a motion to dismiss.

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